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CHAPTER 2
The parts of this chapter that describe the various courts and levels of courts in Canada,
the United States and England are useful background. They are reference material that
students should not be expected to memorize.
The machinery of justice or procedural law contrasts nicely with the rest of the text
which contains almost entirely substantive law. Procedural law covers the form or the
organization of a legal system and its methods of conducting trials. Business students
have a curiosity about procedure even though it is not part of their professional interest,
and they may experience some sense of frustration if their studies are confined only to
substantive legal rules. Indeed, for business purposes, procedural law has a substantive
component. Businesses must decide whether to sue or simply to accept a loss; to defend
an action or to settle out of court. Legal risk management plans often approach the
litigation process in a strategic way; they may settle most claims in order to reduce costs
or they may prefer to litigate everything to discourage frivolous claims. An awareness of
the related costs and risks is necessary to make these decisions.
Since students receive a great deal of American information from literature and the
media, they may well have ideas about court costs and contingency fees that are incorrect
as far as Canadian procedural law is concerned. For example, the Canadian (and English)
practice of awarding costs to the winning side means that a business person
contemplating litigation faces a greater risk in the event of failure than does a counterpart
in the United States. Hence, litigation strategy is often different in the two countries. See
International Issue – The System of Courts in the United States (Source p. 35)
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Copyright © 2013 Pearson Canada Inc.
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Copyright © 2013 Pearson Canada Inc.
The Machinery of Justice Chapter 2
S.O. 2009, c. 3. This legislation prohibits an apology from being used as an “admission
against interest” in subsequent litigation. (See Ellen Desmond “Saying Sorry: Apology
legislation makes it a lot easier” Lawyers Weekly, Vol. 28, No. 33, March 28, 2008)
The text deals briefly with the issue of solicitor client privilege, a topic of fundamental
importance to access to justice. Instructors wanting to present these two topics together
should refer to the Ethical Issue box in Chapter 23 at p. 585 in the text (Money
Laundering and Solicitor-Client Privilege) dealing with anti-money laundering
legislation. A key case in understanding the importance of solicitor client privilege is
Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44
(summarized in Chapter 33, Case 33.3 at p. 874).
The Business and the Legal Profession section emphasizes the expanded role of lawyers
in everyday business. Students should be encouraged to see lawyers in a non-traditional
context.
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Copyright © 2013 Pearson Canada Inc.
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BILIBID.
As we are going to press, there comes to hand a little pamphlet
describing the industries and production of Bilibid.
Why not send our wardens who desire to do things to Bilibid?
Perhaps, it would be better to send our legislators, who after
observing the practical achievements of Bilibid may be induced to
authorize our wardens to inaugurate a sound industrial policy.
Where is Bilibid? Take the train for San Francisco, engage passage
on some leviathan of the deep and get off probably at the second
station which is Manila. Thence it is a short excursion to Bilibid, a trip
taken by twenty thousand visitors in a single year, not to mention
those who take involuntary trips thither.
Forty buildings, seventeen acres of ground, plan of main building like
Eastern Penitentiary, one of the best ever constructed if we consider
continual inspection as an essential factor. 2800 prisoners there; as
many others in prisons elsewhere in the islands but all co-ordinated
under a central administration.
The great aim is to prepare the inmates for “honorable position in the
community upon their release.”
The men work and play. We enumerate some of the industries.
PENNSYLVANIA.
William E. Mikell, Member of State Commission to Revise
the Criminal Code.
The work of the commissioners who framed the Code of 1860 shows
an utter lack of any consistent theory not only of grading the crimes
as felonies and misdemeanors, but also in grading the punishment
fixed for the various crimes. It may not be easy to do this in all cases.
Persons may intelligently differ as to whether perjury should be more
seriously punished than assault and battery, and whether larceny or
bigamy be deserving of the greater penalty. But it is difficult to see
why embezzlement by a consignee or factor should be punished with
five years’ imprisonment and embezzlement by a person
transporting the goods to the factor should be punished by one
year’s imprisonment. * * *
Under the Act of 1860, having in possession tools for the
counterfeiting of copper coin is punished by six years’ imprisonment,
while by the next section the punishment for actually making
counterfeit copper coin is only three years, though it cannot be made
without the tools to make it. * * *
The distinction just mentioned is, however, no stranger than that
made by the code between a councilman on the one hand and a
judge on the other, in the provisions against bribery. Section 48 of
the Act of 1860 provides that if any judge * * * shall accept a bribe,
he shall be fined not more than $1000 and be imprisoned for not
more than five years. But by Section 8 of the Act of 1874, a
councilman who accepts a bribe may be fined $10,000, ten times as
much as a judge, and be imprisoned the same number of years—
five years. The statute also provides that the councilman shall be
incapable of holding any place of profit or trust in this
Commonwealth thereafter. But the convicted judge is placed under
no such disability.
In the case of almost every crime denounced by the code fine and
imprisonment are associated. In most cases the penalty provided is
fine and imprisonment, in some it is fine or imprisonment. In a few
cases imprisonment alone without a fine is prescribed, and in a few
others it is a fine alone without imprisonment. We seek in vain for
any principle on which the fine is omitted, where it is omitted; or for a
principle on which it is inflicted in addition to imprisonment in some
cases, and as an alternative to imprisonment in others. Thus the
penalty for exhibiting indecent pictures on a wall in a public place is a
fine of $300, but no imprisonment, while by the same act the drawing
of such pictures on the same wall carries a fine of $500 and one
year’s imprisonment. Manslaughter carries a fine of $1000 as well as
imprisonment for twelve years, but train robbery and murder in the
second degree involve no fine, but fifteen and twenty years in prison
respectively. It cannot be the length of the imprisonment that does
away with the fine in this latter case, for the crime of aiding in
kidnapping may be punished with twenty-five years in prison, but
also has a fine of $5000.
More striking still, perhaps, is the lack of any relation between the
amount of the fine and the length of the imprisonment provided in the
code. In the case of some crimes the fine is small and the
imprisonment short, as in blasphemy, which is punished by a fine of
$100 and three months in prison, extortion and embracery punished
with $500 and one year. In a few the fine is large and the
imprisonment long, as in accepting bribes by councilmen, $10,000
and five years, and malicious injury to railroads, $10,000 and ten
years. But in others the fine is small while the imprisonment is long
and in others the fine large and the imprisonment short.
Incomplete Crimes.
CLINICAL WORK.