Canada's Trial Courts

Canada's Trial Courts: Two Tiers or One?

EDITED BY PETER H. RUSSELL
Copyright Date: 2007
Pages: 288
https://www.jstor.org/stable/10.3138/9781442684119
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  • Book Info
    Canada's Trial Courts
    Book Description:

    Featuring distinguished contributors from a variety of disciplinary backgrounds,Canada's Trial Courtsoffers a comprehensive and up-to-date examination of an important but neglected issue that ultimately has a profound impact on the quality of justice that Canadians experience.

    eISBN: 978-1-4426-8411-9
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-2)
    Peter H. Russell
  4. Introduction: How We Got Here
    (pp. 3-22)
    PETER H. RUSSELL

    The title of this book poses a question that is not likely to leap to mind when Canadians think about the country’s trial courts. The limited public discussion that goes on about such courts is most often concerned with whether justice was done in specific cases or whether the punishment meted out was too lenient. There is very little interest in or knowledge of the courts themselves: They are simply accepted as part of the institutional fabric of our society.

    And yet backstage, behind the scenes, so to speak, a vigorous debate has been going on about the structure of...

  5. Part One: Emergence of the Issue
    • 1 The Provincial Court and the Criminal Law
      (pp. 25-39)
      MARTIN L. FRIEDLAND

      In 1968 – over a third of a century ago – I traveled across Canada to examine the Magistrates’ Courts, as they were then called. The study was commissioned by the Canadian Committee on Correction – the Ouimet Committee, named after its chair, Quebec Superior Court justice Roger Ouimet.¹ The resulting paper, entitled ‘Magistrates’ Courts: Functioning and Facilities’, was published that year in theCriminal Law Quarterly.

      I painted a depressing picture, stating that the magistrates’ court was ‘the forgotten child of our system of criminal justice.’ ‘For the most part,’ I wrote,

      the lower courts in the larger urban...

    • 2 Trial Court Reorganization in Canada: Alternative Futures
      (pp. 40-56)
      CARL BAAR

      From 1867 until 1965 the typical Provincial Court system had three levels of trial courts. First, there was a Superior Court that combined trial and appellate jurisdiction. The Superior Court was a central trial court whose judges had their chambers and permanent residence in one (or perhaps two) locations and went on circuit to other Provincial Court centres. This was the Superior Court with general and inherent jurisdiction that was contemplated in section 96 of theConstitution Act, 1867. Judges were appointed and paid by the federal government and served during good behaviour. The court and its judges thus inherited...

    • 3 Superior Courts in the Twenty-first Century: A Historical Anachronism?
      (pp. 57-84)
      CHERYL MARIE WEBSTER and ANTHONY N. DOOB

      The system of two-tiered criminal trial courts in Canada has been evolving since its inception with Confederation. Although arguably appropriate to the circumstances in 1867, the distinctions between the Superior and Provincial Courts have become increasingly blurred with the dramatic growth in stature, jurisdiction, competence, and public importance of the latter judicial level. In fact, the cumulative effect of these changes has been described as one of the major court reforms in the last quarter-century.

      This evolution in the role of the Provincial Courts in criminal matters and the apparent functional similarities between the two judicial levels have led several...

    • 4 Constitutional Limitations upon the Allocation of Trial Jurisdiction to the Superior or Provincial Court in Criminal Matters
      (pp. 85-120)
      PATRICK HEALY

      At issue are constitutional constraints upon the creation of a unified criminal court and the allocation of jurisdiction over jury trials to the Provincial Court. The purpose of this article is not to test whether either of these options is desirable or preferable. The aim is solely to ascertain whether Canadian constitutional law imposes limitations that would prevent the creation of a unified criminal court or the allocation of jurisdiction over jury trials to the Provincial Court.¹ Thus this article is focused upon Parliament’s legislative authority to assign jurisdiction over criminal offences to the Superior and Provincial Courts.

      A unified...

  6. Part Two: Contemporary Projects of Trial Court Reform
    • 5 Reform of the Trial Courts in Quebec
      (pp. 123-133)
      HUGUETTE ST-LOUIS

      I am one of those who believe that the courts are not static institutions. On the contrary, they must adapt to the expectations of the system’s users. In an article published in 2000 in theCanadian Bar Review, Judge Gerald Seniuk and Professor Noel Lyon showed that the development of the Provincial Courts raises many problems, not the least of them being the tendency of the system to evolve in a way that no longer fits the constitutional framework.¹ In this context, and in light of concrete examples and the reflections of experts, we must be particularly attentive to this...

