Courts of Law

The Constitution Act of 1867 provides for provincial superior courts of general jurisdiction with federally appointed judges to be estalished by the provinces. These courts are charged with administering all laws in force in Canada, whether enacted by Parliament, provincial legislatures or municipalities. This essentially unitary aspect of Canadian courts is fundamental to the Canadian judicial system. The provinces constitute, maintain and organize superior, county and district courts of both civil and criminal jurisdiction, and the federal government appoints the judges (see JUDICIARY) and pays their salaries.

The remaining provincial courts are courts of inferior jurisdiction whose presiding officers are appointed by the province in which they sit. In addition, section 101 of the Act gives Parliament power to "provide for the Constitution, Maintenance and Organization of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better Administration of the Laws of Canada." All of the courts constituted and appointed solely by the federal government owe their existence to this power. Finally, all courts, except those in Québec, enforce the common LAW. In Québec the source of the civil or noncriminal law is the CIVIL LAW.

Federally Constituted Courts

The Supreme Court of Canada
The Supreme Court of Canada was established in 1875 by the SUPREME COURT Act as a general court of appeal for Canada. The court comprises 9 judges appointed by the governor-in-council, 3 of whom must come from the Bench or Bar of Québec. Pursuant to the Constitution Act of 1982, the composition of the court can now only be amended by resolutions of Parliament and each province.

An amendment relating to the court in other respects can, however, be effected with a parliamentary resolution concurred in by the legislatures of two-thirds of the provinces comprising at least 50% of the population of all of the provinces. Changes to the appointment procedure were proposed as both the MEECH LAKE ACCORD (see MEECH LAKE ACCORD: DOCUMENT) (1987) and the CHARLOTTETOWN ACCORD (see CHARLOTTETOWN ACCORD: DOCUMENT) (1992), but neither of these proposed changes materialized.

The court has, since 1949, been the ultimate court of appeal for Canada. Prior to 1949 the final appellate tribunal was the JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. In 1975, the role and function of the court changed again when the automatic right to appeal to it in civil matters, previously based on a purely monetary criterion, was abolished. Appeals may now only be taken to the Supreme Court with leave of the Supreme Court or of the lower court whose decision is being challenged.

There remains a right of appeal in criminal cases in circumstances where one judge of a provincial court of appeal has dissented on a question of law, where an acquittal of an indictable offence by the trial court has been set aside by the court of appeal or where the accused has been found not guilty by reason of insanity.

In civil matters, the court now only hears cases which, in its opinion or in the opinion of the court of appeal, raise matters of public importance to the country as a whole or involve some important question of law; these include a large number of cases involving the constitutional validity of federal or provincial statutes, the application of the Canadian Charter of Rights and Freedoms and the authority for decisions of government officials and tribunals. Fewer cases involving purely private law issues now are heard by the court.

The court must also adjudicate upon questions referred to it by the governor-in-council or appeals from questions referred to provincial courts of appeal by the executive governments of the provinces. These cases, known as references, almost always deal with the constitutional validity of legislation, proposed or existing. References are peculiar to the Canadian legal system. They enable governments to know, expeditiously, whether legislation on which their actions depend is lawful.

Courts Established by the Provinces or Territories

Superior Courts
Provincial and territorial superior courts can hear and determine any civil cause of action brought before them, with the exception of suits within the exclusive jurisdiction of courts established by Parliament. In criminal matters, superior courts have jurisdiction to hear trials of any serious offences and have exclusive jurisdiction to hear cases involving particularly serious crimes, such as murder, treason and piracy. For a number of other crimes (eg, serious sexual assault, manslaughter and attempted murder), accused persons can demand that their trial be heard by a superior court.

A jury can be demanded by either the prosecution or the accused in every trial of an indictable offence over which the superior court has jurisdiction. Twelve persons comprise juries in criminal cases, except in the Yukon and NWT, where there are 6 jury members.

