Sec. 92, Article 14. (1867)  The administration of justice in the Province

Constitutional Powers of Provinces and Parliament
on the subject of Courts


Source: A Short Treatise on Canadian Constitutional Law by A.H. F. Lefroy, With an Historical Introduction by W.P.M. Kennedy. Toronto, The Carswell Company Limited, 1918.

 - 137 - 

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.’ 305  In a notable report of his as Minister of Justice on a certain Quebec Act respecting District Magistrates, Sir John Thompson says that – ‘the most remarkable instance in which provincial legislation has over-run the limits of provincial competence, has been the legislation in reference to the administration of justice.’  He is referring, especially, to provincial legislatures interfering with, or trespassing upon, the power given to the Governor-General in the matter of the appointment of judges by section 96 of the Federation Act.306  This section enacts as follows: –

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.’

Before, then, considering what the provinces may do in the matter of the appointment of judicial officers, or otherwise, under No. 14 of section 92 [BNA 1867], which we are about to treat of, it may be well to consider what, under the authorities, they may not do by reason of this section 96, and its general interpretation.307  There can be no doubt, as Sir John Thompson points out in his Report already referred to, that the words ‘Judges of the Superior, District, and County Courts’ include all classes of judges like those designated, and not merely the judges of the par-


 - 138 - 

ticular Courts which at the time of the passage of the Federation Act [BNA Act, 1867] happened to bear those names.308 And provincial legislatures have no power to settle the qualifications of judges to be appointed by the Governor-General under section 96, as they have sometimes attempted to do, as, e.g., by providing that they must be barristers of not less than ten years’ standing.309  Nor can they provide for the removal in certain events of Dominion [federally appointed] judges.310  It has been held that provincial legislatures can designate County Court judges to try cases of corrupt practices under local option clauses of provincial liquor Acts, even outside their own counties or districts;311  but Ministers of Justice have questioned the right of provincial legislatures to appoint County Court judges as local judges and referees under provincial statutes.312  Provincial legislatures may, it appears, regulate the procedure in civil matters of Courts presided over by Dominion [federally appointed] judges, and the sittings of the judges of the Supreme Court in the province.313  Passing now to the powers of the Dominion parliament in relation to provincial Courts, it may impose new duties upon existing provincial Courts and magistrates, and give them new powers as to matters which do not come within the classes of subjects assigned exclusively to the legislatures of the provinces.314  In the same way the Dominion [federal] parliament can confer jurisdiction on a British Vice-Admiralty Court sitting in Canada.315  So, too, the Dominion parliament, in respect to the matters over which its exclusive jurisdiction extends, can interfere with the civil procedure of provincial Courts, as, for example, by taking away the appeal to the King in Council [this is the pre-1949 position] in bankruptcy and insolvency matters.316  It comes, therefore, to this that though the provinces alone have general juris-


 - 139 - 

diction over the administration of justice in the province by virtue of No. 14 of section 92 of the Federation Act [BNA 1867], the Dominion parliament may deal with the matter as far as is necessary to the complete and effectual exercise of one of its own enumerated powers; but, of course, in the absence of such Dominion legislation the power to legislate remains in the province.317  And it does not follow that because the Dominion parliament can impose jurisdiction on provincial Courts in Dominion matters, therefore it can divest the provincial Courts of such jurisdiction, although, of course, it can establish additional Courts of its own for the better administration of the laws of Canada under sec. 101 of the Federation Act [BNA 1867] (see infra, pp. 149-151), and then, perhaps, it can give such Dominion Courts sole jurisdiction on Dominion subjects.318

Provincial Judicial Officers. Subject to power given to the Governor-General to appoint the to appoint the judges of the Superior, District, and County Courts in each province, under section 96 of the Federation Act [BNA 1867] (supra, pp. 137-8), the provinces may, by virtue of their power over the administration of justice in the province, appoint judicial officers, for example, the Ontario Division Court judges;319  the judges of Parish Courts in New Brunswick;320  and the Fire Marshals in Quebec;321  Magistrates and justices of the peace;322  Masters in Chambers, Masters in Ordinary; Local Masters, Judges and Referees;323  a Railway Committee of the Executive Council.324

Other decisions as to powers of provincial legislatures under No. 14 of section 92 of the Federation Act [BNA 1867].  It has been decided that under this power the provinces may charge the expenses of criminal prosecutions on the munici-


 - 140 - 

palities;325  they can authorize service of writs out of the jurisdiction 326  and regulate the effect of judgments and writs of execution and what can be done thereunder;327  but provincial legislatures cannot legislate as to proceedings under Dominion Acts, unless, perhaps, in aid and furtherance thereof.328  Lastly, it cannot be said that the prerogative of mercy is part of the administration of justice; nor that the Lieutenant-Governor of a province possesses the power of pardon because the administration of justice in the province is reserved to the provincial legislature.329



 - 249 - 

305.  As to the distinction between “the constitution of provincial Courts of criminal jurisdiction,” and “procedure in criminal matters,” see supra, pp. 118-9.  As to the power to appoint King’s Counsel, see supra, p. 61, n. 41.  As to the power of the Dominion parliament to create new Courts to exercise jurisdiction in federal mattres, see supra, p. 90, and sec. 101 of the Federaction Act [BNA 1867], supra, pp. 149-150.  As to the predominance of Dominion criminal legislation over provincial penal laws, see pp. 117-118.  As to Dominion power over provincial penal laws, see pp. 117-118.  As to Dominion power over provincial Courts, see supra, p. 90 and pp. 138-9.  Judge Clement (L. of C. C. 3rd ed., pp. 508-597) has a long chapter upon the administration of justice in Canada and its provinces, and the subjects which arise for discussion under this provincial power.  As to appeals to the Supreme Court of Canada, and the Judicial Committee of the Privy Council, see supra, p. 149, and n. 376.

