Supreme Court of Canada

McEvoy v. Attorney General for New Brunswick et al., [1983] 1 S.C.R. 704

Date: 1983-06-07

John P. McEvoy Appellant;

and

The Attorney General for New Brunswick Respondent;

and

The Attorney General of Canada Respondent.

File No.: 16773.

1983: February 8; 1983: June 7.

Present: Laskin C.J. and Ritchie, Dickson, Beetz, Estey, Chouinard and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Constitutional law—Proposal to establish unified criminal court—Transfer of criminal jurisdiction to new court—Judges provincially appointed—Inferior court transformed into a superior court—Whether proposal constitutional—Constitution Act, 1867, R.S.C 1970, Appendix II, ss. 91(2), 92(14), 96.

Appeal—Reference—Abstract questions—Whether the Court should answer referred questions—Judicature Act, R.S.N.B. 1973, c. J-2 as amended, s. 23(1).

The Lieutenant-Governor in Council of New Brunswick referred three questions to the Court of Appeal to determine the constitutional validity of a proposal to establish a unified criminal court in the province. The new court, which would exercise complete criminal jurisdiction, would replace the present Provincial Court and its judges would be provincially appointed. Parliament would be requested to amend the Criminal Code and other federal statutes to confer jurisdiction in criminal matters upon the new court. The Court of Appeal answered the three questions in the affirmative. Hence this appeal to determine whether s. 96 of the Constitution Act, 1867 bars the proposal.

Held: The appeal should be allowed and the three questions answered in the negative.

Parliament can no more give away federal constitutional powers than a province can usurp them. Here, what was being contemplated was the complete obliteration of superior court criminal law jurisdiction. The effect of this proposal to transfer the present superior court criminal jurisdiction over indictable offences to a

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provincial court would be to deprive the Governor General of his power under s. 96 to appoint the judges who try indictable offences in New Brunswick. This is contrary to s. 96. This section bars Parliament and the provincial legislatures from altering the constitutional scheme envisaged by the judicature sections of the Constitution Act, 1867 which guarantee the independence of the superior courts from both levels of government. The result would be the same if the new court was given concurrent criminal jurisdiction with the superior court, since s. 96 is an insuperable obstacle to any attempt to transform an inferior court into a superior court.

Re The Educational System in the Island of Montreal, 1926 CanLII 67 (SCC), [1926] S.C.R. 246; Reference re Waters and Water-Powers, 1929 CanLII 72 (SCC), [1929] S.C.R. 200; Reference re Angliers Railway Crossing, 1937 CanLII 51 (SCC), [1937] S.C.R. 451; Re Authority of Parliament in Relation to the Upper House, 1979 CanLII 169 (SCC), [1980] 1 S.C.R. 54; Attorney-General for Manitoba v. Manitoba Egg and Poultry Association, 1971 CanLII 135 (SCC), [1971] S.C.R. 689; Reference re Regulation and Control of Aeronautics in Canada, 1930 CanLII 79 (SCC), [1930] S.C.R. 663; In Re Marriage Laws (1912), 1912 CanLII 35 (SCC), 46 S.C.R. 132; Re Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753; Re Vancini (1904), 1904 CanLII 72 (SCC), 34 S.C.R. 621; Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331; Nanaimo Community Hotel v. Board of Referees, 1945 CanLII 302 (BC CA), [1945] 3 D.L.R. 225; O. Martineau & Sons, Ld. v. City of Montreal, 1931 CanLII 387 (UK JCPC), [1932] A.C. 113; Toronto Corporation v. York Corporation, 1938 CanLII 252 (UK JCPC), [1938] A.C. 415; Valin v. Langlois (1879), 1879 CanLII 29 (SCC), 3 S.C.R. 1; Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714; Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220; In re Storgoff, 1945 CanLII 17 (SCC), [1945] S.C.R. 526; Re Rex v. Thompson, 1946 CanLII 115 (ON CA), [1946] O.R. 560; R. v. Marathon Paper Mills of Canada Ltd., 1947 CanLII 57 (ON CA), [1947] O.R. 532, referred to.

