In Canada, the authority to establish a national court of appeal dated back to the creation of the
Province of Canada in 1840, but the power remained unused. By
Confederation in 1867, the vision was for a national court of appeal was to serve as the final arbiter, particularly in
disputes between the provinces and Parliament, and unify the laws of the common law provinces through judicial
precedent, rather than relying solely on provincial legislatures. When the
British North America Act, 1867, was finalized,
section 101 provided
Parliament the option ("may") to create a general court of appeal, rather than requiring it ("shall"): 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. Under Prime Minister
John A. Macdonald, there were two failed attempts to establish a final court of appeal, once in 1869, and again in 1870. During the
1874 federal election,
Alexander Mackenzie's Liberals included the creation of a central court of appeal as part of their campaign platform. After their election, the Mackenzie government reiterated this commitment in the
throne speech of 1874.
Minister of Justice Télésphore Fournier introduced a new Supreme Court Bill to Parliament in February 1875. On April 8, 1875, with bipartisan support, Parliament passed
The Supreme and Exchequer Court Act, simultaneously establishing both the
Supreme Court and the
Exchequer Court. After
Edward Blake succeeded Fournier as justice minister, he personally staked his political reputation on the Act's successful implementation, as he saw significant personal consequences if he failed to execute it as written.
Early Amendments (1875–1899) In 1880, Prime Minister John A. Macdonald pledged to implement substantial reforms to strengthen the Supreme Court of Canada. However, only minor procedural changes were enacted. These included granting the Court authority to order new trials and authorizing the Registrar to sit as a judge in chambers for the hearing of motions. In 1882, Macdonald's government proposed the temporary appointment of "judges-in-aid," drawn on a rotating basis from the superior courts of Ontario and Quebec to assist the Supreme Court in its workload. The plan was poorly received by both Parliament and the legal community. The strong opposition made Macdonald cautious about pursuing further judicial reforms that might damage the Court or the Conservative Party. A significant structural change occurred in 1887, when the
Exchequer Court was formally separated from the Supreme Court, ending the dual responsibility of the justices and support staff to serve both institutions. In 1888, Parliament formally abolished criminal appeals to the Privy Council. In 1926, the Privy Council in
Nadan v R held the legislation as
ultra vires of Parliament, overturning the abolishment of criminal appeals. During the 1890s, additional amendments were made to the Court's
reference procedure. These changes explicitly allowed advocates to represent opposing interests in reference cases, confirmed the right of appeal to the Judicial Committee of the Privy Council, and required that the justices provide written reasons for their judgments.
Early 20th century amendments (1900–1949) Quorum was an issue for the Supreme Court in its early years. In 1910, Justice
Francis Alexander Anglin without notifying other justices, submitted a draft bill to the government to permit
ad hoc justices to be appointed to the Court, the proposal was ignored by the government. In 1918, after the Court was forced to suspend a sitting due to unavailability of its members, the government passed a bill permitting the Chief Justice to appoint an
ad hoc judge from the
Exchequer Court or a provincial chief justice. In practice, the Court appointed
ad hoc justices based on proximity. By 1927, 12 different lower court judges had served in an
ad hoc basis on at least 125 cases. In 1920, Parliament amended the
Supreme Court Act to standardize the minimum financial value of as a right appeals in civil matters to be $2,000 () for all jurisdictions in Canada. Snell and Vaughan note that many of the justices of the Court were involved in the changes to the Court's administration. In 1922, Parliament expanded the Court's jurisdiction to include appeals from provincial
reference questions. In 1927, Parliament amended the
Supreme Court Act to create a seventh position on the Court and set a mandatory retirement age of 75. The
William Lyon Mackenzie King government had supported mandatory retirement since at least 1924, and had tried to convince Justice
John Idington to retire, which he likely rejected. Idlington was removed from the Court on March 31, 1927, when the amendments to the
Supreme Court Act came into force. ==Section 53==