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. In the courts, the judiciary interpret and apply the law of Canada. Some of the courts are federal in nature, while others are provincial or territorial.
The Constitution of Canada gives the federal Parliament of Canada exclusive jurisdiction in criminal law, while the provinces have exclusive control over much of civil law. Each province has authority over the administration of justice within that province.
Most cases are heard in provincial and territorial courts. Provincial and territorial superior courts have inherent jurisdiction over civil and criminal cases. Provincial and territorial lower courts try most criminal offences, small civil claims, and some family matters.
The smaller federal court system consists of the Federal Court, Federal Court of Appeal, and Tax Court. There are also the courts martial, for military offences, with an appeal to the Court Martial Appeal Court. The jurisdiction of the Federal Court and the Federal Court of Appeal is limited to cases where the subject matter is within federal jurisdiction and regulated by federal law, and where the administration of that law has been conferred upon the federal courts by a statute passed by Parliament. These matters include immigration and refugee law, navigation and shipping, intellectual property, federal taxation, some portions of competition law and certain aspects of national security, as well as the review of most federal administrative decisions. The federal courts and provincial and territorial courts share jurisdiction over civil actions against the federal government.
The Supreme Court of Canada is the final court of appeal for all levels of court in Canada. Any legal issue, whether under the Constitution of Canada, federal law, or provincial law, potentially can be heard and determined by the Supreme Court.
The federal government appoints and pays for both the judges of the federal courts and the judges of the superior appellate and trial level courts of each province. The provincial governments are responsible for appointing judges of the lower provincial courts. Although not judicial courts themselves, [|administrative tribunals] also feed into the provincial/territorial and federal court hierarchies. This intricate interweaving of federal and provincial powers is typical of the Canadian constitution.
Levels and branches of the court system
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, under the principle of stare decisis. They are not bound by the rulings of other courts at the same level in the hierarchy, or of higher courts in a different branch of the hierarchy.A note on terminology
There are two terms used in describing the Canadian court structure which can be confusing for which clear definitions are useful.Provincial courts
The first is the term "provincial court", which has two quite different meanings, depending on context. The first, and most general meaning, is that a provincial court is a court established by the legislature of a province, under its constitutional authority over the administration of justice in the province, set out in s. 92 of the Constitution Act, 1867. This head of power gives the provinces the power to regulate "... the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts". All courts created by a province, from the small claims court or municipal by-law court, up to the provincial court of appeal, are "provincial courts" in this general sense.However, there is a more limited meaning to the term. In most provinces, the "Provincial Court" is the term used to refer to a specific court created by the province which is the main criminal court, having jurisdiction over most criminal offences except for the most serious ones. The Provincial Court of a particular province may also have a limited civil jurisdiction, over small claims and some family law matters. The exact scope of the jurisdiction of the Provincial Court will depend on the laws enacted by the particular province. Provincial Courts in this sense are courts of limited statutory jurisdiction, sometimes referred to as "inferior courts". As courts of limited jurisdiction, their decisions are potentially subject to judicial review by the superior courts via the prerogative writs, but in most cases there are now well-established statutory rights of appeal instead.
To distinguish between the two meanings of the term, capitalization is used. A reference to a "provincial court" normally is a reference to the broad meaning of the term, any court created by the province. A reference to "Provincial Court" normally is referring to the specific court of limited statutory jurisdiction, created by the province. The term "Provincial Court" is used in the name of each such court, except for those of Alberta, Ontario, and Quebec. The Northwest Territories and Yukon each possess an analogous Territorial Court, while the Nunavut Court of Justice, although a superior court, also has the jurisdiction which is assigned to provincial or territorial courts in other jurisdictions.
Superior courts
The second is the term "superior courts". This term also has two different meanings, one general and one specific.The general meaning is that a superior court is a court of inherent jurisdiction. Historically, these courts are the descendants of the royal superior courts in England. The decisions of a superior court are not subject to review unless a statute specifically provides for review or appeal. The term is not limited to trial courts. The provincial courts of appeal and the Federal Court of Appeal are also superior courts.