APPEAL from a judgment of the New Brunswick Court of Appeal (1981), 1981 CanLII 2602 (NB CA), 127 D.L.R. (3d) 214, 62 C.C.C. (2d) 164, 36 N.B.R. (2d) 609, 94 A.P.R. 609, answering in the affirmative three questions referred by the Lieutenant-Governor in Council and concerning the constitutional validity of a proposal to establish a unified criminal court in New Brunswick. Appeal allowed.

B.A. Crane, Q.C., and John P. McEvoy, for the appellant.

Bruce Judah and Barry Athey, for the respondent the Attorney General for New Brunswick.

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John R. Power, Q.C., and M.L. Basta, for the respondent the Attorney General of Canada.

Judgment delivered by

THE COURT—This is an appeal from a unanimous judgment of the New Brunswick Court of Appeal, delivered by Hughes C.J.N.B., answering in the affirmative three questions put before that Court on a reference by the provincial Lieutenant-Governor in Council pursuant to s. 23(1) of the Judicature Act, R.S.N.B. 1973, c. J-2, as amended. The questions, attached as a schedule to the reference Order, are stated to be draft questions directed to determine the constitutional validity of a proposed course of action with respect to the establishment of a unified criminal court in New Brunswick.

The three questions posed to the Court in New Brunswick, and the very same questions are now before this Court on appeal, read as follows:

1. Is it intra vires the Parliament of Canada to amend the Criminal Code to confer upon a court constituted by the legislature of a province, the judges of which are appointed by the Lieutenant-Governor in Council, exclusive jurisdiction to try all indictable offences under that Act?

2. Is it intra vires the Parliament of Canada to amend the Criminal Code to confer upon a court constituted by the legislature of a province, the judges of which are appointed by the Lieutenant-Governor in Council, jurisdiction to try all indictable offences under that Act, if that jurisdiction is concurrent with that of courts whose judges are appointed pursuant to section 96 of the British North America Act?

3. Is it intra vires the legislature of a province to constitute a court, the judges of which are appointed by the Lieutenant-Governor in Council, to exercise such jurisdiction in criminal law matters as is conferred upon it by the Parliament of Canada, if the jurisdiction conferred by Parliament is to try all indictable offences under the Criminal Code, and is either

(a) exclusive; or

(b) concurrent with that of courts whose judges are appointed pursuant to section 96 of the British North America Act?

It will be noted that Questions 1 and 2 relate to the constitutional power of the Parliament of

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Canada. Only Question 3 relates to the powers of the Provincial Legislature. The New Brunswick Court of Appeal answered all three questions in the affirmative.

In general terms the issue is whether s. 96 of the Constitution Act, 1867 is a bar to a plan whereby the federal government and a provincial government would by conjoint action transfer the criminal jurisdiction of Provincial Superior Courts to a new court to be called the “unified criminal court” the judges of which would be provincially appointed.

1. Should this Court answer the Questions?

There is no draft legislation nor even any draft proposals to infuse the three questions which, in our view, suffer from excessive abstractness. There is no explanatory material, no supplementary notes, no draft report which would give concreteness to what is proposed. We are left to speculate as to the form the legislative schemes contemplated by the questions might take. When one realizes that what is intended is a drastic realignment of criminal law authority, an intended transfer, either exclusively or concurrently with existing provincial Superior Courts, to a new provincial Court in which judges appointed by the Province will sit to try all indictable offences, and that serious questions arise whether the proposed provincial Court is to have unreviewable jurisdiction subject perhaps to statutory rights of appeal, it will be seen how necessary or at least advantageous it would have been to have some direction as to the thrust of the proposed legislation under New Brunswick law and under federal law.

The Government of Canada has not adopted any policy for establishing a unified criminal Court nor, it appears, has the Government of New Brunswick, although the Attorney General of the Province is a proponent.

