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INTRODUCTION
The constitutional allocation of powers between Parliament and province regarding the judicial court.
The hierarchy of judicial courts and jurisdictions
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I HISTORICAL DEVELOPMENT OF THE JUDICIARY
Early Court system in Canada
Inferior court District court and county court Court of appeal
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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.
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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.
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.
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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 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
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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
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Contrast with the U.S. State court
District courtCourt of AppealSupreme Court
Federal courtsDistrict courtsCourt of AppealsSupreme Court
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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
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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?
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
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?
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?
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V Preclusion of Judicial Review
To what extent the legislature could exclude judicial review from decision of administrative tribunal or professional board?