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The Judiciary Notes

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This is an extract of our The Judiciary document, which we sell as part of our Public Law Notes collection written by the top tier of University Of Ottawa students.

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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.) o Some are created by statute (Ex. Tax Court, Military Service Court) o They are created by the Feds via the Supreme Court of Canada Act and s. 101 of CA 1867 o 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

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