Supreme Court of Canada

The Supreme Court of Canada (French: Cour suprÃªme du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system. The court grants permission to fewer than one hundred litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions are, by tradition (stare decisis), binding upon all lower courts of Canada. The Supreme Court of Canada is composed of nine judges: eight Puisne Justices and the Chief Justice of Canada.

The Court is housed in a massive Art Deco building in Ottawa designed by Ernest Cormier and opened in 1946.

History

The creation of the Court was provided for by the British North America Act, 1867, renamed in 1982 the Constitution Act, 1867. The first bills for the creation of federal supreme court, introduced in the Parliament of Canada in 1869 and in 1870, were withdrawn. On April 8, 1875, however, a bill was finally passed providing for the creation of a Supreme Court of Canada.

Old Courthouse building.

Until 1949, however, the Supreme Court was not the court of last resort: litigants could appeal to the Judicial Committee of the Privy Council in London. As well, some cases could bypass the Court and go directly to the Judicial Committee from the provincial courts of appeal. The Supreme Court's influence was thus rather modest. Attitudes among many English Canadians changed when the Privy Council made some unpopular decisions in the 1930s, striking down several overreaching federal legislative initiatives . The Judicial Committee's view of the division of powers was that it provided for strong provincial powers, whilst many Canadian nationalist believed the opposite. Consequently, public pressure forced the federal government to push for complete judicial independence from the United Kingdom. The Supreme Court of Canada formally became the court of last resort for criminal appeals in 1933 and for all other appeals in 1949. The last decisions of the Judicial Committee on cases from Canada were made in the mid-1950s.

Prior to 1949, most of the judges of the Supreme Court of Canada were patronage appointments. Each judge had strong political ties to the government in power at the time of their appointment. The appointment of a constitutional law professor, Bora Laskin, as Chief Justice in 1973 represented a major turning point for the Court. Many of the justices by this time were either academics or well respected practitioners, most had several years experience in appellate courts. Laskin's federalist and liberal views were an influence in many of the Court's decisions.

The Constitution Act, 1982 greatly expanded the role of the Court in Canadian society by the addition of a Canadian Charter of Rights and Freedoms which greatly broadened the scope of judicial review. The evolution from the Dickson Court through to the Lamer Court remained aggressive in the protection of civil liberties. Lamer's criminal law background proved an influence on the number of criminal cases heard by the Court during his time as Chief Justice. Nonetheless, the Lamer Court was more conservative with Charter rights, with only about 1 percent success rate for Charter claimant.

The appointment of Beverly McLachlin as Chief Justice in 2000 has resulted in a more centrist and unified Court. Dissenting and concurring opinions are fewer than they were during the Dickson and Lamer Courts.

The role of the Supreme Court in the Canadian court system

The Canadian court system may be seen as a pyramid, with a broad base formed by the various provincial and territorial courts whose judges are appointed by the provincial or territorial governments. At the next level are the provinces' and territories' superior courts whose judges are appointed by the federal government. Judgments from the superior courts may be appealed to the next level, the provincial or territorial courts of appeal. There are also federal courts: the Tax Court of Canada, the Federal Court, the Federal Court of Appeal and the Court Martial Appeal Court of Canada. Unlike the provincial superior courts, which exercise inherent or general jurisdiction, the federal courts' jurisdiction is limited by statute. In all there are over 1000 federally-appointed judges at various levels across Canada.

The Supreme Court of Canada hears appeals from the provincial courts of last resort, usually the provincial or territorial courts of appeal, and the Federal Court of Appeal (although in some matters appeals come straight from the trial courts, as in the case of publication bans and other orders that are otherwise not appealable). In most cases, permission to appeal must first be obtained from a panel of three judges of the court. By convention, this panel never explains why it gives leave to appeal or not. Cases for which leave to appeal is not required are primarily criminal cases (in which a Judge below dissented on a point of law) and appeals from provincial references. A final source of cases is the referral power of the federal government. In such cases, the Supreme Court is required to give an opinion on questions referred to it by the Governor-in-Council (cabinet). In many cases, however, including the most recent Same-Sex Reference, the Court has declined to answer a question from the Cabinet. In that case, the Court said it would not decide if same-sex marriages were required by the Charter of Rights, because the government had announced it would change the law regardless of its opinion, and subsequently did.

Courtroom of the Supreme Court of Canada, circa 1950.

