crim ch 5 - canada's courts

purpose of the restorative system

to promote a reconciliation of the vicim, the offender and the community

4 styles of social control

compensation, conciliation, punishment or treatment

the adversarial system concern

concerned with choosing from among the truths presented by 2 competing advocates

adversarial system

suggests that the truth is most likely to emerge from strong advocacy for opposing points of view. 

• places its confidence in the counsel who appear before the court, in contrast to an inquisitorial system

inquisitorial system

a legal system that places its confidence in the judge or arbitrator, who is required to ask relevant questions in an effort to determine the truth of the matter

star chamber

a place that from 1487 - 1640 sat in camera (privately) and handed down legal and often arbitrary decisions that weren’t open to scrutiny by the public

provincial court

first stop in the hierarchy of canada’s court system.

• the trial courts have 4 divisions: criminal, youth, family and small claims

• 90 % of all criminal offences are heard in the provinicial court in the criminal divisions

superior courts of the province

2 divisions within the superior courts:

1. trial division: hears the most significant criminal and civil cases

2. appeal division: hears all appeals prior to possible consideration by the SCC

SCC

composed of eight justices and one chief justice

• court hears cases in panels of 3, 5, 7 or all 9 members

federal court of canada

composed of the federal court: Trial and appeal divisions

appointment of judges

provincial court (criminal court, family court and small claims court judges) are all appointed by the provincial government

burden of proof

the responsibility for proving a fact, proposition, guilt, or innocence

standard of proof

the level of certainty needed for the prosecution to convict or for a plaintiff to establish guilt. 

• is beyond a reasonable doubt in criminal matters or a balance of probabilities in civil matters

damages

a sum of money awarded by a court as compensation for harm or loss cased (ex. breach of contract)

injunction

1. a court order that prohibits someone from doing some act or compels someone to do some act

2. a court order intended to prevent future harm, enjoining a defendant to cease an activity or not do it at all

conflict resolution ( alternative dispute resolution)

new model for deciding disputes created by communities and the legal profession

• common forms:

  • mediation ( a form of negotiated settlement between disputing parties)

  • arbitration (which has a non-judicial officer determine how the issue in dispute between the parties should be resolved)

peremptory challenges

a crown or defence lawyer’s right to exclude a potential jury member without having to provide a reason for their exclusion

presumptive ceiling

18 months for cases going to trial in provincial courts

30 for those going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry)

restorative justice 

models of dispute resolution such as sentencing circles, that can apply to indigenous populations and are said to more accurately reflect the participants’ interpretations of justice than those imposed through the bc-canadian legal system

shortcomings of having a universal standardized approach to restorative justice

the rationale “everyone should be treated the same in courts” has 2 problems

1. compares an idealized version of the justice system from the practical realities of restorative justice practices

2. advocates a model of equality that is at odds with the prevailing view of equality held by the courts