Canadian Constitution and Judicial Power

As a constitutional document, the Act of 1867 has a number of features, including those of a technical and legal nature, due to the historical circumstances of its adoption. Being a statute of the British Parliament and a document of the Victorian era, the act retains a certain conservatism, archaism in design, structure, language. This is especially noticeable in comparison with the Constitution of the United States (as well as Australia). In contrast to the American constitution, which was adopted on a revolutionary wave and uses a new for that time legal technique (a strictly defined form) and constitutional vocabulary for formalizing institutions of government, regulating legal conflicts (after all, the very idea of ​​a written constitution!) [1, p. 55], the Constitution of Canada is no different, neither ideological nor legal novels – it consolidated a compromise first and foremost in order to balance the separating and unifying forces, as well as the relationship between the metropolis and the colony.

The preamble of the 1867 Act proclaims that Canada must “have a Constitution similar in principle to the Constitution of the United Kingdom”. This wording sounds a bit strange, considering that the British Constitution is neither written nor federal. From the point of view of a federal structure, the Canadian constitution is largely modeled on the model and likeness of the American [7, p. 93]. This mainly refers to the distribution of powers between the center (primarily the federal parliament) and the provinces (primarily the legislature). According to the constitution, the powers of the federal government in Canada are more significant than those of the provinces (in the USA, on the contrary).

The creators of the Canadian constitution, taking as a basis the US Constitution, took into account the negative experience of federalism, which, in their opinion, led to civil war. Therefore, the Canadian Constitution demonstrates an anti-revolutionary character, namely its dedication to the traditions of Great Britain. It even lacks an amendment procedure, which makes it even more rigid compared to the American constitution.

The hybrid nature of the Constitution of Canada allowed A.V. Daisy declare a “veiled deception” contained in the words of the preamble [7, p. 93]. He argued that “the authors constantly had before their eyes the American Constitution, and that if Canada were an independent country,” its constitution would be “very similar to the US Constitution” [7, p. 94]. However, jurisprudence reconciled British constitutional principles with Canadian principles of federalism and the rule of the written constitution.

If we talk about the institutions of power, there are significant differences between the constitutions of Canada and the United States. Of the new institutions, the Constitution of Canada created the Parliament of Canada and the legislative assemblies of the provinces of Ontario and Quebec (with respect to other provinces, the functions of the legislature were continued). A characteristic feature of the Canadian constitution is the absence of a provision recognizing the judiciary [12, p. 47] and generally asymmetric regulation of the three branches of government. For example, in contrast to the American Constitution, where the “judicial authority” is established in Art. 3 (that is, immediately after the consolidation of the legislative and executive powers), in the Canadian Constitution, the provision on courts is contained in part 7 “The judicial system”, while the provisions on executive and legislative power are in part 3 and 4. In other words, formally – Legally, courts as an institution of power are not established by the constitution, and, accordingly, the term “power” is not used in relation to courts.

A.V. Daisy, highlighting the three main features of “federalism” – the supremacy of the constitution, the separation of powers, the judiciary [7, p. 92], also drew attention to the important role of the highest judicial body in such federations as Canada and the USA: “In Canada, as in the United States, the courts inevitably become interpreters of the Constitution” [7, p. 95]. Moreover, the scientist emphasized that the value of such a court “is determined by its appeal character” [7, p. 89].

Perhaps trying to prevent legal conflicts on the basis of federalism and completely eliminate the need to appeal to the court as an interpreter of the constitution, the founders of the constitution provided for a rule (Article 56 of the 1867 Act), which empowers the Governor-General of Canada (the federal government) to impose a ban (to deprive force) on the laws of the provinces, recognizing their unconstitutional. However, as the subsequent history showed, this approach was erroneous, it is based on a misunderstanding of the nature of federalism [2, p. 76]. And this is evidenced above all by the numerous cases on the constitutionality of legislation and the decisions of the Judicial Committee of the Privy Council (hereinafter referred to as SKTS).

