Report on Judicial Systems in the Americas

Report on Judicial Systems in the Americas 2006-2007 119 CANADA 1 I. General Information Canada is a federal, democratic state and constitutional monarchy that is divided into 10 provinces and three territories. It is the largest country in the Americas and second largest in the world, with a total surface area of 9,985,000 km 2. In October 2006 Canada s population stood at 32,730,213; 38.8% of its inhabitants live in the province of Ontario and 23.5% in Quebec. In 2005, an estimated 80% of the population lived in urban areas. 2 In 2006 population age group distribution was as follows: 17.3% were in the 0-14 age group; 27.3% between 15 and 34; 23.7% between 35 and 49; 18.5% between 50 and 64; and 13.2% of the population was 65 and older. The 2001 Census showed that 976,305 people belonged to aboriginal groups in Canada. Canada occupies sixth place in the Human Development Index, with the highest rating in all of America. 3 Unemployment stood at 6.2% 4 in January 2007. The country s GDP was approximately US$1,052 Billion 5 in 2005 and per capita GDP for the same year stood at US$32,600, almost 50% higher than in 2000. 6 II. Judicial System Highlights Canada s legal system is based on the English common law tradition, except in the Province of Québec, where the civil (but not criminal) code is based heavily on the French tradition. In 2004-2005 a total of 755,302 cases were filed before the courts in Canada, an 11% drop over the number filed in the 2000-2001 period. Canada showed the largest increase in online access to information about the courts, improving by 13.6% between 2004 and 2006 and moving from sixth to third place on JSCA s ranking. In 2007-2008 the Department of Justice will invest approximately US$784 million in programs to improve justice in different areas. 7 III. Institutions 1. Overall Structure and Operation of the Judicial System 8 Canada has two justice systems, one federal and the other provincial or territorial. The federal system is composed of the Federal Court of Appeal, the Federal Court and the Federal Administrative Tribunals. The Federal Court of Appeal hears cases in the second instance after the Federal Court has ruled on issues under the purview of federal law. The Federal Administrative Tribunals do not form part of the court system but are supervised by them. There are two types of specialized federal courts: the Tax Court and the Military Courts or Court Martial. Regarding the judicial system in the provinces and territories, though their names and divisions vary, each province and territory has its own Provincial/Territorial Courts (except Nunavut), Provincial/Territorial Superior Courts and Courts of Appeal. As in the federal system, there are Provincial Administrative Tribunals in both provinces and territories. The highest level of the justice system is the Supreme Court of Canada, which is the final court of appeal for both federal and provincial systems. 2. Judicial Branch 2.1. Institutional Structure 9 2.1.1. Supreme Court of Canada The Supreme Court of Canada is comprised of a Chief Justice and eight justices, three of whom must come from Québec. All justices are appointed by the federal government. This Court 1 This report is mainly based on information submitted by the Canadian Bar Association. Official websites of government institutions and multilateral and international organizations were also used. Additionally, reports developed by JSCA were consulted.

120 Canada has jurisdiction over disputes in all areas of the law constitutional, administrative, criminal and civil and holds session three times a year in Ottawa. Once all other appeals have been exhausted, a case can be presented to the Supreme Court, which must grant permission or right of appeal before hearing the case. Permission is only granted for cases that involve matters of public interest or those that merit the Court s consideration. In some cases, however, appeal to the Supreme Court is granted automatically. This may happen in criminal cases where a Court of Appeal judge does not agree with an interpretation of the law, or when an individual is found innocent in the first instance but declared guilty on appeal. Though it is independent of other government branches, the Supreme Court plays a special role as advisor to the federal government, which may ask the Court to consider issues related to interpretation of the laws. 2.1.2. Federal Court of Appeal and Federal Court These courts sit in Ottawa but also hold hearings in several cities across the country. The Federal Court of Appeal hears appeals originating in the Federal Court. Federal law gives these courts jurisdiction over inter-provincial or federal versus provincial disputes, intellectual property rights, citizenry, and cases involving government departments. Maritime issues are handled by the Provincial/ Territorial Superior Courts. 2.1.3. Tax Court of Canada Created in 1983, this court hears federal tax disputes between taxpayers and the federal government. It sits in Ottawa but has regional offices in Montréal, Toronto, and Vancouver. 2.1.4. Military Courts or Courts Martial These courts have jurisdiction in cases under the Code of Service Discipline, which is applicable to members of the Canadian armed forces and for civilians accompanying the forces in their activities. The Court Martial Appeal Court, comprised of three judges, hears appeals of decisions handed down by the Military Courts. Its functions and authority are comparable to those of the Provincial/Territorial Superior Courts. Its judges are appointed by the judges of the Federal Court and other superior courts. 2.1.5. Federal Administrative Tribunals Disputes regarding administrative matters are resolved out of the court system by administrative tribunals or boards. They hear matters related to unemployment insurance, refugee and human rights claims. Proceedings for these cases are usually less formal than those carried out before the regular courts, which also supervise the administrative tribunals. 