Judicial System of Canada - Essay Example

History and Political Science 4 April Major Term Paper, Formal Essay The Canadian Governmental StructureBeing a British colony, the structure of its government comprises of three powers similar to that of Britain. The executive branch comprises of the president who is the chief executive. The legislative branch is comprised of the senate elected by the state legislature, and the House of Representatives. Then there is the judiciary, which is compromised of the supreme courts and others courts like the federal court and provisional and territorial courts. The judiciary enforces the constitution, which is the law of the land. The government of Canada is also divides into the federal government and the provisional government. 2. The Judicial Structure in Canada The judicial arm is the third power in the government of Canada. It has always been associated with the interpretation of law, incase of settling disputes and making judgments in reference to the law of the land, which is the constitution. According to Dyck, the judiciary’s main function is to offer formal and authoritative judgments, in cases of legal disputes between two parties that cannot be solved in any other way (403). The Canadian legal system operates in a similar way to the English common law. In the judicial system of Canada, criminal law and civil law have been separated, but problems arise when a case containing elements of both laws is to be solved. Instead of this division of civil and criminal law, a distinction has been established between private law and public law. Private law is essentially the same as the civil law that deals with private interests. Private law includes torts, wills, company law, and family law. Public law on the other hand, deals with public interests and the government, but goes beyond the criminal law to include the constitutional, administrative, and taxation law (Dyck 403). The judiciary in Canada has been divided into three main courts. These are the: Provisional and Territorial Courts. Federal Court of Canada. Supreme Court of Canada. 2.1 Provisional and territorial courts In Canada, the provinces are given the jurisdiction over property and civil rights. There are two superior courts in every province; the superior trial court and the court of appeal, but the names differ in every province, despite the courts’ structure being similar. The courts in the provinces are headed by judges who are appointed by the governor general, and are also paid by the federal government. Each province determines the number of judges they want, and these provisions are contained in section 96 of the constitution. These courts have the responsibilities of dealing with the following, unless where the responsibilities have been given to tribunals such as justice of the peace ,youth criminal cases, bail hearings, family law except divorce , small civil cases, and also summary cases ( for example less serious crimes, municipal, and provisional cases)( Dyck 405). 2.2 Federal Court of Canada The federal court was established in 1971, with trial and appeal divisions (Dyck 407). Its main aim was to relieve the Supreme Court off the appeals from certain federal administrative tribunals, and also to strengthen the judicial review of the federal administration by developing cohesiveness of the body of federal administrative law. The responsibilities of this court are such as dealing with the cases of immigration, citizenship, refugee appeals and appeals from other federal governments, among others. It is divided into two divisions; the appeal division which is comprised of the chief justice of the province and twelve other judges, and the trial division which is comprised of the associate chief justice, thirty full time, and assorted part time judges (Dyck 407). 2.3 The Supreme Court of Canada It is the highest court in Canada. It is given the responsibilities of hearing the appeals from the provisional territorial courts of appeal in civil and criminal cases, and from the appeals division of the federal court of Canada in administrative law matters. At times, the federal governments also seek opinion from this court in matters concerning the constitution. Though the court can meet once a year, it is usually very much engaged in law making. There are nine judges in the Supreme Court, who are appointed by the Prime Minister. Following the Supreme Court Act, three must come from Quebec because they are familiar with the Quebec civil law, one must come from Atlantic Canada, a minimum of two judges must be from the west, and the last three come from Ontario. The Supreme Court of Canada is headed by the Chief Justice, who is also the deputy governor of Canada. The Supreme Court deals with a hundred cases per year. The retirement age of every judge is 75 years, unless otherwise (Malcolmson and Myers 150). 3. Organizational and Administrative Roles of the Chief Justice in Canada According to Macfarlane, rather than being hierarchical, the position of the Chief Justice in court is “one of ‘first among equals’” (71). The courts in Canada rely on the Chief Justices for their everyday management. He or she therefore acts as the figure head of the court, and his or her responsibilities extend even to matters outside the court. The chief justice in Canada has powers bestowed on him or her, but his achievement in his or her leadership is accomplished if his able to persuade his colleagues. The following are the roles of the chief justice of Canada, both organizational and administrative: The Chief Justice is the deputy governor general of Canada, meaning, he or she can fill in for the governor in duties like receiving foreign dignitaries and also giving royal assent to bills in parliament. The Chief Justice chairs the Canadian Judicial Council, which has authority over all federally appointed judges in the country (Macfarlane 71) He is the chair of the board of governors of the National Judicial Institute and independent body that promotes judicial education, through seminars and various programs. The Chief Justice also has the responsibility of recruiting judges, assigning duties, and supervising the activities of the dozens of judges under him or her (Malcolmson and Myers 150). The chief justice is the head of the Supreme Court of Canada, and thus he selects panels to hear appeals and assigns writing duties. These appeals are from the territorial courts, and also those that come from appeals division of the federal court of Canada. Being the head of the Supreme Court, he leads in delivering rulings and decisions. The chief justice is also responsible for the day to day management of the court; that is, he or she is responsible in innovations that increase the collegiality or improve the working environment in the court. For example, Chief Justice Cartwright entrenched the system of regular judicial conference (Malcolmson and Myers 150). 4. The Roles of the Current Chief Justice The current Chief Justice of Canada is female (The Right Honorable Beverly Mclachlin), who has sought to build consensus on the court. As seen earlier, a chief justice’ leadership achievement is accomplished by his or her ability to persuade his or her colleagues, and that is the reason why the current Chief Justice’ approach has been successful, because she is described by her colleagues as exceptionally amiable (Macfarlane 72). As the Supreme Court of Canada is growing, the Chief Justices roles have grown more prominently. The following are the roles of the current Chief Justice: She has the responsibility of giving public speeches and interviews; that is, she serves as a government spokesperson (Macfarlane 72). She is required to regulate the convention of consultation that surrounds new appointments to the court. This means that she is responsible for recruiting judges in the court. The current Chief Justice of Canada is the deputy governor, and thus she has the responsibility of filling in for the governor, in matters like receiving foreign dignitaries and also in giving royal assent to bills of parliament. She also chairs the Canadian the Judicial Council, which has authority over all the federally appointed judges in the country. She is also the chair of the board of governors of the National Judicial Institute, and independent body that promotes judicial education through seminars and various programs. The Chief Justice appoints the chairs of the Electoral Boundaries commissions that deal with elections in Canada, and assigns credentials of newly appointed high commissioners and ambassadors. She also deals with appeals that come from the provincial and territorial courts, and also those that come from the appeal division of the federal court of Canada. She also delivers rulings in the Supreme Court as the head of the court, but her decisions are in line with the constitution, which is the law of the land. In conclusion, the like any other Chief Justice of any country, the Chief Justice of Canada is a very important person to the government. He is responsible for heading the Supreme Court of Canada, and also acting as the deputy governor. He also has administrative and organizational roles as he acts as the figure head of the court, and his or her responsibilities extend even to matters outside the court. Works Cited Dyck, R. Canadian Politics. 5th ed. Toronto: Nelson Education Ltd, 2011. Print. Macrfarlane, E. Governing from the Bench: The Supreme Court of Canada and the Judicial Role. Vancouver: University of British Columbia Press, 2012. Print. Malcolmson, Patrick N., and Richard Myers. The Canadian Regime: An introduction to Parliamentary Government in Canada. Toronto: University of Toronto, 2012. Print. Read More