Suppose Canada, unlike the United States, does not formally establish the principle of separation of powers (horizontally) and therefore provides for two branches of political power (part 3 and 4), to which the courts do not belong, since, in theory, they should not play a political role. However, the Canadian written constitution (as well as the constitutions of the United States and Australia) contain rules relating to legal conflicts – these are primarily issues of jurisdiction of the federal and provincial authorities – the so-called jurisdictional disputes. In this regard, the task of a federal constitution is to provide a mechanism for resolving legal conflicts primarily through the establishment of a subject (court) to resolve disputes and vesting it with appropriate authority (as, for example, in the United States and Australia). In other words, official recognition and establishment of the judiciary in the constitution are necessary. But there is no such norm for the establishment of power in the Canadian constitution.

This gap seems too significant to be considered a mistake by the authors of the constitution. However, in Canada constitutional customs (conventions) are of great importance in order to fill the gap in constitutional acts [8, p. 22]. In addition, we can partly find a formal explanation of this gap in the preamble and in art. 129 of the 1867 Act.

The Canadian Constitution, unlike the American one, did not break traditions in terms of rethinking the structure and functions of power, and, allowing for differences between the structure of Canada and Great Britain, emphasized the continuity (continuity, continuing nature of functioning) of government institutions. Art. 129 “Continuation of existing laws, courts, officials, etc.” consolidated the principle of continuity (continuity) and continuity of powers of provincial (colonial) courts. It follows that the powers of the courts (the judicial system) are not established by the Act of 1867, but continue to them. Thus, the source of the powers of the courts is not in the constitution itself (as in the case of the US Supreme Court), but in the traditions of common law and the law of justice in England. As for the judiciary, after the creation of the confederation, it was retained by the Privy Council (hereinafter – the CU) of Great Britain (formally on the basis of article 129 of the 1867 Act).

1867 Act and Supreme Court of Canada

Part 7 of the 1867 Act “The Judicial System” (Art. 96-101) does not establish specific courts, and is devoted mainly to the guarantees of the independence of judges. The organization of courts in the provinces falls under the jurisdiction of the provincial government (art. 92, para. 14), the legal basis of the federal courts is art. 101, which authorized the Canadian Parliament to create a “General Court of Appeal of Canada” and “any additional courts to better govern Canada’s laws.” “Canadians did not record the new Supreme Court in the BSA Act on the model of the United States Supreme Court” [8, p. five]. Art. 101 provides for the authority to create such a court, but does not actually establish it: “The Canadian Parliament may, despite everything in this act, from time to time take measures to create, maintain and organize the Canadian General Court of Appeal, as well as create any additional courts for better governance of canadian laws. ” The 1867 Act did not provide for what the Court should be. In any case, art. 101 is formulated in such a way that it leaves a decision on the issue of the court’s jurisdiction over the legislative will of the national parliament. This was a significant omission. The new court was made dependent on parliament (and not on the Constitution) and deprived of equal status (formally until 2014) with other institutions of government.

Among the reasons why Canadians have not enshrined the new Supreme Court in the constitution are the following. Firstly, Canada already had a “highest” court represented by SKTS, a court-like body, whose composition coincided in part with the House of Lords and which served as the highest appellate court for all British colonies. According to A.V. Daisy, he was “the present Supreme Court of the Dominion” [7, p. 95]. Secondly, the concept of a hierarchy of appellate courts headed by the highest national courts in the XIX century. it was not so important (many provinces did not have separate appellate courts until the 1960s). More importantly, the Canadian Federation was a fragile creation at the time, and the provincial authorities were pleased with the decisions of the SCTS. And thirdly, there was the reluctance of a significant number of Canadians, primarily the French Canadians of Quebec, for whom the Supreme Court would certainly mean the dominance of Anglo-Canadians in it, which made the distant Judicial Committee more neutral and reliable the highest court [13]. As one of the founders of Canada, Cartier, stated: “We will always have our highest court of appeal in Her Majesty’s Privy Council” [5, p. 576], even if the General Court of Appeal of Canada is created.

An analysis of parliamentary debates (18681875) shows that politicians did not have a clear concept of what the first federal court should be, what its jurisdiction was. And was he needed at all in the presence of the highest appeals instance in London? The main disputes during the discussion of the draft law on the Supreme Court were around Art. 101: Did the definition of “Canadian General Court of Appeal” allow a parliament to establish a court to hear appeals from provincial courts on provincial jurisdiction; Should the court reflect the American model in terms of judicial (constitutional) control? Quebec was hostile to the existence of a new federal court that could consider the decisions of the provincial courts on the constitutionality, “especially those relating to the Civil Code” [13, p. 13]. MacDonald and Cartier expressly stated that Art. 101 implies the possibility of appeals from the provincial courts to the Supreme Court of Canada (VSC), but it was considered unnatural to empower the national judicial body with the power of judicial control over the actions of the federal executive and legislative authorities [5].

