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Chapter 2

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Political Science
POLS 3130
Dennis Baker

Chapter 2 In 1993- 2 men arrested for violating federal fishing regulations, including fishing without a license, fishing with a prohibited net, fishing eels out of season, and selling eels without a license Nova scotia provincial court- they conceded these facts, both Mikmaq Indians argued they were exempt from government regulations citing a clause in the Treaties of Peace and friendship among the Mikmaq and the British crown. Trial judge ruled Mikmaq did not have a treaty right to fish or to hunt because the treaty did not specify any rights to obtain the means to trade. Marshalls primary concern was the courts interpretation of the treaties and he appealed the rulings to the Nova Scotia Court of Appeal- highest court in the province then persisted to the Supreme court. He needed a leave to appeal: supreme courts permission to bring his case which it granted (SC chosen to focus on constitutional laws including treaties with Canada’s First Nations). SC found that the lower courts committed errors of law by ignoring other historical sources— overturned the lower court decisions (Marshall v. The Queen 1999) -The saga of Donald Marshall outlined features of Canada’s Judicial System: 1. Federal but unified court system: by Federal – means that judicial system reflects the official division of governmental authority in Canada between 2 levels: the provinces and the national. each province has its own court system federal courts- Supreme Court of Canada -by Unified: features of Canada’s judicial system which operate so as to break down the strict divisions of federalism. provincial courts can rule on federal laws (ex. Nova Scotia courts enforced the Canadian governments fisheries regulations) SC has unlimited jurisdiction over both federal and provincial law 2. Hierarchies of Courts: Canada courts are arranged in increasing authority- court higher up the ladder has power to review rulings of lower courts lowest level of hierarchy: trial courts courts of appeal: appellate courts (provincial court to appellate courts) 3. Different courts perform primarily different but overlapping functions: fact finding is the primary responsibility of trial courts legal interpretation is the main role of appeal courts Appeal courts- correct areas of law by lower courts Appeal courts- even if lower courts have not made an error – may reinterpret the law on basis of new info or changes in society or because of a philosophical disagreement with lower court 4. Multiple legal systems and bodies of law: -consequence of federalism is that every provincial and national unit of government creates its own body of law Statutes: laws passed by the legislative branch such as parliament or a provincial legislature Regulations: rules created by the executive branch such as government departments or agencies which are designed to clarify and implement statutes (ex. Fisheries an oceans) -Canada has a body of constitutional law which establishes the basic features of our legal and political systems including the federal division of power itself, the rights of citizens and rights of First Nations (a case can have more than one of these bodies of law) 5. High degree of Judicial Discretion in system: -judges have flexibility regarding legal interpretation, sentencing, granting leave to appeal, and determining how many judges will hear a case on court of appeal -Canadian Judicial system is a pyramid shaped filter with SC at the tip; many cases pass through layer of trial courts The Canadian Judicial System—Provincial, Federal, and Integrated Courts Constitution of 1867 authorized the creation of these courts: -Section 92: purely provincial created, organized, administered , paid by provincial government – each province has its own set -Section 101: purely federal -Section 96: provincial courts shared responsibility of the provincial and federal governments, each province has its own set of these courts judges of these courts are appointed and paid by the federal government -jurisdiction: refers to the responsibilities of the court or what matters it is authorized to hear 3 dimensions of jurisdiction: Territorial: geographic area over which the court has authority Hierarchical: courts rank in the judicial system that is whether it is a trial or appeal court trial court has original jurisdiction- first to hear the case S.92 courts: only have original jurisdiction Subject matter jurisdiction: is the set of legal issues heard in that court for ex. Criminal law, civil law, - can make a distinction whether a court has exclusive jurisdiction over an issue or concurrent (shared) jurisdiction with another court -sometimes litigants challenge the jurisdictional authority of a court as a legal tactic to win their cases -Governments will sometimes accept a reduction in the jurisdiction of their courts such as cost savings- as judges do not come cheap The Section 92: Provincial Trial Courts -Known as courts of first instances or courts of original jurisdiction -usually include a mixture of specific jurisdiction – those created to only deal with a given area of law Historical Background: -After confederation- provincial and municipal governments began creating local courts for minor civil and criminal cases- officially known as magistrates courts or police courts magistrates were also empowered to hear cases involving what came to be known as family law -each criminal and family courts were often staffed by lay benchers(people without legal training and who were not judges) exception was Quebec- also had a court of sessions of the peace staffed by judges with legal qualifications and tenure to hear criminal cases -as late as 1968- Chief justice McCruer- found that patronage appointments to the magistracy were the norm for governments and parties magistracy courts were judicialized in Ontario and later in all provinces between 60s and the 80s with the requirement that provincial court judges have legal training and experience -The constitutionality of these courts was challenged usually by litigants who had lost their case in such a court and by federal government -Dispute over validity of provincially appointed courts was ended by 1892 by ruling of the Judicial Committee of the Privy Council in the Maritime bank case- enforced the equal constitutional status of the national and regional governments or the dual sovereignty (if federal governments have power to appoint judges then so did the provincial government) Jurisdiction: -S. 92 have extension and diverse subject matter jurisdiction -legal issues heard in these courts today usually fall into the following 5 categories: Provincial offences: all provincial and municipal offences (ex. Traffic infractions, littering, underage drinking, summary offences) Federal offences: not only found in the criminal code, every provinces s. 92 has original exclusive jurisdiction over all summary offences created by parliament- parliament can also create indictable offences that carry heavier punishment 3 categories of indictable offences: least serious- assigned exclusively s. 92 