Supreme Court Act

The ''Supreme Court Act'' () is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the ''Supreme and Exchequer Courts Act''. However, at the time, the Supreme Court was not the supreme authority on Canadian law, as Supreme Court cases could still be appealed to the Judicial Committee of the Privy Council.

The ''Supreme Court Act'' is not a part of the Constitution of Canada but rather was merely within Parliament's ability to pass by virtue of section 101 of the ''Constitution Act, 1867''. The ''Act'' also was not named as part of the Constitution during patriation in 1982, although the Court itself is mentioned in the amending formula. As the Court is defined in a regular statute, it may be argued the Court could be abolished by an act of Parliament. However, in their decision in the Reference re Supreme Court Act, ss. 5 and 6, the Court ruled that certain sections of the ''Act'', like its composition, may only be amended using the formula for constitutional amendments, pursuant to s. 41(d) of the ''Constitution Act, 1982''.

Background

During the 1874 federal election, Alexander Mackenzie's Liberals included the creation of a central court of appeal as part of their campaign platform. Upon taking power, the Mackenzie government reiterated this commitment in the throne speech of 1874. Minister of Justice Télésphore Fournier introduced a new Supreme Court Bill to Parliament in February 1875. On April 8, 1875, with bipartisan support, Parliament passed ''The Supreme and Exchequer Court Act'',''The Supreme and Exchequer Court Act'', SC 1875, c 11 ''Supreme Court Act, 1875''" simultaneously establishing both the Supreme Court and the Exchequer Court. After Edward Blake succeeded Fournier as justice minister, he personally staked his political reputation on the Act's successful implementation, as he saw significant personal consequences if he failed to execute it as written.

Early Amendments

In 1880, Prime Minister Macdonald promised to make substantial changes to improve the court, although only minor procedural changes were made. These include giving the Court the authority to order new trials, having the Registrar sit as judge in chambers for hearing of motion. In 1882, an attempt to bolster the Court with "judges-in-aid" that would be temporarily elevated from the Ontario and Quebec superior courts on a rotating basis was poorly received by Parliament and the legal community. As a result, Macdonald was cautious about future reforms that could be damaging to the Court or the Conservative Party.

In 1887, the Exchequer Court was separated from the Supreme Court, meaning the justices and support staff no longer had to sit on and support the Exchequer Court.

Section 53

Section 53 of the ''Supreme Court Act'' provides the Governor in Council (also known as the Cabinet of Canada) the authority to submit reference questions.

In '' Reference re Secession of Quebec'', the Supreme Court examined the applicability of section 53, and whether advisory questions were constitutional. The ''amicus curiae'' appointed to advocate on behalf of the government of Quebec argued that the right to secede was an invalid basis for a reference question. The complaint came in two parts, first Section 101 of the ''Constitution Act, 1867'' did not give Parliament the authority to grant the Supreme Court jurisdiction to pass section 53. Secondly, section 53 is to be interpreted to exclude questions where the court does not have jurisdiction, and in the case of ''Reference re Secession of Quebec'' is international law. Finally, the question ''Reference re Secession of Quebec'' posed was political in nature, and therefore could not be answered by the Supreme Court.'' Reference re Secession of Quebec''
[1998
2 SCR 217">998">[1998
2 SCR 217 para 4. When considered Parliament's jurisdiction to pass section 53, the court noted in ''Re References by Governor-General in Council'' (1910) the Supreme Court and Privy Council upheld the Court's special jurisdiction.'' Reference re Secession of Quebec''
[1998
2 SCR 217">998">[1998
2 SCR 217 para 6. The Court found section 53 could be validly enacted considering the "pith and substance" of the legislation is to create a general court of appeal, a court of appeal could in exceptional circumstances receive original jurisdiction,'' Reference re Secession of Quebec''
[1998
2 SCR 217">998">[1998
2 SCR 217 para 9. and there is no constitutional bar for the court to accept a reference question or undertake such an advisory role.'' Reference re Secession of Quebec''
[1998
2 SCR 217">998">[1998
2 SCR 217 para 15.

See also

*History of the Supreme Court of Canada

Notes and references

Notes

References

Primary sources

Works Cited

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External links

Text of the act

Canadian federal legislation
Supreme Court of Canada
1875 in Canadian law