Supreme Court of Canada
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Image:Supreme Court of Canada.jpg The Supreme Court of Canada (French: Cour suprême du Canada) is the highest court of Canada and is the final court of appeal for all litigants in the Canadian justice system. The court hears appeals on matters of national importance from all provinces and territories, and its decisions are binding upon all lower courts of Canada. It is composed of nine Justices: eight puisne Justices and the Chief Justice of Canada. One seat is currently vacant.
The Court is housed in a massive Art Deco building in Ottawa designed by Ernest Cormier.
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Contents |
History
- Main article: History of the Supreme Court of Canada
The creation of the Court was authorized by the Constitution Act 1867 (formerly called the British North America Act 1867). The first bills for its creation, introduced in the Parliament of Canada in 1869 and in 1870, were withdrawn. On April 8, 1875, however, a new bill was finally passed. Image:CourtroomOldSupremeCourt.jpg
In the early days the Supreme Court was not the court of last resort for cases: all cases could be appealed to the Judicial Committee of the Privy Council in London. As well, cases could bypass the Court and go directly to London from the provincial courts of appeal. The effect was that the Court was not taken as seriously as its advocates had hoped. Attitudes soon changed when the Privy Council began ruling on a series of constitutional issues that were markedly unpopular. The Council's view of the Constitution was that it provided for strong provincial powers when the opposite was indended. Consequently, public pressure forced the federal government push for judicial independence from the UK. The Supreme Court of Canada formally became the court of last resort for criminal appeals in 1933 and for all other appeals in 1949.
During the Privy Council years most of the judges were patronage appointments. Each of them had strong political ties to the government in power at the time of their appointment and many of them had little judicial experience. With the new-found independence from the Privy Council, the recently appointed Rinfret Court marked the beginning of a slow move away from patronage appointments. Though the Court remained conservative, significant strides were made in several key areas of constitutional interpretation. The subsequent Kerwin Court continued the tradition. Due to the strict adherence to seniority the Taschereau, Cartwright, and Fauteux courts did not last long as they were all close to retirement by the time they were appointed.
The appointment of Laskin as Chief Justice in 1973 represented a major turning point for the Court. Many of the Laskin Court justices were either academics or well respected practicioners, 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 introduced 1982 greatly expanded the role of the Court in Canadian society. The Canadian Charter of Rights and Freedoms, created by this act, provided for a much broader scope of judicial review than had ever been seen before. 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.
Appointments
Under Canadian law, the Governor General appoints justices of the Supreme Court of Canada on the recommendation of the federal Cabinet. 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[{{fullurl:}}#endnote_3Q]. 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.
The term for a Supreme Court justice lasts until he or she retires or, at latest, attains the 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. Now, before an appointment is made a special parliamentary committee is formed 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 does not have the ability to directly interview the nominee. 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.
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 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. Image:SSC-Courtroom.jpg 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 current example concerns 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 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 only 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 Honor" 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 acting representatives of Crown power. 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 of Canada Building is home to the Supreme Court of Canada, Federal Court 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 built by Ernest Cormier, architect of the Quebec Court of Appeals Building, the Government Printing Office in Gatineau, Quebec and the Université de Montréal. The Court began hearing cases in the new building by January of 1946.
