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Flashcards in Ch. 2 The structure of Canadian Courts Deck (19):
1

Marshal case highlights several fundamental features of Canada’s judicial system (5)

1) Federal but unified court system. By federal, meaning that the judicial system reflects the official decisions of government authority in Canada between two levels, the provinces and the national (or federal) government. Each province in Canada (as well as territories) has its own system of courts and a governing body called the federal courts, including the Supreme Courts of Canada. By unified, we mean that features of Canada’s judicial system operate to break down the strict division of federalism. Two features are particular important
a) Provincial courts can rule on federal laws, as seen in Marshall (fishing regulations) and of course can rule on provincial laws.
b) The Supreme Court of Canada has unlimited jurisdiction over both provincial and federal law.
2) Hierarchies of courts. Canada’s courts are arranged in a system of increasing authority, such that a court higher up the ladder has the power to review the ruling if the lower courts are bound in the decision of the higher courts. Trial courts, where virtually all cases begin, occupy the lowest level of the hierarchy, and there are several levels of courts of appeal, also called appellate courts; the number of levels depends on the issue. Cases therefore proceed on a predetermined path through the levels of the judicial system.
3) Primarily different but overlapping functions among different courts. Recall the distinction between disputes of fact and disputes of law. The first requires courts to engage in fact-finding. Disputes of the law, however require judges to engage in legal interpretation, that is clarifying or defining the “rules of the game for law enforcement officials, other judges, and the public. Fact-finding is the primary responsibility of trial courts – it is typical, for example, for the appeal court simply to aaccept the trials court;s factual finding.
Legal interpretation, by contrast, is the main role of appeal courts, in two senses. First, appeal courts are expected to correct “errors of law” committed by lower-court judges. Seconf, even if the lower-court judge has not TECHNICALLY made an erro, appellate judges may re-interoret the law on the basis of new information or changes in society or because they disagree philosophically with the lower court.

4) Multiple legal systems and bodies of law. A natural consequence of federalism is that each provincial and national unit of government creates its own body of law. We also make a distinction between statues and regulations. Statues are laws passed by the legislative branch, such as Parliament or a provincial legislature. Regulations are rules created by the executive branch, such as government departments or agencies (Fisheries and Ocean for example), which are designed to clarify and implement statues. In addition, Canada has a body of constitutional law, which establishes the basic features of our legal and political system, including the federal division of power itself, the right of citizens and other residents of Canada, the unique rights of the FN. A case can involve more than one of these bodies of law at the same time, federal/provincial.
5) High degree of Judicial Discretion in a System. The Canadian legal system is designed to give judges control over a great number of issues that come before them. . Judges have the flexibility regarding legal interpretation, sentencing, granting leave to appeal (docket control), and even determine how many judges on a court of appeal will hear a case.

2

Marshal case highlights several fundamental features of Canada’s judicial system (5) - Federal but unified court system.

By federal, meaning that the judicial system reflects the official decisions of government authority in Canada between two levels, the provinces and the national (or federal) government. Each province in Canada (as well as territories) has its own system of courts and a governing body called the federal courts, including the Supreme Courts of Canada. By unified, we mean that features of Canada’s judicial system operate to break down the strict division of federalism. Two features are particular important

3

Marshal case highlights several fundamental features of Canada’s judicial system (5) - Hierarchies of courts.

Canada’s courts are arranged in a system of increasing authority, such that a court higher up the ladder has the power to review the ruling if the lower courts are bound in the decision of the higher courts. Trial courts, where virtually all cases begin, occupy the lowest level of the hierarchy, and there are several levels of courts of appeal, also called appellate courts; the number of levels depends on the issue. Cases therefore proceed on a predetermined path through the levels of the judicial system.

4

Marshal case highlights several fundamental features of Canada’s judicial system (5) - Primarily different but overlapping functions among different courts.

Recall the distinction between disputes of fact and disputes of law. The first requires courts to engage in fact-finding. Disputes of the law, however require judges to engage in legal interpretation, that is clarifying or defining the “rules of the game for law enforcement officials, other judges, and the public. Fact-finding is the primary responsibility of trial courts – it is typical, for example, for the appeal court simply to aaccept the trials court;s factual finding.

5

Marshal case highlights several fundamental features of Canada’s judicial system (5) - Multiple legal systems and bodies of law.

