Chapter 3

Question 1

4 levels of Courts

Answer 1

1. Provincial/Territorial Courts
2. Provincial/ Territorial Superior Courts and Federal Court
3. Provincial/Territorial Courts of Appeal and the Federal Court of Appeal
4. The Supreme Court

Question 2

Provincial / Territorial Courts

Answer 2

• most criminal offences (less serious)
• family law
• YCJA
• traffic violations
• provincial/territorial regulatory offences
• small claims court
• Preliminary inquiries - is there enough evidence to go to trial?
• specialized/ rehabilitative courts (domestic violence, drugs, youth)

Question 3

Provincial/Territorial Superior Courts

Answer 3

• highest jurisdiction on the provincial level
• Court of Queens Bench, Supreme Court, Trial Division, Division Court, or Superior Court of Justice
• have jurisdiction over all civil and criminal cases (most serious) unless dictated otherwise by the state
• may have special divisions
  (Family, etc)
• Administered by provinces/terr. but judges appointed by the Feds

Question 4

Provincial/Terr. Appellate Courts

Answer 4

• appeals from the provincial superior court
• rarely rehear or accept evidence or testimony
• hear constitution questions

Question 5

Federal Courts

Answer 5

• trial division and a court of appeal
• only hear matters specified in federal statutes
• inter-provincial and federal-provincial disputes, intellectual property, citizenship appeals, cases involving Crown corporations/federal gov. departments
• can review decisions of federal ABCs
• Specialized courts (military, Tax)

Question 6

Supreme Court of Canada

Answer 6

• created from Federal statute
• highest court of law
• Court of Last Resort
• final authority on interpretations of the entire body of Canadian law
• 9 justices with 1 chief justice
• heard in panels of 3,5, or 7
  lawyers appear but parties do not
• leave must be granted by the Supreme court to hear the case - only done when case raises an important issue of law, often constitutional rights
• ## Right to appeal to the Supreme Court is automatic if: an accused is acquitted at trial but found guilty on appeal; and in a criminal case if there is a dissenting judge on the court of appeal decision.

Question 7

Ultra Vires

Answer 7

beyond, or in excess, of the power that passed a law

-out of jurisdiction

Question 8

Role of Judges

Answer 8

• autonomous decision makers that render a verdict and sentence or instruct the jury on the law
• cannot have any conflicts of interest with their cases
• cannot actively engage in political matters or express opinions in public
• can be sanctioned through the Judges Act
• have “requirements of good behavior” that if breached can be cause for impeachment

Question 9

Canadian Judicial Council Responsibilities (4)

Answer 9

4 main responsibilities:
1. Investigate complaints against the conduct of federally appointed judges.

2. Make recommendations on judicial salaries and benefits,
3. Make recommendations on the education of judges; and
4. Develop consensus among Council members on issues involving the administration of justice.

Question 10

Reasons a judge can be found “incapacitated or disabled from the due execution of the office of judge”

Answer 10

age or infirmity,
having been guilty of misconduct,
having failed in the due execution of office,
or having been placed in a position incompatible with the due execution of that office.

Question 11

Juries

Answer 11

• group of the accused’s peers
• he Charter of Rights and Freedoms, 1982 provides that a person accused of criminal activity has the right to a trial by jury if punishment is more than 5 years in jail
• Some civil offences, under provincial statute, (e.g. libel, slander, malicious arrest or prosecution, and false imprisonment) require a jury, but the right can be waived by agreement.
• In criminal cases the jury is composed of 12 persons.
• verdict must be unanimous
• do not decide sentencing
• n civil cases, fewer jurors are required and unanimity is not required. Agreement by five of the typically six jurors who compose the jury in a civil case will suffice.

