WEEK 6 - The Judiciary - 3rd Branch of Government Flashcards
What is court?
state-sanctioned where disputes are formally adjudicated
the constitution divides authorities and appointment of judges
most courts are inferior (trial)
> ex. traffic, family, small claims, less serious criminal offences
other courts are superior
What is the role judiciary?
the judgement by the court is the outcome of a legal dispute
the judge made rules (precedent) play an important part of the law
What do judges do?
interpret statutes
determine jurisdictional validity of statutes
> unconstitutional?
> offend the charter?
decide if a statute superseded a common law rule
what sets out the powers of the court and judicial appointments?
Constitution Act, 1867
> federal judges - sec 96, 99, 101
> provincial judges - sec 92
What are the 3 types of court?
- Inferior courts
- Superior courts
- SCC
When was the SCC created?
1875 : Supreme Court Act
SCC did not become the final court of appeal until 1949
> went to privy council in London
How many judges in SCC and from what provinces/territories?
9 judges
> 3 from Quebec
> 3 from Ontario
> 2 from Western provinces
> 1 from Atlantic provinces
What type and how many cases do the SCC take on? (per year)
no more than 100 cases
> public laws, including criminal matters, statutory interpretations and charter/constitutional issues
What are the 3 ways that cases come before the SCC?
- leave to appeal
> SCC authorizes to hear
> panel of 3 decides if admitted or not, no explanation if refused - Appeals as of right
> only criminal cases
> must have specific conditions - On a reference
> by province or federal
> ask a question to SCC and receive legal advice
What happens during hearings of SCC?
hearing needs a minimum of 5 judges and they listen to the case presented by lawyers
What happens during judgements of SCC?
after the hearing, they reserve (postpone) their decision and reflect on a period of time - can be a year if difficult
What happens during the disposition of results in SCC?
The majority makes final decision, judges can have different reasons (for dissent or agreement) but must explain their reasoning (important for democratic country)
What are the 2 types of courts in provinces?
- superior court (trial and appeal)
- inferior court (trial)
What are the characteristics of provincial superior courts?
Important criminal cases (trial)
> ex. murder
Civil disputes
Review inferior courts’ decisions (appeal)
> brought up by an appeal in inferior
What are the characteristics of provincial inferior courts?
Criminal, youth, traffic, family law, small claims
> less serious criminal matters
> small claims = less than $5000
The vast majority of criminal and civil cases are heard here
> main entry point for most people within the justice system
what is the difference between territorial and provincial courts?
constitutional basis
> terr. rooted in federal statutes and changed unilaterally by parliament
same in terms of functionality and jurisdiction
Nunavut only has one trial court
What was the previous name of the federal court?
Exchequer Court of Canada (1 trial judge, 3 appeal judges)
What is in the superior federal court?
Tax court of Canada
Martial appeal court
> people who do not follow the rules of the army
What is in the inferior federal court?
general court-martial
> start point for case against the member of the army
standing court-martial
federal tribunals
> employment insurance issue
What does Stare Decisis mean?
stand by things decided
> a decision in an earlier higher court case constitutes a precedent that binds lower-level courts in the same jurisdiction
What is the difference between binding authority and persuasive authority?
binding = mandatory
> ex. SCC
persuasive = provincial
> ex. appeal or trial
What does distinguishing a precedent mean?
lawyer makes a distinction between the case and the precedent
> has to be the same elements
What is the principle of comity?
close to persuasive authority
judges belong to same jurisdiction
comity = “follow my classmate”
What appoints superior court judges (trial and appeal)?
federal government - PM
a lawyer must have practiced for 10 years
What appoints inferior court judges (trial)?
the provincial legislature and territorial assembly
What are the Star Chamber abuses?
1600 in England
Secret proceedings, a political instrument used by Stuart monarchy to punish people who opposed them
What is the open court principle?
public proceeding guaranteed under the charter for criminal charges
we expect to see our justice system at work to ensure that it is fair
among the most important safeguard, however, it is taken for granted in Canada
What is judicial immunity?
as judges apply to law ‘correctly’ they,
1. security of tenure until 75 years of age
> exception is bad behaviour
2. financial security
3. administrative independence is according to the principle of non-interference
What is judicial independence?
rule-of-law doctrine
judges should be free to make decisions based on the law and free from outside interference or without the threat of negative consequences
