Courts, Tribunals, and Commissions

… a core topic in Governance and Institutions and Atlas100

SupremeCourtTopic description

This topic examines the role of legal institutions (such as courts and tribunals) in policymaking and administration, including the relationship between the judiciary, quasi-judicial bodies, the executive, and the legislature.

Topic learning outcome

Upon completing this topic the student will be familiar with the role of legal institutions in policymaking and administration and will be familiar with the concepts in the table below.

Core concepts associated with this topic
Judiciary

Canadian Courts of Law

Judicial Councils

Common Law

Stare Decisis

Criminal Law

Constitutional Law

Administrative Law

Judicialization of Politics

Charter Dialogue between Courts and Legislatures

Impartiality

Adjudication

Natural Justice

Quasi-judicial Body

Administrative Tribunals

Human Rights Commissions

Human Rights Tribunals

Conflict of Interest and Ethics Commissioner

Commissioner of Lobbying

Public Sector Integrity Commissioner of Canada

Recommended readings for 8 hours of preparation

Concept pages noted above.

Gerald Gall (2013), Judiciary, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/judiciary/, accessed 7 November 2016.

Peter Doody, T.B. Smith, and Gerald Gall (2006, updated 2013), Courts of Law, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/courts-of-law/, accessed 7 November 2016.

John Brierley (2014), Common Law, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/common-law/, accessed 7 November 2016.

Wikipedia (2016), Common law, at https://en.wikipedia.org/wiki/Common_law, accessed 7 November 2016.

A. Pringle (2014), Criminal Law, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/criminal-law/, accessed 7 November 2016.

Gerald Beaudoin and Jon Tattrie (2013), Constitutional Law, at http://www.thecanadianencyclopedia.ca/en/article/constitutional-law/, accessed 7 November 2016.

J.G. Cowan and Thomas Kuttner (2013), Administrative Law, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/administrative-law/, accessed 7 November 2016.

Peter Hogg and Allison Bushell (1997), The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing after All), Osgoode Hall Law Journal 35(1):75-124, at http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1612&context=ohlj, accessed 7 November 2016.

Ran Hirschl (2006), Fordham Law Review, Vol. 75, No. 2, pp. 721-754, at https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=951610, accessed 7 November 2016.

Canadian Superior Courts Judges Association, An Independent and Impartial Judiciary, at http://www.cscja-acjcs.ca/independent_impartial-en.asp?l=5, accessed 15 November 2016.

UK Civil Servant, Impartiality and Political Impartiality, at http://www.civilservant.org.uk/ethics-impartiality.html, accessed 15 November 2016.

Troy Jollimore (2011), Impartiality, Stanford Encyclopedia of Philosophy, at http://plato.stanford.edu/entries/impartiality/, accessed 15 November 2016. Reference cited by Jollimore above is: Gert, Bernard, 1995. “Moral Impartiality,” Midwest Studies in Philosophy, XX: 102–127.

Ministry of the Attorney General, Guidelines for Administrative Tribunals, at https://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/french_language_services/services/administrative_tribunals.php, accessed 15 November 2016.

Recommended readings in MPP and MPA courses

TO COME

Concept comprehension questions

AQ100.09.01. Among statements a-d pertaining to the judiciary choose one that is invalid or choose e if all are reasonably valid.

a. The judiciary as the branch of government in which judicial power is vested.

b. In Canada, the Constitution gives the federal government exclusive lawmaking power over criminal law and criminal procedure and it gave the provinces exclusive lawmaking power over the administration of justice in each province.

c. In Canada, the Constitution gives the federal government the authority to appoint judges at all levels of the courts including magistrates and justices of the peace.

d. Whether it presides over criminal prosecutions or civil lawsuits, the role of the judiciary is to serve as an impartial arbiter, and the court’s impartiality flows from an essential feature of the judicial system – independence of the judiciary.

e. All of a-d are reasonably valid statements.

