The Remarkable Evolution of Section 96 of the Constitution Act, 1867
I am working on a paper on s. 96 of the Canadian Constitution. Here is a first taste of a very first draft….
Section 96 of the Constitution Act, 1867 seems innocuous – an “uninstructed reading of the section itself” reveals little – providing simply that judges of the superior courts (and the now defunct district and county courts) are to be appointed by the federal executive. Quite what the drafters hoped to achieve remains obscure. The conventional explanation is that they wished to “secure the impartiality and the independence of the Provincial Judiciary” – but it is difficult to see how this would be compromised by provincial rather than federal appointment of superior court judges.
Other justifications have also been offered over the years. Federal appointment was considered to be merit-based, meaning judges would be those who “could best be relied upon to administer justice according to law…” Less loftily, s. 96 might simply have been a means of ensuring that the federal government contributed financially to the running of the courts, or a recognition of the fact that the superior courts had a role to play in applying federal and provincial legislation, providing a “strong constitutional base for national unity, through a unitary judicial system…”
Given that s. 96 and related provisions « n’ont guère retenu l’attention des représentants du peuple », it is hardly surprising that the objectives of the Fathers of Confederation have never provided clear guidance to those charged with interpreting s. 96. One thing can be said with certainty, however: what was considered to be a provision of “merely trifling importance” has since been embellished with a “judicially-nourished luxuriance” and become an imposing feature of Canada’s constitutional landscape. Indeed, s 96 has been described as a “cardinal provision”, one of the “principal pillars in the temple of justice”, that legislatures may not undermine.
Doctrinally, the importance of s. 96 has been as a brake on provincial legislation creating new decision-making bodies or conferring new powers on existing bodies. While the provinces have broad authority under s. 92(14) with respect to the “administration of justice” and the “organization of provincial courts”, a moment’s reflection on the seemingly innocuous s. 96 reveals an important potential problem: what if a legislature purports to create or increase the powers of a body that is similar in nature to a superior court but whose members are not appointed in conformity with section 96? Without tracing the tortuous history of judicial treatment of this question, Canadian courts have consistently held that the “broader import” of s. 96 “is to guarantee the core jurisdiction of provincial superior courts” against incursions by the provinces. For a long time it was thought that section 96 only fettered the ability of provincial legislatures to pass laws for the administration of justice, but it is now clear that it applies to Parliament as well.
A remarkable recent example of the transformation of an appointing provision to a cornerstone of the Canadian constitutional order is the majority decision of the Supreme Court of Canada in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General). At issue were hearing fees prescribed by the province of British Columbia so that litigants would defray some of the costs of trial. The first three days were free, but the fees rapidly escalated thereafter. A ten-day trial would cost $3,600. McLachlin C.J. took the view that these elevated hearing fees were unconstitutional.
Plainly, a province has the competence by virtue of its authority over the administration of justice to provide for such fees. How then was McLachlin C.J. able to conclude nonetheless that the British Columbia regime was unconstitutional? The answer is to be found in the ongoing judicial exegesis of s. 96.
The provincial competence to prescribe fees “does not operate in isolation”; rather, its “ambit must be determined, not only by reference to its bare wording, but with respect to other powers conferred by the Constitution”, here, s. 96. Indeed, the provincial competence was narrowed down not just by other express terms of the Constitution but also by elements necessarily implicit in the Constitution’s structure. In particular, it was necessary to take into account the “special and inalienable status” that has been conferred “on what have come to be called the ‘section 96’ courts”. These have a “core jurisdiction” that cannot be abolished or removed by either level of government, a jurisdiction underpinned by the unwritten constitutional principle of the rule of law.
Accordingly, “[a]s access to justice is fundamental to the rule of law, and the rule of law is fostered by the continued existence of the s. 96 courts, it is only natural that s. 96 provide some degree of constitutional protection for access to justice”. Hearing fees become constitutionally suspect when they are set so high as to “cause undue hardship to the litigant who seeks the adjudication of the superior court”:
The historic task of the superior courts is to resolve disputes between individuals and decide questions of private and public law. Measures that prevent people from coming to the courts to have those issues resolved are at odds with this basic judicial function. The resolution of these disputes and resulting determination of issues of private and public law, viewed in the institutional context of the Canadian justice system, are central to what the superior courts do. Indeed, it is their very book of business. To prevent this business being done strikes at the core of the jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867. As a result, hearing fees that deny people access to the courts infringe the core jurisdiction of the superior courts.
