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Term 2 Class Notes - Canadian Politics

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Political Science
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The JudiciaryTermsThe common lawPrecedentstare decisisJudicial independenceSecurity of tenureCanadian Judicial CouncilGood behaviourDistinguishing a caseJudicial reviewThomas v Norris 1992 BCSCR v Curley 1984 Territorial CourtEwanchuck 1999 SCCJustice John McClung Alta CAJustice Claire LHeureuxDub SCCVriend v Alberta 1996 Alta CA1What is the role of the judiciary in liberaldemocratic theoryIn liberal democratic theory there is a clear distinction between law and politics judges interpret but dont make lawCourts have a adjudicating roleJudges as neutral arbitrators settle disputes based on who is legally rightJudges arent supposed to make law as they arent democratically electedSources of lawoStatutes written components of the constitutionhas precedence over common lawoThecommon law legal precedents that arent writtenruns on the principle of stare decisisStare decisis A precedent established by a Court binds all lower Courts and all future decisions of the Court Ontario Supreme Court decisions dont bind the Supreme Court or other provincesJudicial independence security of tenure Canadian Judicial Council good behaviour distinguishing a case2 What is judicial independence Why is it important that the independence of the judiciaryJudges are supposed to be nonbiased and nonpartisan not responsible to any particular cleavage in societyJudicial independence ensures a neutral judiciary Judges are supposed to have independence in judicial decision making from two sources the public and crucially the governmentThe judiciary needs to be separate from the executive and legislature and needs to be immune from political pressure or influencecourts often have to take a stand against the government Rule of law even those who make the law have to be subject to itThree ways judicial independence is securedoPolitical independence security of tenure federal judges serve until theyre 75 provincial judges until they are 65 or 70 and cannot be removed for a decisionat the same time the judiciary is supposed to stay out of politicsoFinancial independence judges need financial security salary commissions monitor their salariesoAdministrative independence day to day operations of the judiciary are under their controlthey decide who presides over a particular case etcthey also need the resources to set up a working administrative structure 3For what reason can a judge be removed from office Who determines whether a judge has misbehavedMisbehaviour is largely undefinedCriminal offencesBring the administration of justice into disrepute also undefinedLorie Douglas associate Chief Justice in Manitobabrings up the question of what disrepute is as well as if the CJC is qualified to be looking into it shes on the committee even if not investigating the issueWho determines whether a judge has misbehavedo1971 PM Trudeau established the Canadian Judicial Council CJCbecame responsible for investigating misconduct in the judiciaryan attempt to maintain the political independence as previously the executive and not the judiciary had been responsible for monitoring the conduct of judgesoOnly monitors the behaviour for federally appointed judgesoAlso protects judges from unfounded allegationsoConsists of the Chief Justices and Associate Chief Justices of all superior courtsalways chaired by the Chief Justice of the Supreme Court of CanadaoIt can reprimand judges recommend to parliament that a judge be removed cannot themselves remove them4On what grounds do critics reject the assertion that the judicial role is guided by the distinction between law and politicsThey would claim that the distinction is fictitiousthree ways judges can make lawoCommon lawbased on judges decisionsoDistinguishing a case judges are supposed to adhere to precedents but they can get around by saying that the facts of the case at hand are so different that the law cant applyallows judges latitude in law makingoJudicial review the judiciary reviews the decisions of our elected politicians and can void laws in two waysFederalism principle for example if the federal government passes a law that falls under the mandate of the provincial government in section 92 ultra viresthis gives immense power to the Court as they can affect how centralized or decentralized the Canadian system isCharter of Rights and Freedoms after 1982 protects the rights of Canadian citizens against government only government intrusions on their rightsleads to many cases calling into question the distinction for example pornography is an area of law makingThe liberaldemocratic distinction between law and politics doesnt hold up particularly well in CanadaIs it possible to have truly impartial judiciary5Is the composition of the judiciary representative of Canadian society In what ways is it unrepresentative Does it matterThe bench in Canada is definitely not representative of Canadian society
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