Canadian Federalism: Canadian Judiciary System - Coursework Example

Canadian Federalism Introduction Canadian federalism relates to gradual evolution of the present form of federal system within the national history of the country. The term federalism is delineated as “a division of jurisdiction and authority between at least two levels of government” (Jackson & Jackson, 189). In line with the definition, the federation of Canada can be categorized into two separate jurisdictions with constitutionally self-governing bodies: the central (federal) government, and the ten provincial (regional) governmental bodies.  Besides these two divisions, there are three other territorial governments in northern Canada, although they fall under the jurisdiction of the central government. All aforementioned categories of governmental bodies are united under the Canadian Crown, from where they derive their power of sovereignty (Banting, and Simeon, 14-16). An important element within central government of Canada is the system of federal judiciary. This comprises of the Supreme Court, the highest in the order of the courts, which is delegated by the federal government. Other federal-level courts in Canada comprise of Tax Court of Canada, Federal Court, Federal Court of Appeal, and the army courts comprising of Courts Martial and the Court Martial Appeal Court (McCormick, 2). At provincial (regional) levels, there are provincial trial courts and provincial courts of appeal. While at a lower level to the Supreme Court (SC), in terms of authority and power (SC has the power to overrule any decisions taken by the provincial courts), these courts mainly deal with cases related to constitutional, criminal, bylaw, civil, traffic and family issues (Morton, 110-112). In the context of Canadian federalism, the paper will now examine the Canadian court system and assess the strengths and benefits of this particular institution, and deduce that even though the basic framework of the judiciary is federal in nature, it actually functions on a democratic basis. Discussion Overview of the functions of the Canadian Judiciary system: Under Canadian federalism, courts act as mediators and analysts of the Canadian legal system. However, the courts do not have any power to create laws nor can they enforce them. The legislative wing of the federal Parliament and regional governmental bodies create laws, while the executive branch of government, comprising of various bureaucratic wings and police department, plays the role of law enforcement agencies. Therefore, we find that the role of courts’ remain limited to resolving disputes over legal application, interpret legislation’s passed laws, and guide the law enforcement agencies on their proper role (McCormick, 1994, 1-38) Within the Canadian legal system, there is a scope for the interpretation of two types of laws. The first type is the criminal law that presides over behavioral activities perceived as ‘criminal,’ and is provisional to state level sanctions of different forms. The second type is the civil law, which governs affiliations between people, and corporate houses and governmental bodies, as regards, disputes related to various contracts signed, property and tort laws. The courts can also interpret and arbitrate over matters related to the Canadian Constitution, including various major issues that are political in nature, as for example, relationship between various governmental levels as are present within the Canadian Federalism. It can also interpret and arbitrate the Canadian Charter of Rights and Freedoms that deals with issues between citizens and state, and the rights granted for the Aboriginals (McCormick, 1994, 1-38). An overview of the Canadian Judiciary framework: While playing the functional role of arbitrators and analysts of the Canadian laws, the court system comprises of various parts. First, in the order are the federal courts, which comprise of various kinds of federal courts, along with the Supreme Court, Canada’s highest authority for appeal. The federal courts comprise of a group of special courts that deal specifically with issues having federal statutes. This group includes Federal Court Trial Division, Tax Court of Canada, Court of Appeal, and the army courts. The central government alone controls the group of federal courts and the Supreme Court including appointing judges and paying their salaries (McCormick, 101-117). The second part in the Canadian legal system comprise of the provincial level courts that include regional and municipal courts. Since the provinces bear the complete responsibility of managing these courts, which includes appointing judges and making provisions for their salaries, they are also known as purely provincial courts. These courts are functionally categorized, where they comprise of divisions for the civil or small claim cases, division for criminal cases, and the division for youth and family cases (McCormick, 23-38). The third part in the court system comprises of the provincial superior courts that are further sub-categorized into provincial courts of appeal and provincial superior trial courts. The provincial governments provide for these courts (like the provincial level courts); however, in this case, the central or federal government fixes the appointments and salaries of the judges. The various structures, as seen within the Canadian judicial system, actually form to be a part of a framework within a single operating system. Thus, federal courts have the option of dealing with cases that are actually under the jurisdiction of provincial laws, while at the same time provincial courts can deal with cases related to federal issues. Some of the members in the group of federal courts, like the Tax Court, the Federal Court Trial Division, or the army courts, deal with cases having only federal statutes. In a normal way, within the Canadian court system, a case may initiate at the provincial level, and in stages move to the federal level, in order to arrive at a final decision (McCormick, 23-38). Although the entire structure falls under a single framework, there is a form of hierarchy, which divides the higher courts and the lower courts. Owing to this hierarchy, a petitioner can appeal to a higher court to review and possibly revoke the decision made by a lower court. In the Canadian judicial hierarchy, the Supreme Court of