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Political Science
Political Science 2230E
Caroline Dick

1The Judiciary Canadian Politics 2230E 25 September 2012 What is the role of the judiciary in liberal-democratic theory? - rule judicator - law disputes that provide formal, impartial, and decision who is legally right (objective) - settle them according to the law - judges apply the law, not make the law - law and politics: - democratic representatives make laws - judges apply the law, interpret the law - come from legislation, statue, constitution - common law: - not written in law, based off judgement - judge made law, judgements of various courts - precedent  based off other cases - stare decisis  binds all cases of similar natures, all courts in a province (persuasive from province to province) - Supreme court is binding for all courts (binds all courts) What is judicial independence? Why is it important that the independence of the judiciary be protected? - free to judge - justice is blind – no prejudice - free from the state  government puts no pressure on justice that favours government - rule of law: no one is above the law, even the government - political independence: - public, must give undue pressure - “good behaviour” or retire - appear impartial and neutral  divorce ourselves from our political ideology - financial independents: - enjoy financial security - no cut of salaries, set by legislation or unions - administrative independence: - day to day operation of the court system - which judge judges a case - good staff For what reasons can a judge be removed from office? Who determines whether a judge has ‘misbehaved’? - federal appointed judges: - serve with good behaviour or retire - no well-defined set behaviour  criminal acts, judge does sometime that bring the judicial system into disrepute - removal starts with CJC – Canadian Judicial Council - before it was up to the minister of justice (government is stepping in) - people who decide who stay in or not - chief justices and associate chief justice of all supreme courts and senior members stand there – Chief justice is from Supreme Court of Canada - hears complaints of behaviour  not decision made by judge (you would appeal) - recommend to parliament that a judge should be removed - misbehaviour comes though judgement - should private life interfere: - Justice Douglas – 2010: - investigate her removal from justice - the judge wanted to have sex with a lawyer, he was bridged to shut up - she was then appointed to CJC as an associate chief justice - then the lawyer came out about her wanting to have sex with her - can judges judge themselves? On what grounds do critics reject the assertion that the judicial role is guided by the distinction between law and politics? - this distinction is fictional according to some critics - civil law: judges make the decision - precedents: go around a previous decisions, but the judge say the cases are different according to the facts  don’t apply the previous decisions (maybe the precedent was crap… maybe violate social norms… maybe wrong on previous decisions) - judicial review: allows court to review legislation; strike it down and void it 1) federalism cases: jurisdiction of a province, outside of the powers of a federal law - major political impacts (de-centralization) 2) charter: allows province to overturn decisions over the charter– Notwithstanding clause Is the composition of the judiciary representative of Canadian society? In what ways is it unrepresentative? Does it matter? - some critics believe that some people can’t be impartial - if this is true, how can people judge other if they can’t separate themselves - it is not represented from the Canadian public: - upper class backgrounds (need money to go to law school)  how can you judge based on class-based conflict? - ethnic make-up: mostly French and English  groups who are “better established”  will they give you a better trial?
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