Supreme Court History in Canada

British Legacy

The unique role that British case law has played and continues to play in the development of Canadian jurisprudence makes it essential that Canadian practitioners and students be familiar with British case law. British statutes are of much less importance to Canada.

The formal independence of the Canadian judiciary is relatively recent. Appeals from the Supreme Court of Canada to the Judicial Committee of the Privy Council in England were abolished only in 1949. Even after formal independence, the doctrine of stare decisis (which dictates that courts are required to follow previous judicial precedents), as well as respect for the intrinsic merits of subsequent decisions of the House of Lords, the Privy Council, and the English Court of Appeal, has ensured the continued importance of British law in Canada. Increasingly, however, Canadian law is moving in a different direction from that charted by the British courts.

Supreme Court of Canada: History Becoming Supreme After World War II

Introduction to Supreme Court History

The Court’s reputation gradually improved following World War II. The Court moved to a new, grander building in Ottawa in January 1946, and in 1949 Parliament increased the number of justices appointed to the Court to nine. More importantly, the Supreme Court became the highest and final court in Canada in 1949, when all appeals to the Judicial Committee of the Privy Council in the United Kingdom were abolished. Slowly, the federal government realized that for the Supreme Court to command greater respect, it would require more money to attract better-qualified justices and to develop stronger institutional support. While political patronage remained important in the appointment of new justices, the Cabinet began to place more emphasis on the reputation of candidates among their peers in the legal community.

During the 1950s some indications appeared that the Supreme Court was becoming more confident in its authority and vision. In a series of cases, some involving Jehovah’s Witnesses and others involving alleged Communists, the Court displayed a capacity for judicial activism by striking down provincial legislation that limited individual political and religious freedom. These cases include Boucher v. R. (1951), Saumur v. Québec (1953), and Switzman v. Elbling (1957). This focus on individual freedoms led some justices to suggest that there was an implied Bill of Rights in the Canadian legal tradition that required the protection of such freedoms.

The Supreme Court, however, reverted to its traditional conservatism during the 1960s and 1970s. This conservatism was especially apparent to many observers when compared with the more progressive U.S. Supreme Court, which took an active role in the social and political changes of the era. In 1960 Canada’s Supreme Court was given a chance to play a more expansive role when Parliament passed a new Bill of Rights. Parliament enacted the Bill of Rights only as an ordinary statute, not as part of the Constitution. As a result, the Court was hesitant to use the Bill of Rights to overturn legislation. Nearly a decade passed before the Court invoked the Bill of Rights to overturn a law in R. v. Drybones (1970). Many observers saw that decision, which struck down legislation that discriminated against aboriginal people, as the first sign of a new, more activist Court.

However, in a series of subsequent cases, most importantly Attorney General of Canada v. Lavell (1973), which concerned discrimination against aboriginal women, the Court emphasized that the Bill of Rights was only an ordinary statute and could be subordinated to other legislative acts. In these later decisions, the Court reverted to the doctrine of parliamentary sovereignty and chose a more deferential role.

Other cases from the 1970s also demonstrated the Court’s conservatism. In Murdoch v. Murdoch (1975) the Court endorsed matrimonial property laws that effectively denied many married women an interest in family property after divorce. In Harrison v. Carswell (1975) the justices held that the right to private property had priority over the right to freedom of expression through picketing, and in Nova Scotia Board of Censors v. McNeil (1976) they upheld restrictive censorship laws. In a particularly well-known case, Bliss v. Attorney General of Canada (1979), the Court ruled that discrimination on the basis of pregnancy was not gender discrimination because not all women become pregnant.