AQ100.09.02. Among statements a-d pertaining to the Canadian courts of law choose one that is invalid or choose e if all are reasonably valid.

a. A fundamental aspect of the Canadian judicial system is the essentially unitary aspect of Canadian courts provided by provincial superior courts of general jurisdiction with federally appointed judges.

b. In Canada, the provinces constitute, maintain and organize superior, county and district courts of both civil and criminal jurisdiction, and the federal government appoints the judges and pays their salaries.

c. In Canada, provincial or municipal governments appoint judges of provincial lower courts, magistrates, justices of the peace, coroners, sheriffs and other officers of provincial courts.

d. In Canada, provincially appointed judges deal with provincial but not federal legislation.

e. All of a-d are reasonably valid statements.

AQ100.09.03. Among statements a-d pertaining to the judicial councils choose one that is invalid or choose e if all are reasonably valid.

a. In most jurisdictions a there is a judicial council with a mandate to review complaints against judges and to promote the quality of the judicial service.

b. In Canada, the Canadian Judicial Council is chaired by the Chief Justice of Canada and there are 38 other Council members, who are the chief justices and associate chief justices of Canada’s superior courts, the senior judges of the territorial courts, and the Chief Justice of the Court Martial Appeal Court of Canada.

c. The complaint review procedure at the Ontario Judicial Council involves an initial investigation of a citizen’s complaint by a two-member subcommittee which makes a report to a review panel of the Council which can dismiss a complaint, refer the complaint to the Chief Justice of the Ontario Court of Justice to speak to the judge about concerns raised in the complaint, or order that a formal, public hearing into the complaint.

d. In Canada, federally appointed judges cannot be removed through a provincially-organized body such as the Ontario Judicial Council.

e. All of a-d are reasonably valid statements.

AQ100.09.04. Among statements a-d pertaining to the common law choose one that is invalid or choose e if all are reasonably valid.

a. Common law as the system of law that evolved from the decisions of the English royal courts of justice since the Norman Conquest.

b. Common law is includes statutes as well as decisions and applies in most English-speaking countries, including all Canadian provinces except Québec.

c. Common law systems place great weight on court decisions, which are considered law with the same force of law as statutes.

d. In civil law jurisdictions courts lack authority to act if there is no statute and judicial precedent is given less interpretive weight whereas scholarly literature is given more weight than in common law systems.

e. All of a-d are reasonably valid statements.

AQ100.09.05. Among statements a-d pertaining to stare decisis choose one that is invalid or choose e if all are reasonably valid.

a. Stare decisis is the doctrine of precedent and a crucial element of common law.

b. Courts cite stare decisis when an issue has been previously brought to the court and a ruling already issued and in this way stare decisis discourages litigating established precedents, and thus, reduces costs in the judicial system.

c. Critics argue that the stare decisis doctrine occasionally permits erroneous decisions to continue influencing the law and encumbers the legal system’s ability to quickly adapt to change.

d. Because stare decisis requires that cases must be decided the same way only when all the facts are the same, the doctrine has limited applicability in real life where the facts of the case are never exactly the same.

e. All of a-d are reasonably valid statements.

AQ100.09.06. Among statements a-d pertaining to the distinction between common law and stare decisis choose one that is invalid or choose e if all are reasonably valid.

a. Common law includes interpretation of the Constitution by the courts and stare decisis occurs when a previous decision has been overturned.

b. Common law includes the interpretation of legislative statutes by the courts; stare decisis is a component of common law that refers to the situation when courts adhere to a previous ruling.

c. Common law includes interpretation of the Constitution by the courts and stare decisis includes a situation when courts adhere to rulings by a higher court.

d. Common law includes interpretation of legislative statutes by the courts; stare decisis is a component of common law that discourages reviewing established precedents.

e. All of a-d are reasonably valid statements.

AQ100.09.07. Among statements a-d pertaining to criminal law choose one that is invalid or choose e if all are reasonably valid.

a. Criminal law as a body of law that prohibits certain kinds of conduct and imposes sanctions for unlawful behaviour.

b. Prohibitions contained in criminal offences include those related to: protection of the person (e.g., murder and assault offences); protection of property (e.g., theft and fraud offences); preservation of the public peace (e.g., incitement to riot and causing a disturbance offences); and preservation of the state (e.g., treason offences).

c. Prohibitions related to preservation of morality (through such laws as the obscenity and prostitution offences) form part of administrative law or constitutional law rather than criminal law.

d. Criminal law is a means by which society reaffirms its values and denounces violators and may be amended if a change in values entails a change in the types of conduct society wishes to prohibit.

e. All of a-d are reasonably valid statements.

