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The first is the term "provincial court", which has two quite different meanings, depending on context. The first, and most general meaning, is that a provincial court is a court established by the legislature of a province, under its constitutional authority over the administration of justice in the province, set out in s. 92(14) of the Constitution Act, 1867. [2]
The superior courts of original jurisdiction have an extensive civil jurisdiction, under both federal and provincial laws. Under the Criminal Code, a federal statute, they have jurisdiction over the most serious criminal offences, such as murder. [82] They also hear appeals from the Provincial Courts in criminal matters and some civil matters.
The federal government is partially limited by powers assigned to the provincial legislatures; for example, the Canadian constitution created broad provincial jurisdiction over direct taxation and property and civil rights. Many disputes between the two levels of government revolve around conflicting interpretations of the meaning of these powers.
The Constitution Act, 1867 divides the responsibility between the federal and provincial jurisdictions. Together with the grant under s. 92(14), s. 91(27) carves out "Procedure in Criminal Matters," while s. 96 requires the appointment of "the Judges of the Superior, District, and County Courts in each Province" to be done by the Governor General in Council, and s. 101 grants the Parliament of ...
The federal Parliament can create federal courts under section 101 of the Act, and give them jurisdiction to consider constitutional issues, but that jurisdiction cannot be exclusive. The grant of jurisdiction to the federal courts cannot eliminate the jurisdiction of the provincial superior courts to determine constitutional issues. [8]
A subject matter which falls within federal jurisdiction therefore does not come within provincial jurisdiction, and vice versa. Canadian constitutional analysis uses the term ultra vires as shorthand for a matter that is outside the jurisdiction of a government, and intra vires for a matter that is within the jurisdiction of a government.
As to its general effect on federal and provincial jurisdiction, it has been suggested that the "watertight compartments" doctrine, generally construed as stating that nothing can be added or taken away, may be more properly described as meaning that a head of power can encompass more than it did at the beginning of Canadian Confederation in ...
Paramountcy is relevant where there is conflicting federal and provincial legislation. As Justice Major explained in Rothmans: [1]. The doctrine of federal legislative paramountcy dictates that where there is an inconsistency between validly enacted but overlapping provincial and federal legislation, the provincial legislation is inoperative to the extent of the inconsistency.