Canadian Criminal Justice

System
Lesson Plan for CRM100, Criminal Justice

Week 7 ; Chapter 7
Prepared by meetu

The Structure and Operations of The Criminal

Courts

OVERVIEW & PURPOSE

● Discuss the structure and operation of the criminal courts.

● Describe specialized problem-solving courts and their effectiveness in addressing

the needs of vulnerable accused persons.

● Discuss the operation and objectives of Indigenous courts.

● Describe the challenges that surround providing judicial services in remote areas
of the country by the circuit courts.

● Identify and describe the professionals who comprise the courtroom workgroup.

● Describe the process by which judges are appointed in Canada and discuss the
issues surrounding this process.

● Identify and discuss the issues surrounding judicial ethics and accountability.

● Discuss the issue of case delay and the impact of the Supreme Court of Canada
decision in R. v.Jordan

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Criminal Courts in Canada

With the exception of Nunavut, there are four levels of courts that deal with Criminal
cases.

1. Provincial/Territorial courts
2. Provincial/Territorial superior courts
3. Provincial appellate courts
4. The Supreme Court Of Canada (SCC)

The courts are responsible for determining

● Guilt or innocence of accused persons,

● An appropriate sentence for those who are convicted, and
● That the rights of accused persons are protected.

The principle of judicial independence is viewed as being essential to the proper

functioning of the courts.

Provincial and Territorial Specialized Problem-Solving Court

Problem-solving Courts: Specialized courts that are designed to divert offenders with
special needs from the criminal justice system

● The three defining attributes of problem-solving courts are

1. A focus on addressing the underlying problems of offenders, victims, and
communities;
2. Interagency and interdisciplinary collaboration; and
3. Accountability to the community.

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The intent of these problem-solving courts is to shift from an adversarial or legalistic
approach to one centered on treatment and rehabilitation.

● Focus is on addressing the underlying issues that contributed to criminal

offending
● Developing an intervention plan to address the behaviour as well as the
circumstances that contributed to it
● Also holding offenders responsible for their behaviour

Specialized problem-solving courts incorporate the concept of therapeutic justice.

- an approach in problem-solving courts that uses the law and the court’s authority
as change agents to promote the health and well-being of offenders, while
ensuring that their legal rights are protected and that justice is done

Offender participation in problem-solving courts is voluntary.

Indigenous Courts

Section 718.2(e) of the Criminal Code (R.S.C. 1985, c. C-46) requires judges to consider
sentencing options other than incarceration, particularly for Indigenous offenders.

● The principle that the judiciary should make efforts to explore alternative
sentencing options—including the use of restorative justice—was affirmed by the
Supreme Court of Canada in R. v. Gladue ([1999] 1 SCR 688) and established

● Gladue Courts: courts specifically for Indigenous people, and

● Gladue Reports: historical personal impact statements

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 ● First Nations communities are becoming increasingly involved in
developing community-based courts that are centred on traditional
Indigenous spirituality and cultural practices.

○ Given impetus by the Calls to Action of the Truth and Reconciliation

Commission to eliminate the overrepresentation of Indigenous
peoples in custody using alternative justice mechanisms

● The Tsuu T’ina Nation Peacemaker Court is located on the Tsuu Nation
near Calgary.

○ Centred on peacemaking circles

○ Has an Indigenous judge, Crown prosecutor, and court clerks

Indigenous People’s Court (Thunder Bay, Ontario)

● Uses a restorative justice approach to sentencing

● Draws upon Indigenous culture and traditions

● Helps persons who self-identify as First Nation, Indigenous, Inuit, or Métis and
who are in conflict with the law

● Elders play key role

To qualify to appear in the court, persons must plead guilty and accept responsibility for
their offences.

Circuit Courts

● In many northern and remote areas, judicial services are often provided via
circuit courts.

● Circuit court parties, composed of a judge, a court clerk, a defence lawyer, a

Crown counsel, and perhaps a translator, travel to communities (generally by
plane) to hold court. Many communities are served regularly.

● Most of the communities are too small to have courthouses, and so the court is
held in schools, community centres, or other buildings that are available.

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 Superior and Supreme Courts in Canada

Provincial/Territorial Superior Courts

The superior courts are the highest level of courts in a province/territory.

● Administered by provincial and territorial governments

● Superior court judges are appointed and paid by the federal government
● About 10% of criminal cases are heard in the superior courts

Superior courts generally have two levels.

● Trial: Hears cases involving serious criminal offences

● Appeal: Hears criminal and civil appeals

The Supreme Court of Canada

The Supreme Court was established under the Constitution Act (1867). The governor in
council appoints the nine judges of the Supreme Court.

● Selected from the major regions of the country; however, three of the judges on
the court must be from Quebec
● Decisions of the Supreme Court are final and cannot be appealed.

The Supreme Court receives hundreds of applications for cases to be considered, but
grants only about 10 percent.

● Cases are heard by an odd number of judges—five, seven, or nine—to avoid ties.

● Cases often involve interpretations of the Charter of Rights and Freedoms.

● Many cases are a leave to appeal the decision of a lower court.

● A government asks the Supreme Court for a legal opinion on an important legal
question, a process that is referred to as a reference Or reference case

○ R. v. Morgentaler ([1988] 1 SCR 30) the SCC held that the procedures for
obtaining a therapeutic abortion as defined in s. 287 of the Criminal Code
infringed on the right to security of the person.

