{"id":28,"date":"2019-09-04T19:54:45","date_gmt":"2019-09-04T23:54:45","guid":{"rendered":"https:\/\/pressbooks.bccampus.ca\/psyc268\/chapter\/chapter-2\/"},"modified":"2019-09-04T22:56:31","modified_gmt":"2019-09-05T02:56:31","slug":"chapter-2","status":"publish","type":"chapter","link":"https:\/\/pressbooks.bccampus.ca\/psyc268\/chapter\/chapter-2\/","title":{"raw":"CHAPTER 2: THE CANADIAN LEGAL SYSTEM","rendered":"CHAPTER 2: THE CANADIAN LEGAL SYSTEM"},"content":{"raw":"
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CHAPTER OBJECTIVES<\/p>\r\n\r\n

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    \r\n \t
  1. Differentiate between an inquisitorial and an adversarial legal system.<\/li>\r\n \t
  2. Explain the division of legislative powers between the federal and provincial governments.<\/li>\r\n \t
  3. Describe the four sources of law in Canada.<\/li>\r\n \t
  4. Describe the levels within the Canadian court structure.<\/li>\r\n \t
  5. Compare and contrast the criminal and civil court processes.<\/li>\r\n \t
  6. Outline the key elements of the Canadian Charter of Rights and Freedoms.<\/li>\r\n \t
  7. Explain the elements of a criminal offence, list the types of criminal offences, and describe the defences used.<\/li>\r\n<\/ol>\r\n<\/div>\r\n<\/header><\/div>\r\n

    Forensic<\/em> psychologists<\/em> work<\/em> at<\/em> the<\/em> intersection<\/em> of<\/em> psychology<\/em> and<\/em> law.<\/em> Each<\/em> other<\/em> chapter<\/em> in<\/em> this<\/em> textbook<\/em> describes <\/em>a<\/em> component<\/em> of<\/em> this<\/em> fascinating<\/em> discipline.<\/em> This<\/em> chapter<\/em> is<\/em> somewhat<\/em> different;<\/em> it<\/em> provides<\/em> a<\/em> very<\/em> brief<\/em> descrip<\/em>tion<\/em> of<\/em> the<\/em> Canadian<\/em> legal<\/em> system.<\/em> We<\/em> begin<\/em> with<\/em> the<\/em> big<\/em> picture;<\/em> a<\/em> description<\/em> of<\/em> Canada\u2019s<\/em> legal<\/em> system<\/em> and an<\/em> explanation<\/em> of<\/em> why<\/em> the<\/em> federal<\/em> government<\/em> passes<\/em> laws<\/em> in<\/em> some<\/em> areas<\/em> and<\/em> the<\/em> provincial<\/em> governments<\/em> pass laws<\/em> in<\/em> other<\/em> areas.<\/em> This<\/em> will<\/em> help<\/em> students<\/em> to<\/em> understand<\/em> the<\/em> sources<\/em> of<\/em> Canadian<\/em> law<\/em> and<\/em> the<\/em> Canadian<\/em> court <\/em>structure.<\/em> Of<\/em> particular<\/em> importance<\/em> is<\/em> the<\/em> Canadian Charter of Rights and Freedoms because<\/em> it<\/em> places<\/em> prin<\/em>cipled<\/em> limits<\/em> on<\/em> the<\/em> substance,<\/em> interpretation,<\/em> and<\/em> application<\/em> of<\/em> law.<\/em> With<\/em> this<\/em> framework<\/em> in<\/em> place,<\/em> we<\/em> describe criminal<\/em> offences,<\/em> what<\/em> they<\/em> are,<\/em> how<\/em> they<\/em> are<\/em> prosecuted,<\/em> and<\/em> available<\/em> defenses.<\/em> Prosecuting<\/em> and<\/em> defending against<\/em> a<\/em> criminal<\/em> offence<\/em> almost<\/em> always<\/em> involves<\/em> the<\/em> presentation<\/em> of<\/em> evidence.<\/em> In<\/em> the<\/em> last<\/em> section<\/em> of<\/em> this<\/em> chapter we<\/em> describe<\/em> different<\/em> kinds<\/em> of<\/em> evidence,<\/em> with<\/em> a<\/em> particular<\/em> emphasis<\/em> on<\/em> opinion\/expert<\/em> evidence.<\/em><\/p>\r\n\r\n

