Court system of Canada

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Canadian court system (Source Canadian Department of Justice)

The court system of Canada forms the judicial branch of government, formally known as "The Queen on the Bench", [1] which interprets the law and is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature, while others are provincial or territorial.

Canada Country in North America

Canada is a country in the northern part of North America. Its ten provinces and three territories extend from the Atlantic to the Pacific and northward into the Arctic Ocean, covering 9.98 million square kilometres, making it the world's second-largest country by total area. Canada's southern border with the United States, stretching some 8,891 kilometres (5,525 mi), is the world's longest bi-national land border. Its capital is Ottawa, and its three largest metropolitan areas are Toronto, Montreal, and Vancouver. As a whole, Canada is sparsely populated, the majority of its land area being dominated by forest and tundra. Consequently, its population is highly urbanized, with over 80 percent of its inhabitants concentrated in large and medium-sized cities, with 70% of citizens residing within 100 kilometres (62 mi) of the southern border. Canada's climate varies widely across its vast area, ranging from arctic weather in the north, to hot summers in the southern regions, with four distinct seasons.

Court judicial institution with the authority to resolve legal disputes

A court is any person or institution with authority to judge or adjudicate, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute resolution, and it is generally understood that all people have an ability to bring their claims before a court. Similarly, the rights of those accused of a crime include the right to present a defense before a court.

The Government of Canada, officially Her Majesty's Government, is the federal administration of Canada. In Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council. In both senses, the current construct was established at Confederation through the Constitution Act, 1867—as a federal constitutional monarchy, wherein the Canadian Crown acts as the core, or "the most basic building block", of its Westminster-style parliamentary democracy. The Crown is thus the foundation of the executive, legislative, and judicial branches of the Canadian government. Further elements of governance are outlined in the rest of the Canadian Constitution, which includes written statutes, court rulings, and unwritten conventions developed over centuries.

Contents

The Constitution of Canada gives the federal government the exclusive right to legislate criminal law, while the provinces have exclusive control over civil law. The provinces have jurisdiction over the Administration of Justice in their territory. Almost all cases, whether criminal or civil, are heard in provincially or territorially established courts. The quite small system of federal courts only hears cases concerned with matters which are under exclusive federal control, such as federal taxation, federal administrative agencies, intellectual property, some portions of competition law and certain aspects of national security.

The Constitution of Canada is the supreme law in Canada. It outlines Canada's system of government and the civil and human rights of those who are citizens of Canada and non-citizens in Canada. Furthermore, its contents are in fact an amalgamation of various codified acts, treaties between the Crown and Aboriginal peoples, uncodified traditions and conventions. Canada is one of the oldest constitutional democracies in the world.

Section 92(14) of the Constitution Act, 1867, also known as the administration of justice power, grants the provincial legislatures of Canada the authority to legislate on:

The federal government appoints and pays for both the judges of the federal courts and the judges of the superior and appellate 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.

Outline 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; however, they are not bound by the rulings of other courts at the same level in the hierarchy. Civil courts in Quebec, in particular, are under no obligation to apply judicial precedent—the principle of stare decisis—which is the general rule elsewhere in Canada. This is because Quebec's civil law is entirely codified, while civil law in the other nine provinces grew out of the English common law.

Common law Law developed by judges

In law, common law is that body of law derived from judicial decisions of courts and similar tribunals. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

A note on terminology

There are two terms used in describing the Canadian court structure which can be confusing, and clear definitions are useful at the outset.

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(14) of the Constitution Act, 1867. [2] 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 a 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.

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, they 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 Federal Court of Appeal and the provincial and territorial Courts of Appeal are all superior courts.

In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases. A superior court is "superior" relative to a court with limited jurisdiction, which is restricted to civil cases involving monetary amounts with a specific limit, or criminal cases involving offenses of a less serious nature. A superior court may hear appeals from lower 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 capitalisation. 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 Superior Court (Cour supérieure); in Alberta, Saskatchewan, Manitoba, and New Brunswick, as Court of Queen's Bench (Cour du Banc de la Reine); and in Newfoundland and Labrador, British Columbia, Nova Scotia, Prince Edward Island, Yukon, and the Northwest Territories as the Supreme Court (Cour suprême). The term "Supreme Court" can be confusing as it could suggest a final appellate court, like the Supreme Court of Canada; in fact, each province has a Court of Appeal superior to its superior court, except in Newfoundland and Labrador where appeals lie to the Appeals Division of the Supreme Court.

