The
court system of CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
is made up of many
courtA court is a body, often a governmental institution, with the authority to adjudicate legal disputes and dispense civil, criminal, or administrative justice in accordance with rules of law....
s differing in levels of legal superiority and separated by jurisdiction. Some of the courts are
federalThe government of Canada is established as a constitutional monarchy, with the powers and structure of the federal government established by the Constitution of Canada, which includes the written part, the decisions of courts, and unwritten conventions developed over time.-Usage:In Canadian...
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,
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
'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 generally 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 CanadaThe Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch represented by her Governor General the Senate, and the House of Commons, each element having its own officers and...
in 1875, its decisions could be reviewed by the
Judicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom, established by the Judicial Committee Act 1833. It is also the highest court of appeal for several independent Commonwealth countries, the UK overseas territories, and the British Crown dependencies...
until 1949 when the
Supreme Court of CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeal in the Canadian justice system...
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
referencesIn Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....
(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 lawCivil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which...
.
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.
- Alberta Court of Appeal
- British Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA does not directly hear appeals from the Provincial Court of British...
- Manitoba Court of Appeal
The Manitoba Court of Appeal is the highest Court of Appeal in the Canadian province of Manitoba. It was established in 1906. It is located in the Old Law Courts building at 408 York Avenue in Winnipeg, the capital city of Manitoba...
- New Brunswick Court of Appeal
- Supreme Court of Newfoundland (Court of Appeal)
In the Canadian province Newfoundland and Labrador, the Court of Appeal is at the top of the hierarchy of courts for the province...
- Court of Appeal for the Northwest Territories
The Court of Appeal for the Northwest Territories is the highest appellate court which hears appeals from criminal cases and civil cases of the Supreme Court of the Northwest Territories....
- Nova Scotia Court of Appeal
The Nova Scotia Court of Appeal is the court of appeal in the province of Nova Scotia, Canada. There are nine Justices, one Chief Justice, and two supernumerary Justices. The court sits in Halifax, which is the capital of Nova Scotia...
- Nunavut Court of Appeal
- Court of Appeal for Ontario
Supreme Court of Prince Edward Island - Appeal Division
The Supreme Court of Prince Edward Island is the top court in the Canadian province of Prince Edward Island and the highest Court of Appeals in the province....
- Quebec Court of Appeal
The Court of Appeal of Quebec is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal...
- Saskatchewan Court of Appeal
- Court of Appeal of the Yukon Territory
The Court of Appeal of the Yukon Territory is the highest appellate court for the Yukon Territory. It hears appeals of both criminal and civil cases from the Supreme Court of the Yukon Territory and Yukon Territorial Court....
These courts are Canada's equivalent of the
Court of AppealThe Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it....
in
EnglandEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west and the North Sea to the east, with the English Channel to the south separating it from continental...
and the various
State Supreme CourtsIn the United States, the state supreme court is the highest state court in the state court system.Generally, the state supreme court is exclusively for hearing appeals of legal issues. It does not make any finding of facts, and thus holds no trials...
and U.S. Courts of Appeals in the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
. 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 instanceA trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.A trial court of general jurisdiction is authorized to hear any type of civil or criminal case that is not committed exclusively to another court...
for divorce petitions, civil lawsuits involving claims greater than small claims, and criminal prosecutions for "
indictable offenceIn many common law jurisdictions , an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury...
s" (i.e., "
feloniesA felony is a serious crime in the United States and previously other common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
" 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
The Court of Queen's Bench of Alberta is the superior court of the Canadian province of Alberta.-History:The Court originates from the old Supreme Court of the Northwest Territories...
- Supreme Court of British Columbia
The Supreme Court of British Columbia is the superior trial court for the Canadian province of British Columbia. The BCSC hears civil and criminal law cases as well as appeals from the Provincial Court of British Columbia...
- Court of Queen's Bench of Manitoba
The Court of Queen's Bench of Manitoba is the superior court of the Canadian province of Manitoba. The court is divided into the Family Division and the General Division....
- Court of Queen's Bench of New Brunswick
The Court of Queen's Bench of New Brunswick is the superior court of the Canadian province of New Brunswick.- Structure :* The Court of Queen's Bench of New Brunswick consists of a Chief Justice among 21 judges plus 7 judges who have elected supernumerary status after many years of service and...
- Supreme Court of Newfoundland and Labrador
The Supreme Court of Newfoundland and Labrador is the superior court for the Canadian province of Newfoundland and Labrador. It is compromised of the following divisions:* Supreme Court of Newfoundland and Labrador...
