The Courts and the Judiciary

Question 1

What is the role of the court

Answer 1

To interpret and pronounce law, set standards and decide questions that affect all aspects of the Canadian society

Question 2

Who presides over the entire system of the Judiciary

Answer 2

The Supreme Court of Canada

Question 3

What is the courts primary task

Answer 3

To administer justice - ensuring that disputes are settled and crimes are prosecuted fairly and in accordance with Canada’s legal and constitutional structure

Question 4

Who is responsible for providing everything the courts under their jurisdiction need

Answer 4

Provinces and territories

Question 5

The federal government is responsible for which court

Answer 5

The appointment and payment of judges for the Superior courts in each province as well as judges at the federal level

Question 6

What are the four levels of courts and describe them

Answer 6

1. Provincial and Territorial (lower) courts: handle most cases that come into the system, they are established by provincial and territorial governments
2. 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
3. Provincial and Territorial Courts of Appeal and the Federal Court of Appeal
4. The Supreme Court of Canada: final court of appeal for Canada

Question 7

What is the only single level trial court

Answer 7

The Nunavut Court of Justice

Question 8

What are the areas that provincial and territorial courts deal with

Answer 8

• most criminal offences
• family law matters
• Young persons (12-17)
• Regulatory offences
• Money claims up to a certain amount
• Small claims

Question 9

All provinces and territories have established what types of courts

Answer 9

Domestic violence courts

Question 10

What are the courts of “inherent jurisdiction”

Answer 10

Provincial and territorial Superior Courts

Question 11

How do superior courts travel

Answer 11

Often on a circuit

Question 12

What cases do the provincial and territorial courts of appeal hear

Answer 12

Appeals from the decision of the superior courts and the provincial and territorial courts

Question 13

What does the federal court system consist of

Answer 13

The Federal Court and the Federal Court of Appeal

Question 14

What is Canada’s national trial court

Answer 14

The Federal Court

Question 15

What cases do the Federal Courts hear

Answer 15

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

Question 16

What does the Federal Courts Jurisdiction include

Answer 16

• Interprovincial and many federal-provincial disputes
• Citizenship appeals
• Competition Act cases
• Immigration and refugee matters

Question 17

The Federal Court of Appeal hears what cases

Answer 17

Appeals from the Federal Court and the tax Court of Canada and judicial reviews of certain federal tribunals listed in the Federal Court Act

Question 18

What are the three basic roles of the Federal Court of Appeal

Answer 18

1. To ensure that federal law is applied consistently throughout Canada
2. To conduct judicial reviews of specified federal decision makers
3. To provide an avenue of appeal from decisions of the Federal Court and the Tax Court of Canada

Question 19

What are specialised federal courts

Answer 19

tax courts of Canada and the courts that serve the military justice system: the military courts and the Court martial appeal court of Canada

Question 20

What is the jurisdiction of the Supreme Court of Canada

Answer 20

it has jurisdiction over disputes in all areas of law

Question 21

Who are the members of the Supreme Court

Answer 21

The Chief Justice and eight other justices

Question 22

The Supreme Court only hear what kind of cases

Answer 22

Cases that it considers to be of public importance and that have national significance

Question 23

How can the case reach the Supreme Court

Answer 23

It must have used up all available appeals to other levels of courts

Question 24

The Supreme Court usually must grant what, before it hears a case

Answer 24

Grant permission or “leave to appeal”

Question 25

When is the right to appeal automatic to the Supreme Court

Answer 25

1. No leave is required in criminal cases where a judge on the panel of a court of appeal has disagreed or dissented
2. It is also not required when a court of appeal has found someone guilty who has been acquitted at the original trial

Question 26

What are the main processes under Alternative Dispute Resolution

Answer 26

1. mediation: an independent third party is brought in to help the parties negotiate an agreement
2. Arbitration: the parties agree to refer the dispute to a third party for judgement
3. Negotiation: the parties get together and sort out a problem between themselves

Question 27

Can agreements made through mediation and negotiation be appeal

Answer 27

They generally cannot be appealed as they are consensual

Question 28

What are sentencing circles

Answer 28

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

Question 29

Does the judge have to follow the recommendations of the sentencing circle

Answer 29

No they are not bound to accept them

Question 30

What sets out the constitutional framework of the judiciary

Answer 30

The Constitution Act 1867 which creates the basic institutions of the Canadian government and divides powers between the federal and provincial levels of government

Question 31

What does section 92(14) of the 1867 act do

Answer 31

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

Question 32

What does section 96 of the Constitution Act 1867 do

Answer 32

It limits provincial and federal powers to strip jurisdiction from the superior courts

Question 33

What is the test that is used to determine whether a provincial grant of power is valid

Answer 33

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

Question 34

How are judges of the Federal Court, Tax court and section 96 courts appointed

Answer 34

By the governor in council usually following review of candidates by and advisory committee

Question 35

Who oversees the federal judicial appointment process for s 96 courts, the Federal Court and the Tax Court

Answer 35

The Office of the Commissioner for Federal Judicial Affairs

Question 36

What are the requirements for appointment in the Federal Courts of Canada (other than the Supreme Court)

Answer 36

A candidate must have at least ten years’ experience as a lawyer or be a provincial or territorial judge

Question 37

What is the process that candidates must go through for appointment in Federal Courts (other than supreme court)

Answer 37

• 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

Question 38

What is the process of provincial Judicial Appointment process

Answer 38

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

Question 39

How are vacancies advertised for those wanting to apply for the provincial judicial appointment process and what are the requirements

Answer 39

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

Question 40

What is the notion of Judicial Independence

Answer 40

The notion that judges are at arm’s length from the other branches of government

Question 41

What is the customary case for supporting judicial independence

Answer 41

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

Question 42

What are the three requirements for judicial independence

Answer 42

1. Security of tenure
2. Financial security
3. Administrative control or independence with respect to the management of court business

Question 43

What is the test to determine if there is a presence of judicial independence

Answer 43

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

Question 44

What does individual security of tenure mean

Answer 44

It means that judges may not be dismissed by the executive before the age of retirement except for misconduct or disability

Question 45

What must occur institutionally before a judge may be removed from a case

Answer 45

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

Question 46

How are superior court judges removed

Answer 46

They are removable only by a joint address of the House of Commons and the Senate per s 99 of the Constitution Act 1867

Question 47

What amendments were made in 1971 to the Judges Act 1985 in regard to complaints regarding federally appointed judges

Answer 47

It was amended to establish the Canadian Judicial Council as the body responsible for investigating complaints about the conduct of federally appointed judges

Question 48

Where is the authority to recommend removal of a judge found

Answer 48

s 69(3) of the Judges Act

Question 49

Why is financial security important regarding judicial independence

Answer 49

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”

Question 50

What are the two things that independence of the judiciary implies

Answer 50

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

Question 51

Any changes to or freezes in judicial remuneration require what

Answer 51

Prior recourse to a special process, which is independent, effective and objective for determining judicial remuneration

Question 52

What does administrative independence require

Answer 52

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

Question 53

Two general rules of conduct in regard to judicial independence and the private meetings between parties

Answer 53

1. 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
2. A judge should not accede to the demands of one party without giving counsel for the other parties a chance to present their views