The Canadian Judicial System
The Constitutional Framework
The organization of Canada’s judicial system is a function of Canada’s Constitution, and particularly of the Constitution Act, 1867. By virtue of that Act, authority for the judicial system in Canada is divided between the federal government and the ten provincial governments. The latter are given jurisdiction over "the administration of justice" in the provinces, which includes "the constitution, organization and maintenance" of the courts, both civil and criminal, in the province, as well as civil procedure in those courts. However, this jurisdiction does not extend to the appointment of the judges of all of these courts. The power to appoint the judges of the superior courts in the provinces - which includes the provincial courts of appeal as well as the trial courts of general jurisdiction - is given to the federal government, as is the obligation to provide for the remuneration of those judges and the authority to remove them. This latter authority is a limited one and, in fact, has never been exercised.
The federal government is also given the authority to establish "a General Court of Appeal for Canada and any Additional Courts for the better Administration of the Laws of Canada". It has used this authority to create the Supreme Court of Canada as well as the Federal Court of Appeal, the Federal Court and the Tax Court of Canada. The federal government also has, as part of its jurisdiction over criminal law, exclusive authority over the procedure in courts of criminal jurisdiction.
What emerges from these allocations of jurisdiction in the Constitution is a court system in which provincial governments have jurisdiction over both the constitution, organization and maintenance of, and the appointment of judges to, the lowest level of courts (generally known simply as "provincial courts"), while the federal government has authority over the constitution, organization and maintenance of, and the appointment of judges to, the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada. Authority over the superior courts in each province is shared between the provincial and federal governments; the provinces have jurisdiction over the constitution, organization and maintenance of these courts, while the federal government has authority to appoint the judges. The fact that jurisdiction over these courts is divided in this way means that, in order for these courts to function properly, the federal and provincial governments are required to cooperate in the exercise of their respective authorities.
Organization of Courts
The courts in Canada are organized in a four-tiered structure. The Supreme Court of Canada sits at the apex of the structure and, consistent with its role as "a General Court of Appeal for Canada", hears appeals from both the federal court system, headed by the Federal Court of Appeal and the provincial court systems, headed in each province by that province’s Court of Appeal. In contrast to its counterpart in the United States, therefore, the Supreme Court of Canada functions as a national, and not merely federal, court of last resort.
The next tier down from the Supreme Court of Canada consists of the Federal Court of Appeal and the various provincial courts of appeal. Two of these latter courts, it should be noted, also function as the courts of appeal for the three federal territories in northern Canada, the Yukon Territory, the Northwest Territories, and the Nunavut Territory.
The next tier down consists of the Federal Court, the Tax Court of Canada and the provincial and territorial superior courts of general jurisdiction. These latter courts can fairly be described as the lynchpin of the Canadian judicial system since, reflecting the role of their English counterparts, on which they were modelled, they are the only courts in the system with inherent jurisdiction in addition to jurisdiction granted by federal and provincial statutes.
At the bottom of the hierarchy are the courts typically described as provincial courts. These courts are generally divided within each province into various divisions defined by the subject matter of their respective jurisdictions; hence, one usually finds a Traffic Division, a Small Claims Division, a Family Division, a Criminal Division, and so on.
There are approximately 750 court locations in Canada. The Supreme Court of Canada sits only in Ottawa, although teleconferencing facilities to locations across the country are available. Hence it is possible for the parties to litigation before the Court to make their arguments in locations other than Ottawa, and to have those arguments transmitted to the Supreme Court of Canada via satellite. The other three federally established courts, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada, altogether have offices at seventeen permanent locations. The provincial and territorial courts sit at over 700 locations. These include fifteen permanent provincial and territorial appellate court sitting locations - one in each province and territory except for Quebec and Alberta, which have two each.
The Supreme Court of Canada
The Supreme Court of Canada was constituted in 1875 by an act of Parliament and is now governed by the Supreme Court Act. It is comprised of nine judges, including the Chief Justice of Canada, all appointed by the Governor-in-Council for terms of "good behaviour", with a minimum of three judges coming from Quebec. Traditionally, the Governor in Council has appointed three judges from Ontario, two from the Western provinces or Northern Canada and one from the Atlantic provinces. Supreme Court judges must live within forty kilometres of the National Capital Region.
The Supreme Court is a general court of appeal from all other Canadian courts of law. It, therefore, has jurisdiction over disputes in all areas of the law, including constitutional law, administrative law, criminal law and private law.
In most cases, appeals are heard by the Court only if leave is first given. Such leave will be given by the Court when a case involves a question of public importance, or if it raises an important issue of law or of mixed law and fact, or if the matter is, for any other reason, of such a nature or significance as to warrant consideration of the Court. Leave to appeal to the Court may also be given by a federal or provincial appellate court.
There are cases where leave is not required. In criminal cases, the Criminal Code gives a right of appeal where acquittal has been set aside in the provincial court of appeal or where, in the provincial court of appeal, one judge dissents on a point of law.
The Supreme Court does have a special kind of "reference" jurisdiction, original in character, given by s. 53 of the Supreme Court Act. The Governor-in-Council may refer to the Court, for its opinion, important questions of law or fact concerning the interpretation of the Constitution, the constitutionality or interpretation of any federal or provincial legislation, or the powers of Parliament or of the provincial legislatures or their respective governments or any other important question of law or fact concerning any matter. Where the government of any province has any special interest in any question put in reference, the Attorney General of the province shall be notified in order that he or she may be heard.
