The Supreme Court of Canada: A history.

• Author: Vaillancourt, Hugo

The leading role of the Supreme Court of Canada is no longer in dispute, but there was a time when it had to struggle to establish its authority.

The history of the Court began with section 101 of the Constitution Act, 1867 [2], which allowed Parliament to establish a "General Court of Appeal for Canada. However, the Supreme Court of Canada wasn't established until eight years later, by the Mackenzie government, via the Supreme Court Act of 1875.

The purpose of the Court was to create a body that could receive appeals from both the provincial Courts of Appeal and federal courts, as well as resolve constitutional debates and answer legal questions of Parliament through the reference procedure.

The Early Years

In its first years, the Supreme Court of Canada had a bench of only six justices (seven in 1927, nine since 1949). Two of the six judges were trained in civil law and only three of them could speak French, creating some linguistic and legal tensions.

The early Court was not the ultimate court of appeal. That role still belonged to the Judicial Committee of the Privy Council in London, which had jurisdiction over the Supreme Court of Canada. In some cases, an appeal of a provincial appellate court judgment could bypass the Supreme Court entirely, and be brought directly to the Privy Council.

The Supreme Court Act also provided for the creation of the Exchequer Court of Canada (now the Federal Court) and it has to be noted that the same six justices sat on this Court. This meant that members of the Supreme Court of Canada could hear appeals of their own judgments!

Also, litigants in civil law had an appeal as a right (i.e. judges couldn't refuse to hear the appeal) to the Supreme Court of Canada if the amount involved was high enough. This had the effect of bringing some causes of no great importance to the attention of the Court. However, criminal cases went to the Supreme Court only when "there has been a dissent on a question of law in the provincial Court of Appeal or where the acquittal of an accused has been reversed by the Court of Appeal", as noted by former Supreme Court Justice Frank Iacobucci.

Given these unfavourable circumstances, the legal community raised questions on whether the existence of the Court was even necessary. A Member of Parliament actually proposed in 1879 to abolish the Court, stating in the parliamentary chamber that "These gentlemen had very little to do for their money!"

Chief's Years

The climate...