In Nunavut, there is a single unified trial court, the Nunavut Court of Justice, unlike the situation in the provinces and other territories.

Supreme Court of Canada

The Supreme Court is established by the Supreme Court Act [3] as the "General Court of Appeal for Canada". The Court currently 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 (to be discussed next) and, on occasion, delivering references (i.e., the court's opinion) 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.

The Constitution Act, 1867 gives the federal Parliament the power to create a "General Court of Appeal for Canada". [4] 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. [5] Eventually, in 1875, the Liberal government of Alexander Mackenzie passed an Act of Parliament which established the Supreme Court. [6] The 1875 Act built upon the proposals introduced by the Macdonald government, and passed with all-party support. [7]

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. [8] 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. [9] 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. [10] 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. [11] 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. [12] The question was then appealed to the Judicial Committee, but the hearing of the appeal was delayed by the outbreak of World War II. [13] in 1946, the Judicial Committee finally heard the appeal and upheld the decision of the majority of the Supreme Court, [14] 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, making the Court truly the Supreme Court. [15] 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. [16]

Courts of the provinces and territories

Appellate courts of the provinces and territories

These courts of appeal (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels and were separately constituted in the early decades of the 20th century, replacing the former Full Courts of the old Supreme Courts of the provinces, many of which were then renamed Courts of Queens Bench. Their function is to review decisions rendered by the superior-level courts and to deliver references when requested by a provincial or territorial government as the Supreme Court does for the federal government. These appellate courts do not normally conduct trials or hear witnesses.

These courts are Canada's equivalent of the Court of Appeal in England and the various State Supreme Courts and U.S. Courts of Appeals in the United States. Each of the above-listed appellate courts is the highest court from its respective province or territory. Each province's chief justice sits in the appellate court of that province.

Superior-level courts of the provinces and territories

These courts (as listed below by province and territory in alphabetical order) exist at the provincial and territorial levels. The superior courts are the courts of first instance for divorce petitions, civil lawsuits involving claims greater than small claims, and criminal prosecutions for indictable offences (i.e., felonies in American legal terminology). They also perform a reviewing function for judgements from the local inferior courts and administrative decisions by provincial or territorial government entities such as labour boards, human rights tribunals and licensing authorities.

Furthermore, some of these superior courts (like the one in Ontario) have specialized branches that deal only with certain matters such as family law or small claims. To complicate things further, the Ontario Superior Court of Justice has a branch called the Divisional Court that hears only appeals and judicial reviews of administrative tribunals and whose decisions have greater binding authority than those from the "regular" branch of the Ontario Superior Court of Justice. Although a court, like the Supreme Court of British Columbia, may have the word "supreme" in its name, it is not necessarily the highest court in its respective province or territory.

Most provinces have special courts dealing with small claims (lawsuits for less than a certain amount of money). These are typically divisions of the superior courts in each province. Parties often represent themselves, without lawyers, in these courts.

Provincial and territorial ("inferior") courts

Each province and territory in Canada has an "inferior" or "lower" trial court, usually called a Provincial (or Territorial) Court, to hear certain types of cases.

Appeals from these courts are heard either by the superior court of the province or territory or by the Court of Appeal. In criminal cases, this depends on the seriousness of the offence. These courts are created by provincial statute and only have the jurisdiction granted by statute. Accordingly, inferior courts do not have inherent jurisdiction. These courts are usually the successors of older local courts presided over by lay magistrates and justices of the peace who did not necessarily have formal legal training. However, today all judges are legally trained, although justices of the peace may not be. Many inferior courts have specialized functions, such as hearing only criminal law matters, youth matters, family law matters, small claims matters, "quasi-criminal" offences (i.e., violations of provincial statutes), or bylaw infractions. In some jurisdictions these courts serve as an appeal division from the decisions of administrative tribunals.

