MODULE ONE – LESSON FOUR
Canadian Law 40S – Rick Schroeder – Northlands Parkway Collegiate This section introduces the Canadian court system, alternatives to court, and expectations of courtroom participants. The section also requires you to gather information about career opportunities in the field of law.
Completing this section will help you to:
MODULE ONE – • demonstrate an understanding of the structure and jurisdiction of the 1.4 – INTRODUCTION Canadian court system – LAW- MAKING, LAWMAKERS, LEGAL • describe the processes involved in resolving disputes INSTITUTIONS, & CAREERS IN LAW • demonstrate an understanding of the duties and expectations of courtroom participants
• demonstrate an understanding of career opportunities in the field of law
2 MODULE ONE – 1.4.1 – LEVELS OF GOVERNMENT & JURISDICTIONS
• Jurisdiction is an area of authority, power, or responsibility. A constitution is a body of laws which sets out who has the authority to make law. Canada's constitution sets out the jurisdiction of the federal, provincial and municipal governments. At this time, there is discussion between Aboriginal peoples and the federal governments regarding self-determination for Aboriginal peoples. Among other things, this would give Aboriginal peoples more control over their justice systems. This lesson examines jurisdictions of these levels of government. • Completing this lesson will help you to: • • demonstrate an understanding of the structure and jurisdiction of the federal, First Nations, provincial, municipal governments.
3 MODULE ONE – 1.4.1 – A TRADITION OF PROVINCIAL DIFFERENCES
• When the provinces joined together to create the country of Canada, one part of the agreement was that each province could keep control over some legal matters. For example, laws concerning education and driving are provincial laws and therefore vary from province to province. Laws concerning violent crime, however, are federal matters and are the same all across Canada. • In fact, most laws end up being quite similar in all provinces. The exception is Quebec which actually has an entirely different legal system for handling provincial matters.
4 MODULE ONE – 1.4.1 – A TRADITION OF PROVINCIAL DIFFERENCES
Aboriginal justice • Aboriginal Peoples are attempting to displace the mainstream legal system from their communities and replace it with culturally relevant systems of justice. The Aboriginal Justice Implementation Commission (AJIC) made recommendations for the creation of parallel justice systems within Aboriginal communities. Some First Nations have implemented their own systems of justice. These vary within between First Nations. When you study lesson 10, you will learn more about the AJIC.
5 MODULE ONE – 1.4.2 – ADMINISTRATIVE LAWMAKERS
• Administrative agencies have been set up to assist governments to carry out or "administer" particular laws. The government sets out the specific powers and duties that an official or agency will have. Completing this lesson will help you to: • demonstrate an understanding of the functions that administrative agencies can serve in the justice system
6 MODULE ONE – 1.4.2 – LEGISLATION IN ACTION
• Administrative agencies are often set up to work out the details of how legislation will be put into action. • Read the article, "From corn flakes to calls home, it's a world of regulations," below. • Earlier, you thought and wrote about a world without law. • The purpose of this article is to get you to reflect on how much we are affected by regulations created by administrative lawmakers.
7 MODULE ONE – 1.4.2 – LEGISLATION IN ACTION
From Corn flakes to call home, it’s a world of regulations by Margot Gibb-Clark
You get up in the morning and listen to the radio. Content is controlled by the Canadian Radio-television and Telecommunications Commission. At breakfast, you eat corn flakes and milk. Before reaching the table they have been subject to marketing boards and health regulations, quotas, and control of what pesticides could be used as the cereal grew. Because of the Packaging and Labeling Act, the box has a bilingual label. Then you go to work on the bus regulated by the local transit commission. If you are a nurse or an engineer, your profession has certain standards of entry and behavior, controlled by a professional body.
8 MODULE ONE – 1.4.2 – LEGISLATION IN ACTION
At work, one department is considering unionizing. There are labor-relations standards controlling the way it can be done. Recruiting cannot proceed on company time. On the other hand, the boss is limited in his attempts to dissuade employees from joining up. He can’t, for example, hold out promises of better working conditions to those who don’t sign a union card.
Lunchtime. you go out with co-workers to a local restaurant where health conditions are supervised, likely by the city health department.
