Textbook Notes (369,072)
Canada (162,367)
POLS 3130 (87)
Chapter 2

Canadian Courts - Chapter 2.docx

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Department
Political Science
Course Code
POLS 3130
Professor
Troy Riddell

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Jurisdiction: the responsibilities of the court or what it is authorized to hear; there are 3 dimensions of jurisdiction  Territorial jurisdiction – refers to the geographic area over which the court has authority  Subject-matter jurisdiction – refers to the set of legal issues heard in that specific court  within this type we can make a distinction between whether a court has exclusive or concurrent (shared) jurisdiction with another court  Hierarchical jurisdiction – refers to the court‟s rank in the judicial system; so whether it is a trial or appeal court (or both)  a trial court has original jurisdiction meaning it is the first court to hear the case  an appeal court has appellate jurisdiction meaning that it can review the rulings of the lower courts  S. 92 courts are unique because they only have original jurisdiction since there are no S. 92 appeal courts  Disputes and negotiations over court jurisdiction between the federal and provincial governments are influenced by political considerations  these disputes are frequently played out within the judicial system itself at the highest courts of appeal  Since courts are important decision makers governments may try to maximize the influence of the courts they administer and to which they appoint judges S. 92 Provincial Trial Courts  Front line of judicial system as they handle the most cases  They are the first court to hear a case and are known as “courts of first instance or original jurisdiction”  There are no jury trials in these courts  Usually includes a mixture of specific-jurisdiction courts (i.e. those created to deal with only a given area of law) Historical Background  Shortly after Confederation, provincial and municipal governments began creating local courts known as magistrates or police courts for minor civil/criminal cases  Later half of 20 century magistrates were empowered to hear cases pertaining to family law; these courts were staffed by lay-benchers who were people without legal training and were not judges  Quebec was the exception as they had the Court of Sessions of the Peace staffed by judges to hear criminal cases  In English Canada, concerns about the quality of justice administered by the magistrates were raised due to the Ontario Royal Commission‟s finding that patronage appointments were “the norm”  in response to these findings magistrates‟ courts in Ontario and later in all other provinces (minus Alberta) were „judicialized‟ – requiring provincial court judges to have legal training/experience  Still, there were disputes over the legitimacy of the provincially appointed courts and the appointment process (should it be federal government job or provincial – dispute over the law)  the SCC called the JCPC Judicial Committee of the Privy Council at the time enforced the „essence of a federal system‟ and ruled that the provinces had the right to do it under s. 92 because the federal government appoints its judges under s. 101  issues of jurisdiction for appointment still remain today Jurisdiction  S. 92 courts have extensive and diverse subject-matter jurisdiction which it has accumulated slowly since confederation and falls into 5 categories: (1) Provincial offences  Every provinces‟ S. 92 court has original exclusive jurisdiction over all provincial and municipal offences  E.g. traffic infractions, littering, underage drinking; every summary offence (2) Federal offences  Parliament but not the provinces can create indictable offences that carry heavier punishment  3 categories of indictable offences; least serious category (e.g. illegal betting) are assigned exclusively to s. 92 courts whereas the most serious (murder, treason, sedition etc.) must be heard in a s. 96 trial court usually before a judge and jury; all other indictable offences allow the accused to choose between trial between a s. 92 court judge alone, a s. 96 judge alone or a judge and jury in s. 96 court  s. 92 courts hear over 95% of trials involving federal offences; this trend has been actively driven by the federal government Offence: technical term for law or regulation that is punishable by fine or imprisonment  provinces can create offences and federal government can create non criminal code offences  Not to be confused with crimes as they are only offences contained in the federal Criminal Code (all crimes are offences but not all offences are crimes) (3) Young Offenders  Under YCJA (replaced YOA) persons aged 12-17 charged with committing a crime are usually treated differently than adults; reflects the view that young people require greater procedural protections during trials  Sentencing people aged 12-17 is more focused on rehab and reintegration as opposed to punishment  Designated Youth Justice Courts that apply special rules; all provinces designated s. 92 trial courts