AQ100.09.08. Among statements a-d pertaining to administrative law choose one that is invalid or choose e if all are reasonably valid.

a. Administrative law deals with the administration of justice and in Canada it provides all persons with due process, regardless of their citizenship.

b. The major purpose of administrative law is to ensure that the activities of government are authorized by Parliament or by provincial legislatures, and that laws are implemented and administered in a fair and reasonable manner.

c. Administrative law is based on the principle that government action, whatever form it takes, must be legal, and that citizens who are affected by unlawful acts of government officials must have effective remedies.

d. Canadian courts will only exercise their control over administrative authorities if the authority exceeds its jurisdiction, if it makes a decision which is patently unreasonable or if it follows improper or unfair procedures.

e. All of a-d are reasonably valid statements.

AQ100.09.09. Among statements a-d pertaining to the distinction between Constitutional Law and Administrative Law choose one that is invalid or choose e if all are reasonably valid.

a. Administrative law concerns the actions taken by government; constitutional law concerns interpretation of the Constitution by the judiciary.

b. Administrative law concerns the actions taken by government; constitutional law pertains to the functioning of the state.

c. Administrative law concerns interpretation of laws by the courts; constitutional law dictates that actions taken by the government must be legal.

d. Administrative law dictates that actions taken by the government must be legal; constitutional law concerns areas of law that everyone must follow although not explicitly stated.

e. All of a-d are reasonably valid statements.

AQ100.09.10. Among statements a-d pertaining to Ran Hirschl’s critique on the judicialization of politics choose one that is invalid or choose e if all are reasonably valid.

a. Ran Hirschl defines the judicialization of politics as the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies.

b. Ran Hirschl argues that the judicialization of politics is basically a generic form of judicial activism.

c. Ran Hirschl notes that newly acquired judicial review procedures, national high courts worldwide have been frequently been asked to resolve public policies is areas pertaining to criminal justice, property, trade and commerce, education, immigration, labor, and environmental protection.

d. Ran Hirschl claims that we are witnessing the spread of legal discourse, jargon, rules, and procedures into the political sphere and policy-making forums and processes so that matters that had previously been negotiated in an informal or nonjudicial fashion have now come to be dominated by legal rules and procedures.

e. All of a-d are reasonably valid statements.

AQ100.09.11. Among statements a-d pertaining to Andrew Petter’s critique on the judicialization of politics choose one that is invalid or choose e if all are reasonably valid.

a. Andrew Petter claims that elected officials would prefer to have a stronger role in deciding upon high profile policy issues that go to the heart of nation building and collective identity but that they are prevented from doing so by courts who prefer to determine the outcome through judicial review procedures.

b. Andrew Petter claims that since the Charter came into force in 1982, issues of rights in Canada have increasingly become identified and understood as being legal rather than political in nature.

c. Andrew Petter claims that the judicialization of politics has produced two spheres of public discourse: a sphere of justice and rights that has become the primary domain of lawyers and courts and a sphere of policy and interests that remains the principal preserve of politicians and legislatures.

d. Andrew Petter claims that the event of conflict between the sphere of justice and rights and the sphere of policy and interests those who speak in the language of the former usually have a rhetorical and political advantage over those who speak in the language of the latter.

e. All of a-d are reasonably valid statements.

AQ100.09.12. Among statements a-d pertaining to charter dialogue between courts and legislatures choose one that is invalid or choose e if all are reasonably valid.

a. Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislative body as a dialogue.

b. Hogg and Bushell reviewed of 65 cases where charter dialogue could be at play and concluded that Court never rendered decisions that force the democratically elected legislative body to modify its objectives to accommodate the Court’s concerns.

b. Hogg and Bushell reviewed of 65 cases where charter dialogue could be at play and concluded that the critique of the Charter based on democratic legitimacy cannot be sustained.

c. Hogg and Bushell concluded that, although the Supreme Court of Canada does from time to time strike down statutes enacted by legislative bodies, the decisions of the Court almost always leave room for a legislative response, and they usually get a legislative response.

e. All of a-d are reasonably valid statements.

