Essay Sample on Comparison of Canadian & US Court Systems

Introduction

There are various differences and similarities between the Canadian and the United Sates Courts system. In Canada, the court system structure is pyramidal. The Canadian constitution divides the judicial authority into two. There is the federal court system and the provincial court system. The provincial courts have jurisdiction within the provinces. Their mandate includes dealing with criminal and civil matters, issues arising from the constitution and management and organization of the courts within the boundaries and limits of the provinces. They deal with criminal and civil matters that are not serious in nature. Provinces only have power to nominate judges in the lowest provincial courts. However, the appointment of superior court judges in the provinces rests upon the federal government.

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In the United States of America, there are two separate federal and State court systems. The state courts have autonomous jurisdiction over the state Law. On the other hand the federal court system in the US is supreme with respect to federal law. The lowest federal courts are referred to as "District Courts". On appeal, matters are referred to any of the 12 regional "Circuit Courts of Appeals" who each make their regional jurisprudence. The Supreme Court of the United States stands as highest on the hierarchy and its decisions are binding on all US courts. The individual States elect or appoint most of the Judges in the United States.

The Supreme of Canada is the highest court and can rightly be termed as the court of last resort in Canada. It's decisions are binding on all other courts in Canada. The court consists of nine judges. The appointment of the Judges to the Supreme Court of Canada is done by the Governor in council in consultation with the Minister of Justice and the Prime Minister. The provinces and parliament do not take part in the appointment of Judges. The judges work until the retirement age of 75. They may however, be removed from sitting as judges, due to misconduct or incapacity to work. The Supreme court of Canada functions as a "general court of Appeal for Canada". It presides over appeals which arise from both the federal system and the provincial system. The federal court system is headed in each province by the Federal court of appeal whereas the provincial court systems are headed by the province's court of Appeal. In this aspect the Supreme Court of Canada differs with the United States Supreme court which hears appeals from only the Federal Courts and deals with matters relating to federal Law and the Us Constitution.

The Supreme Court of Canada functions as a national, and not merely federal, court of last resort. Also the appointment of Supreme Court Judges in the United States is done at the discretion of the President. Once the President nominates a person, the Senate sits to discuss and interview the candidate and to verify their track record as a lawyer and Judge. The Supreme Court Judges in the US are appointed for life.

It should also be noted that unlike United States, Canada has unified criminal code which applies to all provinces. However, the states in the US have the freedom to make their own laws including with respect to their criminal codes. The arrangement has frequently posed a challenge where an act is a crime under federal laws but is generally allowed in State Law.

On the question of Judicial Independence, I find that the most important aspect of judicial independence is that judges must be free to exercise their judicial powers without interference from parties to the case, the government, the media or influential persons or entities. The principle may be protected by way of the doctrine of separation of powers, security of tenure for judges, security of remuneration of judges and other methods. This is an important concept because judges decide cases between the citizen and the government and between citizens and powerful individuals. It is only when there is judicial independence that the rule of Law can be guaranteed. CITATION Bow02 \l 1033 (Bowal, 2002)The independence of the judiciary in Canada is guaranteed by the constitution. It consists of the security of tenure, security of financial remuneration and institutional administrative independence. The Judges serve until the age of 75 years. However they may be removed due to misconduct. In this regard, the United States seems to provide better judicial independence. The federal judges are appointed for life. This life tenure ensures independence from government in that they cannot be fired for decisions against the government. This gives them the ability and confidence to issue judicial decisions without fear or favor.

In the United States, the Judges have the mandate to deal with those practicing law without authorization. They also appoint public defenders and court employees which means that the government has little control over the courts. Judges of appellate courts appoint lower court magistrates and all administrative aspects of the court are carried out by the chief judge of the court. The Chief Justice of the United States heads whole federal court system. The procedures of the court and policies are formulated by a convention which consists of Circuit chiefs and District Court Judges.

However in Canada Public defenders and other court staff are appointed and managed by government departments. Recent developments in Canada promise to give the Judiciary greater independence. For instance, there is now a constitutional requirement that a commission be formed to be in charge of periodically reviewing and adjusting judicial salaries.

The United States does not have such a provision. Judicial salaries are increased only with the unfettered consent of Congress. This is a major set-back as it may be affected by lack of political good will. In summary however both Canada enjoy independence of the Judiciary to a certain degree.

References

Bowal, P. (2002). Ten differences (between Canadian and American law). Law Now, 9-11.