April (ish) is Supreme Court Season 2: the Supreme Court of Canada: an introduction

Yes, this blog’s two greatest works, Supreme Court Month and Better Know a Canadian Functionary, like nuts and gum, are together at last!

Of course, the history of the Supreme Court of Canada (SCC) is very different from that of the Supreme Court of the United States (SCOTUS).

To start, even though the Constitution Act of 1867 gave the federal government the authority to establish a Supreme Court, the SCC wasn’t founded until 1875. Even then, a combination of an ancient, unwritten system of rights, protected by a gentleman’s agreement between the public and the powers that be, the incessant appointment of political friends and cohorts to the Court (including two Ministers of Justice who nominated themselves to the Court), and the fact that the Supreme Court wasn’t even the final avenue of appeal in Canada, there still being the ability to appeal to the Judicial Committee of the Imperial Privy Council in London, made the workings of the SCC to be largely unimportant.

The beginnings of the SCC’s importance were slow: criminal appeals to the Privy Council were ended in 1933, under the auspices of the Statute of Westminster. Civil appeals did not end until 1949, and the backlog was such that the Privy Council¬† only ruled on its final Canadian case in 1959. The passage of the Bill of Rights in 1960 caused more cases involving the federal governments actions, although the laws were such that provincial laws were untouched by its provisos. A constitutional amendment in 1967 created a mandatory retirement age of 75 for justices; they had previously been appointed for life. In 1973, Pierre Trudeau appointed the activist judge Bora Laskin as Chief Justice, thereby greatly increasing the SCC’s profile; but it was not until the passage of the Charter of Rights and Freedoms in 1982, with its clearly enumerated rights in need of limiting, expanding, and defining, that the SCC could truly act as the third arm of government; and in 2014, the SCC ruled (in the Reference re Supreme Court Act) that the Act of Parliament creating it in 1875 has the force of the Constitution, and can only be amended by consent of the provinces.

At the time of its founding, the Supreme Court had six members. This was increased to 7 in 1927, then to 9 in 1949. The Supreme Court Act mandates that at least 3 of the justices must be Quebec lawyers or Quebec justices (and not, as it was ruled this year, federal judges from Quebec); this is because Quebec law is based on a French-derived civil law, as opposed to the rest of Canada, which has an English-derived common law. There are no specifications as to where the other six are to come from, but tradition holds that 3 are from Ontario, 2 from the Western provinces and 1 from the Atlantic provinces. You must be a lawyer to join the SCC, but you don’t need to be a judge; 27 of the 83 justices of the SCC had no prior judicial experience.

The longest serving justice was Sir Lyman Poore Duff, a justice for 13,617 days from 1906 to 1944, including 11 years as Chief Justice. The shortest tenure of a justice was 246 days by Arthur Cyrille Albert Malouin, who served from January to October of 1924.

So watch this space; our first batch of justices is coming very soon… starting with the first Chief Justice of Canada.


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