(Trial Division)
- Supreme Court of the Northwest Territories
The Supreme Court of the Northwest Territories is the superior court of the Canadian territory of the Northwest Territories in cases of civil and criminal law, except those excluded by statute.-History:...
- Supreme Court of Nova Scotia
- Nunavut Court of Justice
The Nunavut Court of Justice is the superior court and territorial court of the Canadian territory of Nunavut. It is located in the Nunavut Justice Centre in Iqaluit. It was established on April 1, 1999 as Canada's only "unified" or single-level court...
- Ontario Superior Court of Justice
The Superior Court of Justice is the superior court of general jurisdiction for the Province of Ontario, Canada. It is the successor to the former Ontario Court of Justice , and was created on April 19 1999...
- Supreme Court of Prince Edward Island
The Supreme Court of Prince Edward Island is the top court in the Canadian province of Prince Edward Island and the highest Court of Appeals in the province....
- Trial Division
- Quebec Superior Court
Quebec Superior Court is the highest trial Court in the Province of Quebec, Canada. It consists of 144 judges who are appointed by the federal government.Chief Justices : [partial listing]* Frédéric Dorion * Jules Deschênes...
- Court of Queen's Bench for Saskatchewan
The Court of Queen's Bench of Saskatchewan is the superior court for the Canadian province of Saskatchewan. The Court hears civil and criminal law cases as well as appeals from the Provincial Court of Saskatchewan. It is a court of inherent jurisdiction and there is no monetary limit on the claims...
- Supreme Court of the Yukon Territory
The Supreme Court of the Yukon Territory is the court of general jurisdiction for the Canadian territory of Yukon. Civil and criminal cases are heard by the court, as well as, appeals from the Yukon Territorial Court, Yukon Small Claims Court and other quasi-judicial boards...
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 in its respective province or territory.
Most provinces have special courts dealing with small claims (lawsuits for less than a certain amount of money). These are typically divisions of the superior courts in each province. Parties often represent themselves, without lawyers, in these courts.
Provincial and territorial ("inferior") courts
Each province and territory in Canada has an "inferior" or "lower"
trialIn law, a trial is when parties to a dispute come together to present information in a formal setting, usually a court, before a judge, jury, or other designated finder of fact, in order to achieve a resolution to their dispute....
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 jurisdictionInherent Jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limit that authority or grants exclusive jurisdiction to some other court or tribunal...
". 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
- Federal Court
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
- Tax Court of Canada
The Tax Court of Canada , established in 1983 by the Tax Court of Canada Act, is a federal court which deals with matters involving companies or individuals and tax issues with the Government of Canada....
- Federal Court of Appeal
The Federal Court of Appeal is a Canadian appellate court that hears cases concerning federal matters arising from certain federal Acts. The court was created on July 2, 2003 by the Courts Administration Service Act when it and the Federal Court were split from its predecessor, the Federal Court of...
The Federal Court and the more specialized Tax Court of Canada exists primarily to review administrative decisions by federal government bodies such as the
immigrationImmigration is the arrival of new individuals into a habitat or population. It is a biological concept and is important in population ecology, differentiated from emigration and migration.-As a political term:...
board and hear lawsuits under the federal government's jurisdiction such as
intellectual propertyIntellectual property is a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law...
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
The Court Martial Appeal Court of Canada hears appeals from military courts which are known as "courts martial." These courts martial have the power to try military personnel, and those civilian personnel that accompany military personnel abroad, for crimes that contravene the Code of Service...
- Various military courts called "courts martial":
- General Court Martial
- Standing 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 DisciplineThe Code of Service Discipline is the basis of the Canadian Forcesmilitary justice system. The CSD is designed to assist military commanders in maintaining discipline, efficiency, and morale within theCF. It is found in Part III of the National Defence Act...
, which is found in the
National Defence ActThe National Defence Act is the primary enabling legislation for organizing and funding Canada's military .Passed in 1922 , it created the Department of National Defence by merging the Department of Militia and Defence with the Department of the Naval Service and the newly created Department of...
(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 superior courts of the provinces.
Summary trials are
ad hoc hearings used to dispense with minor service offenses. The
Presiding OfficerIn a general sense presiding officer is synonymous with chairman.Specifically, Presiding Officer is the title of the post of Speaker in the following legislatures:*Presiding Officer of the National Assembly for Wales...
will have little formal legal training and is generally the service member's
Commanding OfficerThe commanding officer is the officer in command of a military unit. Typically, the commanding officer has ultimate authority over the unit, and is usually given wide latitude to run the unit as he sees fit, within the bounds of military law...