2.1.6. Provincial and Territorial System Each province and territory, with the exception of Nunavut, has express jurisdiction over its justice administration through a Provincial/ Territorial Court. Though their names and divisions may vary, their role is the same: to hear cases involving federal or provincial laws except where federal law places them under the purview of the federal tribunes. These courts deal with most criminal offenses, family issues and an array of other, usually less serious matters. Some provincial courts only hear cases on specific types of matters, such as drugs or young offenders. Provincial and Territorial Superior Courts have also been established in each geographic area. As mentioned, their names may vary: Superior Court of Justice, Supreme Court (not to be confused with the Supreme Court of Canada), and the Court of Queen s Bench. These courts try the most serious civil and criminal cases and serve as second instance courts in matters tried before provincial and territorial courts. Parliament has exclusive authority over the appointment and remuneration of superior provincial court judges. Administrative Tribunals have the same attributes as their federal counterparts and hear the same types of matters but at the provincial or territorial level. 2.2. Government and Management 2.2.1. The Courts Administrative Service 10 This service is responsible for managing the four courts that comprise the federal justice system. Its Chief Administrator has the following two attributes:

Report on Judicial Systems in the Americas 2006-2007 121 To manage all court services, including installations, libraries, corporate, and human resource services. To prepare the budget of the four courts in collaboration with their respective Chief Justices. 2.2.2. Government and Management of the Supreme Court of Canada 11 The Registrar of this court is subordinate to its Chief Justice and is in charge of administrative tasks and according to regulations has quasi jurisdictional powers that include the appointment and supervision of personnel, administration of the library and register, and the publication of reports. In turn, the Administrator is in charge of processing and filing documents submitted by parties during judicial proceedings and assisting the Court during scheduled sessions. The Corporate Services Sector affords administrative and operational support to judges and personnel of the Court. It is responsible for security, finances, human resources management, and telecommunications, among other duties. Lastly, the Executive Services Branch provides support to judges of various chambers and assists visitors and special guests. 2.3. Transparency, Accountability, and Access to Information Surveys by Statistics Canada s, the national statistical agency, provide information on human resources and operating costs of the Canadian court system at the provincial, territorial and federal level, including the Supreme Court of Canada, the Tax Court of Canada and the Office of the Commissioner for Federal Judicial Affairs, which is in charge of federal legal matters. 12 The generation of this information is part of the National Justice Statistics Initiative. Since 1981, the Deputy Ministers, responsible for justice administration at the federal, provincial, and territorial level, have worked with the head of this service on this project, which is designed to provide information on civil and criminal justice in Canada. Though this responsibility is shared among the various federal, provincial, and territorial departments, the Canadian statistics system is managed by Statistics Canada. In the area of access to information, according to the second version of JSCA s Index of Online Access to Judicial Information published in 2006, Canada ranks third among the 34 OAS member states (after the United States and Costa Rica) in access to data on its courts, achieving a rating of 74.6%. It is also the country with the greatest variation in its rating since 2004, when it ranked sixth with an index of 61%. Canada also showed a significant improvement in its overall online access index for 2004-2006, moving from 10 th to sixth place, or from an index of 40.6% to 57.5%. 13 2.4. Legal Aid Canada has a strong legal aid system managed by its provinces and territories. 14 2.5. Budget In 2002-2003 Canadian courts had a budget of CAN$1.151 billion (about US$979 million), which was almost 10% higher than in 2000-2001. 15 Table 1 Court Budget (CAN $ b) 2002/2003 2000/2001 1.151 1.048 In turn, the 2005-2006 Supreme Court budget totaled CAN$ 27.2 million (US$ 23.13 million). 16 2.6. Human Resources At present, the Supreme Court of Canada has 191 employees. 17 Table 2 Employees of the Supreme Court of Canada 2005/2006 2004/2005 2003/2004 191 179 173 Source: Supreme Court of Canada.

122 Canada 2.7. Case Movement 2.7.1. Criminal Cases 18 The Adult Criminal Court Survey compiles annual data of Canadian courts located in 10 provinces and territories (excluding Manitoba, the Northwest Territories, and Nunavut). These figures cover approximately 90% of the total caseload nationwide. Defendants were found guilty in 58% of cases, which represents a slight decrease from the 2001-2002 conviction rate of 60%. Three percent of defendants were acquitted and 36% of cases were stayed. The results in the remainder of cases were categorized as other. An average of 35% of convictions resulted in a prison sentence. In the provinces and territories, however, the rate ranges from 58% in Prince Edward Island to 24% in Saskatchewan. The data show that this rate has remained stable over the previous decade, though the percentage of guilty verdicts involving sentences with probation has risen while that involving fines has fallen. 2.7.2. Supreme Court of Canada In 2005, a total of 560 cases were filed in this court. 19 As shown in Graph 1, the case volume has remained stable over the last ten years. 2.7.3. Case Duration The average length of cases tried before the Supreme Court of Canada increased in the late 1990s. However, average duration of cases in 2005 was 24% lower than in 2000. Years Table 3 Case Duration before the Supreme Court of Canada 20 (In months) Duration 2005 6 2004 5.7 2003 6.5 2002 7.8 2001 7.1 2000 7.9 1999 7.2 1998 6.8 1997 5.7 1996 6.4 1995 5.8 Source: Supreme Court of Canada. 3. Federal Prosecution Service 3.1. Institutional Structure This agency is responsible for federal proceedings or accusations. Its members prosecute crimes on behalf of the Attorney General, excluding violations of the Criminal Code, which are tried at the provincial level. These cases fall into two main categories: drugrelated charges, which make up the highest percentage of cases, and regulatory matters, which are conducted by federal departments and agencies. Graph 1 Evolution of Cases Filed in the Supreme Court of Canada Source: Supreme Court of Canada.