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This Court is entitled to exercise its judgment on whether it should answer referred questions if it concludes that they do not exhibit sufficient precision to permit cogent answers. This is irrespective of the fact that the reference power is couched in broad terms, as it is here. Section 23(1) of the Judicature Act of New Brunswick provides:

23. (1) Important questions of law or fact touching

(a) the interpretation of The British North America Acts,

(b) the constitutionality or interpretation of any Canadian or Provincial legislation,

(c) the powers of the Legislature of the Province, or the Governement thereof, whether or not the particular power in question has been or is proposed to be exercised, or

(d) any other matter, whether or not in the opinion of the Court ejusdem generis with the foregoing enumeration, with reference to which the Lieutenant-Governor in Council sees fit to submit any such question,

may be referred by the Lieutenant-Governor in Council to the Court of Appeal for hearing and consideration, and any question touching any of the matters aforesaid, so referred by the Lieutenant-Governor in Council, shall be conclusively deemed to be an important question.

It will be observed that the Lieutenant-Governor in Council may refer questions touching the powers of the Legislature of the Province or the Government thereof “whether or not the particular power in question has been or is proposed to be exercised”.

Section 23(1) empowers a reference on the constitutionality or interpretation of any Canadian or provincial legislation. There is, however, no such legislation here, and it is a nice question whether proposed legislation of Parliament can be embraced unless it is subsumed under one of the other powers in s. 23(1), for example the interpretation of the British North America Act, now the Constitution Act, 1867. The constitutional propriety of provincial legislation which invites the placing before the provincial courts of questions concerning the constitutionality of existing or pending

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federal legislation was not argued by any counsel before this Court and we expressly refrain from comment on such issue.

The first thing the Court has to decide then is whether we have been provided with an adequate base on which to answer the Lieutenant-Governor’s questions. Stripped to their essentials the questions are:

(1) Can Parliament confer exclusive jurisdiction to try all indictable offences under the Criminal Code on a new court whose judges are appointed by the province?

(2) Can Parliament do this if the new provincial court has concurrent jurisdiction with the New Brunswick Superior Courts?

(3) Can the New Brunswick Legislature constitute and appoint the judges to the new court if that court has either exclusive or concurrent jurisdiction?

This Court has from time to time refused to answer reference questions when it considered them lacking in specificity. The first such instance was Re The Educational System in the Island of Montreal, 1926 CanLII 67 (SCC), [1926] S.C.R. 246 (the Montreal Schools case). In that case the Quebec Legislature had passed An Act to amend the law concerning education, with respect to persons professing the Jewish religion. The Act provided, inter alia, that “persons professing the Jewish religion shall, for school purposes, be treated in the same manner as Protestants”. Numerous constitutional questions were submitted to the Quebec Court of Appeal. One of the questions was this:

Can the provincial legislature pass legislation providing that persons professing the Jewish religion be appointed: (a) To the Protestant Board of School Commissioners of the city of Montreal; or (b) To the Protestant Committee of Public Instruction; or (c) As advisory members of these bodies?

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On appeal from the decision of the Quebec Court of Appeal, this Court answered parts (a) and (b) of Question 3, but as to part (c) it said (at p. 270):

This question can be answered only when the powers and duties of such advisory members shall have been defined.

In Reference re Waters and Water-Powers, 1929 CanLII 72 (SCC), [1929] S.C.R. 200 (the Water-Powers case), a Reference from the Governor General in Council, this Court declined to answer several questions, for example:

Question 2: Where the bed of a navigable river is vested in the Crown in the right of the province, has the Dominion power, for navigation purposes, to use or occupy part of such bed or to divert, diminish, or change the flow over such bed (a) without the consent of the province; (b) without compensation?

Question 3: Has the Parliament of Canada the power, by appropriate legislative enactment, to authorize the Dominion Government to expropriate the lands of the Crown in the right of the province for the purposes of navigation with provision or without provision for compensation?

