prepared by douglas peterson, university of alberta 2-1 part 1 – introduction to the law chapter 2...
TRANSCRIPT
Prepared by Douglas Peterson, Prepared by Douglas Peterson,
University of AlbertaUniversity of Alberta 2-2-11
Part 1 – Introduction to the Part 1 – Introduction to the LawLaw
Chapter 2 – The Chapter 2 – The Judicial SystemJudicial System
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Chapter 2 - OverviewChapter 2 - Overview
Courts Role in societyCourts Role in society Development of the Law CourtsDevelopment of the Law Courts Structure of the Judicial SystemStructure of the Judicial System
2222 Court procedureCourt procedure Administrative tribunalsAdministrative tribunals ADRADR Judicial appointmentJudicial appointment Legal professionLegal profession
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IntroductionIntroduction
Courts roleCourts role Decide disputesDecide disputes Interpret the ConstitutionInterpret the Constitution Decide division of powersDecide division of powers Interpret contracts Interpret contracts Determine responsibility and damages for lossDetermine responsibility and damages for loss
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Development of the Law CourtsDevelopment of the Law Courts
Long period of developmentLong period of development 1794 Judicature Act1794 Judicature Act 1837 Court of Chancery1837 Court of Chancery 1849 Court of Common Pleas1849 Court of Common Pleas 1856 Merger of Queen’s Bench and Common Pleas1856 Merger of Queen’s Bench and Common Pleas 1867 BNA Act1867 BNA Act
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Early Law ReformEarly Law Reform
Many reforms passed between 1873 and 1925Many reforms passed between 1873 and 1925 Beginning of development of the Supreme CourtBeginning of development of the Supreme Court Gradual reduction in formal processGradual reduction in formal process
1982 Charter of Rights and Freedoms1982 Charter of Rights and Freedoms
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Structure of Judicial SystemStructure of Judicial System
Jurisdiction – different courts with different Jurisdiction – different courts with different jurisdictionsjurisdictions Right or authority of a court to hear a matterRight or authority of a court to hear a matter Authority over the parties or the property or the matterAuthority over the parties or the property or the matter Authority: divided in different waysAuthority: divided in different ways
Monetary – up to a certain amountMonetary – up to a certain amount Geographic – province or areaGeographic – province or area
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StructureStructure
General ClassificationsGeneral Classifications Courts of Original JurisdictionCourts of Original Jurisdiction
Case heard for first time (trial courts)Case heard for first time (trial courts) Courts of AppealCourts of Appeal
Hear appeals from trial courtsHear appeals from trial courts Superior or higher courtsSuperior or higher courts Do not hear evidenceDo not hear evidence Look for errors of law Look for errors of law
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Types of CourtsTypes of Courts
Federal CourtsFederal Courts Deals with federal matters under federal government Deals with federal matters under federal government
jurisdictionjurisdiction Admiralty, patents, tax, trademark, immigration, copyrightAdmiralty, patents, tax, trademark, immigration, copyright
StructureStructure Federal Court Trial DivisionFederal Court Trial Division Federal Court of AppealFederal Court of Appeal
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Types of CourtsTypes of Courts
Provincial CourtsProvincial Courts Each province has authority to establish own systemEach province has authority to establish own system Variation in names and powers exist but overall similar Variation in names and powers exist but overall similar
in functionin function
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Criminal CourtsCriminal Courts
Magistrate’s or Provincial CourtMagistrate’s or Provincial Court Court of original jurisdictionCourt of original jurisdiction Initially deals with all criminal mattersInitially deals with all criminal matters Holds preliminary hearings of more serious crimes to Holds preliminary hearings of more serious crimes to
determine if sufficient evidence exists to send it to a determine if sufficient evidence exists to send it to a higher courthigher court
Provincial Supreme CourtProvincial Supreme Court Hears more serious criminal mattersHears more serious criminal matters
Youth CourtsYouth Courts Hears cases of youth who commit crimesHears cases of youth who commit crimes 12 years or older to under 18 years old12 years or older to under 18 years old
