Within the scope of this research, we will analyze the effectiveness of the Supreme Court of Canada. When it is compared with other Supreme Courts (for instance that of the United States), it is apparent that it is not and effective way to make decisions, due to several factors, among which are: the average age of the justices are over 60, they have too much power, and they primarily do not use president in their decision making process. After reviewing the processes and capacities of the Supreme Court of Canada, it is apparent that its structure and powers should be modified significantly.
Two decades ago, the constitutional and legal landscape in Canada looked considerably different from what it does now. When a case came before the Supreme Court of Canada the principal question for constitutional purposes was usually limited to a determination of whether a given branch of government had stayed within its jurisdictional sphere in enacting a particular piece of legislation. The judiciary was not called upon to inquire into the merits of that legislation, or to subject it to any true scrutiny, apart from that fundamental question.
This conformed with the notion of parliamentary supremacy, a governing principle of British constitutionalism. Under this principle, Parliament can make or abrogate any law it chooses without submitting its actions to the judiciary for ex ante or ex post approval. In this sense, the power of Parliament is limited not by a preordained set of precepts purporting to protect the individual member of society, but rather by that society itself, which is at complete liberty to exercise its democratic franchise and vote out the government the next time it has the chance to do so. (Flemming 77) And, although Britain now has bound itself to a number of international human rights documents, as a theoretical matter it is still possible to argue that constitutional authority is seen there as resting on the unfettered authority of Parliament. (Flemming 79)
This is not so in the United States. There, constitutional liberty is perceived as being protected by a written charter with a Bill of Rights and the Civil War amendments. The charter prohibits the state from abridging the various rights which it contains. (Martin 62) The judiciary is then charged with invalidating government actions which are inconsistent with those guarantees. Note, then, that under the American model the individual is given a constitutional claim, or right of action against the government, and it is up to the judiciary (as opposed to Parliament under the British model) to decide how to reconcile the competing interests of the individual and that government.
As already indicated, prior to 1982 and the enactment of the Canadian Charter of Rights and Freedoms, the Canadian model was primarily that of Great Britain, although it must be remembered that the British North America Act of 1867 did contain some language rights and denominational school rights which, along with jurisdictional questions under the doctrine of ultra vires, were enforced by the judiciary. In general, however, it was Parliament, and not the judiciary, which decided how the competing interests of the state and the individual were to be resolved. (Martin 80)
A more Americanized view of the role of the judiciary was brought about by the enactment of the Charter, and Canadian courts openly welcomed the new challenges which the Charter presented. It is clear from the early jurisprudence that there was an immediate recognition that the judiciary in general, and the Supreme Court of Canada in particular, were to play an unprecedented role in the life of the country, and that this role was greeted with both a sense of excitement and responsibility.
Mr. Justice Estey, in Law Society of Upper Canada v. Skapinker, where he speaks of a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court. (Balcome 114) In the same case Mr. Justice Estey adopted the approach taken by the U.S. Supreme Court in McGilloch v. Maryland. (Balcome 115) That is to say that the Court needed to leave the legislative body room to operate for the benefit of the people, but only within the scope permitted by the constitution.
A similar note was struck by Chief Justice Dickson in Hunter v. Southam Inc. (Martin 99) He stated that the judiciary had been made the guardian of the constitution and, in interpreting that instrument, we must bear in mind that it is a document which is intended to be adapted to the changing needs of a dynamic society. The Chief Justice also referred with approbation to the McCulloch case and the constitutional approach it advocated. Moreover, he went on to lay down the foundations for the now well-known purposive analysis whereby the individual provisions of the Charter would be interpreted in light of its larger objects and any governmental action inconsistent with those rights would be illegitimate and recognized as such by the Court. (Martin 104)
This new position has given rise to grave warnings about the Court's becoming a sort of "super-legislature" where the legitimate attempts of the elected representatives of the Canadian people to address current issues go to die. However, as Mr. Justice Lamer, remarked in Reference re Section 94(2) of the British Columbia Motor Vehicles Act, this is an argument which has been heard on countless occasions, but which has been definitively settled by the enactment of the Charter itself, given that the decision to entrench this document in our constitution was made not by the judiciary but by those very same democratically elected representatives. They and they alone established the bounds of constitutional adjudication and, as such, the task of giving the Charter life must be approached without any lingering doubts regarding its legitimacy. (Balcome 122)
This new role for the Court is, of course, far removed from the theoretical underpinnings of parliamentary sovereignty. This is not to say that all vestiges of this former role have been eradicated. The presence of s. 33 of the Charter 11 might well be seen as indicative of our British constitutional origins in allowing the legislative branch of government to play a legal "trump card" and legitimize otherwise unconstitutional legislation if it so chooses. (Martin 118) Nonetheless, the function of the Court has been altered irrevocably and has caused the role Supreme Court judges play in Canada to conform substantially with that which the United States Supreme Court plays in its country. Both institutions are engaged, at least for the purposes of the Canadian Charter of Rights and Freedoms and the American Constitution with its Bill of Rights, in a process of judicial review - acting as a buffer between the individual and the government, so that the actions of the latter do not unduly encroach upon the constitutionally protected rights of the former. () In no way does this mean however, that the two institutions engage in this task in an identical manner.
It does not really matter that the United States Supreme Court is at the federal apex of a binary legal system and does not have the authority to hear cases bearing on matters of state competence, whereas we are a general court of appeal with much greater jurisdictional range, not fettered in the same way. It is interesting to note that the Supreme Court of Canada plays an entirely appellate role in the legal system, whereas the United States Supreme Court has original jurisdiction in some matters and, in 1794, even held a jury trial between the state of Georgia and one of its citizens when the former sought to execute a debt from the latter. (Martin 124) Rather, the most fundamental differences and those of which people must be especially wary when examining U.S. constitutional case law, stem from differences in the two documents which the Courts have been called upon to interpret and apply. The documents produce distinct considerations and methods of reasoning. (Martin 124)
Until 1982 and the enactment of the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada functioned in accordance with the prevailing notions of British constitutionalism. Subsequent to the entrenchment of those rights, however, the Court took on a role similar to that of the highest court of the United States, and began to hold legislation up against strict norms. In engaging in this process of judicial review we may invalidate legislation which, for one reason or another, does not pass muster against those norms. (Vaughan 143)
Nonetheless, although the role each Court performs in this regard is similar, there are significant differences in the way each carries out its role. These may be attributed to the respective constitutional documents each is called upon to interpret and apply. One of these differences was that the Supreme Court of Canada was given explicit authority to undertake the process of judicial review, whereas the American counterpart was forced to assert that mandate for itself, their Constitution being silent on the issue. This has resulted in a type of "political questions" doctrine, a doctrine which has been shown to be inapplicable in the Canadian context.