What are Administrative Boards and Tribunals

Amicus Curiae

1. Knowledge of legal aid policies/procedures for eligibility

2. Current knowledge of welfare system (advocacy)

3. Knowledge of role of laws in court i.e. (witness, plaintiff, support)

4. Knowledge of agency (mandate, policy, procedure, re: court issues)

1. Protection of society (criminal code)

2.Protection of the offender (innocent until proven guilty - under Charter of Rights and Freedoms)

3. Protection of the Victim

4. Establishment of entitlement - who is eligible and who is not

1. Judge (Impartial)

2. Jury (Peers)

3. Defendant - (right to legal representation)

4. Lawyer (s) for the defendant

5. Crown Attorney - (Prosecutes case)

- Laws enacted by an elected body

- Provincial and/or Federal Laws

- Examples include (Child and Family Services Act, Mental Health Act, etc)

- Municipal laws under provincial legislation (i.e. province allows this legislation)

- Includes bylaws, Regulations/Rules, Ordinances, Orders in Council (i.e. Law for a particular town - pets on leash)

When there is a conflict between Federal and Provincial laws

The ‘doctrine of Paramountcy is triggered

Provincial law remains valid but cannot operate so long as the Federal law is operational

The balance of powers between federal and provincial governemnt.  

Municipal government subordinate to provincial.

1. Internatinal trade

2. Banking

3. Aboriginal

4. Immigration/Naturalization

5. Criminal Offences (Jails + 2-years)

1. Prisons ( - 2-years)

2. Property and Civil Rights

3. Social Service Delivery

4. Education

5. Highway Traffic Act

1. Small Claims Court

2. Family Court

3. Provincial Criminal Court

4. Provincial Offences Court

5. Unified Family Court

6. Superior Provincial Court

7. Provincial Court of Appeals

8. Boards, Commissions, Tribunals

1. Civil

2. Criminal

1. Indictable Offenses:

- Most Serious

- Accused can choose between Judge and Jury

2. Summary Offenses:

- No Pretrial

- Less serious offenses

- Only tried by Judge

*Crown can decide to proceed by Indictment or Summary

1. Errors in Fact: Judge misinterprets fact presented

2. Errors in Law: Relevant Law has been misapplied

3. Procedural Errors: Procedural right denied or omitted

4. Jurisdictional Error: Power to hear matter is challenged

5. Wrong Jurisdiction

1. Judges

2. Masters

3. Justice of the Peace

4. Parties

5. Lawyers

6. Crown Attorney

7. Agents

8. Witness

9. Jury

1. Negotiation

2. Conciliation

3. Mediation/Co-mediation

4. Arbitration

Family Court is most often used by social service workers for three-types of cases:

1. Family Law Act i.e. custody/access/child support

2. Child and Family Services Act i.e. child welfare cases

3. Youth Criminal Justice Act (YCJA)

1. Main courts used by social service/social workers

2. Rules of evidence for informal

3. Judge can be more active in questioning

4. Designed to respond to human needs

5. Goal should always be "The Best Interests of the Child"

1. Try over 90% of provincial criminal cases

2. Try Summary Offenses

3. Maximum sentence is 2-years less a day

1. Provinicial Offences Courts try "softer"quasi crimes e.g. Landlord/Tenant, Environmental offenses, Traffic/Liquor

2. A Judge or Justice of the Peace presides

they are supportive evidence.

They are usually readily admissible.

Examples: birth/marriage certificate, psychological assessments, child abuse registry (only social workers and police can see this)

They include, those with education experience, special training in area, possibly workshops attended. They do need to unclude their curriculum vitae(resume)

They are used to give supportive evidence

**keep in mind the other side can bring their own expert to refute testimony.

1. testimony is not relevant

2. expert not strong in a particular field

3. knowledge in the expert's field is unreliable

it is fact based information regarding demographics

e.g. birth date, employment, relationship, etc.

verbal evidence is most common

question and answer(sight, smell, heard)

accurate case notes = accurate recall

***case notes can come with you on the stand but MUST be factual, dated/timed, current, complete, signed, relate to the senses.

a cross examination is possible, the lwayer may question your credentials and inconsistencies in testimony

supportive documentation

e.g. tape recordings, photographs, letters, other documents

statements of fact with inference

e.g. He was the only one with the combination to the safe.

