Activity 1: Introduction to the Court of Appeal
Students can submit Handout 1: Court of Appeal for BC for marks once it is completed. The answer key can be found below.
Answer Key: Handout 1: Court of Appeal for BC
Jurisdiction refers to the type of case and the physical area over which the court has legal authority. What is the BC Court of Appeal’s jurisdiction?
This court hears appeals from previously-decided cases held in Provincial Court, Supreme Court and administrative tribunals. Appeals are made because someone is unhappy with the results of a judgment in his or her case. The Court of Appeal sits regularly at the law courts in Vancouver, Victoria and Kamloops. It also hears appeals in the Yukon Territory.
How is filing for an appeal in a criminal case different from filing an appeal in a criminal case?
The Court of Appeal hears both civil and criminal cases. Criminal cases deal with crimes found in the Criminal Code of Canada. In criminal cases, anyone convicted of a crime can appeal the conviction itself. However, to appeal sentencing, the court must grant leave to appeal.
Civil cases deal with disputes between private individuals or institutions. In civil cases, any final order of the BC Supreme Court can be appealed. However, if the civil case comes from the Small Claims division, it can only be appealed to the BC Supreme Court and cannot proceed to the Court of Appeal for BC.
Why do we have an appeal court?
Judges, like anyone else, can make a mistake. To make sure that justice is done in our court system, the losing party has the right to file an appeal in an effort to have the decisions reversed or a new trial ordered.
What are the Court of Appeal judges looking for?
The judges are usually looking for a legal error of some sort.
Does the court hear new evidence?
Except in very rare cases, no witnesses appear in to give evidence in the Court of Appeal. It is the job of the trial courts to decide what happened and whether witnesses have told the truth. The Court of Appeal decides only whether or not the trial judge’s decision (or jury’s verdict, in a jury trial) was correct in law.
Why do some appeals have three judges on the bench while other appeals have five judges on the bench?
In the Court of Appeal, there are typically three or five judges sitting together on the bench to hear appeals. Five judges are required if the court is being asked to overturn one of its own previous decisions. Otherwise, only three judges hear the appeal.
Activity 2: Viewing the Video
Since this activity only requires students to watch the video Through the Heavens Fall, no assessment is required unless you have the students take notes and hand them in for marking.
Activity 3: Exploring the Concepts from Though the Heavens Fall
Students can hand in their answers to Handout 3: Time Warp at the Court of Appeal for BC and Handout 4: The Role of Court and Appeal Judges for marks. Only one copy per team is required, so students must make sure all group members names are on the answers. If you would prefer, give participation marks to students when they discuss the questions as a class, instead of taking their answers in for marks.
Answer Key: Handout 4: Role of Court of Appeal Judges
If you had been a Court of Appeal judge in 1914, what would you have decided in the Munshi Singh case? On what would you have based your decision?
In 1914 Parliament was the supreme law of Canada and Parliament had passed a racially discriminatory law. In addition, the Immigration Act of the time expressly forbade judges to challenge decisions of immigration boards of inquiry.
Under the Constitution Act 1867, Canada had adopted the notion of Parliamentary supremacy from the United Kingdom. The federal and provincial legislatures made the law, the executive implemented and enforced the law, and the judiciary was responsible only for interpreting the law that the others had made and enforced.
Dealing with this question will likely prove controversial among students. Students may suggest that if they had been one of the judges, they would have gone back to the legislation to see if they could find any “wiggle room” to allow them to reach a fair decision.
How has the role of Court of Appeal judges changed since 1914?
The Constitution Act 1982, which incorporates the Charter, has made the Constitution the supreme law of the land. Section 52 of the Constitution Act, 1982 states that “The Constitution of Canada is the supreme law of Canada and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. The Constitution thus modified the tradition of Parliamentary supremacy with the principle of constitutional supremacy. As such, Judges have an even stronger role to play in the Canadian justice system than they did before the Charter.
Judges can strike down a law passed by Parliament if it violates one of the freedoms protected by the Charter and the government cannot justify the violation as the only reasonable way to meet an important need. Parliament then must decide whether or not to redraft the law in such a way that the Charter is not breached. These leads to a “back-and-forth relationship” between judges and legislators that is often described as “dialogue.”
Should judges comment on the political policy that underlies legislation?
There is a well-established principle that it is improper for judges (who are unelected) to comment on the policy, or political aspects, of statues passed by elected legislators.
Should judges be able to override constitutionally valid legislation with which they disagree?
Judges cannot strike down or choose not to apply legislation simply because they disagree with the legislation (or because some other province has different legislation on the matter). Subject to constitutional challenge on jurisdiction or for breach of the Charter, legislation is supreme law.
Should judges be elected, so that they like the legislators will represent majority views?
Student responses may focus on the issue of possible conflict between being accountability to an electoral majority and having to remain impartial. Other comments may focus on ways in which accountability exists in forms other than electoral majority support. For background information, see Judicial Appointment: www.LawConnection.ca/index.php?q=content/judicial-appointment.