Report on Judicial Systems in the Americas 2006-2007 123 Additionally, the FPS hears extradition matters, receives foreign requests for legal assistance, handles accusations related to drugs, and lends its expertise in Criminal Code and national security matters and in the application of federal laws. The FPS is comprised of a main office in the Department of Justice and 13 offices located across the country. 3.2. Transparency, Accountability, and Access to Information According to the second version of JSCA s Index of Online Access to Judicial Information, 21 Canada moved up from 13 th place among OAS member states in 2004 with a 10% index, to 10 th place in 2006 with an index of 31.8%. 22 3.3. Judicial Reform Projects Underway The Department of Justice is implementing numerous programs that address various services related to the Canadian judicial branch, such as litigation, criminal prosecution and legal aid, among others. 23 3.4. Budget The budget of the Federal Prosecution Service for 2002-2003 was CAN$352 million (US$300 million), which represents a 4.45% increase over the previous year. Table 4 Budget of the Federal Prosecution Service (CAN $ m) 2002/2003 2000/2001 352 337 4. Legal Aid Division 24 4.1. Institutional Structure Canada has a strong legal aid system that is designed to provide economically disadvantaged Canadians with equitable access to justice. Major areas of civil legal aid include family, poverty or social benefits law and legal aid for refugees. Each province has a Legal Aid Division. Provinces offer legal aid to all eligible individuals who have been accused of a crime that carries a prison sentence. Some provinces also offer legal aid services for civil cases, especially in family law matters. This legal aid may be offered in two ways: 25 Legal Aid Certificates: Candidates must prove they do not have the means to pay an attorney, and the applicant s case must be covered under the Legal Aid Plan of the province. If both requirements are fulfilled, the person receives a Legal Aid Certificate and the province pays the pre-established attorney s fees. Legal Aid Programs: Some provinces offer these services in addition to the certificate system. These generally offer help to lowincome persons and special groups (aborigines, senior citizens, and disabled persons). Law schools offer legal advice clinics staffed by students who act under the supervision of a practicing attorney, and represent clients in minor offenses and traffic and labor related matters, among others. 26 Legal aid in Canada is not always free. Users who can help with expenses must sign an agreement with their sponsors stipulating the amount and form of payment. In 2004-2005, Manitoba was the only province that charged a minimum fixed fee of CAN$25, though many people, some of them welfare beneficiaries, were exonerated. 27 4.2. Budget Parliament contributes to legal aid expenses through agreements with provinces and territories. These territorial-federal agreements combine three elements legal aid, Native Courtworkers, and legal public education and information in one financial agreement. 28 In 2004-2005, legal aid programs were allocated a total of approximately US$ 510 million, almost 12% more than in 2000-2001. The annual rate of increase in this allocation was 3% between 2000-2001 and 2004-2005. Year Table 5 Budget of Legal Aid Services (CAN $ m) Budget 2004/2005 599,230 2003/2004 604,364 2002/2003 575,600 2001/2002 596,930 2000/2001 535,839

124 Canada Government funding accounted for 91% of this total, up from 87% in 2000-2001. 29 4.3. Personnel The total number of employees working in legal aid services in Canada in 2004-2005 was 3,192, or 5% more than in 2003-2004. Attorneys represent a third of all personnel in this area. The remaining 63% correspond to administrative staff, law students, accountants, researchers, librarians and others. 30 In 2003-2004, a total of 11,776 private attorneys offered legal aid services, 3.2% more than in 2000-2001. More than half of them work in the province of Ontario. 31 Year Table 6 Private Attorneys Offering Legal Aid Services Total 2003/2004 11,776 2002/2003 10,254 2001/2002 10,977 2000/2001 11,407 4.4. Case Movement Since 1983, Legal Aid Divisions have carried out an annual survey known as the Legal Aid Survey. 32 Data is collected electronically by legal aid programs in the 13 provinces and territories to provide information on resources, expenditures, staff and cases in Canadian legal aid services. The survey is currently part of the National Justice Statistics Initiative. 33 In 2004-2005, 755,302 applications for legal aid were processed in Canada, 11% less than for 2000-2001. Applications for legal aid dropped an average of 3% annually between 2000-2001 and 2004-2005. Year Table 7 Applications Filed for Legal Aid Applications 2004/2005 755,302 2003/2004 773,254 2002/2003 814,025 2001/2002 850,109 2000/2001 849,369 Of all applications processed in 2004-2005, 40.5% are for assistance in criminal matters and the rest for civil suits. 5. Law Enforcement Agencies 5.1. Institutional Structure 34 The Royal Canadian Mounted Police (RCMP) is Canada s national police force, an institution pertaining to the Ministry of Public Safety. The RCMP is a national, federal, provincial and municipal police corps, providing federal policing services through agreements signed with three territories, eight provinces (excluding Ontario and Québec), more than 200 municipalities, 165 aboriginal communities, three international airports and several national airports. According to the RCMP Act, the institution is directed by a Commissioner, reporting to the Minister of Public Safety. The Commissioner controls and administrates the RCMP and is charged with upholding the laws issued by the Canadian Parliament. The institution is composed of 15 divisions in addition to its Ottawa headquarters. Each division, directed by a Commanding Officer, coincides approximately with the boundaries of provincial or territorial branches. The divisions receive support from the Canadian Air Force and Navy. 5.2. Government and Management As mentioned above, the Commissioner controls and administrates the institution. In 1996, the RCMP began to develop regional policies that divided the country into four regions: the Pacific, Northeast, Central and Atlantic. This change ensures closer contact and participation in decision-making processes and enables the RCMP to invest more resources in basic services. 5.3. Budget The budget of Canadian law enforcement agencies in 2004-2005 reached approximately US$7.500 billion, almost 30% more than in 2000-2001; between 2000-2001 and 2004-2005 the budget grew an average of 6.7% annually. 5.4. Human and Material Resources In 2006, Canada had 86,366 police officers, 9% more than in 2002. Of this total, almost 20% were civilians and the rest were police officers.

