The
Supreme Court of Canada (French:
Cour suprême du Canada) is the
highest court of Canada and is the final court
of appeal in the
Canadian
justice system. The court grants permission to between 40 and
75
litigants each year to appeal decisions
rendered by provincial, territorial and federal
appellate courts, and its decisions are
stare decisis, binding upon all lower
courts of Canada. The Supreme Court of Canada is composed of nine
judges: eight
Puisne
Justices and the
Chief
Justice of Canada.
History
The creation of the Court was provided for by the
British North America Act,
1867, renamed in 1982 the
Constitution Act, 1867.
The first bills for
the creation of federal supreme court, introduced in the Parliament of
Canada
in 1869 and in 1870, were withdrawn. It was
not until 8 April 1875, that a bill was finally passed providing
for the creation of a Supreme Court of Canada.
Old Courthouse building.
Prior to
1949, however, the Supreme Court did not constitute the court of last resort: litigants could
appeal to the Judicial Committee of the Privy
Council
in London. As well, some cases could bypass
the Court and go directly to the Judicial Committee from the
provincial courts of appeal. The Supreme Court's influence was thus
rather modest. Attitudes among many English Canadians changed when
the Privy Council made various unpopular decisions in the 1930s,
striking down several overreaching federal legislative initiatives.
These decisions were rooted in the Judicial Committee's perception
that the division of powers provided for strong provincial powers.
Many Canadian nationalists took the opposite view, and as a
consequence, public pressure forced the federal government to push
for complete judicial independence from the United Kingdom. The
Supreme Court of Canada formally became the court of last resort
for criminal appeals in 1933 and for all other appeals in 1949. The
last decisions of the Judicial Committee on cases from Canada were
made in the mid-1950s as a result of their being heard in a court
of first instance prior to 1949. The increase in the importance of
the Court was mirrored by the numbers of its members. The Court was
established in 1875 with six judges, and these were augmented by an
additional member in 1927. It was in 1949 that the bench reached
its current size: 9 judges.
Prior to 1949, most of the appointees to the Supreme Court of
Canada owed their position to political
patronage. Each judge had strong ties to the
government in power at the time of their appointment. In 1973, the
appointment of a constitutional law professor,
Bora Laskin, as Chief Justice represented a
major turning point for the Court. Increasingly in this period,
appointees either came from academic backgrounds, or were
well-respected practitioners with several years experience in
appellate courts. Laskin's federalist and liberal views were shared
by Prime Minister Trudeau, who appointed him, and exerted an
influence on many of the Court's decisions.
SCC Courtroom panoramic view
The
Constitution Act, 1982
greatly expanded the role of the Court in Canadian society by the
addition of the
Canadian Charter of
Rights and Freedoms, which greatly broadened the scope of
judicial review. The evolution from the Dickson Court (1984–90)
through to the Lamer Court (1990–2000) witnessed a continuing
vigour in the protection of civil liberties. Lamer's criminal law
background proved an influence on the number of criminal cases
heard by the Court during his time as Chief Justice. Nonetheless,
the Lamer Court was more conservative with Charter rights, with
only about one-percent success rate for Charter claimants.
The appointment of
Beverly
McLachlin as Chief Justice in 2000 has resulted in a more
centrist and unified Court. Dissenting and concurring opinions are
fewer than during the Dickson and Lamer Courts. With the 2005
appointments of Justices Charron and Abella, the Court has become
the world's most gender-balanced national high court, four of its
nine members being female.
The role of the Supreme Court
The structure of the
Canadian
court system is pyramidal, a broad base being formed by the
various provincial and territorial courts whose judges are
appointed by the provincial or territorial governments. At the next
level are the provinces' and territories' superior courts, where
judges are appointed by the federal government. Judgments from the
superior courts may be appealed to a still higher level, the
provincial or territorial courts of appeal. Several federal courts
also exist: the
Tax Court of
Canada, the
Federal
Court, the
Federal
Court of Appeal and the
Court Martial Appeal Court
of Canada. Unlike the provincial superior courts, which
exercise inherent or general
jurisdiction, the federal courts' jurisdiction
is limited by statute. In all there are over 1000
federally-appointed judges at various levels across Canada.
