Supreme Court of Canada
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The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal in the Canadian justice system.[1] The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions are stare decisis, binding upon all lower courts of Canada. The Supreme Court of Canada is composed of nine judges: the Chief Justice of Canada and eight Puisne Justices.[2]
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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bills for the creation of a federal supreme court, introduced in the Parliament of Canada in 1869 and in 1870, were withdrawn. It was not until 8 April 1875, that a bill was finally passed providing for the creation of a Supreme Court of Canada.
Prior to 1949, however, the Supreme Court did not constitute 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 various unpopular decisions in the 1930s, striking down several overreaching federal legislative initiatives. These decisions were rooted in the Judicial Committee's perception that the division of powers provided for strong provincial powers. Many Canadian nationalists took the opposite view, and as a consequence, 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 as a result of their being heard in a court of first instance prior to 1949. The increase in the importance of the Court was mirrored by the numbers of its members. The Court was established in 1875 with six judges, and these were augmented by an additional member in 1927. It was in 1949 that the bench reached its current size: 9 judges.
Prior to 1949, most of the appointees to the Supreme Court of Canada owed their position to political patronage. Each judge had strong ties to the government in power at the time of their appointment. In 1973, the appointment of a constitutional law professor, Bora Laskin, as Chief Justice represented a major turning point for the Court. Increasingly in this period, appointees either came from academic backgrounds, or were well-respected practitioners with several years experience in appellate courts. Laskin's federalist and liberal views were shared by Prime Minister Trudeau, who appointed him, and exerted an influence on many of the Court's decisions.
The Constitution Act, 1982 greatly expanded the role of the Court in Canadian society by the addition of the Canadian Charter of Rights and Freedoms, which greatly broadened the scope of judicial review. The evolution from the Dickson Court (1984–90) through to the Lamer Court (1990–2000) witnessed a continuing vigour 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 one-percent success rate for Charter claimants.
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 during the Dickson and Lamer Courts. With the 2005 appointments of Justices Charron and Abella, the Court has become the world's most gender-balanced national high court, four of its nine members being female.
Role
The structure of the Canadian court system is pyramidal, a broad base being 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, where judges are appointed by the federal government. Judgments from the superior courts may be appealed to a still higher level, the provincial or territorial courts of appeal. Several federal courts also exist: 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 rests at the apex of the judicial pyramid. This institution 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 the Court. Motions for leave to appeal to the Court are generally heard by a panel of three judges of the court and a simple majority is determinative. By convention, this panel never explains why it grants or refuses leave in any particular case, but the Court typically hears cases of national importance or where the case allows the court to settle an important issue of law. Leave is rarely granted, meaning that for most litigants, provincial Courts of Appeal are courts of last resort. But leave to appeal is not required for some cases, 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). However, in many cases, 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.
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. References have been used to re-examine criminal convictions that have concerned the country as in the cases of David Milgaard and Steven 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
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 his or her absence, the senior puisne justice, presides from the centre chair with the other justices seated to his or 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—but rarely—rendered orally at the conclusion of the hearing. More often, judgment 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. This override power can be exercised for five years, after which time the override must be renewed, or the decision comes into force.
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". At one time, Judges were 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.
Building
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. Construction began in 1939, with the cornerstone laid by Queen Elizabeth, consort to King George VI and later Queen Mother. It was designed by Ernest Cormier, architect of the Quebec Court of Appeal building, the Government Printing Bureau in Gatineau, Quebec, and the Université de Montréal. The Court began hearing cases in the new building by January 1946. The building is renowned for its Art Deco details.[3] In 2000, it was named by the Royal Architectural Institute of Canada as one of the top 500 buildings produced in Canada during the last millennium.[4]
Two flagstaffs have been erected in front of the building. A flag on one is flown daily, while the other is hoisted only on those days when the court is in session. Also located on the grounds are several statues, notably:
- Prime Minister Louis St. Laurent 1976
- Two statues by Canadian sculptor Walter S. Allward:
Inside there are busts of several Chief Justices:
- Cartwright
- Laskin
- Dickson
- Lamer
They were all sculpted by Kenneth Jarvis, Q.C.
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 General-in-Council, a process whereby the governor general, the viceregal representative of the Queen of Canada, makes appointments based on the advice and consent of the Queen's Privy Council for Canada. By tradition and convention, only the Cabinet, a standing committee in the larger council, advises the governor general and this advice is usually expressed exclusively through a consultation with the prime minister. Thus, the provinces and parliament have no formal role in such appointments, a sometimes point of 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.[5] This is justified on the basis that Quebec uses civil law, rather than common law, as in the rest of the country. The 3/9 ratio persists even though just 24 percent of Canada's population resides in Quebec. By convention, the remaining six positions are divided in the following manner: three from Ontario, two from the western provinces (typically one from British Columbia and one from the Prairie Provinces, which in turn rotates amongst the three, although Alberta is known to cause skips in the rotation) and one from the Atlantic provinces, alternating between Nova Scotia and New Brunswick.
