The Supreme Court of Canada was founded in 1875 and has served as the final court of appeal in Canada since 1949. Its history may be divided into three general eras. From its inception in 1875 until 1949, the Court served as an intermediate appellate court subject to appeal to the Judicial Committee of the Privy Council in Britain. Following 1949, the Court gained importance and legitimacy as the court of last resort in Canada, establishing a greater role for the Canadian judiciary. In 1982, the introduction of the Canadian Charter of Rights and Freedoms significantly changed the role of the Court in Canadian society, by providing the Court with greater powers of oversight over Parliament and through formal recognition of civil rights including aboriginal rights and equality rights.
Origins
Confederation
During the Confederation conferences leading to the formation of the Dominion of Canada prior to 1867, it was contemplated that a national court of appeal would be created to sit at the top of the Canadian legal hierarchy, especially to deal with disputes between the provinces and Parliament. However, the subject of the court did not generate much interest during the Confederation Debates.
There were some concerns over the establishment of general court of appeal. The largely Anglophone population of Canada West (which became the Province of Ontario) wanted continued oversight by the British Privy Council; while the largely Francophone population of Canada East (which became the Province of Quebec) were concerned about the accessibility of appeals involving travel to London, as well as the effect that a supreme court would have on Quebec civil law and Quebec nationalism more generally.
The ambivalent attitude toward the court during the Confederation Debates was displayed by John A. Macdonald (then the attorney general of Canada West and who would become the first Prime Minister of Canada), who was a proponent of strong federal institutions including the Supreme Court, when he said:
The Constitution does not provide that such a court shall be established. There are many arguments for and against the establishment of such a court. But it was thought wise and expedient to put into the Constitution a power to the General Legislature, that, if after full consideration they think it advisable to establish a General Court of Appeal from all the Superior Courts of all the provinces, they may do so.
When the British North America Act, 1867 was finalized, it provided Parliament with the permissive power ("may") rather than the imperative ("shall") to create a general court of appeal:
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
After Confederation in 1867, there was a growing movement to create a final court of appeal for the new country. Nonetheless, it took eight years before the Supreme Court would finally be established due to unresolved tensions between various political factions. Macdonald, along with Télésphore Fournier, Alexander Mackenzie, and Edward Blake, championed the creation of a Supreme Court. In 1868, Macdonald delegated the task of drafting a bill to establish a supreme court to Henry Strong, and in 1869 a first draft of the legislation was submitted to Parliament. It appears that Macdonald had intended that this bill "was rather more for the purpose of suggestion and consideration than for a final measure which [the] Government hoped to become law."
Nonetheless, those strongly loyal to the English tradition opposed it and managed to get both the 1869 bill and a revised bill of 1870 withdrawn from Parliament. Additionally, there was resistance from Quebec until the Guibord case demonstrated to them that Privy Council rulings could not always be sensitive to their religious culture. Macdonald's government, however, became preoccupied with other matters and fell in 1873 without further success in establishing a supreme court.