The Courts
Role
Operation
Canadian Judicial System
Greene - Issues in the Court System
System of Checks and Balances
Indifferent Review and adjudication
Settlling disputes impartially
Clarifying laws
Interpretation
Judges oversee courts
apointed (not elected) from the ranks of experienced lawyers (typically 10 years)
Court proceedings are adversarial, moderated by the judge
Two sides presenting and examining evidence, with a view to revealing the facts for consideration by the judge
Prosecution and defence, litigants in a civil proceeding
In civil and some criminal proceedings, judges may be assisted by a citizen (non-lawyers) jury
Court proceedings are open to the public and a public record is kept for reference
In Canada, proceedings generally are not broadcast
Juries -
Right to a trial by a jury of one's peers is a cornerstone of the justice system and one of its oldest institutions
Support the judge, protect individual rights, involve the community in the administration of justice, civic responsibility (“jury duty”)
Juries are used in three types of legal proceedings, usually at the option of the defendant
Criminal cases – jury of 12 – decide on basis of facts of the case
Civil litigation – jury of 6 – decide based on facts, award damages
Coroner’s inquest – jury of 5 – determine facts, recommend
Jurors must be Canadian citizens, 18 years or older and residents of the province
Names of potential jurors selected at random from voters’ list
In Ontario lawyers and full-time students, others, are exempted
Courts preside over an integrated legal system
Different branches of the law are administered by the same law enforcement and judicial system
Courts are unified, linked to Canadian federalism
Adjudicate laws passed by different levels of government
Federal – criminal law, various non-criminal statutes and offenses
Provincial – most private law
Arbitrate disputes between levels of government
Both federal and provincial governments establish and administer courts, appoint judges, prosecute offences
Issues of coordination
Supreme Court
Appeal Courts
Trial Courts
Appointed by either federal (Superior Court) or provincial governments
Federal government also has separate trial courts in the areas of administrative and military law
Generally administered by the provinces
Separate appeal courts for administrative and military law
All appeal judges are federally appointed
Appeal court in each province for decisions by both federally and provincially appointed judges
Issues
Charter of Rights and Freedoms
Widely seen as impartial and competent
Appointment
Overload and delays in court proceedings, accessibility, cost
Governor in Council instrument opens way to patronage
Has been balanced by consultations with legal community
Some Parliamentary vetting of Supreme Court appointments
Judicial accountability and discipline
Expertise and education
Other side of the coin from judicial independence
Canadian Judicial Council provides some oversight
Dealing with complex issues, limited training in mediation
Constitutionally entrenches principles of natural justice (duty to be fair)
Seen as strengthening the individual in the face of the State
Has led to systematic “Charter-proofing” of legislation and government programs and procedures
broadened the reach of the court
Notwithstanding these developments, Charter-based judicial review continues to be limited
Relatively small number of cases, low success rate, high cost
Administrative Law
A significant component of administrative law relates to administrative tribunals and regulatory agencies
Arm’s-length bodies under broad ministerial responsibility
No single model but typically a combination of three roles
Adjudicative – decisions on cases
Policy making, second-level regulations,licensing
Complaints – review administrative actions
Judicial review
the role the courts play depends on the nature of the institutions they’re reviewing
In the context of judicial review, the ability of the courts to grant relief from administrative actions, and the nature of relief, is shaped by the category of function under review:
Judicial functions – no policy discretion, wide scope for judicial review
Quasi-judicial functions – limited policy discretion, some scope for judicial review
Administrative functions – greater policy discretion, judicial role primarily limited to procedural fairness, errors in law and jurisdiction
Justice Portfolio in Cabinet
Minister of Justice and Attorney General provides a key link between the legal and the political systems
Department of Justice
Legal policy
Legislative drafting
Litigation on behalf of the federal government
Legal advisory services (departmental units)
Regional offices