Courts of Ontario: Difference between revisions

According to [[Edmond Lareau]], justice in early New France was dispensed "more or less arbitrarily by the governor", since the [[Seneschal|sénéchal]]—from whose name the sénéchaussée was taken—was appointed by, and answered to, the governor.{{Sfn|Lareau|1888|p=244}} In important matters, the sénéchal adjudicated matters in a council with the [[Society of Jesus|Jesuit]] superior, and "notable city residents".{{Sfn|Lareau|1888|p=244}}

The [[Treaty of Paris (1783)|Treaty of Paris]] brought a large number of immigrants from the American colonies. This increase in population increased the demand for courts. In 1788, CarletonLord Dorchester addressed this problem by dividing the [[Province of Quebec (1763–1791)|province of Quebec]] into four judicial districts: Luneburg "to the mouth of the [[Gananoque River|River Gananoque]]", Mecklenburg to the [[Trent River (Ontario)|Trent River]], Nassau "to the extreme projection of [[Long Point, Ontario|Long Point]] into the [[Lake Erie]]", and Hesse west of Nassau. In each of these districts, a court of common pleas was established, with unlimited civil jurisdiction;{{Sfn|Riddell|1915|p=882}} and a court of quarter sessions, which handled "local government and criminal matters".{{sfn|Girard|Phillips|Brown|2018|pp=248–249}} The first Upper Canada legislature renamed them the "Eastern", "Midland", "Home", and "Western" districts, respectively.{{Sfn|Banks|1983|p=500}}

The courts of common pleas were gradually abolished between 1792 and 1794.{{Sfn|Romney|1995|p=185}} In 1794,<ref>[https://bnald.lib.unb.ca/legislation/act-establish-superior-court-civil-and-criminal-jurisdiction-and-regulate-court-appeal 34 George III, c&nbsp;2] (Upper Canada)</ref> pursuant to the ''Judicature Act, 1794'',{{Sfn|Moore|2014|p=4}} the Court of King's Bench was created for the province.{{sfn|Riddell|1913|p=18}} It took up most of the actions that would previously have gone to the courts of common pleas, except actions for small amounts of money (no more than £15, later increased to £40 in some circumstances).{{Sfn|Banks|1983|p=502}} The Court of King's Bench, a [[superior court]],{{Sfn|Murray|2002|p=25}} was given the powers of the courts of [[QueenCourt of King's Bench (England)|King's Bench]], [[Court of Common Pleas (England)|Common Pleas]], and [[Exchequer of Pleas|Exchequer]] in England, and had as judges the chief justice of the province and two puisne justices.{{sfn|Riddell|1913|p=18}} JudgesThese ofthree the Court of King's Bench went on [[Circuit court|circuit]] throughout the province's four judicial districts in meetings termed [[assizes]]. The assizes handled civil and criminal matters, conducting civil [[Nisi prius|''nisi prius'']] trials and acting as courts of [[oyer and terminer]] and general gaol delivery.{{Sfn|Romney|1995|p=185}} Assizes initially met only once a year; they became biannual in 1837.{{Sfn|Murray|2002|p=25}} Decisions at the assizes could be appealed to a full panel of the Court of King's Bench, sitting at York (which became Toronto).{{Sfn|Romney|1995|p=185}} Upper Canada's court of quarter sessions, officially the General Sessions of the Peace, handled some "less serious cases" thatjudges were not dealt with at the assizes.{{Sfn|Murray|2002|pp=24–25}} Finally, the courts of requests, presided overappointed by [[Justice of the peace|justices of the peace]], met every other Saturday to handleimperial [[SmallColonial claims court|small claimsOffice]]. Their jurisdiction was limited to portions of each of the four judicial districts. Theyand were abolishedgiven insubstantial 1841salaries.{{Sfn|MurrayWylie|20021983|ppp=25–2615}}