Although the 1970s demonstrated a period of renewed conservatism on the Court, some decisions indicated impending change. Several of the more conservative decisions were subjected to vigorous dissenting judgments, including dissents from the more-liberal Chief Justice Bora Laskin. Laskin became chief justice in 1973. Also, in 1975 the Canadian Parliament removed the automatic right to appeal to the Supreme Court in cases involving more than C$10,000. In doing so, Parliament granted the Court the authority to decide which cases it would hear and allowed it to focus solely on cases of national significance. As a consequence, the Court heard dramatically fewer private law cases. The Court’s primary concerns became criminal and constitutional law.” (1)

The Establishment of the Supreme Court of Canada

The Supreme Court of Canada was not established at Confederation. The Judicial Committee of the Privy Council in Great Britain served as the final Court of Appeal from all British Colonies at that time, and that right of appeal continued after Confederation. The Constitution Act, 1867, section 101 authorized the federal Parliament “to provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada”. The Court was established by an Act of Parliament in 1878. Having been created by statute, it was within the power of Parliament to make changes to the Court by an ordinary federal statute. Using this legislative power, Parliament abolished appeals to the Privy Council in 1949. In 1975, Parliament imposed a general requirement of leave to appeal that gave the Court substantial control over its docket (subject to some significant exceptions). At least up until 1982, Parliament, if it had chosen to do so, could have unilaterally abolished the Supreme Court of Canada by ordinary statute.

In the Constitution Act, 1982

The dependence of the Supreme Court of Canada on a federal statute for its existence, jurisdiction and composition was the subject of concern among constitutional experts for many years. The Supreme Court of Canada occupies a central role in the Canadian national life. In the 1980´s, the Court’s decisions in disputes between the federal and provincial governments had been of tremendous significance for Canada, with the Court performing the role of “umpire” in Confederation. During the 1970’s, the Court made a number of important and controversial rulings relating to the division of powers, including decisions on provincial power to impose taxes with respect to their natural resources and on the federal government’s anti­inflation legislation of the 1970’s.

During the turmoil of the late 1970’s and early 1980’s at the time when the federal government was pushing the pace of constitution reform, the Supreme Court’s decisions in the Senate Reference, the Patriation Reference and the Quebec Veto Reference played a critical role in our constitutional evolution.

It became increasingly anomalous that so important a federal institution should be subject to the exclusive legislative authority of one of the major litigants before it, namely, the federal government. Accordingly, in 1982, after much discussion about the Court’s constitutional status, the Supreme Court of Canada was “entrenched” in the Constitution of Canada by sections 41(d) and 42(1)(d) of the Constitution Act, 1982. That is to say, the status of the Supreme Court was for the first time reflected in the Constitution of Canada and certain aspects of the Supreme Court were immunized from unilateral legislative change by the Parliament of Canada.

Section 41(d) of the Constitution Act, 1982 required the unanimous consent of the House of Commons and the Senate and the legislative assembly of each province for changes to the “composition” of the Supreme Court. Section 42(1)(d) sets out that any changes to the Supreme Court other than its “composition” are to be accomplished by the seven provinces–fifty per cent amending formula. Commentators dealing with these parts of the amending formula had characterized them as ambiguous. For one thing, it is difficult to determine the precise meaning of the word “composition”. The Court’s actual existence was, in the view of some critics, still dependent on the Supreme Court Act, which is simply an Act of Parliament.

Creation and Beginnings of the Court

The Supreme Court of Canada, which stands today as the final arbiter of legal disputes in the Canadian judicial system, has not always enjoyed the status of court of last resort. Its history begins more than a century after the appearance of courts in Canada and its role has evolved considerably since its creation in 1875.

Courts of law flourished in eighteenth-century Quebec (Lower Canada) and Ontario (Upper Canada), and in the Maritime colonies during the same period. Judicial records predating 1750 survive in Quebec, New Brunswick and Nova Scotia. The Quebec Act, 1774, section 17, defined powers for creating British-style criminal, civil and ecclesiastical courts in Quebec, alongside that province’s much more ancient French courts. The Constitutional Act, 1791, created the Provinces of Upper and Lower Canada, and established new courts for each province. Next, the Union Act, 1840 created the first Court of Appeal, in this case for Upper Canada, and set salaries for judges in both Canadas.

