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					The Judiciary
Malcolmson & Myers, Ch. 8

 •     Forward planning:

     –    Nine (9!) classes left
     –    In which we will cover:
         1.   The Judiciary Ch. 8 (2-3 lectures)
         2.   Federalism Ch. 4 (3-4 lectures)
         3.   Overview of course & discussion of exam (1 lecture)


     –    Final exam: 17 December 2008 at Buchanan A106
         •    Academic hardship – check
         •    Learning accommodations forms to me before 5 December
         •    Will discuss structure of exam before end of term
The Judiciary
Malcolmson & Myers, Ch. 8


 •     Judiciary: the branch of government charged with
       interpreting the law

 •     Functions of judiciary:

     1.   Adjudicating private disputes

     1.   Adjudicating cases in public law

     1.   Judicial review of the constitution

     2.   Commissions of Inquiry
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Malcolmson & Myers, Ch. 8


 Adjudicating private disputes:

 •     Collective action problems & credible commitment
 •     Need for 3rd party enforcement


 •     Private law a provincial matter
     –    Quebec: Civil Code (Napoleonic Code)
     –    ROC: Common Law
         •   Precedent
         •   Stare decisis (“It stands decided”)
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 Adjudicating cases in public law:

 •     Public law regulates government-society relations
     1.   Criminal Law

     2.   Administrative Law

          •   Regulatory legislation not involving criminality

              – Workers’ Compensation

              – Immigration Board

              – CRTC
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Malcolmson & Myers, Ch. 8



 Judicial Review of Constitution:
 •       Interpret constitution
     –      Federal-provincial disputes: limits of S. 91 & 92
     –      Violations of Charter


 •       Not done on Court’s initiative!
     –      Private litigants
     –      Reference by government actor
           •    Abstract judicial review
           •    Common in Europe, not done in US
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Malcolmson & Myers, Ch. 8



 Recent issues:


 •     Constitution & Charter govern state-citizen relationship

 •     Private disputes increasingly channeled to non- or quasi-
       judicial arenas for reasons of cost, delay, complexity

     –    Human rights commissions created in 1970s, but recent
          controversy: MacLean’s, Western Standard etc.

     –    Does this reflect: Free speech? Growing natural rights
          culture? Interpretations of due process?
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Malcolmson & Myers, Ch. 8

 Commissions of Inquiry

 •       Used to examine pressing policy issues… or to delay
         tackling them.
     –      Dubin Inquiry: drugs in sports
     –      Gomery Inquiry: financial accountability in gov’t




 •       Judges not required, but…
     –      Perceived impartiality desirable
     –      Judges are careful and trained to observe due process
     –      Policy competence?
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 Fundamental Principles of the judiciary
 1.    Impartiality

 2.    Judicial Independence

 3.    Equality before the Law
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 Impartiality

 •        Judges to be free from prejudice for or against parties
          appearing before them.

 •        Impartial  fair or just!

 1.       Right of appeal
      –      Errors of laws or procedure not of fact

 2.       Adversarial process
      –      Very different from European prosecutorial system

 3.       Political Neutrality
The Judiciary
Malcolmson & Myers, Ch. 8

 Impartiality and Judicial Independence:

 •       Valente vs. Queen (1985): establishes judicial independence in Canadian
         context & defines impartiality vs independence:

     –      Impartiality: state of mind of the tribunal in relation to the issues and the
            parties in a particular case.

     –      Independence: involves both individual and institutional relationships:

            •   the individual independence of a judge as reflected in such matters as i)
                security of tenure and ii) security of salary

            •   the institutional independence of the court as reflected in its institutional
                or administrative relationships to the executive and legislative branches
                of government, e.g., Courts’ control of its own administration (not
                entrenched)

         http://csc.lexum.umontreal.ca/en/1985/1985rcs2-673/1985rcs2-673.html
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 Impartiality and Judicial Independence:
 •       The “Judges Affair” under Trudeau Government
     –     Ministers contacted judges during proceedings to
           •   hint at international implications of trial
           •   ask when decision would be forthcoming
           •   intercede for a colleague on trial

     –     Negative public reaction
     –     Convention, initiated & enforced by Trudeau, that ministers not to
           contact judges during proceedings under pain of resignation (e.g.,
           David Collenette (MoD) in Chretien Govt)
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Malcolmson & Myers, Ch. 8


 Equality before the Law

 •       Law treats all equally

     –      Due process, i.e., equality is assessed on basis of procedure not
            outcome


 •       Cost of litigation & defence
     –      Access to legal expertise
     –      Quality of representation
     –      War of attrition
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Malcolmson & Myers, Ch. 8