Report on Judicial Systems in the Americas 2006-2007 125 Table 8 Budget of Law Enforcement Agencies (CAN $ b) 2004/2005 2003/2004 2002/2003 2001/2002 2000/2001 8.823 8.324 7.827 7.270 6.798 Table 9 Number of Police Officers 2006 2005 2004 2003 2002 Police officers 62,458 61,026 59,800 59,412 58,422 Civilian staff 23,908 23,391 22,212 21,476 20,732 Police officers/civilian staff Ratio 2.61 2.61 2.69 2.77 2.82 Total 86,366 84,417 82,012 80,888 79,154 In 2006, more than a third of the police force worked in the province of Ontario. There were approximately 229 police officers per 100,000 inhabitants, or 3% less than in 2002. 6. Department of Justice 36 The Department of Justice works to ensure that Canada s legal system is fair, accessible and efficient. It helps the federal government develop policies and draft and reform laws when necessary and also acts as government counsel, offering legal advice and handling cases of federal law, and representing the Government of Canada in court. The Department s responsibilities reflect the double role of the Minister of Justice, who is also Canada s Attorney General. This official handles matters of general policy as they relate to the judicial system and serves as the Crown s main legal representative. Most of the crimes stipulated in the Criminal Code are prosecuted at the provincial level, but the Department of Justice, through the Attorney General s Office, prosecutes criminal cases under the purview of all other federal laws. In Canada s territories, the Department prosecutes all crimes, including those established by the Criminal Code. The Department also enforces international extraditions and provides mutual assistance to other countries in criminal matters. 7. Canadian Judicial Council 37 Founded in 1971, the Judicial Council has a broad legislative mandate for judicial governance. Its principal aim is to promote efficiency and uniformity in the courts and to improve the quality of judicial services in Canada s superior courts. Comprised of chief justices and deputy chief justices of the superior courts, and presided over by the Chief Table 10 Inhabitants and Crimes per Police Officer 2002 2003 2004 2005 2006 Inhabitants per Police Officer 537.0 533.0 534.7 528.8 520.4 Crimes per Police Officer 35 41.6 41.4 43.4 43.7 41.0

126 Canada Justice of the Supreme Court of Canada, the Council s functions are shared by its several committees. The Council takes positions on matters that affect the judiciary, plays a key role in judicial education, and receives and considers complaints regarding the federally appointed judiciary. The Council normally meets twice a year. 8. Other Judicial Organizations 38 Canada has several judicial organizations that support the work of its justice institutions. These agencies operate separately from the three government branches. The Office of the Commissioner for Federal Judicial Affairs was established to increase the independence of the judiciary by administering judicial salaries and other forms of remuneration, which had previously been handled by the Department of Justice. Since its inception the Office has taken on additional duties, including handling the federal judicial appointments process and supporting international cooperation in judicial matters. 39 Canada s National Judicial Institute (NJI), which was founded in 1988, is an independent non-profit organization that is responsible for the general coordination of judicial training in Canada and serves as the primary provider of this type of training. It is managed by a Board of Governors that includes two provincial court judges and three federally appointed judges and is funded jointly by the federal, provincial and territorial governments. The Institute develops and offers programs for federal, provincial and territorial governments. The NJI 40 has proven to be a key instrument in achieving one of the organization s objectives, namely, to provide judges across the country with access to information on education and training opportunities available to them. The Judicial Compensation and Benefits Commission (Quadrennial Commission) was established to oversee the remuneration of the federally appointed judiciary, which it does through a report that is published every four years. The report takes into account cost of living and other economic conditions in Canada, the role of financial security in ensuring independence, and the need to attract outstanding candidates to the judicial career. 41 IV. Criminal Procedures 1. Description The provincial courts try individuals accused of minor crimes. The trial is generally conducted in summary proceedings, meaning that the case is heard exclusively in that court, without further proceedings. The maximum penalty for the types of crimes heard by these courts is usually a fine of US$ 2,000, six months in prison or both. Crimes tried on the basis of an incriminating document are more serious. Defendants frequently may choose whether to be tried by a provincial court judge or in a Superior Court jury trial. If charged with a serious crime, a preliminary hearing will be held, allowing the judge to examine the case and decide whether or not there is enough evidence to proceed. If the judge determines that the evidence is insufficient, the case is dismissed. Otherwise, a full trial is conducted. All persons who are arrested and held in custody have the right to be brought before a judge or justice of the peace as soon as possible, usually within twenty-four hours of arrest, unless police allow the person to be released upon payment of bail. Bail hearings that determine bond are known as justification hearings, as the prosecutor must put forth the reasons the accused should remain in custody. Should the judge decide to release an accused, he or she may choose to impose any conditions that s/he deems appropriate. The prosecutor cannot require a defendant in criminal trials to testify. The defendant may be called to the witness bench only if he or she has previously consented to testify. If sentencing is required in a matter, either the Crown or the Defense can request a Pre-Sentence Report. This document is prepared by Probation Services in consultation with the defendant and anyone who may know him or her. The purpose of this exercise is to build a profile of the defendant for consideration by the Court prior to sentencing. The report is presented to the court and reviewed by both attorneys at the sentencing hearing. 42 At that point the Crown or Defense may call evidence or make suggestions regarding the appropriate sentence. In Canada there are minimum and maximum sentences for some offenses, but the court generally has wide discretion. Sentences are set in accordance with the guidelines set in the Criminal Code and by the Court of Appeal or the Supreme Court of Canada. 43