Duff J. explained why the Court could not reply to these questions “categorically” (at p. 224):

…it is impossible to affirm, in respect of every “navigation purpose”, within the purport of these questions that the authority in relation thereto, whether derived from s. 92(10) and s. 91(29) or from one of the other heads of s. 91—whether within the exclusive sphere of the Dominion Parliament, or only referable to its incidental or ancillary powers—invests the Dominion with the right to override by its legislation the proprietary rights of the provinces.

There is no general formula for deciding whether or not, in respect of any such given purpose, the nature of the Dominion authority imports the existence of such a right. That can only be determined after an examination of the nature of the purpose, the character of the power invoked and the character of the means proposed to be employed in order to effectuate the purpose.

The Court also refused to answer questions 6(a) and 6(b) for the reasons given in the headnote.

The second part of question 8 read:

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In the case of river flowing between two provinces may such provinces jointly control, regulate and use the water in the same manner?

The Court replied (at p. 203):

As to the second branch, considering the variety of meanings which might attach to the phrase “jointly control, regulate or use”, no precise or useful answer is possible.

In Reference re Angliers Railway Crossing, 1937 CanLII 51 (SCC), [1937] S.C.R. 451, this Court was concerned with certain questions of law submitted by way of stated case by the Board of Railway Commissioners for Canada pursuant to s. 43 of the Railway Act. The municipality of St. Eugène de Guigues, Quebec, had applied for a level crossing over the Canadian Pacific Railway tracks at Angliers. The Board of Railway Commissioners had authority to apportion the cost of such projects between the municipality and the railway. The determining circumstance, under the practice of the Board, was “seniority”, by which was meant, apparently, that when the railway was constructed on land over which the public had a right of passage the cost of the works necessary to provide a highway crossing fell upon the railway; while, if, when the railway was constructed, there were no such rights of passage, the cost of the works was borne by the municipality. The third question submitted to this Court was:

Whether the Chief Commissioner was right in holding that the railway company occupies a position of seniority in respect of the railway crossing, the subject of this application.

Referring to the Board’s “practice” of apportioning costs on the “seniority” basis, Duff C.J. explained the Court’s reason for declining to answer this question (at p. 455):

I do not profess to be stating with accuracy or completeness the practice of the Board; and, indeed, one of the questions submitted to us would seem to indicate that the practice is not so definitely settled as to enable one, with confidence, to sum it up in a precise rule.

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It is, perhaps, unnecessary to say that it is not part of the functions of this Court to define that practice. Accordingly, we shall not attempt to do so, and no answer will be given to the third question.

The most recent example of this Court declining to answer a reference question occurred in Re Authority of Parliament in Relation to the Upper House, 1979 CanLII 169 (SCC), [1980] 1 S.C.R. 54 (the Senate reference). In that case the Governor General in Council asked this Court to determine whether Parliament, without the consent of the provinces, had authority to repeal the sections of the British North America Act referring to the Senate, and to enact legislation altering or providing a replacement for the Senate. The Court held that Parliament could not repeal the relevant sections of the British North America Act; that it could not enact legislation to change the numbers and proportions of members by whom provinces and territories are represented in the Upper House; that it could not provide for the direct election of all or some of the members of the Upper House; and that it could not provide that bills approved by the House of Commons could be given assent and the force of law after the passage of a certain period of time notwithstanding that the Upper House has not approved them. The Court declined, however, to answer the following question:

2. Is it within the legislative authority of the Parliament of Canada to enact legislation altering, or providing a replacement for, the Upper House of Parliament, so as to effect any or all of the following:

(a) to change the name of the Upper House;

(c) to change the qualifications of members of that House;

(d) to change the tenure of members of that House;

(e) to change the method by which members of that House are chosen by

(i) conferring authority on provincial legislative assemblies to select, on the nomination of the respective Lieutenant Governors in Council, some members of the Upper House, and, if a legislative

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assembly has not selected such members within the time permitted, authority on the House of Commons to select those members on the nomination of the Governor General in Council, and

(ii) conferring authority on the House of Commons to select, on the nomination of the Governor General in Council, some members of the Upper House from each province, and, if the House of Commons has not selected such members from a province within the time permitted, authority on the legislative assembly of the province to select those members on the nomination of the Lieutenant Governor in Council,

(iii) conferring authority on the Lieutenant Governors in Council of the provinces or on some other body or bodies to select some or all of the members of the Upper House, or

As to sub-question 2(a) which asks whether Parliament could change the name of the Senate the Court said (at p. 76):

We would assume that a change of name would be proposed only as a part of some scheme for the alteration of the Senate itself. If that scheme were to be held ultra vires of Parliament, then the change of name would probably go with it. We do not think the question can properly be answered in the absence of such a context.

