Supreme Court History

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.

Resources

Notes and References

• Information about Supreme Court History in the Encarta Online Encyclopedia

Guide to Supreme Court History

Law is our Passion

This entry about Supreme Court History has been published under the terms of the Creative Commons Attribution 3.0 (CC BY 3.0) licence, which permits unrestricted use and reproduction, provided the author or authors of the Supreme Court History entry and the Encyclopedia of Law are in each case credited as the source of the Supreme Court History entry. Please note this CC BY licence applies to some textual content of Supreme Court History, and that some images and other textual or non-textual elements may be covered by special copyright arrangements. For guidance on citing Supreme Court History (giving attribution as required by the CC BY licence), please see below our recommendation of "Cite this Entry".

• APA
• MLA
• MLA 7
• CHICAGO
• OSCOLA

Usage Metrics

131 Views

Google Scholar: Search for Supreme Court History Related Content

 

Schema Summary

This entry was last updated: February 15, 2017