*often used in child welfare cases by direct testimony or affidavit

It is admissible under special circumstances-could be distorted

**exception---for social workers testifying under the Child and Family Services Act as the safety of child takes precedence over hearsay rule

1. be honest and accurate/ only tell what you know

2. listen carefully and answer ONLY what is asked

3. go slow, take time to think before answering take a deep breath if you need to

4. don't guess, if you don't know just say so

5. speak up, keep your head up, make eye contact with lawyer, project your voice

6. never use absolutes(e.g.never always)

7. hold your temper when opposing lawyer is goading you-anger can undermine credibility

8. acknowledge the judge--occasionally look at him but don't stare

- A Unified Family Court is also called a Matrimonial Cause Court

- Deals with small divorces (less than $25,000 in assets)

- Can also deal with custody and access

- Judges are Fedaerally appointed to Superior Provincial Courts

Deal with:

1. Large divorce cases over $25,000 in assets

2. Serious indictable offenses e.g. murder, manslaughter, sexual assault

3. Appeals of cases under provincial jurisdiction

* Can be heard with or without a jury except for murder

- Appeals Court for both civil and criminal cases

- Appeals of any Provincial Court

- Supreme Court of Canada is next step after Provincial Court of Appeal

- Are both Provincial and Federal

- Dispute resolution outside of court e.g. Immigration Appeal Board, Unemployment Insurance Board, Workplace Safety Insurance Board (WSIB), Criminal Injuries Compensation Board

- Some have Absolute Powers of Decisions

- Some only make Recommendations

- Less Formal, usually no lawyer but could have social worker

- Deals with private matters

- Usually provincial

- Person can begin proceedings and serve other party who has the right to respond

- Often settled out of court e.g. Property issues, Marital disputes

- Deals with Crimes vs Society

- Under Feder Jurisdiction

- More formal than civil trial

- Has a Pre-trial where a judge decides if there is enough evidence to proceed

- A person can be tried both criminally and civilly

- Has less decision making power than a Judge

- Can issue Summons / Warrants / Reside over Swearing of Oaths

- Can conduct some provincial trials e.g. Highway Traffic, Landlord/Tenant

- A judicial officer of the Provincial Superior Court

- Can make interim orders in civil matters - The Judge makes the final order

- Different courts = different powers

- Impartial to proceedings

- In some cases judges have more involement e.g. Civial Trials, CYJA, Child Welfare caes

- Lower Costs

- Not blame oriented (less antagonistic)

- Solution Focused

- Timely

* Property issues should always be mediated by a lawyer

1. Advisory Arbitration: if both parties accept the decision, it is binding

2. Binding Arbitration: parties agree to accept decisions at the beginning

1. Lack capacity/understanding to marry

2. No informed consent

3. Lack of solemization at ceremony (ex. Groom or bride is intoxicated)

4. No consummation after marriage

5. Duress during marriage

6. Mistake or fraud 

1. Individualism growth (ex. Do not stay or settle)

2. Women working

3. Smaller families - easier to leave

4. Liberalization of the issue of divorce - less stigma

1. Separation

2. Adultery

3. Physical or Mental cruelty

1. No reasonable child support has been arranged

2. Spouse unable to prove their case (see previous card)

1. Transformative - empowerment of individuals

2. Evaluative - present arguments to mediator

1. Power imbalance

2. No full disclosure

3. Lack of respect for the mediation process

4. No intention to abide by ruling

1. Pre-nuptial agreement

2. Other separation agreements

The rights and obligations of both of the parties.

