The Hierarchy and Function of Canada’s Judicial System
The Structure of the Canadian Court System
Parliament and the provinces have used their constitutional powers, set out in The Constitution Act, 1867, to create three types of courts: Inferior Courts, Superior Courts, and the Supreme Court of Canada.
Court Definitions
Court
A court is a state-sanctioned forum where disputes between opposing litigants are formally adjudicated.
The Constitution Act, 1867
This Act sets out the division of power over courts and judicial appointments.
Common Law Provinces and Territories
Refers to all provinces and territories except Quebec.
Inferior Courts
Inferior Courts are courts of first instance (trial courts). They hear matters for the first time and typically have a single judge. They deal with less serious criminal matters, often related to traffic, family, youth, and small claims. Inferior Courts do not hear appeals.
Inferior Courts fall into two categories:
- Provincial/Territorial: Deal with less serious criminal matters, family/youth matters, and small claims disputes.
- Federal (Military Courts Martial): Includes the General Court Martial and the Standing Court Martial. These courts have jurisdiction over armed forces personnel who commit service offences.
Superior Courts
Superior Courts have general jurisdiction to deal with most legal cases. They fall into two main roles:
- Courts of First Instance (Trial Courts): Used for important matters such as civil disputes involving large sums of money or serious criminal cases (e.g., murder).
- Appeal Courts: Hear appeals from courts of first instance and have more than one judge, sometimes as many as nine.
Superior Courts fall into two categories: Provincial/Territorial and Federal.
Provincial Superior Courts
Provincially constituted courts with inherent jurisdiction to hear all matters (unless taken away by legislation). They have two levels: a trial level and an appeal level. The term sometimes refers just to the trial level.
Section 96 Courts
These are Provincial Superior Courts, so called because their judges are federally appointed under Section 96 of the Constitution Act, 1867.
Territorial Superior Courts
Federally constituted superior courts with jurisdiction in the territories. They differ from Provincial Superior Courts because they are constituted under federal legislation. Their jurisdiction derives from Section 4 of the Constitution Act, 1871, an imperial statute that is part of the Canadian constitution.
Federal Superior Courts
Sometimes just called Federal Courts, comprising the Federal Court, the Federal Court of Appeal, the Tax Court of Canada, and the Court Martial Appeal Court. They have jurisdiction throughout Canada, and their authority overlaps with the Provincial Superior Courts.
The Supreme Court of Canada (SCC)
The SCC is Canada’s highest court and final court of appeal. It is also a Federal Superior Court. Parliament was given the power to create a general court of appeal for Canada. The SCC has served as Canada’s general court of appeal since 1875 and its final court of appeal since 1949. The SCC Act was first passed in 1875.
The SCC hears appeals from all Provincial/Territorial Courts of Appeal, the Federal Court of Appeal, and the Court Martial Appeal Court. Since the 1980s, the SCC mainly focuses on public law appeals.
How Cases Reach the SCC
Cases come before the Supreme Court of Canada in one of three ways:
- Leave to Appeal
- Appeal as of Right
- On a Reference
Leave to Appeal
This occurs when the court grants a party permission (called leave). Leave is required first, and it is granted if the case involves a matter of public importance, a significant legal question, or any other matter the court believes warrants its attention.
Appeal as of Right
This is automatic in certain criminal cases when:
- An accused is convicted of an indictable offence and a judge of a court of appeal has dissented on how the law is to be interpreted; or
- A court of appeal finds a person guilty of an indictable offence who was acquitted at the original trial.
On a Reference
An existing legal action in a lower court is not required. This is a special case in which the executive branch of government refers a question of law to a court of appeal, usually concerning the constitutionality of a statute or a course of action the government is considering.
Judicial Terminology and Process
Puisne
A term applied to describe judges who rank below another judge or judges on the same court (e.g., the judges below the Chief Justice on an appeal court).
Hearings
Parties must register documents, both in paper and electronically, that the judges need. These documents include:
- Trial transcripts.
- The facts of all parties, which contain the written legal arguments to be presented on the appeal.
- A book of authorities containing copies of precedent cases, statutes, and secondary sources.
Reserve
To postpone rendering a decision after a hearing has concluded so that the court can carefully prepare the reasons for its judgment. This allows the court to reflect, conduct more research, or possibly review how other common law courts in other countries have decided similar matters.
Majority
Refers (in the context of a split decision on appeal) to the group of justices who form the majority and whose decision becomes the decision of the court.
Dissent
Refers (in the context of a split decision on appeal) to the judgment of one or more justices in the minority.