Canada's Trial Courts: Two Tiers or One?

Alexander David Kurke is a criminal lawyer in Sudbury, Ontario.

The Canadian constitution permits the co-existence, within each province, of federally appointed judges presiding over superior courts, and provincially appointed judges in charge of provincial courts. In 12 chapters by different authors, and an introduction and conclusion by editor Peter Russell, this volume assembles contributions from a May 2002 conference on “Trial Courts of the Future,” and addresses whether Canada can and should consolidate its two levels of provincial trial court into a single tier, and how it could be done.

In the first chapter, Martin Friedland explains judicial resistance to the idea of consolidation in the criminal context, and factors that militate in favour of consolidation. In Chapter 2, Carl Baar reflects on the fact that provincial courts have developed into the primary criminal courts, while superior courts primarily concern themselves with civil disputes. This fact is underscored in Chapter 3 by the statistical data analyzed by Cheryl Webster and Anthony Doob. In chapter four, Patrick Healy considers and questions the Supreme Court’s decision in the 1983 McEvoy case, which entrenched superior court jurisdiction and independence.

Next, various authors discuss current experiments in court reform throughout Canada. Chief Justice Huguette St.-Louis explores how Quebec has, within constitutional boundaries, expanded its provincial jurisdiction virtually to cover the field (Chapter 5). In Chapter 6, Marian Tyson discusses consolidation from an administrator’s perspective. In Chapter 7 Nora Sanders explains how Nunavut’s Court of Justice operates as a single-tiered court. David Hancock finishes off this part by considering a model of consolidation for Alberta, in which the federal government appoints judges with significant provincial input into the appointment process.

John Borrows and Justice Gerald Seniuk provide the most far-reaching model of consolidation and reform in their “House of Justice” model (Chapter 9). In Chapter 10, Ontario’s Superior Court discourages judicial unification while encouraging some consolidation of court administration. Clark Kelso describes court unification in California (Chapter 11), and Ian Scott the English experience (Chapter 12).

This book offers a thorough and nicely integrated discussion of court unification by persons with the expertise to speak authoritatively about the various issues.