week 3: The Courts and the Charter of Rights and Freedoms Flashcards
The Courts and the Charter of Rights and Freedoms
Structure of the Court System:
The Canadian judicial process outside of Quebec is based on a system of common law that originates from the U.K
Judges make decisions in line with previous precedent
In contrast to a civil law system where judges act as impartial referees and make decisions (operates in Quebec)
The system is fundamentally adversarial
types of law
Substantive v. procedural
Constitutional v. statutory v. administrative
Criminal v. Civil
Federalism and the Courts:
The federal and provincial governments share authority related to the administration of justice
The federal government can create courts: power used to create the Supreme Court of Canada (1875) and the Federal Court of Canada (1971)
The criminal code is federal, unlike in the U.S.
Provinces tasked with administering justice and creating and maintaining provincial courts
Responsibilities of courts:
Lower provincial courts are assigned frequent, lesser offenses, and most matters of civil law.
Superior courts tasked with less common more serious offenses (ex: murder)
Appeals courts are self-explanatory
Federal Court deals primarily with administrative law and matters that involve the federal government.
Appointment:
Superior and appeals courts are appointed by cabinet (via the governor general)
Lower provincial courts appointed by provincial cabinets (via lieutenant governors)
Patronage common before 1960
Now procedures exist to limit political influences in appointments (if imperfectly)
Committees in each province provide a list of vetted candidates for section 96 judgeships.
Consists of federal appointees, the provincial attorney general, and experts from the legal community
PM Harper included a representative for the police
Provincial court appointments are similar at the provincial level but vary by province.
Removal:
Very hard to remove judges
Lower courts require removal by the provincial cabinet after an inquiry by the provincial judicial council.
A similar process for federal judges, but also requires passage of a motion by Parliament
Otherwise, mandatory retirement at 75 for federal judges
The Supreme Court:
The Judicial Committee of the Privy Council was the final court of appeal until 1949
SCC was created with the Supreme Court Act of 1875 using sec. 101
Debate over constitutional status because of its creation via statute
SCC ruled that the Constitution Act of 1982 entrenched the court and its composition requiring unanimous provincial consent to amend
Powers of the Supreme Court:
Tasked with the power of judicial review: the power to review legislation and rule on its constitutionality
Two main dimensions:
- Ultra vires: is the law outside of the scope of power of the government based on the division of powers?
- Does the law infringe on charter rights beyond reasonable limits?
Supreme Court Docket:
SCC hears cases of public importance and national significance
All avenues of appeal must be used up and then you must apply for “leave” so that the court hears your case
3 justices review leave applications and make decisions without providing reasons for a decision
Appeals are sometimes automatic: acquittal reversals or if there was dissent from an appellate judge
500-600 applications, only 65-80 appeals (13%)
⅓ of dockets are charter cases, most of which involve matters related to criminal law procedures
Deciding Cases:
Once a decision is reached a justice is selected to write the opinion of the court to justify the majority decision.
Justices that agree with the decision, but disagree with the reasoning behind the opinion can write concurring opinions.
Those who disagree with the majority opinion can write dissenting opinions.
Supreme Court Composition:
Of the nine justices of the Supreme Court, 3 are required to be from Quebec
2014 reference case further ruled that Quebec appointees must be from a Quebec provincial court or a member of the Bar of Quebec
By convention, three appointments from Ontario, two from the West, and one from Atlantic Canada
All must be judges of a superior court of members of the bar for 10 years.
Supreme Court Appointment and Tenure:
Appointed by the governor general on the advice of the prime minister
A non-partisan advisory board identifies a list of suitable candidates
Assessment criteria, questionnaires, and provided answers are all made public
Hold office “during good behavior” with retirement at 75
Judicial Independence:
One of the foundational principles of the court system is judicial independence: the need for judges to be politically independent.
While governments can remove judges due to misconduct it is very rare
Salary and benefits are prescribed by law- individuals cannot be targeted by governments
Structure of the Court System:
The Canadian judicial process outside of Quebec is based on a system of common law that originates from the U.K
Judges make decisions in line with previous precedent
In contrast to a civil law system where judges act as impartial referees and make decisions (operates in Quebec)
The system is fundamentally adversarial
Types of Law:
Substantive v. procedural
Constitutional v. statutory v. administrative
Criminal v. Civil
Federalism and the Courts:
The federal and provincial governments share authority related to the administration of justice
The federal government can create courts: power used to create the Supreme Court of Canada (1875) and the Federal Court of Canada (1971)
The criminal code is federal, unlike in the U.S.
Provinces tasked with administering justice and creating and maintaining provincial courts
