Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 1 – INTRODUCTION TO THE LAW Chapter 2 – The Judicial System Prepared by Douglas H. Peterson, University of Alberta

Copyright © 2004 McGraw-Hill Ryerson Limited 2 CHAPTER 2 – THE JUDICIAL SYSTEM Introduction Development of Law Courts The Structure of the Judicial System The Judicial System in Action Administrative Tribunals Alternative Dispute Resolution The Judicial Appointment Process The Legal Profession The Role of the Legal Profession

Copyright © 2004 McGraw-Hill Ryerson Limited 3 DEVELOPMENT OF THE COURTS British and French Influence Evolutionary process 1794 Judicature Act – replaced Court of Common Please with Court of King’s Bench 1837 Court of Chancery established 1849 Court of Common Pleas 1982 Charter of Rights and Freedoms

Copyright © 2004 McGraw-Hill Ryerson Limited 4 STRUCTURE OF JUDICIAL SYSTEM Jurisdiction – right or authority of a court to hear and decide a dispute Authority over type of case Authority over parties in the case Based on geography or monetary amount

Copyright © 2004 McGraw-Hill Ryerson Limited 5 STRUCTURE OF JUDICIAL SYSTEM Types of Courts of Law Courts of Original Jurisdiction Courts of Appeal Trial Courts Court in which a legal action is first brought before a judge for a decision Inferior Provincial division: civil (small claims); criminal; young offenders; family court

Copyright © 2004 McGraw-Hill Ryerson Limited 6 STRUCTURE OF JUDICIAL SYSTEM Superior Courts Court of Queen’s Bench; Surrogate Court Characteristics of courts of original jurisdiction Facts presented Witnesses called

Copyright © 2004 McGraw-Hill Ryerson Limited 7 STRUCTURE OF JUDICIAL SYSTEM Courts of Appeal Hear appeals from lower courts No evidence, based on mistakes of law Leave to appeal Affirm/Vary/Reverse New Trial

Copyright © 2004 McGraw-Hill Ryerson Limited 8 STRUCTURE OF JUDICIAL SYSTEM Federal Courts Supreme Court of Canada Highest court in Canada Federal Court of Appeal Hears appeals from tax court and federal court trial division

Copyright © 2004 McGraw-Hill Ryerson Limited 9 STRUCTURE OF JUDICIAL SYSTEM Federal Court Trial Division Disputes between federal and provincial government Matters of federal government Admiralty, tax, patent, trademark, immigration Appeals from federal boards and tribunals Tax Court Special division of federal court Hears only tax matters

Copyright © 2004 McGraw-Hill Ryerson Limited 10 Copyright © 2004 by McGraw-Hill Ryerson Limited. FEDERAL COURT Federal Court Trial Division Federal Court of Appeal Supreme Court of Canada Trial CourtAppeal CourtFinal Court of Appeal

Copyright © 2004 McGraw-Hill Ryerson Limited 11 STRUCTURE OF JUDICIAL SYSTEM Provincial Courts Inferior Courts Provincial Courts Superior Courts Court of Queen’s Bench Appeal Courts Alberta Court of Appeal

Copyright © 2004 McGraw-Hill Ryerson Limited 12 STRUCTURE OF JUDICIAL SYSTEM Criminal Courts Magistrate’s or Provincial Court Original jurisdiction Less serious crimes Provincial Supreme Court More serious criminal matters Often traveling judges

Copyright © 2004 McGraw-Hill Ryerson Limited 13 STRUCTURE OF THE JUDICIAL SYSTEM Youth Courts Young Offenders Act – ages Over 18 treated as an adult Judge has power of magistrate or justice Summary conviction court More serious crimes transferred to ordinary court Family Courts Deal with domestic problems and family related matters Divorces, child support and custody

Copyright © 2004 McGraw-Hill Ryerson Limited 14 STRUCTURE OF THE JUDICIAL SYSTEM Criminal Courts of Appeal All criminal appeals reviewed by province’s appeal courts Supreme Court of Canada Criminal appeals from provincial appeal courts Leave to Appeal Need permission of court to appeal a case Right exists in case of indictable offences if the decision of the appeal court on a matter of law was not unanimous

Copyright © 2004 McGraw-Hill Ryerson Limited 15 CRIMINAL APPEALS* SUPREME COURT OF CANADA Provincial/Territorial Supreme/Superior Courts of Appeal Provincial/Territorial Supreme/Superior Courts Magistrate’s/Provincial/Youth Courts (Court of Sessions of the Peace in Quebec) * Court names, and in some cases, appeal routes, differ for some provinces.

