Adam Dodek

In the drama of Canada’s rel­a­tively brief his­tory as a coun­try, the Supreme Court has been a ma­jor player. From its early days in the for­mer Se­nate read­ing room to rul­ing out of a for­mer sta­ble be­hind the West Block to its oc­cu­pa­tion, in 1946, of the maje

Policy - - In This Issue - Adam Dodek

The Supreme Court at Canada’s 150th

The Supreme Court of Canada was an af­ter­thought of con­fed­er­a­tion. And for most of its ex­is­tence, the high court lived up this billing.

While the Bri­tish North Amer­ica Act em­pow­ered the Par­lia­ment of Canada to cre­ate a “gen­eral court of ap­peal for Canada”, it was not nec­es­sary to do so right away be­cause Cana­di­ans, as Bri­tish sub­jects, could ap­peal to the Ju­di­cial Com­mit­tee of the Privy Coun­cil in Lon­don. Thus, the Supreme Court of Canada’s cre­ation was de­ferred un­til 1875 and it laboured in the shadow of its Bri­tish ju­di­cial par­ent for the first 75 years of its ex­is­tence.

Through most of the 20th cen­tury, the court was con­tent also to re­main in the shadow of Par­lia­ment and the ex­ec­u­tive.

Un­til the en­act­ment of the Cana­dian Char­ter of Rights and Free­doms in 1982, the Supreme Court func­tioned as a re­li­able de­fender of state power. Stand­ing up for civil lib­er­ties was rare. In the World War I de­ci­sion Re Gray (1918), the court sanc­tioned mas­sive del­e­ga­tion of power from Par­lia­ment to the ex­ec­u­tive. That de­ci­sion then pro­vided the le­gal foun­da­tion for the or­ders-in-coun­cil in­tern­ing more than 20,000 Ja­panese-Cana­di­ans dur­ing the Sec­ond World War and for the or­ders au­tho­riz­ing the de­por­ta­tion of Ja­panese Cana­di­ans af­ter the war was over. The treat­ment of Ja­panese Cana­di­ans re­mains a deep stain not only on Canada’s con­science but on the Supreme Court’s record as well.

De­ci­sions such as the Al­berta Press Case (1938) in­val­i­dat­ing re­stric­tions on free­dom of the press stand out pre­cisely be­cause of their rar­ity. Far more rep­re­sen­ta­tive are cases like Quong Wing (1914) which up­held a Saskatchewan law pro­hibit­ing Asians from em­ploy­ing fe­male work­ers and Christie v. York (1939) val­i­dat­ing a tav­ern owner’s right to refuse a serve a black cus­tomer.

In 1949, the Supreme Court of Canada truly be­came supreme when ap­peals to the Ju­di­cial Com­mit­tee were abol­ished. It would take a long time for the court to ac­tu­ally de­velop the in­de­pen­dence that it had been given. It was hoped by many that the en­act­ment of the Cana­dian Bill of Rights in 1960 by the Diefen­baker gov­ern­ment might change the equa­tion. The Cana­dian Bill of Rights was en­acted at a time of tremen­dous change within Cana­dian so­ci­ety: it was the 1960s, af­ter all. But the judges of the Supreme Court did not seem to no­tice. The Supreme Court was un­able or un­will­ing to em­brace a new right­spro­tect­ing role. Only once did the court strike down a law as in­con­sis­tent with the Bill.

The year 1982 marked an im­por­tant turn­ing point for the Supreme Court with the en­act­ment of the Char­ter of Rights. In the pre­ced­ing years, the court had be­come more in­de­pen­dent.

The court had waded in on na­tional is­sues through the ref­er­ence func­tion in a way that it had not done be­fore. It de­cided the Anti-In­fla­tion Act Ref­er­ence in 1977, the Up­per House Ref­er­ence in 1979 and the Pa­tri­a­tion Ref­er­ence in 1981. These cases clearly ce­mented the Supreme Court’s role as an im­por­tant ar­biter in fed­eral-provin­cial re­la­tions.

The court took centre po­lit­i­cal stage, rul­ing on—or rather rul­ing out—Prime Min­is­ter Pierre Trudeau’s pro­posed re­forms to the Se­nate in 1979 as well as his plans for uni­lat­eral pa­tri­a­tion of the Con­sti­tu­tion in 1981. In the lat­ter case— the Pa­tri­a­tion Ref­er­ence—a di­vided Supreme Court ruled that Trudeau’s uni­lat­eral plan was le­gal but vi­o­lated con­sti­tu­tional con­ven­tion. As po­lit­i­cal sci­en­tist Peter Rus­sell has char­ac­ter­ized the de­ci­sion, it was “bold state­craft” but “ques­tion­able jurispru­dence”. The de­ci­sion forced the par­ties back to the bar­gain­ing ta­ble, lead­ing to the pa­tri­a­tion deal with the Char­ter (and the con­sti­tu­tional recog­ni­tion of abo­rig­i­nal rights).