Federal courts

In addition to the Supreme Court of Canada, there are three civil courts created by the federal Parliament under its legislative authority under section 101 of the Constitution Act, 1867:

Federal Court of Appeal

The Federal Court of Appeal hears appeals from decisions rendered by the Federal Court, the Tax Court of Canada and a certain group of federal administrative tribunals like the National Energy Board and the Canada Industrial Relations Board. All judges of the Federal Court are ex officio judges of the Federal Court of Appeal, and vice versa, although it is rare that a judge of one court will sit as a member of the other. The Federal Court of Appeal is a travelling court. The judges of its Court, who sit in panels of three, hear cases in English and in French in 18 cities, from Vancouver to St. John's, including locations in northern Canada.

Federal Court

The Federal Court exists primarily to review administrative decisions by federal government bodies such as the immigration board and to hear lawsuits under the federal government's jurisdiction such as intellectual property and maritime law. It also has concurrent jurisdiction with the superior trial courts of the Provinces to hear civil lawsuits brought against the federal government. The Federal Court also has jurisdiction to determine inter-jurisidctional legal actions between the federal government and a province, or between different provinces, provided the province in question has passed corresponding legislation granting the Federal Court jurisdiction over the dispute. Also the Federal Courts have the power to review decisions, orders, and other administrative actions of most federal boards, commissions, and tribunals. That means most federal government can be challenged in the federal court. Also with the Federal Court, the system may refer back to questions of law, jurisdiction,or price to one of the federal courts at any stage of proceeding.

In the aftermath of 9/11, Parliament enacted a number of laws to protect national security. The Federal Court has exclusive jurisdiction to determine many issues which arise under those laws relating to national security.

Appeals lie from the Federal Court to the Federal Court of Appeal.

Tax Court of Canada

The Tax Court of Canada has a very specialised jurisdiction. It hears disputes over federal taxes, primarily under the federal Income Tax Act, between taxpayers and the federal government. Also, for most people that live in Canada, it is the Tax Court's power to hear appeals under the Income Tax Act. The Tax Court has the jurisdiction to hear appeals under various statues. However, as a federal court, it lacks the power to deal with disputes relating to provincial income taxes and provincial sales taxes, and has no jurisdiction to grant any relief where a taxpayer wishes to sue the Canada Revenue Agency for damages. Lastly, the Tax Court's powers are also limited by the statutes that impose the tax in dispute. The Tax Court is not empowered to make decisions on the basis that they will yield a fair result. Rather, the Tax Court can only make decisions based on its interpretation of the legislation.

History of the federal courts

The first federal court was the Exchequer Court of Canada, created in 1875 at the same time as the Supreme Court of Canada. [6] The Exchequer Court was a trial court, with a limited jurisdiction over civil actions brought against the federal government, tax disputes under federal tax laws, admiralty matters, compensation for expropriation of private property by the federal Crown, negligence of federal public servants, and intellectual property, including patents and copyright. The name of the court came from the Exchequer Court of England, which had a similar jurisdiction over tax disputes. At first, there were no separate judges for the Exchequer Court. The judges of the Supreme Court of Canada were also appointed to the Exchequer Court. Individual judges of the Supreme Court would sit as a judge of the Exchequer Court, with an appeal lying to the Supreme Court. The Exchequer Court did not have any jurisdiction to review the actions of federal administrative agencies. That function was fulfilled by the provincial superior trial courts.

In 1971, Parliament passed the Federal Court Act [33] which abolished the Exchequer Court and created a new court, the Federal Court of Canada. That Court had two divisions: the Federal Court – Trial Division, and the Federal Court – Appeal Division. Although the two divisions had different functions, they were all part of a single court.

In 2003, Parliament passed legislation which divided the Federal Court into two courts. The Federal Court – Trial Division became the Federal Court of Canada, while the Federal Court – Appeal Division became the Federal Court of Appeal. The jurisdiction of the two new courts is essentially the same as the corresponding former divisions of the Federal Court.

Although the federal courts can be said to have the same prestige as the superior courts from the provinces and territories, they lack the "inherent jurisdiction" (to be explained later) possessed by superior courts such as the Ontario Superior Court of Justice.

Military courts

The courts martial are conducted and presided over by military personnel and exist for the prosecution of military personnel, as well as civilian personnel who accompany military personnel, accused of violating the Code of Service Discipline , which is found in the National Defence Act , RSC 1985, c N-5 and constitutes a complete code of military law applicable to persons under military jurisdiction.

