A Judicially Nourished Provision: Has Section 96 Once Again Become a Barrier to Justice?
Abstract
Pursuant to section 96 of the Constitution Act, 1867, the federal executive is responsible for appointing judges to the superior courts. While this provision may seem straightforward, its interpretation has has elevated the status of section 96 courts and confers on them a “core jurisdiction” that is protected from interference by Parliament and legislatures, sometimes at the expense of tribunals and other innovative adjudicative forums.
This paper begins by examining the evolution of section 96 jurisprudence. It then focuses on two recent cases: Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 and Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2022 BCCA 163. This paper argues for a return to a narrower conception of the core jurisdiction of superior courts, emphasizing their role as guardians of the rule of law through robust judicial review. This approach seeks to strike a balance between preserving the rule of law and enhancing access to justice while avoiding the marginalization of section 96.
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