Copyright © 2004 McGraw-Hill Ryerson Limited 16 THE JUDICIAL SYSTEM IN ACTION Three Bodies that Enforce the Law Criminal Court Civil Courts Administrative Tribunals

Copyright © 2004 McGraw-Hill Ryerson Limited 17 THE JUDICIAL SYSTEM IN ACTION Criminal Court Procedure 2 Types of Offences Summary offences – less serious Indictable Offences – more serious Procedure Dispose or Preliminary hearing Dispose - charge read to accused - guilty or not guilty

Copyright © 2004 McGraw-Hill Ryerson Limited 18 THE JUDICIAL SYSTEM IN ACTION If guilty plea Crown reads particulars speak to sentence Sentence Conviction If plead not guilty Crown must prove case – beyond a reasonable doubt 2 requirements for a conviction Actus reus – criminal act was committed Mens rea – accused had intended to commit the crime

Copyright © 2004 McGraw-Hill Ryerson Limited 19 THE JUDICIAL SYSTEM IN ACTION Trial Procedure Witnesses called by crown prosecutor - establish evidence Defence counsel - cross examine Motion for dismissal (not enough evidence) Defence - calls witnesses to refute crown's case Final arguments Conviction or acquittal

Copyright © 2004 McGraw-Hill Ryerson Limited 20. CIVIL APPEALS* SUPREME COURT OF CANADA Provincial/Territorial Courts of Appeal Federal Court of Appeal Federal Court, Trial Division Tax Court Provincial/Territorial Supreme/Superior Courts Divisional Court  Surrogate/Probate  Courts, etc. Small Claims/Magistrate’s † Provincial Courts (limited right of appeal) * Some provinces do not have all of the courts shown on this chart. † Appeal routes vary from province to province with respect to Small Claims Courts.  Special courts, such as Probate or Surrogate, usually have disputes litigated in the Supreme Court of the province.  Ontario only. The Divisional Court is a unique court in that it can conduct both trials and certain types of appeals.

Copyright © 2004 McGraw-Hill Ryerson Limited 21 THE JUDICIAL SYSTEM IN ACTION Civil Court Procedure (Civil Litigation) Commencement of An Action Plaintiff - one who starts an actions, sue someone else Defendant - defends the action Petitioner – petitions the court Respondent – responds to a petition or an appeal

Copyright © 2004 McGraw-Hill Ryerson Limited 22 THE JUDICIAL SYSTEM IN ACTION Writ - file an appearance Statement of Claim - sets out pleadings and particulars Writ of Summons - note to court and defendant of an action Originating notice of motion Statement of Defence - reply to Statement of Claim Admit facts not in dispute Deny facts Set out facts

Copyright © 2004 McGraw-Hill Ryerson Limited 23 THE JUDICIAL SYSTEM IN ACTION Counter claim Same facts - claim by defendant against Plaintiff Pleadings Set out the particulars of the case Provide information that each party intends to prove in court Demand for particulars - if not enough information in pleadings the party can ask for further information in order to properly respond

Copyright © 2004 McGraw-Hill Ryerson Limited 24 THE JUDICIAL SYSTEM IN ACTION Discovery (Examination for Discovery) Each party examines the other party to determine what kind of case they have Court reporter - transcript can be used in trial Under oath Very open ended

Copyright © 2004 McGraw-Hill Ryerson Limited 25 THE JUDICIAL SYSTEM IN ACTION Pre-trial conference Set out facts and issues and try to resolve before going to court - encourage settlement Close of pleadings Certificate of Readiness Notice of trial parties ready to go to trial Minitrial on limited number of issues