Canada occupies the highest position, and is the country’s highest court of appeal with the authority to revoke any decision made by any other court. Canadian judiciary: federalism or democracy? From the above discourse it is evident that judiciary system of Canada follows the basic principles of federalism, where there are clear divisions, as regards, authority and jurisdiction, amongst federal courts and provincial courts, clearly subject to two different levels of governance. However, here there is one important aspect in the context of Canadian federalism, as regards the position of Supreme Court within the federal state, which is associated with the fundamental institutional structure of the body. Besides, having the highest authority in Canada that covers the territorial, provincial, as well as the federal laws, the Supreme Court also helps in the translation and enforcement of the fundamental notions of federalism. Therefore, the decisions of the Supreme Court have the power to affect governance at all levels, starting from the federal, to the provincial and the territorial ones. However, the federal government has the only authority to appoint Supreme Court judges, without any help from the provinces. This has led to some controversy, where some experts feel that a bias may exist within the arena of Canadian legal and political scenario, as regards the framework of Supreme Court (not in its role), since the provincial or territorial governments cannot appoint the Supreme Court judges (Makarenko, Supreme Court of Canada: Role, History, and Operation, 2008). Supreme Court, being the highest court of authority, is at the core of all arbitration and interpretation of Canadian laws. While meting out a judgement, Supreme Court draws a clear guideline for the lower courts as how a specific law must be analysed, translated and accordingly applied. The lower courts are under a complete obligation to move according to the guidelines as set by Supreme Court, or else it is highly likely that their decisions will be overturned at a later stage, when the case is appealed. The Supreme Court in its capacity can also consciously bring in modification to the analysis, translation and in the process of application of various Canadian laws. While passing a judgement, the Supreme Court may bring in an approach to judicial exposition that may be completely different to the traditional corollary. In such instances, the lower courts are under an obligation to follow the new guidelines as set by the Supreme Court, and use the new expositions put in place, while deciding similar cases at regional or territorial levels. In this context, one may conclude that within Canadian federalism, the judiciary acts as a parallel body that follows a democratic system, where the Supreme Court has the final authority. This is the basic difference that exists between a federal state and a democratic state. In a true form of federalism, national level laws would be applicable to any person living within the country, while the provincial or territorial laws would be applicable for the residents of that specific province only, with no form of superior authority that can overturn a ruling of the provincial courts and the provincial courts being under no obligation to follow any guidelines set by a superior authority. Even though democracy can exist under federalism and a unitary form of government (as in UK, where the parliament has the ultimate authority over all other regional and local executive and legislative bodies in the country), giving supreme power to an institution turns the system into more of a democratic order, than of a federal system. The main advantages of the judiciary system within Canadian federalism, is that, authority instead being concentrated on one institution is disseminated amongst various levels within the legal system. Therefore, it becomes more difficult for one specific set of people to create a group of judiciary elites and assume complete control. The various levels, thus act as a control, while exercising legal authority in the country. Federalism (more of a democratic form, as seen in Canada, in the context of judiciary as an institution) within the judiciary system also helps to safeguard rights and interests of the local/regional people and of those belonging to the ethic and minority social classes. Conclusion From the above discourse, it is evident that the Canadian judiciary system superficially functions within the framework of federalism. It has a large jurisdiction that varies at different levels and ranges from the territorial levels, to the provincial levels, to the federal levels or the Supreme Court. This provides a scope for the equal representation of all people at all levels (territories or provinces), while disallowing the scope for power to accumulate in the hands of an elite few. However, we also find that Supreme Court has the highest authority, and with the federal legislative having the sole power to select the Supreme Court judges, there is a large scope for debate as to the actual neutrality of the framework created for Supreme Court, within the context of Canadian federalism. The existing hierarchy, where Supreme Court has the highest authority over all other courts (regional and territorial level courts) and can overturn their decisions at any time, and where the lower courts are obliged to follow dictates of the Supreme Court, is more suitable for a democratic form of government (as is seen in UK). Therefore, we can conclude that the institution of Canadian judiciary, though having a framework of federalism, actually functions more on the basis of democracy. Works cited Banting, K., and Simeon, R.  And no one cheered: federalism, democracy, and the Constitution Act. Toronto: Taylor & Francis, 1983. Print. Jackson, R. & Jackson, D. Politics in Canada: Culture, Institutions, Behaviour and Public Policy, (6th Edition). Toronto: Pearson Education Canada Inc., 2006. Print. Makarenko, J. Supreme Court of Canada: Role, History, and Operation. Mapleweb. 2008. Web. 6th February 2010. http://www.mapleleafweb.com/features/supreme-court-canada-role-history-and-operation McCormick, P. Canada’s Courts. Toronto, Ontario: James Lorimer & Company Ltd., Publishers, 1994. Print. Morton, L. Law, politics and the judicial process in Canada. Alberta: University of Calgary Press, 2002. Print. Read More