CLJS 116 Cooperative Federation & Court

Hierarchy
CANADA AS A COOPERATIVE
FEDERATION
It’s primarily the responsibility of the Federal government to issue Criminal
Legislation, while the procedural administration of justice is the responsibility of the
provinces.

The pieces of legislature that every province adheres to, includes the Criminal Code
of Canada, Youth Criminal Justice Act and the Constitution Act.

When there is a wrong against society, it is Provincial Courts which must determine
guilt or innocence as well what debt must be paid to society if there is a finding of
guilt.
PUBLIC LAW IN PRACTICE
Once a Criminal Charge is processed, it becomes the mission of the state. As such it
is no longer a responsibility or requirement of the complainant/victim.

Consider that at that time, a criminal offence committed against a someone is now
interpreted as an offence committed against ‘the public’.

Consequently, there is a structured response to how the charge is handled, where the
victim or complainant has little to no power over.
 CRIMINAL LAW VS CIVIL
LAW;
How an offence against a private person would fall under public law?

What about overlap?

CASE STUDY: TODD BERTUZZI
SANCTIONED VIOLENCE
What is it?

How does it come to be?

Why do we condone it?

 TODD BERTUZZI/STEVE
MOORE INCIDENT
In February 16, 2004, during a game between Vancouver and Colorado, Avalanche center Steve Moore injured Canucks team
captain Markus Naslund by hitting him hard in the head while Näslund was reaching for the puck ahead of him. Näslund, the
league's leading scorer at the time, suffered a minor concussion and a bone chip in his elbow, knocking him out of the lineup for
three games. A penalty was not called on that play, ruling the hit legal.
Canucks head coach Marc Crawford publicly criticized the no-infraction call, claiming that the officials needed to show "respect" for
the league's leading scorer. Vancouver president and general manager Brian Burke, the league's former chief disciplinarian,
described the play as "a marginal player going after a superstar with a headhunting hit. Several Canucks players were also vocal
against Moore in the media. In particular, forward Brad May issued a "bounty" on Moore, while Bertuzzi called him a "piece of shit ”.
Naslund missed three games as a result of the hit.
In a rematch several weeks later, the Canucks were more active in physically pursuing Moore. In one of four fights in the first
period, Canucks forward Matt Cooke fought Moore six minutes into the game. With Colorado leading 8–2 midway through the third
period this happens:
https://www.youtube.com/watch?v=GEjdwlT6g7o

After lying on the ice for approximately 10 minutes, Moore was removed from the playing surface on a stretcher. With eight minutes
remaining in the third period and the outcome effectively decided, Avalanche general manager reportedly asked referees to end the
game. The contest was nonetheless played out with the Avalanche winning 9–2. Moore was taken to Vancouver General Hospital
and later transferred to a Denver hospital where he was treated for three fractured vertebrae in his neck, a grade-three concussion,
vertebral ligament damage, stretching of the brachial plexus nerves, and facial lacerations. He was also suffering from amnesia.
 CRIMINAL OFFENCE
Legal action was taken against Bertuzzi in the provincial courts of British Columbia. After a
four-month investigation, the criminal justice branch of the announced on June 24, 2004, he
was being formally charged with assault causing bodily harm contrary to Section 267(A) of
the Criminal Code of Canada. With the charge, Bertuzzi faced up to one-and-a-half years in
prison.
Several months later Bertuzzi pleaded guilty to the assault charge after arranging a plea
bargain with prosecutors. He was given a conditional discharge requiring 80 hours
of community service and one year’s probation that additionally prohibited him from playing
in any hockey game Moore was competing in.
Under Canadian law, Bertuzzi's successful completion of his probationary period precluded
him from having a criminal record.
Moore expressed disappointment regarding Bertuzzi's discharge and was upset that he was
unable to attend the court date, having to issue a written victim statement instead.
*Based on sentencing, Bertuzzi is likely fortunate this offence occurred in Canada as
opposed to the United States of America.
 CIVIL ACTION DETAILS

In February 16, 2006, the day of Bertuzzi's first Olympic game with Team Canada, Moore filed a lawsuit in the against Bertuzzi, the Canucks, and
Orca Bay, seeking $15 million Canadian dollars in pecuniary damages for loss of income, $1 million Canadian Dollars for aggravated damages,
and $2 million dollars for punitive damages.
Moore's parents, who were watching their son on television when the attack happened, also sued, seeking $1.5 million Canadian dollars for
"negligent infliction of nervous shock and mental distress".
In December 2006, NHL commissioners facilitated a meeting between Moore's representatives and the defendants in hopes of agreeing on an out-
of-court settlement.
In December 2007, Moore further amended the lawsuit, seeking an increased $35 million Canadian dollars for loss of income and $3.5 million
Canadian dollars for the suffering of his parents.
That same month, the Ontario Superior Court released statements pertaining to the lawsuit in which Bertuzzi testified that Crawford was to blame
for his actions against Moore, Bertuzzi claimed that Crawford told players during the second intermission of the March 8 game that Moore needed
to "pay the price" for his earlier hit against Naslund. Lawyer statements further claimed that Crawford had pointed to Moore's name and number on
a board in the Canucks' dressing room during the intermission, calling for the players to take action.
In lieu of the allegations against Crawford, Bertuzzi filed a third party complaint against his former coach on March 3, 2008. He alleged that he was
contractually obliged to obey Crawford and that the coach should be held personally liable for any legal damages Moore might be awarded in
court. In response, Crawford formally stated that Bertuzzi acted in "direct disobedience" to orders from the bench to get off the ice before attacking
Moore. The suit was settled between the two in July 2011.
Five years after filing the Ontario suit, Moore’s Lawyer told reporters in March 2011 that in order to fully gauge the extent of Moore's injury, the case
had not yet proceeded. At the time, he was not yet employed and still experiencing headaches. On July 2, 2014, during Steve Moore's first
appearance at his civil trial, he further amended the lawsuit, seeking $68 million in Canadian dollars in damages, up from CAD$38 million. On
August 19, 2014, it was announced that an out-of-court settlement had been reached in Steve Moore's lawsuit.
COURT HIERARCHY:
JURISDICTION OVER CRIMINAL MATTERS

