Canadian Courts of Law

… a core term in Governance and Institutions and Atlas100

Definition

Peter Doody et al., writing in the Canadian Encyclopedia (reference below), describe the “essentially unitary aspect of Canadian courts” provided by provincial superior courts of general jurisdiction with federally appointed judges as “fundamental to the Canadian judicial system.”

They note that:

“The provinces constitute, maintain and organize superior, county and district courts of both civil and criminal jurisdiction, and the federal government appoints the judges 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.”

Federally constituted courts

Doody et al. note that:

“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.

“… 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 London]. 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.”

“… 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, 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.”

Courts established by the provinces or territories

Doody et al. note that:

“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 (e.g., serious sexual assault, manslaughter and attempted murder), accused persons can demand that their trial be heard by a superior court.

“… 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.

“… 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.”

“Provincial court. 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. 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 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.”

Atlas topic, subject, and course

Courts, Tribunals, and Commissions (core topic) in Governance and Institutions and Atlas100 Governance and Institutions.

Source

Peter Doody, T.B. Smith, and Gerald Gall (2006, updated 2013), Courts of Law, Canadian Encyclopedia, at http://www.thecanadianencyclopedia.ca/en/article/courts-of-law/, accessed 7 November 2016.

Page created by: Ian Clark, last modified on 7 November 2016.