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Chapter 24

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Political Science
Political Science 2230E

9/13/2012 9:33:00 AM September 13, 2012 Canadian Politics – Optical Approaches Dyck Chapter 24 The Judiciary Canadian poli sci originally interested in judiciary system for its interpretation of the federal-provincial division of powers Since the Charter of Rights and Freedoms it has much more attention The Function of Adjudication Judiciary system always been associated with the rule of adjudication function Adjudication Is interpreting the law in cases of dispute Of settling disputes by applying the law to them Or making judgment based on the law Some legal disputes require judges, other are resolved before going through the whole judicial process Known as an “out-of-court” settlement Usually some sort of personal or political compromise Function of judiciary is to render formal, impartial, authoritative judgments in the case if legal disputes between two parties that cannot be settled otherwise Relies on adversarial system – two lawyers representing both sides Judge acts as an independent referee and decides which disputant is legally right Canadian federal, provincial and territorial legal systems operate in tradition of the English common law The accumulation over the centuries of judicial precedents in England/Canada The courts seek to find precedents Judge must decide which precedent resembles the case the most The principle that precedents are binding on successive decisions is called stare decisis Russell: “inescable generality of the law” + “put flesh on bare skeleton of the law and shape its very substance” Rule adjudication also considered apart of the policy making process Russell: “policies shaped through the process of being applied in particular cases by judges and administrators” E.g. large element of discretion left to judges in sentencing process E.g. decision of courts to give little weight to Canadian Bill of Rights Judicial discretion: leeway bestowed on courts when they interpret laws Judicial review: power of courts to overturn legislation or an action of the executive branch Not only courts have power of judicial discretion but now judicial review based on the importance gained through the Charter of Rights and Freedoms Refutes principle of supremacy of parliament Access to and Costs of Justice Lawyers are very expensive and many people cannot afford the legal costs to go to court to settle they’re disputes Legal aid programs financed partially by the federal and provincial gov’s have been established to help those who need financial backing There are also community legal clinics established to improve prospects of a fair hearing A way of reducing costs include plea-bargaining and pre-trial conferences Plea bargaining involves discussions between defense and Crown attorneys with aim of making an agreement on charges to be pursued – usually by pleading guilty to one charge and Crown dropping others Categories of Laws “Society’s system of binding rules” Divided into categories – Civil and Criminal Civil law – usually regulates relationship btw two private parties E.g. individual and corporation Most aspects of civil law are within provincial jurisdiction due to provincial power of property and civil rights Decided based on “the balance of probabilities” of the merits of each side Criminal Law Federal responsibility Uniform across country and consolidated in the Criminal Code Judges may impose fines or prison sentences if guilty Must be proven “beyond a reasonable doubt” Can include both: E.g. drunk driver damages another persons car Most criminal cases start at the provincial level and initiate proceedings Private Law – very much the same as civil law Law centers on private interests Includes torts, wills, company law, family law Public law – very much live criminal law Goes beyond and includes constitutional law, administrative law and taxation law Constitutional law – questions about federal and provincial jurisdiction Admin law – concerns operation of gov departments/agencies Structure of the Courts New federal government allowed to establish general court of appeal and other courts Provinces given responsibility for admin of justice which included establishment of provincial court system Identify routine cases, less serious outcomes, assign to high-volume, low delay court (provincial courts) Assign less routine, more serious cases to lower-volume court to devote more time and attention to each case (superior court trials) Establish court of appeal to solve simple errors and promote uniformity in application of the law across each province (provincial court of appe
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