As to sub-question 2(c) dealing with changes to the qualifications of Senators the Court said:

The difficulty here is that we have not been told what changes are contemplated. Some of the qualifications for senators prescribed in s. 23, such as the property qualifications, may not today have the importance which they did when the Act was enacted. On the other hand, the requirement that a senator should be resident in the province for which he is appointed has relevance in relation to the sectional characteristic of the make-up of the Senate. In our opinion, the question cannot be answered categorically.

As to sub-question 2(d) dealing with the tenure of senators, the Court said “to answer this question we need to know what change of tenure is proposed” (at p. 77). As to sub‑question 2(e)(i)(ii)(iii) the Court said:

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Sub-question (e), paragraphs (i), (ii), and (iii), contemplates changing the method of appointment of senators, presently the function of the Governor General, by having “some” members selected by provincial legislatures, “some” members by the House of Commons, “some” members selected by the Lieutenant Governor in Council or “some other body or bodies”. The selection of senators by a provincial legislature or by the Lieutenant Governor of a province would involve an indirect participation by the provinces in the enactment of federal legislation and is contrary to the reasoning of this Court in the Lord Nelson Hotel case previously cited.

Again, we do not feel that we have a factual context in which to formulate a satisfactory answer.

See also Attorney-General for Manitoba v. Manitoba Egg and Poultry Association, 1971 CanLII 135 (SCC), [1971] S.C.R. 689; Reference re Regulation and Control of Aeronautics in Canada, 1930 CanLII 79 (SCC), [1930] S.C.R. 663, and In Re Marriage Laws (1912), 1912 CanLII 35 (SCC), 46 S.C.R. 132, wherein a majority of the judges either felt bound to, or found it unnecessary to, answer certain questions while a minority thought the questions should not be answered.

In Re Resolution to amend the Constitution, 1981 CanLII 25 (SCC), [1981] 1 S.C.R. 753, the Chief Justice and Estey and McIntyre JJ., relying on the Water-Powers case gave this statement of the law (at p. 851):

Where there is ambiguity, or where questions are phrased in such general terms that a precise answer is difficult or impossible to give, the Court may qualify the answers, answer in general terms, or refuse to answer.

In two instances, the Senate Reference and the Water-Powers case, the Court refused to answer questions referred by the federal government; in one instance, the Montreal Schools case, the Court refused to answer a question referred by a provincial government to the provincial court of appeal; in the fourth example the Court refused to answer a question referred by the Board of Railway Commissioners.

While we deprecate the practice of bringing before the Court as important constitutional questions as are raised in this case on extremely flimsy

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material, we would not abort the appeal on this ground. We believe for the reasons which follow that the Court has enough of the essential features of the proposed scheme to be compelled to the conclusion that all three questions must be answered in the negative.

2. The Reasons of the New Brunswick Court of Appeal

The Attorney General of New Brunswick outlined the proposed scheme for the New Brunswick Court of Appeal as follows:

The proposal envisages a new court constituted to accept and to exercise complete criminal jurisdiction: Dealing exclusively with all criminal law matters, including criminal code offences, other federal offences and provincial offences. This court would replace the present Provincial Court and its judges would be appointed by the Lieutenant‑Governor in Council. It would not be constituted by the Legislature as a superior court and it would exercise statutory jurisdiction only.

Amendments to the Criminal Code and other federal statutes would be requested of the Parliament of Canada to confer jurisdiction in criminal matters upon the new court. The implementation of the proposal thus is conceived as a blending of the authority of the two legislative bodies.