A natural consequence of federalism is that each provincial and national unit of government creates its own body of law. We also make a distinction between statues and regulations. Statues are laws passed by the legislative branch, such as Parliament or a provincial legislature. Regulations are rules created by the executive branch, such as government departments or agencies (Fisheries and Ocean for example), which are designed to clarify and implement statues. In addition, Canada has a body of constitutional law, which establishes the basic features of our legal and political system, including the federal division of power itself, the right of citizens and other residents of Canada, the unique rights of the FN. A case can involve more than one of these bodies of law at the same time, federal/provincial.

6

Marshal case highlights several fundamental features of Canada’s judicial system (5) - High degree of Judicial Discretion in a System.

High degree of Judicial Discretion in a System. The Canadian legal system is designed to give judges control over a great number of issues that come before them. . Judges have the flexibility regarding legal interpretation, sentencing, granting leave to appeal (docket control), and even determine how many judges on a court of appeal will hear a case.

7

The Canadian Judicial System: Provincial, Federal, and Integrated Courts. Name the s. courts

o The “purely provincial section 92 courts
o The “purely federal” section 101 courts
o The decision 96 “provincial” courts, which are actually the shared responsibility of the provincial and federal governments.

8

“Jurisdiction”-

Refers to the responsibilities of the court, or what it is authorized to hear. It has three dimensions of jurisdiction: territorial, hierarchal, and subject matter.

9

Name the characteristics of Jurisdiction

1) Territorial
2) Hierarchal
3) Subject Matter

10

What are offences ?

offence” is the technical term for a law or regulation that, if broken, is punishable by fine or imprisonment. All crimes are offences, but not all offences are crimes.

11

Type of Jurisdiction of Indictable offence - 3 Categories

1) S.92 trial courts indictable offences – Least serious (illegal betting)
2) S.96 trial courts indictable offences – More serious (murder, treason, war crimes, alarming monarch)
3) S.92 / S.96 trial indictable offences – Accuse can choose (92. Trial courts have no jury)

12

Which level of court requires an prelimanry enquiry

S. 96 courts begin with preliminary enquiry (determine if there is enough evidence to proceed), heard by the S.92 courts or justice of peace

13

What is a prelimanry enquiry?

Standing in front of judge and them determining whether there is sufficient evidence to proceed trial.

14

What are hybrid or dual-procedure offences?

To complicate matters further, there are a large number of “hybrid” or “dual-procedure” offences, such as theft under $5,000, where the Crown Attorney (prosecution) decides whether to charge the accused with a summary or indictable offense.

15

What are the Factors & Reasoning Behind the Growth of s.92 Courts (3)

- Young Offenders
- Family Law
- Civil Law

16

What are the Factors & Reasoning Behind the Growth of s.92 Courts - Young Offenders

Young Offenders - Under Canada’s Youth Criminal Justice Act (YCJA), which replaced the Young Offenders Act, persons aged 12-17 who are charges with committing a crime are usually treated as adults. This reflects the view that young people, by virtue of their relative immature level of development, require a greater procedural protections during trial. By the same token, the sentencing of people aged 12 to 17 is usually aimed less at punishment than at rehabilitation and reintegration into society. The YCJA designates “youth justice courts” to apply these special rules; all provinces have classified their s.92 trial courts as such courts, and have some have even created special courts to deal with young people exclusively.

17

What are the Factors & Reasoning Behind the Growth of s.92 Courts - Family Law

Family Law – Most s.92 courts have been governing jurisdiction over a range of legal issues related to families, which may include marriage, adoption, child custody (in case of neglect, endangerment, abuse, or separation of their parents), and child support payments (“maintenance”). Notably, however, proceeding related to divorce may be heard only in s.96 courts.

18

What are the Factors & Reasoning Behind the Growth of s.92 Courts - Civil Law


Civil Law – Five provinces (Quebec, Alberta, BC, NF, Sask) have empowered their s.92 courts to hear civil cases involving relatively small monetary claims. These range from less than $7000 in Quebec, $25,000 in (AB, BC, NF). In addition to small claims, the Civil Division of Quebec’s s.92 court also has jurisdiction over more formal cases in which the amount in dispute is up to $70,000, except cases for spousal support and those cases against the federal government (which are reserved for the s.96 and s.101 courts, respectively)

19

Marshal v. The Queen

MIkmaq fishing