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Aug 29th, 2007 12:31 PM
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Court system

The two major models for courts are the civil law courts and the common law courts. Civil law courts are based upon the judicial system in France, while the common law courts are based on the judicial system in Britain. In most civil law jurisdictions, courts function under an inquisitorial system. In the common law system, most courts follow the adversarial system. Procedural law governs the rules by which courts operate: civil procedure for private disputes (for example); and criminal procedure for violation of the criminal law.


COURT SYSTEMS OF THE UNITED STATES

The U.S. court system is divided into two administratively separate systems, the federal and the state, each of which is independent of the executive and legislative branches of government. Such a dual court system is a heritage of the colonial period. By the time the U.S. Constitution had first mandated (1789) the establishment of a federal judiciary, each of the original Thirteen Colonies already had its own comprehensive court system based on the English model. Thus, the two systems grew side by side and came to exercise exclusive jurisdiction in some areas and overlapping, or concurrent, jurisdiction in others.


The Federal Court System

Of the two systems, the federal is by far the less complicated. According to Article III of the Constitution, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In accordance with this directive, the federal judiciary is divided into three main levels.

At the bottom are the federal district courts, which have original jurisdiction in most cases of federal law. Made up of 92 districts, the federal district court system has at least one bench in each of the 50 states, as well as one each in the District of Columbia and Puerto Rico. There are from 1 to more than 20 judges in each district, and, as with most federal jurists, district court judges are appointed by the President and serve for life. Cases handled by the federal district courts include those relating to alleged violations of the Constitution or other federal laws, maritime disputes, cases directly involving a state or the federal government, and cases in which foreign governments, citizens of foreign countries, or citizens of two or more different states are involved.

Directly above the district courts are the United States courts of appeals, each superior to one or more district courts. Established by Congress in 1891, the court of appeals system is composed of 11 judicial circuits throughout the 50 states plus one in the District of Columbia. There are from 6 to 27 judges in each circuit. In addition to hearing appeals from their respective district courts, the courts of appeals have original jurisdiction in cases involving a challenge to an order of a federal regulatory agency, such as the Securities and Exchange Commission.

The highest court in the federal system is the Supreme Court of the United States, the only federal court explicitly mandated by the Constitution. Since 1869 it has been composed of one Chief Justice and eight Associate Justices. The Supreme Court sits in Washington, D.C., and has final jurisdiction on all cases that it hears. The high court may review decisions made by the U.S. courts of appeals, and it may also choose to hear appeals from state appellate courts if a constitutional or other federal issue is involved. The Supreme Court has original jurisdiction in a limited number of cases, including those that involve high-ranking diplomats of other nations or those between two U.S. states.

In addition, the federal judiciary maintains a group of courts that handle certain limited types of disputes. Included among such special federal courts are the Court of Federal Claims, which adjudicates monetary claims against the U.S. government, and the Tax Court. Special court judges, unlike those in the three main levels of the federal judiciary, do not serve for life. The U.S. armed forces have courts-martial for cases involving military personnel.

At the end of the 1990s, controversy had arisen over the response of federal appeals courts to steadily increasing caseloads. Critics charged that the courts were saving few cases for full consideration and were perfunctorily affirming many lower court decisions rather than publishing reasoned opinions; many felt that this practice was eroding confidence in the system and was denying litigants a chance for further review by the Supreme Court. Defenders of the practice responded that it was necessary if speedy resolution of cases were to occur.


State Court Systems

The system of state courts is quite diverse; virtually no two states have identical judiciaries. In general, however, the states, like the federal government, have a hierarchically organized system of general courts along with a group of special courts. The lowest level of state courts, often known generically as the inferior courts, may include any of the following: magistrate court, municipal court, justice of the peace court, police court, traffic court, and county court. Such tribunals, often quite informal, handle only minor civil and criminal cases. More serious offenses are heard in superior court, also known as state district court, circuit court, and by a variety of other names. The superior courts, usually organized by counties, hear appeals from the inferior courts and have original jurisdiction over major civil suits and serious crimes such as grand larceny. It is here that most of the nation's jury trials occur. The highest state court, usually called the appellate court, state court of appeals, or state supreme court, generally hears appeals from the state superior courts and, in some instances, has original jurisdiction over particularly important cases. A number of the larger states, such as New York, also have intermediate appellate courts between the superior courts and the state's highest court. Additionally, a state may have any of a wide variety of special tribunals, usually on the inferior court level, including juvenile court, divorce court, probate court, family court, housing court, and small-claims court. In all, there are more than 1,000 state courts of various types, and their judges, who may be either appointed or elected, handle the overwhelming majority of trials held in the United States each year.


COURT SYSTEM OF CANADA

The Court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial.

The Canadian constitution gives the federal government the exclusive right to legislate criminal law while the provinces have exclusive control over civil law. The provinces have jurisdiction over the administration of justice in their territory. Almost all cases, whether criminal or civil, start in provincial courts and may be eventually appealed to higher level courts. The quite small system of federal courts only hear cases concerned with matters which are under exclusive federal control, such as immigration. The federal government appoints and pays for both the judges of the federal courts and the judges of the superior-level court of each province. The provincial governments are responsible for appointing judges of the lower provincial ("inferior-level") courts.

