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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Supreme Court of Canada (Cour suprême du Canada)

Canada [ca]

Lawrence David

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 31 October 2020

Constitutional courts/supreme courts — Comparative constitutional law

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Overview

The Supreme Court of Canada (Cour suprême du Canada) (‘SCC’ or ‘Court’) is Canada’s final court of appeal (appellate courts) and the ultimate judicial arbiter of the Canadian Constitution (Constitution of Canada: the Constitution Acts 1867 to 1982 (Unofficial consolidation current as of September 2008)). This entry reviews the Court’s history; its understanding of horizontal and vertical stare decisis with respect to its own precedent; the Court’s jurisdiction as a bijural institution; its practice of weak-form judicial review; and its special original advisory or reference jurisdiction.

B.  History of the Supreme Court of Canada

1.  The Supreme Court as an Intermediate Appellate Court: 1875–1949

The SCC’s institutional development runs directly parallel to Canada’s evolution from a dependent colony of the British Empire to a sovereign nation free to steer the course of its own constitutional destiny (colonization). From the time of British Conquest in 1760 to the year 1875, the highest judicial authority for the colonies collectively referred to as British North America was the Judicial Committee of the Privy Council situated at Westminster. The colonial judicial system did not include a final domestic appellate body charged with interpreting and applying the laws prevailing in the provinces. At Canadian Confederation, the desire to create a unitary national judicial structure culminating in an ultimate Canadian appellate court was entrenched in the British North America Act, 1867, the constitutional document that marked the birth of the modern Canadian state. Most significantly, section 101 enshrined the Parliament of Canada’s authority to constitute, maintain, and organize a general Court of Appeal for Canada.

Preceded by two failed legislative attempts, the SCC would eventually be created in 1875 by way of the Supreme Court Act, SC 1875, c 11 (Can). The Act conferred the Court with general appellate jurisdiction in criminal and civil matters, as well as an exceptional original jurisdiction to become seized with questions referred to it by Canada’s Governor General in Council. It did not, however, establish the Court as Canada’s final appellate tribunal, nor as its ultimate constitutional arbiter. This meant, for example, that litigants dissatisfied with the decision of a provincial appellate court could appeal that decision directly to the Privy Council, entirely bypassing the SCC (constitutional adjudication of the Privy Council).

The Court’s intermediate status would soon be affected by developments in Canada’s gradual transition to a sovereign nation. First, in 1933, the Parliament of Canada abolished appeals to the Privy Council in criminal matters by way of the Act to Amend the Criminal Code, SC 1932–33, c 53, section 17 (Can). This development followed the British Parliament’s passage of the Statute of Westminster, 1931, 22 and 23 Geo 5, c 4 (UK), which recognized Canada’s independence as a country and the paramount authority of Canadian law except where Canada allowed English law to continue to apply (Decolonization: British Territories). Following the SCC’s affirmation of Parliament’s authority in the Reference as to the Legislative Competence of the Parliament of Canada to Enact Bill No. 9 of the Fourth Session, Eighteenth Parliament of Canada, Entitled ‘An Act to Amend the Supreme Court Act’ (1940) (Can), appeals in civil cases—including constitutional cases—were abolished on 23 December 1949, by way of the Act to Amend the Supreme Court Act, 13 Geo VI, c 37, section 3 (UK).

Until 1949, then, the Privy Council was Canada’s ultimate constitutional arbiter, and a central actor in the Canadian constitutional framework. In the absence of a constitutional bill of rights in Canada, the Privy Council’s adjudication of Canadian constitutional matters overwhelmingly concerned the constitutional division of legislative powers under sections 91 and 92 of the British North America Act, 1867. Some of its jurisprudence remains authoritative. The Privy Council’s jurisdiction over Canadian constitutional law extended to overturning decisions of the SCC. The most significant example is Edwards v Attorney General of Canada (1930) (PC) in which the Council overturned the Court by holding that the word ‘persons’ in section 24 of the British North America Act, 1867 comprises persons of both the male and female genders. As a result, women, as well as men, would henceforth be eligible for appointment to the Canadian Senate. Edwards was, however, an exceptional constitutional case. In Edwards, the Privy Council’s Lord Sankey also declared the Canadian Constitution to form a living tree amenable to gradual principled evolution, a doctrine that remains influential in Canadian constitutional law to this very day.

