class 9: making law 2

functions of judges

dispute resolution

interpretation and development of the law

protection of rights

advisory capacity (reference cases)

what are judges roles defined by

constitutional text

unwritten constitutional principle

statutes

common law

which sections of constitutional text define judge’s roles

CA 1867 ss 96-101: 96 establishes superior courts, 101 establishes other types

CA 1982 s 11d: criminal cases can appear before an impartial judge

which unwritten constitutional principle defines judges roles

principle of judicial independence

which states define judges roles

judge act (federal)

judicature acts (provincial)

how does common law define judges roles

inherent jurisdiction: judges of the superior court have a general supervisory duty to hear and resolve disputes

nature of judicial role

independence

impartiality

how are judges independent

security of tenure: s 99 CA 1867

financial security: legislative and executive cannot arbitrarily change the judges salary

control of administration of courts

how are judges impartial

reasonable apprehension of bias test

independent commissions recommend appointment of judges

accountability of judges

decisions: appeals

actions: judicial councils

dismissal

how are federally appointed judges dismissed

address by Governor General to the House of Commons and senate

superior court judge: s 99 CA 1867

SCC: Supreme Court of canada act s 9(1)

fed. court and FCA: federal courts act s 8(1)

how are provincially appointed judges dismissed

address by lieutenant governor to legislative assembly

Ontario courts of justice act s 51.8

roles of the federal branch in court structure

appoints super court judges (through GG)

appoints SCC judges (through cabinet)

appoints federal court judges (through cabinet)

pays superior court, SCC, and federal court judges (ss 100, 101 of CA 1867; judges act)

creates rules for criminal procedure

roles of the provincial branch in court structure

appoints and pays provincial court judges (courts of justice act s 42; s 92 (14) of CA 1867)

creates rules for civil/non-criminal procedures

control administration of justice in provinces

two key features of Canadian court structure

unitary: given cohesion and coherence through SCC

hierarchical: can appeal from lower to higher courts

Ontario court structure

Ontario court of justice —> superior court of justice —> court of appeal for Ontario —> Supreme Court of canada

Ontario court of justice

250+ judges and 325 justices of the peace

family law cases (if no family law branch of superior court applies)

criminal offences (summary conviction and some indictable offences)

appeals of provincial offences

provincial offences, bail (justices of the peace)

most youth criminal cases

Ontario superior court of justice

300+ judges

general mandate (inherent jurisdiction)

most civil cases

serious criminal cases

includes other courts: unified family court, small claims court, divisional court

ontario court of appeal

22 judges

issues of law

reference questions

rarely hears evidence, rarely determines issues of fact

Supreme Court of canada

9 judges, regional representation

final court of appeal

issues of law

reference questions

rarely hears evidence, rarely determines issues of fact