The Judiciary Malcolmson

1
The JudiciaryMalcolmson Myers, Ch. 8

• Forward planning
• Nine (9!) classes left
• In which we will cover
• The Judiciary Ch. 8 (2-3 lectures)
• Federalism Ch. 4 (3-4 lectures)
• 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

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The JudiciaryMalcolmson Myers, Ch. 8

• Judiciary the branch of government charged with
  interpreting the law
• Functions of judiciary
• Adjudicating private disputes
• Adjudicating cases in public law
• Judicial review of the constitution
• Commissions of Inquiry

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The JudiciaryMalcolmson 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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The JudiciaryMalcolmson Myers, Ch. 8

• Adjudicating cases in public law
• Public law regulates government-society relations
• Criminal Law
• Administrative Law
• Regulatory legislation not involving criminality
• Workers Compensation
• Immigration Board
• CRTC

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The JudiciaryMalcolmson Myers, Ch. 8

• Judicial Review of Constitution
• Interpret constitution
• Federal-provincial disputes limits of S. 91 92
• Violations of Charter
• Not done on Courts initiative!
• Private litigants
• Reference by government actor
• Abstract judicial review
• Common in Europe, not done in US

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The JudiciaryMalcolmson 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 MacLeans, Western Standard
  etc.
• Does this reflect Free speech? Growing natural
  rights culture? Interpretations of due process?

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The JudiciaryMalcolmson 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 govt
• Judges not required, but
• Perceived impartiality desirable
• Judges are careful and trained to observe due
  process
• Policy competence?

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The JudiciaryMalcolmson Myers, Ch. 8

• Fundamental Principles of the judiciary
• Impartiality
• Judicial Independence
• Equality before the Law

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The JudiciaryMalcolmson Myers, Ch. 8

• Impartiality
• Judges to be free from prejudice for or against
  parties appearing before them.
• Impartial ? fair or just!
• Right of appeal
• Errors of laws or procedure not of fact
• Adversarial process
• Very different from European prosecutorial system
• Political Neutrality

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The JudiciaryMalcolmson 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/1985/1985rcs2-67
  3/1985rcs2-673.html

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The JudiciaryMalcolmson Myers, Ch. 8

• 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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The JudiciaryMalcolmson 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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The JudiciaryMalcolmson Myers, Ch. 8

• Organization of Canadian Courts
• Hierarchical Integrated Structure
• Inferior (lower) Courts
• Minor matters
• Superior Courts
• Major matters, e.g., criminal matters
• Appeals Courts
• Supreme Courts
• Court of last appeal

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The JudiciaryMalcolmson Myers, Ch. 8
Canadas 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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The JudiciaryMalcolmson Myers, Ch. 8
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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The JudiciaryMalcolmson Myers, Ch. 8

• 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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The JudiciaryMalcolmson 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/inde
  x.html

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The JudiciaryMalcolmson Myers, Ch. 8

• 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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The JudiciaryMalcolmson Myers, Ch. 8

• 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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The JudiciaryMalcolmson Myers, Ch. 8

• 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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The JudiciaryMalcolmson Myers, Ch. 8

• Source Supreme Court of Canada
  http//www.scc-csc.gc.ca/

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The JudiciaryMalcolmson Myers, Ch. 8

• 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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The JudiciaryMalcolmson Myers, Ch. 8

• 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
• Madam Justice Beverley Mclaughlin (BC) 1989
  (Mulroney)
• Mr. Justice William Ian Corneil Binnie -1998
  (Chrétien)
• Mr. Justice Louis LeBel (PQ) 2000 (Chrétien)
• Madam Justice Marie Deschamps (PQ) 2002
  (Chrétien)
• Mr. Justice Morris J. Fish (PQ) 2003 (Chrétien)
• Madam Justice Rosalie Silberman Abella (ON)
  2004 (Martin)
• Madam Justice Louise Charron (ON) 2004 (Martin)
• Mr. Justice Marshall Rothstein (MB) 2006
  (Harper)
• Vacant Mr. Justice Michel Bastarache (NB)
  retired

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The JudiciaryMalcolmson Myers, Ch. 8

• 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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The JudiciaryMalcolmson Myers, Ch. 8

• Prime Minister Harpers 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 nations
  highest court.

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The JudiciaryMalcolmson Myers, Ch. 8

• The Rothstein Appointment
• Harper announces nominee for vacancy (Marshall
  Rothstein) new process
• Advisory committee makes short list
• PM selects nominee from short list
• Nominee faces all-party 12 MP committee
• Committee offers no report to PM

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The JudiciaryMalcolmson 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
• 3 rounds of questions, 16 min per MP
• No political questions
• Is this temporary or a precedent?