The federal and the provincial government as well as the territorial government are all concerned with the Canada judicial system. The central government has the power of appointing and paying the judges of the superior, or the higher level courts in the jurisdictions. The Parliament also has the authority to create a general Court of Appeals as well as the other courts. Similarly, the Supreme Court of Canada as well as the Federal Court and Federal Court of Appeal, along with the Tax Court were authorized by the Parliament. Similarly, exclusive authority is available to the Parliament regarding the procedure that has to be followed by the courts while trying criminal cases (McCormick, 2000). The federal authority for criminal law and procedure makes sure that the criminal behavior receives fair and consistent treatment throughout the country. On the other hand, justice is administered by the provinces in their jurisdictions. This includes the organizing and maintaining civil and criminal provincial courts in addition to the civil procedure in the court of law. In this context, Judiciary can be described jointly as all the judges working in courts. This branch of the government has been provided with the judicial power. Hence this branch is independent from the executive and the legislative branch. The adjudicators are public officers who have been appointed for presiding over the court of justice, for interpreting and applying the legislations of Canada. It has been mentioned in the Constitution Act, 1867 regarding the founding and process of the specialized Judiciary of Canada. Exclusive lawmaking power has been given to the federal government regarding criminal law and procedure, nonetheless not regarding the formation of criminal courts. Similarly, it provides select legislative authority to the provinces regarding the judicial administration in provinces.
The judges of the Supreme Court along with the Federal Court of Appeal, the Federal Court and the Federal Tax Court are appointed by the central government. The Supreme Court of Canada is the highest court of appeal concerning all that matters (Ostberg, 2007).
Exclusive lawmaking authority is available to the federal government regarding criminal law and criminal procedure, but not for establishing criminal courts. In the same way, it provides lawmaking authority to the provinces regarding the administration of justice in the provinces
The Supreme Court was not established until nearly a decade after Confederation. There was a provision in British North America Act, 1867 which require the Parliament to establish a General Court of Appeal. But there was a sharp debate regarding the idea among the politicians in Canada. Attempts were made by the Conservative government of John A. Macdonald in 1869 and 1874 establishing a general court of appeal, but they were opposed by a number of Liberal, as well as Conservative members of Parliament. Many members apprehended that the new court may result in infringing the rights of the provinces.
According to many, it was believed that the impartiality of the court will be compromised by and the fact that McDonald’s government will appoint judges who were in favor of strong federal rights. Finally in April 1875, the Liberal government headed by Alexander Mackenzie persuaded the parliament to pass bill for the establishment of the Supreme Court hasn’t argued that it was required for the purpose of standardizing the law in Canada and for providing constitutional interpretation regarding the issues that may have an impact on the evolution of new federation (Songer, 2008).
However after its creation, and appeal can be brought for the decisions given by the Supreme Court for final interpretation to the Judicial Committee of Privy Council in Britain. The essay of the Supreme Court can be divided into three segments. The first era was when the court had to deal with significant constitutional basis related with the issue of the division of powers between Ottawa and the provinces. In case of a number of rulings, appeals were made to London where an attempt was made by the Privy Council judicial committee for establishing a balance between federal and provincial legislative responsibilities. But it may still be noted that the work of the Judiciary Committee was complicated. As a result of his inexperience in dealing with the issues related with federal state like Canada instead of a unitary state like Britain. The critics argue that the judgments of the Judiciary Committee were in favor of the provinces and amounted to legal sleight of hand. The Supreme Court also tended to interpret the provisions of British North America Act in a literal way, while the Judiciary Committee generally also took into view the socio-political considerations.
The Governor General in Council appoints the Justices of the Supreme Court. Under this process, the governor general, who is the viceregal symbol of the Queen, makes these selections on the basis of the advice given by Queen’s Privy Council. According to the custom and treaty, only the Cabinet, advises the governor general and generally this guidance is articulated finished a discussion with the PM. In this way the provinces and the Parliament does not have official part in these selections.
Answer: As a result of the diversity that is present among the indigenous people, a simple definition of indigenous rights in Canada is not present. Apart from the treaties which are supposed to preserve some rights to land, resources and more, the federal legislation also protects the rights of indigenous people, particularly the Constitution of Canada. Since 2008, the rights of indigenous people existing on the reserve or also protected by Human Rights Act. The definitions of indigenous rights have been clarified by the Supreme Court cases, particularly the indigenous rights to traditional territories. For instance, it was held in Delgamuukw case (1997) that aboriginal title amounted to inherited right. That is protected by the Constitution. Another federal legislation, the Indian Act does not preserve the rights, but it had influenced indigenous rights (Simpson, 2001). This legislation makes legal groups of Status and Non-Status Indians that resulted in the nation among the indigenous people. Certain privileges were available to Status Indians like the right to not to pay taxes on particular goods. On the other hand, Non-Status Indians did enjoy these rights. However, there are several indigenous people (Status as well as Non-Status) were refused to abide by this federal legislation.
The rights of the indigenous people are upheld and challenge and provincial and local levels also. Several First Nations have contracted land claim arrangements with federal, as well as the provincial governments. In case of a challenge to the rights to territory, relationship between these groups becomes less cordial (Savoie, 1999). Two examples that can be given in this regard are the Oka crisis and Ipperwash crisis where the indigenous claims to ancestral lands were ignored by the provincial and local authorities. Since the Europeans arrived, indigenous populates have to defend their lands, rights and customs of life.
