SOC209H5 Lecture Notes - Restorative Justice, Child Pornography, Summary Offence

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13 Dec 2012
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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