Canada's Top Court
As Canada’s final court of appeal, the Supreme Court has jurisdiction over disputes in every area of law.
Canadians can have confidence that the Supreme Court of Canada is impartial and independent. It is the guardian of the Constitution and Charter of Rights and Freedoms. Judges are selected in a transparent process where a non-partisan advisory board recommends candidates of the highest quality to the Prime Minister. Together, the Court’s nine judges provide guidance on Canada’s laws and work hard to ensure all people have equal protection and benefit of the law.
As Canada’s final court of appeal, the Supreme Court has jurisdiction over disputes in every area of the law. Judges answer a wide variety of important questions - from child support and corporate restructuring, to treaty and constitutional rights. The Court hears and decides cases in French and English. It is also bijural, which means it applies the law in Canada’s two distinct legal traditions – Quebec civil law and common law. Cases most often come from provincial and territorial courts of appeal, the Federal Court of Appeal and the Court Martial Appeal Court of Canada.
There are no trials or juries at the Supreme Court. No one testifies or introduces evidence. Judges hear arguments about important legal issues and question the lawyers. Members of the Court will only hear cases they consider to be of national significance, with the exception of automatic appeals of criminal cases where lower appeal court judges have disagreed on a point of law.
Sometimes federal, provincial and territorial governments ask the Supreme Court for an advisory opinion on a proposed or existing law. These requests are called a reference and they typically ask if a piece of legislation is constitutional. In the spring of 2021, the Supreme Court issued a judgment on multiple provincial references that had asked if the Greenhouse Gas Pollution Pricing Act was constitutional. Read more about this landmark decision.
The Supreme Court of Canada is also active on the world stage as a respected member of international court organizations such as the World Conference on Constitutional Justice, Association of Francophone Constitutional Courts and International Association of Supreme Administrative Jurisdictions.
Judges
Transitions at the Court
On July 1st, Justice Mahmud Jamal was formally appointed to the Supreme Court of Canada. The Court’s newest justice was sworn in on the very day Justice Rosalie Silberman Abella reached the mandatory retirement age of 75, after 17 years on the bench of Canada’s top court.
At Justice Jamal’s official welcoming ceremony in October, special guests celebrated his collegiality, intellect and kindness. They also praised his appointment as the first racialized Supreme Court judge.
Meaningful New Heraldic Emblems
March 15th 2021 was sunny and blustery – perfect conditions for unfurling one of the Supreme Court of Canada’s new heraldic emblems. Chief Justice Richard Wagner had the honour of being the first to raise the bright red, white and gold flag. While impossible for photographers to spot under his face mask, the Chief Justice could not stop smiling.
Minutes earlier, inside the courtroom and webcast live for the public, Canada’s Chief Herald Samy Khalid had formally proclaimed the Letters Patent for the flag and a badge, which is similar to a coat of arms. Rich with symbolism, they communicate the Court’s role and traditions, as well as the principle of judicial independence, which is fundamental to upholding Canada’s democratic values and the rule of law.
Chief Herald Khalid explained how the badge, designed by his predecessor Ms. Claire Boudreau, tells the story of the Court’s “past, present and future with poise and elegance.” It also bears the Court’s chosen motto “Justitia et Veritas”, or Justice and Truth, which are the names of the two allegorical statues that stand vigil outside the building.
Up until 2021, the Court’s decisions bore the Canada Coat of Arms, which is also used by the executive and legislative branches of government.
“These new emblems express the values of our institution: justice, independence, integrity, transparency and bilingualism,” said the Chief Justice. The flag is raised on the eastern flagpole closest to Parliament every time the Court meets to hear an appeal. The first judgment to bear the new badge was the reference on the constitutionality of the Greenhouse Gas Pollution Pricing Act.