This intricate interweaving of federal and provincial powers is typical of the Canadian constitution.


Outline of the Court system

Very generally speaking, Canada's court system is a four-level hierarchy as shown below from highest to lowest in terms of legal authority. Each court is bound by the rulings of the courts above them; however, they are not bound by their own past rulings or the rulings of other courts at the same level in the hierarchy.


Supreme Court of Canada

Although created by an Act of the Parliament of Canada in 1875, its decisions could be reviewed by the Judicial Committee of the Privy Council until 1949 when the Supreme Court of Canada truly became the final and highest court in the country. The court currently consists of nine justices, which include the Chief Justice of Canada, and its duties include hearing appeals of decisions from the appellate courts (to be discussed next) and, on occasion, delivering references (i.e., the court's opinion) on constitutional questions raised by the federal government. By law, three of the nine justices are appointed from Quebec; because of Quebec's use of civil law.


Appellate courts of the provinces and territories

These courts of appeal (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels and were separately constituted in the early decades of the 20th century, replacing the former Full Courts of the old Supreme Courts of the provinces, many of which were then re-named Courts of Queens Bench. Their function is to review decisions rendered by the superior-level courts and to do references (i.e., deliver a judicial opinion) when requested by a provincial or territorial government. These appellate courts do not normally conduct trials and hear witnesses.

These courts are Canada's equivalent of the Court of Appeal in England and the various State Supreme Courts and U.S. Courts of Appeals in the United States. Each of the above-listed appellate courts is the highest court from its respective province or territory. A province's chief justice (i.e., highest ranking judge) sits in the appellate court of that province.


Superior-level courts of the provinces and territories

These courts (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels. The superior courts are the courts of first instance for divorce petitions, civil lawsuits involving claims greater than small claims, and criminal prosecutions for "indictable offences" (i.e., "felonies" in American legal terminology). They also perform a reviewing function for judgements from the local "inferior" courts and administrative decisions by provincial or territorial government entities such as labour boards, human rights tribunals and licensing authorities.

Furthermore, some of these superior courts (like the one in Ontario) have specialized branches that deal only with certain matters such as family law or small claims. To complicate things further, the Ontario Superior Court of Justice has a branch called the Divisional Court that hears only appeals and judicial reviews of administrative tribunals and whose decisions have greater binding authority than those from the "regular" branch of the Ontario Superior Court of Justice. Although a court, like the Supreme Court of British Columbia, may have the word "supreme" in its name, it is not necessarily the highest court from its respective province or territory.


Provincial and territorial courts

Each province and territory in Canada has an "inferior" or "lower" trial court. Appeals from these courts are heard by the superior court of the province or territory. These courts are created by provincial statute and only have the jurisdiction granted by statute. Accordingly, inferior courts do not have "inherent jurisdiction". These courts are usually the successors of older local courts presided over by lay magistrates and justices of the peace who did not necessarily have formal legal training. Many inferior courts have specialized functions, such as hearing only criminal law matters, youth matters, family law matters, small claims matters, "quasi-criminal" offences (i.e., violations of provincial statutes), or bylaw infractions. In some jurisdictions, these courts serve as an appeal division from the decisions of administrative tribunals.


Courts of the federal level

The Federal Court and the more specialized Tax Court of Canada exists primarily to review administrative decisions by federal government bodies such as the immigration board and hear lawsuits under the federal government's jurisdiction such as intellectual property and maritime law.

The Federal Court of Appeal hears appeals from decisions rendered by the Federal Court, the Tax Court of Canada and a certain group of federal administrative tribunals like the National Energy Board and the federal labour board. All judges of the Federal Court are ex officio judges of the Federal Court of Appeal, and vice versa, although it is rare that a judge of one court will sit as a member of the other.

Before 2003, the Federal Court was known as the Federal Court of Canada - Trial Division while the Federal Court of Appeal was known as the Federal Court of Canada - Appeal Division. In turn, the Federal Court of Canada is descended from the old Exchequer Court of Canada created back in 1875.

Although the federal type courts can be said to have the same prestige as the superior courts from the provinces and territories, the federal ones lack the "inherent jurisdiction" (to be explained later) possessed by superior courts such as the Ontario Superior Court of Justice.


Courts of military law
  • Court Martial Appeal Court of Canada
  • various military courts called "courts martial"
  • General Court Martial
  • Disciplinary Court Martial
  • Standing Court Martial
  • Special General Court Martial

The "courts martial" are conducted and presided over by military personnel and exist for the prosecution of military personnel, as well as civilian personnel who accompany military personnel, accused of violating the Code of Service Discipline, which is found in the National Defence Act (R.S.C. 1985, Chapter N-5) and constitutes a complete code of military law applicable to persons under military jurisdiction.

