Here is the application of the Criminal law in Canada and the structure of our court system !
Canada's Court System
Unlike Parliament, which has jurisdiction over criminal law matters through s. 91(27) of the Constitution Act, 1867, the provinces have no direct jurisdiction in relation to the criminal law on prostitution within each province. However, some of the provincial powers laid out in s. 92 of the Constitution Act provide scope for dealing with prostitution without any need to encroach on the federal criminal jurisdiction.
Exclusive Powers of Provincial Legislatures
s. 92(13) Property and Civil Rights in the Province
(14) The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
(15) The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section.
(16) Generally all Matters of a merely local or private nature in the Province.
Courts also sometimes recognize a legitimate overlap between federal and provincial criminal jurisdiction, thus validating provincial legislation that deals with criminal issues in particular situations.(39) Essentially, legislation that merely regulates morality and criminal conduct may be left in provincial hands, but legislation that creates an actual prohibition akin to criminal law must fall under federal jurisdiction. The harsher the penalty becomes, the more such provincial legislation would trespass on federal jurisdiction.(40)
Provinces have attempted to tackle the prostitution question from a number of angles in recent years, most often through legislation on highways and traffic, proceeds of crime, community safety, and child protection. In the mid-1980s, however, before many such measures were implemented, some provinces also tried using injunctions to deal with prostitution.
Injunctions against public nuisances are one way for a province to try tackling prostitution without conflicting with criminal law. The Attorney General, as the guardian of public interest, may bring an injunction against a public nuisance in order to restrict prostitutes importuning pedestrians within a specified area.(41)
In British Columbia (Attorney General) v. Couillard,(42) the British Columbia Attorney General applied for an injunction to restrain prostitution-related activity in the West End of Vancouver as a common law public nuisance. The BC Supreme Court granted an interim injunction that forbade prostitutes from publicly offering or appearing to offer themselves, directly or indirectly, for the purposes of prostitution in the West End. The injunction also restrained other activities in relation to trespass and disturbance of the peace by prostitutes. However, this injunction was ultimately rescinded by request of the Attorney General, and because of an amendment to the Criminal Code prostitution law enacted in 1985 a permanent injunction was never granted.(43)
In Nova Scotia v. Beaver et al.,(44) the Nova Scotia Attorney General applied for an injunction to restrain the public nuisance occasioned by prostitutes in downtown Halifax. In this case, the Nova Scotia Court of Appeal refused the application on the basis that the province was trying to use civil procedure to control a criminal matter, which came under federal jurisdiction.
Such injunctions may not be a good long-term solution for provinces, particularly given the mixed response from the courts and difficulties of enforcement.(45) The most likely effect of injunctions in such situations is that the prostitutes will simply move into another neighbourhood. After Couillard, the targeted prostitutes moved from the commercial district into a residential and school district.
From a legal perspective, the Nova Scotia Court of Appeal in Beaver stated that it is up to the trial judge’s discretion whether an injunction of this kind should be granted. The court must consider whether the injunction “is really necessary in light of other procedures available to accomplish the same end. [The judge] should consider, as well, the damages of eliminating criminal conduct without the usual safeguards of criminal procedure available to an accused … . Only in very exceptional cases where by reason of lack of time or otherwise no other suitable remedy is available should such an injunction be granted to prevent the commission of a crime.”(46) Certainly, using equity as a supplement to criminal law is somewhat problematic, although it may be easier to grant similar injunctions in cases like Couillard, where the issue is interpreted in the property law context as a form of zoning to protect property interests, rather than as an attempt to overlap with federal jurisdiction over criminal matters.(47)
How the Courts are Organized
There are basically four levels of court in Canada. First there are provincial/territorial courts, which handle the great majority of cases that come into the system. Second are the provincial/territorial superior courts. These courts deal with more serious crimes and also take appeals from provincial/territorial court judgments. On the same level, but responsible for different issues, is the Federal Court. At the next level are the provincial/territorial courts of appeal and the Federal Court of Appeal, while the highest level is occupied by the Supreme Court of Canada. (See Figure 1.)
Each province and territory, with the exception of Nunavut, has a provincial/territorial court, and these courts hear cases involving either federal or provincial/territorial laws. (In Nunavut, there is no territorial court – matters that would normally be heard at that level are heard by the Nunavut Court of Justice, which is a superior court.) The names and divisions of these courts may vary from place to place, but their role is the same. Provincial/territorial courts deal with most criminal offences, family law matters (except divorce), young persons in conflict with the law (from 12 to 17 years old), traffic violations, provincial/territorial regulatory offences, and claims involving money, up to a certain amount (set by the jurisdiction in question). Private disputes involving limited sums of money may also be dealt with at this level in Small Claims courts. In addition, all preliminary inquiries – hearings to determine whether there is enough evidence to justify a full trial in serious criminal cases – take place before the provincial/territorial courts.
A number of courts at this level are dedicated exclusively to particular types of offences or groups of offenders. One example is the Drug Treatment Court (DTC) program, which began in Toronto in 1998, followed over several years by Vancouver, Edmonton, Regina, Winnipeg, and Ottawa. The object of the DTCs is to address the needs of non-violent offenders who are charged with criminal offences that were motivated by their addiction. Those who qualify are offered an intensive combination of judicial supervision and treatment for their dependence, drawing on a range of community support services.