[[William Renwick Riddell]] calledIn 1849 an "[[annus mirabilis]]" for Ontario's court system.{{Sfn|Banks|1983|p=511}} In that year, a new court, the Court of Common Pleas, came into existence,{{Sfn|Kinnear|1954|p=128}}<ref name="1849act">[https://bnald.lib.unb.ca/legislation/act-more-effectual-administration-justice-court-chancery-late-province-upper-canada 12 Vict, c&nbsp;64] (Province of Canada)</ref> presided over by a chief justice and two puisne justices and with the same powers and jurisdiction as the Court of King's (now Queen's) Bench, while the number of puisne justices in the Queen's Bench was reduced to two. A second statute,<ref>[https://bnald.lib.unb.ca/legislation/act-establish-court-chancery-province-passed-4th-march-1837 7 William IV, c&nbsp;2] (Upper Canada)</ref> passed at the same time, created the [[Court of Chancery of Upper Canada]], for which the province's governor was bethe chancellor and a judge was to be appointed "the vice chancellor of Upper Canada". This was not found wholly satisfactory and accordingly the 1849 statute<ref name="1849act" /> reconstituted the court with a chancellor and two vice chancellors.{{sfn|Riddell|1913|pp=18–19}}

Finally, again in 1849, Ontario's system of county courts was created. The county courts replaced an analogous system of district courts, which operated from 1794 to 1849.{{Sfn|Banks|1983|p=492}} This change was presumably due in part to the fact that the old system of judicial districts—which, with increases in population since they were established, had now grown from four to twenty districts—was abolished by statute in 1849.{{Sfn|Banks|1983|p=511}} By that time, as the act abolishing the districts itself noted, the "boundaries" of districts "[had], in many cases, become identical with the boundaries of counties".{{Sfn|Banks|1983|p=511}}<ref>[https://bnald.lib.unb.ca/legislation/act-abolishing-territorial-division-upper-canada-districts-and-providing-temporary 12 Vict, c 78] (Province of Canada)</ref> The courts of Queen's Bench, Common Pleas, and Chancery continued in existence as separate courts, the two former as courts of common law, the last as a court of equity, until 1881.{{sfn|Riddell|1913|p=19}}

Banks, referring to an unpublished paper by [[Horace Krever]], a justice of the High Court of Justice and Court of Appeal for Ontario,{{Sfn|Moore|2014|p=241}} says that "the structure of the Supreme Court of Ontario remained pretty much the same from 1931 until April 1972".{{Sfn|Banks|1983|pp=533, 563n175}} On 17 April 1972, a 1970 statute came into force implementing the recommendation in the [[McRuer commission|McRuer report]] (1968), a review of the Ontario court system, that the Divisional Court be created.{{Sfn|Banks|1983|p=535}} The Divisional Court had then, and still has, a complex statutory appellate and judicial review jurisdiction.{{Sfn|Banks|1983|p=535}}<ref>{{Cite book|last=Friedman|first=Tamar|title=Civil Procedure and Practice in Ontario|date=2021-06-19|publisher=Canadian Legal Information Institute|editor-last=Semple|editor-first=Noel|chapter=Divisional Court (Courts of Justice Act, ss 18–21)|id=2021 CanLIIDocs 2074|chapter-url=https://www.canlii.org/en/commentary/doc/2021CanLIIDocs2074}}</ref>