The constitution of juries for civil cases is now rare. It can be requested by either side when permitted by provincial law, and it is within the discretion of the trial court whether to allow the request. Civil juries have 6 members. In all trials in which a judge and jury are involved, it is the judge's duty to determine questions of law and instruct the jury, and it is the jury's duty to determine the questions of fact.

Superior courts are usually divided into trial and appeal divisions. The appellate division is, in most provinces, called the Court of Appeal; it hears appeals from the trial division and lower courts, and its decisions can, subject to certain restrictions, be appealed to the Supreme Court of Canada.

In most provinces, the Court of Appeal has no original jurisdiction; all cases come to it as appeals from the trial division or from lower courts, the principal exception being the reference procedure whereby the provincial Cabinet may refer questions to the Court of Appeal.

In some provinces, where the amount of money involved in a civil action surpasses the limit for SMALL CLAIMS COURT, now usually referred to as civil divisions of the provincial court (and is less than a specified amount), county or district courts (where they still exist) have jurisdiction to hear civil trials. The trial division of the superior court hears all other civil trials in those provinces and all civil trials in other provinces, without regard to monetary limit.

Similarly, in criminal cases in all provinces except NS, Ontario, BC and Québec, the trial division will hear all trials of indictable offences except those where the accused has elected to be tried by a provincial court judge or where the offence is one over which the provincial court judge has absolute jurisdiction. As a result of recent case law, if an accused is charged with an offence which falls under the absolute jurisdiction of a provincial court together with an indictable offence for which the superior court has jurisdiction, where the changes arise out of the same set of facts, the trial will be held before a superior court judge.

The superior court trial division is referred to as the Court of Queen's Bench in NB, Manitoba, Saskatchewan and Alberta. In Newfoundland and BC, it is called the Supreme Court of the province. Nova Scotia's is entitled the Supreme Court of Nova Scotia Trial Division; Québec's, the Superior Court of Québec. In Ontario the trial division is called the General Division of the Ontario Court of Justice.

PEI is unique in that its Supreme Court is the only court (other than provincial criminal courts) in the province, the General Division of which fulfils the function of other provinces' superior trial courts. The Supreme Court of the Yukon exercises superior-court jurisdiction in the YT; in the NWT it is the Supreme Court of the NWT. The BC Court of Appeal also serves as court of appeal for the Yukon and the Alberta Court of Appeal serves as the court of appeal for the NWT.

The Federal Court of Canada

The Federal Court of Canada was established by Parliament in 1971. Prior to that time, its predecessor, the Exchequer Court of Canada, established by parliamentary statute, existed principally to judge claims by or against the federal government or matters relating to maritime law (see LAW OF THE SEA), COPYRIGHT, patent and trademark law and federal taxation statutes.

The FEDERAL COURT of Canada has the same jurisdiction, but also has a supervisory jurisdiction in relation to decisions of tribunals and inferior bodies established by federal law. It is divided into a Trial Division and a Court of Appeal. Generally, matters originate in the Trial Division, but some appeals from interior tribunals and some actions to set aside decisions of inferior tribunals proceed directly to the Federal Court of Appeal.

An appeal lies from the Court of Appeal to the Supreme Court of Canada, with leave of either court. The main office of the court is in Ottawa, but it regularly sits throughout Canada according to the circumstances of the action and to suit the convenience of the parties. In 1983 several new positions were added to its Trial Division because of its increasing case load. Major amendments to the Federal Court Act were enacted in 1990.

Other Federal Courts

The Court Martial Appeal Court, established under the National Defence Act, is composed of judges of the Federal Court and provincial superior courts named by the governor-in-council. The Court Martial Appeal Court hears appeals from decisions of the service tribunals of the Canadian ARMED FORCES and its decisions can be appealed to the Supreme Court of Canada in a procedure similar to appeals in ordinary criminal matters.

