Textbook Notes (369,067)
Canada (162,366)
POLS 3130 (87)
Chapter 2

Chapter 2 text summary

11 Pages

Political Science
Course Code
POLS 3130
Troy Riddell

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POLS 3130 - Chapter 2: The Structure of Canadian Courts Fundamental Features of Canada’s Judicial System 1. Federal but unified court system:  Federal – reflects 2 levels: provincial and national (federal)  Each province has own system of courts  Also system of federal courts including Supreme Court  Provincial courts can rule on federal laws  Supreme Court of Canada has unlimited jurisdiction over both provincial and federal law ex. even routine speeding ticket can end up there  USA supreme court can rule on state law only when raises issue under United States Constitution 2. Hierarchies of courts  Canada’s courts arranged in system of increasing authority – court higher up ladder has power to review ruling of a lower court  Lower courts are bound by decisions of higher court  Trial courts are lowest level – where are cases begin, also called appellate courts, number of levels depends on legal issue 3. Different courts perform primarily different but overlapping functions  Courts have to engage in fact finding  Disputes of law require judges to engage in legal interpretations - clarifying or sometimes defining the ‘rules of the game’  Fact finding primary responsibility of trial courts  Legal interpretation main role of appeal courts  Appellate judges may re-interpret the law  Appeal courts expected to correct ‘errors of law’  Functions of trial and appeal courts can overlap but appeal courts have final say 4. Multiple legal systems and bodies of law  Each province and national unit of government creates its own body of law  Statutes are laws passed by the legislative branch such as Parliament or a provincial legislature  Regulations are rules created by the executive branch, such as gov’t departments, - designed to clarify and implement statutes  Constitutional law establishes the basic features of our legal and political systems  Case can involve more than one of these bodies of law at one time  Marshall – fishery regulations and constitutional law (native treaties)  Case may also involve federal and provincial law ex. driving while intoxicated – federal Criminal Code and provinces traffic regulations 5. High degree of Judicial discretion in system  Judges have flexibility regarding legal interpretations, sentencing, granting leave to appeal and determining how many judges on court of appeal will hear the case  Canadian judicial system us like a pyramid shaped filter, Supreme Court at tip; many cases pass through wide layer of trial courts but access and capacity narrow sharply as move further through appellate courts, so system receives progressively fewer cases The Canadian Judicial System – Provincial, Federal and Integrated Courts  Canadian judicial system comprised of 3 general categories of courts 1. The “purely provincial” section 92 courts 2. The “purely federal” section 101 courts 3. The section 96 “provincial” courts which are shared responsibility of provincial and federal gov’ts  Each province has own set of s. 92 courts  S. 96 courts represent unified, or integrated judicial federalism that is unique among federations in the world  Each province has own set of s.96 courts but judges are appointed and paid for by federal gov’t  Jurisdiction – responsibilities of courts, or what matters it is authorized to hear 1. Territorial – geographical area over which court has authority  Ex. s. 92courts are ‘provincial’ courts, only hear cases arising in their province 2. Hierarchical – courts rank in the judicial system, whether it is a trial or appeal court (or both)  S. 92 courts are unique – have inly original jurisdiction (first court to hear the case), are no s. 92 appeal courts 3. Subject matter – set of legal issues heard in that court  Ex. criminal law, civil law, administrative law, family law etc.  Have been questions, struggles and negotiations over jurisdiction – litigates sometimes challenge jurisdictional authority as legal tactic to win their cases  Henry ll used ‘King’s courts’ to undermine power and authority of nobles and their courts  Gov’ts sometimes accept reduction in jurisdiction of their courts for certain purposes like saving money Section 92 Provincial Trial Courts  Handle the most cases  First court to hear a case a.k.a ‘courts of first instance’ or ‘ courts of original jurisdiction’  Canadian trial courts usually include mixture of specific-jurisdiction courts – those created to deal with only given are of law ex. family law – and general-jurisdiction courts Historical Background  After Confederation, provincial and municipal gov’ts began creating local courts for minor civil and criminal cases – known as “magistrates’ courts’ or ‘police courts’  In first half of 20 century were empowered to hear cases involving child protection, deserted wives and spousal abuse (became body of family law)  Early crime and family courts often staffed by ‘lay-benchers’, people without legal training who weren’t judges  Dispute of validity of provincially appoint courts ended in 1892 by the ruling of the JCPC – equal constitutional status of the national and regional gov’ts or dual sovereignty, if federal gov’t had power to appoint judges to courts it created (under s. 101) then provincial gov’ts must have same power for the courts Jurisdiction  Extensive and diverse subject-matter jurisdiction  Legal issues usually fall under: 1. Provincial offences: in every province s. 92 court has original exclusive jurisdiction over all provincial and municipal offenses