The Judiciary and the Courts PDF

THE JUDICIARY The law involves all three branches of government… ✓ Legislatures make the law. ✓ Executives execute/administer the law. ✓ Courts interpret/modify the law.  CANADA’S COURT SYSTEM 1. CANADA’S COURT SYSTEM 2. TYPES OF OFFENSES 3. J...

THE JUDICIARY The law involves all three branches of government… ✓ Legislatures make the law. ✓ Executives execute/administer the law. ✓ Courts interpret/modify the law.  CANADA’S COURT SYSTEM 1. CANADA’S COURT SYSTEM 2. TYPES OF OFFENSES 3. JUDICIAL APPOINTMENTS 4. JUDICIAL INDEPENDENCE 5. FUNCTIONS OF THE JUDICIARY ‒ Adjudication ‒ Judicial Review 6. LIMITS ON CHARTER RIGHTS  SUPREME COURT OF CANADA Chief Justice Andromache Suzanne Côté Sheilah Martin Malcom Rowe Richard Wagner Karakatsanis Nicholas Kasirer Mahmud Jamal Michelle O’Bonsawin Mary Moreau https://www.scc-csc.ca/judges-juges/index-eng.aspx  CANADA’S COURT SYSTEM Courts in Canada Section 101 derive their power Section 96 Section 92 from the Constitution  CANADA’S COURT SYSTEM SECTION 92 (S.92) COURTS Provincial/Territorial Courts [Alberta Court of Justice] Types of Courts ‒ Criminal and Young Offender (90% of criminal litigation) ‒ Family ‒ Small Claims (up to $100K) ‒ Traffic Hears less serious offences (summary & hybrid) Hears Preliminary Inquiries Appeals from s.92 courts may be heard by superior trial courts or appeal courts (s.96 courts)  CANADA’S COURT SYSTEM SECTION 96 (S.96) COURTS Provincial/Territorial Courts of Appeal ‒ Hear appeals from superior courts and provincial/territorial courts Provincial/Territorial Superior Courts ‒ E.g. Court of Kings/Queen’s Bench ‒ Hears ⮚ Serious criminal offenses (indictable & hybrid) ⮚ Civil claims over $100K ⮚ Appeals from s.92 Courts and provincial administrative tribunals (e.g. Vriend was appealed from Alberta’s Human Rights Commission)  CANADA’S COURT SYSTEM SECTION 101 (S.101) COURTS Supreme Court of Canada (SCC) ‒ Hears appeals from all courts of appeal ‒ Provincial/Territorial ‒ Federal ‒ Court Martial Federal Court of Appeal ‒ Hears appeals from federal trial courts Federal Court ‒ Hears cases involving federal laws & programs ‒ Appeals from federal administrative tribunals Military and Tax Courts  TYPES OF OFFENSES 1. Indictable ‒ More serious offences ⮚ E.g. murder, theft over $5000 ⮚ Maximum sentences range from 2 years to life in prison 2. Summary ‒ Less serious offences ⮚ E.g. theft under $5000 ⮚ Maximum sentences are up to 2 years less a day, a fine of $5000 or both 3. Hybrid ‒ The Crown can elect to proceed by summary conviction or by indictment  JUDICIAL APPOINTMENTS In Canada , judges are appointed by the federal or provincial governments in consultation with committees that assess potential candidates. PM appoints judges to the Supreme Court of Canada, and the Minister of Justice appoints judges to superior trial courts (e.g. Court of King’s/Queen’s Bench), appeal courts, and federal courts. Premiers appoint judges to provincial courts, including criminal, young offender, family, small claims and traffic courts.  JUDICIAL APPOINTMENTS In the US, the appointment process has become more politicized – E.g. Brett Kavanaugh, Amy Coney Barrett  JUDICIAL INDEPENDENCE In liberal/constitutional democracies judges have independence or autonomy An essential safeguard of the rule of law − E.g. Roncarelli v Duplessis (1959)  JUDICIAL INDEPENDENCE This requires financial, and administrative independence from government and politics ‒ i.e. a separation of powers ‒ s.11(d) of the Canadian Charter of Rights and Freedoms guarantees the presumption of innocence until proven guilty “by an independent and impartial tribunal” Judges have tenure in office “during good behaviour” s.99 CA 1867 ‒ Can only be removed for “cause” on the recommendation of an independent investigation  FUNCTIONS OF THE JUDICIARY TWO PRINCIPAL FUNCTIONS OF JUDGES/COURTS 1. Adjudication ‒ interpret the law in cases of dispute about what the laws says or does ‒ settle disputes by applying the law ‒ pass judgment based on the law 2. Judicial review ‒ critics may refer to this as judicial policy-making or judicial activism ‒ courts declare a legislative, executive or judicial act unconstitutional ‒ Judges are guided by the constitution, legislation and precedents ‒ promotes predictability and the rule of law  FUNCTIONS OF THE JUDICIARY 2. Judicial review (cont’d) The US Supreme Court established the power of the courts to declare laws unconstitutional in Marbury v Madison (1803) Canada’s Supreme Court first exercised judicial review in Severn v The Queen (1878) ‒ Found an Ontario law fining Mr. Severn for selling beer with federal authorization was unconstitutional - ultra vires = beyond the constitutional authority of a provincial government. The Constitution Act 1982 explicitly recognized judicial review ‒ s.52(1) “The Constitution of Canada is the supreme law of Canada and any law that is inconsistent with (it) is, to the extent of the inconsistency, of no force or effect.” ‒ s.24(1) “Anyone whose rights or freedoms … have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”  LIMITS ON CHARTER RIGHTS Since the Charter was entrenched in 1982, Canadian courts have increased their judicial review of government laws and actions. s.1 allows “reasonable limits… demonstrably justified in a free and democratic society” ‒ A law that limits Charter rights can be “saved” or upheld using the Oakes test s.24(2) allows evidence obtained by violating Charter rights to be excluded or admitted ‒ Depending on which is more likely to “bring the administration of justice into disrepute”  LIMITS ON CHARTER RIGHTS s.33 allows a legislature to protect laws from challenges under ss.2 & 7-15 of the Charter ‒ Must be renewed every 5 years ‒ Rarely used outside Quebec “Dialogue” between the courts and the legislative/executive branch ‒ When courts strike down a law, a new law that responds to the constitutional problem identified can be passed