The decisions of the courts martial can be appealed to the Court Martial Appeal Court of Canada which, in contrast, exists outside the military and is made up of civilian judges. This appellate court is the successor of the Court Martial Appeal Board which was created in 1950, presided over by civilian judges and lawyers, and was the first ever civilian-based adjudicating body with authority to review decisions by a military court. The Court Martial Appeal Court is made up of civilian judges from the Federal Court, Federal Court of Appeal, and the superior courts of the provinces.

Summary trials are ad hoc hearings used to dispense with minor service offenses. The Presiding Officer will have little formal legal training and is generally the service member's Commanding Officer. In this respect, these hearings are similar to the former lay magistrates' courts.

Administrative tribunals

Known in Canada as simply "tribunals", these are quasi-judicial adjudicative bodies, which means that they adjudicate (hear evidence and render decisions) like courts, but are not necessarily presided over by judges. Instead, the adjudicators may be experts of the very specific legal field handled by the tribunal (e.g., labour law, human rights law (known in the US as "civil rights law"), immigration law, energy law, workers' compensation law, liquor licensing law, etc.) who hear arguments and evidence provided by lawyers (also lay advocates in British Columbia or Licensed Paralegals in Ontario) before making a written decision on record.

Depending on its enabling legislation, a tribunal's decisions may be reviewed by a court through an appeal or a process called judicial review. The reviewing court may be required to show some deference to the tribunal if the tribunal possesses some highly specialized expertise or knowledge that the court does not have. The degree of deference will also depend on such factors as the specific wording of the legislation creating the tribunal. Tribunals whose enabling legislation contains a privative clause are entitled to a high degree of deference, although a recent decision of the Supreme Court of Canada ( Dunsmuir v New Brunswick , 2008 SCC 9) has arguably lowered that degree of deference.

Tribunals which have the power to decide questions of law may take into consideration the Canadian Charter of Rights and Freedoms , which is part of Canada's constitution. The extent to which tribunals may use the Charter in their decisions is a source of ongoing legal debate.

Appearing before some administrative tribunals may feel like appearing in court, but the tribunal's procedure is relatively less formal than that of a court, and more importantly, the rules of evidence are not as strictly observed, so that some evidence that would be inadmissible in a court hearing may be allowed in a tribunal hearing, if relevant to the proceeding. While relevant evidence is admissible, evidence which the adjudicator determines to have questionable reliability, or is otherwise questionable, is most likely to be afforded little or no weight.

The presiding adjudicator is normally called "Mister/Madam Chair". As is the case in court, lawyers routinely appear in tribunals advocating matters for their clients. A person does not require a lawyer to appear before an administrative tribunal. Indeed, many of these tribunals are specifically designed to be more representative to unrepresented litigants than courts. Furthermore, some of these tribunals are part of a comprehensive dispute-resolution system, which may emphasize mediation rather than litigation. For example, provincial human rights commissions routinely use mediation to resolve many human rights complaints without the need for a hearing.

What tribunals all have in common is that they are created by statute, their adjudicators are usually appointed by government, and they focus on very particular and specialized areas of law. Because some subject matters (e.g., immigration) fall within federal jurisdiction while others (e.g., liquor licensing and workers' compensation) in provincial jurisdiction, some tribunals are created by federal law while others are created by provincial law. There are both federal and provincial tribunals for some subject matters such as unionized labour and human rights.

Most importantly, from a lawyer's perspective, is the fact that the principle of stare decisis does not apply to tribunals. In other words, a tribunal adjudicator could legally make a decision that differs from a past decision, on the same subject and issues, delivered by the highest court in the land. Because a tribunal is not bound by legal precedent, established by itself or by a reviewing court, a tribunal is not a court even though it performs an important adjudicative function and contributes to the development of law like a court would do.

Although stare decisis does not apply to tribunals, their adjudicators will likely nonetheless find a prior court decision on a similar subject to be highly persuasive and will likely follow the courts in order to ensure consistency in the law and to prevent the embarrassment of having their decisions overturned by the courts. The same is true for past decisions of the tribunal.

Among the federal tribunals, there is a small group of tribunals whose decisions must be appealed directly to the Federal Court of Appeal rather than to the Federal Court Trial Division. These so-called "super tribunals" are listed in subsection 28(1) of the Federal Court Act (RSC 1985, c F-7) and some examples include the National Energy Board, Canadian International Trade Tribunal, the Competition Tribunal, the Canada Industrial Relations Board (i.e., federal labour board), the Copyright Board and the Canadian Radio-television and Telecommunications Commission ("CRTC").

