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Studies on the Canadian Constitution and Canadian Federalism


Last revised:
26 February 2001

The Supreme Court of Canada


Claude Bélanger,
Department of History,
Marianopolis College

The Supreme Court of Canada was established in 1875 under the authority of s.101 of the Constitution Act, 1867. It stipulates that the Parliament of Canada could set up a General Court of Appeal "for the better administration of the Laws of Canada."

There has been controversy, ever since 1875, on the meaning of "Laws of Canada"

(For a discussion, see Jacques Brossard, La Cour Suprême et la Constitution, 1968, pp.122-130) . However, as it has come to be applied, the jurisdiction of the court extends to civil, criminal and constitutional matters arising from both federal and provincial laws in a manner that parallels the jurisdiction of the Supreme Court of the United States.

The judges of the Supreme Court of Canada are appointed by the Governor-General in Council (the federal government) and hold office during good behaviour with compulsory retirement at age 75. They may be removed by the Governor-General in Council following a Joint Address by both Houses of Parliament. The original court was composed of a Chief Justice and five other judges; that number was raised to six in 1927 and 9 in 1949.

The court was created, amid controversy, by the Liberal government of A. Mackenzie. The main criticisms made were: 1) many feared that appeals to London would be restricted and eventually abolished. 2) Quebec wanted to safeguard the integrity of its civil laws by attempting to prevent appeals from provincial courts to the Supreme Court in civil cases. 3) Federalism required the existence of an impartial judiciary; with the creation of the Supreme Court, the federal government would control the whole Canadian court system.

Originally, the first and last criticisms were not overly important as appeals to London (to the Judicial Committee of the Privy Council) continued to exist until 1949. Hence, a neutral court arbitrated over Canadian affairs for a long time. The second criticism was more pressing from the beginning: the Quebecois feared that if a federal Court of Appeal was created, civil law cases would ultimately be judged by a court where a majority of judges would have received little, if any, training in the French civil law system. Considering that Canada has a dual legal system, one for Quebec (French civil law) and one for the rest of the country (English common law) it was important from the first that accommodations be made.

Two compromises were made to meet these views: 1) In the Supreme Court Act, it was provided that appeals on civil law cases would be restricted to cases involving more than $2000 (the amount has been raised since). Given the large amount involved, few civil law cases ever reached the Supreme Court. 2) The Act declared that 1/3 of the judges of the Court would have to come from the Bar of Quebec, and thus be trained in French civil law. Consequently, it was felt that the civil laws of Quebec would be more fully protected.

Since 1875, despite these provisions, there have been constant charges in Quebec that the philosophical basis of the Quebec civil law system is being slowly eroded by the decisions of the Supreme Court. For evidence of this see Peter H. Russell, The Supreme Court of Canada as a Bilingual and Bicultural Institution, 1969, Ch. 5.

Since the abolition of appeals to London in 1949, the Court has increasingly come under attack. Until that date, the Court was, more or less, bound by the jurisprudence established by the Judicial Committee of the Privy Council. Critics claimed that once appeals to London would be abolished, the Supreme Court would play a significant centralizing role in Canadian federalism. Already at the Federal-Provincial Conference of September 1950, the Quebec delegation submitted that : "Nous estimons que la Cour Suprême du Canada, en matières constitutionelles et de relations intergouvernementales canadiennes, doit réunir toutes les conditions d'un tiers arbitre." (We believe that in constitutional and intergovernmental matters, the Supreme Court must possess all the attributes of a third (neutral) party). Demands for reform have only increased since, and it seemed almost certain that, in any new constitutional revision, some provision would be included that would allow for provincial input in the appointments to the Supreme Court. Such a proposal was found in the Meech Lake Accord. Alternatively, many argued that an entirely new Constitutional Court might be established where Provincial governments would have input in the appointments to the Court.

In 1982, a small step was taken in the direction of constitutionalizing the Court. S. 41 added the composition of the Court to the list of subjects requiring the unanimous consent of the provinces to effect a constitutional change. Thus, Quebec’s hold on 1/3 of the seats of the Court is secure in the future. The Court also frequently uses a reduced panel to make decisions. When cases arise from Quebec’s civil law, the panel of judges is usually of five judges, three of whom are from Quebec.

Yet, and despite these safeguards, the Supreme Court of Canada continues to be the focus of attacks. The most serious of these address the appointments to the Court that continue, to this day, to be made solely by the federal government, that is to say, in practice, by the Prime Minister of Canada. That a single individual wields so much power and responsibilities in Canada shows a deplorable lack of understanding of the conditions under which a Supreme Court should be operating in a federal system and in a democracy. Under present conditions, accusations of favouratism, patronage and "stacking-up" the Court are frequently heard and the Court has been denied the entire legitimacy that it should have, given the manner in which the judges are appointed. Such criticisms were evident in a number of political/constitutional decisions regarding the federation and Quebec that the Court has had to render in the past twenty years. Under the circumstances, the Court has behaved with dignity and a high degree of impartiality. Yet, the criticisms continue and are, in fact, justified. They should be addressed fully.

A first, and very serious, attempt to do so was made in the Meech Lake Accord of 1987. At the request of Quebec, but with support from several of the other provinces, it was proposed to add a new section 101 to the Constitution of Canada. As is presently the case, the new section would have established a Court of nine judges, three of whom would come from Quebec. The proposed s. 101c provided that upon a vacancy occurring on the Court, the government of any province could submit names to the federal government. The federal government would make the appointment from the list of such submitted names. The three judges from Quebec would be selected from a list of names submitted by the government of Quebec (s. 101c.3). Very similar clauses were included in the Charlottetown Accord in 1992. These suggestions died with these accords; thus, they were not acted upon.

Since 1949, when the Supreme Court was freed from the weight of the decisions of the Privy Council, it has displayed a mark preference for the centralist point of view, although it curtailed excessive federal centralist tendencies from time to time. This was evidently so in the reference cases on the Senate and on the unilateral patriation of the constitution in the period of 1980-1982 and in the reference case regarding Quebec’s right to secede from Canada. On the whole, its decisions have had the following effects:

1) The Court has revived the Peace, Order and good Government clause by giving it a much wider scope than the Judicial Committee had done previously.

2) The Court has also given a larger interpretation of the Criminal law and Regulation of Trade and Commerce clauses.

3) It has given some recognition to the "national dimensions" theory.

4) The Court has been very active in the protection of individual and minority rights, including those of the aboriginal people of Canada, since the adoption of the Canadian Charter of Rights and Freedoms in 1982.

© 2001 Claude Bélanger, Marianopolis College