    \r\n

    Learning Objective 2.1<\/p>\r\n\r\n<\/header>\r\n

    Differentiate between an inquisitorial and an adversarial legal system.<\/div>\r\n<\/div>\r\n

    To better understand the North American legal system, we begin by briefly contrasting two distinct systems of law introduced in Chapter 1: the inquisitorial system <\/strong>and the adversarial system<\/strong>. The inquisitorial legal system is used in many European countries. In this system, the law is typically codified; that is, it is written down systematically as a set of principles or rules. Judges play an active role at trial in terms of directing the trial, as well as calling and questioning witnesses. Typically, experts are appointed by the court rather than being appointed by one side in the dispute. A lawyer\u2019s role is as much to assist the court as it is to represent the client\u2019s interest. Generally, the adversarial<\/em> legal<\/em> system<\/em> is based in common law. This means that the law is written in past court decisions. The lawyers present evidence and examine witnesses, while the judge\u2019s role is to be the final arbitrator, listening to the evidence as presented by the parties. In an adversarial system, the role of a defense lawyer is to be an advocate for the client and to vigorously defend the clients to the full extent permitted by law. Typically, expert witnesses are appointed by one party in the dispute.<\/p>\r\n\r\n

    Inquisitorial legal<\/strong> system <\/strong>a legal system in which the law is codi\ufb01ed (i.e., written down), judges play an active role in the proceedings, experts are called by the court, and the lawyers\u2019 role is, in part, to assist the court; it is used in many European countries.<\/div>\r\n
    Adversarial <\/strong>legal system<\/strong> a legal system in which two sides\u2014the defence representing the accused versus the prosecution (Crown) representing the people\u2014present their position before an impartial judge or jury, who attempt to determine the truth of the case; it is used in North America.<\/div>\r\nFor pedagogical reasons, we have described the two systems as if they are distinct from one another. In practice, legal systems often have both adversarial and inquisitorial elements but are more strongly associated with one system or the other. For instance, the Canadian legal system is described as adversarial, but much of our law is codified (written down) in legislation.Some research has been done on public perceptions of legal structures. Anderson and Otto (2003) studied participants who were familiar with the adversarial system in the United States and participants in the Netherlands, a country that has an inquisitorial system. They found that participants saw the adversarial system as more fair in terms of the presentation of all relevant evidence to the judge and in terms of parties being given a full opportunity to present their case. On all other measures, participants tended to prefer their own legal system. Research on expert testimony found that court appointments (as in inquisitorial systems) may help to ensure that experts present unbiased testimony (Merckelbach, 2003) and may have a positive effect on the perceived credibility of the experts (Cooper & Hall, 2000) compared to experts commissioned by one party to the proceeding (as in adversarial systems).\r\n

    <\/h2>\r\n

    2.1 Division of Powers<\/h2>\r\n
    \r\n

    Learning Objective 2.2<\/p>\r\n\r\n<\/header>\r\n

    Explain the division of legislative powers between the federal and provincial governments.<\/p>\r\n\r\n<\/div>\r\nIn 1867, Canada was established under the British<\/em> North<\/em> America<\/em> Act<\/em> (BNA<\/em> Act<\/em>). In 1982 when the Constitution was repatriated to Canada, the BNA<\/em> Act<\/em> was renamed the Constitution Act<\/em>, 1867 <\/em>and the Constitution Act, <\/em>1982 <\/em>came into force. The Constitution<\/em> Act,<\/em> 1982<\/em> contains the Constitution<\/em> Act,<\/em> 1867<\/em> and new acts\/amendments that were passed between 1867 and 1982. In the Constitution Act, <\/em>1867<\/em>, powers to pass laws in Canada were divided such that the provinces were given jurisdiction over some areas (generally, areas that are of local concern) and the federal government was given the power to pass laws in other areas (generally, areas that are of national concern). Importantly, this is a true division of powers. It is not the case that power over all important areas was given to one level of government and the other level was given everything else (residual power). This means that if the federal government attempts to pass a law in an area that is the exclusive domain of the provinces, the federal law will be struck down as \u201cultra vires\u201d\u2014outside the jurisdiction of the body that passed the law. Similarly, if a provincial government tries to pass a law in an area that is in the jurisdiction of the federal government, it will be struck down.\r\n\r\n<\/div>\r\n

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    \r\n

    INSIGHT 2.1. Division of Powers: Provincial Jurisdiction over Mental Health Law<\/strong><\/p>\r\n\r\n<\/header>\r\n

