MacMillan Bloedel Ltd. v. Simpson

MacMillan Bloedel Ltd. v. Simpson
Collection
Supreme Court Judgments
Date
1995-12-14
Report
[1995] 4 SCR 725
Case number
24171
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 24171
Decision Content
MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725
J.P. Appellant
v.
MacMillan Bloedel Limited Respondent
and
The Attorney General of British Columbia Respondent
and
The Attorney General of Canada Intervener
Indexed as: MacMillan Bloedel Ltd. v. Simpson
File No.: 24171.
1995: June 12; 1995: December 14.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Constitutional law ‑‑ Courts ‑‑ Transfer of superior court powers to inferior tribunal ‑‑ Youth courts granted exclusive jurisdiction to try youths for ex facie contempt of superior courts ‑‑ Whether exclusive grant of jurisdiction constitutional ‑‑ Constitution Act, 1867, s. 96 ‑‑ Young Offenders Act, R.S.C., 1985, c. Y‑1, s. 47(2) .
The appellant, a young person, contravened an injunction of the British Columbia Supreme Court prohibiting protest activities interfering with the respondent's logging operations in the Clayoquot Sound area of Vancouver Island. He was charged with contempt of court and, at trial, made an application to be tried in youth court pursuant to s. 47(2) of the Young Offenders Act. This section states that exclusive jurisdiction over ex facie contempt of court committed by a young person is transferred to the youth court. The application was dismissed and the appellant was later convicted and sentenced to 45 days' imprisonment and a fine. He appealed his conviction on the ground that the British Columbia Supreme Court had no jurisdiction to try him. The Court of Appeal upheld the conviction. The court found s. 47(2) unconstitutional, concluding that the contempt power is within the core jurisdiction of the superior courts and that it is beyond the jurisdiction of Parliament to remove any part of it from those courts. The main issue in this appeal is whether Parliament, pursuant to its criminal law power, can confer upon youth courts the exclusive power to try youths for contempt ex facie of superior courts.
Held (L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier and Cory JJ.: This Court's approval of the Young Offenders Act in Reference re Young Offenders Act does not preclude a separate analysis of whether a particular provision of that Act meets constitutional requirements. That case left open the specific question of whether individual provisions of the Young Offenders Act may offend s. 96 of the Constitution Act, 1867 even though the overall scheme of the Young Offenders Act does not. To determine the validity of the transfer of power in question in this case, a two‑stage analysis is required: first, using the Residential Tenancies test, the Court must decide whether the grant of jurisdiction is permissible; second, if it is, it must decide whether the superior court's jurisdiction can be ousted. The second stage of the analysis only arises when the core or inherent jurisdiction of superior courts is affected. That jurisdiction is integral to their operations and no part of it can be removed by either level of government in the absence of a constitutional amendment.
The history of contempt of court, academic commentary, and the overall scheme of the Criminal Code and the Young Offenders Act all reinforce the view that criminal contempt of court has distinct characteristics from other crimes. The dispute is one between the individual and the court itself. Ex facie criminal contempt of superior courts committed by youths has some aspects of a crime and some aspects of a sui generis court power. To reflect both these aspects, the jurisdiction transferred by s. 47(2) of the Young Offenders Act should be characterized as the power to punish youths for ex facie contempt of a superior court. Once s. 47(2) is properly characterized, the three‑part test outlined in the Residential Tenancies case shows that this power or jurisdiction may be constitutionally given to an inferior court. Although the power to punish youths for ex facie contempt of superior courts was within the jurisdiction of superior courts at Confederation and this power obviously remains judicial in nature even in its new institutional setting, when one considers the institutional function of the youth courts, a transfer of this power is permissible. The policy objectives of the youth court system are clear and laudable. Our society wishes to establish different treatment for youths accused of criminal offences than for adults. Youth courts have an expertise in providing procedural protections appropriate for youths and in deciding punishments for convicted young offenders. The power to punish youths for ex facie contempt of superior courts is merely ancillary to these primary functions. Accordingly, granting jurisdiction to punish youths for ex facie contempt of superior courts does not infringe s. 96 of the Constitution Act, 1867 .