Criminal Courts of AppealCriminal Courts of Appeal Hear appeals from lower courtsHear appeals from lower courts
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Other CourtsOther Courts
Provincial Supreme CourtProvincial Supreme Court Hears civil disputes over and above small claims Hears civil disputes over and above small claims
matters or those matters specifically set in the superior matters or those matters specifically set in the superior courtcourt
Civil CourtsCivil Courts Deals with disputes between private personsDeals with disputes between private persons
Small Claims CourtsSmall Claims Courts Hear disputes up to a certain amount of moneyHear disputes up to a certain amount of money Amount varies by each provinceAmount varies by each province
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Other CourtsOther Courts
Family CourtsFamily Courts Not criminal courts in the ordinary senseNot criminal courts in the ordinary sense Deal with domestic issuesDeal with domestic issues Support payments, custody issuesSupport payments, custody issues
Surrogate (Probate) CourtSurrogate (Probate) Court Deals with administration of wills and estatesDeals with administration of wills and estates
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Appeal CourtsAppeal Courts
Civil Courts of AppealCivil Courts of Appeal Provincial Court of AppealProvincial Court of Appeal
Hears appeals in each province from lower courtsHears appeals in each province from lower courts Supreme Court of CanadaSupreme Court of Canada
Highest court in CanadaHighest court in Canada Hears all appeals from all courts including federal courtHears all appeals from all courts including federal court Right to appeal is restricted, leave (permission) by the Right to appeal is restricted, leave (permission) by the
court must be grantedcourt must be granted
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Criminal Court ProcedureCriminal Court Procedure
Enforcement of Criminal lawEnforcement of Criminal law Usually same court that deals with civil mattersUsually same court that deals with civil matters Minor or lesser offences dealt with by way of summary Minor or lesser offences dealt with by way of summary
conviction rulesconviction rules Serious matters by way of indictmentSerious matters by way of indictment ProcedureProcedure
Offence is read by crownOffence is read by crown Accused makes a plea (guilty or not guilty)Accused makes a plea (guilty or not guilty) Guilty plea – speak to sentence and penalty imposedGuilty plea – speak to sentence and penalty imposed Not guilty plea – hear evidence at trial and court makes a Not guilty plea – hear evidence at trial and court makes a
decisiondecision
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Civil Court ProcedureCivil Court Procedure
PleadingsPleadings Written statements prepared by parties that set out Written statements prepared by parties that set out
facts and claimsfacts and claims Plaintiff – party bringing an actionPlaintiff – party bringing an action Defendant – party defending an actionDefendant – party defending an action Various documentsVarious documents
Statement of claim or defenseStatement of claim or defense Writ of summonsWrit of summons An appearanceAn appearance
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Civil Court ProcedureCivil Court Procedure
Close of PleadingsClose of Pleadings Once pleadings have been closed, either party sets it Once pleadings have been closed, either party sets it
down for trialdown for trial May require some form of attempt at dispute resolution May require some form of attempt at dispute resolution
before going to trialbefore going to trial Examinations for discovery may take place to clarify Examinations for discovery may take place to clarify
points in either parties pleadings (purpose is to know points in either parties pleadings (purpose is to know the other sides case)the other sides case)
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Civil Court ProcedureCivil Court Procedure
Trial (Procedure)Trial (Procedure) Plaintiff openingPlaintiff opening Defendant openingDefendant opening Plaintiff presents evidence and calls witnessesPlaintiff presents evidence and calls witnesses Defendant can cross examineDefendant can cross examine Defendant presents evidence and calls witnessesDefendant presents evidence and calls witnesses Plaintiff right to cross examinePlaintiff right to cross examine Parties sum up their casesParties sum up their cases Judge or jury deliberates to decide matterJudge or jury deliberates to decide matter
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WitnessesWitnesses
