Chapter 10 - The Judiciary

Three Main Tasks of Judiciary

1. Adjudicating legal disputes between private parties

2. Judicial inquiries and commissions

3. Judicial review

1. Adjudicating legal disputes between private parties

• Settlement of disputes

• Decider of areas of dispute

• Bulk of what courts really do

• Divided into two categories:

  • Private law: property rights, contracts, torts (between two or more private parties)

  • Public law: crim. law and administrative law (private parties vs. gov’t)

Precedent

Previous judicial decisions on the same point of law.

Stare decisis

To stand by what has been decided.i.e. respecting precedent

2. Judicial inquiries and commissions

• The way people become leaders of the country is because of their independence and they have a lot of skill 

• Judges have built-in credibility to see what has gone wrong 

• Leveraging the independence of the judiciary 

• investigation/keeping accountable 

• If there are any systematic challenges or problems, it can echo or exaggerate societal inequalities. So, if courts are systematically prejudiced against Indigenous peoples, this has a huge impact on Indigenous peoples

Judicial Review

• Determine if laws or gov’t actions are consistent with Constitution

• More prominent role

Reference Procedure

• A process where governments ask courts for advisory opinions on constitutional or legal questions without a regular court case.

• Used as a means of obtaining quick ruling on the constitutionality of proposed legislation

• Used on big constitutional issues

3 Fundamental Principles that Govern Canadian Judiciary

1. Impartiality

2. Judicial independence

3. Equality before the law

1. Impartiality

Judges must be free from prejudice for or against any party appearing before them. Law is applied to everyone regardless of status.

2. Judicial indepdeence

• Set of structures or rules that help judges live up to the principle of impartiality

• Guarantees judges will be free of pressure from political executive

• Salaries fixed by law

• Serve on good behaviour until 75 (security of tenure)

• Judicial self-administration (should a judge be removed?)

3. Equality before the law

• Everyone is equal before the law

• Access to justice

  • Legal aid and assistance

Provincial Courts

• Created under s.92 (CA 1867)

• Provincially created, administered, and appointed

• Judges appointed and paid by provinces

• Handle less serious criminal and civil matters

• Structure varies by province

Superior Courts

• Section 96 courts

• Provincially administered (courthouses, operations)

• Judges appointed by federal government

• Hear serious criminal & civil cases

• Found in every province (e.g. BC Supreme Court)

Federal Courts

• Created under s.101 (CA 1867)

• Federally created, administered, and appointed

• Hear federal matters (immigration, tax, administrative law)

• Exist across Canada but are federal, not provincial

Supreme Court of Canada

• Top of court hierarchy

• Federally created & administered

• 9 judges (Chief Justice + 8 puisne)

• Appointed exclusively by PM

• 3 judges from Quebec (civil law requirement)

• Regional convention: 3 QC, 3 ON, 2 West, 1 Atlantic

• Bilingual required

• Controls own docket (leave to appeal)

• Hears ~40–50 cases/year

• Must hear reference cases

• Decisions bind all lower courts

PSAFS

provincial, superior, appeal, federal, scc

Inferior Courts

• Section 92 courts

• Informal procedures

• Completely under provincial control

Integrated Judicial System

A single system under the joint custody of the two orders of gov’t.

Judicial Committee of the Privy Council (JCPC)

Britain-based court that was Canada’s highest appellate court until 1949; its rulings strengthened provincial powers and shaped Canadian federalism

Majority Opinion

The opinion supported by most judges; it sets the binding legal rule.

Concurring Opinion

Agrees with the result but for different reasons than the majority

Dissenting Opinion

Disagrees with the majority decision; not legally binding.

Judicial restraint

Approach where courts defer to legislatures and avoid interfering unless clearly necessary

Judicial activism

Approach where courts actively interpret the Charter and overturn laws to protect rights.