○ R. v. Zundel ([1992] 2 SCR 731) the SCC held that the offence of spreading

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 false news (s. 181) and even hate literature is constitutionally invalid
because it infringes the fundamental freedoms of thought, belief, opinion,
and expression.

○ R. v. Stinchcombe ([1991] 3 SCR 326) the SCC held that the Crown must
surrender all relevant evidence gathered by police to permit a defendant to
make a full defence to the charges.

○ Canada (Attorney General) v. PHS Community Services Society (2011

SCC 44) the SCC held that efforts of the federal government to close Insite,
the supervised injection site for drug users in Vancouver, violated the
rights of life and security of the person under s. 7 of the Charter of Rights
and Freedoms.

Professionals in Canadian Courts

The Courtroom Workgroup

Courtroom Workgroup: The criminal justice professionals, including the judge, Crown
counsel, and defence lawyer, present in the criminal court courtroom

● Other professionals may appear on occasion (e.g., expert witnesses).

● The advent of problem-solving courts has resulted in an expansion of the

courtroom workgroup to include representatives from agencies and community
organizations; various restorative justice approaches include members of the
community as well.

The judge interprets the law, assesses whether evidence can be admitted, rules on
motions made by the Crown counsel and defence lawyer, and determines the
truthfulness of evidence.

● In most cases, this also includes making a decision on the guilt or innocence of the
accused and passing sentence.

● A key role of the judge is serving as a “gatekeeper” of evidence presented during

the trial, including expert testimony.

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Justices of the Peace (JPs) play a variety of roles depending upon the jurisdiction.

● issuing search warrants and conducting bail hearings

● presiding over hearings involving provincial/territory regulatory offences

● may also preside in small claims courts, work in court registries, and handle court
scheduling

The primary responsibility of the Defence Lawyer is to ensure that the rights of the
accused person are protected throughout the criminal justice process.

● Often actively involved in attempting to negotiate a plea for their client outside of
the formal court process

● Presents evidence and questions witnesses, experts, and others to build a case of
innocence for the accused

● Cross-examines witnesses for the prosecution and challenging the evidence that is
presented by the Crown

Duty counsel is often provided as part of a provincial or territorial legal aid plan to
ensure that persons who cannot afford to hire a private lawyer have representation.

● First point of contact for a person who has been detained or arrested

● May also represent an accused in court

Crown Counsel are lawyers who represent the Crown (or government) in court and who
are responsible for prosecuting criminal cases.

● Provincially appointed Crown attorneys prosecuting Criminal Code offences

● Federally appointed Crown attorneys prosecuting persons charged with violating

other federal statutes, such as the Controlled Drugs and Substances Act

● Carry out their tasks on behalf of the community

● Responsible for laying charges against the accused in some provinces

Other courtroom personnel play important roles in the processing and disposition of
cases.

● Court administrators—also known as court registrars or court clerks—perform a

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 variety of administrative tasks.

● Sheriffs support the court by assisting in jury management, escorting accused and
convicted persons, and providing security in the courtroom.

Judges

● Judges at the provincial court level are appointed by provincial governments.

● Judges of the superior courts are appointed by the federal government.

○ regional committees composed largely of members of the legal profession

and community members appointed by Ottawa, create lists of candidates
that are forwarded to the Department of Justice and debated in cabinet

● Appointments are for life so that, once on the bench, judges need not consider the
career implications when making controversial decisions.

Judicial Ethics and Accountability

Provincial, territorial, and federal court judges are guided by ethical principles that are
set out in various provincial and territorial documents and, for federally appointed
judges, by the Canadian Judicial Council.

● centre on integrity in personal and professional conduct

● highlight impartiality and objectivity

● a duty to follow the law

● the importance of appropriate personal conduct

Judicial independence: The notion that judges are not subject to pressure and influence
and are free to make impartial decisions based solely on fact and law

Case Delay in the Courts

The length of time to complete adult criminal court cases varies across the country, and
cases involving more serious criminal offences or multiple charges take longer to
complete.

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 ● Case backlog and case delay are due to a number of factors, including
○ A lack of judicial resources,
○ Ineffective use of resources,
○ Too few judges,
○ Complexity of criminal cases,
○ Inadequate case flow management, and
○ Efforts of defence counsel to lengthen the period of time that accused
persons are confined prior to trial on remand

The ruling in the SCC case R. v. Jordan (2016 SCC 27) redefined the constitutional right to
a trial within a reasonable time.

● Prior to Jordan, judges could determine that case delay violated the
constitutionally guaranteed right “to be tried within a reasonable time” under
s.11(b) of the Charter and order a stay of proceedings or dismissal of the charges

● Jordan set presumptive timelines for the disposition of cases in the courts from
the time the person is charged to the actual or anticipated end of trial.

○ 18 months for cases tried in provincial court

○ 30 months for cases in the superior court (or cases tried in the provincial
court after a preliminary inquiry)

Summary

1. The four levels of courts that deal with criminal cases were discussed, as well as
the role and activities of judges, defence counsel, and Crown counsel.

2. The issues surrounding the appointment of judges were examined, including the
role of politics in the selection process.

3. Problem-solving courts have emerged as an alternative to the traditional

adversarial model of justice for vulnerable persons accused of criminal offences.

4. Unique challenges surround the delivery of court services in remote and northern
communities.

5. There has been an increasing focus on the judiciary, including the lack of diversity
among judges and judicial accountability.

6. The SCC decision in R. v. Jordan is having a significant impact on the processing of

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 cases through the criminal justice system

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