    Section 92 of the Constitution Act, 1867, gives jurisdiction over metal health law to the provinces.Under this authority, each province has enacted mental health legislation, including a provision for treating involuntarily committed patients.<\/div>\r\n
    In British Columbia, the legislation specifically allows psychiatric institutions to treat involuntarily committed patients against their will. In Ontario, involuntarily committed patients may not be treated against their will except in very particular circumstances. In New Brunswick, involuntarily committed patients may refuse to be treated, but that decision may be overruled by a review board. In Quebec, a judicial order is required to treat involuntarily committed persons who refused treatment, and the order will only be given in the most extraordinary circumstances.<\/div>\r\n<\/div>\r\n

    This division of powers is described in sections 91 and 92 of the Constitution <\/em>Act,<\/em> 1867<\/em>. Section 91 enumerates federal powers and section 92 enumerates provincial powers. Each enumerated item, or power, is called a \u201chead of power.\u201d Understanding this is important because it explains why some laws are written in federal legislation and other laws are written in provincial legislation. It also explains why some laws are common across Canada while others are unique to provinces. For now, you should know that jurisdiction over the enactment of criminal law resides with the federal government (i.e., in section 91 of the Constitution<\/em> Act,<\/em> 1867<\/em>), while jurisdiction over prosecuting and enforcing criminal law (e.g., police, provincial corrections, etc.) as well as most areas of civil law, including personal injury law and mental health law, are in provincial jurisdiction (i.e., in section 92 of the Constitution <\/em>Act,<\/em> 1867<\/em>; see Insight 2.1).<\/p>\r\n\r\n

    2.2 Sources of Law<\/h2>\r\n

    In this section we describe four sources of law: the Canadian Charter <\/em>of <\/em>Rights <\/em>and <\/em>Freedoms<\/em>, legislation (either federal or provincial), common law, and administrative law.<\/p>\r\n\r\n

    \r\n

    Learning Objectives 2.3<\/p>\r\n\r\n<\/header>\r\n

    Describe the four sources of law in Canada.<\/p>\r\n\r\n<\/div>\r\n

    The Canadian Charter of Rights and Freedoms<\/h3>\r\n

    The Constitution<\/em> Act,<\/em> 1982<\/em>, including the Canadian<\/em> Charter<\/em> of<\/em> Rights<\/em> and<\/em> Freedoms <\/em>(the Charter<\/em>), is the supreme law of Canada and, generally, cannot be overridden by statute law or common law. There are a few exceptions: the Charter <\/em>can be overridden when an infringement can be demonstrably justified in a free and democratic society or if the notwithstanding clause is invoked. As with all written law, the Charter<\/em> requires interpretation by the judiciary. For example, section 11(b) of the Charter<\/em> provides that a person charged with an offence has the right to be tried within a reasonable time. What is an offence? What is a reasonable period of time? These concepts must be interpreted by judges. Interpretable language was purposely used in the text of the Charter<\/em>, in part, to reduce the likelihood that the Charter<\/em> would become stagnant, reflecting values and principles applicable in 1982 but, perhaps, not in 1999 or 2014. We will discuss the Charter<\/em> more thoroughly later in this chapter.<\/p>\r\n\r\n

    Legislation<\/h3>\r\n

    Although Canada is a common-law country, much of our law is written in legislation (federal or provincial). This does not mean that the law, as written in legislation, is clear and easily applied; most legislation cannot be applied without further interpretation, typically by judges. This is not an accident or the result of sloppy writing. It is impossible to anticipate and articulate each circumstance that may trigger the legislation or to give explicit directions on how to proceed, so the purpose of legislation is to provide guidelines that should be particular enough to allow a judge to apply them reasonably to a set of facts.<\/p>\r\n\r\n

    Common Law<\/h3>\r\n

    Law that derives from previously decided cases is called common law. Generally, you will not find these laws written in legislation. Rather, their definitions and applications can be found in previously decided cases (see Insight 2.2).<\/p>\r\n\r\n

    Administrative Law<\/h3>\r\n

    The federal or provincial governments may delegate powers to administrative tribunals to interpret and enforce laws in some areas. The actual laws are passed by the body with authority to do so (that is, the federal or provincial government), but the power to interpret and enforce the laws may be conferred on administrative bodies through legislation. This legislation outlines the boundaries of the administrative tribunal\u2019s authority. Importantly, administrative tribunals are bound by applicable constitutional law, statute law, and common law, just like any other body with authority to compel behaviour and pass sanctions. Administrative tribunals deal with issues such as allegations of breaches of human rights, employment standards, immigration, parole, and some mental health issues.<\/p>\r\n\r\n<\/div>\r\n

