THE GENEALOGY OF CORE JURISDICTION.

• Author: Johnson, Alyn James

INTRODUCTION

Canadian courts have used the doctrine of core jurisdiction on numerous occasions to limit legislative power. (1) Yet there are no judgments that provide a stable and satisfactory account of the foundation, the ambit, or the application of core jurisdiction. Indeed, the doctrine itself--which provides that the superior courts have a narrow set of constitutionally protected powers that cannot be removed (2)--is built on a surprising series of mistakes and missteps, and a surprising disregard for sources and contexts.

In a democratic society, where legislative enactments are of the utmost importance and should be challenged by courts only on the basis of clear arguments grounded firmly in the Constitution, this instability is intolerable. I address this troubling situation by undertaking a comprehensive genealogy of core jurisdiction. I situate the doctrine in its governing institutional and jurisprudential context, explore the instabilities that have emerged, and argue for a cogent formulation. To date, a genealogy of core jurisdiction has not been provided by either courts or commentators.

My analysis proceeds chronologically. In Section A, I begin with an influential article written in 1956 by the constitutional law scholar WR Lederman that introduced the concept of a guaranteed "irreducible core" of superior court jurisdiction to the Canadian legal community. (3) I then consider the Supreme Court of Canada's implicit rejection of Lederman's approach in the landmark 1981 decision of Re Residential Tenancies Act, 1979. (4) In Section B, I outline the uncertainties and confusion that emerged soon after Residential Tenancies in several Supreme Court of Canada decisions on the subject of constitutionally protected superior court powers--uncertainties and confusion that ultimately spawned the first two applications of core jurisdiction by Canadian courts: British Columbia (Attorney-General) v Mount Currie Indian Band, (5) and MacMillan Bloedel Ltd v Simpson. (6) These two decisions, from the British Columbia courts in 1991 and 1994 respectively, challenged an express legislative command armed only with doctrinal authorities that cannot withstand scrutiny. In Section C, I address the leading Supreme Court of Canada core jurisdiction decision, MacMillan Bloedel Ltd v Simpson from 1995. I argue that the Supreme Court draws on the structure of the Constitution and the rule of law to provide a sophisticated framework that integrates Lederman's approach with the test instituted in Residential Tenancies. In Section D, however, I argue that whatever advances were made in MacMillan Bloedel must be qualified by the Court's perpetuation of the instabilities evident in the earlier British Columbia decisions and by the introduction of new and unwelcome problems, including most notably the unsubstantiated claim that core jurisdiction is protected by section 96 of the Constitution Act, 1867. (7) This latter claim lacks traction in prior jurisprudence, in MacMillan Bloedel itself, and in the written text of the Constitution, but nevertheless has been readily adopted by the Supreme Court in subsequent judgments. In Section E, I consider the problematic application of core jurisdiction in the 2014 Supreme Court of Canada decision of Trial Lawyers Association of British Columbia v British Columbia (Attorney General), (8) and in a recent Quebec Court of Appeal decision on the constitutional status of the provincial Court of Quebec. (9) In these two judgments, the promising structural framework introduced in MacMillan Bloedel is entirely forgotten, and core jurisdiction--under the dubious auspices of section 96--is given an alarming new ambit.

A genealogical analysis can be quite demanding, both for author and for reader, due to the great focus on detail necessary to chart the development of a central concept over time. In order to navigate this detail in the present discussion, I suggest that it may be helpful to keep three central reference points in mind--points that can be said to define, at least notionally, a dialectic. The thesis comes from Lederman, who maintains that Canadian legislatures (including Parliament) cannot remove a broad category of "core" powers from the superior courts when creating new institutions to apply the law. The antithesis comes from Residential Tenancies, where the Supreme Court of Canada concludes that superior court powers can be transferred to subordinate decision-making bodies where such powers are sufficiently modified to become part of a sophisticated legislative regime. The synthesis comes from MacMillan Bloedel, where the Supreme Court adds a carve-out to Residential Tenancies that recognizes a very narrow category of "core" (and hence unremovable) superior court powers that are essential to the function of the courts within the structure of the Constitution.

