Canadian Politics - The Judiciary.docx

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Department
Political Science
Course
POLB50Y3
Professor
Christopher Cochrane
Semester
Fall

Description
Canadian Politics Part 9: The Judiciary Key Terms: Common Law Tradition: the basis of the British and Canadian legal system, apart from the civil law system in Quebec that consists of the accumulation of judicial precedents and seeks out the previous decisions in cases most closely resembling the one at hand. Canadian federal, provincial, and territorial legal systems operate in the tradition of the English common law. The basis of that system is the accumulation over the centuries of judicial precedents, both in England and more recently in Canada. Thus, in a typical court case, the two sides seek to find precedents previous court decisions favouring their respective points of view. The judge (and sometimes the jury) has to decide which precedents most closely resemble the case currently before the court. The principle that precedents are binding on successive decisions is called stare decisis. Precedent Canadian federal, provincial, and territorial legal systems operate in the tradition of the English common law. The basis of that system is the accumulation over the centuries of judicial precedents, both in England and more recently in Canada. Thus, in a typical court case, the two sides seek to find precedents previous court decisions favouring their respective points of view. The judge (and sometimes the jury) has to decide which precedents most closely resemble the case currently before the court. Stare Decisis: the legal principle that judicial precedents are binding on similar subsequent cases, which forms the basis of the common law system. The judge (and sometimes the jury) has to decide which precedents most closely resemble the case currently before the court. The principle that precedents are binding on successive decisions is called stare decisis. If the law were always comprehensive and crystal clear, and if the situations to which it applied were always simple and straightforward, rule adjudication would be fairly routine and the judiciary would not have much discretion in performing this function. The real world is more complex, however, and the law may not to be clear on all points or provide for every conceivable situation. Moreover, judges can usually avoid a precedent they dislike by distinguishing it that is, deciding that the facts in the case before them are sufficiently different from the facts of the precedent case that to follow the latter would be inappropriate. Russel refers to the inescapable generality of the law such that, although judges theoretically settle disputes according to pre-existing law, they actually shape and develop the law in the very process of settling disputes about it. Structure of the Courts Because the provinces that formed Confederation in 1867 already possessed a court system, and because the Judicial Committee of the Privy Council continued to function as a court of for the whole British Empire, it was not necessary to devote much attention to the judiciary in the Constitution Act, 1867. The new federal government was allowed to establish a general court of appeals and any additional courts, but the provinces were otherwise given responsibility for the administration of justice, which included the establishment o a provincial court system. McCormick describes the logic of the Canadian court structures as follows: 1. First: Identify the more routine cases and those that involve less serious possible outcomes and assign them to an accessible high-volume, low-delay court, preferably one that sits in many different centres (provincial courts) 2. Second: 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) 3. Third: Establish a court of appeal to correct simple errors and to promote uniformity in the application of the law within each province (provincial courts of appeal) 4. Fourth: Establish a general court of appeal to promote uniformity in the application of the law within the country as a whole and to provide judicial leadership (Supreme Court of Canada) 5. Fifth: Create a system of federal courts for cases directly involving the federal government as a party or raising issues concerning the administrative law applied by federal department (Federal Courts of Canada) The court system within each province developed into a reasonably uniform three-level hierarchy: a) At the top are two superior courts the superior trial courts and the court of appeals, although they go by different names from province to province. b) At the bottom are provincial courts. c) Most provinces originally set up district or country courts between these two levels, but over the 1975-95 periods they abolished this intermediate tier and integrated it with their superior courts. d) Each of the territories has a similar court structure. Because of the assumption that provinces could not be trusted to make worthy appointments to superior, district, and county courts. Such judges were also paid by the federal government. Thus, in another peculiarity of Canadian federalism, each province determined how many superior court judges it needs, but they are appointed and paid by Ottawa. Since these courts were provided for in section 96 of the 1867, they are often called section 96 courts, and their judges, section 96 judges. Below the level of the section 96 courts, each province established various provincial courts to which provincial Cabinet appoint the judges. The Court Structure in Canada Court of Appeals Whatever their structure or name, provincial courts generally have these specific functions: a) Summary offences including less serious crimes, provincial and municipal offences b) Most aspects of indictable offences, some mandatory and others optional c) Preliminary hearings for most serious crimes d) Bail hearings e) Youth Criminal Justice Act offences f) Family law, except divorce and proceedings flowing from divorce g) Small civil cases Provincial courts have a monopoly on summary (less serious) offence except in some provinces where even lower tribunals, such as justices of the peace, have been given this responsibility. There is increasing concern that few JPs have the kind of legal training that would prepare them to deal with the complex legalities they must often confront. More serious crimes, called indictable offences, can be subdivided into three categories: 1. Some, like murder, are reserved for superior courts 2. Some, like theft, are assigned to provincial courts 3. Those in an intermediate category can be tried in either section 96 or provincial courts The federal Youth Criminal Justice Act covers offence committed by those ages 12 to 18.
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