The Courts

Canadian government is based on the idea of the “Rule of Law” – the idea that the law applies equally to everyone, even to the government itself.  Under this model, the government is not able to interpret the laws it has passed as it sees fit.  If elected representatives (and appointed representatives in the case of the Senate) make the law, it falls to the judges, or the “judiciary”, to interpret it, and to make sure it is applied correctly.  Judges will decide:

·         disputes between two different parties;

·         whether a person is guilty or not guilty of breaking the law (and sentence them); and

·         whether the government is performing its duties as required under the law.

The Constitution Act, 1867 gives the provincial government the powers to create Courts for their respective provinces.  However, it gives the power to appoint the judges to most of those courts to the Federal Government.  The federal government also has a general power to create a general appeal court for all of Canada (the Supreme Court of Canada) and courts for the better administration of federal law. 

What with all this court-making activity, there are a number of different courts that hear matters arising from British Columbia:

·         Provincial Court of British Columbia – The judges of the Provincial Court, unlike other levels of court, are appointed by the Provincial Government.  They hear evidence and make decisions about minor criminal acts and, sitting as “Small Claims Court”, minor financial disputes (of $10,000 or less);

·         B.C. Supreme Court – The judges of the Supreme Court of British Columbia are appointed by the federal government.  Like the Provincial Court they are a generally a trial court, meaning they hear evidence for the first time and make decisions about it.  They consider more significant criminal and financial matters, as well as challenges to government decisions. 

·         B.C. Court of Appeal – The B.C. Court of Appeal is the highest court created by the B.C. Government, and hears appeals from the B.C. Supreme Court or the Provincial Court.  Unlike the Trial Courts, an “appellate court” is limited to considering whether the judge who heard the case in the first place made a mistake.

·         Federal Court of Canada – The Federal Government has set up a Court to hear disputes or challenges directly related to the federal government.  Many types of disputes can now be heard in either the Federal Court or the B.C. Courts, but challenges to federal government decisions must still be brought in the Federal Court.  The Federal Court includes a “trial division” and an “appeal division”, which hears appeals from the trial division. 

·         Supreme Court of Canada – The Supreme Court of Canada is the highest appeal court in Canada, hearing appeals from the Courts of Appeal of all provinces and the Federal Court of Appeal.  Nine judges sit on the Supreme Court of Canada, and it only hears cases which it considers to be significant to all of Canada. 

As you may have gathered from the above, there is a hierarchy involved between the courts.  Each appeal court will set interpretations and other law that is binding on the courts it hears appeals from.  In addition to having to follow the decisions of higher courts, the judges will generally try to follow decisions of other judges at their own level (although they can depart from these if there is a good reason to do so). 

Judges are generally appointed by the Executive of the Federal Government (the cabinet, with special input from the Minister of Justice).  However, these appointments are vetted by a committee of lawyers and judges and an arms-length Commissioner for Federal Judicial Affairs, which helps reduce the risk that appointments will be explicitly political. 

Both the Provincial and Federal statutes sometimes create bodies responsible for hearing different sides of an issue and making a ruling on a particular, often specialized, issue.   Although some of these statutory bodies may look like courts, they are known as “tribunals”.  An example of a tribunal would be the Environmental Appeal Board created in British Columbia by the Environment Management Act.

 

Using the Courts for Watershed Protection

Watershed advocates may have times when it seems like a good idea to head to court, whether it’s to sue a developer whose new subdivision has resulted in flooding of adjacent private lands (a dispute between private parties) or to challenge a government decision to allow waste to be dumped into a nearby stream (challenging government decisions).  In either case there are a few words of warning:

·         Court cases tend to be expensive – thousands of dollars to challenge a government decision and tens of thousands for a dispute between parties (unless brought without lawyers through small claims court).

·         If you lose you will probably be required to pay a certain amount towards the winner’s legal costs (usually about 50% of the winner’s actual legal expenses).  If you win, of course, the loser will pay part of your costs, but there’s still a major cost there.

·         Courts focus on legal rights, not environmental harm.  Environmental issues will often need to be framed in terms of the requirements of a statute or the damage to property suffered by a private individual.  It is much more difficult to get a court to focus on general harm to the public or future generations – a fact which is frustrating for some watershed advocates.

·         Courts tend to focus on process (for challenges of government decisions) or damages (for disputes between parties).  It is sometimes difficult to use the Courts to prevent environmental damage before it occurs. 

·         “Public interest litigants” – parties who do not claim a personal interest, but act on behalf of the public – were historically excluded from the Courts, and even now need to demonstrate that there is a special reason to hear their case. 

·         Court can take a lot of energy, and can divert energy away from the real environmental issues.  Conversely the right victory can often be effective in raising the profile of an issue, even if it does not block the environmental harm

This is not to say that taking to the courts cannot be effective.  Sometimes it is the only tool which will prevent destruction of an important environmental feature.  However, there are challenges involved, and litigation should not be commenced lightly.

For more information about the courts:

·         Department of Justice publications: “Canada’s System of Law” and “Canada’s Court System”

·         “A Compendium of Law and Judges” by Chief Justice Allan McEachern of the B.C. Supreme Court and others, discusses the organization of courts in British Columbia, the Charter of Rights and Freedoms and the Criminal Law system.

·         British Columbia Superior Courts website. 

·         “Stare Decisis and Techniques of Legal Reasoning and Legal Argument”, by Paul Perrell, looks at how judges reason and when and how they will follow the decisions of other judges.