Decisions can be binding or non-binding (In binding, parties must appeal if they disagree with a decision)

Recognize that spouses share equally in financial gains made during marriage.

Each province has it's own legislation, with primary areas of concern being: property aquired before/after marriage, the matrimonial home, and business assets.

It is the first home lived in or purchased by the newlywed couple. 

In divorce, both spouses have equal right to the house, and it cannot be sold/mortgaged without the agreement of both or a court order.

1. Financial statements

2. A Statement of all assets

3. Liabilities

4. Property at date of marriage and separation

1. Either spouse can apply

2. Any other person, such as a grandparent or neighbour

Joint custody is when both parents have input into decision making and parenting, with living arrangments varying widely.

Shared custody when a child spends at least 40% of their time with both parent.

1. Emotional ties between child and parent/family member

2. Length of time child was in a stable home

3. Plans for care/upbringing of the child

4. Preference of the child 

1. Incarceration

2. Fines

3. Stays of ongoing litigation

4. Compensatory access

5. Supervised access

6. Suspension of maintenance payments

1. Economic advantages/disadvantages from marital breakdown

2. Extra financial burden from child rearing

3. Relief of economic hardship from marital breakdown

4. Promotion of economic self-sufficiency with in reasonable time

1. Rejection of the marital institution

2. No incentives to marry

3. Desire to keep legal entitlements

1. Customs and processes are different for different reserves and bands.

2. Laws regarding property off the reserve do not apply

3. The decisions of the elders are final and not to be questioned

4. Laws surrounding child support and spousal support are the same as other Canadians but tax exempt status is taken into account

1. The spouse has deserated family without just cause

2. Behaviour justifies spouse not living with him/her

3. Imprisonment

-can only marry one person at a time (criminal offense if not followed)

HOWEVER:

-able to bring another partner into a relationship and/or put into the will without performing the legalities of marriage

1. indivudual(s) is/are lacking understanding/capacity to marry

2. no free, informed consent

3. lack of solemnization at ceremony (ex. bride is drunk)

4. no consummation after marriage

5. duress during marriage (being threatened)

6. it was a mistake/fraud

Definition of ACCUSED

• The accused is the person who is alleged to have committed the criminal offense; and who has been charged with committing is. 
• Before being charged, a person may be known as the "subject"
• During trial proceesigs, the accused is sometimes called the "defendant"
• If found guilty, the accused may be called the "offender" or "perpetrator"

Definition of APPELLANT

• the term for the party appealing a judgement (even if they were a defendant at the civil or criminal trial)

Definition of ARRESTING OFFICER

• the arresting officer is the police officer who investigates the crime, and then arrests and charges the accused
• starts the prosecution process

What is a CRMINAL DEFENCE COUNSEL?

• a defense counsel hired by a person charged with a criminal offense and represents that person on the court process
• job is to make sure the accused gets a fair trial and protect client's rights
• brings evidence to the court and draws the court's attention to any flaws or weaknesses in the crown's evidence
• ensure any resonable doubts are presented to the court

What is CRIMINAL DUTY COUNSEL?

• a duty counsel is a lawyer paid by Legal Aid Ontario ro help an accused person who cannot afford a defence counsel
• duty counsel assists the accused in many of the same ways as a defence counsel
• give advice and basic assistance with court process
• cannot replace a lawyer on a file and instead can only help out on a given day by assisting the accused with a delay, simple bargaining with the crown, conducting bail, and assisting with guilty pleas and sentencing

What are COURT ARTISTS?

• individuals who document the trial through drawings because camera are not allowed in Canadian courtrooms

What is a COURT CLERK?

• a court offical who assists the judge with keeping the courtroom running smmothly
• swear in witnesses, mark exhibits, open the court, call for adjournments, close the court 

What is a COURT INTERPRETER?

• a professional interpreter paid by the Ministry of the Attorney General
• ensures that the accused and witnesses who speak a language other than the language of the court proceeding (in Ontario, English or French) can give and hear evidence and give directions made during the hearing

What is a COURT REPORTER?

