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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.

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

Notes and References

  1. Information about Supreme Court in the Encarta Online Encyclopedia
  2. Id.
  3. Id.

Guide to Supreme Court

Supreme Court History

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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

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

List of Supreme Court Puisne Judges

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List of Supreme Court Puisne Judges in Canada

Names of Judges Date of Appointment Date of Departure

The Hon. William Johnstone Ritchie 1875-09-30 1879-01-11 Footnote 1
The Hon. Samuel Henry Strong 1875-09-30 1892-12-13 Footnote 1
The Hon. Jean-Thomas Taschereau 1875-09-30 1878-10-06
The Hon. Télesphore Fournier 1875-09-30 1895-09-12
The Hon. William Alexander Henry 1875-09-30 1888-05-03
The Hon. Sir Henri-Elzéar Taschereau 1878-10-07 1902-11-21 Footnote 1
The Hon. John Wellington Gwynne 1879-01-14 1902-01-07
The Hon. Christopher Salmon Patterson 1888-10-27 1893-07-24
The Hon. Robert Sedgewick 1893-02-18 1906-08-04
The Hon. George Edwin King 1893-09-21 1901-05-08
The Hon. Désiré Girouard 1895-09-28 1911-03-22
The Hon. Sir Louis Henry Davies 1901-09-25 1918-10-23 Footnote 1
The Hon. David Mills 1902-02-08 1903-05-08
The Hon. John Douglas Armour 1902-11-21 1903-07-11
The Hon. Wallace Nesbitt 1903-05-16 1905-10-04
The Hon. Albert Clements Killam 1903-08-08 1905-02-06
The Hon. John Idington 1905-02-10 1927-03-31
The Hon. James Maclennan 1905-10-05 1909-02-13
The Hon. Lyman Poore Duff 1906-09-27 1933-03-17 Footnote 1
The Hon. Francis Alexander Anglin 1909-02-23 1924-09-16 Footnote 1
The Hon. Louis-Philippe Brodeur 1911-08-11 1923-10-10
The Hon. Pierre-Basile Mignault 1918-10-25 1929-09-30
The Hon. Arthur Cyrille Albert Malouin 1924-01-30 1924-10-01
The Hon. Edmund Leslie Newcombe 1924-09-16 1931-12-09
The Hon. Thibaudeau Rinfret 1924-10-01 1944-01-08 Footnote 1
The Hon. John Henderson Lamont 1927-04-02 1936-03-10
The Hon. Robert Smith 1927-05-18 1933-12-07
The Hon. Lawrence Arthur Dumoulin Cannon 1930-01-14 1939-12-25
The Hon. Oswald Smith Crocket 1932-09-21 1943-04-13
The Hon. Frank Joseph Hughes 1933-03-17 1935-02-13
The Hon. Henry Hague Davis 1935-01-31 1944-06-30
The Hon. Patrick Kerwin 1935-07-20 1954-07-01 Footnote 1
The Hon. Albert Blellock Hudson 1936-03-24 1947-01-06
The Hon. Robert Taschereau 1940-02-09 1963-04-22 Footnote 1
The Hon. Ivan Cleveland Rand 1943-04-22 1959-04-27
The Hon. Roy Lindsay Kellock 1944-10-03 1958-01-15
The Hon. James Wilfred Estey 1944-10-06 1956-01-22
The Hon. Charles Holland Locke 1947-06-03 1962-09-16
The Hon. John Robert Cartwright 1949-12-22 1967-09-01 Footnote 1
The Hon. Joseph Honoré Gérald Fauteux 1949-12-22 1970-03-23 Footnote 1
The Hon. Douglas Charles Abbott 1954-07-01 1973-12-23
The Hon. Henry Grattan Nolan 1956-03-01 1957-07-08
The Hon. Ronald Martland 1958-01-15 1982-02-10
The Hon. Wilfred Judson 1958-02-05 1977-07-20
The Hon. Roland Almon Ritchie 1959-05-05 1984-10-31
The Hon. Emmett Matthew Hall 1962-11-23 1973-03-01
The Hon. Wishart Flett Spence 1963-05-30 1978-12-29
The Hon. Louis-Philippe Pigeon 1967-09-21 1980-02-08
The Hon. Bora Laskin 1970-03-19 1973-12-27 Footnote 1
The Hon. Robert George Brian Dickson 1973-03-26 1984-04-18 Footnote 1
The Hon. Jean Beetz 1974-01-01 1988-11-10
The Hon. Louis-Philippe de Grandpré 1974-01-01 1977-10-01
The Hon. Willard Zebedee Estey 1977-09-29 1988-04-22
The Hon. Yves Pratte 1977-10-01 1979-06-30
The Hon. William Rogers McIntyre 1979-01-01 1989-02-15
The Hon. Julien Chouinard 1979-09-24 1987-02-06
The Hon. Antonio Lamer 1980-03-28 1990-07-01 Footnote 1
The Hon. Bertha Wilson 1982-03-04 1991-01-04
The Hon. Gerald Eric Le Dain 1984-05-29 1988-11-30
The Hon. Gérard Vincent La Forest 1985-01-16 1997-09-30
The Hon. Claire L’Heureux-Dubé 1987-04-15 2002-07-01
The Hon. John Sopinka 1988-05-24 1997-11-24
The Hon. Charles Doherty Gonthier 1989-02-01 2003-07-31
The Hon. Peter deCarteret Cory 1989-02-01 1999-06-01
The Hon. Beverley McLachlin 1989-03-30 2000-01-07 Footnote 1
The Hon. William Stevenson 1990-09-17 1992-06-05
The Hon. Frank Iacobucci 1991-01-07 2004-06-30
The Hon. John C. Major 1992-11-13 2005-12-25
The Hon. Michel Bastarache 1997-09-30 2008-06-30
The Hon. William Ian Corneil Binnie 1998-01-08 2011-10-20
The Hon. Louise Arbour 1999-09-15 2004-06-30
The Hon. Louis LeBel 2000-01-07
The Hon. Marie Deschamps 2002-08-07 2012-08-07
The Hon. Morris J. Fish 2003-08-05 2013-08-31
The Hon. Rosalie Silberman Abella 2004-08-30
The Hon. Louise Charron 2004-08-30 2011-08-30
The Hon. Marshall Rothstein 2006-03-01
The Hon. Thomas Albert Cromwell 2008-12-22
The Hon. Michael J. Moldaver 2011-10-21
The Hon. Andromache Karakatsanis 2011-10-21
The Hon. Richard Wagner 2012-10-05
The Hon. Clément Gascon 2014-06-12