And you discuss the big, unfair tax bill you think you got. Well, all is not lost – yet. You can appeal to a tax appeal board …
9 MODULE ONE – 1.4.2 – LEGISLATION IN ACTION
Back home, your lease is up for renewal, and your landlord wants to take over the apartment. Conditions under which he can do so are likely to be controlled by a tenancy commission.
You make a long distance telephone call to a friend. Bell Canada may have to give you a break on rates because the CRTC told it to. However, Bell is appealing. You turn out the lights – electricity price is regulated – and go to sleep.
10 MODULE ONE – 1.4.3 – CANADIAN COURT SYSTEM
Courts interpret and make law, but have other functions, which will be discussed in this lesson.
Completing this lesson will help you to:
• demonstrate an understanding of the structure and jurisdiction of the Canadian court system
11 MODULE ONE – 1.4.3 – STRUCTURE & JURISDICTION
Courts decide how a law should be applied in a specific case. Laws are created by:
• statutes voted on by government • regulations created by administrative agencies • case law developed by the courts
In this lesson we'll look more closely at how the court system works. Judicial system is another way of saying court system.
12 MODULE ONE – 1.4.3 – STRUCTURE & JURISDICTION
High and Low Courts
Canada's courts are organized in levels. Higher courts hear more serious cases and have more power to influence the development of case law.
Each province has a court system that has three or four levels, and the highest level court of each province answers to the Supreme Court of Canada.
There is also a special group of courts to handle federal matters.
13 MODULE ONE – 1.4.3 – STRUCTURE & JURISDICTION
Here's how Manitoba fits into this system...
14 MODULE ONE – 1.4.3 – STRUCTURE & JURISDICTION
The Court System
Trials and Appeals
Two approaches to resolving legal disputes are the adversarial and non-adversarial. Many traditional Aboriginal cultures follow a non-adversarial system. Since the ultimate goal is not to punish the offender, but to heal and restore victim, the family, community and the offender, the process is quite different than that found in the mainstream Canadian legal system. Another difference is how the systems are organized. While the Canadian system is comprised of procedures with distinct parts, some Aboriginal systems follow a more holistic approach. Mainstream Canadian law, whether criminal or civil, follows an adversarial approach. Under this approach, representatives from both sides of the issue present their case. A judge, (or judge and jury) decide who is right.
15 MODULE ONE – 1.4.3 – STRUCTURE & JURISDICTION
Courts handle two kinds of legal problems:
• trials • appeals
In a trial, representatives from both sides of the issue get to present their case. A judge (or sometimes a judge and jury) will decide who is right. This method of resolving legal disputes is called an adversarial system. In a criminal case, one adversary is the Crown, the other is the accused. In a civil case, both adversaries are individuals.
In most civil cases, the individual who is suing is known as the plaintiff and the individual being sued is the defendant.
16 MODULE ONE – 1.4.3 – STRUCTURE & JURISDICTION
If a person feels that she or he has suffered as a result of poor judgment, either through dishonesty or error, she or he can request an appeal to a higher court. If an appeal is allowed, a judge or group of judges reviews the lower court's decision. Not all appeals will be heard, however. There must be some reasonable grounds to believe that there was an error in judgment or procedure.
17 MODULE ONE – 1.4.3 – THE COMMON LAW LADDER
You might find it helps to imagine that the levels of courts create a ladder, with each level a step up the ladder. Here's how a criminal case might go up the ladder.
18 The Court Ladder
There are two important things to know about this ladder and the common law system: MODULE ONE – 1.4.3 A decision made by a court at one level is binding (must be considered) by all other courts at that – THE COURT LADDER level and below.
For example, a decision made by a provincial- level court in Alberta could only affect a decision made by another provincial-level court (in British Columbia, for example).
On the other hand, a decision made by the Supreme Court of Canada would affect every court in the country.
The decision of a court can be overturned (changed) only by an appeal to a court that is higher up the ladder.
19 Jurisdiction
The authority to make laws and legal decisions in a particular area is called jurisdiction. MODULE ONE – 1.4.3 We've already talked about jurisdiction when we – COURT JURISDICTION discussed the different areas of laws that municipal, provincial, and federal governments control.
When government is acting within its own jurisdiction, it is known as intra vires (within the scope of power).
When government is acting outside of its jurisdiction, it is known as ultra vires (beyond the scope of power).
