The Supreme Court of Canada has been the highest court for all legal issues of federal and provincial jurisdiction since 1949, when appeals to the Judicial Committee of the Privy Council of the UK were abolished. In 1875 Parliament passed a statute of the Constitution Act, 1870, (s101), establishing a General Court of Appeal for Canada and an Exchequer Court (now the Federal Court of Canada). The creation of the Supreme Court had caused sharp debate among the Fathers of Confederation.

In 1865 John A. Macdonald argued that the Constitution did not anticipate the creation of such a court, and attempts by his Conservative government in 1867 and 1870 to set up a general court of appeal suffered overwhelming defeat. Many Liberal and Conservative MPs opposed the project, fearing the possible consequences for provincial rights. By establishing a supreme court, Parliament would be providing itself with a constitutional interpreter, and some MPs questioned the impartiality of such an arbiter because the federal government would appoint its members and determine the court's field of competency. The Liberal government of Alexander Mackenzie finally persuaded Parliament to vote for a supreme court, arguing that it was needed to standardize Canadian law and to provide constitutional interpretations on issues that would affect the evolution of the new federation.

Members

A chief justice and 8 puisne (junior) justices, appointed by the governor-in-council, comprise the Supreme Court. Members may be selected from among provincial superior court judges, or from among those barristers and advocates who have belonged to a provincial bar for at least 10 years (see Judiciary). The Supreme Court Act stipulates that at least 3 of the judges be appointed from Québec; they can be judges of the Court of Queen's Bench (appeal court), the Superior Court or lawyers. Traditionally, 3 other judges from Ontario, one from the Maritimes and 2 from the western provinces are appointed. The judges may not hold any other salaried position while sitting on the Supreme Court Bench.

Role of the Court

The Supreme Court meets in January, April and October. Five justices constitute a quorum, but for constitutional cases the justices normally sit as a full court. Under the Supreme Court Act (s55), the court not only pronounces judgement but also advises the federal and provincial governments on important questions of law or fact concerning the interpretation of the Constitution, or the constitutionality or interpretation of federal or provincial legislation, or the powers of Parliament and the provincial legislatures. The most famous and perhaps most important of these opinions was that of 28 September 1981, on the constitutionality of the patriation of the Constitution.

The Supreme Court is also a general court of appeal for criminal cases. In theory any citizen may come before the Supreme Court to plead his own case, but such instances are rare. In criminal cases the court will hear appeals if an acquittal has been set aside or if there has been a dissenting judgement in a provincial Court of Appeal on a question of law. A guilty verdict in a case of first-degree murder may automatically be appealed to the Supreme Court. If it first grants leave to appeal, the court may also hear appeals on questions of law arising from summary convictions or indictable offences. In civil cases appeals may only be presented with the prior permission of the court; such permission is granted when the court believes that the case raises a question of public importance or an important issue of law or of mixed law and fact that ought to be decided by the court in the national interest. The Drybones and Murdoch cases are 2 famous examples. The limitation on appeals was included in the 1975 modifications to the Supreme Court Act. However, the number of appeals on constitutional or administrative issues has increased.

The Court Process

In about 75% of its cases, the court explains its reasoning along with its decision. In about 56% of these cases, it has upheld the decision of the lower court. Normally the justices go into conference immediately after the argument of a case, review its elements and compare their opinions. One of the justices drafts the court's judgement. If, after receiving and reading this judgement, his colleagues disagree with it, there may be further work sessions. In principle, the court tries to hand down unanimous verdicts, but frequently this cannot be done, and the justices who disagree with the majority opinion write a dissenting judgement which is published along with the other.

These dissensions are important because they permit jurists to see the tendencies at work within the court. The rules of procedure ensure that the parties provide the court with a dossier of everything that happened in the court of first instance and in appeal, including all transcripts and main procedural documents. As well, parties must present a factum containing a summary of the case facts, the points in dispute, the reasons the case is being pursued and their conclusions.

