In September 2000, the Supreme Court of Canada celebrated its 125th anniversary. This occasion provided Canadians, and especially those of us intimately related to the Court, with an opportunity to reflect upon the development of this national institution. As part of the celebrations, a conference on various topics drew our attention to the incremental steps taken through which the modern Supreme Court of Canada has emerged from its unpromising and modest beginning. (1) Commemorating 125 years of the Court's work also occasioned some reflection on the structure and composition of the Court, and the manner in which its position has evolved over time. This essay aims to provide an overview of the historical development of the Court and a discussion of its present-day role, jurisdiction, and responsibilities. This will, I hope, afford an understanding of the Supreme Court of Canada's tradition as well as a basis for comparative assessments with judicial systems and approaches in other nations.
II. THE HISTORY OF THE SUPREME COURT OF CANADA (2)
In the constitutional conferences that led to the creation of Canada in 1867, there was very little discussion about creating a Supreme Court. Section 101 of the British North America Act, 1867, the founding constitutional document that joined Canada in a united confederation, authorized Parliament to "provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada...." However, the path to establishing a national Supreme Court was fraught with considerable difficulties and challenges.
The first Canadian government, under Sir John A. Macdonald, introduced bills in Parliament in 1869 and 1870 to provoke discussion on the creation of a national supreme court; however, these bills were met with substantial debate and controversy. Some legislators questioned whether there was a need for a supreme court, given that all final appeals at the time were heard by the Judicial Committee of the Privy Council in England. This concern in turn prompted a debate on whether appeals to the Privy Council should be abolished. Other Parliamentarians voiced anxieties over whether a single Supreme Court for all of Canada would be able to protect and preserve the civil law system, which is unique to the province of Quebec. The Macdonald government was not able to reconcile these competing concerns before its electoral defeat in 1873.
In 1875, under the leadership of Prime Minister Alexander Mackenzie, the issue of establishing a national supreme court was again raised by legislators. Later that year, Parliament enacted the Supreme Court Act. (3) This statute created a final Canadian appeal court, the Supreme Court of Canada. The Court was composed of six members: one Chief Justice and five puisne (4) Justices. It is interesting to note that the Exchequer Court of Canada was also created in 1875 and the judges of the Supreme Court of Canada also served as judges of the Exchequer Court. Showing how informal procedures were in those days, the judges of the Supreme Court could sit in appeal of their own judgments. (5)
The Supreme Court Act also attempted to respond to the concerns raised by civil law jurists in Quebec by requiting that two Justices of the Supreme Court be from the bar of Quebec, and by limiting the Court's jurisdiction in civil appeals from that province to cases involving disputes over a minimum amount of $2,000.
Although the Mackenzie government was prepared to abolish appeals to the Privy Council upon the enactment of the Supreme Court Act, legal steps taken in England prevented this from being carried out. As a result, even after this legislation took effect, parties remained entitled to appeal judgments of the Supreme Court of Canada to the Privy Council with leave of the latter court, and per saltum appeals, that is, appeals from provincial appellate courts directly to the Privy Council, also remained possible. …