Supreme Court of Canada

V

The Notwithstanding Clause

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.

VI

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.

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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.

VII

Effects of the Court’s 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.

VIII

History

A

Founding and 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.

B

Becoming Supreme After World War II

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.

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