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Crim Class 7.doc

Course Code
LAWS 2301
Ronald Saunders

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Criminal Justice System October 28,
Class 7
Production: Role of the Court
CCRF role (Cromwell)
Process issues:
Adversary process (Cohen)
Adversary process and the Charter (Young)
History, functions
Selective enforcement: how/why?
Interpretal role
Common law
Statutory law
CCRF role and
Process role
Chapter 4
CCRF (Cromwell)
New method of interpretation
Intended as defence against the power of state through criminal law
If law or process was unfair- could be shut down or remedies
Into play via:
Challenging legislation creating offence
Challenging legislation giving powers
Challenging manner in which powers used
Effect on procedure at trial
Important rights re criminal law:
Section 2 (prostitution, abortion)
Section 15 (rape shield, battered women syndrome, abortion)
Sections 7-14 (legal rights)
Section 7- right to life, liberty and security
Due process laws
Broad term
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8-14 are just specifics from within 7
Declare action/legislation inconsistent with Charter
Use s. 24 to award remedy, including power to exclude evidence if tainted
Enshrine due process
Most people don’t enforce their rights
Don’t have to talk to police, most people will anyway
Criticisms of CCRF as reform tool
Arguments stripped of social and political context/content
Ignore realities of law
Think of it in formal sense rather than in reality sense
Challenge through courts, become politicized
Restricted in terms of appeal
Nature of the rights
Rights in Charter are abstract
Mystiques surrounding the Charter
Courts not good
Accountability issue
Adversary Process
Essential feature: “the relatively active roles played by the parties in preparing
and presenting their cases, and the relatively passive, independent, and impartial
role of the judge”
Importance of party responsibility (re rationale):
See court as impartial forum
Parties bring case on own grounds
All facts/issues are aired = best decision resulting
If court = dispute-resolving mechanism, then method can be seen as
But practical problems with process:
Parties not equal
How to get all facts/issues before court parties deem relevant
Courts specialized and foreign
How to determine appropriate role for judge
More fundamental criticisms that goes to rationale of system:
Merely a replacement for resolution by fighting – want something more for
courts in policy making role or seekers of justice
Criticism is that truth/right ignored too often in eagerness to win
Jerome Frank: “In short, the lawyer aims at victory, at winning in the fight,
not at aiding the court to discover the facts”
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