LAWS 1000 Study Guide - Final Guide: Guy Paul Morin, Inherent Jurisdiction, Judiciary Of Australia
18 Oct 2016
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Law1000: Final Exam Review
Alternatives to Adjudication
- Mixed court system:
- Mediator: plays on level of interest, exploits emotions
- Judge: plays on level of norms, decides who is right vs wrong
- 3 important provisions of 1867 Constitution that affect organization of courts:
o S.92(1): gives provinces power over administration of justice
o S.101: authorizes Parliament power to establish court of appeal and any additional court
o Sex.96,99,100: give Parliament power to hire, pay, and dismiss most judges in country
- About the mixture:
o Most matters are dealt with at provincial level; no distinction b/w courts that try matter of
provincial and federal law (provincial courts can handle federal law)
o Judges can be provincially or federally appointed depending upon seriousness of matter
o All matters heard by provincial court will be heard by federally appointed judge
- Jurisdiction:
- Definition: court’s authority to hear, adjudicate, and give a decision
- In Canada, this authority results largely from statutes (parliamentary law)
- Although the notion of inherent jurisdiction retain some importance as to the division of power and the
principle to juridical independence
- The legislation the creates the court decides if the court is inferior or superior, and is one of record: with
the power to fine or imprison for contempt of court
- About the principle of inherent jurisdiction
o Inferior courts have geographical and monetary limitations, their proceedings can be squashed by
superior courts
o In contrast, inherent jurisdiction means that assigned courts have the jurisdiction to determine all
matters not assigned to other level of court
- In sum, jurisdiction in Canada can be defined by
o The law to be administered
o Division of civil and criminal matters
o Geographical limits (jurisdiction)
o According to the amount of money at stake (or value)
- Court Hierarchy:
- Each province has jurisdiction of the administration of justice, and is responsible for the creation for
designing its own court system
o Structure: four-level division (inferior, superior, and two appeal courts)
o Problem: any grand generalization about court hierarchy by specific names and neat divisions is
difficult
o Ontario Court of Justice:
▪ S.533 of CC: jurisdiction for adults over criminal offences
▪ Less serious offence
▪ Youth
▪ Family affairs under provincial jurisdiction (custody, support, adoption, protection)
▪ Special court to deal with non-violent offenders (drug) towards rehabilitation
o Superior Court of Justice:
▪ S.469 CC: serious offences must be tried by this court, including murder
▪ Also hear a variety of civil cases (family, small claims under 25,000, divisional)
o Court of Appeal for Ontario
▪ Consist of a chief justice, associate chief justice, and 20 other judges
▪ Civil or criminal appeals
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▪ Panel of at least 3 judges will hear case
▪ Trial verdict must first appeal to superior court
o Federal Court
▪ Consists of 1 chief-justice and 32 other judges
▪ After constitution act, Parliament didn't require any courts other than the courts already
existing in the province to make its law effective
▪ Section 101 of constitution: gives the Parliament the power to create additional courts for
better administration of Canada and its laws
▪ Since 2003, two distinct courts: Fed court, and Fed court of appeal
▪ Intellectual property, citizenship, copyright, patent, immigration, dispute of federal
employees, and some criminal
o S.C.C
▪ 5 justices per case
▪ Statutory rights to access the SCC (ie. When justice dissents in a criminal case)
▪ Appellants need courts permission in order to proceed; heard by 3 judges
▪ Is granted when court deems a case a matter of public importance
▪ Provincial appeal and appeals from Federal Court of Appeal
▪ Most cases are constitutional in nature
▪ Criticism: providing sensitive information to the GVT (violating separation of power b/w
courts and politics)
- Canadian Court: Features and Issues
- The adversarial paradigm and problems:
o The best proof is not the same as the truth
- Effectiveness depends largely on the means on possesses: money, legal team, research, advocacy…not
truth
- Public access to courts versus publication bans and restricting access (i.e ban to protect witness/victim,
terrorism security, ect)
- Wrongful criminal conviction
o Donald Marshall-Aboriginal man wrongfully convicted of murdering friend Sandy Seale
o David Milgaard-charged with murder of nursing aid Gail Miller
o Guy Paul Morin-charged with murder of young girl Christine Jessop
o Steven Truscott-would’ve been youngest to receive death penalty
- S.690 of CC (enables call for mercy or new trial) has been insufficient as a check
- Main Solutions outside the courts
- Negotiation: process of non-arbitrary discussion w/out intervention from outside parties
- Mediation & Conciliation: mediator encourages participants to focus on their interest and less of their
rights (norms); advisory report presented and recommendations either accepted or used for further
