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Chapter 24

POLS 1400 Chapter Notes - Chapter 24: Reference Question, Judicial Independence, Provincial And Territorial Courts In Canada

Political Science
Course Code
POLS 1400
Nanita Mohan

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Chapter 24- The Judiciary
Updates and Facts: The Judiciary
The Supreme Court decided that jurors can be challenged for racial bias when an accused
person is a member of a group subject to widespread prejudice
Told lower court judges to find an alternative to putting offenders in prison
Denied Quebec the right to unilateral decisions
Canadian political science was typically interested in the judiciary or court system
primarily in terms of of its interpretation of the federal-provincial divisions of powers
Functions of Adjudication
Adjudication: can be defined as interpretation law in cases of dispute, of settling disputes
by applying the law to them, or making a judgement based on law
Judges engage in authoritative resolution of legal disputes
It is when satisfaction can’t be reached on either side that when the adjudication process
is pursued
The function of the judiciary is to render formal, impartial, authoritative judgements in
legal disputes that cannot be settled
The judge has the coercive powers of the state
Administrative Tribunals engage in rule adjudication as well (with slight differences)
Federal Court of Canada
- Hears cases of taxation, patents, copyright and administration
Supreme Court of Canada
- Nine justices appointed by the prime minister, the highest court for civil, criminal and
constitutional cases
- Judicial review
- Rather than merely interpreting laws with discretion, judicial review is the power
of the courts to declare them invalid, refuting the principle of the supremacy of
- The decisions of the courts had a significant effect on the shape of Canadian
- The court's power was enhanced with the adoption of the Canadian
Charter of Rights and Freedoms in 1982
- The court’s power of judicial review was enhanced with the adoption of
the Canadian Charter of Rights and Freedoms in 1982
- Court Challenges Program- Very few people can afford to take a case all the way to the
Supreme Court, and this program was designed to help finance Charter challenges
- It has been eliminated twice by conservative governments
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- This is an issue in Canada, that people are being denied their basic legal
rights because of the unaffordability of the justice system
- A way of reducing the costs of administration are the practices of;
- Plea bargaining- involved discussions between defence and Crown
attorneys with the aim of achieving agreement on charges being
pursued, typically having the accused pled guilty
- Pre- trial conferences- it is common for the judge to hold pre-trial
conferences with the lawyers of each side. Such Conferences can
result in a negotiated settlement or at least a time-saving
clarification of the issues
Categories of Laws
Law- can be defined as “society’s system of binding rules”
Civil Law
Law of ancient Rome, especially that which applies to private citizens. Judgements are
based on codified principles rather than precedents
Regulates relationships between two private parties, such as individuals or corporations,
and if private in a case of dispute, than one party my take the other to court
Most aspects of civil law in Canada are within provincial jurisdiction
Civil cases often involve disputes over commercial contracts or property
And can often be settled by getting one party to pay damages
Civil cases are decided on the ‘balance of probabilities’
Code Civil du Quebec (civil law system in Quebec)
The Criminal Code: is a law that codifies most criminal offences and procedures in
Canada. ... Section 91(27) of the Constitution Act, 1867 establishes the sole jurisdiction
of Parliament over criminal law in Canada.
Crimes of this nature (murder, sexual assault, theft) are considered to be a wrong
against society as a whole
Guilt must be proven “beyond a reasonable doubt”
Common Law
The rules developed by the courts based on the principle of stare decisis (precedents)
Stare Decisis- the principle that precedents are binding on successive decisions
Judges can usually avoid a precedent that they don’t like by “distinguishing” it
(deciding that the facts of the case are too different from the case at hand so the
use of it would be inappropriate)
Apart from the civil law system in Quebec, Canadian Federal, Provincial, and territorial
legal systems operate in the tradition of the English Common law
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The basis of this system is accumulation over the centuries of judicial precedents, both in
England and more recently in Canada
Public Law- primarily involving the public interest or the government, goes beyond criminal
law to include involved questions about federal and provincial jurisdiction
Private Law- is essentially the same as civil law- that is, law that centres on private interests
- Beyond contracts and property,private law also includes torts, wills,
company law, and family law
Structure of the Courts
Logic of the Canadian Court Structure
- Identify the more routine cases and those that involve less serious
possible outcomes and assign them to an accessible high-volume
- Assign the less routine and more serious cases to a lower volume court
that can devote more time and more focused attention to each individual
case (superior trial courts)
- Establish a court of appeal to correct simple errors and promote
uniformity in the application of the law within each province (provincial
courts of appeal)
- Establish a “general court of appeal” to promote uniformity in the
application of the law within the country as a whole and provide judicial
leadership (Supreme Court of Canada)
- Create a system of federal courts for cases directly involving the federal
government as a party
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