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Module 1.2 Why Courts Exist, Part 2 Seneca Association of Canadian Court Administrators.

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1 Module 1.2 Why Courts Exist, Part 2 Seneca Association of Canadian Court Administrators

2 By the end of the show You should be able to speak to inherent contradictions within modern courts – Judicial immunity – Judiciary decides what’s constitutional – Unelected judges in democratic society – Timely resolution but procedural fairness – Adversarial process 2 Seneca | Association of Canadian Court Administrators

3 By the end of the show You should be able to state and define the five principles from the Trial Court Performance Standards Describe the basic federal court structure 3 Seneca | Association of Canadian Court Administrators

4 COURTS AS INSTITUTIONS

5 5 Courts as institutions More than ever the public uses courts to resolve problems with legal solutions Speaks highly of public’s confidence in court’s process Public confidence maintained if courts perceived as – Independent – Impartial Seneca | Association of Canadian Court Administrators

6 Independent and impartial It is of fundamental importance that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Litigants have to be satisfied before they begin and during the process that the courts will rule fairly Seneca | Association of Canadian Court Administrators 6

7 How do we achieve independence? Sometimes easy for forget courts are part of government Courts need, therefore, independence from other branches of government It is in practice the most independent branch of government After selected by politicians, it is very difficult to remove a sitting judge Seneca | Association of Canadian Court Administrators 7

8 How do we achieve impartiality? The dictionary definition applies here: impartial means “without bias or favour” Most of us understand that the decision maker should not have an interest in the litigation before him or her To remain impartial, a judge cannot face governmental penalties when ruling against the other branches of government Seneca | Association of Canadian Court Administrators 8

9 Independence leads naturally to oversight Watchdog of other branches of government Judiciary first to break away from sovereign power First to exercise its own power against other branches Seneca | Association of Canadian Court Administrators 9 Sovereign Executive (Sovereign) Legislative Judiciary

10 Quick side bar on three branches Seneca | Association of Canadian Court Administrators 10 LegislativeExecutiveJudiciary Principal leader Prime Minister or Premier Governor-General or Lieutenant- Governor Chief Justice Other players Cabinet ministers Members of Parliament Prime Minister (unofficial leader of executive) Cabinet Judges Court administrators Principal function Debate, vote on, pass statutes Enforce statutes Create regulations Create agencies to fulfil legislative programs Interpret, apply statutes and regulations Maintain common law and equity

11 Seneca | Association of Canadian Court Administrators 11 INHERENT CONFLICTS

12 Seneca | Association of Canadian Court Administrators 12 The conflicts we’ll talk about Judicial immunity when “no one is above the law” Deciding constitutionality in an era of “Parliamentary supremacy” Unelected judges in a democracy Timely resolution with procedural fairness Adversarial process and ADR

13 Sovereign immunity Since Magna Carta, no one above the law Luckily common law was very “king-friendly” As sovereign, king had obligations to do what was necessary to protect the realm “King can do no wrong”— sovereign immunity If done while exercising royal power for royal purpose, then immune—no legal consequences for king Seneca | Association of Canadian Court Administrators 13

14 Judicial immunity Can a judge be sued for conspiring with others to get a person convicted of a crime they did not commit? In a 1607 case, Floyd and Barker, the answer was no Sovereign immunity extended to judges (and other court workers) Seneca | Association of Canadian Court Administrators 14

15 Reasons for judicial immunity Judges, jurors and court workers are under orders from the king to perform judicial duties – Can’t do job in environment of fear If judges lacked immunity, every disgruntled litigant could sue the judge or jurors; law suits would never end Court records would be useless, since endless litigation would mean they were never final People would lose faith in the justice system Seneca | Association of Canadian Court Administrators 15

16 Deciding constitutionality Constitutional law governs governments If a government passes a law, the law must adhere to constitutional requirements It’s judges who make that determination Buzz words: – If a law is constitutionally sound, it is “within powers,” or intra vires – If it is not, then it is “outside powers,” or ultra vires Seneca | Association of Canadian Court Administrators 16

17 Federal v. provincial Before 1982, the only constitutional question asked in Canada was whether the law should be made by: – The federal government – The provinces – Both Courts did not look too closely at content of law—if right level of government passed law, that was generally end of discussion Seneca | Association of Canadian Court Administrators 17

18 Examples of federal v. provincial Currency is a federal power If province tries to print money, courts would likely find it ultra vires Municipal law is a provincial power If federal government tries to create a city, then it’s likely ultra vires This kind of question can be answered by looking at Constitution Act, 1867 Seneca | Association of Canadian Court Administrators 18

19 1982 and beyond After passage of Canadian Charter of Rights and Freedoms, courts look more at content of law Now, the right level of government has to make the law and the law cannot unjustifiably infringe Charter rights Federal regulations under Tobacco Act restricted advertising until Supreme Court ruled that they were ultra vires because they unduly limited free speech Seneca | Association of Canadian Court Administrators 19

