65 10.5 The Administration of Justice – Some Background for Judicial interns

Introduction

The Canadian Judicial Council website effectively breaks down the “separation of powers” in Canada’s democratic legal system. Students will have learned this in Constitutional Law; however, seeing the division of powers in action can be a different experience and help solidify these important concepts.  For an overview of the role of the legislative branch and the executive branch, see this CJC webpage.

In this section, we will briefly cover the courts of Canada, how judges are appointed, and the day-to-day operations and responsibilities of the courts. We will introduce the many roles or positions students will likely encounter as a student while interning in a courthouse.

Provincial vs. Federal Jurisdiction

In a quick review of 1L Constitutional Law, students will recall the distribution of legislative powers prescribed in the Constitution Act s. 91 and 92. These sections list the classes of subjects that fall within the legislative authority of the parliament of Canada (federal jurisdiction) and the provincial legislation, respectively. Section 92(14) gives the provincial legislation power over “The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.” We see federal laws first tried and appealed in provincial courts. The highest appeal court in Canada is the Supreme Court of Canada, which is a federal court. Tax and military trials, and other matters enumerated in s.91 are heard in the federal courts.

Most provinces and territories have three (3) provincially governed courts: Trial-level courts, Superior courts, and Appellate courts.

The federal government is administratively responsible for five (5) courts: The Supreme Court of Canada, The Federal Court, The Federal Court of Appeal, The Tax Court of Canada, and The Court Martial Appeal Court of Canada.

Judicial Appointments

The federal government appoints judges to the federal courts, the superior courts of the provinces/territories, and the Supreme Court of Canada. The provincial and territorial governments appoint judges to provincial and territorial courts. For example, Ontario Court of Appeal judges are appointed federally. Small Claims Court judges in Ontario are appointed at the provincial level. The Website of the Office of the Commissioner for Federal Judicial Affairs Canada releases data on federal appointments by region: https://www.fja.gc.ca/appointments-nominations/judges-juges-eng.aspx

It is helpful to reflect on the role of courts and judges to understand the driving forces of a judicial intern’s work and the qualities a judicial intern may wish to embody.

Independence of the judiciary is a pillar of the settler-colonial Canadian democratic system. See this speech on judicial independence by the former Chief Justice McLachlin.

However, Canada’s common and civil law systems are not the only justice systems operating in Canada. Understanding Indigenous Legal Orders as independent forms of legal ordering and law-making are an important part of the administration of justice.

Many Canadians are also struggling with the inequalities and injustices that play out in Canadian justice systems. For example, some courts are confronting the systemic overrepresentation of Indigenous people in custody. Incarceration is connected to the institutionalization of Indigenous peoples through the residential school system. The residential school system threatened penal consequences for parents who tried to protect their children from being taken away and placed in these institutions. Reflecting on the legal system’s complicity in the residential school system, and its modern implications, is part of learning in this role. At the same time, Canada acts as a global voice and educator in designing stable and accountable legal-political frameworks. Balancing these roles – maintaining a critical stance while understanding Canada’s global role – can be challenging, and an important part of a student’s learning journey.

Staff of the Court

The Justice Education Society for the Small Claims Court of BC has created a helpful diagram of the typical layout of a civil court. A courtroom that is designed for criminal matters may also include a jury box and a box for the accused in custody. Students in placement in the courthouse will frequently come in contact with staff of the court including clerks, sheriffs, and court reporters. These employees most likely will not have a direct or structured relationship to the student’s role in court. However, it is helpful to understand their role in the system. Likewise, they can be an informal or casual source of institutional knowledge. As a student intern, it is beneficial to build positive friendly relationships with the other staff who share the space.

Court Clerks

Clerks have a visible role in the courtroom. Like lawyers, they dress in black robes. They are seated directly below and in front of the judge’s bench. Clerks are responsible for opening and closing court.  They keep the files to be handed up to the judge, including draft orders and exhibits as they are admitted into evidence. They assist the judiciary with scheduling matters.

Sheriffs

Sheriffs are the security detail of the court. They accompany judges from chambers to courtrooms. They accompany the accused into court if in custody. In some communities, sheriffs are responsible for enforcing jury summons.

Registrar’s Office

The registrar’s office is responsible for processing documents and maintaining the court records. The Federal court has a list of processes that the registrar can and cannot provide help with found here.

Types of Judges

As discussed earlier in the chapter, judges are appointed federally and come from all legal work backgrounds. All who are called to the bench must be members in good standing with a minimum of 10 years of legal work experience. The mandatory retirement age for judges is 75. Some examples include private practice, in-house counsel, academia, and the public sector. This article describes how Justice Michelle O’Bonsawin’s prior experience as general counsel has been a strength in taking on her role at the Supreme Court of Canada. Diversity on the bench has come a long way since the Honourable Justice Bertha Wilson wrote her article, Will Women Judges Really Make a Difference?. Beginning in 2016, the Judicial Advisory Committee began using questionnaires to learn more about candidates and to increase visibility with the public when appointments are made. Students may find value in reading a few questionnaires to better understand the diversity of thought and experiences in our system, and how judges themselves would describe their responsibilities in a constitutional democracy. For examples, see the questionnaire of the Honourable Justice Paul Favel at the Federal Court or Honourable Justice Shaun S. Nakatsuru’s Questionnaire from the Ontario Superior Court of Justice or search a Justice from the relevant jurisdiction.

Within a courthouse, judges also hold different levels of administrative responsibility. Across all provinces, the Chief Justice role is the primary authority for scheduling, calling meetings, and assigning duties to their colleagues.  The Ontario Superior Court of Justice lists the Chief Justice roles on their website. Ontario also uses judicial regions to further localize the administrative responsibilities and make the workload manageable given the size of the population. There are currently eight judicial regions, and each has a Regional Senior Judge who is delegated the powers and responsibilities of the Chief Justice. The Courts of New Brunswick website outlines the roles and mandatory committee positions of the Chief Justice. The Chief Justice finds their authority through provincial legislation. In Ontario, it is the Courts of Justice Act and in New Brunswick for example, it is The Judicature Act. Federal oversight for judges including pay rates are found in the federal Judges Act. Salaries for Chief Justices across the provincial superior and appeal courts are currently $371,400, compared with $338,800 for the appeal and puisne (ordinary rank) judges. Judges who hold supernumerary status are puisne judges who elect to continue work as an option to retirement after reaching 15 years of service. In Ontario, the scheduling convention is for full time judges to sit for 35 weeks (about 8 months) per calendar year, while supernumerary judges sit for 17 weeks (about 4 months).