Constitutional questions may also be raised in regular appeals involving individual litigants or governments or governmental agencies. In such cases the federal and provincial governments are notified of the constitutional question and may intervene to argue it.
In light of the broad scope of the Supreme Court of Canada’s jurisdiction, it is clear that the Canadian judicial system differs from that of many continental European and Latin and South American countries, where it is not unusual for there to be separate courts of last resort for both constitutional law and administrative law cases in addition to a general court of appeal.
The Federal Court of Appeal and the Federal Court have a long history. Since 2003, they are the successors of the appeal and trial divisions of the Federal Court of Canada, which in 1971 succeeded the Exchequer Court of Canada which itself was created in 1875 and had jurisdiction only over revenue, the Crown in Right of Canada as litigant, industrial and intellectual property, admiralty and a few other subject matters regulated by federal legislation. The Federal Court was given jurisdiction over these matters, but in addition was given the power of judicial review with respect to decisions of federal administrative tribunals and jurisdiction over claims with respect to several other matters falling within federal legislative jurisdiction, including inter-provincial transportation and communication undertakings, bills of exchange and aeronautics. These latter grants of new jurisdiction have spawned a good deal of litigation regarding the nature and scope of the federal government’s authority to grant jurisdiction to courts of its own making. Generally speaking, the Supreme Court of Canada has interpreted that power narrowly, with the result that the Federal Courts now exercise jurisdiction over a somewhat narrower range of disputes than was initially intended.
Tax Court of Canada
The Tax Court of Canada was established in 1983 and has as its primary responsibility, the hearing of appeals in the area of income tax. Its predecessor, the Tax Review Board, was an administrative tribunal.
Provincial and Territorial Superior Courts
The superior courts of each province and territory include both a court of general trial jurisdiction and a provincial court of appeal. A significant feature of these courts insofar as their jurisdiction is concerned is that that jurisdiction is not limited to matters over which the provincial governments have legislative jurisdiction. In this respect, they are very different from the state courts in the United States. Hence these courts have jurisdiction over disputes arising in many of the areas over which the federal government is granted legislative jurisdiction in the Constitution Act, 1867 - for example, criminal law and banking. Moreover, the power to decide disputes in such areas does not have to be explicitly assigned to these courts by the federal government in order for these courts to have jurisdiction over them. Hence, if federal legislation calls for the exercise at some point of judicial authority, but says nothing about which body is to exercise that authority, it is assumed that that authority will reside with these courts.
As noted above, therefore, these courts can fairly be described as the lynchpin of the Canadian judicial system.
Provincial and Territorial Courts
Although at the bottom of the hierarchy, these courts handle the overwhelming majority of cases that come into the Canadian court system. They deal with a broad range of criminal matters, much of the litigation in the area of family law, and all of the civil litigation in which the amount at issue is relatively small. If the average citizen has occasion to become involved in a dispute that requires adjudication on the part of a court, the likelihood is that he or she will appear before one of these courts.
Although not formally part of the Canadian judicial system, because they are not in a formal sense "courts", administrative tribunals are an integral component of the system that has been created in Canada by government to resolve disputes. No description of the latter system would be complete without mention being made of these important bodies. Some areas - for example, labour relations (both in the unionized and in the non-unionized sectors of the economy) and individual claims of discrimination in areas like employment, housing and access to services and facilities customarily available to the public - are dealt with almost exclusively by them.
In the case of some of these administrative tribunals, the courts are limited in their supervisory jurisdiction to ensuring that the tribunals do not exceed the jurisdiction given them by their enabling statutes; insofar as these tribunals are concerned, the final say on questions of law that arise within their jurisdiction rests with them, not with the courts. This is generally true in the case of labour relation tribunals. In the case of other tribunals, such as those established to deal with claims of discrimination, the courts exercise a broader supervisory authority which extends not only to ensuring that jurisdiction is not exceeded, but also to reviewing decisions on questions of law that arise within jurisdiction. However, even in the case of these latter tribunals, the courts have often, at least in recent years, tended to show a good deal of deference to these tribunals when reviewing decisions of the latter kind.
All members of the judiciary in Canada, regardless of the court, are drawn from the legal profession. In the case of those judges appointed by the federal government, which includes the judges of all of the courts apart from those at the bottom of the hierarchy and described generally as provincial courts, are required by federal statute to have been a member of a provincial or territorial bar for at least ten years. Lawyers wishing to become judges must apply to do so and their applications are vetted initially by committees established within the various jurisdictions for that purpose, with the ultimate power of decision residing with the federal cabinet. Analogous systems operate within the respective provinces for appointments to the provincial courts.
All judges in Canada are subject to mandatory retirement. In the case of some of the judges appointed by the federal government, the age of retirement is fixed by the Constitution Act, 1867, at 75. In the case of all other judges, both federally and provincially appointed, the age is fixed by statute, at either 75 or 70, depending on the court.
The independence of the judiciary in Canada is guaranteed both explicitly and implicitly by different parts of the Constitution of Canada. This independence is understood to consist in security of tenure, security of financial remuneration and institutional administrative independence.
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