Canada's Judicial System PDF

Provincial Courts Supreme Court 1. A national court appointed by the GG and advised by the PM, there is no constitutionally entrenched role for provinces 2. At least 3 QC judges a. A rule about territory 3. Conventional regional representation beyond QC 4. Bijuralism (civil/common...

Provincial Courts Supreme Court 1. A national court appointed by the GG and advised by the PM, there is no constitutionally entrenched role for provinces 2. At least 3 QC judges a. A rule about territory 3. Conventional regional representation beyond QC 4. Bijuralism (civil/common) Division of Power S92(14) 1. The administration of justice in the province, including the constitution, and including the procedure in civil matters in those courts 2. General inherent jurisdiction 3. Federal/Provincial law S91(27) 1. Criminal Law except the Constitution of Courts but including the procedure in criminal matters a. Uniform criminal procedures across the country S101 1. Parliament of Canada from time to time provide for the constitution, maintenance, and organization of a general court of appeal for Canada and for the establishment of any additional courts for the better administration of the laws of Canada Provinces superior trial court 1. General/inherent jurisdiction \--\> any type case/criminal or civil Federal Courts S96 (CA 1867) 1. GG shall appoint the judges of the superior, district, and county courts except those of NS and NB S100 (CA1867) 1. Salaries, Allowances, and Pensions of the judges and of the admiralty courts in cases where the judges thereof are for the time being paid by salary, shall be fixed and provided by the Parliament of Canada S101: Federal courts 1. Laws of Canada a. Parliament set out what federal laws go to federal court b. The default is that it is heard in provincial courts c. Allows for specialist courts Example; tax court of Canada 1. Primary jurisdiction is to hear income tax appeals No provincial role Example: Saskatchewan 1. Provincial court \--\> handles crime and offences/small claims/youth/traffic 2. Court of King's bench a. Civil/Family/criminal b. Appeals decisions 3. Court of Appeal c. Decisions of court of king's, provincial, and administrative tribunals General court of appeal (s101 1867) 1. Created through an act of parliament a. Supreme court act 2. Court of last resort b. 1933: criminal appeals c. 1949: all other appeals 3. Supreme court entrenched itself in 2014 by the re: supreme court act The judges Conditions 4(1) 1. Court shall consist of a chief justice to be called chief justice of Canada, and eight puisne judges 4(2) 1. Judges shall be appointed by the GG in Council by letters patent under the Great Seal 5 1. Any person may be appointed judge who is or has been judge of a superior court of a province of at least 10 years standing at the bar of a province 6 1. At least three judges shall be appointed from among the judges of the court of appeal or of the superior court of the province of Quebec 6.1 1\. A judge is from among the advocates of the province of QC if at any time they were an advocate of at least 10 years of standing at the bar of that province Institutional legitimacy 1. Core issue with all judiciaries a. No enforcement capacity on its own 2. Rely on b. Compliance c. Coercion: enforcement of judicial decisions by the executive 3. Presumbly d. Probability of compliance given that legitimacy is greater than prob(compliance \| illegitimacy e. Prob(enforced \| legitimacy) \> prob(enforced \| illegitimacy) 4. Sources of legitimacy f. Well reasoned, non-partisan, not political g. Social/political acceptability Complicating law/representativeness 1. On grounds of: a. Gender/race b. Territorial 2. Law: arbiter of federal and sub-national laws Representation A judge for all of Canada and a judge from QC 1. Judge for all Quebecers 2. Personal background/history in QC \--\> just as a person who has practiced in QC for 10 years 3. Quebecor\'s have a different view on the role of QC Federalist cases 1. QC judges can't be seen as partisan/political in disputes where QC is implicated Institutional strategic concern 1. Institutional legitimacy on big federalist cases in Canada 2. SCC \--\> QC dissenting vs 6 ROC 3. Best outcome \--\> unanimity 4. SCC's jurisdiction defined by Parliament which is the reference power 1. Grants leave to appeal when: a. The supreme court is of the opinion that any question involved is for any other reason of such a nature of significance as to warrant decision by it. 2. Appeal by right b. Some criminal cases (acquittal is set aside by provincial court of appeal) 3. S53 SCA: the reference jurisdiction