The decisions of the courts martial can be appealed to the Court Martial Appeal Court of Canada which, in contrast, exists outside the military and is made up of civilian judges. This appellate court is the successor of the Court Martial Appeal Board which was created in 1950, presided over by civilian judges and lawyers, and was the first ever civilian-based adjudicating body with authority to review decisions by a military court. The Court Martial Appeal Court is made up of civilian judges from the Federal Court, Federal Court of Appeal, and the superiour courts of the provinces. The current Chief Justice of the Court Martial Appeal Court (as of September 17, 2004) is Edmond P. Blanchard.


Federal and provincial administrative tribunals

Known in Canada as simply "tribunals", these are non-judicial adjudicative bodies, which means that they adjudicate (hear evidence and render decisions) like the courts do BUT are not presided over by judges. Instead, the adjudicators may be experts of the very specific legal field handled by the tribunal (e.g., labour law, human rights law, immigration law, energy law, liquor licensing law, etc.) who hear arguments and evidence provided by lawyers before making a written decision on record. Its decisions can be reviewed by a court through an appeal or a process called "judicial review". The reviewing court may be required to show some deference to the tribunal if the tribunal possesses some highly specialized expertise or knowledge that the court does not have. The degree of deference will also depend on such factors as the specific wording of the legislation creating the tribunal.

Tribunals may take into consideration the Canadian Charter of Rights and Freedoms, which is part of Canada's constitution. The extent to which tribunals may use the Charter in their decisions is a source of ongoing legal debate.

Appearing before some administrative tribunals may feel like appearing in a court, but the tribunal's procedure is relatively less formal than that of the court, and more importantly, the rules of evidence are not as strictly observed. In other words, some evidence that would be inadmissible in a court hearing could be allowed in a tribunal hearing. The presiding adjudicator is normally called "Mister/Madam Chair", and lawyers routinely appear in tribunals advocating a matter for their clients. A person does not require a lawyer to appear before an administrative tribunal. Indeed, many of these tribunals are specifically designed to be less formal than courts. Furthermore, some of these tribunals are part of a comprehensive dispute-resolution system, which may emphasize mediation rather than litigation. For example, provincial human rights commissions routinely use mediation to resolve many human rights complaints without the need for a hearing.

What tribunals all have in common is that they are created by statute, their adjudicators are appointed by government, and they focus on very particular and specialized areas of law. Because some subject matters (e.g., immigration) fall within federal jurisdiction while others (e.g., liquor licensing) in provincial jurisdiction, some tribunals are created by federal law while others are created by provincial law. Yet, there are both federal and provincial tribunals for some subject matters such as unionized labour and "human rights" (in American legal parlance, the "civil rights" of marginalized or/and disadvantaged social groups such as women, racial minorities, the disabled, homosexuals, certain religious groups, etc.).

Most importantly, from a lawyer's perspective, is the fact that the principle of stare decisis does not apply to tribunals. In other words, a tribunal adjudicative could legally make a decision that differs from a past decision, on the same subject and issues, delivered by the highest court in the land. Because a tribunal is not bound by legal precedent, established by itself or by a reviewing court, A tribunal is not court even though it performs an important adjudicative function and contributes to the development of law like a court would do. Although stare decisis does not apply to tribunals, their adjudicators will nonetheless find a prior court decision on a similar subject to be highly persuasive and will likely follow the courts in order to ensure consistency in the law and to prevent the embarrassment of having their decisions overturned by the courts.

Among the federal tribunals, there is a small group of tribunals whose decisions must be appealed directly to the Federal Court of Appeal rather than to the Federal Court Trial Division. These so-called "super tribunals" are listed in Subsection 28(1) of the Federal Court Act (R.S.C. 1985, Chapter F-7) and some examples include the National Energy Board, Canadian International Trade Tribunal, the Competition Tribunal, the Canada Industrial Relations Board (i.e. federal labour board), the Copyright Board, and the Canadian Radio-television and Telecommunications Commission ("CRTC").


Courts of inherent jurisdiction

These are the superior courts from the provinces and territories as discussed above. The words "inherent jurisdiction" refers to the fact that the jurisdiction of the superior courts is more than just what is conferred by statute. Following the principles of English common law, because the superior courts derive their authority from the Constitution, they can hear any matter unless there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to some other court or tribunal. The doctrine of "inherent jurisdiction" gives superior courts greater freedom than statutory courts (to be explained next) to be flexible and creative in the delivering of legal remedies and relief.


Statutory courts

These courts include the Supreme Court of Canada, the different types of federal courts, the various appellate courts from the provinces and territories, and the numerous low level "provincial" courts. Their decision-making power is granted by either the federal parliament or a provincial legislature.

The word "statutory" refers to the fact that these courts' powers are derived from a type of legislation called a statute and is defined and limited by a statute. A statutory court cannot try cases in areas of law that are not mentioned or suggested in the statute. In this sense, statutory courts are similar to non-judicial adjudicative bodies such as administrative tribunals, boards, commissions, etc. which are created and given limited power by legislation. The practical implication of this is that a statutory court cannot provide a type of legal remedy or relief that is not expressly or implicitly referred to in its enabling or empowering statute.


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