Contents:
- Supreme Court in Canada
- Supreme Court of Canada
- Introduction to Supreme Court
- Supreme Court of Canada: How Cases Come Before the Court
- Supreme Court of Canada: How the Court Hears and Decides Cases
- More about the Supreme Court
- Supreme Court in British Columbia The following is a concept of supreme court under the law of British Columbia: The higher level trial court. This court also hears appeals from the Provincial Court, and sometimes reviews the decisions of certain provincial tribunals and public decision-making bodies. Resources
Supreme Court in Canada
Supreme Court of Canada
Introduction to Supreme Court
Supreme Court of Canada, highest authority and final court of appeal in the judicial system of Canada. Nine judges compose the Supreme Court of Canada, which presides over cases of national importance, settles disputes involving interpretations of law, and evaluates the constitutionality of existing and proposed legislation. By establishing legal precedents that are followed by lower courts throughout the country, the Supreme Court provides coherence and unity to the Canadian legal system. Supreme Court justices and staff work in the Supreme Court Building located in Ottawa, Ontario.” (1)
Supreme Court of Canada: How Cases Come Before the Court
The Canadian legal system is complex. Each of Canada’s ten provinces and three territories has its own system of civil and criminal courts. Canada also has specialized federal courts that rule on cases involving a variety of national issues, such as administrative law, taxation law, and immigration law. Canada’s provincial, territorial, and federal legal systems have two levels of courts: trial courts, where cases are litigated for the first time before a single judge, and courts of appeal, where the losing party in a trial can request a panel of judges to reconsider a case. Cases are rarely tried before a jury in Canada, and most cases never go beyond the trial level.
As a result of this complex system, the approximately 150 cases heard by the Supreme Court each year reach the Court by one of three routes. First, a party who loses a civil or criminal case at a court of appeal can request to have the Supreme Court hear the case. This request, called leave to appeal, is considered by a panel of at least three Supreme Court justices. These justices either grant or deny the request. If all justices decide unanimously, the matter of granting or denying the request is resolved. However, if one of the justices disagrees with the others, the case is referred to a panel of all nine justices. The panel then decides, by majority if necessary, whether the leave to appeal will be granted and the case heard by the Court.
The Court has no specified criteria by which it determines whether to grant leave, and the Court does not give reasons for its decision. The key factor appears to be a case’s degree of national importance. Other factors might include the impact of uncertainty in the challenged law, the case’s appropriateness for developing the law to respond to changing social needs, and the presence of a split decision at the court of appeal level. The court typically rejects more than 80 percent of the 600 leave to appeal applications it receives each year. Such applications make up the majority of the cases heard by the Court. In very rare circumstances a court of appeal can also grant leave to appeal without the approval of the Supreme Court, if there is a question of law.
The second method by which a case can come to the Supreme Court is called an as-of-right appeal. These cases are referred to the Supreme Court without prior review or approval by its justices. In a criminal case, if one of the three judges presiding at a court of appeal dissents from the majority ruling because of a question of law, the accused has an automatic right of appeal to the Supreme Court. This option is normally exercised by the accused in approximately 50 cases per year.
Third, the Supreme Court also considers reference cases brought by federal or provincial governments. Governments usually bring a reference case to the Supreme Court when it is unclear whether a proposed law is constitutionally valid. Such cases allow the government to test the constitutionality of a law before enacting it, a process not available in the U. S. legal system. The Court considers the reference case and issues an advisory opinion on the validity of the law. The wording of the Supreme Court Act seems to say that the Court is obligated to answer any reference question brought before it. However, the Court has occasionally indicated that it has the discretion to refuse to provide an answer. For example, they may refuse to answer if the question is too vague.
Reference cases are uncommon and usually concern vitally important national issues. For example, in 1998 the federal government requested that the Court examine the issue of whether the province of Québec could unilaterally secede from Canada. The issue arose because of a 1995 Québec referendum in which 49.4 percent of the population voted for secession. Supporters of secession claimed that a simple majority vote of the Québec population in favor of such a referendum would be sufficient for the province to secede from Canada. The federal government sought clarification of the matter via a Supreme Court reference case, although the government of Québec refused to participate in the process.
The Court unanimously held that Québec had no legal right to secede unilaterally. However, the Court also found that if a clear question was asked in a referendum and a clear majority of Québec voters sided in favor of secession, then the rest of Canada would be obligated to negotiate in good faith with Québec. This carefully crafted but open-ended decision led both the federal and Québec governments to claim that the Supreme Court had supported their positions on secession.” (2)
Supreme Court of Canada: How the Court Hears and Decides Cases
The Supreme Court of Canada hears cases in three sessions occurring from January to March, from April to June, and from September to December. Cases heard by the Supreme Court progress through three stages: preliminary written submissions, oral arguments, and judgment. On average, a case takes about a year and a half to progress from the filing of a leave to appeal application to the final judgment. A litigant initially submits a written argument called a factum to the Court. A factum is a 40-page document that advances the litigant’s argument. It contains a statement of the facts; an outline of the issues in dispute; a claim about whether the lower court made an error of law; a skeletal outline of the parties’ arguments, supported by relevant precedents in the law; and a list of relevant legal authorities.
The parties are then scheduled to present oral arguments, usually within a few months, at the Supreme Court Building in Ottawa. If possible, the chief justice tries to get all nine judges to hear a case. Due to the large number of cases and illnesses or other absences of individual judges, it is not always possible to have a full complement of judges for each case. Consequently, some cases are heard by only seven or five of the Supreme Court justices. An uneven number of justices is chosen to avoid the possibility of a tied decision.
Hearings are open to the general public, but due to the often technical and dry nature of legal argument, the 30 seats in the public gallery are rarely filled. Hearings are also broadcast on cable television. When in session, the court normally hears two cases per day: one in the morning and the other in the afternoon. Each hearing lasts about two or three hours.
The lawyers for the appellant, the party bringing the appeal forward, make the first argument. Then the lawyers for the other party, the respondent, make a counterargument. The lawyers for the appellant are then offered a brief opportunity to provide counterarguments in reply, called the rebuttal. During these presentations the Supreme Court justices often ask questions of the lawyers representing both sides. Each side has one hour to argue its case. The actual litigants themselves do not participate in the proceedings, although they may be present.
When the lawyers complete their oral arguments, the Court normally reserves judgment. The usual practice is for the justices who have heard the case to meet privately to discuss the case. However, in many as-of-right appeals, the justices give a decision immediately. The task of the Supreme Court is not to reconsider the facts of the case. Rather, Supreme Court justices focus on points of law: whether the decision of the lower court provided a proper interpretation of the law or, in a reference case, whether the proposed legislation conforms to the Constitution.
If the justices unanimously agree upon a verdict, one judge usually volunteers to write a draft opinion (a written explanation of a decision) that is then shared with the others. Each justice can add additional comments to the draft opinion, approve the draft, or write a concurring opinion (a separate opinion that agrees with the majority opinion, although often on different legal grounds). Once the justices reach a consensus on the written opinion, the parties are notified, and the judgment is released to the general public.
If the justices do not agree about the decision in a case, two justices write draft opinions. Both drafts are circulated to the other Supreme Court justices, who again may approve a draft opinion, add comments, or draft another opinion. The decision of the majority of justices, called the majority opinion, is the final verdict in the case and is considered a statement of law. The decision supported by a minority of judges is called the dissenting opinion. The court publishes majority, concurring, and dissenting opinions.” (3)
More about the Supreme Court
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. Such a proposal was found in the Meech Lake Accord. 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, Quebec’s 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 Quebec’s 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 Quebec’s 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.