4 Canadian Courts
The Canadian court system has an origin story from the history of the court system of England, but they are not exactly the same. Perhaps a good place to start a discussion is with an overview of the system (click on the word courts below to see a graphic of the court system).
A good overview of the Canadian court system can be found on one of Canada’s judicial webpages (Government of Canada, n.d.). What follows below is a very quick non-legal summary of Canada’s court system that might be related to environmental matters (I’ve left the military courts out).
One of the key aspects of Canadian courts, well really any country’s courts, is that they remain independent of the political system.
Supreme Court of Canada
The Supreme Court of Canada is the last legal appeal court in Canada. It hears both civil and criminal cases. It is generally concerned over points of law rather than facts. Facts are generally established in the lower courts. The court was originally created by The Supreme Court Act in 1875. By that act, three of the nine justices are from Quebec (Supreme Court Act, 1985, s6). By tradition three justices are from Ontario, two are from Western Canada or Northern Canada and one is from the Maritimes.
The court will hear many cases relating to the constitution. One case of note with respect to climate change was the review of the federal Greenhouse Pollution Pricing Act, S.C. 2018,c.12, s. 816. The supreme court found the pricing act was within the federal authorities as provided by the constitution. This case was referred to the supreme court as a case of “as of right” (Supreme Court of Canada, n.d.). This “as of right” occurs when a provincial appeal court opinion is reviewed by the Supreme Court on request of the provincial or federal government.
Not all cases can go directly to the supreme court. A first step is required depending on the case, that essentially asks for approval for the supreme court to hear the case. This is called a “leave to appeal”.
Provincial / Territorial Court System
Generally the provincial or territorial court systems have three levels of courts. Using the provincial nomenclature they are as follows (Government of Canada, n.d.):
Provincial Appeal Court
This is the highest court in the provincial system. They can hear appeals from the lower courts (superior and provincial courts). There is also a process in the provincial appeal court that is also called “leave to appeal” Essentially this is the first step to show the appeal court there is a reasonable basis for appeal. If the court grants the leave, it does not mean the case has been decided, just that the court will hear the case.
Superior Court
The superior provincial courts hear trials of the most serious criminal and civil cases. Superior court judges are appointed and paid by the federal government, while administration of the superior court is left in the care of the province.
The names of the court change with province or territory (CSCJA, n.d.):
- Superior Court in Quebec
- Superior Court of Justice in Ontario
- Court of King’s Bench in Alberta, Manitoba, New Brunswick and Saskatchewan,
- Court of Justice in Nunavut
- Supreme Court in Yukon, NWT, Newfoundland, Nova Scotia, PEI, British Columbia
The author believes the later name is just plain confusing.
Provincial Court
This is the lowest court and may have several subsections of courts like small claims court, traffic court, and youth court. Much of the criminal matters in a province or territory are heard at the provincial court level. Also money and family matters are often tried here as well. Provincial judges are appointed by a provincial process.
In Quebec contract and property law is judged using the Quebec civil code (Civil Code of Québec, CQLR c CCQ-1991) while elsewhere in Canada common law is used.
Federal Courts
The federal court concept was created June 1, 1971 and is authorized by the Federal Courts Act, R.S.C., 1985, c. F-7. The federal court can sit anywhere in Canada and has multiple offices across the country. The judges will travel but by the act all must live in the capital region (Federal Court Act, 1985, s7(1)). They can hear any case involving laws that have been passed by Parliament and where the act states the federal court has jurisdiction. The federal courts have three components:
Federal Appeal Court
The Federal Appeal Court will hear appeals from either the Tax Court or the Federal Court. The court act states that at least five federal appeal court judges must be from Quebec (Federal Courts Act, 1985, s5.4)
Tax Court
Intuitively, the tax court hears tax cases. Although very important, environmental issues do not have a natural fit here.
Federal Court
The federal court hears trial matters that are federal in jurisdiction. So, a bank fraud case might be heard at the federal court as banks are under the federal authorities. Other cases they might hear include are “intellectual property, maritime law, federal–provincial disputes, and civil cases related to terrorism” (Justice Canada, n.d.) Other cases include citizenship and areas related to telecommunications or railways that travel interprovincially.
Tribunals
Tribunals have been established in many instances federally and provincially. These tribunals work on specific issues that have been authorized by an act. An example of a tribunal is the Alberta Land and Property Rights Tribunal, in Alberta. Generally they are described as quasi-judicial boards or tribunals. These boards or tribunals make decisions in cases brought before them.
Their decisions can be appealed through the court system. For federal tribunals, the federal court would be the first layer of appeal.
An example of a federal appeal was the appeal of the National Energy Board (NEB) decision on the Trans Mountain Pipeline. It was a long process to review the pipeline that resulted in an approval. then in a first appeal of the original decision, the court reversed the decision to an earlier part of the approval process. After further review a second decision was issued by the NEB to approve the pipeline, an appeal of the second decision was upheld by the federal court, and finally, the last appeal was a leave to appeal to the Supreme Court of the federal appeal court, which was denied. Yes, it was complicated. And expensive.
A provincial tribunal example may be found in the Alberta Energy Regulator (AER) who may establish a tribunal to approve a project for construction. The tribunal decision could be appealed to the provincial superior court, the Alberta Court of King’s Bench.
Conclusion
The court system is a tricky place to be. To navigate the court system sensibly it requires legal advice, so as in most of environmental science, prevention is the way to go. For compliance oriented work, the goal is to keep our employer out of the court
Court decisions can help us understand more details about the laws of the land and so sometimes we look closely at their decisions.
Learning Questions
- Syncrude had an incident at its operations where 31 great blue herons died from landing in a pond without deterrents. The company was charged with violating the federal Migratory Birds Act and also charged with violating the Alberta Environmental Protection and Enhancement Act. They plead guilty. Which Court do you think they appeared in? See if you can find a news report to confirm the court.
References
Canadian Superior Court Judges Association (CJCSA). (n.d.). Structure of the Courts. Retrieved from https://cscja.ca/
Federal Courts Act, R.S.C., 1985, c. F-7.
Government of Canada. (n.d.). The judicial structure. Accessed on June 2, 2022, https://www.justice.gc.ca/eng/csj-sjc/just/07.html#:~:text=Provincial%20and%20territorial%20courts,nine%20provinces%20and%20the%20territories.
Greenhouse Pollution Pricing Act, S.C. 2018,c.12, s. 816
Justice Canada. (n.d.). Home page. accessed on June 2, 2022 https://www.justice.gc.ca/eng/
Supreme Court Act, R.S.C., 1985, c. S-26
Supreme Court of Canada. (n.d.). Home page. accessed on June 2, 2022, from https://www.scc-csc.ca/court-cour/role-eng.aspx