AQ100.09.13. Among statements a-d pertaining to impartiality choose one that is invalid or choose e if all are reasonably valid.

a. The Canadian Superior Courts Judges Association states that it is not enough for the judiciary, as an institution, to be independent – individual judges must be seen to be objective and impartial and this means that in their personal lives, judges must avoid words, actions or situations that might make them appear to be biased or disrespectful of the laws they are sworn to uphold.

b. For public servants, the doctrine of impartiality means that one must serve the Government, whatever its political persuasion, to the best of one’s ability in a way which maintains political impartiality no matter what one’s own political beliefs are.

c. For public servants, the doctrine of impartiality means that one must deal equally with everyone, and with every organisation, without prejudice, favour or disfavour.

d. For public servants, the doctrine of impartiality permits one to act in a way which deserves and retains the confidence of Ministers, while at the same time ensuring that one will be able to establish the same relationship with those whom one may be required to serve in some future Government.

e. All of a-d are reasonably valid statements.

AQ100.09.14. Among statements a-d pertaining to adjudication choose one that is invalid or choose e if all are reasonably valid.

a. Unlike litigation, adjudication generally allows the parties to design most aspects of the resolution process to suit their needs and the nature of the dispute.

b. The requirements of full adjudication include notice to all interested parties (all parties with a legal interest in, or legal right affected by, the dispute) and an opportunity for all parties to present evidence and arguments.

c. The adjudicative process is governed by formal rules of evidence and procedure, and a decision is rendered by an impartial, passive fact finder, usually a judge, jury, or administrative tribunal.

d. Adjudication is the legal process of resolving a dispute.

e. All of a-d are reasonably valid statements.

AQ100.09.15. Among statements a-d pertaining to procedural fairness and natural justice choose one that is invalid or choose e if all are reasonably valid.

a. A key role of tribunals and courts in Administrative Law is to ensure procedural fairness by following the principles of natural justice.

b. Natural justice uses a set of rules based on natural human expectations of how people should be treated and are more readily understandable than the rules covering formal court procedure.

c. The procedures associated with natural justice include the basic requirement of the “right to be heard.”

d. The procedures associated with natural justice have two basic objectives: to ensure that every person whose interests are at risk is entitled to participate in the process before a decision is taken affecting their interests, whether by hearing or otherwise, and that any decision made by tribunal is impartial and not biased.

e. All of a-d are reasonably valid statements.

AQ100.09.16. Among statements a-d pertaining to administrative tribunals one that is invalid or choose e if all are reasonably valid.

a. An administrative tribunal is an autonomous agency that is independent of the government and is responsible for settling disputes between the government and its citizens.

b. In Ontario an administrative tribunal can be called a tribunal, an agency, a board or a commission.

c. In order to ensure a uniform of the administrative fairness and natural justice, in Ontario all administrative tribunals come under the jurisdiction of the Ministry of the Attorney General.

d. There are over 200 administrative tribunals in Ontario.

e. All of a-d are reasonably valid statements.

AQ100.09.17. Among statements a-d pertaining to administrative tribunals one that is invalid or choose e if all are reasonably valid.

a. An administrative tribunal is an autonomous agency that is independent of the government and is responsible for settling disputes between the government and its citizens.

b. In Ontario an administrative tribunal can be called a tribunal, an agency, a board or a commission.

c. In order to ensure a uniform of the administrative fairness and natural justice, in Ontario all administrative tribunals come under the jurisdiction of the Ministry of the Attorney General.

d. There are over 200 administrative tribunals in Ontario.

e. All of a-d are reasonably valid statements.

AQ100.09.18. Among statements a-d pertaining to the human rights commissions choose one that is invalid or choose e if all are reasonably valid.

a. A human rights commission as a department, body, or committee constituted by a state or its local government to investigate on human rights violations and to protect human rights.

b. A human rights commission can be set up at international, national or sub-national levels.

c. The Canadian Human Rights Commission was created to administer the Canadian Human Rights Act and it also ensures compliance with the Employment Equity Act.

d. Because human rights commissions are quasi-judicial bodies they are usually led by experts in legal process rather than by prominent advocates of human rights.

e. All of a-d are reasonably valid statements.