Finally, how should the new court relate to the Judicial Committee, in particular, could the Parliament of Canada restrict or cancel the right of Canadians to appeal to the CU?
The issue of appeals was key both before the adoption of the Act on the Supreme Court and after it. Despite disagreements on other issues, in one policy were unanimous – appeals from the provinces to the CU should be retained. Unlike Ontario, the courts of Québec were in the most unsatisfactory condition, and therefore the province was completely dependent on the right of appeal: it received much more cases from the Judicial Committee than from any other province. The issue of appeals caused a confrontation between the Government of Canada and the British Government (1875-1876): the first would prefer to cancel or seriously reduce them, and the second wanted to keep them – the British opinion prevailed [14, p. 25].

After debates in parliament and several amendments, the Supreme Court Act [15] was adopted by the Canadian Parliament in 1875 (to be precise, this act established the Treasury Court – the first specialized federal court). The new Supreme Court had general appellate jurisdiction in civil, criminal, and constitutional cases, and any question of law could be brought to court. Initially it was assumed that the new Supreme Court would exercise judicial control over the separation of legislative powers between the center and the provinces on the basis of the 1867 Act. But in the final version, the author of the bill, the Minister of Justice Fournier, emphasized the potential role of the court as a constitutional arbiter. The act also provided for a panel of six judges, two of whom must be from Quebec.

However, the Supreme Court was not in the strict sense supreme, since it was not a court of last instance, but an ordinary court of appeal (along with the courts of appeal of the provinces of Ontario and Quebec). The status of the SCTS as the final appellate court was kept intact, and the right to appeal to the CU was in no way violated. Not only were appeals from the VSC to the CU, but also the right to appeal from the provincial court, bypassing the VSC, to the Privy Council. Almost half of the constitutional cases examined by the CU came directly from the provincial courts [12, p. 336]. According to the apt expression of B. Laskin, the Supreme Court “was put in an ambiguous position in which he could not manage appeals to him and could not effectively exercise control over appeals to his decisions” [9, p. 461].

The issue of appeals had a profound effect on the VSC, undermining its prestige and hindering its development as a viable and specifically Canadian law institute. Because of appeals to the CSC VSK, most of its history (three quarters of a century) was an intermediate court. Consideration of appeals in the CU deprived him of a decisive vote in the development of Canadian law, including constitutional law. As Canada’s national identity grew stronger and colonial ties began to weaken, Canadians began to question the function of the Privy Council as Canada’s highest court of appeal. In political and scientific circles it was argued that SKTS tried to weaken the Constitution of Canada – the 1867 Act, strictly and narrowly interpreting its norms (as a statute, and not as a constitutional act).

Canada was the first dominion in the British Empire, which openly opposed the power of the Privy Council to hear appeals from Canadian courts. In 1926, the first attempt was made to cancel appeals. The CU ruled that the statute of 1888 (an amendment to the Criminal Code of Canada abolishing criminal appeals in the SCTS) is invalid because the acts of the Canadian parliament have no extraterritorial effect and therefore contradict the imperial acts – 1833 on the judicial committee and 1865 on the status of acts (repealed in 1931). After the Statute of 1931 endowed the dominions with the authority to repeal imperial statutes, to enact extraterritorial laws, parliament abolished criminal appeals to the CU in 1933. [3] It was not until 1949 that Canada formally put an end to all appeals to the CU.

Thus, there were at least two clear reasons for dismissing appeals outside of Canada. More general – it was the logical conclusion of the transition from the empire to the Commonwealth, from the countries subordinate to the “imperial parliament”, to the allied countries of Britain, which was formally enshrined in the 1931 Statute. A more specific (for Canada) reason is dissatisfaction with how the Judicial Committee resolved the issue of separation of federal and provincial authorities during the economic crisis of the Great Depression period, strictly and narrowly interpreting the provisions of the Constitution of Canada in evaluating the activities of the national government. According to P. Russell, “it was Canadian nationalism that was the force responsible for the cancellation of appeals” [13, p. 32].