2.  The Supreme Court as Canada’s Final Appellate Court: 1949–Present

(a)  1949–82

The abolition of civil appeals to the Privy Council in December 1949 marks a watershed moment in Canadian constitutional history generally, and in the SCC’s institutional history, specifically. Its most significant effect lies in the SCC replacing the Judicial Committee as Canada’s ultimate judicial authority in all legal matters arising in Canada, including the interpretation and application of the Canadian Constitution (interpretation of constitutions). This would enable the Court to serve as the umpire of Canadian federalism, as a unifying jurisdiction over Canada’s provincial courts, and to play a superintending role over the harmonious development of Canadian law. This was particularly essential for the future of Canadian constitutional law. The SCC itself regards this transition as having significantly altered the Canadian constitutional architecture. The Court’s ascendance to Canadian judicial supremacy simultaneously led to it achieving constitutional status as an institution whose preservation and operation is vital to Canadian constitutionalism and to the Canadian legal system as a whole.

(b)  1982–Present

With the patriation of the Canadian Constitution and the concomitant enactment of the Constitution Act, 1982, the SCC’s role at the apex of the Canadian judicial hierarchy gained even greater significance. Three key reasons are addressed in this entry. First, the Constitution Act, 1982 introduced the Canadian Charter of Rights and Freedoms (‘Charter’) to the Canadian constitutional framework, as well as the supremacy clause in section 52(1) guaranteeing its primacy over legislative and executive powers (supremacy / primacy). With the enactment of the Charter, the judiciary became the principal guardians of Canadians’ constitutional rights, freedoms, and values, a duty that the Court has also described as a form of constitutional trusteeship.

Second, the Constitution Act, 1982 recognized and affirmed Aboriginal and treaty rights (rights of indigenous communities) as forming an essential, binding component of the Canadian constitutional framework limiting the exercise of power at all levels of Canadian governance. The enshrinement of these rights in section 35(1) of the Constitution Act, 1982 and in section 25 of the Charter, served to reset the relationship between the Canadian state and its Indigenous populations, with the judicial branch, headed by the SCC, serving as the ultimate arbiter of reconciliation based on the rule of law.

Third is the constitutionalization of the Court’s role and core authority as the apex institution in the Canadian judicial hierarchy. Paragraph 41(d) of the Constitution Act, 1982 provides that the unanimous consent of the federal and provincial governments is required in order to alter the Court’s composition. Other amendments regarding the Court require the consent of the federal government and of at least two-thirds of the provinces whose combined population amounts to 50 per cent of the Canadian population. Overall, these foundational constitutional moments dramatically expanded the power, relevance, visibility, and significance of the Canadian judiciary generally, and the SCC, specifically.

C.  Composition and Jurisdiction

1.  Composition

10  The Court is comprised of nine justices; the Chief Justice of Canada, in whose name the Court’s process is tested, and eight puisne justices (subsection ('ss') 4(1) and ss 94(1)). Section 5 of the Supreme Court Act requires that appointees be selected from among the members of the professional law society who have been active for at least ten years, or from the judiciary (selection of judges at constitutional courts / supreme courts). Three justices must be selected from among the members of the legal profession or judiciary of the province of Quebec (s 6), which does not include the Federal Court or the Federal Court of Canada. Section 6 and the other provisions of the Supreme Court Act addressing the Court’s composition are constitutional in nature and may only be amended by way of a constitutional amendment pursuant to paragraph 41(d) of the Constitution Act, 1982: Reference re Supreme Court Act, subsection 5 and 6 (2014) (Can).

11  Justices are appointed by the Prime Minister of Canada, with the advice of the Minister of Justice, typically following consultations with the provincial law society and judiciary, and the Chief Justice of Canada. No formal legal or constitutional process for the appointment of justices—such as nomination hearings—exists under Canadian law. The process is generally ad hoc, and has occasionally involved parliamentary hearings before the House of Commons Standing Committee on Justice and Human Rights (parliamentary committees), which—unlike the powers enjoyed by American legislators—does not have the ability to approve or reject a candidate.

12  Judges remain in office during good behaviour, and are removable by the Governor General of Canada on address of the Senate and the House of Commons (ss 9(1), Supreme Court Act, RSC 1985, c S-26) (terms of office of judges). Mandatory retirement is set at 75 (ss 9(2)), but justices may remain at the Court for an additional six-month period in order to complete work on appeals and other matters arising prior to the retirement date. Five justices must sit on a panel in order to make quorum unless the parties consent to four (s 25 and s 29, Supreme Court Act). Applications for leave appeal are submitted to, and decided by, three justices, whereas motions to the Court are decided on a rotational basis by one justice in chambers sitting alone.

13  In total, 88 justices have served on the Court since its creation in 1875. 78, or 89 per cent, have been men. However, since the mid-1980s, the Court’s composition has included at least two women, and the Court has seldom fallen below four women justices since the early 2000s. The first female Chief Justice of Canada, Beverley McLachlin, is also the Court’s longest-serving in history.

