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Court system of Canada

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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 federal 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 the judges of the provincial superior courts as well as the federal courts. The provinces appoint the judges for the lower provincial 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.

File:Canadiancourtsystem.jpg
Canadian court system (Source Canadian Department of Justice)

Supreme Court of Canada

Although created by an Act of Canada's Parliament 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 government. By tradition, three of the nine justices are appointed from Quebec. This has come about because of two reasons, the Court will sometimes have cases heard by three of the nine justices and Quebec uses the civil code rather than common law, which requires the Court to have justices versed in the civil code.

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. 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.

  • Court of Appeal of Alberta
  • Court of Appeal for British Columbia
  • Manitoba Court of Appeal
  • Court of Appeal of New Brunswick
  • Supreme Court of Newfoundland and Labrador (Court of Appeal)
  • Court of Appeal for the Northwest Territories
  • Nova Scotia Court of Appeal
  • Nunavut Court of Appeal
  • Court of Appeal for Ontario
  • Supreme Court of Prince Edward Island - Appeal Division
  • Quebec Court of Appeal
  • Court of Appeal for Saskatchewan
  • Court of Appeal of the Yukon Territory

These courts are Canada's equivalent of the Court of Appeal in England and the various United States Courts of Appeals. 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.

  • Court of Queen's Bench of Alberta
  • Supreme Court of British Columbia
  • Court of Queen's Bench of Manitoba
  • Court of Queen's Bench of New Brunswick
  • Supreme Court of Newfoundland and Labrador (Trial Division)
  • Supreme Court of the Northwest Territories
  • Supreme Court of Nova Scotia
  • Nunavut Court of Justice
  • Ontario Superior Court of Justice
  • Supreme Court of Prince Edward Island - Trial Division
  • Quebec Superior Court
  • Court of Queen's Bench for Saskatchewan
  • Supreme Court of the Yukon Territory

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-level") Courts

These courts operate locally and exist only at the provincial and territorial levels. They do trials, often concerning "summary conviction offences" (i.e "misdemeanors" in U.S. legal vocabulary), but their judgements must be appealed to the "superior" courts instead of directly to the higher appellate courts. These "inferior" courts do not have "inherent jurisdiction" (to be explained later) and are descended from the old localized courts presided over by lay magistrates and Justices of the Peace who did not necessarily have formal legal training. Many of such "inferior" courts have specialized functions, such as hearing only criminal law matters, juvenile delinquency matters, family law matters, small claims matters, or "quasi-criminal" offences such as not paying fines or not complying with building safety standards.

It is improper to call these courts "inferior" and this derogatory term is used here only to help readers understand and remember these courts' subordinate relationship to the "superior" courts. Instead, the phrase "provincial court" or "territorial court" is often used to mean a low level court whose decisions can be reviewed by a "superior" court. Decades ago they were commonly referred to as "district courts" and "county courts".

Courts of the Federal Level

  • Federal Court
  • Tax Court of Canada
  • Federal Court of Appeal

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. The chief justice of the Federal Court sits in the Federal Court of Appeal.

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 is descended from the old Exchequer Court of Canada created back in 1875.

Although the federal type courts can be said to have the same prestige as the superior courts from the provinces and territories, the federal ones lack the "inherent jurisidiction" (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 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 the courts do BUT are not presided over by judges. Instead, the adjudicators are experts of the very specific legal field handled by the tribunal (e.g. labour law, human 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 legal knowledge that the court does not have.

Appearing before an administrative tribunal may feel like appearing in a court, but the appearing lawyer will appreciate the fact that the tribunal's procedure is relatively less formal than that of the court, and more importantly, the rules of evidence are not as strictly observed. In other words, evidence that would be inadmissible in a court hearing would be allowed in a tribunal hearing. The presiding adjudicator is normally called "Mister/Madam Chair", and lawyers routinely appear in tribunals advocating a matter for their clients.

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. Yet, there are both federal and provincial tribunals for some subject matters such as unionized labour and human rights.

Most importantly, from the 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 contribute 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. These so-called "super tribunals" are listed in Subsection 28(1) of the Federal Courts 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 (e.g. federal labour board), the Copyright Board, and the Canadian Radio-television and Telecommunications Commission ("CRTC").

Courts of Inherent Jurisdiction

These are the superior courts from the provinces and territories as discussed above. The words "inherent jurisdiction" refers to the idea that the decision-making power of Canada's superior courts is inherited from England's superior courts rather than granted by Canada's federal parliament or provincial legislatures. Because the superior courts possess "inherent jurisdiction", they can hear cases concerning any area of law except those which are specifically reserved by legislation for the lower "provincial" courts. The doctrine of "inherent jurisdiction" gives superior courts greater freedom than statutory courts (to be explained next) to be flexible and creative in the delivering of legal remedies and relief.

Statutory Courts

These courts include the Supreme Court of Canada, the different types of federal courts, the various appellate courts from the provinces and territories, and the numerous low level "provincial" courts. Their 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 type of legislation called a statute and is defined and limited by a 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, commissions, etc. 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 appellate courts and the "superior" 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 government.

There are Canadians who would like to see their judges be elected as is the case for some American judges, but as of 2005 there is no indication that the longstanding British tradition of appointing judges will be altered in Canada anytime soon. 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.

