MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725

J.P. Appellant

v.

MacMillan Bloedel Limited Respondent

and

The Attorney General of British Columbia Respondent

and

The Attorney General of Canada Intervener

Indexed as: MacMillan Bloedel Ltd. v. Simpson

File No.: 24171.

1995: June 12; 1995: December 14.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for british columbia

Constitutional law ‑‑ Courts ‑‑ Transfer of superior court powers to inferior tribunal ‑‑ Youth courts granted exclusive jurisdiction to try youths for ex facie contempt of superior courts ‑‑ Whether exclusive grant of jurisdiction constitutional ‑‑ Constitution Act, 1867, s. 96 ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, s. 47(2).

The appellant, a young person, contravened an injunction of the British Columbia Supreme Court prohibiting protest activities interfering with the respondent's logging operations in the Clayoquot Sound area of Vancouver Island. He was charged with contempt of court and, at trial, made an application to be tried in youth court pursuant to s. 47(2) of the Young Offenders Act. This section states that exclusive jurisdiction over ex facie contempt of court committed by a young person is transferred to the youth court. The application was dismissed and the appellant was later convicted and sentenced to 45 days' imprisonment and a fine. He appealed his conviction on the ground that the British Columbia Supreme Court had no jurisdiction to try him. The Court of Appeal upheld the conviction. The court found s. 47(2) unconstitutional, concluding that the contempt power is within the core jurisdiction of the superior courts and that it is beyond the jurisdiction of Parliament to remove any part of it from those courts. The main issue in this appeal is whether Parliament, pursuant to its criminal law power, can confer upon youth courts the exclusive power to try youths for contempt ex facie of superior courts.

Held (L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier and Cory JJ.: This Court's approval of the Young Offenders Act in Reference re Young Offenders Act does not preclude a separate analysis of whether a particular provision of that Act meets constitutional requirements. That case left open the specific question of whether individual provisions of the Young Offenders Act may offend s. 96 of the Constitution Act, 1867 even though the overall scheme of the Young Offenders Act does not. To determine the validity of the transfer of power in question in this case, a two‑stage analysis is required: first, using the Residential Tenancies test, the Court must decide whether the grant of jurisdiction is permissible; second, if it is, it must decide whether the superior court's jurisdiction can be ousted. The second stage of the analysis only arises when the core or inherent jurisdiction of superior courts is affected. That jurisdiction is integral to their operations and no part of it can be removed by either level of government in the absence of a constitutional amendment.

The history of contempt of court, academic commentary, and the overall scheme of the Criminal Code and the Young Offenders Act all reinforce the view that criminal contempt of court has distinct characteristics from other crimes. The dispute is one between the individual and the court itself. Ex facie criminal contempt of superior courts committed by youths has some aspects of a crime and some aspects of a sui generis court power. To reflect both these aspects, the jurisdiction transferred by s. 47(2) of the Young Offenders Act should be characterized as the power to punish youths for ex facie contempt of a superior court. Once s. 47(2) is properly characterized, the three‑part test outlined in the Residential Tenancies case shows that this power or jurisdiction may be constitutionally given to an inferior court. Although the power to punish youths for ex facie contempt of superior courts was within the jurisdiction of superior courts at Confederation and this power obviously remains judicial in nature even in its new institutional setting, when one considers the institutional function of the youth courts, a transfer of this power is permissible. The policy objectives of the youth court system are clear and laudable. Our society wishes to establish different treatment for youths accused of criminal offences than for adults. Youth courts have an expertise in providing procedural protections appropriate for youths and in deciding punishments for convicted young offenders. The power to punish youths for ex facie contempt of superior courts is merely ancillary to these primary functions. Accordingly, granting jurisdiction to punish youths for ex facie contempt of superior courts does not infringe s. 96 of the Constitution Act, 1867.

This jurisdiction, however, cannot be granted to the youth court to the exclusion of provincial superior courts. Although the inherent jurisdiction of superior courts is difficult to define, there is no doubt that the power to punish for all forms of contempt is within that jurisdiction. The rule of law requires a judicial system that can ensure that its orders are enforced and its process respected. The provincial superior court is the only court of general jurisdiction in Canada. To remove the power to punish contempt ex facie by youths would maim the institution which is at the heart of our judicial system. Such an alteration is impermissible in Canada in the absence of a constitutional amendment. Thus, in light of its importance to the very existence of a superior court, no aspect of the contempt power may be removed from a superior court without infringing our Constitution and the principle of the rule of law recognized both in the preamble to the Constitution Act, 1867 and in all our conventions of governance. It will, in most instances, be preferable for the youth court to try and punish a youth in ex facie contempt of a superior court, but the provincial superior court's jurisdiction cannot be ousted. It will always be for the superior court to elect whether to hold contempt proceedings against a youth in order to exert control over its process, or to defer to the youth court. In addition, in cases where the youth court does proceed against a youth for contempt ex facie of a superior court, the provincial superior court retains its supervisory power to ensure that the lower court's disposition of the matter is correct.

Section 47(2) of the Young Offenders Act is therefore unconstitutional to the extent that it purports to confer exclusive jurisdiction on the youth court and to deprive a superior court of general jurisdiction of its ex facie contempt power. Section 47(2) is valid to the extent that it confers jurisdiction on the youth court. The section should be read down accordingly. Section 47(2) is thus inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case.

Per L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ. (dissenting): The three‑step test outlined in Residential Tenancies is the appropriate approach in determining whether a transfer of power from a s. 96 court to an inferior court is valid. The test permits only incidental derogations of powers from s. 96 courts, and then only to the extent that the judicial nature of such powers is transformed by the administrative context in which they are exercised. By focusing on the function of the power in the administrative context rather than the nature of the power conferred, this test provides sufficient flexibility to equip administrative tribunals with the powers they need to do their work, while preserving the constitutional position of the s. 96 courts. There is no need for an additional condition that the transfer not involve any aspect of the "core" inherent powers of the superior court. The proposed "core test" needlessly derogates from the functional approach of the Residential Tenancies test, making a shift toward a more categorical approach. This new test would amount to an important new fetter on the ability of Parliament and the provincial legislatures to create effective tribunals to ensure compliance with regulatory schemes.

The conferral of exclusive power over ex facie contempt of the court committed by juveniles on the youth court, and its removal from s. 96 courts, brings this case directly within the ambit of the Residential Tenancies test. There is nothing exceptional in the exclusive nature of the transfer of the s. 96 power to the inferior tribunal. If an administrative scheme is to operate effectively with a minimum of procedural confusion, it is typically essential that the tribunal have exclusive power to decide the matters at issue.

Further, the inherent power of superior courts to regulate their process does not preclude elected bodies from enacting legislation affecting that process. The court's inherent powers exist to complement the statutory assignment of specific powers, not override or replace them. Courts must conform to the rule of law and, while they can exercise more power in the control of their process than is expressly provided by statute, they must generally abide by the dictates of the legislature. It follows that Parliament and the legislatures can legislate to limit and define the superior courts' inherent powers, including their powers over contempt, provided that the legislation is not otherwise unconstitutional. Parliament may thus enact s. 47(2) of the Young Offenders Act, provided that the conditions of the Residential Tenancies test are met.

The functional approach of the Residential Tenancies test is adequate to protect the s. 96 courts. Transfers of s. 96 jurisdiction to inferior tribunals have not ousted the power of the superior courts. These courts still have their rights of review of inferior tribunals' decisions and ensure that the law is followed and fair process maintained. Moreover, the facts of this case do not support the contention that powers essential to the proper functioning of s. 96 courts are in danger of being eroded. What is essential to maintaining the authority of a court is that consequences attach to the disobedience of its order, not the source of those consequences. Ex facie contempt of court is generally prosecuted, like any other crime, by the Attorney General, who gathers the evidence and presents the case to the court, and the youth court is just as able to protect the validity and efficacy of a superior court order as is the superior court. If the youth court errs, or fails to proceed where it should, it is subject to the corrective power of the superior court on judicial review or of the Court of Appeal on appeal. The superior court itself may initiate proceedings by referring a charge of ex facie contempt of court to the youth court. More importantly, the residual inherent jurisdiction of the superior courts to take such measures as may be required to preserve their process guarantees that the process of the superior courts will not be undermined by a transfer of juvenile contempt of court ex facie to the youth courts. Should the administration of justice require that a particular case be tried in superior court, that court possesses the inherent power to hold such a trial. Where the use of a legislative provision or rule of court would itself amount to an abuse of the court's process, the court may invoke its inherent jurisdiction to ensure that justice is done. Section 47(2) of the Young Offenders Act is no exception. That section, however, poses no threat to the authority of the superior courts. In leaving the power to try youths for in facie contempt of court with the superior courts, Parliament has carefully considered and weighed what is necessary to permit the superior courts to preserve their authority.

Parliament's transfer of contempt of court ex facie by youths from the s. 96 superior courts to the youth courts is valid. The test for transfer laid down in Residential Tenancies is met and this test alone suffices to determine this appeal. The power was historically possessed by s. 96 courts, it is judicial, and it is merely ancillary to the larger role of the youth courts in relation to the special problems and needs of young offenders. Since the constitutionality of s. 47(2) of the Young Offenders Act has not been successfully challenged, it follows that the appellant should have been tried in youth court. His conviction in superior court should be set aside and the charges remitted to youth court for trial.

Cases Cited

By Lamer C.J.

Applied: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; considered: Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; referred to: Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; R. v. Vermette, [1987] 1 S.C.R. 577; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394; British Columbia (Attorney‑General) v. Mount Currie Indian Band (1991), 64 C.C.C. (3d) 172.

By McLachlin J. (dissenting)

Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Toronto v. York, [1938] A.C. 415; Reference re Adoption Act, [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134; Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112; City of Mississauga v. Regional Municipality of Peel, [1979] 2 S.C.R. 244; Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Glover v. Glover (No. 1) (1980), 113 D.L.R. (3d) 161, aff'd [1981] 2 S.C.R. 561; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 9 [rep. & sub. c. 27 (1st Supp.), s. 6]; 127(1), 484 [am. c. 27 (1st Supp.), s. 203], 486(1) [idem], (4) [rep. & sub. c. 23 (4th Supp.), s. 1], (5), 605(2) [am. c. 27 (1st Supp.), s. 203], 708(1).

Constitution Act, 1867, ss. 91(27), 92(14), 96, 97 to 101, 129.

Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 2(1) "offence", 5(1), 47.

Authors Cited

Borrie and Lowe's Law of Contempt, 2nd ed. By Nigel Lowe. Consultant Editor, Sir Gordon Borrie. London: Butterworths, 1983.

Cromwell, T. A. "Aspects of Constitutional Judicial Review in Canada" (1995), 46 S.C. L. Rev. 1027.

Fox, Sir John C. The History of Contempt of Court: The Form of Trial and the Mode of Punishment. London: Professional Books Ltd., 1972.

Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.

Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23.

Mason, Keith. "The Inherent Jurisdiction of the Court" (1983), 57 A.L.J. 449.

Miller, Christopher J. Contempt of Court. Oxford: Clarendon Press, 1989.

Popovici, Adrian. L'outrage au tribunal. Montréal: Thémis, 1977.

APPEAL from a judgment of the British Columbia Court of Appeal (1994), 90 B.C.L.R. (2d) 24, 113 D.L.R. (4th) 368, 89 C.C.C. (3d) 217, 21 C.R.R. (2d) 116, 43 B.C.A.C. 1, 69 W.A.C. 1, dismissing the young person's appeal from his conviction for contempt of court (1993), 12 C.E.L.R. (N.S.) 81. Appeal dismissed, L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ. dissenting.

Marilyn E. Sandford, for the appellant.

Peter W. Ewert, Q.C., for the respondent the Attorney General of British Columbia.

John R. Haig, Q.C., for the intervener.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier and Cory JJ. was delivered by

Lamer C.J. --

I. Introduction

[1] This case requires us to decide whether Parliament, pursuant to its criminal law power, can confer upon youth courts the exclusive power to try youths for contempt ex facie of superior courts. To put the question another way, must superior courts retain the power to try charges of contempt, both in facie and ex facie. The problematic aspect of the impugned legislative provision is precisely the exclusivity of the grant of jurisdiction. The historical evolution of the provincial superior courts and their importance to our constitutional structure require that these superior courts retain the full range of their inherent contempt powers. While it need not have exclusive jurisdiction, curbing the power of a superior court to control its own process alters its essence, making it something less than a superior court. Such an alteration is impermissible in Canada in the absence of a constitutional amendment.

[2] To resolve this issue we must consider both whether the grant of jurisdiction to the youth court is permissible and whether removing the corresponding jurisdiction from the superior court is equally so. The jurisprudence concerning s. 96 of the Constitution Act, 1867 gives guidance in considering the grant of jurisdiction. The removal of jurisdiction is better analyzed in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of the superior courts in our system of governance.

II. Constitutional Question

[3] The following constitutional question was stated:

Is it within the jurisdiction of Parliament to grant exclusive jurisdiction to youth courts, through the operation of s. 47(2) of the Young Offenders Act, R.S.C., 1985, c. Y-1, over contempt of court committed by a young person against a superior court otherwise than in the face of that court?

III. Factual Background

[4] On July 19, 1993, the appellant was arrested and charged with contempt of court while participating in protest activities in the Clayoquot Sound area of Vancouver Island. Along with many others, a large number of whom were also arrested, the appellant stood on a logging road and refused to move thus preventing employees of MacMillan Bloedel Limited from reaching their job sites. This activity contravened an injunction of the British Columbia Supreme Court ordering that MacMillan Bloedel's operations not be obstructed. The appellant was 17 years old at the time of his arrest.

[5] At trial, counsel for the appellant made an application for him to be tried in youth court. Bouck J., relying on the decision in British Columbia (Attorney-General) v. Mount Currie Indian Band (1991), 64 C.C.C. (3d) 172 (B.C.S.C.), dismissed this application. The appellant was convicted on October 6, 1993, and on October 13, 1993, was sentenced to 45 days' imprisonment and a $1000 fine: (1993), 12 C.E.L.R. (N.S.) 81 and 104.

IV. Statutory Provisions

[6] The impugned legislative provision in this case is:

Young Offenders Act, R.S.C., 1985, c. Y-1

47. . . .

(2) The youth court has exclusive jurisdiction in respect of every contempt of court committed by a young person against the youth court whether or not committed in the face of the court and every contempt of court committed by a young person against any other court otherwise than in the face of that court.

Other provisions relevant to resolving the case are:

Young Offenders Act

2. (1) In this Act,

"offence" means an offence created by an Act of Parliament or by any regulation, rule, order, by-law or ordinance made thereunder other than an ordinance of the Yukon Territory or the Northwest Territories;

5. (1) Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16, a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act.

Criminal Code, R.S.C., 1985, c. C-46

9. Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 736

(a)of an offence at common law,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

V. The British Columbia Court of Appeal

[7] The issue before this Court is but one of the many addressed in the Court of Appeal judgment. We denied leave to appeal with respect to the various other issues. The Court of Appeal was called upon to decide numerous questions pertaining to the joint contempt of court trial of 44 individuals who had defied the injunction. Thirty-one individuals appealed their convictions and another group appealed their sentences in a separate proceeding. While other trials arising from breaches of the same injunction were held later, J.P. was the only youth involved in this particular appeal. The British Columbia Court of Appeal unanimously upheld the contempt of court convictions: (1994), 90 B.C.L.R. (2d) 24, 113 D.L.R. (4th) 368, 89 C.C.C. (3d) 217, 21 C.R.R. (2d) 116, 43 B.C.A.C. 1, 69 W.A.C. 1. The sentence appeals were allowed to the extent that all fines were removed from the sentences: (1994), 47 B.C.A.C. 264.

[8] McEachern C.J.B.C. penned the reasons of the court. In response to the argument that J.P. should be tried before a youth court pursuant to s. 47(2) of the Young Offenders Act, he struck down s. 47(2) as unconstitutional. In his reasons, McEachern C.J.B.C., like Bouck J. at trial, followed the principles set out by Macdonald J. in Mount Currie Indian Band, supra. McEachern C.J.B.C. considered both the nature of the contempt power and the jurisprudence which recognizes that superior courts have a "core" or "inherent" jurisdiction that is beyond the reach of Parliament and the provincial legislatures in the absence of constitutional amendment. In particular, he noted the decisions of this Court in McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704, and in Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; the former for the proposition that the superior courts are independent of both levels of government and the latter for the principle that superior courts have a core jurisdiction which is, in McEachern C.J.B.C.'s words, "untouchable". Throughout his reasons, McEachern C.J.B.C. carefully separated criminal law jurisdiction from the contempt power of superior courts. He concluded that as the contempt power is within the core jurisdiction of the superior courts, no part of it can be transferred away from those courts to the youth courts.

VI. Analysis

[9] I agree in part with McEachern C.J.B.C.'s analysis, particularly with his consideration of the inherent jurisdiction of superior courts and the nature of the contempt power. Nonetheless, in keeping with my conclusion that the essence of the problem before us is the exclusivity of the grant of jurisdiction to the youth court, I find that our jurisprudence on this question mandates a two-part analysis. After reviewing our s. 96 jurisprudence, therefore, I will first consider whether this grant of jurisdiction can be made and next consider whether the superior court's jurisdiction can be ousted. The first inquiry involves examining the nature of the contempt power; the second necessitates elaboration of the inherent jurisdiction of superior courts and recognition of their importance to our constitutional structure.

A. The Section 96 Jurisprudence

[10] This Court's decision in McEvoy, supra, establishes that s. 96 of the Constitution Act, 1867, limits both Parliament and the provincial legislatures. Accordingly, the first analytic step is to consider the s. 96 jurisprudence to date to determine how that limitation takes effect.

[11] Writing for the Court in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, Dickson J. (as he then was) reviewed the s. 96 jurisprudence up to that time and fashioned its principles into a three-part test for determining which powers, under which circumstances, can be transferred to inferior courts or to administrative tribunals without infringing the guarantee of judicial independence which s. 96 has come to stand for. Dickson J. asserted that the judicature sections of the Constitution Act, 1867 limit the power of the provincial legislatures under s. 92(14) over the administration of justice in a province and provide a unifying force to the Canadian judicial system (at p. 728):

Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined.

After reviewing the jurisprudence, Dickson J. concluded that there was a general trend towards an increasingly broad test of constitutional validity, except in cases where the judicial function in question is isolated from the rest of the administrative structure of the legislation in question. Having thus stated his view of the purpose of the constitutional provisions and the directions in the jurisprudence, he elaborated the test which is now our standard for analysing grants of jurisdiction to tribunals not presided over by s. 96 judges.

[12] The first branch of the test is an historical inquiry into "whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation" (p. 734). He emphasizes that this phase involves a temporary isolation of the power or jurisdiction in question, which is to be considered in its context at the second and third stages of the test. Of course, if the power in question does not conform to one exercised by a superior court in 1867, the inquiry ends here. The second step asks whether the function in question is "judicial" in its institutional setting, and he contrasts "judicial" functions with policy making functions. The final branch of the test involves an assessment of the "tribunal's function as a whole in order to appraise the impugned function in its entire institutional context" (p. 735). Under this branch of the test it is permissible for administrative tribunals and inferior courts to exercise powers historically belonging to courts with s. 96 judges provided those judicial powers are "merely subsidiary or ancillary" to the general administrative functions assigned to the tribunal (at p. 736).

[13] Applying this three-part test to the legislative scheme set out in the Act before the Court, Dickson J. found that the creation of the Residential Tenancy Commission infringed s. 96. The legislation could not be saved by either the second or third branches of the test. In his analysis of the third branch, Dickson J. noted that the chief role of the Commission was not to administer policy or to carry out an administrative function. While the legislation aimed to address an acknowledged social problem, he stated (at p. 750):

. . . however worthy the policy objectives, it must be recognized that we, as a Court, are not given the freedom to choose whether the problem is such that provincial, rather than federal, authority should deal with it. We must seek to give effect to the Constitution as we understand it and with due regard for the manner in which it has been judicially interpreted in the past. If the impugned power is violative of s. 96 it must be struck down.

Following McEvoy, supra, this conclusion is equally applicable to devolution of powers to a federally created court or tribunal. Essential historic functions of superior courts cannot be removed from those courts and granted to other adjudicative bodies to meet social policy goals if the resulting transfer contravenes our Constitution.

[14] An important addition to the Residential Tenancies test was elaborated in Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238, where Wilson J. described the characterization of the transferred power as preliminary to the first or historical branch of the test. Considering that the second and third branches of the test are designed to preserve some grants of power despite the fact that the powers were within the exclusive jurisdiction of the superior courts at Confederation, Wilson J. concluded that the test requires a strict, or narrow, approach to characterization to prevent large accretions of power (at p. 254). As many present day remedies were not available in 1867, characterization should highlight the type of dispute rather than the type of remedy sought. She also states that the same characterization must be used at each stage of the test. The complexity of the characterization question is demonstrated in the Reference re Young Offenders Act case.

[15] The decision in Reference re Young Offenders Act is important to my analysis in this case both because it continues the development of the s. 96 jurisprudence and because it addresses in a broad manner the same Act which is before the Court now. I opened my analysis in Reference re Young Offenders Act by stating (at p. 264):

Section 96 of the Constitution Act, 1867 is regarded as a means of protecting the "core" jurisdiction of the superior courts so as to provide for some uniformity throughout the country in the judicial system. The case law has developed principles to ensure that s. 96 would not be rendered meaningless through the use of the provincial competence to constitute, maintain and organize provincial courts staffed with provincially appointed judges having the same jurisdiction and powers as superior courts.

. . . if the jurisdiction conferred on Youth Courts by Parliament is within the core of jurisdiction of superior courts, Parliament cannot confer such jurisdiction on courts presided over by judges not appointed in accordance with s. 96.

While there were three judgments in the case, none of my colleagues took issue with my statement of the law regarding the core jurisdiction of the superior courts. The superior courts have a core or inherent jurisdiction which is integral to their operations. The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution. Without this core jurisdiction, s. 96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of the judiciary. Furthermore, the power of superior courts to fully control their own process is, in our system where the superior court of general jurisdiction is central, essential to the maintenance of the rule of law itself. I discuss the contents and contours of the core jurisdiction below.

[16] The second aspect of the Reference re Young Offenders Act decision which figures in my analysis here is the precise issue which was determined at that time. In that case, four constitutional questions were addressed:

1.Is the Young Offenders Act . . . unconstitutional on the basis and to the extent that it does not specifically require that the Youth Court be presided over by a Judge appointed pursuant to s. 96 of the Constitution Act, 1867?

2.Is the establishment by a Province of a Youth Court as defined by s. 2 of the Young Offenders Act within the legislative competence of the Province pursuant to s. 92 of the Constitution Act, 1867?

3.(a)Is the appointment of a Youth Court Judge an appointment which must be made by the Governor in Council pursuant to s. 96 of the Constitution Act, 1867?

(b)If the answer to (a) is no,

(i) Can a Provincial Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?

(ii) Can a Supreme Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?

These questions demonstrate that our review of the legislation at the time was undertaken from a broad perspective in light of the overall policy aims of the Act. In particular, the focus of the inquiry was judicial appointments and the establishment of youth courts. Our approval of the Young Offenders Act at that time does not preclude a separate analysis in this case of whether a particular provision of that Act meets constitutional requirements.

[17] In addition, my characterization of the issue, which was accepted by my colleagues, stated (at p. 268):

I am of the view that the jurisdiction in issue here should be characterized as jurisdiction over young persons charged with a criminal offence. I do not mean to say that Youth Courts' jurisdiction is limited to criminal offences but I think it appropriate to limit the inquiry of this Court to the facts of this case. The Court has not had the benefit of hearing arguments on the jurisdiction of the superior and inferior courts on matters other than criminal offences, nor has the issue been examined in the factums. [Emphasis added.]

In the Young Offenders Act "offence" is defined as "an offence created by an Act of Parliament or by any regulation, rule, order, by-law or ordinance made thereunder other than an ordinance of the Yukon Territory or the Northwest Territories". As a common law provision, contempt of court is not, therefore, an offence within the meaning of the Act. On this strict interpretation, the Young Offenders Act decision cannot be said to preclude us from considering whether the contempt of court provisions of that Act offend s. 96. Reasoning more broadly, my characterization of the issue clearly stated that some aspects of the youth courts' jurisdiction were not considered by the Court at that time. Contempt of court powers granted by s. 47 of the Act were one of those aspects.

[18] The Reference re Young Offenders Act decision states explicitly that there is a core jurisdiction of superior court powers which cannot be removed by either level of government in the absence of a constitutional amendment. It also leaves open the specific question of whether individual provisions of the Act may offend s. 96 even though the overall scheme of the Act does not. While it was not required in that case, Reference re Young Offenders Act mandates a two-stage analysis in cases like the present. The first stage, following the jurisprudence of Residential Tenancies and Sobeys Stores, is to consider whether the grant of jurisdiction is permissible. The second stage, considering the emphasis on core jurisdiction in Reference re Young Offenders Act, is to decide whether the superior court's jurisdiction can be ousted. In other words, the second stage weighs whether an exclusive grant of jurisdiction is permissible.

B. Is the Grant of Jurisdiction Permissible?

(1) Characterization

[19] The first step in analysing whether a grant of jurisdiction infringes s. 96 is to properly characterize the provision in question. The provision here is not adequately described by the characterization I set out in Reference re Young Offenders Act. There the jurisdiction at stake was "jurisdiction over young persons charged with a criminal offence" (p. 268). In addition to being overly broad for this case, this characterization is inappropriate given the nature of criminal contempt of court. Unlike my colleague, I find that the history of contempt of court, academic commentary, and indeed the provisions of the Young Offenders Act and the Criminal Code, all reinforce the view that criminal contempt of court is unique among crimes. It may even be inappropriate to call it a crime. A careful consideration of the nature of criminal contempt of court is essential to properly characterizing the power being transferred by s. 47(2) of the Young Offenders Act.

[20] The authoritative history of contempt of court was written by Sir John Fox in 1927 (The History of Contempt of Court: The Form of Trial and the Mode of Punishment (reprinted 1972)). In his introductory remarks, he states that contempt of court has been a recognized phrase in English law from the twelfth century to the present time, and continues (at p. 1):

The punishment of contempt is the basis of all legal procedure and implies two distinct functions to be exercised by the Court: (a) enforcement of the process and orders of the Court, disobedience to which may be described as civil contempt', and (b) punishment of other acts which hinder the administration of justice, such as disturbing the proceedings of the Court while it is sitting (contempt in court) or libelling a Judge or publishing comments on a pending case (contempt out of court), which are both distinguished as criminal contempt'.

The distinction he draws between civil and criminal contempt does not precisely correspond with the distinction drawn in contemporary Canadian law, but this is of little import given the difficulties in establishing that distinction. He does note, also, that some contempts are both civil and criminal. Fox's work demonstrates that the punishment of contempt predated the development of criminal law.

[21] Discussing the law of contempt in England, which has been partially codified by the Contempt of Court Act 1981 (U.K.), 1981, c. 49, C. J. Miller states:

Although criminal contempt of court is a criminal offence punishable in the superior courts by an unlimited fine or a fixed period of imprisonment of up to two years it has many characteristics which distinguish it from ordinary crimes. Indeed these characteristics are so marked that criminal contempt may be said to be an offence sui generis.

(Contempt of Court (1989), at p. 5.)

Among the unique characteristics of contempt which Miller notes are the summary process by which some contempts are tried, the manner of initiating proceedings, how evidence is given, and sentencing. Borrie and Lowe also address the relationship between criminal contempt and other crimes:

In so far as contempt constitutes a crime it is best to regard it as a crime that is sui generis since there are a number of peculiarities associated with the offence of which perhaps the outstanding example is the summary process by which such crimes are prosecuted.

(Borrie and Lowe's Law of Contempt (2nd ed. 1983), at p. 3.)

[22] Commenting in the Canadian context on the parallels between certain Criminal Code provisions which create offences dealing with the administration of justice, Adrian Popovici writes:

[translation] The parallel and complementary role of contempt of court in our system is explained by the characterization of power which we have given it. Contempt of court can only be understood by considering that it is part power and part offence. In fact, one could imagine a system in which contempt of court was eliminated completely and replaced by a number of criminal offences or penal sanctions. The elimination of contempt of court would be the elimination of the summary procedure, which can be explained historically only by the power aspect of contempt of court. [Emphasis in original.]

(L'outrage au tribunal (1977), at p. 130.)

While it is indeed possible to conceive of a system where all of the contempt powers are transformed into codified offences, such a system would be antithetical to ours, where the superior court of general jurisdiction plays the central role.

[23] Both the Criminal Code and the Young Offenders Act treat contempt of court distinctly from criminal offences. When common law offences were abolished in 1955, the power to punish contempt of court was specifically preserved for the courts. This provision in the Code remains to this day in s. 9. Section 47 of the Young Offenders Act, dealing with various contempt of court provisions, is included in the Act separately from the main body of the statute dealing with criminal offences. Despite a general grant of exclusive jurisdiction to the youth courts in s. 5, a separate exclusive grant of jurisdiction is made in s. 47(2). As I noted above, the definition of "offence" in the Act excludes contempt of court.

[24] On the basis of the history of contempt of court, academic commentary, and the overall scheme of the Criminal Code and the Young Offenders Act, I am persuaded that criminal contempt of court has distinct characteristics from other crimes. By history and procedure, as well as its links with the inherent jurisdiction of superior courts which I discuss below, criminal contempt of court can be distinguished from other criminal offences. While other crimes occur in society and the law merely defines or criminalizes them, contempt of court does not occur in the absence of a court. Having considered the nature of criminal contempt of court, I will now proceed to characterize the power transferred by s. 47(2) of the Young Offenders Act and apply the test outlined in Residential Tenancies.

[25] A proper characterization for s. 96 purposes must be narrow and consider the nature of the dispute. While I noted in Reference re Young Offenders Act that the nature of the dispute provides little assistance in criminal law, this is not the case here as contempt of court is distinctive. The dispute is one between the individual and the court itself. Ex facie criminal contempt of superior courts committed by youths has some aspects of a crime and some aspects of a sui generis court power. A proper characterization must be narrow enough to reflect both these aspects. I would therefore characterize the jurisdiction transferred by s. 47(2) as the power to punish youths for ex facie contempt of a superior court.

(2) The Residential Tenancies Test

[26] Having settled on a characterization of the power being transferred, the three branches of the Residential Tenancies test are quickly dealt with in this case. Power to punish youths for ex facie contempt of superior courts was within the jurisdiction of superior courts at Confederation. Under the second branch of the test, this power obviously remains judicial in nature even in its new institutional setting. Nonetheless, when considering the institutional function of the youth courts, a transfer of this power is permissible. As we elaborated in Reference re Young Offenders Act, the policy objectives of the youth court system are clear and laudable. Our society wishes to establish different treatment for youths accused of criminal offences than for adults. Youth courts have an expertise in providing procedural protections appropriate for youths and in deciding punishments for convicted young offenders. The power to punish youths for ex facie contempt of superior courts is indeed a mere ancillary to these primary functions. Accordingly, granting jurisdiction to punish youth for ex facie contempt of superior courts does not infringe s. 96. What remains to be considered, however, is whether this jurisdiction can be granted to the exclusion of superior courts.

C. Can the Superior Courts' Jurisdiction Be Removed?

[27] In the case of transfers of jurisdiction which are within the inherent powers of a superior court, the Residential Tenancies test does not provide a framework for analysing the most important aspect of constitutional infringement. The true problem in this case is the exclusivity of the grant. The impugned section of the Young Offenders Act clearly states that exclusive jurisdiction over ex facie contempt of court is transferred to the youth court. The plain meaning of this section is that the corresponding part of the superior court's jurisdiction is removed. Otherwise, the word "exclusive" would have no meaning in this sentence. Indeed, it is not used in s. 47(3) which deals with in facie contempt. As my colleague McLachlin J. notes, in most instances where a s. 96 analysis is employed, the grant of jurisdiction is exclusive. The requirement to consider whether the corresponding removal of jurisdiction is valid only arises when the core jurisdiction of superior courts is affected. In many instances, therefore, the Residential Tenancies test provides a complete answer to the constitutional query.

[28] To determine whether either Parliament or a provincial legislature may remove part of the superior court's jurisdiction, we must consider the contours and contents of the "core" or "inherent" jurisdiction of superior courts. On the facts of this appeal, the British Columbia Supreme Court being the superior court involved, we need only consider whether this jurisdiction can be removed from superior courts of general jurisdiction, that is, the provincial superior courts. Whether jurisdiction to punish youth for ex facie contempt of statutorily constituted superior courts can be removed from those courts is a question for another day since neither the parties nor the courts below addressed the issue of whether a distinction might exist between these two kinds of superior courts.

[29] The seminal article on the core or inherent jurisdiction of superior courts is I. H. Jacob's "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23. Jacob's work is a starting point for many discussions of the subject, figures prominently in analyses of contempt of court, and was cited with approval by Dickson C.J. in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214. While the particular focus of Jacob's work is the High Court of Justice in England, he notes that "[t]he English doctrine of the inherent jurisdiction of the court is reflected in most, if not all, other common law jurisdictions, though not so extensively in the United States" (p. 23, fn. 1). Moreover, the English judicial system is the historic basis of our system and is explicitly imported into the Canadian context by the preamble of the Constitution Act, 1867. The superior courts of general jurisdiction are as much the cornerstone of our judicial system as they are of the system which is Jacob's specific referent.

[30] Discussing the history of inherent jurisdiction, Jacob says (at p. 25):

. . . the superior courts of common law have exercised the power which has come to be called "inherent jurisdiction" from the earliest times, and . . . the exercise of such power developed along two paths, namely, by way of punishment for contempt of court and of its process, and by way of regulating the practice of the court and preventing the abuse of its process.

Regarding the basis of inherent jurisdiction, Jacob states (at p. 27):

. . . the jurisdiction to exercise these powers was derived, not from any statute or rule of law, but from the very nature of the court as a superior court of law, and for this reason such jurisdiction has been called "inherent." This description has been criticised as being "metaphysical" [cite omitted], but I think nevertheless that it is apt to describe the quality of this jurisdiction. For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. [Emphasis added.]

While inherent jurisdiction may be difficult to define, it is of paramount importance to the existence of a superior court. The full range of powers which comprise the inherent jurisdiction of a superior court are, together, its "essential character" or "immanent attribute". To remove any part of this core emasculates the court, making it something other than a superior court.

[31] Jacob also states that an inferior court of record has the inherent jurisdiction to punish summarily for in facie contempt, but jurisdiction to punish for ex facie contempt must be conferred explicitly by statute. This point is important in framing the issue before the Court in this case, for the problem with s. 47(2) of the Young Offenders Act is not the grant of jurisdiction to the youth court, but the removal of jurisdiction from the superior court.

[32] Addressing the Canadian superior courts in particular, in the context of a discussion of constitutional judicial review, T. A. Cromwell states:

At the center of the Canadian conception of constitutional judicial review is the notion of the general jurisdiction superior courts of the provinces, which are the direct descendants of the English superior courts. The importance of these tribunals has been emphasized and reinforced in a variety of contexts. For example, the superior courts are said to possess "inherent jurisdiction" and to have original jurisdiction in any matter unless jurisdiction is clearly taken away by statute.

("Aspects of Constitutional Judicial Review in Canada" (1995), 46 S.C. L. Rev. 1027, at pp. 1030-31.)

[33] Although the inherent jurisdiction of superior courts is difficult to define, there is no doubt that the power to control its process and enforce its orders, through, in part, punishing for contempt, is within that jurisdiction. In an article which concludes that the inherent jurisdiction of superior courts is growing, at least in Australia, Keith Mason states that the "ubiquitous nature" of inherent jurisdiction "precludes any exhaustive enumeration of the powers which are thus exercised by the courts" ("The Inherent Jurisdiction of the Court" (1983), 57 A.L.J. 449, at p. 449). Following this qualification, Mason attempts to classify the functions of inherent jurisdiction which are clearly knowable by grouping them under four headings: (i) ensuring convenience and fairness in legal proceedings; (ii) preventing steps being taken that would render judicial proceedings inefficacious; (iii) preventing abuse of process; and (iv) acting in aid of superior courts and in aid or control of inferior courts and tribunals. He includes the power to punish for contempt both in facie and ex facie under the first heading (at p. 452). That is, Mason recognizes that the power of a court to punish all forms of contempt is integral to its process.

[34] The supervisory role which superior courts exercise over inferior courts, Mason's fourth category, is of note here because s. 47(2) of the Young Offenders Act also limits the ability of the superior court to exercise its supervisory function in relation to the youth court by proscribing the superior court from punishing contempts of the youth court and of other inferior courts. Borrie and Lowe, supra, state that "[s]uperior courts of record have an inherent superintendent jurisdiction to punish contempts committed in connection with proceedings before inferior courts" (p. 316).

[35] This Court's jurisprudence has also contributed to outlining the contours of the inherent jurisdiction of superior courts. In Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, the Court considered whether the provincial legislature could grant the power to make final decisions on questions of jurisdiction to an appeal tribunal under Quebec's Professional Code. Writing for the Court, Laskin C.J. stated (at pp. 236-37):

It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. . . . [G]iven that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. [Emphasis added.]

This decision establishes, therefore, that powers which are `hallmarks of superior courts' cannot be removed from those courts.

[36] In Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, the Court considered whether the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ousted the jurisdiction of provincial superior courts to consider the constitutional validity of federal statutes. Estey J., writing for the Court, described the superior courts as follows (at pp. 326-27):

The provincial superior courts have always occupied a position of prime importance in the constitutional pattern of this country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction . . . .

Finding that Parliament lacked the authority to remove the power of superior courts to rule on the validity of federal statutes, he stated (at p. 328) that:

To do so would strip the basic constitutional concepts of judicature of this country, namely the superior courts of the provinces, of a judicial power fundamental to a federal system as described in the Constitution Act.

This decision emphasizes the centrality of the superior courts to our constitutional and judicial system. In order for the superior courts to fulfil that central role, they must have the powers which are part of their essence as superior courts.

[37] Commenting on the constitutional jurisprudence regarding courts, Cromwell, supra, concludes (at p. 1032):

Thus, through generous interpretation of the constitutional provisions governing appointment and independence of provincial superior court judges and a restrictive reading of the constitutional limits of jurisdiction on the Federal Court, the primacy of the provincial superior courts in constitutional judicial review has been maintained. The basic proposition is that the Canadian conception of constitutional judicial review is deeply committed to the supervisory role of the provincial superior courts, that is, the general jurisdiction trial courts in each province.

In the constitutional arrangements passed on to us by the British and recognized by the preamble to the Constitution Act, 1867, the provincial superior courts are the foundation of the rule of law itself. Governance by rule of law requires a judicial system that can ensure its orders are enforced and its process respected. In Canada, the provincial superior court is the only court of general jurisdiction and as such is the centre of the judicial system. None of our statutory courts has the same core jurisdiction as the superior court and therefore none is as crucial to the rule of law. To remove the power to punish contempt ex facie by youths would maim the institution which is at the heart of our judicial system. Destroying part of the core jurisdiction would be tantamount to abolishing the superior courts of general jurisdiction, which is impermissible without constitutional amendment.

[38] The core jurisdiction of the provincial superior courts comprises those powers which are essential to the administration of justice and the maintenance of the rule of law. It is unnecessary in this case to enumerate the precise powers which compose inherent jurisdiction, as the power to punish for contempt ex facie is obviously within that jurisdiction. The power to punish for all forms of contempt is one of the defining features of superior courts. The in facie contempt power is not more vital to the court's authority than the ex facie contempt power. The superior court must not be put in a position of relying on either the provincial attorney general or an inferior court acting at its own instance to enforce its orders. Furthermore, ex facie contempt is not limited to the enforcement of orders. It can include activities such as threatening witnesses or refusing to attend a proceeding (see R. v. Vermette, [1987] 1 S.C.R. 577). In addition, the distinction between in facie and ex facie contempt is not always easily drawn (see B.C.G.E.U., supra), increasing the difficulty of saying one is more essential to the court's process than the other.

[39] Borrie and Lowe, supra, state that "[t]he power that courts of record enjoy to punish contempts is part of their inherent jurisdiction" (p. 314 (emphasis in original)). After referring to Jacob's work, which I have discussed earlier, they continue:

Such a power [to punish for contempt] is not derived from statute nor truly from the common law but instead flows from the very concept of a court of law.

Miller, supra, also links the contempt power directly to the core jurisdiction of superior courts (at p. 18):

From its ancient origins contempt of court has developed over the years as a creation of the superior courts, building on their inherent powers.

And later (at pp. 49-50):

In the case of contempt this inherent jurisdiction was linked historically to the notion of an affront to the King's justice with the equivalence between the sovereign and the courts in matters of contempt being relatively straightforward.

[40] Canadian contempt of court case law also attests to the intertwining of superior court core jurisdiction and the contempt power. Writing for the Court in Vermette, supra, a case involving ex facie contempt, McIntyre J. said (at p. 581):

The power to deal with contempt as part of the inherent and essential jurisdiction of the courts has existed, it is said, as long as the courts themselves. . . . This power was necessary, and remains so, to enable the orderly conduct of the court's business and to prevent interference with the court's proceedings.

In United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, Sopinka J., dissenting on another point, stated (at p. 944):

The common law has always jealously restricted the power to punish for criminal contempt. This is particularly true for contempt ex facie which was reserved to courts of superior jurisdiction.

Writing about contempt for the majority in Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394, Gonthier J. asserted (at p. 405):

Barring constitutional considerations, if a statute, read in context and given its ordinary meaning, clearly confers upon an inferior tribunal a jurisdiction that is enjoyed by the superior court at common law, while not depriving the superior court of its jurisdiction, it should be given effect. [Emphasis added.]

Later in the judgment he states (at p. 414):

Even if the Tribunal exercises powers that at common law belong to a superior court, it is still subject to full review by the Federal Court of Appeal. The Tribunal has none of the characteristics that would inspire fear for the integrity of the powers of superior courts.

These cases attest to the role of the contempt power as an essential attribute of superior courts.

[41] In light of its importance to the very existence of a superior court, no aspect of the contempt power may be removed from a superior court without infringing all those sections of our Constitution which refer to our existing judicial system as inherited from the British, including ss. 96 to 101, s. 129, and the principle of the rule of law recognized both in the preamble and in all our conventions of governance. I agree with Macdonald J. who made the following statement in dealing with the identical issue:

In this case, the question should be whether parliament can remove from this court its inherent jurisdiction to maintain its authority by contempt proceedings. I would have no difficulty with a concurrent jurisdiction in the youth court in that regard in so far as young persons are concerned. The philosophy which underlies the Act is entitled to support, and has certainly received it from the Supreme Court of Canada. Just as adult offenders could be charged in the provincial courts under the Criminal Code for failure to comply with a court order, so young persons should be subject to being charged under the Act and dealt with in youth court.

It is quite another thing to deny this court the right to maintain its own authority.

(Mount Currie Indian Band, supra, at pp. 177-78.)

[42] While it will in most instances be preferable for the youth court to try and punish a youth in ex facie contempt of a superior court, the provincial superior court's jurisdiction cannot be ousted. It will always be for the superior court to elect whether to hold contempt proceedings against a youth in order to exert control over its process, or to defer to the youth court. In addition, in cases where the youth court does proceed against a youth for contempt ex facie of a superior court, the provincial superior court retains its supervisory power to ensure that the lower court's disposition of the matter is correct. The full panoply of contempt powers is so vital to the superior court that even removing the jurisdiction in question here and transferring it to another court with judges appointed pursuant to s. 96 would offend our Constitution.

VII. Disposition

[43] I would dismiss the appeal on the grounds that s. 47(2) is unconstitutional to the extent that it purports to confer exclusive jurisdiction on the youth court and to deprive a superior court of general jurisdiction of its ex facie contempt power. Section 47(2) is valid to the extent that it confers jurisdiction on the youth court. The section should be read down accordingly. As read down, the section is inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case.

[44] In light of this conclusion, I would answer the constitutional question as follows:

Is it within the jurisdiction of Parliament to grant exclusive jurisdiction to youth courts, through the operation of s. 47(2) of the Young Offenders Act, R.S.C., 1985, c. Y-1, over contempt of court committed by a young person against a superior court otherwise than in the face of that court?

Answer: No, not exclusive jurisdiction.

The reasons of L'Heureux-Dubé, McLachlin, Iacobucci and Major JJ. were delivered by

[45] McLachlin J. (dissenting) -- J.P., aged 16, defied a court order which prohibited protest activities interfering with logging in Clayoquot Sound in British Columbia. He was tried in the British Columbia Supreme Court, convicted, and sentenced to 45 days in prison and fined $1000: (1993), 12 C.E.L.R. (N.S.) 81 and 104. He appealed that conviction on the ground that the Supreme Court of British Columbia had no jurisdiction to try him, since s. 47(2) of the Young Offenders Act, R.S.C., 1985, c. Y-1, grants exclusive jurisdiction over ex facie contempt of court to the provincial youth courts.

[46] The issue before us is a narrow one. Can Parliament confer upon youth courts the power to try youths for the offence of contempt outside the face of the court? Or do the superior courts created by s. 96 of the Constitution Act, 1867 have exclusive power to try all charges of contempt, whether in or not in the face of the court?

The Enactments

[47] Section 91(27) of the Constitution Act, 1867, gives Parliament exclusive power over criminal law and procedure:

91. . . . it is hereby declared that . . . the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, --

92. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

[48] Pursuant to its power over criminal law and procedure, Parliament enacted s. 47 of the Young Offenders Act, which gives the youth courts exclusive jurisdiction to try contempt of court not in the face of the court committed by a young person, regardless of the court against which the contempt was committed:

47. . . .

(2) The youth court has exclusive jurisdiction in respect of every contempt of court committed by a young person against the youth court whether or not committed in the face of the court and every contempt of court committed by a young person against any other court otherwise than in the face of that court. [Emphasis added.]

[49] The Court of Appeal ruled that the underlined portion of s. 47(2) is invalid because it transfers from the superior courts to the youth courts powers which can be transferred only by constitutional amendment, given the constitutionally protected status of s. 96 superior courts: (1994), 90 B.C.L.R. (2d) 24, 113 D.L.R. (4th) 368, 89 C.C.C. (3d) 217, 21 C.R.R. (2d) 116, 43 B.C.A.C. 1, 69 W.A.C. 1.

[50] Section 96 of the Constitution Act, 1867 creates and confers constitutional status on the 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.

Analysis

1. The Test for Determining When Power May Be Transferred from Superior Courts

(a) The Problem

[51] One of the fundamental pillars upon which the Canadian Constitution rests is a unified national judiciary. This pillar in turn rests on a compromise made by the Fathers of Confederation in 1867. The provinces were given responsibility for the administration of justice under s. 92(14) of the Constitution Act, 1867 but under s. 96 the Governor General was given the power to appoint judges to the superior, district and county courts in each province. Section 100 obliges the Parliament of Canada to fix and pay the salaries of these judges. These sections, taken together, impose a regime of compulsory cooperation which has served for over a century to maintain a strong unified judicial presence throughout the country. The provinces establish and administer the s. 96 courts, the successors of the provincial superior courts in each territory at the time of Confederation. These courts in turn are united by the fact that they exercise similar jurisdiction, by the fact that their judges are federally appointed and paid, and by the fact that appeals lie from all to the Supreme Court of Canada, which exercises a unifying influence. The result is a network of related Canadian courts ensuring judicial independence, interprovincial uniformity, and minimum standards of decision making throughout the country. This in turn provides "a strong constitutional base for national unity": Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728, per Dickson J.

[52] In this way the Canadian Constitution confers a special and inalienable status on what have come to be called the "section 96 courts". The unified national judicial system thus created cannot be destroyed or weakened. At the same time, however, the Constitution does not prevent either Parliament or the legislatures from passing laws regulating the powers and operations of the s. 96 courts; a strict separation of judicial and legislative powers is not a feature of the Canadian Constitution:

There is no general "separation of powers" in the Constitution Act, 1867. The Act does not separate the legislative, executive and judicial functions and insist that each branch of government exercise only "its own" function.

(P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), at p. 184.)

Moreover, ss. 96 to 100 do not prevent Parliament or the legislatures from creating other courts and tribunals, provided they do not threaten the constitutional position of the s. 96 courts.

[53] In the years since Confederation, Parliament and the legislatures have created many specialized tribunals to supplement the work of the s. 96 courts. New problems have given rise to new schemes of regulation. New schemes of regulation in turn have created new problems of adjudication. And new problems of adjudication have given rise to new administrative tribunals. A number of reasons for the preference of Parliament and the legislatures for administrative tribunals with decision-making powers have been identified: the desire for a specialist body; the desire for innovation; the desire for a comprehensive investigative, adjudicative and policy-formation approach; and the problem of volume: see Hogg, supra, at p. 190. If they are to discharge their tasks, administrative tribunals must inevitably be clothed with powers which, before their time, were exercised exclusively by the s. 96 courts.

[54] This brings us to the heart of the problem posed on this appeal: when may Parliament or the provincial legislatures confer powers exercised by s. 96 courts on inferior tribunals created for special purposes? Clearly, Parliament and the legislatures cannot be allowed to set up shadow courts exercising all or some of the powers of s. 96 courts. As Dickson J. stated in Residential Tenancies, supra, at p. 728:

. . . the intended effect of s. 96, would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined.

On the other hand, short of impairing s. 96 courts, nothing in the Constitution suggests that Parliament should not be able to clothe inferior tribunals with s. 96 powers ancillary or necessary to their functioning. Moreover, many of the complex problems created by modern society require regulation by specialized administrative agencies. Effective regulation, in turn, may require a system of internal enforcement by specialized tribunals wielding some of the powers traditionally exercised by s. 96 courts.

[55] Initially, the courts refused to accept that Parliament or the legislatures could ever transfer s. 96 powers to inferior tribunals. Over the years, however, they have come to recognize that such a draconian response is neither required to preserve the constitutional role of s. 96 courts, nor desirable in a society whose problems increasingly require specialized regulation. What is required is a test for transfer of s. 96 powers which balances the need to maintain a strong constitutional position of s. 96 courts with the need to provide sufficient scope for the creation of effective administrative tribunals.

(b) Development of the Current Test

[56] In 1938, the Judicial Committee of the Privy Council held that the Ontario legislature could not confer judicial powers on the Ontario Municipal Board: Toronto v. York, [1938] A.C. 415. Lord Atkin described s. 96 as one of the "three principal pillars in the temple of justice" (p. 426). His reasons proceed on the assumption that any attempt to confer a s. 96 function on an administrative tribunal is ultra vires.

[57] This injunction against any transfer of s. 96 powers was quickly recognized as unworkable. In Reference re Adoption Act, [1938] S.C.R. 398, this Court, per Duff C.J., held at p. 418 that the jurisdiction of inferior courts was not "fixed forever as it stood at the date of Confederation". Powers enjoyed by s. 96 courts at the time of Confederation could be removed from them and transferred to courts of inferior jurisdiction, provided the power removed "conform[s] to a type of jurisdiction generally exercisable by courts of summary jurisdiction" (p. 421). Reasoning that powers over adoption matters were similar to powers exercised by summary courts in England under the Poor Laws, Duff C.J. concluded that the transfer of power over such matters to magistrates was constitutional.

[58] Duff C.J.'s formulation in the Reference re Adoption Act in turn proved too restrictive. It effectively froze the jurisdiction to transfer s. 96 powers at those of the summary courts of England. In Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134 (P.C.), Lord Simonds suggested that it was not necessary to establish an analogy with summary court jurisdiction; it sufficed to show that the power was not one traditionally falling to s. 96 courts.

[59] The John East test also was ultimately found to unduly fetter the legislative prerogative. In Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112, the validity of a cease and desist order issued by the Nova Scotia Labour Relations Board was challenged on the ground that the power to issue such an order was analogous to the jurisdiction of the s. 96 courts to issue mandatory injunctions, and hence, on the test in John East, ultra vires. The Supreme Court resiled from the John East test. Clearly the mandatory orders at issue fell within the jurisdiction of s. 96 courts. But that was not the end of the matter. The transferred power must be considered in the context of the tribunal's larger task: "it is not the detached jurisdiction or power alone that is to be considered but rather its setting in the institutional arrangements in which it appears and is exercisable under the provincial legislation" (p. 120).

[60] Tomko marks the debut of the modern test affirmed by this Court in Residential Tenancies. It was applied in City of Mississauga v. Regional Municipality of Peel, [1979] 2 S.C.R. 244, to uphold powers granted to the Ontario Municipal Board to resolve certain property disputes, a matter within the historical purview of the s. 96 courts. The Court asked itself what role this power played in the general role of the Municipal Board, and concluded that viewed in their "institutional setting, the `judicial powers' to determine rights and liabilities . . . had been validly granted to the Municipal Board" (Residential Tenancies, supra, at p. 732).

[61] The issue came before this Court once more in 1980 in Residential Tenancies. Dickson J., speaking for the Court, concluded at p. 733 that "[t]he teaching of John East, Tomko, and Mississauga is that one must look to the `institutional setting' in order to determine whether a particular power or jurisdiction can validly be conferred on a provincial body". He went on to state the following test (at pp. 733-34):

An administrative tribunal may be clothed with power formerly exercised by s. 96 courts, so long as that power is merely an adjunct of, or ancillary to, a broader administrative or regulatory structure. If, however, the impugned power forms a dominant aspect of the function of the tribunal, such that the tribunal itself must be considered to be acting `like a court', then the conferral of the power is ultra vires.

On this approach, a "scheme is only invalid when the adjudicative function is a sole or central function of the tribunal . . . so that the tribunal can be said to be operating `like a s. 96 court'" (p. 736).

[62] Dickson J. suggested a three-step approach to determining whether a transfer of power from a s. 96 court to an inferior court was valid. The first step, echoing John East, asked whether the power historically fell within the jurisdiction of the s. 96 courts. The second step asked whether the power was judicial or administrative. These two steps may be seen as serving to determine if there is in fact a transfer of s. 96 power. If the answer on the first two steps is yes, the inquiry moves to its final stage. This requires consideration of the institutional and legislative framework in which the judicial power is employed in order to determine whether its exercise is either (i) "subsidiary or ancillary" to what is predominantly an administrative function, or (ii) "necessarily incidental" to the achievement of a broader policy goal of the legislature. If it is, the transfer of s. 96 powers will be valid. If, on the other hand, "the impugned power forms a dominant aspect of the function of the tribunal, such that the tribunal itself must be considered to be acting `like a court', then the conferral of the power is ultra vires" (Residential Tenancies, supra, at pp. 733-34). In short, transfer of limited ancillary functions is permitted. Shadow courts are not.

[63] The first branch of the Residential Tenancies test has been amplified by this Court in Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364, Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238, and Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252. In Grondin, this Court held that the question was whether the matter was within the exclusive power of the s. 96 courts at the time of Confederation; if inferior courts could exercise it then, modern tribunals could surely do so now. In Sobeys, Wilson J. suggested that the issue was not the particular remedies exercised by the superior courts at the time of Confederation, but whether the dispute was one which would have fallen within their exclusive jurisdiction. The dispute should be narrowly defined, so as not to preclude legitimate transfers at the outset. In Reference re Young Offenders Act, Lamer C.J. added a further qualification. He suggested that the legislative purpose of the grant of power, and the nature of the scheme of which it forms a part, should be considered in characterizing the power for purposes of the first stage of the test. On this approach, he concluded that the powers granted to youth courts and the administrative scheme set up under the Young Offenders Act could be viewed as creating a "novel jurisdiction" not within the power of the superior courts at the time of Confederation. Viewed thus, the answer to the question of whether the power was one exercised by the superior courts in 1867 was no, and the transfer of power was held valid.

[64] The parties to this appeal agree that the first and second stages of the Residential Tenancies test are met. Hence I comment on them no further, except to note their function in relation to the test as a whole. The first and second stages of the test may be viewed as devoted to determining whether there is an impingement on the powers of s. 96 courts. If the powers were not historically within the exclusive purview of the s. 96 courts, their conferral on the inferior tribunal can pose no problem. Similarly, if the power is not judicial, no problem arises. But if the first two stages are passed and a derogation from s. 96 powers is established, that is not the end of the matter. Some derogations are permitted. To determine whether the identified transfer of s. 96 power is permitted, the power must be viewed in its institutional setting to determine whether it is ancillary or necessary to the policy objectives of the scheme in which it is exercised. If so, "the power in its institutional setting has changed its character sufficiently to negate the broad conformity with superior, district or county court jurisdiction" (Hogg, supra, at p. 191). To use the words of this Court in McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704, at p. 717, the "judicial aspect . . . change[s] colour when considered in the factual setting in which the court will operate". The derogation from s. 96 powers established by the first and second inquiries of the test is rendered valid by its administrative function.

[65] If the third stage of the inquiry under the Residential Tenancies test is satisfied, there can be no fear that the constitutional status of the s. 96 courts will be threatened. A tribunal exercising a judicial power ancillary or necessary to a broader administrative scheme is still performing an administrative function. In exercising that power, it will not be, to use the language of Dickson J. in Residential Tenancies, "acting `like a court'".

[66] The Residential Tenancies test may thus be seen as a functional test. It does not attempt to define precluded areas of transfer by how the power itself is characterized, for example, by calling it a criminal power, or contract power, or the exercise of an inherent jurisdiction. Rather, it identifies precluded transfers by how the power functions in the setting Parliament or the legislature has proposed. Does the tribunal use the power as a mere aid to the achievement of a larger administrative goal, or does it use the power to make itself a shadow court?

[67] This functional approach to determining whether a transfer of s. 96 power is valid or not possesses merits which a categorical approach lacks. The fundamental problem which arises when one attempts to identify protected areas of s. 96 jurisdiction by the type of power conferred is that any test threatens to be at once under and over inclusive. For example, if one suggests that important areas of common law, like criminal law, contract law or the inherent powers of the courts cannot be transferred from s. 96 courts, one is faced with the difficulty that aspects of criminal and contract law and inherent powers of the courts figure prominently in the administrative machinery of this country, without apparent harm to s. 96 courts. On the other hand, if one reduces the core of non transferable powers, suggesting that only the inherent powers of s. 96 courts to control their process are sacrosanct, one faces the problem that vast areas of contract, tort and criminal jurisdiction could be transferred to shadow courts with impunity, thus destroying the compromise of the Fathers of Confederation and the intended effect of s. 96. By contrast, the Residential Tenancies test, by focusing on the function of the power in the administrative context rather than the nature of the power conferred, provides sufficient flexibility to equip administrative tribunals with the powers they need to do their work, while preserving the constitutional position of the s. 96 courts.

[68] Viewed in retrospect, the Residential Tenancies test may be seen to have evolved over the years in response to the needs of Canadian society. Without suggesting that further refinements may not, as time passes, prove desirable, the test meets the basic requirements of the Constitution and of society in a way in which proposed alternatives, such as a rule precluding any transfer from a nebulous, indeterminate shopping list of "core" powers, does not.

[69] These considerations lead me to conclude that the Residential Tenancies test, developed over the past 50 years in response to the changing social conditions of this country, should not be lightly discarded. It is against this background that I approach the case for an alternative approach found in the reasons of the Court of Appeal of British Columbia and the Chief Justice of this Court.

(c) The Proposed Changes to the Residential Tenancies Test

[70] The Residential Tenancies test is based on the premise that any judicial power can be transferred from a s. 96 court to an inferior tribunal, provided that the power is ancillary to the tribunal's larger mandate. Shadow courts, devoted exclusively or primarily to rendering judgments which s. 96 courts have traditionally rendered, are forbidden. Only if the tribunal's major focus is a larger one and the powers can be said to lose their judicial character in the administrative context, is the tribunal permitted to incidentally exercise judicial powers traditionally exercised by s. 96 courts.

(i) The Proposed "Core" Test

[71] The Court of Appeal below and the Chief Justice in this Court propose a modification of this test. Acknowledging that the Residential Tenancies test is satisfied in this case, the Chief Justice argues that an additional question must be asked: is the power transferred a "core" power of s. 96 courts? The boundaries and constituent elements of this core are unspecified but seem to extend at least to the inherent powers of s. 96 courts. This is a new test which in my respectful opinion needlessly derogates from the functional approach of the Residential Tenancies test. As I understand the proposed test, it would no longer be sufficient that the transfer of judicial power historically exercised by s. 96 courts be ancillary to the larger function of inferior tribunal; it would also be necessary to show that the particular power transferred is not one of the "core" powers of s. 96 courts. This "core" is not defined by reference to the functions of the tribunal, but by the nature of the s. 96 power transferred. What is proposed is a class of "core" powers which, by their very nature, are essential to s. 96 courts and cannot be transferred to other courts regardless of whether or not the three inquiries of the Residential Tenancies test are satisfied. This marks a shift from the functional approach of the Residential Tenancies test for transfer of s. 96 powers toward a more categorical approach.

[72] This revised version of the Residential Tenancies test finds its source in a passage from the reasons of Lamer C.J. in Reference re Young Offenders Act, supra. In considering the limits imposed by s. 96, he stated (at p. 264):

. . . if the jurisdiction conferred on Youth Courts by Parliament is within the core of jurisdiction of superior courts, Parliament cannot confer such jurisdiction on courts presided over by judges not appointed in accordance with s. 96.

However, this reference to "core" jurisdiction must be read in conjunction with the paragraph that follows it:

The test for determining if a power can be constitutionally given to an inferior court or an administrative tribunal was set out in Re Residential Tenancies . . .

Read in this context, the "core" referred to by Lamer C.J. in Reference re Young Offenders Act might have been seen simply as a shorthand reference to impermissible transfers under the Residential Tenancies test -- i.e., transfers where the adjudicative function "is a sole or central function of the tribunal ... that the tribunal can be said to be operating `like a s. 96 court'" (per Dickson J., in Residential Tenancies, supra, at p. 736).

[73] In the reasons of the Court of Appeal in this case, however, the notion of "core" was given a different meaning. It was understood as designating a class of judicial powers -- contempt and the like -- which can never, under any circumstances, be transferred to inferior tribunals. The significance of this change should not be underestimated. If accepted, it would amount to an important new fetter on the ability of Parliament and the provincial legislatures to create effective tribunals to ensure compliance with regulatory schemes. The significance of the additional fetter is enhanced by the fact that it is constitutional, and hence incapable of being legislatively overridden, as well as by the fact that what falls within the core remains largely undefined.

[74] Having suggested that the reasons of the Court of Appeal below and of the Chief Justice in this Court represent a significant departure from the existing test for the transfer of s. 96 judicial power to inferior tribunals, it remains to determine whether the departure is one which this Court should endorse. Before embarking on that inquiry, however, it may be useful to deal with two related notions which may otherwise cloud the analysis.

[75] The first is the Chief Justice's observation that the problem lies in the exclusive nature of the transfer of the s. 96 power to the inferior tribunal. The second is his insistence that the focus of the problem is not the conferral of power on the inferior tribunal, but its removal from the s. 96 courts. I agree with both observations. It is rare for Parliament or a legislature to offer a choice between having one's case adjudicated by a s. 96 court or an administrative tribunal. If the administrative scheme is to operate effectively with a minimum of procedural confusion, it is typically essential that the tribunal have exclusive power to decide the matters at issue. As the facts of the cases on the question of transfer of s. 96 powers demonstrate, the issue is almost always whether Parliament or the legislatures can transfer the s. 96 power to the inferior tribunal and exclude the s. 96 courts from adjudication in that area. To point this out is not, with respect, to advance the analysis, but merely to define the problem which has preoccupied the courts since Lord Atkin's opinion in Toronto v. York, [1938] A.C. 415. Viewed thus, it becomes apparent that the issues of whether a power can be taken from a s. 96 court and whether it can be conferred on an independent tribunal, which the Chief Justice seeks to separate, are in fact reverse sides of the same coin. There is nothing exceptional in this respect in what Parliament did when it conveyed exclusive power over contempt not in the face of the court committed by juveniles to youth court. Rather, the conferral of exclusive power over the offence on the youth court brings this case directly within the ambit of the central problem addressed in Residential Tenancies and its predecessors.

[76] Against this background, I come to the essential question on this appeal: should this Court alter the Residential Tenancies test by adding the additional concept of an immutable core of powers which can never be transferred from s. 96 courts to inferior tribunals? It is my conclusion, with the greatest respect to the Court of Appeal and the Chief Justice of this Court, that it should not.

(ii) The Argument in Principle for a "Core" Test

[77] The crux of the Chief Justice's argument is that the superior courts can never be deprived of their "core" powers, which include the power to regulate their own process, including contempt not in the face of the court.

[78] The difficulty which this argument faces is that it has long been settled that under the rule of law Parliament and the legislatures may limit and structure the ways in which the superior courts exercise their powers. These inherent powers of superior courts are simply innate powers of internal regulation which courts acquire by virtue of their status as courts of law. The inherent power of superior courts to regulate their process does not preclude elected bodies from enacting legislation affecting that process. The court's inherent powers exist to complement the statutory assignment of specific powers, not override or replace them: "The two heads of powers are generally cumulative, and not mutually exclusive" (I. H. Jacob, "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23, at p. 25).

[79] In fact, the superior courts of this country are controlled by an elaborate matrix of statute and regulation limiting the way they exercise powers over their own process. Legislation intrudes on a number of areas traditionally within the domain of the court's inherent power, including matters such as contempt of court, testimonial compulsion, the attendance of spectators, hours of sitting and the imposition of publication bans over court proceedings. Parliament and the legislatures routinely make rules limiting the scope for the exercise of the court's inherent powers in these and other areas. In every province Rules of Court limit and define the ways in which superior courts can exercise their inherent powers. The Income Tax Act restricts the circumstances in which courts may exercise their inherent jurisdiction to order the Minister of National Revenue to release confidential information: Glover v. Glover (No. 1) (1980), 113 D.L.R. (3d) 161 (Ont. C.A.), aff'd [1981] 2 S.C.R. 561. In the criminal sphere, s. 486(4) of the Criminal Code, R.S.C., 1985, c. C-46, removes the discretion a judge would have at common law to refuse a publication ban upon the request of a complainant or prosecutor where the accused is charged with one of the listed offences. How a court must deal with contempts arising in certain circumstances is now prescribed in some detail (see, e.g., ss. 127(1), 708(1), 605(2), 484, 486(1) and (5)). Interestingly, in order to preserve the court's jurisdiction over contempt in s. 9, the Code specifically excludes that offence from the general withdrawal of jurisdiction over the common law offences. The drafters clearly recognized the competence of Parliament to remove an aspect of inherent jurisdiction, and consequently the need to segregate contempt from the general provision eradicating those offences if the courts were to retain this power.

[80] All of this is simply to restate the general principle that courts must conform to the rule of law. They can exercise more power in the control of their process, in different ways, than is expressly provided by statute, but must generally abide by the dictates of the legislature. It follows that Parliament and the legislatures can legislate to limit the superior courts' powers, including their powers over contempt, provided that the legislation is not otherwise unconstitutional. If this is so, then it is wrong to posit a core of inherent superior court powers to regulate the process of the courts which the legislators cannot touch. Parliament's transfer of an aspect of the contempt power from the superior courts to the youth courts may be seen as an example of a legislative limitation on the inherent power of the superior court, in the sense that absent the transfer, the superior court would possess that power. That however, does not render the transfer of power invalid. Nor does it rule out the power of a superior court to deal with exceptional situations threatening its status by the exercise of its inherent power which exists to complement the statutory assignment of specific powers: to use Jacob's phrase, "one set of powers supplements and reinforces the other" (Jacob, supra, at p. 50). I conclude that Parliament may enact that all ex facie juvenile contempt charges should be heard in youth court, provided that the conditions of the Residential Tenancies test are met. The need to preserve the inherent powers of superior courts requires no further test.

(iii) The Argument on Policy for a "Core" Test

[81] I have concluded that one cannot say, as a matter of principle, that Parliament can never legislate with respect to a matter that might be dealt with under the inherent jurisdiction of the court. But another argument was pressed in support of an untouchable core of s. 96 jurisdiction immune from legislative limitation. It is not an argument of principle but of policy. It is the argument that without an untouchable core of inherent jurisdiction, the constitutional position of s. 96 courts will, as a practical matter, be eroded. The functional approach of the Residential Tenancies test is inadequate to protect the s. 96 courts. We must, it is asserted, go further and build an impregnable wall around core court powers if the position of the superior courts is to be preserved.

[82] It may initially be observed that the Residential Tenancies approach to the transfer of s. 96 powers has been the law in Canada since the Tomko case in 1977. It is not suggested that the role of s. 96 courts has been diminished in the 18 intervening years, despite the creation of a host of administrative tribunals exercising a variety of substantive and procedural powers traditionally exercised by s. 96 courts.

[83] Indeed, it might be argued that the primal position of the superior courts during this period has been enhanced by the fact that they have jealously guarded their rights of review of the decisions of inferior tribunals. Where an aspect of their historical power has been transferred to the inferior tribunal, the courts have reserved the right to review the decision for conformity to the law and the rules of natural justice. Attempts by Parliament or the legislatures to insulate tribunal decisions from supervision by superior courts through the use of clauses purporting to oust judicial review, while offering protection against review of decisions on fact and exercise of discretion, have not deterred the courts from insisting that the decisions of tribunals meet the basic requirements of legality and fairness: see Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220. Viewed thus, transfers of s. 96 jurisdiction to inferior tribunals have not ousted the power of the superior courts, but merely elevated it one remove. Administrative tribunals deal with the factual minutiae of multitudinous disputes; the superior courts ensure that the law is followed and fair process maintained.

[84] Viewing the matter from the perspective of the power here in question, the conclusion is the same. The facts of this case simply do not support the contention that powers essential to the proper functioning of s. 96 courts are in danger of being eroded. The Court of Appeal accepted without much discussion the proposition that the power to try youths for contempt not in the face of the court is essential to maintaining the authority of the superior courts. Yet, with respect, this is far from self-evident. What is essential to maintaining the authority of a court is that consequences attach to the disobedience of its order. It would seem immaterial whether the consequences derive from the same court as issued the initial order, or from a different court. It is the attachment of criminal consequences which gives the order its force, not the source of those consequences. I accept the submissions of the Attorney General of Canada that the youth court is just as able to protect the validity and efficacy of a superior court order as is the superior court. No evidence was put forward by the Attorney General of British Columbia or cited by the Court of Appeal to suggest otherwise. And if the youth court errs, or fails to proceed where it should, it is subject to the corrective power of the superior court on judicial review or of the Court of Appeal on appeal.

[85] It was argued that contempt charges might not be pursued in youth court, leaving the superior court order unenforced. The superior court must have the power, it was submitted, to pursue and try charges for contempt out of the face of the court in such circumstances.

[86] There are a number of answers to this submission. First, counsel for the young offender conceded that s. 47(2) does not deprive the superior court of the power to initiate proceedings by referring a charge of contempt out of the face of the court to the youth court.

[87] Second, contempt not in the face of the court is generally prosecuted like any other crime by the Attorney General, who gathers the evidence and presents the case to the court. This follows from the fact that the contempt is not committed in the presence of the court. Unlike contempt in facie, which Parliament has left within the purview of the court where it was committed, the court whose order has been allegedly traversed will usually have no evidence itself of ex facie contempt, and cannot pursue it without the intervention of the Attorney General. For example, in the case at bar, the superior court judge had no personal knowledge of who had demonstrated, let alone when or where the injunction was supposedly violated. As in the case of any other crime, trial of the contempt was dependent on a case presented by the prosecution. This removes much of the force of the argument that the superior court must retain power to pursue charges for contempt out of the face of the court because the Attorney General may fail to bring such charges before the youth court. Whatever the court, the decision as to whether the charge proceeds will almost always be the Attorney General's.

[88] The final guarantee that the process of the superior courts will not be undermined by a transfer of juvenile contempt of court ex facie to the youth courts, lies in the residual inherent jurisdiction of the superior courts to take such measures as may be required to preserve their process. Should the administration of justice require that a particular case be tried in superior court, that court possesses the inherent power to hold such a trial. As discussed earlier, all rules of court must be read as subject to the inherent power of the superior court to do what is required to preserve their process. Where the use of a legislative provision or rule of court would itself amount to an abuse of the court's process, the court may invoke its inherent jurisdiction to ensure that justice is done. Section 47(2) of the Young Offenders Act is no exception.

[89] In conclusion, I note that the argument on policy would have more force if Parliament had removed from the superior courts all power to try the offence of contempt. In fact, only contempt not in the face of the court committed by youths has been removed from the superior courts. To borrow the language of McEvoy, supra, at p. 722, this is a "mere alteration or diminution of criminal jurisdiction", cardinally different from a complete exclusion of Parliament.

[90] Parliament appears to have carefully considered and weighed what is necessary to permit the superior courts to preserve their authority. Parliament left to the superior courts power to try youths for contempt in the face of the court, a power arguably necessary to enable a court to maintain order in its proceedings. At the same time, it transferred to youth court contempt not in the face of the court committed by youths. The latter, unlike the former, is concerned with the enforcement of orders rather than preservation of order in proceedings. This carefully calibrated scheme poses no threat to the authority of the superior courts, whose authority stands firm.

[91] Before leaving the policy argument, it may be useful to ask whether, when all is considered, it can be said that the Residential Tenancies test might fail to maintain the protection of s. 96 courts which the Constitution requires. I would not suggest that the Residential Tenancies test is forever cast in stone, nor that situations may not arise affecting the stature and integrity of the superior court, which could require the court to invoke its inherent power to safeguard its own process in a manner which was not contemplated by the Residential Tenancies test. This said, the current test for transfer, developed in response to Canadian needs over a period of several decades, strikes a reasonable balance between the need to permit Parliament and the legislatures to annex effective administrative tribunals to their legislative schemes, and the need to maintain the constitutional position of the s. 96 courts. The test permits only incidental derogations of powers from s. 96 courts, and then only to the extent that their judicial nature is transformed by the administrative context in which they are exercised. The greater the powers sought to transferred, the greater the curtailment of the inherent powers of the s. 96 courts, the more likely the powers are to be seen as judicial rather than administrative, barring their transfer from s. 96 courts to inferior tribunals.

[92] On the other hand, the revised "core" test proposed would impose significant new restrictions on the power of Parliament and the legislatures to endow specialized tribunals with sufficient powers to meet particular problems and deprive many tribunals of powers which they have long exercised. The alternative of dual powers exercised by the tribunals and the courts would encourage forum shopping and contribute to expense and delay in the resolution of problems within these specialized areas. At the same time, the addition of a concept of a category of core of inherent powers which can never be transferred would add a new element of uncertainty to the law. As the Chief Justice admits, inherent jurisdiction "may be difficult to define" (para. 30). He declines, quite understandably, "to enumerate the precise powers which compose inherent jurisdiction" (para. 38). What is clear is that this concept of inherent jurisdiction includes some of what administrative tribunals now do. What is not clear is how far beyond this the penumbra of inherent powers may extend.

[93] For these reasons, I remain unpersuaded that the Residential Tenancies test for transfer s. 96 judicial powers to inferior tribunals should be supplemented by the concept of immutable core powers which can never constitutionally be transferred from s. 96 courts, no matter how incidental their role in the overall administrative scheme. I would maintain the Residential Tenancies test.

(d) Application of the Residential Tenancies Test in This Case

[94] As the Chief Justice concedes, application of the Residential Tenancies test in this case leads to the result that the transfer of contempt not in the face of the court committed by juveniles from s. 96 courts to the youth courts is valid and constitutional. The power was historically possessed by s. 96 courts, it is judicial, and it is merely ancillary to the larger role of the youth courts in relation to the special problems and needs of young offenders.

[95] A number of assaults were made on the proposition that conferral of this power is ancillary only. None, in my view, succeed.

[96] The Attorney General of British Columbia seeks to bring itself within the Residential Tenancies test by characterizing the power at issue simply as "the inherent jurisdiction of a superior court of record to maintain and enforce its authority by contempt proceedings for . . . contempt ex facie". This power, it argues, has nothing to do with the goals of the Young Offenders Act and hence fails to satisfy the third enquiry under the test. But this is a mischaracterization of the power at issue. Parliament has not transferred power over all contempt out of the face of the court to the youth courts, only such contempt committed by young offenders. Only by reading the reference to young offenders out of s. 47(2) can the Attorney General argue that the power is not related to the goal of the Young Offenders Act. If the power transferred is properly characterized, there is no basis for parting from the analysis under Reference re Young Offenders Act and Residential Tenancies.

[97] The Attorney General of British Columbia also argues that s. 47(2) is not necessarily incidental to the policy goals of the Young Offenders Act, because contempt not in the face of the court is different from other crimes, being a common law crime and the only crime whose actus reus is disobedience of a court order. These features, in my view, do not suffice to remove juvenile contempt not in the face of the court from the concerns of the Young Offenders Act. Like other crimes, it is generally prosecuted by the Attorney General, who gathers and presents evidence to the court, which must sit impartially and conclude on innocence or guilt based on the record before it. Like other crimes, it involves actus reus, mens rea, and consequences of imprisonment upon conviction. Like other crimes, conviction creates a criminal record. All these considerations suggest that it should be treated like any other crime. The special aims of the Young Offenders Act apply to it as much as to any other crime. Parents should be advised of pending charges. Rehabilitation should be the predominant consideration. Incarceration in facilities tailored to young people's special needs should be the norm. The argument that the transfer of criminal contempt not in the face of the court committed by youths is not ancillary to the powers exercised by the youth courts cannot succeed.

2. Conclusion

[98] I conclude that Parliament's transfer of contempt not in the face of the court by juveniles from the s. 96 superior courts to the youth courts is valid. The test for transfer laid down in Residential Tenancies and approved in Reference re Young Offenders Act is met. The case for a modified test proposing an inviolable core of matters immune from transfer which includes juvenile contempt not in the face of the court has not, in my respectful view, been established.

[99] J.P. is charged with criminal contempt not in the face of the court, for violating a court order. Section 47(2) of the Young Offenders Act requires that he be tried in youth court. The constitutionality of s. 47(2) has not, for the reasons I have outlined, been successfully challenged. It follows that J.P. should have been tried in youth court. I would allow the appeal and set aside his conviction in superior court and remit the charges to youth court for trial in the forum Parliament has chosen.

[100] Accordingly, I would answer the constitutional question stated by the Chief Justice as follows:

Is it within the jurisdiction of Parliament to grant exclusive jurisdiction to youth courts, through the operation of s. 47(2) of the Young Offenders Act, R.S.C., 1985, c. Y-1, over contempt of court committed by a young person against a superior court otherwise than in the face of that court?

Answer: Yes.

Appeal dismissed, L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ. dissenting.

Solicitors for the appellant: Ritchie & Company, Vancouver.

Solicitor for the respondent the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.

Solicitor for the intervener: The Department of Justice, Vancouver.