PART 1 – INTRODUCTION TO THE LAW
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Chapter 2 – The
Judicial System
Prepared by Douglas H. Peterson, University of
Alberta
Copyright © 2004 McGraw-Hill Ryerson Limited
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CHAPTER 2 – THE JUDICIAL SYSTEM
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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
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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
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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
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Types of Courts of Law
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Trial Courts
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Courts of Original Jurisdiction
Courts of Appeal
Court in which a legal action is first brought
before a judge for a decision
Inferior
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Provincial division: civil (small claims); criminal;
young offenders; family court
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STRUCTURE OF JUDICIAL SYSTEM
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Superior Courts
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Court of Queen’s Bench; Surrogate Court
Characteristics of courts of original
jurisdiction
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Facts presented
Witnesses called
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STRUCTURE OF JUDICIAL SYSTEM
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Courts of Appeal
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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
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Federal Courts
Supreme Court of Canada
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Highest court in Canada
Federal Court of Appeal
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Hears appeals from tax court and federal court
trial division
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STRUCTURE OF JUDICIAL SYSTEM
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Federal Court Trial Division
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Disputes between federal and provincial
government
Matters of federal government
Admiralty, tax, patent, trademark, immigration
Appeals from federal boards and tribunals
Tax Court
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Special division of federal court
Hears only tax matters
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FEDERAL COURT
Copyright © 2004 by McGraw-Hill Ryerson Limited.
Federal
Court
Trial Division
Federal
Court
of Appeal
Trial Court
Appeal Court
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Supreme
Court of
Canada
Final Court of
Appeal
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STRUCTURE OF JUDICIAL SYSTEM
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Provincial Courts
Inferior Courts
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Superior Courts
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Provincial Courts
Court of Queen’s Bench
Appeal Courts
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Alberta Court of Appeal
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STRUCTURE OF JUDICIAL SYSTEM
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Criminal Courts
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Magistrate’s or Provincial Court
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Provincial Supreme Court
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Original jurisdiction
Less serious crimes
More serious criminal matters
Often traveling judges
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STRUCTURE OF THE JUDICIAL SYSTEM
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Youth Courts
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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
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Deal with domestic problems and family related
matters
Divorces, child support and custody
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STRUCTURE OF THE JUDICIAL SYSTEM
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Criminal Courts of Appeal
All criminal appeals reviewed by province’s
appeal courts
Supreme Court of Canada
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Criminal appeals from provincial appeal courts
Leave to Appeal
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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/Territorial
Supreme/Superior
Courts of Appeal
Provincial/Territorial
Supreme/Superior Courts
Magistrate’s/Provincial/Youth
Courts (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
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Three Bodies that Enforce the Law
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Criminal Court
Civil Courts
Administrative Tribunals
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THE JUDICIAL SYSTEM IN ACTION
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Criminal Court Procedure
2 Types of Offences
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Summary offences – less serious
Indictable Offences – more serious
Procedure
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Dispose or Preliminary hearing
Dispose - charge read to accused - guilty or not guilty
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THE JUDICIAL SYSTEM IN ACTION
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If guilty plea
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If plead not guilty
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Crown reads particulars
speak to sentence
Sentence
Conviction
Crown must prove case – beyond a reasonable doubt
2 requirements for a conviction
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Actus reus – criminal act was committed
Mens rea – accused had intended to commit the crime
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THE JUDICIAL SYSTEM IN ACTION
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Trial Procedure
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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/Territorial
Courts of Appeal
Divisional
Court 
Federal Court of Appeal
Provincial/Territorial
Supreme/Superior Courts
Federal Court,
Trial Division
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Small Claims/Magistrate’s †
Provincial Courts
(limited right of appeal)
Surrogate/Probate
Courts, etc.
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Tax Court
* 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
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Civil Court Procedure (Civil Litigation)
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Commencement of An Action
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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
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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
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Admit facts not in dispute
Deny facts
Set out facts
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THE JUDICIAL SYSTEM IN ACTION
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Counter claim
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Pleadings
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Same facts - claim by defendant against Plaintiff
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
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Discovery (Examination for Discovery)
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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
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Pre-trial conference
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Close of pleadings
Certificate of Readiness
Notice of trial
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Set out facts and issues and try to resolve before
going to court - encourage settlement
parties ready to go to trial
Minitrial
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on limited number of issues
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THE JUDICIAL SYSTEM IN ACTION
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Trial
Burden
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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
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Procedure
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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
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Witnesses
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Ordinary
Expert
I.E.) Doctor, professor, psychologist
Civil Procedure
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Judgment
Appeal
Affirm/Vary/Reverse/New Trial
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THE JUDICIAL SYSTEM IN ACTION
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Costs
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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
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Law Reports
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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
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Administrative Tribunals - established by and
under legislation
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Powers limited to those granted under legislation
Less formal than court hearings
Boards / Commissions
Regulatory
Less formal
Recourse to courts
Permanent vs. Ad hoc
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Ad Hoc - tribunal established to deal with a particular
dispute between parties
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ALTERNATIVE DISPUTE RESOLUTION
(ADR)
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Alternative Dispute Resolution
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Arbitration
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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)
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Mediation
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Third party who works to clarify issues and
establish a framework for communications
Suggests solutions
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ALTERNATIVE DISPUTE RESOLUTION
(ADR)
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Advantages
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International arbitration
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Faster
Cheaper
confidential
Handled by international arbitration bodies
Labor disputes
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Often uses arbitration to solve collective
agreements between labor and management
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JUDICIAL APPOINTMENT PROCESS
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Appointed by the federal or provincial
governments
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Federal
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Supreme Court; Federal Court; Tax Court
Provincial
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Provincial Courts: Inferior; Superior; Appeal courts
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JUDICIAL APPOINTMENT PROCESS
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4 Step Procedure
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Federal Commissioner for Judicial Affairs
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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
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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
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Law enforced through the legal system
Legal system has been developed in an
evolutionary manner
Legal system divided by geography and
jurisdiction
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Criminal; civil; administrative
ADR exists as an alternative to litigation
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