The most important of these courts created by Ottawa is the Supreme Court of
Canada (created in 1875), which is Canada’s highest appeal court.
An important point is that even though Canada is a federal state, the court structure is
As already noted, the two levels of government co-operate to manage the superior
The court of appeal judges in every province are appointed by Ottawa, not the
Ottawa writes the criminal law, but it’s the provincial governments which enforce
the criminal law and prosecute federal crimes.
Provincial courts hear cases involving federal laws as well as provincial laws.
The Supreme Court of Canada hears appeals arising under federal, provincial and
territorial laws. Its decisions are binding on all governments and courts in Canada.
So it is a truly national court, not just a federal court.
Since the 1970s, a large majority of Supreme Court justices have been appointed
from a provincial court of appeal or the Federal Court.
In other words they were already serving as a judge, and the appointment to the
Supreme Court is a promotion for them.
This statistic demonstrates that all governments value experience when
appointing justices to our top court.
The first exception: provincial governments are authorized to impose a
“reasonable” residency requirement before a person can access social services.
The second exception: provinces with high unemployment rates are allowed to
introduce job-creation programs favouring their own provincial residents over
Police officers know that if they search your home without a warrant, or interrogate
you without giving you a chance to call a lawyer, any evidence or a confession they
obtain might be thrown out by the judge as inadmissible.
Equality rights. Every individual is equal under the law and has the right to the equal
protection of the law without discrimination based on race, national or ethnic origin,
colour, religion, sex, age, or mental or physical disability Section 33, the “Over-Ride” Clause
This section allows the federal and provincial governments to pass laws expressly
over-riding or negating Charter rights, if they believe this is in the public interest.
But they can do so only under the following conditions:
First, the over-ride does not apply to the entire Charter.
Second, governments that wish to invoke s. 33 to protect their programs from a
Charter challenge cannot simply do this by executive order.
And third, such a law over-riding Charter rights can only be in effect for five
In 1986, the provincial Conservative government in Saskatchewan legislature
introduced back-to-work legislation to end a strike by public service employees.
The ultimate check on governments considering whether to use s. 33 is public
Bill 101, the language law introduced by the separatist PQ government after it
was elected in 1976, declared that only French could be used on all outdoor signs,
posters and commercial advertising.
When the Liberal government in Quebec used s. 33 to protect Bill 101, and a
Conservative government in Saskatchewan used s. 33 to protect an anti-union law,
they knew these moves would be popular with their voters.
Impact of the Charter
A major area of Charter activity is criminal law, where the Court is rebalancing the
rights of accused against the power of the police
The Charter can be used to protect or empower minorities and vulnerable segments of
Canadian society including women, refugees, Jews, gays/lesbians, and drug addicts
Charter decisions can force elected governments to reallocate government spending
The Charter enables the courts to intervene in controversial morality issues, where
there is no “right” answer, such as religious observance, abortion, pornography,
marriage, suicide, minority lifestyles, and the balance between national security v
The Charter enables the courts to intervene in the management of the economy, such
as whether businesses can open on Sunday, the ability