The concept of government being able to do anything as long as it is doing it within it's own jurisdiction is known as parliamentary supremacy.
Different courts also have jurisdiction in certain areas.
20 MODULE ONE – 1.4.3 – COURT JURISDICTION
I. Provincial Court – Provincial courts are found throughout the province.
Provincial court (Family Division)
Outside Winnipeg, the division hears disputes involving separation of spouses, custody of children, maintenance payments between spouses, child protection cases that involve child care agencies
• In Winnipeg, the Queen's Bench Family Division hears the cases noted above • Appeals usually go directly to the Court of Appeal • Family Division hears young offenders' cases (Youth court) • Youth court appeals go to the court of appeal
21 MODULE ONE – 1.4.3 – COURT JURISDICTION
Provincial Court (Criminal Division)
This division handles over 90% of the province's criminal cases handles summary conviction cases (less serious cases), and many indictable cases
Appeals of summary conviction matters go to the Court of Queen's Bench further appeal goes to the Court of Appeal, but on a question of law only
22 MODULE ONE – 1.4.3 – COURT JURISDICTION
II. Court of Queen's Bench
Sits mainly in Winnipeg but also sits in other larger provincial centres Has both civil and criminal jurisdiction Has some jurisdiction as an appeal court from Provincial Court Has different divisions in Winnipeg:
Court of Queen's Bench Court of Queen's Bench (Family Division)
Has subdivisions called Queen's Bench Small Claims and Queen's Bench Surrogate
23 MODULE ONE – 1.4.3 – COURT JURISDICTION
24 MODULE ONE – 1.4.3 – COURT JURISDICTION
Types of cases heard by the Court of Queen's Bench
1. Court of Queen's Bench - civil jurisdiction
• Hears contract and tort cases and other civil matters
• Is a trial court, usually with a judge sitting alone
• Juries are possible for defamation, wrongful imprisonment cases
• Hears cases when money at issue is over $5000.00 (March 1989)
• Hears divorce cases in areas of Manitoba that have no Queen's Bench Family Division
• Decisions can be appealed to the Court of Appeal
25 MODULE ONE – 1.4.3 – COURT JURISDICTION
Types of cases heard by the Court of Queen's Bench
2. Court of Queen's Bench -- criminal jurisdiction
• Hears trials by judge or trials by judge and jury (Murder, treason, piracy cases must be tried by a judge and jury.)
• Has some appeal jurisdiction relating to certain cases from Provincial Court or from Small Claims Court
• Decisions can be appealed to the Court of Appeal
26 MODULE ONE – 1.4.3 – COURT JURISDICTION
Types of cases heard by the Court of Queen's Bench
3. Court of Queen's Bench -- Family Division (Winnipeg and Eastern Judicial District)
• Hears all divorce cases
• Hears any matters dealing with the family - property, financial support, custody and access to children, children protection cases involving child care agencies
• Decisions can be appealed to the Court of Appeal
27 MODULE ONE – 1.4.3 – COURT JURISDICTION
Types of cases heard by the Court of Queen's Bench
4. Court of Queen's Bench -- Surrogate Court
• Civil court, dealing primarily with wills and the estates of dead people
• Deals with granting probate of a will (proof that a will is genuine) or with the administration of estates left by people with no will
• Decisions of this court can be appealed to the Court of Appeal
28 MODULE ONE – 1.4.3 – COURT JURISDICTION
Types of cases heard by the Court of Queen's Bench
5. Court of Queen's Bench -- Small Claims
• Established to give people a quick, inexpensive means of resolving disputes • Is less formal and lawyers are seldom necessary • Cases are heard by a Clerk of the Queen's Bench • Appeals of the clerk's decision can be taken to a judge of the Queen's Bench • Decision of the Queen's Bench judge is final unless a question of law is involved in which case an appeal lies to the Court of Appeal • Maximum amount of money that can be at issue in this court is $5000.00 (March 1989); higher claims are heard in the Court of Queen's Bench
29 MODULE ONE – 1.4.3 – COURT JURISDICTION
Types of cases heard by the Court of Queen's Bench
All of these branches of the Queen's Bench have trial jurisdiction which means that evidence is heard by the judge. Judges of these courts are appointed by the federal government in Ottawa, and they can hear all types of cases. In the Court of Queen's Bench Family Division, however, there are special family judges appointed who hear the majority of family cases and therefore have developed special expertise and sensitivity to family matters. As you can understand, family matters that go to court may require a special kind of knowledge and delicate handling, as they are often very emotional.