Outside the building are several statues:
- Prime Minister Louis S. St-Laurent 1976
- Statue Veritas (Truth) - by Walter S. Allward
- Statue Justitia (Justice)- by Walter S. Allward
Previous homes of Canada's top courts include:
- Railway Committee Room in the House of Commons 1876-1889
- Old Supreme Court (Canada) on Bank Street 1889-1945
Current membership
The current Justices of the Supreme Court of Canada are:
| Name | Date of Birth | Age | Home Province | Appt. by | First Day | Mand. Retirement date | Prior Positions |
|---|---|---|---|---|---|---|---|
| The Right Honourable Madam Justice Beverley McLachlin, P.C., B.A., M.A., LL.B. - Chief Justice | 07/09/43 | 62 | Alberta | (1)Mulroney (as puigne justice); (2) Chretien (as Chief Justice) | (1)30/03/89; (2) 07/01/00 | 07/09/18 | Bar of Alberta from 1969; Bar of British Columbia from 1971; Associate Professor of Law, University of British Columbia, 1974-1981; County Court of Vancouver, 1981; [[Supreme Court of British Columbia, 1981--1985, and, as Chief Justice, 1988-89; Court of Appeal of British Columbia, 1985-1988 |
| The Honourable Mr. Justice Michel Bastarache | 10/06/47 | 58 | New Brunswick | Chretien | ?/?/97 | 10/06/22 | Law, University of Moncton until 1983; University of Ottawa, 1983-1988; Lang Mitchener firm; private practice; New Brunswick Court of Appeal, 1995-1997 |
| The Honourable Mr. Justice William Ian Corneil Binnie | 14/04/39 | 66 | Ontario | Chretien | ?/?/98 | 14/04/14 | |
| The Honourable Mr. Justice Louis LeBel | 30/11/39 | 66 | Quebec | Chretien | ?/?/00 | 30/11/14 | |
| The Honourable Madam Justice Marie Deschamps | 02/10/52 | 53 | Quebec | Chretien | ?/?/02 | 02/10/27 | |
| The Honourable Mr. Justice Morris Fish | 16/11/38 | 67 | Quebec | Chretien | ?/?/03 | 16/11/13 | |
| The Honourable Madam Justice Rosalie Abella | 01/07/46 | 59 | Ontario | Martin | ?/?/04 | 01/07/21 | |
| The Honourable Madam Justice Louise Charron | 02/03/51 | 54 | Ontario | Martin | ?/?/04 | 02/03/26 | |
| (empty, following the resignation of John C. Major) | -/-/- | - | Western Canada | Harper | ?/?/2006/06 |
Notes
On December 25, 2005, Mr. Justice John C. Major retired, approximately two months before his mandatory retirement date of February 20, 2006. A new appointment to replace Justice John C. Major will likely be made in 2006 by the current Prime Minister of Canada Stephen Harper.
On August 30, after a week of committee hearings, Prime Minister of Canada Paul Martin officially recommended Abella and Charron for appointment to the Court. Two Conservative members of the committee, Peter MacKay and Vic Toews, refused to sign the committee's endorsement of the nominees, stating that the new process did not provide the committee with sufficient information about the nominees.
On August 24, 2004, Minister of Justice Irwin Cotler nominated Justices Charron and Abella to replace Frank Iacobucci who retired in the spring of 2004 and Louise Arbour who stepped down in early 2004 to accept an appointment as UN High Commissioner for Human Rights. Cotler also announced a new process which will allow a parliamentary committee to review Supreme Court nominations, although the committee would not have veto power over the nominations.
With the new appointments, four out of the nine justices are women (McLachlin, Deschamps, Abella & Charron), making the Supreme Court of Canada the world's most gender-balanced national high court.
Notes
- ^ Supreme Court Act, s. 6.
External links
- Supreme Court of Canada
- The Supremacy of Parliament and the Canadian Charter of Rights
- the appointment process and reform at mapleleafweb.ca
- SCC building
- SCC Building
Sources
See also
- List of Supreme Court of Canada cases
- List of Chief Justices of the Supreme Court of Canada
- List of Puisne Justices of the Supreme Court of Canada
| Courts of Canada (edit) | |
| Supreme Court: Supreme Court of Canada | |
| Federal Court of Canada: Tax Court of Canada | Federal Court of Appeal | |
| Courts of Appeal of the Provinces and Territories: BC | AB | SASK | MAN | ONT | QC | NB | NS | PEI | NL | YK | NWT | NU | |
| Superior Courts of the Provinces and Territories: BC | AB | SASK | MAN | ONT | QC | NB | NS | PEI | NL | YK | NWT | NU | |
| Provincial Courts of the Provinces and Territories: BC | AB | SASK | MAN | ONT | QC | NB | NS | PEI | NL | YK | NWT | NU | |
| Military Court: Court Martial Appeal Court | |
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