2.  Appellate Jurisdiction

14  Section 3 of the Supreme Court Act establishes the SCC as a court of record, a general court of appeal for Canada, and as a court of law and equity in and for Canada. The Court’s jurisdiction under the Act is comprised of two dimensions: (1) appellate jurisdiction; and (2) a special original jurisdiction to render advisory opinions. Section 35 of the Act establishes the Court’s appellate jurisdiction in civil and criminal matters. An appeal may be brought as of right, or by seeking the Court’s permission by filing an application for leave to appeal. Each is addressed below.

(a)  Appeals as of Right

15  Appeals as of right comprise the category of appeals for which at least one party to litigation in the lower courts has an automatic statutory right of appeal to the SCC. Section 35.1 of the Supreme Court Act confers a right to appeal any decision of the Federal Court of Appeal respecting a controversy between the federal government and a province, or between two or more provinces or territories. A right of appeal is also conferred under section 36 in respect of any advisory opinion rendered by a provincial appellate court in the context of a reference brought by the relevant Lieutenant Governor in Council. This provision ostensibly compensates for the federal Governor General in Council having exclusive authority to seek an advisory opinion from the Court pursuant to its original reference jurisdiction, discussed below.

16  A right of appeal may also be conferred under an Act of Parliament other than the Supreme Court Act. For example, section 245 of the National Defence Act, RSC, 1985, c N-5 (Can), confers a right to appeal decisions of the Court Martial Appeal Court. Finally, sections 691–94 of Canada’s Criminal Code provide the Attorney General (attorney general) of Canada and the accused, respectively, with the right to appeal an unfavourable judgment from the provincial appellate court if at least one judge dissents on a question of law.

(b)  Appeals with Leave

17  Where no right of appeal exists, permission must be sought by filing an application for leave to appeal (preliminary procedures of constitutional courts / supreme courts). Leave is usually sought in respect of judgments from provincial appellate courts, or from the Federal Court of Appeal. Leave is overwhelmingly decided pursuant to subsections 40(1) and 43(1) of the Supreme Court Act, which concern the Court’s discretionary power (powers and jurisdiction of constitutional courts / supreme courts) to grant leave in respect of any question it believes to be of public importance.

18  Such questions may arise where there are conflicting decisions on a given point of law or statute, requiring the Court to resolve a national inconsistency. Another example may arise where the appellate decision for which leave is sought in the SCC establishes unworkable legal principles, or may otherwise have a problematic impact. Other policy or jurisprudential reasons may also justify granting leave: Aecon Buildings v Stephenson Engineering Ltd (2011) (Can). Appeals per saltum, whereby the parties may agree to bypass the appellate court and appeal a trial judgment directly to the SCC have fallen into desuetude. Reasons for granting or dismissing applications for leave are never provided. Dissenting opinions from one of the three judges hearing applications have occasionally been recorded in the order dismissing the motion.

3.  Reference Jurisdiction

19  From its initial enactment in 1875, the Supreme Court Act has conferred to the Court the special reference jurisdiction to render purely advisory opinions in relation to questions referred to it by the Governor General in Council, the official legal designation for the Canadian federal cabinet (s 53). This is an original jurisdiction separate and apart from its appellate jurisdiction at the apex of the Canadian judicial hierarchy, and has several times been upheld as constitutional. An analogous—yet much more narrow and exceptional—power to initiate the advisory dimension of the Court’s jurisdiction has also been conferred to the Canadian House of Commons and to the Senate of Canada, respectively (s 54), and, formerly, to the Board of Railway Commissioners for Canada. This advisory jurisdiction notably distinguishes the SCC from its American counterpart.

20  Section 53(1) Supreme Court Act authorizes the Governor in Council to refer to the Court questions concerning the interpretation of the Constitution Act, 1867 or 1982, including the Charter (a); the interpretation or constitutionality of any provincial or federal law (b); educational matters conferred to the federal Cabinet under the Constitution Act, 1867 or any other Act or law (c); and the respective powers conferred to the Parliament of Canada, the provincial and territorial legislatures, and the executive branches of each level of government under the Canadian constitutional framework (d). Subsection 53(2) also authorizes the Governor in Council to refer to the Court any other questions it ‘sees fit to submit’ in addition to those specifically enumerated in subsection 53(1). Notice is required to be given to the relevant provinces or territories in any reference inquiring into the constitutional validity of provincial or territorial legislation or otherwise involving matters of their respective or collective interests (s 53(5)). The jurisdiction conferred by section 53 has been interpreted broadly and liberally.

21  References have, over time, involve a broad variety of legal questions. The questions may be hypothetical, and many have involved an opinion on the constitutionality of proposed legislation (Reference re Same-Sex Marriage (2004) (Can)). References have also been sought in respect of previously adjudicated cases where leave to appeal to the SCC had been denied, or where no right of appeal even existed. Interestingly, constitutional references have also served as the forum for the Court to overturn one of its own constitutional precedents. This notably occurred in the Reference re Agricultural Products Marketing (1978) (Can). Over the years, subjects addressed in references have included: same-sex marriage, the conditions for legally valid secession of a province from the Canadian federation, assisted human reproduction, firearms, Senate reform, the regulation of telecommunication, and the Canadian government’s authority to patriate the Constitution from the United Kingdom ('UK'), to name only a select few.

