POLI 101 Ch. 8-The Judiciary

What ways do we promote impartiality?

-Appealing a decision to a higher court promotes impartiality. Judges know their decisions may be scrutinized, incentivizing them to rule fairly, and parties who think they've been victims of judicial bias get a second hearing. -Adversariality -Political neutrality

Common Law

-Cases are decided by PRECEDENT, or how a judge has previously ruled on a topic. -If no precedent exists, judges may decide based on the underlying principle of the law in question. -based on STARE DECISIS, standing by what is decided, meaning judges are required to respect precedent of courts superior to their own(supreme court vs. circuit court).

Court docket and panels

-Court hears ~80 cases yearly. Some cases have automatic right to a hearing, but the court generally controls its own docket. At least two members of a three-judge panel must agree to grant a hearing. >A case is generally heard if a lower level court made a serious error, or if an important constitutional question is being raised. -Odd-number panels usually hear cases to avoid ties. The number can range from 5 to 9, but 7 is the usual. Justices retire to discuss after a case is represented, and it's customary to have justices speak in reverse order of seniority so newer justices won't match their opinions to the older.

Compositional conventions

>At least 3 must come from Quebec to ensure they are familiar with Quebec's Civil law. >It's a convention that one judge is always from Atlantic Canada, 2 from the Western provinces, and the last 3 are from Ontario. >It also may be a convention to appoint female and bilingual justices.

How do we keep the regime from influencing the judiciary?

>Judges serve until the age of 75 unless they are physically or mentally unable to perform their duties. >Section 100 of CA 1867 states that salaries are fixed by law. >Judges control the administrations and affairs of the courts, like case scheduling. Not necessarily entrenched, but generally true of law. This makes sure the regime can't fire judges, dock their pay, or arrange cases in a manner that is politically convenient for them

Political independence

Tribunals must be INDEPENDENT, following a set of structures and rules that help them live up to impartiality. They must be independent of the regime, since it will often be involved in major cases

Federalism and the Courts

The US had dual systems of federal and regional courts, but our system is integrated. Provinces can create and run courts as they need, but the federal government controls all criminal law and appoints all criminal judges

Charter and politicization

The charter calls for politicization via putting forth explicit rights, which are political in nature.

Supreme Court of Canada

the highest appeals court in Canada; also deals with constitutional questions referred to it by the federal government. Originally created by an organic statute until it was entrenched in CA 1982

impartiality

the judge cannot have prejudice towards or against a party they intend to rule on.

Private Law

the rules and regulations parties agree to as part of their contractual relationships

Judicial restraint

the tendency for judges to avoid altering law unless something is clearly violating the constitution

adversarial system

trial procedures designed to resolve conflict through the clash of opposing sides, moderated by a neutral, passive judge who applies the law

inferior courts

Lower courts that deal with less important matters. Provincially created and nominated

Criminal Law

Codes of behavior related to the protection of property and individual safety

Judicial Committee of the Privy Council

Council of British Lords who interpreted the British North America Act for Canada until the establishment of Canadian Supreme Court. Unanimously disbanded.

Court Hierarchy

Courts are definitively ranked, and a higher court can overrule a lower one. There are inferior and superior courts, where superior court judges handle more important cases. Courts of appeals hear cases from both, and the top is the supreme court.

Superior courts

Courts that try federal crimes and other important matters(LOOK UP MORE DETAILS ON THIS) provincially created, federally nominated to ensure a universal country-wide standard of criminal conduct.

Roles of the judiciary:Adjudicating public law

Decide public law cases like criminal trials

Roles of the judiciary:Adjudicating legal disputes

Decides disputes between private parties, like property rights, contracts, torts. This sort of law is in the hands of the provinces

Fundamental judicial principles

Impartiality, independence and equality before the law

Issues with legislative review of nominees

Judges may be reticent to discuss their political affiliations. >Judges may become more political in order to curry favour with parliament >The American system needs both the senate and President to agree, but in Canada, parliament will already agree with the exec. except for edge cases

Judicial advisory committees

Organizations that provide a pool of recommended candidates to be placed in judgeships

political neutrality

Principle that career employees in government need to keep from being identified with any particular political party. A judge's decisions won't be respected if they're seen to have some partisan lean

Legal structures across provinces

Quebec has its own private law, rooted in the civil code. This was adopted by Quebec while a French colony and was guaranteed by the British Gov't. other colonies embodied private law in "common law", judge made law from English judges.

Administrative Law

Regulatory legislation that doesn't involve the application of criminal sanctions. Traffic legislation, pensions....

The role of the judiciary across time

The fathers of confederation viewed the judiciary as unimportant, but it's powers have increased over time.

Appointments to the JAC

The minister of justice appoints 3 members to each JAC, and picks another 4 based on the recommendations of organizations like the bar association

Roles of the judiciary:Judicial review

The power of the courts to declare laws unconstitutional

Equality before the law

Theory that the law should treat all fairly without advantage, regardless of social position, economic class, creed, or race.

Reforming the supreme court

Wants the Supreme Court to rule on moral, or political, rather than legal grounds. Due to supreme court's influence, wants the appointments process to be handled differently. Some have called for legislative examination of nominees

Challenges to equality before the law

Your ability to mount a legal defence is often contingent on your financial assets(hiring a good lawyer)

Roles of the judiciary: Judicial inquiries

a formal legal investigation conducted into a matter of public concern by a judge, appointed by the government.

Section 101 Courts

federally created courts with federally appointed judges, har cases in specialized areas of federal law

Public Law

law dealing with the relationship between government and individuals

Judicial activism

pushing the process of judicial review further to bring about political changes the judge views as favourable

Reference Procedure

the federal government calls on the supreme court to give opinions on the constitutionality of a decision