1. INTRODUCTION
The previous posting of 4 January 2008 dealt with restricting the Supreme Court of Canada to deciding constitutional issues raised in provincial appellate courts.This posting discusses the rearrangement of provincial appellate courts. It will preserve the present theoretical right of every appellant to have two possible appeals. At the same time, the new arrangement will concentrate more on developing the law to better meet the needs of the citizens in each province.
2. INTERMEDIATE PROVINCIAL APPELLATE COURTS
These courts exist in most U.S. large states. For example, there are three Divisions of Intermediate Appellate courts in Washington State. Together they have 24 appellate court judges. Parties to civil and criminal proceedings have an absolute right of appeal to them from decisions of superior court trial judges.
One Division has its headquarters in Seattle. It has the responsibility for hearing appeals from decisions of superior court judges in the State’s northwest Counties. The headquarters for the second Division is in Tacoma. It hears appeals from trial judges in the State’s southwest Counties. The third Division sits in Spokane. It hears appeals from County superior court trial judges in the remaining eastern State Counties.
By adopting this arrangement with necessary modifications, each Canadian province would have as many intermediate appellate courts as necessary to serve its population.
3. SUPREME (OR FINAL) PROVINCIAL APPELLATE COURTS
On the assumption that every appeal will stop at the provincial level except where there are constitutional issues, each province should establish its own final or Supreme Court.
Using Washington State as an example, its final appellate court is called the Supreme Court of Washington. Its headquarters is in the State capital at Olympia, Wa. Nine judges hear every appeal. They are elected every six years. The position of Chief Justice rotates amongst the judges from time to time.
Judges may excuse themselves from hearing a particular appeal because of a conflict of interest or because of illness, etc. Temporary replacement judges usually come from the Intermediate Appeal Courts’ rosters.
The SCC has no similar right to add judges due to illness or conflict. Decisions are sometimes made by the SCC by as few as five judges. In these circumstances the force and effect of their decision is diluted since three judges can constitute a majority.
Generally, there is no automatic right of appeal to U.S. State Supreme Courts from decisions of their Intermediate Appellate Courts. A State Supreme Court usually must first grant leave to appeal from the decision of an Intermediate Appellate Court before it will hear the appeal.
4. BENEFITS OF REFORMS TO CANADIAN LITIGANTS
The SCC does not often grant leave to appeal a decision from a provincial appellate court unless the issue is one of national importance. In other words, even when three judges of the SCC believe the provincial appellate court was wrong; they may deny the appellant leave to appeal.
If Canada adopts this proposed new system, litigants who seek leave from the new provincial Supreme Court only will need to argue that their issue is one of provincial importance. In other words, the new provincial Supreme Court will not have to consider the national interest before granting leave.
Presently, the backgrounds of the nine judges who sit in Canada’s Supreme Court are from different provinces across the nation. In most instances, federal authorities try to appoint three judges from Ontario, three from Quebec, two from the western provinces and one from the Atlantic Provinces.
As I argued in an earlier posting, because they all must sit and reside in or around Ottawa, over time those from the western and Atlantic Provinces in particular are bound to lose many of their connections with their home provinces. Since there are six judges from the central provinces of Ontario and Quebec on the SCC, there is the danger that what is best for Ontario and Quebec may often be converted into what is best for Canada.
Under the proposed new arrangement, judges of the new provincial Supreme Courts probably will have lived and worked most of their lives in that province. They are more likely to reach decisions that suit the circumstances of that province than the historical mixture of judges who now sit in the SCC and who may never have spent much time in more than one province. They are also more likely to have been trial judges than are the judges of the SCC.
Provinces with lower populations may not want or need a seven judge Supreme Court. Even if they reduce that number the province will be better served than under the present system. Provincial Supreme appellate courts in the six or so common law provinces with relatively larger populations will present a formidable intellectual force of legal learning. Each will benefit from the others' successes and failures. By itself the SCC has no competitors.
5. PROCEDURAL ISSUES
When it comes to practice and procedure, Canadian appellate courts are way behind their American counterparts. Practically speaking, Canadian provincial appellate courts act as courts of last resort. The cost and difficulty of getting leave to appeal to the SCC makes most appellants stop at the provincial level. However, these provincial appellate courts most often consisting of three judge panels tend to act more like Intermediate U.S. State Appellate courts. Few if any provincial appellate courts demand the appellant first receive permission or leave to appeal before they will hear an appeal.
Then there is the practice of some provincial appellate courts of rewriting trial court judgments even though they dismiss the appeal and agree with the trial judges reasons. As well, most provincial appellate courts allow each counsel to argue orally for about two hours or more. Most U.S. counsel get about 20 to 30 minutes and no more.
The precise number of practice differences between each provincial appellate court and each U.S. State Supreme Court are impossible to articulate in a posting of this nature.
Bottom Line:
1. Canadian provinces should develop Intermediate appeal courts that would hear appeals from superior and provincial trial courts without the appellant first getting leave.
2. They should then legislate an appellate court called the Supreme Court of the province to hear appeals with its leave or permission from these Intermediate Appellate courts.
3. These Supreme Courts should consist of seven judges including a Chief Justice.
4. The position of Chief Justice would be of limited duration and rotated amongst the judges every three to five years.
5. In the event of death, illness or conflict, Provincial Supreme Courts would have the right to supplement their quorum temporarily with Intermediate Appellate Court Judges in order to maintain a court composed of seven judges.
6. Any Canadian provincial trial court described as a “Supreme Court” would have to change its name to “Superior Court.”
14 January 2008
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