Access To Justice In Canadas Criminal Jurisdiction (Essay Sample)

Access to justice in Canada’s criminal jurisdiction
Name
Institution
Access to justice in Canada’s criminal jurisdiction
Canada’s criminal law is governed by the exclusive jurisdiction of the Canadian federal government by its legislative powers. The Constitutional Act of 1867 gives the legislature the power to legislate or enact criminal law under section 91(27). Criminal prosecutions are also brought under the name “Queen in Right of Canada.” Access to justice in criminal law is a fascinating area of law in Canada. The Charter of Rights and Freedoms grants everyone the right to instruct and retain counsel on detention or arrest. The Constitution also protects the ability of the public to gain physical access to the court and to understand what is going on during court proceedings. The narrow view herein is therefore that the access to justice is equivalent to the access to courts (ACLRC, 2016).
The Legal Aid Alberta vision claims that everyone can access justice and thereby achieve resolutions that are fair and lasting. Low-income people are also granted legal assistance. However, in R v Moodie 2016 ONSC 3469, Justice Ian Nordheimer does not embrace these policies. He stayed the charges against the accused person, one Tyrell Moodie while awaiting the provision of counsel that is funded by the state. The charges levelled against him were serious and they raised very complex legal issues. The justice opine d that the legal aid guidelines of Ontario were having no rational relationship to what constitutes the poverty levels in the country. He therefore rejected the Crown’s suggestion to let Mr. Noodie raise funds. He was also a part-time employee oat a Girls and Boys club and lived with his mother and was facing a very serious drug charge. He was therefore not a viable candidate for a bank loan neither can he be able to pay his legal bills since he would not be able to get another job legitimately. He opined that the legislature had the legitimate role of setting legal aid levels and that at times it would be just and appropriate for a person to undergo a criminal trial while unrepresented. This case therefore brought to light the fact that Canadians can actually undergo criminal trials and face criminal sanctions and imprisonment without having counsel to represent them in court. This happens because they are poor (Woolley, 2016).
Courts are usually not necessarily willing to facilitate an accused person with counsel. In this instance per se, in R v Martin 2015 NCSA 82, the Court of Appeal of Nova Scotia described how the accused person had represented himself in defending himself with regards to 25 to 26 charges on evasion of taxes. He successfully had the charges dismissed against him based on Charter grounds. This result was however reversed on the summary conviction appeal where he was still representing himself. He was denied legal aid for appeal even though the Crown acknowledged the fact that the accused did not have the financial avenues nor resources to be able to retain a lawyer. However, the Court of Appeal never appointed counsel for him because his case was not complex. It would therefore make a determination and the Crown had the duty to offer its assistance in ensuring that a fair trial is adduced to the appellant (Woolley, 2016).
Such setbacks as poverty that makes poor Canadians attend court without having lawyers to represent them especially I criminal charges raises many questions as to the kind of system that actually exists. The rule of law connotes the perception that people are not to be subjected to legal consequences except where they are justified legally. This therefore connotes a system that is adjudicated fairly i.e. with regards to its systems of argument and procedures and as to the view of lawyers who are a necessary part of the system (Woolley, 2016).
A comparison with other legal systems shows that access to justice, which is embraced in almost all constitution s every individual country worldwide is still subject to various debates. Professor Zander argued, “…but I know of no way of assessing to what extent “justice” was done in a sample of cases whiter civil or criminal. The question is too elusive, too complex to unravel/ it would require knowledge of too many unknowable facts. The concepts of justice in legal cases I suspect is too deep for any research project.” Zander examine the protection of human rights and the changes in the criminal and civil areas of justice in the United Kingdom. He argued that the Access to Justice Act of the UK had heralded major restrictions on the concept of access to justice itself. He thus argued that the reforms do not spring from a desire that is geared towards improving the access to justice but from the need of the Treasury to control the budget. Even though his arguments were founded on the United Kingdom’s set up, his analysis has given demonstrations on how political goals of limiting spending may affect the access to justice definition in the legal context and how it may have indispensable consequences for social justice as well. In Canada, the ideology of access to justice has been greatly influenced by the works of Florence Access-to-Justice Project. This has offered a comparative assessment of worldwide initiatives that have further contributed to broad conceptions of this concept. According to Garth and Cappelletti, there exists three waves of access to justice reforms; the first wave deals with legal aid provisions, the second with a group of procedural and substantive reforms that enable legal representations to be more diffuse by incorporating consumer and environmental protections while the third wave is labelled as the Cappelletti and Garth “Access to justice” approach due to its aspirations to attack barriers comprehensively and articulately. This third wave focused on changes in structure of courts, procedures, use of paraprofessionals in the bar and on the bench, use of lay persons, modifications of substantive laws to avoid disputes and facilitate resolutions and use of informal or private dispute resolution mechanisms.*** the second wave has improved criminal trials with regards to the requirements accruing to prosecutorial disclosure, broader sentencing options and the considerations of the impact of criminal activities on victims and their communities (Hughes & Mossman, 2001).
Access to justice in Canada has also been described to be ‘abysmal’ according to the report of the Canadian Bar Association. The report stated that there is unequal access to justice all over Canada. Justice that is not accessible costs the whole nation and it expels its most harsh consequences on the poor people or the poorest community within the country. The field of civil law has also seen an n increase in the number of people that are representing themselves. Many people in the country earn just enough money and hence they would not qualify for legal aid services but at the same time they do not also earn just enough to be able to pay a lawyer. They therefore find themselves in their own courtrooms. The court staff is also under pressure to walk a fine line with regards to dealing with legal documents like forms or offering legal advice of which they cannot provide (Graham, 2013).
Access to justice has different definitions to different people. In the narrowest sense it represents the formal ability for one to appear in court but it actually engages the wider social context of the court systems and the barriers in the system that various community members undergo. Access to justice is an old concept that until to date is still undergoing reforms in Canada. Its narrowest concept is the right to appear in court. This refers to a person’s formal right to defend or litigate as per the liberal 19th and 18th century states. Cappalletti and Garth argued on this point that even though access to justice was considered to be a ...