Justice of the Peace

Receives information's
Compel people to appear in court by way of summons or warrant
 Hold bail hearings or preliminary hearings, and in some jurisdictions they
may try summary conviction offences
 COURT HIERARCHY:
JURISDICTION OVER CRIMINAL MATTERS
Provincial Court
The most common court to address Criminal Matters
Most likely to involve court officials apart from lawyers, such that as police officers or Probation Officers.
Can perform all the duties I listed for Justice of the Peace, so they may receive information’s, they compel people to appear in
court by way of summons or warrant, they can hold bail hearings or preliminary hearings, and in some jurisdictions they may
try summary conviction offences.
 Additionally, they will hold trial for all but the most serious of indictable offences.
Provincial Court Judges are appointed by the provincial government, as opposed to the federal government.

Also Provincial Courts are able to have a wide range of specializations:

Criminal Court (Adult)
Youth Court, to which it is worth recognizing all youth matters are held in a different court from adult matters.
Additionally, Provincial Criminal Courts sometimes even have further specializations, such as drug courts or traffic courts.
 COURT HIERARCHY:
JURISDICTION OVER CRIMINAL MATTERS AND
APPEALS

Superior Court (Provincial Supreme Court) [Court of Queen’s Bench] - highest level trial court.

The most serious indictable offences are tried here, these can be jury or non-jury trials.

The overlap the Superior Court has with Provincial Court is that it will hear some appeals for
summary conviction offences, where obviously the summary conviction must have come from a
Provincial Court.

Superior Court Judges are appointed by the federal government.

 COURT HIERARCHY:
JURISDICTION OVER APPEALS

Courts of Appeal

Appeal Courts would outrank Superior Provincial Courts

The way in which courts of appeal maintain that authority over the lesser
courts is over course because they have the authority to overturn those
decisions of the lesser courts.

A court of lesser or equal judicial authority cannot overturn the decision of an

equal or higher authority court.
 COURT HIERARCHY:
JURISDICTION OVER APPEALS

Supreme Court of Canada

Highest court authority in the country, but it is worth recognizing this is a court
that will only hear trials that have been tried and retried through the lesser courts
already.

That is to say the Supreme Court of Canada is the only court that could
overturn a decision of an appeal court.

Any decision made by the Supreme Court of Canada would be absolutely final
within the courts system, as there is no higher court to overturn their decision.
COURT SUPERIORITY
Court Type Hears

Supreme Court of Canada Appeal Summary and Indictable Appeals which

have already been heard

Court of Appeals Appeal Indictable Appeals

Superior Provincial Court Trial/Appeal Indictable Offences

/Summary Appeals

Provincial Court Trial Summary Offences

/Indictable Offences

Justice of the Peace Trial Summary Offences

CLASSIFICATION OF OFFENCES
(RECAP)

The Criminal Code of Canada actually has 3 categories of offences:

1. Summary,
2. Indictable
3. and Hybrid.
 SUMMARY OFFENCES

Accused must be charged with a summary conviction within 12 months after the act happened
(Since adoption of bill C-75). Limitation periods are set out in the Criminal Code.
The police can arrest under summary conviction without an arrest warrant if found committing a
summary offence notwithstanding s. 495(2)(c) of the Criminal Code.
If the police do not find committing a summary offence, an arrest warrant is required.
Appeals of summary conviction offences go first to the highest trial court within the jurisdiction
(e.g., provincial superior court in Alberta is the Court of Queen’s Bench).
After Provincial Superior Court a further appeal would go to the Supreme Court of Canada, but as a
practical matter very few summary convictions are ever heard by the Supreme Court of Canada.
Accused convicted under summary conviction are eligible for a pardon after 5 years provided the
accused is not convicted of any further offences during that period.
Always tried in a provincial court
 INDICTABLE OFFENCES
There is no time limit to when charges can be laid, e.g. an accused can be charged 20 years
after an act has occurred. The exception to this point is treason, which has a 3-year limitation
period.
Accused has to submit fingerprints when required to appear to answer to an indictable
offence.
 As well a person committing an indictable offence may be arrested without warrant as per
S. 494 of the Criminal Code of Canada.
Appeals always go to the Courts of Appeal first, and then on to the Supreme Court of
Canada.
Accused convicted under an indictable offence can apply for a pardon after 10 years.
 HYBRID OFFENCES
Hybrid offences may be tried as either summary or indictable. And honestly that makes up a
significant portion of the most commonly found offences.
The decision on whether or not a hybrid offence will be tried as summary or indictable is made by
the Crown Prosecutor, at the time of arraignment (the time in court when the accused is first read his
charges by the presiding judge, and provided the initial opportunity to enter a guilty or not guilty plea.)
The Crown prosecutor bases their decision as to summary or indictable on an accused’s criminal
record as well as the alleged circumstances of the offence.
Now an interesting note here about the timing as to whether or not the Crown wants to proceed on a
hybrid as being either indictable or summary, as it implies the plea may also factor into that decision.