One of the brilliant things about the Canadian constitution is how it structured the administration of justice.
The (deeply flawed) American constitution created state courts for state law and federal courts for federal law, with separate personnel and separate administrative responsibilities for each. The Constitution of Canada, by contrast, understands justice to be indivisible, while administration need not be.
So each province has its own courts, built, administered, and paid for by the province, and with judges who must come from the legal profession of that province. But those judges have always been empowered to adjudicate federal law as well as provincial law -- they have a national role, in everything from criminal law to constitutional law.
Given the federal (as well as local) law they must adjudicate, it is appropriate that judges wherever they sit be federally mandated, chosen and paid for by the federal government. While property law (for instance) is provincially made and criminal law (for instance) is federally made, the one court system and the one hierarchy of courts and judges handle both from first instance to final appeal. We have one seamless justice system rather than two.
Having a provincially-run justice system with federally appointed judges should be understood as evidence of the skill with which the original constitution-drafters designed our federal system.
Then there is Premier Danielle Smith of Alberta. She recently demanded that she be empowered to participate with the feds in the choosing of judges. She threatened that if she cannot, she might withhold provincial funding for new judicial appointments. (She also recently demanded more power to "direct" the judgments Alberta judges make.)
But the judges she is talking about are paid from appointment to retirement by the federal government. All she could withhold is the provision of courthouses and office spaces and staff for them.
Frankly, she is already doing that. In Alberta, as in most of the provinces, courts are generally overcrowded and understaffed. So it's an inconvenience to Albertans, but not much of a threat, maybe reflecting a misunderstanding of where judicial salaries come from.
Oliver Mowat, the 19th century premier of Ontario, created several new courts in Ontario during his time in office, happily allowing the federal government to pay for all the new judges. "It would of course be highly improper to ask the appointment of a greater number than the actual necessities of the country required," he said, with a devious little smile, perhaps.
But I don't think we have had yet a federal-provincial crisis over the provinces creating too many courts.
Historiographical note: many historians of confederation seem to have been a bit baffled by the provincial/federal mix of judicial matters. Often they have fallen back on the theory that the feds wanted the appointing power simply for the patronage powers it offered. The wisdom of provincially administered local courts adjudicating both provincial and federal law, in a single justice system with federally appointed judges is rarely noted in the standard accounts of confederation.
Appendix: At confederation, provinces did retained the authority to appoint and pay judges for the "lowest" courts, the ones that adjudicated minor aspects of law, whose judges at that time were not even legally trained but mostly lay magistrates.
The scope of these courts with provincially-appointed (and paid) judges has expanded mightily since the mid-twentieth century. But it is still the federally appointed judges that handle the more serious matters, including all trials by jury, and the decisions of provincially-appointed judges can of course be appealed to the "higher" courts with federally-named (and paid) judges, right to the Supreme Court of Canada if necessary.
