Comparative Table of the Supreme Courts of the United States and Canada

United States Canada

Foundations

Model State judiciaries vs. independent and Unitary model (single hierarchy) where parallel federal judiciary provinces appoint the lowest court in the province and the federal government appoints judges to all higher courts “The judicial Power of the United “Parliament of Canada may … provide for the States, shall be vested in one Constitution, Maintenance, and Organization of Constitutional supreme Court” Constitution of the a General Court of Appeal for Canada” Authority United States, Art. III, s. 1 Constitution Act, 1867, ss. 101

mandatory: “the judicial Power of optional: “Parliament of Canada may … provide the United States, shall be vested in for … a General Court of Appeal for Canada” (CA Creation and one supreme Court” Art III. s. 1 1867, s. 101; first Supreme Court Act in 1875, Retention of the (inferior courts are discretionary) after debate; not constitutionally entrenched by Supreme Court quasi-constitutional convention constitutionally entrenched Previous higher appeals to the Judicial Committee of the Privy judicial Council were abolished in 1949 authority Enabling Judiciary Act Supreme Court Act, R.S.C. 1985, c. S-26 Legislation “all Cases, in Law and Equity, arising “a General Court of Appeal for Canada” confers under this Constitution” Art III, s. 2 plenary and ultimate authority “the Laws of the United States and Treaties made … under their Authority” Art III, s. 2

“Ambassadors, other public Ministers and Consuls” (orig. jur.) Jurisdiction of Art III, s. 2 Supreme Court “all Cases of admiralty and maritime

Jurisdiction” Art III, s. 2

“Controversies to which the United States shall be a Party” Art III, s. 2

Diversity jurisdiction (original jurisdiction where state is party) Art III, s. 2

Addendum to “A Comparison of Selection Processes for Judges of the Supreme Courts of Canada and the United States” by Peter Bowal and Jacqueline Bowal. LawNow 39(6), July/August 2016 - page 1

Original vs. Limited original jurisdiction No original jurisdiction (see “references” below) Appellate

Composition, Tenure and Compensation

Chief Justice of the United States Chief Justice of Canada and 8 puisne (inferior in Membership and 8 “associate justices” (although rank) judges, SCA, s. 4(1) Art. II, s. 2 and Art. III, s. 1 both refer to “Judges of the Supreme Court”) Present Gender 3 women (1 retiring) 4 women, including Chief Justice Composition Tenure “during good Behaviour” (lifetime) must retire by 75th birthday (s. 99(2) CA, 1867), (Art. III, s. 1); may be impeached “during good behaviour” (s. 99(1)); repeated in SCA, s. 9 “shall, at stated Times, receive for “shall be fixed and provided by the Parliament of Salaries their Services, a Compensation, Canada” (s. 100) which shall not be diminished during Chief Justice: $396,700 their Continuation in Office” (Art. Puisine Justices: $367,300 III, s. 1) Chief Justice: $255,500 Associate Justices: $244,400 Review of political and legislative adjustments periodic independent compensation Salaries for cost of living increases commissions; recommendations prima facie binding

Appointment

Formal There are no age, experience, For judges from Quebec only: “Any person … Qualifications education or citizenship who is or has been a judge of a superior court of of Judges qualifications. a province or a barrister or advocate of at least ten years standing at the bar of a province” SCA, s. 5 Geographical none “At least three of the judges shall be appointed Qualifications from … Quebec” SCA, s. 6 Informal none Quebec: 3 Geographical Ontario: 3 Qualifications British Columbia: 1 (constitutional- Prairies: 1 level custom) Atlantic Canada: 1

Addendum to “A Comparison of Selection Processes for Judges of the Supreme Courts of Canada and the United States” by Peter Bowal and Jacqueline Bowal. LawNow 39(6), July/August 2016 - page 2

Appointment of Frequently from outside existing Tradition of rotating between senior anglophone Chief Justice Supreme Court bench and senior francophone on existing Supreme (tradition) Court bench Selection Inter-branch co-operation (President Cabinet on the advice of the Minister of Justice Authority nominates, Senate confirms) or Prime Minister Nature of Political Executive Process Supporting Office of Legal Services; Office of Commissioner for Federal Judicial Affairs Executive Office White House Counsel Public Scrutiny Senate Judiciary Committee Several behind the scenes screening stages; Hearings and vote; full Senate vote recommendations to Minister; recent voluntary public hearings

