The court system of Canada forms the judicial branch of government, formally known as "The Queen on the Bench", 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.
The Constitution of Canada gives the federal government the exclusive right to legislate criminal law, while the provinces have exclusive control over much of 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 federal government appoints and pays for both the judges of the federal courts and the judges of the superior appellate and trial 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.
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, under the principle of stare decisis. They are not bound by the rulings of other courts at the same level in the hierarchy.
There are two terms used in describing the Canadian court structure which can be confusing, and clear definitions are useful at the outset.
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. 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.
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 provincial courts of appeal and the Federal Court of Appeal are also superior 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 capitalization. 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.
The Supreme Court is established by the Supreme Court Act 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". 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. Eventually, in 1875, the Liberal government of Alexander Mackenzie passed an Act of Parliament that established the Supreme Court. The 1875 Act built upon the proposals introduced by the Macdonald government, and passed with all-party support.
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. 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. 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. 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. 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. The question was then appealed to the Judicial Committee, but the hearing of the appeal was delayed by the outbreak of World War II. In 1946, the Judicial Committee finally heard the appeal and upheld the decision of the majority of the Supreme Court, 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. 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.
These courts of appeal 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, some of which were then renamed Courts of Queen's Bench. Their function is to hear appeals from decisions rendered by the trial 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
Each of these appellate courts is the highest court of its respective province or territory. Each province's chief justice sits in the appellate court of that province.
The superior trial courts of the provinces and territories are the courts of first instance for divorce petitions, civil lawsuits involving claims greater than small claims, and criminal prosecutions for some indictable offences. They also hear appeals from the lower trial court and perform judicial review of decisions of administrative agencies such as labour relations boards, human rights tribunals and licensing authorities. As the primary courts responsible for the interpretation of civil (provincial) law, they play a significant role in the establishment and interpretation of legal precedent. The judges sitting on these courts, like those of the appellate courts, are appointed and paid by the federal government.
Many of these courts have specialized branches that deal only with certain matters such as family law or, in the case of Ontario, a Divisional Court which 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 some of these courts are named the "Supreme Court", they are not the highest courts in their respective province or territory.
Most provinces have special courts dealing with small claims (typically actions involving under $50,000). These are typically divisions of the superior courts in each province, however certain provinces also delegate this to lower courts. Parties often represent themselves, without lawyers, in these courts.
Each province and territory in Canada (other than Nunavut) also has an additional trial court, usually called a Provincial (or Territorial) Court, to hear certain types of cases. For historical reasons, these courts are sometimes referred to as "inferior courts", indicating their position in the judicial hierarchy as subject to the superior courts. The term is not a commentary on their professionalism or expertise. In Nunavut, the functions of superior and territorial court are combined in the Nunavut Court of Justice.
Appeals from these courts are heard either by the superior trial court of the province or territory or by the provincial or territorial court of appeal. In criminal cases, this depends on the seriousness of the offence. Preliminary hearings are normally held in provincial courts prior to the case being transferred to superior court for trial. 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.
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: the Federal Court of Appeal, the Federal Court, and the Tax Court of Canada.
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 the Court sit in panels of three, and hear cases in English and in French in 18 cities, from Vancouver to St. John's, including locations in northern Canada.
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-jurisdictional 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. The Federal Court have the power to review decisions, orders, and other administrative actions of most federal boards, commissions, and tribunals. That means most federal government administrative decisions 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.
The Tax Court of Canada has a very specialized 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 statutes. 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.
The first federal court was the Exchequer Court of Canada, created in 1875 at the same time as the Supreme Court of Canada. 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 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 in Canada include the summary trial hearing, court martial (including general court martial and standing court martial), and the Court Martial Appeal Court of Canada.
Summary trials are ad hoc hearings used to dispense with minor service offences. 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.
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 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.
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, 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 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 Courts Act 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).
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.
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.
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). 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, 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.
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.)
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. 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.
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, Manitoba, and New Brunswick. There is a statutory right to use either English or French in the courts of Ontario and Saskatchewan, and a limited right to use French in oral submissions in the courts of Alberta.
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. 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.
Courtroom custom is largely based upon the British tradition, with a few modifications.
Canadian courts derive their authority from the monarch. Consequently, the judicial system in Canada is formally known as "the Queen on the Bench". 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.
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.