Court system of Canada

The court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial.

The Canadian constitution gives the federal government the exclusive right to legislate criminal law while the provinces have exclusive control over civil law. The provinces have jurisdiction over the administration of justice in their territory. Almost all cases, whether criminal or civil, start in provincial courts and may be eventually appealed to higher level courts. The quite small system of federal courts only hear cases concerned with matters which are under exclusive federal control, such as immigration. The federal government appoints and pays for both the judges of the federal courts and the judges of the superior-level court of each province. The provincial governments are responsible for appointing judges of the lower provincial ("inferior-level") courts.

This intricate interweaving of federal and provincial powers is typical of the Canadian constitution.

Outline of the Court system

Very generally speaking, Canada's court system is a four-level hierarchy as shown below from highest to lowest in terms of legal authority. Each court is bound by the rulings of the courts above them; however, they are not bound by their own past rulings or the rulings of other courts at the same level in the hierarchy.

Supreme Court of Canada

Although created by an Act of the Parliament of Canada in 1875, its decisions could be reviewed by the Judicial Committee of the Privy Council until 1949 when the Supreme Court of Canada truly became the final and highest court in the country. The court currently consists of nine justices, which include the Chief Justice of Canada, and its duties include hearing appeals of decisions from the appellate courts (to be discussed next) and, on occasion, delivering references (i.e., the court's opinion) on constitutional questions raised by the federal government. By law, three of the nine justices are appointed from Quebec because of Quebec's use of civil law.

Appellate courts of the provinces and territories

These courts of appeal (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels and were separately constituted in the early decades of the 20th century, replacing the former Full Courts of the old Supreme Courts of the provinces, many of which were then re-named Courts of Queens Bench. Their function is to review decisions rendered by the superior-level courts and to do references (i.e., deliver a judicial opinion) when requested by a provincial or territorial government. These appellate courts do not normally conduct trials and hear witnesses.

These courts are Canada's equivalent of the Court of Appeal in England and the various State Supreme Courts and U.S. Courts of Appeals in the United States. Each of the above-listed appellate courts is the highest court from its respective province or territory. A province's chief justice (i.e., highest ranking judge) sits in the appellate court of that province.

Superior-level courts of the provinces and territories

These courts (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels. The superior courts are the courts of first instance for divorce petitions, civil lawsuits involving claims greater than small claims, and criminal prosecutions for "indictable offences" (i.e., "felonies" in American legal terminology). They also perform a reviewing function for judgements from the local "inferior" courts and administrative decisions by provincial or territorial government entities such as labour boards, human rights tribunals and licensing authorities.

Furthermore, some of these superior courts (like the one in Ontario) have specialized branches that deal only with certain matters such as family law or small claims. To complicate things further, the Ontario Superior Court of Justice has a branch called the Divisional Court that hears only appeals and judicial reviews of administrative tribunals and whose decisions have greater binding authority than those from the "regular" branch of the Ontario Superior Court of Justice. Although a court, like the Supreme Court of British Columbia, may have the word "supreme" in its name, it is not necessarily the highest court from its respective province or territory.

Provincial and territorial ("inferior") courts

Each province and territory in Canada has an "inferior" or "lower" trial court, usually called a "provincial court" to hear certain types of cases. Appeals from these courts are heard either by the superior court of the province or territory or by the Court of Appeal. In criminal cases, this depends on the seriousness of the offence. These courts are created by provincial statute and only have the jurisdiction granted by statute. Accordingly, inferior courts do not have "inherent jurisdiction". These courts are usually the successors of older local courts presided over by lay magistrates and justices of the peace who did not necessarily have formal legal training. However, today all judges are legally trained, although justices of the peace may not be. Many inferior courts have specialized functions, such as hearing only criminal law matters, youth matters, family law matters, small claims matters, "quasi-criminal" offences (i.e., violations of provincial statutes), or bylaw infractions. In some jurisdictions, these courts serve as an appeal division from the decisions of administrative tribunals.

Courts of the federal level

The Federal Court and the more specialized Tax Court of Canada exists primarily to review administrative decisions by federal government bodies such as the immigration board and hear lawsuits under the federal government's jurisdiction such as intellectual property and maritime law.

The Federal Court of Appeal hears appeals from decisions rendered by the Federal Court, the Tax Court of Canada and a certain group of federal administrative tribunals like the National Energy Board and the federal labour board. All judges of the Federal Court are ex officio judges of the Federal Court of Appeal, and vice versa, although it is rare that a judge of one court will sit as a member of the other.

