The Parliament of the Dominion of Canada passed a statute creating a Supreme Court. A controversial law, the Supreme Court Act began the process of defining Canada’s judicial independence from Great Britain.
In 1867, Canada became a dominion of Great Britain with the passage of the British North America Act. The act provided Canada with a constitution and a federal government, but the constitution could be changed only by the British parliament, which thereby retained ultimate control of the structure and law of the country. The British North America Act gave the Canadian Parliament the ability to create a general court of appeal “for the better administration of the Laws of Canada.” However, the precise limits of such a court’s jurisdiction would be vague, since the Judicial Committee of the Privy Council of Great Britain would remain the highest appellate court for the dominion.
In 1875, Parliament passed the Supreme Court Act, a statute establishing a general court of appeal in accordance with the right granted to it by the British North America Act. This court was referred to as the Supreme Court of Canada. The proposal of this law, as well as its passage, caused sharp debate among the founders of the dominion. Sir John Alexander Macdonald
The Liberal government of Alexander Mackenzie
The Supreme Court of Canada included a chief justice and eight junior justices appointed by the governor-in-council. Members could be selected from among provincial superior court judges or from among those barristers and advocates who had been members of a provincial bar for at least ten years. The Supreme Court Act required that at least three of the judges be appointed from Quebec.
Under the Supreme Court Act, the Supreme Court of Canada not only pronounced judgment and advised federal and provincial governments on questions of law and of fact concerning constitutional interpretation but also functioned as the general court of appeal for criminal cases. However, appeals in criminal cases were abolished in the Dominion of Canada in 1888, and they remained illegal until 1926, when their abolition was determined to be invalid. The Statute of Westminster
The Supreme Court could choose the cases it would hear, with one major exception, called the “reference case.” The Court was required to consider and advise on questions referred to it by the federal cabinet or by any provincial cabinet, on any matter that directly concerned the interpretation of the Canadian constitution. This device permitted a speedy answer to doubtful constitutional questions without the need to wait until an actual dispute arose. The creation of a class of cases that the Supreme Court is required to hear remains unique to Canada.
For much of its existence, the precise position of the Canadian Supreme Court relative to the Judicial Committee of the British Privy Council was a matter of dispute. Arguments against Canadian appeals being heard by the Judicial Committee rather than the Supreme Court rested on claims that it was demeaning for Canada to be forced to rely on a body beyond its borders and its national sovereignty for final judicial decisions, that the Privy Council was ill equipped to consider problems of Canadian federalism, and that the Judicial Committee had misinterpreted the British North America Act in many of its more than 170 judgments. Nevertheless, given its status as a dominion state of the British Empire
Sovereignty was the central issue behind Canadians’ desire to render the Supreme Court the ultimate authority and court of final appeal for their nation. This issue had come to a head by the 1930’s, but World War II caused a delay in the move toward completely ending appeals to the Judicial Committee of the Privy Council. In 1949, an amendment to the Supreme Court Act transferred ultimate appellate jurisdiction to Canada. The Supreme Court of Canada has been the highest court for all legal issues of federal and provincial jurisdiction since 1949. The Supreme Court frequently refers to the judgment of the Judicial Committee, but it is no longer legally bound to follow those decisions. This allows the Supreme Court greater creativity and flexibility in decision making. On the other hand, it can prove problematic in constitutional matters, given the difficulties that may arise from a disregard for the federalist principles that were firmly established by the Judicial Committee.
By a decision in November of 1969, the Supreme Court of Canada put itself in a position to play a new and enlarged role in Canada’s political life. In Regina v. Drybones, the Supreme Court rendered inoperative a provision of the Indian Act, basing its judgment on the “equality before the law” clause of the Canadian Bill of Rights. The Court ruled that, if a federal statute cannot be reasonably interpreted and applied without abolishing, limiting, or infringing upon one of the rights or liberties recognized in the Bill of Rights, it is inoperative unless Parliament expressly declares that is is to apply notwithstanding the Bill of Rights. The Court concluded that Joseph Drybones, who had been found drunk off reserve land in a lobby of a hotel, had been punished because of race under a law whose scope and penalty differ from that for other Canadians.
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Canada Supreme Court. The Supreme Court of Canada and Its Justices, 1875-2000: A Commemorative Book/La Cour suprême du Canada et ses juges, 1875-2000: Un Livre commémoratif. Toronto: Author, 2000. Bilingual commemorative text detailing the history of the Canadian Supreme Court and listing each of the justices who has occupied the Bench. -
Creighton, Donald. Canada’s First Century, 1867-1967. New York: St. Martin’s Press, 1970. A comprehensive account of political events and contrasts between the economic growth and erosion of the fundamental national institutions. -
________. Dominion of the North: A History of Canada. Toronto: Macmillan of Canada, 1957. Discusses events from the founding of New France through World War II. -
McCormick, Peter. Supreme at Last: The Evolution of the Supreme Court of Canada. Toronto: James Lorimer, 2000. Discussion of the history of courts of last resort in Canada and the development of the authority of the Supreme Court. -
Saywell, John T. The Lawmakers: Judicial Power and the Shaping of Canadian Federalism. Toronto: University of Toronto Press, 2002. Extensive discussion of the relationship between the Canadian Supreme Court, the Canadian constitution, and federalism in Canada.
Upper and Lower Canada Unite
First Test of Canada’s Responsible Government
British North America Act
Dominion Lands Act Fosters Canadian Settlement
Canada’s Mackenzie Era
Canada’s Indian Act
Macdonald Returns as Canada’s Prime Minister
Sir John Alexander Macdonald; Alexander Mackenzie.