Notes

1. Date of appointment as Chief Justice.

See Also

List of Supreme Court Chief Justices

Notwithstanding Cause

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Notwithstanding Cause in Canada

Supreme Court of Canada: The Notwithstanding Cause

Introduction to Notwithstanding Cause

In certain situations, federal or provincial governments can circumvent the Court’s power to review the constitutional validity of legislation. Section 33 of the Canadian Charter of Rights and Freedoms provides a notwithstanding clause, which allows either the federal or a provincial government to temporarily suspend some of the constitutional protections given in the charter. After five years, the suspension automatically lapses. At that time, the government can either renew the suspension for another five years or rework the legislation in question to ensure that it is compliant with the charter.

The justification for such an override clause is that in a democratic society ultimate authority and responsibility should rest with the legislature, since the legislature is accountable to the people by election. In contrast, judges are appointed rather than elected. Nevertheless, section 33 has rarely been used. While the section itself is worded broadly, its use has been limited because of expected public opposition. The increased respect and importance given to the courts and the charter in Canadian society and politics has meant that governments only avoid the jurisdiction of the courts in extreme cases.

Section 33 has only been invoked on four occasions-twice by Québec and once each by Saskatchewan and Alberta. Québec first used the clause in 1982 to protest the process by which the Constitution Act of 1982 had been patriated (brought under full Canadian control by removing the oversight of the United Kingdom). The patriation took place without the approval of Québec, and the Québec government responded by passing a bill that automatically attached to each new Québec law a section invoking the notwithstanding clause. When the five-year time limit was reached, the Québec government allowed the bill to lapse and stopped applying section 33 to every law. In 1988 Québec again invoked the clause in support of legislation that prohibited the use of languages other than French on outdoor commercial signs. When the five-year time limit was reached on this legislation, the Québec government did not renew the suspension. Instead it passed a new law, more in line with the charter, that allowed signs in both languages as long as French was predominant. In 1986 the provincial government of Saskatchewan invoked section 33 to protect its legislation requiring striking public employees to return to work. This turned out to be unnecessary because the Supreme Court later found similar legislation in Alberta to be constitutionally valid. In 2000 the Alberta government invoked the clause as part of a law defining marriage as only being between a man and a woman, in order to prevent a possible Supreme Court finding that the law violated the charter by discriminating against same-sex partners.” (1)

