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Chapter Six

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Nicole Myers

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Chapter Six: The Criminal Courts There are four courts that deal with criminal cases: 1. Provincial/territorial courts 2. Provincial superior courts 3. Provincial appellate courts 4. Supreme Court of Canada The courts are responsible for determining the guilt or innocence of accused person and for imposing an appropriate sentence on those who are convicted. They are also responsible for ensuring the rights of accused persons are protected. Judicial independence is important to the proper functioning of the courts. This principle means that citizens have the right to have their cases tried by tribunals that are fair, impartial and immune from political interference. Supreme Court of Canada  Provincial Superior Court (Appeals)  Provincial Superior Court (Trial)  Provincial Court The Provincial Court System • Every province and territory, the court system has 2 levels: provincial and superior • Exception is Nunavut, which has a unified or single-level court. The powers of the Territorial Court and the Northwest Territories Supreme Court have been combined into one superior court that can hear any type of case. • The provincial courts are the lowest level of courts and nearly all-criminal cases are heard and disposed off in them. Judges sit without juries. • Provincial courts have had to deal with less serious cases. Now, judges in these courts listen to increasingly serious offences. Federal Courts • “The court of last resort” or the Supreme Court of Canada hears cases from all provinces and territories. • Decisions are final and cannot be appealed. However, in some instances parliament passes legislation in response to a decision of the Supreme Court that results in change of decision. • They have a trial court and a court of appeal. Provincial judges appoint judges at provincial court level and federal government appoints judges at superior court level. There are no elected judges in Canada. Focus on judicial independence is slowly shifting towards judicial accountability. There is discussion on whether judges should be elected instead of being appointed. But this would politicize the judiciary. Elderly, white, Anglo males are overrepresented when the judiciary should reflect Canadian cultural diversity. Specialized Provincial Courts • Provinces have created domestic violence courts, drug courts and Aboriginal courts. They reflect therapeutic jurisprudence- where criminal law and criminal courts act as change agents to have a positive impact on clients’ lives.  Done to move away from an adversarial approach to responding to offenders who have addiction issues and focusing on intervention and rehab instead. • Less formal atmosphere, emphasis on dialogue among all parties Community Courts • Problem-solving approach with offenders • Intent of court is not to criminalize offenders but to link them with social services and treatment resources. • Cases processed in 2 days as opposed to 45 days in regular courts • Critics say it is a waste of money and doesn’t bring positive outcomes to clients and that half the cases were dismissed. There have been some positive outcomes. Defendants say community courts are fairer than traditional courts. Reduced rates of reoffending are found among clients. Mental Health Courts • They are provided to address pre-trial issues of the accused person’s fitness to stand trial and to reduce the revolving door syndrome of reoffending and involvement in the justice system of mentally ill persons. • Many mentally ill persons have substance abuse issues. • Program designed to redirect these people away from the justice system into the treatment services. • Lower rates of reoffending and violence than people who have mental disorders and don’t participate • Critics say it lacks communication among parties; limits the court to being a ‘Band-Aid’ solution to the problems of the mentally ill in the justice system. Domestic Violence Courts • Only hear criminal law charges related to domestic violence and provide a mechanism for early intervention into these cases. • Two main approaches: 1. Early intervention and counselling - When no injuries have occurred, no weapons are used and the accused pleads guilty, this approach is used. When judicial interim release or bail is given, it is done on the condition that the accused is required to complete the Partner Assault Response Program [intervention program designed to teach non-abusive ways to resolve conflicts]. - If offenders do not complete this program or if they reoffend, new charges are laid. 2. Coordinated prosecutions - When the accused is a repeat offender or inflicts serious injury, this approach is taken. It involves specialized investigations by police to obtain evidence and prosecution of offenders who specialize in domestic cases. • No evaluations of effectiveness of domestic courts have been published. Aboriginal Courts • Requires judges to consider sentencing options including use of restorative justice other than incarceration for Aboriginal offenders. • Gladue Court [Toronto] - handles bail hearings, remands, trials and sentencing - the judge, Crown and defense lawyers are all Aboriginals • Tsuu T’ina Nation Peacemaker Court [Alberta] - Involves a peacemaker working with the Crown counsel to identify cases that could be diverted to the community’s peacemaking program. - The peacemaker then opens a restorative justice process involving the victim, the accused, elders and community residents. Once the process is completed, the case returns to court where the judge considers outcomes of the peacemaking process when passing sentence. Drug Treatment Courts • Alternate forum for responding to offenders who have been convicted of drug-related offences- offenders avoid incarceration by participating in a drug abuse treatment program and regular drug testing. • Cases go to the drug court by the Crown counsels who determine whether the accused is eligible. However, persons charged with violent offenses are not eligible. • Approach of drug courts is non-adversarial. • The traditional roles of the judge, the prosecution and defence lawyers are altered in drug courts. Judges become active in treatment planning, monitoring, rewarding while defence lawyers and prosecutors work as a team. • Offenders have to report relapses and show a reduction in their level of drug dependency. When the program is completed, those who are charged with less serious offences may have their charges withdrawn and those charged with serious offences may get a period of probation. Those who don’t abide by the program are processed through regular courts. • Positive outcomes: reduced levels of drug use, lower levels of re-arrest. Provincial/Territorial Circuit Courts • In northern and remote areas, judicial services are provided via circuit courts [composed of a judge, court clerk, defense lawyer, court counsel and translator] that travel to communities to hold court. • Problems with this system: - lengthy court sessions due to backlog of cases - time constraints - effective crown and defense preparation that result in marathon court sessions [up to 12 hours sometimes] - shortage of interpreters [causes problems for accused if they’re Aboriginal and understand less of English or French and less of legal terminology used] • Circuit courts encourage elders to participate in this process. Restorative strategies are applied in this envir
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