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Lesson 6: Canadian Criminal Courts:
Canadian Court Structure:
- It is a dual & unitary system, a dual court system with provincial courts & federal courts (The US has a dual court system, comprised of federal courts for federal laws & state courts for state laws) o The Federal court hears legal disputes that fall under the federal domain (I.e., Claims against the gov) o Unitary court system, where precedent follows clearly from higher to lower courts
- 4 levels of courts that deal with criminal cases:
- Provincial / Territorial Courts
- Provincial / Territorial Superior Courts
- Provincial Court of Appeals (Appellate)
- Supreme Court of Canada
Provincial / Territorial Courts: (Lowest level of courts)
® Less serious cases > Hear most criminal offences found in the CC & preliminary inquiry ® Administered and maintained by the provincial gov > Judges are appointed & paid by the provincial gov) ® No jury ® Division of provincial court > Criminal, Youth, Small Claims, Family & Civil Decisions
Preliminary Inquiry: Hearing to determine if there is sufficient evidence to justify a trial for more serious offences heard in provincial superior courts
Provincial Superior Courts: (Highest level of courts)
® Serious cases, I.e., (1) Provincially enacted offences, (2) Summary conviction offences & (3) Hybrid offences ® Maintained by the provincial gov > Judges are appointed & paid by the federal gov ® They have 2 levels: (1) Trial Court & (2) Appeal Court
Provincial Court of Appeals:
® Reviews decisions of lower courts ® Hears criminal appeals ® 2 types of legal appeals:
- Appeals by Right : If you can afford legal costs you can appeal a decision from a provincial judge & the appellate court must hear the appeal
- Appeals by Leave: You are requesting that a higher court hear your appeal, but that court determines if it wants to review your case
Supreme Court of Canada (Aka Trial Court): (Located in Ottawa > Hears cases from all provinces)
® Serious criminal offences ® 9 judges are appointed by the federal gov / governor in council (3 are from Quebec) > They must have been superior court judges / lawyers with 10 years + standing at the bar
The Courtroom Workgroup:
Courtroom Workgroup: CJ professional who are present in the courtroom (Judge, Crown attorney & defense lawyers)
Judges:
® Arbitrate & enforce the criminal trial procedure > Gatekeepers ® Interpret & decide on issues of law ® Try facts in criminal cases w/o a jury ® Determine type & length of sentence ® Paul Weile r outlines 2 models of judicial decision making:
- The Adjudication of Disputes Models: Argues that the law is something that “already exists”, & the role of the judge is to find the appropriate law, interpret it & apply it to facts 2. The Judicial Policy-Maker Model: Argues that the laws have an “unfinished quality” > Laws are words & judges must exercise some creativity in interpreting their meaning
Judicial Independence: Allows judges to apply & interpret the law w/o political / public pressure
® Protected through:
1. Security of Tenure: When a judge is appointed to the bench they serve until the age of retirement > Can't be removed from the bench unless their behavior warrants removal 2. Financial Security: Judicial salaries are independent from gov interference 3. Institutional Independence: Administration of courts is independent from public and gov interference > Chief justices in each province manage the litigation process and decide which cases judges will hear
Canadian Judicial Council: (Created under the Judges Act) Reviews the professional & personal conduct of judges in cases where complaints have emerged
Justices of The Peace:
- Not lawyers whereas judges are
- Legal authority of JPs is set out in federal & provincial statutes & regulations
o Assist in jury management, escort accused / convicted persons & provide security in the courtroom o In some provinces, they serve legal documents, seize goods & collect fines
Case Delay in the Courts:
® Sources of Case Delay: o Lack of judicial resources o Ineffective use of resources o Not enough judges o Complexity of criminal cases o Inadequate case flow management by chief & trial judges o Efforts of defense counsel to lengthen the period that accused persons are confined prior to trial on remand (They’re given 1.5 for 1-day credit for jail time served prior to sentencing)
Ex: R. V. Jordan Decision
- Jordan was a B.C. man who experienced a 4-year delay before being brought to trial on drug charges
- Court dismissed the charges against Jordan & set presumptive timelines for the disposition of cases in the courts from the time the person is charged to the actual or anticipated end of trial: o 18 months for cases tried in provincial court o 30 months for cases in the superior court (Indictable Offences)
- Redefined the constitutional right to a trial within a reasonable time
- Prior to the Jordan decision, judges could determine that case delay violated a persons constitutionally guaranteed right under section 11 of the charter > 11(b)” Any person charged with an offence has the right to be tried withing a reasonable time”
- Avoid case delay by hiring more judges, Crown prosecutors, duty counsel & court staff, as well as an increased focus on the early resolution of cases
Jordan Decision: Sets a framework for determining what constitutes a reasonable delay
Case Study – Adam Picard
® Dec 2012, Picard was charged with 1st^ degree murder in the shooting death of 28 yr old Fouad Nayel > Nayel had been missing since June 17th, 2012 before his body was found in a wooded area outside Ottawa ® Nov 15th, 2016, an ONT superior court justice stayed the 1st^ degree murder charge, Picard walked out free ® The stay of proceedings in this case was the result of a landmark supreme court decision R.V.Jordan
Stay of Proceedings: Act by the crown to terminate / suspend court proceedings after they’ve commenced
