Ch.5, Court Structure

Question 1

Illustrate the difference between summary and indictable offenses.

Answer 1

Indictable offenses typically have more serious consequences than summary offenses

Question 2

Define the Family Division of the Provincial courts.

Answer 2

Deals with separation, divorce, child welfare, guardianship, adoption, etc. Emphasizes reconciliation and family harmony; less formality than the Criminal Division.

Question 3

Define the Small Claims Division of the Provincial courts.

Answer 3

Hears minor civil matters outside the context of the family; the average citizen can seek compensation without a lawyer. Deals with amounts less than $35,000 and is concerned with tort law.

Question 4

Define the Criminal Division of the Provincial Courts.

Answer 4

Hears all summary conviction offenses and all offenses under provincial statutes; preliminary hearings, most indictable offenses, and all matters under Section 553 (with the exception of murder, treason, piracy, judge bribing, sedition)

Question 5

Define the Trial Division of the Superior Courts of the Provinces.

Answer 5

Hears indictable offenses under section 469 (murder, piracy, bribing of the judiciary)
Hears all libel and defamation actions
Hears all civil cases within a given monetary jurisdiction

Question 6

Define libel and defamation actions.

Answer 6

A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.

Question 7

Define the Appeal Division of the Superior Courts of the Provinces.

Answer 7

Hears civil and family law appeals from the superior court (trial division)
Heras appeals of criminal cases from the superior courts (trial division)
Civil family law appeals
Questions of law and mixed law

Question 8

Define the Trial Division of the Federal Court of Canada.

Answer 8

Citizenship, immigration, refugee
Human rights
ALL THINGS UNDER FEDERAL JURISDICTION/LEGISLATION, DON’T MEMORIZE WHOLE LIST

Question 9

Define an adversarial system and its criticisms.

Answer 9

A contest of two competing arguments in court, picking between two truths.
^Counsel are equal neither in ability nor cost: the strength of an individual’s legal argument depends upon the resources they have and the lawyers they can employ.

Question 10

Define an inquisitorial system.

Answer 10

Places greater expectations on judges because they are required to ask relevant questions and to direct the investigation of the issues of a given case.

Question 11

Define the British Star Chamber.

Answer 11

Smalll room in the royal palace where British justice was dispensed, away from the public.

Question 12

Define the two exceptions to the restrictions on the Open Court principle in youth cases.

Answer 12

If the case transfers to adult court, the youth’s name may be published. Second, a judge may permit the identification of the young person if the judge believes the individual is a danger to others, and the publication is nessecary to apprehending the young person

Question 13

Why is the formality of the court crucial? Why is this criticized?

Answer 13

To ensure respect and reverence for the proceeding.
-Criticized because it may be a source of fear for victims, little room for the accused to speak (especially in disadvantaged people groups) their fate is decided for them, not everyone understands the formality of the court and its proceedings

Question 14

Define general deterrence/ specific deterrence/rehabilitation concerns in relation to the criminal court’s punishments.

Answer 14

-Deterring the general public from committing the crime
-Deterring the specific offendent from repeating future crimes
-Assistance to prepare the person for societal integration and abstinence from criminal activity.

Question 15

Define the dramatization function of criminal law.

Answer 15

The idea that the penalties dispensed serve dramatically to reaffirm social values.

Question 16

Why is the presence of a jury criticized?

Answer 16

-They are not educated in law nor lawful decisions
-Community values and individual subjectivity may often sway decision making
-Each individual’s concept of justice is different and not always rooted in lawful proceedings

Question 17

Define mediation justice.

Answer 17

Involves the use of a third party whose task is to bring the party into agreement. Encourage them to come to agreements regarding the disputes; the terms are not imposed and are much cheaper than the adversary route.

Question 18

Define restorative justice and its criticisms.

Answer 18

• Encourages accountability, recognition of harm, humanism, healing, safety and a sense of closure.
  -Criticisms: no accountability if an offender repeats the offence, imposes emotional costs on victims through pressure to participate in emotional dialogue
  -Discriminates against victims of violent crimes: elite offenders are not treated equally as restorative justice is often implemented hierarchally

Question 19

What are the benefits of the RJ?

Answer 19

victims and offenders can understand one another, recognize harm, bring about reconciliation, and community can understand the root causes of crime.

Question 20

Define the fallibility and delay of the court.

Answer 20

Being fallible is part of being human, and sometimes the biggest errors are made by those who are thought of as the most brilliant of all; courts can make grave errors.
-Delay may result in certain court cases, dragging them on for years.

