Criminal, Civil, and Administrative Justice Systems -Pre Midterm Flashcards
Court Process in Canada
• A case is brought to trial at a trial court/lower court in a province or territory
• The trial judge hears the evidence and the arguments of both sides, makes a decision and either gives his/her decisions orally or puts it in writing
• Lawyers and others reviewing the decisions believe that the trial judges decision is wrong because the judge made a mistake. In order for the mistake to be appealable it usually has to fall within one of two categories
○ The judge made a gross error in their determination of facts given the evidence before them
○ The judge made a mistake on the law - known as an error in law
• The documents for the appeal are put together by the lawyers which will include the transcript - the word for word record of what went on in court at the trial - plus the lawyers reasons for why they think the judge made an error
• The appeal courts will decide whether or not they will hear the appeal - some appeals they must hear by statute - others are the discretion of the court
If they decide to hear the appeal, the appeal courts do not hear evidence over again from the witnesses like at the trial.
3 Categories of Law
Criminal - system used when society alleges that a person has done something wrong - criminal - should be punished
• Courts make decisions using criminal process requirements
Civil - system used when one person sues another to get financial compensation for harm that was caused
• Courts make decisions using civil process requirements
Administrative - system used where administrative bodies have been given powers by legislation/statutes to deal with particular issues
Courts do not make decisions - boards tribunals, and others as appointed in the legislation do using processes outlined in the legislation/regulations or ones the board/tribunal/others create
The Police
• Agents of society
• Investigate crime
• Use their discretion in deciding to lay charges against an accused
• Can lay charges if they have ‘r&pg’ - ‘reasonable and probable grounds’ to believe that the accused did the crime
Then the accused is brought to court to face the charge
The Prosecutor
• When the accused is brought to court to face the charge, the case is taken over by the prosecutor, often the crown attorney known as the ‘crown’, whose role is to present the evidence to the judge as to why the accused should be found guilty
• The prosecutor represents society on behalf of the queen
The prosecutor must give the accused full disclosure of the case against him
The Defence Counsel
• When the accused shows up in court she/he is entitled to be represented by someone known as defence counsel, but not always. The accused may choose to represent themselves or, in some cases, have a non-lawyer representative
The defence counsel does not have to give disclosure to the prosecutor
The Onus and Standard of Proof
• Onus = whose job it is to prove the case - the responsibility for proving something; in criminal cases the onus is on the crown
• Standard of proof = the degree to which something must be proven; in order to persuade the judge, the prosecutor must establish the accused’s guilt beyond a reasonable doubt
The accused does not have to prove anything although may call evidence to raise a reasonable doubt
The Finding and Sentence
• The police and prosecutors do not decide whether or not the accused is innocent or guilty - that is the judge and jury’s job - they are the impartial decision makers who decide after listening to all of the evidence and hearing from the lawyers whether the accused is guilty or not
• If the accused is found of guilt then they are acquitted of the offence
If the accused is found guilty of the offence then the accused is convicted & prosecutor will ask the judge to give the accused a particular punishment
Sentencing
• The judge decides the appropriate sentence if someone is convicted, not the jury
• Statutes &/or the section that the accused is charged with may provide for a minimum or maximum sentence which hare parameters that the judge must decide within
Sentencing may include jail, fine, probation, restrictions on use of weapons
Judge/Jury Trials
• The accused can choose a jury if they are facing a charge with a maximum punishment of 5 years or more
• No jury if the charge is under provincial legislation or by law
• Juries in criminal trials are made up of 12 people and a decision must be unanimous
The jury decides the guilt or innocence of the accused - that are the trier of fact, the judge instructs them on the law, and they decide if the accused is guilty or not guilty
Civil Action
people sue each other or corporation because they feel they have been harmed by the behaviour or lack of behaviour of the other
The Plaintiff - person suing
• Usually seeking compensation for the harm or some order of the court
To start the case, the plaintiff files a ‘statements of claim’ and serves it in the other party
The Defendant -person being sued
• May file a defence to the claim and may also decide to counter-sue
To defend against the case, file a statement of defence
The Lawsuit - cause of action
• The plaintiff and defendant are the parties
• The lawsuit the plaintiff starts is called a cause of action and in it ht plaintiff is making a claim. When the defending party counter-sues that us called a counterclaim
• Examples of civil claims based on the common law are ‘breach of contract’ or ‘negligence’
• Other cases in the civil justice system come from legislation e.g. family law, real estate law, employment law
Anything that is not in the criminal or administrative law systems fall within the civil law system
The onus & Standard of Proof
• In the civil system, the onus to prove the case is on the person suing or bringing the application to prove the case
The standard of proof is ‘on the balance of probabilities’ - in other words, the plaintiff must prove that what they are claiming is more likely than to not be true
Civil Process
• Filing of statements of claim and defence
• Timelines
• Exchange of relevant documents & affidavits
• Examinations for discovery
• Pre-trial conference with a judge and lawyers
• Trial - by judge or judge & jury
Jury - 6 person panel & majority rules