This jurisdiction, however, cannot be granted to the youth court to the exclusion of provincial superior courts. Although the inherent jurisdiction of superior courts is difficult to define, there is no doubt that the power to punish for all forms of contempt is within that jurisdiction. The rule of law requires a judicial system that can ensure that its orders are enforced and its process respected. The provincial superior court is the only court of general jurisdiction in Canada. To remove the power to punish contempt ex facie by youths would maim the institution which is at the heart of our judicial system. Such an alteration is impermissible in Canada in the absence of a constitutional amendment. Thus, in light of its importance to the very existence of a superior court, no aspect of the contempt power may be removed from a superior court without infringing our Constitution and the principle of the rule of law recognized both in the preamble to the Constitution Act, 1867 and in all our conventions of governance. It will, in most instances, be preferable for the youth court to try and punish a youth in ex facie contempt of a superior court, but the provincial superior court's jurisdiction cannot be ousted. It will always be for the superior court to elect whether to hold contempt proceedings against a youth in order to exert control over its process, or to defer to the youth court. In addition, in cases where the youth court does proceed against a youth for contempt ex facie of a superior court, the provincial superior court retains its supervisory power to ensure that the lower court's disposition of the matter is correct.
Section 47(2) of the Young Offenders Act is therefore unconstitutional to the extent that it purports to confer exclusive jurisdiction on the youth court and to deprive a superior court of general jurisdiction of its ex facie contempt power. Section 47(2) is valid to the extent that it confers jurisdiction on the youth court. The section should be read down accordingly. Section 47(2) is thus inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case.
Per L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ. (dissenting): The three‑step test outlined in Residential Tenancies is the appropriate approach in determining whether a transfer of power from a s. 96 court to an inferior court is valid. The test permits only incidental derogations of powers from s. 96 courts, and then only to the extent that the judicial nature of such powers is transformed by the administrative context in which they are exercised. By focusing on the function of the power in the administrative context rather than the nature of the power conferred, this test provides sufficient flexibility to equip administrative tribunals with the powers they need to do their work, while preserving the constitutional position of the s. 96 courts. There is no need for an additional condition that the transfer not involve any aspect of the "core" inherent powers of the superior court. The proposed "core test" needlessly derogates from the functional approach of the Residential Tenancies test, making a shift toward a more categorical approach. This new test would amount to an important new fetter on the ability of Parliament and the provincial legislatures to create effective tribunals to ensure compliance with regulatory schemes.
The conferral of exclusive power over ex facie contempt of the court committed by juveniles on the youth court, and its removal from s. 96 courts, brings this case directly within the ambit of the Residential Tenancies test. There is nothing exceptional in the exclusive nature of the transfer of the s. 96 power to the inferior tribunal. If an administrative scheme is to operate effectively with a minimum of procedural confusion, it is typically essential that the tribunal have exclusive power to decide the matters at issue.
Further, the inherent power of superior courts to regulate their process does not preclude elected bodies from enacting legislation affecting that process. The court's inherent powers exist to complement the statutory assignment of specific powers, not override or replace them. Courts must conform to the rule of law and, while they can exercise more power in the control of their process than is expressly provided by statute, they must generally abide by the dictates of the legislature. It follows that Parliament and the legislatures can legislate to limit and define the superior courts' inherent powers, including their powers over contempt, provided that the legislation is not otherwise unconstitutional. Parliament may thus enact s. 47(2) of the Young Offenders Act, provided that the conditions of the Residential Tenancies test are met.
