Chief justice Berverly McLachlin on the Supreme Court of Canada
University of British Columbia, Faculty of Law
At the 2010 University of British Columbia speakers series, Chief justice Berverly McLachlin lectured on the history of the Supreme Court of Canada, its composition and how it goes about deciding cases. Chief Justice McLachlin argued that the Supreme Court has become a “fundamental part” of not only the “Canadian constitutional setup” but also as an institution “fundamental” to “Canadian democracy”.
The institution of the Supreme Court of Canada was after all never explicitly mentioned in the British North America Act 1867 or part of the constitutional structure at confederation, in fact, only provisions for the creation of superior courts were included. It was not until later in the 1875 statute the Supreme Court Act that the Supreme Court of Canada was created. And only a few years later that a bill would be introduced in the House of Commons to abolish it altogether — one that would also be vigorous fought by Prime Minister John A. MacDonald who defended the court as essential in the “emergence of Canada”.
Importantly, however, the Court between 1875 and 1949 was in fact not the country’s “supreme court” — all cases had their ultimate final appeals heard in the Judicial Committee of the Privy Council in London. To illustrate her point, Chief Justice McLachlin argued that the Supreme Court of Canada was bound in the Edwards v. Canada (Attorney General)  (famous persons case) by the precedent clearly set by the JCPC — that women were not persons eligible for senate appointment — a precedent that needed and was overturned by the JCPC itself when it heard the appeal in 1929. The Supreme Court would continue to find itself bound if not by British precedent established by the JCPC up to 1949 — until appeals to the JCPC were abolished — then by the “slavish” culture of the court to follow British JCPC precedent in the common law which continued up until the 1970s. It was really not until the late 1970s with Chief Justice Laskin and Justice Dickson that we find the court breaking new ground and begin addressing a “distinctive Canadian legal culture” for “distinct Canadian cases”. It was perhaps Chief Justice McLachlin notes not coincidentally that at this time the court also would see its first female Justice with the appointment of Justice Bertha Wilson and then a few years later with that of Justice Claire Heureux-Dube.
In 1982, the Canadian Charter of Rights and Freedoms gave the Court not only new powers of review it did not possess before but also the development of distinct Canadian cases constrained by reasonable limitations Section 1 and legislative overrides in Section 33. Today, we have fundamentally accepted that a “strong and independent judiciary is a precondition for good governance and democracy”. Chief Justice McLachlin continues,
Canada is a constitutional democracy and has three branches of government (executive, legislative and judicial) all are essential and each must respect the roles and the responsibilities of the other”. “In this scheme which we call our constitution, the Supreme Court of Canada plays and will hopefully continue to play a responsible and vital role.
The public lecture however introductory it may be, is nonetheless informative for me in how Chief Justice McLachlin sees the entrenched role of an independent judiciary and the Supreme Court of Canada in the Canadian Constitution and fundamental aspect of Canadian democracy. There has been case law at the Supreme Court that has clarified its independence but future case law will no doubt rise regarding exactly the extent it is possible to amend the Court.