Analysis of Canadian Criminal Justice

Analysis of Canadian Criminal Justice

As Canadian criminal justice law is revered worldwide for respecting and upholding the right of the accused, people have revived the debate on whether the biasedness of law court judges affects the verdicts given by the courts.

There are many ways in which a judge’s biasedness comes out.  Judges make their decision based on the seriousness of the case, race, class, and gender. Class affects courtroom decisions profoundly because judges base their case on mannerism and first physical impression of the accused as they appear in court.

Proponents of the idea believe that sometimes judges get clouded by a personal attitude towards the accused rather than basing the judgment according to the established laws. There point that 100% of poorly dressed accused were sentenced to jail term while only 50% of well-dressed accused persons were convicted for jail term.

A significant factor in which fingers are pointed at judges is Bail. The concern is that presumption of innocence, a cornerstone of the legal system, is being undermined and that the total number of “legally innocent” persons in jail has been increasing. The changes in how judges in criminal courts use bail have been ascribed, in part, to punitive penology, and to an increasing aversion to risk among criminal justice.

The report on Bail produced by the John Howard Society of Ontario found that “fewer people are being released on bail, less quickly, and with more conditions, during a time of historically low and still-declining crime rates.” There is also evidence that accused persons who are denied Bail by the judge and are remanded into custody increase the likelihood that the accused will accept a plea bargain. A factor that is influenced by the judge.

A study of eight bail courts in five provinces and territories found that the system was not operating following the law and often contrary to the Charter of Rights and Freedoms. The bail process was found to be overly risk-averse and to penalize persons in poverty, the addicted, and persons with mental illness. There are also several issues surrounding the use of Bail, which, it has been argued, fails those persons who require legal aid.  Of particular concern was the lack of access to Bail for accused persons in remote and northern communities. If not released by the police, the accused in these regions were often thrown out to a detention center to have their bail application processed.

Some judges have been accused of sexual biasedness. They stereotype men as more violent compared to women. This thinking is the effect of mass media conditioning of sexism, which affects the perception of a criminal court judge. A study has indicated that men appear to be denied Bail more often than women.

People who argue against this idea that judges biasedness have affected the Canadian Criminal Justice system points out that the courts are responsible for determining the guilt or innocence of accused persons and for imposing an appropriate sentence on those who are convicted. They are also responsible for ensuring that the rights of accused persons are protected; this often involves monitoring the activities of the various agents of the criminal justice system (including the police and systems of corrections). The decisions of the courts reflect ongoing efforts to balance the rights of the accused with the need to protect society.

Canada does not have a uniform court system. Each province and territory maintains a website that provides detailed information on its court system. Except for Nunavut, four levels of courts deal with criminal cases: provincial/territorial courts, provincial/national superior courts, provincial appellate courts, and the Supreme Court of Canada (SCC). Nunavut has a unified, or single-level, court, the Nunavut Court of Justice, in which the powers of the lower courts have been combined into one superior court where all judges can hear all types of cases. The SCC is the highest court for all jurisdictions.

In every province and territory, except Nunavut, the court system has two levels: provincial and superior. The provincial and territorial courts are the lowest level of courts; nearly all criminal cases begin and end in them. Their judges are appointed by the provinces and territories, which also fund these courts and have jurisdiction over them. Provincial and territorial court judges sit without juries. Judges who are federally appointed hears matters subject to federal statutes and has some limited criminal jurisdiction.

Several specialized, problem-solving courts have been developed that attempt to divert offenders with special needs from the criminal justice system. These specialized courts include community courts, drug courts, and mental health courts, among others. Besides, several provinces have created courts specifically for Indigenous persons. The three defining attributes of problem-solving courts are (1) a focus on addressing the underlying problems of offenders, victims, and communities; (2) interagency and interdisciplinary collaboration; and (3) accountability to the community.

Assessing the effectiveness of various types of specialty courts is difficult because of the wide variations in admissions criteria, services provided, and how success is measured. Ongoing issues with many of the courts are high rates of non-compliance, the conditions imposed by the court, and non-completion of programs (84 percent in one study of the Toronto Drug Treatment program). Many of the courts have had difficulty attracting Indigenous men and women. The use of specialized courts by visible minorities is also unknown, as are the factors that may facilitate or hinder the effectiveness of these courts in a diverse community.

In many northern and remote areas, judicial services are often provided via circuit courts. Circuit court parties, composed of a judge, a court clerk, a defense lawyer, a Crown counsel, and perhaps a translator, travel to communities (generally by plane) to hold court.

The superior courts are the highest level of courts in a province/territory and are administered by provincial and territorial governments; however, superior court judges are appointed and paid by the federal government. About 10 percent of criminal cases are heard in the superior courts. Superior courts generally have two levels: trial and appeal. These two levels may be included in the same court, with two divisions (trial and appeal), or they may involve two separate courts.

The “court of last resort” -the Supreme Court of Canada-is located in Ottawa but hears cases from all provinces and territories. The Supreme Court was established under the Constitution Act (1867), which authorized Parliament to establish a general court of appeal for Canada. However, the bill creating the court was not passed until 1875.