30 MODULE ONE – 1.4.3 – COURT JURISDICTION
III. The Manitoba Court of Appeal
• Sits only in Winnipeg • Is the highest court of the province and, with few exceptions, hears only appeals from the lower courts • New evidence may not usually be brought to this court; it reviews what was said and done in the court below it • In order to appeal to this court it is often necessary to get permission of the court (called getting "leave to appeal") • Seven judges sit on this court and cases are usually heard by three of them • Judgment is based on the decision of the majority of them (i.e., two out of three)
31 MODULE ONE – 1.4.3 – COURT JURISDICTION
NATIONAL COURTS (Source of reference: Jennings & Zuber, 4th ed.)
• Deals with matters of taxation, immigration, disputes between the federal and provincial governments, cases involving trademarks and copyrights, or claims against the government (for example, a claim by someone injured by an army truck) • Has two divisions, a Trial Division and an Appeal Division • Appeal Division hears appeals from the Trial Division in cases such as those mentioned above, as well as appeals from federal boards or commissions (e.g., the Immigration Appeal Board) • Appeals from the Appeal Division can be to the Supreme Court of Canada only, when the question on appeal is of public importance
32 MODULE ONE – 1.4.3 – COURT JURISDICTION
II. The Supreme Court of Canada • Highest and last court in Canada • Hears appeals from the courts of appeal of the various provinces and from the Federal Court • Has jurisdiction to hear cases referred directly to it by the federal government, and this usually means requests to decide constitutional questions • Allows appeals of civil cases only with leave to appeal, and leave can be granted either by the court of appeal in the province or by the Supreme Court itself • Allows appeals of criminal cases with leave, unless an appeal is from a provincial court of appeal which set aside an acquittal granted by the trial court, or where someone was charged with an indictable offence (see Lesson 6) and the Court of Appeal in the province was not unanimous about a question of law • Judges are appointed by the federal government. The court consists of a Chief Justice and 8 judges, at least 3 of whom must be from Quebec.
33 MODULE ONE – 1.4.3 – WHICH COURT? – EXERCISE
Answer the following questions…
1. What claims are handled in small claims court? 2. If someone owed you $9000.00 and did not pay in the stated time, what court would you go to in order to get the money back? 3. In what court would an 18 year old accused of murder be tried? A sixteen year old accused of robbery? 4. The Prime Minister of Canada is assassinated. Why would the trial not be conducted in the Supreme Court of Canada? Where would the trial be held? 5. Do you think that having specialized courts (e.g., Queens Bench Family Division) is a better idea than having general courts? List two advantages of specialized courts and two advantages of generalized courts.
34 MODULE ONE – 1.4.3 – WHICH COURT? – ANSWERS
1. Small Claims Courts are courts for claims less than $7000.00. They are part of the Court of Queen's Bench, but less formal than the Court of Queens Bench itself.
2. You would go to the Court of Queens Bench as it has both a criminal and civil jurisdiction. The claim is too high for Small Claims Court.
3. An 18 year old accused of murder would be tried in the Court of Queens Bench, with a jury. A 16 year old accused of robbery would be tried in Youth Court, a division of Provincial Court Family Division.
4. The Supreme Court of Canada hears only appeals from the lower courts, and constitutional referrals. The trial for an individual accused of killing the Prime Minister of Canada would be conducted in the provincial Court of Queens Bench, or Superior Court.
35 MODULE ONE – 1.4.3 – WHICH COURT? – ANSWERS
5. Some possible advantages of specialized courts are: the law in different areas would be very clear and easy to identify, special expertise for particular types of cases would be applied, and perhaps the entire process of a case could be speeded up, as everyone in court would know the law and rules involved in a particular type of case.
Some possible advantages of generalized courts are: there is the ability to go to any judge on any kind of question, there is one set of rules which makes it more difficult to complicate the law, and occasionally one area of law overlaps with another, so a generalized court would cover a very broad knowledge of the law, rather than only one area.
36 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS
Students are introduced to courtroom participants and the duties and expectations of each. This lesson also asks that students research career opportunities in the field of law.
