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

Copyright © 2004 McGraw-Hill Ryerson

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PART 1 – INTRODUCTION TO THE LAW

Chapter 2 – The Judicial System

Prepared by Douglas H. Peterson, University of Alberta


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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


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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


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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


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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


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Superior Courts Court of Queen’s Bench; Surrogate Court

Characteristics of courts of original jurisdiction Facts presented Witnesses called


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Courts of Appeal Hear appeals from lower courts No evidence, based on mistakes of law Leave to appeal Affirm/Vary/Reverse New Trial


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Federal Courts Supreme Court of Canada

Highest court in Canada Federal Court of Appeal

Hears appeals from tax court and federal court trial division


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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


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FEDERAL COURT

Federal Court

Trial Division

Federal Court

of Appeal

Supreme Court of Canada

Trial Court Appeal Court Final Court of Appeal


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Provincial Courts Inferior Courts

Provincial Courts Superior Courts

Court of Queen’s Bench Appeal Courts

Alberta Court of Appeal


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Criminal Courts Magistrate’s or Provincial Court

Original jurisdiction Less serious crimes

Provincial Supreme Court More serious criminal matters

Often traveling judges


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STRUCTURE OF THE JUDICIAL SYSTEM

Youth Courts Young Offenders Act – ages 12 -17 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


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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


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CRIMINAL APPEALS*

SUPREME COURT OF CANADA

Provincial/TerritorialSupreme/SuperiorCourts of Appeal

Provincial/TerritorialSupreme/Superior Courts

Magistrate’s/Provincial/YouthCourts (Court of Sessions of

the Peace in Quebec)

* Court names, and in some cases, appeal routes, differ for some provinces.


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THE JUDICIAL SYSTEM IN ACTION

Three Bodies that Enforce the Law Criminal Court Civil Courts Administrative Tribunals


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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


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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


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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


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CIVIL APPEALS*

SUPREME COURT OF CANADA

Provincial/TerritorialCourts of Appeal

Federal Court of Appeal

Federal Court, Trial Division

Tax Court

Provincial/TerritorialSupreme/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.


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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


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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


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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


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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


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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


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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


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Procedure Opening statement - set out issues, what

intend to prove Witnesses for plaintiff Cross examine Recall Witnesses for defendant Cross examine Recall Final submissions


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Witnesses Ordinary Expert I.E.) Doctor, professor, psychologist

Civil Procedure Judgment Appeal Affirm/Vary/Reverse/New Trial


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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


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Law Reports Recorded judgments of the courts Various reporting series by type of court,

year, geographical jurisdiction System of citations and acronyms


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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


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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


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Mediation Third party who works to clarify issues and

establish a framework for communications Suggests solutions


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Advantages Faster Cheaper confidential

International arbitration Handled by international arbitration bodies

Labor disputes Often uses arbitration to solve collective

agreements between labor and management


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JUDICIAL APPOINTMENT PROCESS

Appointed by the federal or provincial governments Federal

Supreme Court; Federal Court; Tax Court Provincial

Provincial Courts: Inferior; Superior; Appeal courts


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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


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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


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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

Documents

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