The Administrative Tribunals v Federal Administrative Tribunals Judicial appointments

The judiciary – collectively, the judges of the law courts – is the branch of government in which judicial power is vested (Gall, 2006). The effectiveness of the rules or rule-makers makes the system of democracy effective. There is no denying to the fact that Judges plays a quintessential role in maintaining law and order off a country. Judges are impartial decision makers who hear disputes, analyse evidence and make final decisions. They make sure that justice is delivered to every individual in the country through impartial trails.

 

Canada is a representative democracy. This gives each citizen the right to elect representatives at each level of government (federal, provincial or territorial, and municipal). These representatives make decisions and laws that affect all parts of life. The Constitution Act of 1867 provides for the establishment and operation of Canada’s professional judiciary. It gives the federal government exclusive lawmaking power over criminal law and criminal procedure but not over the establishment of criminal courts. The federal government appoints the judges of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court and the federal Tax Court of Canada. The federal and provincial and territorial governments are all responsible for the judicial system in Canada.

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Canada’s Court System (Department of Justice, 2017)

 

Courts

v Supreme Court of Canada

·         Court Martial Appeal Court

Ø  Military Courts

·         Provincial/Territorial Courts of Appeals

Ø  Provincial/Territorial Superior Courts

Ø  Provincial/Territorial Courts

·         Federal Court of Appeal

Ø  Federal Court

Ø  Tax Court of Canada

       Administrative Boards and Tribunals

v  Provincial/Territorial Administrative Tribunals

v  Federal Administrative Tribunals

 

Judicial appointments in Canada

There are two levels of courts in each province or territory (except Nunavut): superior (upper level) courts appointed by the federal government, and a provincial or territorial court appointed by the province or territory. The Commissioner for Federal Judicial Affairs has the overall responsibility for the administration of the judicial appointments process on behalf of the Government.  The Commissioner is expected to carry out his or her responsibilities in such a way as to ensure that the system treats all candidates for judicial office fairly and equally.  The Commissioner’s responsibility is exercised directly or by his or her delegate, the Executive Director, Judicial Appointments (Office of the Commisioner for Federal Judicial Affairs Canada, 2016)

 

·         Provincial courts

 

Candidates for these courts are screened by a judicial advisory committee established for each province or territory. The Committee consists of 13 members: 7 lay members, 2 judges, 1 member appointed by the Ontario Judicial Council, and 3 from the legal community.

 

·         Superior and federal courts

 

a lawyer who aspires to sit as a judge of a Superior Court in a province or territory or of the Federal Court of Appeal, the Federal Court or Tax Court of Canada sends in an application to the Commissioner for Federal Judicial Affairs Canada. The candidate can also be nominated by “members of the legal community and all other interested persons and organizations

The application is considered by a judicial advisory committee in the applicant’s province. These eight-member committees include:

 

§  A nominee of the provincial or territorial law society.

§   A nominee of the provincial or territorial branch of the Canadian Bar Association.

§  A judge nominated by the Chief Justice or senior judge of the province or territory.

§  A nominee of the provincial Attorney General or territorial Minister of Justice.

§  A nominee of the law enforcement community.

§  Three nominees of the federal Minister of Justice representing the general public.

The committee decides whether the candidate can be recommended. It may conclude that it is unable to recommend the candidate. (Choosing judges in Canada, 2010).

 

Role of Judge in Democratic Canada

Judges act as interpreters of constitutional rights and the division of powers, thus playing a key role in determining how Canadians relate to their government and to each other. Judges do not legislate or enforce the law. Judges interpret the intent and application of both written statutes passed by Parliament and the provincial legislatures, and they develop and apply the common law. Judges play many roles. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms.

Judicial interpretation refers to different ways that the judiciary uses to interpret the law, particularly constitutional documents and legislation. This is an important issue in some common law jurisdictions such as the United States, Australia and Canada, because the supreme courts of those nations can overturn laws made by their legislatures via a process called judicial review. Parliament makes the law, but it is the roles of judges to interpret parliament’s words. They have a measure of discretion and creative power in the manner in which they interpret legislation. Because legislation needs to be written so that it can be effectively applied in various circumstances, there can often be a lack of clarity or precision. Language can even create legislation that is obscure, ambiguous or meaningless, failing to achieve the end at which it is aimed simply through being badly drafted. Judges in such circumstances need to provide legislation with effective meaning.

Assessment of evidence presented-Another important function of judges is to assess the evidence presented during trails. the assessment of evidence is an operation by which the trial judge either asserts his inner conviction on the existence or non-existence of facts suggested by the evidence gathered and administered or declares that under legal rules applicable to evidence, the fact has to be taken as proven. (Uzelac, 2015). Lord Justice Browne said ‘So the main job of the judge at first instance is to decide the facts. How does he do it? When there is a conflict of evidence between witnesses, some judges believe that they can tell whether a witness is telling the truth by looking at him and listening to him. I seldom believed that’. Assessment of evidence is one of the toughest job judges do. Judges has to be impartial while doing so and they should make sure that justice is delivered to every individual in the country.

Trials and Hearings- Judges preside over trials and hearings. They hear arguments from attorneys, receive and review evidence and listen to witness testimony. Judges should make accurate and unbiased rulings based on evidences and by putting aside all personal feelings. They must remain impartial throughout the judging process and a judge should may not preside over a case if it involves her family, friends, or past or current employees or business associates. Judge must decide whether a witness told the truth and was accurate, or instead, testified falsely or was mistaken. Judge uses his experience to determine the credibility of witnesses and statements. Jurors are expected to make credibility decisions based on their common sense, which is also termed intuition or experience. This concept of common sense is considered essential to the jury’s task. When jurors exercise their common sense in evaluating a witness’ testimony, a full and fair credibility determination is presumed to follow. Special assistance from a judge or expert, therefore, would be superfluous’ and invade the exclusive province of the jury. (Friedland, 1989).