Inherent versus statutory jurisdiction

Courts of inherent jurisdiction

The superior courts from the provinces and territories are courts of inherent jurisdiction, which means that the jurisdiction of the superior courts is more than just what is conferred by statute. Following the principles of English common law, because the superior courts derive their authority from the Constitution, they can hear any matter unless there is a federal or provincial statute that says otherwise or that gives exclusive jurisdiction to some other court or tribunal. The doctrine of inherent jurisdiction gives superior courts greater freedom than statutory courts to be flexible and creative in the delivering of legal remedies and relief.

Statutory courts

The Supreme Court of Canada, the federal courts, the various appellate courts from the provinces and territories, and the numerous low-level provincial courts are statutory courts whose decision-making power is granted by either the federal parliament or a provincial legislature.

The word "statutory" refers to the fact that these courts' powers are derived from a statute and is defined and limited by the terms of the statute. A statutory court cannot try cases in areas of law that are not mentioned or suggested in the statute. In this sense, statutory courts are similar to non-judicial adjudicative bodies such as administrative tribunals, boards, and commissions, which are created and given limited power by legislation. The practical implication of this is that a statutory court cannot provide a type of legal remedy or relief that is not expressly or implicitly referred to in its enabling or empowering statute.

Appointment and regulation of judges

Judges in Canada are appointed and not elected. Judges of the Supreme Court of Canada, the federal courts, the appellate courts and the superior-level courts are appointed by the Governor-in-Council (by the Governor General on the advice of the Federal Cabinet). [34] For example, judges of the Ontario Superior Court of Justice are chosen not by Ontario's provincial government but upon the recommendations of Her Majesty's Canadian Government. Meanwhile, judicial appointments to judicial posts in the so-called "inferior" or "provincial" courts are made by the local provincial governments.

As judicial independence is seen by Canadian law to be essential to a functioning democracy, the regulating of Canadian judges requires the involvement of the judges themselves. The Canadian Judicial Council, made up of the chief justices and associate chief justices of the federal courts and of each province and territory, receive complaints from the public concerning questionable behaviour from members of the bench.

Salaries of superior courts are set by Parliament under section 100 of the Constitution Act, 1867. Since the Provincial Judges Reference , [1997] 3 SCR 3, provincial courts' salaries are recommended by independent commissions, and a similar body called the Judicial Compensation and Benefits Commission was established in 1999 for federally appointed judges.

Tenure of judges and removal from the bench

Judges in positions that are under federal control (federally appointed positions) are eligible to serve on the bench until age 75. In some but not all Provincial and Territorial positions, appointed judges have tenure until age 70 instead.

As for removal from the bench, judges have only rarely been removed from the bench in Canada. For federally appointed judges, it is the task of The Canadian Judicial Council to investigate complaints and allegations of misconduct on the part of federally appointed judges. The Council may recommend to the (federal) Minister of Justice that the judge be removed. To do so, the Minister must in turn get the approval of both the House of Commons and the Senate before a judge can be removed from office. (The rules for provincial/territorial judges are similar, but they can be removed by a provincial or territorial cabinet.) [35]

Languages used in court

English and French are both official languages of the federal government of Canada. Either official language may be used by any person or in any pleading or process in or issuing from any Court of Canada established by Parliament under the Constitution Act, 1867. [36] [37] This constitutional guarantee applies to the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court, the Tax Court of Canada and the Court Martial Appeal Court. Parliament has expanded on that constitutional guarantee to ensure the federal courts are institutionally bilingual. [38]

The right to use either language in the provincial and territorial courts varies. The Constitution guarantees the right to use either French or English in the courts of Quebec [39] and New Brunswick. [40] There is a statutory right to use either English or French in the courts of Ontario [41] and Saskatchewan, [42] and a limited right to use French in oral submissions in the courts of Alberta. [43]

As well, in all criminal trials under the Criminal Code , a federal statute, every accused whose language is either English or French has the right to be tried in the language of their choice. [44] As a result, every court of criminal jurisdiction in Canada, whether federal, provincial or territorial, must have the institutional capacity to provide trials in either language.