. In this respect, these hearings are similar to the former lay
magistrateA magistrate is a judicial officer; in ancient Rome, the word magistratus denoted one of the highest government officers with judicial and executive powers. Today, in common law systems, a magistrate has limited law enforcement and administration authority...
s' courts.
Federal and provincial administrative tribunals
Known in Canada as simply "tribunals", these are quasi-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 rightsHuman rights refer to the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which have come to be commonly thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the...
law (known in the US as "
civil rightsCivil and political rights are a class of rights and freedoms that protect individuals from unwarranted government action and ensure one's ability to participate in the civil and political life of the state without discrimination or repression....
law"),
immigration lawImmigration law refers to national government policies which control the phenomenon of immigration to their country.Immigration law, regarding foreign citizens, is related to nationality law, which governs the legal status of people, in matters such as citizenship...
,
energy lawEnergy laws govern the use and taxation of energy, both renewable and non-renewable. These laws are the primary authorities related to energy...
,
workers' compensationWorkers compensation is a form of insurance that provides compensation medical care for employees who are injured in the course of employment, in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...
law, liquor licensing law, etc.) who hear arguments and evidence provided by lawyers or lay advocates (in British Columbia, at least) before making a written decision on record.
Depending on its enabling legislation, a tribunal's decisions may be reviewed by a court through an appeal or a process called
judicial reviewJudicial review is the doctrine in democratic theory under which legislative and executive action is subject to invalidation by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a...
. 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 whose enabling legislation contains what is called a "
privative clauseIn administrative law, a privative clause is a provision in a statute that tries to remove a court’s ability to review decisions of a tribunal . In the UK they are known as "ouster clauses"....
" are entitled to a high degree of deference, although a recent decision of the Supreme Court of Canada (
Dunsmuir v. New Brunswick, 2008 SCC 9) has arguably lowered that degree of deference.
Tribunals which have the power to decide questions of law may take into consideration the
Canadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, 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 may be allowed in a tribunal hearing, if relevant to the proceeding. While relevant evidence is admissible, evidence which the adjudicator determines to have questionable reliability, or is otherwise questionable, is most likely to be afforded little or no weight.
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
mediationMediation, a form of alternative dispute resolution or "appropriate dispute resolution", aims to assist two disputants in reaching an agreement. The parties themselves determine the conditions of any settlements reached— rather than accepting something imposed by a third party...
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 usually 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 and workers' compensation) 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 decisisStare decisis is the legal principle by which judges are obliged to obey the precedents established by prior decisions.In the United States, which uses a common law system in its federal courts and most of its state courts, the Ninth...
does not apply to tribunals. In other words, a tribunal adjudicator 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 likely 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. The same is true for past decisions of the tribunal.
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 jurisdictionInherent Jurisdiction is a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limit that authority or grants exclusive jurisdiction to some other court or tribunal...
, which means that the
jurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility.Alternatively, jurisdiction is the authority given...
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 jurisdictionIn civil procedure, exclusive jurisdiction exists where one court has the power to adjudicate a case to the exclusion of all other courts. It is the opposite situation from concurrent jurisdiction, in which more than one court may take jurisdiction over the case.Exclusive jurisdiction is typically...
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 CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeal in the Canadian justice system...
, 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
statuteA statute is a formal written enactment of a legislative authority that governs a country, state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by...
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 CanadaThe Supreme Court of Canada is the highest court of Canada and is the final court of appeal in the Canadian justice system...
, the federal courts, the appellate courts and the superior-level courts are appointed by the federal government. Thus, judges of the
OntarioOntario is a province located in east-central Canada, the largest by population and second largest, after Quebec, in total area. Ontario is bordered by the Canadian provinces of Manitoba to the west and Quebec to the east, and 5 U.S...
Superior Court of Justice are chosen not by
OntarioOntario is a province located in east-central Canada, the largest by population and second largest, after Quebec, in total area. Ontario is bordered by the Canadian provinces of Manitoba to the west and Quebec to the east, and 5 U.S...
'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
AmericanThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
judges, but there is no indication that the longstanding
BritishThe United Kingdom of Great Britain and Northern Ireland is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of Ireland, and many small islands...
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 independenceIndependence of the judiciary is the principle that the judiciary should be politically insulated from the legislative and the executive power...
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 CouncilThe Canadian Judicial Council is the regulating body for Canadian judges composed mostly of chief justices and associate chief justices of Canada's superior courts...
