Supreme Court of Canada

I

Introduction

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.

II

Power and Jurisdiction

The Constitution of Canada does not explicitly establish a Supreme Court. Section 101 of the Constitution Act of 1867 allowed for the creation of 'a General Court of Appeal for Canada.' It was not until 1875 that the federal government passed the Supreme Court and Exchequer Courts Act, which established the Supreme Court. Because constitutional acts do not specifically mention the Supreme Court or its functions or scope, the Court is not constitutionally entrenched (a Canadian term meaning given constitutional status) in a strictly legal sense. Nonetheless, by convention there is no dispute about the Court’s authority and importance.

The jurisdiction of the Supreme Court of Canada is very broad. The Supreme Court is the final court for all legal disputes in Canada. In contrast, the jurisdiction of the Supreme Court of the United States is mostly limited to interpreting federal and constitutional law, thereby leaving ultimate authority on many issues to state courts.

The Supreme Court of Canada has the authority to review and invalidate any law that contradicts the Constitution of Canada—a power called judicial review. This power was expanded in the Constitution Act of 1982, which added the Canadian Charter of Rights and Freedoms to the Constitution. The charter includes a list of rights protected by the federal government, and it explicitly recommends that any infringements of those rights should be appealed through the courts. The charter significantly increased the power of the Canadian courts—and the Supreme Court in particular—to overturn laws passed by federal and provincial legislatures, if those laws conflict with the charter.

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III

Membership

The Supreme Court of Canada has nine members: one chief justice and eight puisne (associate) justices. The chief justice is a first among equals: She or he is not legally superior to other judges. However, the chief justice has distinctive tasks, including managing and administering the Supreme Court and acting as the primary spokesperson for the Canadian judiciary.

When a vacancy occurs on the Court due to retirement or death, the Cabinet of the ruling government in the Canadian Parliament, led by the prime minister, appoints a successor after consulting with the Canadian Bar Association’s Committee on the Judiciary. If the chief justice retires or dies, the prime minister of Canada selects a replacement, usually from among the justices already on the Court. The power of appointment is entirely discretionary. There are no confirmation hearings, and the public has no input. The only explicit criteria for the position are that an appointee must have a minimum of ten years practice at the bar or must be a judge of a provincial superior court. Because of the secrecy of the appointment process, it is difficult to determine the other criteria that the Cabinet relies on in choosing justices.

Throughout the Court’s history, a majority of the justices have had experience as judges on lower courts—most often provincial courts of appeal—before joining the Supreme Court. Other appointees have come from political life or private law practice. In the past many appointees also had strong ties to the governing political party, and this tendency led to the criticism that the Court was a tool of political patronage. As the Court grew in stature in the years after World War II (1939-1945), this practice declined. The chief justice has almost always been chosen from among the puisne justices of the Court. The one exception to this tradition was Sir Charles Fitzpatrick, who was the federal minister of justice before being named chief justice in 1906.

Both law and convention dictate that justices appointed to the Supreme Court represent several regions of Canada. By statute, three justices on the Court must come from Québec, to assure that a minimum of justices have experience in Québec’s system of civil law, which differs from the British common-law tradition in the rest of Canada. By convention, three justices come from Ontario, two from the western provinces (British Columbia, Alberta, Saskatchewan, and Manitoba), and one from the Atlantic provinces (Newfoundland and Labrador, Prince Edward Island, New Brunswick, and Nova Scotia).

Despite this geographical diversity, critics contend that the Supreme Court is not representative in other ways: Only a maximum of three women have served on the Supreme Court at any one time. Also, there have been few non-Christian appointees, no visible minorities, no representatives from Canada’s three northern territories, and no aboriginal people on the Supreme Court. Although there have been frequent demands for a more inclusive and representative judiciary, no formal mechanisms to provide a more diverse judiciary have been developed.

Each justice receives a salary of approximately C$200,000. Some critics contend that Supreme Court justices are underpaid relative to lawyers in private practice and that this difference in compensation makes it difficult to attract the very best candidates to the Court.

Once appointed, a Canadian Supreme Court justice is extremely difficult to remove from office. Justices are entitled to remain on the Court until the compulsory retirement age of 75. Otherwise, a justice can be removed only if he or she breaches the obligation of 'good behaviour' established in the Supreme Court Act. The process to remove a justice is difficult in order to protect justices from outside influences that might compromise the independence of the judiciary. To remove a judge, a motion for removal must be passed by a joint resolution of the Canadian House of Commons and the Senate. Such a removal has never occurred in Canada’s history.

The Supreme Court has a significant support staff. Each judge has a team of three law clerks. Law clerks are chosen from the best graduates of law schools across the country. The chief executive officer is responsible for the organization of the staff and for public relations for the Court, including briefing the media on significant cases. The court registrar, with the help of approximately 15 staff lawyers, organizes the cases for the Court.

IV

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.