The leading role of the Supreme Court of Canada is no longer in dispute, but there was a time when it had to struggle to establish its authority.
The history of the Court began with section 101 of the Constitution Act, 1867, which allowed Parliament to establish a “General Court of Appeal for Canada”. …if the father of the Supreme Court of Canada, Prime Minister Alexander Mackenzie, were still alive today, he wouldn’t recognize his creation. However, the Supreme Court of Canada wasn’t established until eight years later, by the Mackenzie government, via the Supreme Court Act of 1875.
The purpose of the Court was to create a body that could receive appeals from both the provincial Courts of Appeal and federal courts, as well as resolve constitutional debates and answer legal questions of Parliament through the reference procedure.
The Early Years
In its first years, the Supreme Court of Canada had a bench of only six justices (seven in 1927, nine since 1949). Two of the six judges were trained in civil law and only three of them could speak French, creating some linguistic and legal tensions.
The early Court was not the ultimate court of appeal. That role still belonged to the Judicial Committee of the Privy Council in London, which had jurisdiction over the Supreme Court of Canada. In some cases, an appeal of a provincial appellate court judgment could bypass the Supreme Court entirely, and be brought directly to the Privy Council.
The Supreme Court Act also provided for the creation of the Exchequer Court of Canada (now the Federal Court) and it has to be noted that the same six justices sat on this Court. A Member of Parliament actually proposed in 1879 to abolish the Court, stating in the parliamentary chamber that “These gentlemen had very little to do for their money”! [2] This meant that members of the Supreme Court of Canada could hear appeals of their own judgments!
Also, litigants in civil law had an appeal as a right (i.e. judges couldn’t refuse to hear the appeal) to the Supreme Court of Canada if the amount involved was high enough. This had the effect of bringing some causes of no great importance to the attention of the Court. However, criminal cases went to the Supreme Court only when “there has been a dissent on a question of law in the provincial Court of Appeal or where the acquittal of an accused has been reversed by the Court of Appeal”, as noted by former Supreme Court Justice Frank Iacobucci. [1]
Given these unfavourable circumstances, the legal community raised questions on whether the existence of the Court was even necessary. A Member of Parliament actually proposed in 1879 to abolish the Court, stating in the parliamentary chamber that “These gentlemen had very little to do for their money”! [2]
Chief’s Years
The climate surrounding the enactment of the Statute of Westminster in 1931 by the British Parliament changed everything. This Act provided that British colonies, such as Canada, would from then on enjoy full political and legal independence. Whereas any attempt made before by the Parliament of Canada to abolish appeals to the Privy Council failed, this time it worked: in 1933 for criminal cases and in 1949 for civil matters. This meant that “the Supreme Court of Canada was finally supreme”, as former Chief Justice Antonio Lamer points out. [3]
This change added legitimacy and prestige to this institution. One may not speak too soon, however. In 1939, the infamous judgment Christie v. York Corporation, [1939] SCR 50 was rendered by the Court. The Seventies were also an important time for the Court. Parliament amended portions of the Supreme Court Act in order for the Court to take charge of its own judicial agenda in civil cases. It provided that a Black man who had been refused service by a Montreal tavern wasn’t entitled to compensation, given that the owner was “free to carry on his business in the manner that he conceives to be the best”.
The Court corrected its jurisprudence later on with the case of Roncarelli v. Duplessis, [1959] SCR 121, where the Prime Minister of Quebec, Maurice Duplessis, was ordered to pay damages for persecuting business owner Roncarelli because of his religion.
In 1968, new faces appeared in the landscape of the Court. They were recent law school graduates, who served their clerkship for one year at the Supreme Court of Canada under the responsibility of a Justice. There are now as many as twenty-seven clerks, or about three per judge.
The Seventies were also an important time for the Court. Parliament amended portions of the Supreme Court Act in order for the Court to take charge of its own judicial agenda in civil cases. Appeals as a right were replaced by grants of leave only for “public importance” cases.
New Charter, New Role for the Judiciary
The enactment of the Canadian Charter of Rights and Freedoms in 1982 was another highlight for the Supreme Court of Canada. The country moved from a parliamentary sovereignty toward a constitutional sovereignty. Proceedings of the Court have been available on television via the Canadian Public Affairs Channel (CPAC) since the 90s and more recently, online through the Court’s website. [4] That is to say that an Act of Parliament could be declared invalid by the judiciary if it infringed on human rights protected by the Charter. The Court had never had such a responsibility before. This led the Court, for example:
- in R v. Big M Drug Mart, [1985] 1 SCR 295 to declare invalid a statute that made Sunday a mandatory holiday because it infringed some citizens’ religious freedom;
- in R v. Morgentaler, [1988] 1 SCR 30, to rule against Canada’s abortion law; and
- in U.S. v. Burns, [2001] 1 SCR 283 to rule that Canada cannot allow the extradition of an individual facing a possible death penalty without first ensuring that the death penalty will not be pursued.
Technological Tools Invade the Court
The Supreme Court of Canada has evolved immensely in term of technology over the years. For a very long time, it was customary for lawyers to present all documents in paper format to the Court. This is no longer the case. Now, from the appeal request to the judgment, everything is done electronically. In addition, it is no surprise that screens and computers are now commonplace. Proceedings of the Court have been available on television via the Canadian Public Affairs Channel (CPAC) since the 90s and more recently, online through the Court’s website. [4] A host of other information can be found there, such has the biographies of the Justices, the role of the Court and how to attend a guided tour.
Constitutionality of the Supreme Court Act’s Essence
The year 2014 was another milestone for the Supreme Court of Canada. In the case surrounding the controversial appointment of Justice Nadon from the Federal Court of Appeal (Reference re Supreme Court Act, ss. 5 and 6, [2014] SCC 21), the Supreme Court reviewed the constitutional status of most sections of the Supreme Court Act. Among other things, it declared that an abolition of the Court would require a unanimous consent amendment procedure, which would need the consent of Parliament and all the provinces.
To conclude, if the father of the Supreme Court of Canada, Prime Minister Alexander Mackenzie, were still alive today, he wouldn’t recognize his creation. But you would surely agree with me that this is not a bad thing!
1. Frank Iacobucci, (2002) “The Supreme Court of Canada: Its History, Powers and Responsibilities” 4 J. App. Prac. & Process 29, at 31
2. House of Commons Debates, April 21, 1879, p. 1373
3. Antonio Lamer, “A Brief History of the Court”, in The Supreme Court of Canada and Its Justices 1875-2000 (Toronto: Dundurn Group, 2000) at 21
4. Louise Meagher, (2010) “Information Management and Interpretation and Translation Services at the Supreme Court of Canada”, 36 Common Law Bulletin 479, at 483
About Hugo Vaillancourt
