canada constitutional-law
Why did s 92(14) (of the Constitution Act, 1867) permit Provincial Superior Courts to adjudicate some matters falling under federal legislative power?
<p>Source: <a href="http://emond.ca/introduction-to-law-in-canada.html" rel="nofollow noreferrer"><em>Introduction to Law in Canada</em></a> (2014). p. 173 Bottom.</p>

<blockquote>
  <h2>Superior Courts</h2>
  
  <p>Like the inferior courts, the superior courts fall into two categories: provincial/territorial 
  and federal. </p>
  
  <h3>Provincial and Territorial</h3>
  
  <p>The <strong>provincial superior courts</strong>, as noted above, are constituted under <a href="https://en.wikipedia.org/wiki/Section_92(14)_of_the_Constitution_Act,_1867#CITEREFWhyte1985" rel="nofollow noreferrer">section 92(14)</a> of 
  <em>the Constitution Act, 1867,</em> with their judges appointed <strong><em>federally</em></strong> under section 96 of the 
  Act. Because of this they are sometimes referred to as <strong>section 96 courts</strong>. Why are the 
  judges in these provincial courts appointed federally? Though these are provincial courts, 
  they can, under section 92(14), hear not only matters falling under provincial legislative 
  power (for example, motor vehicle accident cases) but also <code>some matters falling under federal legislative power (for example, bankruptcy cases)</code>. (See Chapter 5 for a discussion of 
  how legislative power is divided under Canada's Constitution.) The fact that the judges in 
  these provincial superior courts are federally appointed ensures balance. Balance is needed because of the power these provincial courts have to adjudicate certain federal matters. </p>
</blockquote>

<ol>
<li><p>Why did the framers allow provincial superior courts to adjudicate <code>some matters falling under federal legislative power (for example, bankruptcy cases)</code>? Why didn't the framers confine to the Federal Court? </p></li>
<li><p>Why blur the distinction between provincial v. federal jurisdiction? </p></li>
</ol>

<p>The general principle is that provinces are primarily responsible for the courts, and they adjudicate both provincial and federal law, with exceptions as provided for in the Constitution. Any additional details require a decent amount of background on parts of the Constitution, so please bear with me.</p>

<h1>Canadian Federalism</h1>

<p>A quick discussion on Canadian federalism may help understand the context of the sections you are asking about. Canada's federal system has some blurry or intricate lines between provincial and federal legislative domains. Beyond the federal appointment of provincial superior court judges, a few other cases of these lines can be found in the distribution of legislative powers found in <a href="http://laws-lois.justice.gc.ca/eng/Const/page-4.html" rel="nofollow noreferrer">sections 91 and 92</a> of the Constitution Act, 1867. </p>

<p>For example, while marriage and divorce is a federal competency, the solemnization of marriage is a provincial competency. Another common example is that with criminal law being a completely federal concern, the federal government can often enact criminal law on what would otherwise be a provincial concern.</p>

<p>In dealing with the interplay of provincial and federal powers, the Supreme Court noted in <a href="https://en.wikipedia.org/wiki/Canada_(AG)_v_PHS_Community_Services_Society" rel="nofollow noreferrer">Canada (AG) v PHS Community Services Society</a> that Canadian constitutional interpretation is evolving "towards the more flexible concepts of <a href="https://en.wikipedia.org/wiki/Double_aspect" rel="nofollow noreferrer">double aspect</a> and cooperative federalism."</p>

<p>For more info, see <a href="https://en.wikipedia.org/wiki/Canadian_federalism" rel="nofollow noreferrer">this Wikipedia article on Canadian federalism</a>, which is surprisingly detailed.</p>

<h1>Canada's Judiciary</h1>

<p><a href="http://laws-lois.justice.gc.ca/eng/Const/page-4.html" rel="nofollow noreferrer">Section 92(14)</a> of the Constitution Act, 1867 places the judiciary under primarily <em>provincial</em> responsibility:</p>

