Judicial Review in Canada: the Supreme Court of Canada and Canadian Federalism
The Fathers of Confederation were acutely aware of the significant role envisaged for judicial review in the Dominion’s federal system; its uptake was both the result of Canada’s colonial heritage and the influence of American constitutionalism. Although the Supreme Court was established only eight years after the British North America Act of 1867, for much of Canadian history the course of judicial review was set by the Judicial Committee of the Privy Council. The British North America Act favoured a degree of parliamentary supremacy by section 91; however, the Judicial Committee’s provincialist mandate had the effect of protecting provincial autonomy and strengthening powers defined by section 92. After appeals to the Judiciary Committee were terminated in the immediate post-war years, the Supreme Court assumed the role of the final appeals court in the Dominion. Although it was technically unbound by the Judicial Committee’s constitutional interpretation, it was only after the Charter of Rights and Freedoms that the Supreme Court began to significantly affect the federal arrangement; however, it was not by way of the distribution of powers, but rather by decisions in rights-based constitutional cases. Thus, while judicial review has historically played a pivotal role in the formation of the federal arrangement and the division of powers, it continued to play a vital role in rights protection in the post-Charter era.
The Dominion government formed in 1867 was modelled after the British parliamentary system; however, the federal system was unique both because of the federal form of the union of the provinces, and by the definition of the forms and limits of that union, entrenched by the British North America Act of 1867.[1] While British courts have traditionally adopted restraint or deference to parliament, the Dominion’s federal structure necessitates more direct judicial involvement.[2] Specifically, the federal system hinged on the balance of the separation of powers between the federal government and the provinces. Accordingly, many scholars have correctly recognized that the BNA Act favoured parliamentary supremacy.[3] According to Edward McWhinney, the drafters of the Canadian Constitution intended to entrench the importance of the Dominion’s legislative powers; section 91 and 92 of the BNA Act conferred legislative authority both by the federal “Peace, Order and good Government” clause and the Act also granted the provinces a notable degree of legislative latitude.[4] Therefore, while the BNA Act established a distribution of legislative authority between the federal government and the provincial governments, the lack of a Canadian bill of rights meant that there was no legislative power denied to both federal and provincial governments.[5]
While debate at the Quebec Conference and subsequent debates in the Parliament of Canada had considered the need for judicial review, it was believed by some that the federal-provincial distribution, coupled with jurisdictional disallowance would usurp the need for judicial arbitration.[6] However, according to Jennifer Smith, statements by key players in the Confederation debate at the Quebec Conference, coupled with notable parliamentary debate demonstrated that there was no illusions about the necessity of judicial review, especially in arbitrating disputes concerning the federal-provincial distribution of powers.[7] For F.L. Morton, the proximity of Canada to the United States meant that Canadian leaders became increasingly more attracted both to the American palatability of jurisprudence and to the necessity of judicial review in the post-Confederation years.[8] Conversely, B.L. Strayer argues that the uptake of judicial review was a by-product of Canada’s colonial heritage.[9] Arguably, the Dominion’s tendency toward judicial review sat at the nexus of the British Westminster model and the American separation of powers model.[10] In the years following the BNA Act, the Judicial Committee of the Privy Council acted as the final appellate court in Canadian constitutional cases. By their nature, federal government arrangements presupposed some method of resolving jurisdictional disputes; however, in the years following the BNA Act, the courts played a necessary role in determining federal-provincial disputes.[11]