The professionals who populate the criminal court courtroom can be described as the courtroom workgroup. Its permanent members have traditionally been the presiding judge, Crown counsel, and defense lawyer. Other professionals may appear on occasion (e.g., expert witnesses). The advent of problem-solving courts has resulted in an expansion of the courtroom workgroup to include representatives from agencies and community organizations; various restorative justice approaches include members of the community as well.

The presiding judge in a criminal case is a “trier of fact” and plays a variety of roles. These include interpreting the law, assessing whether evidence can be admitted, ruling on motions made by the Crown counsel and defense lawyer, and determining the truthfulness of testimony. In most cases, it also includes deciding on the guilt or innocence of the accused and passing sentence. A vital role of the judge is serving as a “gatekeeper” of evidence presented during the trial, including expert testimony, one legal scholar noting

Justices of the Peace (JPs) play a significant, but often overlooked, role in the criminal justice system. The legal authority of JPs is set out in federal and provincial/territorial statutes and regulations, including provincial/territorial justice of tl1e peace acts and the Criminal Code. There are notable differences between judges and justices of the peace. Although their respective provincial/territorial government appoints both, judges are required to be experienced lawyers, while JPs are not lawyers.

Defense lawyers represent persons who are charged with a criminal offense (s). The primary responsibility of the defense lawyer is to ensure that the rights of the accused person are protected throughout the criminal justice process.

The duty counsel lawyer is the first point of contact for a person who has been detained or arrested.

Crown attorneys are lawyers who represent the Crown (or government) in court and who are responsible for prosecuting criminal cases.

Besides lawyers and judges, other court personnel plays essential roles in the processing and disposition of cases. Court administrators-also is known as court registrars or court clerks-perform a variety of administrative tasks. For example, they appoint staff, manage court finances, sign orders and judgments, receive and record documents filed in the court, and certify copies of court proceedings.

Judges at the provincial court level are appointed by provincial governments, while the federal government appoints judges of the superior courts. Appointments are for life so that once on the bench, judges need not consider the career implications when making controversial decisions. Each province/territory has in place a Judicial Advisory Committee composed of lawyers and laypersons generally appointed by the attorney general. These screening committees forward nominations to the justice minister, who makes the final appointments. At the federal level, regional committees are mainly composed of members of the legal profession and community members appointed by Ottawa, who create lists of candidates who are forwarded to the Department of Justice and debated in the cabinet. It is argued that this process mitigates diversity in the judiciary. Under the Canadian Constitution, SCC judges are to be appointed by the governor-general of Canada. In practice, however, it is the prime minister and cabinet who make the selections, and approval by the governor-general is a formality.

Provincial, territorial, and federal court judges are guided by ethical principles that are set out in various provincial and territorial documents and, for federally appointed judges, by the Canadian Judicial Council. The standards center on integrity in personal and professional conduct and highlight impartiality and objectivity, a duty to follow the law, and the importance of appropriate personal conduct. Displays of gender bias, racial bias, religious bias, conflict of interest, and cultural insensitivity are grounds for complaint, as is undue delay in rendering a decision (which should usually take no more than six months). Cases investigated by the CJC have involved alleged drug use by judges, as well as other types of misconduct or illegal behavior. Sanctions range from removal from the bench (an infrequent occurrence) to a leave of absence with pay or a letter of reprimand. Alternatives to these include counseling, educational workshops, or the requirement that the judge apologizes to the complainant. In more severe cases, judges often choose to resign before the council completes its inquiry.

The length of time to complete adult criminal court cases varies across the country. As would be expected, cases involving more serious criminal offenses or multiple charges take longer to complete. However, case delay has been endemic in the Canadian criminal justice system and, until recently, appeared to be immune from reform efforts designed to improve the case process.

ADDRESS THE sec R. V. JORDAN DECISION A watershed event in case delays in the criminal courts was the landmark ruling of the sec in R. V. Jordan (20 16 sec 27). Jordan was a British Columbia man who experienced a four-year delay before being brought to trial on drug charges. Criticizing what it characterized as a “culture of complacency” in the criminal justice system, the court dismissed the charges against Jordan and set presumptive timelines for the disposition of cases in the courts from the time the person is charged to the actual or anticipated end of trial: 18 months for claims tried in provincial court and 30 months for cases in the superior court (or cases decided in the provincial court after a preliminary inquiry). Beyond these time limits, the delay will be deemed to be unreasonable, unless there are exceptional circumstances.

The criminal courts may be overwhelmed in some instances that result from a significant tragedy or police enforcement initiative. Stronger enforcement efforts against outlaw motorcycle gangs and criminal syndicates have resulted in criminal trials involving multiple defendants, lengthy witness lists, and thousands of pages (and in many instances, thousands of pieces) of evidence. Also, these types of cases are expensive.

Although judges may have particular personal influence on the criminal court case, the Canadian law has set up measures to safeguard the interest of the accused person.

REFERENCE

(http://www.ontariocourts. ca/ocj/files/annualreport/ojc/2014-2015-E .pelf).

(http://www.ontariocourts.ca/ocj/ojc).

http://www.cbc.ca/radio/thecurrent/the -current-for-march-7-2016-1. 34 788 12/women-leavi ng-crimi nal-defence-law-due-to -discrimination-new-report-says-1. 34 78945.

(http://www .scc-csc.gc.ca).