IV.

How Cases Come Before the Court

The Canadian legal system is complex. Each of Canada’s ten provinces and three territories has its own system of civil and criminal courts. Canada also has specialized federal courts that rule on cases involving a variety of national issues, such as administrative law, taxation law, and immigration law. Canada’s provincial, territorial, and federal legal systems have two levels of courts: trial courts, where cases are litigated for the first time before a single judge, and courts of appeal, where the losing party in a trial can request a panel of judges to reconsider a case. Cases are rarely tried before a jury in Canada, and most cases never go beyond the trial level.

As a result of this complex system, the approximately 150 cases heard by the Supreme Court each year reach the Court by one of three routes. First, a party who loses a civil or criminal case at a court of appeal can request to have the Supreme Court hear the case. This request, called leave to appeal, is considered by a panel of at least three Supreme Court justices. These justices either grant or deny the request. If all justices decide unanimously, the matter of granting or denying the request is resolved. However, if one of the justices disagrees with the others, the case is referred to a panel of all nine justices. The panel then decides, by majority if necessary, whether the leave to appeal will be granted and the case heard by the Court.

The Court has no specified criteria by which it determines whether to grant leave, and the Court does not give reasons for its decision. The key factor appears to be a case’s degree of national importance. Other factors might include the impact of uncertainty in the challenged law, the case’s appropriateness for developing the law to respond to changing social needs, and the presence of a split decision at the court of appeal level. The court typically rejects more than 80 percent of the 600 leave to appeal applications it receives each year. Such applications make up the majority of the cases heard by the Court. In very rare circumstances a court of appeal can also grant leave to appeal without the approval of the Supreme Court, if there is a question of law.

The second method by which a case can come to the Supreme Court is called an as-of-right appeal. These cases are referred to the Supreme Court without prior review or approval by its justices. In a criminal case, if one of the three judges presiding at a court of appeal dissents from the majority ruling because of a question of law, the accused has an automatic right of appeal to the Supreme Court. This option is normally exercised by the accused in approximately 50 cases per year.

Third, the Supreme Court also considers reference cases brought by federal or provincial governments. Governments usually bring a reference case to the Supreme Court when it is unclear whether a proposed law is constitutionally valid. Such cases allow the government to test the constitutionality of a law before enacting it, a process not available in the U. S. legal system. The Court considers the reference case and issues an advisory opinion on the validity of the law. The wording of the Supreme Court Act seems to say that the Court is obligated to answer any reference question brought before it. However, the Court has occasionally indicated that it has the discretion to refuse to provide an answer. For example, they may refuse to answer if the question is too vague.

Reference cases are uncommon and usually concern vitally important national issues. For example, in 1998 the federal government requested that the Court examine the issue of whether the province of Québec could unilaterally secede from Canada. The issue arose because of a 1995 Québec referendum in which 49.4 percent of the population voted for secession. Supporters of secession claimed that a simple majority vote of the Québec population in favor of such a referendum would be sufficient for the province to secede from Canada. The federal government sought clarification of the matter via a Supreme Court reference case, although the government of Québec refused to participate in the process.

The Court unanimously held that Québec had no legal right to secede unilaterally. However, the Court also found that if a clear question was asked in a referendum and a clear majority of Québec voters sided in favor of secession, then the rest of Canada would be obligated to negotiate in good faith with Québec. This carefully crafted but open-ended decision led both the federal and Québec governments to claim that the Supreme Court had supported their positions on secession.