22  The Court’s reference jurisprudence has been consistent in reconciling its duty to render an advisory opinion when requested by the Governor General in Council with the imperatives of the constitutional separation of powers. A primary concern is justiciability. The Court has been clear that it retains a discretion to decline addressing non-justiciable, political, or otherwise inappropriate or problematic questions. The fundamental consideration is whether the question is of sufficiently legal nature so as to be appropriate for judicial consideration: Reference re Canada Assistance Plan (BC) (1991) (Can).

23  Importantly, even justiciable questions may be left unanswered. This may arise where insufficient information has been provided to the Court, or where a reference question is too unclear or ambiguous for legal determination: Reference re Secession of Quebec (1998) (Can). Questions for which an answer would be of no legal import, or which would disrupt the finality of any vested rights potentially affected may also be declined: Reference re Same-Sex Marriage (2004) (Can).

24  In addition, the Court has repeatedly affirmed its disregard of political and policy concerns in addressing questions in the context of a reference. For example, in the recent Reference re Pan-Canadian Securities Regulation (2018) (Can) the Court upheld the constitutional validity of a complex federal regulatory mechanism for creating a national securities regulator. In sanctioning the scheme, the Court was clear that it was not advocating for the provinces’ voluntary participation, or purporting to address its political, policy, and operational complexities. In the Reference re Senate Reform (2014) (Can), the Court insisted that its focus was on the rules and formulas governing constitutional amendments relating to the Senate of Canada, and that it was not advocating for or against institutional reform of any kind.

25  Consistent with its jurisdiction as a court of law and equity (s 3 of the Supreme Court Act), the Court retains a residual discretion to direct that notice be given to any ‘interested’ persons, or ‘classes’ thereof. Representatives of either, or both, are entitled to make submissions to the Court, and will be considered alongside submissions of the relevant governments and any other party to the reference. For instance, paragraph 53(7) authorizes the Court to request or otherwise appoint counsel—referred to as amicus curiae—to file and make submissions in respect of any interest affected that has not been raised in the submissions of other parties.

26  The advisory opinion rendered in the context of a reference is to be written in the same format as judgments rendered in ordinary appeals (para. 53(4)). This, notably, explains why references brought by the Governor General in Council take the same form as judgments rendered in appeals brought by a province or territory subsequent to an advisory opinion rendered by its highest court. Finally, it is also noteworthy that advisory opinions are treated with the same binding effect as judgments rendered in ordinary litigation. The Court’s reference jurisdiction under sections 53 and 54 is constitutionally-protected and, therefore, subject to the constitutional amendment rules in paragraph 42(d) and subsection 38(1) of the Constitution Act, 1982.

27  In the famed Reference re Secession of Quebec (1998) (Can), the Court affirmed the constitutionality of its reference jurisdiction, finding no constitutional impediment to issuing advisory opinions in respect of questions of importance to the Canadian federation. This is so even if the exercise of the special jurisdiction may, indeed, involve the Court acting outside of its traditional adjudicative function.

28  The Supreme Court Act does not empower the Lieutenant-Governor Generals in Council of the provinces and territories (or their equivalents) to invoke the Court’s reference jurisdiction; they may, however, seek advisory opinions from their respective appellate courts and appeal such opinions to the SCC. Examples include the Reference re Pan-Canadian Securities Regulation (2018) (Can) (constitutionality of complex regulatory mechanism establishing a national securities regulator); Reference Re Young Offenders Act (PEI) (1991) (Can) (constitutionality of jurisdiction conferred to provincial youth offenders court); and the Reference as to the Interpretation of the Jury Act of the Province of Alberta, (1947) (Can) (constitutionality of age-based limitations on eligibility for jury duty), to name only a few.

29  Questions referred to the Court have occasionally involved issues of international law. Examples include secession and the right to self-determination (Reference Re Secession of Quebec Case (Can)); the lawful authority of the Canadian government to levy rates on foreign legations (Reference as to Powers to Levy Rates on Foreign Legations, (1943) (Can)); the Charter’s extraterritorial application (Extraterritoriality; R v Hape (2007) (Can) and Canada (Prime Minister) v Khadr (2010) (Can)); and offshore mineral rights on Canada’s east and western continental shelves (eg, Reference re Offshore Mineral Rights of British Columbia (1967) (Can) and Reference re Newfoundland Continental Shelf (1984) (Can), the latter citing Art. 38(1) Statute of the International Court of Justice, Art. 2 of the Geneva Convention, 1958, and the judgment of the International Court of Justice in the North Sea Continental Shelf (1969) (ICJ)).

