Captive Court: A Study of the Supreme Court of Canada 9780773563018

Table of contents :
Contents
Preface
PART A: THE ESTABLISHMENT OF THE COURT
1 Attempts
2 The Creation of the Supreme Court
3 Section 47 and the Lord Chancellor
4 Starting Up
PART B: THE JUDICIAL FUNCTION
5 The Judge as Adjudicator
6 The Judge as Law-reformer
PART C: THE EARLY YEARS, 1875–1885
7 The Beginning, 1875–1879
8 The Court under Attack
9 The Appeal to the Privy Council, 1876–1879
10 The End of the Beginning, 1879–1880
11 The Court Struggles, 1880–1885
PART D: THE YEARS AFTER, 1885–1949
12 The Manitoba Schools Question
13 The Court in Disarray, 1895–1903
14 The Sterile Years, 1903–1911
15 The Sterile Years, 1911–1918
16 The Sterile Years, 1918–1929
17 "There are Statutes, and Statutes"
18 The Civil Law of Quebec
19 The Attack on the Privy Council, 1930–1939
20 The Wait for the End of the Appeal, 1940–1949
PART E: THE FINAL COURT OF APPEAL FOR CANADA, 1950–1959
21 A New Beginning?
22 New Jural Conclusions
23 The Implied Bill of Rights
24 The End of the Fifties
PART F: THE COURT SOLIDIFIED, 1960–1980
25 The Sixties
26 The Canadian Bill of Rights
27 The Seventies
28 The Seventies and Law Reform
29 Tensions within the Court
30 The Constitution
PART G: THE ERA OF THE CHARTER, 1980–1989
31 Waiting for the Charter
32 The Charter
33 The Abortion Case
PART H: CONCLUSION
34 Impartial Justice
35 Now and the Future
Appendix
Notes
Index
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
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Citation preview

The Captive Court

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The Captive Court A Study of the Supreme Court of Canada IAN BUSHNELL

McGill-Queen's University Press Montreal & Kingston • London • Buffalo

© McGill-Queen's University Press 1992 ISBN 0-7735-0851-1 Legal deposit fourth quarter 1992 Bibliotheque nationale du Quebec Printed in Canada on acid-free paper This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. Funding has also been received from the Law Foundation Grant, Faculty of Law, University of Windsor

Canadian Cataloguing in Publication Data Bushnell, Ian 1937The captive court Includes bibliographical references and index. ISBN 0-7735-0851-1 1. Canada. Supreme Court — History. I. Title. KE8244.B87 1993 347.71'035 C92-090234-0

For my family Lucienne, Anne, Eric, and Paul and my mother Jean

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Contents

Preface xi PART A THE ESTABLISHMENT OF THE COURT

1 Attempts 3 2 The Creation of the Supreme Court 14 3

Section 47 and the Lord Chancellor 28

4

Starting Up 38 PART B THE JUDICIAL FUNCTION

5 The Judge as Adjudicator 47 6

The Judge as Law-reformer 65 PART C THE EARLY YEARS, 1875-1885

7 The Beginning, 1875-1879 75 8

The Court under Attack 91

9

The Appeal to the Privy Council, 1876-1879 97

10 The End of the Beginning, 1879-1880 103 11 The Court Struggles, 1880-1885 114 PART D THE YEARS AFTER, 1885-1949

12 The Manitoba Schools Question 135 13 The Court in Disarray, 1895-1903 155

viii Contents

14 The Sterile Years, 1903-1911 169 15 The Sterile Years, 1911-1918 191 16 The Sterile Years, 1918-1929 207 17 "There are Statutes, and Statutes" 218 18 The Civil Law of Quebec 230 19 The Attack on the Privy Council, 1930-1939 243 20 The Wait for the End of the Appeal, 1940-1949 263 PART E THE FINAL COURT OF APPEAL FOR CANADA, 1950-1959

21 A New Beginning? 281 22 New Jural Conclusions 296 23 The Implied Bill of Rights 312 24 The End of the Fifties 322 PART F THE COURT SOLIDIFIED, 1960-1980

25 The Sixties 331 26 The Canadian Bill of Rights 347 27 The Seventies 369 28 The Seventies and Law Reform 380 29 Tensions within the Court 400 30 The Constitution 418 PART G THE ERA OF THE CHARTER, 1980-1989