Resources

Notes and References

  • Information about Notwithstanding Cause in the Encarta Online Encyclopedia

    • Guide to Notwithstanding Cause

    Supreme Court Decisions

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    Supreme Court Decisions in Canada

    Supreme Court of Canada: Effects of the Court’s Decisions

    Introduction to Supreme Court Decisions

    A Supreme Court decision has a double impact. It determines the outcome for the specific litigants in the case. The parties are bound by the decision, since no further court of appeal exists. Perhaps more importantly, because the Supreme Court is the highest court in the country, its decisions stand as precedents. A precedent is an interpretation of the law by a higher court that lower courts are bound to follow in their own decisions. In future cases lawyers and judges will draw on the precedent of the Court’s decision to help them make their arguments and judgments. In this way the decisions of the Supreme Court provide leadership, coherence, and unity to the other courts in the country.” (1)

    Resources

    Notes and References

  • Information about Supreme Court Decisions in the Encarta Online Encyclopedia

    • Guide to Supreme Court Decisions

    Supreme Court Early Years

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    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)

    Resources

    Notes and References

  • Information about Supreme Court Early Years in the Encarta Online Encyclopedia

    • Guide to Supreme Court Early Years

    Supreme Court in the Charter Era

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    Supreme Court in the Charter Era in Canada

    Supreme Court of Canada: History The Charter Era

    Introduction to Supreme Court in the Charter Era

    The Constitution Act of 1982 significantly changed the role of the Supreme Court. The Constitution Act entrenched into the Constitution a document called the Canadian Charter of Rights and Freedoms, which guaranteed individual liberties and group rights. Following the passage of the Constitution Act of 1982, the Supreme Court interpreted the new charter as overturning the theory of parliamentary sovereignty, which had given precedence to the popular will expressed by legislatures. Instead, the charter established a system of constitutional supremacy, in which the laws passed by legislatures had to conform to the rights protected in the Constitution.

    In this system, the judiciary took on an expanded role as the guardians of the Constitution. The charter enables citizens whose rights have been infringed to appeal to the courts. In decisions following the passage of the charter, the Supreme Court explicitly stated that the charter should be given a large and liberal interpretation and that the government’s parliamentary and executive powers were subject to judicial review. In doing so, the Court rejected its earlier conservatism.

    After 1985 the Supreme Court became increasingly activist. In addition to deciding in 1998 that Québec cannot unilaterally secede from Canada, the Court also struck down legislation that criminalized abortion, in R. v. Morgentaler (1988). In RJR-MacDonald v. Canada (1995) the Court overturned a law that limited the freedom of corporations to engage in advertising. The justices also ordered governments to respect the rights of various groups of people, including people with disabilities (Eldridge v. British Columbia [1997]), gays and lesbians (Vriend v. Alberta [1998]), and aboriginal people (R. v. Marshall [1999]). The Court also showed an interest in protecting the rights of the criminally accused, in R. v. Askov (1990). In Brooks v. Safeway Canada (1989), which found that discrimination against pregnant women was unconstitutional, the Court explicitly overruled its decision of only a decade earlier in Bliss.

    A new set of dilemmas emerged as a result of such activism. Critics on the left accused the Court of favoring corporations at the expense of unions. Critics on the right argued that the Court went too far in supporting the rights of minorities and women. Disagreements arose within the Court itself, resulting in a significant number of 5-4 decisions. During the 1980s and 1990s sharp divisions appeared on the Court between traditional and conservative justices and those who were progressive and activist in applying the charter.