30  Still, in answering reference questions with an international dimension, the Court has made clear that it is not exceeding its jurisdiction or purporting to act with the binding force of an international tribunal (see Reference Re Secession).

D.  The SCC as a Bijural Institution

31  One of the SCC’s unique institutional attributes as a national apex court—and a central aspect of its jurisdiction—concerns its adjudication of appeals in both the common law and civil law traditions. This is explained by Canada’s colonial history and the constitutional distribution of legislative powers between the federal and provincial governments. A central political compromise achieved at Canadian Confederation concerned the preservation of the French colonial tradition and civil law system prevailing in the province of Quebec since 1608. Under the British North America Act, 1867, jurisdiction over property and civil rights was conferred to the provinces, thus enshrining Quebec’s ability to maintain the civil law tradition in matters of private law under the Civil Code of Lower Canada and, later, the Civil Code of Quebec ('CCQ').

32  The preservation of Quebec’s unique legal tradition was, moreover, an animating concern during the very creation of the SCC, notably explaining the seven-year delay and two failed legislative attempts preceding the enactment of the Supreme Court Act in 1875. The resulting compromise involved including an express guarantee in section 6 of the Act that three of the nine judges appointed to the SCC would be drawn from among practicing lawyers in the province of Quebec with at least ten years’ experience, or from the provincial judiciary. Notably, the Court’s advisory opinion in the aforementioned Reference re Supreme Court Act, subsections 5 and 6 determined that Judge Marc Nadon of the Federal Court of Appeal was ineligible to fill one of the Court’s three judicial seats reserved for Quebec as the Federal Court and the Federal Court of Appeal are not part of Quebec’s judicial system.

33  The Court’s concern with the preservation of Quebec’s distinct legal culture has, over time, become reconciled with the Court’s mandate as the General Court of Appeal for Canada whose jurisdiction is both unifying and supervisory. This reconciliation has been achieved by delineating instances where (1) the incorporation of common law principles or precedents into Quebec civil law would be inappropriate; or where (2) harmonization of the rules applying under the CCQ and at common law is desirable.

1.  Protecting the Civil Law

34  Since shortly after its creation, the Court—and, particularly, the three justices hailing from Quebec—cautioned that common law precedents, rules, and doctrines should not be indiscriminately absorbed into Quebec civil law because of several fundamental differences that are both legal and cultural in nature. The first relates to the colonial and constitutional history described above, and to the Court’s corresponding conception of its role in relation to Quebec’s distinct legal culture as a core aspect of its jurisdiction. The second has to do with methods of legal reasoning; the civil law of obligations’ tendency to reason from categorizations contrasts, in some respects, with the common law’s treatment of the facts established in the record as the starting point for legal analysis.

35  The Court has cautiously delineated instances where harmonizing civil law concepts with purported analogues at common law would be inappropriate. For example, the Court has resisted equating the civilian notion of deliberate or intentional fault (faute intentionnelle) with that of wilful misconduct in Canadian marine insurance law, due to the latter tracing its origins to English admiralty law. Another area is the law of class actions, where the Court has strongly cautioned against referring to the jurisprudence developed in the common law provinces when addressing the commonality requirement in the test for certification applying in Quebec. In the Court’s view, concerns for harmonization in this area are outweighed by the deference shown to the flexible and generous approach to commonality developed by Quebec courts. This approach is much less stringent than that applying in the common law provinces.

2.  Harmonization

36  Consistent with its unifying jurisdiction, the SCC’s commitment to the preservation of Quebec’s distinct civilian legal tradition has not resulted in rigid Hermeticism. The Court has, rather, allowed for Quebec civil law concepts and doctrines to influence or be influenced by analogous constructs existing in the Anglo-Canadian common law. A tendency towards principled harmonization of legal concepts is also noticeable in the jurisprudence.

37  For instance, the Court has welcomed a harmonized understanding of the civilian concept of legal compensation under Articles 1672ff of the CCQ with the concept of legal set-off prevailing in the common law provinces. The concept of joint participation in a wrongful action under Article 1480 of the CCQ has also been interpreted in light of the concept of concerted action prevailing at common law. Harmonization has also occurred with respect to the concept of factual causation (or cause-in-fact) in the law of negligence; the adverse inference of causation applying in medical malpractice; the independent intervening cause doctrine (novus actus interveniens); and the general principles of punitive damages. The Court has also held that the provisions of legislation from Canada’s common law provinces may form part of the statutory context in interpreting specific provisions of the CCQ, and that the modern Canadian common law approach to statutory interpretation is substantially equivalent to the approach used in interpreting the CCQ.