    • 6 Trial Court Restructuring: A Court Administrator’s Perspective
      (pp. 134-142)
      MARIAN TYSON

      As the current president¹ of the Association of Canadian Court Administrators (ACCA) and a senior court administrator from the province of Nova Scotia, my comments on trial court restructuring will reflect the practical administrative dimensions of the subject.

      ACCA has on its board a broad range of people from across the country, including people who are senior in court administration in each of the provincial and territorial jurisdictions. As a group and individually, we have a very keen interest in court reform. When government makes a decision respecting a particular reform, to a large extent it is our staff and...

    • 7 Trial Court Unification in Nunavut
      (pp. 143-151)
      NORA SANDERS

      As the deputy minister of justice for Nunavut I felt it was appropriate to begin my presentation with a few words in Inuktitut to help you understand the context of court reform in Nunavut. Those were my most careful and practised words of Inuktitut, and I think that they would be understandable to an Inuk whose first language was Inuktitut – but just barely. I am reminded of the term ‘Diefenbaker French,’ and I think you can understand that my Inuktitut is somewhere on that level. Indeed, that is the case with pretty well all of theqallunaaqor non-Inuit...

    • 8 Reforming Alberta’s Trial Courts
      (pp. 152-160)
      DAVID HANCOCK

      Let me begin by acknowledging that tradition is, and always will remain, an important part of the justice system. Change should not be pursued simply for change’s sake. As we consider structural reform we are not looking to discard tradition, but rather considering ways to enhance our justice system to ensure that it meets the needs of the people it is intended to serve, the public.

      In 1999 the Alberta government sought the advice and direction of the public on a wide range of justice issues during our government’s first ever summit conference on justice. The public consultation process is...

  7. Part Three: Competing Visions
    • 9 The House of Justice: A Single Trial Court
      (pp. 163-180)
      GERALD T.G. SENIUK and JOHN BORROWS

      The purpose of this article is to outline for discussion purposes the concept of a House of Justice: a single one-stop Superior trial court with various ‘rooms’ with options where citizens can seek individual justice, dispute resolution, reconciliation and community healing in an efficient and accessible forum. Such a House of Justice would institutionally knit our country together by both implementing the vision of the judicature provisions at the time of Confederation¹ and strengthening the ability of the provinces and Aboriginal communities to pursue justice according to their communal values. This concept does not envision a merger of the Provincial...

    • 10 Report of the Ontario Superior Court of Justice
      (pp. 181-214)

      At the Opening of Courts in January of 1997, Chief Justice Patrick LeSage of the Ontario Court, General Division, noted: ‘We are not disposing of cases quickly enough … Trials are taking much too long. We must find some way to make trials more efficient.’

      In October of 1997, the Criminal Justice Review was established to study the operation of the criminal justice system in Ontario and recommend measures to combat delay and inefficiency. The review was a combined initiative of the judiciary (Chief Justice LeSage and Chief Judge Linden), the attorney general (the Honourable Charles Harnick), and the Ontario...

  8. Part Four: Comparative Perspectives
    • 11 Organizational Change in California’s Court System: Unification of the Trial Courts
      (pp. 217-233)
      J. CLARK KELSO

      In the United States, the decade of the 1990s has been a Golden Age of Judicial Administration. We have seen courts around the country leading change efforts that reach to the very core and foundation of the judicial branch and the judicial function.

      We have quite a few national organizations to thank for inspiring many of these developments. Just a few that come to mind are the National Center for State Courts, the State Justice Institute, the Conference of Chief Justices, the Conference of State Court Administrators, and the National Association of Court Managers. These organizations provided a lot of...

    • 12 Trial Court Integration in England
      (pp. 234-264)
      I.R. SCOTT

      In this chapter I will examine trial court unification or integration from an English perspective. I am sure you all know that, in England and Wales (hereinafter ‘England’), we do not have unified trial courts but we have a two-tiered trial court system, both on the civil and criminal sides. I have not tried to stick to the word ‘unification’ because it is not a word that has been used consistently in England in this context. Often the words ‘amalgamation,’ ‘merger’ and ‘integration’ have been preferred.

      In what follows, after some preliminary observations, I deal first with the civil side...

  9. Conclusion: The Road Ahead
    (pp. 265-278)
    PETER H. RUSSELL

    If there is one thing on which all the contributors to this volume agree, it is surely the extraordinary diversity of court structures in this country. Readers too must be struck by the variety of ways in which Canada’s provinces and territories have organized their courts. This diversity has developed despite the fact that all of these jurisdictions are subject to the same Constitution. It would seem hard to contend that Canada’s Constitution dictates any particular structure for its primary courts.

    And yet a difficulty of a constitutional nature does seem to have emerged. The judges of the Superior Courts...

  10. Contributors
    (pp. 279-283)