The functional approach of the Residential Tenancies test is adequate to protect the s. 96 courts. Transfers of s. 96 jurisdiction to inferior tribunals have not ousted the power of the superior courts. These courts still have their rights of review of inferior tribunals' decisions and ensure that the law is followed and fair process maintained. Moreover, the facts of this case do not support the contention that powers essential to the proper functioning of s. 96 courts are in danger of being eroded. What is essential to maintaining the authority of a court is that consequences attach to the disobedience of its order, not the source of those consequences. Ex facie contempt of court is generally prosecuted, like any other crime, by the Attorney General, who gathers the evidence and presents the case to the court, and the youth court is just as able to protect the validity and efficacy of a superior court order as is the superior court. If the youth court errs, or fails to proceed where it should, it is subject to the corrective power of the superior court on judicial review or of the Court of Appeal on appeal. The superior court itself may initiate proceedings by referring a charge of ex facie contempt of court to the youth court. More importantly, the residual inherent jurisdiction of the superior courts to take such measures as may be required to preserve their process guarantees that the process of the superior courts will not be undermined by a transfer of juvenile contempt of court ex facie to the youth courts. Should the administration of justice require that a particular case be tried in superior court, that court possesses the inherent power to hold such a trial. Where the use of a legislative provision or rule of court would itself amount to an abuse of the court's process, the court may invoke its inherent jurisdiction to ensure that justice is done. Section 47(2) of the Young Offenders Act is no exception. That section, however, poses no threat to the authority of the superior courts. In leaving the power to try youths for in facie contempt of court with the superior courts, Parliament has carefully considered and weighed what is necessary to permit the superior courts to preserve their authority.
Parliament's transfer of contempt of court ex facie by youths from the s. 96 superior courts to the youth courts is valid. The test for transfer laid down in Residential Tenancies is met and this test alone suffices to determine this appeal. The power was historically possessed by s. 96 courts, it is judicial, and it is merely ancillary to the larger role of the youth courts in relation to the special problems and needs of young offenders. Since the constitutionality of s. 47(2) of the Young Offenders Act has not been successfully challenged, it follows that the appellant should have been tried in youth court. His conviction in superior court should be set aside and the charges remitted to youth court for trial.
Cases Cited
By Lamer C.J.
Applied: Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; considered: Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; referred to: Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; R. v. Vermette, [1987] 1 S.C.R. 577; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; Chrysler Canada Ltd. v. Canada (Competition Tribunal), [1992] 2 S.C.R. 394; British Columbia (Attorney‑General) v. Mount Currie Indian Band (1991), 64 C.C.C. (3d) 172.
By McLachlin J. (dissenting)
Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Toronto v. York, [1938] A.C. 415; Reference re Adoption Act, [1938] S.C.R. 398; Labour Relations Board of Saskatchewan v. John East Iron Works, Ltd., [1949] A.C. 134; Tomko v. Labour Relations Board (Nova Scotia), [1977] 1 S.C.R. 112; City of Mississauga v. Regional Municipality of Peel, [1979] 2 S.C.R. 244; Attorney General of Quebec v. Grondin, [1983] 2 S.C.R. 364; Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238; Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704; Glover v. Glover (No. 1) (1980), 113 D.L.R. (3d) 161, aff'd [1981] 2 S.C.R. 561; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, s. 9 [rep. & sub. c. 27 (1st Supp.), s. 6 ]; 127(1), 484 [am. c. 27 (1st Supp.), s. 203 ], 486(1) [idem], (4) [rep. & sub. c. 23 (4th Supp.), s. 1 ], (5), 605(2) [am. c. 27 (1st Supp.), s. 203 ], 708(1).
Constitution Act, 1867, ss. 91(27) , 92(14) , 96 , 97 to 101 , 129 .
Young Offenders Act, R.S.C., 1985, c. Y‑1, ss. 2(1) "offence", 5(1), 47.
Authors Cited
Borrie and Lowe's Law of Contempt, 2nd ed. By Nigel Lowe. Consultant Editor, Sir Gordon Borrie. London: Butterworths, 1983.
Cromwell, T. A. "Aspects of Constitutional Judicial Review in Canada" (1995), 46 S.C. L. Rev. 1027.
