BCTA 100 Test 2 Review

Judges' decisions become a part of law:

The reasons for why judges make their decisions becomes a part of law and depending on how high up the court is it may be binding and all other judges may be forced to follow precedent.

State of the Judiciary:

Statues are becoming increasingly more important in governing provinces; however, the judicial branch is still just as important today.

Why is the Judiciary branch important:

This branch of government is important because Judges are allowed freedom to do their jobs unlike politicians. Judges do not risk getting fired, thus they can interpret law freely unlike politicians who run based on policies that will get them the most votes.

What do judges do:

1. Establish meaning of statutory provisions:

2. Determine jurisdictional validity of statutes:

3. Decide whether a statute offends the Constitution:

4.Decide if a statute has superseded a common law rule:

Establish meaning of statutory provisions:

establish basic meaning of statutory provision(aka conditions)

Determine jurisdictional validity of statutes:

using the Constitution Act 1867 sections 91 and 92 judges will determine if the government has authority to write that law

Decide whether a statute offends the Constitution:

Judges add to legislated rules by determining if a statue goes against the Constitution

Decide if a statute has superseded a common law rule:

Statutes are above common law and thus if a common law rule and statue conflict judges may be called in to interpret.

Judges' interpretations of statues become a part of law:

From the point when a judge interprets a statue, the statue will be read with that interpretation

Constitutional Basis of Canadian Courts:

The Constitution Act 1867 set out powers over courts and judicial appointments: 1.S. 92, 92(4), 92(14) , S.96, S.99(1) , S.99(2) , S.101

Types of courts:

Inferiors courts, Superior courts, Supreme Court of Canada

What Powers do Inferior courts have:

1. Less serious criminal matters, 2. Family and youth matters, 3. Small claims disputes(except in Manitoba, Ontario, PEI).

Constitutional Basis for Provincial Inferior courts:

Formed under Constitution Act 1867 S. 92(14) with judges who were appointed under Constitution Act 1867 S. 92(4).

Constitutional Basis for Territorial Inferior courts:

are formed under federal legislation and judges are appointed under federal legislation

What is an inferior court:

Provincial/Territorial and Federal courts that are limited in scope(i.e. family and youth, military court martial etc.). Usually courts where Canadians experience their first matter.

They are the main types of inferior courts

Provincial/territorial

Federal Inferior Courts:

only includes military courts martial(consists of The General Court Martial and Standing court martial), has jurisdiction over military people who commit offences

Constitutional Basis for Territorial Superior courts:

Territorial courts are formed under federal legislation and judges are appointed under federal legislation.

Constitutional Basis for Provincial Superior courts:

Provincial courts are formed under Constitution Act 1867 S. 92(14) with judges who were appointed federally under Constitution Act 1867 S. 96.

Why are Provincial/Territorial judges appointed Federally

they can hear all matters, so federally appointing them ensures balance, and it is also unconstitutional for provincial judges to hear federal matters.

What Powers do Provincial/Territorial Superior courts have

courts with jurisdiction to hear all matters (unless authority is taken away). Has two levels; trial and appeal usually referring to just the trial level

Federal Superior courts:

1. The federal court, 2. The federal court of appeal, 3. The tax court of Canada, and 4. The court Martial Appeal court.

Constitutional Basis for Federal Superior courts:

Formed under federal legislation with judges who are also appointed under federal legislation. Parliament's powers to create these courts comes from the second part of the Constitution Act 1867 s.101.

Where do Federal court and Federal court of Appeal have jurisdiction:

throughout Canada however, their authority sometimes overlaps with provincial superior courts and can lead to disputes,

Where do Tax Court and Court Martial Appeal have jurisdiction:

Tax court has jurisdiction throughout Canada but only for taxes, Court martial Appeal court has jurisdiction throughout Canada but only but only for the military courts martial.

How can parliament have jurisdiction over superior and inferior Territorial courts:

Constitution Act 1871 S. 4 gives parliament power to give these courts their own powers.