306.  For this report of Sir John Thompson, see Hodg. Prov. Legisl. 1867-1895, p. 358.  It is, also, set out at length in Legislative Power in Canada, pp. 140-174.

307.  The power to appoint County and District Court judges in section 96, appears to carry with it the power to remove, although section 99 of the Federation Act [BNA 1867] applies only to Superior Court judges: Re Squier (1882) 46 U.C.R. 474.  See Re Small Debts Recovery Act, (1917) 37 D.L.R. 170, 3 W. W. R. 698, and the annotation by the present writer, at p. 183 seq. endeavouring to place an exact interpretation on the power of appointment of “District” and “County Court” judges in sec. 96 of the B.N.A. Act, 1867, and finding the standard of jurisdiction in that of County Court and District Court judges in Upper Canada at Confederation under C.S.U.S. (1859) c. 15, and, possibly, in that exercised by County Court judges in New Brunswick under 30 Vict. c. 10 (N.Br.).  See also Niagara Election case (1878) 29 C.P. 261, 280.  See also an Article on the Constitution of Canada, 11 C.L.T. 145 seq.; Todd’s Parl. Gov. in Brit. Col. 2nd ed. pp. 46-7, 827 seq. who treats, inter alia of powers of removal still existing under Imp. 22 Geo. III, c. 75; and an Article on the Right to remove County Court Judges, 17 C.L.T. 445.  R.S.C. 1906, c. 138, provides for the removal of County Court Judges by order of the Governor-General in Council in certain cases.  The independence of the Superior Court judges appointed under sec. 96 is secured by sec. 99, which, following cl. 3, art. 7, of the Act of Settlement (Imp.) 12-13 Wm. III, c. 2, provides


 - 250 - 

that they shall hold office during good behaviour, but be removable by the Governor-General on address of the Senate and House of Commons.

308  See In re. Small Debts Act  (1896) 5 B.C. 246, and Bank v. Tunstall (1890) 2 B.C. (Hunter) 12, where the Court says that the provincial legislature cannot by merely constituting a Court by special name avoid section 96.  See, also, Ganong v. Bayley (1877) 1 P. & B. 324.  Upon the general subject of provincial attempts to evade the section, see the report of Sir John Thompson upon the Quebec District Magistrates Act referred to in the text; also Prov. Legisl. 1901-3, p. 33; and King v. King (1904) 37 N.S. 294. And cf. Re Public Utilities Act, City of Winnipeg v. Winnipeg Electric R. W. Co. (1916) 26 Man. 584, where two judges of the Manitoba Court of Appeal hold a provincial Act ultra vires in so far as it purported to confer powers transcending those of a Superior Court judge upon an officer called a commissioner, appointed by the Lieutenant-Governor in Council and paid by the province, contrary to secs. 96 and 100 of the Federation Act [BNA 1867], and Colonial Investment and Loan Co. v. Grady (1915) 24 D.L.R. 176, 8 A.L.R. 496, holding intra vires, on similar grounds, a provincial Act purporting to confer upon a Master in Chambers extraordinary powers in mortgage actions, and actions on contracts for the sale of lands. And so Rex v. Laity (1913) 18 B.C. 443.  See, also, Polson Iron Works v. Munns (1915) 24 D.L.R. 18, and the annotation thereto, ibid. at pp. 22-5.

309.  Hodg. Prov. Legisl. 1867-1895, at p. 358; Prov. Legisl. 1896-8, pp. 12-14; 1904-6, pp. 128, 135, 155, 157.

310.  E.g. that the Lieutenant-Governor may remove County Court judges for inability, incapacity, or misbehaviour:  Hodg. Prov. 1867-1895, p. 361.  pp. 84, 853-4.  Ministers of Justice have at times taken exception to provincial Acts supplementing the salaries of Dominion judges:  Hodg. Prov. Legisl. 1867-1895, pp. 93-94, 853-4.  But the Ontario Extra-Judicial Services Act, 1910, was allowed to go into force: ibid. pp. 1202-03.  As to provincial attempts otherwise to regulate Dominion judges as by enacting that judges of one County or District shall have jurisdiction to try cases in another County or District, see In re County Courts of British Columbia (1892) 21 S.C.R. 446, 453, upholding the provincial Act and overruling Peil-ke-ark-an v. Reginam (1891) 2 B.C. (Hunter) 52, and Gibson v. McDonald (1885) 7 O.R. 401; In re Wilson v. McGuire (1883) 2 O.R. 118. See other Canadian cases referred to [in] Canada’s Federal System, p. 536, n.  Cf. also, Prov. Legisl. 1867-1895, at pp. 1032-1034, 1037-1038.

311.  Rex v. Carlisle (1903) 6 O.L.R. 718.  See also, Rex v. Walsh (1903), 5 O.L.R. 527.


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= = =

"Sed quis custodiet ipsos custodes?" — Juvénal, Satires, VI, 346.  En français : « Qui nous protègera contre ceux qui nous protègent ? »  In English: " Who will protect us from those who protect us? "

 — Mauro Cappelletti dans Louis Favoreu (dir.), Le pouvoir des juges, Paris, Economica, 1990, p. 115.
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