The Supreme Court of Canada was established in 1875 by a statute of Parliament that was enacted pursuant to its legislative authority, under section 101 of the Constitution Act,1867, to provide for the constitution, maintenance and organization of a general court of appeal for Canada. The Supreme Court Act is not one of the statutes included in the Constitution Acts, 1867 to 1982, and it is open to Parliament to amend the Supreme Court Act from time to time. Sections 41 and 42 of the Constitution Act, 1982 provide the means by which the Constitution of Canada may be amended in relation to the Supreme Court of Canada and the Court’s composition in particular. Both the 1987 Meech Lake Constitutional Accord and the 1992 Charlottetown Accord, had they been ratified, would have amended the Constitution Act, 1867 to entrench the Supreme Court and its basic composition. Notwithstanding the failure to amend the Constitution of Canada pursuant to the terms of either the Meech Lake Accord or the Charlottetown Accord, can it be argued plausibly that the Supreme Court, as Canada’s highest judicial body, has constitutional status? What are the implications of such an argument for the interpretation of the relevant provisions of the Constitution Act, 1867 and the procedures for constitutional amendment set out in the Constitution Act, 1982? What is the impact of unwritten constitutional principles, including the principles of parliamentary sovereignty and the separation of powers, on the question? Can a the ory be propounded that might recognize an inherent or essential constitutional status in respect of the Court, without fettering the legislative power of Parliament to modernize, from time to time, the Supreme Court Act, and without undermining the integrity of the formal processes of constitutional amendment or the coherency of the provisions of the constitutional texts the mselves? This paper examines those issues and hypotheses, and fashions some tentative responses.
Newman, Warren J..
"The Constitutional Status of the Supreme Court of Canada."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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