The New Brunswick Court of Appeal had no difficulty in concluding that because the Parliament of Canada had plenary authority in relation to the criminal law under s. 91(27) of the Constitution Act, 1867 it was fully empowered to endow a provincially-established provincial Court presided over by a provincial appointee with power to administer the federal criminal law and to do so exclusively as well as concurrently with existing s. 96 provincial Superior Courts. Relying on Re Vancini (1904), 1904 CanLII 72 (SCC), 34 S.C.R. 621 and on Papp v. Papp, 1969 CanLII 219 (ON CA), [1970] 1 O.R. 331, and drawing in aid the British Columbia judgment in Nanaimo Community Hotel v. Board of Referees, 1945 CanLII 302 (BC CA), [1945] 3 D.L.R. 225, it supported affirmative answers to questions 1 and 2, rejecting an adverse argument based on s. 96 of the Constitution Act, 1867.

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Hughes C.J.N.B., speaking for the New Brunswick Court, noted that neither O. Martineau & Sons, Ld. v. City of Montreal, 1931 CanLII 387 (UK JCPC), [1932] A.C. 113 nor Toronto Corporation v. York Corporation, 1938 CanLII 252 (UK JCPC), [1938] A.C. 415, both judgments of the Privy Council, assisted the argument on s. 96 against affirmative answers to questions 1 and 2 because in those cases the issue as to s. 96 concerned provincial competence to vest judicial power in a provincial Court or tribunal and did not prohibit the action here proposed when taken by the Parliament of Canada in the exercise of its exclusive power.

The New Brunswick Court rejected a statement on s. 96 in an article on that subject by Professor John Willis (“Section 96 of The British North America Act”, (1940) 18 Can. Bar Rev. 517, at p. 523) where he said this:

It is ultra vires a provincial legislature “to take away (the whole of) the jurisdiction of a Court presided over by a Judge appointed by Federal authority and transfer that jurisdiction to a Judge (or other officer) appointed by the Provincial Executive”, for such legislation is an indirect method of appointing a Judge of a Superior, District or County Court.

The New Brunswick Court gave the following answer to this s. 96 objection, saying:

In my opinion the conclusion so stated has no application where as here the court to be established is one which would derive its powers and jurisdiction from Parliament under s. 91(27). The establishment of the proposed Court would not create a situation where the Provincial Legislature was purporting to “take away the jurisdiction of a Judge appointed by Federal authority and transfer that jurisdiction to a judge of a Court appointed by the Provincial Executive”. Any transfer of jurisdiction to the proposed court could be made only by Parliament.

The New Brunswick Court of Appeal also rejected an argument (one that was repeated in this Court) that there was a core of exclusive criminal jurisdiction inherent in Superior Courts by virtue of s. 96, jurisdiction which cannot be conferred upon an inferior court administered by provincial appointees. Reliance was placed upon

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Valin v. Langlois (1879), 3. S.C.R. 1 and especially upon the reasons of Taschereau J. at p. 74 of the case. (We shall return to this case later in these reasons). What the New Brunswick Court of Appeal emphasized was that criminal jurisdiction was not frozen at Confederation and, indeed, Parliament had since that time altered the jurisdiction of the Courts of criminal jurisdiction and that this Court had affirmed the power of Parliament to confer upon or remove from any court any criminal jurisdiction as it may deem proper. In short, the New Brunswick Court did not see any constitutional limitation upon Parliament arising under s. 96; only provincial Legislatures were under its control.

The answer to question 3 gave the New Brunswick Court little difficulty. It said this:

…the Legislature of each of the Provinces has exclusive jurisdiction to make laws respecting the constitution, maintenance and organization of provincial courts of both civil and criminal jurisdiction. It follows that a Legislature may establish a so-called Court of Unified Criminal Jurisdiction, to exercise such jurisdiction to try all or any indictable offences and other matters as may be conferred upon it by the Parliament of Canada, whether that power is conferred upon such court exclusively and concurrently with courts whose judges are appointed under authority of s. 96 of the B.N.A. Act.