 Organization of Canadian Courts

 Hierarchical & Integrated Structure


     1.   Inferior (lower) Courts
          •   Minor matters

     2. Superior Courts
          •   Major matters, e.g., criminal matters

     3.   Appeals Courts
     4. Supreme Courts
          •   Court of last appeal
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 Canada’s Hierarchical Court Structure

                             Supreme Court



                             Court of Appeal



                                                 Superior Courts
                                                (Criminal Matters)
              Inferior Courts
  (Small civil matters, e.g., landlord-tenant
                disputes, etc.)
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U.S. Dual Court System

                    Supreme Court of US


    Federal Appellate Courts       State Supreme Courts



     Federal District Courts       State Appellate Courts



                                    State Lower Courts
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 Integration of Canadian Courts

 •       S. 92.14 gives Provinces control over “Administration of
         Justice”
     –      Inferior (S. 92 courts: property, civil matter, drug treatment, etc.)
     –      Superior (S. 96 courts: serious criminal and civil cases, including
            divorce)
     –      Superior courts run by province, staffed by federal government


 •       S. 101 courts, e.g., Federal Court of Canada
     –      legal disputes arising in the federal domain, e.g., claims against
            federal government, civil suits in federally-regulated areas (e.g.,
            telecommunications).
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Malcolmson & Myers, Ch. 8



 The Supreme Court
 •     Nature of work and workload

 •     Current Membership

 •     Appointment process

 Sources
 •     Supreme Court of Canada: http://www.scc-csc.gc.ca/
 •     Judgements: http://scc.lexum.umontreal.ca/en/index.html
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 •     Application for leave: permission from the Supreme Court to appeal the
       decision of a lower court
 •     Decided by a panel of 3 justices
 •     Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/
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   •    Notice of appeal as of right: certain cases do not require leave to be appealed
        to the Supreme Court
   •    Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/
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   •    Many applications for leave concern matters that have little direct effect on
        the average citizen
   •    Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/
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   Source: Supreme Court of Canada: http://www.scc-csc.gc.ca/
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 How the Supreme Court Decides Cases?


     –    Leave sought and granted for about 10-20% cases
     –    Heard by panels of 5 – 9 justices
     –    Two types of decisions:
         •   Unanimous
         •   Majority
             – dissenting opinion
             – concurring opinion
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 Supreme Court of Canada
 Current Membership: http://www.scc-csc.gc.ca/court-cour/ju/cju-jua-eng.asp
 •        Nine justices
      –       3 from Quebec
 •        Currently eight justices:
 1.       Madam Justice Beverley Mclaughlin (BC) – 1989 (Mulroney)
 2.       Mr. Justice William Ian Corneil Binnie -1998 (Chrétien)
 3.       Mr. Justice Louis LeBel (PQ) – 2000 (Chrétien)
 4.       Madam Justice Marie Deschamps (PQ) – 2002 (Chrétien)
 5.       Mr. Justice Morris J. Fish (PQ) – 2003 (Chrétien)
 6.       Madam Justice Rosalie Silberman Abella (ON) – 2004 (Martin)
 7.       Madam Justice Louise Charron (ON) – 2004 (Martin)
 8.       Mr. Justice Marshall Rothstein (MB) – 2006 (Harper)
 9.       Vacant – Mr. Justice Michel Bastarache (NB) retired
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 Issues in the Appointment Process

 •       Prerogative of the Crown (on advice)
 •       Politicizing the Judiciary
 •       Need to Balance:
     –      Accountability
     –      “Representativeness”
     –      Expertise
     –      Impartiality

 •       Should appointments be non-partisan?
 •       Provincial input or cross-party hearings a la US Senate?
 •       Should judges be elected?
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Malcolmson & Myers, Ch. 8

 Prime Minister Harper’s Position:

       “The Supreme Court is a vital institution that belongs to all
       Canadians. I believe the public deserves to know more
       about the individuals appointed to serve there, and the
       method by which they are appointed. A public hearing is an
       unprecedented step in this direction. It will bring more
       openness and accountability to the process of appointing
       people to our nation’s highest court.”
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Malcolmson & Myers, Ch. 8

 The Rothstein Appointment

 •     Harper announces nominee for vacancy (Marshall Rothstein)
       & new process:

     1.   Advisory committee makes short list

     2.   PM selects nominee from short list

     3.   Nominee faces all-party 12 MP committee

     4.   Committee offers no report to PM
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Malcolmson & Myers, Ch. 8

 The Appointment Process under Harper


 •     Not a parliamentary committee but comprised of MPs.

 •     Rules of procedure agreed to parties in House of Commons.

 •     Questioning of appointee
         a.   3 rounds of questions, 16 min per MP

         b.   No political questions

 •     Is this temporary or a precedent?

				
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