What is the test for s. 92(14) of the Constitution Act, 1867, c.97(1) and s. 129 of the Canadian Constitution and what is the effect of the legislation on the inferior courts?
Canada (Federal), Canada
The following excerpt is from Reference re Code of Civil Procedure (Que.), art. 35, 2021 SCC 27 (CanLII):
On the one hand, s. 92(14) gives each province the power and responsibility to legislate in relation to the administration of justice, including for the purpose of creating, transforming or abolishing judicial offices. Section 129 of the Constitution Act, 1867 in fact expressly provides for the continuance of the inferior courts that had civil jurisdiction at the time of Confederation, whose powers are within the exclusive authority of the provinces under s. 92(14). The provinces’ power is a wide one that gives them a great deal of flexibility, allowing them, among other things, to organize their courts in a manner that favours access to justice and strengthens public confidence in the judiciary while at the same time taking their specific needs and challenges into account (Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 39; see also Reference re Adoption Act, 1938 CanLII 2 (SCC), [1938] S.C.R. 398, at pp. 413‑14).
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