<blockquote>
  <p>The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.</p>
</blockquote>

<p>There are of course exceptions, the Supreme Court being the most obvious example. These exceptions are authorized by <a href="http://laws-lois.justice.gc.ca/eng/Const/page-5.html#h-25" rel="nofollow noreferrer">section 101</a> of the Constitution Act, 1867 which gives Parliament the ability to set up federal courts by ordinary statute:</p>

<blockquote>
  <p>The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. </p>
</blockquote>

<p>This has been done for example in the areas of intellectual property, and tax, among others.</p>

<p>Note that Canada's judiciary is <strong>unified</strong>. As a general rule, <em>any</em> court is competent to adjudicate both provincial and federal law, unless that jurisdiction has specifically been removed from the provincial courts by a section 101 statute. Note that the Supreme Court has final say on all provincial and federal law. This is in contrast with the U.S. where its Supreme Court cannot overrule a state supreme court on matters of state law.</p>

<p>For more info, see <a href="https://en.wikipedia.org/wiki/Court_system_of_Canada" rel="nofollow noreferrer">this Wikipedia article on Canada's court system</a>, which again, is surprisingly detailed.</p>

<h1>Answers to your specific questions</h1>

<p>"Why" questions are usually more of a political or historical question than one of law, but I'll do my best.</p>

<blockquote>
  <p>Why did the framers allow provincial superior courts to adjudicate some matters falling under federal legislative power (for example, bankruptcy cases)?</p>
</blockquote>

<p>I would say "some matters" is a little misleading, it is instead most. It's less about the Constitution allowing provincial superior courts to adjudicate matters falling under federal legislative power, and more about allowing the federal government to take away jurisdiction under section 101. Note that provincial superior courts aren't special in this respect, any provincial court can still adjudicate on matters falling under federal legislative power.</p>

<blockquote>
  <p>Why didn't the framers confine to the Federal Court?</p>
</blockquote>

<p>Because of section 101, this isn't needed. Should the federal government wish to take over exclusive jurisdiction of a federal competency, they can.</p>

<blockquote>
  <p>Why blur the distinction between provincial v. federal jurisdiction?</p>
</blockquote>

<p>This question really strikes at the design of Canadian federalism. With respect to federal appointment of provincial superior court judges, I think it's only natural to have some federal input in the spirit of cooperative federalism, especially given that provincial courts can adjudicate federal legislation.</p>

<p><em>Disclaimer: The rest of this answer is much more history than law</em></p>

<p>As a more general question with respect to these blurry or intricate distinctions throughout the Constitution, we have to go back to its design from 1864-1867. I am greatly summarizing, but the design of Canadian federalism is mainly due to two things: the American Civil War and Quebec (and a third, staying under the British monarchy, but that's less relevant to this question). For further information see <a href="http://publications.gc.ca/Collection-R/LoPBdP/BP/bp187-e.htm" rel="nofollow noreferrer">here</a> and <a href="https://www.macdonaldlaurier.ca/18745/" rel="nofollow noreferrer">here</a>.</p>

<p>Having just seen the American Civil War at its end, the framers wanted a unitary government with little to no provincial rights. However, as a practical matter, Quebec's distinct culture and legal system made this infeasible. A federation with a strong central government and provinces having power over local matters was thus envisioned. The separation of legislative domains flowed from that principle.</p>

<p>This does raise the question of why the judiciary was given to the provinces by default, as it does seem like an important piece that should have been given to the federal government. One reason might be that section 101 does reserve the federal government some control anyway. Another might be that the judiciary was just not that powerful at confederation. For example, it wasn't until the Constitution Act, 1982, that the courts were explicitly allowed to strike down a statute as unconstitutional thanks to <a href="http://laws-lois.justice.gc.ca/eng/Const/page-16.html#h-58" rel="nofollow noreferrer">section 52(1)</a> (though I believe they already had been with respect to <em>ultra vires</em> laws).</p>