Report on Judicial Systems in the Americas 2006-2007 127 Following the trial or sentencing hearing, the Crown or Defense may appeal the conviction or the sentence or both. Depending on the level of the court involved, the appeal is heard by either a Supreme Court justice or the Court of Appeal. At this point the case is not retried and no new evidence is admitted. The court simply reviews the transcript and parties submissions in order to determine whether or not a legal error has been made by the trial court 44. If an error is discovered, the Court of Appeal may order that the verdict be changed or the matter be remanded back to court for a new trial or for determination of a particular aspect of the case. The Court of Appeal has wide latitude in dealing with matters but is careful not express an opinion on what the ruling of the Trial Judge or Jury should have been. 45 2. Crime Rate The Canadian criminal justice system classifies crimes into three areas: Criminal Code offenses except drug trafficking (which accounted for 91.5% of the crimes committed in 2003), drug trafficking cases (which represented 4.1%), and matters covered under federal statutes (4.4%). 46 The last survey on victimization carried out by the Canadian Centre for Justice Statistics (2004) recorded the following information: 47 In 2004, approximately two million violent incidents occurred involving people 15 years and older, and more than one quarter of these resulted in physical injury. Approximately 24% of the victims required medical attention and 20% convalescence. Most (60%) crimes against property resulted in losses of less than CAN$500, while only 15% of cases resulted in losses valued at more than CAN$1,000. Between 2001 and 2005, the number of homicides in Canada increased by 19%, growing almost 5% each year from 2001 to 2005. Table 11 Average Number of Provincial/Territorial Homicides per year 3. Prison Situation 3.1. Prison System 48 The Criminal Code establishes that all persons sentenced to two years or more of prison must serve their sentence in a federal penitentiary center. Prisons are managed by the Correctional Service of Canada (CSC). All federally sentenced offenders are first admitted to provincial or territorial detention centers, where they have a right to appeal (an action that must be filed within 15 days of the ruling), after which they are transferred to a federal penitentiary center to serve their sentence. Persons sentenced to less than two years in prison remain the exclusive responsibility of provincial or territorial correctional centers. Persons who have not paid federal or local fines are subject to prison time for periods established by law. Such prison sentences may be reduced partial payment of the fine owed is made. 3.2. Prison Population According to statistical data released by the International Centre for Prison Studies, in 2005 there were 36,389 persons serving prison sentences in Canada, or 116 per 100,000 inhabitants. 49 Between 1999-200 and 2003-2004, admissions to adult correctional centers increased by 9%. Year Table 12 Admissions to Adult Correctional Centers (Federal, Provincial and Territorial) Admittances 2003/2004 358,710 2002/2003 364,248 2001/2002 355,417 2000/2001 344,661 1999/2000 327,749 Source: Adult Correctional Services in Canada. 2005 2004 2003 2002 2001 658 624 549 582 553 The average cost of maintaining a prisoner rose from CAN$129.59 to $148.67 per day during this period, which represents a 14.7% increase in real terms. 50

128 Canada Table 13 Budget for Adult Correctional Centers (CAN $ b) 2000/2001 2001/2002 2002/2003 2003/2004 2.422 2.620 2.745 2.719 A Statistics Canada survey in 2004-2005 indicated the following: 51 In 2004-2005, an average of 152,600 offenders were being held under custodial or community supervision, or 3% less than in 1995-1996. Inmates awaiting sentencing represented half of this total. Those serving conditional sentences increased 33% since 2000-2001. Almost one third (30%) of women and one fifth (21%) of men admitted were aborigines. V. Civil Procedure 52 The purpose of a civil trial is to determine whether the complainant has the right to restitution. The grounds for the claim are studied and if a case exists, the proper form or amount of restitution is determined. The judge listens to both parties to determine the facts of the case, and then must decide if the respondent has broken a law. The trial opens with the complainant s case. He or she may call witnesses and present documents, photographs, and other types of evidence. The defense may then cross-examine the complainant s witnesses and present evidence and call his/her own witnesses. Witnesses for the respondent may be cross-examined by the complainant s attorney. Finally, the parties present summaries of their arguments, after which the judge considers the evidence and explains it and any relevant laws to the jury. Finally, the jury deliberates the matter and reaches a verdict. In virtually all cases the losing party has a right of appeal either to the Division Court or the Court of Appeal. It is, however, important to note that appeal courts deal only with errors in law (the idea is that trial judges are in a much better position to determine the facts). 53 The final instance for such appeals is the Supreme Court. VI. Legal Profession 1. Education 54 Students who wish to obtain their law degree in Canada generally obtain a university degree before entering law school. After three years, law students work as interns in a law firm before rendering their final bar exams. Each province has its own law society, which admits attorneys qualified to practice once they have fulfilled the necessary requirements. Canada has twenty-two law schools. 55 2. Legal Practice Figures for 2005 indicate that there were 38,000 attorneys in Canada, equivalent to 119 per 100,000 inhabitants. 56 Attorneys are subject to the laws, rules and regulations of the law society to which they belong. The main responsibilities of these societies are to admit attorneys to practice within their society, set professional standards, provide professional liability insurance, and discipline members when warranted. The Federation of Law Societies of Canada acts as an umbrella organization for these institutions. 57 The Canadian Bar Association (CBA) is a voluntary organization that was formed in 1896 and incorporated by a Special Act of Parliament on April 15, 1921. It currently represents some 37,000 attorneys, judges, notaries, teachers of law and law students. Approximately half of all practicing attorneys belong to the CBA. Its mandates are to improve the law and the administration of justice; promote access to justice and equality in the legal profession and in the justice system; improve and promote the knowledge, skills, ethical standards and wellbeing of members of the legal profession; represent the profession nationally and internationally; and to promote its members interests. 58 The country also has fourteen law societies: one for each territory, one for each of the provinces other than Québec and two for the Province of Québec. In that province the Chambre des notaries de Québec governs the province s notarial profession, and the Barreau du Québec governs attorneys.

