CANADA S COURT SYSTEM

CA N A DA’ S CO U RT SY ST E MSome courts at this level are dedicated to particular types of offences or groups of offenders.One example is the Drug Treatment Court.The object of these courts is to address the needsof non-violent offenders who are charged withcriminal offences that were motivated by theiraddiction. Those who qualify are offered judicialsupervision and treatment for their addiction,with the help of community support services. decreasing court processing time;Youth courts handle cases for young people 12to 17 years old who are charged with an offenceunder federal youth justice laws. Youth courtsprovide protections appropriate to the age of theaccused, including protecting his or her privacy.Any court at either the provincial/territorialor superior court level can be designated ayouth court.Provincial/Territorial Superior CourtsAll provinces and territories have establishedDomestic Violence Courts so that the justicesystem can improve its response to incidents ofspousal abuse, provide better support to victims,and make offenders more accountable. Thesecourts do this by increasing prosecution rates; providing a focal point for programs andservices for victims and offenders; and allowing police, Crown prosecutors, and,in some cases, the judiciary to specialize indomestic violence matters.Each province and territory has superior courts,which are courts of “inherent jurisdiction.” Thismeans that they can hear cases in any area exceptwhen a statute or rule limits that authority.The superior courts try the most serious criminaland civil cases. These include divorce cases andcases that involve large amounts of money(the minimum is set by the province or territoryin question). The jurisdiction of superior courtsoriginally came from the first courts in England,whose authority over government actions wasbased on Magna Carta. Proceedings in superiorcourts are thus a continuation of a court process5

CA N A DA’ S CO U RT SY ST E Mthat dates right back to the beginnings of thecommon law system.In Nunavut, mostof the communitiesare small and isolated from Iqaluit,the capital, so theThe superior courts also act as acourt of first appeal for the provincial and territorial courts that theprovinces and territories maintain.Although the provinces andterritories administer superiorcourts, the federal governmentappoints and pays the judges.Although there are permanentcourt houses and judicial centrescourt travels toin all of Canada’s provinces andterritories, Canada’s population isthem “on circuit.”scattered widely across hugeexpanses of land, and it may bedifficult for individuals to travelto a court house to have theirmatter heard. In response, courts often travel“on circuit” to small or isolated areas.6For example, in Nunavut, most of the communities are small and isolated from Iqaluit, thecapital, so the court travels to them. The circuitcourt includes a judge, a clerk, a court reporter,a prosecutor, and at least one defence attorney.Interpreters are hired in the communities whenpossible, or travel with the circuit court whennecessary. The court holds regular sessions inIqaluit and flies to about 85 percent of all25 communities in Nunavut, as often as everysix weeks or as seldom as every two years,depending on how often it’s needed.Family CourtsIn most provinces and territories, the superiorcourt has special divisions, such as the familydivision. Some superior courts have establishedspecialized family courts to deal with specificfamily law matters, including divorce andproperty claims.

CA N A DA’ S CO U RT SY ST E MSeveral provinces (Manitoba, New Brunswick,Newfoundland and Labrador, Nova Scotia,Ontario, Prince Edward Island and Saskatchewan) use unified family courts. This allows asingle court to deal with all aspects of familylaw, using specialized superior court judges andservices. These courts encourage constructive,non-adversarial techniques to resolve issues,and provide access to support services throughcommunity organizations. These servicestypically include such programs as parenteducation sessions, mediation, and counselling.Provincial/Territorial Courts of AppealEach province and territory also has a courtof appeal. These courts hear appeals fromthe decisions of the superior courts and theprovincial/territorial courts. These can includecommercial disputes, property disputes, negligence claims, family disputes, bankruptcies, andcorporate reorganizations. Appeals are usuallyheard by a panel of three judges. The courts ofappeal also hear constitutional questions thatmay be raised in appeals involving individuals,governments, or governmental agencies.7

