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Chapter 3

Sociology 2260A/B Chapter 3: Chapter 3 – The Organization of Law

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Sociology 2260A/B
Brenda Kobayashi

Chapter 3 – The Organization of Law COURTS • Dispute: Conflict of claims or rights – an assertion of right, claim, or demand on one side, met by contrary claims on other. When courts hear disputes, they attempt to decide (adjudicate) b/w or among those who have some disagreement, misunderstanding or competing claims. • Adjudication: A public and formal method of conflict resolution, best exemplified by courts. Courts have authority to intervene in disputes whether parties desire it and to render a decision and enforce compliance w/ that decision. The emphasis is on legal rights and duties of disputants, rather than on compromises or on mutual satisfaction of parties. • Courts are passive; wait until matters are brought to them for resolution o Places responsibility on citizens/organization to recognize and define their own needs and problems and to determine which require legal judgments • Role of courts is to interpret and apply law • Judicial interpretation of law is expected to be impartial o Judges are expected to be governed by legal principles, but by personal preferences or political pragmatism Dispute Categories • Goldman and Sarat – three important categories of dispute 1. Private dispute o Characterized by absence of any initial participation by public authorities o Ex: when a husband a wife fight, when two business persons debate terms of contract, or when two cars crash, these events are likely to give rise to private disputes. o Remain private if government is not a party 2. Public-initiated dispute o Occurs when government seeks to enforce norms of conduct or to punish individuals who breach such norms o Emerge when society attempts to control and channel social behavior through promulgation of binding legal norms 3. Public defendant dispute o Government participates as a defendant o Involve challenges to authority of some government agency or questions about propriety of some government action that may be initiated by an individual or organization o Courts are called upon to review action of other branches of government o Involve claims that government has not abided by its own rules or followed procedures Organization of Courts • Since Canada is a federal state, legislative powers are divided b/w two levels of government: federal and provincial • Under the Constitution Act, 1867 o Provinces granted power to create and maintain provincial courts that would deal w/ matters that fell w/in their jurisdiction o Gave federal Parliament authority to establish “a general court of appeal for Canada” as well as “any additional courts for better administration of laws of Canada” • Canada’s courts distinguished into four basic levels: o Provincial/territorial courts o Provincial/territorial superior courts and Federal Court o Provincial/territorial courts of appeal and Federal Court of Appeal o Supreme Court of Canada ▪ Highest court in Canada and final court of appeal form all other Canadian courts Provincial/Territorial Courts • Every Canadian province and territory has a provincial/territorial court except Nunavut o Nunavut – Nunavut Court of Justice – a court that combines power of superior trial court and territorial court so that same judge can hear all cases that arise in territory • Deal with most criminal offences, family law matters (except divorce), young persons in conflict w/ law, traffic violations, provincial/territorial regulatory offences, and claims involving money • Private disputes involving limited sums of money • All preliminary enquiries – hearings to determine whether enough evidence to justify full trial in serious criminal cases • Drug Treatment Court: attempt to address needs of non-violent individuals who are charged w/ criminal offences that are motivated by their addictions • Domestic Violence Courts: specifically address domestic violence cases, designed to decrease court processing time, increase conviction rates, provide focal point for victim services, and enable specialization w/in law enforcement and investigations • Youth Courts: specifically address cases in which young person, 12-17, is charged w/ an offence under federal youth justice laws • Not permitted to legislate on matters that fell under federal jurisdiction o Criminal law o Employment insurance o Postal service o Regulation of trade o External relations o Money and banking o Transportation o Citizenship, Indian affairs o defence Provincial/Territorial Superior Courts • Highest court at provincial level • Called Court of Queen’s Bench, High Court of Justice, Superior Court of Justice, Supreme Court Trial Division, or Division Court • Have jurisdiction to hear all civil and criminal cases (unlike a statute says otherwise) • Has special divisions (ex: family division) • Superior courts are administered by provinces and territories, but superior court judges appointed and paid by federal government Appellate Courts • Provincial institutions that hear appeals of decision of provincial superior court • Referred to as Court of Appeal, Supreme Court Appeal Division, or Appellate Division • Examine written transcripts of trial and listen to legal arguments presented by lawyers representing parties involved in dispute • Hear constitutional questions that may be raised in appeals involving individuals, governments or governmental agencies Federal Courts • Consists of trial division and court of appeal • Superior courts w/ civil jurisdiction • Can only deal w/ matters specified in federal statutes • Interprovincial and federal-provincial disputes, intellectual property proceedings, Competition Act cases, citizenship appeals, and cases involving Crown corporations or departments of Government of Canada • Only Federal courts have