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THE LAW IN ACTION



The Court Structure

Constitutional authority for the judicial system in Canada is divided between the federal and provincial governments.

  • The provinces have explicit jurisdiction over the administration of justice in the provinces; this includes the constitution, organization and maintenance of the provincial courts, both civil and criminal, and civil procedure in those courts.

  • The federal government, on the other hand, has the exclusive authority to appoint and pay the judges of the superior courts in the provinces. Parliament also has the authority to establish a general court of appeal and courts for the better administration of the laws of Canada; it has used this authority to create the Supreme Court of Canada, the Federal Court and the Tax Court. In addition, Parliament has, as part of its criminal-law power, exclusive authority over the procedure in courts of criminal jurisdiction. Federal authority for criminal law and procedure ensures fair and consistent treatment of criminal behaviour across the country.

Civil and Criminal Cases

The difference between "private" and "public" law has already been described. Another important distinction is that between "civil" and "criminal" cases. A "civil" case is another way of referring to a "private" case; that is, an action between private parties. A "criminal" case, on the other hand, involves a prosecution by the Crown pursuant to a public-law statute such as the Criminal Code, the Narcotic Control Act or the Competition Act. In Canada, our courts deal with both civil and criminal cases; in civil cases involving contracts, torts and the like, the courts apply common-law principles in nine provinces and two territories, and the "civil law" as embodied in the Quebec Civil Code in that province.

Provincial Court System

The names of the courts are not identical in each province, but the court system is roughly the same across Canada. The provinces divide their court system into two levels: provincial courts and superior courts.

Provincial Courts

Judges at the provincial court level are appointed by the provincial governments. Provincial courts deal with most criminal offences and, in some provinces, with civil cases involving smaller amounts of money. The provincial court level may also include certain specialized courts, such as youth and family courts.

Superior Courts

Judges of the superior courts are appointed by the federal government. The salary levels of superior court judges are set by Parliament, and the mandatory retirement age for these judges is 75 years. Superior courts are the highest level of court in a province, with power to review the actions of the lower courts.

Superior courts are divided into two distinct levels: a trial level and an appeal level. There may be a single court, generally called a supreme court, with a trial division and an appeal division. Or, the superior court may be divided into two separate courts, with the trial court named the Supreme Court or the Court of Queen's Bench, and the appeal court called the Court of Appeal. The trial level hears the more serious civil and criminal cases and has authority to grant divorces. The appeal level hears civil and criminal appeals from the superior trial court.

Federal Court System

The Constitution Act, 1867 authorizes Parliament to establish a general court of appeal for Canada, as well as any additional courts for the better administration of the laws of Canada. The Supreme Court of Canada was created under this authority and now serves as the final court of appeal in Canada. Its nine members represent the five major regions of the country; three of the nine judges must be from Quebec, in recognition of the civil law system.

The Supreme Court of Canada, as the country's highest court, hears appeals from decisions of the appeal courts in all the provinces and territories, as well as from the Federal Court of Appeal. Its judgments are final.

The Supreme Court is usually called upon to decide important questions of interpretation concerning the Constitution, and controversial or complicated areas of private and public law. The government can also ask the Supreme Court for its opinion on important legal questions. Sometimes parties have a right to an appeal, as in certain criminal cases. More often, parties must ask the judges of the Supreme Court for permission, or leave, to appeal.

The Federal Court and the Tax Court were also established under the same provision of the Constitution Act, 1867. The jurisdiction of the Federal Court of Canada includes specialized areas such as copyrights and maritime law. It also reviews decisions of federally appointed administrative tribunals such as the Immigration Appeal Board and the National Parole Board. It has a trial division and an appeal division.

Procedure in Civil Cases

A civil action or suit arises when individuals or corporations disagree on a legal matter, such as the terms of a contract or the ownership of a piece of property. A civil suit can also occur because of damage done to private property or physical injury to an individual. For example, someone who suffers a broken leg when he or she slips on your icy stairwell may sue you for compensation. The person who sues is called the "plaintiff" and the person being sued is called the "defendant".

The procedure in a civil case, or "action", can be quite complex. Furthermore, the terminology describing steps in the process is not consistent throughout Canada. Generally, an action has three phases: pleadings, discovery, and the trial itself.

An action begins when the plaintiff files a pleading with the court, setting out the complaint against the defendant and the remedy that the plaintiff is seeking. Depending on the practice and procedure of the court in which the action is commenced, such a document may be called a writ of summons, a statement of claim, a declaration, or an application. For present purposes, it can be described as an originating document.

