D. Judicial Power in the Canadian Constitution

Author:Patrick J. Monahan - Byron Shaw

Page 138

1) The Structure of the Courts
a) The Supreme Court of Canada

i) History

The Supreme Court of Canada is the highest court in Canada. It has final jurisdiction over all matters of Canadian law, including matters falling under both federal and provincial jurisdiction. It has the right to hear appeals from provincial courts established and maintained by the provinces as well as from federal courts established and maintained by Parliament.

There is no mention of the Supreme Court of Canada in the Constitution Act, 1867. At the time of Confederation, the system of courts that had existed in each of the former colonies was continued by virtue of section 129 of the Constitution Act, 1867. Responsibility for the organization and maintenance of these local courts was allocated to the provincial governments pursuant to section 92(14). Appeals from these section 92(14) courts could be taken to the Judicial Committee of the Privy Council (Jcpc) in England.102Although the Supreme Court of Canada did not exist in 1867, its eventual creation was contemplated by section 101 of the Constitution Act, 1867, which granted Parliament legislative authority to provide for the creation of a "General Court of Appeal for Canada." Pursuant to this authority, Parliament enacted the Supreme Court Act in 1875, creating the Supreme Court of Canada. At that time, the Supreme Court was not Canada’s ultimate legal authority, since appeals could still be taken from the Supreme Court to the Jcpc.103However, Privy Council

Page 139

appeals in civil cases were abolished in 1949 pursuant to an ordinary federal statute104and, since that time, the Supreme Court has served as the final court of appeal in all matters of Canadian law.

ii) Appointment Process

The Supreme Court Act105provides that the members of the Court are to be appointed by the federal Governor in Council, or Cabinet. There are currently nine judges of the Court, and the Supreme Court Act provides that three of them must be appointed from the province of Quebec. There is no other legal requirement respecting regional composition, although the practice has generally been to appoint three judges from Ontario, two from the four western provinces, and one from Atlantic Canada. In order to be eligible for appointment to the Supreme Court, individuals must be judges of a superior court of a province or the Federal Court of Canada, or be lawyers who have been members of the bar of a province for at least ten years. The general practice has been to appoint Supreme Court judges from the ranks of sitting judges, although occasionally the government appoints a practising lawyer directly to the Supreme Court.106There is no requirement of consultation with the provinces, or for approval by Parliament, before an appointment by Cabinet to the Court. The minister of justice has consulted widely with the legal community regarding the suitability of candidates for appointment to the Court, but the nature of this advice, as well as the process leading to the ultimate appointment by the government, has traditionally remained confidential. The confidential nature of the process has been justified on the basis that potential judicial candidates would not allow their names to be considered if the process were public. However, the secretive nature of the appointment process has been a target of frequent criticism and, in recent years, a number of proposals have called for greater provincial and public input.107

Page 140

Since 2004, in response to these criticisms, there have been significant changes to the appointment process for Supreme Court justices, although the ultimate constitutional responsibility of the Governor in Council to make appointments remains.108In August 2004, following the appointment of Justices Abella and Charron to the Supreme Court, Minister of Justice Irwin Cotler appeared before the House of Commons Standing Committee on Justice to explain and justify the appointments. In 2005, with the vacancy created by the retirement of Justice Major, the minister established a nine-member advisory committee to review candidates under consideration for the replacement appointment. This advisory committee, made up of MPs from each major political party, representatives of the Canadian Judicial Council, the provincial attorneys general, the provincial law societies, and two lay members, was provided with a list of five to eight candidates by the minister of justice. The committee reduced the list to a short-list of three candidates through a process of documentary review and consultation with third parties (but no personal interviews with the candidates). Before the government could act on the advisory committee’s recommendations and select the preferred candidate, the government was defeated and an election was called.

Following the election of the Harper government in January 2006, the new minister of justice, Vic Toews, announced that the government would select from the short-list of three candidates already provided by the advisory committee. The minister also announced that the nominee would be required to appear before an ad hoc committee of members of the House of Commons to answer questions. The government would then take into account the results of this structured interview in determining whether to proceed with the appointment. Justice Marshall Rothstein of the Federal Court of Appeal was announced as the nominee and, on 27 February 2006, appeared before the ad hoc committee in a televised hearing. The hearing was moderated by Professor Peter Hogg, who cautioned the committee to avoid attempting to determine how Justice Rothstein might decide future cases, or to pose personal questions that intruded on his privacy. Although considerable doubt had been expressed about the appropriateness of a public hearing pro-

Page 141

cess, the restrained nature of the questioning in this first experiment seems to have allayed many of these concerns.109

Justice Michel Bastarache retired from the Supreme Court in 2008. It was anticipated that his successor would be chosen after a short-list of three names had been generated by a selection panel composed of five Members of Parliament (two from the government and one from each of the three opposition parties). The person chosen by the prime minister would then be questioned before a parliamentary committee. However, on 5 September 2008, Prime Minister Harper and Justice Minister Rob Nicholson announced that Justice Thomas Cromwell (then a judge of the Nova Scotia Court of Appeal) would be appointed to the Supreme Court. Although Prime Minister Harper indicated that Justice Cromwell would be questioned by an ad hoc all-party committee of the House of Commons, Parliament was dissolved and an election called almost immediately after the announcement. Prime Minister Harper was re-elected with a minority government but Parliament was prorogued on 4 December 2008 following the threat of the no-confidence motion by the opposition coalition.110During the period of prorogation, Prime Minister Harper announced that Justice Cromwell would be appointed without appearing before a parliamentary committee.111Justices Moldaver and Karakatsanis (formerly of the Ontario Court of Appeal) were appointed to the Supreme Court of Canada in 2011, following the retirement of Justices Binnie and Charron. Justices Moldaver and Karakatsanis were selected from a short-list of six candidates prepared by a selection panel that included Members of Parliament from each party. After their appointments were announced on 17 October 2011, Justices Moldaver and Karakatsanis appeared before an ad hoc committee of Parliament for questioning on 19 October 2011. The questioning process was again moderated by Professor Peter Hogg.112Based on the above, it would appear that there is now a precedent for involvement of the opposition parties in the selection process and

Page 142

for questioning before Parliament of newly appointed Supreme Court judges.

iii) Caseload

In terms of the Court’s caseload, until 1975, most of the appeals heard by the Supreme Court were as of right.113However, amendments to the Supreme Court Act enacted in 1975 abolished most appeals as of right and required the vast majority of litigants to obtain leave - that is, permission of the Court - to have their appeal heard.114Today, very few appeals are brought to the Supreme Court as of right.115The test that is generally applied by the Supreme Court is whether a case raises a question of public importance sufficient to warrant a decision.116It is relatively difficult to obtain leave to appeal from the Supreme Court: the Court generally grants leave in only 11 to 12 percent of the approximately five hundred and fifty applications it receives each year.117Although they receive the most attention in public and media discussions,118constitutional cases have made up less than one-fifth of the Court’s workload in

Page 143

recent years.119The single largest category of cases before the Supreme Court in recent years is non-constitutional criminal law matters.120In addition to hearing appeals from provincial courts or the Federal Court of Appeal, the Supreme Court also provides advisory opinions on questions referred to it by the federal government. These advisory opinions or references are not strictly binding in law but have always been treated as binding by the federal and provincial governments. References to the Supreme Court may raise questions respecting the laws or powers of either the federal...

To continue reading