Law of Canada - Judicial System

Judicial System

Under the Constitution Act, 1867, the federal Parliament and the provincial legislatures both have the constitutional authority to create courts: Parliament under s. 101, and the Provinces under s. 92(14) . However, the federal power to create courts is much more limited than the provincial power. The provincial courts have a much more extensive jurisdiction, including the constitutionally entrenched power to determine constitutional issues.

The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. Parliament created it by Act of Parliament in 1875, as a "general court of appeal for Canada". Prior to 1949, cases could be appealed to the Judicial Committee of the Privy Council in the United Kingdom, and some cases bypassed the Supreme Court of Canada entirely.

Other than the Supreme Court, the Canadian court system is divided into two classes of courts: superior courts of general jurisdiction, and courts of limited jurisdiction, sometimes referred to as inferior courts. The superior courts, created and maintained by the provinces, are divided into superior courts of original jurisdiction and superior courts of appeal. These courts are sometimes also referred to as "Section 96" courts, in reference to s. 96 of the Constitution Act, 1867, which grants the federal government the power to appoint the judges of these courts. As courts of general jurisdiction, the provincial superior courts of original jurisdiction have jurisdiction over all matters, under both federal and provincial law, unless the matter has been assigned to some other court or administrative agency by a statute passed by the appropriate legislative body. The superior courts of original jurisdiction have an extensive civil jurisdiction, under both federal and provincial laws. Under the Criminal Code, a federal statute, they have jurisdiction over the most serious criminal offences, such as murder. They also hear appeals from the Provincial Courts in criminal matters and some civil matters. A further appeal normally lies to superior court of appeal, the highest court in each province.

The provinces also can establish courts of limited jurisdiction, whose jurisdiction is limited solely to what is included in the statutory grant of jurisdiction. These courts are often called "Provincial Courts", even though the superior courts established by the provinces are also provincial courts. The Provincial Courts have an extensive criminal jurisdiction under the Criminal Code, a federal statute, and also typically have a limited civil jurisdiction in matters under provincial jurisdiction, such as small claims and some family matters. The judges of the Provincial Courts are appointed by the provincial governments.

There are also additional federal courts established by Parliament, which have a specialised jurisdiction in certain areas of federal law. These courts are the Federal Court of Appeal, the Federal Court, the Tax Court of Canada, and the Court Martial Appeal Court of Canada.