3. The Other Side of the Issue

There is no doubt that jurisdiction to try indictable offences was part of the Superior Court’s jurisdiction in 1867; none of the parties suggests otherwise. Nor does anyone argue that inferior courts had concurrent jurisdiction to try indictable offences in 1867. Although this fact is not conclusive (see Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714) none of the other considerations which might save the scheme from the force of s. 96 apply here. The proposed court is obviously a judicial body; its judicial aspect does not change colour when considered in the factual setting in which the court will operate; nor will the court exercise administrative powers to which its adjudicative functions are incidental. The proposed

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body is clearly and only a criminal court.

The questions posed for decision leave open many matters which cannot be ignored when it is intended to replace provincial Superior Courts in the administration of the criminal law, including indictable offences. We have alrady raised the question whether unreviewable authority is to be given to the new provincial court in the proposed grant of exclusive jurisdiction or, at best, only a statutory right of appeal. Unreviewable authority might put the provincially-established Court and its provincially-appointed Judges in a s. 96 position notwithstanding that its jurisdiction comes from Parliament. The Crevier case, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, might be considered as apt.

We do not intend to pursue this here, nor do we intend to pursue such questions as whether mandamus, prohibition or certiorari, or their present-day equivalents, are still to be available before the provincial Superior Courts. It must be remembered that those writs take their colour from the issues to which they are addressed: see In re Storgoff, 1945 CanLII 17 (SCC), [1945] S.C.R. 526; Re Rex v. Thompson, 1946 CanLII 115 (ON CA), [1946] O.R. 560; R. v. Marathon Paper Mills of Canada Ltd., 1947 CanLII 57 (ON CA), [1947] O.R. 532. If the provincial Superior Courts are to be denuded of all criminal law jurisdiction, would the above-mentioned writs still be within their authority?

What is proposed in the New Brunswick proposals is the establishment of a statutory Court. As distinguished from what? Certainly not from existing provincial courts which must be fed criminal jurisdiction by federal legislation. No doubt, however, to separate the new Court from provincial Superior Courts. Will that help or advance the matter if functional considerations have to be considered? It has long been the rule that s. 96, although in terms an appointing power, must be addressed in functional terms lest its application be eroded. What then, is the relation between the proposed new statutory Court and s. 96? This is the key constitutional issue in the present case and,

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as we view the matter, the result is to defeat the new statutory Court because it will effectively be a s. 96 Court.

Sections 96, 97, 98, 99 and 100 are couched in mandatory terms. They do not rest merely on federal statutory powers as does s. 91(27). This is how they read:

VII. JUDICATURE

96. The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those on 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.

99. (1) Subject to subsection (2) of this 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 the seventy-five years, or upon the coming into force of this section if at that time he has already attained that age.

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 for the Time being paid by Salary, shall be fixed and provided by the Parliament of Canada.

What is being contemplated here is not one or a few transfers of criminal law power, such as has already been accomplished under the Criminal Code, but a complete obliteration of Superior Court criminal law jurisdiction. Sections 96 to 100

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do not distinguish between courts of civil jurisdiction and courts of criminal jurisdiction. They should not be read as permitting the Parliament of Canada through use of its criminal law power to destroy Superior Courts and to deprive the Governor General of appointing power and to exclude members of the Bar from preferment for Superior Court appointments.

Parliament can no more give away federal constitutional powers than a province can usurp them. Section 96 provides that “The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province”. The proposal here is that Parliament transfer the present Superior Courts’ jurisdiction to try indictable offences to a provincial court. The effect of this proposal would be to deprive the Governor General of his power under s. 96 to appoint the judges who try indictable offences in New Brunswick. That is contrary to s. 96. Section 96 bars Parliament from altering the constitutional scheme envisaged by the judicature sections of the Constitution Act, 1867 just as it does the provinces from doing so.

