The Supreme Court of Canada: its history, powers and responsibilities.

• Author: Iacobucci, Frank

1. INTRODUCTION

   In September 2000, the Supreme Court of Canada celebrated its 125th anniversary. This occasion provided Canadians, and especially those of us intimately related to the Court, with an opportunity to reflect upon the development of this national institution. As part of the celebrations, a conference on various topics drew our attention to the incremental steps taken through which the modern Supreme Court of Canada has emerged from its unpromising and modest beginning. (1) Commemorating 125 years of the Court's work also occasioned some reflection on the structure and composition of the Court, and the manner in which its position has evolved over time. This essay aims to provide an overview of the historical development of the Court and a discussion of its present-day role, jurisdiction, and responsibilities. This will, I hope, afford an understanding of the Supreme Court of Canada's tradition as well as a basis for comparative assessments with judicial systems and approaches in other nations.

2. THE HISTORY OF THE SUPREME COURT OF CANADA (2)

   In the constitutional conferences that led to the creation of Canada in 1867, there was very little discussion about creating a Supreme Court. Section 101 of the British North America Act, 1867, the founding constitutional document that joined Canada in a united confederation, authorized Parliament to "provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada...." However, the path to establishing a national Supreme Court was fraught with considerable difficulties and challenges.

   The first Canadian government, under Sir John A. Macdonald, introduced bills in Parliament in 1869 and 1870 to provoke discussion on the creation of a national supreme court; however, these bills were met with substantial debate and controversy. Some legislators questioned whether there was a need for a supreme court, given that all final appeals at the time were heard by the Judicial Committee of the Privy Council in England. This concern in turn prompted a debate on whether appeals to the Privy Council should be abolished. Other Parliamentarians voiced anxieties over whether a single Supreme Court for all of Canada would be able to protect and preserve the civil law system, which is unique to the province of Quebec. The Macdonald government was not able to reconcile these competing concerns before its electoral defeat in 1873.

   In 1875, under the leadership of Prime Minister Alexander Mackenzie, the issue of establishing a national supreme court was again raised by legislators. Later that year, Parliament enacted the Supreme Court Act. (3) This statute created a final Canadian appeal court, the Supreme Court of Canada. The Court was composed of six members: one Chief Justice and five puisne (4) Justices. It is interesting to note that the Exchequer Court of Canada was also created in 1875 and the judges of the Supreme Court of Canada also served as judges of the Exchequer Court. Showing how informal procedures were in those days, the judges of the Supreme Court could sit in appeal of their own judgments. (5)

   The Supreme Court Act also attempted to respond to the concerns raised by civil law jurists in Quebec by requiting that two Justices of the Supreme Court be from the bar of Quebec, and by limiting the Court's jurisdiction in civil appeals from that province to cases involving disputes over a minimum amount of $2,000.

   Although the Mackenzie government was prepared to abolish appeals to the Privy Council upon the enactment of the Supreme Court Act, legal steps taken in England prevented this from being carried out. As a result, even after this legislation took effect, parties remained entitled to appeal judgments of the Supreme Court of Canada to the Privy Council with leave of the latter court, and per saltum appeals, that is, appeals from provincial appellate courts directly to the Privy Council, also remained possible. This state of affairs meant that the Supreme Court was not in fact the court of last resort in the country with the accompanying implication that it was an inferior tribunal in need of supervision by a higher appellate court.

   The ability to appeal decisions of the Supreme Court of Canada to the Privy Council remained in place until 1933 for criminal appeals and 1949 for civil appeals. The path to these milestones was marked by several challenges. In 1887, Parliament attempted to abolish criminal appeals to the Privy Council by amending the Supreme Court Act. Although this amendment remained on the books for nearly forty years, the Privy Council ultimately struck it down in 1926 as being outside the powers of Canada's Parliament. Parliament made another attempt to abolish criminal appeals to the Privy Council in 1933, and this time, the proposed legislation was upheld in the context of the Statute of Westminster, a 1931 Act of the British Parliament that granted Canada full political and legal independence.

   Bills to abolish both civil and criminal appeals to the Privy Council were presented in the Canadian House of Commons in 1937, 1938 and 1939. In 1939, the constitutionality of these measures was examined by the Supreme Court in the form of a reference put to the Court by the Governor in Council. The Court held that Parliament could proceed to eliminate all appeals to the Privy Council. This decision was subsequently appealed to the Privy Council, which was unable to hear the case until after the Second World War. In 1946, however, the Supreme Court's opinion was affirmed and Parliament was allowed to abolish all appeals to the Privy Council. This process was completed in 1949, at which time a new era began for the Supreme Court of Canada as that of the court of last resort in the nation.

   This dramatic change in the Court's legal status was accompanied by an increasing number of cases. Throughout the 1950s and 1960s, the Court made many internal changes and expanded its personnel in order to ensure that it remained able to carry out its function in Canadian society with success and efficacy. At the same time, these internal changes did nothing to affect the number or the nature of the cases that came before the Court. Although the Supreme Court of Canada had become the nation's court of last resort, it remained responsible for hearing a number of cases that did not raise challenging or important matters. As a result, changes to the Court's jurisdiction were made by Parliament, and in 1975, legislative amendments were adopted that permitted the Justices to decide whether to hear a civil appeal. The criterion for making this determination was whether the case raised an issue of public importance.

   These amendments marked another...