, 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 ReferenceThe Provincial Judges Reference [1997] 3 S.C.R. 3 is a leading opinion of the Supreme Court of Canada in response to a reference question regarding remuneration and the independence and impartiality of provincial court judges...
of 1997, provincial courts' salaries are recommended by independent commissions, and a similar body called the
Judicial Compensation and Benefits CommissionThe Judicial Compensation and Benefits Commission is a Canadian commission that recommends judicial salaries for federally appointed judges.The commission was created in 1999 by the government of Prime Minister Jean Chrétien, under the Judges Act...
was established in 1999 for federally-appointed judges.
Language used in Court
Although
EnglishEnglish is a West Germanic language that developed in England during the Anglo-Saxon era. As a result of the military, economic, scientific, political, and cultural influence of the British Empire during the 18th, 19th, and early 20th centuries, and of the United States since the mid 20th century,...
and
FrenchFrench is a Romance language globally spoken by about 65 million people as a first language , by 50 million as a second language, and by about another 200 million people as an acquired foreign language, with significant speakers in 57 countries. Most native speakers of the language live in France,...
are both official languages of Canada, not every court in Canada is
bilingualOfficial bilingualism is the term used in Canada to collectively describe the policies, constitutional provisions, and laws which give English and French a special legal status over other languages in Canada’s courts, parliament and administration....
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 BrunswickNew Brunswick is one of Canada's three Maritime provinces and is the only constitutionally bilingual province in the confederation. The provincial capital is Fredericton...
and
OntarioOntario is a province located in east-central Canada, the largest by population and second largest, after Quebec, in total area. Ontario is bordered by the Canadian provinces of Manitoba to the west and Quebec to the east, and 5 U.S...
are bilingual, for example, but some others (e.g., the courts in
AlbertaAlberta is one of Canada's prairie provinces. It became a province on September 1, 1905.Alberta is located in western Canada, bounded by the provinces of British Columbia to the west and Saskatchewan to the east, the Northwest Territories to the north, and the U.S. state of Montana to the south....
) are generally
EnglishEnglish is a West Germanic language that developed in England during the Anglo-Saxon era. As a result of the military, economic, scientific, political, and cultural influence of the British Empire during the 18th, 19th, and early 20th centuries, and of the United States since the mid 20th century,...
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, 1867The Constitution Act, 1867 , constitutes a major part of Canada's Constitution...
and in or from all or any of the Courts of Quebec.
Furthermore, under
section 14Section Fourteen of the Canadian Charter of Rights and Freedoms is the last section under the "Legal rights" heading in the Charter. It provides anyone in a court the right to an interpreter if the person does not speak the language being used or is deaf.-Text:The section states:-Background:Before...
of the
Canadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
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 KingdomThe Royal Coat of Arms of the United Kingdom is the official coat of arms of the British monarch, currently Queen Elizabeth II. These arms are used by the Queen in her official capacity as monarch, and are officially known as her Arms of Dominion...
is displayed. In the
Supreme Court of Newfoundland and LabradorThe Supreme Court of Newfoundland and Labrador is the superior court for the Canadian province of Newfoundland and Labrador. It is compromised of the following divisions:* 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
A courtroom is the actual enclosed space in which a judge regularly holds court.The schedule of official court proceedings is called a docket; the term is also synonymous with a court's caseload as a whole....
.
- 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
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of "Her [or His] Majesty's Counsel learned in the law". Membership exists in various Commonwealth countries around the world and it is a status, conferred by the Crown,...
) "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
Roncarelli v. Duplessis, [1959] S.C.R. 121, was a landmark constitutional decision of the Supreme Court of Canada where the Court held that Maurice Duplessis, the premier of Quebec, had overstepped his authority by revoking the liquor licence of a Jehovah's Witness...
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
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment...
, 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 or more has the constitutional right to a jury trial. Only British Columbia
British Columbia is the westernmost of Canada's provinces and is famed for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . In 1871, it became the sixth province of Canada.The capital of British Columbia is Victoria, the 15th largest metropolitan region in Canada...
and OntarioOntario is a province located in east-central Canada, the largest by population and second largest, after Quebec, in total area. Ontario is bordered by the Canadian provinces of Manitoba to the west and Quebec to the east, and 5 U.S...
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
Interlocutory is a legal term which can refer to an order, sentence, decree, or judgment, given in an intermediate stage between the commencement and termination of a cause of action, used to provide a temporary or provisional decision on an issue...
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.
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