The Courts and the Judiciary Flashcards
What is the role of the court
To interpret and pronounce law, set standards and decide questions that affect all aspects of the Canadian society
Who presides over the entire system of the Judiciary
The Supreme Court of Canada
What is the courts primary task
To administer justice - ensuring that disputes are settled and crimes are prosecuted fairly and in accordance with Canada’s legal and constitutional structure
Who is responsible for providing everything the courts under their jurisdiction need
Provinces and territories
The federal government is responsible for which court
The appointment and payment of judges for the Superior courts in each province as well as judges at the federal level
What are the four levels of courts and describe them
- Provincial and Territorial (lower) courts: handle most cases that come into the system, they are established by provincial and territorial governments
- Provincial and territorial superior courts: These are courts of plenary, or complete jurisdiction, established under s 96 of the Constitution Act 1867. they deal with more serious crimes and hear appal from provincial and territorial courts. The federal Court is on the same level but is responsible for deciding civil matters assigned to it by statute
- Provincial and Territorial Courts of Appeal and the Federal Court of Appeal
- The Supreme Court of Canada: final court of appeal for Canada
What is the only single level trial court
The Nunavut Court of Justice
What are the areas that provincial and territorial courts deal with
- most criminal offences
- family law matters
- Young persons (12-17)
- Regulatory offences
- Money claims up to a certain amount
- Small claims
All provinces and territories have established what types of courts
Domestic violence courts
What are the courts of “inherent jurisdiction”
Provincial and territorial Superior Courts
How do superior courts travel
Often on a circuit
What cases do the provincial and territorial courts of appeal hear
Appeals from the decision of the superior courts and the provincial and territorial courts
What does the federal court system consist of
The Federal Court and the Federal Court of Appeal
What is Canada’s national trial court
The Federal Court
What cases do the Federal Courts hear
It hears and decides federal legal disputes whose subject matter has been assigned to the Court by parliament
Claims by the government
Civil suits between private parties in federally regulated areas
What does the Federal Courts Jurisdiction include
- Interprovincial and many federal-provincial disputes
- Citizenship appeals
- Competition Act cases
- Immigration and refugee matters
The Federal Court of Appeal hears what cases
Appeals from the Federal Court and the tax Court of Canada and judicial reviews of certain federal tribunals listed in the Federal Court Act
What are the three basic roles of the Federal Court of Appeal
- To ensure that federal law is applied consistently throughout Canada
- To conduct judicial reviews of specified federal decision makers
- To provide an avenue of appeal from decisions of the Federal Court and the Tax Court of Canada
What are specialised federal courts
tax courts of Canada and the courts that serve the military justice system: the military courts and the Court martial appeal court of Canada
What is the jurisdiction of the Supreme Court of Canada
it has jurisdiction over disputes in all areas of law
Who are the members of the Supreme Court
The Chief Justice and eight other justices
The Supreme Court only hear what kind of cases
Cases that it considers to be of public importance and that have national significance
How can the case reach the Supreme Court
It must have used up all available appeals to other levels of courts
The Supreme Court usually must grant what, before it hears a case
Grant permission or “leave to appeal”
When is the right to appeal automatic to the Supreme Court
- No leave is required in criminal cases where a judge on the panel of a court of appeal has disagreed or dissented
- It is also not required when a court of appeal has found someone guilty who has been acquitted at the original trial
What are the main processes under Alternative Dispute Resolution
- mediation: an independent third party is brought in to help the parties negotiate an agreement
- Arbitration: the parties agree to refer the dispute to a third party for judgement
- Negotiation: the parties get together and sort out a problem between themselves
Can agreements made through mediation and negotiation be appeal
They generally cannot be appealed as they are consensual
What are sentencing circles
This is when the court invites interested members of the community to join the judge, prosecutor, defence council, police, social service providers, and community elders - along with the offender, the victim and their families and support - to meet in a circle format and discuss:
1. the offence
2. the factors that might have contributed to it
3. sentencing options
4. ways of reintegrating the offender into the community
Does the judge have to follow the recommendations of the sentencing circle
No they are not bound to accept them
What sets out the constitutional framework of the judiciary
The Constitution Act 1867 which creates the basic institutions of the Canadian government and divides powers between the federal and provincial levels of government
What does section 92(14) of the 1867 act do
It gives exclusive power to the provincial legislature with respect to: the administration of justice in the province, including the constitution, maintenance and organisation of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts
What does section 96 of the Constitution Act 1867 do
It limits provincial and federal powers to strip jurisdiction from the superior courts
