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Mazurkova T.V. The Constitution and the Supreme Court of Canada: from Appellate Tribunal to Final Court of Appeal

DOI: https://doi.org/10.15688/lc.jvolsu.2017.4.20

Tatyana V. Mazurkova, PhD, editor of Bulletin of Moscow University. Series 11. Law, Leninskie gory, 1, build. 13, 119991 Moscow, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.


 Introduction: the article is devoted to the Constitution of Canada, whose 150th anniversary is celebrated in 2017, and the Supreme Court of Canada, also created in the XIX century. The article discusses the evolution of the role of the Supreme Court of Canada from the ordinary appellate court to the Final Court of Appeal. In this context, the features of the Canadian constitution as a written constitution in a common law federation are considered. The distinctiveness of regulating the authority of the branches of government in Canada are noted. Using comparative method, the author tries to explain the reasons for the apparent lack of official provision for judicial power in the text of the Canadian constitution, unlike the constitutions of the United States and Australia. The need for a final, independent judicial arbiter of disputes over federal-provincial jurisdiction is implicit in a federal system. Particular attention is paid to the creation of SCC and the reasons for the lack of constitutional protection of the institution. The appeal question to the Privy Council of Great Britain was key in the debates over the Supreme Court Act of 1875. Due to the preservation of appeals to the Privy Council, the Supreme Court most of its history existed in the shadow of the Judicial Committee. The JCPC had exercised ultimate judicial authority over all legal disputes in Canada, including those arising from Canada’s Constitution. He played a central role in the constitutional structure of the country by, among other things, outlining the contours of the federal and provincial jurisdiction through a number of landmark cases. Finally, author comes to the following conclusions. The abolition of appeals to the Privy Council of United Kingdom led to the independence of the Canadian judiciary in 1949. It meant that the Supreme Court of Canada inherited the role of the Council in accordance with the Constitution of Canada. The final appellate function of the JCPC was an integral part of the Canadian judicial system, until it was finally removed by the Canadian Parliament in favor of the Supreme Court. Canadians could do without a general court of appeal for Canada as long as the Judicial Committee continued to play this role. With the abolition of appeals to the Privy Council, the appellate jurisdiction of the Supreme Court of Canada became essential.

Key words: Constitution of Canada, federation, judicial power, Court of Appeal, appeal, Judicial Committee of the Privy Council.

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