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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD October 2, 2002

Canada's complex court system,
Part III

The Supreme Court of Canada


By the authority of the British North America Act (1867), the Canadian parliament established in 1875 the Supreme Court of Canada, which serves as the final court of appeal in Canada on all constitutional issues and disputes. All judgments rendered in criminal and civil matters are final and all lower courts must abide by them. It wasn't always like that. For the first 75 years the Judicial Committee of the Privy Council made up of law lords in London had the power to overturn decisions of our Supreme Court. During this period 250 decisions were thus appealed outside of Canada. The right to appeal criminal cases to the Privy Council was revoked in 1933 and likewise for civil cases in 1949 thus ensuring Canada's evolution from colony to fully independent state.

Determining references

When requested by either level of government on matters of national interest, the Supreme Court interprets the Canadian Constitution, determines the constitutionality of legislation, and interprets federal or provincial statutes. Included among the most notable "References", as they are formally referred to, where the three specific questions submitted on Sept. 30, 1996. The federal government wanted to know whether Quebec could secede unilaterally from Canada under our Constitution. The Supreme Court responded on Aug. 20, 1998 in a lengthy written decision. The answer was an unequivocal "No".

Judges

The Supreme Court, which sits in Ottawa for three sessions a year - winter, spring and fall, consists of a Chief Justice and eight other judges, who are all appointed and paid by the federal government. In recognition of the Quebec civil law system the Supreme Court Act requires that at least three judges must come from Quebec. Traditionally, of the other six judges, three come from Ontario, two from western Canada, and one from the Atlantic Provinces. The judges are also the highest paid in Canada. Last year the eight regular judges saw their salaries climb to $235,700 from $213,000, retroactive to April 1, 2000 while Chief Justice Beverley McLachlin's salary jumped to $254,000 from $ 235,500.

Permission to appeal rarely granted

Before a case can reach the Supreme Court, it must work its way up through all other available appeals and even then it is far from certain that the court will agree to hear it. Except in certain criminal cases where the accused has a right of appeal, the parties must apply for permission or "leave" to appeal to the Supreme Court. More than half of the cases which are heard and disposed of by the Supreme Court get there because they have been vetted and been handed picked by three-member subcommittees made up of Supreme Court judges. Above all they look for cases involving legal issues of general importance.

Out of the 550 to 650 received each year the Court rarely accepts to hear more than 140 cases. These figures explain why in more than 98 per cent of all cases the provincial territorial and federal appellate courts are in fact the courts of final jurisdiction.

Federal Courts

"For the better Administration of the Laws of Canada", as provided for in the BNA Act, the federal government established a Federal Court and a number of specialized courts, notably the Tax Court of Canada and Courts Martial, which serve the military.

Federal Court of Canada

The Federal Court of Canada (FCC), which succeeded the Exchequer Court, was established in 1971 to deal with claims against the federal government. At present the Court has a complement of 31 judges divided between an Appeal and Trial Division. The bilingual court, whose judgments have force and effect across the country, is based in Ottawa but regularly sits from coast to coast. Its jurisdiction is conferred to by close to 104 distinct Federal statutes and as result deals with such matters as interprovincial and federal-provincial disputes, copyrights, immigration, citizenship, competition cases, labour relations, transportation, communications parole and penitentiary proceedings as well as maritime law.

The Federal Court of Canada is also invested with the exclusive jurisdiction to review decisions, orders and administrative decisions from federal boards, commissions and tribunals. What is unusual, however, is that these same bodies may refer any question of law, jurisdiction or practice to the FCC at any stage of a proceeding

Tax Court of Canada

The Tax Court is the successor to the Tax Review Board. It was created in 1983 in order to "dispense justice in tax matters." The Court has exclusive original jurisdiction to hear and determine appeals and references on matters arising from 11 distinct Federal Acts including the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act. The court, which has its main office in Ottawa as well as regional offices in Quebec, Ontario and British Columbia, is comprised of 30 judges.

POSTSCRIPT: My selection of courts for this 3-column series was neither meant to oversimplify our court system nor to underestimate the importance of the many tribunals and courts, which I left out. The simple fact is that if I were to cover them all, this series would have had to include at least another five columns. In Quebec alone there are numerous other courts and tribunals such as the municipal Courts, the Youth Division of the Court of Quebec, the Labour Tribunal, the Human Rights Tribunal, the Professions Tribunal, the Judges Council and the Administrative Tribunal. As for the many different provincial adjudicating boards and committees, there are so many they could easily justify another series of columns.