The Supreme Court of Canada is defined:

as a Federal Superior court, but it has special status and occupies its own category.

Constitutional Basis for the Supreme Court of Canada:

Parliament's powers to create these courts comes from the first part of the Constitution Act 1867 s.101

What Powers does the SCC have:

Jurisdiction to hear appeals from 1. all provincial and territorial court of appeals, 2. Federal court of appeal, and 3. The court martial appeals court

Why did Canada want a Supreme court:

a general court of appeal was desirable to politicians because they wanted judges who could interpret statues and to decide future constitutional disputes that they believed would arise between the federal and provincial government. As a result of this section 101 of the Constitution was added.

Ways to get into the supreme court

1. Leave to appeal 2. Appeal as of right 3. On reference

Leave to appeal:

occurs when the SCC grants a party the right to hear the case. Most common way for non-criminal matters to be heard. In some cases the provincial and federal court of appeal can grant permission however most of the time you must get direct permission from SCC. Applicants must file written submissions, these submissions are heard by 1 in 3 panels of 3 out of 9 judges.

Criteria established to be granted leave:

S. 40(1) of the SCC Act this includes; 1. Matter of public importance 2. A significant legal question 3. Any other matter the court believes warrants its attention.

Ex of cases that would be granted leave of appeal:

Constitutional issues, Indigenous RIghts,

Criteria established to be granted Appeal as of right:

S. 691 of the Criminal Code: 1. The person convicted of an indictable offence at trial goes to the court of appeal 2/3 Judges agree but 1 judge dissents on a question of law 2. The person is acquitted of an indictable offence at the trial level but the court of appeal substitutes a guilty verdict. If neither applies you can still apply through the leave of appeal as a non criminal matter.

On a Reference:

provided by S. 53 of the SCC Act, not dependent on an existing case in a lower court. It is when the federal government refers an important question of law or fact to the SCC for an opinion. Usually the questions are about if a statue is going to offend the constitution. Provincial cabinets also do this but with the provincial court of appeal or trail level superior court.

How many courts are federally and provincially appointed:

Federal: 11 Provincial: 4

What courts are a part of the federal system:

Federal court, the Federal Court of Appeal, Tax court, Military Courts Martial, Military Court of Appeal

What does the federal superior court system do:

deals with things under federal jurisdiction(under section 91 of the Constitution) and specialized courts like tax and military court

Federal court and the Federal Court of Appeal:

They are both itinerant courts, with locations in major cities across Canada. Used to be 2 divisions but separated into different courts In 2003.

Tax court:

used to be an inferior court or administrative tribunal but is now a superior court. Formed in 1983. Functions like the SCC with a chief justice and puisne judges. Also an itinerant court with locations in major cities across Canada.

Tax court jurisdiction:

1. Income Tax Act, 2. Employment Insurance Act, 3. Excise Tax Act(GST/HST), 4. Canada Pension Plan, and 5. Old Age Security. It is an independent court and not attached to the CRA or other government departments

Military Courts are parallel to:

provincial/territorial inferior courts that have jurisdiction over criminal cases but separate from the justice system.

Constitutional Basis for Military Court:

S.91(7) of the Constitution Act 1867 or S. 101 of the Constitution Act 1867 gives Parliament jurisdiction over it. Parliament passed the National Defence Act which is the governing statue for the armed forces and established the courts.

Military courts have jurisdiction

over serious offences and is a special set of inferior federal courts which deal with armed forces.

The Military appeal court Jurisdiction:

hears from the military court martial

Constitutional Basis for Military Court Appeal:

Established under the National Defence Act. Parliament's Jurisdiction of this court is based on section 101.

The main purpose of the Courts of Administration Service:

To facilitate coordination and cooperation among the Federal Court of Appeal, The Federal Court, The Martial Appeal Court and Tax court and ensure the effective and efficient provision of administrative services.