    \r\n

    INSIGHT 2.2. Hearsay: An Example of Common Law<\/strong><\/p>\r\n\r\n<\/header>\r\n

    Any out-of-court statement that is tendered to prove the truth of its contents is hearsay. There are two essential elements to this de\ufb01nition. First, the speaker is not in court and the statement is to be reported by someone who only heard it. Second, the side wanting to present the statement would like the trier of fact to accept it as true. For instance, you are asked to take the stand to say that Helen called you Friday to say \u201cIt\u2019s raining in England.\u201d If your evidence is being tendered to prove that it was raining in England, it is hearsay. If your evidence is being tendered to prove that you spoke to Helen on Friday and she was alive then, it is not hearsay and will not trigger the hearsay rules. Hearsay is presumptively inadmissible because, absent evidence to the contrary, it is considered to be unreliable. To be presumptively inadmissible means that unless the evidence can pass a certain test, it will not be allowed. The test that must be passed to admit hearsay evidence is that the hearsay evidence is both necessary and reliable (R. <\/em>v. <\/em>Khan<\/em>, 1990).<\/div>\r\n<\/div>\r\n \r\n
    \r\n

    2.3 Canadian Court Structure<\/h2>\r\n
    \r\n

    Learning<\/strong> Objective<\/strong> 2.4<\/strong><\/p>\r\n\r\n<\/header>\r\n

    \r\n

    Describe the levels within the Canadian court structure.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n \r\n

    In this section we discuss four levels of courts, starting with the lowest level of court and moving to the highest level\u2014provincial courts, provincial superior courts, provincial courts of appeal, and the Supreme Court of Canada.1 As can be seen in Figure 2.1, this is not a comprehensive discussion of the Canadian court system; however, it outlines the court levels that are most relevant to our discussion. We also introduce the doctrine of stare<\/strong> decisis<\/strong> (Latin for \u201cLet the decision stand\u201d). This doctrine states that judges are bound to decide like cases alike. Not surprisingly, there can be a lot of debate about whether a particular case is \u201clike\u201d a previous case, but that is beyond the scope of this discussion. Let\u2019s imagine for now that \u201clike cases\u201d can be identified.<\/p>\r\n

    stare decisis <\/strong>a term meaning \u201clet the decision stand.\u201d The doctrine of stare decisis states that judges are bound to decide like cases alike.<\/p>\r\n

    The doctrine of stare decisis is important because it provides a measure of predictability and certainty in the law. If you know the outcome of a previous case and it is like a pending case, you can predict, with some degree of certainty, the outcome of the pending case. Importantly, not all court decisions are binding on all other courts. If that were the case there would be no functional appeal process (the appeal court would be bound by the decision of the trial court) and the law would be stagnant (it could not change a bad law or respond to changing social values).<\/p>\r\n\r\n

    Provincial Courts<\/h3>\r\n

    Provincial courts are trial courts presided over by provincially appointed judges. They hear most criminal cases, about half of the family cases (e.g., those involving neglected\/abused children, adoption, and division of property), almost all youth cases, and civil cases that involve small amounts of money. When a trial is heard in a provincial court, there is no option to be tried by a jury. Decisions are not binding on other provincial court judges or on any other court. Although not binding, decisions of other judges at the same court level are persuasive, and like cases should be decided alike unless compelling arguments to do otherwise are accepted. Note that in this chapter, \u201cprovinces\u201d refers to \u201cterritories\u201d also and \u201cprovincial\u201d also refers to \u201cterritorial.<\/p>\r\n\r\n

    Supreme Court of Canada<\/h3>\r\n\"Outline\r\n

    Figure 2.1 <\/strong>Outline of Canada\u2019s court system<\/span><\/p>\r\n

    Note: Northwest Territories and Yukon have the same court structure as each of the provinces but the courts are called territorial courts rather than provincial courts. In Nunavut, there is no territorial court; matters that would normally be heard at this level are heard by the Nunavut Court of Justice, which is a superior court. The Nunavut Court of Justice combines the power of the superior trial court and the territorial court so that the same judge can hear all cases that arise in the territory. Source: Justice Canada, 2013, www.justice. gc.ca\/eng\/csj-sjc\/ccs-ajc\/page3.html. Reproduced with permission of the Minister of Public Works and Government Services Canada, 2013.<\/em><\/span><\/p>\r\n\r\n