Question 21

Define Part I of the Constitution Act.

Answer 21

Limits the power of government^ not the private lives of people

Question 22

Define xPart II of Constitution Act Indigenous Peoples

Answer 22

Guarantees existing rights of Indigenous peoples in Canada
Indigenous rights are collective rights: flow from original occupation of the land that is now Canada
Broadly speaking, i refers to the right to independence through self-determination regarding self-governance, land resources, and culture

Question 23

Define Part III of the Constitution Act

Answer 23

Equalization Payments : Gives federal government money to transfer to provinces (the “have not provinces”)
Some provinces have more sources of revenue than others

Question 24

What are the criticisms of Part III of the Constitution Act?

Answer 24

Problems arise with the disparities in fiscal government among provinces and exemptions (when Quebec City subsidizes hydro rates, driving down their fiscal capacity: if they just raised the hydro rates to match Toronto their equalization payment would plummet) But since they refuse to do this, they keep taking money from other provinces

Question 25

Define Part IV of the Constitution Act.

Answer 25

Section 35 affirmed existing Indigenous and treaty rights and defines “Aboriginal peoples of Canada” as Indians or First Nations People
This part called for the prime minister and premiers to hold a constitutional conference to discuss rights of the Indigenous peoples ^^involved self governance

Question 26

Define Part V of the Constitution Act.

Answer 26

Amending Formula; 7;50 Rule: most sections can be changed with the approval from House of Commons, Senate, and the legislatures of 7 provinces (at least 50% of Canada’s population, must have Quebec or Ontario’s assent because of how population dense they are)

Question 27

What are the criticisms of the Senate?

Answer 27

^^Senate and House of Commons may be seen as not representing the people since Senate is not elected: you want people that are not politically tied to a particular party or have interest in their own reelection: criticisms that they do not represent the people because they are not elected

Question 28

Define Part 6/7 of the Constitution Act.

Answer 28

Distribution of powers; decided what provincial governments could or could not do; ultra vires vs. intra vires

Question 29

Define the Federal Court of Appeal.

Answer 29

Hearing appeals from federal court and Tax Court
Judicial review of 17 federal boards and tribunals (federal administration)
Reviews of variety of other federal legislation: tax, maritime, communications, air passenger transportation, prison, national security, intellectual property

Question 30

Define the cases that the Supreme Court would take on.

Answer 30

Hears appeals from criminal cases from Provincial Court Appeal; when there has been a dissent on question of law/mixed fact of law
Hears appeals from criminal cases by right on questions of law/mixed fact law (only where law not settled)
Leave to appeal must be granted by Supreme Court
Matter must be in the public interest (not merely private)

Question 31

Define the Vavilov Review Standard.

Answer 31

requiring the reviewing court to examine whether both the outcome and the reasoning justifying the outcome is reasonable. An otherwise reasonable outcome cannot stand if it was reached on an improper basis.

Question 32

Define a mixed law fact.

Answer 32

Mixed law fact: arriving at a fact through an erroneous interpretation of law

Question 33

Ministerial Review of Miscarriages of Justice

Answer 33

determines if a miscarriage of justice has occurred; if the Court of Appeal refuses to overturn a decision and the person maintains their innocence (minister of justice has final say) (typically new evidence is needed to overturn the decision

Question 34

Define Indeterminate Sentences

Answer 34

never get out of prison because they are being held indeterminately as dangerous offenders

Question 35

Define Max Weber’s theories of early industrialization and and theocratic governments.

Answer 35

Max Weber compares different nation states and shows that the reason that early industrial nations were so successful was because of their legal systems: their legal systems eliminated religious ideas and conflict of interest
-Societies with theocratic principles failed to flourish: no confidence in the legal system under theocracy, absolute monarchies: confidence in neutrality gives rise to productivity and risk-taking
the reason for this

Question 36

Four styles of social control.

Answer 36

-Compensatory: monetary compensation, etc.
-Conciliatory: mediating between two parties when one is not right or wrong
-Therapeutic: mental health diagnosis; rehabilitation
-Penal: sentence served out (fines, conditions, incarceration)

Question 37

Define the weaknesses and strengths of Canada’s court system.

Answer 37

Strengths
-Openness/accessibility
-Transparent decision making
-Accountability
-Use of alternative dispute resolution
Weaknesses: delay and fallibility
-Underfunded and costly
-Twisted, messy processes and hierarchy of courts