At the time of Confederation, the Supreme Court of Canada did not exist. However, the Constitution Act of 1867 stipulated that the federal Parliament may provide for the "Constitution, Maintenance, and Organization of a General Court of Appeal for Canada". In 1875, the Supreme Court finally came into existence through the adoption of a law that would later become the Supreme Court Act. When it was first created, the Supreme Court was not the final court of appeal in Canada; its decisions could be appealed to the Judicial Committee of the Privy Council in London for final judgment. Over the years, appeals to the Judicial Committee of the Privy Council were gradually abolished, and its jurisdiction over the Supreme Court's decisions finally ended in 1949. Since then, the Supreme Court of Canada has been the highest court of appeal for civil, criminal and constitutional cases.
The Supreme Court Act sets out the fundamental aspects of the Court such as its composition and the method of appointing its judges. The opportunity to ensure Québec representation on the Supreme Court, notably owing to its civil law system, was the subject of multiple discussions and led, as of 1875, to protection being granted to specifically address Québec's concerns. This protection has been maintained throughout the various reforms to the Act. Presently, the Supreme Court is composed of nine judges, three of whom must come from Québec. Québec representation on the Supreme Court has a constitutional status. It seeks to ensure “that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court and that Quebec’s confidence in the Court be maintained”.
The authority to appoint judges to the Supreme Court resides with the Governor in Council. In concrete terms, this means that the federal government alone exercises this discretion. Despite what the principle of federalism might entail, at present there is no formal requirement to consult the provinces in the Supreme Court judge appointment process, while the Court is the final arbiter of division of powers disputes between federal and provincial governments. Québec has continually demanded changes to the process of appointing judges to this court. It has notably argued that Québec should possess the constitutional right to participate in the appointment process of the three Supreme Court Québec judges and to consent to their appointment. This claim was expressly recalled in a resolution unanimously adopted by the National Assembly on October 29, 2013.
Another topic of concern to Québec is the issue of bilingualism of judges, particularly when it comes to Supreme Court judges. On May 21, 2008, the members of the National Assembly unanimously passed a motion affirming that "French language proficiency is a prerequisite and essential condition for the appointment of Supreme Court of Canada judges".
For more information on this case, please consult the following documents:
Resolution of the National Assembly, October 29, 2013 (In french, PDF, 2 pages, 695 ko) Resolution of the National Assembly, May 21, 2008 (In french, PDF, 1 page, 22 ko)
Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21. 1. Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, para. 77.
4. Supreme Court Act, ss. 4 (1), 6; Reference re Supreme Court Act, ss. 5 and 6, supra note 1, para. 25.
6. Supreme Court Act, ss. 4 (2).
7. TREMBLAY, André. Droit constitutionnel : principes, 2e édition, Éditions Thémis, 2000, p. 223. See also Reference re Supreme Court Act, ss. 5 and 6, supra note 1, paras. 83, 85.
8. Secrétariat aux Affaires intergouvernementales canadiennes. Québec's Positions on Constitutional and Intergovernmental Issues from 1936 to March 2001, Gouvernement du Québec, 2001, paras. 31, 164, 242, 267, 277, 279 and 288.