    Provincial Superior Courts<\/h3>\r\n

    Provincial superior courts are trial courts presided over by federally appointed justices. They hear some criminal and civil cases, applications for divorce, and appeals from provincial courts on matters of small claims, family cases, and less serious criminal matters (e.g., summary convictions, which are defined in the \u201cCriminal Offences\u201d section).<\/p>\r\n

    For cases heard in provincial superior court, accused persons may elect trial by judge alone or trial by judge and jury if they may be subject to a prison term of five years or more. Decisions are binding on provincial courts in that province and are persuasive for other superior court judges in the same province as well as for courts in other provinces.<\/p>\r\n\r\n

    Provincial Courts of Appeal<\/h3>\r\n

    Provincial courts of appeal hear civil and criminal appeals. They are appeal courts, not a trial courts. That is, they do not hear from witnesses, and, ordinarily, evidence that was not presented at trial cannot be raised on appeal. These courts are presided over by federally appointed justices in groups (panels) of three or five justices. The final decision of the court is the judgment of the majority; a unanimous decision is not needed. Parties who wish to appeal to the provincial court of appeal must apply to do so. The court may agree or decline to hear the appeal. This is not a decision on the merits of the case. Instead, it is the initial decision as to whether an appeal will be heard. The Crown or the defence can apply to appeal a sentence. The Crown may apply to appeal a verdict (the Crown would only apply to appeal an acquittal, of course) on a question of law. The accused may apply to appeal the verdict (the accused would only apply to appeal a conviction, of course) on a question of law, fact, or mixed law and fact.<\/p>\r\n

    Note that in Canada the Crown can sometimes apply to appeal an acquittal. Some of you will recall the O. J. Simpson murder trial. Many Americans thought Simpson was guilty of murdering his ex-wife and her boyfriend, but he was acquitted at trial. When the acquittal was announced, all criminal proceedings were complete because, in the United States, the prosecution cannot appeal an acquittal. In Canada, as long as there is an appealable question of law, the Crown can apply to appeal an acquittal.<\/p>\r\n

    What are questions of law, fact, and mixed law and fact? This is best answered with an example. Suppose it is a crime to be too tall. A question of law is, \u201cHow tall must a person be to be too tall?\u201d Let\u2019s say the answer is six feet tall. A question of fact is, \u201cHow tall is the defendant?\u201d Let\u2019s say in this case the man is five foot eleven. A question of mixed law and fact is, \u201cIs this man so tall that he has committed an offence?\u201d In this example, the answer would be \u201cno.\u201d<\/p>\r\n

    Decisions of provincial courts of appeal are binding on superior courts and provincial courts in that province, and they are persuasive on courts in other provinces that have the same law.<\/p>\r\n\r\n

    Supreme Court of Canada<\/h3>\r\n

    Appeals to the Supreme Court of Canada (Figure 2.2) must have been heard in a provincial court of appeal first. Parties who wish to appeal to the Supreme Court of Canada must first apply to do so; the Court may agree or decline to hear the appeal. On questions of law, either the accused or the Crown may appeal to the Supreme Court of Canada. Appeals are heard by a panel of five, seven, or nine justices. The decision of the court does not have to be unanimous. The majority judgment is binding.<\/p>\r\n

    Decisions of the Supreme Court of Canada are binding on all inferior courts that are subject to the law under appeal. Recall that some laws are under provincial jurisdiction (listed in s. 92 of the Constitution Act<\/em>), so only the provinces that have enacted the same law are bound by a decision of the Supreme Court of Canada that addressed the law.<\/p>\r\n

    For instance, in Starson v.<\/em> Swayze<\/em> (2003) the Supreme Court of Canada held that, in the circumstances and given the law that applied in Ontario at the time, Starson could not be treated for his mental illness against his will. Starson had been accused of uttering death threats. He was involuntarily committed to a forensic psychiatric hospital after he was found not criminally responsible on account of mental disorder. That judgment was not binding in British Columbia, because there is a provision in the BC Mental <\/em>Health <\/em>Act <\/em>that allows for involuntary treatment of involuntarily committed patients. Decisions of the Supreme Court of Canada that relate to federally enacted laws (e.g., criminal law) are binding throughout Canada. The Supreme Court of Canada is not bound by its own decisions. The Court must be able to reverse its own decisions when it is appropriate to do so.<\/p>\r\n

