THE SUPREME COURT OF CANADA AND THE PROVINCIAL COURT IN CANADA

Abstract

The Supreme Court of Canada has frequently dealt with issues arising from the bifurcated court system created by the Constitution Act, 1867. These decisions of the past provide many guiding principles, but the Supreme Court has never addressed the fundamental issue of the constitutionality of the system of two-tiered trial courts that have evolved since Confederation. The "inferior" national court system, which is now called the Provincial. Court, has grown in jurisdiction, competence, and public importance to such a degree that the following fundamental constitutional question becomes increasingly relevant. Has the modern-day Provincial Court in Canada outgrown its 1867 status of a local, inferior court; and if so, can provincial governments continue to appoint judges to this court? This question puts at risk the very foundation of the court that handles the vast majority of cases in the country. If this question is not addressed properly in other forums it may well be placed before the Supreme Court of Canada, and this is neither fair to the Supreme Court nor is it the best method to address questions of fundamental court reform. This article outlines the history of the Provincial Court, including failed attempts at its fundamental reform, and argues that the Supreme Court's judgments imply the need for future reforms. Rather than letting the question fester and possibly lead to constitutional challenges, the authors propose a coordinated, ongoing study into the future of the Provincial Court to clarify the issues.