courts, whereas the most serious (murder, treason, sedition, war crimes, and alarming monarch) must be heard in a s. 96 trial court (usually before a judge and a jury), for all other indictable offences the accused can choose between trial before a s. 92 court judge alone or a sec. 96 judge alone or a judge and jury in a s. 96 court -there are a large number of hybrid or dual procedure offences, such as theft under 5000, where the crown decides whether to charge the accused with an indictable or summary offence -In all s. 92 courts hear the overwhelmingly majority- 95%- this trend has been actively driven by the federal government Young Offenders: -under the YCJA: persons aged 12-17 who were charged with committing a crime are usually treated differently than adults  reflects the view that young people require greater procedural protections during trials (aimed more at rehabilitation and reintegration into society)  there are youth justice courts under the section 92 Family Law: -s. 92 courts are given jurisdiction over family matters including marriage, adoption, child custody, and child payments Divorce cases must be heard in s. 96 courts Civil Law: -except in Manitoba, NS, Ontario and PEI, s.92 courts have been empowered to hear civil cases involving small monetary claims, ranging from less than $5000 to less than $25000, Quebec’s civil division s. 92 court also has jurisdiction over cases with disputes over amounts large as $70,000, except for spousal cases(federal government cases) Structure: -the subject matter jurisdiction of s.92 courts is a striking example of integrated judicial federalism in Canada- federal government can assign federal offences, under the criminal code to s.92 courts -Notable structural feature: their tremendous size-more judges than any other category -expansion of s. 92 courts has been caused by several factors in the preceding decades, including the federal governments eagerness to transfer jurisdiction over federal offences to these provincial courts -S. 92 judges- are not paid by the federal governmentthe fiscal reality of this explains the more recent trend of the provinces downloading routine administrative matters to lower paid justices of the peace and part time judges -expansion of s. 92 courts also reflected larger political trends- especially the phenomenon of province building- the growth of provincial welfare states and bureaucracies after the second world war- as a result of growth of regionalism and Quebec nationalism -s. 96 courts have recently grown- Russell (2007) identifies one reason as massive off-loading of what were s.92 court responsibilities -PEI has least specialization of s. 92 judges -Albert Provincial court has 5 divisions: criminal court hearings, preliminary inquiries, trials and sentencing, family court, traffic court, and youth court -Court of Quebec: Civil, criminal and penal, and youth divisions municipalities in Quebec can choose either individually or in collaboration with other municipalities to establish municipal courts for cases involving local by-law, taxes and less serious provincial and federal offences -Final issue regarding the structure of s.92 courts: justices of the peace before confederation- JPS were members of the local elite who performed many of the same functions of magistrates – today they hear a lot of matters, under criminal code- which assigns them same jurisdiction of provincial court judges their role differs from province to province but in Ontario-justice of the peace issues search warrants, bail hearings, subpoena’s -full time JP’s – hear cases involving provincial offences (they don’t necessarily need a background in law-often work with legally trained clerks) offered a cheaper and more flexible solution than appointing tenured, full time judges to deal with the heavy workload of administering criminal justice – often out number s. 92 court judges in some provinces Workload: -public reporting on the workload of these courts is poor or relatively inaccessible -Ontario provides the most useful information about the information about number of cases actually heard, issued and size of backlog -remaining provinces issue no information of any kind, and their inquiries to their courts and governments proved unsuccessful. -most decisions by trial courts are not published (s. 92) -these stats are necessary for assessing the performance and resources needs of the judicial system –social and political importance of administering justice -full accounting of these courts’workload is therefore impossible, but the data from BC, NB, and Ontario provide some useful insights that are likely representative of the other provinces sheer number of 2. 92 trials compared to those in s.96 courts: in Ontario in 2004/5. Ex. Judges in Ontario Court of Justice hear more cases than Ontario’s Superior Court of Justice there are fewer s.92 judges than s.96 judges in Ontario when we speak of administrating criminal justice we are referring almost entirely to s.92 courts— not only are they the workhorses of our criminal justice system but 99% of criminal cases which begin in these courts also end there The Section 96 Provincial Courts Historical Background: -distinguishing factor of this court is blend of provincial administration and federal appointment -This arrangement reflected the dominant view among the Fathers of Confederation -MacDonald wanted Canada to be a quasi-federation dominated by the national government -s. 96 has been eroded since 1867 as Canada has been transformed from Macdonald’s as Canada has been transformed from Macdonald’s vision into a more classical federalism with greater equality between the national and regional governments -The superior, District, and County courts in each province identified in s. 96 of the Constitution Act, 1867—were the new country’s primary courts. It is therefore striking how little s.96 actually says about the composition of these courts -Canada’s founders were content to adopt the main features of the British State—responsible parliamentary government, the British monarch as the head of state and the English court system —including the JCPC as the highest court of Appeal—while trying to blend them with the federal division of power and the specific legal and cultural needs of French Quebec. The superior courts had been functioning as colonial courts for many years -The superior courts were already BNA’s oldest judicial institutions in 1867—existing in every province and largely mirroring the structure of their English counter parts—deal with serious criminal law and civil law section 99 of the constitution act 1867- guaranteed them with greater independence than any other court, guaranteeing only their judges, security of tenure -Superior courts have long possessed appellate jurisdiction, for panels or trial judges could review rulings of a fellow superior court trial judge or of an inferior county or district court judge Ontario was forced to create an appeal court -the inferior s. 96 county and district courts handled less serious criminal and civil trials in more remote areas -Quebec- functions of the county and district courts were performed by the provi
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