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

Canada's complex court system
Part II


From a strict constitutional point of view, the provincial Superior Courts and provincial Courts of Appeal reflect the very essence of Canada's brand of federalism. Both courts and judges derive their constitutional authority from the two levels of government. Because of the wording of the BNA Act, the provinces have explicit jurisdiction over the " Constitution, Maintenance and Organization " of the two courts whereas the "Governor General " /Federal government has the exclusive authority to "appoint", the judges ".

To be eligible, superior court judges must be " selected from the respective Bars of those Provinces" and possess at least " ten years standing" in their bar. While the final selection can depend as much on their political connections as on their qualifications, this is not to say that the provinces are not consulted.

Ensuring their judicial independence


Out of the 1,013 federally appointed judges, approximately 357 are Provincial Superior Court trial judges. Under the BNA Act, such judges " hold office during good behavior" and can only be removed by Parliament. This condition was imposed by the Fathers of Confederation so as to ensure their judicial independence, which was to be the cornerstone of the Canadian judicial system. By making it extremely difficult to remove a judge they hoped to curtail the risks of political interference. This was necessary because, historically, judges in Canada were closely involved in politics and sat as members in legislatures. During the 18th and 19th centuries it was not unusual for a Chief Justice in both Upper and Lower Canada to also occupy a position in their respective Executive or Legislative Councils.


Petitions for removal never put to vote

Since confederation there have been only five petitions for removal of a superior court judge filed in Parliament. However, due in part to last- minute resignations, none of the cases were ever put to an actual parliamentary vote. The latest "close-call" occurred in 1999 when the Canadian Judicial Council began an inquiry at the request of the Federal Minister of Justice regarding then Quebec Superior Court judge Robert Flahiff. After the judge was convicted and sentenced to a three-year prison sentence for having laundered drug money prior to his appointment he resigned from the bench and the inquiry was dropped. He was released from prison on November 20, 2001 after serving 6 months.

Determining their salaries


Article 100 of the BNA Act stipulates that the " Salaries, allowances and Pensions of the Judges of the Superior Courts...shall be fixed and provided by the Parliament of Canada."

After the Supreme Court of Canada ruled in 1997 that changes to judges' salaries should be recommended by an independent judicial commission so as to preserve their judicial independence, Ottawa established the first Judicial Compensation and Benefits Commission. The Commission, whose advice is not binding, reports to the Justice Department on whether federal judges should get a raise and by how much. The bottom line is that despite the Commission's role it is still the Executive branch of the government and not Parliament that determines their salaries, which some legal pundits claim is in violation of the spirit of article I00. On the other hand such increases are normally incorporated in a bill, which must be put to a vote in both the House of Commons and the Senate. Last year's Bill C-12, (Act to Amend the Judges Act) raised the salaries of all Superior Court judges by 11 % to $204,400. retroactive to April 1 , 2000.

Quebec Superior Court


The Quebec Superior Court, originally known as the Court of Queen's Bench, is first and foremost Quebec's court of general jurisdiction. It hears all cases that don't fall under the exclusive jurisdiction of other courts and bodies. Equally important is its power of supervision and reform over all courts falling under the Quebec legislature and, with certain exceptions, over political bodies and corporations in Quebec.

By virtue of the Quebec Courts of Justice Act, the Quebec Superior Court is composed if 143 judges plus a number of supernumerary judges, mostly retired, who sit in all of the judicial districts throughout Quebec.


On the civil level, the Quebec Superior Court has exclusive jurisdiction in family matters (divorce, separation, support, child custody) bankruptcy, class actions suits, injunctions and in civil and commercial claims where the value in dispute is at least $30,000.

In criminal matters, the court has exclusive jurisdiction to hear cases involving the most serious criminal offences such as murder treason, piracy, intimidating Parliament and inciting to mutiny. It is also the only court that can hear jury trials.

Furthermore, the Quebec Superior Court is invested with the power to hear appeals from decisions from the lower courts relative to Criminal Code summary offences, such as impaired driving, breach of probation and prostitution. It also hear appeals with regards to the many offences covered by federal and provincial regulatory statutes, the most common being the Quebec Highway Safety Code

The Quebec Court of Appeal

Each province has a Court of Appeal, which hears appeals from decisions of the lower courts. As a rule no witnesses are called and no new evidence is presented. There are 15 permanent provincial and territorial appellate court sitting locations - one in each province and territory except for Quebec and Alberta, which have two each. Because of the importance of Quebec civil law, which was reestablished in 1874 by the Quebec Act, the Quebec Court of Appeal plays a significantly different role than that of the other courts of appeal.


The Quebec Court of Appeal was initially established in 1849 under the name of " The Court of Queen's Bench" and was designated as Lower's Canada's general appellate court. At the time it had only four judges. Prior to 1840, all appeals from judgments of the Court of Queen's Bench were heard by the Governor and his Council. In 1840, the jurisdiction in matters on appeal was handed to a bench of three judges, including the Chief Justice.

Today the court is made up of 20 judges appointed by the federal government who sit in Montreal and Quebec City and whose base salary is $217,000.

The court, which nearly always sits in panels of three, hears upward of 1,300 civil and criminal appeals each year and renders over 1200 judgments. More often than not, civil appeals outnumber criminal appeals.

In civil matters, the bulk of their cases deal with appeals from final or interlocutory decisions of the Superior Court and of the Court of Quebec .As for criminal or statutory cases, the court hears appeals from verdicts of guilt or acquittal rendered by the Court of Quebec or by the Superior Court. The court also hears appeals on sentence.


Next week: The Supreme Court of Canada and Federal Court of Canada