20 Why is this a conflict? The problem is Parliamentary supremacy (which applies to provincial and territorial governments as well) Statutes are supposed to be respected: – They are signed and proclaimed by sovereign – Courts operate under sovereign’s authority – So the courts’ “boss” is saying, “This is the law” Seneca | Association of Canadian Court Administrators 20

21 What happened to supremacy? Courts have in the past deferred to Parliament Only after 1982 and the Charter have we seen such vigorous judicial activism How can judges give themselves this review power and still say there’s such a thing as Parliamentary supremacy? Seneca | Association of Canadian Court Administrators 21

22 Unelected judges To make matters worse, in the minds of some, judges are unelected The Charter calls Canada a “free and democratic society,” yet judges tell the legislature and executive what they can and cannot do The Rt. Hon. Beverley McLachlin, C.J.C., suggests this gives the court its integrity You can count on the court doing the right thing Seneca | Association of Canadian Court Administrators 22

23 Timely resolution in adversarial process Justice delayed is justice denied, but parties entitled to due process of law If you can do both, tell me! How do you balance the need to move quickly and at the same time give responding parties adequate time to prepare? Seneca | Association of Canadian Court Administrators 23

24 Adversarial process Courts employ “adversarial process” If parties vigorously argue opposing viewpoints and test each other’s evidence, process will produce good results If I sue you, you are not obliged to help me We must disclose information in a civil action, but it is up to each of us to develop our own cases, our own way Seneca | Association of Canadian Court Administrators 24

25 Trial is a one-shot deal No matter how well I prepare my case, I may never feel ready because the court will generally give me only one trial If I don’t do a thorough job the first time and lose, the judge won’t let me bring the same case later This makes parties cautious, and slow to go to court Seneca | Association of Canadian Court Administrators 25

26 Timely resolution Court administrators have an interest in clearing case calendars Most plaintiffs want and the Crown must proceed reasonably quickly These values completely conflict with defendant’s desire for due process As well, most responding parties do not want to be there and are happy to delay Seneca | Association of Canadian Court Administrators 26

27 Adversarial process and ADR Adversarial process time-honoured and seems to work well for a lot of conflicts Judges and litigators love the adversarial process But does it work well for everyone, or do courts only attract adversarial parties? Is the adversarial process the best way to go for something such as family law? Seneca | Association of Canadian Court Administrators 27

28 Adversarial drawbacks The process is all-or-nothing, win-lose If I sue you for the loss of a $1 million vase, and I prove it was 60% likely you destroyed the vase, then I get…$1 million! While there are polite conventions in litigation, you and I are expected to oppose each other throughout With such high stakes and the expectation we will be adversarial, we could miss opportunities to settle Seneca | Association of Canadian Court Administrators 28

29 ADR Courts are in the business of resolving conflicts in a time effective and final way When looking at torts, contract and criminal law, adversarial processes make sense, despite drawbacks Do they make sense in family matters? Custody and access are relatively new legal concepts, and totally different than contractual or tort concepts Seneca | Association of Canadian Court Administrators 29

30 ADR, continued For something as non-commercial as family law, adversarial setting probably does not help these litigants If the job is resolving conflicts, then we may not be doing a good job in family law Despite more ADR in the courts, our “default” position is still an adversarial court: – Either settle or let a judge decide Seneca | Association of Canadian Court Administrators 30

31 Conflict with ADR Court system still deeply admires its process, but some litigants don’t benefit from process Even with ADR inroads—mediation in civil and family cases, diversion in criminal matters—adversarial system still in the background, ready to be used when all else fails Seneca | Association of Canadian Court Administrators 31

32 Seneca | Association of Canadian Court Administrators 32 TRIAL COURT PERFORMANCE STANDARDS

33 Trial Court Performance Standards The five principles are: – Access to justice – Expedition and timeliness – Equality, fairness, and integrity – Independence and accountability – Public trust and confidence Definitions and a readable guide appear at http://www.ncsconline.org/d_research/TCPS /TCPSDeskRef.pdf http://www.ncsconline.org/d_research/TCPS /TCPSDeskRef.pdf Seneca | Association of Canadian Court Administrators 33

34 Seneca | Association of Canadian Court Administrators 34 FEDERAL COURT SYSTEM

35 Federal court system Seneca | Association of Canadian Court Administrators 35 Supreme Court of Canada Federal Court of AppealProvincial Courts of Appeal Federal CourtTax Court Court Martial Appeal Court Superior Court Provincial Court System Supreme Court of Canada Court Martial Court of Appeal Federal Court of Appeal Provincial Courts of Appeal Provincial Superior Courts Provincial Courts Federal Court Tax Court of Canada Federally appointed Provincially appointed

36 Seneca | Association of Canadian Court Administrators 36 THANK YOU


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