Thoughts on Reform of the Supreme Court of Canada

Abstract

In this essay, Professor Lederman expresses some personal views on the reform of the Supreme Court of Canada. He would favour a more sociological approach by the Court to constitutional questions before it, rather than the literal or grammatical approach which has usually been followed, and in such cases would allow the Court to range more widely in the admission of expert and factual evidence. Also favoured is more flexibility in the use of precedent. Dealing with the composition and status of the Court, Professor Lederman disputes the contention that the Court's status gives an unfair advantage to the Federal Government, but nevertheless favours constitutional entrenchment of the Court's position. He opposes the use of the Court for constitutional questions only; rather he believes that it should remain a complete court of appeal for the country. He would slightly increase the number of judges, and alter the proportional regional make-up of the court to give more weight to the West and the Atlantic Provinces. Essentially apolitical nominating commissions are proposed for judicial appointments from the four main regions of Canada. Finally, Professor Lederman proposes some alteration in the rules governing cases to come before the Court, with the judges of the Supreme Court of Canada themselves determining, for the most part, which cases deserve their attention because they raise issues of national importance.