38  The Court has also been amenable to harmonization in areas of Quebec law that trace their roots to common law doctrines or concepts, again reflecting the province’s unique status as Canada’s most prominent mixed law system. The preliminary question to harmonization, however, is whether the particular rule, concept, or doctrine originates in English common law or in the French civil law later incorporated in the CCQ. Only with respect to those rules rooted in the common law has the Court regarded as appropriate the reference to precedents from Canada’s common law provinces. The law of civil procedure and evidence is an apt illustration.

39  The Court, for example, held that the differences between solicitor-client privilege and litigation privilege recognized at common law, and the common law rule used to determine whether statutory language operates to abrogate a class privilege applies in Quebec. The same is true for the common law Wigmore framework used for recognizing privileges on a case-by-case basis. Finally, despite the caution in drawing upon precedents from common law jurisdictions in the area of class actions, the Court has endorsed a harmonized approach to the ‘sufficient interest’ requirement to class action certification, finding no incompatibility with the rules applying in Quebec.

40  Harmonization has also occurred with respect to several areas of substantive law. The Court has, notably, harmonized the rules governing the equitable doctrine of contractual rectification with analogous rules operating under Article 1425 of the CCQ. The movement towards conceptual harmonization also involves the experience under Quebec’s distinct civilian legal tradition serving as inspiration to the modernization of common law rules.

41  For example, in Bhasin v Hrynew (2014) (Can) the Court formally recognized good faith as an organizing principle of the common law of contracts, a component of which is a duty of honest performance attaching to any contractual provision conferring a discretionary power to one of the parties to the contract. Dismissing concerns relating to unforeseen consequences on freedom of contract, the Court noted that the statutory duty of good faith in Article 6 of the CCQ amply demonstrates its promotion of contractual stability. Conversely, the Court recently cited Bhasin in a Quebec civil law case involving the duty of good faith, holding that in neither legal tradition does the duty require a party to waive any of the benefits accruing to it under the contract. The Court’s acknowledgement that this common answer may be arrived at in both legal traditions, albeit under different conceptual orientations, demonstrates the Court’s ability to reconcile the harmonizing tendency of its ‘unifying jurisdiction’ with its constitutional mandate to defend the integrity of the civil law.

3.  Bilingualism

42  The Court operates bilingually in French and English, Canada’s official languages, both in its institutional interface with the public and in the discharge of its judicial functions. All of the court’s judgments, orders, and official communications are released simultaneously in French and English. The Rules of the Supreme Court of Canada, SOR/2002–156 provide that individuals may use either language in any written or other communication with the Court, which include oral pleadings before the Court. Appeals and references are routinely heard in either language, and it is not infrequent for both English and French to be used in the course of a single hearing. Simultaneous interpretation in both languages is also available to the public, free of charge, and to all counsel present.

43  Canada’s demographic reality has made it difficult to ensure that all nine justices are able to discourse in French and English, but eight of the nine current sitting justices are able to understand and discourse in both languages without the use of interpretation.

E.  Stare Decisis

44  The evolution of the doctrine of stare decisis at the SCC has been directly shaped by, and runs parallel to, its institutional development from a statutory court subordinate to the Judicial Committee of the Privy Council to Canada’s national apex court whose jurisdiction is now constitutionally protected.

1.  Horizontal Stare Decisis

45  Owing to its intermediate appellate status, and to Canada’s colonial ties to the UK, early SCC precedent in the domain of stare decisis followed the traditional view adhered to by the common law courts according to which the court was absolutely bound by, and could not revisit, its own precedents; see eg, the UK House of Lords’ famous judgment in London Tramways Company Limited v London County Council (1898) (UK). The Court then clarified its position in the 1909 case of Stuart v Bank of Montreal (1909) (Can), holding that its precedents should be adhered to other than in very exceptional circumstances. This rule was maintained both before and after the abolition of appeals to the Judicial Committee in December 1949.

46  The 1967 case of Binus v The Queen (1967) (Can) marks one of the earliest instances of the Court overruling one of its own decisions following its ascension to the top of the Canadian judicial hierarchy. There, the Court affirmed that it had the power to depart from its own precedents in the presence of compelling reasons. This relaxation of the standard of horizontal stare decisis has been described as likely influenced by the UK House of Lords’ famous Practice Statement of 1966, in which the House declared itself free to depart from its own precedents. While not binding on the SCC, the Statement’s parallels with, and close temporal proximity to, Binus is unmistakable and forms part of the broader scope within which the doctrine of stare decisis was gradually relaxed in Canada.

47  The Binus formulation was for the first time applied in a constitutional case in the Reference re Agricultural Products Marketing Act (1978) (Can), which, incidentally, also marks the first time the Court overturned a precedent rendered by the Judicial Committee. Canadian scholars consider this development as having introduced a new era in constitutional adjudication at the SCC. Following Chief Justice Dickson’s influential dissent in R v Bernard (1988) (Can), the compelling reasons approach was further extended to precedents decided under the Charter, and has been repeatedly affirmed ever since.