It was the British North America Act, 1867, now called the Constitution Act, 1867, that first created a united Canada (Ontario, Quebec, Nova Scotia and New Brunswick) and defined the basic elements of the country’s judicial system. The Governor in Council appoints all superior court judges. Once appointed, a judge’s independence is guaranteed by virtue of his or her serving “during good behaviour”. A Supreme Court judge may sit until he or she obtains 75 years of age. Judicial salaries are “fixed and provided by the Parliament of Canada”. Under the Constitution Act, 1867, all existing provincial courts were to continue and bilingualism was guaranteed in the federal Parliament and the courts within federal jurisdiction. At the time of Confederation, decisions from provincial courts could be appealed directly to the Judicial Committee of the Privy Council, in London, for a final decision.

The Constitution Act, 1867, invited the new federal Parliament to create its own court of appeal. The Parliament of Canada could “provide for the constitution, maintenance, and organization of a general court of appeal for Canada”. This provision was used by Parliament, a few years later, to create the Supreme Court of Canada. However, decisions of the new court still could be appealed to the Judicial Committee of the Privy Council for final judgment. The Judicial Committee’s superior appellate jurisdiction over Canada did not end until 1933, for criminal appeals, and 1949, for civil appeals.

Inauspicious Start

The Supreme Court of Canada’s beginnings were most inauspicious. Bills for its creation, introduced in the Parliament of Canada in 1869 and in 1870, were withdrawn. On April 8, 1875, however, a new bill was finally passed. The statesmen most prominent in establishing the Supreme Court were Sir John A. Macdonald, Télesphore Fournier, Alexander Mackenzie and Edward Blake.

The original members of the Court signed their oaths of office in the Senate Chamber on November 8, 1875, exactly one month after the swearing-in ceremony for the first Chief Justice, the Honourable William Buell Richards, and the first Registrar, Robert Cassels. The Court was inaugurated at a state dinner on November 18th, and by mid-January 1876 the new Court had drafted a set of rules of procedure. But at its first sitting, on January 17th, there was not a single case to hear. Its first “case”, in April, was a reference from the Senate requesting the Court’s opinion on a private bill. Having dealt with that, the Court next sat for one week in June 1876, when it disposed of three cases. It was not convened again until the following January, when it began to hold regular sessions with a full agenda.

The Court originally had six judges. In addition to Chief Justice Richards, five associate or puisne judges sat. They were William Johnstone Ritchie, Samuel Henry Strong, Jean-Thomas Taschereau, Télesphore Fournier and William Alexander Henry. Each also became a judge of the simultaneously created Exchequer Court (now known as the Federal Courts), which was soon given its own judges.

In 1927, the number of Supreme Court judges increased to seven and, in 1949, with the abolition of appeals to the Judicial Committee of the Privy Council, the Court reached its present total of nine members. Of the nine, the Supreme Court Act requires that three be appointed from Quebec. Traditionally, Governor in Council appoints three judges from Ontario, two from the West, and one from Atlantic Canada.

The Court first sat in the Railway Committee Room in the Parliament Buildings, then in several other rooms as they became available. In 1882, the Court moved to its own small two-storey building at the foot of Parliament Hill on Bank Street. It would be another 60 years before construction of the building currently occupied by the Court would begin. Queen Elizabeth laid the cornerstone in the presence of her husband, King George VI, on May 20, 1939.

After delays caused by World War II and the government’s use of the new building to meet wartime needs, the Court finally took possession in January 1946 and heard its first case there that same month.

Resources

Notes and References

• Information about Supreme Court History in the Encarta Online Encyclopedia

Further Reading

Adams, G. & P.J. Cavaluzzo,”The Supreme Court of Canada: A Biographical Study” (1969) 7 Osgoode Hall Law Journal 61.

Bader, M., “The Supreme Court of Canada, 1892-1902: A Study of the Men and the Times” (1970) 8 Osgoode Hall Law Journal 503.