The abolition of appeals in the CU had a profound effect on the constitutional system of Canada. The Privy Council exercised supreme judicial authority in all matters of law, including the Constitution of Canada, outlining the boundaries of federal and provincial jurisdictions in a number of important matters. Newman notes: “… the highest appellate function of the Judicial Committee was an integral part of the Canadian judicial system until it was finally relocated by the Canadian parliament in favor of the Supreme Court. Canadians could do without the General Court of Appeal of Canada as long as the Judicial Committee continued to play this role. With the abolition of appeals to the Privy Council, the appellate jurisdiction of the Supreme Court of Canada became the main one ”[10, p. 429].

The role of the supreme independent arbitrator on federal-provincial jurisdiction, which is necessary in the federal system, has become an integral and most important function of the ICJ. Based on the experience of judges from two Canadian legal traditions, the Court thereby ensured that common and civil law developed side by side, while preserving the specifics of each. Thus, the role of the FJC has become key not only for the legal system of each province, but also in a broader sense – for the development of a unified and coherent Canadian legal system. The Supreme Court has become the center of a single judicial system in Canada and “acts as the only high court of appeal in the country” [12]. In fulfilling this role, it is not limited to the powers of the lower courts, whose decisions are appealed. His decision is final on matters of public law and provincial civil law.

As a result, the Supreme Court has become a constitutionally significant institution, whose further functioning is in the interests of both the parliament and the provinces. The issue of securing the VSC in the constitution was the subject of discussion in preparation for the adoption of the 1982 Constitutional Act (KA). Although the 1982 SC did not amend Art. 101 of the 1867 Act and did not add the Armed Forces Act to the list of constitutional documents, but recognized its status as a constitutionally protected institution, securing its “main attributes” as part of the Constitution of Canada. He made two references to the Court in Art. 41 and 42 Part 5 of the 1982 AC (procedure for amending the Constitution of Canada).

In its historic decision of 2014, VSK recognized the “historical evolution” of the Court from the moment of its creation in 1875 to its transformation into “an institution whose existence and functioning fully meet the interests of both parliament and provinces” [12]. The court emphasized the particular importance in this process of revoking appeals to the Privy Council, which made the Court “the ultimate independent judicial arbitrator in disputes over federal-provincial jurisdiction.” However, until 1982, every step in the historical evolution of the Court was formalized by an act of parliament acting unilaterally on the basis of Art. 101 KA of 1867.


1. Aptheker, H. Early Years of the Republic, 1783-1793 / H. Aptheker. – N. Y., 1976.
2. Bourinot, J.G. Parliamentary Procedure and Practice in the Dominion of Canada / J.G. Bourinot. – Toronto, 1916.
3. British Coal Corp. v. The King, [1935] A.C. 500, at 511-12; [1935] 3 D.L.R. 401, at 405. Can. Stat. 1932-33 p. 53, § 17.
4. The British North America Act, 1867 (U.K.), 30 & 31 Vict., P. 3; now – the Constitution Act, 1867, 1982, (1982, U.K.), 11 p.
5. Canada. Legislative Assembly. Parliamentary Debates on the Subject of the British North American Provinces. – 3rd Sess. – 8th Parl. Quebec, 1865.
6. Can. Stat. – 1949 (2nd Sess.). – 37 p. – § 3.
7. Dicey, A. V. V. Dicey. – 8th ed. (repr.). – L., 1915.
8. Hogg, P. W. Constitutional Law of Canada / P. W. Hogg. – 5th ed. – Toronto, 2007. – Parts 1, 4.
9. Laskin, B. The Supreme One Hundred Years. A Capsule Institutional History / B. Laskin // Can. Bar Rev. – 1975. – Vol. 53. – P. 459-461.
10. Newman, W. J. The Constitutional Status of the Supreme Court of Canada / W. J. Newman / S.C.L.R. – 2009. – Vol. 47 (15).
11. Re Supreme Court Act // 1 S.C.R. 433, 2014 SCC 21. Supreme Court Reference. – 2014.
12. Russel, P. H. The Judiciary in Canada: The Third Branch of Government / P. H. Russel. – Toronto, 1987. – Part. four.
13. Russell, P.H. Russel. – Ottawa, 1969.
14. Strayer, B.L.C. L. Strayer. – Toronto, 1988.
15. Supreme and Exchequer Courts Act, S.C. – 1875. – 11 p.

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