The question of whether to establish a final appellate court as part of the Dominion was settled eight years after Confederation, when parliament finally used its power granted by section 101 of the BNA Act to create the Supreme Court.[12] Officially, the Supreme Court came into being by the Supreme Court Act of 1875.[13] As Smite notes, as provided by section 101, the Supreme Court was to possess general appellate jurisdiction; however, an attempt was made to go beyond this and confer the court on exclusive jurisdiction.[14] The Mackenzie government sought to give the Supreme Court exclusive jurisdiction in cases requiring constitutional interpretation; its desire was both to keep provincial legislatures from violating the terms of the BNA Act and to give the Court jurisdiction over consideration of the constitutionality of federal laws.[15] As such, the Supreme Court was envisaged to play an advisory role with regard to constitutional questions; however, the effect of its decisions impacted the shaping of the Dominion. As John T. Saywell notes, in its early years the Supreme Court was acutely aware of its nation-building task; rather than adhering strictly to statutory interpretation, the Supreme Court judges insisted on placing the constitutional text in its historical context.[16] Specifically, Chief Justice Richards argued that in answering constitutional questions, it was necessary to consider the intentions of the framers of the BNA Act, specifically to avoid the evils of states’ rights.[17]
The Supreme Court had the opportunity to assert its judicial independence in Severn v. The Queen, 1878, one of the Supreme Court’s first constitutional cases.[18] Severn was a challenge to Ontario legislation compelling brewers and distillers to have an Ontario license to accompany their federal license; from a constitutional standpoint, the case challenged the province’s power to enact laws under section 92 of the BNA Act.[19] While the Supreme Court sided with the federal government’s authority over brewers and distillers, the Judicial Committee’s concern for maintaining a balanced federal system necessitated its intervention in favour of the province.[20] As Russell notes, the Judicial Committee’s approach to deciding the constitutional validity of legislation was as much a corollary of imperialism as it was of federalism; the BNA Act was an Act of the Imperial Parliament, and Dominion statutes were void if they came into conflict with British statues.[21] That is, the Judicial Committee was unburdened by the intentions of the Fathers; its Imperial authority, coupled with its early constitutional decisions, created conditions for a decentralized federal state.[22] Furthermore, McWinney speculated that the weight of the Judicial Committee’s decisions would be so heavy upon Canadian judges as to leave them no freedom for independent jurisprudence.[23] Severn set the stage for subsequent cases during the 1880s that helped to define both the separation of powers and, at least implicitly, the real limits of the Supreme Court’s authority.
According to Garth Stevenson, the first important case regarding the distribution of powers was Citizens’ Insurance Company v. Parsons in 1881.[24] Citizens’ argued that a provincial fire insurance policy statute was ultra vires, since Parliament held exclusive legislative power over trade a commerce. The Judicial Committee ruled that insurance, unlike banking, was not specifically included in section 91; the effect of its decision was to restrict federal power in favour of the provinces.[25] Although Russell v. The Queen upheld the Mackenzie government’s Canada Temperance Act under the “Peace, Order and Good Government” clause, Hodge v. The Queen the following year helped to reaffirm provincial power to regulate liquor.[26] During this early period precedent-setting decisions were made nearly exclusively by the Judicial Committee.[27] While the Judicial Committee favoured a broad interpretation of federal powers in Russell, thereafter the Judicial Committee consistently restricted federal powers in favour of provincial authority.[28] According to Stevenson, the Supreme Court also increasingly deferred to the provincialist doctrine laid down by the Judicial Committee.[29] Furthermore, since the Judicial Committee superseded the authority of the Supreme Court, many cases involving constitutional interpretation were appealed from the provincial superior courts directly to the Judicial Committee.[30] As Russell notes, nearly half of the Judicial Committee’s constitutional decisions came in cases appealed directly from provincial courts of appeal.[31]
The impact of the Judicial Committee on the constitutional evolution of the Dominion was therefore two-fold: its decisions both strengthened provincial powers defined by section 92, and simultaneously undermined federal centralized authority, specifically federal authority over “trade and commerce” defined by section 91.2.[32] While it certainly benefitted the provinces, particularly Quebec,[33] critics such as F.R. Scott argued that the Judicial Committee had distorted the intentions of the Fathers of Confederation by perusing a provincialist mandate that undermined federal authority.[34] As Alan Cairns notes, most critics believed that the Judicial Committee misinterpreted the division of powers to the extent that the provinces were left with responsibilities they were neither intended nor competent to manage.[35] During the early decades of the twentieth century, calls for Canadian judicial autonomy increased; the Judicial Committee was seen as too remote, too little trained in Canadian law, and its justices too casually selected with too short a tenure.[36] However, it was the striking down of “Bennett New Deal” legislation that fundamentally undermined the Judicial Committee’s legitimacy.[37] The Employment and Social Insurance Act, 1935, was the first of Bennett’s New Deal measures to be ruled ultra vires by the Judicial Committee.[38] Coupled with its decision in Attorney General of Canada v. Attorney General of Ontario in 1937, the Judicial Committee demonstrated its fundamental unwillingness to acknowledge the necessity for a centralist response to the consequences of economic depression.[39]