31 Waiting for the Charter 437 32 The Charter 449 33 The Abortion Case 461 PART H CONCLUSION

34 Impartial Justice 477 35 Now and the Future 486

ix Contents

Appendix 495 Notes 499 Index 583

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Preface

This is a history of the Supreme Court of Canada. It is a history that focuses on the judicial function - how the judges of the Supreme Court of Canada functioned, what role they considered that they were fulfilling within Canadian society, and what role others expected them to fulfil. The subject of this study is, in broad terms, an examination and critical analysis of the Canadian thoughts that existed over the years and those that exist today regarding the nature of the judicial or legal system and the role of a final appeal court within that system. The topic of the judicial function is hardly new, although with the coming into being of the Canadian Charter of Rights and Freedoms in 1982 a new impetus with regard to it has been created. It has become common to hear the view that with the Charter the Supreme Court acquired a new function. The truth of that viewpoint will be examined. A frequently heard opinion is that, prior to 1950, the Supreme Court was not an important element within Canadian politics or society. Any studies that have been undertaken with regard to the functioning of the court have focused on the years after 1949, with the result that the first three-quarters of a century of the court's existence have been relegated to the position of a footnote, or forgotten completely. The year 1949 is, of course, significant because that was the year that the appeal from the Supreme Court to the Judicial Committee of the Privy Council in England was abolished. In this study those many forgotten years will be brought back to life. This book was founded on the common opinion that over the years the court had been confined and unable to achieve its true potential as a legal institution in the Canadian legal system. It had been, in other words, a captive institution. The phrase "captive court," which was chosen as the title, appeared in an article written in 1951 after the abolition of the appeal to the Judicial Committee of the Privy Council that was entitled "The Supreme

xii Preface

Court of Canada: A final Court of and for Canadians." The article was written by Professor Bora Laskin, later to be chief justice of Canada, and in it he noted that in his opinion Canada had a lack of legal doctrine and an absence of an independent judicial tradition. He wrote of the Supreme Court: "It has for too long been a captive court so that it is difficult, indeed, to ascribe any body of doctrine to it which is distinctively its own, save, perhaps, in the field of criminal law." The thoughts that Laskin's comments generated were: captivity, lack of legal doctrine - absence of an independent judicial tradition — no independent thought — no thinking. This notion of a captive court directly involves the question of the way in which the court functioned. If Laskin was correct, it means that the court was unable to carry out its role within the legal system and society. The notion of the captivity of the Supreme Court came to the fore as the move towards the abolition of the appeal to the Privy Council gained momentum with the decline of the Empire in the 1930s and 1940s. Laskin was one of the advocates of abolition. Brian Dickson, who succeeded Laskin as chief justice of Canada, also referred to the court as having been captive: "Until 1949 the Supreme Court was a 'captive' Court. The court of last resort for Canadians was the Privy Council." Was the captivity - the lack of independent thought - that simple? Was the cause of the captivity the appeal to the Privy Council? Such thoughts require that an examination of the appeal to the Judicial Committee, and the movement for the abolition of the appeal, must occupy a crucial part of this study. In his 1951 article Laskin stated that in his view the lack of legal doctrine and independent judicial tradition might in part be explained by "the conservative tradition of the Canadian legal profession reinforced by the awe and timidity of a colonial outlook, and in the late development of university law schools where free inquiry grounded in Canadian experience now gives promise of distinctively Canadian contributions to the common law system." This comment enlarges the scope of inquiry about the captivity and suggests that the notion of captivity is much more complicated than simply the existence of the appeal to the Privy Council. There could also be involved the lack of recognition of anything as being distinctly Canadian, as well as the basic nature of our legal system and profession, and the state of our legal education. All of these items must be addressed critically. Nothing could be more important in a study of the functioning of the Supreme Court than a look at the judges themselves. The men and women who sat on the bench of our highest court over the years - sixty-seven of them in the period studied - were human beings. It is true that public knowledge of them over the years has been virtually non-existent, and even today there is a notion within our society that there is something disrespectful and wrong about viewing them as individuals. A title that had occurred to me for this study was "The Anonymous Law-makers." They have been

xiii Preface law-makers, and they have made "political" decisions, and they should not be shielded from the public view. In the cases that were decided by the court, the judges wrote their reasons for reaching the particular conclusions. Thus an in-depth critical analysis of the reasons for judgment in various cases has been undertaken. The voices of the judges themselves have been examined through the medium of their written judgments. In addition to the cases, any other writings, and copies of speeches that they gave have been studied. Contrary to a popular opinion within the legal profession that the reasons for judgment are barren, it has been found that there has been a wealth of thoughts articulated by the members of the court over the years. The reasons for judgment in the cases that have been reviewed have been distilled in the hope that their essence can be found. The cases that will be examined will be a selection from the thousands that have been heard by the court from 1876 to the end of 1989. Those selected have been the ones in which the issue of the judicial function became crucial, and was dealt with by the judges. Also included have been several high-profile cases of public interest in which the judges' contribution to the solution of a social problem could be analysed. Although many more cases might have been reviewed, it was not considered that further cases would add significantly to an understanding of the legal process. In the cases that have been studied, history knocked at the door of the court and the judges' response became part of the life of the country. In the cases that came before the court over the years, the judges were faced with the task of making choices. There were always choices, and therein lies the crux of the study. The question must be asked as to why a particular choice was made. The answers to that question may often be indecisive, but the question remains vital. There will be a limited use of statistics, and I would like to acknowledge that the completion of the collection of data concerning each case and motion heard by the court throughout its history was made possible by a grant from the Social Sciences and Humanities Research Council. Whenever statistics are used they will be descriptive statistics, which are like the child in the fairy tale concerning the emperor's new clothes - they are simple, sometimes naive, but they do not lie. This book is about the intellectual life of the law as it revolved around the Supreme Court of Canada, through a critical analysis of cases and other writings, coupled with a study of the judges who sat on the court, and the issue of the abolition of the appeal to the Privy Council. The notion of "captivity" and the life of the court will be critically examined throughout the 115 years that it has existed.