The traditional independence of English Superior Court judges has been raised to the level of a fundamental principle of our federal system by the Constitution Act, 1867 and cannot have less importance and force in the administration of criminal law than in the case of civil matters. Under the Canadian constitution the Superior Courts are independent of both levels of government. The provinces constitute, maintain and organize the Superior Courts; the federal authority appoints the judges. The judicature sections of the Constitution Act, 1867 guarantee the independence of the Superior Courts; they apply to Parliament as well as to the Provincial Legislatures.

Both sides of the proposal under review are flawed. Parliament cannot in effect give away the Governor General’s s. 96 appointing power under colour of legislation vesting jurisdiction to try all

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indictable offences in a provincial court. New Brunswick cannot exercise an appointing power in respect of courts with s. 96 jurisdiction under colour of legislation in relation to the constitution, maintenance and organization of courts with criminal jurisdiction.

Nor is much gained for the proposed new provincial statutory Court by providing for concurrent Superior Court jurisdiction. The theory behind the concurrency proposal is presumably that a Provincial court with concurrent rather than exclusive powers would not oust the Superior Courts’ jurisdiction, at least not to the same extent; since the Superior Courts’ jurisdiction was not frozen as of 1867, it would be permissible to alter that jurisdiction so long as the essential core of the Superior Courts’ jurisdiction remained; s. 96 would be no obstacle because the Superior Court would retain jurisdiction to try indictable offences. With respect, we think this overlooks the fact that what is being attempted here is the transformation by conjoint action of an inferior court into a superior court. Section 96 is, in our view, an insuperable obstacle to any such endeavour.

We wish before ending these reasons to say a word about Valin v. Langlois to which we referred earlier. The case concerned a federal controverted election petition, and federal legislation had assigned authority to try such issues in provincial Superior Courts. There was no doubt of Parliament’s power to make the assignment, when it was concerned with legal issues which fell within its legislative jurisdiction. The issues there were widely canvassed by the Court, and particular attention was paid by the New Brunswick Court of Appeal in this case to ascertain views expressed by Taschereau J. He said this at pp. 74-75:

…I think that to decide that the Federal Parliament can never or in any way add to or take from the jurisdiction of the Provincial Courts, would be curtailing its powers to an extent, perhaps, not thought of by the Appellant, and that it would destroy, in a very large measure, the rights and privileges which are given to the

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federal power by sections 91 and 101 of the Act. I take, for one instance, the criminal law. The constitution, maintenance and organization of Provincial Courts of criminal jurisdiction is given to the Provincial Legislatures, as well as the constitution, maintenance and organization of courts of civil jurisdiction, yet, cannot Parliament, in virtue of section 101 of the Act, create new courts of criminal jurisdiction, and enact that all crimes, all offences shall be tried exclusively before these new courts? I take this to be beyond controversy.

Yet, would not that be altering, diminishing, in fact, taking away all the Provincial Criminal Court’s jurisdiction?

With great respect, we do not accept these obiter observations as governing the proposed transfer of criminal law power from the provincial Superior Courts to a new provincial statutory Court presided over by a provincial appointee. There is, in our view, a cardinal difference between mere alteration or diminution of criminal jurisdiction and complete exclusion of such jurisdiction. Insofar as this latter point was taken by Taschereau J., we find it unacceptable.

It is hardly necessary to say that the proposed provincial scheme is not saved by preserving civil jurisdiction for the provincial Superior Courts.

We have taken perhaps a limited view of the important issues that are thrown up by the three referred questions but, having decided to address them, we felt it best to consider only those provisions of the Constitution which we think are beyond conjoint provincial and federal action.

We would, therefore, allow the appeal and answer all three questions in the negative. There will be no order as to costs.

Appeal allowed; the three questions were answered in the negative.

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Solicitor for the appellant: John P. McEvoy, Fredericton.

Solicitor for the respondent the Attorney General for New Brunswick: The Attorney General for New Brunswick, Fredericton.

Solicitor for the respondent the Attorney General of Canada: Roger Tassé, Ottawa.