jurisdiction to review decisions, orders and other administrative actions of federal boards, commissions, and tribunals; these bodies may refer any question of law, jurisdiction or practice to one of Courts at any stage of proceeding • not allowed to legislate on matters that fell under provincial jurisdiction o property and civil rights o administration of justice o education o health and welfare o municipal institutions o matters of local or private nature Specialized Federal Courts • Tax Court of Canada and courts that serve Military Justice System • Tax Court of Canada o Created in 1983 to address disputes arising from assessment of federal taxes o Independent of Canada Revenue Agency and all other government departments o Hears disputes b/w taxpayers and federal government after taxpayer has exhausted all other options for appeal • Military courts o Hear cases involving Code of Service Discipline – “a system of disciplinary offences designed to further good order and proper functioning of Canadian forces” – and “applies to all members of Canadian forces as well as civilians who accompany Canadian Forces on active service” • Court Martial Appeal Court o Hear appeals from military courts o Function like provincial/territorial appeal courts and its powers are same as superior court Supreme Court of Canada • Court of last resort • Final authority on interpretation of entire body of Canadian of Canadian law, whatever its source • Has jurisdiction over disputes in all areas of law (constitutional, administrative, criminal, civil) and is final court of appeal from all other Canadian courts • “leave to appeal” is not routinely granted, it only occurs when a case “involves a question of public importance; if it raises an important issue of law or mixed law and fact; or if matter is significant enough to be considered by country’s Supreme Court” • empowered to rule on legality of bills submitted by government and to declare law on questions referred to it by federal cabinet • Legislation or government actions that infringe or deny fundamental rights and freedoms may be struck down by courts, and Supreme Court has final say on matter • Composed of eight puisne justices and one Chief Justice, hears cases in panels of 3, 5, or 7 or as entire body, only lawyers arguing • Ruling of Supreme Court that concerns application of civil law in Quebec will not apply outside of that province PARTICIPANTS IN COURT PROCESSES Litigants • Individuals, organizations and government officials trying to settle disagreements and to regulate their own behavior and behavior of others • One-shotters: uses courts only occasionally; such as author suing publisher for breach of contract, and a professor filing charges against university for sexual or racial discrimination in promotion; usually individuals o more concerned w/ substantive result of their case • Repeat players: engage in many similar litigations over period; organizations, such as finance companies, moving companies, or insurance companies o More concerned w/ ways a decision may affect disposition of similar cases in future • Research suggests that repeat performers (organizations) using courts for routine processing clients have highest success rates and do better as both plaintiffs and defendants that one-shotters (individuals) • McCormick: o “party capability” theory suggests that senior levels of government (federal and provincial) fare better than their municipal counterparts, and that Crown will do better still b/c it acts against isolated individuals in clearly defined legal background that maximizes returns to experience and organization o compared to “small” businesses, “big” businesses enjoy greater success and that individuals are less successful ▪ more effective when appear as respondents (successfully defending trial court decisions) rather than as appellants Lawyers • occupy intermediary position b/w disputants and courts, and transform litigants’ complaints into legal disputes • gatekeepers for judiciary • repeat plays in adjudication process • Casper (1972) – distinguishes types of trial layers 1. View themselves principally as representatives of public interests o Concerned w/ consumer interests or w/ protection of environment o Individual cases simply vehicles for achieving broad public objectives that generally necessitate major changes in law o Prefer to take only cases they believe involve significant issues 2. Represents particular interests or organizations o Some companies have in-house lawyers whose principal role is to represent members of organization 3. Involved in actual work o Typically, criminal defence lawyers, are legal specialists who most closely approximate public’s preconception of lawyers o Advocate o Take all possible steps w/in legal and ethical bounds to achieve victory for client, while protecting rights of client at each step of criminal justice process o Intermediary o b/w client and law o working through negotiation and compromise to secure best possible benefits from system o Counsellor o Responsibility of defense to give advice to client as to what to expect and what appears to be in client’s best interest 4. “hired guns” o serving individuals who retain him/her o interested only in case in which they are involved, doing everything w/in legal and ethical limits to ensure favorable outcomes for their clients o serve a case, not a cause o behave differently in advising clients whether to litigate and in preparing strategies of litigation Judges • responsible for administration of court and its reputation for honesty and impartiality • interprets rules that govern proceeding, although this power may be shared w/ jury of laypersons, and judge sees themselves as autonomous decision makes whom nobody bosses around • Canadian Judicial Council (CJC) o Investigate complaints about conduct of federally appointed judges o Make recommendations, generally in conjunction