Canada’s highest court, sanctioned by section 101 of the Constitution Act of 1867, functions as a final general court of appeal, the last judicial resort for all litigants, both individuals and governments.
In 1875, using the authority granted by the Constitution Act of 1867,
The Supreme Court of Canada was not always the court of final resort. Until 1933, its decisions in criminal matters were appealed to the Judicial Committee of the Privy Council (the House of Lords) in London for final judgment, and until 1949, its judgments in civil matters were ultimately subject to rulings by the Privy Council.
The Supreme Court of Canada’s ultimate role is in the shaping of Canadian law in the interest of the entire country. The court achieves this goal by fulfilling two distinct yet interrelated functions. As an appeals court, it provides litigants with a forum to argue for a review of previous judicial decisions, especially when it can be demonstrated that a trial judge at a lower court level has made a legal error. In this capacity, the court is an adjudicator. The court also evaluates public policies enacted by governments and gives them the force of law, and in this capacity, it acts as a policymaker. In deciding an appeal, the court gradually moves from applying the law to interpreting the law to creating the law. Similar to the Law Lords in Great Britain, the Supreme Court of Canada has ultimate judicial control of all the nation’s laws, including the Canadian Charter of Rights. The Supreme Court of Canada, just like the U.S. Supreme Court, exercises authority over the behavior of the legislature and administrative bodies. Therefore, the Supreme Court of Canada exercises a remarkable ability to influence the development of Canadian law.
Cases usually come before the court only if leave, or permission, is granted. To obtain leave, a party asks that the court hear the case and applies to the court, usually in writing, although an oral leave hearing can be held when requested by the court. Leave is given by the court if the case involves a question of public interest, raises an important issue of law or mixed fact and law, or is judged to be of major significance for any other reason. However, in criminal matters, an appeal may be brought automatically if one judge has dissented on a point of law at the lower provincial or territorial court of appeal. The Supreme Court of Canada hears more than 500 applications for leave to appeal each year and accepts approximately 120 of those cases.
Unlike its counterparts in the United States and Great Britain, the Supreme Court of Canada can determine legal doctrines in abstract, somewhat controversial political matters where the law is in doubt. This practice is known as reference. According to section 53 of the Supreme Court Act, the federal government may refer to the court and ask for consideration of important questions such as the interpretation of the Canadian constitution, the constitutionality of a particular law, or the division of power between the federal and provincial levels of government. This ability to resolve troublesome legal and constitutional questions referred to the court by the federal government, without the existence of a pertinent case, is a power that the U.S. Supreme Court does not possess.
In the beginning, the Supreme Court of Canada had six justices: one chief justice and five associate, or “puisne,” justices. With the abolition of appeal to the Privy Council in London in 1949, the number of justices rose to nine. Pursuant to the Supreme Court Act, three justices must come from Quebec (to acknowledge the status of the French-based civil law system practiced there). Tradition and historical regional attitudes dictate that three justices come from Ontario, two from the West, and one from Atlantic Canada.
The prime minister of Canada, after receiving advice from the minister of justice and consulting with the cabinet, decides who will be appointed to the court. Typically, the minister of justice consults widely with senior judges, provincial attorneys general, representatives of law societies and bar associations, and other well-informed individuals in the region from which the candidate is to be chosen. The only legal qualification required of a Supreme Court appointee is that the candidate must have at least ten years of practice in one of the ten provinces of Canada. The main criteria for selection are merit and that the person be of the highest standing in the legal community. There are no public confirmation hearings for nominees to the court as there are in the United States. After selection, justices may serve until they reach the age of seventy-five. This process has provided Canada with a strong and independent judiciary.
Snell, James G., and Frederick Vaughan. The Supreme Court of Canada: History of the Institution. Toronto: University of Toronto Press, 1985. Weiler, Paul. In the Last Resort. Toronto: Carswell, 1974.
British background to U.S. judiciary
British Law Lords
French Constitutional Council
German Federal Constitutional Court
International perspectives on the Court