Some provinces and territories (such as Ontario, Manitoba, Alberta and the Yukon) have established Domestic Violence Courts in order to improve the response of the justice system to incidents of spousal abuse by decreasing court processing time; increasing conviction rates; providing a focal point for programs and services for victims and offenders; and, in some cases, allowing for the specialization of police, Crown prosecutors and the judiciary in domestic violence matters.
Provincial/Territorial Superior Courts
Each province and territory has superior courts. These courts are known by various names, including Superior Court of Justice, Supreme Court (not to be confused with the Supreme Court of Canada), and Court of Queen's Bench. But while the names may differ, the court system is essentially the same across the country, with the exception, again, of Nunavut, where the Nunavut Court of Justice deals with both territorial and superior court matters.
The superior courts have "inherent jurisdiction," which means that they can hear cases in any area except those that are specifically limited to another level of court. The superior courts try the most serious criminal and civil cases, including divorce cases and cases that involve large amounts of money (the minimum is set by the province or territory in question).
In most provinces and territories, the superior court has special divisions, such as the family division. Some have established specialized family courts at the superior court level to deal exclusively with certain family law matters, including divorce and property claims. The superior courts also act as a court of first appeal for the underlying court system that provinces and territories maintain.
Although superior courts are administered by the provinces and territories, the judges are appointed and paid by the federal government.
Courts Of Appeal
Each province and territory has a court of appeal or appellate division that hears appeals from decisions of the superior courts and provincial/territorial courts. The number of judges on these courts may vary from one jurisdiction to another, but a court of appeal usually sits as a panel of three. The courts of appeal also hear constitutional questions that may be raised in appeals involving individuals, governments, or governmental agencies.
The Federal Courts
The Federal Court and Federal Court of Appeal are essentially superior courts with civil jurisdiction. However, since the Courts were created by an Act of Parliament, they can only deal with matters specified in federal statutes (laws). In contrast, provincial and territorial superior courts have jurisdiction in all matters except those specifically excluded by a statute.
The Federal Court is the trial-level court; appeals from it are heard by the Federal Court of Appeal. While based in Ottawa, the judges of both Courts conduct hearings across the country. The Courts’ jurisdiction includes interprovincial and federal-provincial disputes, intellectual property proceedings (e.g. copyright), citizenship appeals, Competition Act cases, and cases involving Crown corporations or departments of the Government of Canada. As well, only these Courts have jurisdiction to review decisions, orders and other administrative actions of federal boards, commissions and tribunals; these bodies may refer any question of law, jurisdiction or practice to one of the Courts at any stage of a proceeding.
For certain matters, such as maritime law, a case may be brought either before the Federal Court or Federal Court of Appeal, or before a provincial or territorial superior court. In this respect, the Federal Court and the Federal Court of Appeal share jurisdiction with the superior courts.
Specialized Federal Courts
Trial by Jury
Under the Canadian Charter of Rights and Freedoms, individuals accused of the most serious criminal offences generally have the right to choose to be tried by a jury or by a judge alone. A jury is a group of people, chosen from the community, who assess the facts of a case after a judge explains the law to them. They then make a decision based on their assessment. Sentencing, however, is left to the judge. Trial by jury is also available in some civil litigation, but is rarely used.
The Supreme Court of Canada
The Supreme Court of Canada is the final court of appeal from all other Canadian courts. The Supreme Court has jurisdiction over disputes in all areas of the law, including constitutional law, administrative law, criminal law and civil law.
The Court consists of a Chief Justice and eight other judges, all appointed by the federal government. The Supreme Court Act requires that at least three judges must come from Quebec. Traditionally, of the other six judges, three come from Ontario, two from western Canada, and one from the Atlantic provinces. The Supreme Court sits in Ottawa for three sessions a year – winter, spring and fall.
Before a case can reach the Supreme Court of Canada, it must have used up all available appeals at other levels of court. Even then, the Court must grant permission or "leave" to appeal before it will hear the case. Leave applications are usually made in writing and reviewed by three members of the Court, who then grant or deny the request without providing reasons for the decision. Leave to appeal is not given routinely – it is granted only if the case involves a question of public importance; if it raises an important issue of law or mixed law and fact; or if the matter is, for any other reason, significant enough to be considered by the country’s Supreme Court.
In certain situations, however, the right to appeal is automatic. For instance, no leave is required in criminal cases where a judge on the panel of a court of appeal has dissented on how the law should be interpreted. Similarly, where a court of appeal has found someone guilty who had been acquitted at the original trial, that person automatically has the right to appeal to the Supreme Court.
The Supreme Court of Canada also plays a special role as adviser to the federal government. The government may ask the Court to consider questions on any important matter of law or fact, especially concerning interpretation of the Constitution. It may also be asked questions on the interpretation of federal or provincial/territorial legislation or the powers of Parliament or the legislatures. (Provincial and territorial courts of appeal may also be asked to hear references from their respective governments.)
The Nunavut Court of Justice
When the territory of Nunavut was established in 1999, a new kind of court in Canada was created as well. 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
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