When an originating document is filed, a court officer "issues" the claim. This is done by affixing the seal of the court to the pleading and signing the document on behalf of the court. Copies, as issued, are then delivered to (or "served on") the defendant.

It is the defendant's responsibility to provide the court with a "statement of defence". If the defendant fails to do so, he or she risks losing the suit by default. The court will assume that if the defendant does not put up a defence, the allegations of the plaintiff must be true. If the facts justify the remedy the plaintiff is seeking, the court will hold the defendant legally responsible, or "liable".

When preparing a defence, the defendant may wish to consult a lawyer for advice and assistance. Lawyers representing each side will often discuss the lawsuit in an effort to "settle" it before a trial is necessary. If they succeed, this is called a "settlement". A settlement can be reached at any time before the judge makes his or her decision. In fact, only about two per cent of civil suits are actually tried before the courts.

After statements of claim and defence are filed, each party is entitled to a pre-trial session with the opposing party, known as an "examination for discovery". This session is intended to clarify the claim against the defendant, and to permit each side to examine the evidence that will be used in court by the other side.

After the examinations for discovery, the dispute will proceed to the trial stage. During the trial, it is up to the plaintiff to prove the facts necessary to support the claim against the defendant. In a civil suit, the plaintiff must prove that it is more probable than not that the defendant is liable. The plaintiff does not have to prove this "beyond a reasonable doubt", as in a criminal case.

Trials in Civil Cases

The purpose of a civil trial is to determine whether there is some basis upon which the plaintiff is entitled to a remedy from the defendant and, if so, what the appropriate remedy might be. To achieve this purpose, the judge must listen to both sides and determine the facts of the case. The judge must then decide whether the facts disclose that the defendant has broken a rule of law: for example, the rule that we are bound to perform our contracts.

The trial begins with the plaintiff presenting the evidence against the defendant. The plaintiff calls witnesses to testify as to facts, and present documents, photographs or other kinds of evidence. The defendant may then cross-examine the plaintiff's witnesses to test their evidence. The defendant can then present his or her own evidence, including calling witnesses. The plaintiff has the same right to cross-examine.

Throughout the trial, the judge must ensure that all of the evidence presented and all of the questions asked are relevant to the case. For example, in most situations, the judge will not allow "hearsay" evidence: testimony based on what a witness has heard from another person.

At the conclusion of the trial, both the plaintiff and the defendant present a summary of their arguments. The judge must then consider the evidence presented and make a decision, based on what has been proven to be most probable.

Depending on the subject matter of the action, and the court in which the action is taken, the defendant in a civil matter may have a right to a trial by judge and jury. In such cases, the jury must decide which version of the facts it believes, while the judge decides what law applies. At the end of the trial, the judge will explain the evidence and the relevant laws to the jury. The jury must then consider the matter and reach a verdict.

Decisions in Civil Cases

If the defendant in a civil case is found to have done nothing wrong, the judge will dismiss the case. However, if the defendant is found liable, the remedy to which the plaintiff is entitled must be considered. The remedy depends upon a number of factors: the relief sought at the pleadings, the facts, and the authority given to the court to grant specific relief.

Remedies fall generally into three categories: monetary remedies (damages), declaratory remedies, and orders requiring a person to do -- or refrain from doing -- some act.

Damages are the remedy most commonly available to the successful plaintiff. The amount of damages is normally fixed by the judge or jury that decided the case. In fixing damages, the judge or jury will take into account the out-of-pocket expenses incurred by the plaintiff and, where the law permits such recovery, an additional lump sum to compensate the plaintiff for the loss suffered and the loss that might be suffered in the future as a result of the wrongdoing of the defendant. Although the judge or jury may take into consideration the amount demanded by the plaintiff in the originating document, they are not required to award that amount: they are free to award substantially less than the amount claimed.

In Canada, the main purpose of damages is to compensate the plaintiff for the loss caused by the defendant. However, a judge or jury may occasionally award "punitive" or "exemplary" damages in addition to those that would ordinarily be payable. Such damages are usually awarded when they are made available by statute or, in most jurisdictions, when the judge or jury feel that the conduct of the defendant was so reprehensible that an increased award is required to express the disapproval of the community.

Declaratory remedies are those in which the court states or declares the rights of the parties. For example, when a court interprets a will or a contract, its decision is declaratory in nature. Similarly, the decision of a court as to the ownership of personal property or land is also declaratory.

Many remedies require a person to do or to refrain from doing some act. The most common of such remedies is the "injunction". An injunction can prohibit or restrain someone from doing something, such as annoying his or her neighbours by burning garbage. It can also require someone to do something: for example, to remove their tired old jalopy from the plaintiff's property.