Components of stare decisis are:

1. Precedent: 2. ratio or ratio decidendi

Jurisdictions of stare decisis in the context of the Canadian legal system:

the four pathways of courts all leading to the SCC (Provincial, Territorial, Federal and Military Court systems). Precedent flows downward only and within the jurisdiction that the decision is made. Decisions of the SCC are binding in all courts.

Precedent:

the decisions in an earlier court case.

ratio or ratio decidendi:

In order for this to happen case details must be the same.

vertical stare decisis:

binds lower level courts in the same jurisdiction

Principle of comity:

superior courts of first instance(trial courts) should always use horizontal stare decisis

Why don't we use comity:

1. The earlier decision has been revoked following an appeal. 2. The earlier decision was reached through carelessness where a statue or binding authority was missed 3. The earlier decision was made under pressing circumstances because the trial required an immediate decision

Comity

aka horizontal stare decisis

How do legal researchers conduct research:

look for binding decisions from higher courts first. If no binding decisions are found then they look for decisions from other jurisdictions.

What other Jurisdictions do legal researchers look for decisions:

They would look for decisions from other provinces, territories, federal courts(if there is joint authority), countries with common law systems etc. the higher the level of court from the other jurisdiction, the more reputable the judge and the more recent the better.

Exception to Stare Decisis:

The SCC has said the only way a judge can disregard stare decisis when the cases are similar are 1. The issue should be revisited due to development in law. 2. The precedent is no longer applicable because of a change in circumstances or evidence that fundamentally shifts the parameters of the debate

Lawyers Arguments to not use Stare Decisis:

researchers may come across a decision that is unfavorable to them, they could say that the argument is distinguishable, or if the argument has been overruled then that helps as well. These arguments are not true exceptions to stare decisis but they are ways of getting around it.

Judicial Appointment Authority for Superior Courts:

S.96 of the Constitution states only the federal cabinet(the governor in council) can appoint provincial and territorial judges. S.101 of the Constitution states that the federal government has the power to appoint federal superior court judges

Judicial Appointment Process for Superior Courts:

Committees in each province put forth names that are reviewed by the federal minister of justice and the Federal Judicial Affairs Canada(FJA). then after the reviewed list is sent to the federal cabinet. It's set up this way to avoid appointments based on connections and not merit.

Judicial Appointment Process for SCC:

any qualified judge or lawyer can apply then the applications will be reviewed by a 7 member advisory board. The Prime minister then picks a nominee and then parliament will discuss the appointment process and the nominee will appear for questioning before an all-party committee

Qualifications for Judicial provincial and territorial Superior Courts:

require 1. Be a lawyer or advocate for at least 10 years in court in any province OR 2. Have had a total of at least 10 years of experience in court and served fulltime as a member of a body that performed duties of a judicial nature.

Qualifications for Judicial Federal Superior Courts:

require the same as other courts in addition to being a judge of superior county or district court.

Qualifications for Judicial SCC:

requires 1. prior appointment as a judge of a superior court of a province, or 2. being a barrister of at least ten years'

Inferior Court Judges:

Provincial and Territorial inferior courts have the same process to appoint judges.

Appointment Authority for Provincial and territorial inferior courts:

belong to the legislature; it comes from S.92(4), (14) and Parliament.

Appointment Process For Provincial and territorial inferior courts

Each legislature has delegated this power to their jurisdictions cabinets and thus making the executive branches of each responsible for this. All jurisdictions have a judicial council that screen, recruit, and recommend potential candidates. Essentially what the FJA does for the federal government.

Appointment Authority and Process for the military court martial:

the national defense act. it gives the power to appoint judges to the federal cabinet, the FJA process doesn't apply.

Qualifications for Inferior Court Judges

require 5 years practice as a lawyer in good standing with the jurisdictions bar or other legal/judicial experience.

Qualifications for military court Court Judges:

requires 10 years of experience as a lawyer at a jurisdictions bar.

Public Proceedings

are a check against the injustices that can happen in private proceedings. Where the power is not scrutinized civil liberties tend to suffer.