• a court offical who keeps a written record of everything that is said in the courtroom
• lawyers, the judge, and the jury can refer back to these records in order to see if witnesses have changed their testimony during the trial or if something was forgotten or misquoted
• the judge can refer back when writing their final decision
• many court reporters use recording devices to back up their written/typed notes
• the transcript produced by the reporter is essential for any subsequent appeal

What are the responsibilities of the

 COURT SERVICES OFFICER?

• assists the judge by keeping order in the court
• to make sure that the accused, the victim, and the witnesses are safe while they are in the courtroom
• escort the accused into the courtroom if held in custody
• the judge can ask the court services officer to remove people from the courtroom who are causing disturbances or acting disrespectfully

What are CROWN and ASSISTANT CROWN ATTORNEYS?

• crown attorneys act on behalf of the Atterney General to prosecute criminal cases
• unlike the American system, Canadian crown attorneys are not usually involved in police investigations
• they review police findings and make independent assessments about whether or not there is sufficient evidence to justify prosecution
• goal is to bring all credible evidence before the courts to try to prove guilt beyond reasonable doubt
• crown attorney does not "win" or "lose" a trial

Who is referred to as the DEFENDANT?

• in a cival case, the defendant is the name given to the person being sued
• in a criminal case, the defendant is the name given to the person accused of the crime

What are EXPERT WITNESSES?

• witnesses that the court considers to have sufficient expertise in their field to testify about more than tey have seen or heard
• testify about conclusions they have reached from certain facts and can testify about their opinions on the facts - only expert witnesses can testify about their opinions
• expert testimony usually helps the court understand some of the other evidence being presented
• EXAMPLE: a sexual assault counselor might be considered an expert witness on how women are affected by sexual assault

What is a JUDGE?

• someone with a legal background who has been appointed by either the provincial or federal government to hear evidence in court and make decisions about the outcome of legal cases
• required to listen to all the evidence presented during a trial and act impartially in their decision-making
• even in cases where there are juries, the judge will play a role in determining certain aspects of the proceeding; such as whether certain pieces of evidence will ve introduced to the jury
• expected to give oral and written reasons for a particular decision
• if there is a jury, the judge must summerize information for the jury members and giveinstructions about how to apply the law correctly when coming to its decision
• in criminal proceedings, the judge will be responsible for sentencing

What is a JURY?

• groups of citizens chosen from the community who are sworn to hear evidence and witness testimony at trials, and reach a decision on a case
• in criminal trials, juries ca decide if defendants are guilty or innocent of an offense
• trial by jury is also avilable in some civial litigation metters, but is rarely used
• Canadian juries decide verdicts, not sentences

Why study the law?
(4 main reasons) 

1. knowledge of policy/proceedure for elgibilty
2. knowledge of welfare system
3. knowledge of roles in court (witness, plaintiff etc)
4. knowledge of agency mandate/policy

S.W.'s work with lawyers to acheive _______.

Lawyers clash with social workers because...
(5 main reasons) 

1. they use different language/jargon
2. they think they are each there for different reasons
3. S.W. are seen as overly emotional + involved
4. Lawyers are seen as cold and ridgid 
5. The Lawyer might negate the judgement of a S.W. as a witness

Four main reasons for the law.

1. Protection of society
2. protection of offender
3. protection of victim
4. establishment of entitlement - who is eligible and who is not

Who are the 5 key players in the promomtion of a fair trial? 

1. Judge (impartial)
2. Jury (peers)
3. Defendant - right to legal representation 
4. Lawyer - for defendant
5. Crown Attorney - prosecutes the case

Define Precedent.

A principle that uses past cases to decide similar cases that are presently being tried. This allows the court to generalize from one case to another. 

• precendent is cited during a trial
• brings judge's attention to previous verdicts 
• cases built on precedent have flexibility

What is Statutory Law?

