copyright © 2004 mcgraw-hill ryerson limited 1 part 1 – introduction to the law chapter 2 – the...
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Copyright © 2004 McGraw-Hill Ryerson
Limited 1
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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STRUCTURE OF JUDICIAL SYSTEM
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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STRUCTURE OF JUDICIAL SYSTEM
Superior Courts Court of Queen’s Bench; Surrogate Court
Characteristics of courts of original jurisdiction Facts presented Witnesses called
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STRUCTURE OF JUDICIAL SYSTEM
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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STRUCTURE OF JUDICIAL SYSTEM
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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STRUCTURE OF JUDICIAL SYSTEM
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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STRUCTURE OF JUDICIAL SYSTEM
Provincial Courts Inferior Courts
Provincial Courts Superior Courts
Court of Queen’s Bench Appeal Courts
Alberta Court of Appeal
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STRUCTURE OF JUDICIAL SYSTEM
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
Witnesses Ordinary Expert I.E.) Doctor, professor, psychologist
Civil Procedure Judgment Appeal Affirm/Vary/Reverse/New Trial
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THE JUDICIAL SYSTEM IN ACTION
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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THE JUDICIAL SYSTEM IN ACTION
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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ALTERNATIVE DISPUTE RESOLUTION (ADR)
Mediation Third party who works to clarify issues and
establish a framework for communications Suggests solutions
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ALTERNATIVE DISPUTE RESOLUTION (ADR)
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