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.

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 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. 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. In some jurisdictions, these courts also serve as an appeal division from the decisions of administrative tribunals.

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 may be 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 expertise or 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 could 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" (in American legal parlance, the "civil rights" of marginalized or/and disadvantaged social groups such as women, racial minorities, the disabled, homosexuals, certain religious groups, etc.).

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 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 (i.e. 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 fact 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 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 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, but as of 2006 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 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.

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:

• 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.

• Selecting a jury is a minor part of a 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 much more infrequent than in the US and usually reserved for serious criminal cases. 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 barristers in the United Kingdom, but they do not wear wigs. 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.

• Judges dress like the lawyers with the exception of red sash across the torso. A Justice of the Peace would wear a green sash.

• 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 prominent courts display Canadian and provincial flags.

• 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.

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

• 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.

• 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.

• Judges are traditionally called "My Lord" or "My Lady", or more formally, "Your Lordship" and "Your Ladyship". Although certain jurisdictions have changed it to calling judges "Your Honour" (or "Mister Justice" or "Madam Justice"). Judges of the Supreme Court of Canada and of the federal-level courts prefer the use of "Your Honour" or "Mister/Madam (Chief) Justice". 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]". 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.

• In large Canadian cities such as Toronto, Vancouver and Ottawa, the superior-level courts employ judicial officers known as "Masters" who deal only with interlocutory motions (or interlocutory applications). A Master, addressed as simply "Master" during court sessions, ranks higher than a Justice of Peace but lower than a regular trial judge. 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. Since a big city courthouse would employ only a handful of Masters and because lawyers appear regularly in court for interlocutory motions/applications, a busy litigation lawyer would likely appear before the same Master on many occasions.

• Justices of the Peace are addressed as "Your Worship", are found only in the lower provincial courts and do not necessarily possess a legal degree.

• When citing a Canadian court case such as Roncarelli v. Duplessis (a famous Canadian constitutional decision), it is pronounced "Roncarelli AND Duplessis". However, in criminal cases the "v." is typically pronounced as it is written.

• 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" while the criminally prosecuted person is called the "accused" (not the "defendant"). The prosecuting lawyer is called "Crown Counsel".

• A lawyer advocating in court always 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 calls the lawyer "Counsel" (not "Counsellor"). In Quebec, the title "Maître" is used.

• 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. "Solicitor" is the general yet polite word for a Canadian lawyer, just as the word "attorney" is used for meaning an American lawyer. (e.g. Mr. Jones received a demand letter from Mr. Smith's solicitor prior to Mr. Smith's commencement of the lawsuit.)

• Canadian lawyers do not add or use the pretentious and antiquated abbreviation "Esq." (Esquire) after their names. There is, however, the abbreviation "Q.C." (Queen's Counsel) for seasoned and distinguished lawyers who have been granted that privileged designation by the Crown. Despite what this title implies, any lawyer with the right to add "Q.C." to his or her name is not necessarily employed by the Crown or advocates for the Crown.

External links

• Supreme Court of Canada
• Federal Court and Federal Court of Appeal
• Tax Court of Canada
• Courts of the Northwest Territories
• Courts of Yukon
• Nunavut Court of Justice
• Courts of British Columbia
• Courts of Alberta
• Courts of Manitoba
• Courts of Saskatchewan
• Courts of Ontario
• Courts of Quebec
• Courts of New Brunswick
• Courts of Newfoundland
• Courts of Nova Scotia
• Supreme Court of Prince Edward Island
• Court Martial Appeal Court of Canada
• Canadian Judicial Council