Chapter 7 - Structure and Operation of Criminal Courts

Question 1

4 levels of courts

Answer 1

• Provincial/territorial courts
• Provincial/territorial superior courts
• Provincial appellate courts
• The Supreme Court of Canada (SCC)
• Nunavut has a unified, or single-level, court, the Nunavut Court of Justice, where all courts are combined into a superior court

Question 2

judicial independence

Answer 2

viewed as being essential to the proper functioning of the courts. The principle holds that citizens have a right to have their cases tried by tribunals that are fair, impartial, and immune from political interference

Question 3

New Brunswick courts

Answer 3

Court of Appeal

Court of King’s (Queen’s) Bench

Probate Court

Provincial Court

Question 4

court of appeal

Answer 4

• the highest court in the province. It is the last avenue of appeal, except in a few cases where a further appeal to the SCC is possible
• generally sits in Fredericton. It is comprised of the Chief Justice of New Brunswick, five other judges, any former judge of the Court of Appeal who is a supernumerary judge
• The Governor General in Council appoints the Chief Justice of New Brunswick and the other judges of the Court of Appeal
• Minister of Justice provides administrative and operational support to the Court

Question 5

court of king’s/queen’s bench

Answer 5

• Has jurisdiction over major civil and criminal matters. In addition, it hears appeals of decisions on summary conviction matters made in the Provincial Court.

The Court is divided into two divisions:
- Trial Division
- Family Division

In addition, judges of the Court of King’s/Queen’s Bench have jurisdiction over Probate matters

Question 6

trial division of the court of king’s/queen’s bench

Answer 6

• Hears civil law matters, excluding family disputes, which are heard in the Family Division
• Trial Division Judges also preside over criminal trials, with or without a jury
• It hears appeals relating to summary conviction offences tried in the Provincial Court, and the judges sit in the Provincial Court when necessary

Question 7

probate court

Answer 7

• Has the power to grant Letters Probate, to recall or revoke Letters of Probate, and to supervise the administration and distribution of estates
• Presided over by a Court of King’s/Queen’s Bench judge, as all of their judges have jurisdiction over probate matters
• Possesses the same powers to enforce judgements as the Court of King’s/Queen’s Bench and may issue the same orders and processes as are issued out of the Court of King’s/Queen’s Bench

Question 8

provincial court

Answer 8

• Entry point for all persons charged with offences under the Criminal Code or other federal or provincial legislation
• They have jurisdiction to try almost all indictable offences involving adult accused (murder being the main exception), all offences involving youths under the Youth Criminal Justice Act (ages 12 to 18), and all summary conviction offences for both adults and youths
• Even in indictable matters where the accused person has an election or choice to be tried in the Court of King’s/Queen’s Bench by a judge sitting with or without a jury, the Provincial Court may first be required to hold a preliminary inquiry

Question 9

problem-solving courts

Answer 9

specialized courts that are designed to divert offenders with special needs from the CJS and includes community courts, drug courts, mental health courts, Indigenous courts, etc

The three defining attributes of problem-solving courts are:
- A focus on addressing the underlying problems of offenders, victims, and communities
- Interagency and interdisciplinary collaboration, and
- Accountability to the community

Incorporates the concept of therapeutic justice:
- uses the law and the court’s authority as change agents to promote the health and well-being of offenders, while ensuring that their legal rights are protected, and that justice is done
- Offender participation in problem-solving courts is voluntary, they are active participants in addressing their behavior and needs

Question 10

impact of specialized courts

Answer 10

• Ongoing issues of the courts are high rates of non-compliance, the conditions imposed by the court, and non-completion of the program, and many have had difficulty attracting Indigenous peoples
• A rise in the number of cases reported to the police
• The offender is more likely to plead guilty if he knows the victim doesn’t control the case
• An increased focus on rehabilitation has resulted in a rise in the use of probation with mandated treatment for abusers
• Fewer cases dropped by the police or prosecution
• Enhanced training of police and Crown attorneys which improves the sensitivity and consistency of the response
• Some studies have tracked a decline in recidivism
• Better support for victims throughout the criminal justice process and through referrals to community agencies, risk assessment and so forth

Question 11

indigenous courts

Answer 11

Section 718.2(e) of the Criminal code requires judges to consider sentencing options other than incarceration, particularly for Indigenous offenders

Gladue courts – courts specifically for Indigenous people, where the judge, the Crown, defence lawyers, court clerks, and court workers are all Indigenous as well

Gladue reports – historical personal impact statements

Question 12

Tsuu T’ina Peacemaker Court

Answer 12

• Centred on peacemaking circles
• Has an Indigenous judge, Crown prosecutor, and court clerks
• Adult and youth cases (except for homicide and sexual assault) can be referred to peacemaking circles by the court if the offender admits responsibility for their actions, and the victim agrees to participate

Question 13

Indigenous People’s Court

Answer 13

• Uses a restorative justice approach to sentencing
• Draws upon Indigenous culture and traditions
• Elders play key role
• To qualify to appear in the court, persons must plead guilty and accept responsibility for their offences
• Initial focus of the court is on non-violent offences

Question 14

circuit courts

Answer 14

• In many northern and remote areas, judicial services are often provided via circuit courts
• Circuit court parties, composed of a judge, a court clerk, a defence lawyer, a Crown counsel, and perhaps a translator, travel to communities (generally by plane) to hold court. Many communities are served regularly
• Most of the communities are too small to have courthouses, and so the court is held in schools, community centres, or other buildings that are available