Question 12

Jury Selection

Answer 12

• the conscience of the community
  -under provincial legislation so qualifications/ method varies across the provinces/territories
• In general, all Canadian citizens are qualified if they:
  Are between the ages of 18-65 (or 69)
  Have not been convicted of an indictable offence (or received a pardon for same) and
  Are free of mental or physical disability (i.e. blindness) that might impede their performance as a juror.
• In Saskatchewan it is randomly pulled by health card numbers in the area
• Cannot be on a jury if you are in politics, in any are of the justice sector, or are an essential services provider
• potential jurors are screened through voir dire for possible biases
  1. A random sample is drawn from the population, and the demographic profile of this sample is compared with that of the prospective jurors. If the jurors were randomly selected, the profiles should match. If there is substantial over- or underrepresentation of particular characteristics (ethnic groups, age, occupation, and so forth), the jury pool can be challenged.

2. After it is established that the prospective jurors represent the population at large, the demographic, personal, and attitudinal characteristics considered to be favourable to one’s own side are then assessed to determine the ideal juror for one’s side.
3. After establishing the psychological and demographic profile of this ideal juror, the social scientist can make recommendations for selection of individual jurors.

Question 13

Jury Challenges (3)

Answer 13

1. if shown to be fraudulent or partial, or if there was willful misconduct in selecting prospective jurors.
2. Challenge For Cause: a prospective juror fails to meet the requirements of the provincial statute that governs juries (e.g., the person’s occupation places him or her within an exempted category). Used on occasion to screen potential jurors whose impartiality has been tainted by mass media coverage of a case, or exposed to the rumours and gossip that may circulate in a small community about a crime.
3. Peremptory Challenge: either defense or Crown prosecutor an eliminate a prospective juror without giving a specific reason. The number of such challenges is limited by the nature of the offence.

Question 14

4 Types of potential jury bias

Answer 14

1. Interest prejudice: jurors may have a direct stake in the trial due to their relationship to the defendant, the victim, witnesses or outcome.
2. Specific prejudice: attitudes and beliefs about the particular case that may render the juror incapable of deciding guilt or innocence with an impartial mind. These attitudes and beliefs may arise from personal knowledge of the case, publicity through mass media, or public discussion and rumour in the community.
3. Generic prejudice: stereotypical attitudes about the defendant, victims, witnesses or the nature of the crime itself. Bias against a racial or ethnic group or against persons charged with sex abuse are examples of generic prejudice.
4. Conformity prejudice: when the case is of significant interest to the community causing a juror to perceive that there is strong community feeling about a case coupled with an expectation as to the outcome (at 10)

Question 15

Plea Bargaining

Answer 15

• criminal court
• Agreement by the accused to plead guilty in return for the prosecutor agreeing to take or refrain from taking a particular course of action
  1. Charge bargaining: involves promises concerning the nature of the charges to be laid;

2.Sentence bargaining: involves promises relating to the ultimate sentence meted out by the court; and

3. Fact bargaining: involves promise concerning the facts that the Crown may bring to the attention of the court.
   - Police and the Crown cannot enter into plea bargaining without participation of defence counsel.
   - plea bargaining functions to increase certainty of outcome
   - can happen mid trial
   - saves court time and costs
   - can spare victims and witnesses the emotional cost of trial

Question 16

Objections to Plea Bargaining

Answer 16

1. Criminals are allowed to obtain “cheap” convictions (i.e., ones in which they do not pay for the real crimes they committed);

2.Plea bargaining turns criminal justice into an administrative process rather than an adversarial one;
It generates cynicism about criminal justice among the accused, the system’s participants, and the public at large.

3. has “the potential to undermine the integrity of the criminal justice system, in part because disclosure of the basis for agreements and accountability for the decisions have been inadequate”
4. It may increase the likelihood of wrongful convictions.
5. Power imbalances may lead to involuntary pleas and therefore admissions of guilt

Question 17

Sentencing Principles

s. 718 of the Criminal Code (6)

Answer 17

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender

1. )Denounce unlawful conduct;
   2) Deter the offender and others from committing offences;
   3) Separate offenders from society where necessary;
   4) Assist in rehabilitating offenders;
   e) Provide reparations for harm done to victims or the community; and
   f) Promote responsibility in offenders, acknowledge harm

Question 18

Sentencing options (5)