w/ Canadian Superior Courts Judges Association, on judicial salaries and benefits o continuing education of judges o developing consensus among Council members on issues involving administration of justice • In civil-law countries, such as France and Italy, judges are civil servants and have different training and experience from practising lawyers o Rely on inquisitorial method, which has its roots in ecclesiastical courts o Main figures at trial are investigating magistrate and presiding judge Juries • Criminal cases involving summary and minor indictable offences are tried w/out jury • Composed of 12 persons • Verdict must be unanimous • British civil cases o No juries except those involving libel or police misconduct o No voir dire – a trial w/in a trial to decide upon admissibility of evidence o Cross examination of juries and criminal cases do not require unanimous verdicts • Prosecutor may seek a jury trial b/c of belief that: o A jury is more likely to convict than judge o A jury is more likely to impose desired sentence o A jury trial will attract more public attention to defendant’s heinous crimes • Jury is used in all death penalty cases • Fundamental law in US that no person may be convicted of capital crime except by unanimous verdict of 12-member jury o One exception: jury of five is all that is required to sentence members of armed services to death in court martial • Dispute processing in trial courts involves two basic types of issues: issues of law and issues of fact • Issues of law emerge as participants in dispute seek to identify and interpret norms that will legitimize their behavior • Trial is a contest of interpretation and legal reasoning • Trial provides opportunity for reconstruction, description, and interpretation of events (issues of facts) • Juries are triers of facts • Jury is authority on facts and judge is authority on law • Purpose of voir dire: o Used to obtain information to assist in selection of jurors and to ferret out any juror bias o Enables lawyers to develop rapport w/ potential jury members o Attempt by both sides to try to change attitudes, values and perspectives of jurors • Lawyers may employ various strategies that will maximize their side’s chances for success o One-juror verdict theory: look for key juror who will be sympathetic to their case and able to influence decision of entire group of jurors ▪ Attempt to select influential individual who will favor their position and encourage others to do so as well o similarity-leniency hypothesis: likes will favor likes ▪ religious similarity ▪ ex: Catholics on jury will favor a Catholic litigant o black-sheep effect: while “in-group members” are generally favored, those who are an embarrassment to group or cast group in negative light may be treated especially harshly o increasing use of social scientists in jury selection • Scientific jury selection 1. Random sample drawn from population and demographic profile of sample is compared w/ that of prospective jurors o If jurors were randomly selected, profiles should match o If there is substantial over- or under- representation of characteristics (ethnic groups, age, occupation), jury pool can be challenged o After established that prospective jurors represent population at large, random sample is drawn from jury pool to determine demographic, personal, and attitudinal characteristics considered to be favorable to one’s own side o After establishing psychological and demographic profile of “favorable” juror, social scientist can make recommendations for selection of individual jurors • Shadow jury: used to gain feedback for lawyers on how to try their cases. Most of these mock trials are conducted by jury consulting or market research firms • Only limited questioning of prospective jurors is allowed for in Canada, and in vast majority of cases, jurors are selected w/out any questioning whatsoever • Only information readily available to Canadian lawyers about potential juror is juror’s name, address, occupation, physical appearance and general demeanour • Three types of challenges can be used to eliminate prospective jurors: 1. Jury list can be challenged if it can be shown that list was fraudulent or partial or that there was wilful misconduct in selecting prospective jurors 2. Challenge for cause – can be made on grounds that, for example, a prospective juror fails to meet requirements of provincial statute that governs juries (ex: person’s occupation places him/her w/in an exempted category) 3. Peremptory challenge – allows either defense of prosecution to eliminate potential juror w/out reference to specific causes • Four types of bias could potentially impact jurors 1. Interest prejudice – biases that jurors may hold due to direct interest in case (ex: relationship to accused or witness) 2. Specific prejudice – attitudes or beliefs about case that may affect one’s ability to decide case in fair way 3. Generic prejudice – beliefs about certain groups of people or certain types of crime (ex: judging a person as guilty or innocent based on race, sex, or sexual orientation rather than facts of case) 4. Normative prejudice – biases caused by jurors’ perception of strong community preference for a particular verdict o “biases that occur when juror perceives that there is such strong community interest in particular outcome of trail that he/she is influenced in reaching verdict that is consistent w/ community sentiment rather than one based on an impartial evaluation of trial evidence FLOW OF LITIGATION Criminal Cases • w/ hybrid offences, Crown counsel decides whether to treat offence as summary conviction offence or to proceed by indictment • at preliminary inquiry, judge must decide whether there is sufficient evidence to proceed to trial or if accused should be discharged • at trial, judge or jury must decide whether Crown has proven its case “beyond a reasonable doubt” • judge must weight