CONSTITUTIONAL
LAW
03 JUDICIAL POWER
AND JUDICIARY
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Shigenori Matsui
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INTRODUCTION

The constitutional allocation of powers
between Parliament and province regarding
the judicial court.
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The hierarchy of judicial courts and
jurisdictions
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I HISTORICAL DEVELOPMENT
OF THE JUDICIARY

Early Court system in Canada
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Inferior court
District court and county court
Court of appeal
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Current Court system in Canada
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Inferior court
Superior court
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Supreme Court
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Court of Appeals
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II CONSTITUTIONAL ACT OF
1867

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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
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the Union,
shall continue in Ontario, Quebec, Nova
Scotia, and New Brunswick respectively...
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
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.
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BC Provincial Court Act
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S. 92 (4) appointment of provincial judges
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4. The Establishment and Tenure of Provincial
Offices and the Appointment and Payment of
Provincial Officers.

S. 96 the power of Governor general to
appoint judges of superior courts
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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.
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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.
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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.
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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.


The power of the Parliament to establish
federal courts.
S. 101

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,
and for the Establishment of any
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additional Courts for the better Administration of
the Laws of Canada.
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“for the better administration of the laws of
Canada”
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Federal Court Act
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Federal Court of Canada
Federal Court of Appeal
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Yukon Territory, Northwest Territories, and
Nunavut
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The Supreme Court of Canada (s. 101)
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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
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Contrast with the U.S.
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State court
District court
 Court of Appeal
 Supreme Court
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Federal courts
18District
courts
 Court of Appeals
 Supreme Court
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State courts
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Courts of general jurisdiction
State law, including state Constitution, and federal
law
Federal Courts
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Courts of limited jurisdiction
Diversity jurisdiction and federal questions
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What should be the appropriate relationship
between federal courts and provincial courts?
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?
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Labour Relations Board of Saskatchewan v.
John East Iron Works Ltd, [1949]A.C. 134
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Re Residential Tenancies Act, 1979, [1981] 1
S.C.R. 714
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Attorney General of Quebec and Regie du
Logenment v. Grondin, [1983] 2 S.C.R. 364
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Sobeys Stores Ltd v. Yeomans, [1989] 1
S.C.R. 238
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Reference re Young Offenders Act, [1991] 1
S.C.R. 252
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Reference re Amendments to the Residential
Tenancies Act, [1996] 1 S.C.R. 186
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MacMillan Bloedel Ltd v. Simpson [1995]
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What is the limit on the province to remove
judicial power from superior court and give it
to the inferior court or administrative tribunal?
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What is the limit on the power of the federal
parliament?

McEvoy v. Attorney General of New
Brunswick, [1983] 1 S.C.R. 704
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IV JUDICIAL INDEPENDENCE
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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]
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Mackin v. New Brunswick [2002]
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Was it appropriate for the Supreme Court of
Canada to establish unwritten constitutional
principle of judicial independence?
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What would be the limit of judicial
independence?
V Preclusion of Judicial
Review

To what extent the legislature could exclude
judicial review from decision of administrative
tribunal or professional board?
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
Crevier v. Attorney General of Quebec,
[1981] 2 S.C.R. 220
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