Fox, Sir John C. The History of Contempt of Court: The Form of Trial and the Mode of Punishment. London: Professional Books Ltd., 1972.
Hogg, Peter W. Constitutional Law of Canada, 3rd ed. Scarborough, Ont.: Carswell, 1992.
Jacob, I. H. "The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23.
Mason, Keith. "The Inherent Jurisdiction of the Court" (1983), 57 A.L.J. 449.
Miller, Christopher J. Contempt of Court. Oxford: Clarendon Press, 1989.
Popovici, Adrian. L'outrage au tribunal. Montréal: Thémis, 1977.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 90 B.C.L.R. (2d) 24, 113 D.L.R. (4th) 368, 89 C.C.C. (3d) 217, 21 C.R.R. (2d) 116, 43 B.C.A.C. 1, 69 W.A.C. 1, dismissing the young person's appeal from his conviction for contempt of court (1993), 12 C.E.L.R. (N.S.) 81. Appeal dismissed, L'Heureux‑Dubé, McLachlin, Iacobucci and Major JJ. dissenting.
Marilyn E. Sandford, for the appellant.
Peter W. Ewert, Q.C., for the respondent the Attorney General of British Columbia.
John R. Haig, Q.C., for the intervener.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier and Cory JJ. was delivered by
Lamer C.J. --
I. Introduction
1 This case requires us to decide whether Parliament, pursuant to its criminal law power, can confer upon youth courts the exclusive power to try youths for contempt ex facie of superior courts. To put the question another way, must superior courts retain the power to try charges of contempt, both in facie and ex facie. The problematic aspect of the impugned legislative provision is precisely the exclusivity of the grant of jurisdiction. The historical evolution of the provincial superior courts and their importance to our constitutional structure require that these superior courts retain the full range of their inherent contempt powers. While it need not have exclusive jurisdiction, curbing the power of a superior court to control its own process alters its essence, making it something less than a superior court. Such an alteration is impermissible in Canada in the absence of a constitutional amendment.
2 To resolve this issue we must consider both whether the grant of jurisdiction to the youth court is permissible and whether removing the corresponding jurisdiction from the superior court is equally so. The jurisprudence concerning s. 96 of the Constitution Act, 1867 gives guidance in considering the grant of jurisdiction. The removal of jurisdiction is better analyzed in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867 , the principle of the rule of law, and the central place of the superior courts in our system of governance.
II. Constitutional Question
3 The following constitutional question was stated:
Is it within the jurisdiction of Parliament to grant exclusive jurisdiction to youth courts, through the operation of s. 47(2) of the Young Offenders Act, R.S.C., 1985, c. Y-1 , over contempt of court committed by a young person against a superior court otherwise than in the face of that court?
III. Factual Background
4 On July 19, 1993, the appellant was arrested and charged with contempt of court while participating in protest activities in the Clayoquot Sound area of Vancouver Island. Along with many others, a large number of whom were also arrested, the appellant stood on a logging road and refused to move thus preventing employees of MacMillan Bloedel Limited from reaching their job sites. This activity contravened an injunction of the British Columbia Supreme Court ordering that MacMillan Bloedel's operations not be obstructed. The appellant was 17 years old at the time of his arrest.
5 At trial, counsel for the appellant made an application for him to be tried in youth court. Bouck J., relying on the decision in British Columbia (Attorney-General) v. Mount Currie Indian Band (1991), 64 C.C.C. (3d) 172 (B.C.S.C.), dismissed this application. The appellant was convicted on October 6, 1993, and on October 13, 1993, was sentenced to 45 days' imprisonment and a $1000 fine: (1993), 12 C.E.L.R. (N.S.) 81 and 104.
IV. Statutory Provisions
6 The impugned legislative provision in this case is:
Young Offenders Act, R.S.C., 1985, c. Y-1
47. . . .
(2) The youth court has exclusive jurisdiction in respect of every contempt of court committed by a young person against the youth court whether or not committed in the face of the court and every contempt of court committed by a young person against any other court otherwise than in the face of that court.