Increasing frustration with the Judiciary Committee’s anti-centralist decisions during the depression years culminated in the O’Connor Report of 1939, which argued that constitutional questions were best answered by judges with first-hand familiarity with the politics and the economics of the country.[40] As Russell notes, the immediate response to counter the provincialist leanings of the Judicial Committee was to turn to formal amendments to the BNA Act; however, the only meaningful constitutional amendment came by way of unemployment insurance being moved exclusively into the federal sphere of responsibility.[41] It was only after the Second World War that Parliament moved to terminate appeals to the Judiciary Committee.[42] With the passage of the 1949 House of Commons bill, the Supreme Court became the final appeals court for legal disputes.[43] As Raphael Tuck reasoned, however, the abolition of appeals to the Judicial Committee could undermine the consistency of judicial review established between 1867 and 1940.[44] While the Supreme Court was not technically bound by the prior decisions of the Judicial Committee, Russell reasoned that it was highly unlikely that the Supreme Court would show much inclination to exercise its newly acquired authority.[45] In fact, the legal profession’s concern for consistency and predicability in the law, coupled with the extent and the prescription of the Judicial Committee’s decisions meant that the Supreme Court was unlikely to break from its the path set by its predecessor.[46]
Abolition of appeals to the Judicial Committee was seen to liberate Canada’s destiny from the authority of British legal minds.[47] Although the Supreme Court appeared to interpret federal legislative powers more generously than the Judicial Committee, it was also more permissive in dealing with provincial legislation.[48] Furthermore, as Gerald Baier notes, the Supreme Court’s decisions on federalism in the post-war years were not dramatic pronouncements, nor were they the result of ideological preference of Supreme Court justices; rather, the Supreme Court’s decisions were based on subtle points of distinction in doctrine.[49] For instance, the Supreme Court was hesitant in testing the constitutional validity of the Anti-Inflation Act to expand the emergency doctrine for fear of tipping the federal balance in favour of Parliament.[50] The Supreme Court’s focus on doctrine necessarily brought it more directly to the national political forefront.[51] As Donald Songer notes, there was a growing recognition that the Supreme Court has been moving away from solely adjudicating disputes towards a greater policy-making role.[52] In terms of appointments, there was an emphasis on insulating judicial selection from partisan politics based on the premise that judges ought not be political nor should they be politically accountable; however, by interpreting the constitutionality of legislation, the Supreme Court necessarily thrust itself more directly into a public policy role.[53]
The Charter of Rights and Freedoms and the Constitution Act of 1982, coupled with amendments to the Supreme Court Act, gave the Supreme Court considerable measure of control over its docket and ensured that the majority of cases it heard were of constitutional significance.[54] The Supreme Court also adopted a markedly balanced judicial approach; while it did not pursue an explicitly provincialist mandate, it also less centralist in focus than it had been in the early part of the century.[55] More importantly, the Charter of Rights and Freedoms of 1982 had a transformative effect on Canadian constitutional law by fundamentally altering the the doctrine of parliamentary supremacy; unlike the federal Canadian Bill of Rights, 1960, the Charter was constitutionally validated.[56] While the Supreme Court had previously played a role in adjudicating federal-provincial disputes, the rights-centric Charter ensured the centrality of the Supreme Court in determining the course of Canadian federalism.[57] While the Supreme Court retained its traditional role of adjudicator in federal-provincial jurisdictional disputes, the Charter also allowed the Supreme Court to become a much stronger policy maker; the Supreme Court became an active defender of rights and freedoms entrenched by the Charter.[58] The Supreme Court’s now mandate involved elaboration of the legal definition of particular terms or constitutional requirements, the re-evaluation of post-Charter legislative enactments, and the application of the law to particular situations.[59]