The Supreme Court of Canada rests at the apex of the judicial
pyramid. This institution hears appeals from the provincial courts
of last resort, usually the provincial or territorial courts of
appeal, and the Federal Court of Appeal (although in some matters
appeals come straight from the trial courts, as in the case of
publication bans and other orders that are otherwise not
appealable). In most cases, permission to appeal must first be
obtained from a panel of three judges of the court. By convention,
this panel never explains why it gives leave to appeal or not.
Cases for which leave to appeal is not required are primarily
criminal cases (in which a Judge below dissented on a point of law)
and appeals from provincial references. A final source of cases is
the referral power of the federal government. In such cases, the
Supreme Court is required to give an opinion on questions referred
to it by the Governor-in-Council (
cabinet). However, in many cases,
including the most recent Same-Sex Reference, the Court has
declined to answer a question from the Cabinet. In that case, the
Court said it would not decide if
same-sex marriages were required by the
Charter of Rights, because the government had announced it would
change the law regardless of its opinion, and subsequently
did.
The Supreme Court thus performs a unique function. It can be asked
by the Governor-in-Council to hear references considering important
questions of law. Such referrals may concern the constitutionality
or interpretation of federal or provincial legislation, or the
division of
powers between federal and provincial levels of government. Any
point of law may be referred in this manner. However, the court is
not often called upon to hear references. When it is, the opinion
on the question referred is often of national importance; one
recent example concerns the constitutionality of
Same-sex marriage. References
have been used to re-examine criminal convictions that have
concerned the country as in the cases of
David Milgaard and
Stephen Truscott.
Constitutional questions may, of course, also be raised in the
normal case of appeals involving individual litigants, governments,
government agencies or
crown
corporations. In such cases the federal and provincial
governments must be notified of any constitutional questions and
may
intervene to submit a
brief and attend
oral
argument at the court. Usually the other governments are given
the right to argue their case in the Court, although on rare
occasions this has been curtailed and prevented by order of one of
the Court's judges.
Sessions of the Court
The Court logo.
The Court sits for 18 weeks of the year beginning the first Monday
of October and usually runs until the end of June and sometimes
into July.
Hearings only take place in Ottawa
, although
litigants can present oral arguments from remote locations by means
of a video-conference system. The court's hearings are open
to the public. Most hearings are taped for delayed telecast in both
of Canada's
official languages. When in session, the court sits
Monday to Friday, hearing two appeals a day. A quorum consists of
five members for appeals. A panel of nine justices hears most
cases.
On the bench, the
Chief Justice
of Canada, or, in her absence, the senior
puisne justice, presides from the centre chair with
the other justices seated to her right and left by order of
seniority of appointment. At sittings of the Court, the justices
usually appear in black silk robes but they wear their ceremonial
robes of bright scarlet trimmed with Canadian white mink in court
on special occasions and in the Senate at the opening of each new
session of Parliament.
The decision of the court is sometimes - but rarely - rendered
orally at the conclusion of the hearing. More often, judgment is
reserved to enable the justices to write considered reasons.
Decisions of the court need not be unanimous; a majority may
decide, with dissenting reasons given by the minority. Each justice
may write reasons in any case if he or she chooses to do so.
The Supreme Court has the ultimate power of
judicial review over Canadian federal and
provincial laws' constitutional validity. If a federal or
provincial law has been held contrary to the division of power
provisions of one of the various Constitution Acts, the legislature
or Parliament must either live with the result, amend the law so
that it complies, or obtain an amendment to the constitution. If a
law is declared contrary to certain sections of the Charter of
Rights and Freedoms, Parliament or the provincial legislatures may
make that particular law temporarily valid again against by using
the "override power" of the
notwithstanding clause. In one case, the
Quebec National Assembly invoked
this power to override a Supreme Court decision (
Ford v. Quebec ) that held
that one of Quebec's language laws banning the display of English
commercial signs was inconsistent with the charter. Saskatchewan
used it to uphold labour laws. This override power can be exercised
for five years, after which time the override must be renewed, or
the decision comes into force.
In some cases, the Court may stay the effect of its judgments so
that unconstitutional laws continue in force for a period of time.
Usually this is done to give Parliament or the legislature time to
enact a new replacement scheme of legislation. For example, in
Reference re
Manitoba Language Rights the Court struck down Manitoba's
laws because they were not enacted in the French language, as
required by the constitution. However the Court stayed its judgment
for 5 years to give Manitoba time to re-enact all its legislation
in French. It turned out five years was insufficient so the Court
was asked, and agreed to give more time.