Completing this lesson will help you to:
• demonstrate an understanding of the duties and expectations of witness, jurors, litigants, court officers, and interpreters use information technology tools to gather, process, and present legal information
• demonstrate an understanding of career opportunities in the field of law
37 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYERS
A lawyer is a person trained in the profession of law.
A person is not legally required to be represented in court by a lawyer – you can speak for yourself. It is, however, difficult for the average person to handle any but the most simple legal problems without legal advice. Most people choose to hire a lawyer.
This need for trained assistance is recognized in law. For example, if you have been charged with a serious criminal offence and cannot afford to hire your own lawyer, Manitoba’s legal aid system offers inexpensive help to people with low incomes. 38 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYERS
Companies large and small also hire lawyers to handle the legal details of running a business and drawing up contracts. Wills, marriage contracts, and sales agreements are examples of other civil matters that lawyers handle for their clients.
A lawyer has two responsibilities:
• to obtain the best results for her or his client
• to act as an officer of the court and follow the rules of legal proceedings
39 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYERS
Working for the Client
Most lawyers specialize in one or two areas of law and are familiar with the statutes and case law that generally apply. However, the lawyer will still need to listen to the client's story and then research the best way to present the case. The law has a concept called solicitor-client privilege which means that the lawyer is not legally bound to reveal everything the client says. In fact, a lawyer should not divulge anything his or her client says without permission of the client.
Otherwise, the lawyer could be disciplined by the Law Society, the organization which regulates the behaviour of lawyers.
40 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYERS
With the basic facts in hand, the lawyer may then study case law to find out if any particular precedents apply.
Privilege also exists in law between husband and wife. This means husband and wife can't be compelled to testify against one another. (An exception is cases involving child abuse.) Privilege also means that individuals may speak in court without fear of being sued for slander. (However, a witness who lies in court may be charged with contempt of court or perjury.)
41 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYERS Barristers, Solicitors, and Counsellors
In Great Britain, a solicitor prepares the case, but a barrister takes the case to court.
We've inherited the tradition of separating the tasks, but in Canada every lawyer is considered both a barrister and a solicitor.
A lawyer acting in a case is often called a counsellor. In a criminal case, the lawyer representing the government is called the Crown counsel or sometimes just the Crown.
42 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
A judge is a powerful person in our adversarial judiciary system. Once each side in the dispute has presented its case, the judge must make decisions that may profoundly affect the lives of the people involved. A judge may award a settlement of hundreds of thousands of dollars to a person who was injured in an accident, or decide that a small token will suffice in this particular case. A convicted robber may be sentenced to several years in jail, or allowed to go free on probation.
A judge has the power to make these decisions, but the decisions must take into account our entire system of laws, as well as our current social ideas of right and wrong. In this lesson we'll talk about the different levels of judges and some of the things a judge must consider when making a decision.
43 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES Appointment of Judges
In Canada, judges are appointed from the ranks of experienced lawyers. A judge will be appointed to a specific level of court. (You may want to look again at the Court Ladder diagram in the previous Lesson "Structure and Jurisdiction .") Provincial court judges are appointed by the provincial government. All other levels, including the judges of the Manitoba Court of Queens Bench, and judges of the Manitoba Court of Appeal, are appointed by the federal government. A justice of the peace is a level below a provincial court judge. A justice of the peace can perform routine functions such as providing the police with arrest or search warrants, or deciding whether an accused person should be released from custody before a trial begins. 44 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
Statutory Interpretation
One of the judge's jobs is to interpret the law. This sometimes involves deciding on whether a person is guilty or not, and always involves deciding what type of penalty or remedy a person might have to pay. This part of a judge's job is called statutory interpretation. Here is an example of how statutory interpretation works. Notice that it involves more than just reading the statute!
Let's consider a hypothetical (imaginary but possible) example. The statute says, “Any person found operating a vehicle, including motorcycles, in the park is guilty of an offence.”
45 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
You ride your bicycle through the park and are charged under this statute. You were definitely in the park, but did you break the law? Your lawyer will do her or his best to interpret the law in your favour. The judge will listen, then consider all of the following:
Because motorcycle is mentioned specifically, perhaps the statute refers only to motorized vehicles.