c. 1: Governor in Council may refer to the Court for hearing and consideration important questions law concerning i. Interpretation of the Constitution Acts ii. Constitutionality or interpretation of any federal or provincial legislation iii. Appellate jurisdiction repsecting educational matters iv. Powers of the parliament of Canada d. 2: governor in council may refer to the court for hearing and consideration important questions of law whether or not in the opinion of the court with reference to which the governor in council sees fit to submit any such questions e. 3: any question concerning any of the matters mentioned in 1 and 2, and referred to the court by the governor in council shall conclusively deemed to be an important question f. 4: when a reference is made it is the duty of the court to hear and consider it and answer each question being referred, and the Court certifies to the Governor in Council for his information, its opinion on each question, with reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgement on an appeal to the Court g. Appeals from references by lieutenant governor in council v. An appeal lies to the Court from an opinion pronounced by the highest court of final resort in a province by the lieutenant governor in council of that province whenever it has been by the statues of that provine declared that such opinion is deemed a judgement of highest court of final resort 4. Seeking an advisory opinion h. Cabinet is treating the SCC like a law firm vi. Seeks their advice publicly and the SCC must respond publicly (s53(4) of SCA) vii. Advice is public viii. No live dispute: 1. Distinct from litigation 2. Advisory opinion are not binding i. When they don't ix. Justiciability doctrine x. Ambiguity concern 5. Advisory but treated as if binding j. A legal convention xi. Precedents in jurisprudence in the same way as judgements k. SCC can't go on to contradict their own advice xii. Can\'t treat their own advice as unreliable guardian for possible future litigations xiii. Cabinet: a public move is hard to disavow later Who determines rights? The courts or legislatures 1. Democracy is rule of the people 2. Representative democracy a. Selection of representatives through some accepted procedures b. A legislative assembly acts in the name/electorate i. Majoritarianism: a majority rule for legislative action ii. Defining rights is properly the role of legislators 3. A problem with legislatures: majoritarian tyranny c. Is not perfect iii. Persistent minorities iv. Democracy is a right of operationalizing a limit to state/majoritarian power d. Legitimately counter the legislature v. Source of institution's legitimacy vi. Under what grounds 4. Problem with cases for judicial review e. Counter-majoritarian difficulty vii. Why should an unelected judiciary be able to overturn the decisions of the elected legislators 1. When legislators give courts the jurisdiction to do so in the Constitution 2. A judiciary is necessary to constitutional government (Montesquieu) a. Law as a specialized institutional project 3. A judiciary to protect against majoritarian tyranny b. Role as defining the limits of state power: defining rights 5. Strong vs weak form judicial review f. Legislatures have the last move to define rights via formal constitutional amendment g. Who has the final decision viii. Judges: strong form judicial review 4. Judicial decision is binding on legislators ix. Legislatures: weak form judicial review 5. Legislators can overturn judicial decisions through normal procedures h. Under BNA Act x. Dominion: strong form 6. Judiciary has general power to review and invalidate legislation as contrary to BNA act c. UK statute 7. CDN parliament has (limited) power to directly amend the bNA act 8. No bill of rights as part of the BNA ACT xi. Dominion: weak form 9. Can pass and amend statutory bills of rights d. Bill of rights \--\> federal e. Quebec charter of rights and freedoms i. Under CA 1982: xii. Supremacy clause s52 10. 