The Tax Court of Canada was created in 1983 as a continuation of the Tax Review Board. This court hears and determines appeals on matters arising under the various statutes relating to taxation; eg, the Income Tax Act. Its decisions are subject to review by the Federal Court.

Because they conduct some judicial and quasijudicial functions, certain federal administrative boards and tribunals are designated courts of record. These include the CANADIAN TRANSPORTATION AGENCY, the NATIONAL ENERGY BOARD and the Tariff Board. The decisions of such boards are subject to review by the Federal Court (see ADMINISTRATIVE TRIBUNALS).

County or District Courts

At one time all provinces had a system of county or district courts with local jurisdiction within the provinces to hear criminal trials of serious offences that were not within the exclusive jurisdiction of a superior court or within the absolute jurisdiction of a magistrate, and to hear civil cases involving specified amounts of money. Only NS and BC have retained these courts.

As well as civil and criminal trials, these courts hear appeals from magistrates' courts or provincial judges' courts in less serious criminal cases. In all other provinces, the jurisdiction of county and district courts now belongs to the superior courts.

Provincial Courts

All provinces have courts staffed by judges appointed by the province to deal with lesser criminal matters, including trials of minor or summary conviction offences, trials of serious (indictable) offences where the accused elects to be so tried, and preliminary inquiries of indictable offences - a procedure whereby the MAGISTRATE determines whether there is sufficient evidence against the accused to warrant a trial.

In some provinces (Newfoundland, Ontario and Manitoba) the provincial court (criminal division) handles the matters assigned to provincial court judges under the Criminal Code, while other divisions handle small civil claims and such matters as FAMILY LAW. In Québec, similar functions are performed by the Court of Québec (formerly, the Court of the Sessions of the Peace), and in some cities, by municipal courts. The YT has a magistrate's court, but in the NWT the Territorial Court now performs these functions.

Most provinces also have a court, presided over by justices of the peace, for minor offences such as infractions of the provincial and municipal laws. In Québec, this is referred to as the Court of Justices of the Peace; in Ontario, as the Provincial Offences Court.

Family Court

While divorces and their results fall under the jurisdiction of a superior court, family courts, which are provincially constituted and appointed, are responsible for custody of and access to children, support obligations and adoption. In most provinces, the family court is part of the provincial court.

In Alberta, there is a single provincial court with 4 separate divisions: criminal, civil (formerly Small Claims Court), family and young offenders (designated as the Youth Court).

In PEI, the provincial court only deals with criminal matters, and there is a Family Division of the Supreme Court. In Saskatchewan and in parts of Nfld and Ontario, the Unified Family Court, with judges appointed jointly by the federal and provincial governments, can adjudicate all family-law matters, including divorce and division of property.

Youth Court

Children charged with offences contrary to federal, provincial or municipal laws appear before a youth court (formerly, a juvenile court under the Juvenile Delinquents Act). By 1985 everyone under 18 charged with an offence came under the jurisdiction of juvenile or youth courts under the Young Offenders Act (see JUVENILE DELINQUENCY). In some provinces such cases are heard by the family division of the provincial court. In PEI it is the Family Division of the Supreme Court, in Québec the Youth Court (formerly the Social Welfare Court), and in Saskatchewan the Unified Family Court that has jurisdiction. In NB, a division of the provincial court was also designated the Youth Court.

Small Claims Court

Small claims court is responsible for civil cases involving sums less than a set amount. The set limits vary from province to province. In Québec this limit is $10 000. Most provinces have a small claims or civil division of the provincial court to hear these cases.

Probate or Surrogate Court

Probate or surrogate court, established in most provinces and usually presided over by judges of county or district courts (where they still exist) or superior courts, adjudicates matters involving estates of deceased persons.

A public body may bear the designation as a court, such as the Citizenship Court, presided over by a Citizenship Court judge. Such a body is not really a court in the strict sense. In reality, it is a federal administrative tribunal. The Government of Canada has announced its plans to abolish the Citizenship Court.