Before 2003, the Federal Court was known as the Federal Court of Canada - Trial Division while the Federal Court of Appeal was known as the Federal Court of Canada - Appeal Division. In turn, the Federal Court of Canada descended from the old Exchequer Court of Canada, which was created in 1875.

Although the federal courts can be said to have the same prestige as the superior courts from the provinces and territories, they lack the "inherent jurisdiction" (to be explained later) possessed by superior courts such as the Ontario Superior Court of Justice.

Courts of military law

Court Martial Appeal Court of Canada
various military courts called "courts martial"
- General Court Martial
- Disciplinary Court Martial
- Standing Court Martial
- Special General Court Martial

The "courts martial" are conducted and presided over by military personnel and exist for the prosecution of military personnel, as well as civilian personnel who accompany military personnel, accused of violating the Code of Service Discipline, which is found in the National Defence Act (R.S.C. 1985, Chapter N-5) and constitutes a complete code of military law applicable to persons under military jurisdiction.

The decisions of the courts martial can be appealed to the Court Martial Appeal Court of Canada which, in contrast, exists outside the military and is made up of civilian judges. This appellate court is the successor of the Court Martial Appeal Board which was created in 1950, presided over by civilian judges and lawyers, and was the first ever civilian-based adjudicating body with authority to review decisions by a military court. The Court Martial Appeal Court is made up of civilian judges from the Federal Court, Federal Court of Appeal, and the superiour courts of the provinces. The current Chief Justice of the Court Martial Appeal Court (as of September 17, 2004) is Edmond P. Blanchard.

Federal and provincial administrative tribunals

Known in Canada as simply "tribunals", these are non-judicial adjudicative bodies, which means that they adjudicate (hear evidence and render decisions) like courts, but are not presided over by judges. Instead, the adjudicators may be experts of the very specific legal field handled by the tribunal (e.g., labour law, human rights law (known in the US as "civil rights law"), immigration law, energy law, liquor licensing law, etc.) who hear arguments and evidence provided by lawyers before making a written decision on record. Its decisions can be reviewed by a court through an appeal or a process called "judicial review". The reviewing court may be required to show some deference to the tribunal if the tribunal possesses some highly specialized expertise or knowledge that the court does not have. The degree of deference will also depend on such factors as the specific wording of the legislation creating the tribunal.

Tribunals may take into consideration the Canadian Charter of Rights and Freedoms, which is part of Canada's constitution. The extent to which tribunals may use the Charter in their decisions is a source of ongoing legal debate.

Appearing before some administrative tribunals may feel like appearing in court, but the tribunal's procedure is relatively less formal than that of a court, and more importantly, the rules of evidence are not as strictly observed. In other words, some evidence that would be inadmissible in a court hearing could be allowed in a tribunal hearing. The presiding adjudicator is normally called "Mister/Madam Chair". As is the case in court, lawyers routinely appear in tribunals advocating matters for their clients. A person does not require a lawyer to appear before an administrative tribunal. Indeed, many of these tribunals are specifically designed to be more representative to unrepresented litigants than courts. Furthermore, some of these tribunals are part of a comprehensive dispute-resolution system, which may emphasize mediation rather than litigation. For example, provincial human rights commissions routinely use mediation to resolve many human rights complaints without the need for a hearing.

What tribunals all have in common is that they are created by statute, their adjudicators are appointed by government, and they focus on very particular and specialized areas of law. Because some subject matters (e.g., immigration) fall within federal jurisdiction while others (e.g., liquor licensing) in provincial jurisdiction, some tribunals are created by federal law while others are created by provincial law. There are both federal and provincial tribunals for some subject matters such as unionized labour and "human rights".

Most importantly, from a lawyer's perspective, is the fact that the principle of stare decisis does not apply to tribunals. In other words, a tribunal adjudicative could legally make a decision that differs from a past decision, on the same subject and issues, delivered by the highest court in the land. Because a tribunal is not bound by legal precedent, established by itself or by a reviewing court, a tribunal is not a court even though it performs an important adjudicative function and contributes to the development of law like a court would do. Although stare decisis does not apply to tribunals, their adjudicators will nonetheless find a prior court decision on a similar subject to be highly persuasive and will likely follow the courts in order to ensure consistency in the law and to prevent the embarrassment of having their decisions overturned by the courts.

