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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.

Table of contents

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 nor the rulings of other courts at the same level in the hierarchy.

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

These courts of appeal (as listed below in alphabetical order) exist at the federal, provincial and territorial levels. They review decisions from the superior courts as well as administrative tribunals (to be explained next).

These courts are Canada's equivalent to the Court of Appeal in England and the various United States Courts of Appeals. With the exception of the Federal Court of Appeal, each of the above appellate courts is the highest court from its respective province or territory.

Provincial and territorial superior courts and federal courts

These courts (as listed below in alphabetical order) exist at the federal, 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 judgments from the local "inferior" courts and administrative decisions by provincial or territorial government entities such as labour boards, human rights tribunals and licensing authorities. Meanwhile, 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. However, decisions rendered by certain federal administrative bodies (the so-called "super tribunals", like the National Energy Board and the federal labour board) as listed in Subsection 28(1) of the Federal Courts Act (R.S.C. 1985, Chapter F-7) may be appealed directly to the Federal Court of Appeal instead of going first to the Federal Court.

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. 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 (or "inferior") 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 judgments 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 do 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. Below are a few examples of the many that exist across the country:

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" is often used to mean a low level court whose decisions can be reviewed by a "superior" court.

Courts of Inherent Jurisdiction

These are the superior courts from the provinces and territories as discussed above. The words "inherent juridiction" 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 "inferior" or "provincial" courts are made by the local provincial government. Although some Canadians would like to see judges being elected as it is done in the United States, there is no indication that the longstanding tradition of appointing judges will be changed anytime soon. Those who favour the appointment method point out that the election approach would threaten the judiciary's ability to be independent in its decision-making.

Because judicial independence is essential to a functioning democracy, the regulating of judges must involve 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 Alberta 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:

  • Lawyers wear black robes and white neck tabs, like the barristers in England, but without the wig.
  • Instead of a flagpole standing close beside the judge's seat, there is a crest mounted on the wall behind the judge.
  • The judge does not have a gavel. He or she merely raises his or her voice (or stand 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, 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.
  • In addition to standing up when the judge is entering the courtroom, judge and lawyers exchange bows before seating themselves.
  • When entering or leaving a courtroom, one bows, while standing near the doorway, in the direction of the bench if a judge is seated there.
  • Judges are traditionally called "My Lord" or "My Lady". Although the current trend is moving towards 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".
  • 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 aborion in 1988) should be cited as "The Queen AND Morgentaler".
  • 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. misdemeanors) are called "summary conviction offences".
  • 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.

External links

Court system of Canada
Supreme Court:
Supreme Court of Canada
Federal Court of Canada:
Tax Court of Canada | Federal Court of Appeal | Federal Court
Court of Appeal of the Provinces and Territories:
British Columbia | Alberta | Saskatchewan | Manitoba | Ontario | Quebec | New Brunswick | Nova Scotia | Prince Edward Island | Newfoundland and Labrador | Yukon | Northwest Territories | Nunavut
Superior Courts of the Provinces and Territories:
British Columbia | Alberta | Saskatchewan | Manitoba | Ontario | Quebec | New Brunswick | Nova Scotia | Prince Edward Island | Newfoundland and Labrador | Yukon | Northwest Territories | Nunavut
Provincial Courts of the Provinces and Territories:
British Columbia | Alberta | Saskatchewan | Manitoba | Ontario | Quebec | New Brunswick | Nova Scotia | Prince Edward Island | Newfoundland and Labrador | Yukon | Northwest Territories | Nunavut
Military Court:
Court Martial Appeal Court

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