    Justices were also divided between those who considered liberty the primary Canadian value and those who held equality to be primary. The former believed that the state should fulfill only minimal obligations and that society should remain as unregulated as possible. The latter believed that significant inequalities pervaded Canadian society and that the state should intervene on the side of the disadvantaged. For example, in one case, R. v. O’Connor (1995), the majority of justices, who favored liberty, argued that a man accused of sexual assault was entitled to have access to the therapy records of the women who accused him, on the basis of his right to prepare a full answer and defense. On the other hand, the justices who favored equality, who were in the minority in the case, held that such access violated women’s equality rights and would discourage women from coming forward with complaints about sexual assault.

    Some critics fear that as the Supreme Court has become the ultimate guardian of the Constitution, the democratic process has been eclipsed by an unelected and unaccountable judiciary. Politicians, legal organizations, and some newspaper editorials have demanded a more-open process of appointing justices to the Court. Both the Meech Lake Accord of 1987 and the Charlottetown Accord of 1992 contained measures that would have formalized the appointment process in the Constitution, but both accords failed to be enacted. No agreement has been reached on what reforms would be appropriate, and the federal government has given no indication that it is willing to open up the appointment process.

    Since its founding in 1875, the Supreme Court of Canada has evolved from humble and marginal origins to become an institution that occupies a prominent place in Canada’s political life. In the late 1990s the makeup of the Court was in transition, as several of the justices who had been influential in developing jurisprudence relating to the charter either resigned or died. As a result, the future direction of the Supreme Court remained difficult to predict.” (1)

    Resources

    Notes and References

    Guide to Supreme Court in the Charter Era

    Further Reading

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    Alarie, B. & A. Green. “Policy Preference Change and Appointments to the Supreme Court of Canada” (Spring 2009), 47 (1) Osgoode Hall Law Journal 1-46.

    Alexander E.R., “The Supreme Court of Canada and the Canadian Charter of Rights and Freedoms” (1990) 40 University of Toronto Law Journal 1.

    Babinski, B., “Backstage at the Supreme Court of Canada” (April 1993) 17(3) Canadian Lawyer 11.

    Baker, D., “Changing Norms of Equality in the Supreme Court of Canada” (1987) 9 Supreme Court Law Review 497.

    Barker, S. “Decision Making at the Supreme Court of Canada” (2009), 34 (4) Canadian Law Library Review 172.
    Barron, S., “Supreme Life. (What’s it Like Working with some of the Country’s Most Brilliant Legal Minds? A Look Behind the Scenes at the Supreme Court of Canada)” (October 1988) 12(7) Canadian Lawyer 20.

    Bastarache, M. “How Internationalization of the Law has Materialized in Canada” (2009), 59 University of New Brunswick Law Journal 190.

    Batten, J., “The Power and the Glory” (1983) 67 The Review 2.

    Beaulac, S., “Recent Developments at the Supreme Court of Canada on the Use of Parliamentary Debates” (2000) 63 Saskatchewan Law Review 581.

    Belleau, M. & R. Johnson. “Judging Gender: Difference and Dissent at the Supreme Court of Canada” (March 2008), 15 (1-2) International Journal of the Legal Profession 57.

    Bilodeau, R. “Supreme Court of Canada – Structure, Status and Challenges” (September 2010), 36 (3) Commonwealth Law Bulletin 421.

    Blache, P., “Le droit à l’égalité: interface entre droits individuels et droits collectifs” (2000) 79 Canadian Bar Review 1.

    Botterell, A. “Should the Supreme Court Cite Living Judges?: A Comment on Professor Mohammed” (September 2009), 36 (1) Advocates’ Quarterly 138.

    Bushnell, S.I., “Leave to Appeal Applications to the Supreme Court of Canada: A Matter of Public Importance” (1982) 3 Supreme Court Law Review 479.

    Bzdera, A., “Perspectives québécoises sur la Cour suprême du Canada” (1992) 7(2) Canadian Journal of Law and Society 1.

    Cordonier Segger, M. “Sustainability, Global Justice, and the Law: Contributions of the Hon. Justice Charles Doherty Gonthier” (2010), 55 (2) McGill Law Journal 337.

    Cotler, I. “The Supreme Court Appointment Process: Chronology, Context and Reform” (2008) 58 University of New Brunswick Law Journal 131.

    Currie, J.H. “International Human Rights Law in the Supreme Court’s Charter Jurisprudence [Canadian Charter of Rights and Freedoms]: Commitment, Retrenchment and Retreat: In no Particular Order” (2010), 50 Supreme Court Law Review (2d) 423.

