• The role of the judiciary is to act as an independent third party
to resolve disputes
• Governed under principle of Rule of Law:
• Government must follow laws it makes
• No one is exempt from law ~ applies equally to all
• No action can be taken unless authorized by law
• There are 4 levels of Courts in Canada:
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Provincial/Territorial
Provincial/Territorial Superior Courts and Federal Courts
Appeal Courts
Supreme Court of Canada
THE FEDERAL COURT OF CANADA
The Federal Court of Canada (FCC) is essentially a superior court
with civil jurisdiction. As it was created by an Act of Parliament, it can
only deal with matters specified in federal statutes.
The FCC is organized into a Trial Division and an Appeal Division.
Its jurisdiction includes inter-provincial and federal-provincial
disputes, intellectual property proceedings (e.g. copyright),
citizenship appeals, Competition Act cases, and cases involving
Crown corporations or departments of the Government of Canada.
FCC can review decisions, orders and other administrative actions of
federal boards, commissions and tribunals.
PROVINCIAL COURTS
Each province and territory has a provincial court. These courts
hear cases involving either federal or provincial laws.
Note: The names and divisions of these courts may vary from place
to place, but their role is the same.
Provincial courts deal with most criminal offences, family law
matters (except divorce), young offenders (from 12 to 17 years old),
traffic violations, provincial regulatory offences, and claims involving
money, up to a certain amount (set by the province in question).
Private disputes involving limited sums of money may also be dealt
with at this level in Small Claims courts. In addition, all preliminary
inquiries – hearings to determine whether there is enough evidence
to justify a full trial in serious criminal cases – take place before the
provincial courts.
PROVINCIAL/TERRITORIAL SUPERIOR COURTS
Each province and territory has superior courts. These courts are
known by various names, including Superior Court of Justice,
Supreme Court, High Court of Justice, and Court of Queen’s Bench.
The superior courts have “inherent jurisdiction,” which means that
they can hear cases in any area except those that are specifically
limited to a lower court.
The superior courts try the most serious criminal and civil cases,
including divorce cases and cases that involve large amounts of
money (the minimum is set by the province in question).
COURTS OF APPEAL
Each province and territory has a court of appeal or appellate division
that hears appeals from decisions of the superior courts AND
provincial courts.
The number of judges on these courts may vary from one province to
another, but a court of appeal usually sits as a panel of three.
• Prior to 1982, the Supreme Court of Canada’s role was largely
to resolve jurisdictional issues between the federal and
provincial governments (s.91 and s.92 disputes)
• Since 1982, the Court’s scope has been expanded to include
the violation of Charter rights
• All government enacted legislation, regulations, policies etc.
must comply with Charter
• Protects civil rights of all Canadians
• Provinces have jurisdiction over appointment of judges and
justices of the peace for provincial and small claims courts.
• Federal government appoints provincial Superior Court Justices,
and Federal Court Justices.
• SCC Justices are appointed by the Governor General.
• Final Court of Appeal for all of Canada
• Final advisor to Federal government regarding Constitution esp.
Charter of Rights and Freedoms
• SCC has jurisdiction to hear appeals in all areas of law.
• Court must grant permission to hear case (“granting leave to
appeal”)
• Provincial and Federal governments may “refer questions”
directly to the SCC, bypassing the usual appeal process [e.g.
David Milgaard Conviction reference (1991)]
• There are nine Justices appointed by the Governor General in
Council (Cabinet and GG).
• There is one Chief Justice of Canada and eight other Justices ~ 3
are currently women. Justices hold office until the age of 75.
• Justices are chosen from Superior Court or barristers with at least
10 years in good standing at the Bar of a province or territory.
• The Right Honourable Beverley McLachlin, P.C.,
Chief Justice of Canada
Credit : Paul Couvrette, photographer
Supreme Court of Canada Collection
• See her interview at: http://www.youtube.com/watch?v=osKitRF30aU
• All justices are appointed by the federal government.
3 Justices must be from Quebec
Traditionally…..
3 are from Ontario
2 are from Western provinces
1 is from Maritimes
• A quorum of 5 Justices is required to rule on a case
• All nine Justices required to hear constitutional cases.
The Charter of Rights and Freedoms, or any aspect of
the Constitution, will be applied to Canadian society in
the manner determined by the Supreme Court of
Canada. Only a constitutional amendment may alter a
Supreme Court decision.
The independence of the judiciary in Canada is guaranteed by the Constitution.
• Typical Criticisms of the SCC:
1. It transfers final legislative authority away from our elective
representatives.
2. It places too much emphasis on individual rights.
3. It challenges authority of the courts and at times allows guilty
parties to go unpunished.
• Read pages 145-153 of the textbook and answer questions 16 on page 153.
• Also complete questions on page 148 pertaining to issue
regarding appointing judges, and Q’s 1-3 of “The Two
Michaels” case on the top of page 153.