module 1.2 why courts exist, part 2 seneca association of canadian court administrators

Module 1.2Why Courts Exist, Part 2

Seneca Association of Canadian Court Administrators

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

2Seneca |Association of Canadian Court Administrators

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

3Seneca |Association of Canadian Court Administrators

COURTS AS INSTITUTIONS

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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

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

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


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


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


Quick side bar on three branches


Legislative Executive Judiciary

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


INHERENT CONFLICTS


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

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


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)


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


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


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


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


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


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

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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?


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


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?


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


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


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


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?


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


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


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


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



TRIAL COURT PERFORMANCE STANDARDS

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

http://www.ncsconline.org/d_research/TCPS/TCPSDeskRef.pdf


FEDERAL COURT SYSTEM

Federal court system


Supreme Court of Canada

Federal Court of Appeal Provincial 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 CourtTax Court of Canada

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THANK YOU

module 1.2 why courts exist, part 2 seneca association of canadian court administrators

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