Is “judicial activism” democratic? At what point does the judiciary’s interpretation of the law begin and the power of government [executive/legislative branches] to make decisions end? Canadian Charter written “to ensure democracy was robust, substantive and allowed for a dialogue between Courts and governments” Is the judiciary democratic? Kent Roach’s argument…. International recognition of Section 1 of CCRF Government avoidance/interpretation.

Judicial Activism

Judicial Activism? Chaoulli v Quebec (2005) Person’s Case (1927) Same Sex Marriage (2005)

Sentencing Guiding Questions What are the traditional objectives of sentencing? Are these objectives changing? What is influencing this change? What are the goals of sentencing per the Canadian Criminal Code? What sentencing options are available to judges? What is the appeal process, and for whom? What is the objective of release? What are the options for release? Chapter 9

Restitution Public Safety? Order? Rehabilitation Peace? Retribution Sentencing: Objectives Restitution Public Safety? Order? Peace? Rehabilitation Retribution

Sentencing: Factors to Consider Page 252

Criminal Code vs. Charter Sentencing: Factors to Consider Criminal Code vs. Charter Proscribes sentences available for the offense Subject to political discussion (minimum sentences for gun crimes, no pardons for pedophilic offenses Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. (Section 12).

Sentencing: Purpose and Principles Deterrence Segregation Rehabilitation Retribution

Sentencing: Purpose and Principles Proportionality Mitigating circumstances Aggravating circumstances Section 718.2

Sentencing: Options Community Service Absolute/Conditional Discharge Suspended Sentence/Probation Conditional Sentence Suspension of Privilege Peace Bond Restitution/Compensation Community Service Deportation Fine Imprisonment Capital Punishment Restorative Justice Page 258

Sentencing: Appeals Both accused and Crown have the right to appeal sentence. Votes and reasons/dissenting arguments disclosed. Results: Change verdict, change sentence, order new trial. Hierarchy of courts in effect. Summary offenses Transcripts, statements of facts reviewed. Higher court appeals hear arguments. New evidence only admissible if relevant, credible and impactful. Question of law (interpretation) or fact (relevance, credibility of evidence) Indictable offenses Defense: law, law and fact, fact alone (requires permission), other reason deemed worthy Crown: law, sentence (requires permission), stay of proceedings or invalid indictment

Looking Ahead Restorative Justice (Guest Speaker January 13rd- Catherine Bargen) Corrections System (Guest Speaker January 21st- Sandra Thiessen) Young Offenders Seminars: Wrongly accused/convicted, Minorities in the system, Legal Aid, Legal Fees Comparative Assessments