Supreme Court Act
The Supreme Court Act is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the Supreme and Exchequer Courts Act. However, at the time, the Supreme Court was not the supreme authority on Canadian law, as Supreme Court cases could still be appealed to the Judicial Committee of the Privy Council.
The Supreme Court Act is not a part of the Constitution of Canada but rather was merely within Parliament's ability to pass by virtue of section 101 of the Constitution Act, 1867. The Act also was not named as part of the Constitution during patriation in 1982, although the Court itself is mentioned in the amending formula. As the Court is defined in a regular statute, it may be argued the Court could be abolished by an act of Parliament. However, in their decision in the Reference re Supreme Court Act, ss. 5 and 6, the Court ruled that certain sections of the Act, like its composition, may only be amended using the formula for constitutional amendments, pursuant to s. 41 of the Constitution Act, 1982.
Background
In Canada, the authority to establish a national court of appeal dated back to the creation of the Province of Canada in 1840, but the power remained unused. By Confederation in 1867, the vision was for a national court of appeal was to serve as the final arbiter, particularly in disputes between the provinces and Parliament, and unify the laws of the common law provinces through judicial precedent, rather than relying solely on provincial legislatures.When the British North America Act, 1867, was finalized, section 101 provided Parliament the option to create a general court of appeal, rather than requiring it :
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
Under Prime Minister John A. Macdonald, there were two failed attempts to establish a final court of appeal, once in 1869, and again in 1870.
During the 1874 federal election, Alexander Mackenzie's Liberals included the creation of a central court of appeal as part of their campaign platform. After their election, the Mackenzie government reiterated this commitment in the throne speech of 1874. Minister of Justice Télésphore Fournier introduced a new Supreme Court Bill to Parliament in February 1875. On April 8, 1875, with bipartisan support, Parliament passed The Supreme and Exchequer Court Act, simultaneously establishing both the Supreme Court and the Exchequer Court. After Edward Blake succeeded Fournier as justice minister, he personally staked his political reputation on the Act's successful implementation, as he saw significant personal consequences if he failed to execute it as written.
Early Amendments (1875–1899)
In 1880, Prime Minister John A. Macdonald pledged to implement substantial reforms to strengthen the Supreme Court of Canada. However, only minor procedural changes were enacted. These included granting the Court authority to order new trials and authorizing the Registrar to sit as a judge in chambers for the hearing of motions.In 1882, Macdonald's government proposed the temporary appointment of "judges-in-aid," drawn on a rotating basis from the superior courts of Ontario and Quebec to assist the Supreme Court in its workload. The plan was poorly received by both Parliament and the legal community. The strong opposition made Macdonald cautious about pursuing further judicial reforms that might damage the Court or the Conservative Party.
A significant structural change occurred in 1887, when the Exchequer Court was formally separated from the Supreme Court, ending the dual responsibility of the justices and support staff to serve both institutions.
In 1888, Parliament formally abolished criminal appeals to the Privy Council. In 1926, the Privy Council in Nadan v R held the legislation as ultra vires of Parliament, overturning the abolishment of criminal appeals.
During the 1890s, additional amendments were made to the Court's reference procedure. These changes explicitly allowed advocates to represent opposing interests in reference cases, confirmed the right of appeal to the Judicial Committee of the Privy Council, and required that the justices provide written reasons for their judgments.
Early 20th century amendments (1900–1949)
Quorum was an issue for the Supreme Court in its early years. In 1910, Justice Francis Alexander Anglin without notifying other justices, submitted a draft bill to the government to permit ad hoc justices to be appointed to the Court, the proposal was ignored by the government. In 1918, after the Court was forced to suspend a sitting due to unavailability of its members, the government passed a bill permitting the Chief Justice to appoint an ad hoc judge from the Exchequer Court or a provincial chief justice. In practice, the Court appointed ad hoc justices based on proximity. By 1927, 12 different lower court judges had served in an ad hoc basis on at least 125 cases.In 1920, Parliament amended the Supreme Court Act to standardize the minimum financial value of as a right appeals in civil matters to be $2,000 for all jurisdictions in Canada. Snell and Vaughan note that many of the justices of the Court were involved in the changes to the Court's administration. In 1922, Parliament expanded the Court's jurisdiction to include appeals from provincial reference questions.
In 1927, Parliament amended the Supreme Court Act to create a seventh position on the Court and set a mandatory retirement age of 75. The William Lyon Mackenzie King government had supported mandatory retirement since at least 1924, and had tried to convince Justice John Idington to retire, which he likely rejected. Idlington was removed from the Court on March 31, 1927, when the amendments to the Supreme Court Act came into force.
Section 53
Section 53 of the Supreme Court Act provides the Governor in Council the authority to submit reference questions.In Reference re Secession of Quebec, the Supreme Court examined the applicability of section 53, and whether advisory questions were constitutional. The amicus curiae appointed to advocate on behalf of the government of Quebec argued that the right to secede was an invalid basis for a reference question. The complaint came in two parts, first Section 101 of the Constitution Act, 1867 did not give Parliament the authority to grant the Supreme Court jurisdiction to pass section 53. Secondly, section 53 is to be interpreted to exclude questions where the court does not have jurisdiction, and in the case of Reference re Secession of Quebec is international law. Finally, the question Reference re Secession of Quebec posed was political in nature, and therefore could not be answered by the Supreme Court. When considered Parliament's jurisdiction to pass section 53, the court noted in Re References by Governor-General in Council the Supreme Court and Privy Council upheld the Court's special jurisdiction. The Court found section 53 could be validly enacted considering the "pith and substance" of the legislation is to create a general court of appeal, a court of appeal could in exceptional circumstances receive original jurisdiction, and there is no constitutional bar for the court to accept a reference question or undertake such an advisory role.