Symbolism Explained
Vertical Stripes
The vertical red stripes, representing parallel paths and the idea of uninterrupted movement, indicate that the Court is responsible for applying the law in the two legal traditions of the country – common law and civil law – and that it is a bilingual institution, working in both English and French. These stripes also symbolize Indigenous contributions to Canadian society and law, as they recall the principles of peace and mutual respect communicated by the two-row wampum belt.
The Nine Judges of the Court
The large diamond and its pattern of lozenges represent the Court, its nine judges and the central role they play as the country’s court of final appeal, the guarantor of the Constitution, as well as the rights and freedoms of all Canadians. The white background conveys the ideals of transparency and accessibility in the court system. Red and white are emblematic of Canada, while gold symbolizes excellence.
Royal Crown
The heraldic emblems are surmounted by a stylized version of St. Edward's Crown, which has been used in the coronations of Canada's monarchs. This element represents Canada's status as a constitutional monarchy headed by a sovereign king or queen.
Laurels
The round shape represents harmony and collegiality with laurels, typical of judicial symbolism. The laurels are derived from the Supreme Court’s badge, designed nearly a century ago by the distinguished Montreal architect Ernest Cormier.
Motto
The Latin words “Justitia et Veritas” mean “Justice and Truth”. They are also the names of the two statues, allegories of Justice and Truth, which stand vigil in front of the Supreme Court.
A Constitutional Duty
The Administrator of the Government of Canada
On January 23, 2021, Canada’s Chief Justice was called upon to fulfill a unique constitutional duty. In the absence of a governor general, The Right Honourable Richard Wagner was sworn in as the administrator of the Government of Canada. Under the 1947 Letters Patent Constituting the Office of the Governor General and Commander-in-Chief of Canada, the administrator is vested with all powers and authorities of the governor general.
“Doing my duty as administrator was a humbling experience,” said the Chief Justice. “I will always cherish having had the opportunity to formally recognize the talents, expertise, bravery and sacrifices of so many distinguished and dedicated Canadians.”
Over six months, in his capacity as administrator, the Chief Justice granted Royal Assent to 12 acts of Parliament, signed into effect 557 orders-in-council, welcomed ambassadors and high commissioners to Canada, made two national proclamations, and presided over numerous investitures and presentations of Canadian honours. In virtual ceremonies, the administrator honoured recipients of the Order of Canada, Decorations for Bravery, Meritorious Service Decorations and the Sovereign’s Medal for Volunteers. In addition, he signed 1,093 Canadian Armed Forces Commission Scripts and Scrolls.
Chief Justice Richard Wagner stopped acting as administer once he conducted the oaths of office for Governor General Mary Simon on July 16, 2021.
Decisions
Notable Decisions by Date of Delivery
R. v. T.J.M.
The Supreme Court finds that both a provincial court and a superior court have authority to hear and decide bail applications for a youth charged under the Criminal Code.
R. v. R.V.
The Supreme Court provides guidance to appellate courts on inconsistent jury verdicts.
References re Greenhouse Gas Pollution Pricing Act
The Supreme Court rules the federal carbon pricing law is constitutional.
R. v. Desautel
The Supreme Court rules that non-citizens and non-residents can claim an Aboriginal right under the Constitution.
Colucci v. Colucci
The Supreme Court rejects a parent’s bid to reduce or cancel a $170,000 child support debt.
Sherman Estate v. Donovan
The Supreme Court rules that the sealing orders on the estate files of a Toronto couple were unjustified.
R. v. Chouhan
The Supreme Court rules that Criminal Code changes to the jury selection process are constitutional.
Canada v. Canada North Group Inc.
The Supreme Court decides Canada North Group can pay expenses necessary to its restructuring process before money owed to the Canada Revenue Agency.
York University v. Canadian Copyright Licensing Agency (Access Copyright)
The Supreme Court rules that a copyright tariff was not enforceable against York University.
Toronto (City) v. Ontario (Attorney General)
The Supreme Court rules an Ontario law that cut the number of Toronto city councillors during the 2018 municipal election was constitutional.
