The Judiciary - Public Law

PART IV: THE JUDICIARY

The principle of justiciability militates that courts ought not to decide the case, which comes from the separation of powers. The courts have held that implications of constitutional conventions are not justiciable.

The courts were created through s. 92(14) of the CA 1867. The administration of justice falls to the provinces’ jurisdiction. The provinces also house the superior courts that have jurisdiction to hear any matters before them unless there’s a statute that creates jurisdiction with another court on that particular issue. The government does not have the power to usurp the inherent jurisdiction of the courts. Courts of inherent jurisdiction, those that are created by s. 96 of the constitution, can dismiss cases on procedural processes depending on how the legislation has empowered them to do this (ex. Courts of Appeal and Provincial Courts (statutory too)). Provinces and the federal government can create courts by statute (ex. Federal Court Act).

STRUCTURE OF THE CANADIAN COURT SYSTEM

1. Provincial/territorial (majority)

• Criminal offences, family, traffic, YCJA, small claims, etc.

2. Provincial/Territorial Superior Courts

• Includes Court of Queen’s Bench

• Hold inherent jurisdictions: can hear any cases except for those limited to other courts (s. 96)

• Serious crimes, appeals, divorce, etc.

• Judges are appointed and paid by the federal government (s. 96), although run by the provinces – strong source of patronage for the federal government

2a) Federal Courts are at the same level. They also deal with matters concerning federal statutes (Ex. Citizenship appeals, copyright, competition, etc.)

• Some are created by statute (Ex. Tax Court, Military Service Court)

• They are created by the Feds via the Supreme Court of Canada Act and s. 101 of CA 1867

• Parliament may create any other courts with jurisdiction in federal law under s. 101 (ex. Federal Courts and Federal Courts of Appeal)

3. Provincial/territorial courts of appeal

• Usually sit on panels of 3 and can heal references re: constitutional questions

• Technically statutory, but have been interpreted to be courts of inherent jurisdiction (flows from superior courts)

4. Supreme Court

• Jurisdiction over all matters (Created via SCC Act)

• Applications for leave submitted for approval

• Technically statutory, but have been interpreted to be those of inherent jurisdiction

The main power for creation of a court lies with the provinces under s. 92(14). Provinces have created the provincial courts, superior courts, the courts of appeal and inferior courts. Inferior courts are those of provincial division, the Court of Justice, etc.

Every court outside of those with inherent jurisdiction is a statutory court. If remedial powers are not set out in the statutes, the court cannot decide on matters outside of the scope of the statute.

Claims from administrative courts are appealed to federal courts if federal in nature, or superior courts if they have been heard provincially. Courts tend to give more deference to the administrative courts

There are 2 limits to the creation of courts:

1. Cannot infringe on s. 96 of the BNA in terms of the powers that the courts have

2. If a statutory court is being created, it must be in line with the authorities listed in the constitution

Special Approaches to Some Courts:

1. Nunavut Court of Justice (has power of superior and territorial court)

2. Unified Family Courts: non-adversarial techniques; supportive for family law where services provided through organizations

3. Sentencing circle: meeting with judge, prosecutor, defence, community etc. to determine how to achieve restorative justice.

Chief Justice McLachlin on Respecting Democratic Roles (A Response to the Criticism on the Role of the Courts)

Critique 1: The courts should not be going against the will of democratic officials

• Constitution invites/requires the courts to review political questions

Critique 2: Judges are pursuing political agendas in their decision-making

• Serious allegation; there are appellate mechanisms and if they were acting a certain way, they’d be overturned by higher courts

Critique 3: Courts are acting beyond scope of lawmakers; their role is just to apply the law

• There are principles in the Charter and the Constitution that require interpretation

• Role of these documents invites us to interpret

Critique 4: Judges are deciding things that should only be decided by elected representatives

• Judges pay deference to the politicians in terms of which issues they can or cannot decide

Judicial Independence

1. Financial

Governments can reduce, increase or freeze salaries (judges don’t have a constitutional right to a particular salary) but there are limits to freezes, reductions, etc. The executive cannot negotiate directly with judiciary; instead it has been recommended that an arms length body to deal with review of reduction, freeze, etc (even though their deliberations are not final). Salaries cannot fall beneath adequate minimum guaranteed by judicial independence

2. Security of Tenure

Individual security of tenure means that judges cannot be dismissed by the executive before age of retirement except for misconduct or disability. There has to be a basis on which a removal is grounded and there should be a judicial inquiry. There is an arms length process for discipline/complaints by way of the Canadian Judicial Council which flows from the Judges Act.