48  The compelling reasons standard used by the Court in deciding whether to depart from one of its own precedents involves a discretionary balancing exercise weighing the values of certainty and correctness. The benefits of reversing a judgment, such as correcting the law, must outweigh the costs, such as undermining the legal certainty afforded by adhering to precedent—even if that precedent was, in fact, incorrectly decided. The Court has, moreover, overturned judgments that may, according to the legal and contextual materials then available—reasonably be seen as correct and certain at the time the reasons for judgment were issued, and at time of their reconsideration by the Court. Compelling reasons for overturning precedent are not, therefore, limited to legal error.

49  For example, prior decisions or rules that generate untenable or illogical results, or that are unfair or unprincipled, are open to reversal or abandonment. Precedents decided on the basis of facts, evidence, or considerations ‘that are no longer relevant’ may also be abandoned or reversed. A case may, moreover, be discarded if its precedential value or validity has been attenuated or overruled by subsequent jurisprudence or other developments in the law. A Charter precedent may, for example, be undermined by subsequent developments in Charter jurisprudence. These developments may arise from Charter cases in the same area of law, or from jurisprudence affecting the Charter’s general interpretation and application.

50  Finally, the uncertainty generated by continued adherence to a given precedent—or the rule that it establishes—may militate for its reversal. A precedent that undermines the very purpose of the doctrine of stare decisis cannot be immune from reconsideration. Experience may, for example, show that the rule or doctrine the precedent establishes is ‘unduly and unnecessarily complex and technical’ or otherwise unclear. The rule or precedent may have become unworkable, confusing, or elusive in its application. It may have created difficulty in application for lower courts, and perhaps led to inconsistent judicial outcomes. Other doctrinal shortcomings, as well as academic criticism, may also bolster the compelling reasons identifies.

51  These examples of compelling reasons for overturning constitutional precedent are not exhaustive. No one reason is, on its own, determinative, and it is not necessary that they all be present for precedent reversal to be justified. All reasons, both for and against reversal, must be weighed in order to determine whether it is preferable to maintain or overturn a given precedent. It should, however, be noted that several compelling reasons may operate with respect to the same precedent whose reversal is contemplated. A precedent that contains a legal error may have become unworkable and been undermined by subsequent developments in the Court’s case law. The uncertainty generated by an unworkable rule may, for example, produce arbitrary, unjust, or unpredictable results. As a general proposition, then, it may be said that the impetus for precedent reversal is directly strengthened in proportion to the number of compelling reasons for reversing it.

52  Overall, since succeeding the Judicial Committee as Canada’s final court of appeal and ultimate constitutional arbiter, the Court has unwaveringly adhered to the same general standard for overruling its own constitutional precedents. In recent years, the Court has notably overruled itself on subjects including medical assistance in dying; extradition to face the death penalty; and the protection conferred to collective bargaining activities under section 2(d) of the Charter (freedom of association)

2.  Vertical Stare Decisis

53  The Court’s formulation of the rules of vertical stare decisis has also evolved since the Court’s creation. First, as concerns upstream vertical stare decisis, the Court’s subordination to the Judicial Committee from 1875 to 1949 attracted a prohibition against overruling the latter’s precedents. The same was true for precedents rendered by the House of Lords. The aforementioned Agricultural Products Marketing Act reference of 1978 marked the first time the Court overturned a precedent of the Judicial Committee, and it has done so several times ever since. Second is downstream vertical stare decisis. Both before and after ascending to the top of the Canadian judicial hierarchy, the Court maintained that lower courts were bound to apply its judgments and could not, under any circumstances, ignore or overrule the Court on questions of law.

54  This is no longer the case. The SCC’s modernized rules for vertical stare decisis have positioned trial and appellate courts as key actors in identifying compelling reasons for possibly reversing its own constitutional precedents. In my view, this is a salutary development.

55  The case of Canada (Attorney General) v Bedford (2013) (Can) marks a watershed moment in the history of the doctrine of stare decisis in Canada. In that case, the Court reaffirmed the longstanding rule that lower courts are bound by, and cannot ‘ignore’, its judgments. The Court, however, outlined two conditions under which a lower court could revisit and possibly depart from one of its judgments, including in constitutional cases. The first condition is when legal issues not addressed or arising subsequent to the precedent under consideration are raised; and the second, when the facts, circumstances, or evidence before the lower court differ significantly from those in the precedent. This is a high bar that requires the parameters of the debate the latter sought to address to have fundamentally shifted. Bedford may, therefore, be seen as qualifying the traditional approach to vertical precedent.