Furthermore, under section 14 of the Canadian Charter of Rights and Freedoms, a party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

In the Northwest Territories [45] and Nunavut [46] the official aboriginal languages may be used as well.

Court customs

Courtroom custom is largely based upon the British tradition, with a few modifications.

Symbols

Canadian courts derive their authority from the monarch. Consequently, the judicial system in Canada is formally known as "the Queen on the Bench". [1] As a result, important symbols in a courtroom include the picture of the Canadian monarch and their heraldic Arms, although not all courtrooms have a picture of the monarch. Many courts display Canadian and provincial flags. In the British Columbia courts as well as in the Supreme Court of Newfoundland and Labrador, the Royal coat of arms of the United Kingdom is displayed for reasons of tradition.

Dress

In superior courts, lawyers wear black robes and white neck tabs, like barristers in the United Kingdom, but they do not wear wigs. Business attire is appropriate when appearing before judges of superior courts sitting in chambers and before judges of provincial or territorial courts or justices of the peace.

Judges dress in barrister's robes similar to the lawyers'. Judges of some courts adorn their robes with coloured sashes. For example, Federal Court Judges' robes are adorned with a gold sash, and Tax Court of Canada Judges' robes with a purple sash.

Etiquette/Decorum

Procedure

See also

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Judiciary of Australia

The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

The provincialandterritorial courts in Canada are local trial "inferior" or "lower" courts of limited jurisdiction established in each of the provinces and territories of Canada. These courts typically hear criminal, civil, family, traffic, and bylaw cases. Unlike the superior courts of Canada, the jurisdiction of the provincial courts is limited to those matters which are permitted by statute. They have no inherent jurisdiction. Appeals of provincial court decisions are usually heard by the superior court of the province.

A master is a judge in the courts of England and in numerous other jurisdictions based on the common law tradition. A master's jurisdiction is generally confined to civil proceedings and is a subset of that of a justice. Masters are typically involved in hearing trials, case management, and in some jurisdictions dispute resolution or adjudication of specific issues referred by judges.

The supreme court is the highest court within the hierarchy of courts in many legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and highcourt of appeal. Broadly speaking, the decisions of a supreme court are not subject to further review by any other court. Supreme courts typically function primarily as appellate courts, hearing appeals from decisions of lower trial courts, or from intermediate-level appellate courts.

Judiciary of Pakistan

The judiciary of Pakistan is a hierarchical system with two classes of courts: the superior judiciary and the subordinate judiciary. The superior judiciary is composed of the Supreme Court of Pakistan, the Federal Shariat Court and five High Courts, with the Supreme Court at the apex. There is a High Court for each of the four provinces as well as a High Court for the Islamabad Capital Territory. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution. Neither the Supreme Court nor a High Court may exercise jurisdiction in relation to Tribal Areas, except otherwise provided for. The disputed regions of Azad Kashmir and Gilgit–Baltistan have separate court systems.

The Court of Queen's Bench for Saskatchewan is the superior trial court for the Canadian province of Saskatchewan.

The Supreme Court of Prince Edward Island is the superior court of the Canadian province of Prince Edward Island.

The Supreme Court of the Northwest Territories is the name of two different superior courts for the Canadian territory of the Northwest Territories, which have existed at different times.

Judiciary of Brazil

The Judiciary of Brazil is the Judiciary branch of the Brazilian government. The structure and the division of jurisdiction of the ramifications of the Brazilian Judiciary is defined in the Brazilian Constitution.