Copyright © 2004 McGraw-Hill Ryerson Limited 26 THE JUDICIAL SYSTEM IN ACTION Trial Burden the requirement that unless a party can establish facts and law to prove its case, it will lose Must support your facts and your claim in law Admissible evidence - evidence that is acceptable to the court

Copyright © 2004 McGraw-Hill Ryerson Limited 27 THE JUDICIAL SYSTEM IN ACTION Procedure Opening statement - set out issues, what intend to prove Witnesses for plaintiff Cross examine Recall Witnesses for defendant Cross examine Recall Final submissions

Copyright © 2004 McGraw-Hill Ryerson Limited 28 THE JUDICIAL SYSTEM IN ACTION Witnesses Ordinary Expert I.E.) Doctor, professor, psychologist Civil Procedure Judgment Appeal Affirm/Vary/Reverse/New Trial

Copyright © 2004 McGraw-Hill Ryerson Limited 29 THE JUDICIAL SYSTEM IN ACTION Costs Funds paid by litigants to cover a portion of the government's costs of maintaining the court system Solicitor Client costs - payment ordered by the court that one party pay the legal fees of the other upon losing Party and party costs - an award that shifts some of the costs of litigation to the losing side according to published scale of fees Court Costs

Copyright © 2004 McGraw-Hill Ryerson Limited 30 THE JUDICIAL SYSTEM IN ACTION Law Reports Recorded judgments of the courts Various reporting series by type of court, year, geographical jurisdiction System of citations and acronyms

Copyright © 2004 McGraw-Hill Ryerson Limited 31 ADMINISTRATIVE TRIBUNALS Administrative Tribunals - established by and under legislation Powers limited to those granted under legislation Less formal than court hearings Boards / Commissions Regulatory Less formal Recourse to courts Permanent vs. Ad hoc Ad Hoc - tribunal established to deal with a particular dispute between parties

Copyright © 2004 McGraw-Hill Ryerson Limited 32 ALTERNATIVE DISPUTE RESOLUTION (ADR) Alternative Dispute Resolution Arbitration Impartial third party or board hears the dispute, then makes a binding decision on the parties Common in contract disputes and collective bargaining

Copyright © 2004 McGraw-Hill Ryerson Limited 33 ALTERNATIVE DISPUTE RESOLUTION (ADR) Mediation Third party who works to clarify issues and establish a framework for communications Suggests solutions

Copyright © 2004 McGraw-Hill Ryerson Limited 34 ALTERNATIVE DISPUTE RESOLUTION (ADR) Advantages Faster Cheaper confidential International arbitration Handled by international arbitration bodies Labor disputes Often uses arbitration to solve collective agreements between labor and management

Copyright © 2004 McGraw-Hill Ryerson Limited 35 JUDICIAL APPOINTMENT PROCESS Appointed by the federal or provincial governments Federal Supreme Court; Federal Court; Tax Court Provincial Provincial Courts: Inferior; Superior; Appeal courts

Copyright © 2004 McGraw-Hill Ryerson Limited 36 JUDICIAL APPOINTMENT PROCESS 4 Step Procedure Federal Commissioner for Judicial Affairs Recruits new judges through preliminary screening process Names submitted to provincial or federal committee Vacancy occurs – Minister of Justice picks a new judge Governor General approves selection and appoints

Copyright © 2004 McGraw-Hill Ryerson Limited 37 THE LEGAL PROFESSION Attorney – a lawyer Solicitor – a lawyer whose practice consists of the preparation of legal documents, wills, etc. and other forms of non-litigious legal work Barrister – a lawyer who acts for clients in litigation or criminal court proceeding Canada – all lawyers are both barristers and solicitors

Copyright © 2004 McGraw-Hill Ryerson Limited 38 SUMMARY Law enforced through the legal system Legal system has been developed in an evolutionary manner Legal system divided by geography and jurisdiction Criminal; civil; administrative ADR exists as an alternative to litigation