The ''Courts of Justice Act'', which presently constitutes Ontario's courts,<ref>{{Cite web|title=History of the Court|url=https://www.ontariocourts.ca/scj/about/history/|url-status=live|access-date=2021-10-06|publisher=[[Ontario Superior Court of Justice]]|language=en-US}}</ref> was first enacted in 1984, replacing the ''Judicature Act''.<ref name=":0watsonmcgowan2016">{{Cite book|last1=Watson|first1=Garry D.|title=Ontario Civil Practice|last2=McGowan|first2=Michael|publisher=Carswell|year=2016|isbn=978-0-7798-6575-8|page=[[iarchive:ontariocivilprac0000unse/page/5/mode/1up|5]]|issn=1184-7433}}</ref> By a 1989 amendment to the ''Courts of Justice Act'', Ontario's trialsuperior court, county courts, and district courts were consolidated into the Ontario Court (General Division)<ref, name=":0"while />the family and criminal courts formed the Ontario Court (Provincial Division).<ref name="watsonmcgowan2016" /><ref>{{Cite book|last=Cotter|first=W. Brent|title=In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession|publisher=[[University of British Columbia Press]]|year=2016|isbn=978-0-7748-3098-0|editor-last=Woolley|editor-first=Alice|page=214|chapter=Ian Scott|oclc=928679659|editor-last2=Dodek|editor-first2=Adam}}</ref> These names were changed to their current names—the [[Ontario Superior Court of Justice]] and [[Ontario Court of Justice]], respectively—by section &nbsp;8 of the ''Courts Improvement Act, 1996''.<ref>''Courts Improvement Act, 1996'', [https://digitalcommons.osgoode.yorku.ca/ontario_statutes/vol1996/iss1/27/ SO 1996, c 25], s 8</ref>

Special criminal courts for Indigenous offenders, known as ''Gladue'' courts following the decision of the Supreme Court of Canada in ''[[R v Gladue|]]''R vand Gladue'']]sometimes as Indigenous persons courts,<ref>{{Cite news|last=Bruineman|first=Marg|date=2018-04-30|title=More Indigenous courts open across province|work=Law Times|url=https://www.lawtimesnews.com/news/legal-analysis/more-indigenous-courts-open-across-province/263023|access-date=2021-10-07}}</ref> have existed in Ontario since 2001, when the first such court was established in Toronto. These courts apply the criminal law of Canada but follow different sentencing principles for Indigenous offenders. These principles emphasize [[Alternatives to imprisonment|alternatives to incarceration]] and the distinctive history of [[Indigenous peoples in Canada]].<ref name=maurutto2016>{{Cite journal|lastlast1=Maurutto|firstfirst1=Paula|last2=Hannah-Moffat|first2=Kelly|date=2016-12-20|title=Aboriginal Knowledges in Specialized Courts: Emerging Practices in ''Gladue'' Courts|journal=[[Canadian Journal of Law and Society|Canadian Journal of Law and Society/Revue canadienne droit et société]]|language=en|volume=31|issue=3|pages=451–471|doi=10.1017/cls.2016.35|s2cid=151316248|issn=0829-3201|doi-access=free}}</ref> These courts apply the criminal law of Canada but follow different sentencing principles for Indigenous offenders.<ref name=maurutto2016/> These principles emphasize [[Alternatives to imprisonment|alternatives to incarceration]] and the distinctive history of [[Indigenous peoples in Canada]].<ref name=maurutto2016/> ''Gladue'' courts do not conduct criminal trials, but may be involved in sentencing or bail hearings.{{sfn|Bakht|2005|p=240}}

* [[History of Ontario]]

* [[Law of Canada]]

* {{Cite book|last1=Bohaker|first1=Heidi|title=Doodem and Council Fire: Anishinaabe Governance through Alliance|year=2020|publisher=[[University of Toronto Press]]; Osgoode Society for Legal History|isbn=978-1-4426-4731-2|location=Toronto|oclc=1146559929}}

* {{Cite journal|last1=Dickinson|first1=John A.|title=New France: Law, Courts, and the ''Coutume de Paris'', 1608–1760|year=1995|journal=Manitoba Law Journal|volume=23|pages=32–54|id=[https://www.canlii.org/en/commentary/doc/1995CanLIIDocs131 1995 CanLIIDocs 131]}}

* {{Cite book|last=Moore|first=Christopher|url=https://archive.org/details/courtofappealfor0000moor_r2a6|title=The Court of Appeal for Ontario: Defining the Right of Appeal in Canada, 1792–2013|publisher=[[University of Toronto Press]]|year=2014|isbn=978-1-4426-2247-0|location=Toronto|doi=10.3138/9781442622470|jstor=10.3138/j.ctt1287q35|author-link=Christopher Moore (Canadian historian)|url-access=registration}}