The Supreme Court Act (French: Loi sur la Cour suprême) is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the Supreme and Exchequer Courts Act. However, at the time, the Supreme Court was not the supreme authority on Canadian law, as Supreme Court cases could still be appealed to the Judicial Committee of the Privy Council.[note 1]
The Supreme Court Act is not a part of the Constitution of Canada but rather was merely within Parliament's ability to pass by virtue of section 101 of the Constitution Act, 1867. The Act also was not named as part of the Constitution during patriation in 1982, although the Court itself is mentioned in the amending formula. As the Court is defined in a regular statute, it may be argued the Court could be abolished by an act of Parliament. However, in their decision in the Reference re Supreme Court Act, ss. 5 and 6, the Court ruled that certain sections of the Act, like its composition, may only be amended using the formula for constitutional amendments, pursuant to s. 41(d) of the Constitution Act, 1982.
Section 53
Section 53 of the Supreme Court Act provides the Governor in Council (also known as the Cabinet of Canada) the authority to submit reference questions.
In Reference re Secession of Quebec, the Supreme Court examined the applicability of section 53, and whether advisory questions were constitutional. The amicus curiae appointed to advocate on behalf of the government of Quebec argued that the right to secede was an invalid basis for a reference question. The complaint came in two parts, first Section 101 of the Constitution Act, 1867 did not give Parliament the authority to grant the Supreme Court jurisdiction to pass section 53. Secondly, section 53 is to be interpreted to exclude questions where the court does not have jurisdiction, and in the case of Reference re Secession of Quebec is international law. Finally, the question Reference re Secession of Quebec posed was political in nature, and therefore could not be answered by the Supreme Court.[2] When considered Parliament's jurisdiction to pass section 53, the court noted in Re References by Governor-General in Council (1910) the Supreme Court and Privy Council upheld the Court's special jurisdiction.[3] The Court found section 53 could be validly enacted considering the "pith and substance" of the legislation is to create a general court of appeal,[3] a court of appeal could in exceptional circumstances receive original jurisdiction,[4] and there is no constitutional bar for the court to accept a reference question or undertake such an advisory role.[5]
