D. The System of Courts and Jurisdiction in Charter Cases

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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As noted above, the general rule is that Charter issues are resolved in the ordinary course of litigation. The Supreme Court of Canada has rejected the proposition that the Charter itself confers jurisdiction to decide cases under either section 24(1) of the Charter, which contemplates courts awarding appropriate and just remedies, or section 52(1) of the Constitution Act, 1982, which provides that laws inconsistent with the Charter are of no force and effect. Accordingly, authority to decide a Charter issue turns on the pre-1982 court structure. In order to award a remedy under section 24(1) of the Charter, the court or administrative tribunal must have jurisdiction independent of the Charter over the parties, the subject matter, and the remedy.34In order to apply the Charter, an administrative body must generally have the power to decide questions of law. More recently, the Court presumes that tribunals have Charter jurisdiction, but the presumption can still by rebutted by clear legislation.35

1) Administrative Tribunals

At both the federal and provincial levels, there are a significant number of specialized boards and tribunals with adjudicative powers. These boards and tribunals play a vital role in resolving disputes that arise as to the administration of a wide variety of legislative schemes that advance governmental policies. The Supreme Court has taken a generous approach to the ability of these administrative boards and tribunals to

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apply the Charter. A board or tribunal with the explicit or implicit authority to decide questions of law has the authority to apply the Charter in its decisions and to decide whether its enabling legislation is consistent with the Charter.36In R v Conway,37the Supreme Court held that if a specialized tribunal has the power to decide questions of law, the tribunal will also have jurisdiction to decide Charter issues and to grant Charter remedies arising in the course of carrying out its statutory mandate unless Charter jurisdiction is excluded by statute. The authority of an administrative tribunal to make a binding declaration of invalidity will be limited by the scope of the tribunal’s authority to decide questions of law.

The decisions of administrative tribunals are ordinarily subject to review by the superior courts, either by way of a statutory appeal or by judicial review. Charter decisions made by administrative bodies are reviewed by the superior courts on a correctness standard.38

2) Provincial Courts

Each of the ten provinces has its own judicial system with trial courts and a Court of Appeal. At the trial level, provincial courts deal with minor criminal offences and also have jurisdiction over more serious offences with the consent of the accused. In addition, provincial courts deal with small civil claims and some family matters. The judges of these courts are appointed by the provincial governments. As many Charter issues arise in criminal cases, the provincial courts are often the court of first instance for a Charter challenge. However, because these courts are statutory and exercise only the jurisdiction that is specifically assigned to them, there are limits upon their authority to resolve Charter issues. For example, provincial court judges hearing preliminary inquiries, as opposed to trials, do not have jurisdiction to exclude unconstitutionally obtained evidence.39Provincial court judges in criminal courts also do not have jurisdiction to award damages as a section 24(1) Charter remedy, but they have been held to have jurisdiction to award costs as such a remedy.40

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3) Superior Courts

The superior courts of each province exercise general and "inherent," or residual, jurisdiction over civil and criminal matters and play a special and constitutionally guaranteed role under the Canadian constitution. The judges of these courts are appointed by the federal government. Superior courts also possess the authority of judicial review with respect to administrative agencies and have some appellate jurisdiction over the provincial courts. The provincial superior courts have authority to apply both federal and provincial laws. They have "constant, complete and concurrent jurisdiction"41to hear requests for Charter remedies under section 24(1) of the Charter, as well as to hear challenges to the constitutional validity of all laws. Thus, it follows that the provincial superior courts have the broadest possible authority to decide Charter issues in the first instance.

4) Federal Court

The Federal Court of Canada has specific jurisdiction over certain matters that fall within federal legislative competence as enumerated by the division of powers. Yet it does not have inherent jurisdiction and there are strict limits on its jurisdiction.42The Federal Court has authority over federal administrative law as well as certain special subjects such as admiralty, intellectual property, and suits against the federal government. Given its jurisdiction over federal administrative law and suits against the federal government, many Charter issues are decided by the Federal Court. However, the provincial superior courts also have full jurisdiction with respect to the constitutionality of federal laws, including declaratory suits brought against the federal Crown.43Hence, the provincial superior courts retain a much broader jurisdiction than the Federal Court and play a more important role in the adjudication of Charter issues.

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5) The Supreme Court of Canada

Appeals from judgments from the provincial courts and the provincial superior courts are taken to the provincial Court of Appeal, and from there to the Supreme Court of Canada. Appeals from the Federal Court, Trial Division, are taken to the Federal Court of Appeal, and then to the Supreme Court of Canada.

The Supreme Court of Canada, sitting at the top of the judicial hierarchy, is Canada’s most important court. The common law doctrine of precedent or stare decisis makes its decisions binding upon all other courts. Accordingly, the Supreme Court exercises a considerable law-making role both in constitutional and in non-constitutional matters. The Supreme Court is seen, not only by lawyers and judges but also by the public at large, as one of our most important national institutions.

The high public profile of the Supreme Court is, however, a relatively recent phenomenon. The Court is not mentioned in the original 1867 constitution; indeed, despite an obscure and confusing reference to the Court in the amending formula enacted in 1982,44the Court lacks formal status in the written constitution to this day. The Court was created by an Act of Parliament in...

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