46 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES On the other hand, if the statute was meant to include only motorized vehicles, it could have said so specifically. The judge may look at previous cases and see how the word vehicle has been interpreted in other statutes. Has there been a lot of trouble recently with bicycles in the park, and is this the appropriate way to put a stop to it? Have you been apprehended before for riding your bike in the park?
By considering all of these factors, the judge will try to balance the letter of the law (what is actually written in the statute) with the intent of the law (what is in society's best interest). This balancing act is statutory interpretation.
47 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
Our social values affect statutory interpretation. If society in general is becoming more or less tolerant of a particular offence, then a judge will take this into account.
This is another way the people of Canada are part of how our laws are made.
48 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
Penalties and Remedies
A judge in a civil trial will try to find the solution that is fairest to both parties. In a lawsuit, for example, the judge will consider whether or not the person contributed to his or her own problem and the amount of harm done before deciding on the remedy. In a child custody case, the judge will consider what's best for the child and the rights of the parents before making a decision.
In a criminal trial, the judge will consider the range of possible penalties for the offence as set out in the statute. She or he will then try to balance the best interests of the convicted person and the best interests of society.
49 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
For example, a judge might decide that a dangerous person must be sent to jail for a long time to keep other people safe, while a less dangerous person might have a better chance to reform if given a shorter sentence.
50 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
During the Trial
A judge will not interfere with the work of the lawyers in presenting each case. A judge does not select or question witnesses, decide what evidence should be presented, or ask for additional information. She or he will, however, make certain that only the evidence that is legally allowed is heard in court, and that all court procedures are correctly followed.
In a trial with a jury, the judge must make certain that the jury understands the legal issues involved.
51 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
The Integrity of the Judiciary
What this means is that judges must be as honest as humanly possible. Decisions must be based on their legal knowledge and experience. A judge must not be influenced by bribes from anyone, personal bias, or the fact that he or she is in a bad mood that day.
Because judges are appointed by federal and provincial governments, judges must be especially careful not to be influenced by the opinions of politicians. There must be no feeling that a judge might lose her or his appointment if a decision didn't suit a politician.
52 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES
Every case should be judged according to the same standards, but a judge must feel free to interpret the law as he or she sees fit. Precedent is set when a judge interprets a law in a way that has never been done before.
53 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYER TASK Select the best responses to these statements:
1. If you need a lawyer:
a. you must pay for one b. you may qualify for free or inexpensive legal counsel
2. A lawyer needs to know about:
a. any statutes that might apply b. any precedents that might apply c. both of the above 54 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYER TASK
3. When presenting a case in court, a defence lawyer should:
a. fairly present all sides of the issue b. present only those facts that will help the client's case
4. As an officer of the court, the lawyer:
a. decides on whether or not the accused person is guilty b. must follow all the correct rules of court procedure c. both of the above
55 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYER TASK
5. Everything important a client says to his or her lawyer:
a. must be presented in court b. is privileged information
56 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS LAWYER TASK - ANSWERS
1. b. you may qualify for free or inexpensive legal counsel
2. c. both of the above
3. b. present only those facts that will help the client's case
4. b. must follow all the correct rules of court procedure
5. b. is privileged information
57 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES TASK
Which of the following might a judge consider when sentencing? Be sure to back up your responses.
1. definitions of important terms in the statute
2. case law that applies
3. number of previous convictions
4. age of the accused
58 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS JUDGES TASK
Which of the following might a judge consider when sentencing? Be sure to back up your responses.
5. a letter suggesting a light sentence from a local politician
6. a letter from a person willing to give the accused employment
59 MODULE ONE – 1.4.4 – DUTIES & EXPECTATIONS OF COURTROOM PARTICIPANTS OPTIONAL JUDGES TASK
Optional Task
Joan has recently been convicted in the Manitoba Court of Queens Bench for the offence of manslaughter. In her lawyer's opinion, the judge made an error in allowing evidence about Joan's past to be presented in court.
1. What is the lawyer likely to request? 2. What court would consider the request?
60 Throughout this lesson you will study cases that deal with real events that happened to real people in the Canadian courts context. Real cases are used to illustrate points of laws. Other times you'll be asked to figure out what you think a judge would decide in the case or your opinion of what you think should happen in the case.