COURTS AND OTHER BODIES UNDER FEDERAL JURISDICTIONThe federal court system runs parallel to theprovincial and territorial court systems andconsists of the Federal Court and the FederalCourt of Appeal. The judges of these courts(as well as the Tax Court of Canada, describedbelow) are based in Ottawa, but travel acrossthe country to hear cases. They deal with certainmatters specified in federal statutes (laws), suchas immigration and refugee law, navigation andshipping, intellectual property, and tax. Theycan also deal with matters of national defence,security, and international relations. reviews of the decisions of most federaltribunals.The Federal Court’s jurisdiction includes interprovincial and many federal–provincialdisputes; immigration and refugee matters; intellectual property proceedings(e.g., copyright); citizenship appeals; Competition Act cases; andThe Federal CourtThe Federal Court is Canada’s national trialcourt. It hears and decides federal legal disputeswhose subject matter has been assigned to theCourt by Parliament.These disputes include claims against the Government of Canada; civil suits between private parties infederally-regulated areas; and8 cases involving Crown corporations ordepartments of the Government of Canada.The federal courts have the power to reviewdecisions, orders, and other administrativeactions of most federal boards, commissions, andtribunals. That means most federal governmentdecisions can be challenged in a federal court.With some exceptions, those bodies may referquestions of law, jurisdiction, or practice to oneof the federal courts at any stage of a proceeding.

CA N A DA’ S CO U RT SY ST E MIn some areas of law, such as maritime law,the Federal Court shares jurisdiction with theprovincial superior courts. It also has concurrentjurisdiction with respect to civil claims againstthe federal government.The Federal Court of AppealThe Federal Court of Appeal hears appeals fromthe Federal Court and the Tax Court of Canada,and judicial reviews of certain federal tribunalslisted in the Federal Courts Act. Like provincialand territorial courts of appeal, its decisions canonly be appealed to the Supreme Court ofCanada. The Court hears most legal mattersunder federal jurisdiction or that involve thefederal government.It has three basic roles:1. to ensure that federal law is applied consistently throughout Canada;2. to conduct judicial reviews of specified federaldecision makers, as listed in section 28 of theFederal Courts Act; and3. to provide an avenue of appeal from decisionsof the Federal Court and the Tax Court ofCanada.Specialized Federal CourtsThe federal government has created specializedcourts to deal more effectively with certain areasof the law. These include the Tax Court ofCanada and the courts that serve the militaryjustice system: the military courts and the CourtMartial Appeal Court of Canada. These courtshave been created by statute and can only decidematters that fall within the jurisdiction given tothem by those statutes. The Tax Court thus dealswith tax matters defined under the Tax Court ofCanada Act and the Court Martial Appeal Courtof Canada hear appeals from courts martial.The Tax Court of CanadaThe Tax Court of Canada is a superior court thatdetermines cases and appeals about matters thatarise under federal tax and revenue legislation.The Tax Court of Canada hears disputes between9

CA N A DA’ S CO U RT SY ST E Mthe federal government and taxpayers after thetaxpayer has pursued all other avenues providedfor by the Income Tax Act. The Tax Court isindependent of the Canada Revenue Agencyand all other government departments.Military CourtsMilitary courts, or courts martial, are establishedunder the National Defence Act to hear casesinvolving the Code of Service Discipline. TheCode applies to all members of the CanadianForces as well as civilians who accompany theForces on active service. It lays out a systemof disciplinary offences designed to furtherthe good order and proper functioning of theCanadian Forces.The Court Martial Appeal Court of Canadahears appeals from military courts. Judges inthe Court Martial Appeal Court are selectedfrom the federal courts and other superior courtsthroughout the country. Like other courts ofappeal, a panel of three judges hears cases inthe Court Martial Appeal Court.The Supreme Court of CanadaThe Supreme Court of Canada is the final courtof appeal from all other Canadian courts. It hasjurisdiction over disputes in all areas of the law.These include constitutional law, administrativelaw, criminal law, and civil law. The Court doesnot hold trials, but hears appeals from all otherCanadian appeal courts.The Court consists of a Chief Justice andeight other justices. Members of the Court areappointed by the federal government as newDID YOU KNOW?Each year the Supreme Court considers an average of between 500 to 600 applications forleave to appeal and hears 65 to 80 appeals.10

