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2 Appointments to the court 3 The role of the Supreme Court in the Canadian court system 4 Sessions of the court 5 The nine current justices 6 Sources |
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 The first bills for its creation, introduced in the Parliament of Canada in 1869 and in 1870, were withdrawn.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. The statesmen most prominent in establishing the Supreme Court were Sir John A. Macdonald, Télesphore Fournier, Alexander Mackenzie, and Edward Blake.
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, England. As well, cases could bypass the Court and go directly to London from the provincial courts of appeal. The Supreme Court became the court of last resort for criminal appeals in 1933 and for all other appeals in 1949.
Under Canadian law the Governor General appoints all justices of the court, though by constitutional convention the Prime Minister alone controls who is appointed. Quebecers, by law, must hold three of the nine positions on the Supreme Court of Canada. In practice, 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 Prime Minister's choice of Chief Justice does not require the approval of anyone else and is not subject to review. The term for a justice of the Supreme Court is until he or she retires or, at latest, attains the age of 75 years.
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 and the Federal Court of Canada. The Federal Court comprises the Trial Division and the Federal Court of Appeal. Unlike the provincial superior courts, which exercise inherent or general jurisdiction, the Federal Court's jurisdiction is limited by statute. Its powers extend only to review of matters within the competence of the federal government. Thus the structure of Canada's judicial system is distinct from that of the United States.
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. In most cases, permission to appeal must first be obtained from a panel of three judges of the court. 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).
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 referals 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.
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.
The court sits only in Ottawa, although litigants can present oral arguments from remote locations by means of a videoconference 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 seven or 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 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. However, the federal Parliament or the provincial legislatures may make a particular law temporarily immune from review against certain sections of the Canadian Charter of Rights and Freedoms. This is done by including a reference in the law to the notwithstanding clause, also known as the "override power." 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.
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."
History
Appointments to the court
The role of the Supreme Court in the Canadian court system
Sessions of the court
The nine current justices
Sources