Report on Judicial Systems in the Americas 2006-2007 129 VII. Related Areas 1. Alternative Dispute Resolution (ADR) 59 Canadian ADR alternatives have developed to include such specialized forms as executive minitrial, judicial mini-trial and early neutral evaluation. Negotiation and mediation are the most common non-adjudicative processes that do not involve third party rulings. 60 The Canadian government supports ADR through Dispute Resolution Services (DRS), a government agency. 61 Established in 1992, its mandate is to promote a greater understanding of ADR and promote its integration into government policies, operations and practices. One DRS project is the DR Fund, which has provided CAN$ 6.9 million to federal organizations to design and implement dispute resolution programs since 1998. Various branches of the Canadian government actively promote ADR in their own affairs, including the Department of Justice, the Canadian Food Inspection Agency, the Immigration and Refugee Board and the Canadian Human Rights Commission. 62 In addition, numerous private agencies offer dispute resolution services in Canada. Among the largest is the ADR Institute of Canada (ADR Canada), 63 which serves as a national clearinghouse for information and provides training and accreditation for mediators and arbitrators. It also promotes national standards for various forms of dispute resolution. The Canadian Department of Justice promotes restorative justice programs, 64 including victimoffender mediation, family group conferencing, sentencing circles, consensus-based decisionmaking on the sentence and victim-offender reconciliation panels. The Conflict Resolution Network of Canada reports that restorative justice programs exist in all provinces and territories. 65 2. Race and Justice Administration 66 Sentencing circles, initiated in the Yukon Territorial Court at the beginning of the 1990s, are used today in a large part of the country, mainly at the provincial and territorial court level and in cases that involve indigenous defendants and victims. Although such sentencing circles are not courts themselves, they can be a valuable tool for gathering opinions and advice from community members, so as to help the judge pass an effective and appropriate sentence. Sentencing circles work in the following way: after the discovery or admittance of guilt, the court invites interested members of the community to join in a circle comprised of the judge, prosecutor, the defense, police, social services providers and community elders, together with the criminal, the victim and their respective families and supporters. The circle is used to discuss the crime committed, possible contributing factors, sentencing options and the ways and means of reintegrating the criminal back into the community. All participants have the opportunity to express their opinion. Some members of the circle give assurance that the defendant will serve his sentence, while others give support to the victim. In general, the circle will propose a restorative sentence towards the community; this involves some form of compensation to the victim, community service, and treatment or therapy. The judge is not bound by law to accept the recommendations of the circle. VIII. Reform Projects Underway Civil Marriage Act On February 1, 2005, the Civil Marriage Act that was drafted to grant same-sex couples the legal ability to contract civil marriage was passed by the Government of Canada in the House of Commons. The bill will give same-sex couples the same civil legal recognition of commitment that is currently granted to married couples while respecting religious freedom. 67 Protection of Children and Other Vulnerable Persons The Canadian government has begun an effort to increase amendments to current laws regarding child sexual exploitation. These amendments build on recent criminal law reforms. On October 8, 2004 the Canadian government introduced legislation in the House of Commons that would, among other things, broaden the definition of child pornography, increase maximum sentences, introduce new sexual exploitation and voyeurism offenses, and facilitate testimony for vulnerable victims and witnesses, including children. 68 Aboriginal Justice In late 2004 the Department of Justice released the second One Day Snapshot of Aboriginal

130 Canada Youth in Custody Across Canada, a report that documents the number of aboriginal youth in custody on a given day, in this case June 4, 2003. According to this publication, the number of aboriginal youth in custody dropped 36% (from 1,128 to 720) between 2000, when the first edition of the report was released, and 2003. However, the second report notes that young members of these communities are eight times more likely to be in custody than their nonaboriginal counterparts. In response to these and other figures, the government has renewed its commitment to this area, as is demonstrated by several significant programs implemented in the 2004-2005 fiscal year. These include the following efforts: CAN$470,000 was provided by the DOJ s Youth Justice Policy sector in 2003-2004 to be used by provinces and territories to investigate the degree of overrepresentation of aboriginal youth in the country s prison system and how federal programs can address this problem. CAN$1.2 million was made available to the provinces and territories so that they could support and test these programs in 2004-2005. CAN$1.5 