Another remedy that requires a person to do something is known as "specific performance". This remedy is most commonly available where the defendant has breached a contract with the plaintiff. For example, suppose the defendant, Mr. Jones, has broken his contract to sell his house to the plaintiff, Mrs. Smith. Instead of awarding damages, the judge could order Mr. Jones to honour his contract and sell the house to Mrs. Smith at the agreed price.

Injunctions and specific performance are remedies that are not given as a matter of course. In each case, the court has the discretion to make such an order or to award damages. The circumstances in which this discretion can be exercised are the subject of a vast body of judge-made law.

Procedure in Criminal Cases

Unlike a civil suit, a crime is not a dispute between individuals, even though individuals often suffer damage or are injured by the offenders. A crime is considered to be an offence against society as a whole. This is why it is usually the state, and not an individual, who initiates a criminal prosecution. The person charged with a criminal offence is called the "accused".

Criminal offences are set out in the Criminal Code or in other federal legislation, and are divided into two categories: "summary conviction" offences and "indictable" offences. Some offences may be prosecuted either summarily or by indictment, at the discretion of the prosecutor; these are known as "elective" offences.

A person charged with a summary conviction offence will appear before a provincial court judge and the trial will normally proceed "summarily"; that is, in that court and without further procedures. The maximum penalty for this type of offence is normally a $2,000 fine, six months in prison, or both. Offences prosecuted by indictment are more serious, and in most cases the accused person may choose to be tried by a provincial court judge, by a superior court judge, or by a judge of a superior court with a jury. If the charge is for an indictable offence, there may first be a "preliminary hearing". During this hearing, a judge examines the case to decide if there is enough evidence to proceed with the trial. If the judge decides there is not enough evidence, the case will be dismissed. Otherwise, a full trial will be ordered.

A person accused of a crime may not necessarily be arrested by the police. The accused may simply receive a "summons" after a charge has been laid before the court. A summons is an order to appear in court at a certain time to answer to the charge. But if the accused is arrested, there are certain procedures that must be followed to protect his or her Charter rights. It must always be remembered that an accused person is presumed innocent until proven guilty.

When the police arrest or detain an individual, they must tell the person that he or she has the right to consult a lawyer without delay. They must also explain the reasons for the arrest or detention and the specific charge, if one is being made.

Anyone who is arrested and held in custody has the right to appear before a justice of the peace or judge as soon as possible (usually within 24 hours), unless released sooner by the police, to have the issue of pre-trial release or "bail" determined. Bail hearings are sometimes referred to as "show cause" hearings because the prosecutor must show why the accused should remain in custody. If a justice or judge decides to release an accused, the accused may be released with or without conditions. A judge will only refuse to release an accused on bail if there are very strong reasons for doing so.

Anyone accused of a crime also has the right to stand trial within a reasonable time.

Trials in Criminal Cases

A criminal trial is a serious matter for the accused because life and liberty, as well as the stigma of a criminal conviction, are at stake. This is why common law and the Charter provide special protections. For example, the prosecution has the burden of proving that the accused is guilty of the charge beyond a reasonable doubt. Also, if any evidence introduced at the trial was obtained in a way that violates the accused's Charter rights, such as an unreasonable search and seizure, the judge may refuse to admit the evidence if to do so would bring the administration of justice into disrepute.

In a criminal trial, an accused person cannot be required by the prosecution to give evidence. The accused can take the witness stand, but only if he or she consents to testify.

Decisions in Criminal Cases

If the accused in a criminal trial is found not guilty, the trial judge will acquit the accused, who is then free to go. But if the accused is found guilty of a crime, the judge must decide on the appropriate sentence.

When making this decision, the judge must consider many things, such as the seriousness of the crime, the range of sentences provided for by the Criminal Code or other statutes, the need to prevent or deter the offender or others from committing similar crimes, and the prospects for rehabilitation.

Judges may impose many different kinds of sentences or a combination of different penalties. The sentence may include such penalties as:

fine: A sum of money that can run up to many thousands of dollars.

restitution: An order requiring the offender to make restitution for injuries or to pay compensation for loss of or damage to property as a result of the offence.

probation: Release of the offender on the conditions prescribed in a probation order.

community service: A court order that the offender perform a certain number of hours of volunteer work in the community.

 imprisonment: Confinement in either a prison or penitentiary. An offender who is sentenced to two years or more will be sent to a federal penitentiary; one who is sentenced to less than two years will go to a provincial prison.