Completing this lesson will help you to:
• use appropriate vocabulary to communicate legal information
MODULE ONE – 1.4.5 – CASE STUDIES
61 MODULE ONE – 1.4.5 – ANALYZE A CASE
Case studies are the fun part of learning about law. In a case study you get to read about real events that happened to real people. Sometimes we'll use cases to illustrate points of laws. Other times you'll be asked to figure out what you think a judge would decide in the case. Occasionally you'll be asked your opinion of what you think should happen in the case.
How to Analyze a Case
Case citations are set up in an uniform pattern. Whether it is a criminal or civil case citation, it will be documented in almost the exact same way. The major difference is that a criminal citation will be "R. v. Someone" and a civil citations will be "Someone v. Someone". If you think back to previous lessons you will see that this makes sense as a criminal citations involve the government. The "R." in the criminal citations stands for "rex" or "regina" which in Latin means "King" or "Queen".
62 MODULE ONE – 1.4.5 – ANALYZE A CASE
Here is an example of a court citation:
R. v. Kapilik (2002) N.B.C.A. 141 N.B.R (2d) 99
In this case we can tell the following information to be true:
R. - Rex or Regina v. - versus (Latin "against) Kapilik - Defendant (2002) - year decision was given N.B.C.A - court (in this case it was the New Brunswick Court of Appeal) 141 - volume number N.B.R - title of report in which case is listed (in this case it is the New Brunswick Reports) (2d) - edition 99 - page number
If you put it all together you will be able to see that this was a criminal case. The accused last name is Kapilik and a decision of the case was given by the New Brunswick Court of Appeal in the year 2002. We also know exactly where we could find the case if we wanted to see how it unfolded. 63 MODULE ONE – 1.4.5 – ANALYZE A CASE
Sometimes a civil citation will start off with something like:
"Smith et al. v. Billings..."
The "et al." represents the plaintiff and others and Billings is the defendant.
You'll also need to know the abbreviations that are used to tell you which level of court heard the case.
For the most part you can figure these out using common sense.
64 MODULE ONE – 1.4.5 – ANALYZE A CASE
S.C.C. -- Supreme Court of Canada
B.C.S.C. -- Supreme Court of B.C.
Man. R.-- Manitoba Reports
Can you guess what Ont. C.A. refers to?
It's the Ontario Court of Appeal. Since provincial courts are organized differently from province to province, you might also come across something like Man. Q.B.
-- that's the Manitoba Queen's Bench.
65 MODULE ONE – 1.4.5 – CASE CITATIONS – TASK
Answer the following questions…
1. Here is a case citation: R. v. Kravitz (1993), 8 Man R. 46 (Man C.A.)
a. Is this a criminal or civil case? How can you tell? b. Does this citation refer to a trial or an appeal? How can you tell? c. If you wanted to find all the details of this case, where would you look?
66 MODULE ONE – 1.4.5 – CASE CITATIONS – TASK
Answer the following questions…
2. Here is a case citation. Martin v. Chalifoux (1982), 25 R.P.R. 39 (B.C.S.C.)
a. Is this a criminal or civil case? How can you tell? b. Did this case involve more than or less than $10,000? How can you tell? c. From this case citation you can
(i) identify the parties involved; (ii) tell what the legal issues were; (iii) both of the above.
67 MODULE ONE – 1.4.5 – CASE CITATIONS – ANSWERS
1. a. It is a criminal case. You can tell this because it is "R v.". This indicates that it is the government against or versus someone.
b. This case refers to an appeal. You can tell this because the court which the case was held in was "Man C.A." which stands for Manitoba Court of Appeal.
If you wanted to find out the details of the case you would look in the Manitoba Reports (Man R.).
68 MODULE ONE – 1.4.5 – CASE CITATIONS – ANSWERS
2. a. It is a civil case. You can tell because it is one person vs. another.
b. This case involved less than $10,000. You can tell this because the citation refers to the British Columbia Small Claims Court (B.C.S.C.)
c.(i.) identify the parties involved
69 In the previous lesson, you learned the processes that the mainstream Canadian legal system follows. In this lesson, you will learn about an alternative to the mainstream system. One such system is a restorative justice model based upon traditional Aboriginal legal theory. Interest in alternatives to the Canadian court system was sparked in part by the Manitoba Aboriginal Justice Inquiry (AJI). The AJI was established in response to two widely publicized incidents that caused many to feel that the mainstream Canadian legal system was not meeting the needs of Manitoba’s Aboriginal community. The two incidents were the trial in November 1987 of two men for the 1971 murder of Helen Betty Osborne in The Pas and the death of Aboriginal leader J. J. Harper.
MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
70 MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
Not all disputes need to be solved in courts. Court can be lengthy and expensive as well as emotionally draining. This lesson looks at some of those alternatives through research.
Completing this lesson will help you to:
• describe the processes involved in resolving disputes, including: litigation, hearings before tribunal, arbitration, mediation, negotiation
• use information technology tools to gather, process, and present legal information
• demonstrate an understanding of career opportunities in the field of law
71 MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
Aboriginal Legal Theory
There are fundamental differences between Aboriginal legal theory and mainstream Canadian legal theory. Aboriginal legal theory emphasizes respect, teaching, and healing. Canadian legal theory emphasizes retribution, deterrence, and rehabilitation. Another major difference is in the involvement of community members. Elders and other community members teach the children its values and traditions. When conflicts arise, community members come forward to resolve the conflict in keeping with the traditions of the community.
72 MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
The difference results in different views on how best to treat a "wrongdoing". In the mainstream Canadian justice system the commission of a crime results in the labeling of a person as a criminal. The label is established through a long and complex series of events, from the description of a crime to the finding of guilt based on either an admission or the use of evidence in an adversarial system. In the Aboriginal communities, a wrongdoing is considered to be misbehavior. The reasons for the wrongdoing are said to be the result of the person's relationship with the community moving towards disharmony. Based on this perspective, the scope of the justice system includes concern for the victim, as well as the healing of the offender and the restoration of harmony in the community.
73 MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
You have learned that our court system is adversarial -- one side against another. While this seems to be a good method for settling many disputes, courts are time consuming and expensive. They can also leave individuals feeling dissatisfied. For example, victims of crime often feel the offender deserved a stiffer sentence, or, at times, the victim feels neglected in the court process (although this is changing). As a result, alternatives to courts have emerged.
For example, some couples involved in marriage breakdown choose mediation to determine what agreements they can reach. Labour disputes are often solved by arbitration, a process by which union and employer agree to accept the ruling of a third party.
74 MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
More recently, groups and individuals have been turning to forms of restorative justice -- ways of settling disputes in a cooperative manner. Both the victim and the offender are more likely to be re-integrated into the community in a satisfactory manner after such a process. Examples of these such as “healing circles” or “sentencing circles” have proven to be very effective in some situations. While not all communities use exactly the same procedures, the description that follows will give you a good idea of how a restorative justice program could work.
75 MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
The process requires that the offence isn't major, the offender is willing to admit to the wrongful action and take responsibility for it, and the victim is willing to participate in the process. The investigating police officer, the offender, the victim, and people who are willing to support the victim and offender (parents, grandparents, siblings, friends) meet at a place arranged by the conference facilitator. They sit in a small circle and the facilitator leads them through a process which requires the offender to accept the blame and shame. The victim has an opportunity to tell the offender the way the wrongdoing has affected him or her. Others in the circle get an opportunity to do the same. Then it's time for apologies to all who have been adversely affected. Next the victim has an opportunity to suggest ways the offender can make up for the wrong doing. For example, if the offence was vandalism, repairing the damage might be a good start. Once the group has come to an agreement, the facilitator writes up an agreement, which everyone signs.
76 MODULE ONE – 1.4.6 – ALTERNATIVES TO COURT
If you are familiar with sentencing circles, you might have noticed some similarities. Family Group Conferencing originated with the Maori people of New Zealand. Other indigenous groups have had similar models.
77 MODULE ONE – 1.4 – LAW-MAKING, LAWMAKERS, LEGAL INSTITUTIONS & CAREERS IN LAW - SUMMARY
Here are the key terms and concepts of • The Supreme court of Canada this section. Remember to seek further • The Manitoba court system explanation from a student in the course or • Trials and appeals your instructor if you are having any • The role of lawyers difficulties. • The role of judges • Reading case citations • How laws are made • Alternatives to court • House of commons • Statutory Interpretation • Senate • Mediation • Cabinet • Bylaws • Provincial legislation • The functions of administrative agencies
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