Canada’s JudiciaryKatrina Cohen

Comparative JusticeOctober 15, 2008

Canada’s Legal System• Public vs. private law• A “bijural” system (Quebec Act of

1744):– English common law– Quebec Civil Code

• Aboriginal traditions• British North America Act/Constitution

Act of 1867• Charter of Rights and Freedoms (1982),

and the “Notwithstanding” clause

Judicial Independence:Entrenched in Canada’s Constitution

• Security of tenure– Appointment– Educational programs– Removal (Canadian Judicial Council)

• Security of finances and salaries• Institutional administrative

independence

Structure of National Judiciary:Complex Federalism

• Federal authority:– Appoints/pays/removes federal judges

and superior provincial court judges– Establishes nationwide criminal court

procedure

• Federal Court, Federal Court of Appeals, Supreme Court of Canada

• Administrative tribunals

Structure of National Judiciary:Complex Federalism

• Provincial authority:– Appoints/pays/removes provincial

court judges– Establishes civil procedure for all

provincial courts

• Provincial courts• Superior provincial courts:

– Trial– Appeals

Visualize the Court Structure

Supreme Court of Canada

The Court first sat in the Railway Committee Room in the Parliament buildings, then moved to a two-story building at the bottom of Parliament Hill in 1882. Finally the Court

moved to this separate building in Ottawa in 1946.

Supreme Court of Canada• Highest national court of appeal• Docket control, except in some

criminal cases and provincial references

• Hearings of appeals:– Panels of five, seven or nine– Open to public and taped for

broadcast– Oral arguments last one hour per

side, and judges often ask questions• Written opinions with dissent

Supreme Court of Canada: Judges• Nine judges, selected regionally• Appointment:

– Prime Minister, Cabinet– Advisory Committee– Governor in Council (official appointment)

• Removal difficult, need Parliament’s approval (both houses)

• Chief Justice:– Presides at trial– Chooses judge panels– Chairs Canadian Judicial Council

Judicial Review in Canada

• Grounds:– Division of Control– Charter of Rights and Freedoms

• Abstract judicial review: Appeals from provincial references

• Concrete judicial review

Recent Judicial Cases and Controversies in Canada

• Too much judicial activism?– Provincial Judges Reference (1997): Created

judicial salary commissions

• Same-sex marriage:– Notwithstanding clause in Alberta– Re: Same-Sex Marriage (2004)

• War on terrorism, Iraq War:– Freedom of the press– Courts checking post-9/11 laws– Internal independence:

http://www.cbc.ca/canada/story/2008/09/22/hinzmsn-stay.html

SourcesCanadians for Equal Marriage. “Equal Marriage Backgrounder. ” http://www .equal-marriage.ca/r esource.php?id=500 Supreme Court of Canada. http://www .scc-csc.gc.ca Osgoode Hall Law School of York University. “The Provincial J udges References at 10: T he Hollow Promise of Remuneration Commissions.” September 10, 2007. http://www .thecourt.ca Freedom House, Canada. http://www. freedomhouse.org Centre for Constitutional Studies, University of Alberta. “J udicial Review.” http://www .law.ualberta.ca Department of J ustice, Canada. “Keeping the System Fair and J ust.” http://www .justice.gc.ca Department of J ustice, Canada. “Canada’s System of J ustice.” Online information book: http://www .canada.justice.gc.ca Mapleleafweb. “Supreme Court of Canada Appointment Process.” http://www .mapleleafweb.com Leclair, J ean. “J udicial Review in Canadian Constitutional Law: A Brief Overview.” The George Washington I nternational Law Review, 2004. Found via http://www .findarticles.com “U.S. army deserter, family win stay of deportation.” CBC News, September 22, 2008. http://w ww.cbc.ca/canada Canadian Charter of Rights and Freedoms. http: //laws .justice.gc.ca/en/charter/index.html Countiss, Anne, and Cheung Wai- lam. “The Process of Appointment of Jud ges in Some Foreign Countries: Canada.” Research and Services Division, Legislative Council Secretariat of Hong Kong. http:// legco.gov.hk