WEEK 6 - The Judiciary - 3rd Branch of Government

Question 1

What is court?

Answer 1

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

Question 2

What is the role judiciary?

Answer 2

the judgement by the court is the outcome of a legal dispute
the judge made rules (precedent) play an important part of the law

Question 3

What do judges do?

Answer 3

interpret statutes
determine jurisdictional validity of statutes
> unconstitutional?
> offend the charter?
decide if a statute superseded a common law rule

Question 4

what sets out the powers of the court and judicial appointments?

Answer 4

Constitution Act, 1867
> federal judges - sec 96, 99, 101
> provincial judges - sec 92

Question 5

What are the 3 types of court?

Answer 5

1. Inferior courts
2. Superior courts
3. SCC

Question 6

When was the SCC created?

Answer 6

1875 : Supreme Court Act
SCC did not become the final court of appeal until 1949
> went to privy council in London

Question 7

How many judges in SCC and from what provinces/territories?

Answer 7

9 judges
> 3 from Quebec
> 3 from Ontario
> 2 from Western provinces
> 1 from Atlantic provinces

Question 8

What type and how many cases do the SCC take on? (per year)

Answer 8

no more than 100 cases
> public laws, including criminal matters, statutory interpretations and charter/constitutional issues

Question 9

What are the 3 ways that cases come before the SCC?

Answer 9

1. leave to appeal
   > SCC authorizes to hear
   > panel of 3 decides if admitted or not, no explanation if refused
2. Appeals as of right
   > only criminal cases
   > must have specific conditions
3. On a reference
   > by province or federal
   > ask a question to SCC and receive legal advice

Question 10

What happens during hearings of SCC?

Answer 10

hearing needs a minimum of 5 judges and they listen to the case presented by lawyers

Question 11

What happens during judgements of SCC?

Answer 11

after the hearing, they reserve (postpone) their decision and reflect on a period of time - can be a year if difficult

Question 12

What happens during the disposition of results in SCC?

Answer 12

The majority makes final decision, judges can have different reasons (for dissent or agreement) but must explain their reasoning (important for democratic country)

Question 13

What are the 2 types of courts in provinces?

Answer 13

1. superior court (trial and appeal)
2. inferior court (trial)

Question 14

What are the characteristics of provincial superior courts?

Answer 14

Important criminal cases (trial)
> ex. murder
Civil disputes
Review inferior courts’ decisions (appeal)
> brought up by an appeal in inferior

Question 15

What are the characteristics of provincial inferior courts?

Answer 15

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

Question 16

what is the difference between territorial and provincial courts?

Answer 16

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

Question 17

What was the previous name of the federal court?

Answer 17

Exchequer Court of Canada (1 trial judge, 3 appeal judges)

Question 18

What is in the superior federal court?

Answer 18

Tax court of Canada
Martial appeal court
> people who do not follow the rules of the army

Question 19

What is in the inferior federal court?

Answer 19

general court-martial
> start point for case against the member of the army
standing court-martial
federal tribunals
> employment insurance issue

Question 20

What does Stare Decisis mean?

Answer 20

stand by things decided
> a decision in an earlier higher court case constitutes a precedent that binds lower-level courts in the same jurisdiction

Question 21

What is the difference between binding authority and persuasive authority?

Answer 21

binding = mandatory
> ex. SCC
persuasive = provincial
> ex. appeal or trial

Question 22

What does distinguishing a precedent mean?

Answer 22

lawyer makes a distinction between the case and the precedent
> has to be the same elements

Question 23

What is the principle of comity?

Answer 23

close to persuasive authority
judges belong to same jurisdiction
comity = “follow my classmate”

Question 24

What appoints superior court judges (trial and appeal)?

Answer 24

federal government - PM
a lawyer must have practiced for 10 years

Question 25

What appoints inferior court judges (trial)?

Answer 25

the provincial legislature and territorial assembly

Question 26

What are the Star Chamber abuses?

Answer 26

1600 in England
Secret proceedings, a political instrument used by Stuart monarchy to punish people who opposed them

Question 27

What is the open court principle?

Answer 27

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

Question 28

What is judicial immunity?

Answer 28

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

Question 29

What is judicial independence?

Answer 29

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