This dialectic, which can be said to capture the ideal content of the genealogy of core jurisdiction, is situated within a larger body of conflicting and confusing caselaw. The goal of this paper is to chart a path through this caselaw. My overall analysis is thus largely doctrinal in that I am concerned with the twists, turns, and detours that occurred over time as the courts have wrestled with the complexities of the relative powers of courts and legislatures in the modern state. Nevertheless, I do argue that the MacMillan Bloedel synthesis, grounded on the structure of the Constitution, provides the most coherent basis on which to understand and enforce the core jurisdiction of the superior courts.

Before proceeding, I make a brief stylistic note. While my discussion will involve very frequent use of the word "core" and the phrase "core jurisdiction", I have endeavoured throughout to avoid quotation marks, where possible, in order to create less cumbersome and unsightly sentences and paragraphs. Quotation marks will be used where a specific source is being discussed or referenced, and also where "core jurisdiction" is being expressly contrasted with "inherent jurisdiction".

As a final point, a brief introductory statement about the concept of jurisdiction is appropriate. Speaking in the judicial context, the Supreme Court of Canada observes that jurisdiction is "shorthand for the collection of attributes that enables a court or tribunal to issue an enforceable order or judgment." (10) Speaking more broadly, the Oxford English Dictionary defines jurisdiction as the "official power to make legal decisions and judgements", (11) and the authors of a leading Canadian administrative law textbook define jurisdiction as "a legal power to enter into an inquiry and to decide a matter that will determine a person's rights." (12) Of the various Canadian judicial bodies, the federal courts and all inferior courts and tribunals can be said to gain their respective jurisdictions from statute. The superior courts, on the other hand, gain their jurisdiction both from statute and from the Constitution, the latter due to their status as one of the original institutions of government. The superior courts are said to have "general" or "inherent" jurisdiction, which has been defined as a "residual" and "remedial" reservoir of power to ensure that "if there is a justiciable right, then there must be a court competent to vindicate the right." (13) While this "general" jurisdiction can be understood as being constitutional in origin in that it emanates from the basic structure of the institutions of Canadian government, legislatures remain competent to remove the original "general" jurisdiction of the superior courts at will, (14) subject to one important exception. That exception is core jurisdiction, which has emerged as a narrow subset of superior court powers that are constitutional in the heightened sense of being resistant to removal by legislation. I turn now to consider the genealogy of this protected area of original judicial power.

1. LEDERMAN AND RESIDENTIAL TENANCIES-. ABSOLUTE AND RELATIVE APPROACHES TO PROTECTING SUPERIOR COURT JURISDICTION

   In his 1956 article "The Independence of the Judiciary", WR Lederman argues that the Canadian superior courts have an "irreducible core of substantive jurisdiction" that cannot be removed by legislatures. (15) This claim must be situated within the informing institutional context of the modern administrative state. Throughout the 20th century, Canadian legislatures were faced with the enormous challenge of finding innovative ways to deliver services to millions of citizens in a rapidly changing world, and often determined that transferring judicial powers from courts to more flexible and specialized executive decision-making bodies such as boards, tribunals, and commissions was the most efficient course of action. (16)

   When Lederman wrote his article, the constitutionality of such transfers had already been challenged in Canadian courts on the basis of several provisions of the Constitution Act, 1867, most notably section 96, which states that: "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." (17) In the 1923 decision Re McLean Gold Mines Ltd and The Attorney-General for Ontario, for example, the Ontario Court of Appeal found provincial mining legislation to be ultra vires, observing that:

   To appoint a Commissioner and then to invest him with powers exercisable by a Superior Court, as that term is to be understood in the British North America Act, 1867, is to enable the Province in effect to appoint a Judge of a Superior Court. For what else is he, notwithstanding his designation, if in fact he exercises the jurisdiction, powers, and functions of a Superior Court Judge? (18) In the 1938 decision of Toronto (City) v York (Township), the Privy Council relied on section 96 as well as sections 99 and 100 of the Constitution Act, 1867 (providing for...