Constitutions in transition
Constitutions in transition

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Constitutions in transition

4.4 The Supreme Court of Canada

Gatekeepers of human dignity?

The Supreme Court of Canada is the ultimate arbiter on matters relating to the constitution. The Court not only hears references relating to procedural or administrative matters; it also colours and explains the constitution in relation to criminal and civil hearings.

In hearing matters relating to the constitution, the Supreme Court of Canada has engineered for itself a fair degree of latitude in establishing Charter jurisprudence. Lorne Sossin’s (2003) review of several cases to have reached the Supreme Court of Canada demonstrates the pivotal importance the Court has placed on the concept of human dignity, despite it not being included explicitly in the Charter. Nevertheless, dignity is principally used to protect oneself from encroachment rather than enforce positive moral obligations. Contrast this with the extensive socio-economic obligations present in the South African Bill of Rights that are mentioned earlier on in this course.

The Supreme Court of Canada has shown a fair amount of judicial creativity in extrapolating the concept of human dignity from the Charter, but it has shown even more in the way of constraint to prevent itself from adding substance, and thus substantially increasing the quantity of rights, to the Charter. So, the Court arbitrates on matters of constitutionality within, rather than beyond, the remit of the Charter.

Federal Conciliator?

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Figure 15 Federalism in 2D

As you can see from Figure 15, there are numerous provinces and territories that make up the federation of Canada. Since the Privy Council withdrew itself from its role as the court of last resort, the Supreme Court of Canada has been responsible for hearing appeals from each of the provinces and territories, as well as appeals against decisions made at a federal level.

It seems for now, then, that the Supreme Court of Canada is just like any other federal appellate and constitutional court. This operation of the Court certainly is, then, fairly normal or characteristic, but the historical specificity and complexity of Canada means the Court has an incredibly difficult remit. For a start, the Supreme Court of Canada must uphold the legal relationship between settler Europeans and indigenous people (Figure 16 gives a graphic representation to the additional complexity this brings), not least because Aboriginal rights are recognised by s35(1) of the Charter and relate to the exercise of traditions, customs and practices that are integral to the distinctive and antecedent cultures of Aboriginal peoples. Since 1982, the question of Aboriginal rights has been a regular feature in the caseload of the Supreme Court of Canada.

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Figure 16 Federalism and Aboriginal peoples (source: adapted from Hicks, 2010)

The Court’s role in holding the provinces of Canada together is also a difficult matter. The French Canadian province of Quebec has longed for independence from an otherwise majority English-speaking confederation. Culturally, politically and legally, Quebec is distinct from the rest of Canada and its appetite for independence means that the Supreme Court of Canada has had to reconcile differences between Quebec and federal Canada in its judgments. The Court recognises that a balance needs to be struck between engendering a degree of provincial autonomy in a confederation and ensuring that cultural distinctness does not compromise the nation of Canada.

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