This article, written by Solomon Friedman, originally appeared in the Ottawa Citizen on February 8, 2013.
The courtroom is the natural home of the criminal lawyer. It can often be confusing, however, for justice system participants — be they accused persons, complainants or witnesses — to understand the distinct roles played by the different courts in our criminal system. Often, clients will have heard about the “superior court”; they are less familiar with the provincial court or the Court of Appeal.
In Canada, criminal offences are generally divided into two categories: summary conviction offences and indictable offences. Summary conviction matters (somewhat analogous to misdemeanours in the United States) are usually less serious; they carry lower maximum penalties and have a six-month limitation period for prosecution. Indictable offences (think “felonies” in American law) are the more serious offences; they carry higher minimum and maximum penalties and have no limitation period.
However, most offences in the Criminal Code are “hybrid offences”. That is, the Crown prosecutor can elect to proceed by either summary conviction or indictment. The Crown will assess a range of factors, including any aggravating or mitigating features in the case, the prior criminal record of the accused and the prevalence of that offence in the community.
In Ontario, two courts have jurisdiction over criminal matters and conduct criminal trials: the Ontario Court of Justice and the Superior Court of Justice.
The Ontario Court of Justice, or provincial court, is composed of provincially appointed judges and justices of the peace. Provincial court judges preside almost exclusively over criminal or provincial offences matters, although the court does have some limited jurisdiction over family court matters as well. Provincial court judges hear matters alone; there are no juries in the Ontario Court of Justice.
Justices of the peace are lay judicial officers. They may or may not have previous legal training or experience with the judicial system. Justices of the peace preside over bail hearings and trials of Provincial Offences Act matters. They are also responsible for signing search warrants and certain other judicial authorizations.
The Court of Justice is the largest and busiest court in the country. More than 95% of all criminal cases are heard by the judges of this court. In fact, the court annually hears about 590,000 criminal charges and millions of provincial offences and Highway Traffic Act matters.
The provincial court also uses numerous specialized courts, such as mental health court, drug treatment court, domestic violence court and Gladue (or aboriginal sentencing) court in fulfilling its mandate as an efficient, effective and just criminal court.
The Superior Court of Justice is a court of “inherent jurisdiction”. That means that, absent any statute granting jurisdiction to a particular specialized court (for example, the Federal Court or the Tax Court), it is the de facto forum for resolving legal disputes between private parties and individuals and the state. In addition to its docket of criminal cases, the superior court hears family and civil matters. It can also judicially review decisions of some administrative tribunals.
Superior Court judges are appointed by the federal government. They preside over trials both with and without a jury.
The classification of the criminal charge or the nature of the Crown’s election, will often determine the court in which the accused’s matter will be prosecuted.
Summary conviction offences can only be tried in the provincial court. However, for the vast majority of indictable matters, the accused has the choice (or “election”) of trial by provincial court judge or trial by Superior Court judge (with or without a jury).
Some extremely serious matters — such as murder and treason — are in the exclusive jurisdiction of the superior court. For these offences, the accused has no election. The matter will be tried, almost always with a jury, by a judge of the Superior Court of Justice. Similarly, the least serious indictable matters are within the “absolute jurisdiction” of the provincial court.
The trial court does not always have the last say on a criminal matter. Under the Criminal Code, both the accused and the Crown have limited rights to appeal the trial outcome.
In addition to its function as a trial court, the superior court also serves as a criminal appellate court, hearing appeals from conviction and sentencing of summary conviction matters. For appeals arising from indictable matters — whether tried in provincial or superior court — an appeal must be taken to the Ontario Court of Appeal.
The Court of Appeal sits in Toronto and, like the Superior Court of Justice, it is composed of federally appointed judges. The Court of Appeal hears both civil and criminal appeals. Its 22 judges hear about 1600 cases per year and is usually the final court of appeal. The highest court in the land, the Supreme Court of Canada hears appeals of fewer than three per cent of the decisions of the Ontario Court of Appeal.
While there is no doubt much work to be done in improving the justice system and making the criminal law more fundamentally just, Canadians should take great pride in our open, transparent and independent judiciary, at all levels of court in Ontario and across the country.