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ARCHIVED The Canadian Legal System and the Judiciary

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Presentation by
The Honourable John D. Richard
Chief Justice of the Federal Court of Appeal
Ottawa, Ontario
To the "Teachers Institute on Canadian Parliamentary Democracy"
Tuesday, November 1, 2005 at 9:45 AM - Room 200, West Block of Parliament

"It is the supreme art of the teacher to awaken joy in creative expression and knowledge."

- Albert Einstein

Opening Remarks

As teachers, you have an enormous influence in shaping the lives of our youth who are the future of Canada and the world. Students look to you for guidance, perspective and knowledge.

You have a crucial role in teaching your students about the rich history of our country, and about the interplay of the cultural, political and judicial institutions which are fundamental to our democracy and which guide and protect us.

I am pleased to have the opportunity to speak to you on one of Canada's fundamental institutions of governance, the judiciary.

History Of Canada's Legal System

By reason of its history, Canada inherited two systems of law, the common law, from the British, and the civil law, from the French.

Common Law

British common law has evolved from decisions of English courts going back to the Norman Conquest in 1066.

Today, the common law is applied in most countries settled or ruled by the British and is applied in all Canadian provinces, except Québec.

After the conquest, the British guaranteed the continuation of civil law by the Québec Act, 1774. The Constitutional Act, 1791, divided the province of Québec into Upper and Lower Canada. Lower Canada, now Québec, retained civil law while Upper Canada, now Ontario, adopted the common law.

Inspired by the 1804 Code Napoléon, the Civil Code of Lower Canada was enacted in 1866. The Québec Civil Code was fully revised in 2003.

The Federal System

Canada is a federation with a parliamentary system of government and was established by an act of the United Kingdom Parliament.

The Constitution Act, 1867, formerly called the British North America Act, provided for a constitution similar, in principle, to that of the United Kingdom but divided the legislative power between the federal and provincial levels of government.

As in the United Kingdom, there are three branches of government: (1) the executive, (2) the legislative, and (3) the judicial.

The executive power is vested in the Queen but is exercised only on advice of the Cabinet, composed of the Prime Minister and his Ministers, who are themselves accountable to an elected Parliament.

The legislative branch of government is Parliament. It is composed of an elected House of Commons, and an appointed Senate.

The third branch of governance, the judiciary, is comprised of federally and provincially appointed judges whose role is to interpret and apply the law and the Constitution, and to provide impartial adjudication of disputes between individuals; between the state and the individual; and, between different levels of government within the state.

The Constitution and the Courts

The organization of Canada's judicial system is a function of Canada's constitution, and particularly of the Constitution Act, 1867.

The administration of justice in Canada is a responsibility of both the federal government and the provincial governments.

Section 101 of the Act provides that the Parliament of Canada may "provide for the Constitution, Maintenance and Organization of a General Court of Appeal for Canada and for the Establishment of any other Courts for the better Administration of the Laws of Canada".

The Federal government has invoked this provision to create the Supreme Court of Canada as well as the Federal Court of Appeal, the Federal Court and the Tax Court of Canada and to appoint judges to these courts.

Authority over the superior courts in each province is shared between the provincial and federal government; the provinces have jurisdiction over the constitution, organization and maintenance of these courts, while the federal government has authority to appoint their judges.

The Organisation Of Canadian Courts

By now, you may be asking yourself how Canada's court system is structured and how the Federal Court of Appeal, which I preside, fits into the hierarchy of the courts and relates to the Supreme Court of Canada.

Canada's court system has a four-tiered structure and is comprised of courts having various jurisdictions.

As you know, the Supreme Court of Canada is our country's highest court and is a national "General Court of Appeal for Canada". It is the final level of appeal.

The next tier down from the Supreme Court of Canada is comprised of various appellate courts, including the Federal Court of Appeal, the provincial courts of appeal and the Court Martial Appeal Court.

The next tier is comprised of the trial or first instance courts including, the Federal Court, the Tax Court of Canada and the provincial and territorial superior courts of general jurisdiction.

Finally, there are the provincial courts, which are generally divided within each province into various divisions, defined by the subject matter of the cases they were created to hear or by their specific jurisdiction, such as a Small Claims Division, a Family Division and a Criminal Division.

Our system also includes administrative tribunals who exercise various functions, some purely administrative and others of a quasi-judicial nature.

Organizational Chart

(Source: Department of Justice Canada, http://canada.justice.gc.ca/eng/csj-sjc/just/img/courten.pdf)

History And Jurisdictions Of The Federal Court Of Appeal

Let me give you a brief history of the Federal Court and of the Federal Court of Appeal, which I preside.