    Des Rosiers, N., “From Québec Veto to Québec Secession: the Evolution of the Supreme Court of Canada on Québec-Canada Disputes.” (2000) 13 Canadian Journal of Law and Jurisprudence 171.

    Dickson, B., “The Role of the Supreme Court of Canada” (1984) 3(4) Advocates’ Society Journal 3.

    Dixon, R. “The Supreme Court of Canada, Charter Dialogue, and Deference” (2009) 47 Osgoode Hall Law Journal 235.

    Dodek, A.M. “Canada as Constitutional Exporter: The Rise of the ‘Canadian Model’ of Constitutionalism” (2007), 36 Supreme Court Law Review Second Series 309-336.

    Elliot, R.M., “The Supreme Court of Canada and Section 1: the Erosion of the Common Front” (1987) 12 Queen’s Law Journal 277.

    Elliot, R.M., “Scope of the Charter’s Application” (1993) 15 The Advocates’ Quarterly 204.

    Galloway, J.D.C., “Three Models of (In)Equality:[the Supreme Court of Canada’s Interpretation of s.15(1) of the Canadian Charter of Rights and Freedoms]” (1993) 38 McGill Law Journal 64.

    Glenn, H.P., “La Cour suprême du Canada et la tradition du droit civil” (2001) 80 Canadian Bar Review 151.

    Gonthier, C.D., “L’influence d’une Cour suprême nationale sur la tradition civiliste québécoise” (1990) 24 La Revue juridique Thémis 413.

    Goulard, G.Y., “A Look at the Supreme Court of Canada” (1989) 10 Advocates’ Quarterly 222.

    Groppi, T. “A User-Friendly court: The Influence of Supreme Court of Canada Decisions Since 1982 on Court Decisions in other Liberal Democracies. (On 25 Years with a New Constitution)” (2007) 36 Supreme Court Law Review 337.

    Harvie, R. & H. Foster, “Different Drummers, Different Drums: the Supreme Court of Canada, American Jurisprudence and the Continuing Revision of Criminal Law under the Charter” (1992) 24 Ottawa Law Review 39.

    Heard, A.D., “The Charter in the Supreme Court of Canada: the Importance of which Judges Hear an Appeal” (1991) 24 Canadian Journal of Political Science 289.

    Hogg, P.W. & A.A. Thorton, “The Charter Dialogue Between Courts and Legislatures” (1999) Policy Options politiques 19 ; longer version in (1997) 35 Osgoode Hall Law Journal 75.

    Hogg, P.W., “The Law-Making Role of the Supreme Court of Canada: Rapporteurs’s Synthesis” (2001) 80 Canadian Bar Review 17.

    Hogg, P.W. & C.F. Zwibel, “The Rule of Law in the Supreme Court of Canada” (2005) 55(3) University of Toronto Law Journal 715.

    Hogg, P.W. “Appointment of Justice Marshall Rothstein to the Supreme Court of Canada” (Fall 2006), 44 (3) Osgoode Hall Law Journal 527.

    Hudon, E.G., “Growing Pains and Other Things: the Supreme Court of Canada and the Supreme Court of the United States” (1986) 17 Revue Générale de Droit 753.

    Huffman, J.L. & M. Saathoff, “Advisory Opinions and Canadian Constitutional Development: The Supreme Court’s Reference Jurisdiction” (1990) 74 Minnesota Law Review 1251.

    Hughes, P., “Judicial Independence: Contemporary Pressures and Appropriate Responses” (2001) 80 Canadian Bar Review 181.

    Huot, F., “La Cour suprême simplement” (1987) 9(8) Justice 35.

    Iacobucci, F., “The Supreme Court of Canada: Its History, Powers and Responsibilities” (2002) 4 Journal of Appellate Practice and Process 27.

    Joseph, C.M., “All but One: Solo Dissents on the Modern Supreme Court of Canada” (2006) 44(3) Osgoode Hall Law Journal 501.

    Kelly, J.B. & M. Murphy, “Confronting Judicial Supremacy: A Defence of Judicial Activism and the Supreme Court of Canada’s Legal Rights Jurisprudence” (2001) 16(1) Canadian Journal of Law and Society 3.

