Canadian Courts: Role of Judiciary and Canadian Court Hierarchy

What is the judiciary?

Third branch of government which interprets the laws.

What are the first and second branches of government?

Executive (makes, administers, and enforces laws) and legislative (makes laws).

Why is the judiciary the third branch of government?

The Constitution divides the power in a way where the power given to courts comes later; we do not often think of judge when voting for representatives of government.

What are the roles of the judiciary in a constitutional democracy?

Judgements as part of law making, stare decisis, adding to legislated rules by interpreting statutes, deciding if a statute has superseded a common law rule, upholding the Constitution, and signalling changes in society.

Review: What is common law?

Defined as the vast body of judicial decisions that have developed overtime.

What did Hutchinson say about common law?

The law is always moving but never arriving.

Review: What are the uses of precedence?

Certainty allowing reliance and curbing arbitrariness; leans towards equality and efficiency.

Review: What is the different between precedent and stare decisis?

Precedent is the past court decision or rule of law (the tool); stare decisis is the overall legal doctrine that requires judges to follow those past decisions (rule that the tool should be used).

What are the lowest courts on the hierarchy?

Provincial and territorial tribunals and inferior courts, federal tribunals.

What are the third highest courts on the hierarchy?

Provincial and territorial superior courts, federal court, and tax court of Canada.

What are the second highest courts on the hierarchy?

Provincial, territorial, and federal courts of appeal.

What is the highest Canadian court?

Supreme Court of Canada.

What is the structure of provincial and territorial inferior courts?

Judges appointed by the province; see summary criminal matters (not murder), family and youth matters, small claims (except Manitoba, Ontario, and PEI); includes divisions (i.e. traffic).

What is the structure of the federal inferior court?

General court martial and standing court martial (military court); provincial statute determines the criminal/civil matter over which it has jurisdiction.

What occurs at tribunals?

Places for administrative courts to see disputes for judicial review or appeals; not the same as judicial review of a provincial or federal legislation on constitutional grounds.

What occurs at the inferior court level?

Involve divisions and see most criminal (summary) cases; established under s.14 and s.92 ofo the Constitution providing that provinces should appoint judges.

What is unique about territorial inferior courts?

Made up of justices drawn from other provinces due to a lack of human resources needed to run courts (i.e. Nunavut has only one court).

What occurs at military courts?

Only for military personnel; separate from other courts but leads to SCC as final court of appeal.

What occurs at the superior/s.96 court level?

Judges appointed federally under s.101 and s.96 of the Constitution; can hear all matter except when explicitly exempted by law, to which it goes to inferior courts.

What is the difference between inferior and superior courts?

Federal government appoints judges at the superior court level, whilst the province appoints the judges at the inferior court level.

What is the difference between superior and appeal courts?

Superior courts are where trials are held and appeal courts are where appeals from that trial are heard and decided upon.

Where does most legal action occur?

Within the provincial/inferior courts; an accused can also elect their indictable offences to be tried in a provincial court.

Which level of court involves a jury?

The superior court levels.

What is the appointment process for the inferior court level?

Authority is with the province/territory, process is through JAAC, qualifications are 10 years of duties of judicial nature and knowledge of law, social issues, and diversity.

What is the appointment process for the superior court level?

Authority is federal, process is through the Office of the Commissioner for Federal Judicial Affairs Canada (working through Advisory Committees), qualifications are bar or advocate of 10 years and 10 years of judicial duties.

What is the appointment process for the supreme court level?

Appointment authority is federal and process is through the Advisory Board (identifies candidates).

What is the first step of appointing federal judges?

Must apply to the FJA of Canada using a questionare, a copy of three legal decisions/documents, and complete authorization from each bar you have been a member of; JAC in provinces and territories conduct background checks sent to FMOJ and FJA.

How is the appointment process different for SCC judges?

Advisory board scouts for people and must have been in the Superior or Court of Appeal beforehand (judge hierarchy ladder).

What is the second step of appointing federal judges?

Fed. MOJ and FJA reviews and recommends to Cabinet; Cabinet checks for political patronage or leanings and recommends to PM.

What is the last step of appointing federal judges?

Governor General in the Council approves and signs off order, judge’s name is announced.

Who appoints Chief Justices?

The Prime Minister (or premier at provincial level)

What are supernumeraries?

Extra judges in case any judges go on leave or otherwise need someone else to step in.

Which provinces has the largest number of federal judges?

Ontario.

How are inferior court judges appointed?

Vacancies in inferior courts are advertised, whereas for federal a judge must apply and be recommended.

Are judicial appointments political knowing their extensive process?

Can be political as courts engage in political questions; the judiciary will always reflect the people who voted and therefore the current government in office and the values they campaign for.