Notes: The Court and the Constitution

Introduction

• The 1981–1982 constitutional changes brought the Supreme Court into a central political moment: validity of unilateral federal reform including a Charter of Rights and Freedoms. Public perception framed judicial review as a political question, but its constitutional significance grew quietly over time.
• Early Canadian constitutional practice relied on judicial interpretation of the British North America Act (B.N.A. Act) without an explicit grant of the power to strike down legislation. The power developed through practice and imperial-legislative context rather than explicit text.
• Key historical shifts:
  • B.N.A. Act created federalism tensions and a basic framework for review, but the authority of the courts to strike down laws was not plainly stated.
  • The Privy Council (Canada’s final court of appeal before 1949) played a central role in constitutional interpretation and limited Canadian courts’ autonomy.
  • Patriots of the Constitution (1982) introduced a formal review mechanism and rights protections via the Charter, expanding judicial review beyond federalism to individual and Aboriginal rights.
• The override clause: Section $33$ of the Charter allows Parliament or provincial legislatures to insulate legislation from Charter challenges for $five years$, targeting certain rights (section 2, sections 7–14, and section 15). It remains controversial and rarely used.

The Court and the Constitution: key developments

• Patriation of the Constitution in $1982$ explicitized judicial veto power by declaring the Constitution the supreme law and laws inconsistent with it have no force or effect.
• The Charter and Aboriginal rights shifted review from a focus on governmental power to a rights-based framework, expanding the Court’s role in protecting individuals and groups.
• Before the Charter, rights protections were more limited (e.g., denominational education, language rights) and the theory of exhaustiveness (power distributed to legislatures) dominated; Charter changed this orientation.

From the Judicial Committee to the Supreme Court

• Before $1949$, the Judicial Committee of the Privy Council (JCPC) was Canada’s constitutional arbiter; appeals to the JCPC were integral to constitutional interpretation.
• In $1949$, the Supreme Court Act made the Supreme Court the final court in fact as well as name, reducing JCPC dominance but not instantly erasing its influence.
• The transition faced provincial resistance, especially in Quebec, who feared Loss of interpretive authority; nonetheless the Supreme Court gradually gained autonomy.
• Justice Rand (in the late 1950s) acknowledged the Supreme Court’s power to modify constitutional interpretations, but practical constraints (provincial anxieties, uniformity with Privy Council precedents) limited rapid independence.

The Changing Role of Canada’s Supreme Court

• 1970s–1980s: division-of-powers litigation exploded (e.g., offshore resources, natural resources, communications).
  • The Court adopted a balanced approach to federalism, avoiding extreme centralization.
  • The Anti-Inflation Reference (late 1970s) marked a move away from the “national concern” approach to economic regulation.
• The Patriation Reference and the 1980s marked a turning point toward rights-based jurisprudence and greater public-law focus.
• Charter-era influence (from $1984$ onward): Charter cases represented a substantial portion of the Court’s docket; by $1984-2007$, roughly $22\%$ of decisions addressed the Charter, with additional focus on Aboriginal rights and federalism.
• Early Charter period (first $15$ cases) showed activist tendencies: high success rate for Charter claimants (about $60\%$ in the first two years); extensive rulings striking down laws and expanding procedural protections.
• Over time, activism moderated: overall success rates in Charter cases declined (e.g., around $33\%$ in the first decade; fluctuations from $20\%$ to $65\%$ in later periods).
• Dissent patterns: no rigid blocs, but identifiable jurists tended to align (e.g., Justice Wilson often supportive of claimants; Justice McIntyre less so); higher frequency of dissents in Charter cases than in non-Charter cases.
• The Court’s profile: the Court’s activism enhanced its political prominence and shifted public perception of the Supreme Court as a key policymaker in civil rights, abortion, same-sex relationships, medicare, and related issues.
• Aboriginal rights trajectory:
  • Sparrow (1990) introduced liberal approach to section 35 rights.
  • Later decisions (Delgamuukw, Haida Nation) adopted more dynamic recognition of Aboriginal land rights and the potential for litigation to influence political negotiation.
  • Aboriginal rights decisions often provoke political controversy and media backlash; litigation remains one vehicle among negotiation and policy development.
• The Court remains the final court of appeal in all areas of Canadian law, maintaining a broad role across civil, criminal, administrative, and constitutional matters.

The Justices: appointment and representation

• Appointment process is governed by the Supreme Court Act: $Section \text{4}$ — the Court consists of a Chief Justice and $8$ puisne judges, appointed by the Governor in Council (the federal Cabinet).
• Qualifications: all appointees must have $10$ years of professional legal experience; at least three of the nine justices must have experience in $Quebec$.
• Regional representation conventions (constitutional practice):
  • Typically, three justices from Ontario, two from the Western provinces, and one from Atlantic provinces.
  • Historically, this pattern has been stable, with rare deviations (e.g., $1979-1982$ when Ontario’s representation temporarily shifted).
• Quebec representation serves a functional rationale: to reflect Quebec’s distinct civil-law tradition, ensuring at least $3$ justices from Quebec.
• While conventions exist, appointments are ultimately a federal decision and influence the Court’s balance, legitimacy, and perceived impartiality.

Quick-reference: key figures and terms

• Patriation Reference, Quebec Veto Reference, Quebec Secession Reference: central cases about constitutional amending and federal structure.
• Skapinker (1984): first Charter decision signaling a serious judicial mandate to interpret the Charter beyond formalistic limits.
• R. v. Therens (1985), Singh v. Minister of Employment and Immigration (1985), Hunter v. Southam (1984): early Charter-era decisions shaping rights protections and evidentiary rules.
• Sparrow (1990) and Delgamuukw: defining and expanding Aboriginal rights and land rights jurisprudence.
• Section 52 of the Constitution Act, $1982$: establishes the supreme law and the veto against inconsistent laws.
• Section 33 (Notwithstanding Clause): allows temporary insulation of laws from Charter review for $five years$.
• Charter of Rights and Freedoms: introduced a modern, rights-based framework for judicial review and governance.
• Aboriginal rights: constitutional recognition and ongoing development of rights through litigation and negotiation.
• Federalism and division of powers: ongoing balancing act between federal and provincial jurisdictions, with the Court acting as an umpire.