ex. traffic infractions, littering, underage drinking, thousands of other summary offences 2. Federal offences: federal offences may be found in Criminal Code and many other statutes and regulations  Original exclusive jurisdiction over all summary offences created by Parliament  Parliament can create “indictable” or more serious offences that carry heavier punishment  3 categories of indictable offences, legislation determines where each is heard: least serious (ex. illegal betting) assigned exclusively to s. 92 courts, most serious (ex. murder, treason, sedition, war crimes and ‘alarming the monarch’) must be heard at s. 96 trial court usually before judge and jury  For any other indictable offense, accused can choose between trial before s. 92 judge, s. 96 judge or judge/jury in s. 96 court  Large number of hybrid or dual-procedure offences such as theft under $5,000 – crown decides whether to charge with summary or indictable offence  S. 92 courts hear over 95% of trials involving federal offences  Federal gov’t overcame initial opposition to these courts and is most responsible for their growth 3. Young offenders – under YCJA kids 12 – 17 usually treated different than adults  Sentencing aimed more at rehabilitation and reintegration then punishment  YCJA designates ‘youth justice courts’ to apply the special rules, all provinces classified their s.92 trial courts as such 4. Family law – most s. 92 courts given jurisdiction over range of legal issues related to families ex. marriage, adoption, child custody, child support payments etc. (divorce may be heard in s. 96 courts) 5. Civil law – except in Manitoba, Nova Scotia, Ontario, PEI s. 92 courts empowered to hear civil cases involving relatively small monetary claims, less than $5,000 (Newfoundland,/Labrador and Saskatchewan) to less than $25,000 (Alberta) Structure  Federal government can assign federal offences, most notably under the criminal code to provincial s. 92 courts – only area of criminal law kept from these courts is jury trials  Tremendous size  Expansion of s.92 courts caused partly by federal gov’ts eagerness to transfer jurisdiction  Judges not paid by the federal gov’t  Provincial gov’ts were wary of having new laws and programs enforced by federally appointed s. 96 judges  Numerical imbalance between s.92 and s.96 judges has shrunk now fewer s.92 judges in Ontario and Quebec then was in 1980, but s.96 courts have grown  Offloading of what were s.92 responsibilities may be cause of shrink or steady decline in crime rate over past 3 decades  Provinces also vary in degree they have specialized s.92 courts  Justices of the peace – in confederation JP members of local elite who performed many same functions of magistrates, now hear a surprisingly large number of matters, particularly under criminal code which gives them same jurisdiction as provincial court judges  Don’t require background in law  May receive special training and usually work with legally trained clerks  JPS vastly outnumber s.92 judges I some provinces  980 s.92 judges in Canada, Ontario has most, then Quebec Workload  Reporting on workload of courts is poor or relatively inaccessible  BC, Manitoba, New Brunswick, Newfoundland and Ontario publish data on-line – but only Ontario provides useful info on number of cases actually heard , decisions and size of backlog  Most decision by trial courts (all s. 92 courts are trial courts) are not reported  Stats are necessary for assessing the performance and resource needs of judicial system The Section 96 ‘Provincial’ Courts Historical Background  Blend of provincial administration and federal appointment  Appointment has most direct influence on the ideological (or more problematically, partisan) orientation of the judiciary – arrangement reflected the dominant view among the Fathers of Confederation, most notable Sir John A. Macdonald that Canada should be quasi-federation dominated by the national gov’t  Canada’s founders content to adopt main features of British State – responsible parliamentary gov’t, British monarch as head of state, and English court system – while trying to blend them with federal division of power and specific legal and cultural needs of French Quebec  “Superior” courts were already British North America’s oldest judicial institutions in 1867, existed in every province and mirrors structure of English counterpart  Assigned to deal with most serious issues in criminal and civil law – explains why s. 99 of Constitution provided them with greater independence than any other court guaranteeing only their judges security of tenure Jurisdiction  S.96 courts have territorial jurisdiction only within their province – some provinces developed procedures for superior courts to hear cases arising outside that province to prevent duplication or if case otherwise could not be heard  Thicker hierarchical jurisdiction then s. 92 courts – both trial and appeal courts  Some cases court has both original and appellate jurisdiction depending on issue  Ontario Superior Court of Justice has trial jurisdiction over most serious criminal cases but hears appeals from s. 92 court in cases revolving less serious offences  Courts of Appeal have original jurisdiction over ‘references’ by their respective provincial gov’ts – occur when cabinet asks court for an ‘advisory opinion’ (technically non-binding) on legality of proposed or existing legislation  Subject matter is constitutionally unlimited – cane hear virtually any legal issue, criminal, civil, private, federal or provincial  Large gap between unfettered constitutional jurisdiction of s.96 trial co
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