discussion
- Arbitration: seeks to compromise rather than win/lose outcome where participants choose to use the
solution or not, who the arbitrator is, and whether the decision will be binding/advisory
Settlement and Collaboration
- Court roles/effects in dispute settlement
- Creation of norms and precedents that can influence the private settlement
- Ratify settlement and provide guarantee of compliance
- Can escalate the cost of dispute; hence encouraging alternatives
- Decrease uncertainty by making available other’s case
- Court staff can act as mediator
- Partially resolving the case, leaving disputants to agree on others
- Authoritatively resolve dispute, with risk of losing…money and honour
- Cost factors of dispute resolution
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- In UK, Canada, and Japan the defendant recover the cost against the unsuccessful plaintiff
- In US, to each its own irrespective of outcome (repeat players more significant advantage)
- Societal factors of dispute resolution
- More complex, heterogeneity, impersonal/contractual relations
- Access to internet given ppl greater access to information including rights and litigation
- Prerequisite for use of courts in resolution
- Legal requirements must be met in order for individuals/organizations to use Court
o Justiciability: involve a conflict viable to trial, or judicial determination not of hypothetical or
abstract character
o Standing: from a requirement asking personal rights having been violated to a more relaxed
notion by SCC of “having genuine interest in what is happening to you in court” (genuine
interest in the problem)
- Three additional limitation:
- De minimus non curat lex: law will not concern itself with triffles
- Statutes of limitation: limit to period of time in which lawsuit must be commenced; dependent on
defendant’s identity and type of crime
- economic and delay incentives may be decisive in out-of-court settlement
- Four types of litigants
- One shooter vs. one shooter: intimate ties, unshareable good; divorce, business partner, neighbours,
slander
- Repeat player vs one shooter: often routine business procedure using government authority; collecting
debts
o Garnishment: court order directing seizure of money/property of third party
o Lien: right to keep possession of another’s property until debt is settled
o Seize + sale: court order that allows creditor to sell debtor’s possession once taken possession
- One shooter vs repeat player: to invoke outside help to create leverage on more powerful actor; tenant
vs landlord, defamed against publisher, ect.
- Repeat player vs repeat player: b/w organizations or within organization; union vs management,
purchaser vs supplier (often who is right rather than who gets what)
- Against out of court settlement: Owen M. Fiss
- Often out of coercive conditions
- Assumes equality among contending parties
o Imbalance of power: disadvantaged bargain, induced to settle to accelerate payment, limited
financial resources for litigation
- Looks at most vulnerable: financial, time, and relation of power
- Conceives adjudication as end rather than beginning
- Assumed to serve the peace rather than the justice
- Deprive society from useful juridical interpretations, especially about values that guide society
- Leaves justice undone, moved by tendencies towards avoidance by judges
- For settlement: McThenia and Shaffer
- Peace and justice not dependent on courts, its something people give to one another
- Socrates and Thrasymahus
o Justice is not will of stronger, efficiency in government, reduction to violence
o It is what we discover when we talk together, listen, love….
- Based on heritage of western religious traditions it is a procedure that involves: conversation, mediation,
and adjudication (dispute before representatives of community)
- Priority to restore the relationship
- Conflicting understanding of outcomes of justice
- Liberal and consensual: in sense that conflict are privatized to the space of personal mediation
o While serving the relational issues of our society and values
- Agonistic and liberal: adjudication and justice best served by voicing our conflicts
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Mediator: plays on level of interest, exploits emotions. 3 important provisions of 1867 constitution that affect organization of courts: Definition: court"s authority to hear, adjudicate, and give a decision. In canada, this authority results largely from statutes (parliamentary law) Although the notion of inherent jurisdiction retain some importance as to the division of power and the principle to juridical independence. The legislation the creates the court decides if the court is inferior or superior, and is one of record: with the power to fine or imprison for contempt of court. In sum, jurisdiction in canada can be defined by: the law to be administered, division of civil and criminal matters, geographical limits (jurisdiction, according to the amount of money at stake (or value) Is granted when court deems a case a matter of public importance courts and politics) The adversarial paradigm and problems: the best proof is not the same as the truth.