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PART A The Establishment of the Court

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1 Attempts

On 16 November 1875 at a time that had been kept secret, the burial of Joseph Guibord, a printer, took place in Cote-des-Neiges cemetery in Montreal. The ceremony was simple, with only a prayer being said by some of those present.1 However the burial was far from being a simple matter. Although Guibord had not been of a high social status, his burial was attended by the mayor of Montreal and representatives of the judiciary. It was under the control of the army, with more than a thousand troops present, and at the end of the brief ceremony the military filled the grave with cement mixed with pieces of iron, and placed a large flat rock on top. Two months earlier on 17 September 1875 the law that created the Supreme Court of Canada had been proclaimed into force. It had taken over eight years following Confederation to create a national appeal court to sit at the apex of Canada's legal system; without the death and subsequent controversy over the burial of Joseph Guibord, it might not have happened even when it did, and it can only be a matter of considerable speculation as to when the highest court in Canada would have been brought into existence. THE ROAD TO CONFEDERATION had begun with the meeting at Charlottetown in September 1864, as had the road to the establishment of the Supreme Court of Canada. At the conference that was held in Quebec City in October 1864 following the initial meeting at Charlottetown, provision was made for the creation of the court as coming within the legislative power of the new dominion Parliament. The authority to create the court was to be found listed with matters that would be expected to receive immediate attention by the dominion, such as the postal service, the militia, currency and coinage, banking, naturalization, and criminal law.2 This positioning of the legislative power to create the appeal court could be contrasted with the separate resolution that provided for the creation of courts by Ottawa that would administer dominion law only.3 The implication was that the

4 Attempts establishment of the "General Court of Appeal" was a necessary and immediate matter of concern, while a court system for dominion law could wait because of the continued existence of the provincial court systems. In the debates on Confederation held in the Parliament of United Canada in 1865,4 John A. Macdonald, attorney general west, moved the adoption of the resolutions that would create the new Confederation of Canada, and he dealt with the power that was proposed to be given to the new central Parliament to establish a national court of appeal. He pointed out that such an appeal court could have been created at any time during the quarter of a century since the union of the Canadas in 1840, but it never had been. The separateness of Upper and Lower Canada, renamed Canada West and Canada East in 1840, had remained. In this reminder of past inaction lay a foreboding of problems to come for the creation of the new national court. To the extent that Confederation was nation-building, it would seem to have been self-evident that the new nation would require a court of appeal at the top of its legal hierarchy, which due to the proposed federal nature of the country would have had an element of some urgency to it. Some sort of arbiter would be needed for dominion-provincial disputes, and the experience of the United States was there to inform Canadians, and to point to the use of the judiciary in such matters. The subject of a national appeal court did not generate much interest in the Confederation Debates, but what little comment did occur was significantly pointed. With the exception of a single question that was asked in the Legislative Council5 by a member from Canada West, later to be Ontario, all other comments were made in the legislative Assembly and were put forward by members from Canada East, later to be the province of Quebec. The question that was asked in the Legislative Council indicated a concern in Canada West about the existence of its legal system: would the proposed court replace the existing appellate courts in the provinces? The only reply given by the government spokesman in the Council, the Commissioner of Crown Lands, was the somewhat ominous statement that the provision did not say that the court "shall" be established, but simply that the legislature would have the power to create it. He then volunteered the personal opinion that he supposed the new court would be in addition to the existing courts.6 Either this point had not been thought out by the government, which would have been a matter of some surprise, or difficulties already existed concerning the court. The problematic nature of the power to create the national court was clearly displayed by the language of John A. Macdonald when he said: "The Constitution does not provide that such a court shall be established. There are many arguments for and against the establishment of such a court. But it was thought wise and expedient to put into the Constitution a power to the General Legislature, that, if after full consideration they think it advisable to