as such and have even created special courts to deal with young people exclusively (4) Family Law  Most s. 92 courts have jurisdiction over marriage, adoption, child custody and child support  Exception is divorce which can only be heard in s. 96 courts (5) Civil Law  S. 92 courts have jurisdiction over civil cases involving relatively small monetary clams except for in Manitoba, Ontario, NS and PEI Structure  Since the federal government can assign federal offences (e.g. criminal code) to provincial s. 92 courts, the subject-matter is an example of integrated judicial federalism in Canada; only area of criminal law absent from these courts are jury trials  25 years ago the most notable feature of s. 92 courts was their incredible size; had the most judges (1013) compared to 657 s. 96 trial and appellate judges  this expansion has been caused by the federal government‟s willingness to transfer jurisdiction of federal offences to these provincially appointed courts; probably because the federal government would have to pay less judges since the provincial government is responsible for their pay  also reflects province building – increasing provincial welfare states and bureaucracies as provinces were worried about having their programs undermined by federally appointed s. 96 judges  Today, there are fewer s.92 judges especially in Ontario and Quebec who have less than their s. 96 judges whose courts have grown  partly explained by mass offloading of what were s.92 responsibilities (e.g. search and arrest warrants applications) to justices of the peace and prothonotories in civil law  another factor may be the steady decline in crime rates over the past 3 decades  a resurgence in s.96 judges may be explained by increase in private litigation, family law or judicial review of provincial tribunals since these courts have jurisdiction over those issues  Provinces also vary in the degree to which they have specialized s.92 courts  PEI has the least specialization; it has 3 judges that hear all matters within the jurisdiction of PEI Provincial Court (i.e. criminal and provincial offences by adults and youth)  Alberta has 5 specialized divisions: Civil, Criminal, Family, Traffic and Youth Court  Quebec has a similar level of specialization to Alberta including Civil, Criminal and Penal, and Youth divisions; also has a Tribunal des professions which reviews decisions of professional conduct committees (e.g. lawyers and doctors) additionally, a municipality in Quebec can decide to collaborate or individually establish Municipal Courts for cases involving by-laws, taxes and less serious offences  All provinces mix permanent court locations with travelling (or circuit) courts – judges travel to administer justice for small communities in remote areas  Justices of the Peace (JPs) historically were members of the local elite and today they hear a large number of matters especially under the criminal code which assigns them the same jurisdiction as provincial court judges  their role differs from province to province however they do not require a background in law  in Ontario JPs can be part-time non-presiding (e.g. issue search warrants, bail hearings) or full-time presiding who has same roles but also hears cases involving provincial offences  offers a cheaper and more flexible solution to judges Workload  Public reporting on workload is poor and inaccessible; only BC, Manitoba, NB, NFD and ON publish data online; ON provides most useful info about cases, decisions and size of back log  Most decisions by trial courts (all s.92 courts actually) are not published  Canadian Legal Information Institute (CanLII) contains the published decisions of most courts in CAN  S. 92 courts heard over 4.7 million events in Ontario compared to our s.96 superior court; interesting because we have fewer s.92 judges  In BC 3.5x as many cases are filed in s.92 system than s.96 trial court yet s.96 has only 1/3 more judges; maybe s.92 cases are less complicated and time-consuming  In ON over 99% of federal and provincial offences are criminal cases – most of the cases that start here, end here ; most of the family, civil and small claims are in Superior Court S. 96 Provincial Courts Historical Background  Distinguishing feature is blend of provincial administration and federal appointment  Also called Superior, District and County Courts but little is said in the Constitution about the composition of the courts; does not explain the actual functions or organization  S. 97-100 establishes the foundations of judicial independence of these courts: tenure of office, fixed salaries and requirement for judges to be members of their provincial bar  Originally assigned to deal with the most serious issues in criminal and civil law; provided with greatest independence than other courts guaranteeing only judges of tenure  ON was first to create an appeal court staffed with its own judges and all other provinces followed  There used to be inferior and superior s. 96 courts – today there are no district or
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