Among the federal tribunals, there is a small group of tribunals whose decisions must be appealed directly to the Federal Court of Appeal rather than to the Federal Court Trial Division. These so-called "super tribunals" are listed in Subsection 28(1) of the Federal Court Act (R.S.C. 1985, Chapter F-7) and some examples include the National Energy Board, Canadian International Trade Tribunal, the Competition Tribunal, the Canada Industrial Relations Board (i.e. federal labour board), the Copyright Board, and the Canadian Radio-television and Telecommunications Commission ("CRTC").

Courts of inherent jurisdiction

The superior courts from the provinces and territories are courts of inherent jurisdiction, which means that the jurisdiction of the superior courts is more than just what is conferred by statute. Following the principles of English common law, because the superior courts derive their authority from the Constitution, they can hear any matter unless there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to some other court or tribunal. The doctrine of "inherent jurisdiction" gives superior courts greater freedom than statutory courts to be flexible and creative in the delivering of legal remedies and relief.

Statutory courts

The Supreme Court of Canada, the federal courts, the various appellate courts from the provinces and territories, and the numerous low-level provincial courts are statutory courts whose decision-making power is granted by either the federal parliament or a provincial legislature.

The word "statutory" refers to the fact that these courts' powers are derived from a statute and is defined and limited by the terms of the statute. A statutory court cannot try cases in areas of law that are not mentioned or suggested in the statute. In this sense, statutory courts are similar to non-judicial adjudicative bodies such as administrative tribunals, boards, and commissions, which are created and given limited power by legislation. The practical implication of this is that a statutory court cannot provide a type of legal remedy or relief that is not expressly or implicitly referred to in its enabling or empowering statute.

Appointment and regulation of judges

Judges in Canada are appointed and not elected. Judges of the Supreme Court of Canada, the federal courts, the appellate courts and the superior-level courts are appointed by the federal government. Thus, judges of the Ontario Superior Court of Justice are chosen not by Ontario's provincial government but by the same level of government that appoints judges to the federal courts. Meanwhile, judicial appointments to judicial posts in the so-called "inferior" or "provincial" courts are made by the local provincial governments.

There are Canadians who would like to see their judges be elected as is the case for some American judges,^{[citation needed]} but as of 2007 there is no indication that the longstanding British tradition of appointing judges will be altered in Canada anytime soon. It is doubtful if an elected judiciary would be consistent with the Canadian constitution. Those who favour the appointment method point out that the election approach could possibly threaten the judiciary's ability to be independent in its decision-making. Though political patronage has certainly been a factor in the appointment of some judges, judges appointed to the Supreme Court of Canada have been remarkably non-partisan and well respected by Canadians of all political stripes.

Because judicial independence is seen by Canadian law to be essential to a functioning democracy, the regulating of Canadian judges requires the involvement of the judges themselves. The Canadian Judicial Council, made up of the chief justices and associate chief justices of the federal courts and of each province and territory, receives complaints from the public concerning questionable behaviour from members of the bench.

Salaries of superior courts are set by Parliament under section 100 the Constitution Act, 1867. Since the Provincial Judges Reference of 1997, provincial courts' salaries are recommended by independent commissions, and a similar body called the Judicial Compensation and Benefits Commission was established in 1999 for federally-appointed judges.

Language used in Court

Although English and French are both official languages of Canada, not every court in Canada is bilingual in real practice. It depends on which province or territory a particular court is based in. The federal courts as well as the courts in New Brunswick and Ontario are bilingual, for example, but some others (e.g., the courts in Alberta) are generally English only or, for practical reasons, do not normally provide court services in the French language.

However, either official languages may be used by any person or in any pleading or process in or issuing from any Court of Canada established under the Constitution Act, 1867 and in or from all or any of the Courts of Quebec.

Furthermore, under section 14 of the Canadian Charter of Rights and Freedoms a party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Court customs

Courtroom custom is largely based upon the British tradition, with a few modifications.

Symbols

Canadian courts derive their authority from the monarch. Consequently, important symbols in a courtroom include the picture of the monarch and the heraldic Arms of Canada, although many courtrooms do not have a picture of the monarch. Many courts display Canadian and provincial flags. In British Columbia courts, the Royal coat of arms of the United Kingdom is displayed. In the Supreme Court of Newfoundland and Labrador, the Coat of Arms of the United Kingdom is displayed.