2 Types2 Types Ordinary Witnesses Ordinary Witnesses
Give (direct) evidence of what they saw or heardGive (direct) evidence of what they saw or heard Expert WitnessesExpert Witnesses
Recognized experts on a subject and give opinion Recognized experts on a subject and give opinion evidenceevidence
– Medical experts, accountants, Medical experts, accountants, Best EvidenceBest Evidence
Not allow “hearsay” evidence – what someone heard Not allow “hearsay” evidence – what someone heard someone else saysomeone else say
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AppealsAppeals
Can appeal to a higher court if one feels the judge Can appeal to a higher court if one feels the judge erred in application of the law or admission of erred in application of the law or admission of evidenceevidence
Serve a notice of appealServe a notice of appeal Court can:Court can:
AffirmAffirm ReverseReverse Send back for new trialSend back for new trial
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Court CostsCourt Costs
Party Costs – Party Costs – award successful party the costs incurred plus a fixed award successful party the costs incurred plus a fixed
counsel fee according to a schedule or tariffcounsel fee according to a schedule or tariff Usually at discretion of court but usually always Usually at discretion of court but usually always
awardedawarded Solicitor Client CostsSolicitor Client Costs
Awarding entire legal expenses if in opinion of court for Awarding entire legal expenses if in opinion of court for unwarranted suits or defensesunwarranted suits or defenses
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Law ReportsLaw Reports
The published decisions of the courtsThe published decisions of the courts Found in different series of reportsFound in different series of reports
Case CitationsCase Citations Used by legal profession to identify cases as persuasive Used by legal profession to identify cases as persuasive
argument before the courtsargument before the courts Set system of citation must be usedSet system of citation must be used
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Administrative TribunalsAdministrative Tribunals
PurposePurpose Boards or commissions charged with regulation of Boards or commissions charged with regulation of
certain matterscertain matters Tribunals powers set forth in statutesTribunals powers set forth in statutes Limited to powers granted to them under statuteLimited to powers granted to them under statute
Ad hoc tribunalAd hoc tribunal Tribunal established to deal with a particular dispute Tribunal established to deal with a particular dispute
between partiesbetween parties
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ADRADR
Alternative Dispute ResolutionAlternative Dispute Resolution Alternatives to the courtsAlternatives to the courts
TypesTypes MediationMediation ArbitrationArbitration
Commercial arbitrationCommercial arbitration Labour arbitrationLabour arbitration
AdvantagesAdvantages Quicker, cheaper, confidentialityQuicker, cheaper, confidentiality
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Judicial Appointment ProcessJudicial Appointment Process
Federal GovernmentFederal Government Appoints Supreme Court, Federal Court, Tax Court, Appoints Supreme Court, Federal Court, Tax Court,
Provincial Supreme CourtsProvincial Supreme Courts Provincial GovernmentProvincial Government
Appoints provincial court judges (trial courts)Appoints provincial court judges (trial courts) ProcessProcess
Commissioner makes recommendations to a committeeCommissioner makes recommendations to a committee
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Legal ProfessionLegal Profession
Attorney – a lawyerAttorney – a lawyer Solicitor – preparation of documents, traditionally in Solicitor – preparation of documents, traditionally in
England could not appear in courtEngland could not appear in court Barrister – a lawyer who appeared in courtBarrister – a lawyer who appeared in court Canada – all lawyers are both barristers and solicitorsCanada – all lawyers are both barristers and solicitors
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SummarySummary
Legal system evolutionary in natureLegal system evolutionary in nature Purpose of judicial system is to ensure justicePurpose of judicial system is to ensure justice Courts have jurisdiction based on Courts have jurisdiction based on
Geographic;Geographic; Subject matter; orSubject matter; or Monetary amountMonetary amount
Appeals court hear appeals from lower courtsAppeals court hear appeals from lower courts ADR is used often in business for the advantages it ADR is used often in business for the advantages it
offers to litigationoffers to litigation