AQ100.09.19. Among statements a-d pertaining to the human rights tribunals choose one that is invalid or choose e if all are reasonably valid.

a. Human rights commissions in most jurisdictions are quasi-judicial bodies with statutory mandates to apply and interpret human rights acts.

b. Because human rights tribunals similar to courts of law they are usually led by experts in law and legal process rather than by advocates of human rights.

c. The Canadian Human Rights Tribunal has a statutory mandate to apply the Canadian Human Rights Act based on the evidence presented and on the case law.

d. The Canadian Human Rights Tribunal uses the full procedures of a court of law to cases that are referred to it by the Canadian Human Rights Commission.

e. All of a-d are reasonably valid statements.

AQ100.09.20. Among statements a-d pertaining to the distinction between human rights commissions and human rights tribunals choose the one that is most valid or choose e if none are valid.

a. Human rights commissions are constituted by the state or local government to interpret a human rights act; human rights tribunals are quasi-judicial bodies responsible for advocating and promoting human rights and investigating violations.

b. Human rights commissions are quasi-judicial bodies responsible for protecting human rights; human rights tribunals are constituted by the state and are responsible for enforcing a human rights act.

c. Human rights commissions are constituted by the state and are responsible for protecting human rights and investigating violations; human rights tribunals are quasi-judicial bodies that are solely responsible for interpreting human rights acts.

d. Human rights commissions are responsible for holding formal court hearings for violations of human rights acts; human rights tribunal is just the name of the court where these hearings take place.

e. None of a-d is a valid statement.

AQ100.09.21. Among statements a-d pertaining to the Conflict of Interest and Ethics Commissioner choose one that is invalid or choose e if all are reasonably valid.

a. The Conflict of Interest and Ethics Commissioner is an independent Officer of Parliament.

b. The Conflict of Interest and Ethics Commissioner helps Members of the House of Commons and Senators avoid conflicts between their public duties and private interests.

c. The mission of the Office of the Conflict of Interest and Ethics Commissioner is to administer the conflict of interest rules for Members of the House of Commons and public office holders.

d. The duties of the Conflict of Interest and Ethics Commissioner include advising public office holders, reviewing their confidential information, making available publicly declarable information, investigating possible contraventions and reporting to Parliament.

e. All of a-d are reasonably valid statements.

AQ100.09.22. Among statements a-d pertaining to the Commissioner of Lobbying choose one that is invalid or choose e if all are reasonably valid.

a. The Commissioner of Lobbying conducts reviews and investigations to ensure compliance with the Act and the Lobbyists’ Code of Conduct.

b. The Commissioner of Lobbying is an independent Officer of Parliament, appointed by both houses of Parliament for a term of seven years.

c. The Commissioner of Lobbying certifies lobbyists before they meet with pubic officials.

d. The Commissioner of Lobbying maintains a Registry of Lobbyists, which contains and makes public the registration information disclosed by lobbyists.

e. All of a-d are reasonably valid statements.

AQ100.09.23. Among statements a-d pertaining to the Public Sector Integrity Commissioner of Canada choose one that is invalid or choose e if all are reasonably valid.

a. The Office of the Public Sector Integrity Commissioner investigates wrongdoing in the federal public sector and helps protect from reprisal whistleblowers and those who participate in investigations.

b. The Public Sector Integrity Commissioner reports directly to Parliament.

c. The Office provides a confidential and independent response to disclosures of wrongdoing in the federal public sector from public servants or members of the public.

d. The Office provides a confidential and independent response to complaints of reprisal from public servants and former public servants.

e. All of a-d are reasonably valid statements.

Page created by: Ian Clark, last modified on 14 February 2017.

Image: Canada’s Historic Places, Supreme Court Building, at http://www.historicplaces.ca/en/rep-reg/image-image.aspx?id=3564#i1, accessed 18 August 2016.