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Alexander Racini & Associates Canada International Law Firm

Alexander Racini & Associates Canada International Law Firm
The largest International Firm Worldwide

Wednesday, February 6, 2013

Supreme Court of Canada

Posted by Los Hechos y el Derecho TV On 9:01 AM No comments



Supreme Court of Canada




Role of the Court

The Court's Jurisdiction

The Supreme Court of Canada is Canada's final court of appeal, the last judicial resort for all litigants, whether individuals or governments. Its jurisdiction embraces both the civil law of the province of Quebec and the common law of the other provinces and territories.

The Supreme Court of Canada stands at the apex of the Canadian judicial system. The Canadian courts may be seen as a pyramid, with a broad base formed by the provincial and territorial courts whose judges are appointed by the provincial and territorial governments. At the next level, there are the provinces' and territories' superior courts whose judges are appointed by the federal government. Judgments from the superior courts may be appealed to the next level, the provincial or territorial courts of appeal. As well, there are 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 granted by statute and encompasses matters falling within the competence of the federal government.

The Supreme Court of Canada hears appeals from the court of last resort, usually a provincial or territorial court of appeal or the Federal Court of Appeal. The Court decides cases that come to it from three sources. First, in most cases, a party who wishes to appeal the decision of another court (usually a provincial or territorial court of appeal or the Federal Court of Appeal) must obtain permission from a panel of three judges of the Court. Such permission, or leave to appeal, is given if the panel concludes that the case involves a question of public importance or raises an important issue of law. Second, there are cases, referred to as “as of right” appeals, for which leave to appeal is not required. These include certain serious criminal cases, for example, those where there is a dissent on a point of law in the court of appeal, and appeals from provincial references. The third group is references from the federal government. Federal references require the Court to give an opinion on the questions referred to it by the Governor in Council.
Leave to Appeal

Most appeals are heard by the Court only if leave is first given. Leave to appeal is given by the Court if, in the opinion of the panel, the case involves a question of public importance or if it raises an important issue of law (or a combination of law and fact) that warrants consideration by the Court. The Court grants leave to appeal based on its assessment of the public importance of the legal issues raised in a given case. 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 determined by the Court on the basis of written submissions filed by the parties. The Court considers over 500 applications for leave to appeal each year. By tradition, reasons for decision are not given when the Court announces its decision on an application for leave to appeal.


Appeals as of Right

There are instances where leave is not required. In criminal cases, for example, an appeal may be brought as of right where one judge in the court of appeal dissents on a point of law.

References

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. The Court is not often called upon to hear references, but its opinions on the questions referred to it by the government can be of great importance.

Constitutional questions may also be raised by the parties in regular 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 may intervene to argue them.
Hearings of Appeals

An appeal is heard once 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 paper and in electronic versions. A date is chosen and the hearing of the appeal is scheduled by the Registrar.

The Supreme Court holds three sessions a year during which it hears some 80 appeals. Each session lasts three months. The first session begins on the fourth Tuesday in January, the second begins on the fourth Tuesday in April and the third begins on the first Tuesday in October. The statutory opening dates may be varied if the prescribed notice is given. In recent years, it has been the Court's practice to start each session on a Monday.

The Court sits only in Ottawa, although litigants can present oral arguments from remote locations by means of a video-conference system. The Court’s hearings are open to the public, and most hearings are recorded for delayed telecast in both official languages. When in session, the Court sits Monday to Friday. While a quorum consists of five members, most appeals are heard by a panel of seven or nine judges.

On the bench, the Chief Justice, or, in her absence, the senior puisne judge, presides from the centre chair with the other judges seated to her right and left by order of seniority of appointment. At sittings of the Court, the judges usually appear in black silk robes, but they wear ceremonial robes of bright scarlet trimmed with Canadian white mink in Court on special occasions and 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 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 be given the opportunity to be heard. During the argument of the appeal, the judges often question the lawyers.


Judgments of the Supreme Court of Canada


The decision of the Court is sometimes rendered at the conclusion of the hearing, but more often, judgment is reserved to enable the judges to write considered reasons. Decisions of the Court need not be unanimous; a majority may decide, with dissenting reasons given by the minority. 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 thereof and the formal judgment is deposited with the Registrar together with all the written opinions and a headnote. Judgments, in both official languages, are published in the Canada Supreme Court Reports.

Official Information from The Supreme Court of Canada Site.




PNL Alexander Racini