September 26, 2007 Court Organization and Trial Court Reform Judicial Administration in Canada

Today’s topics The criminal trial process in Canada Canadian court structure Millar and Baar, ch. 4 Greene, ch. 1 McCormick, ch. 3 Baar, “Trial Court Reorganization in Canada: Alternative Futures for Criminal Courts” (2003)

The criminal trial process in Canada First appearance If in custody, bail hearing If not in custody, “set date” for trial If had bail hearing, second appearance is to “set date” There might be a third appearance to “set date” if additional time is required to apply for legal aid or retain counsel, or obtain disclosure from the crown prosecutor Three types of offences Less serious: prosecution by summary conviction (eg. communicate for the purpose of obtaining the sexual services of a prostitute, cause disturbance, harassing telephone calls) Most serious: indictable (murder, aggravated sexual assault; fingerprinted and added to CIPC registry) Hybrids can be prosecuted either by summary conviction or by indictment. The crown “elects” which way to proceed. (eg impaired driving, assault, theft under $5,000)

pretrial Can be between defendant’s lawyer and crown, or with both lawyers and a judge. Often for plea negotiations Explore disclosure issues Narrow trial issues

Lawyers and informations Once a lawyer is retained for an accused person, the lawyer is “on the record,” and must represent the accused unless fired (with court’s permission), or forced to withdraw because client asks him/her to do something unethical The official start of a case is the “laying of the information” – filing a sworn document setting out charges. Usually filed by police or crown; any private person can lay an information before a JP

Prodecures by indictment For many, accused can elect to have a trial by jury in the Superior Court, or a trial by judge alone in the Provincial Court (called Ontario Court of Justice in Ontario) or the Superior Court (for more serious cases). Even if an accused elects trial by jury, prior to the trial the accused can re-elect to have a trial by a judge alone. Why would an accused re-elect? Why would an accused prefer trial by jury or trial by judge alone? Preliminary hearing: for serious cases destined for trial in the Superior Court by judge alone or by jury, a preliminary hearing is scheduled in the Provincial Court to determine whether there is enough evidence for the case to go to trial. The crown can decide to proceed with a “direct indictment” – no preliminary hearing. Yesterday, after the start of a preliminary hearing on the terrorism case in Brampton, the crown decided to issue a preferred indictment. The preliminary hearing was stopped, and the case will go directly to trial in the Superior Court. A preferred indictment is rare.

The Canadian Court System, 2004

Millar & Baar, Chapter 4 Discussion of constitutional basis Section 96 Section 92(14) Numbers of judges and court structure out of date – see previous slide for current information Since Chapter 4 written, all provinces have merged their county or district courts with their superior courts Issues from the merger that still haunt the court system Unified family courts Unified trial courts: criminal & civil (small claims issues) Ontario’s experiment with attempting to create a unified court system

Greene, ch. 1 History of courts Structure and function of Canadian courts “integrated” system vs. dual system (as in US) Judicial impartiality Judicial appointment Judicial education Judicial discipline Role of courts in democracy (p 16)

McCormick, ch. 3 Principles Identify routine cases and assign to high-volume low delay court Assign less routine and more serious cases to a lower-volume court Establish a regional court of appeal Establish a general court of appeal Create specialized federal courts for some kinds of federal cases (administrative law and tax law) The Section 96 dilemma How specialized should courts be? How user-friendly should courts be? How big should courts be?

Baar, “Trial Court Reorganization in Canada: Alternative Futures for Criminal Courts” (2003) Specialization: provincial courts specializing more on criminal matters, and superior courts on civil matters Specialization of court in the UK: family, criminal, civil Shifting of criminal matters from Superior to Provincial courts (s. 96 to s. 92(14) Increased caseload for provincial courts has shifted work to lower courts – municipal courts and JP courts Ell case