CA N A DA’ S CO U RT SY ST E Mvacancies occur. Three judges traditionally comefrom Ontario, two from Western Canada, andone from the Atlantic provinces. In addition,the Supreme Court Act requires that at least threejudges must come from Quebec.The Supreme Court sits in Ottawa for threesessions a year – winter, spring, and fall. Eachyear the Supreme Court considers an averageof between 500 to 600 applications for leave toappeal and hears 65 to 80 appeals.What Kinds of Cases Does the Supreme Courtof Canada Hear?The Supreme Court of Canada only hears casesthat it considers to be of public importance andto have national significance. That could meana case that raises an important issue of law, ormixed law and fact, or if the matter is, for anyother reason, significant enough to be consideredby the country’s highest court. In limitedinstances, there may also be an appeal as of right.Judgements of the Supreme Court are listed atscc-csc.gc.ca.Before a case can reach theSupreme Court of Canada, it musthave used up all available appealsat other levels of court. Even then,the court usually must grantpermission or “leave” to appealbefore it will hear the case. Leaveapplications are usually made inwriting and reviewed by threemembers of the court. They thengrant or deny the request withoutproviding reasons for the decision.The SupremeCourt of Canadais the final courtof appeal from allother Canadiancourts.The right to appeal is automatic incertain situations. For instance, noleave is required in criminal cases where a judgeon the panel of a court of appeal has disagreed,or dissented, on how the law should be interpreted. It is also not required when a court ofappeal has found someone guilty who had beenacquitted at the original trial. That personautomatically has the right to appeal to theSupreme Court.11

CA N A DA’ S CO U RT SY ST E MThe Supreme Court can also beasked by the Governor in CouncilAdministrativeto hear references. These areimportant questions of law, such astribunals play anthe constitutionality or interpretation of federal or provincialessential role inlegislation, on which the Courtresolving disputesis asked to give its opinion beforean actual legal dispute arises.in CanadianThe federal government may askthe Court to consider questionssociety.on any important matter of lawor fact, especially about howto interpret the Constitution.The Court may also be askedto interpret federal or provincial/territoriallegislation or the powers of Parliament or thelegislatures. Provincial and territorial courtsof appeal may also be asked to hear references12from their respective governments, which arethen sometimes appealed to the Supreme Courtof Canada.Administrative Tribunals and BoardsDifferent kinds of administrative tribunals andboards deal with disputes over the interpretationand application of laws and regulations, such asentitlement to employment insurance or disability benefits, refugee claims, and human rights.Administrative tribunals are less formal thancourts and are not part of the court system.However, they play an essential role in resolvingdisputes in Canadian society. Decisions ofadministrative tribunals may be reviewed incourt to ensure that tribunals act fairly andaccording to the law.

ALTERNATIVE APPROACHESThere are other approaches that can allow peopleto settle disputes without having to go to court. Arbitration: The parties agree to refer thedispute to a third party for judgment.Alternative Dispute Resolution Negotiation: The parties get together andsort out a problem between themselves.Alternative Dispute Resolution (ADR) traditionally refers to the wide variety of methods usedto resolve conflicts and disputes outside thecourtroom. It includes both informal, consensual processes such as negotiation as well as formalrights-based processes such as litigation.With ADR, people can usually settle theirdifferences in ways that are more informal, lessexpensive, and often quicker than formal courtproceedings. Some parties prefer confidentialityand to have greater control over the selection ofindividuals who will decide their dispute and therules that will govern the proceedings. The mainADR processes include: Mediation: An independent third partyis brought in to help the parties negotiatean agreement.The parties may also decide to seek the opinionof an expert chosen by both of them.Agreements reached through mediation andnegotiation are consensual, so they generallycannot be appealed. In the case of arbitration,there is a limited ability to appeal that dependson the terms of the arbitration agreement andthe applicable legislation.As with administrative tribunals, the courts andADR work together. The courts themselves oftenmake use of ADR. For example, some provincesnow insist on mediation as part of the litigationprocess. However, the court system remains theappropriate forum for trying serious or violentcrimes, and is also an option when parties toa dispute reject mediation or arbitration.13

