The Supreme Court of Canada on the banks of the Ottawa River is pictured in Ottawa on June 3, 2024.Sean Kilpatrick/The Canadian Press
On a winter morning in 1988, at the Morgentaler Clinic near downtown Toronto, staff announced the news to supporters outside: the Supreme Court of Canada ruled the country’s law against abortion was unconstitutional.
“The people have spoken,” the delighted crowd chanted. “The clinics will stay open.”
A quarter-century later, Gloria Taylor’s fight for individual liberty succeeded at Canada’s top court when, in 2015, the Supreme Court struck down Canada’s prohibition on assisted suicide. The unanimous decision was signed, simply, “The Court.”
Ms. Taylor, who suffered from ALS, died before the victory. “I was in this to do this for everybody in Canada,” she told The Globe and Mail.
This year the Supreme Court marks its 150th anniversary. The court’s beginnings were once described by former justice Frank Iacobucci as “unpromising and modest.” Its power until 1949 was limited because final legal appeals could still be made to London, and so the early decades gave no hint of the eventual indelible influence the court’s rulings would later have on the daily lives of Canadians.
After the Constitution was patriated from Britain in 1982 and the Charter of Rights and Freedoms enacted, a long string of landmark rulings followed, responding to – and sometimes driving – Canada’s modern character and society.
Transformative decisions include allowing stores to open for business on Sundays, setting the terms of Quebec secession, upholding Ottawa’s right to levy a national carbon tax and protecting the deeply personal choices of abortion and medically assisted dying. The rulings touch millions of Canadians every year.
The court this year is once more in the political spotlight, weighing fundamental freedoms.
It will decide the extent to which elected legislators can limit Canadians’ Charter rights. At issue is Quebec’s secularism law, Bill 21, and the province’s use of Section 33 of the Charter, the notwithstanding clause, to override freedom of religion to push it through. The case will produce another landmark decision, one of the biggest in years.
To mark the Supreme Court of Canada’s 150th, Chief Justice Richard Wagner and his colleagues are touring five cities over the course of the year, starting in Victoria on Monday and visiting Moncton, Yellowknife and Sherbrooke, Que., before concluding in November in Thunder Bay. In April, the court hosts an international legal symposium in Ottawa.
Chief Justice Wagner, a Quebecker who turns 68 this April, has helmed the court since late 2017 and aims to serve until mandatory retirement at 75, in 2032. That tenure would rank second longest of the 18 people who have headed the court over its entire history, behind only his predecessor, Beverley McLachlin.
Making the court more accessible to Canadians, given the impact of its power, is one of Chief Justice Wagner’s core goals. He’s motivated by the teetering trust in institutions among the public. Just look south: in the United States, public approval of its Supreme Court is near a record low.
“We still need to work to keep the confidence and trust of the people,” said Chief Justice Wagner in a recent interview at his Supreme Court office, with views of the icy Ottawa River and Parliament Hill. “Confidence is something that should be earned. So we have to work for it.”
Ahead of Confederation there wasn’t much talk of establishing a Supreme Court, unlike in the U.S., where its top court was, from the start, an equal branch of government inscribed in the country’s Constitution. It took almost a decade before Parliament created the Supreme Court in 1875. Despite the name, it wasn’t the young country’s final legal arbiter. That remained in London.
Parliament sought for years to dislodge Britain’s Judicial Committee of the Privy Council from the pinnacle of Canadian justice. It happened, in part, after the Statute of Westminster in 1931 affirmed Canada’s autonomy, but it wasn’t until 1949 when appeals to London ended that the Supreme Court became the final arbiter of the Canadian justice system. The court shook off what former justice Iacobucci called, in a 2002 history, the “implication that it was an inferior tribunal in need of supervision.”
Yet the court was ingrained with caution. It took years to leave legal timidity behind. In 1980, constitutional scholar Peter Russell urged the top court to forge its own place, “to become a separate branch government.” The Charter in 1982 propelled the court to adjudicate the biggest constitutional questions of how the country is run.
To Chief Justice Wagner, a ruling the Supreme Court made in 2014 represents a more recent lasting milestone in the institution’s long evolution.
In 2013, Prime Minister Stephen Harper named Marc Nadon to the court, a controversial choice for one of Quebec’s three positions among nine justices. He was a Quebecker but had served for years on the Federal Court of Appeal, so his eligibility under the Supreme Court Act was challenged.
The Conservatives amended the act to provide legal backing for his appointment and sought to clarify the new rules at the Supreme Court in a reference case, where the federal cabinet can ask the top court to rule on unsettled questions of law.