Ward v. Commission des droits de la personne et des droits de la jeunesse
The Supreme Court finds the Quebec Human Rights Tribunal did not have jurisdiction to proceed with the case of a comedian who mocked a well-known teen singer with a disability, because it was not discrimination under the Quebec Charter of human rights and freedoms. The Court also explains the legal framework that applies to a discrimination claim involving a public figure’s right to dignity and a professional comedian’s freedom of expression.
R. v. Albashir
The question in this case was how courts should treat crimes that are committed after the Supreme Court declares a law unconstitutional but before that declaration takes effect.
All Decisions
= See Notable Decisions.
*This decision covers more than one case.
**Reasons to follow in 2022.
A Landmark Decision
On March 25, the Supreme Court of Canada settled a national debate about the constitutionality of a federal law aimed at combatting climate change. At 9:45 a.m. in Ottawa, Canada’s top court ruled the Greenhouse Gas Pollution Pricing Act was constitutional. The majority of judges also wrote that climate change is caused by greenhouse gas emissions resulting from human activities, and that it poses a grave threat to the future of humanity.
Parliament passed the legislation in 2018 to help meet Canada’s international commitment under the Paris Agreement to reduce national greenhouse gas emissions by more than 30% below its 2005 emissions, by the year 2030. The law required provinces and territories to implement carbon gas pricing systems by January 1, 2019, or adopt one imposed by the federal government.
Saskatchewan, Ontario and Alberta challenged the law’s constitutionality. They argued their own tailored provincial policies would reduce emissions. The provinces also stated that under the Constitution, they have exclusive jurisdiction over their natural resources.
The federal government asserted that it had the authority to address national issues such as climate change. It also maintained the law was a backstop, or safety net, to ensure minimum carbon pricing standards across Canada. It would only intervene in jurisdictions with no adequate policy
In its ruling, the majority ruled that climate change causes harm beyond provincial boundaries. They called it a matter of national concern under the “peace, order and good government” clause of the Constitution. The six judges acknowledged federalism, with its balance of national and provincial powers, is a foundational principle of the Constitution. Yet they pointed out the law would only apply to jurisdictions without effective carbon pricing systems that would not reduce carbon emissions.
While many Canadians called the pricing system a “carbon tax”, the judges explained that it is not a tax but a regulatory charge because its specific purpose is to change people’s behaviour and reduce carbon emissions.
Law Clerks of the Supreme Court
When it comes to deciding significant legal questions, Supreme Court judges work collaboratively with each other, and they can count on the support of their law clerks. These recent graduates come from law schools across the country and bring a diversity of ideas, knowledge and lived experiences to Canada’s top court.
Chief Justice Richard Wagner says he seeks clerks with inquiring minds, “I expect the person to be curious, ready to develop theories and study new concepts.” He adds, “It’s a serious commitment that will give the clerk a lot of experience and knowledge, but that should also bring the Court and judges great satisfaction in being able to write and deliver better decisions.”
Before a hearing, clerks conduct research and provide their judge with a case summary and legal opinion. After attending the appeal hearing, clerks work closely with judges in writing the reasons for judgment. It is a dynamic environment that puts a high value on collegiality.
“They have to be prepared to work with confidence in a team setting where people are going to have real debates about serious issues,” says Justice Sheilah Martin, current chair of the Law Clerk Committee. She says clerks help judges think and make good decisions. “They’re part of a team amongst themselves in a chamber, and they’re part of a team because we have many chambers of clerks,” she says.
Being at the heart of the Supreme Court judicial decision-making process is an invaluable experience. In addition to learning how to, for example, write more persuasive written and oral arguments, clerks often socialize outside the courthouse. These friendships and professional connections last a lifetime.
Chief Justice Wagner says clerks tend to reunite every few years. “It’s a tight-knit community. People keep these ties forever, no matter what they do in the future, no matter what country they work in.”
