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Is “judicial activism” democratic?

Is “judicial activism” democratic?. At what point does the judiciary’s interpretation of the law begin and the power of government [executive/legislative branches] to make decisions end?

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Is “judicial activism” democratic?

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  1. Is “judicial activism” democratic? • At what point does the judiciary’s interpretation of the law begin and the power of government [executive/legislative branches] to make decisions end? • Canadian Charter written “to ensure democracy was robust, substantive and allowed for a dialogue between Courts and governments” • Is the judiciary democratic? Kent Roach’s argument…. • International recognition of Section 1 of CCRF • Government avoidance/interpretation.

  2. Judicial Activism

  3. Judicial Activism? Chaoulli v Quebec (2005) Person’s Case (1927) Same Sex Marriage (2005)

  4. Sentencing • Guiding Questions • What are the traditional objectives of sentencing? • Are these objectives changing? What is influencing this change? • What are the goals of sentencing per the Canadian Criminal Code? • What sentencing options are available to judges? • What is the appeal process, and for whom? • What is the objective of release? • What are the options for release? Chapter 9

  5. Sentencing: Objectives Restitution Public Safety? Order? Peace? Rehabilitation Retribution

  6. Sentencing: Factors to Consider Page 252

  7. Sentencing: Factors to Consider Criminal Code vs. Charter • Proscribes sentences available for the offense • Subject to political discussion (minimum sentences for gun crimes, no pardons for pedophilic offenses • Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. (Section 12).

  8. Sentencing: Purpose and Principles Deterrence Segregation Rehabilitation Retribution

  9. Sentencing: Purpose and Principles • Proportionality • Mitigating circumstances • Aggravating circumstances • Section 718.2

  10. Sentencing: Options • Community Service • Deportation • Fine • Imprisonment • Capital Punishment • Restorative Justice • Absolute/Conditional Discharge • Suspended Sentence/Probation • Conditional Sentence • Suspension of Privilege • Peace Bond • Restitution/Compensation Page 258

  11. Sentencing: Appeals • Both accused and Crown have the right to appeal sentence. • Votes and reasons/dissenting arguments disclosed. • Results: Change verdict, change sentence, order new trial. • Hierarchy of courts in effect. • Summary offenses • Transcripts, statements of facts reviewed. • Higher court appeals hear arguments. • New evidence only admissible if relevant, credible and impactful. • Question of law (interpretation) or fact (relevance, credibility of evidence) • Indictable offenses • Defense: law, law and fact, fact alone (requires permission), other reason deemed worthy • Crown: law, sentence (requires permission), stay of proceedings or invalid indictment

  12. Looking Ahead • Restorative Justice (Guest Speaker January 13rd- Catherine Bargen) • Corrections System (Guest Speaker January 21st- Sandra Thiessen) • Young Offenders • Seminars: Wrongly accused/convicted, Minorities in the system, Legal Aid, Legal Fees • Comparative Assessments

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