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5- Court System of Canada

Mark Alaurin

Canada has a complex court system with numerous different parts. Each of these parts serves a particular purpose.
Below is a graph that shows the court system of Canada:

As you move from the bottom to the top the “importance” of the court rises. Ex: Supreme Court is most important
whereas Provincial/ Territorial Courts are the “least” important.

Difference between court of APPEALS and TRIAL court:

- Court of appeals: If there was a mistake/ something wasn’t done properly, you can appeal (or ask for another
court to look it over) and see if they agree or disagree with the previous decision.
- Trial court: This is where the court tries your actual case. All cases start in trial courts

Using one of the following websites, complete the graphic organizer below with the key information on each topic.
(Bullet points are fine). PRO TIP: Whenever you are taking notes, ALWAYS put the info into your own words. This makes
you understand it better but it also will help you avoid plagiarism in the future.

Canadian Justice Department

Canadian Encyclopedia
 Part 1: Federal vs. Provincial Courts
In the chart below, compare and contrast the roles of the Provincial and Federal Courts

Federal Courts Shared Responsibilities Provincial Courts

(what kind of things do they
both do?)

-Deal with cases/answer questions that concern the -Both deal with criminal -Have specialized courts (like youth, family,
country as a whole issues small claims, etc.)
-They’re in charge of the final decision (a lower court can -Uphold values of justice -Most cases involve criminal offences,
redirect an appeal to the Supreme Court if the decision is system money and family matters
challenged–this decision is reviewed by the Federal Court -Both can hear out appeals -Common law principles are applied in
of Appeal ) (provincial court can redirect private-law cases (Quebec follow their Civil
-Deals with tax assessments (basically anything related to the appeal to a fed. court) → Code instead)
taxes, includes tax statutes) both also have a court that
-Only handles a civil case if it’s involved with terrorism reviews the decisions made
-Deals with disputes between the province and the fed. by other courts
-Also handles intellectual property (like inventions, etc.)

Part 2: ROLES OF DIFFERENT COURTS

COURTY COURT LEVEL MAIN ROLES AND FACTS

Supreme Court Federal - Canada’s final/ highest court of appeals (est. as gen. court appeal in
1875–Supreme Court Act)
↳Only became the highest order in 1949; preceded by Judicial Committee
of the Privy Council (London)
- Can’t automatically appeal to said court. It has to pass either criterion:
permitted by the court itself, or when a lower court’s decision is challenged
- Civil cases are only held in the Supreme Court if it concerns the public or
when law is questioned (as well as questions directed to them by
gov.-in-council and appeals that question the prov. courts of appeal)
↳cases mostly concern the “constitutional validity” of legislation
↳also known as references; used to analyze laws, existing or undergoing
validation, to see if they’re lawful (legislation as a whole)
- Extremely low chance of private cases can be ruled

Tax Court Federal - 1983 – created by Parliament

- Preceded by Tax Review Board (1970–only replaced since taxpayers would
skip over this court and appeal to Trial Division instead)
- Hears appeals concerning with statutes (passed written laws) directed to
taxation
- Decisions made in this court aren’t finalized; can be reviewed by Federal
Court of Appeal (see below)

Federal Court Federal - 1971 – created by Parliament

- Continuation of Exchequer Court of Canada
- Analyzes allegations made by or against fed. gov.
- Concerned with maritime (ships and seas) law
↳as well as: copyright, patent, and trademark
- Taxation statutes (only on the fed. level–doesn’t concern prov. statutes)
- Has power to look over decisions made by tribunals (judge) and bodies est.
by fed. law
- 2003 – separated into: Trial Division, Court of Appeal–became separate
courts → Federal Court, Federal Court of Appeal
Federal Court of Appeal Federal - Cases usually come from Federal Court for Fed. Court of Appeal
↳actions concerning inferior tribunals (either their decisions or appeals
made by them) go straight to Federal Court of Appeal
- Appeals from here can move to the Supreme Court with leave (from either
one–SC main office is in Canada, they move around the country–dependant
if it’s beneficial/easier for the party involved)

Provincial/ Territorial Provincial - Lesser matters are held here (primarily criminal and some civil)
Courts ↳Examples of lesser crim. matters: minor/summary conviction offenses,
trials where defendant wants to be tried (with a jury) as well as the
preliminary inquiries (where judge overlooks your case and decides if
there’s enough evidence for a trial)
- Judges for these courts are chosen by the province
- Newfoundland, Ontario, and Manitoba: matters are handled by provincial
court (criminal division) under Criminal Code
- Other divisions are in charge of small civil claims as well as things
concerned with family law
- Court of Québec has a similar function (see above), a municipal court may
even handle the case