CA N A DA’ S CO U RT SY ST E MSentencing CirclesIn sentencing circles, which can be part ofthe court process but are not separate courts inand of themselves, the court invites interestedmembers of the community to join the judge,prosecutor, defence counsel, police, social serviceproviders, and community elders – along withthe offender, the victim, and their familiesand supporters – to meet in a circle formatto discuss: the offence; the factors that might have contributed to it; sentencing options; and ways of reintegrating the offender intothe community.Sentencing circles can be a valuable way ofgetting input and advice from the communityto help the judge set an appropriate and effectivesentence. Often the circle will suggest a restorative community sentence involving some form14of restitution to the victim, community service,and treatment or counselling, and/or a periodof custody. It is important to note, however,that the judge is not bound to accept the circle’srecommendations.Sentencing circles have been used in much of thecountry, mostly at the provincial/territorial courtlevel, in minor criminal cases involving Aboriginal offenders and their victims. Various SupremeCourt of Canada decisions have interpretedchanges to the Criminal Code that instructedcourts to consider alternative sentences for alloffenders, and to pay particular attention tothe circumstances of Aboriginal offenders.The Supreme Court found that sentencingjudges must examine the unique factors whichmay have played a part in bringing a particularAboriginal offender before the courts, and thetypes of available sanctions and sentencingprocedures (including sentencing circles) whichmay be appropriate in light of the offender’sAboriginal heritage or identity.

THE JUDICIARYJudicial IndependenceJudicial independence is a cornerstone of theCanadian judicial system. That is why, underthe Constitution, the judiciary is separate fromand independent of the other two branchesof government, the executive and legislature.Judicial independence guarantees that judges willbe able to make decisions free of influence andbased solely on fact and law. The principle ofjudicial independence has three components: security of tenure; financial security; and administrative independence.Security of tenure: Once appointed, a judge iseligible to serve on the bench until retirement(age 75 for federally appointed judges, age 70 insome provincial/territorial jurisdictions). Judgescan be removed by a joint address of Parliamentor a provincial legislature, only after an independent and impartial investigation shows that thereis good reason (see Judicial Conduct, below).Financial security: Judges must be guaranteedsufficient compensation (including salary andpension) so they are not subject to pressure forfinancial considerations. In Canada, governments cannot change judges’ salaries or benefitswithout first receiving the recommendations ofan independent compensation commission.Administrative independence: No one caninterfere with how courts manage the legalprocess and exercise their judicial functions.For example, only the chief justicecan choose how cases are assignedto the judges of his or her court.Several institutions have beenestablished to support judicialindependence: these include theCanadian Judicial Council, theCommissioner for Federal JudicialAffairs, the National JudicialInstitute and the Courts Administration Service. They help keep thegovernment and the judiciaryNothing is moreimportant in ourjustice system thanhaving independent judges.15

CA N A DA’ S CO U RT SY ST E Mseparate in areas like discipline, pay and benefits,and continuing education for judges.How Are Judges Appointed?The federal government appoints judges tothe federal courts, the superior courts of theprovinces/territories, and the Supreme Courtof Canada. The Commissioner for FederalJudicial Affairs administers the advisorycommittees, representing each province andterritory, which assess the qualifications ofthe lawyers who apply for federal judicialappointments. For example, a candidate for afederal appointment must have been a lawyerfor at least ten years to be appointed and mustbe qualified to practise law in the jurisdictionin question.The provincial and territorial governmentsappoint judges to provincial and territorialcourts. There are similar eligibility requirementsfor provincial and territorial appointments.16All federally appointed judges are appointedby the Governor in Council. This consists ofthe Gov

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