Science Fair Project Encyclopedia
Supreme Court of Canada
The Supreme Court of Canada is Canada's highest court and is located in the capital city of Ottawa. It is now the final court of appeal, the last judicial resort for all litigants, whether individual or governmental. Its jurisdiction embraces both the civil law of the province of Quebec and the common law of the other provinces and territories. When handling Quebec civil law cases the court is careful to have them reviewed by the three civil law judges that are always on the court.
The court is composed of nine justices, formally appointed by the Governor General on the recommendation of the Cabinet.
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 The first bills for its creation, introduced in the Parliament of Canada in 1869 and in 1870, were withdrawn.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. As well, cases could bypass the Court and go directly to London from the provincial courts of appeal. As time went on, the Privy Council became increasingly unpopular. The British Judges tended to side with the provinces at the expense of the federal government. During the great depression the British judges ruled that a number of the Liberal government's welfare reform proposals were unconstitutional, despite public support for them in Canada. Most provincial governments began to demand the federal government press the UK for judicial independence.
Under Canadian law the Governor General appoints all justices of the court on recommendation from Cabinet. The Supreme Court Act limits eligibility for appointment to persons who have been judges of a superior court, or members of the bar for ten or more years. Members of the bar or superior judiciary of Quebec, by law, must hold three of the nine positions on the Supreme Court of Canada. By convention, 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 Cabinet's choices for Puisne Justices and the Chief Justice do not require the approval of any other governmental body or official. However, there is usually some consulation with the Canadian legal establishment prior to the nomination. Starting in 2004, a parliamentary committee screens new nominees and reports to Parliament, though this committee does not have the power to block appointments. 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 role of the Supreme Court in the Canadian court system
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, the Federal Court, the Federal Court of Appeal and the Court Martial Appeal Court of Canada. Unlike the provincial superior courts, which exercise inherent or general jurisdiction, the federal courts' jurisdiction is limited by statute.
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. By convention, this panel never explains why it gives leave to appeal or not. 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; one current example concerns Same-sex marriage.
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.
Sessions of 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."
The nine current justices
- The Right Honourable Madam Justice Beverley McLachlin, P.C., B.A., M.A., LL.B. - Chief Justice of Canada -- appointed 1989 to the court, appointed chief justice on January 7, 2000
- The Honourable Mr. Justice John C. Major -- appointed 1992
- The Honourable Mr. Justice Michel Bastarache -- appointed 1995
- The Honourable Mr. Justice William Ian Corneil Binnie -- appointed 1998
- The Honourable Mr. Justice Louis LeBel -- appointed 2000
- The Honourable Madam Justice Marie Deschamps -- appointed 2002
- The Honourable Mr. Justice Morris Fish -- appointed 2003
- The Honourable Madam Justice Rosalie Abella -- appointed 2004
- The Honourable Madam Justice Louise Charron -- appointed 2004
On August 24, 2004, Minister of Justice Irwin Cotler nominated Charron and Abella to replace Frank Iacobucci who retired in the spring of 2004 and Louise Arbour who stepped down in early 2004 to accept an appointment as UN High Commissioner for Human Rights. Cotler also announced a new process which will allow a parliamentary committee to review Supreme Court nominations, although the committee would not have veto power over the nominations.
On August 30, after a week of committee hearings, Prime Minister of Canada Paul Martin officially recommended Abella and Charron for appointment to the Court. Two Conservative members of the committee, Peter MacKay and Vic Toews, refused to sign the committee's endorsement of the nominees, stating that the new process did not provide the committee with sufficient information about the nominees. However, Martin and Cotler advised that they felt the process had been sufficiently transparent.
With the new appointments four out of the nine justices are women making the Canadian Supreme Court the world's most gender-balanced national high court.
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