Canada, a Federal Constitutional
is a federal state comprised of ten provinces and
three largely self-governing territories, but is also a constitutional monarchy. Queen
Elizabeth II is Queen of Canada and Canada’s Head of State. The Governor General, appointed upon the advice of Canada’s
Prime Minister, is the representative of the Queen in Canada and also is the
nation’s commander-in-chief. A Lieutenant-Governor,
also appointed upon the advice of Canada’s Prime Minister, represents the Queen in each province.
The Parliament of Canada consists of two chambers, the
elected House of Commons and an appointed Senate. For each province there is an
The British North America Act, 1867, a
law of the British Parliament, brought the Canadian federation into existence
as a new nation in 1867 and remains the basic element of Canada’s written
Constitution. In 1982, under the Constitution
Act, 1982, the original 1867 British law and subsequent
amendments became the Constitution
Acts, 1867 to 1975. These laws now are known as “Canada’s written constitution”.
A final law of the British Parliament, the Canada
Act, 1982 provided for the termination of the British Parliament’s
power over Canada and for the “patriation” of
Canada’s Constitution. The Constitution Act, 1982, also adopted
Charter of Rights and Freedoms,
a Charter that neither Canada’s Parliament nor any provincial legislature,
acting alone, can modify.
Canada’s written constitution grants legislative
authority to the Parliament of Canada and to the legislatures of the provinces
and empowers Parliament and the legislatures to make laws in relation to
matters coming within classes of subjects assigned to one, the other, or both
of them. Very broadly speaking, Parliament was assigned classes of subjects of
national importance, whereas the legislatures of the provinces were assigned
classes of subjects of local importance. Some classes of subjects are divided
between Parliament and the provincial legislatures.
Administration of Justice
The Administration of Justice is one such class of
subjects with regard to which the distribution of legislative power is divided
between Parliament and the provincial legislatures. In each province the legislature
may make exclusively laws in
relation to: “Administration of
Justice in the Province, including the Constitution, Maintenance, and
organization of Provincial Courts, both of Civil and of Criminal Jurisdiction,
and including Procedure in Civil Matters in those Courts”. “The Criminal Law,
except the Constitution of Courts of Criminal Jurisdiction, but including the
Procedure in Criminal Matters” comes within the exclusive jurisdiction of the Parliament of Canada.
Penitentiaries come within the exclusive jurisdiction
of Parliament whereas prisons come within provincial jurisdiction. The
distinction between the two institutions is that inmates of penitentiaries are
serving sentences of 2 years or more whereas persons serving sentences of less
than two years are incarcerated in prisons. “Property and Civil Rights”, generally
characterized as civil (as opposed to criminal) law comes within the
jurisdiction of the provinces and territories.
All judges of “Superior, District and County Courts”
in each province and territory are appointed by the Governor General, i.e., the
federal government, even though the courts over which they preside are
constituted, maintained and organized by the legislature of the province in
which they sit. The salaries of all federally-appointed judges are fixed and provided
for by the Parliament of Canada.
In each province and territory, the courts of original
general jurisdiction which qualify as “Superior, District or County Courts”,
are presided over by federally-appointed judges. In most provinces there is a
single court of original general jurisdiction, although the court may be
comprised of more than one division. This court hears in first instance every
civil suit not assigned exclusively to another court by specific provision of
law. Such “other courts” are provincial courts, with provincially-appointed
judges, to which matters wherein the sum claimed is less than a threshold
amount, eg., $70,000. Family
cases, regardless of the claim or recourse sought, cannot be assigned to such
provincial courts. As well, equitable remedies such as injunctions cannot be
assigned to provincial courts.
In each province and territory, there is a single
general appeal tribunal which hears appeals from any judgment from which an
appeal lies. All judges on all courts of appeal are federally-appointed.
The courts of appeal and superior courts of original
jurisdiction in each province and territory are noted below.
In addition to the courts of original general
jurisdiction and the courts of appeal constituted for each province and
territory, there are a number of other courts constituted by the Parliament of
Canada. First and foremost is the Supreme
Court of Canada, the nation’s highest tribunal, which hears appeals from all
provincial courts of appeal and federal courts of appeal and is the last
judicial resort for all litigants, whether individuals or governments.
There are three other federally-constituted courts of
importance, the Federal Court of Appeal, the Federal Court of Canada and the
Tax Court of Canada. The Federal Court of Appeal hears appeals from decisions
of the Federal Court of Canada and the Tax Court of Canada.
Federal Court of Canada is a national trial court which hears and decides legal
disputes arising exclusively in the federal domain, including claims against
the Government of Canada, civil suits in federally-regulated areas such as
Maritime Law and challenges to the decisions of federal administrative tribunals. It does not have
jurisdiction over the vast majority of disputes between persons, corporations,
provinces and foreign governments.
