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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD September 25, 2002

Canada's complex court system
Part I


Canada's court system is both complex and confusing, even for those who practice law. At any given time there are thousands of federal and provincial laws and regulations and hundreds of courts and tribunals prepared to handle their interpretation .Not only do the many different levels and types of courts make questions of jurisdiction difficult to sort out, some share the same functions but go under different names. To complicate matters, many of Canada's 2300 judges are appointed and paid by the federal government but work out of the 700 courthouses that that are owned and staffed by the provinces and territories.

Pyramid-like court structure

Canada's court system is first and foremost distinguished by its many provincial and federal courts, which are assembled together in a pyramid- like structure resulting in lower courts, in any one division, being bound by higher courts. At the top of the court hierarchy sit the 9 judges of the Supreme Court of Canada with the next tier below occupied by the Appeal Division of the Federal Court of Canada, the Court Martial Appeal Court and the 15 provincial and territorial appellate courts. The third level consists of the Trial Division of the Federal Court of Canada and the provincial and territorial superior courts of general jurisdiction. Included among the specialized federal courts are The Tax Court, The Admiralty Court and Courts Martial. At the very base of the pyramid are the provincial courts, which include the municipal courts. Although the Federal and Provincial Administrative tribunals are not part of the court system they are nevertheless subject to the supervisory role of the courts.

Constitutional Framework


Any attempt to understand Canada's court system requires a close look at the British North America Act, which led to Canadian Confederation. Originally an act of the British parliament, which was proclaimed on July I, 1867, the BNA Act was "brought home" to Canada in 1982 via the Constitution Act.

Today the BNA Act forms part of the Canadian Constitution along with the Canadian Charter of Rights and Freedoms and 22 other formal documents made up of various acts and orders-in-council of the British and Canadian Parliaments.

Dividing the constitutional authority


From the moment the four colonies, namely Ontario, Quebec, New Brunswick and Nova Scotia, formally decided to be "federally united into One Dominion ... with a Constitution similar in principle to that of the United Kingdom... ", it would become necessary to divide the constitutional authority of the courts between the federal and provincial governments. This was achieved as result of prolonged and arduous negotiations between the representatives of the four colonies, better known as the Fathers of Confederation.


The provinces were given the power to pass laws regarding the administration of justice, which included the power to set up their own courts for both civil and criminal matters. On the other hand, the federal body was invested with the power to establish a general court of appeal and "any additional courts for the better administration of the laws of Canada", as well as the power to appoint and pay the judges.


Despite the passing of 135 years since the enactment of the historical BNA Act, the names of the courts together with their respective jurisdictions still vary from province to province.

Provincial Courts

The court system of each province is generally divided into two levels, namely the Provincial Court and the provincial Superior Court. As for the provincial courts, even though they are referred to as "inferior" or "lower trial" courts, unlike other countries, their overall jurisdiction is immense. The approximate 1000 judges at the provincial court level throughout Canada handle close to 90 percent of all cases, civil and criminal.

Large gap in salaries

As for their salaries, which vary from province to province, they are substantially less than the salaries of federally appointed judges. For instance, Quebec provincial court judges earn $152,000 while the salary of all provincial superior court judges is $204,400. Even though the wide gap is a constant source of irritation and has recently led to a lawsuit by the Quebec provincial court judges, it neither reflects a second-class justice nor the difference in clientele. Among the obvious reasons is their lower status on the hierarchical court level. Other reasons include the federal government's track record in paying higher salaries to public and civil servants and finally, the provinces' never ending concern regarding the ripple effect on public service negotiations.


The Court of Quebec

Pursuant to the BNA Act, the Quebec National Assembly adapted a succession of statutes leading up to the Quebec Courts of Justice Act, in order to establish its own courts. They are presently referred to as The Quebec Court of Appeal, The Superior Court, The Court of Quebec and the Municipal Courts.

As for the Court of Quebec, it is the court of first instance and covers the whole of Quebec. The 270 provincial court judges are divided among four divisions: the Civil Division which includes the Small Claims Court, the Criminal and Penal Division, the Youth Division and the Expropriation Division.

Civil Division

The Civil division has jurisdiction over all disputes involving claims between $7,000 and $30,000 except when they involve applications for family support, which must be presented before the Superior Court and matters specifically reserved to the Federal Court.

As well as having jurisdiction over municipal, school, civil and administrative matters, the Civil Division also acts as an appeal court with regards to the decisions handed down by various adjudicating boards or committees which include the Commission d'accs l'information, the Rgie du logement and the Police Ethics Commissioner.

Small Claims Division

On June 8, the monetary ceiling of the Small Claims Division was hiked to $7 000. However, claims are still limited to individuals residing in Quebec or companies having no more than five persons under its management during the 12 months preceding the application. The Small Claims Division also has jurisdiction to hear appeals in respect to certain Quebec provincial tax and Quebec Pension Plan decisions.

The procedure is informal, thanks in part to simplified written formalities and judges who direct the proceedings and examine the witnesses. Their judgments cannot be appealed.

Criminal and Penal Division

The judges of the Criminal and Penal Division of the Court of Quebec have jurisdiction over legal proceedings instituted under the Criminal Code, the Code of Penal Procedure and all penal laws. While their jurisdiction exclusively covers all summary conviction offences under the Criminal Code, in practice they hear, with the consent of the accused, just about every criminal case short of jury trials. . In penal matters, this Division has jurisdiction over all proceedings involving regulatory or statutory offences, both provincial and federal.