Other provisions relevant to resolving the case are:
Young Offenders Act
2. (1) In this Act,
. . .
"offence" means an offence created by an Act of Parliament or by any regulation, rule, order, by-law or ordinance made thereunder other than an ordinance of the Yukon Territory or the Northwest Territories;
5. (1) Notwithstanding any other Act of Parliament but subject to the National Defence Act and section 16 , a youth court has exclusive jurisdiction in respect of any offence alleged to have been committed by a person while he was a young person and any such person shall be dealt with as provided in this Act.
Criminal Code, R.S.C., 1985, c. C-46
9. Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 736
(a)of an offence at common law,
. . .
but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.
V. The British Columbia Court of Appeal
7 The issue before this Court is but one of the many addressed in the Court of Appeal judgment. We denied leave to appeal with respect to the various other issues. The Court of Appeal was called upon to decide numerous questions pertaining to the joint contempt of court trial of 44 individuals who had defied the injunction. Thirty-one individuals appealed their convictions and another group appealed their sentences in a separate proceeding. While other trials arising from breaches of the same injunction were held later, J.P. was the only youth involved in this particular appeal. The British Columbia Court of Appeal unanimously upheld the contempt of court convictions: (1994), 90 B.C.L.R. (2d) 24, 113 D.L.R. (4th) 368, 89 C.C.C. (3d) 217, 21 C.R.R. (2d) 116, 43 B.C.A.C. 1, 69 W.A.C. 1. The sentence appeals were allowed to the extent that all fines were removed from the sentences: (1994), 47 B.C.A.C. 264.
8 McEachern C.J.B.C. penned the reasons of the court. In response to the argument that J.P. should be tried before a youth court pursuant to s. 47(2) of the Young Offenders Act, he struck down s. 47(2) as unconstitutional. In his reasons, McEachern C.J.B.C., like Bouck J. at trial, followed the principles set out by Macdonald J. in Mount Currie Indian Band, supra. McEachern C.J.B.C. considered both the nature of the contempt power and the jurisprudence which recognizes that superior courts have a "core" or "inherent" jurisdiction that is beyond the reach of Parliament and the provincial legislatures in the absence of constitutional amendment. In particular, he noted the decisions of this Court in McEvoy v. Attorney General for New Brunswick, [1983] 1 S.C.R. 704, and in Reference re Young Offenders Act (P.E.I.), [1991] 1 S.C.R. 252; the former for the proposition that the superior courts are independent of both levels of government and the latter for the principle that superior courts have a core jurisdiction which is, in McEachern C.J.B.C.'s words, "untouchable". Throughout his reasons, McEachern C.J.B.C. carefully separated criminal law jurisdiction from the contempt power of superior courts. He concluded that as the contempt power is within the core jurisdiction of the superior courts, no part of it can be transferred away from those courts to the youth courts.
VI. Analysis
9 I agree in part with McEachern C.J.B.C.'s analysis, particularly with his consideration of the inherent jurisdiction of superior courts and the nature of the contempt power. Nonetheless, in keeping with my conclusion that the essence of the problem before us is the exclusivity of the grant of jurisdiction to the youth court, I find that our jurisprudence on this question mandates a two-part analysis. After reviewing our s. 96 jurisprudence, therefore, I will first consider whether this grant of jurisdiction can be made and next consider whether the superior court's jurisdiction can be ousted. The first inquiry involves examining the nature of the contempt power; the second necessitates elaboration of the inherent jurisdiction of superior courts and recognition of their importance to our constitutional structure.
A. The Section 96 Jurisprudence
10 This Court's decision in McEvoy, supra, establishes that s. 96 of the Constitution Act, 1867 , limits both Parliament and the provincial legislatures. Accordingly, the first analytic step is to consider the s. 96 jurisprudence to date to determine how that limitation takes effect.