Answer 18

1. Conditional or absolute discharge;
2. Imposing a fine and releasing the offender;
3. Releasing the offender under specific conditions back into the community, with certain prohibitions;
4. Incarcerating the offender for a period of time (continuous, intermittent or indeterminate); and
5. Restitution

Question 19

R v Gladue and Gladue Reports

Answer 19

all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders
- Gladue Reports are an extensive look into the life and history of the offender to see how they were impacted by colonization and the affects this had on their offence

Question 20

Mandatory Minimum Sentences

Answer 20

• minimum penalty required if convicted of certain charges
• instated through legislation
• removes judicial discretion

Question 21

Legislature

Answer 21

group of people having the duty and power to make laws for a country, province or state

his group may be elected (Members of Parliament and provincial legislatures), or appointed (the Senate).

Question 22

Functions of Legislatures

Answer 22

1. Conflict Management / Adjudicative
   - deliberative, decisional and adjudicative activities.
   - formal debates as well as deliberation in hearing and committee rooms, offices of legislators, or in lobbies or other meeting places. Informal deliberations can be very important as they consider various views.
   - work of some legislative committees has been adjudicative in that they hold hearings before investigating committees. These are, in effect, trials.
   - Sanctions are also applied.
2. Integrative Functions
   - contribute to the integration of the polity (i.e. political or governmental organization, a society or institution with an organized government)
   - the prime minister’s authority comes from the office, not custom or that person’s individual attributes.
   - Legislative bodies also authorize the courts to establish jurisdiction, to create their own administration and to qualify their judges.
3. Legislation
   - the creation of laws
   - legitimize views and community interests

Question 23

Aboriginal Peoples and Legislation

Answer 23

• European legislation promoted and encouraged the assimilation of Indigenous peoples
• In 1868, Parliament passed an Act for the Gradual Civilization of Indian Peoples, with the express intent of assimilating Indigenous people through 3 tools:

1. Creation of reserves (which did not in most cases correspond to traditional territories);
2. Band councils with limited powers to replace tribal governments; and
3. Defining who was Indian and to which band they belonged.
   - The Indian Act of 1876
   - Constitutional Act, 1982 recognized and affirmed the existence of Indigenous and treaty rights for all Indigenous people of Canada, Indian, Metis and Inuit.
   
   • Indigenous rights are recognized in s. 35 of the Act.
   • Not subject to s. 1 reasonable limits
     - Still have not been given a comprehensive definition of law
     - current fight for self-government

Question 24

Indigenous land claims and the Calder case

Answer 24

• In 1973, the SCC rendered the Calder decision which recognized land rights based on Indigenous title, i.e. based on an Indigenous group’s traditional use and occupancy of the land, and that Indigenous peoples who had never signed a treaty still had some claim and title to lands they traditionally used and occupied.
• Prior to the Calder decision, the federal government simply did not recognize Indigenous title if no treaty had been signed. The impact of Calder was momentous: it meant that Inuit, Dene and Yukon Indians still potentially retained a legal right to lands covered by 1/3 of Canada.
• There were 2 types of claims:

1. Comprehensive: based on ancestral rights to land and natural resources not formerly dealt with by treaty;
2. Specific: addressing specific grievances regarding non-fulfillment of treaties.

Question 25

Lobbyists

Answer 25

• Organizations that attempt to influence political decisions are call “interest groups”.
• Industry associations, trade groups, and unions may engage in lobbying
• Lobbyists may also advocate for charities, for the environment, the differently-abled, the homeless, children and consumers; ie a cause
• visit legislators and establish relationships with legislators’ staff and develop contacts on legislative committees.
• can also be campaign organizers and gather support for the his or her organization’s legislative program.
• As informants, they convey information to legislators.
• As watchdogs, they scrutinize legislative calendars to be alert to developments that might affect their client group
• The federal government passed the Lobbying Registration Act, 1988 in an attempt to rein in the power of lobbyists. It focuses on those who are paid to lobby. There is a public registry of all paid lobbyists to bring transparency to see who wields political power.