Superior Courts Provincial - Hears and determine any civil cause of action (noncriminal between two
private parties) directed to their attention
↳doesn’t involve suits (complants/petitions) within exclusive jurisdiction
(only a specific court can exclusively hear the case) of courts created by
Parliament
- Allowed to hear to hear trials of serious offences
↳Have exclusive jurisdiction over the following matters: murder, treason,
sexual assault, and piracy
- Jury can be requested by prosecution (against) and defendant in their trials
of indictable offence (considered most serious; see examples above)
- Rare for juries to be present for civil cases; can be requested by the two if
permitted by provincial law (choice is up to the trial court–civil juries only
have 6 people)
- When a judge and jury is present in court, the judge is in charge of
answering questions of law and leading the jury (jury is in charge of
questions of fact–meanig the issue/the case itself)
- Known as Court of Queen’s Bench in the following: New Brunswick,
Manitoba, Saskatchewan, Alberta
- Known as the Supreme Court of prov./terr.: Newfoundland, PEI, Nova
Scotia, British Columbia, Yukon, and Northwest Territories
↳Quebec: Superior Court of Québec; Ontario: Superior Court of Justice
↳Nunavut (unified/single-level court): Nunvaut Court of Justice → in charge
of hearing all cases (whether it be for lower or superior)

Court of Appeals Provincial - Every province/territory has a court of appeal

- Court hears appeals from superior, prov. or terr. courts. Can also appeal to
Supreme Court (there are restrictions)
- Appeals heard can be from a lower provincial court (civil and criminal law)
↳Includes the following: property disputes, negligence claims, family
disputes, bankruptcies, corporate reorganizations
- Usually has three judges
- No original jurisdiction (meaning no first decisions originate from here), all
cases are appeals from lower courts
↳Although, the prov. cabinet can direct constitutional questions to the
Courts of Appeal (reference procedure–they ask for their opinion, costs less
money this way)
Part 3: Current Case Study:
Read this article and look at how the issue of Bill 21 has moved through the court system. As you read think about/ record answers
to the following questions:

What is Bill 21?

Bill 21 will prevent employees from wearing displays of their religion. The ban on religious symbols can be applicable to government
workers, but many are expressing their discontent when the same law is implemented to English schools. This is primarily because
Quebec is very heavy on their secularism, and that parents who choose to put their kids through an English school in a French society
are rightfully allowed to do so because of the minority-education rights (not under the notwithstanding clause, which is what Quebec
wants to use to pass this bill). Another concern is that by implementing Bill 21, it will cause a ‘linguistic’ divided throughout the
nation, which would lead to their unity getting split up; heavily highlighted by Quebec’s Justice Minister–he restates that everything
at the National Assembly needs to apply to everyone. There are also other arguments presented, but weren’t covered in great detail,
their government states that the bill’s restrictions are a necessity in protecting Quebec’s principles. Also civil liberties groups that
quickly shot down the idea, but the notwithstanding clause was put in play, leaving them no choice but to protest. They’ve also
acknowledged that many will be negatively affected once it’s implemented, primarily Muslim women’s freedom of expression. The
English schools have been exempted from this bill’s power, but some are still expressing discontent, saying that their plans to teach in
a French school is no longer possible on the basis of their religion.

Does the Quebec Superior Courts decision finalize the issue? What is likely to happen next?

It appears that Quebec’s Superior Courts decision comes to a standstill. They’ve made positive changes to Bill 21, but it still
negatively affects the lives of many government workers, the article even says that it’s the first time that the court ever issued an
opinion on the law’s constitution (even though settling the matter is highly improbable). If I remember correctly, whenever a
provincial court is unsure of a decision that they’ve made, the Supreme Court can actually supervise and see if the constitution is
invalidated with the passed bill. Many legal experts are expressing the likelihood of the appeal being passed to the Supreme Court of
Canada, since the matter in which the case was left allowed for it.

Questions:
1) What is the main difference between a trial court and an appeals court?

The main difference between a trial court and an appeals court is that the case itself is actually held at the trial and can be passed at
the appeals court if either side deems the decision as wrong. No cases are originally held in an appeals court, unless its in regards to
questions about the law or the constitution (which can only be directed by the governor-in-council)–a rare case.

2) What is the highest court in Canada?

The highest court in Canada is the Supreme Court (more details above). Their decisions are reviewed again in the Federal Court of
Appeals (approximately involved in 95% of the federal cases).

3) How does the concept of precedent work within this court system?

The concept of precedent (common law) is applied by judges in nine territories (Quebec can use this as well, it’s just not binded–they
follow the French Civil Code). It’s noted that in private cases, a jury can be requested if allowed by the judge, which is another
example of the flexibility that precedence has when it comes to handling cases.

4) Which level of courts has specialty courts, like Family Court, small claims courts, etc.?

The level of courts that has specialty courts is provincial/territorial. Municipal courts in Quebec can also be in charge of cases related
to these categories, but that’s an unusual occasion.