Supreme Court Act
{{Short description|Canadian law}}
{{For|the British legislation enacted in 1981 that had the same title|Senior Courts Act 1981}}
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{{Infobox Canadian legislation
|short_title = Supreme Court Act
|type = Act
|parliament = Parliament of Canada
|long_title = An Act respecting the Supreme Court of Canada
|year = 1985
|citation = R.S.C., 1985, c. S-26
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|status = Current
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The Supreme Court Act ({{langx|fr|Loi sur la Cour suprême}}) 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.{{Efn|Appeals to the Judicial Committee of the Privy Council in criminal cases were abolished in 1933 through amendment of the Criminal Code. The Supreme Court Act was amended in 1949 to abolished appeals in civil cases.An Act to amend the Criminal Code, S.C. 1932–33, c. 53, s. 17; An Act to amend the Supreme Court Act, S.C. 1949 (2nd sess.), c. 37, s. 3. (Note that cases that had begun before the relevant amendment retained the possibility to appeal.)|name=|group=note}}
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.{{sfn|Snell|Vaughan|1985|p=7}} 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.{{sfn|Snell|Vaughan|1985|pp=8–11}} 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.{{sfn|Bushnell|1992|pp=32, 35}}{{cite journal |last1=Underhill |first1=Frank H. |author1-link=Frank Underhill |title=Edward Blake, The Supreme Court Act, and the Appeal to the Privy Council, 1875–6 |journal=The Canadian Historical Review |date=1938 |volume=19 |issue=3 |pages=245–262 |url=https://muse.jhu.edu/article/624704/summary |issn=1710-1093}}
= 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,{{sfn|Snell|Vaughan|1985|p=46}} having the Registrar sit as judge in chambers for hearing of motion.{{sfn|Snell|Vaughan|1985|p=48}} 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.{{sfn|Snell|Vaughan|1985|pp=46–47}}
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.{{sfn|Snell|Vaughan|1985|p=48}}
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, [https://canlii.ca/t/1fqr3
See also
Notes and references
=Notes=
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=References=
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= Primary sources =
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= Works Cited =
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- {{Cite book|title = Captive Court: A Study of the Supreme Court of Canada|last = Bushnell|first = Ian|publisher = McGill-Queen's University Press|year = 1992|isbn = 978-0-7735-0851-4 |url=https://archive.org/details/captivecourtstud0000bush |url-access=registration}}
- {{citation |last = McCormick |first = Peter|year =2000 |title =Supreme at last: the evolution of the Supreme Court of Canada |publisher=J. Lorimer |isbn=978-1-55028-693-9 |url = https://archive.org/details/supremeatlastevo0000mcco |url-access=registration }}
- {{Cite book|title = The Supreme Court of Canada: History of the Institution|last1 = Snell|first1 = James G. |last2 = Vaughan|first2 = Frederick |publisher = The Osgoode Society|year = 1985|isbn = 978-0-8020-3417-5 |location = Toronto|url = https://archive.org/details/supremecourtofca0000snel|url-access = registration}}
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External links
- [http://laws.justice.gc.ca/eng/acts/S-26/ Text of the act]
Category:Canadian federal legislation