The Supreme Court of Canada came into existence more than a century after the first courts appeared in what is now Canada. Its role has evolved considerably since its creation in 1875, as it stands today as the final court of appeal in the Canadian judicial system, a status that it did not originally have.
Courts of law flourished in the eighteenth-century in present-day Quebec and Ontario, as well as in what are now the Maritime provinces. Judicial records from before 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 courts dating back to the French regime. The Constitutional Act, 1791, created the provinces of Upper and Lower Canada and established new courts for each province. Following this, 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 defined the basic elements of the country's current judicial system. Under it, the Governor in Council appoints all superior court judges across Canada, including judges of the Supreme Court of Canada. Once appointed, a judge serves "during good behaviour" and benefits from all aspects of the principle of judicial independence. A judge may sit until he or she attains 75 years of age. Judicial salaries are "fixed and provided by the Parliament of Canada". At the time of Confederation, decisions of provincial courts could be appealed directly to the Judicial Committee of the Privy Council in the United Kingdom.
The Constitution Act, 1867 provided that the new federal Parliament could create a "General Court of Appeal for Canada". A few years later, Parliament did just that when it created the Supreme Court of Canada. However, decisions of the new Supreme Court could still be appealed to the Judicial Committee of the Privy Council. The Judicial Committee's jurisdiction over the Court's decisions did not end until 1933, for criminal appeals, and 1949 for civil appeals.
The Supreme Court of Canada is Canada's final court of appeal. It serves Canadians by deciding legal issues of public importance, thereby contributing to the development of all branches of law applicable within Canada. The independence of the Court, the quality of its work and the esteem in which it is held both in Canada and abroad contribute significantly as foundations for a secure, strong and democratic country founded on the Rule of Law. In accordance with the Supreme Court Act, the Supreme Court of Canada consists of the Chief Justice and eight puisne judges. The Supreme Court of Canada is an important national institution that is positioned at the pinnacle of the judicial branch of Canada’s government.
The Canadian judicial system may be seen as constituting a pyramid, with a broad base formed by the provincial and territorial courts whose judges are appointed by the provincial and territorial governments. Judges at all the other levels are appointed by the federal government. At the second level, there are the provincial and territorial superior courts. Judgments from the superior courts may be appealed to the next level, being the provincial or territorial courts of appeal. As well, there are the federal courts: the Federal Court of Appeal, the Federal Court, the Tax Court of Canada and the Court Martial Appeal Court. Unlike the provincial superior courts, which exercise inherent jurisdiction, the jurisdiction of these courts is defined by statute and encompasses matters falling within the competence of the federal government. Finally, the Supreme Court of Canada sits at the top of the pyramid, being Canada's final court of appeal.
The Supreme Court of Canada hears appeals from the decisions of the highest courts of final resort of the provinces and territories, as well as from the Federal Court of Appeal and the Court Martial Appeal Court of Canada. Its jurisdiction is derived mainly from the Supreme Court Act, as well as from a few other Acts of Parliament, such as the Criminal Code. There are three procedures by which cases can come before the Court. First, in most cases, a party who wishes to appeal the decision of a lower court must obtain permission, or leave to appeal, from a panel of three judges of the Supreme Court. Second, there are cases, referred to as appeals "as of right", for which leave to appeal is not required. These include certain criminal cases and appeals from opinions pronounced by courts of appeal on matters referred to them by a provincial government. Third, the Court provides advisory opinions on questions referred to it by the Governor in Council.
The importance of the Court’s decisions for Canadian society is well recognized. The Court assures uniformity, consistency and correctness in the articulation, development and interpretation of legal principles throughout the Canadian judicial system.
Leave to Appeal
Most appeals are heard by the Court only if leave is first given. Leave to appeal is granted by the Court if the case involves a question of public importance or if it raises an important issue of law (or an issue of both law and fact) that warrants consideration by the Court. The Court’s decision whether to grant leave to appeal is based on its assessment of the public importance of the legal issues raised in the case in question. The Court thus has control over its docket and is able to supervise the growth and development of Canadian jurisprudence.
The majority of applications for leave to appeal are decided by the Court on the basis of written submissions filed by the parties. The Court considers an average of between 500 and 600 applications for leave to appeal each year. The Court generally does not give reasons for its decisions on applications for leave to appeal.
Appeals as of Right
There are a few instances where leave is not required. In some types of criminal cases, for example, an appeal may be brought as of right where one judge in the court of appeal has dissented on a point of law.
In addition to being Canada's court of final appeal, the Supreme Court performs a unique function. It can be asked by the Governor in Council to hear references, that is, to consider important questions of law such as the constitutionality or interpretation of federal or provincial legislation and to give its opinion on the question.
Constitutional questions may also be raised by the parties in appeals involving individual litigants or governments or government agencies. In such cases, the federal and provincial governments must be notified of the constitutional questions and can intervene to present arguments with respect to them.
Hearings of Appeals
An appeal is heard after the parties and any interveners have prepared and filed with the Court the required documents, including a record of evidence and documentation from the lower court files and factums stating the issues as well as the arguments to be presented. These documents are filed in both paper and electronic versions. Hearings of appeals are scheduled by the Registrar.
The Supreme Court holds three sessions a year and hears on average between 65 and 80 appeals a year. Each session lasts three months. The first session begins in January, the second begins in April and the third begins in October. In recent years, it has been the Court's practice to start each session on a Monday.
Although the Court sits only in Ottawa, litigants can present oral arguments from remote locations by means of a videoconference system. The Court's hearings are open to the public and most hearings are recorded for delayed telecast. When in session, the Court sits Monday to Friday. A quorum consists of five members, but most appeals are heard by panels of seven or nine judges.
On the bench, the Chief Justice, or in the Chief Justice’s absence the senior puisne judge, presides from the centre chair with the other judges seated to the presiding judge’s right and left by order of seniority of appointment. At sittings of the Court, the judges usually wear black silk robes. They also have ceremonial robes of bright scarlet trimmed with Canadian white mink, which they wear in Court on special occasions as well as in the Senate at the opening of each new session of Parliament.
Except by special leave of the Court, the only persons who may argue a case before the Court, apart from the litigants themselves, are lawyers from any Canadian province or territory. As a general rule, the Court allows two hours for the hearing of an appeal. Each side is given one hour to present its arguments. Interveners may also be given the opportunity to be heard. At the hearing of an appeal, the judges often question the lawyers.
Judgments of the Supreme Court of Canada
In some cases, the Court will render its decision orally at the conclusion of the hearing, but most of the time it reserves judgment to enable the judges to write considered reasons. Decisions of the Court need not be unanimous: a majority may decide, in which case the minority will give dissenting reasons. Each judge may write reasons in any case if he or she chooses to do so.
When a judgment is delivered in a case reserved for decision, the parties are given notice of it and the formal judgment is deposited with the Registrar together with all the written reasons and a headnote. Judgments are published simultaneously in both official languages in the Canada Supreme Court Reports.
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Law Maxims # Acta exteriora iudicant interiora secreta - Outward acts indicate the inward intent
# Boni judicis lites dirimere est - It is the duty of a good judge to prevent litigation
# Conventio et modus vincunt legem - A contract and agreement overcome the law
Damnum sine injuria - damage without legal injury.
Ex facie - On the fact of it.
Faciendum - Something which is to be done.
Injuria non excusat injuriam - A wrong does not excuse a wrong.
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