Tax Court of Canada is a court of original jurisdiction which hears appeals
from assessments under the Income Tax Act, the Excise
Tax Act (Goods and Services Tax “GST”), the Employment
Insurance Act and the Canada Pension Plan,
Criminal Law of Canada, the exclusive domain of the Parliament of Canada, is
codified in a Criminal Code.
offenses generally may be divided into offenses punishable on summary
conviction and indictable offenses. All summary conviction offenses are tried
by a judge alone, there being no possibility of a jury trial. Such offenses are
tried before courts constituted by the provinces and territories before judges
appointed by the government in such province or territory (“provincial courts”).
indictable offenses are tried exclusively before provincial courts by a judge
alone. Except for the most serious indictable offenses (treason, piracy,
murder, sedition, bribery of holders of a judicial office, intimidation of
Parliament, alarming the Queen, etc (“most serious offenses”), a person accused
of all other indictable offenses has the option to be tried by a judge alone
before a provincial court, by a judge alone before a superior court (all judges
of superior courts being appointed by the federal government), or by a superior
court composed of a judge and a jury. Every accused charged with one of the
most serious offenses must be tried before a superior court composed of a judge
and jury, unless both the accused and the Attorney General consent to a trial
before a superior court without a jury.
the United States, Canada permits appeals from acquittals on questions of law. In
the event that the appellate court grants the appeal, the acquittal is quashed
and a new trial is ordered. As well, there is no 5th Amendment-like
protection afforded to a witness in Canada. A witness may object to answer on
the ground that his answer may tend to criminate him, or may tend to establish
his liability to a civil proceeding, but is compelled to answer. The answer so
given, however, cannot be used or be admissible in evidence in any criminal or
civil trial against him thereafter taking place.
mentioned above, Canada is a federation of ten provinces and three territories.
The civil laws for each province and territory fall within the exclusive
jurisdiction of each province or territory. It is important to note that the
civil laws of the Province of Quebec are based on French civil law. These laws
are codified in a Civil Code the origins of which are found in the Napoleonic
Civil Code. The laws of all other provinces and territories find their origins
in English common law and are based on common law concepts.
is a bilingual country. All federal laws are drafted in the nation’s two
official languages: English and French. Three provinces are officially
bilingual: Quebec, New Brunswick and Manitoba. Therefore, all laws in these
three provinces are drafted both in English and in French. Proceedings before
all courts in the Province of Quebec take place in either language, the
languages often being used interchangeably. Cases before the Federal Court of
Canada, the Federal Court of Appeal, the Tax Court of Canada and the Supreme
Court of Canada may be pleaded in either language.
right to a jury trial for litigants in civil cases in Canada is much more
restricted than the rights enjoyed by litigants in the U.S. Civil jury trials were abolished in the
Province of Quebec in 1976 for actions subsequently instituted. The last civil
jury trial in Quebec was pleaded by my partner Claude-Armand Sheppard (Snyder v. Montreal Gazette Ltd.) in 1978, although the case was decided
finally by the Supreme Court of Canada only in 1988 ( 1 S.C.R.494).
jury trials still exist, although rare, in the other provinces of Canada.
Generally, jury trials are permitted, indeed sometimes mandated unless waived
by the parties, in actions such as those for defamation, slander, malicious
arrest, malicious prosecution and false imprisonment.
the Province of Ontario, Section 108 of the Courts
of Justice Act permits a
party to a civil action to require “that the issues of fact be tried or the
damages assessed, or both, by a jury”, unless other provisions of law otherwise
provide. Some of the exclusions to this general rule are claims seeking relief
by way of injunction or mandatory order, partition or sale of real property,
foreclosure or redemption of a mortgage, specific performance of a contract,
dissolution of a partnership, declaratory relief, other equitable relief and
relief against a municipality.
Enforcement of Foreign
laws of all provinces and territories provide for the enforcement therein of final
judgments rendered in another province or territory. Such judgments are
enforced generally by presenting before the superior court of the province or
territory in which enforcement is sought a proceeding seeking recognition and
enforcement of the judgment. The same procedure is available for recognition
and enforcement of final foreign judgments. In all provinces except for Quebec,
reciprocal enforcement of judgments legislation exists which simplifies the recognition
and enforcement of judgments rendered in other provinces. Reciprocal
legislation also exists between some Canadian provinces and some U.S. states,
as well as between some provinces and other countries such as Australia,
Germany, Austria and the United Kingdom.
Canadian courts are very receptive to the enforcement
of final and conclusive foreign money judgments subject to certain statutory
exceptions and procedural requirements. Generally, a Canadian court will not examine the
merits of the extra-provincial or foreign decision, confining itself to
verifying that the foreign court had jurisdiction, that the decision was not
rendered in contravention of fundamental principles of procedure, and that the
outcome of the foreign decision is not manifestly inconsistent with public
order as understood in international relations. Most Canadian courts, however,
will not enforce obligations arising from the tax laws of a foreign country,
unless that country enforces obligations arising from Canadian tax laws.
Sheppard Shapiro LLP