million was dedicated to capacity building programs for aboriginal youth justice programs that were to be implemented in 2004-2005 through the DOJ Youth Justice Renewal Fund. 69 Modernization Programs of the Administration Service Courts 70 As of October 2005, an electronic system was enabled to pay federal judicial fees online. The new Federal Judicial Center building in Toronto was fully equipped to carry out video conferences. Two important trials in 2005-2006 inaugurated the electronic courtroom system. Once these trials finish, the system will be evaluated in order to maximize the use of technology during hearings, though their transmission will be reviewed case by case. By 2007, the electronic courtroom system will be installed in other chambers. A new system for case management is currently being prepared that will introduce electronic files, an electronic filing system and a document management system for extensive cases. This innovation will allow for better management of decision-making processes. Department of Justice Programs 71 The Canadian Department of Justice is implementing three programs covering the following issues, among others: access to justice through legal aid services, programs related to vulnerable groups (especially children and youth), and aboriginal justice. The following table details expenditures and human resources allocated to these programs. Table14 Program Expenditures (CAN $ m) Program 2007-2008 2006-2007 2005-2006 Policy and legislation development 21.3 21.3 21.4 Program Delivery 333.4 337.9 380.0 Management and coordination of strategic policies and priorities 14.3 14.3 13.6 Provision of legislative services 31.4 31.5 20.6 Provision of legal advisory and litigation services 439.6 441.1 454.8 Provision of prosecution services 83.5 83.8 82.1 Total 923.5 929.9 972.5 Source: Department of Justice.

Report on Judicial Systems in the Americas 2006-2007 131 IX. Websites Supreme Court of Canada http://www.scc-csc.gc.ca/home/index_e.html This website provides institutional information, rulings, new publications of the Official Gazette, information on cases, a virtual library, lists of frequently asked questions and links and contact information. Available in English and French. Department of Justice http://canada.justice.gc.ca/ Users may review institutional information, strategic planning, a directory, programs and services, mission and values. Bibliography of the Minister and the Attorney General. The website also includes a press room for the media containing articles, press releases, press files, speeches, schedule of activities, links for the media and important information. Other features include a glossary, search engine, FAQs, overview of the Canadian legal system and basic information. In English and French. Legal Aid http://canada.justice.gc.ca/en/ps/pb/legal_aid.html This page within the Department of Justice site provides information about legal aid related to civil and criminal issues, recent publications and news. In English and French. Office of the Commissioner for Federal Judicial Affairs http://www.fja.gc.ca/home/index_e.html This Website provides information in English and French on the institution s mission and organization, official documents and publications for download, a search engine and contact information. Government of Canada http://www.canada.gc.ca/main_e.html Site in English and French with information on the Canadian government and Prime Minister s Office. Also contains information on government services and contacts; publications by agency and department, provinces, and territories. News and press files. General information for Canadians and foreigners, including businesspeople, on the economy, employment, taxes, health, public safety, and other topics of interest to Canadian society. National Judicial Institute www.nji.ca The NJI web site provides information on the institution, its mission, objectives and activities. Describes the organization, content and schedule of courses offered by NJI. Also contains information on specialized seminars and other activities. Also includes publications and member organizations. Available in English and French. Human Security Program http://www.humansecurity.gc.ca The Human Security Program (HSP) of the Ministry of Foreign Affairs and International Trade was established in June 2000. Its creators define it as a proactive mechanism of the Canadian government to address the human dimensions of globalization. X. Directory Department of Justice Canada Address: Communications Branch Ottawa, Ontario K1A 0H8 Phone: (613) 957-4222 Fax: 613) 954-0811 Website: www.canada.justice.gc.ca Federal Prosecution Service Assistant Deputy Attorney General Address: Justice Canada, Office of the Assistant Deputy Attorney General 100 Metcalfe Street, 6th Floor Ottawa, Ontario K1A 0H8 Phone: (613) 957-4626 Fax: (613) 954-4737 Canadian Bar Association Address: 500-865 Carling Avenue, Ottawa, OntarioK1S 5S8 Phone: (613) 237-2925 / (613) 237-1988 Toll Free: 1-800-267-8860 Fax: (613) 237-0185 Legal Aid Ontario Address: 375 University Avenue Suite 404, Toronto ON M5G 2G1 Phone: (416) 979-1446 Fax: (416) 979-8669 Toll Free: 1-800-668-8258 Notes 2 UNDP, Human Development Report, 2006. 3 The UNDP s Human Development Index classifies countries into three groups: high human development (rating of 0.8 or over), medium human development (rating of between 0.5 and 0.8) and low human