In the absence of sufficient judicial discretion to waive hearing fees, the British Columbia regime was unconstitutional. This even though “[t]here is no express right of general access to superior courts for civil disputes in the text of the Constitution”. And so a humble appointing provision was successfully invoked to strike down regulations established by virtue of clear provincial authority. The remarkable Trial Lawyers Association decision is ample proof of the dramatic increase in the scope of s. 96 and its effect on the administration of justice in Canada.
 John Willis, “Section 96 of the British North America Act” (1940), 18 Canadian Bar Review 517, at p. 518.
 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. By constitutional convention, the Governor General acts on the advice of the federal executive.
 Martineau and Sons Limited v. City of Montreal,  A.C. 113, at p. xxx, per Lord Blanesburgh.
 See generally Gilles Pépin, Les tribunaux administratifs et la Constitution : Étude des articles 96 à 101 de l’A.A.N.B. (Les Presses de l’Université de Montréal, Montreal, 1969), at pp. 78-81.
 Kazakewich v. Kazakewich (1937), 1 D.L.R. 548 (Alta. C.A.), at p. 573, per McGillivray J.A.
 Re Small Debts Recovery Act (1917), 37 D.L.R. 170 (Alta. S.C.), at p. 176, per Harvey C.J.; Renvoi concernant la constitutionnalité de la loi concernant la juridiction de la Cour de magistrat,  B.R. 1, at p. 21, per Choquette J.A.
 Valin v. Langlois (1879), 3 S.C.R. 1, at p. 46, per Fournier J.; Toronto Corporation v. York Corporation,  O.R. 177 (Ont. C.A.), at p. xxx, per Rowell C.J.O.
 Re Residential Tenancies Act, 1979,  1 S.C.R. 714, at p. 728, per Dickson J.
 Gilles Pépin, Les tribunaux administratifs et la Constitution : Étude des articles 96 à 101 de l’A.A.N.B. (Les Presses de l’Université de Montréal, Montreal, 1969), at p. 81.
 John Willis, “Administrative Law and the British North America Act” (1939-1940), 53 Harvard Law Review 251, at p. 266.
 Bora Laskin, “Municipal Tax Assessment and Section 96 of the British North America Act: The Olympia Bowling Alleys Case” (1955), 33 Canadian Bar Review 993, at p. 993.
 O. Martineau & Sons Ltd. v. Montreal City,  A.C. 113, at p. 120 (P.C.), per Lord Blanesborough.
 Toronto Corporation v. York Corporation,  A.C. 415, at p. 426 (P.C.), per Lord Atkin.
 The leading text remains Gilles Pépin, Les tribunaux administratifs et la Constitution : Étude des articles 96 à 101 de l’A.A.N.B. (Les Presses de l’Université de Montréal, Montreal, 1969), while John Willis, “Section 96 of the British North America Act” (1940), 18 Canadian Bar Review 517, is also clear and comprehensive.
 Trial Lawyers Association of British Columbia v. British Columbia (Attorney General),  3 SCR 31, at para. 29, per McLachlin C.J.
 MacMillan Bloedel Ltd. v. Simpson,  4 SCR 725.
  3 SCR 31.
  3 SCR 31, at para. 25.
  3 SCR 31, at para. 26, citing British Columbia v. Imperial Tobacco Canada Ltd.,  2 S.C.R. 473, at para. 66, per Major J.; and Reference re Senate Reform,  1 S.C.R. 704, at para. 26.
 MacMillan Bloedel Ltd. v. Simpson,  4 SCR 725, at para. 52.
  3 SCR 31, at para. 29
  3 SCR 31, at para. 30.
 Reference re Secession of Quebec,  2 SCR 217, at paras. 70-78.
  3 SCR 31, at para. 39.
  3 SCR 31, at para. 32.
  3 SCR 31, at para. 92, per Rothstein J., dissenting.
This content has been updated on November 4, 2015 at 22:24.