Beaudoin, G-A., “La Cour suprême et la protection des droits fondamentaux” (1975) 53 Canadian Bar Review 675.

Cassels, R., “The Supreme Court of Canada” (1890) 2 Green Bag 241.

Cavarzan, J., “The Jurisdiction of the Supreme Court of Canada: Its Development and Effect on the Role of the Court” (1965) 3 Osgoode Hall Law Journal 431.

Cheffins, R.I., “The Supreme Court of Canada: The Quiet Court in an Unquiet Country” (1965-66) 4 Osgoode Hall Law Journal 259.

Crane, B.A., “Law Clerks for Canadian Judges” (1966) 9 Canadian Bar Journal 373.

Crane, B.A., “The Jurisdiction of the Supreme Court of Canada” (1968) 11 Canadian Bar Journal 377.

Gibson, D., “And One Step Backward: The Supreme Court and Constitutional Law in the Sixties” (1975) 53 Canadian Bar Review 621.

Herman, M.J., “Law Clerking at the Supreme Court of Canada” (1975) 13 Osgoode Hall Law Journal 279.

Herman, M.J., “Introduction: The Supreme Court of Canada 1875-1975” (1976) 8 Ottawa Law Review 1.

Herman, M.J., “The Founding of the Supreme Court of Canada and the Abolition of Appeal to the Privy Council” (1976) 8 Ottawa Law Review 7.

How, W.G., “The Too Limited Jurisdiction of the Supreme Court of Canada” (1947) 25 Canadian Bar Review 573.

Laskin, B., “The Supreme Court of Canada: a Final Court of Appeal of and for Canadians” (1951) 29 Canadian Bar Review 1038-1079.

Laskin, B., “Our Civil Liberties: the Role of the Supreme Court” (1954-55) 61 Queen’s Quarterly 455.

Laskin, B., “The Supreme Court of Canada, the First One Hundred Years: A Capsule Institutional History” (1975) 53 Canadian Bar Review 459.

Laskin, B., “The Role and Functions of Final Appellate Courts: The Supreme Court of Canada” (1975) 53 Canadian Bar Review 469.

Laskin, B., “The Supreme Court and the Protection of Civil Liberties: Commentary” (1976) 14 Alberta Law Review 135.

MacGuigan, M., “The Privy Council and the Supreme Court: a Jurisprudential Analysis” (1966) 4 Alberta Law Review 419.

McRuer, J.C., “The Supreme Court as a National Institution” (1980) 1 Supreme Court Law Review 467.

O’Driscoll, J.G.J., “The Presentation of an Appeal to the Court of Appeal and to the Supreme Court of Canada in a Criminal Case” (1969) Law Society of Upper Canada. Special Lectures. Defending a Criminal Case 203.

Patenaude, P., “Le Québec et la Cour suprême” (1976) Alberta Law Review 138.

Robinette, J.J., “A Counsel Looks at the Court” (1975) 53 Canadian Bar Review 558.

Russell, P.H., “The Supreme Court’s Interpretation of the Constitution since 1949”, in P.W. Fox, Politics: Canada (Toronto: McGraw-Hill, 1963) 64.

Russell, P.H., “The Political Role of the Supreme Court of Canada in its First Century” (1975) 53 Canadian Bar Review 576.

Shumiatcher, M.C., “The Supreme Court and the Oral Tradition” (1980) 1 Supreme Court Law Review 479.

Tarnopolsky, W.S., “The Supreme Court and Civil Liberties” (1976) 14 Alberta Law Review 58.

Tarnopolsky, W.S., “The Supreme Court and the Canadian Bill of Rights” (1975) 53 Canadian Bar Review 649.

Weiller, P.C., “Legal Values and Judicial Decision-Making” (1970) 48 Canadian Bar Review 1.

Weiller, P.C., “Of Judges and Scholars: Reflections in a Centennial Year” (1975) 53 Canadian Bar Review 563.

Guide to Supreme Court History