Canadian Politics 2237E chapter 24.docx

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Political Science
Political Science 2230E
Caroline Dick

Canadian Politics 2237E Chapter 24 – The Judiciary 22 September 2012 - now that the CORAF has catapulted the courts into the middle of many heated political issues, however, political scientists are giving this fourth branch of government much more attention The Function of Adjudication: - judiciary has always been associated with the rule adjudication function in the political system, although other institutions may perform part of this function - adjudication  interpreting the law in cases of dispute, of settling disputes by applying the law to them, or of making a judgement based on the law - Russell: “providing authoritative settlements in disputes about the law” - judges engage in the authoritative resolution of legal disputes, but many disputes are resolved without going to court or before going through the entire judicial process - “out-of-court”  some sort of personal or political compromise  only when an accommodation satisfactory to both sides cannot be reached that the formal adjudicatory process is pursued to the bitter end - render formal, impartial, authoritative judgements in the case of legal disputes between two parties that cannot be settled otherwise - a process that generally relies on the adversarial system, which lawyers representing each side - judge acts as an independent referee and decides which of the disputants is legally right - the process usually culminates in the designation of a winner and a loser - the judiciary also has certain non-adjudicative functions - judges have been appointed to head royal commissions or other commissions of inquiry - apart from the civil law system of Quebec, Canada’s legal system operates in the tradition of the English common law - accumulation over the centuries of judicial precedents, both in England and more recently in Canada - the two sides seek to find precedents favouring their respective points of view - judge has to decide which precedents most closely resemble the case currently before the court - principle that precedents are binding on successive decisions is called stare decisis - law may not be clear on all points or provide for every conceivable situation - 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 - Russell refers to the “inescapable generality of the law” such that they actually shape and develop the law in the very process of settling disputed about it - rule adjudication can now be considered as part of the policy-making process - Canadian observers did not give much recognition to the concept of judicial involvement in this process until recently - Russell “wrongly assumes that all important public policies are expressed in statutes passed by legislatures… and overlooks the extent to which policies… are shaped through the process of being applied in particular cases by judges and administrators” - judicial interpretation of anti-monopoly laws “decisively shaped industrial policy by making it nearly impossible to convict corporations for monopolistic practices” - the courts are inherently involved in policymaking - one step beyond judicial discretion is the explicit power of judicial review - judicial review is the power of the courts to declare them invalid, refuting the principles of the supremacy of parliament - in rendering federal or provincial legislation void if either encroached on the jurisdiction of the other level of government, the decisions of the courts had a significant effect on the shape of Canadian federalism - court’s power of judicial review was greatly enhanced with the adoption of the CORAF Access to and Costs of Justice: - many people cannot afford to hire a lawyer to defend them in court, yet the objective of the judicial process must be the search for truth and the obtaining of justice, goals that have traditionally rested on the adversarial system - 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 - cover only certain kinds of legal work, and have been subject to severe funding cutbacks in recent years so that they are less adequate than ever - related means of reducing the costs of the administration of justice as a whole are the practices of plea-bargaining (discussion between defence and crown with aim of achieve agreement on charges to be pursed, typically by having the accused plead guilty to one charge and crown agree to drop charges) and pre-trial conferences (negotiated settlements) Categories of Laws: - law  “society’s system of binding rules” - civil law  regulates relationships between two private parties, and if private agreement cannot be reached in the case of dispute, one party may take the other to court - involve disputes over commercial contracts or property,, and such cases are normally resolved by the court’s ordering one party to pay damages to the other - civil cases are decided on the basis of the “balance of probabilities” of the merits of each side - criminal law  consolidated in the criminal code - the commission of a crime 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 - judges may impose fines or prison sentences if the accused is found guilty, such guilt having been proven “beyond a reasonable doubt” - although criminal law is within federal jurisdiction, it is usually the provincial attorneys general and their agents who are responsible for initiating proceeding against the person who is charged - this situation has come about because the provinces have jurisdiction over the administration of justice - sometimes a case contain both civil and criminal elements, such as drunken driver who does damage to another person’s car - private law is the same as civil law but the law is centres on private interest - includes torts, wills, company law, and family law - public law primary involving public interest or the government, goes beyond criminal law to include constitutional law, administrative law, and taxation law - constitutional law has traditionally involved questions about federal or provincial jurisdiction, and governments themselves have often been the parties to a constitutional case - by giving the provinces jurisdiction over property and civil rights, fathers of Confederation allowed Quebec to retain its distinctive private or civil law system based on the French Napoleonic Code - code Civil du Quebec  private law system in the other provinces and territories is based on English common law traditions - while the common consists of a hodgepodge of judicial precedents, the Code Civil is a single, comprehensive document - Gall: “in a common law system, the courts extract principles of law from decision of previous cases, while in the civil law system, 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” - state has far greater ability to asset its authority and power through the written code than in the common law tradition, where the law is written in more general terms and is susceptible to interpretation and application by judges and juries - the actual difference between the two systems is probably not as great as if often assumed Structure of the Courts: - the new federal government 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 the provincial court system 1) Identify the more routine cases and those that involve less serious possible outcomes and assign them to an accessible high-volume, low-delay court, preferable one that sits in many different centres (provincial courts). 2) 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) 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) 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) 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). - because of the assumption that provinces could not be trusted to make worthy appointments to superior, district, and country courts, the Fathers of Confederation provided that the judges of these courts would be appointed by the governor general, conventionally meaning the federal Cabinet or minister of justice Provincial Courts: - they have a monopoly on summary (less serious) offences except in some provinces where even lower tribunals, such as justices of the peace, have been given this responsibility - more serious crimes (indictable offenses): 1) murder are reserved for superior courts 2) theft are assigned to provincial courts 3) those in an intermediate category can be tried in either section 96 or provincial courts - provincial and territorial courts also have jurisdiction over disputes involving small amounts of money - some provinces have also tried to remove the adversarial nature of small claims disputes and other civil lawsuits by instituting mediation services, such as Alternative Dispute Resolution (ADR), by professional mediators Superior Trial Courts: - the accused often has the option of trial by judge alone or trial by judge and jury - prosecutors and judges are pressured for financial reasons to resolve cases quickly through plea-bargaining rather than through a protracted trial by jury - growing concern than jurors cannot appreciate the complexity of the law and are more likely than a judge to be swayed by a charismatic lawyer in the courtroom Provincial and Territorial Courts of Appeal: - hear criminal, civil, and other appeals, some of which have already been appealed from lower courts to a section 96 trial court - most cases the decision of the provincial or territorial court of appeal is final - correct errors or injustices that one side claims were made in a lower court, but an appeal court is primarily interested in legal rather than factual issues - Russell  “law-making” role of appeal courts because their legal interpretations have a “creative legislative dimension” - “strongly persuasive” for a trial courts in other provinces and territories Federal Court of Canada: - intended to relive the Supreme Court of hearing routine appeals from certain federal administrative agencies and regulatory tribunals and to develop a more unified and cohesive body of federal administrative law - consists of a chief justice and 12 other judges who sit in panels of at least three members - contains the chief justice and 32 other full-time and assorted p
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