Canada’s Judiciary Katrina Cohen Comparative Justice October 15, 2008

Canada’s Legal System Public vs. private law A “bijural” system (Quebec Act of 1744): –English common law –Quebec Civil Code Aboriginal traditions British North America Act/Constitution Act of 1867 Charter of Rights and Freedoms (1982), and the “Notwithstanding” clause

Judicial Independence: Entrenched in Canada’s Constitution Security of tenure –Appointment –Educational programs –Removal (Canadian Judicial Council) Security of finances and salaries Institutional administrative independence

Structure of National Judiciary: Complex Federalism Federal authority: –Appoints/pays/removes federal judges and superior provincial court judges –Establishes nationwide criminal court procedure Federal Court, Federal Court of Appeals, Supreme Court of Canada Administrative tribunals

Structure of National Judiciary: Complex Federalism Provincial authority: –Appoints/pays/removes provincial court judges –Establishes civil procedure for all provincial courts Provincial courts Superior provincial courts: –Trial –Appeals

Visualize the Court Structure

Supreme Court of Canada The Court first sat in the Railway Committee Room in the Parliament buildings, then moved to a two-story building at the bottom of Parliament Hill in Finally the Court moved to this separate building in Ottawa in 1946.

Supreme Court of Canada Highest national court of appeal Docket control, except in some criminal cases and provincial references Hearings of appeals: –Panels of five, seven or nine –Open to public and taped for broadcast –Oral arguments last one hour per side, and judges often ask questions Written opinions with dissent

Supreme Court of Canada: Judges Nine judges, selected regionally Appointment: –Prime Minister, Cabinet –Advisory Committee –Governor in Council (official appointment) Removal difficult, need Parliament’s approval (both houses) Chief Justice: –Presides at trial –Chooses judge panels –Chairs Canadian Judicial Council

Judicial Review in Canada Grounds: –Division of Control –Charter of Rights and Freedoms Abstract judicial review: Appeals from provincial references Concrete judicial review

Recent Judicial Cases and Controversies in Canada Too much judicial activism? –Provincial Judges Reference (1997): Created judicial salary commissions Same-sex marriage: –Notwithstanding clause in Alberta –Re: Same-Sex Marriage (2004) War on terrorism, Iraq War: –Freedom of the press –Courts checking post-9/11 laws –Internal independence:

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