What is the test for a proposal to create concurrent superior court jurisdiction?
British Columbia, Canada
The following excerpt is from R. v. Louie, 1999 CanLII 6172 (BC SC):
In a unanimous judgment, the court in McEvoy v. A.G.N.B. held the proposal to be unconstitutional. The court emphasized the limits placed by s. 96 on the federal capacity to assign the Governor General's appointing power and on the provincial power to exercise an appointing power in relation to s. 96 courts. It found that these limits precluded a full transfer of criminal jurisdiction to a court composed of provincial appointees. The court also concluded that the proposal would not be saved by providing for concurrent superior court jurisdiction, since concurrency did not alter the basic nature of the proposal: the transformation of an inferior court into a superior court.
The court in McEvoy v. A.G.N.B. appeared to give scant consideration to Re Residential Tenancies; however, it indicated that the proposal would fail the Re Residential Tenancies test (at p. 717).
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