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POLS 2300 (129)
Chapter 8

Week 7 Readings - Chapter 8.docx

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Political Science
POLS 2300
Tamara Small

POLS 2300: Canadian Government and Politics Week 7 – The Judicial System Notes The Rule of Law and the Judiciary - Rule of Law: The principle that individuals should be subject only to known, predictable, and impartial rules, rather than to arbitrary orders of those in governing positions - Those with authority are expected to act in keeping with the law - Key feature of liberal democracy - Requires that the courts be independent so that judges can be impartial in settling disputes without interference from government - Courts administer justice by applying laws and penalizing those who break the law, but also they are essential in interpreting the law and the constitution Laws - Can be thought of as rules of behaviour concerning the relationships and disputes involving individuals, businesses, groups and the state - Public and private each of which involves various specific areas of law - Public Law: Laws concerning the relationship of the state to individuals and laws concerning the authority and operations of the state o Criminal Law – offence against the public sufficient importance that the state is responsible for prosecuting the alleged offender o Constitutional Law – rules concerning those aspects of government that are set out in the Constitution o Administrative Law – standards the government and its agencies are required to follow in their administrative and regulatory activities o Tax Law – rules for the collection of revenue from individuals and businesses - Private Law: areas of law dealing with the relationships among individuals, groups and businesses that are primarily of private interest rather than public interest o Contract Law – rules for enforceable agreements o Property Law – rights linked to owning and possessing property o Family Law – domestic relations, including rules related to consequences of the break up of a marriage o Torts – Harmful actions, negligence, or words that allow the injured party to sue for damages The Sources of Law - Canadian constitution divides the authority to pass laws between Parliament and provincial legislatures, with only a small number of areas in which both Parliament and provincial legislatures have legislative power - Statutory Law: A Law that has been passed by an act of Parliament or a provincial legislature - Common Law: Law based on the accumulation of court based decisions - Code Civil Du Quebec: A codified system of law that is the basis of private law in Quebec - Codified Civil Law: A system of private law used in Quebec based on a comprehensive set of legal principles Judicial Review - British system of government, Parliament is the supreme law-making authority, and thus the courts cant review legislation to decide its validity - Play a role in interpreting ambiguous provisions in laws based on established principles of interpretation - The courts have the authority to invalidate laws of government actions that they consider to be a violation of the Constitution - The constitution divides the legislative authority between the national parliament and provincial legislatures, the courts can be called upon to determine whether a piece of legislation passed by Parliament is within the constitutional authority Courts - The Structure of the Court system o Canada has a unified court system that hears most cases at national and provincial level o The Supreme Court of Canada whose members are appointed by the Canadian government, hierarchy of the court system o Superior courts: Courts in each province whose judges are appointed and paid by the Canadian government o Provincial Courts: Trial courts whose judges are appointed and paid by the provincial government o Justices of peace are not members of the legal profession o Federal Court of Canada: A Court that hears cases related to certain acts of parliament such as laws concerning copy right and patents, citizenship and immigration, and access to information and privacy o Reference: The opinion of the courts on a questions asked b the federal or provincial government - Characteristics of the Court System o The court system is by nature adversarial o Both the crown prosecutor and the lawyer for the accused make as strong a case as possible by providing evidence and arguments that support their position o Trial courts, presided over by a single judge, deal primarily with ascertaining the facts of the case, assessing the credibility of witnesses Appellate courts usually involve a panel of three judges o The Charter of Rights and Freedoms provides the right to choose trial by jury for offences where the max punishment is at least 5 years imprisonment o Juries are also occasionally used in certain types of private law cases if requested by the parties to the dispute - Jury Duty o Considered an important obligation, a refusal to report can result in a fine or even imprisonment o Jurors are randomly selected from among adult citizens in a given area o The jury will be reminded that a guilty verdict has to be proved “beyond a reasonable doubt” o For private law cases the defendant is liable “on a balance of probabilities”, the jury than meets to discuss a verdict o For criminal cases the verdict has to be unanimous 5/6 jurors - Judicial Independence o The principle that the courts are expected to be independent of government and its agencies, legislative bodies and other influences o To protect judicial independence, the Constitution Act 1867, provides that federally appointed judges hold office assuming “good behavior” until age 75 and can only be removed by a joint resolution passed by both the H of C and Senate o Canadian Judicial Council: A body of senior judges established to review complaints about federally appointed judges o Council cannot dismiss a judge, it can hold an inquiry to decide whether to recommend dismissal and can also issue a statement expressing disapproval of a judge’s behavior o No supreme court judge has ever been removed by a parliamentary resolution o Several judges facing dismissal resigned when removal was recommended o The independence of the judiciary is also maintained by the convention that cabinet ministers, elected representatives, and government officials are not supposed to contact judges about particular cases - The Appointment of Judges o PM takes responsibility for recommending the appointment of Supreme Court of Canada judges and the chief justices and associate chief justices of each of the provincial superior courts o The federal minister of Justice makes recommendations to the Canadian Cabinet for other federally appointed judges o Attorney general of a province makes recommendations to the provincial cabinet for appointments to the provincial courts o All federally appointed judges and provincially appointed judges have to be members of their provincial bar association and have at least 10 years of experie
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