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Lecture 5

October 2, 2012 (Lecture 5 Courts, Judging, etc.).pdf

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University of Saskatchewan
Political Studies
POLS 303
Joe Garcea

October 2, 2012 (Lecture5: Courts, Judging, etc.) October-02-12 11:30 AM Courts and the Judicial Process - If you have a dispute, you generally go to court. - There are several difficulties in attempting to understand what courts and how they do it. - First, not all judges view their roles in the same way. - Some judges see their role it as defending the status quo. - Some judges believe that their role is to create or advance the law (activism) while others see it as merely interpreting existing (restraint) law. - Objectives and Procedures of Judging: o Adjudicative o Policy-making o Problem-solving - Adjudicative model: o Four components of the judicial process are predicated on the idea that simply resolve disputes.  Judges do not solve larger societal problems, underlying problems or make new policy o Judges should not adjudicate disputes that are hypothetical no longer exist, involves non- legal questions. o Access to courts should be limited because disputes should only be limited to two people. o Judges should act as “passive referees” who make decisions based on submissions of the parties. o Court is an adversarial process. o Facts (as presented) must follow “who did what to whom” (adjudicative facts). o Judges should only arrive at a decision by applying established legal principles to the facts of the case. - Policy-making model: o Assumes that courts and judges should be involved in the grand dialogue of public vales, morals and justice. o There is a legitimate role for courts and judges in the public policy process. o Courts and judges should therefore not just be adjudicators, but act like policy actors (legislatures and executive). o Judges should take societal interests, morals and values into consideration when making their decisions. o Courts should make an attempt to understand underlying problems that give rise to the disputes. o This type of judging uses alternative dispute resolution processes. o Problems may be pushed out of courts before trial (special tribunals, mediation). o If the dispute goes to trial, judges take an active interest in the collection and presentation of advice. o Decisions will reflect a desire to solve the underlying issues behind any dispute. (i.e. restorative justice, mediation). - Access to court(s): o Who should get to participate, intervene and influence judicial hearings? o Different models have discussed above would have different opinions. o Canadian courts have grappled with this question, and it is not surprising that the answers often depend on the dispute itself. - Access to Court: Standing o Standing refers to the requirement ha one must be a party to a legal dispute in order to have a case heard in court. o Prior to the early 1980s, Canadian courts had fairly restrictive rules around standing. This early test (Smith, 1924) stated that a person could only ask a court to declare a law o This early test (Smith, 1924) stated that a person could only ask a court to declare a law unconstitutional if the law “exceptionally prejudiced” the plaintiff. o By 1981, the rules surrounding standing were relaxed (Borowski, 1981). o In Borowski, the Supreme Court of Canada ruled that a person could be granted standing if she/he ‘is affected directly by a law’ or has ‘a genuine interest as a citizen in the validity of the legislation.’ o “Genuine interest” was granted if the person could declare that there was no other way for the individual to bring the issue to court. o After the introduction of the Charter, the Supreme Court of Canada created “public-interest standing” for people to challenge laws (Canadian Council of Churches 1992).  To not do so, the Supreme Co
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