11 Writing for the Court in Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, Dickson J. (as he then was) reviewed the s. 96 jurisprudence up to that time and fashioned its principles into a three-part test for determining which powers, under which circumstances, can be transferred to inferior courts or to administrative tribunals without infringing the guarantee of judicial independence which s. 96 has come to stand for. Dickson J. asserted that the judicature sections of the Constitution Act, 1867 limit the power of the provincial legislatures under s. 92(14) over the administration of justice in a province and provide a unifying force to the Canadian judicial system (at p. 728):
Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation. It is plain that what was sought to be achieved through this compromise, and the intended effect of s. 96 , would be destroyed if a province could pass legislation creating a tribunal, appoint members thereto, and then confer on the tribunal the jurisdiction of the superior courts. What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined.
After reviewing the jurisprudence, Dickson J. concluded that there was a general trend towards an increasingly broad test of constitutional validity, except in cases where the judicial function in question is isolated from the rest of the administrative structure of the legislation in question. Having thus stated his view of the purpose of the constitutional provisions and the directions in the jurisprudence, he elaborated the test which is now our standard for analysing grants of jurisdiction to tribunals not presided over by s. 96 judges.
12 The first branch of the test is an historical inquiry into "whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation" (p. 734). He emphasizes that this phase involves a temporary isolation of the power or jurisdiction in question, which is to be considered in its context at the second and third stages of the test. Of course, if the power in question does not conform to one exercised by a superior court in 1867, the inquiry ends here. The second step asks whether the function in question is "judicial" in its institutional setting, and he contrasts "judicial" functions with policy making functions. The final branch of the test involves an assessment of the "tribunal's function as a whole in order to appraise the impugned function in its entire institutional context" (p. 735). Under this branch of the test it is permissible for administrative tribunals and inferior courts to exercise powers historically belonging to courts with s. 96 judges provided those judicial powers are "merely subsidiary or ancillary" to the general administrative functions assigned to the tribunal (at p. 736).
13 Applying this three-part test to the legislative scheme set out in the Act before the Court, Dickson J. found that the creation of the Residential Tenancy Commission infringed s. 96 . The legislation could not be saved by either the second or third branches of the test. In his analysis of the third branch, Dickson J. noted that the chief role of the Commission was not to administer policy or to carry out an administrative function. While the legislation aimed to address an acknowledged social problem, he stated (at p. 750):
. . . however worthy the policy objectives, it must be recognized that we, as a Court, are not given the freedom to choose whether the problem is such that provincial, rather than federal, authority should deal with it. We must seek to give effect to the Constitution as we understand it and with due regard for the manner in which it has been judicially interpreted in the past. If the impugned power is violative of s. 96 it must be struck down.
Following McEvoy, supra, this conclusion is equally applicable to devolution of powers to a federally created court or tribunal. Essential historic functions of superior courts cannot be removed from those courts and granted to other adjudicative bodies to meet social policy goals if the resulting transfer contravenes our Constitution.
14 An important addition to the Residential Tenancies test was elaborated in Sobeys Stores Ltd. v. Yeomans, [1989] 1 S.C.R. 238, where Wilson J. described the characterization of the transferred power as preliminary to the first or historical branch of the test. Considering that the second and third branches of the test are designed to preserve some grants of power despite the fact that the powers were within the exclusive jurisdiction of the superior courts at Confederation, Wilson J. concluded that the test requires a strict, or narrow, approach to characterization to prevent large accretions of power (at p. 254). As many present day remedies were not available in 1867, characterization should highlight the type of dispute rather than the type of remedy sought. She also states that the same characterization must be used at each stage of the test. The complexity of the characterization question is demonstrated in the Reference re Young Offenders Act case.