goals of sentencing, bearing in mind that Criminal Code requires that “all available sanctions other than imprisonment that are reasonable in circumstances should be considered for all offenders” • plea bargaining – agreement by accused to plead guilty in return for prosecutor’s agreeing to take or refrain from taking particular course of action • several things can be negotiated, including charges, procedure, sentences, and facts of an offence for purposes of a guilty plea • three subcategories of plea bargaining: 1. Charge bargaining – promises concerning nature of charges to be laid 2. Sentence bargaining – promises relating to ultimate sentence that may be meted out by court 3. Fact bargaining – promises concerning facts that Crown may bring to attention of trial judge • Plea bargaining functions to increase certainty • Section 718 of Code: “A sentence must be proportionate to gravity of offence and degree of responsibility of offender” • Objectives in 718 that are to be considered by judge in sentencing: 1. Denunciation: the attempt to censure an individual for culpable criminal conduct. The court imposes a sentence to denounce the crime of which the offender has been convicted 2. Specific deterrence: the attempt to prevent crime by arousing fear of punishment in the individual being sentenced. Individual offenders are inhibited from further offending by fear of what will happen to them if they are re-convicted. 3. General deterrence: the attempt to prevent crime by creating fear of punishment among the public. Potential offenders are said to be deterred by being made aware of the punishments imposed on criminal offenders. 4. Incapacitation: the prevention of crime by the incapacitation of the individual offender for a specific period of time. This usually means incarceration. 5. Rehabilitation: the attempt to change an individual by promoting law-abiding behavior. This usually involves sentencing offender to some alternative to custody, such as probation w/ conditions 6. Reparation: the court may order the offender to make reparations to individual victims or the community 7. Promote a sense of responsibility in offenders • Options available to Canadian judges in sentencing: o Imprisonment ▪ Continuous ▪ Intermittent (served on weekends) ▪ Indeterminate (dangerous offenders) o Suspended sentence w/ probation o Probation o Imposition of a fine o Conditional and absolute discharge o Restitutions o Various specific prohibitions (such as prohibiting individual from being in possession of a handgun) • In attempt to reduce use of incarceration as a sanction, 1996 sentencing reforms created variety of elements including disposition called “conditional sentence”, which allows offender to serve his/her sentence in community if individual complies w/ conditions imposed o If individual fails to abide by conditions, he/she may be sent to prison o Not all individuals eligible o In applying this sentence court must feel confident that “serving sentence in community would not endanger safety of community,” and the sentence originally imposed must be for period of incarceration that is less than two years • Sentencing circles: the court typically invites “interested members of community to join judge, prosecutor, defence counsel, police, social service providers, community elders, along w/ offender, victim and their families and supporters to meet and, w/in a circle, discuss the crime, factors that may have impacted upon its commission, sentencing options, and strategies through which offender may be reintegrated into community. In Canada, sentencing circles seldom hear cases that carry a minimum punishment of over two years’ imprisonment. CIVIL PROCEEDINGS Crime • Crime: public wrong, an offence that has been committed against public interest • Goals of state-administered punishment: o Specific deterrence: deter specific offender from committing further crimes o General deterrence: deter members of public from committing offences by “making an example” • Determination of who is guilty of crime must be determined in court “beyond a reasonable doubt” o Part of this determination requires that person accused of crime be shown to have been possessed of an evil intent (mens rea) when evil act (actus rea) was committed Torts • Tort: wrong committed against private interest of an individual, corporation or government • Wrong committed may be intentional or due to negligence • Viewed as less serious than crimes, as harm that has been done is limited to specific individuals or organizations • B/c tort is treated less seriously than a crime, a lower standard based on a balance of probabilities as to who is probably responsible is used to determine who is “at fault” • Unlike in the case of crime, not a requirement in tort law that it be shown that defendant intended to do harm; it is enough to show that defendant’s actions, intended or not, caused harm to someone else History of Tort Law • “Tort” derived from Latin word tortus, which means “twisted” or “wrong” • introduced into English law by William the Conqueror in 1066 o system of laws developed that recognized a distinction b/w actions or offences that threaten the King’s Peace or the state (crimes), and harms that are solely a matter of dispute b/w individuals (torts) • unlike in criminal, family, or constitutional law, there are no books of statutes that direct how law of torts is to be administered o instead, as societies continue to develop and become more complex, new types of private disputes b/w individuals, corporations, or governments arise and are dealt w/ in courts • In Canada, two systems of tort law in operation: o Quebec: matters involving private wrongs are dealt w/ according to law of delicts, or law of civil responsibility o All other provinces/territories: system of tort law derived directly from English common law system in effec
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