Hamar Foster

For The Better Administration of Justice: The Court of Appeal for British Columbia, 1910-2010

In the Anglo-Canadian legal system, trials are proceedings in which the disputing parties, or litigants, each put evidence, usually through the oral testimony of witnesses, before a court and make legal arguments based upon it. Then the judge – or the jury, if there is one – decides the case. Most disputes never go to trial, and the vast majority of those that do are not appealed. If the unsuccessful litigant does appeal, the process is markedly different. There are no witnesses and there is no jury, even if there was a jury at trial.1 So there is no examination or cross-examination and no flights of rhetoric addressed to jurors. Appeals are generally confined to legal argument based on the record – that is, a transcript of everything that happened at trial – and are nearly always heard by more than one judge. In the British Columbia Court of Appeal three judges (and sometimes five) sit on appeals. Although infrequently exercised, the right to appeal a judicial decision that has gone against you is fundamental to our legal system. But it is a right that is of relatively recent origin. Because trial outcomes were seen, for centuries, as revealing the judgment of God, one could hardly appeal them; and this attitude persisted even after the obviously supernatural modes of trial, such as battle, ordeal, and wager of law, were replaced by trials in which mere mortals – juries – rendered judgment.2 At common law, judges presided and juries decided, and that was that. When the verdict of a jury was entered on the record before all the judges of one of