The Char­ter re­quired a more pol­icy-based style of de­ci­sion mak­ing, a role that, to the sur­prise of many, the once-ret­i­cent judges of the Supreme Court em­braced with zeal.

Led by Chief Jus­tice Brian Dick­son (1984-1990), the Supreme Court in its first Char­ter cases em­braced “the liv­ing tree doc­trine” that had been first enun­ci­ated by the Ju­di­cial Com­mit­tee in the 1929 Per­son’s Case: the Con­sti­tu­tion is “a liv­ing tree . . . ca­pa­ble of growth and ex­pan­sion within its nat­u­ral lim­its.” The court re­jected the le­git­i­macy of “drafters’ in­tent” or “orig­i­nal­ism” as a guid­ing prin­ci­ple of con­sti­tu­tional in­ter­pre­ta­tion at the same time as the doc­trine was as­cen­dant in the United States.

The court pro­ceeded with the task of giv­ing life to the pro­nun­ci­a­tions laid out in the Char­ter and in the abo­rig­i­nal rights pro­vi­sion (sec­tion 35) of the Con­sti­tu­tion Act, 1982. It mas­sively ex­panded the rights of crim­i­nal de­fen­dants, struck down the abor­tion law and ush­ered in an equal­ity revo­lu­tion. An­to­nio Lamer be­came Chief Jus­tice on July 1, 1990 and the block­buster cases con­tin­ued.

How­ever, the 1990s will be re­mem­bered as a tur­bu­lent decade for the Supreme Court. For the first part of the decade, it was a con­fi­dent court, very much on the of­fen­sive, ac­tively en­gaged in crim­i­nal jus­tice law re­form and law re­form un­der the Char­ter in other ar­eas. With the rise of the Re­form Party in the west and in Par­lia­ment, the Supreme Court in­creas­ingly came un­der at­tack for its al­leged “ju­di­cial ac­tivism”.

There was a no­tice­able change in the court when Bev­er­ley McLach­lin be­came Chief Jus­tice in Jan­uary 2000. The court be­came more mea­sured, more prag­matic.

As the decade wore on, crit­i­cism of the court waned. The court seemed to pick its bat­tles. It re­treated from its pre­vi­ous jurispru­dence in some of its most con­tro­ver­sial and po­ten­tially far-reach­ing ar­eas, such as ju­di­cial in­de­pen­dence and the un­writ­ten con­sti­tu­tional prin­ci­ples. On the whole, the court ap­peared more united—“con­sen­sus” be­came the watch­word. In 2007, the court be­gan to pivot from re­straint to a greater will­ing­ness to re­visit its ear­lier de­ci­sions.

It al­tered its ap­proach to in­ter­juris­dic­tional im­mu­nity in Cana­dian Western Bank (2007) and held that the Char­ter could ap­ply ex­tra-ter­ri­to­ri­ally in some cir­cum­stances in R. v. Hape (2007). Most no­tably, in the B.C. Health Ser­vices case (2007), the court ex­plic­itly over­ruled pre­vi­ous prece­dent to find a right to bar­gain col­lec­tively in the Char­ter.

B.C. Health Ser­vices was a har­bin­ger of things to come later with the block­buster cases of Bed­ford (2013) (pros­ti­tu­tion) and Carter (2015) (eu­thana­sia). The Court had grown in its con­fi­dence in the sec­ond decade of the cen­tury.

In 2014, the Supreme Court “con­sti­tu­tion­al­ized” it­self in the ref­er­ence re­gard­ing the ap­point­ment of Jus­tice Marc Nadon to the high court. The court in­val­i­dated Prime Min­is­ter Harper’s ap­point­ment of Nadon as well as the Harper gov­ern­ment’s at­tempt to amend the Supreme Court Act. It held that both re­quired a con­sti­tu­tional amend­ment. That de­ci­sion was soon fol­lowed up by a re­jec­tion of the Harper gov­ern­ment’s plans for Se­nate re­form.

The prime min­is­ter him­self re­acted by pub­licly lash­ing out at the Chief Jus­tice in May 2014 in what Harper bi­og­ra­pher John Ibbitson de­scribed as “the nadir” of the Harper premier­ship. Pub­lic sup­port was largely on the side of the chief jus­tice and of the court. The in­ci­dent showed the court’s in­de­pen­dence and its abil­ity to weather a di­rect and in­tense po­lit­i­cal at­tack.

As Canada marks its 150th birth­day, the Supreme Court has es­tab­lished it­self in a man­ner that could not have been en­vi­sioned in 1867. It is a strong, self-con­fi­dent and vi­tal part of con­fed­er­a­tion.

Pol­icy photo

The Supreme Court Build­ing in Ot­tawa, ar­chi­tect Ernest Cormier’s mas­ter­piece, home to Canada’s high­est court since 1944.

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