The Supreme Court thus performs a unique function. It can be asked by the Governor-in-Council to hear references considering important questions of law. Such referrals may concern the constitutionality or interpretation of federal or provincial legislation, or the division of powers between federal and provincial levels of government. Any point of law may be referred in this manner. However, the court is not often called upon to hear references. When it is, the opinion on the question referred is often of national importance; one recent example concerns the constitutionality of Same-sex marriage (Supreme Court Decision). References have been used to re-examine criminal convictions that have concerned the country as in the cases of David Milgaard and Stephen Truscott.

Constitutional questions may, of course, also be raised in the normal case of appeals involving individual litigants, governments, government agencies or crown corporations. In such cases the federal and provincial governments must be notified of any constitutional questions and may intervene to submit a brief and attend oral argument at the court. Usually the other governments are given the right to argue their case in the Court, although on rare occasions this has been curtailed and prevented by order of one of the Court's judges.

Sessions of the Court

The Court sits for 18 weeks of the year beginning the first Monday of October and usually runs until the end of June and sometimes into July. Hearings only take place in Ottawa, although litigants can present oral arguments from remote locations by means of a video-conference system. The court's hearings are open to the public. Most hearings are taped for delayed telecast in both of Canada's official languages. When in session, the court sits Monday to Friday, hearing two appeals a day. A quorum consists of five members for appeals. A panel of nine justices hears most cases.

On the bench, the Chief Justice of Canada, or, in her absence, the senior puisne justice, presides from the centre chair with the other justices seated to her right and left by order of seniority of appointment. At sittings of the Court, the justices usually appear in black silk robes but they wear their ceremonial robes of bright scarlet trimmed with Canadian white mink in court on special occasions and in the Senate at the opening of each new session of Parliament.

The decision of the court is sometimes rendered orally at the conclusion of the hearing. More often, judgement is reserved to enable the justices to write considered reasons. Decisions of the court need not be unanimous; a majority may decide, with dissenting reasons given by the minority. Each justice may write reasons in any case if he or she chooses to do so.

The Supreme Court has the ultimate power of judicial review over Canadian federal and provincial laws' constitutional validity. If a federal or provincial law has been held contrary to the division of power provisions of one of the various Constitution Acts, the legislature or Parliament must either live with the result, amend the law so that it complies, or obtain an amendment to the constitution. If a law is declared contrary to certain sections of the Charter of Rights and Freedoms, Parliament or the provincial legislatures may make that particular law temporarily valid again against by using the "override power" of the notwithstanding clause. In one case, the Quebec National Assembly invoked this power to override a Supreme Court decision (Ford v. Quebec (A.G.)) that held that one of Quebec's language laws banning the display of English commercial signs was inconsistent with the charter. Saskatchewan used it to uphold labour laws.

In some cases, the Court may stay the effect of its judgments so that unconstitutional laws continue in force for a period of time. Usually this is done to give Parliament or the legislature time to enact a new replacement scheme of legislation. For example, in Reference re Manitoba Language Rights the Court struck down Manitoba's laws because they were not enacted in the French language, as required by the constitution. However the Court stayed its judgment for 5 years to give Manitoba time to re-enact all its legislation in French. It turned out five years was insufficient so the Court was asked, and agreed to give more time.

A puisne justice of the Supreme Court of Canada is referred to as "The Honourable Mr/Madam Justice" and the chief justice as "Right Honourable." Judges used to be called "My Lord/Lady" during sessions of the court, but this style of address was disapproved of by the current Chief Justice, Rt. Hon. Beverly McLachlin, who has directed lawyers to use the simpler "Your Honour" or "Justice." The designation "My Lord/My Lady" continues in many provincial Superior Courts, and in the Federal Court of Canada and Federal Court of Appeal where it is optional.

Other functions

If the Governor General dies, leaves the country for more than one month, or is medically unable to discharge her/his duties, the Chief Justice of Canada (or, if that position is vacant, the senior Puisne Justice) serves as Administrator of Canada, and exercises all powers of the Governor General. The only individuals to serve as Administrators due to the deaths of Governors General were Chief Justice Sir Lyman Poore Duff (1940) and Chief Justice Robert Taschereau (1967). The current Chief Justice, Beverley McLachlin, served briefly as Administrator in July 2005, when Governor General Adrienne Clarkson was hospitalized for pacemaker surgery.

The Chief Justice also sits on the advisory council of Canada highest national decoration the Order of Canada. In practice however, the Chief Justice abstains from voting on a candidate's Removal from the Order of Canada presumably because this process has so far only applied to individuals convicted in a lower court of a criminal offence and if that individual appealed their conviction all the way to the Supreme Court, the Chief Justice could be put in a conflict of interest.