132 Canada development (rating of 0.5 or less). According to the 2006 version of the Human Development Report, 63 countries qualify for the first group, 83 for the second, and 31 for the third. See http://undp.org 4 Statistics Canada. See http://www.statcan.ca 5 World Bank, World Development Indicators. See http:// devdata.worldbank.org/data-query 6 7 See section VIII of this chapter. 8 Canada s Court System. Publication of the Department of Justice of Canada. See http://canada.justice.gc.ca/en/ dept/pub/trib/index.html 9 10 For more information, see http://www.cas-satj.gc.ca 11 For more information, see http://www.scc-csc.gc.ca 12 See http://www.statcan.ca/ 13 JSCA, Index of Online Access to Judicial Information, 2006. See http://www.cejamericas.org 14 See point 4 of this section. 15 Canadian Centre for Justice Statistics, Overview of the Courts: Personnel and Expenditures Survey, November, 2004. See http://www40.statcan.ca/l01/cst01/legal13.htm 16 Supreme Court of Canada. Performance Report, 2006. See http://www.tbs-sct.gc.ca/dpr-rmr/0506/sc-cs/sc-cs_e.pdf 17 18 Mikhail Thomas, Adult Criminal Court Statistics, 2003/ 04, Juristat, Vol. 24, Nr. 12, Statistics Canada Catalogue Nr. 85-002-XIE2004012. See http://www.statcan.ca/ 19 Cases Filed registered by the Court, which cover the Complete applications for leave to appeal and Notices of appeal as of rights. 20 The average duration was calculated by taking the time between the filing of the case and its ruling. 21 This index quantifies the accessibility to a minimum level of information that judicial systems should make available to the public. The more information there is available on Internet, the higher the country ranks in this index, on a scale of 1 to 34. 22 JSCA, Index of Online Access to Judicial Information 2006. See http://www.cejamericas.org 23 See section VIII of this report. 24 See http://www.justice.gc.ca 25 Research Legal Information: http://research.attorneys.com/ Ontario/An-Introduction-to-Canadian-Law.html 26 27 Statistics Canada. Legal Aid in Canada: Resource and Case Load Statistics 2004/2005. Available at: http://www.statcan. ca/bsolc/english/bsolc?catno= 85F0015X&CHROPG=1 28 JSCA, Report on Judicial Systems of the Americas, op. cit. 29 Statistics Canada. Legal Aid in Canada: Resource and Case Load Statistics 2004/2005, op. cit. 30 31 32 Information available on the Statistics Canada website. op. cit. 33 See point 2.3 of section III of this report. 34 See the institution s website: http://www.rcmp-grc.gc.ca 35 Traffic violations are excluded. 36 See the website of the Department of Justice of Canada, op. cit. 37 For more information visit the Council s website, www.cjc-ccm.gc.ca 38 JSCA, Report on Judicial Systems in the Americas 2004-2005, op. cit. 39 See: www.fja.gc.ca 40 See www.nji.ca/index.html 41 See www.quadcom.gc.ga 42 See http://www.daleydemont.ns.ca/pages/criminal law.html 43 44 45 46 JSCA, Report on Judicial Systems in the Americas 2004-2005, op. cit. 47 Canadian Centre for Justice Statistics (Juristat). Impacts and consequences of victimization 2004. Statistics Canada. Catalogue No. 85-002-XIE. Vol. 27, no. 1. See http://www.statcan.ca/english/freepub/85-002-xie/85-002-xie2007001.pdf 48 Information obtained from the report Adult Correctional Services in Canada. See http://www.statcan.ca/bsolc/ english/bsolc?catno=85-211-x 49 Information available at: http://www.prisonstudies.org/ 50 See the website of Statistics Canada, op. cit. 51 Statistics Canada. Adult Correctional Services in Canada, 2004/05. Jurtistat, Vol. 22, Nr. 10, Statistics Canada Catalogue Nr. 85-002-XIE. 52 JSCA, Report on Judicial Systems in the Americas 2004/ 2005, op. cit. 53 See http://www.hammondosborne.ca/civil.html 54 Research Legal Information, op. cit. 55 Report on the Division of Research and Statistics 2003-3f. 56 See http://www.cba.org/cba/infofmain/historv.asp. This figure only includes members of the Canadian Bar Association. 57 For more information see the institutional website: http:// www.flsc.ca 58 This information can be found on the CBA website: www.cba.org/cba/gate.asp 59 JSCA, Report on Judicial Systems of the Americas 2004-2005, op. cit. 60 Various types of ADR applied in Canada can be found on the Website: http://www.adrcanada.ca/news/faq.html 61 DRS Website: http://canada.justice.gc.ca/en/ps/drs/ drs_programs.html 62 See the following institutional Websites for more information: Department of Justice - http:// www.justice.gc.ca/en/ps/drs/icms/index.html; Canadian Food Inspection Agency - http://www.justice.gc.ca/en/ps/ drs/food_inspection.html; Canadian Human Rights Commission - http://www.chrc-ccdp.ca/adr/what_is_iten.asp; Immigration and Refugee Board - http://www.irbcisr.gc.ca/en/about/tribunals/iad/adr/protoc_e.htm 63 See http://www.adrcanada.ca/mc.pdf 64 Restorative justice programs are increasingly popular in Canada, especially in cases related to aboriginal justice. 65 See http://www.crnetwork.ca/rj/canada.asp?target =Adult 66 Canada s Court System, op. cit. 67 For more information, see http://canada.justice.gc.ca/en/ news/fs/2004/doc_31244.html 68 See http://canada.justice.gc.ca/en/news/nr/2004/doc_ 31248.html 69 See http://canada.justice.gc.ca/en/ps/yj/updates/up dates.html 70 Annual Report 2005-2006. Courts Administration Service. See http://www.cas-satj.gc.ca/publications/annual/2005-2006/annual_report05-06_e.php#_ Toc146694005 71 See http://www.tbs-sct.gc.ca/est-pre/20052006/jus-jus/ Jus-Jusr5602_e.asp