week 6 (test #2) Flashcards
What is the principle of judicial independence? Who appoints judges at the provincial court level and superior court level?
Lifelong appointments of judges to ensure fair and impartial judgement, immune from interference and/or consequences from controversial decisions - idea of the independent and impartial power
provincial court judges = appointed by provincial governments
superior court judges = appointed by federal government
What are the 2 levels of the provincial and superior courts?
The provincial and territorial superior court - King’s Bench (higher) (trial by jury)
Provincial and Territorial courts (lower)
What kind of cases would the provincial court system handle?
- manages nearly all criminal cases (without juries)
- judges preside over youth, provincial statutes, and some family court and small claim (civil) matters
- increasingly under strain due to complex cases and serious offences that were historically deferred to the superior court
Explain the characteristics of the Court of King’s Bench (superior court)
- trials and appeals
- usually tries serious criminal matters, and those involving a jury
- appeals may be heard by 3-5 judges (so that there is never a tie)
- judges focus more on researching and writing legal opinions (a bit more detached from actual criminal matters)
Explain the characteristics of the Supreme Court of Canada (what are references)
- constitution act (1867) establishes a general court of appeal
- nine judges, with regional representation
- decisions are final
- decisions/opinions (referred to as references) may prompt legislative change
- make charter interpretations with complex issues stemming from private/public law
- special uniform representing something - an elevation or unity?
What is therapeutic justice? what are problem-solving/therapeutic courts and examples?
therapeutic justice - when courts facilitate change by promoting the well-being of offenders while protecting their rights, without sacrificing justice
includes specialized courts that divert offenders with special/unique needs away from the criminal justice systems
ex.
- mental health (MB - forensic assertive community treatment)
- substance abuse
- indigenous
What are 3 principles included in problem-solving / therapeutic courts?
- underlying problems of offenders, victims, and communities
- interdisciplinary collaboration
- accountability to the community
Unlike adversarial systems, the focus of therapeutic/problem solving courts is …
____ vs. legalistic
____ vs. disputes
____ vs. impersonal
____ vs. backward
____ vs. offence
____ vs. independent
____ vs. generic
____ vs. arbitration
____ vs. passive role of offender (and other players)
therapeutic
problems
personal
future orientation
offender
collaborative
individual
coaching
active
What 3 factors increase success with therapeutic courts?
- appropriate risk assessments (selection)
- moderate needs
- responsivity (motivated client)
Explain the effectiveness of problem-solving / therapeutic courts (con and pro)?
- effectiveness is difficult to measure
- there is variation in admission criteria, level of service, and definitions of success
- judges may become ‘therapists’ = be more active
- con = high rates of non-compliance (ex. complex needs)
- pro = can lower long-term costs and recidivism
What are the graduation rates for therapeutic courts for…
- greater than 90 days
- 60-90 days
- all admissions
> 90 days = 44%
60-90 days = 42%
all admissions = 37%
What resulted from R v. Gladue (1999)? examples?
challenge with this?
Resulted in consideration for the unique needs of Indigenous offender and use of alternative sentencing options
ex.
- peacemaking
- circle sentencing
- addressing language and technical barriers
- respecting cultural practice
- stopping cycles of reoffending
there are some participation challenges
What do the Truth and Reconciliation calls to action (2012) address?
address overrepresentation
What are circuit courts? what are some of the unique issues/factors in these courts?
they are court services that are provided in remote locations (ex. island lake, MB)
- have a judge, clerk, defence lawyer, crown counsel, and translator in some cases
- lack of facilities and technology
- lengthy dockets and backlogs = lengthy court sessions
- travel issues and weather delays
- might compel flexible and collaborative court operations
- RCMP resources are usually needed
- leaving the accused in their home community or move them to a city centre (urban) custody centre?
Who is included in the courtroom workgroup?
judge, juries, crown counsel, and defence counsel
explain the role of the judge and juries
judge: trier of fact (gatekeeper) who interprets law, assesses whether evidence may be admitted, its truthfulness, and rules on motions by counsel
juries: delegated triers of fact, while the judge explains legal procedures and its application
explain the role of the crown counsel and the defence counsel
crown counsel: represent the government (crown/justice) and prosecute, lay charges, provide advice to police (pre-charge), prepare for trial/appeals, manage witnesses, argue bail applications, and remain current on changes in law
defence counsel: represent accused persons, negotiate pleas, cross-examine witnesses
explain the role of the justices of the peace? what’s the concern with them?
they are provincially appointed staff who issue warrants, preside over provincial/territorial offences, and may administer court scheduling
* concern is with their qualifications and lack of legal training
explain the role of administrators and sheriffs in court functioning
administrators: financial management, order/document preparation, transcription services, etc.
sheriffs: jury management, prisoner escort/supervision, and may serve documents, seize property, etc.
What is included in the Law Society of Manitoba
- legal profession act
- law society rules
- code of professional conduct
- lawyer practice directions
What is included in the Canadian Judicial Council?
- learning objectives
- ethical standards
- judicial independence (discretion)
- fostering public confidence - transparency
- appeals to the SCC
Explain the issues of accountability in the CJS
Professional and personal relationships overlapping within the legal community > ppl outside of the subculture might become passive observers or bystanders > vulnerability of accused persons - low SES, detached, and ‘plea driven’
Judicial appointments rest with a Judicial Advisory Committee or members who recommend appointments
> minister of justice (Prov) or executive branch (federal) make appointments
What are the critiques of the way judicial appointments are made?
- appointment and complaint process lacks transparency
- lacking civilian/external oversight
- legal communities are impenetrable
- legal community re-produces low diversity
What is the issue of case delays? What are some things that lead to this issue?
There are backlogs and slow administration that undermine legitimacy > the ‘culture of delay’
- vacancy rates (judiciary, admin, etc.)
- ‘banking hours’ > usually get double time applied to sentence for the amt of time spent in jail pre trial
- case complexity
- inefficient case-flow management, use of resources
- resistance to technology - aging infrastructure
- tactics
- disclosure volumes