    When you read legal decisions, think about the court level that released the decision. If it is a Supreme Court of Canada decision, it is the law in all jurisdictions bound by that law. A provincial court of appeal decision is binding on trial courts in that province and persuasive on courts in other provinces. If you read a decision from a provincial superior court, generally it is binding on provincial courts in that province and persuasive in provinces bound by that law. For information on reading appeal decisions, see Insight 2.3.<\/p>\r\n\r\n

    \r\n

    INSIGHT 2.3. How to Read an Appeal Decision?<\/strong><\/p>\r\n\r\n<\/header>\r\n

      \r\n \t
    1. First, determine who is bringing the appeal and who is responding to the appeal. In a criminal case, if a person was convicted at trial and appeals the decision to the provincial court of appeal, the convicted person is the appellant <\/strong>and the Crown is the respondent<\/strong>. If the appellant (the convicted person in this example) wins the appeal, and if the Crown appeals to the Supreme Court of Canada, the convicted person becomes the respondent and the Crown becomes the appellant. In a civil court trial, the person bringing the action is the plaintiff and the person responding to the action is the defendant. If the plaintiff loses at trial and appeals the decision to the provincial court of appeal, the original plaintiff becomes the appellant and the original defendant is the respondent. If the trial decision is overturned at the provincial court of appeal, and if that decision is appealed to the Supreme Court of Canada, the appellant at the Supreme Court of Canada is the original defendant and the respondent at the Supreme Court of Canada is the original plaintiff. As you can see, it can be very complicated, so it is best to \ufb01gure out which party is which before you begin to read the decision.<\/li>\r\n \t
    2. Second, read the headnote at the beginning of the case. This is like an abstract, but it is often much longer. Its role is the same: to summarize the case.<\/li>\r\n \t
    3. Third, determine how many judges are sitting on the panel. You will need this information to know which decision is the majority decision and which decision came from the minority. Often, but not always, the majority decision is reported \ufb01rst.<\/li>\r\n \t
    4. Fourth, identify clearly the issues that are the basis of the appeal. The court may split differently on the different issues. Consider an appeal panel with Justices A, B, C, D, and E in a case that involves two issues. On issue 1 (e.g., was there a Charter<\/em> infringement?), the court may be split such that Justices C, D, and E conclude that there was a Charter<\/em> infringement, and Justices A and B conclude that there was not. On issue 2 (e.g., is the infringement demonstrably justi\ufb01ed in a free and democratic society?), Justices D and E may \ufb01nd that it is justi\ufb01ed, and Justice C may \ufb01nd that it is not. Note that in this case, although three justices found a Charter<\/em> infringement, the appeal would fail. To further complicate things, it is not unusual for two justices to come to the same conclusion for different reasons. For instance, a conclusion that the trial judge\u2019s \ufb01nding on credibility is patently unsupportable may be explained by some justices as a consequence of too many inconsistencies and by others as testimony that de\ufb01es logic. If this happens, look for the reasons of the majority; this will be what binds lower courts.<\/li>\r\n<\/ol>\r\n<\/div>\r\n
      \r\n

      Respondent <\/strong>the party responding to an appeal<\/p>\r\nAppellant <\/strong>the party bringing an appeal\r\n\r\n<\/div>\r\n \r\n\r\n<\/div>\r\n

      \r\n
      \r\n


      2.4 The Court Process<\/h2>\r\n<\/div>\r\n
      \r\n

      Learning<\/strong> Objective<\/strong> 2.5<\/strong><\/p>\r\n\r\n<\/header>\r\n

      \r\n

      Compare and contrast the criminal and civil court processes.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

      Most cases that proceed in the criminal courts may also proceed in civil courts if personal loss is involved. Although not required, it is typically true that a case which may proceed both civilly and criminally will go to criminal court first. There are several important distinctions between civil and criminal processes (summarized in Table 2.1). The purpose of criminal law is to deal with the perpetrator, whereas the purpose of civil law is to restore the injured party to the pre-injury state. When a case proceeds criminally, the police investigate the allegation, the Crown brings the charge and prosecutes the case, and the State pays for the prosecution. Contrast this with a case that proceeds civilly, where the plaintiff investigates and hires a lawyer to commence the proceedings and to argue the case in court. (Although, as discussed in Chapter 4, it is becoming more common for people to represent themselves in court.) In both civil and<\/p>\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n
      Table 2.1 <\/strong>The Process of Proceeding Criminally and Civilly<\/td>\r\n<\/tr>\r\n
      \r\n