The appointment of the most senior puisne justice to Chief Justice is a convention that has recently fallen into disuse. And there is also an attempt to appoint at least one Justice straight from legal practice without having previously been a judge.
A Supreme Court justice, as with all federal judges, may only sit on the bench until the age of 75 years.
In 2006, an interview phase by an ad hoc committee of members of Parliament was added. Justice Marshall Rothstein became the first justice to undergo the new process. 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. The government proposed an interview phase again in 2008, but a general election and minority parliament intervened with delays such that the Prime Minister appointed Justice Cromwell after consulting the Leader of Her Majesty's Official Opposition.
Current membership
The current Justices of the Supreme Court of Canada are as follows. See also List of Justices of the Supreme Court of Canada.
| Name | Date of birth | Home province | Appointed on the advice of | Date appointed | Mandatory retirement date | Law School | Position Before Appointment |
|---|---|---|---|---|---|---|---|
| Beverley McLachlin (Chief Justice) |
7 September 1943 | British Columbia | Mulroney (as puisne justice) Chrétien (as chief justice) |
30 March 1989 7 January 2000 |
7 September 2018 | University of Alberta | British Columbia Court of Appeal Puisne Justice of the Supreme Court |
| Ian Binnie | 14 April 1939 | Ontario | Chrétien | 8 January 1998 | 14 April 2014 | University of Toronto University of Cambridge |
Lawyer, McCarthy Tétrault |
| Louis LeBel | 30 November 1939 | Quebec | Chrétien | 7 January 2000 | 30 November 2014 | Université Laval | Quebec Court of Appeal |
| Marie Deschamps | 2 October 1952 | Quebec | Chrétien | 7 August 2002 | 2 October 2027 | Université de Montréal | Quebec Court of Appeal |
| Morris Fish | 16 November 1938 | Quebec | Chrétien | 8 May 2003 | 16 November 2013 | McGill University | Quebec Court of Appeal |
| Rosalie Abella | 1 July 1946 | Ontario | Martin | 10 April 2004 | 1 July 2021 | University of Toronto | Court of Appeal for Ontario |
| Louise Charron | 2 March 1951 | Ontario | Martin | 4 October 2004 | 2 March 2026 | University of Ottawa | Court of Appeal for Ontario |
| Marshall Rothstein | 25 December 1940 | Manitoba | Harper | 1 March 2006 | 25 December 2015 | University of Manitoba | Federal Court of Appeal |
| Thomas Cromwell | 5 May 1952 | Nova Scotia | Harper | 22 December 2008 | 5 May 2027 | Queen's University University of Oxford |
Nova Scotia Court of Appeal |
Clerks
Since 1967 the Court has hired clerks to assist in legal research. Typically, the clerks are selected from among the top students of each law school across the country. Between 1967 and 1982, each puisne justice was assisted by one clerk and the chief justice had two. From 1982, the number was increased to three clerks for each justice.
Clerks conduct research, draft bench memoranda, and assist in drafting judgments, as well as aid with any other duties of the judge such as drafting speeches or articles.
See also
- Supreme Court of Canada cases
- Supreme Court of British Columbia
References
- ↑ Supreme Court of Canada (2007). "Role of the Court" (asp). About the Court. http://www.scc-csc.gc.ca/AboutCourt/role/index_e.asp. Retrieved April 18, 2007.
- ↑ Supreme Court of Canada (2007). "Judges of the Court" (asp). About the Court. http://www.scc-csc.gc.ca/aboutcourt/judges/aboutjudges_e.asp. Retrieved April 18, 2007.
- ↑ http://canada.archiseek.com/ontario/ottawa/supreme_court.html
- ↑ Cook, Marcia (11 May 2000). "Cultural consequence". Ottawa Citizen (Canwest). http://www.ty-a.ca/Citizen/top500.htm. Retrieved 2009-10-11.
- ↑ Supreme Court Act, s. 6.
External links
- Supreme Court of Canada website
- Supreme Court of Canada Library Catalogue
- Opinions of the Supreme Court of Canada
- Supreme Court of Canada from www.marianopolis.edu
- The Supremacy of Parliament and the Canadian Charter of Rights
- Explore the Virtual Charter—Charter of Rights website with video, audio and the Charter in more than twenty languages
- The appointment process and reform
- SCC building from official site
- SCC Building
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