The more limited sense is that "Superior Court" can be used to refer to the superior trial court of original jurisdiction in the Province. This terminology is used in the court systems of Ontario and Quebec.
The difference between the two terms is also indicated by capitalization. The term "superior court" is used to mean the general sense of the term, while "Superior Court" is used to refer to specific courts in provinces which use that term to designate their superior trial courts.
In Ontario and Quebec, this court is known as the Superior Court ; in Alberta, Saskatchewan, Manitoba, and New Brunswick, as the Court of King's Bench ; and in Newfoundland and Labrador, British Columbia, Nova Scotia, Prince Edward Island, Yukon, and the Northwest Territories as the Supreme Court. The term "Supreme Court" can be confusing as it could suggest a final appellate court, like the Supreme Court of Canada; each province has an appellate court with an appellate jurisdiction from the superior trial court.
Certain superior courts include specialized commercial court programs. The Superior Court in Toronto has a Commercial List created in 1991, with a team of judges who have experience in managing complex commercial litigation matters. Similarly, the Superior Court in Montreal has a Commercial Division, while the Court of the King's Bench of Alberta has a Commercial List.
In Nunavut, there is a single unified trial court, the Nunavut Court of Justice, which is a superior court of general jurisdiction.
Supreme Court of Canada
The Supreme Court is established by the Supreme Court Act as the "General Court of Appeal for Canada". The Court consists of nine justices, which include the Chief Justice of Canada and eight puisne justices. The court's duties include hearing appeals of decisions from the appellate courts and, on occasion, delivering references 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; by convention, the other justices are divided among the other regions of Canada.The Constitution Act, 1867 gives the federal Parliament the power to create a "General Court of Appeal for Canada". Following Confederation, the Conservative government of Sir John A. Macdonald proposed the creation of a Supreme Court and introduced two bills in successive sessions of Parliament to trigger public debate on the proposed court and its powers. Eventually, in 1875, the Liberal government of Alexander Mackenzie passed an Act of Parliament that established the Supreme Court. The 1875 Act built upon the proposals introduced by the Macdonald government, and passed with all-party support.
Initially, decisions of the Supreme Court could be appealed to the Judicial Committee of the British Privy Council. As well, litigants could appeal directly from the provincial courts of appeal directly to the Judicial Committee, by-passing the Supreme Court entirely. There was a provision in the 1875 Act which attempted to limit appeals to the Judicial Committee. That clause resulted in the Governor General reserving the bill for consideration by the Queen-in-Council. After much debate between Canadian and British officials, royal assent was granted on the understanding the clause did not in fact affect the royal prerogative to hear appeals, exercised through the Judicial Committee.
The question of the power of Parliament to abolish appeals to the Judicial Committee eventually was tested in the courts. In 1926, the Judicial Committee ruled that the Canadian Parliament lacked the jurisdiction to extinguish appeals to the Judicial Committee, as the right of appeal was founded in the royal prerogative and could only be terminated by the Imperial Parliament.
Following the enactment of the Statute of Westminster, in 1933 the federal Parliament passed legislation again abolishing the right of appeal in criminal matters. In 1935, the Judicial Committee upheld the constitutional validity of that amendment.
In 1939, the federal government proposed a reference to the Supreme Court of Canada, asking whether the federal Parliament could terminate all appeals to the Judicial Committee. By a 4–2 decision, the Supreme Court held that the proposal was within the powers of the federal Parliament and would be constitutional. The question was then appealed to the Judicial Committee, but the hearing of the appeal was delayed by the outbreak of World War II. In 1946, the Judicial Committee finally heard the appeal and upheld the decision of the majority of the Supreme Court, clearing the way for Parliament to enact legislation to end all appeals to the Judicial Committee, whether from the Supreme Court or from the provincial courts of appeal.
In 1949, Parliament passed an amendment to the Supreme Court Act which abolished all appeals to the Judicial Committee, making the Supreme Court of Canada the final court of appeal. However, cases which had been instituted in the lower courts prior to the amendment could still be appealed to the Judicial Committee. The last Canadian appeal to the Judicial Committee was not decided until 1960.