A Judiciary Cleaved: Superior Courts, Statutory Courts and the Illogic of Difference
14 Pages Posted: 23 Oct 2017
Date Written: September 1, 2017
Canada has courts created and regulated by statute whose powers primarily emanate from statute. They are known as statutory courts.
Canada also has courts that are created and regulated by statute whose powers primarily emanate from statute but they are the successors in Canada to certain courts in the United Kingdom. They are known as superior courts.
In its jurisprudence, the Supreme Court of Canada--ironically a statutory court itself--treats Canada's statutory courts as lesser cousins to superior courts. This is so even though there is only a fine difference between the two. In their modern emanations, the powers of both types of courts are primarily statutory.
In effect, the Supreme Court has cleaved Canada's judiciary. This article examines the legal and policy reasons for this cleavage and finds them wanting. Specific examination is given to the two recent decisions in Lloyd and Windsor.
This article has been published at (2017) 58 UNBLJ 54. The UNBLJ has consented to its posting in SSRN. The article is a modified version of the 2017 Viscount Bennett Lecture delivered by the author at the University of New Brunswick Faculty of Law, February 9, 2017.
Keywords: Canada, statutory courts, jurisdiction and powers
JEL Classification: K19
Suggested Citation: Suggested Citation