VIRTUES AND SHORTCOMINGS IN CONSTITUTIONAL DYNAMISM: COMMENTARY ON PRIME MINISTER TRUDEAU'S 2016 CREATION OF AN INDEPENDENT ADVISORY BOARD FOR SUPREME COURT OF CANADA APPOINTMENTS AND ON THE INSTRUCTIONS FOR MAKING RECOMMENDATIONS FOR APPOINTMENT.

Author:Whyte, John D.
Position::Response to article by Peter H. Russell in this issue, p. 3 - Forum: Issues in Administrative and Constitutional Law
 
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Background

Although some may question this view, the Supreme Court of Canada is a constitutional court in three different ways. (2) First, it is a constitutional court in that it is recognized in the 1982 Constitution (3) through the identification of powers and structures that cannot be amended except in accordance with the constituted procedures for amending the Constitution of Canada. It is true that the Court was created through an ordinary act of the Parliament of Canada (4) enacted under an authority conferred on it by the Constitution Act, 1867. (5) It might seem, therefore, that the Supreme Court is not a constitutionally entrenched institution since, in the ordinary course, Parliament has the power to repeal its own statutes. While the position that the court is not constitutionally entrenched is sometimes advanced, this is very likely a wrong conclusion. Under section 42 (d) of the Constitutional Act, 1982 there is a general bar to the making of any amendments relating to the Supreme Court other than through the formal constitutional amending procedure required under section 42(d)--or in the case of changes to the composition of the Court under the requirement for unanimous federal and provincial consent as stipulated in section 41(d) of the Constitutional Act. In principle, there is no bar to constitutionally entrenching an institution and its features through the mere reference to it in the Constitution. The legislative status of the instrument that originally created and empowered such an institution does not determine the effect of giving it constitutional protection. Constitutions, while legal in form are conceived in light of diverse social and political realities and aspirations and; therefore, carry with them the imperative for contextualized application.

The second way that the Supreme Court is a constitutional court is that it carries ultimate responsibility for the interpretation and application of the nation's constitutional provisions. When a court is labelled a constitutional court what is generally meant is that it is a judicial body, the sole function of which is to adjudicate constitutional issues--to take ultimate responsibility for deciding the scope of constitutional limits on governmental powers. The Supreme Court of Canada, however, is a general court of appeal with responsibility for hearing appeals (although usually only when it grants leaves to appeal) in any case, no matter the nature of the legal claim, from any Court of Appeal in Canada. In fact, it decides more non-constitutional cases than constitutional cases. Those other cases are important in clarifying--and developing--legal norms that shape transactions and relations across a broad range of regulatory, commercial and social relations in Canada. However, from the perspective of the Supreme Court's visible national role, its most notable function is to decide constitutional cases. As a result, constitutional decision-making has been the area of the Court's activity that has produced most of the public attention that is paid to the Court. The Supreme Court has, since its creation in 1870, been making constitutional decisions that have been vitally important to the exercise of government in Canada. These cases have until the last third of a century dealt with conflicts between the federal and provincial governments over regulatory authority and, as well, with issues over the jurisdiction of the nation's superior courts to hear jurisdictional and procedural challenges to the regulatory activities of provincial and federal governments. But it has been the constitutionalization of basic human rights and minority' rights in 1982, (6) and the court's decisions on the meaning and application of the Charter, that has drawn a much broader political and popular interest to the Court's work and, hence, broader awareness of the court's composition and workings--and, hence, the significance of the federal government's appointment decisions.

Charter cases raise questions that engage the broadest and deepest values of people; they touch on every person's idea of the good society and present issues on which there is seldom an expectation of common understanding or common position. Questions such as how to maintain the integrity of identities or faiths, or what just and equal treatment requires, or when the demand for accommodation is unreasonable, or what limits on free expression are vital to social solidarity, are all moral questions for a state and its people. These are questions for which there is seldom public indifference and the Court, in deciding such issues, is involved in mediating differences of opinion that are close to the people's deepest commitments. The Court's public reputation has become that of a constitutional court and, in particular, a human rights court. (7)

The third way in which the Supreme Court is a constitutional court is that, although not created by constitutional provision, it has attracted a number of constitutional or quasi-constitutional constraints with respect to the federal government's relationship with it, especially with respect to appointments. The most notable of the politically constituted restraints is the practice of allocating seats on the Court to regions of the country--two members from the four Western provinces, three from Ontario and one from Atlantic provinces, in addition to the legislated and, now, the constitutionally entrenched allocation of three seats from Quebec. (8)

Although the Supreme Court has become constitutionally bound since its creation, this does not mean that there is no room for innovation in the exercise of the governmental power to make appointments to it. While constitutions are generally designed to be rigid and only amendable with the consent of a large number of (diverse) jurisdictions, this does not mean that national self-national determination with respect to the rules, structures and relationships of governing bodies can never be exercised. There is often room for the organic development of the norms under which the state conducts its internal political relationships between orders, divisions and branches of government while acting with fidelity to the constitutional order. Although these practices, if clearly and purposefully articulated and invariably followed, might create a constitutional convention which could become politically binding, there can be much experimentation in the exercise of powers that responds to new realities and expectations that do not create constitutional obligations. Mature...

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