POL 151 Lecture 6: Week Six The Judiciary
The Judiciary
“The duty of the Court is not to remedy a particular grievance but to determine whether an
alleged grievance is one for which the law supplies a remedy.”—A.V. Dicey, Lectures on the
Relation between Law & Public Opinion in England during the Nineteenth Century
The Legal System:
❖ Foundations of the Law—1) Common Law: based upon the English Common Law system
that stipulates that judicial decisions are informed/premised upon previous applicable court
rulings & 2) Code Civil du Quebec: system of civil law inspired by the French Napoleonic
tradition of codified law (i.e. written code) that was retained by Quebec as per the BNA Act
1867—only applies in Quebec to civil matters, NOT criminal cases which defers to Common
Law.
❖ Public law—refers to all matters that the state has declared to be within the purview of the
public interest such as a) constitutional law (i.e. disputes over division of powers, Charter
challenges etc.), b) criminal law, c) administrative law (i.e. law governing actions and
procedure of government/governmental officials) & d) international law (i.e. pertains to
principles, rules, conventions, treaties, etc. that regulate the relations between/among states)
❖ Judicial Independence—“…constitutional principle that the courts should function
independently of the rest of the government apparatus”—i.e. politicians and bureaucrats
❖ Rules of Precedence—principle of stare decisis or “to stand by decided matters” dictates legal
decisions are to be determined in accordance to consistent rules (i.e. previous judgments) so
that similar facts will yield similar results.
❖ Adversary System of Justice—embodies a variety of legal rights and processes endemic to the
adversarial process by which the Common Law tradition determines guilt, innocence or fault.
For ex. presumption of innocence, due process, judicial procedure (i.e. two conflicting parties
like a prosecutor or a plaintiff and a defendant present their interpretation of the facts of their
dispute to a court in pursuit of a resolution delivered by a judge or a jury).
❖ Judicial Review: elevates the influence of the Courts beyond mere interpretation of laws by
entrusting them with the capacity to resolve division of powers or constitutionality disputes by
potentially invalidating/narrowing/broadening/overturning a law and in turn, challenge the
principle of parliamentary supremacy in the process.
❖ Natural Justice & Fairness—two fundamental principles that society has come to expect from
administrative law with respect to how administrative decision-making procedures
engages/treats the public (i.e. “fair play in action). For ex. the right of individuals to be heard;
that decision makers who hear complaints rule without bias; that rulings on complaints are
based on evidence that is presented in a transparent process.
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*Administrative Decision Judicial Review Triggers
o Conformity to Enabling Legislation: laws/rules must conform to the parliamentary
legislation that awards officials or government bodies the authority to carry out their
legislative/administrative/policy mandate.
o Jurisdictional Fact Doctrine: a decision-making body must be able to cite the existence of
a fact or fact situation that empowers it to exercise jurisdiction over said fact—applies to
three specific instances of jurisdictional error: 1) a want or lack of jurisdiction, 2) an
excess of jurisdiction & 3) a failure or refusal to exercise jurisdiction
o Abuse of Power: for decisions that are perceived to have been made in bad faith,
irrelevant considerations, for improper purposes, etc.
o Doctrine of Fairness pertaining to procedural fairness—i.e. the right to be heard; the right
to have a matter decided by an independent and impartial decision-maker
o Rules of Natural Justice: a) audi alteram partem—i.e. the rule that in the interests of
fairness, both parties in dispute have the right to be heard & b) nemo judes in sua causa—
i.e. in the administration of disputes, proceedings must be free of bias.
❖ Judicial Activism/Judicial Restraint—two countervailing notions of judicial interpretation
whereby the judiciary rules in either an assertive manner that is perceived to be projecting a
particular point of view or “take” upon a decision (i.e. activism) or in a reserved fashion that
is perceived to be free of any agenda other than the impartial, objective adjudication of law
(i.e. restraint).
The Judicial Structure…“top-down,” hierarchically structured, vertically integrated &
unitary in character
Supreme Court of Canada
Provincial & Territorial
Courts
Federal
Court
Court of Appeal
Superior Trial Court
Federal Court of Appeal
Tax Court
of Canada
The Crown
(i.e.) The Queen as represented by the Governor General
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Document Summary
The duty of the court is not to remedy a particular grievance but to determine whether an alleged grievance is one for which the law supplies a remedy. a. v. Relation between law & public opinion in england during the nineteenth century. 1867 only applies in quebec to civil matters, not criminal cases which defers to common. Public law refers to all matters that the state has declared to be within the purview of the public interest such as a) constitutional law (i. e. disputes over division of powers, charter challenges etc. ), b) criminal law, c) administrative law (i. e. law governing actions and procedure of government/governmental officials) & d) international law (i. e. pertains to principles, rules, conventions, treaties, etc. that regulate the relations between/among states) Judicial independence constitutional principle that the courts should function independently of the rest of the government apparatus i. e. politicians and bureaucrats.