1. Pizza & Public Law : The Judiciary
March 30, 2017
Professor Kyle Kirkup

2. 1. Structure of the Canadian Court System

3. 1. Structure of the Canadian Court System
Overview of the Current Canadian Court System
Provincial/Territorial Courts
One court in each province/territory.
Deal with most criminal offences (excluding the most serious offences), most family law matters, young offenders, traffic/bylaw, provincial/territorial regulatory offences, claims involving money up to certain point (set by each province/territory), small claims, and all preliminary inquiries.
Provincial/Territorial Superior Courts (s 96, Constitution Act, 1867)
Courts of “inherent jurisdiction” (can hear cases in any area except where a statute or rule limits their authority).
MOST SERIOUS criminal and civil cases.
Provinces/territories administer the courts, but federal government appoints and pays judges.
1. Structure of the Canadian Court System

4. 1. Structure of the Canadian Court System
Overview of the Current Canadian Court System
Provincial/Territorial Courts of Appeal
Each province/territory has court of appeal.
Hear appeals from decisions of superior courts and provincial/territorial courts.
Usually heard by panel of three judges. On important cases, court may sit five judges.
Hear reference questions initiated by provincial government.
1. Structure of the Canadian Court System

5. 1. Structure of the Canadian Court System
Overview of the Current Canadian Court System
Courts and Other Bodies Under Federal Jurisdiction
Deal with certain matters specified in federal statutes (e.g. immigration and refugee law, intellectual property, national defence, security, and international relations).
The Federal Court
The Federal Court of Appeal
Specialized Federal Courts (e.g. Tax Court of Canada)
1. Structure of the Canadian Court System

6. 1. Structure of the Canadian Court System
Overview of the Current Canadian Court System
The Supreme Court of Canada
Final court of appeal from all other Canadian courts. Hears appeals per year.
Cases heard by the court:
Public importance and national significance.
Leave applications usually reviewed by three members of the court. They then grant or deny the request.
Limited number of appeals “as of right” (automatic route of appeal).
Reference cases (e.g. Senate Reference).
Administrative Tribunals and Boards
Less formal than courts. Play essential dispute resolution function. Decisions reviewable by courts (aka “judicial review”).
1. Structure of the Canadian Court System

7. 1. Structure of the Canadian Court System
Constitutional Framework of the Judiciary
Constitution Act, 1867
Provincial:
Section 92(14): “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.”
Federal:
Section 96: “The Governor General Shall appoint the Judges of the Superior, District, and County Courts in each Province…”
Section 100: “The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts…shall be fixed and provided by the Parliament of Canada.”
Section 101: “…Establishment of any additional Courts for the better Administration of the Laws of Canada” (jurisdiction to enact Supreme Court Act, Federal Courts Act, and Tax Court of Canada Act)
1. Structure of the Canadian Court System

8. 2. Judicial Appointments
Federal Judicial Appointment Process
Non-Supreme Court of Canada
Section 96 courts, Federal Court, and Tax Court judges appointed by the governor in council (in essence, the Cabinet) usually following review of candidates by an advisory committee.
Eight member advisory committees (bench, bar, law enforcement, and general public). Two options: “Recommend” or “unable to recommend”. Forward list to minister of justice who exercises complete discretion.
Eligibility:
At least ten years’ experience as a lawyer or be a provincial or territorial judge.
Complete personal history form and list of references.
2. Judicial Appointments

9. 2. Judicial Appointments
Federal Judicial Appointment Process
Supreme Court Appointments
Pre-2004: Appointment process was closed, secretive and largely unknown and unknowable to Canadians.
2. Judicial Appointments

10. 2. Judicial Appointments
Supreme Court Appointments
New process in August 2016 results in appointment of Justice Malcolm Rowe
2. Judicial Appointments

11. 2. Judicial Appointments
Provincial Judicial Appointment Process
Process varies based on province/territory.
Basic model is advisory committee (members from legal profession and community).
Advisory committee accepts applications, conducts interviews, and submits list of recommendations to provincial attorney general.
2. Judicial Appointments

12. 3. Judicial Independence
Defining Judicial Independence “Judicial independence consists essentially in the freedom ‘to render decisions based solely on the requirements of the law and justice’…It requires that the judiciary be left free to act without improper ‘interference from any other entity’… -- i.e. that the executive and legislative branches of government not ‘impinge on the essential authority and function…of the court” (MacKeigan v Hickman, [1989] 2 SCR 796).
3. Judicial Independence

13. 3. Judicial Independence
Sources and Scope
Not expressly mentioned in constitutional text, but is an unwritten constitutional principle.
Sections of Constitution Act, 1867: Appointment, tenure, and remuneration of federally appointed judges.
Section 11(d) of the Charter: Judicial independence in criminal context.
3. Judicial Independence

14. 3. Judicial Independence
Test:
“The general test for the presence of absence of independence consists in asking whether a reasonable person who is fully informed of all the circumstances would consider that a particular court enjoyed the necessary independent status” (Macklin v New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 SCR 405.
3. Judicial Independence

15. 3. Judicial Independence
Three core characteristics:
Security of tenure
Financial security
Administrative independence
3. Judicial Independence

16. 4. Judicial Complaints – Case Study: Justice Lori Douglas

17. 4. Judicial Complaints – Case Study: Justice Lori Douglas
Judges Act [applies to federally-appointed judges] Inquiries 63 (1) The Council shall, at the request of the Minister or the attorney general of a province, commence an inquiry as to whether a judge of a superior court should be removed from office for any of the reasons set out in paragraphs 65(2)(a) to (d). Investigations (2) The Council may investigate any complaint or allegation made in respect of a judge of a superior court. Inquiry Committee (3) The Council may, for the purpose of conducting an inquiry or investigation under this section, designate one or more of its members who, together with such members, if any, of the bar of a province, having at least ten years standing, as may be designated by the Minister, shall constitute an Inquiry Committee.
4. Judicial Complaints – Case Study: Justice Lori Douglas

18. 4. Judicial Complaints – Case Study: Justice Lori Douglas
Report of Council
65 (1) After an inquiry or investigation under section 63 has been completed, the Council shall report its conclusions and submit the record of the inquiry or investigation to the Minister.
Recommendation to Minister
(2) Where, in the opinion of the Council, the judge in respect of whom an inquiry or investigation has been made has become incapacitated or disabled from the due execution of the office of judge by reason of
age or infirmity,
having been guilty of misconduct,
having failed in the due execution of that office, or
having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office, 
the Council, in its report to the Minister under subsection (1), may recommend that the judge be removed from office.
4. Judicial Complaints – Case Study: Justice Lori Douglas

19. 4. Judicial Complaints – Case Study: Justice Lori Douglas
1. Alleged Failure to Disclose in the Application Process
2. Alleged Incapacity as a Result of the Public Availability of the Photos
3. Alleged Failure to Fully Disclose Facts to former Independent Counsel
4. Judicial Complaints – Case Study: Justice Lori Douglas

20. 4. Judicial Complaints – Case Study: Justice Lori Douglas
“I just couldn’t take it anymore. It’s a compromise I can live with, but I’m not satisfied at all.”
4. Judicial Complaints – Case Study: Justice Lori Douglas

21. Questions?