Open court principle:

principle that judicial proceedings should be administered in public. taken for granted

Judicial Independence:

judges should be free to make decisions based on the law without threat of negative consequences.

Why is Judicial Independence beneficial:

because it gives people hope that the justice system isn't being interfered with. The idea of the judicial branch of government being independent is related to the rule-of-law and the separation-of-powers doctrine.

Main components of Judicial Independence:

1. Security of tenure 2. Financial security and 3. Administrative independence:

Security of tenure:

ensures that judges can make decisions without fear of losing their positions

Financial security

ensures that any temptation to accept bribes will be minimised

Administrative independence:

ensures that the running of the courts is by the judges themselves and not by external people who could force the judges to make decisions.

Where do protection for Judicial Independence come from:

1. Constitution 2. various federal, provincial and territorial statues. 3. common law doctrine of judicial immunity

Constitutional Basis for Judicial Independence:

1. The preamble which states that we have implied protection 2. Constitution Act 1867 S.99: states that superior court judges can only hold office during good behaviour, which gives security of tenure because they can't be removed otherwise 3. Charter S. 11(d) states that anyone charged with an offence is entitled to a public hearing by an independent and impartial tribunal, this sets a general standard of an independent and impartial justice system.

federal, provincial and territorial Basis for Judicial Independence

1. Legislation which gives guidelines for salaries and institutional structures. 2. The Constitution talks about firing judges with bad behaviour. While S.59 of the federal Judges Act establishes the Canadian Judicial Council which investigates superior judges' bad behaviour the provincial and territories courts have similar councils.

common law doctrine Basis for Judicial Independence:

The immunity protects judges in courts at all levels from civil liability in lawsuits.

Implied protection:

the constitution Act 1867 does not directly state what the protections are other than saying we have a similar Constitution to the UK. So the protections are implied

Plaintiff

Individual/corporation/other entity that files a non-criminal lawsuit

Defendant

individual/corporation/other entity who defenders a non-criminal lawsuit initiated by the plaintiff

respondent

individual/corporation/other entity who won at trial and is responding to the appellant on an appeal to a higher court

Appellant

individual/corporation/other entity who lost at trial and initiates an appeal to a higher court

Judgement

a final outcome or disposition of the dispute heard before the court or, when the court provides reasons for its judgment, the entire set of reasons

Decision

depending on context, refers to the outcome or disposition of a case, to the holding in the case, or (where the court provides them) to the entire set of reasons the court gives for its judgment

Case

depending on context, refers to the reasons for judgement (where the court provides them) to the court process more generally, or to the entire dispute from beginning to end.

Style of cause:

the name of the case or title of the proceeding, and it consists of the names of the parties to the dispute. It's italicized, with a v(no period) separating the parties followed by a comma(not italicized) ex: Aghimien v Aghimien,

Civil liberties:

rights and freedoms protected by the Charter and other sources

Civil rights:

Private law rights between individuals in areas such as torts, contracts, and property

Main reason civil liberties gained protection in Canada:

1. growing dissatisfaction in Canada with not having an implied bill of rights.

2. The influence of the civil rights movement in the USA, 3. Dissatisfied with the Canadian BIll of Rights,

4. The advent of the Charter in 1982

Growing dissatisfaction in Canada with not having an implied bill of rights

Canada's implied bill of rights comes from the Preamble of the constitution, they put this in the constitution to ensure the civil liberties These rights were only implied and Canadians felt the need for them clearly stated in a constitutionally entrenched document

Examples of UK civil liberties that are a part of our constitution

1. Respect of the rule of law 2. Due process/fairness in criminal matters, which include legal rights upon arrest, presumption of innocence and the right to a fair trial.

Examples of UK political civil rights that are a part of our constitution:

right of freedom of speech, religion. Peaceful assembly and freedom of press.

The influence of the civil rights movement in the USA

the implied bill of rights did not protect against things like discrimination and in the 1950s and 60s there was the civil rights movement in the US. In addition the end of the apartheid in South Africa contributed as well