    La Forest, G.V., “The Use of International and Foreign Material in the Supreme Court of Canada” (1988) 17 Canadian Council on International Law. Proceedings 230.

    La Forest, G.V., “The Expanding Role of the Supreme Court of Canada in International Law Issues” (1996) 34 The Canadian Yearbook of International Law 89.

    Lamer, A., “A Brief History of the Court.” In The Supreme Court of Canada and Its Justices 1875-2000: A Commemorative Book, Toronto, Dundurn Group, 2000, 11.

    LeBel, L. et P.-L. Le Saunier, “L’interaction du droit civil et de la common law à la Cour suprême du Canada” (2006) 47(2) Cahiers de Droit 179.

    LeBel, L. “L’influence de la cour suprême du Canada sur l’application du Code Civil du Québec depuis 1994” (2010), 88 (2) Canadian Bar Review 233.

    L’Heureux-Dubé, C., “The Length and Plurality of Supreme Court of Canada Decisions” (1990) 28 Alberta Law Review 551.

    L’Heureux-Dubé, C., “Nomination of Supreme Court Judges: Some Issues for Canada” (1991) 20 Manitoba Law Journal 600.

    L’Heureux-Dubé, C., “Bijuralism: A Supreme Court of Canada’s Justice’s Perspective” (2002) 62 Louisiana Law Review 449.

    L’Heureux-Dubé, C., “Realizing Equality in the Twentieth Century: The Role of the Supreme Court of Canada in Comparative Perspective” (2003) 1(1) International Journal of Constitutional Law 35.

    Lubetsky, M.H., and J.A. Krane. “Appealing Outcomes: A Study of the Overturn Rate of Canada’s Appellate Courts” (Spring 2009), 47 (1) Osgoode Hall Law Journal 131.

    Macfarlane, E. “Consensus and Unanimity at the Supreme Court of Canada” (2010), 52 Supreme Court Law Review (2d) 379.

    Macfarlane, E. “Administration at the Supreme Court of Canada: Challenges and Change in the Charter Era” (March 2009), 52 (1) Canadian Public Administration 1.

    MacKay, A.W., “The Supreme Court of Canada and Federalism: Does \ Should Anyone Care Anymore?” (2001) 80 Canadian Bar Review 241.

    Major, J.C., “Interveners and the Supreme Court of Canada” (1999) 8(3) National (A.B.C.) 27.

    Malleson, K., “Parliamentary Scrutiny of Supreme Court Nominees: A View from the United Kingdom” (2006) 44(3) Osgoode Hall Law Journal 557.

    Manfredi, C.P., “The Use of United States Decisions by the Supreme Court of Canada under the Charter of Rights and Freedoms” (1990) 23 Canadian Journal of Political Science 499.

    Martin, R., “Ideology and Judging in the Supreme Court of Canada” (1988) 26 Osgoode Hall Law Journal 797.

    Mayeda, G. “Between Principle and Pragmatism: The Decline of Principled Reasoning in the Jurisprudence of the McLachlin Court” (2010), 50 Supreme Court Law Review (2d) 41.

    McCormick, P., “Assessing Leadership on the Supreme Court of Canada: Towards a Typology of Chief Justice Performance” (1993) 4 Supreme Court Law Review 409.

    McCormick, P., “Birds of a Feather: Alliances and Influences on the Lamer Court 1990-1997” (1998) 36 Osgoode Hall Law Journal 339.

    McCormick, P., “Follow the Leader: Judicial Power and Judicial Leadership on the Laskin Court, 1973-1984” (1998) 24 Queen’s Law Journal 237.

    McCormick, P., “Second Thoughts: Supreme Court Citation of Dissents & Separate Concurrences, 1949-1996” (2002) 81 Canadian Bar Review 369.

    McCormick, P., “Blocs, Swarms and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada” (2004) 42 Osgoode Hall Law Journal 99.

    McCormick, P., “Selecting the Supremes : The Appointment of Judges to the Supreme Court of Canada” (2005) 7(1) Journal of Appellate Practice and Process 1.

    McCormick, P., “Standing Apart: Separate Concurrence and the Modern Supreme Court of Canada, 1984-2006” (2008) 53 McGill Law Journal 137.

