To an outsider, the structure of the Canadian judiciary is just as complicated as the legal challenges that it faces every day.
The British North America Act of 1867 granted the federal government jurisdiction over criminal law but left the provinces with the primary responsibility for the administration of justice. So the provinces run the federal courts, but the judges in those courts are appointed by the federal government.
To confuse matters further, the provinces also have their own courts, and in this case they appoint the judges themselves.
The final court of appeal in Canada is the Supreme Court. It replaced Britain’s Judicial Committee of the Privy Council in 1949.
Canada’s policy of appointing judges differentiates us from the United States where most judges are elected. Critics of the Canadian process call it undemocratic. In the U.S., they like to argue, judges are accountable to the people. In Canada, they owe their allegiance to the political elite.
Supporters of the Canadian approach argue the appointment process is better. First, the political elite typically make their recommendations based on the advice of legal experts and this ensures that Canadians receive the best possible treatment before the law. Second, the permanent appointments give judges the freedom to interpret the law without fear of a popular backlash ending their employment after the next election.
Canadian law also says that judges be well-paid and, thus, not open to bribery or other efforts to sway their thinking.
The power and prominence of the courts in Canada increased dramatically in 1982. By creating the Charter of Rights and Freedoms and putting it in the constitution, the elected politicians transferred significant responsibilities for interpreting the law into the hands of the judges. In other words, Parliament still makes law in Canada, but governments and members of parliament need to keep the Charter in mind at all times, and it’s up to the courts to decide if they have.
Admittedly, the Charter includes a “notwithstanding” clause, allowing federal or provincial parliaments to override the courts temporarily, but it is rarely invoked.
Critics complain the Charter has contributed to the decline of democracy in Canada as judges, who are not elected, can now overrule the will of the popularly elected members of the House of Commons. But it is worth recalling that the judiciary never asked for the Charter. Members of Parliament made a conscious decision to include the Charter when they changed the Constitution in 1982 and brought it home from Britain.
The role of the courts in Canadian society became particularly important shortly after the Quebec referendum of 1995. Voters there had in effect been asked to decide if they wanted to remain in Canada, and by a very narrow majority decided they did. The following year, Canada’s attorney general asked the Supreme Court to comment on the legal implications of any effort by the province of Quebec to unilaterally leave Canada.
The court concluded that Quebec did not have the right to declare independence on its own. But, it said, the government of Canada had an obligation to negotiate if a clear majority of Quebeckers supported independence. As a result, the federal government began work to clarify matters.
Passed in 2000, the Clarity Act established the conditions under which Quebec could negotiate separation from Canada. This was an example of the new level of dialogue between the democratically elected legislature and the appointed judiciary in the development of Canadian public policy.
At about the same time, the creation of the territory of Nunavut in the Canadian North added something different to the judicial system. Unlike Canada’s other provincial and territorial courts which deal with basic cases separate from appeals, the Nunavut Court of Justice deals with both types of claims.
Another recent addition to the Canadian court system is the sentencing circle. In some First Nations communities, these circles advise judges on appropriate punishments for native peoples who have been declared guilty under the law.
A final and increasingly prominent element of the broader court system in Canada is the administrative tribunal. These bodies can deal with controversial issues such as allegations of human rights violations (although their decisions are still subject to judicial review). Such tribunals have generated emotional debates among Canadians over the extent to which governments should intrude upon the right of individuals to speak their opinions freely.
Canada’s courts have come a long way since 1867. Today, just as they have for close to 150 years, they continue to change to meet new demands.
Further Reading: David E. Smith, The People’s House of Commons, Ian Green, The Courts.
