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SOC 3730 (86)
Lecture 3


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SOC 3730
Michelle Dumas

WEEK 3 READINGS – SOC3730 – CHAPTER, 3, 4 & 6 CHAPTER 3: CANADA’S COURT SYSTEM - the basic building principles: o 1) identify the more routine cases and those that involve less serious possible outcomes and assign them to an accessible high-volume, low- delay court o 2) assign the less routine and more serious cases to a lower-volume court that can devote more time and more focused attention to each individual case o 3) establish a court of appeal to correct simple errors and to promote uniformity in the application of the law within each province o 4) establish a general court of appeal to promote uniformity in the application of law within the country as a whole and to provide judicial leadership o 5) create a system of federal courts for cases directly involving the federal government as a party or raising issues concerning the administrative law applied by federal departments FIRST PRINCIPLE: THE PURELY PROVINCIAL COURTS - minor cases referred to trial courts that have enough judges to deal with the enormous volume of these cases - to serve public needs, these courts are geographically dispersed, so that as many parties as possible will find the relevant court close at hand - this is the provincial court, typically divided into functional divisions (family, etc.) - court used to be called “magistrate’s court” - Charter and the cases arising from it have reinforced these structural and institutional changes and made the judges far more independent and autonomous - Three major considerations affect the weight of the deliberations o Provincial courts have original jurisdiction(conduct the trial and give the first judicial determination) over all offences created by provincial legislation o The cut off point at which lawsuits become too large for provincial court to consider has been moving upward at rates far in excesss of the rate of inflation o Under the CCC serious crimes called indictable offences are defined as offences for which the maximum penalty is greater than 6 months in prison and/or a fine of $2000 SECOND PRINCIPLE: THE PROVINCIAL SUPERIOR TRIAL COURTS - major cases dealt with by a separate court – smaller number of judges – structured to provide the longer and more focused attention that these less routine cases require - these courts are provincial superior trial courts (this would be the Ontario Court of Justice here) - provincial superior court judges are federally appointed and paid WEEK 3 READINGS – SOC3730 – CHAPTER, 3, 4 & 6 THIRD PRINCIPLE: PROVINCIAL SUPERIOR APPEAL COURTS - review the decisions of the ‘lower’ courts within the province - all parties are entitled to appeal the first trial determination of a case - appeals are rare; a reasonable estimate is probably on the order of 1% or lower - correct of error – if the trial judge has ‘goofed’ then the lawyer for the wronged party can bring the matter before the appeal panel, demonstrate the error, and receive the appropriate remedy - appeal court has 4 options in resolving an appeal – can dismiss the appeal and uphold the trial decision – it can allow the appeal and reverse the trial decision – uphold the decision but vary the results – quash the trial decision FOURTH PRINCIPLE: SUPREME COURT OF CANADA - SCC – 1975 - 1974 – Supreme Court Act was amended to give the court more effective control over its own docket - annual Supreme Court caseload is about 100 cases - 85% of those are appeals from the provincial courts of appeal FIFTH PRINCIPLE: THE PURELY FEDERAL COURTS - has both a trial and an appeal division - jurisdiction originally comprised three elements o simple continuation of the jurisdiction of its predecessor o accounting for the majority of its cases, is an extensive administrative law jurisdiction, which essentially provides a judicial backstop for federal boards and tribunals o jurisdiction over private suits in certain areas of federal legislative competence THE CONSTITUTIONAL BASIS OF JUDICIAL AUTHORITY - section 101 gives the Parliament of Canada the power to provide for the constitution, maintenance and organization of a general court of appeal for Canada, and for the establishment of any additional courts for the better administration of the laws of Canada - section 92.14 gives the provinces authority over the constitution, maintenance and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts - if the answer is not specified within the constitution, then the courts must read between the lines – i.e. they have made up the rules as they have gone along – nothing else they could do WEEK 3 READINGS – SOC3730 – CHAPTER, 3, 4 & 6 CHAPTER 4: TRIAL COURTS - questions people bring to trial courts have to do with legal rights, and claims THE NOTION OF DISPUTE - three critical early stages in the process (Felstiner, Abel, Sarat) o naming – the identification of a problem in the form of an injurious experience o blaming – externalizing responsibility for the problem by identifying another party who fault the experience was o claiming – using some formal or informal procedure to seek some form of redress from those perceived to be responsible - Kritzer, Bogart, and Vidmar suggest that we should see the ‘legal mobilization’ of disputes in terms of crossing a series of thresholds or ‘barriers’ o Recognition barrier = corresponding to the ‘naming’ stage o Attribution barrier = corresponds to the ‘blaming stage’ o Confrontation barrier = escalates the disagreement to the claim o Third-party barrier = argument expands to include some other party o Litigation barrier DISPUTES AND THRESHOLDS - First threshold is legal practices dealing with: o standing requires that a party demonstrate a real connection with the legal issue rather than a remote or abstract interest  standing rules (because of the charter) have become extremely flexible o mootness refers to the need for a real ongoing issue rather than one whose practical relevance has vanished o courts limit themselves to hearing cases that have a remedy that is within the court’s power - second threshold is imposed by the financial costs of pursing judicial remedies o expensive to hire lawyer – put a dent in the average person’s budget o there is an American solution to this problem in the form of the contingency fee – if the case succeeds, the lawyer gets percentage, if it fails, the lawyer gets nothing - third way to limit, and thereby to manage, the access of disputes to the courts is through caseload limitations and the delays that are their inevitable consequence o delay carries cost – these costs create a pressure on parties to find some other acceptable outcome THE NOTION OF DECISION - the trial judge’s decision comprises three distinct elements o the relevant facts must be determined o the relevant law must be determined WEEK 3 READINGS – SOC3730 – CHAPTER, 3, 4 & 6 o the facts and the law must be put together to generate the appropriate results, and if the former is the case, the appropriate penalty must be assessed - the court deals with the facts, but the relevant facts are those that have been established by the court’s procedures and standards - if the oors are open too wide, the courts risk being overwhelmed, but if they are not open wide enough, the courts risk either disadvantaging some categories of potential litigant or making themselves absurdly marginal to the very social interaction they help regulate - we all ‘know’ lots of things that we cannot ‘prove’, and this distinction can be a strength and a weakness within the court system – the strength because it prevents the court from being swept away by misleading appearances or half-truths; but the weakness because it often operates at some distance from simple everyday common sen
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