The British Columbia Treaty Process is the process of land claims conciliation. This process was started in 1993 for the purpose of resolving outstanding issues. These issues include the claims to un-extinguished aboriginal rights with the First Nations of British Columbia. Under the British Columbia Treaty Process (BCTP), two TDs are implemented. The Nisga’s treaty is considered as being distinct from the BCTP due to the reason that those talks restarted before the BC Treaty process was initiated and it was called a blueprint for the present process. In order to signify the benefits of the first Nations who were involved in this process, the First Nations summit was formed.
In Williams Lake Indian Band v Canada (AANDC), 2018 SCC 4, it was stated by the Supreme Court of Canada that Williams Lake Indian Band (Band) had been wrongfully displaced from its village lands. The Supreme Court restored the verdict of Specific Claims Tribunal. In its ruling, the Tribunal had stated that the Colony of British Columbia (Colony) and Canada had breached their fiduciary obligations towards the band regarding the protection of its village lands. Chief Justice Wagner, who was writing for the majority of the Supreme Court upheld the jurisdiction of the Tribunal to resolve specific claims. It was also emphasized by the Supreme Court at the outset that “a just resolution of such claims is necessary for the process of reconciliation”.
This decision also highlights the demand made by First Nations for decades asking for an independent body for resolving their historical grievances in a just and efficient manner and also in a way that promotes reconciliation. With the establishment of the Tribunal in 2008, it was hoped that the day had arrived. However, the experience of the Band was that the decision of the Tribunal was merely the first step in a costly and time-consuming litigation, initiated as a result of the refusal of Canada to accept the verdict of the Tribunal. In this way, the decision delivered by the Supreme Court of Canada provides a strong message that the Tribunal enjoys the mandate and the skill that is necessary for resolving such claims and that the decisions of the Tribunal are going to be respected by the courts.
Answer: In Canada, the executive branch includes the Crown, the Prime Minister and the Cabinet. The executive branch of the government have the responsibility of making and implementing the decisions that are necessary for maintaining the rule of law and ensuring the well-being of the people of Canada. The Prime Minister and the Minister selected by him or her form the Cabinet. The Prime Minister also has the authority of appointing Ministers of State, who assist the Cabinet Ministers. Generally the elected members of Parliament are appointed to the candidate, although according to the custom the PM appoints as a minimum one senator. The Ministers served in the candidate according to the “pleasure” of the Prime Minister. This means that the Prime Minister can replace the Ministers or ask for the resignation at any time. The Prime Minister also has the power of redefining the portfolios of the Ministers and decides the extent of the Cabinet (Jackson, 2009).
The Cabinet has the major policymaking authorities in the government of Canada. Cabinet also leads and guides the executive. It is an operative and working fragment of Privy Council, the Council of advisors to the Crown comprises former PMs, previous Ministers and others who have been chosen due to special reasons. Privy councillors play an acting role in their capacity as advisers to the Crown after they have been appointed as members of the Cabinet. Hence the Cabinet works as an executive Council that has the responsibility of developing policies for governing the nation. The Cabinet also introduces the bills for transforming these policies into legislation.
In Canada, there is constitutional monarchy. Her Majesty the Queen is the head of the state. She is represented during her absence from Canada by the Viceroy, who is the Governor General of Canada. The Gov. Gen. is also the commander-in-chief of the military but acts according to the recommendation of the Queen’s Privy Council for Canada, which comprises the Prime Minister and the Cabinet Ministers. On the other hand, the United States has executive presidency, a legislative and judicial branch. The US President is also the head of the government as well as the head of state. At the same time, the President is also the commander-in-chief of military.
In certain respects, it can be said that the Canadian PM having a majority in the House of Commons has much more power as compared to the president of the USA. However, if the Prime Minister decides to go too far, he faces the risk of losing a no-confidence vote and in such a case, the Prime Minister can be immediately out of office. As compared to the United States, there is no need for month’s long impeachment proceedings for bringing charges followed by trial proceedings for removing the Prime Minister from office. By following the no-confidence method, the Prime Minister can be removed from office in a single day.
Under the circumstances, it can be stated that the Prime Minister of Canada having a majority in the House of Commons is among the more powerful elected leaders within the country. If the party of the prime minister is under its control and follows its marching orders, almost any legislation can be passed by the party. On the other hand, the US president requires the backing of its party and a majority in both the Senate as well as the House of Representatives for exercising the same amount of legislative power that is available to a prime minister in Canada who has the majority.
However if an evaluation is made regarding who enjoys more influence in the world, then it would be the US President in theory. However in legislative sense and within the country, the Prime Minister of Canada having full majority is basically an elected dictator who can really do whatever they want, provided the party of the Prime Minister is ready to follow.
References
Jackson, M. D. (2009). “The Senior Realms of the Queen” (PDF). Canadian Monarchist News. Autumn 2009 (30). Toronto: Monarchist League of Canada. p. 10
McCormick, P. (2000), Supreme at last: the evolution of the Supreme Court of Canada, J. Lorimer
Ostberg, C. L. (2007) Attitudinal decision making in the Supreme Court of Canada, UBC Press
Savoie, D. (1999) Governing from the Centre: The Concentration of Power in Canadian Politics, Toronto: University of Toronto Press, p. 362
Simpson, J. (2001) The Friendly Dictatorship, Toronto: McClelland & Stewart. p. 248
Songer, D. R. (2008) The transformation of the Supreme Court of Canada: an empirical examination, University of Toronto Press
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