1\) constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is of no force or effect f. Includes 1982 act g. Amendments shall be made in accordance with the authority contained in the Constitution of Canada 11. Judicial interpretation h. Supremacy clause as the textual basis for strong form judicial review i. Charter is now part of the constitution of Canada ii. Judiciary interprets as last word on defining rights i. SFJR is default xiii. Entrenched bill of rights 12. Part 1: charter of rights and freedoms 13. Amendable using 7/50 rule 14. Binds both Parliament and legislative assemblies 15. Includes s33, the Notwithstanding clause j. Parliament or legislature of any province shall declare that the Act or provision thereof shall operate notwithstanding a provision included in section 2 7-15 k. An act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this charter referred in the declaration l. A declaration made under subsection 1 shall cease to have effect five years after it comes into force or on such earlier date m. Parliament may re-enact a declaration made under subsection 1 n. Subsection 3 applies in respect of a re-enactment made under subsection 4 xiv. Statutory bill of rights is still in force NWC and QC 1. There is concern for strong form judicial review \--\> juristocracy \--\> the government of judges 2. Concern about weak form judicial review -\> tyranny of the majority 3. S33 a. Inside the Charter of Rights and Freedoms i. NWC = constitutional law ii. Provision within the charter of rights and freedoms b. Legislatures do not have to use it iii. Unlike disallowance power +-----------------------------------+-----------------------------------+ | Within reach | Without reach | +===================================+===================================+ | Freedom on conscience and | A citizen's right to vote for | | religion | Parliament (s3) | | | | | Freedom of peaceful assembly (s2) | A right to move and take up | | | residence in any of province (s6) | | Right to life, liberty, and | | | security | Minority language educational | | | rights | | Right to not be arbitrarily | | | detained or imprisoned | | | | | | Right to not be discriminated | | | against on the basis of race, | | | national origin, color | | +-----------------------------------+-----------------------------------+ c. Uses iv. Expand rights against conservative courts v. Limit rights against liberal courts vi. Block litigation of rights 1. Pre-emptive use of NWC vii. Quebec 2. Systematically 1982-1985 as protest against CA1982 3. 18 other times up until 2015 a. Subsidies for agricultural workers b. Language law 4. Since 2015 c. Bill 21 - Laïcité (Religious Symbols d. Bill 96 -- Amendment to language law viii. Sask 1986 (back-to-work) ix. Alberta 2004 (same-sex marriage) x. Sask 2018 (religious school funding) xi. Ontario (electoral finance) xii. Ontario (back-to-work) xiii. Sask 2024 (pronouns in school) 4. Omnibus use d. 1981 re: patriation xiv. Levesque does not agree to patriation xv. 9 other provinces do 5. Renewal of NWC re Bill 21 e. Justification of CAQ government xvi. Bill 21 has brought social peace xvii. Religious neutrality of the state as progressive xviii. Litigation on state secularism as an injustice to the Quebec nation xix. We do not want judges to tell us how to live in peace in QC xx. Protect parliamentary sovereignty Senate reforms 1. Bill C-7: a. Senate reform act i. If a province has enacted legislation the PM in recommending Senate nominees to the GG must consider names from the most current list of Senate nominees selected for that province b. Senate term limits (9 years) ii. A person who was summoned to the Senate but before the coming into force of this section remains a senator for one term, which expires nine years after the coming into force of this section c. Consultative elections iii. Important that CA's representative institutions including the Senate continue to evolve in accordance to modern democracy iv. Elections to create a list of nominees 1. PM has a duty to consider 2. No change to a. Powers of senate b. Powers of GG c. Summoning of senators v. Not formal amendment vi. Stephen Harper 3. Democratically legitimate Senate but still appointed d. Conventions may emerge or change i. PM always advises the GG to summon the person chosen by the electorate ii. Change the convention of Senate deference to the HoC vii. SCC 4. Cannot do this because it changes the architecture e. Part V rules apply f. 7/50 rule 2. Architecture d. Consultative elections = more democratically legitimate Senate as so the PM will be bound e. Senate will be less: viii. Deferential ix. Sober thought x. Will use its legal powers f. Break the architecture xi. Changes of this magnitude are to be understood as formal xii. Part 5 procedures apply 3. Re: secession g. Introduction of architecture xiii. Architecture = structure + vision + coherence h. 4 interlocking principles i. Harmony between principles 4. Re: senate reform j. Conventions allow for the architecture to be altered xiv. De facto = de jure xv. De jure = Part V, 1982 k. C-7 is actually creating an elected Senate this will break architecture because of democracy l. IMO, a case of incoherent judicial reasoning \--\> demonstrates the dangers of an underlying principles approach by SCC