After Confederation the Judicial Committee of the Privy Council was the major interpreter of the Constitution Act. With difficulty the Judicial Committee established a certain balance between federal and provincial legislative responsibilities. The committee had to interpret texts which in a number of ways were more appropriate to a unitary state than to a federated one. In 1949 the important question arose of whether the Supreme Court was bound by the decisions of the Judicial Committee. It is essential for the functioning of Canada's judicial system - which is based primarily on common law, on precedent as an authority and on respect for the rule of stare decisis - that courts of appeal ensure uniform application of law.

This principle of upholding judgements, which means that the decision of a superior court is binding on lower courts, is the very heart of the judicial system. The principle also means that the courts are to some extent bound by their own judgements. Although the Judicial Committee of the Privy Council did not respect this rule rigorously, generally it took its own previous decisions into account.

Until 1949 the Supreme Court had to respect the judgement of the Judicial Committee on appeals of its decisions. Even though it now seems the court is no longer legally bound to follow decisions of the Judicial Committee and reserves for itself the right to examine and review those decisions, as well as its own, it frequently refers to Judicial Committee judgements and always feels the need to explain carefully any decision it may take which appears to run contrary to them. This development allows the court greater creativity, but it can be dangerous in constitutional matters, given the problems that may arise from disregard for the federalist principles that were firmly established by the Judicial Committee.

The few Supreme Court decisions overturned by the Judicial Committee have not been, in fact, significant. The Supreme Court had tended to interpret the Constitution Act very literally, whereas the Judicial Committee had taken sociopolitical considerations into account in its decision making. It is usually said that the Judicial Committee favoured the provinces but that the Supreme Court was and still is centralist in nature, an oversimplified view of Canada's jurisprudence. In fact, the difference between these 2 great interpreters is essentially one of approach. The Judicial Committee was frequently more political than juridical, whereas the Supreme Court, until recently, stuck to strictly legal interpretations.

It is also true that some of the Judicial Committee judgements that most favoured the provinces seemed to amount to legal sleight-of-hand. The English high court had managed to give a federalist character to the Canadian Constitution that had not necessarily been implied in the Constitution Act. Moreover, all Judicial Committee judgements are publicly unanimous, precluding more balanced thought within the committee and encouraging the domination of some committee members by others. It would probably be more accurate to arrive at the history of the Judicial Committee's constitutional interpretation by studying the lords who have sat on its bench than by studying their decisions.

Interpretations of Canada's Constitution and Charter

The controversial question of whether courts must interpret the law and the constitution in a literal, textual sense or whether they must consider as well the social, political and economic context is now more important than ever, because of the patriation of the Constitution with its Canadian Charter of Rights and Freedoms. The Charter will be whatever the Supreme Court chooses to make it, because only a constitutional amendment approved by Parliament and 7 provinces totalling at least 50% of the population of all the provinces may alter a Supreme Court decision. The Supreme Court's momentous decision in early 1988 to strike down the abortion law illustrates the power of the court to abolish laws which are inconsistent with the Charter.

The Supreme Court was created under the Supreme Court Act, a federal statute. However, the Constitution Act of 1982 essentially constitutionalized the Court by providing that any changes to the Supreme Court could only be made through formal constitutional amendment. As of 1982, changes to the composition of the Supreme Court require the consent of the Senate and House of Commons and the legislative assembly of each province. Other changes to the Supreme Court require the consent of the Senate and House of Commons and the legislative assemblies of two-thirds of the provinces (ie, 7 provinces), provided those 7 provinces constitute 5% of the population of Canada. The failed Meech Lake Accord also contained provisions relating to the Supreme Court. For the first time, the provinces were given a formal role in nominating persons to sit on the Supreme Court of Canada. The failed Charlottetown Accord also attempted to constitutionally entrench the composition and the appointment process of the Supreme Court.

New Role of the Court

The new role of the court, with its social and political dimensions, will significantly alter the way Canadians think of it. Reform of the method of appointing justices and of the composition and methodology of the court has also become important. The court must try to reflect the dominant characteristics of Canadian society, such as regionalism, dualism and multiculturalism.