Courts and Judiciary in Canada

Overview

The Canadian court system is a unified hierarchy of courts organized at both federal and provincial levels, with the Supreme Court of Canada at its apex. The Constitution Act, 1867 distributes court-related powers: Parliament controls the appointment, payment, and removal of superior court judges (ss. 96–100), while provinces administer the courts and appoint provincial court judges (s. 92(14)). This division creates a distinctive architecture: s. 96 courts (superior courts of general jurisdiction) appointed by the federal government, and provincial courts appointed by provincial governments, operating within an integrated hierarchy.

The Supreme Court of Canada

The Supreme Court of Canada (SCC), established by the Supreme Court Act, RSC 1985, c S-26 (first enacted 1875), is the final court of appeal for all matters of Canadian law — federal, provincial, common law, and civil law. It consists of nine justices (s. 4(1)), including the Chief Justice of Canada and eight puisne justices. By statute, three justices must be appointed from Quebec (s. 6), ensuring civil law expertise. The remaining six are conventionally divided among Ontario (three), Western Canada (two), and Atlantic Canada (one), though these regional conventions are not statutory.

The Court grants leave to appeal in approximately 60–80 cases annually from approximately 500 applications. Appeals as of right exist in limited circumstances (s. 40). In criminal cases, a person acquitted by a provincial court of appeal may not be retried, subject to the Crown’s right to appeal on questions of law (s. 676 Criminal Code). The Court also hears reference questions referred by the federal government (s. 53 Supreme Court Act), through which it has opined on Patriation Reference [1981] 1 SCR 753, Quebec Secession Reference [1998] 2 SCR 217, and Same-Sex Marriage Reference [2004] 3 SCR 698.

Federal Courts

The Federal Court and the Federal Court of Appeal are constituted under the Federal Courts Act, RSC 1985, c F-7. They exercise jurisdiction over matters assigned by federal statute: judicial review of federal administrative decisions, intellectual property (patents, trademarks, copyright), maritime law, Crown litigation, and citizenship and immigration. The Federal Court of Appeal hears appeals from the Federal Court, the Tax Court of Canada, and certain federal tribunals. These courts are s. 101 courts created by Parliament, not s. 96 superior courts, and their jurisdiction is statutory and limited.

Provincial Superior Courts

Each province and territory has a superior court of general jurisdiction — the Court of King’s Bench (in Alberta, Saskatchewan, Manitoba, New Brunswick, and the territories), the Superior Court of Justice (Ontario and Quebec), or the Supreme Court (British Columbia, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, and the Northwest Territories). These courts inherit the inherent jurisdiction of the English superior courts: the power to hear any matter not assigned to another court or tribunal, and the authority to control their own process and to supervise inferior tribunals through judicial review.

Superior court judges are appointed and paid by the federal government (ss. 96, 100) and hold office during good behaviour until the age of 75 (s. 99(2)). Removal requires a joint address of the Senate and House of Commons (s. 99(1)). This security of tenure is a cornerstone of judicial independence in Canada.

Provincial Courts of Appeal

Each province and territory has a Court of Appeal (or, in Nunavut, the Nunavut Court of Appeal). These are the highest courts within the province, hearing appeals from the superior court, provincial court, and specified tribunals. The Court of Appeal for Ontario, the British Columbia Court of Appeal, and the Quebec Court of Appeal are among the busiest appellate courts in the country. Leave to appeal to the SCC is generally required from a provincial court of appeal.

Provincial and Territorial Courts

Provincial courts (called the Provincial Court, the Court of Justice, or the Territorial Court) are created by provincial legislation under s. 92(14) of the Constitution Act, 1867. Their judges are appointed by the provincial government and hold office during good behaviour, subject to removal by the provincial cabinet on the recommendation of the provincial judicial council. Provincial courts typically have jurisdiction over:

• Criminal law (most summary conviction offences and preliminary inquiries for indictable offences)
• Family law (child protection, child support, and in some provinces, divorce and custody)
• Youth criminal justice under the Youth Criminal Justice Act
• Small claims (civil claims up to a financial limit set by the province)
• Provincial regulatory offences (traffic, liquor, environmental)

Provincial court judges do not possess the inherent jurisdiction of s. 96 judges, and their decisions are reviewable by the superior court through judicial review and appeal.

Judicial Independence

Judicial independence in Canada rests on three core constitutional guarantees. First, security of tenure: superior court judges hold office during good behaviour until age 75 (s. 99 Constitution Act, 1867). Provincial court judges enjoy equivalent statutory protection. Second, financial security: salaries of superior court judges are “fixed by the Parliament of Canada” (s. 100), and provincial court judge salaries are protected by an independent commission process (Reference re Remuneration of Judges of the Provincial Court of PEI [1997] 3 SCR 3). Third, institutional independence: courts exercise exclusive authority over their own administrative and adjudicative functions.

The Supreme Court in the Provincial Judges Reference [1997] 3 SCR 3 held that judicial independence is an unwritten constitutional principle applicable to all courts, including provincial courts, flowing from the preamble to the Constitution Act, 1867, which recites a constitution “similar in Principle to that of the United Kingdom.”

Judicial Appointment Process

Supreme Court appointments have undergone significant reform since 2016. The government established an Independent Advisory Board for Supreme Court of Canada Judicial Appointments composed of members from the legal profession, judiciary, law enforcement, and the public. The Board identifies qualified candidates, the Minister of Justice recommends a nominee, and the Prime Minister makes the appointment. Nominees appear before an ad hoc parliamentary committee for a question-and-answer session (non-binding). This process replaced the earlier system in which the Minister of Justice consulted informally with the legal community.

Federal superior court appointments involve the Commissioner for Federal Judicial Affairs, which administers a merit-based process including assessment by a judicial advisory committee in each province and territory. These committees evaluate candidates’ legal ability, personal qualities, and suitability. Appointments are made by the Governor General on the advice of the federal cabinet.

Provincial court appointments vary by province but generally involve a judicial appointment committee with representatives of the bar, the judiciary, and the public, which recommends candidates to the provincial cabinet.

The Canadian Judicial Council

The Canadian Judicial Council (CJC), composed of the Chief Justice of Canada (chair), the chief justices and associate chief justices of federally appointed courts, and the senior judges of the territories, is responsible for judicial conduct review (under the Judges Act, RSC 1985, c J-1). The CJC may investigate complaints of judicial misconduct or incapacity and recommend removal to Parliament, though a judge may only be removed by a joint address of both Houses. The CJC also issues ethical guidelines (the Ethical Principles for Judges) and delivers continuing education for federally appointed judges.

Relationship Between Federal and Provincial Appointments

The division between federally appointed (s. 96) and provincially appointed judges creates a two-stream judiciary that is unique among federations. While provincial court judges are not constitutionally inferior to s. 96 judges, their decisions are subject to review by superior courts. The Supreme Court has held that the constitutional guarantee of judicial independence applies equally to both streams (Provincial Judges Reference). The practical relationship is one of mutual respect and coordination, facilitated through the CJC and the Canadian Association of Provincial Court Judges.