Today, members of the Supreme Court occasionally grant royal assent to legislation passed by the Canadian House of Commons and Senate, in their capacity as deputies of the Governor General. This used to be quite frequent, but new legislation allows Royal Assent to be given privately by the Governor General which is now the normal practice.

Building

The Supreme Court Building in Ottawa

View from the Ottawa River

The Supreme Court of Canada Building is home to the Supreme Court of Canada. It also contains two court rooms used by both the Federal Court of Canada and the Federal Court of Appeal when it sits in Ottawa. Construction began in 1939, with the cornerstone laid by Queen Elizabeth, consort to King George VI and later Queen Mother. It was built by Ernest Cormier, architect of the Quebec Court of Appeal Building, the Government Printing Bureau in Gatineau, Quebec, and the UniversitÃ© de MontrÃ©al. The Court began hearing cases in the new building by January of 1946. The building is renowned for its Art Deco details.

Outside the building are several statues:
* Prime Minister Louis St. Laurent 1976
* Two statues by Canadian architect Walter S. Allward:
** Statue of Veritas (Truth)
** Statue of Justitia (Justice)

Previous homes of Canada's top courts include:
* Railway Committee Room in the Parliament Buildings 1876-1889
* Old Supreme Court (Canada) on Bank Street 1889-1945

Appointments

Justices of the Supreme Court of Canada are appointed by the Governor-in-Council â€" that is, the Governor General makes appointments based on the advice of the Queen's Privy Council for Canada. By tradition and convention, only the Cabinet advises the Governor General (as opposed to the entire Privy Council â€" technically speaking, the Cabinet is only a standing committee in the larger council), and this advice is usually expressed to the Queen's representative exclusively through a consultation with the Prime Minister. The provinces and Parliament have no formal role in such appointments, a point of ongoing contention.

The Supreme Court Act limits eligibility for appointment to persons who have been judges of a superior court, or members of the bar for ten or more years. Members of the bar or superior judiciary of Quebec, by law, must hold three of the nine positions on the Supreme Court of Canada.Supreme Court Act, s. 6. This is justified on the basis that Quebec uses civil law, rather than common law, as in the rest of the country, and persists even though Quebec makes up only about 24 percent of the population. By convention, the remaining six positions are divided in the following manner: three from Ontario, two from the western provinces and one from the Atlantic provinces, alternating between Nova Scotia and New Brunswick.

The term for a Supreme Court justice lasts until retirement, death, or age of 75 years. (By contrast, Justices of the Supreme Court of the United States may sit for life.)

Changes to the appointment process

The appointment process has been the source of some controversy in recent years, as appointments occur with no scrutiny by parliament or opposition political parties. Critics have alleged that this process has allowed the Prime Minister to effectively "stack" the court with ideologically like-minded individuals who will support his government and legislation. Conservative critics have argued this leads to the rise of partisan, activist judges instead of neutral ones. Supporters have justified the process of appointment on the grounds that "quiet" appointments made as a result of the Prime Minister's consultation with experts result in better choices than ones that would be made if opposition politicians were allowed to openly interrogate and veto nominees.

In response to the critics, Prime Minister Paul Martin changed the appointment process slightly in 2004. He indicated his intention to appoint a special parliamentary committee to screen the new nominees and report to Parliament on their findings, though neither this committee nor the parliament has the power to block appointments. Similarly, the committee would not have the ability to directly interview the nominee. However, when the names of Justices Abella and Charron were put forward, Parliament was dissolved, and thus unable to form Committees. The Prime Minister subsequently named an Ad Hoc Committee of Parliamentarians that would both consider the process to be used, and hear from the Minister of Justice concerning the particular nominees. In addition to the Parliamentarians, the Committee also had two members of the Canadian Judicial Council, sitting judges who participated in the closed door discussions on the process, and recused themselves for the consideration of the specific appointees. In 2004 when this process was practiced for the first time, committee members from the Conservative Party of Canada refused to sign their committee's final report, calling the entire process "insufficient".

In April 2005, the Liberal government announced another change to the selection process. The advisory committee (which includes many federal nominees) would see a list of seven names given to them by the Minister of Justice and would be required to cut the list to three. The Prime Minister would choose from the list of the three remaining candidates.

The advisory committee includes a Member of Parliament from each recognized party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial Attorneys General, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. A new Advisory Committee will be formed each time a Supreme Court vacancy occurs.

In February 2006, Prime Minister Stephen Harper increased access to candidates, allowing an ad hoc committee of Parliamentarians to interview the candidacy of Marshall Rothstein prior to his appointment. The Prime Minister still has the final say on who becomes the candidate that is recommended to the Governor General for appointment to the court.