      <\/p>\r\n<\/td>\r\n

      		\r\n

      Criminal<\/strong><\/span><\/p>\r\n<\/td>\r\n

      		\r\n

      Civil<\/strong><\/span><\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Purpose<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      Deal with the perpetrator<\/p>\r\n<\/td>\r\n

      		\r\n

      Restore the injured party<\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Who investigates?<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      The police<\/p>\r\n<\/td>\r\n

      		\r\n

      An individual<\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Who brings the case to court?<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      The Crown<\/p>\r\n<\/td>\r\n

      		\r\n

      The plaintiff<\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Who pays for the prosecution?<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      The State<\/p>\r\n<\/td>\r\n

      		\r\n

      The plaintiff<\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Who pays for the defence?<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      The defendant<\/p>\r\n<\/td>\r\n

      		\r\n

      The defendant<\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Who must prove the case?<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      The Crown<\/p>\r\n<\/td>\r\n

      		\r\n

      The plaintiff<\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Standard of proof<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      Beyond a reasonable doubt<\/p>\r\n<\/td>\r\n

      		\r\n

      On a balance of probabilities<\/p>\r\n<\/td>\r\n<\/tr>\r\n

      \r\n

      Possible outcome<\/strong><\/p>\r\n<\/td>\r\n

      		\r\n

      Restriction of liberty<\/p>\r\n<\/td>\r\n

      		\r\n

      Monetary award<\/p>\r\n<\/td>\r\n<\/tr>\r\n<\/tbody>\r\n<\/table>\r\n

      criminal proceedings, the defendant is responsible for the costs of the defence. In both processes, the burden is on the Crown (criminal) or the plaintiff (civil) to prove the allegation beyond a reasonable doubt (criminal burden) or on a balance of probabilities (civil burden). If the allegation is proved, the defendant will likely have some restrictions on liberty imposed (criminal) or be required to pay a monetary award (civil).<\/p>\r\n\r\n

      \r\n

      Learning<\/strong> Objective<\/strong> 2.6<\/strong><\/p>\r\n\r\n<\/header>\r\n

      \r\n

      Outline the key elements of the Canadian Charter of Rights and Freedoms<\/em>.<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n

      <\/h2>\r\n

      2.5 The Canadian <\/em>Charter <\/em>of<\/em> Rights <\/em>and<\/em> Freedoms<\/em><\/h2>\r\n

      Besides criminal and civil law, psychologists and other social scientists may also be involved in human rights law. There are two broad sources of human rights protections in Canada: human rights codes and the Canadian<\/em> Charter<\/em> of<\/em> Rights<\/em> and <\/em>Freedoms<\/em>. Two important criteria are considered when determining which law applies: the identity of the alleged discriminator, and the nature of the discrimination. If the alleged discriminator is a government actor who is accused of infringing a fundamental right listed in the Charter<\/em> (e.g., freedom of speech or unreasonable search and seizure), the Canadian<\/em> Charter<\/em> of<\/em> Rights<\/em> and<\/em> Freedoms<\/em> may apply, and the case will likely be heard in a court of law. If the alleged discrimination involves one of the prohibited grounds listed in a human rights act (e.g., disability, race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status), the case may be heard under the federal or a provincial human rights acts. Which one? If the alleged discriminator is under federal jurisdiction (e.g., a bank), the case may be heard under the Canadian<\/em> Human<\/em> Rights<\/em> Act<\/em> by a human rights tribunal. If the alleged discriminator is not under federal jurisdiction (e.g., a condominium association, a private business owner), the case may be heard under the applicable provincial human rights code by a human rights tribunal. Provincial and federal human rights acts are \u201cmere\u201d legislation and can be amended or revoked relatively easily (as can any piece of legislation). The Charter<\/em> is \u201centrenched,\u201d and although it is possible to amend it, the amending formula is very complex and the process has not been undertaken since the Charter <\/em>was enacted in 1982.<\/p>\r\n

