november 28,2012.docx

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Western University
Political Science
Political Science 2230E
Prof Dyck

Chapter 24: The Judiciary November-28-12 6:25 PM  This chapter examines the judiciary as an institutions of government, discussing the function of adjudication, categories of laws, the structure of the courts, the Supreme Court of Canada, and the appointment, retirement, removal, and independence of judges. The Function of Adjudication  Judiciary associated with the rule adjudication function  Adjudication can be defined as interpreting the law in cases of dispute by applying the law to them, or of making a judgment based on the law  Peter Russell "providing authoritative settlements in disputes about the law"  Judges engage in the authoritative resolution of legal disputes, but many legal disputes are resolved without going to court, or before going through the entire judicial process o "out-of-court" settlements, esp., one between individuals or between gov. Is likely personal or political compromise  Only when an accommodation satisfactory to both sides cannot be reach then the adjudicatory process is pursued  The function of the judiciary therefore is to render formal, impartial, authoritative judgements in the case of legal disputes between two parties that cannot be settled otherwise o A process that generally relies on the adversarial system with lawyers representing each side o Judge, clothed with the coercive power of the state, acts as an independent referee and decides which of the disputants is legally right  Judiciary also has certain non-adjudicative functions o Judges frequently appointed to head royal commissions or other commissions of inquiry o Nature of these commissions has unfortunately been more political than judicial and observers often feel that this is an inappropriate use of judicial personnel, esp., given backlogs in their regular adjudicative work  Apart from Quebec, Can. Fed., provincial and territorial legal systems operate in the tradition of the English common law o System is accumulation over the centuries of judicial precedents (both England and Canada) o Typical court case: two sides seek to find precedents- previous court decisions- favouring their respected points of view o Judge(sometimes jury) decide which precedent most closely resembles the case currently in court o The principle that precedents are binding on successive decisions is called Stare Decisis  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 o Russell "inescapable generality of 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 "they put flesh on the bare skeleton of the law and shape its substance"   Rule of adjudication can now be considered as part of the policy making process  One step beyond judicial discretion is the explicit power of judicial review o 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 parliament  The original Constitution Act of 1867 did not contain any such provisions, although the courts soon appropriated this power in one respect o The court's power of judicial review was greatly enhanced with the adoption of the Canadian Charter of Rights and Freedoms in 1982 Access to and Costs of Justice  Many people, even in the middle class cannot afford to hire a lawyer to defend them in court  To give those without the financial resources a fairer chance to achieve justice, legal aid programs financed jointly by the federal and provincial governments have been established o However their have been severe cutbacks financially o Increasingly people are trying to defend themselves without legal counsel, a generally regrettable development  Related means of reducing the costs of the administration of justice as a whole are the practices of plea-bargaining and pre-trial conferences o Plea-bargaining: involves discussions between defence and Crown attorneys with the aim of achieving agreement on charges to be pursued, typically by having the accused plead guilty to one charge and the Crown agree to drop other charges  Practice routine at the provincial and territorial court level o Pre-trial Conference: higher court trials it is common for the judge to hold pre-trial conference with the lawyers for each side  Such conferences can result in a negotiated settlement or at least a time-saving clarification of the issues involved Categories of Laws  The law can be defined as "society's system of binding rules"  Laws are commonly divided into different categories, primarily "civil" and "criminal" o Civil Law: regulates relationships between two private parties, such as individuals or corporations  If private agreement cannot be reached, one can take the other to court  Most aspects of civil law are within provincial jurisdiction  Cases often involved disputes over commercial contracts or property  Normally resolved by the court's ordering one party to pay damages to the other  Decided on the basis of the "balance of probabilities" of merits of each side o Criminal Law: primarily a federal responsibility  Has been consolidated in the Criminal Code  The commission of a crime, such as murder, sexual assault, or theft is considered to be a wrong against society as a whole, and the state takes the initiative to bring the suspect to justice by means of the police and Crown Attorneys  Judges may impose fines or prison sentences if the accused is found guilty, such guilt having been proved "beyond a reasonable doubt"  It is usually the provincial attorneys general and their agents, the Crown Attorneys who are responsible for initiating proceedings against the person who is charged  This situation has come about because the provinces have jurisdiction over the administration of justice  Sometimes a case contains both civil and criminal elements o Instead of the basic division between civil and criminal law, a distinction is sometimes made between public and private law  Private law: essentially the same as civil law, law that centres on private interest  Beyond contracts and property, also includes torts, wills, company law, and family law  Public Law: primarily involving the public interest or the government, goes beyond criminal law to include constitutional law, administrative law and taxation law o By giving the provinces jurisdiction over property and civil rights, the father of Confederation allowed Quebec to keep their French Napoleonic Code  Code Civil du Quebec: a new edition came into force in 1994  Other provinces have English common law  The theoretical distinction between the two systems in terms of form is that while the common law consists of hodgepodge of judicial precedents, the Code Civil is a single, comprehensive document  Civil law, the courts look to the civil code to determine a given principle and they then apply the facts of an instant case to that principle  Common law, the court extracts existing principles of law from decisions of previous cases Structure of the Courts  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 appeal for the whole British Empire, there was no need to change it in the Constitution Act 1867 o The new federal government of all the provinces was allowed to establish a general court of appeal and any additional courts, but the provinces were otherwise given responsibility for the administration of justice, which included the establishment of a provincial court system o The logic of the Canadian Court structure: o Identify the more routine cases and those involved less serious possible outcomes and assign them to an accessible high-volume, low-delay court, sits in many different centres (provincial courts) o Assign the less routine and more serious cases to lower-volume court that can devote more time and more focused attention to each individual case (superior trial courts) o Establish a court of appeal to correct simple errors and to promote uniformity in the application of the law within each province (provincial court of appeal) o 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) o 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 departments Federal Court of Canada) o Because of the assumption that the provinces could not be trusted to make worthy appointments to superior, district, and county courts, the Father of Confederation provided that the judges of these courts would be appointed by the governor general, conventionally the federal Cabinet or minister of justice  Judges paid by federal government o Each province determines how many superior judges it needs, but they are appointed and paid by Ottawa  Courts were provided for section 96 of the 1867 document, often called section 96
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