Laws enacted by an elected body; inculdes federal and provincial law. 

What is subordinate Legislation?

Municipal laws under provincial legislation. This includes by-laws, regulation/rules, ordinances, orders in council.

eg - pets on a leash in a certain area of town 

Define Paramountcy.

Law does not fit under provincial or federal legislation.

In this case federal law takes jurisdiction.

Define "Jurisdictional Powers".

Balance of power between the federal and provincial government.  Municipal government is subordinate to provincial. 

Describe How Laws are passed in canada. 

1. First Reading:
   Introduced to parliament, debated and then released for public reaction.
2. Second Reading:
   Changes are made, second reading with changes, debated again and IF passed here - it is only passes in principle as a Bill refered to commitee for thier recomendations. 
3. Third Reading: ammendments are again debated, vote is taken and IF passed - goes to Lt. Gov. for Royal Assent.

NB - Laws do not come into effect until the government wishes to proclaim it law.  

What 2 parties must OK changes to the consittution?

Name and describe the two types of federal court.

1. Trial Devision: cases brought agains the federal gov't or Crown Corperations. This is presided by a Judge only. 
   eg - immigration and Aboriginal Land Claims.
2. Supreme Court: highest court in Canada - all persons can apply. Decisions are totally binding. Presided over by 7 memebers appointed by PM  

The Federal Gov't has power over the following:
(list seven) 

1. International Trade
2. Banking
3. Divorce
4. immigration 
5. criminal offences (2+ years jail time)
6. Aboriginals and thier land
7. levy of taxes

The Provincial Gov't has juristiction over the following:
(list 7) 

1. Provincial Prisions (2 or less years of Jail time)
2. hospitals
3. property/civil rights
4. education
5. marriage
6. social service delivery
7. highway traffic act  

-living and financially sharing with another person in a conjugal relationship

1. individualism growth

2. more women working - women can leave relationship and remain stable

3. smaller families - easier for someone to leave 

4. less stigma surrounding divorce in today's culture

1. separation 

2. adultery

3. physical or mental cruelty

- must be a part for at least one year

- physical separation not necessary (can live under the same roof in different bedrooms)

- can try reconciling for 90 days without stopping the "one year clock"

When there is an unnecessary infliction of pain or suffering onto a person, physically or mentally, that makes the cohabitation with their partner no longer tolerable 

- the behaviour must be an on-going pattern 

1. spouse unable to prove their case

2. no reasonable child support arrangements made

A temporary custody order granted, usually to a parent, until the final order is made 

- Justice of the Peace does these orders immediately

1. Direct Discrimination

2. Adverse-effect Discrimination

3. Systemic Discrimination

4. Harassment

- When a rule, practice, preference or restriction makes distinction based on group stereotype

- No harm needs to be suffered in order to establish a case of direct discrimination i.e. can be unintentional

What is Adverse-effect Discrimination?

- Identical treatment does not necessarily mean equal treatment e.g. all employees must work on Sunday, but one employees religion will not allow them to work on Sunday

- Employer must make a reasonable effort to accommodate

e.g. only hiring men

- Can be hard to identify

- Makes Value Assumptions

- Reinforced by Agency Practices

- Often Unintentional caused by Agency Policies

- Hard to Prove but evidence includes:

1. Attitudes of Supervisors

2. Records of incidents

3. Statistical patterns

4. Obvious hiring practices

1. Quid Pro Quo: benefit gained by participation in an activity - most often sexual in nature

2. Hostile Environment: Created by conduct of employer

- unreasonable working conditions

- must be a pattern over time

- Part of the Canadian Constitution to ensure that rights and freedoms are not violated

- Charter of Rights and Freedoms is Flexible to incorporte rights that may arise in the future e.g. Same Sex Marriage

- There is an Opting Out Clause: the provincial government may pass laws that conflict with the Charter of Rights and Freedoms for a period of 5-years prior to renewal

