Blaw03a - Elements of Law Part One Part I The Canadian Legal System And How It Works Unit 3 The Canadian Legal System © 2007 Captus Press Inc

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Unformatted text preview: Elements of Law - Part One Part I The Canadian Legal System And How It Works Unit 3 The Canadian Legal System © 2007 Captus Press Inc. Module 1 The Development of the Court System © 2007 Captus Press Inc. © 2007 Captus Press Inc. 1 Elements of Law - Part One Common Characteristics of Canadian, U.S, and English Courts Higher court judges in all 3 systems are appointed by the political executive, The courts interpret and apply and develop the case law that makes up the common law, and interpret and apply legislation. Judges once appointed are independent—their salaries and their tenure are protected There is a hierarchy of courts, ranging from superior courts with broad jurisdiction, to lower courts with a narrower jurisdiction There is a distinction between trial courts, sometimes called courts of first instance, and appeal courts which review decisions made in the trial courts. Common Characteristics of Canadian, U.S, and English Courts (cont’d) Judges do not train for careers as judges; rather they become judges as a mid career move. All 3 systems place a high value on judicial independence, objectivity and rationality in applying and interpreting the law Judges are expected to stay out of politics and out of the public eye. Removal of judges from the courts is very difficult, and can be done only for very serious misconduct © 2007 Captus Press Inc. 2 Elements of Law - Part One Differences between Canadian, U.S. and English courts Judges are not elected in the English and Canadian system but lower court judges in the U.S. are elected Judges in England and Canada are appointed directly by the Executive. There is no guarantee in Canada that the appointment process will be public. In the United States, as part of a checks-andbalances governmental system, the Senate reviews the judicial appointment of higher court judges, and may reject an appointment by the President. Differences between Canadian, U.S. and English courts (cont’d) British courts interpret law, but they cannot invalidate legislation passed by Parliament. American and Canadian courts do have the power to overrule legislation because it breaches constitutional standards. © 2007 Captus Press Inc. 3 Elements of Law - Part One Module 2 The Canadian Judicial System © 2007 Captus Press Inc. The constitutional basis of the Canadian judicial system The province is authorized to establish a system of civil and criminal courts in the province The province is authorized to determine the procedure used in courts trying civil matters. The federal government is authorized to determine criminal law and procedure used in the provincial court systems. Judges in the superior courts of the province are appointed and paid by the federal government. © 2007 Captus Press Inc. 4 Elements of Law - Part One The constitutional basis of the Canadian judicial system (cont’d) Judges in the lower courts of the province are appointed by and paid by the provincial government. The federal government is authorized to establish certain courts of special jurisdiction such as the Federal Court of Canada, and the Supreme Court of Canada. The Canada Act 1982, and the Charter, gave the courts at all levels the power of judicial review of acts of the executive and the legislative institutions of the federal and provincial governments. The basis of court jurisdiction Authority over the issue or subject matter of the lawsuit Authority over the parties. © 2007 Captus Press Inc. 5 Elements of Law - Part One The Canadian federal court system Supreme Court of Canada Federal Court of Canada, Appellate Division Federal Court of Canada, Trial Division Tax Court Provincial Court System Provincial Court of Appeal Provincial Superior Court Provincial Court © 2007 Captus Press Inc. 6 Elements of Law - Part One STEPS IN THE CRIMINAL PROCESS Offence: summary or indictable If summary- try in provincial criminal court If indictable Accused entitled to preliminary inquiry If accused committed to trial in most cases can choose - trial by superior court judge and jury or Trial by superior court judge alone Criminal trial procedure Crown presents its case through witnesses Defence cross examines to erode Crown case At end of Crown case, accused can ask for dismissal if Crown has not proved its case Accused can call defence witnesses accused can testify, but is not required to No adverse inference can