Contents:
Supreme Court Early Years in Canada
Supreme Court of Canada: History Founding and Early Years
Introduction to Supreme Court Early Years
Section 101 of the Constitution Act of 1867 authorized the Canadian Parliament to create a “General Court of Appeal for Canada,” but such a court was not established immediately. Before the federal court was created, appeals could be made to courts of appeal in the various provinces and, ultimately, in Britain. Those who supported the creation of a new federal court argued that Canada was a young nation with a new federal constitution and a society that observed both French and English legal traditions. As a result, it needed its own final court of appeal to bring coherence to its legal system. Others opposed the new court because they believed that it was too expensive and that the quality of Canadian judges was poor. Critics also feared that a court appointed by the central government would be biased against the provinces. The supporters’ arguments prevailed, and in 1875 Parliament created the Supreme Court of Canada. The Court did not immediately become the significant force in Canadian law that its supporters had hoped it would become. It was almost a century before the Supreme Court was acknowledged as a respected institution that fulfilled a fundamental role in Canada’s constitutional and political system.
When the Supreme Court of Canada was created in 1875, it was not really supreme because Canada’s final court of appeal was still based in London, England. Called the Judicial Committee of the Privy Council, this London court served as the highest court of appeal for the former British colonies that had joined the Commonwealth of Nations. Its task was to provide uniformity in the common law across the British Commonwealth. Canadian litigants could appeal rulings by the Supreme Court of Canada to the Judicial Committee of the Privy Council. They could also avoid the Canadian Supreme Court entirely by appealing cases directly from a provincial court of appeal to the Privy Council. This process was called per saltum. Between 1875 and the early 1950s, when the last of these cases proceeded through the courts, litigants appealed 667 cases to the Judicial Committee of the Privy Council, 414 of which were per saltum cases that bypassed the Supreme Court of Canada.
The Supreme Court did not have a particularly good reputation during its first 70 years. Judges were often appointed to the Court because of their personal and political connections. At least three justice ministers in the federal government managed to get themselves appointed to the Court. Many other appointees were either members of, or closely connected to, the party that was in power when they were appointed. These patronage appointments tainted the Court’s independence, and the influence of the Judicial Committee of the Privy Council continued to weaken the Court’s authority. As a result, the federal Parliament significantly underfunded the Court. The Court was unable to attract a sufficient number of high quality judges, employ an adequate support staff, attain suitable premises, or maintain an appropriate library. The Supreme Court did not get its own building until 1882, and even then it had to settle for a converted stable. Fifty years later the building was condemned as injurious to the health of its occupants.
Critics complained that the court interpreted the law in a technical, unimaginative manner that was out of step with the changing needs of Canada’s large and diverse society. For the most part, the decisions of the Court were conservative ones in which the justices were reluctant to overturn legal precedent or the decisions of legislatures. The Court believed in the theory of parliamentary sovereignty, in which the popular will expressed by the legislatures was assumed to prevail over other considerations. For example, in Quong Wing v. R. (1914), the Court accepted as constitutionally valid a Saskatchewan law that prevented what it called “Chinamen” from hiring or managing “white females.” The Court justified its ruling on the basis that the law protected the interests and morals of white women and girls. In the famous Persons case (1928) the Court decided that women were ineligible for appointment to the Senate because they did not qualify as “persons” under the Constitution Act of 1867. The following year, the Judicial Committee of the Privy Council overruled this decision.
Other problems plagued the Court, including too few judges for too much work. From 1867 to 1927, the Supreme Court only had six justices, and only seven from 1927 to 1949. Moreover, some justices were ineffective due to age, illness, disinterest, or other government work, particularly as members of investigative commissions. At times animosity existed between the justices, especially during the tenure of Chief Justice Sir Henry Strong (1892-1902), who was widely considered to be domineering and bad-tempered.
During the 1930s the Supreme Court heard reference cases that tested the New Deal program of Prime Minister Richard B. Bennett. Some critics alleged that Bennett interfered with the cases. Bennett had appointed several justices to the Court before he was voted out of office. During the reference cases, he was accused of supplying the justices with information outside the normal court procedures in order to defend his policies. It is difficult to assess whether his intervention had any impact because the Court ultimately found some of the legislation to be valid and some of it to be invalid. Still, this example illustrates the low esteem in which the Supreme Court was held.
The Court was further hampered by a law allowing cases involving more than C$10,000 to be automatically appealed to the Supreme Court even if the case raised no significant legal issue. Until this policy was repealed by Parliament in 1975, the justices found their workload dominated by cases of relatively little legal importance.” (1)