Dress

In superior courts, lawyers wear black robes and white neck tabs, like barristers in the United Kingdom, but they do not wear wigs. Business attire is appropriate when appearing before judges of inferior courts or justices of the peace.

Judges dress in barrister's robes like the lawyers. Judges of some courts adorn their robes with coloured sashes. For example, Federal Court Judges' robes are adorned with a gold sash, and Tax Court of Canada Judges' robes with a purple sash.

Etiquette/Decorum

Judges do not use gavels. Instead, a judge raises his or her voice (or stands up if necessary) to restore order in the courtroom.

In most jurisdictions, when entering or leaving a courtroom when there is a judge seated inside, one should bow, while standing inside the court but near the doorway, in the direction of the seated judge. Many lawyers also bow when crossing the bar.

Judges of superior courts in some provinces are traditionally addressed as "My Lord" or "My Lady," but in other provinces are referred to as "Your Honour". Judges of inferior courts are always traditionally referred to in person as "Your Honour". The practice varies across jurisdictions, with some superior court judges preferring the titles "Mister Justice" or "Madam Justice" to "Lordship". Judges of the Supreme Court of Canada and of the federal-level courts prefer the use of "Mister/Madam (Chief) Justice". Justices of the Peace are addressed as "Your Worship".

Judges of inferior courts are referred to as "Judge [Surname]" while judges of superior and federal courts are referred to as "Mister/Madam Justice [Surname]," except in Ontario, where all trial judges in referred to as "Mister/Madam Justice".

A lawyer advocating in court typically uses "I" when referring to him or herself. The word "we" is not used, even if the lawyer is referring to him/herself and his/her client as a group.

The judge in court refers to a lawyer as "counsel" (not "counsellor"), or simply "Mr./Ms. [surname]". In Quebec, the title "Maître" is used.

In court, it is customary for opposing counsel to refer to one another as "my friend", or sometimes (usually in the case of Queen's Counsel) "my learned friend".

In any criminal law case, the prosecuting party is "the Crown" while the criminally prosecuted person is called the "accused" (not the "defendant"). The prosecuting lawyer is called "Crown Counsel" (or, in Ontario, "Crown attorney"). Crown counsel in criminal proceedings are customarily addressed and referred to as "Mr Crown" or "Madam Crown."

The "versus" or "v." in the style of cause of Canadian court cases is often pronounced "and" (rather than "vee" or "versus" as in the US or "against" in criminal proceedings in the US, Scotland, and Australasia). For example, Roncarelli v. Duplessis is pronounced "Roncarelli and Duplessis".

Procedure

There are no so-called "sidebars" where lawyers from both sides "approach the bench" in order to have a quiet and discreet conversation with the judge while court is in session.

Trial judges typically take a passive role during trial; however, during their charge to the jury, judges may comment upon the value of certain testimony or suggest the appropriate amount of damages in a civil case, although they are required to tell the jury that it is to make its own decision and is not bound to agree with the judge.

Jury trials are less frequent than in the United States and usually reserved for serious criminal cases. A person accused of a crime punishable by imprisonment for five years of more has the constitutional right to a jury trial. Only British Columbia and Ontario regularly use juries in civil trials.

Evidence and documents are not passed directly to the judge, but instead passed to the judge through the court clerk. The clerk, referred to as "Mister/Madam Clerk" or "Mister/Madam Registrar", also wears a robe and sits in front of the judge and faces the lawyers.

In some jurisdictions, the client sits with the general public, behind counsel's table, rather than beside his or her lawyer at counsel's table. The accused in a criminal trial sits in the prisoners box often located on the side wall opposite the jury, or in the middle of the courtroom. However it is becoming increasingly common for accused persons to sit at counsel table with their lawyers.

In some large Canadian cities, the superior-level courts employ judicial officers known as "Masters" who deal only with interlocutory motions (or interlocutory applications) in civil cases. With such Masters dealing with the relatively short interlocutory motion/application hearings, trial judges can devote more time on more lengthy hearings such as trials. In the Federal Court, a Prothonotary holds a similar positions to that of a Master.

References

Leishman, Rory, Against Judicial Activism : The Decline of Freedom and Democracy in Canada, McGill-Queen's University Press, 2006, ISBN 0773530541

External links