Chapter 8 - Judiciary

POLI 101

adjudication of disputes

the bulk of what courts really do, civil contribution for the economy, public law and private parties

Public Law

Matters between private party and government

the way the courts interpreted the constitution, assigning the power to the provinces (eg. environmental powers, regulation of trade, Charter of Rights)

Judicial Inquiries and Commissions

leveraging the independence of the judiciary and keeping them accountable by investigations

Judicial Review

apply the constitution to the legislation of the day to make sure its compliant - constitution requires interpretation and settling disputes about it

• can result in changes in the law

• the law must be applied to the situation

Impartiality

adjudicate between two disputants, an ____ arbiter must settle it for them - free of prejudice or bias (bias will result in the judge being removed)

Institutional protections

ability to appeal (incentive to be neutral), adversarial character of court proceedings, and political independence/neutrality in judges

Principals of Canadian judiciary

1. Impartiality

2. Judicial independence

3. Equality before law

Judge independence

security of tenure, difficult to remove, fixed salaries by law

Judicial independence

Free from pressure of political executive branches, cannot be a member of cabinet

Judge

independence from the executive, serve of ‘good behaviour’ until age 75, self-policed

Reference procedure

can refer a case to the Supreme Court in the absence of a genuine charge/case for further clarity

Reference Cases

Provinces and Federal government can refer hypothetical (usually constitutional) questions to their highest court of appeal (not ‘real’)

equality before the law

access to justice, legal aid and assistance, judicial education and discipline

access to justice

provided service to the community through availability to a neutral arbiter to settle disputes

Legal aid and assistance

the right to hire a lawyer whether or not you can afford it

pro bono

‘for the public good’ - lawyers can represent clients voluntarily without charge

Provincial Courts

(sec. 92): provincially administered and appointed, provinces get to design the courts to their will

Supreme Courts of the Provinces

(sec. 96): provincially administered, federally appointed and paid

Federal Courts

(sec 101): federally appointed, created and administered, gives power to Parliament to create courts

Supreme Court Act

organic statute: outlines structure and rules for the supreme court

Supreme Court of Canada

(sec 101): federally created, administered, appointed

• 9 judges

• regional representation

• 3 judges must come from Quebec

Supreme Court Act - requirements for judges

bilingualism, reside within 24hours of the capital, 3 must come from Quebec

Common Law

developed mostly through precedent judicial decisions rather than statutes

appointment process

largely secretive, 16 judiciary advisory committees, cabinet?PM prerogative, non-transparent

Supreme Court

- 500+ applications for 'leave to appeal' heard by the court each year

- controls its own 'docket'

- 40-80 heard per year

- reference cases are an exception, they must hear them

- odd numbered panels

Supreme Court Decision Making 

• odd numbered panels of judges from 3-9

• (they do not have to hear all the cases)

• eventually has a written decision that explains reasoning 

• unanimous decisions behind the scenes 

form of decisions - supreme court

majority, dissent, concurrence - or partial concurrence

Dissent

minority, and a provided reason for the disagreement

concurrence

agreement on the outcome of the case for different legal reasons

Supreme Court Influence

• shaped by associations/interest groups seeking to use the Courts to reject the legislation that had been put in place by the government

• connected to interpretations of the Charter of Rights, lots been determined by the Supreme Court

) Private law

Laws governing matters of the provincial government (tort, property, contracts)

2 main areas of public law

Criminal law & administrative law

precedents

previous judicial decisions on the same point of law

If no precedent existed, judges were free to decide cases in the manner

that seemed most consistent with the underlying principles of the case law that

did exist

principle of stare decisis

“to stand by what has been

decided”, judges were required to respect any precedent that had been

endorsed by courts of authority superior to their own.

Administrative law

Any regulatory legislation not involving criminal sanctions

3 main tasks for judiciary

1. Adjudication of private law (legal disputes between two private parties)

2. Adjudication of public law

3. Reference procedure

superior courts (s 96)

More important cases are brought here (murder)

Inferior courts (s. 92)

Less harsh punishments for smaller cases (traffic violations)

Section 101 courts

Power for parliament to establish other courts to handle certain matters (federal matters, tax disputes, etc)

Judicial Committee of the Privy Council

(JCPC)

Highest court of appeal, landmark rulings — now changed to Supreme Court

Judicial restraint

Passive interpreter of laws—-letting the executive branches handle things

Judicial activism

Pushing for more exercise judicial powers and using personal agenda/views to shape policy

integrated judicial system

Higher court decisions are binding on lower courts—binding precedents - Supreme Court has central authority