The top court forcefully struck back. Its ruling declared Parliament could not unilaterally modify the court. Such changes instead required a constitutional amendment, with the unanimous approval of all provinces. The court’s many years as a malleable Act of Parliament were over.
“The citizens of this country can understand that the court, as it is right now, will remain as is, and cannot be changed by a different Parliament,” said Chief Justice Wagner. “It should add up to the trust, the confidence, that society has in the institution.”
The court’s rulings spark continual debate but Chief Justice Wagner’s push to open up the court to the public has also garnered detractors. While efforts such as summarizing long judgments in clearly stated cases-in-brief are widely welcomed, critics of his annual press conferences say it is a venue suited to politicians, not judges.
Others insist the courting of public support and other outside work detracts from the primary job of hearing appeals. From 2009 through 2017, the court decided an annual average of 72 cases. Since then, it’s fallen to 54. Many lawyers and legal academics argue the top court should hear more cases.
While inciting passions among a small group of court watchers, such issues remain relatively unknown among the public.
A 2024 Angus Reid survey showed a majority of Americans can name at least two of their top court justices but only a quarter of Canadians could identify more than one. But unlike in the U.S., public confidence in Canada’s court is solid, trusted by two-thirds of Canadians, a 2023 Leger poll showed. Still, the pervasive skepticism about courts that exists elsewhere – of their independence or biases – is also present in Canada.
“It’s harder for a court to say, ‘I am an impartial arbiter,’ and for people to believe it – and that’s a shame,” said Mark Mancini, an assistant professor of law at Thompson Rivers University in Kamloops, B.C.
How power is shared between courts and elected legislators is the key legal-political debate of the Charter era. It is, once again, central in this year’s Bill 21 case – one of apt significance on this 150th anniversary.
Quebec, seeking to enforce secularism in its public service, in 2019 banned teachers, police and other workers from wearing religious symbols on the job. The province shielded the law with the Charter’s Section 33, the notwithstanding clause, which allows governments to override a range of rights and freedoms.
Lower courts have twice upheld Bill 21. The landmark appeal is the Supreme Court’s most serious consideration of the notwithstanding clause in almost four decades. The main precedent, the 1988 Ford decision, did not limit governments’ use of Section 33.
Ichrak Nourel Hak, a Muslim who wears a hijab, lost her teaching job in 2021. “It’s an opportunity to correct an injustice,” said Ms. Nourel Hak after the top court agreed to hear the case.
Chief Justice Wagner and his colleagues deliberated an unusually long time whether to grapple with Bill 21. Now, under a hot glare of politics, they will consider the limits of Canadians’ Charter rights, amid a resurgence of Section 33’s deployment among provincial premiers. Ontario has, since 2018, used it several times but pulled back after court decisions and public outcry. Saskatchewan in 2023 used it to shield its law on pronouns in schools and parental consent, which is being challenged at the province’s appeal court.
In Ottawa, federal Conservative Leader Pierre Poilievre has pledged that if he’s elected he will be the first prime minister to ever use it, on sentencing and bail laws.
This has stoked worries the Charter is “under threat,” said Jamie Cameron, professor emerita at York University’s Osgoode Hall Law School.
The political debate is inflamed, ahead of a pending federal election. Prime Minister Justin Trudeau is against Section 33’s pre-emptive use, as Quebec did with Bill 21. Quebec calls the Liberals’ plan to intervene in the case an attack on the province’s autonomy. Mr. Poilievre opposes Bill 21 but in 2023 supported Quebec’s unfettered use of Section 33.
The case is fraught with intense divides. Some see the Charter in peril. Some see Parliament’s power in peril. Some Quebeckers believe the province’s soul is at stake. Chief Justice Wagner, a Montreal native working at the court in Ottawa, with Quebec just across the river, straddles several solitudes.
Amid these tensions, Chief Justice Wagner leans into bipartisanship, and the idea that judges should stand apart from the ties of affiliation, each case decided on its specific tangle of legal questions. He believes that stewardship of the court, as a lasting institution, means sidestepping the snares of politics, even as politics surround the court’s work.
Mr. Harper named Chief Justice Wagner to the Supreme Court and Mr. Trudeau elevated him to the top job. In his office, with the winter sun setting, the chief justice pointed out that two of his forebears – Beverley McLachlin and Antonio Lamer – followed the same path, chosen by one political party, promoted by the other.
“That goes to show we are independent,” said Chief Justice Wagner. “I truly believe in that. That’s very Canadian. That’s very us.”