In 1971, the Judges Act created the CJC and gives that body the power to inquire into conduct of judges (created by federal statute and can assess the performance of federally appointed judges).

If removal is determined by CJC, they send report to Min of Justice who tables a motion in the House to remove a judge (nearly every judge resigns before this stage. For provincial judges, there are similar processes through local councils. If the CJC feels case is serious, it can strike Inquiry Committee.

3. Administration of courts

Court decides sitting dates, staff, etc. These powers fall under Supreme Court Act s. 97 and Federal Courts Act s. 15 and 16

• Note: Canada v. Tabias case regarding a private meeting between a senior Justice Canada official and the Chief Justice of the SCC (opposing counsel was not there)

  1. Senior official from DOJ was complaining about procedural aspect of the case

  2. After meeting, the judge is more available and preliminary matters are heard more quickly

• Ex. Consider VikiLeaks under this right of independence where Toews got an ex parte order from the court granting him access to see who wanted his files

ABOUT CJC

• Chief Justice chairs CJC, and there are 38 other judges from federal courts and higher levels of provincial courts

• Work in committees to work around issues of justice

• Job is to investigate conduct, not decisions of judges – powers allotted through Judges Act

• Any member of the public can make a complaint to the CJC

• Cannot make any investigations re: justice system, decisions, order re-trial, etc. – only looks into behaviour

• Does not have jurisdiction over lower level provincial courts – complaints need to be made to judicial councils in the provinces

• Principles of conduct apply in and out of the courtroom

• Members can look into biases on race, gender, religion, etc.

• Complaints are made in writing

• AG or Min of Justice submits inquiry and it goes straight to that process rather than a review (Inquiry Committee)

• No authority to investigate lawyers or court staff

Steps

• Receipt of complaint; screening for conductibility

• Written submission to chief justice of province and judge for comments

• If complaint not immediately resolved, it goes to a review panel with 5 judges

• Review panel determines if matter is serious enough to go to Judicial Inquiry

• If yes, they hand it, over, if not they deal with it

• Has never made it to parliament after inquiry because judges will generally resign beforehand

Report of the Judicial Council to the Minister of Justice re: Justice Jean Bienvenue of SC of Quebec (R v Theberge)

Facts: Murder trial after which the accused complained lacked sensitivity towards communities and individuals offended by remarks. The judge admonished the jury for not convicting on first-degree charges and allegedly made sexist comments about the female sex, and to a reporter.

Reasons (Majority): The argument was that a reasonably informed person would have found this behavior to undermine public confidence. Allegation that s. 99 of CA 1867 and 65 of Judges Act was breached. Bienvenue should be incapacitated because he does not intend to change his behavior.

Minority Reasons (Bayda CJ): Do no accept the basis of the findings for removal. The comments Bienvenue made should not be disregarded. His commend on sentencing for women concerning “women ascending to the scales of virtue and being the most noble of the two sexes) was an extra judicial remark, rather than a remark made impacting the ruling of the case. Judges are permitted to say things that society may not accept. Judges have opinions and they should not be dispose of their philosophical, societal or world beliefs. There was no evidence that a predilection had no capacity on ability to make decisions.

Result: Bienvenue resigned.

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Individual Independence: Things that could affect a particular judge’s point of view. There is an evidentiary challenge associated with proving bias.

• The courts have used the reasonable apprehension of bias structure to determine bias. A PL must demonstrate that a reasonable person looking at the situation objectively would apprehend that there was a failure to be impartial.

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