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The Road to Ottawa: How do Cases get to the Supreme Court of Canada?

2 minute read

When I clerked at the Supreme Court, one of my favourite things was the sheer variety of cases heard by the Court. In any given week, the Court might hear a criminal case, a contractual interpretation dispute, a Quebec civil law case, and a case about the meaning of equality. With such a wide and varying docket, you may wonder how cases get to be heard by the Supreme Court.

Generally speaking, the Canadian legal system is a 3-tier system. There are trial level courts like the Ontario Superior Court of Justice, provincial appellate courts like the Court of Appeal for Ontario, and at the top, the Supreme Court of Canada. Most cases will progress through all three levels before they are heard by the Supreme Court. There are three different ways a case can reach the Supreme Court.

The first way a case can get to the Supreme Court is by obtaining leave. Essentially, the unhappy party at the provincial appellate court asks the Supreme Court for permission to be heard. The request for permission is through an application for leave to appeal to the Supreme Court that the Court considers and renders a decision as to whether it will agree to hear the case. It is hard to get this permission.  In 2017, only 48 cases were granted leave (compared to the 388 cases that were denied leave). Despite this low success rate, this is the most common way for a case to get to the Supreme Court.

The next way a case can come before the Supreme Court is through appeals as of right. Unlike cases where leave is granted, appeals as of right do not require permission or submitting an application for leave to appeal. Generally, cases that are heard by the Supreme Court as of right are criminal cases. For instance, under the Criminal Code, a person who was convicted of an indictable offence at trial and had their conviction upheld on appeal is entitled to appeal to the Supreme Court as of right if one judge at the Court of Appeal dissented on a question of law.

The third, and rarest, way a case can be heard by the Supreme Court is through a reference. A reference occurs when the government asks the Court for its opinion on a particular question. Often the question concerns a proposed piece of legislation the government wants to implement and whether it would be constitutional. For instance, in 2004, the Supreme Court was asked to give its opinion on proposed legislation legalizing same sex marriage.

For most cases, the road to Ottawa is long. The Supreme Court hears a limited number of cases and compared to most other courts, it exercises a lot of control over the types of cases that it will hear. This results in a varied and interesting docket.

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Debbie Boswell

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