56  Overall, vertical stare decisis no longer requires the Court to follow decisions of the Judicial Committee, and nor does it absolutely bind trial courts to the Court’s pronouncements in all cases. The doctrine has, rather, been modernized so as to constructively involve all levels of the Canadian judicial hierarchy in the name of constitutionalism and the rule of law.

57  Where a lower level court purports to overrule a precedent of the SCC, it falls on the latter to determine whether either of the Bedford criteria have been met, and whether the precedent may indeed be discarded. The Court may disagree with a trial court’s decision to discard binding precedent, as it did in R v Comeau (2018) (Can). Or it may agree with the trial court’s decision and confirm the grounds and parameters for departing from precedent, as it did in Saskatchewan Federation of Labour v Saskatchewan (2015) (Can). In either case, the Court’s unifying supervisory jurisdiction addresses any legal inconsistency and restores clarity in stating the law of the land.

F.  Weak-Form Judicial Review

58  The SCC has emerged as an exemplar of the democratic virtues promoted by what Professor Mark Tushnet has termed ‘weak-form judicial review’. This is particularly true following the enactment of the Charter. According to Tushnet, the ‘weak’ model of judicial review involves courts—particularly apex courts—consciously and deliberately allowing for legislative revision of their rulings, especially in constitutional matters. This may, for example, arise where a court invalidates a statute on constitutional grounds while inviting a process of exchange with the legislature that may ultimately result in the enactment of remedial legislation that the latter considers to be consistent with applicable judicial pronouncements (discretion of the legislative body). In Canada, this type of exchange has been described as a ‘Charter dialogue’ between the judicial and legislative branches of Canadian government. Overall, weak-form review serves to temper the countermajoritarian (majoritarianism) tendencies of judicial review for constitutionality and is a prominent feature of the Court’s constitutional jurisprudence.

59  The primary instrument in the Court’s practice of weak-form review in the context of Charter adjudication is referred to as a ‘delayed’ or ‘suspended declaration of invalidity’ (remedies at constitutional courts / supreme courts). Section 52(1) Constitution Act, 1982 provides that the constitution, which includes the Charter, is the supreme law of Canada and that any law inconsistent therewith is of no force or effect to the extent of that inconsistency. The SCC is the ultimate actor charged with upholding this constitutional directive, including through the power to invalidate legislative provisions on constitutional grounds.

60  The Court’s declaration of invalidity may have immediate effect, or, alternatively, the Court may decide to suspend the declaration’s entry into force such that its legal effect is delayed for a period of time typically specified in the Court’s judgment. In doing so, the Court invariably invites, but never requires, the legislature to enact remedial legislation, thus ‘putting the people in a position to govern themselves while simultaneously operating within the bounds set by the constitution.’ The Court’s practice in this domain is, unmistakably, one of weak-form review for constitutionality.

61  Delayed declarations have been issued by the Court with respect to federal and provincial legislation, and in several areas of law of varying complexity. In Carter v Canada (Attorney General) (2015) (Can), for example, the Court held that the federal Parliament must be given the opportunity to craft an appropriate remedy to the invalidation of the Criminal Code provisions erecting an absolute prohibition on medical assistance in dying. Another spectacular example is the Reference re Manitoba Language Rights (1985) (Can) where the Court suspended its declaration invalidating the entire corpus of unilingual legislation enacted by the province of Manitoba, preferring, instead, to maintain the validity of these laws during the time it would take for the province to translate its laws into French (protection of linguistic minorities). Manitoba later sought and obtained two further extensions from the Court in undertaking the mammoth task of identifying and translating the laws to which its constitutional obligation to enact bilingual legislation applies (Reference re Manitoba Language Rights (1992) (Can)).

62  Requests for delayed declarations filed by Attorneys General involved in Charter litigation have also been occasionally denied. For example, in R v Smith (2015) (Can), the Court invalidated the provisions of the federal regime for access to medicinal marijuana that limited the means of consumption to the smoking of dried leaves. In denying the request for a suspended declaration, the Court demonstrated that it was refusing to leave patients—such as children for whom smoking is particularly harmful—without lawful medical treatment.

63  The unifying legal principle is that suspended declarations of invalidity are particularly appropriate where the legislative vacuum created by a declaration of immediate effect would undermine the rule of law or endanger the public (Schachter v Canada (1992) (Can)). Importantly, however, the Court has increasingly been willing to suspend declarations where the invalidated law governs complex areas of social policy, including sex work (Bedford) and medical assistance in dying (Carter (2015) (Can) and Carter v Canada (Attorney General) (2016) (Can)). Overall, the Court’s practice of suspended declarations of invalidity in constitutional adjudication remarkably parallels the weak-form of judicial review for constitutionality defined by Professor Tushnet.

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