For most of its existence the Supreme Court had occupied an ambiguous position in the judicial hierarchy; however, by 1984 it had become clear that the Charter had a profound influence on judicial decision-making. Ironically, it was the ambiguities of the Charter that clarified the role of the Supreme Court. The Charter placed the Supreme Court at centre-stage in some of the most dramatic policy debates in Canadian history, from Aboriginal territorial claims to minority language rights.[60] The Charter made more issues litigious, and put pressure on courts to provide judicially enforceable judgements that were not altogether amenable to such enforcement.[61] According to Patrick Monahan, the Supreme Court opted for a “purposive” interpretation of the Charter, based on the intentions of its drafters; however, the Supreme Court was not altogether immune to the relative ambiguities of the Charter.[62] As Peter Hogg observed in Constitutional Law of Canada, the relatively vague phrases denoting human rights and fundamental freedoms in the Charter had the effect of forcing justices to rely on their socioeconomic and political values in forming judicial opinion.[63] As Monahan points out, the scope for “judicial originality” was appropriate because of the particular expertise claimed by the judges.[64] However, it is primarily for this reason that in the post-Charter era the Supreme Court has become decided more ideological.[65] For many progressive jurists, judicial power was also increasingly understood in legislative terms.[66]
The Fathers of Confederation envisaged judicial review as an integral component of the Dominion’s federal system; however, the expression of judicial review changed substantially over the decades, mirroring the maturation of the federal system. During the Dominion’s early history, jurisprudence was left almost exclusively up to the Judicial Committee of the Privy Council; although the Supreme Court was established eight years after the BNA Act, it played a subservient role in constitutional jurisprudence. Contrary to the centralist thrust of Parliament, the Judicial Committee made a concerted effort to protect provincial powers by restricting federal authority in section 91 of the BNA Act. Somewhat ironically, it was the Judicial Committee’s provincialist mandate that led to its demise; its unwillingness to allow for federal legislation to benefit the provinces resulted in its abolition in the immediate post-war period. Although the Supreme Court assumed the rule of the final appeals court, it was not until the Charter of Rights and Freedoms that the Supreme Court shifted away from the Judicial Committee’s jurisprudence. Concurrently, constitutional challenges shifted from separation of powers to rights-based cases. More importantly, the ambiguities of the Charter necessitated that Supreme Court justices rely on their expertise in making ideological, interpretative judgements, which likewise necessarily increased both the political clout and the legislative significance of Supreme Court jurisprudence in Canada.
1 F.L. Morton, Law, Politics and the Judicial Process in Canada (Calgary: University of Calgary Press, 1992), 5.
2 Frederick Vaughan, “Judicial Politics in Canada: Patterns and Trends” in Paul Howe and Peter Russell, Judicial Power and Canadian Democracy (Toronto: McGill-Queens University Press, 2001), 5.
3 Jennifer Smith, “The Origins of Judicial Review in Canada,” Canadian Journal of Political Science, Vol. 16., no. 1 (March 1983), 118.
4 Edward McWhinney, Judicial Review (Toronto: University of Toronto Press, 1969), 62.
5 Ibid., 63.
6 Jennifer Smith, “The Origins of Judicial Review in Canada,” Canadian Journal of Political Science, Vol. 16., no. 1 (March 1983), 124.
7 Ibid.
8 Morton, Law, Politics and the Judicial Process in Canada, 5.
9 B.L. Strayer, Judicial Review of Legislation in Canada (Toronto: University Press, 1968), 3.
10 Morton, Law, Politics and the Judicial Process in Canada, 3.
11 Hugh Mellon and Martin Westmacott, Political Dispute and Judicial Review: Assessing the Work of the Supreme Court of Canada (Scarborough: Nelson, 2000), 11.
12 Jennifer Smith, “The Origins of Judicial Review in Canada,” Canadian Journal of Political Science, Vol. 16., no. 1 (March 1983), 124.
13 Donald Songer, The Transformation of the Supreme Court of Canada: An Empirical Examination (Toronto: University of Toronto Press, 2008), 43.
14 Jennifer Smith, “The Origins of Judicial Review in Canada,” Canadian Journal of Political Science, Vol. 16., no. 1 (March 1983), 125.
15 Ibid., 126.
16 John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2004), 35.
17 Ibid.
18 Peter H. Russell, et al, The Courts and the Constitution: Leading Cases (Toronto: Edmond Montgomery Publications Limited, 2008), 4.
