1 1 CONSTITUTIONAL LAW 03 JUDICIAL POWER AND JUDICIARY Shigenori Matsui

2 2 INTRODUCTION The constitutional allocation of powers between Parliament and province regarding the judicial court. The hierarchy of judicial courts and jurisdictions

3 3 I HISTORICAL DEVELOPMENT OF THE JUDICIARY Early Court system in Canada Inferior court District court and county court Court of appeal

4 4 Current Court system in Canada Inferior court Superior court Supreme Court Court of Appeals

5 5 II CONSTITUTIONAL ACT OF 1867 S. 129 continuance of existing provincial court structure 129. Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively...

S. 92 (14) judicial administration in the provincial courts 14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. BC Provincial Court Act

S. 92 (4) appointment of provincial judges 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers.

8 8 S. 96 the power of Governor general to appoint judges of superior courts 96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

97. Until the laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces.

98. The Judges of the Courts of Quebec shall be selected from the Bar of that Province.

Federal Judges Act

S. 99 tenure and retirement 99. (1) Subject to subsection two of section, the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons. (2) A Judge of a Superior Court, whether appointed before or after the coming into force of this section, shall cease to hold office upon attaining the age of seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.

S. 100 salary 100. The Salaries, Allowances, and Pensions of the Judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in Cases where the Judges thereof are being paid by Salary, shall be fixed and provided by the Parliament of Canada.

14 The power of the Parliament to establish federal courts. S The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

“for the better administration of the laws of Canada” Federal Court Act Federal Court of Canada Federal Court of Appeal

16 Yukon Territory, Northwest Territories, and Nunavut

17 The Supreme Court of Canada (s. 101) The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada… Supreme Court Act

18 Contrast with the U.S. State court District court Court of Appeal Supreme Court Federal courts District courts Court of Appeals Supreme Court

19 State courts Courts of general jurisdiction State law, including state Constitution, and federal law Federal Courts Courts of limited jurisdiction Diversity jurisdiction and federal questions

What should be the appropriate relationship between federal courts and provincial courts?

21 III The Power of Superior Court To what extent the judicial courts are guaranteed of their judicial power? Could the Parliament establish some non-judicial tribunals and give them judicial powers? Could the province deprive the power from the superior court and give it to the inferior court or to administrative tribunals?

22 Labour Relations Board of Saskatchewan v. John East Iron Works Ltd, [1949]A.C. 134

23 Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714

24 Attorney General of Quebec and Regie du Logenment v. Grondin, [1983] 2 S.C.R. 364

25 Sobeys Stores Ltd v. Yeomans, [1989] 1 S.C.R. 238

26 Reference re Young Offenders Act, [1991] 1 S.C.R. 252

27 Reference re Amendments to the Residential Tenancies Act, [1996] 1 S.C.R. 186

MacMillan Bloedel Ltd v. Simpson [1995]

What is the limit on the province to remove judicial power from superior court and give it to the inferior court or administrative tribunal?

30 What is the limit on the power of the federal parliament? McEvoy v. Attorney General of New Brunswick, [1983] 1 S.C.R. 704

IV JUDICIAL INDEPENDENCE S. 96 to s. 100 only applies to federally appointed provincial court judges. What is the criteria to decide whether independence of the judiciary is impaired? How about the inferior court judges and federal court judges?

Reference re Remuneration of Judges [1997]

Mackin v. New Brunswick [2002]

Was it appropriate for the Supreme Court of Canada to establish unwritten constitutional principle of judicial independence? What would be the limit of judicial independence?

35 V Preclusion of Judicial Review To what extent the legislature could exclude judicial review from decision of administrative tribunal or professional board?

36 Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220