Encyclopedia

How the Supreme Court of Canada was (almost not) Founded

Contributor: Mary Stokes

The Supreme Court of Canada is a prominent feature of the Canadian political landscape; it is difficult to conceive of the country without it. But for the first few years of our existence as a federated dominion this was in fact the case: the Supreme Court did not spring into being automatically as part and parcel of the British North America Act in 1867. Though the Act did anticipate that a central appellate court might be established in the future, it was not considered a legal necessity. Each province had a continuing hierarchy of courts, and a final appeal could be taken to the Judicial Committee of the Privy Council (JCPC) in London.

While the leaders of both political parties were agreed that the new country should have a central ‘Canadian’ court of final appeal, there were plenty of collateral issues to disagree about. In keeping with his centralist vision for the country, John A. Macdonald at first favoured a court which would replace the provincial appeal courts, pronounce on the constitutionality of provincial (but not federal) statutes and have original jurisdiction (i.e. trial level authority) over federal ‘heads’ of power. Not surprisingly, supporters of provincial rights (including Oliver Mowat, later a chief proponent of provincial rights, but then an Ontario judge) objected. Busy fighting other fires, and possibly dissension within his own party, Macdonald retreated on some aspects of his centralizing agenda, and eventually withdrew the plan entirely.

The Macdonald Conservatives were defeated by the Liberals in 1873, and the new prime minister, Alexander Mackenzie, promptly reintroduced a scheme for a general appellate court albeit with a less overtly centralizing character. The Liberal plan as well faced opposition: naysayers charged variously that the proposed court would be too expensive, that other nation-building projects were more deserving, that it would interfere with the exclusive areas of provincial law-making which had been hard-won in the recent Confederation, affect the balance of power among the provinces, and threaten the integrity and distinctiveness of Quebec’s civil law system. Many Conservatives expressed fear that a new court with powers of judicial review (i.e. a juristic veto) of legislation could undermine the principle of responsible government and sovereignty of Parliament and weaken the imperial connection. With backing from most of the opposition the bill eventually passed, but one mischief-making Conservative opponent, Aemilius Irving (a lawyer who had appeared before the JCPC and later Treasurer of the Law Society of Upper Canada) successfully moved an ambiguous amendment which made the court’s future uncertain.  Irving’s amendment, Clause 47, contained a recognition that the new supreme court would be the final court of appeal for the nation, but that this would not interfere with the subject’s right to take his or her case to the Crown. Clause 47 could be construed as contradictory, or as merely declaratory of the status quo, because the JCPC was technically not a court at all, but rather a source of legal advice to the Monarch. Or it could be construed as a possible threat to the right of the British government to be the ultimate supervisor of Canadian law. Preferring discretion to valour, the colonial office instructed the Governor-General to withhold royal approval.

Mackenzie’s government, refusing to be submissive in the face of this set-back, sought and won permission to set up the court with a view to later implementation, thereby placing further indirect pressure on the colonial office, as the appointed judges would be in limbo when their vacated spots on the provincial benches were filled by others, and the public would expect that a court for which they were paying would be providing a service.  Finally, by engaging in a combination of public brinksmanship (threatening to resign) and private diplomacy (travelling to London to discuss the ramifications of the clause with the colonial secretary as one lawyer to another), Liberal Minister of Justice Edward Blake was able to secure the requisite approval.  It was agreed the clause need not be repealed, but could be ignored. The court thus began operations in 1875, hearing its first case the following year.

For further reading:

The principal history of the court is James G Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution.(Toronto: Osgoode Society, 1985). Chapter 1 deals with the founding of the court. For more details on this book, see the entry on this website.

James Snell goes into greater detail on Maritime perspectives on the establishment of the SCC and its early history, in “Relations between the Maritimes and the Supreme Court of Canada: The Pattern of the Early Years (the Dalhousie-Berkeley Lectures on Legal History)” 8 Dalhousie Law Journal, 143 (1984).

In a more recent article, “The Supreme Court of Canada: Its History, Powers and Responsibilities” 4 (1) Journal of Appellate Practice and Process, 27 (2002), former Supreme Court Justice Frank Iacobucci provides an overview of the history of the court from a legal perspective.  For a popular (i.e. non-scholarly) treatment of the evolution of the court which takes the founding as a given, see Peter McCormick’s Supreme at Last: The Evolution of the Supreme Court of Canada. (Toronto: 1984. J. Lorimer, 2000).

The behind-the-scenes politicking is covered in the second volume of Schull’s biography of Blake, Edward Blake: The Man of the Other Way(Toronto: Macmillan, 1975; 1976) and the second volume of Donald Creighton’s biography of Macdonald, John A. Macdonald: The Old Chieftain (Toronto: Macmillan, 1955).

For Aemilius Irving, see the entry by Jamie Benedickson in The Dictionary of Canadian biography online.