Question 15

concerns about circuit courts

Answer 15

lengthy court dockets from the backlog of cases, time constraints on the court party, which often preclude effective Crown and defence preparations and result in marathon court sessions lasting up to 12 hours often, shortage of interpreters as the Indigenous person accused may understand little French or English
- Case delays may become an issue with the ruling of R. v. Jordan

Question 16

provincial/territorial superior courts

Answer 16

• highest level of courts in a province/territory
• Administered by provincial and territorial governments
• Superior court judges are appointed and paid by the federal government
• About 10% of criminal cases are heard in superior courts

Generally have two levels (except ontario):
- Trial: hears cases involving serious criminal offences (known as the Supreme Court or the Court of Queen’s Bench)
- Appeal: hears criminal and civil appeals (usually called the Court of Appeal)

Question 17

the supreme court of canada

Answer 17

• established under the Constitution Act (1867)
• The governor in council appoints the nine judges of the Supreme Court
• Selected from the major regions of the country; however, three of the judges must be from Quebec
• Those chosen must be superior court judges or lawyers with at least 10 years’ standing at the bar in a province or territory
• Decisions of Supreme Court are final and cannot be appealed
• The SCC receives hundreds of applications for cases to be considered but grants only about 10%
• Cases are heard by an odd number of judges- 5, 7, or 9- to avoid ties
• Cases often involve interpretations of the Charter
• In some cases, the federal government asks the SCC for a legal opinion on an important legal question, a process that is referred to as reference or reference case

Question 18

courtroom workgroup

Answer 18

• the criminal justice professionals, including the judge, Crown counsel, and defence lawyer, present in the criminal court courtroom
• Other professionals may appear on occasion (ex: expert witnesses)
• Problem-solving courts has resulted in an expansion of the courtroom workgroup to include representatives from agencies and community organizations; various restorative justice approaches include members of the community as well

Question 19

the judge

Answer 19

• interprets the law, assesses whether evidence can be admitted, rules on motions made by the Crown counsel and defence lawyer, and determines the truthfulness of evidence
• making a decision on the guilt or innocence of the accused and passing sentence
• A key role of the judge is serving as a “gatekeeper” of evidence presented during the trial, including expert testimony

Question 20

justices of the peace (JPs)

Answer 20

• play a variety of roles depending upon the jurisdiction
• Issuing search warrants and conducting bail hearings
• Presiding over hearings involving provincial/territory regulatory offences
• May also preside in small claims courts, work in court registries, and handle court scheduling

Question 21

defence lawyer

Answer 21

• Ensure that the rights of the accused person are protected throughout the criminal justice process
• Often actively involved in attempting to negotiate a plea for their client outside of the formal court process
• Presents evidence and questions witnesses, experts, and others to build a case of innocence of the accused
• Cross-examines witnesses for the prosecution and challenging the evidence that is presented by the Crown

Question 22

duty counsel

Answer 22

• often provided as part of a provincial or territorial legal aid plan to ensure that persons who cannot afford to hire a private lawyer have representation
• First point of contact of a person who has been detained or arrested
• May also represent an accused in court

Question 23

crown counsel

Answer 23

• lawyers who represent the Crown (or government) in court and who are responsible for prosecuting criminal cases
• Provincially appointed Crown attorneys prosecuting Criminal Code offences
• Federally appointed Crown attorneys prosecuting persons charged with violating other federal statutes, such as the Controlled Drug and Substances Act
• Carry out their tasks on behalf of the community, rather than the victims of crime
• Responsible for laying charges against the accused in some provinces and are also involved in the prosecution of accused persons

Question 24

judicial ethics and accountability

Answer 24

• guided by ethical principles that are set out in various provincial and territorial documents and, for federally appointed judges, by the Canadian Judicial Council
• Center on integrity in personal and professional conduct
• Highlight impartiality and objectivity
• A duty to follow the law

Question 25

judicial independence

Answer 25

• the notion that judges are not subject to pressure and influence and are free to make impartial decisions based solely on fact and law
• Historically, the focus has been on judicial independence rather than judicial accountability, but the focus on accountability has increased in recent years
• Complaints have been made about judges regarding inappropriate conduct and remarks, gender/racial/religious bias, conflict of interests, cultural insensitivity, etc

Question 26

the case of justice robin camp

Answer 26

• In 2014, Alexander Wagar sexually assaulted a 19-year old woman
• During trial, Justice Robin Camp questioned the victim and said “why couldn’t you just keep your knees together?” and many other disrespectful remarks
• This raised concerns among legal observers and victims groups
• Wager was found not guilty by Justice Camp, who ruled that his testimony was more credible than the victim’s
  -The Crown appealed the case, and the Alberta Court of Appeal ordered he be retried, where he was found not guilty
• Justice Camp was appointed to federal court where an investigation was launched and they found his questions showed “antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault cases”
• Justice Camp was recommended to be removed from the bench, and he resigned from his position in 2017
• He is only one of three cases in which judges have been removed from their position by the Canadian Judicial Council since 1971

Question 27

what causes case backlog and delay?

Answer 27

• A lack of judicial resources
• Ineffective use of resources
• Too few judges
• Complexity of criminal cases (multi-charge cases compose majority of cases in criminal court)
• Inadequate case flow management
• Efforts of defence counsel to lengthen the period of time that accused persons are confined prior to trial on remand

Question 28

the right to trial within a reasonable time

Answer 28

Prior to Jordan, judges could determine that case delay violated the constitutional right “to be tried within a reasonable time” under s.11(b) of the Charter and order a stay of proceedings or dismissal of the charges

Jordan set presumptive timelines from the time the person is charged to the actual or anticipated end of trial
- 18 months for cases tried in provincial court
- 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry)