A JUDICIARY CLEAVED: SUPERIOR COURTS, STATUTORY COURTS AND THE ILLOGIC OF DIFFERENCE.

• Author: Stratas, David
• Position: Viscount Bennett Memorial Lecture - Canada - Forum: Issues in Administrative and Constitutional Law

In one important respect, we in the Federal Courts are lucky. My Court, the Federal Court of Appeal, regularly hears applications and appeals here in New Brunswick. We regularly see the beauty of this province and the warmth of its people. We also see the interesting nature of the cases that arise and your many excellent counsel. We are constantly enriched by the insights of the great professors at the University of New Brunswick law school. Truly New Brunswick is a special place.

Here there is a great legal tradition of excellence. One need only think of legendary jurists from New Brunswick like Ivan Rand, Gerard La Forest and Michel Bastarache, intellectually at the top of their class, in every respect hard-working and exceptional.

When I think of New Brunswick, though, I cannot help but recall, with deep affection, two other New Brunswickers, two wonderful judges who served in the Federal Courts system, two who recently and prematurely succumbed to cancer: Chief Justice Edmond Blanchard and Justice Carolyn Layden-Stevenson. Hard working, selfless and brilliant, these two moved from backgrounds of devoted public service--in one case an elected politician; in another, a school teacher--and offered themselves for national judicial service in the Federal Courts system. Truly, they distinguished themselves from coast to coast to coast. Their jurisprudence continues to shine brightly, and as exemplars of great character they remain in our memories as role models. Their lives were well lived.

My lecture today is very much about an issue related to these judges. They served in the Federal Courts system. That's a system of statutory courts, much like the Provincial Courts system in New Brunswick.

In fact, across Canada, thousands of judges serve in statutory courts like these, more than those that serve on superior courts. And statutory courts decide more cases than superior courts.

Yet today, as things stand, statutory courts are treated as the lesser cousins of superior courts. In some respects their powers are needlessly shackled, to the detriment of the people they serve.

This needn't be so. And this shouldn't be so. Let me explain.

In Canada, we have superior courts like the New Brunswick Court of Queen's Bench and the New Brunswick Court of Appeal. Then there are statutory courts, the New Brunswick Provincial Court, the Federal Court and the Federal Court of Appeal. All operate in New Brunswick.

Superior courts are fully empowered. For example, superior courts have a full ability to award any constitutional remedies under section 24 and 52 of the Constitution Act, 1982. (1)

The power to declare legislation invalid under section 52 matters, deeply so. Let me illustrate. Suppose a statute sets out a police power of dubious constitutionality. The police have the power across the province. Suppose that it likely offends the right against unreasonable search and seizure in section 8 of the Charter. (2)

If you go to any courtroom of New Brunswick's superior court, the Court of Queen's Bench, in Bathurst, Woodstock, Edmunston, Campbellton, Miramichi, Moncton or Fredericton and if the court declares the police power unconstitutional, it is invalid not just in that locality, but everywhere in New Brunswick. The ruling becomes the law all across New Brunswick. Right across the province, the police must comply right away. All New Brunswickers are protected and treated alike.

Now take the New Brunswick Provincial Court, a statutory court. Same police power. Same challenge. But the challenge is brought in Edmunston in the Provincial Court there. It reaches the same result, word-for-word the same.

But the ruling doesn't apply across the province. It applies only to the particular case. The Provincial Court does not have the power to declare legislation unconstitutional. It can only disregard laws that are unconstitutional in the particular cases before it.

This means that the law, adjudged unconstitutional, remains on the books across the province. All across the province, the police can continue to use the unconstitutional power. Even in the particular locality where a ruling of unconstitutionality was made, that ruling does not bind a later judge in the locality. The ruling applies only in that particular case.

Sounds strange? This is the law as set out in the 2016 decision of the Supreme Court in R v Lloyd. (3)

Lloyd was convicted in the British Columbia Provincial Court of possession of drugs for the purpose of trafficking. Because he had an earlier conviction for a similar offence, he was subject to a mandatory minimum sentence of one year imprisonment. The Provincial Court judge issued a declaration. He declared that the mandatory minimum sentencing provision offended the guarantee against cruel and unusual punishment under section 12 of the Charter and was not justified under section 1 of the Charter.

The Supreme Court agreed. It held that the mandatory minimum sentencing provision was unconstitutional. But it also held that the Provincial Court, as a statutory court, did not have the power to make a declaration of invalidity. All the statutory court could do is rule the provision unconstitutional and decline to apply it in the case before it, but nothing more.

The Supreme Court acknowledged that this left the unconstitutional provision alive in other cases across the province or in future cases that arise, even before the same court. It confirmed that only a superior court could make a ruling of province-wide effect through its power to make declarations.

The effect of this is to leave an unconstitutional law in force across the province. And if the Crown does not appeal the decision, there is no risk of a province-wide declaration of unconstitutionality from a superior court. The Crown remains free to reargue the point in any Provincial Court in the province. (4)

As a practical matter, this means persons in one part of a province can enjoy different Charter protections and can be subject to different laws than those in another part of the province. Under the constitutional principle of the rule of law, (5) laws should apply to similarly situated people in a similar way. They should not apply depending on where you live.

By far, most criminal prosecutions in this country--and thus, most issues involving the all-important criminal law protections of the Charter--take place in provincial courts. The inability of provincial courts, as statutory courts, to have their findings of unconstitutionality apply across the province is a significant hole in the coverage of the Charter. (6)

So why are provincial courts as statutory courts treated so differently from superior courts?

The difference is merely one of historical oddity. The superior courts are the heirs of the Royal Courts in England, such as the High Court of Chancery. Those English courts had inherent jurisdiction. Thus, so do the superior courts. Historically, superior courts have had the power to grant declarations. So it has been said that statutory courts do not have that power unless their statutes give them it.

I call the difference an oddity because in pith and substance there is no difference between superior courts and statutory courts. Institutionally and functionally, courts are courts. The judges who staff them are judges. Their judgments are judgments. For those convicted in either type of court, jail is jail.

Finally, and perhaps more importantly, in pith and substance both are statutory courts. Both have statutes that set out what they can do and add powers that historically did not exist. (7)

Now let's turn to the superior court's inherent jurisdiction and examine it more closely. First, it's important to get our terms right.

The question of jurisdiction, properly defined, is different from the question of the powers that can be exercised. (8) Jurisdiction--literally from the Latin, speaking the law--means the ability of a court to speak on a particular subject-matter; in other words, to consider it. Once a court has the ability to consider a subject-matter, the next question is what it can do while considering that subject-matter; in other words, what powers can it exercise?

An influential article by Sir Jack Jacob 45 years ago--adopted uncritically in Canada (9)--describes "inherent jurisdiction" of a court as a "residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them." (10)

But here Jacob is not really talking about jurisdiction, properly defined. Rather, he is speaking of powers that a court must have by virtue of being a court. This is nothing unique to superior courts. All courts, even statutory courts, have these powers. (11)

With the proper definition of jurisdiction in mind, the inherent jurisdiction of the superior courts means nothing more than a residual jurisdiction over matters that cannot be dealt with by others.

So said the Supreme Court in the 1998 decision in Liberty Net. (12) There it said that superior courts have a "residual jurisdiction" and confirmed that the doctrine of inherent jurisdiction means nothing more than that. (13) In its words, this residual jurisdiction of the superior court "does not operate to narrowly confine a statutory grant of jurisdiction" to another court, nor does it say anything "about the proper interpretation of such a grant." (14)

Liberty Net put the inherent jurisdiction of superior courts in its proper place. Superior courts do have a time-honoured power to grant declarations. But that has nothing to with their inherent subject-matter jurisdiction. Nor does it automatically foreclose the existence or the scope of that power--express, implied or necessarily incidental--in a statutory court.

So why can't statutory courts grant constitutional...