La Cour Supreme et le Partage des Competences


  • Jean-Charles Bonenfant



In the B.NA. Act and the Senate Canada has had two limping federative institu tions for over century. This has given more important role to the judiciary in interpreting the constitution than in other countries, Switzerland excepted. From its inception until the abolition of appeals to the Privy Council, the S.C.C. has often been unjustly kept in the shadows; its decisions often contained more of substance than those of the Privy Council. It appears that since 1949 the S.C.C. has rejected literal interpretation of the outdated B.NA. Act and has been prepared to create the law necessary for the political, economic and social functioning of the country. Unless change occurs in our institutions, we may drift into kind of neofederalism that amounts to government by judges. This is result to be feared, no matter how honest the judges or generous their decisions may be. Since the S.C.C. can create law in respect of the division of powers, it is under standable that Quebec, province different from the others, has not always accepted the decisions of the S.C.C. enthusiastically. As long as the S.C.C. was subordinate court its constitutional decisions were not feared in Quebec: rather, there was longstanding fear that the purity of Quebec civil law would be endangered. Since the 1974 amendments to the Supreme Court Act civil appeals will be considerably fewer and Quebec's problem in respect of the S.C.C. will above all relate to the division of powers. Although it would be difficult to specify any anti-Quebec attitudes on the S.C.C. bench, the court is still perceived by most French-speaking Quebeckers as primarily English-speaking institution as distant and strange as the Privy Council, and above all pro-federal tribunal. Several calls for the establishment of constitutional court have been made. Although number of decisions of the S.C.C. over the last twenty-five years have proven to be blessing to Quebec, two recent decisions have been perceived as unjustified federal int