They have a long history. Since 2003, they are the successors of the appeal and trial divisions of the Federal Court of Canada, which in 1971 succeeded the Exchequer Court of Canada which itself was created in 1875, the same year the Supreme Court of Canada was created.

The principal areas of jurisdiction of the Federal Court, which is presided by Chief Justice Allan Lutfy, are federal Crown litigation, judicial review of federal administrative tribunals, maritime litigation, intellectual property and other matters such as aeronautics, or provisions in other statutes that confer jurisdiction. It is composed of 30 full-time judges who sit alone.

The Federal Court of Appeal, which I preside, has jurisdiction to hear appeals from judgements and orders, whether final or interlocutory, of the Federal Court and of the Tax Court of Canada. It may review decisions of fourteen federal tribunals listed in section 28 of the Federal Courts Act and may also hear appeals under other acts of Parliament. It is composed of 11 full-time judges and always sits in panels of at least 3 judges.

The Federal Court of Appeal, as well as the Federal Court, is a bilingual court, offering its services in both of the official languages of Canada, and is a bi-jural court, administrating the two legal systems - common law and civil law. Both courts are itinerant, in the sense that they sit and transact business at any place in Canada, to suit, as close in proximity as may be, the convenience of the parties. It is the objective of both Courts to secure the just, most expeditious and least expensive determination of every proceeding based on its merits.

The Role Of The Judiciary

At its most basic, the role of the courts is to resolve legal disputes that citizens and the government bring before them and ask them to decide. Interpreting and applying the law to particular situations and circumstances is a unique task of the courts.

Courts exercise many functions which are necessary in maintaining our democracy.

Apart from resolving civil disputes and determining criminal responsibility, the Courts must define and interpret the division of legislative powers between the federal and provincial governments which are described in sections 91 and 92 of the Constitution Act, 1867.

They must also determine whether constitutionally protected rights and freedoms under the Canadian Charter of Rights and Freedoms have been infringed, and if so, what remedy is appropriate, and they are also called upon to review the decisions of administrative tribunals created by Parliament and the Legislatures.

The proliferation of legislation and regulations in Canada as well as the adoption of the Canadian Charter of Rights and Freedoms have increased the workload and have impacted on the role and responsibilities of the judiciary. These developments have also increased the visibility of its decisions. Gone are the days when the decisions of courts would only interest the parties to the litigation.

Judicial Independence

In order for a constitution to hold real meaning in the lives of its citizens, an independent judiciary, capable of interpreting and enforcing the Constitution free of political interference from those in power, is crucial.

An independent and impartial judiciary is the constitutional right of all Canadians, and the primary beneficiary of judicial independence is not the judiciary itself, but rather society as a whole.

The reality is that the rule of law cannot endure over time, if it can exist at all, unless the judges who are responsible for interpreting and applying the law and the Constitution are guaranteed their independence.

The three core characteristics of judicial independence are (1) security of tenure, (2) financial security and (3) administrative independence.

Impact Of The Canadian Charter Of Rights And Freedoms

I would like to address the impact of the Canadian Charter of Rights and Freedoms on the judicial role.

The Canadian Charter of Rights and Freedoms is one part of the Canadian Constitution.

The Charter differs from earlier Canadian law protecting rights, such as the Canadian Bill of Rights, enacted in 1960, by being part of the Constitution.

In developing the Charter, Parliament was influenced by other documents such as the United Nations Universal Declaration of Human Rights, the European Convention on Human Rights and the United States Bill of Rights. Parliament did not copy these legislative instruments, but rather "canadianized" certain aspects of each one.

It is useful to remember that the judiciary did not enact the Charter. It was enacted by a democratically elected Parliament and enshrined in Canada's constitution.

Clearly, however, the arrival of the Charter created a new role for Canadian judges. With a few exceptions, the Charter requires that all exercises of state power must comply with the Charter's guarantees of civil rights and freedoms.

It is the Charter that endowed the judiciary with the duty and power to protect the constitutional rights and freedoms of Canadians against the state.

Section 52 of the Constitution Act, 1982 provides that the Constitution of Canada, which includes the Charter, is the supreme law of Canada. Any law which is inconsistent with the Constitution is of no force or effect. As a result, the courts have the power to strike down laws that violate the Charter.

Where a Charter breach is alleged, it is for the government to establish, to the satisfaction of the courts, three things under Section 1 of the Charter: (1) that the legislation it enacted is a reasonable limit to the protected rights and freedoms (2) that the limit is prescribed by law and (3) that such limit can be demonstratively justified in a free and democratic society.

Subsection 24(1) of the Charter, guarantees that "anyone whose rights and freedoms, as guaranteed by the Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances and Subsection 24(2) directs the courts to exclude evidence that was improperly obtained if its admission in a proceeding would bring the administration of justice into disrepute.