1. Fundamental Freedoms

2. Democratic Rights

3. Sitting

4. Legal Rights

5. Fundamental Justice

6. Review

7. Unreasonal Search and Seizure

8. Protection vs Detention or Imprisonment

9. Counsel

10. Equality Rights

11. Mobility Rights

12. Official Language Rights

13. Language Education Rights

14. Aboriginal Rights

(a) freedom of conscience and religion

(b) freedom of thought, belief, opinion and expression

(c) freedom of peaceful assembly

(d) freedom of association

- Right to vote provincially or federally, but not municipal

- Includes the developmentally delayed and prisoners

- Right to enter and leave Canada

- Right to move from one province to another

- Right to live and seek employment anywhere in Canada

- The federal and provincial legislatures are free to add to the rights and freedoms through legislation (also called statutes).

- The extent of the protection provided depends on whether the federal or provincial laws apply in the province in which the individual resides

1. Employment

2. Services and Facilities

3. Accomodation

4. Contracts

5. Race, Colour, Place of Origin

6. Religion/Creed

7. Sex

8. Age

9. Disability

10. Marital and Family Status

11. Sexual Orientation

12. Social Condition

13. Criminal Records

1. It needs to be in writing, signed and registered with the Ontario Human Rights Commission (OHRC)

2. Copies of the complaint go to the OHRC, the complainant, and the person or company for which the complain is against

1. Refuse the complaint and inform the complainant in writing

2. Accept the complaint and begin an informal hearing of evidence

3. Force a Settlement or Apology

4. Tribunal Hearing

A bona fide occupational requirement defends employers from charges of discrimination

1. Must show that the standard was established for the purposes of the job

2. Must show the standard was adopted in good faith i.e. believe it is necessary for the job

3. To remove the standard would impose undue hardship in the employer

1. Economic advantages/disadvantages from marital breakdown

2. Financial burden from child rearing

3. Relief of economic hardship fro marital breakdown

4. Promotion of economic self sufficiency

1. It is determined by the Province

2. Child support takes precedence over Spousal Support

1. Spouses share equally in financial gains made during the marriage

2. Provinces have different legislation

3. Ontario includes any interest, present or future, vested or contingent, in real or personal property e.g. cash, investments, vehicles, pensions

4. Primary areas of concern are: a). Property aquired before and after marriage b). The Matrimonial Home c). Ontario property brought into the marriage is not divisible d). Inheritance is not divisible

1. Evidence may be destroyed

2. Police see evidence, but are there for another reason

3. Person consents to search

Define the term Justice of the Peace and list their duties.

• provincially appointes judicial officer who is often the first (sometimes only) judicial officer that someone will meet
• deal with most matters in a criminal case prior to trial
• proside in bail court to decide whether an accused person should stay in jail until trial
• deal with most ore0trial court appearances
• also hear and decide provincial offences cases for adults and young persons including; trespassing, liquor violations, traddice offences, parking and boise by-laws
• may include firearm prohibitions, warrants for child protection, peace bonds, and mental health assessment orders

What is a LAWYER?

• act for clients in many different tyoes of legal transactions and proceedings, such as real estate purchases, wills, criminal charges, divorces, domestic violence, child welfare, child support, civil debt collection, challenges to legislation, breaches of Chater rights, defamation, and immigration.
• explain the law, complete legal transactions, propse legal options for the resolution of disputes, and represent clients before courts, trbunials, and in private mediations and arbitrations.

What is a Native Worker?

Explain what is meant by a Panel of Judges.

Who are the parties to an appeal?

• the appelleant, who brings the appeal
• the respondent, who denies the appeal

Who are the press?

• reports who document what happened at a trial for the public

What is probation?

Probation is a court order that allows offenders to remain in the community subject to condidtions contained in a probation order.

Offenders with conditional discharges, suspended sentences, or intermittent sentences must be placed on probation.

Define Respondent

• the name of the defendant on an application or the name of the party that is defending an appeal