15 The decision in Reference re Young Offenders Act is important to my analysis in this case both because it continues the development of the s. 96 jurisprudence and because it addresses in a broad manner the same Act which is before the Court now. I opened my analysis in Reference re Young Offenders Act by stating (at p. 264):
Section 96 of the Constitution Act, 1867 is regarded as a means of protecting the "core" jurisdiction of the superior courts so as to provide for some uniformity throughout the country in the judicial system. The case law has developed principles to ensure that s. 96 would not be rendered meaningless through the use of the provincial competence to constitute, maintain and organize provincial courts staffed with provincially appointed judges having the same jurisdiction and powers as superior courts.
. . . if the jurisdiction conferred on Youth Courts by Parliament is within the core of jurisdiction of superior courts, Parliament cannot confer such jurisdiction on courts presided over by judges not appointed in accordance with s. 96 .
While there were three judgments in the case, none of my colleagues took issue with my statement of the law regarding the core jurisdiction of the superior courts. The superior courts have a core or inherent jurisdiction which is integral to their operations. The jurisdiction which forms this core cannot be removed from the superior courts by either level of government, without amending the Constitution. Without this core jurisdiction, s. 96 could not be said either to ensure uniformity in the judicial system throughout the country or to protect the independence of the judiciary. Furthermore, the power of superior courts to fully control their own process is, in our system where the superior court of general jurisdiction is central, essential to the maintenance of the rule of law itself. I discuss the contents and contours of the core jurisdiction below.
16 The second aspect of the Reference re Young Offenders Act decision which figures in my analysis here is the precise issue which was determined at that time. In that case, four constitutional questions were addressed:
1.Is the Young Offenders Act . . . unconstitutional on the basis and to the extent that it does not specifically require that the Youth Court be presided over by a Judge appointed pursuant to s. 96 of the Constitution Act, 1867 ?
2.Is the establishment by a Province of a Youth Court as defined by s. 2 of the Young Offenders Act within the legislative competence of the Province pursuant to s. 92 of the Constitution Act, 1867 ?
3.(a)Is the appointment of a Youth Court Judge an appointment which must be made by the Governor in Council pursuant to s. 96 of the Constitution Act, 1867 ?
(b)If the answer to (a) is no,
(i) Can a Provincial Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?
(ii) Can a Supreme Court Judge be appointed a Judge of the Youth Court by the Lieutenant Governor in Council?
These questions demonstrate that our review of the legislation at the time was undertaken from a broad perspective in light of the overall policy aims of the Act. In particular, the focus of the inquiry was judicial appointments and the establishment of youth courts. Our approval of the Young Offenders Act at that time does not preclude a separate analysis in this case of whether a particular provision of that Act meets constitutional requirements.
17 In addition, my characterization of the issue, which was accepted by my colleagues, stated (at p. 268):
I am of the view that the jurisdiction in issue here should be characterized as jurisdiction over young persons charged with a criminal offence. I do not mean to say that Youth Courts' jurisdiction is limited to criminal offences but I think it appropriate to limit the inquiry of this Court to the facts of this case. The Court has not had the benefit of hearing arguments on the jurisdiction of the superior and inferior courts on matters other than criminal offences, nor has the issue been examined in the factums. [Emphasis added.]
In the Young Offenders Act "offence" is defined as "an offence created by an Act of Parliament or by any regulation, rule, order, by-law or ordinance made thereunder other than an ordinance of the Yukon Territory or the Northwest Territories". As a common law provision, contempt of court is not, therefore, an offence within the meaning of the Act. On this strict interpretation, the Young Offenders Act decision cannot be said to preclude us from considering whether the contempt of court provisions of that Act offend s. 96 . Reasoning more broadly, my characterization of the issue clearly stated that some aspects of the youth courts' jurisdiction were not considered by the Court at that time. Contempt of court powers granted by s. 47 of the Act were one of those aspects.
