The Judiciary

Justice and the Law in Canada: Introduction

Courts of law flourished in eighteenth-century Quebec (Lower Canada) and Ontario (Upper Canada), and in the Maritime colonies during the same period. Judicial records predating 1750 survive in Quebec, New Brunswick and Nova Scotia. The Quebec Act, 1774, section 17, defined powers for creating British-style criminal, civil and ecclesiastical courts in Quebec, alongside that province's much more ancient French courts. The Constitutional Act, 1791, created the Provinces of Upper and Lower Canada, and established new courts for each province. Next, the Union Act, 1840 created the first Court of Appeal, in this case for Upper Canada, and set salaries for judges in both Canadas.

It was the British North America Act, 1867, now called the Constitution Act, 1867, that first created a united Canada (Ontario, Quebec, Nova Scotia and New Brunswick) and defined the basic elements of the country's judicial system. The Governor General appoints all county, district and superior court judges. Once appointed, a judge's independence is guaranteed by virtue of his or her serving "during good behaviour". Judicial salaries are "fixed and provided by the Parliament of Canada". Under the Constitution Act, 1867, all existing provincial courts were to continue and bilingualism was guaranteed in the federal Parliament and the courts within federal jurisdiction. At the time of Confederation, decisions from provincial courts could be appealed directly to the Judicial Committee of the Privy Council, in London, for a final decision.

The Constitution Act, 1867, invited the new federal Parliament to create its own court of appeal. The Parliament of Canada could "provide for the constitution, maintenance, and organization of a general court of appeal for Canada". This provision was used by Parliament, a few years later, to create the Supreme Court of Canada. However, decisions of the new court still could be appealed to the Judicial Committee of the Privy Council for final judgment. The Judicial Committee's superior appellate jurisdiction over Canada did not end until 1933, for criminal appeals, and 1949, for civil appeals.

The Court system of Canada is made up of many courts differing in levels of legal superiority and separated by jurisdiction. Some of the courts are federal in nature while others are provincial or territorial.

The Canadian constitution gives the federal government the exclusive right to legislate criminal law while the provinces have exclusive control over civil law. The provinces have jurisdiction over the administration of justice in their territory. Almost all cases, whether criminal or civil, start in provincial courts and may be eventually appealed to higher level federal courts. The quite small system of federal courts only hear cases concerned with matters which are under exclusive federal control, such as immigration. The federal government appoints and pays for the judges of the provincial superior courts as well as the federal courts. The provinces appoint the judges for the lower provincial courts.

This section will look at the following aspects of the Canadian justice system, legislation, the courts, and other public justice institutions.

• Canada's Bijural Legal System
• Laws of Canada
• Role of Government
• Canada's Court System