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. 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, Quebecs
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 Quebecs
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 Quebecs 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 |