be drawn from refusal to testify At the end of defence case, if there is a jury, each side will address the jury Judge will instruct jury Jury will deliberate and decide guilt or innocence Judge will sentence accused if convicted © 2007 Captus Press Inc. 7 Elements of Law - Part One The Civil process Plaintiff issues statement of claim Defendant issues statement of defence Plaintiff replies to statement of defence Each party conducts oral examination for discovery of the other Each party provides discovery of relevant documents At conclusion of discovery process either party lists the case for trial Parties may attend a pre trial conference Claim is tried, with or without a jury Problem and Concern about the Operation of the Judicial System High costs Delays If you lose a civil trial, you will have to pay some of the winning party’s costs as well © 2007 Captus Press Inc. 8 Elements of Law - Part One Module 3 The American Judicial System © 2007 Captus Press Inc. The U.S. Federal Court System United States Supreme Court 11 regional Federal Courts of Appeal Within each region, Federal District Courts Tax court Customs court © 2007 Captus Press Inc. 9 Elements of Law - Part One U.S. State Court System State Court of Appeal-single or multi level Superior trial court: District, County or Superior Court Lower trial court:Municipal or Small Claims court, lower criminal court Module 4 Administrative Tribunals © 2007 Captus Press Inc. © 2007 Captus Press Inc. 10 Elements of Law - Part One Functions of Administrative Tribunals Grant licenses, Determine and regulate conditions for operation or conduct within a regulated industry Set rates settle disputes. Module 5 Alternate Dispute Resolution (ADR) © 2007 Captus Press Inc. © 2007 Captus Press Inc. 11 Elements of Law - Part One ADR Mediation arbitration Module 6 Canadian Judicial Appointment Procedures © 2007 Captus Press Inc. © 2007 Captus Press Inc. 12 Elements of Law - Part One Canadian Judicial Appointment Process A four step procedure. candidates have their credentials and application reviewed by the Federal Commissioner for Judicial Affairs candidate then reviewed by provincial committee which reports candidate as “qualified” or “not qualified” If qualified, candidate is added to list by Commissioner for Judicial Affairs Minister of Justice or Prime Minister normally chooses from “qualified” list to fill vacancies. Procedure for removing judges from office in Canada Complaint about judicial behaviour Complaint about provincially appointed judge referred to provincial judicial council Complaint about federally appointed judge referred to federal judicial council\ Counsel hears allegations and makes determination If there is judicial misconduct, judicial council may decide penalty If decision is to remove a federal judge from office, federal government prepares joint address to Senate and House of Common to remove judge © 2007 Captus Press Inc. 13 Elements of Law - Part One Module 7 The Legal Profession © 2007 Captus Press Inc. Requirements for becoming a lawyer At least 2 years of university education 3 year law degree Article with a lawyer for 1 year. Pass bar admission course Call to the bar © 2007 Captus Press Inc. 14 Elements of Law - Part One Specialist certification for lawyers Undergo peer review Devote significant part of practice to the specialty for which certification is sought Attend continuing education courses in specialty No exams or practical demonstration of skills required Lawyer misconduct Professional misconduct- in the practice of law Conduct unbecoming to a barrister and solicitor- not related to legal practice but conduct which reflects badly on the profession © 2007 Captus Press Inc. 15 Elements of Law - Part One Module 8 Using Lawyers © 2007 Captus Press Inc. Choosing a lawyer Generalist or specialist Use a junior or a more senior lawyer Use a small, medium or large firm © 2007 Captus Press Inc. 16 Elements of Law - Part One Using a lawyer A lawyer advises, a client instructs A lawyer is not bound to follow illegal instructions A lawyer must keep what you say confidential A lawyer must represent your interest completely and avoid any conflict of interest Once a lawyer accepts a retainer, he must carry out his or her duties unless he is not paid or does not receive instructions. © 2007 Captus Press Inc. 17 ...
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This note was uploaded on 01/16/2011 for the course ADMS 2610 taught by Professor Joshuasera during the Fall '10 term at York University.

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