References

  1. 1 2 MacLeod, Kevin S. (2008), A Crown of Maples (PDF) (1 ed.), Ottawa: Queen's Printer for Canada, p. 17, ISBN   978-0-662-46012-1, archived from the original (PDF) on 10 November 2012, retrieved 19 January 2015
  2. Constitution Act, 1867, s. 92(14)
  3. Supreme Court Act, RSC 1985, c S-26
  4. Constitution Act, 1867, s 101
  5. Snell and Vaughan, The Supreme Court of Canada - History of the Institution (Toronto: Osgoode Society, 1985), pp. 6-7.l
  6. 1 2 The Supreme and Exchequer Courts Act, S.C. 1875, c. 11.
  7. Snell and Vaughan, The Supreme Court of Canada - History of the Institution, pp. 10-11
  8. Snell and Vaughan, The Supreme Court of Canada - History of the Institution, p. 16.
  9. Snell and Vaughan, The Supreme Court of Canada - History of the Institution, pp. 178-179.
  10. Nadan v The King, [1926] AC 482 (PC)
  11. British Coal Corp v The King, [1935] AC 500 (PC).
  12. Reference re Supreme Court Act Amendment Act, [1940] SCR 49.
  13. Snell and Vaughan, The Supreme Court of Canada - History of the Institution, p. 188.
  14. Reference re Privy Council Appeals, [1947] AC 127.
  15. An Act to Amend the Supreme Court Act, SC 1949, c 37.
  16. Ponoka-Calmar Oils v Wakefield, [1960] AC 18 (PC).
  17. Court of Appeal Act, R.S.A. 2000, c. C-30 Archived 2012-08-02 at Archive.today
  18. Court of Appeal Act, R.S.B.C. 1996, c. 77 Archived 2014-02-16 at the Wayback Machine
  19. The Court of Appeal Act, C.C.S.M., c. C240 Archived 2012-07-21 at Archive.today
  20. Judicature Act, R.S.N.B. 1973, c. J-2 Archived 2010-05-10 at the Wayback Machine
  21. Judicature Act, R.S.N.L. 1990, c. J-4 Archived 2013-06-01 at the Wayback Machine
  22. Judicature Act, R.S.N.W.T. 1988, c. J-1 [ permanent dead link ]
  23. Judicature Act, R.S.N.S. 1989, c. 240 Archived 2011-02-08 at the Wayback Machine
  24. Judicature Act, S.N.W.T. (Nu.) 1998, c. 34 s. 1 Archived 2011-06-12 at the Wayback Machine
  25. Courts of Justice Act, R.S.O. 1990, c. C.43 Archived 2015-10-17 at the Wayback Machine
  26. Judicature Act, R.S.P.E.I. 1988, c. J-2.1 Archived 2011-02-08 at the Wayback Machine
  27. Courts of Justice Act, C.Q.L.R., c. T-16 [ permanent dead link ]
  28. The Court of Appeal Act, S.S. 2000, c. C-42.1 Archived 2009-10-12 at the Wayback Machine
  29. Court of Appeal Act, R.S.Y. 2002, c. 47 [ permanent dead link ]
  30. Northwest Territories Act, S.C. 2014, c. 2, s. 2; Judicature Act, R.S.N.W.T. 1988, c. J-1 [ permanent dead link ]
  31. Nunavut Act, S.C. 1993, c. 28; Judicature Act, S.N.W.T. (Nu.) 1998, c. 34 s. 1 Archived 2011-06-12 at the Wayback Machine
  32. Yukon Act, S.C. 2002, c. 7; Supreme Court Act, R.S.Y. 2002, c. 211 [ permanent dead link ]
  33. Federal Court Act, RSC 1970 (2nd Supp), c 10
  34. Constitution Act, 1867, s. 96
  35. "Archived copy". Archived from the original on 2011-12-06. Retrieved 2012-01-29.CS1 maint: Archived copy as title (link)
  36. Constitution Act, 1867, s. 133.
  37. Canadian Charter of Rights and Freedoms, s. 19(1).
  38. Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), Part III, Administration of Justice.
  39. Constitution Act, 1867, s. 133
  40. Canadian Charter of Rights and Freedoms, s. 19(2).
  41. Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 125 and 126.
  42. Language Act / Loi linguistique , S.S. 1988, c. L-6.1, s. 11
  43. Language Act, R.S.A. 2000 cL-6, s. 4
  44. Criminal Code, RSC 1985, c C-46, Part XVII.
  45. Official Languages Act, R.S.N.W.T. 1988, c. O-1, s. 9(2)
  46. Official Languages Act = ᑲᑎᑕᐅᓂᖓ ᐊᑕᐅᓯᕐᒧᑦ ᐃᓕᓴᕆᔭᐅᓯᒪᔪᑦ ᐅᖃᐅᓰᑦ ᐱᖁᔭᖅ, S.Nu. 2008, c. 10 Archived 2014-04-20 at the Wayback Machine , s. 8
  47. Styles of address
  48. "Criminal Code". Parliamentary Debates (Hansard) . Senate. 17 February 2000. col. 1500–1510.

Further reading