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 of the various courts, receives complaints from the public concerning questionable behaviour from members of the bench.

Language Used in Court

Although English and French are both official languages of Canada, not every court in Canada is bilingual. 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 Albertan courts) are generally English only.

Court Customs and Etiquette

A typical civilian courtroom in Canada may appear somewhat different from the American courtroom seen in U.S. news and televisions shows. These are some of the key differences (many of which reflect a rather Old World emphasis on class division and hierarchy):

  • Unlike American courts where a judge only acts as a referee between two warring parties, Canadian judges can take a much more active part in a trial. For example, during their charge to the jury, Canadian judges may comment upon the value of certain testimony or suggest the appropriate amount of damages in a civil case.
  • Selecting a jury is a minor part of a Canadian trial and is usually accomplished in a morning. Unless lawyers have explicit evidence that a member of a jury is biased they have to accept the luck of the draw.
  • Jury trials are rare in Canada and usually reserved for serious criminal cases. Canadian judges have the right to deny a request for a jury trial if they feel that the issues are too complex or require too much time to examine.
  • Lawyers wear black robes and white neck tabs, like the barristers in England, but without the wig. Yet, business attire is appropriate when the lawyer is appearing in a simple bail hearing before a Justice of the Peace or advocating at a small claims court.
  • Canadian courts are royal courts and derive their authority from the monarch. The most important symbols in a courtroom are the picture of the monarch and court's crest. However, many courts prominent display Canadian and provincial flags to satisfy public expectations as to what a real courtroom, like they see in the movies and television, should look like.
  • The judge does not have or use a gavel. He or she merely raises his or her voice (or stands up if necessary) to restore order in the courtroom. Canadian judges who cannot maintain order with a sharp word and frown would be considered ill-suited for the job.
  • There are no so-called "bench motions" where lawyers from both sides "approach the bench" and have a quiet, discreet and up close conversation with the judge while court is in session.
  • The client should sit 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.
  • In addition to standing up when the judge is entering the courtroom, judge and lawyers exchange bows before seating themselves. Like soldiers saluting an officer, this is a mark of respect to the position, not the person. After all, the judge is a representative of the monarch and maintains the monarch's peace.
  • 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.
  • Judges are traditionally called "My Lord" or "My Lady". Although the current trend is moving toward calling judges "Your Honour" (or "Mister Justice" or "Madam Justice"), some jurisdictions like Alberta (and some conservative judges and romantic lawyers) still prefer the old custom. In British Columbia, for example, judges of the lower Provincial court are customarily referred to as "Your Honour", while judges of higher courts are referred to as "My Lord" or "My Lady" or, more formally, "Your Lordship" and "Your Ladyship". Ironically, judges of the Supreme Court of Canada and of the federal-level courts prefer the use of "Your Honour" or "Mister/Madam (Chief) Justice". In any case, judges of the provincial and territorial ("inferior-level") courts are referred to as "JUDGE [judge's surname]" while judges of any higher court, including the federal-level courts, are referred to as "JUSTICE [judge's surname]". As far as the writer of this article knows, not anyone of Canada's current sitting judges is an actual hereditary lord or lady. The use of "My Lord" or "My Lady" in courtroom decorum is merely a reflection and reminder of the British roots of Canada's legal system. Yet, use of antiquated courtroom addresses such as "Me Lud" and expressions such as "Your Lordship is most generous" are inappropriate in this day and age.
  • When citing a Canadian court case such as Roncarelli v. Duplessis (a famous Canadian constitutional decision), one must say "Roncarelli AND Duplessis". The "v." in the case's title means "and" and not "versus", even though the parties are adversaries. Likewise, the case of R. v. Morgentaler (Canada's criminal law appeal legalizing abortion in 1988) should be cited as "The Queen AND Morgentaler".
  • When making a statement, assertion or argument to a judge, the lawyer should always begin with "I HUMBLY (or RESPECTFULLY) submit that ....". By using the words HUMBLY or RESPECTFULLY, the lawyer shows proper respect for the judge's seniority and knowledge.
  • When giving a document or any piece of evidence to a judge for his/her personal perusal or examination, the lawyer must not give it directly to the judge but must instead pass it to the attending court clerk (called "Mister/Madam Clerk") who also wears a robe and sits in front of the judge and faces the lawyers.
  • In any criminal law case, the prosecuting party is "the Crown" (the currently reigning monarch) while the criminally prosecuted person is called the "accused" (NOT the "defendant"). Serious crimes (i.e. "felonies") are called "indictable offences" while "less than serious" crimes (i.e. misdemeanours) are called "summary conviction offences". Needless to say, the prosecuting lawyer is called "Crown Counsel" and NOT "District Attorney".
  • A lawyer advocating in court always uses "I" when referring to him or herself. The word "we" is not used.
  • The judge in court calls the lawyer "Counsel" (NOT "Counsellor").
  • It is customary for lawyers appearing on opposite sides in court to refer to one another before the judge as "my friend" or sometimes "my learned friend".
  • Instead of using the word "lawyer" in a sentence, one uses the term "solicitor", even if one is speaking of a person who practices strictly as a barrister or litigator. The word "attorney" is NEVER used to refer to a practitioner of Canadian law. Thus, the concept of "attorney-client privilege" is called "solicitor-client privilege" in Canada.
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