A
puisne justice of the Supreme Court
of Canada is referred to as "The Honourable Mr/Madam Justice" and
the chief justice as "
Right
Honourable." At one time, Judges were called "My Lord/Lady"
during sessions of the court, but this style of address was
disapproved of by the current Chief Justice, Rt. Hon. Beverly
McLachlin, who has directed lawyers to use the simpler "Your
Honour" or "Justice." The designation "My Lord/My Lady" continues
in many provincial Superior Courts, and in the Federal Court of
Canada and Federal Court of Appeal where it is optional.
Building
The Supreme Court of Canada Building is home to the Supreme Court
of Canada. It also contains two court rooms used by both the
Federal Court of Canada and the Federal Court of Appeal.
Construction began in 1939, with the cornerstone laid by
Queen Elizabeth, consort to
King George VI and later
Queen Mother.
It was designed by Ernest Cormier, architect of the Quebec Court of Appeal Building, the
Government Printing Bureau in Gatineau
, Quebec
, and the
Université de
Montréal
. The Court began hearing cases in the new building
by January 1946. The building is renowned for its
Art Deco details. In 2000, it was named by the
Royal
Architectural Institute of Canada as one of the top 500
buildings produced in Canada during the last millennium.
Two flagstaffs have been erected in front of the building. A flag
on one is flown daily, while the other is hoisted only on those
days when the court is in session. Also located on the grounds are
several statues, notably:
Previous homes of Canada's top courts include:
- Railway Committee Room in the Parliament Buildings
1876–1889
- Old Supreme Court on
Bank Street 1889–1945
Appointments
of the Supreme Court of Canada are appointed by the
Governor-in-Council, a process whereby the Governor General makes
appointments based on the advice and consent of the
Queen's Privy Council for
Canada. By tradition and convention, only the
Cabinet advises the Governor General,
as opposed to the entire Privy Council. (Technically, the Cabinet
is only a standing committee in the larger council.) This advice is
usually expressed to the Queen's representative exclusively through
a consultation with the Prime Minister.
Thus, the provinces and Parliament have no formal role in such appointments, a point
of ongoing contention.
The
Supreme Court Act limits
eligibility for appointment to persons who have been judges of a
superior court, or members of the
bar for ten or more years. Members of the
bar or superior judiciary of Quebec, by law, must hold three of the
nine positions on the Supreme Court of Canada. This is justified on
the basis that Quebec uses
civil law, rather than
common law, as in the rest of the country. The
3/9 ratio persists even though a mere 24 percent of Canada's
population resides in Quebec. By convention, the remaining six
positions are divided in the following manner: three from Ontario,
two from the western provinces and one from the Atlantic provinces,
alternating between Nova Scotia and New Brunswick.
A Supreme Court justice, as with all federal judges, may only sit
on the bench until the age of 75 years.
In 2006, an interview phase by an ad hoc committee of members of
Parliament was added. Justice
Marshall Rothstein became the first
justice to undergo the new process. The Prime Minister still has
the final say on who becomes the candidate that is recommended to
the Governor General for appointment to the Court. The government
proposed an interview phase again in 2008, but a general election
and minority parliament intervened with delays such that the Prime
Minister appointed Justice Cromwell after consulting the Leader of
Her Majesty's Official Opposition.
Current membership
The current Justices of the Supreme Court of Canada are as follows.
See also
List of Justices
of the Supreme Court of Canada.
Supreme Court clerks
Since 1967 the Court has hired clerks to assist in legal research.
Typically, the clerks are selected from among the top students of
each law school across the country. Between 1967 and 1982, each
puisne justice was assisted by one clerk and
the chief justice had two. From 1982, the number was increased to
three clerks for each justice.
Clerks conduct research, draft bench memorandum, assist in drafting
judgments, as well as aid with any other duties of the judge such
as drafting speeches or articles.
See also
Notes
-
http://canada.archiseek.com/ontario/ottawa/supreme_court.html]
- Supreme Court Act, s. 6.
References
- Martin, Robert, The Most Dangerous Branch: How the Supreme
Court of Canada Has Undermined Our Law and Our Democracy,
McGill-Queen's University Press, 2003, ISBN 0773526145
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