The Rule of the Courts

M. Akram Faizer

While the U.S. has facilitated some degree of judicial independence by creating a federal court system as a third branch of government, the reality is that the conjunction of lifetime tenure in office with a political judicial selection process is increasingly dysfunctional. This is especially so because federal judges, who are often local celebrities in each of the 94 federal districts, tend to be very reluctant to retire at a typical retirement age and often, like Justices Scalia and Ginsburg, die at an advanced age in office. At the Supreme Court level, lifetime appointment means that justices wield more power than elected officials in leadership positions, calling into question the democratic legitimacy of the country’s constitutional system as practiced. With the passage of the Canada Act of 1982 and the resulting patriation of the Canadian constitution, the Canadian Supreme Court now has final authority over legal disputes between the Government of Canada and the ten provinces. 60 Unlike the complex dual federal and state court systems found in the U.S., whereby elected state court judges adjudicate the bulk of cases and the federal courts only adjudicate matters touching on federal law or the federal constitution, the Canadian court system follows a much more unified and singular structure that can be conceptualized as a single pyramid, with minor cases heard by provincial trial courts located in each province. 61 More serious civil cases begin in provincial superior trial courts located in each province, with appeals taken as of right to a single provincial court of appeal. 62 The Supreme Court of Canada is at the apex of this system and adjudicates appeals taken from the provincial courts of appeal and is therefore the final expositor of federal and provincial laws. 63 2. Judicial Selection in Canada 60 Mark C. Miller, A Comparison of Two Evolving Courts: The Canadian Supreme Court and the European Court of Justice, 5 U.S. Davis J. Int’l L. & Pol’y 27 (1999). 61 Mark C. Miller, A Comparison of Two Evolving Courts: The Canadian Supreme Court and the European Court of Justice, 5 U.S. Davis J. Int’l L. & Pol’y 27 (1999) citing PETER MCCORMICK, CANADA’S COURTS 23 (1994). 62 Mark C. Miller, supra note 60 at 35.

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