However, the judge is not always required by law to enter a conviction upon a plea of guilty or a finding of guilt. Under certain circumstances, the judge can give the offender an absolute or conditional discharge. If it is a "conditional" discharge, the offender must obey certain conditions imposed by the judge; otherwise, he or she can be brought back to court and given a more severe sentence. A discharge will avoid ascribing a criminal record to the offender.

Right to Appeal

No system is ever perfect. Despite all precautions, it is always possible that a court may make an error in a trial. Therefore, the opportunity to appeal a court's decision is an important safeguard in our legal system.

In most civil and criminal cases, a decision made at one level of the court system can be appealed to a higher level. Where there is no right to appeal, permission or "leave" to appeal must be sought. The higher court may deny leave to appeal, or either affirm or reverse the original decision. In some cases, it will order a new trial. Both sides in a civil case may make such an appeal, and either the prosecution or the accused in a criminal case may appeal. Sometimes, it is only the amount of damages or the severity of the sentence that is appealed. For example, the accused may ask a higher court to reduce a sentence, or the prosecution may ask to have the sentence increased.

Administrative Boards and Tribunals

There are many administrative rules and regulations that are often dealt with outside the formal trial procedures. Disputes concerning such matters as broadcasting licences, unemployment insurance, occupational safety standards or health regulations, may be placed in the hands of federal or provincial government departments or left with special administrative boards. These include such institutions as the Unemployment Insurance Commission, the Canadian Radio-television and Telecommunications Commission, labour relations boards and refugee tribunals.

The procedure before these administrative bodies is usually simpler and less formal than in the courts. However, to ensure that such bodies exercise only the authority conferred upon them by law and that their procedures are fair, their decisions and proceedings may be reviewed by the courts. In the case of federal boards, this review is done by the Federal Court of Canada.

The Young Offenders Act

Special considerations come into play when young people commit acts that are considered criminal. This is why Parliament passed the Young Offenders Act. It applies to young people aged 12 to 17 years inclusive. The Act recognizes that young persons must be held accountable for criminal acts, although they need not always be held accountable in the same manner or to the same extent as adults. It is in society's interest to ensure that as many young offenders as possible are rehabilitated and become productive members of society.

The Act also extends rights and safeguards to youths that go beyond those enjoyed by adults. As well, the Act recognizes that youths, because of their adolescence, have special needs and circumstances that must be considered when any decision is made under the Act. These principles are set out in the Act's Declaration of Principle.

Proceedings under the Act are conducted in special youth courts. While young persons cannot have a trial by jury, they are given the same rights and protections as adults, such as the presumption of innocence and the onus on the prosecution to prove its case beyond a reasonable doubt. As well, youths are entitled to be represented by a lawyer.

The Act allows for young offenders to be dealt with outside the formal court system through the means of "alternative measures". These programs are generally restricted to relatively minor, first offences. They are expeditious and informal, minimize the stigmatizing effects of an appearance in court, and reserve the costlier court process for more serious cases.

Young persons convicted of offences pursuant to the Act receive a "disposition" (or sentence), which can range through an absolute discharge, a fine of up to $1,000, an order for restitution or compensation, an order of up to 240 hours of community service, an order of up to two years' probation, and an order of custody combined with community supervision for up to five years less a day.

For more serious offences, a young person who is 14 years of age or more can be transferred to adult court. If a youth court judge orders transfer, there will be a trial in adult court. If there is a conviction in adult court, sentencing will be in accordance with the principles applicable to adults. This includes life imprisonment if a young person is convicted of an offence for which an adult would get a life sentence.

Getting Legal Advice

When someone runs into legal problems, obtaining legal advice may be important. After many years of education and training, lawyers are qualified to give this advice. Lawyers represent their clients in both civil and criminal cases. In addition, they provide help and advice to their clients in any situation where knowledge of the law is necessary, such as buying or selling a house.

In Quebec, the legal profession comprises both lawyers and notaries. Notaries concentrate on contractual matters, especially in real estate, and cannot appear in court except in non-contentious matters. In the rest of the country, lawyers can provide any kind of legal service. However, many lawyers practise in only one area of law. For example, some lawyers may specialize in criminal law; other lawyers may only give tax advice.

A lawyer's advice is especially important to someone accused of a crime, because a conviction can have serious consequences. However, sometimes an accused person is not able to pay for the services of a lawyer. To solve this problem, the federal and provincial governments have set up a program to share the cost of legal services for those who qualify for such assistance. Under this program, the provinces offer legal aid to any eligible person who is accused of a crime, when a conviction might mean a jail sentence or loss of livelihood. Some provinces also offer legal aid for civil cases, particularly in family-law matters.