Main article: Supreme Court of Canada
The bench for justices of the Supreme Court of Canada, the final court of appeals in the country
The Supreme Court is established by the Supreme Court Act[13] as the "General Court of Appeal for Canada". The Court consists of nine justices, which include the Chief Justice of Canada and eight puisne justices. The court's duties include hearing appeals of decisions from the appellate courts and, on occasion, delivering references (i.e., the court's opinion) on constitutional questions raised by the federal government. By law, three of the nine justices are appointed from Quebec because of Quebec's use of civil law; by convention, the other justices are divided among the other regions of Canada.
The Constitution Act, 1867 gives the federal Parliament the power to create a "General Court of Appeal for Canada".[14] Following Confederation, the Conservative government of Sir John A. Macdonald proposed the creation of a Supreme Court and introduced two bills in successive sessions of Parliament to trigger public debate on the proposed court and its powers.[15] Eventually, in 1875, the Liberal government of Alexander Mackenzie passed an Act of Parliament that established the Supreme Court.[16] The 1875 Act built upon the proposals introduced by the Macdonald government, and passed with all-party support.[17]
Initially, decisions of the Supreme Court could be appealed to the Judicial Committee of the British Privy Council. As well, litigants could appeal directly from the provincial courts of appeal directly to the Judicial Committee, by-passing the Supreme Court entirely. There was a provision in the 1875 Act which attempted to limit appeals to the Judicial Committee. That clause resulted in the Governor General reserving the bill for consideration by the Queen-in-Council.[18] After much debate between Canadian and British officials, royal assent was granted on the understanding the clause did not in fact affect the royal prerogative to hear appeals, exercised through the Judicial Committee.[19]
The question of the power of Parliament to abolish appeals to the Judicial Committee eventually was tested in the courts. In 1926, the Judicial Committee ruled that the Canadian Parliament lacked the jurisdiction to extinguish appeals to the Judicial Committee, as the right of appeal was founded in the royal prerogative and could only be terminated by the Imperial Parliament.[20]
Following the enactment of the Statute of Westminster, in 1933 the federal Parliament passed legislation again abolishing the right of appeal in criminal matters. In 1935, the Judicial Committee upheld the constitutional validity of that amendment.[21]
In 1939, the federal government proposed a reference to the Supreme Court of Canada, asking whether the federal Parliament could terminate all appeals to the Judicial Committee. By a 4–2 decision, the Supreme Court held that the proposal was within the powers of the federal Parliament and would be constitutional.[22] The question was then appealed to the Judicial Committee, but the hearing of the appeal was delayed by the outbreak of World War II.[23] In 1946, the Judicial Committee finally heard the appeal and upheld the decision of the majority of the Supreme Court,[24] clearing the way for Parliament to enact legislation to end all appeals to the Judicial Committee, whether from the Supreme Court or from the provincial courts of appeal.
In 1949, Parliament passed an amendment to the Supreme Court Act which abolished all appeals to the Judicial Committee, making the Supreme Court of Canada the final court of appeal.[25] However, cases which had been instituted in the lower courts prior to the amendment could still be appealed to the Judicial Committee. The last Canadian appeal to the Judicial Committee was not decided until 1960.[26]