The Court System

AuthorMark Bourrie
chapter three
he Court System
Our courts operate on a very similar model to courts in other common
law countries, such as Great Britain, the United States, Australia, New
Zealand, and many other countries in the former British Empire. ey
have judges who are expected to be fair and impartial, counsel repre-
senting the parties involved, and, in some major cases, juries.
Most judges in Canada are appointed by the federal government, specif-
ically by the prime minister, usually acting on the advice of the minister
of justice. e appointment is ocially made by the Governor General.
Justices of the peace and provincial court judges are appointed by prov-
incial governments, and some justices of the peace are not lawyers.1
Canadian judges must be licensed lawyers, but they need not be lawyers
who practice in courtrooms. Law professors, for example, are eligible
for appointment if they are licensed by a provincial bar association.
Superior Court judges, Federal Court justices, and Supreme Court
of Canada justices must be members of a provincial bar (i.e., licensed
lawyers) for at least ten years before they are appointed. Lawyers
1 In 2018, an Ottawa Citizen reporter was appointed to the position of justice of the
coming from private practice must immediately wind up their business
aairs — usually partners in their rm take over the work and may
not hear cases in which they may have a conict of interest.
Small claims court judges in some provinces, such as Ontario, are
an interesting, special case. Some are retired lawyers. Others are senior
lawyers who still practice law and are required to recuse themselves in
situations where they may have a conict.
Some tribunals, such as the Ontario Review Board, which decides
on the level of security required by psychiatric patients who have been
found to be not criminally responsible for an oence because of a men-
tal disorder, require at least one member to be a Federal Court judge.
Because of a lack of interested candidates, lawyers who qualify for
appointment to a superior court have been chosen for these positions.
Masters are respected senior members of the bar who are appointed
to hear motions but do not preside over trials. Some choose to be mas-
ters for decades, becoming valuable experts on sometimes arcane areas
of law and procedure. Others are eventually promoted to the bench.
In the past century, the appointment process has been reformed,
though the selection system still has critics. Lawyers can now apply to
be considered for a judicial appointment, rather than rely on colleagues
and political connections. e federal justice department has sta who
vet candidates and pass their recommendations on to the minister of
justice. Canada’s judiciary is not as politicized as that of the United
States, where judges are elected or benet from patronage appoint-
ments, though, of course, individual Canadian judges have political
views and ideologies, and were sometimes politically active in the past.
In Canada, a judge’s independence is protected by constitutional
principles that have been entrenched in several major court cases. For
example, the Supreme Court of Canada has ruled a government may
not cut the salaries of judges, and the pay of judges must be set by a body
that is arm’s length from governments. Judges serve until they resign,
reach mandatory retirement (the age diers between courts and is set
in statute), or are removed. Federally appointed judges can only be
removed by an Act of Parliament, on the advice of the Canadian Judi-
cial Council. In the case of provincially appointed judges, the provin-
cial judicial councils make recommendations to provincial legislatures.
Usually, a judge whose removal is recommended by a judicial council

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