    McCormick, P. “Structures of Judgments: How the Modern Supreme Court of Canada Organizes its Reasons” (Spring 2009), 32 (1) Dalhousie Law Journal 35.

    McInnes, M., J. Bolton, & N. Derzko, “Clerking at the Supreme Court of Canada” (1994) 33 Alberta Law Review 58. (also available in french. See: Dagenais Blackburn)

    McLachlin, B., “The Role of the Courts in the Post-Charter Era: Policy-Maker or Adjudicator?” (1990) 39 University of New Brunswick Law Journal 43.

    McLachlin, B., “The Supreme Court and the Public Interest” The Heald Lecture, College of Law, 26 February 2001 (2001) 64 Saskatchewan Law Review 309.

    McLachlin, B., “Equality: The Most Difficult Right” (2001) 14 Supreme Court Law Review, 2d 17.

    McLachlin, B., “Le rôle du juge en chef” (2002) 32(2) Revue générale de droit. Université d’Ottawa 403.

    McLachlin, B., “The Challenges We Face” (2007) 40(2) University of British Columbia Law Review 819.

    Meagher, L. “Information Management and Interpretation and Translation Services at the Supreme Court of Canada” (September 2010), 36 (3) Commonwealth Law Bulletin 479.

    Meehan, E. “Raw judicial power: Myth or reality: Do judges interpret law or make law?” (May 2009), 2 Journal of Parliamentary and Political Law 457.

    Monahan, P.J. & M.J. Bryant, “The Supreme Court of Canada’s 1996 Constitutional Cases: the End of Charter Activism?” (1997) 5 Canada Watch 41.

    Monahan, P.J., “The Supreme Court of Canada in the 21st Century” (2001) 80 Canadian Bar Review 374.

    Moskoff, F.R. “The Role of the Supreme Court of Canada in the 1990s and Beyond” (1989) 8 Advocates’ Society Journal 5.

    Ostberg, C.L., M.E. Wetstein, & C.R. Ducat, “Attitudinal Dimensions of Supreme Court Decision Making in Canada: The Lamer Court, 1991-1995” (2002) 55(1) Political Research Quarterly 235.

    Osgoode Hall Law Journal
    Annual report entitled: “(Year) S.C.R. Statistical Analysis”

    Supreme Court Law Review
    Annual report entitled, “Leave to Appeal Applications: the (year) term” compiled by H.S. Brown and B.A. Crane.

    Bale, G., “W.R. Lederman and the Citation of Legal Periodicals by the Supreme Court of Canada” (1993) 19 Queen’s Law Journal 36.

    Black, V. & N. Richter, “Did She Mention my Name?: Citation of Academic Authority by the Supreme Court of Canada, 1985-1990” (1993) 16 Dalhousie Law Journal 377.

    McCormick, P., “The Supervisory Role of the Supreme Court of Canada: Analysis of Appeals from Provincial Courts of Appeal, 1949-1990” (1992) 3 Supreme Court Law Review 1.

    McCormick, P., “Party Capability Theory and Appellate Success in the Supreme court of Canada, 1949-1992” (1993) 26 Canadian Journal of Political Science 523.

    McCormick, P., “Judicial Career Patterns and the Delivery of Reasons for Judgment in the Supreme Court of Canada, 1949-1993” (1994) 5 Supreme Court Law Review 499.

    McCormick, P., “The Supreme Court Cites the Supreme Court: Follow-up Citation on the Supreme Court of Canada, 1989-1993” (1995) 33 Osgoode Hall Law Journal 453.

    McCormick, P., “What Supreme Court Cases Does the Supreme Court Cite?: Follow-up Citations on the Supreme Court of Canada, 1989-1993” (1996) 7 Supreme Court Law Review (2d) 451.

    McCormick, P., “The Supreme Court of Canada and American Citations 1945-1994: a Statistical Overview” (1997) 8 Supreme Court Law Review 527.

    McCormick, P., “Do Judges Read Books, Too?: Academic Citations by the Lamer Court 1991-96” (1998) 9 Supreme Court Law Review (2d) 463.

    McCormick, P. “Second Thoughts: Supreme Court Citation of Dissents & Separate Concurrences” (2002) 81 Canadian Bar Review 369.

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