Amendments To The Constitution of Canada - Supreme Court of Canada in The Amending Formula

Supreme Court of Canada in The Amending Formula

There is an ongoing debate among legal scholars as to whether the Supreme Court of Canada is entrenched in the Constitution of Canada. The Supreme Court of Canada was not created by the constitution, rather the power to create a "Court of General Appeal for Canada" was granted to Parliament by s. 101 of the British North America Act, 1867. Parliament proceeded to create the Supreme Court of Canada under the authority of s. 101 in 1875 by passing the Supreme Court Act, which was an ordinary piece of legislation with no constitutional significance at the time.

The Supreme Court of Canada was mentioned for the first time in a constitutional document by the Constitution Act, 1982. The Supreme Court is referred to twice. First, s. 41 lists several amendments to the Constitution of Canada requiring unanimous consent. S. 41(d) includes the "composition of the Supreme Court of Canada" in this list. Second, s. 42(1) lists several amendments to the Constitution of Canada requiring the general amendment procedure. S. 42(1)(d) includes "subject to s. 41(d), the Supreme Court of Canada" in this list.

Sections 41 and 42 of the Constitution Act, 1982 would appear to include the Supreme Court of Canada in the Constitution of Canada. However, this conclusion is questionable because the "Constitution of Canada" is expressly defined in s. 52(2). S. 52(2) lists thirty instruments that comprise the Constitution of Canada but it does not include the Supreme Court Act.

Some scholars, including Peter Hogg, have suggested that references to the Supreme Court of Canada in sections 41 and 42 are ineffective. They argue that these references are 'anticipatory' and will only become effective if Parliament adds the Supreme Court Act to the list in s. 52(2).

Others scholars, including Professor Cheffins, have argued that the Supreme Court Act is implied as entrenched into s. 52(2) because of sections 41 and 42. S. 52(2) uses the words "includes..." to define the Constitution of Canada, suggesting that the provision does not contain an exhaustive list.

The Supreme Court itself has confirmed in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1 S.C.R. 319 that s. 52(2) is not exhaustive but has not yet ruled on whether the Supreme Court Act itself is included.

This issue has important implications for judicial selection in Canada. S. 4(2) of the Supreme Court Act specifies that the Governor in Council (federal cabinet) has the power to appoint judges to the Supreme Court. Prime Minister Harper has announced that a new reformed selection process will be developed. If the new process will bind the federal government, it would necessarily involve an amendment to s. 4(2) of the Supreme Court Act. If the Act is constitutionalized, this would require a constitutional amendment under the general amendment procedure -- a significant hurdle requiring provincial cooperation. If the Act is not constitutionalized, Parliament could simply amend the legislation by a majority vote.

This issue arose again in connection with private member's Bill C-232, passed by the House of Commons in March, 2010. The bill would have amended the Supreme Court Act to require all future appointees to the court to be able to understand both French and English without the assistance of an interpreter. If the Supreme Court Act is considered part of the constitution, these changes would have required a constitutional amendment but Bill C-323 died on the table when parliament was dissolved for the May election.