Question 26

the Lobby Act 2008

Answer 26

It established a Code of Conduct for lobbyists, and identified 4 principles and 2 types of lobbyists.

• These principles are that lobbying is an accepted part of democratic government but should be done ethically and transparently, and not interfere with the democratic process, and that all paid lobbyists must be registered. (Note that volunteer lobbyists are not required to register their activities).
• There are 2 types of lobbying:
  1. Consultant Lobbyists: persons hired to communicate on behalf of a client with a public office holder, or to set up meetings between the client and public office holders; and
  2. In-house Lobbyists: who either work for compensation in a for-profit entity [corporation] or non-profit organization.

Question 27

Administrative law

Answer 27

Agencies, Boards, Commissions, Tribunals

• are authorities of government created for the purpose of administering particular legislation.
• Their powers and functions are set out in the legislation which creates them (their “enabling legislation”).
• The decision-maker’s power derives from legislative authority and regulations passed under that authority.
• Appeals can be made to judicial courts
• They also had advantages over the courts in: speed, informality, flexibility, experience in technical areas, and continual surveillance of an industry or economic issue.
• They must implement basic rules of procedure referred to as “due process” or the “principles of natural justice”.
• The government which creates an administrative agency has the right to destroy it or change the rules governing it.
• The judiciary retains the power of final review of its determinations.

Question 28

Restrictions on Administrative Tribunals

Answer 28

The SCC held that administrative tribunals are expected to do 3 things:

a) be bound by the law,
b) render decisions in an equal and predictive manner

c)act in accordance with the law and social values.
They also must follow the
- Charter and must address any claim by an individual appearing if they think their Charter rights have been violated.

• They must act in a reasonable way, based on the available evidence that they have in their possession.

Question 29

The Administrative Process (3)

Answer 29

Administrative agencies affect the rights of individuals and businesses in 3 ways:

1. Investigation
2. Rule making
3. Adjudication

This is one aspect which is different than courts: courts do not engage in their own fact finding or investigation.

Question 30

Administrative Rule Making (3)

Answer 30

a) Procedural
- 1. Procedural rules identify an agency’s organization.

• They describe its methods of operation.
• They list the requirements of its practice for rulemaking and adjudicative hearings.

b) Interpretive

• Interpretive rules are issued to guide the agency’s staff and regulated parties to know how the agency will interpret its stated mandate.
• These rules can be informally developed policy statements issued through press releases.
• Or, they can be as formal as authoritative rulings binding upon the agency and issued after a notice and a hearing.

c) Legislative

• Legislative rules are in effect, administrative statutes.
• In issuing a legislative rule, the agency exercises its lawmaking power delegated to it by the legislature.

Question 31

Styles of Law Enforcement

Answer 31

1. the watchman style
   - emphasized responsibility for maintaining public order
   - seen as a peace officer and handles law violations more informally, focusing on public order rather than punishment
   - large amounts of officer discretion
   - Underenforcement, corruption, and low arrest rates characterize watchman-style departments.
2. the legalistic style
   - treat all situations s serious infractions of the law
   - high arrest and ticket rates
   - Get tough on crime approach
   - prone to racist and ageist profiling and complaints of brutality and abuse of power
3. the service style
   - combines the previous two
   - emphasizes community relations
   - respond to all groups and apply informal sanctions in minor offences
   - fewer arrests than legalistic
   - emphasis on problem solving policing focuses on the causes of incidents to reduce distrust in police

Question 32

Police discretion not to enforce the law is attributed to a number of beliefs by police: (11)

Answer 32

Police discretion not to enforce the law is attributed to a number of beliefs by police:

1. the legislative body does not desire enforcement;
2. the community wants non-enforcement or lax enforcement;
3. other immediate duties are more urgent;
4. offenders promise not to commit the act again;
5. a shortage of police officers;
6. there is sympathy with the violator;
7. a particular criminal act is common within a subculture;
8. the victim is likely to get restitution without arrest;
9. non-enforcement can be traded for information;
10. the probable penalty is likely to be too severe;
11. the arrest would unduly harm the offender’s status