This allows the courts to grant whatever remedy is appropriate under the circumstances.

There is, however, a notwithstanding mechanism in section 33 of the Charter the allows Parliament or a legislature to enact legislation that overrides the rights set out in section 2 or sections 7 to15 of the Charter for a five year period. Parliament has not invoked the provision to date.

Since the advent of the Charter, Parliament must always attempt to draft laws in light of the provisions of the Charter.

Judicial Accountability

Judicial independence also carries with it a feature of accountability.

The Canadian Judicial Council, the body responsible for promoting efficiency and responsibility of federally appointed judges and composed of all federally appointed Chief Justices, has adopted and published ethical standards to which judges aspire.

When a complaint is made concerning the conduct rather than the decision of a judge, it is investigated by the Judicial Conduct Committee of the Council.

The Council sets few rules about the process of making a complaint. It will commence an investigation if a complaint is made in writing, if it names a specific judge and if it relates to the judge's conduct. It is not necessary for complainants to be represented by a lawyer.

There are 1,100 federally appointed judges in Canada and the Council normally receives no more than 150 complaints in a year. Let me conclude by dealing with some contemporary issues. The first is the claim of judicial activism.

Judicial Activism

Judges are human beings and have, inevitably, been influenced through their own life experiences. However, all judges must strive to work with utmost impartiality and must only decide cases on their facts after having examined the submissions of all the parties.

As stated by Chief Justice Beverley McLachlin of the Supreme Court of Canada, in a recent address "Judges must not set agendas for social change or impose their personal views on society. The role of judges is to support the rule of law, not the rule of judicial whim."

According to Chief Justice McLachlin, the idea that judges have a political agenda may come from the fact that judges must make decisions that have political implications.

Since legal, political and social issues are intertwined, the role of judges necessarily takes them into subject matter claimed by politicians. But it does not follow that the judges are acting as politicians; the judicial role remains separate from the political.

The politician's role is to raise questions and to provoke public discussion, questioning and debate, while the judge's role is to apply the law to the particular facts of a case, while considering all sides of the issue and the submissions by the parties.

When faced with a legal issue, the court must intervene and rule on the issue in accordance with the law.

The next contemporary issue is accessibility to the justice system.

Accessibility To The Justice System

At the recent opening of the courts in Montreal, the participants, including Chief Justice Robert, the head of the Québec Bar and the provincial Minister of Justice, stressed the importance of promoting accessibility to the justice system since it goes to the very integrity of the judiciary. It matters not to have the best and fairest judiciary in the world if the access is limited to a very few.

In a thought-provoking speech delivered last month to the legal community in Toronto, at a conference on legal aid, retired Supreme Court Justice L'Heureux-Dubé noted that "legal services, like health care, should be free in an ideal society" in order that all may "seek justice before the courts or other forums, whatever the state of their financial resources."

Access to justice must be an integral part of our justice system and must be promoted by all right-thinking members of our community.

Balancing Civil Rights And National Security

Another emerging issue is the balancing of civil rights and national security.

A very present challenge in the justice system is maintaining equilibrium between the constraints associated with security-related legislation and protecting the rights and freedoms of Canadians, as guaranteed by the Charter.


A closely connected emerging issue is the protection of privacy and of personal information.

Both the government and the private sector are having an important impact on individuals' ability to make determinations in respect to their personal information.

Although records have been kept about people for hundreds of years, the shift in the storage medium from paper to electronic form is raising new concerns and challenges with regard to the practices of collecting, aggregating and distributing information.

Available Educational Ressources: Outreach

Finally, I would like to note that many efforts are being made by judges to reach out to students and to the public.

We welcome the opportunity to speak to students and to civic groups. We have developed useful educational resources which you may choose to use in your classrooms.

Two examples of such resources are the Québec government's "Éducaloi" website and the "Try Judging" interactive materials, which were developed by the Canadian Superior Court Judges Association, Public Education Committee.

In addition to providing general information on the justice system, in both official languages, the "Éducaloi" website (http://www.educaloi.qc.ca/en/) contains information directories, public forums and questions and answers on rights and responsibilities.

The "Try Judging" website (http://www.tryjudging.ca/), on the other hand, contains numerous resources for teachers and students aimed at encouraging students to gain a better understanding of the role of the judiciary. It offers students an opportunity to be a "virtual judge" online as they apply their knowledge and appreciation of the Canadian justice system to interactive learning games.

Closing Remarks

I hope I have succeeded in shedding some light on the role of the judiciary and on the organization of the Canadian court system and that this will be of assistance to you in your career as teachers of our youth.