Two oaths must be taken. “I, ...... , do solemnly and sincerely promise (1) Constitutional Oath [5 U. S. C. § and swear that I will duly and faithfully, and to 3331]: the best of my skill and knowledge, execute the Oath "I, ______, do solemnly swear (or powers and trusts reposed in me as Chief Justice affirm) that I will support and defend the (or as one of the judges) of the Supreme Court of Constitution of the United States against Canada. So help me God.” SCA, s. 10 all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

(2) Judicial Oath [28 U. S. C. § 453]: "I, ______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ______under the Constitution and laws of the United States. So help me God."

By the Chief Justice or a senior “to the Chief Justice before the Governor Associate Justice. The two oaths are General in Council, and to the puisne judges by Administration often given separately on different the Chief Justice or, in the case of absence or of Oath days in different places and illness of the Chief Justice, by any other judge sometimes the same oath is given present at Ottawa” SCA, s. 11 more than once.

Addendum to “A Comparison of Selection Processes for Judges of the Supreme Courts of Canada and the United States” by Peter Bowal and Jacqueline Bowal. LawNow 39(6), July/August 2016 - page 3

none “[to ensure quorum] the Chief Justice of Canada, or in the absence of the Chief Justice, the senior Ad Hoc puisne judge, may in writing request the Appointments attendance at the sittings of the Court, as an ad hoc judge, for such period as may be necessary … [a Federal or tax Court judge, or another federal or provincial judge] SCA, s. 30

Operations

Limited right of appeal in serious criminal cases; Control of Customary „rule of four‟ justices to all others require leave on basis of public docket determine an appeal will be heard importance and national dimensions; minimum of 2 judges Review Written briefs Written application (no more oral hearings) Granting Process Government federal government may ask Court for a non- References None binding „advisory opinion‟ on any constitutional or statutory law Grant of Review petition for certiorari application for leave to appeal Language Monetary No minimum or maximum No minimum or maximum jurisdiction Judicial Opinion Judgment Product Court languages English English and French Caseload About 75 opinions per term About 75 judgments per year Oral arguments begin first Monday Scheduled periods of sittings but no schedule to “Term” in October and end in late April; all render judgment opinions delivered by end of June Quorum of Six justices [28 U. S. C. §1] “Any five of the judges of the Court shall Judges constitute a quorum and may lawfully hold the Court.” SCA, s. 25 Website http://www.supremecourtus.gov/ http://www.scc-csc.gc.ca/

Governance

“No judge shall hold any other office of Exclusive Office emolument under the Government of Canada or the government of a province” SCA, s. 7

Addendum to “A Comparison of Selection Processes for Judges of the Supreme Courts of Canada and the United States” by Peter Bowal and Jacqueline Bowal. LawNow 39(6), July/August 2016 - page 4

Residency Justices can live anywhere, even “shall reside in the National Capital Region … or Requirements outside of the country. within forty kilometres thereof” SCA, s. 8 Judicial Clear „third branch‟ delineation with Larger executive oversight in operations of SCC; Independence inter-branch co-operation ceremonial SCC role in parliamentary function

Removal from Office

Code of Judicial Supreme Court justices are exempt Ethical Principles for Judges Conduct from the Code of Conduct binding on http://www.cjc- ccm.gc.ca/cmslib/general/news_pub_judicialconduct_Principles_en.pdf federal judiciary

“on Impeachment for, and “shall be removable by the Governor General on General Conviction of, Treason, Bribery, or Address of the Senate and House of Commons,” other high Crimes and CA 1867, s. 99(1) Misdemeanors,” Art. II, s. 4 Systematic Self-regulating Canadian Judicial Council, established by Oversight Judges Act, Pt II (http://www.cjc-ccm.gc.ca)

Addendum to “A Comparison of Selection Processes for Judges of the Supreme Courts of Canada and the United States” by Peter Bowal and Jacqueline Bowal. LawNow 39(6), July/August 2016 - page 5