19 Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism, 36-37.
20 Russell, et al, The Courts and the Constitution: Leading Cases, 4.
21 Russell, Leading Constitutional Decisions (Ottawa: The Carleton Library, 1988), xi.
22 McWhinney, Judicial Review, 67-68.
23 Ibid., 74.
24 Garth Stevenson, Unfulfilled Union (Toronto: McGill-Queen’s University Press, 2009), 48.
25 Russell, Leading Constitutional Decisions, 1-10.
26 Stevenson, Unfulfilled Union, 48.
27 Gerald Baier, Courts and Federalism (Vancouver: UBC Press, 2006), 123.
28 McWinney, Judicial Review, 70.
29 Stevenson, Unfulfilled Union, 47.
30 Ibid.
31 Russell, The Courts and the Constitution: Leading Cases, 4.
32 Hugh Mellon and Martin Westmacott, Political Dispute and Judicial Review (),14.
33The Judicial Committee’s provincialist mandate had another important consequence for the shaping of the federal system. Prior to Duplessis’ opposition in the 1960s, Quebec supported broadly the Constitution Act and both the Judicial Committee’s and the Supreme Court’s authority. The Judicial Committee’s provincialist mandate had the effect of entrenching the minority rights of Quebec; English judges conscientiously attempted to use the French Civil Law in Quebec. The effect was arguably to protect Quebec’s distinctiveness, especially in the face of the centralist leanings of Parliament.
34 Stevenson, Unfulfilled Union, 57-58.
35 Alan C. Cairns, “The Judicial Committee and Its Critics” in Canadian Journal of Political Science, Vol. 4, No. 3 (Sept 1971), 306.
36 Mellon and Westmacott, Political Dispute and Judicial Review, 15.
37 Morton, Law, Politics and the Judicial Process in Canada, 23.
38 Russell, et al, The Court and the Constitution: Leading Cases, 67.
39 Mellon and Westmacott, Political Dispute and Judicial Review, 15.
40 Morton, Law, Politics and the Judicial Process in Canada, 23.
41 Russell, et al, The Court and the Constitution: Leading Cases, 67.
42 James G. Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: University of Toronto Press, 1985), 171.
43 Mellon and Westmacott, Political Dispute and Judicial Review, 15.
44 Rapheal Tuck, “Canada and the Judicial Committee of the Privy Council” in The University of Toronto Law Journal, Vol. 4, No. 1 (1941), 35. (33-75).
45 Russell, Leading Constitutional Decisions, xiii.
46 Ibid.
47 Mellon and Westmacott, Political Dispute and Judicial Review, 15.
48 Stevenson, Unfulfilled Union, 59.
49 Baier, Courts and Federalism, 124.
50 Ibid., 125-126.
51 Snell and Vaughan, The Supreme Court of Canada: History of the Institution, 93.
52 Songer, The Transformation of the Supreme Court of Canada: an Empirical Examination, 142-143.
53 Morton, Law, Politics and the Judicial Process in Canada, 71.
54 Stevenson, Unfulfilled Union, 61.
55 Russell, et al, The Court and the Constitution: Leading Cases, 6.
56 Stevenson, Unfulfilled Union, 67.
57 Katherine E. Swinton, The Supreme Court and Canadian Federalism: the Laskin-Dickson Years (Toronto: Carswell, 1990), 2.
58 C.L. Ostberg and Matthew E. Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (Vancounver: UBC Press, 2007), 219.
59 Mellon and Westmacott, Political Dispute and Judicial Review, 5.
60 Ostberg and Wetstein, Attitudinal Decision Making in the Supreme Court of Canada, 1.
61 Snell, The Supreme Court of Canada, 253.
62 Patrick Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell, 1987), 82.
63 Peter Hogg, Constitutional Law in Canada cited in Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada (Toronto: McGill-Queens University Press, 2006), 22.
64 Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada, 85.
65 Songer, The Transformation of the Supreme Court of Canada: AN Empirical Examination, 147.
66 Hogg, Constitutional Law in Canada cited in Rory Leishman, Against Judicial Activism: the Decline of Freedom and Democracy in Canada, 24.
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