      The Canadian<\/em> Charter<\/em> of<\/em> Rights<\/em> and<\/em> Freedoms<\/em>, being part of the Constitution<\/em> Act, <\/em>1982<\/em>, is the supreme law of Canada. Government actors cannot pass legislation that infringes our Charter<\/em> rights, nor can government actors behave in a manner that infringes our Charter<\/em> rights. The Charter <\/em>protects us against unconstitutional actions of government actors. It does not protect us against the actions of non-government actors. So if your landlord discriminates against you, or if your employer discriminates against you (assuming your employer is not a government actor), you do not have a Charter<\/em> argument. Because the Charter<\/em> was intended, in large part, to protect individuals from potential abuses of State power, it is not surprising that much of the Charter<\/em> deals with protection of persons accused of an offence\u2014this is the group against whom the State has the potential to be most oppressive.<\/p>\r\n

      There are two ways that Charter<\/em> rights can be infringed: the law itself may infringe Charter <\/em>rights, or the way the law was applied may infringe Charter <\/em>rights (see Figures 2.3a and 2.3b). If a law is passed that infringes a Charter<\/em> right (e.g., a law that allows the police to search without a warrant), s. 52 of the Charter <\/em>allows a court to do one of three things.<\/p>\r\n

      First, it may strike down the legislation in its entirety. For example, the Supreme Court of Canada struck down the constructive murder provision in the Criminal Code as being contrary to ss. 7 and 11(d) of the Charter<\/em>. Constructive murder meant a person was guilty of culpable murder if that person caused the death of another in the commission of a particular other offence, even if the person did not intend for death to occur. The Court held that it is contrary to both fundamental justice (s. 7) and the right to fair hearing (s. 11(d)) to fail to require the Crown to prove intent to kill (R. <\/em>v. <\/em>Vaillancourt<\/em>, 1987). Second, a court may read down (rewrite\/revise) the part of the legislation that is contrary to a Charter<\/em> right. That may involve striking down or striking out that part of the legislation. For example, if a law is passed that requires police to have a warrant before entering a private residence except if the police suspect pornography has been produced in that location, the courts may strike out the part of the legislation that allows warrantless searches in those circumstances. Third, a court may read in elements that bring the legislation in line with the Charter<\/em>. For example, if a law confers a benefit on single mothers but does not confer the same benefit on single fathers, the court may \u201cread into\u201d the legislation that the benefit is provided to all single parents (to strike it down would be a hardship to single mothers).<\/p>\r\n

      Section 1 of the Charter <\/em>allows legislators to pass a law that is contrary to Charter <\/em>rights if it is a reasonable limit that can be demonstrably justified in a free and democratic society. For example, some of our drinking and driving laws infringe Charter<\/em> rights in that they deny the right to counsel when a person is detained at a roadside check for impaired drivers. However, the objective that the laws are designed to achieve (i.e., reduce the harm that comes from impaired driving) is important and so can support a \u201crelatively minor\u201d Charter<\/em> infringement.<\/p>\r\n\r\n\r\n[caption id=\"attachment_25\" align=\"aligncenter\" width=\"1024\"]\"\" Figure2.3 a & b[\/caption]\r\n

      We just discussed what could happen if a law is passed that infringes a Charter <\/em>right. It is also possible that a law is consistent with the Charter <\/em>but is enforced or applied in a way that infringes a Charter<\/em> right. For example, let\u2019s say you were arrested, placed in a police car, read your right to a lawyer, and then questioned\u2014all in the police car. In this case, the way the police officer administered the law (i.e., the right to counsel upon arrest or detention) was probably an infringement of your Charter<\/em> s. 10 right because you were not given a reasonable opportunity to contact a lawyer. Let\u2019s further assume that while you were in the police car, you said things that implicated you in a crime. Can the incriminating statements be used against you in court? Section 24 of the Charter <\/em>allows the court to do one of two things. It may apply any remedy that is just and appropriate in the circumstances (e.g., stay the proceedings). Or the court may exclude any evidence that was obtained as a result of the Charter<\/em> infringement if, \u201chaving regard to all the circumstances, the admission of it in the proceeding would bring the administration of justice into disrepute\u201d (Charter<\/em> s. 24(2)). As you will learn later in this course, the last part of s. 24 is very important, so we will repeat it: the court may exclude the evidence if \u201chaving regard to all the circumstances, the admission of it in the proceeding would bring the administration of justice into disrepute.\u201d If admission of the evidence would not bring the administration of justice into disrepute, it may be admitted at trial.<\/p>\r\n

      The following are a few more Charter<\/em> sections that you will read about in the following chapters.<\/p>\r\n\r\n