18 The Reference re Young Offenders Act decision states explicitly that there is a core jurisdiction of superior court powers which cannot be removed by either level of government in the absence of a constitutional amendment. It also leaves open the specific question of whether individual provisions of the Act may offend s. 96 even though the overall scheme of the Act does not. While it was not required in that case, Reference re Young Offenders Act mandates a two-stage analysis in cases like the present. The first stage, following the jurisprudence of Residential Tenancies and Sobeys Stores, is to consider whether the grant of jurisdiction is permissible. The second stage, considering the emphasis on core jurisdiction in Reference re Young Offenders Act, is to decide whether the superior court's jurisdiction can be ousted. In other words, the second stage weighs whether an exclusive grant of jurisdiction is permissible.
B. Is the Grant of Jurisdiction Permissible?
(1)Characterization
19 The first step in analysing whether a grant of jurisdiction infringes s. 96 is to properly characterize the provision in question. The provision here is not adequately described by the characterization I set out in Reference re Young Offenders Act. There the jurisdiction at stake was "jurisdiction over young persons charged with a criminal offence" (p. 268). In addition to being overly broad for this case, this characterization is inappropriate given the nature of criminal contempt of court. Unlike my colleague, I find that the history of contempt of court, academic commentary, and indeed the provisions of the Young Offenders Act and the Criminal Code , all reinforce the view that criminal contempt of court is unique among crimes. It may even be inappropriate to call it a crime. A careful consideration of the nature of criminal contempt of court is essential to properly characterizing the power being transferred by s. 47(2) of the Young Offenders Act.
20 The authoritative history of contempt of court was written by Sir John Fox in 1927 (The History of Contempt of Court: The Form of Trial and the Mode of Punishment (reprinted 1972)). In his introductory remarks, he states that contempt of court has been a recognized phrase in English law from the twelfth century to the present time, and continues (at p. 1):
The punishment of contempt is the basis of all legal procedure and implies two distinct functions to be exercised by the Court: (a) enforcement of the process and orders of the Court, disobedience to which may be described as `civil contempt', and (b) punishment of other acts which hinder the administration of justice, such as disturbing the proceedings of the Court while it is sitting (contempt in court) or libelling a Judge or publishing comments on a pending case (contempt out of court), which are both distinguished as `criminal contempt'.
The distinction he draws between civil and criminal contempt does not precisely correspond with the distinction drawn in contemporary Canadian law, but this is of little import given the difficulties in establishing that distinction. He does note, also, that some contempts are both civil and criminal. Fox's work demonstrates that the punishment of contempt predated the development of criminal law.
21 Discussing the law of contempt in England, which has been partially codified by the Contempt of Court Act 1981 (U.K.), 1981, c. 49, C. J. Miller states:
Although criminal contempt of court is a criminal offence punishable in the superior courts by an unlimited fine or a fixed period of imprisonment of up to two years it has many characteristics which distinguish it from ordinary crimes. Indeed these characteristics are so marked that criminal contempt may be said to be an offence sui generis.
(Contempt of Court (1989), at p. 5.)
Among the unique characteristics of contempt which Miller notes are the summary process by which some contempts are tried, the manner of initiating proceedings, how evidence is given, and sentencing. Borrie and Lowe also address the relationship between criminal contempt and other crimes:
In so far as contempt constitutes a crime it is best to regard it as a crime that is sui generis since there are a number of peculiarities associated with the offence of which perhaps the outstanding example is the summary process by which such crimes are prosecuted.
(Borrie and Lowe's Law of Contempt (2nd ed. 1983), at p. 3.)
22 Commenting in the Canadian context on the parallels between certain Criminal Code provisions which create offences dealing with the administration of justice, Adrian Popovici writes:
[translation] The parallel and complementary role of contempt of court in our system is explained by the characterization of power which we have given it. Contempt of court can only be understood by considering that it is part power and part offence. In fact, one could imagine a system in which contempt of court was eliminated completely and replaced by a number of criminal offences or penal sanctions. The elimination of contempt of court would be the elimination of the summary procedure, which can be explained historically only by the power aspect of contempt of court. [Emphasis in original.]
(L'outrage au tribunal (1977), at p. 130.)
While it is indeed possible to conceive of a system where all of the contempt powers are transformed into codified