2.12 The Judicial System of Post-Confederation Canada

Canada’s judicial system — that is its system of federal, provincial, and territorial courts — is a product of the nation’s colonial history, the ideas of those individuals responsible for the British North America Act, 1867, and subsequent alterations, additions, and refinements designed to meet the nation’s evolving needs. Owing to the division of powers established in 1867, both the federal and provincial governments occupy a direct role in shaping the nation’s court system. Section 92 (14) of the BNA Act established provincial responsibility for the “constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts.”^[1] Because of the desire to maintain control over the quality of judges and patronage opportunities for prestigious judicial positions on the nation’s most senior courts, Section 96 of the constitution provided the federal government with the authority to appoint judges to the provincial superior courts – that is the superior and appeal courts in each province or territory – that are descendants of colonial era courts and the English common law courts.^[2] As a consequence, in each province or territory, there exists a provincially-created court system in which the lower courts — where the vast majority of the nation’s legal business occurs — are administered by provincially appointed judges. In that same province the superior courts, which hear trials involving serious criminal offences, divorce petitions, civil suits involving amounts above a specified limit, and appeals from the province’s lower courts, are supervised by federally appointed judges.

For most of the nation’s first century, complaints about sitting judges were handled either through the provincial attorney generals’ offices or through the Department of Justice in Ottawa, depending on which governmental level had been responsible for the initial appointment.^[3] At the federal level, concerns about the effectiveness of such methods eventually led to the creation of the Canadian Judicial Council in 1971.^[4] Chaired by the chief justice of the Canadian Supreme Court, the Council is composed of the chief justices and associate chief justices of Canada’s superior courts, the senior judges of the territorial courts, and the chief justice of the Court Martial Appeal Court of Canada. In these assessments the Council relies upon its Ethical Principles for Judges as one measure of whether a judge has acted inappropriately. Historically, judges have been rarely removed from the bench. Nonetheless, the Council may forward a recommendation to the federal minister of justice who, in turn, requires approval from the House of Commons and Senate before a judge can be removed.^[5] At the provincial level, complaints are managed in various ways according to provincial statute but typically a provincial judicial council investigates allegations before forwarding a recommendation to the government of the day. While all federally appointed judges are eligible to hold their positions until the age of 75, some provincially or territorially appointed judges remain on the bench until age 70.

Considerably smaller than the provincial court system, the nation’s federal court system includes the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada and a number of specialized courts dealing with tax issues and appeals from the nation’s military court system.^[6] While the superior courts in the provinces have jurisdiction over most issues, only those concerns that are specified in legislation as being a federal matter can be heard in federal courts. Specifically, this includes disputes between the provinces and territories, disputes between the provinces or territories and the federal government, cases involving intellectual property, questions concerning citizenship, and cases in which a crown corporation or a federal department of state is involved.

At the time of Confederation and as a legacy of Canada’s colonial relationship with Great Britain, it was still possible to pursue a case to the Judicial Committee of the Privy Council (JCPC) in England.^[7] Although Canadian legislators attempted to end these appeals when the Supreme Court of Canada was created in 1875, it was not until the passage of the Statute of Westminster in 1931 and a series of judicial rulings in Canada and England, that the path was cleared for Canada’s Parliament to abolish these appeals in 1949. The final Canadian case to the JCPC was not resolved until 1960.