What is the test that is used to determine whether a provincial grant of power is valid
Re Residential tenancies Act case established the three part test
1. Requires a consideration of whether the powers exercised byt eh impugned provincial tribunal conformed to those that were under the “exclusive jurisdiction” of s 96 court at the time of confederation
2. If the powers were found to fall under the exclusive jurisdiction of a s96 court at confederation, one must ask whether the pwoer in question is to be exercised in a judicial manner
3. Requires a consideration of whether the “institutional setting” itself is fundamentally judicial
How are judges of the Federal Court, Tax court and section 96 courts appointed
By the governor in council usually following review of candidates by and advisory committee
Who oversees the federal judicial appointment process for s 96 courts, the Federal Court and the Tax Court
The Office of the Commissioner for Federal Judicial Affairs
What are the requirements for appointment in the Federal Courts of Canada (other than the Supreme Court)
A candidate must have at least ten years’ experience as a lawyer or be a provincial or territorial judge
What is the process that candidates must go through for appointment in Federal Courts (other than supreme court)
- Candidates must complete a very detailed questionnaire
- The advisory committee speaks with references but does not interview candidates
- Advisory committee assess each candidate as “highly recommended”, “recommended” or “unable to recommend” for appointment
- Their assessments are forwarded to the minister of justice, who exercises complete discretion in choosing which candidates to recommend to the governor in council for judicial appointment
What is the process of provincial Judicial Appointment process
The committee accepts applications and interviews candidates before submitting a list of recommendations to the provincial attorney general
- the system operates on an application basis
How are vacancies advertised for those wanting to apply for the provincial judicial appointment process and what are the requirements
They are advertised in the Ontario Reports as the need arises
Candidates must submit 14 copies of a prescribed application form
These are reviewed by the committee and a short list is prepared
After reference checks, confidential inquiries and interviews, the committee sends a ranked list to the Attorney General who is required to make an appointment from that list
What is the notion of Judicial Independence
The notion that judges are at arm’s length from the other branches of government
What is the customary case for supporting judicial independence
It is based on its necessity to ensure judicial impartiality, which in turn, promotes public confidence in the impartial adjudication of disputes, which secures the legitimacy of the legal system
What are the three requirements for judicial independence
- Security of tenure
- Financial security
- Administrative control or independence with respect to the management of court business
What is the test to determine if there is a presence of judicial independence
The Supreme Court has noted that the general test consists in asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status: Ref re remuneration of Judges of the Prov Court of PEI [1997] 2 SCR 3
What does individual security of tenure mean
It means that judges may not be dismissed by the executive before the age of retirement except for misconduct or disability
What must occur institutionally before a judge may be removed from a case
There must be a judicial inquiry to establish that such cause exists, at which the judge affected must be afforded an opportunity to be heard
How are superior court judges removed
They are removable only by a joint address of the House of Commons and the Senate per s 99 of the Constitution Act 1867
What amendments were made in 1971 to the Judges Act 1985 in regard to complaints regarding federally appointed judges
It was amended to establish the Canadian Judicial Council as the body responsible for investigating complaints about the conduct of federally appointed judges
Where is the authority to recommend removal of a judge found
s 69(3) of the Judges Act
Why is financial security important regarding judicial independence
it protects against an “unscrupulous government” that “could utilise its authority to set judges’ salaries as a vehicle to influence the course and outcome of adjudication”
What are the two things that independence of the judiciary implies
Not only that a judge should be free from executive or legislative encroachment and from political pressure and entanglement but also that he should be removed from financial or business entanglement likely to affect or rather to seem to affect him in the exercise of his judicial function
Any changes to or freezes in judicial remuneration require what
Prior recourse to a special process, which is independent, effective and objective for determining judicial remuneration
What does administrative independence require
That courts themselves have control over the administrative decisions “that bear directly and immediately on the exercise of the judicial function” such as “assignments of judges, sittings of the court, and court lists” - as well as related matters of allocation of courtrooms and direction of the administrative staff engaged in carrying out these functions
Two general rules of conduct in regard to judicial independence and the private meetings between parties
- Counsel for one party should not discuss a particular case with a judge except with the knowledge and preferably with the participation of counsel for the other parties to the case
- A judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views