5 The Captive Court establish a General Court of Appeal from all the Superior Courts of all the provinces, they may do so."7 The considerable hesitancy with respect to the court was unmistakable, despite the fact that it was an essential element of nationhood, whose establishment was made more urgent by the adoption of a federal system. Problems were bound to be created if Macdonald's positioning of his mention of the court in his speech was any indication of his thinking on the subject. He had just commented that, although the creation of a legislative union was not practical, yet the first act after Confederation should be to unify the laws of the common-law provinces; he then moved to the subject of the general court of appeal. There was a specific provision in the constitution that provided for the unification of the laws of the common-law provinces, but the autonomy of those provinces was protected by the requirement that each had to give their express approval, and importantly Quebec was expressly excluded altogether from the move to uniformity." The general court of appeal with its enormous unifying potential for law had none of these limitations attached. With this spectre of unification before them, it was of little wonder that the members of the Assembly from Quebec voiced their concern, and in particular their concern about the application of English law to cases where the civil law of Quebec should be applied. The civil law was referred to as "a sacred legacy."9 The point was raised that Quebec cases should not be made part of the jurisdiction of the new court, in keeping with the same spirit that had exempted Quebec from the specific uniformity provision. The creation of the court projected a national image that was unacceptable to French-Canadian Quebeckers, and was seen as a threat to Quebec's nationalistic notions. The court could be viewed as an integral part of the desire for a legislative union, an idea that was unacceptable to Quebec.10 An interesting reference to the appeal to the Privy Council was made by Conservative Joseph Cauchon, who accepted it as a political necessity, imposed rather than requested, thus implying that the Supreme Court was not viewed in the same manner. The judges who sat on the Judicial Committee of the Privy Council were said to be very capable and versed in Roman law upon which Quebec's civil code was based, which naturally suggested a corresponding deficiency in the common-law lawyers of Canada.11 George-Htienne Cartier, the attorney general east, responded to the objections voiced by the members from his province with the assurance that the creation of the court was to be delayed until some future time. He projected an ideal picture of the court: it was to be able to deal with the law of all provinces, including Quebec, because, in his words "it will necessarily be composed of the most eminent judges in the different provinces, of the jurists whose reputation stands highest, of men, in short, profoundly skilled in the jurisprudence of each of the provinces which they will respectively represent."12 There was a sense of the impossible surrounding the expression of

6 Attempts such idealistic expectations, but the rhetoric was abandoned when Cartier suggested that the judges on the court would be influenced by those who were from the province in which the case originated. He also relied on the view that the rules of equity in English law were based on Roman law, as was the civil law of Quebec. A further point mentioned by Cartier to calm the concern of members from French Canada was that the appeal to the Privy Council would still exist, and its continued existence was part of the spirit of the Quebec conference. This point, however, was not seen by some as being an altogether positive fact. Henri Taschereau, a Conservative member from Canada East, and a future judge of the Supreme Court,13 maintained that retaining the appeal to the Privy Council would simply create another means of delay and would increase the costs for a litigant. At this time a common complaint was that there were too many appeal courts, particularly in French Canada.14 Objections to the creation of the court were also raised from the Liberal side of the House. There was no mistaking the opinion of Antoine Dorion, leader of the Parti rouge, when he rejected the creation of the court for the simple but profound reason that it would not be able to protect the interests of Lower Canada. Les Rouges were in favour of autonomy for French Canada, and had opposed Confederation since it was seen as a centralizing step that would ultimately lead to annihilation of the French in Canada.15 BY THE TIME that the British North America Act, 186716 became law, the provision authorizing the establishment of a general court of appeal had undergone a change. No longer was it included in the basic list of legislative powers granted to the new dominion, but rather it appeared in a special section, and was linked with the provision authorizing the establishment of additional courts for dominion law.17 Social forces were at work prior to Confederation affecting the existence of the court. Seen as an agency for legal uniformity within the country its creation was relegated to a special separate provision, as was the requirement that expressly provided for the uniformity of law for the common-law provinces. Thoughts of a legislative union — termed the "Macdonaldian constitution" in later years - were under attack, and the court, seen as part of that notion, had been affected. The hesitation that surrounded the establishment of the court was manifested in the fact that it was almost two years after Confederation before the first bill to establish the court was introduced in Parliament. The prime minister, John A. Macdonald, had engaged Samuel Henry Strong of the Ontario Chancery Court to draft the bill that would be introduced. It has been said that Strong was a friend and adviser of Macdonald;18 the arrangement was confidential and Strong consulted with no one.19 Throughout 1868, it seems as if the creation of the court was in its "consideration" stage.20 Strong wrote to Macdonald at the end of the>year that he had made a good deal of progress with his work.

7 The Captive Court Finally on 18 May 1869 Macdonald gave notice in the House that he would bring in a bill to create the court in a few days. On 21 May, the bill to establish a Supreme Court for Canada was introduced. The court was, in Macdonald's words, to be similar to the Supreme Court of the United States. He acknowledged but did not name the "very able jurisconsult" who had assisted in the drafting of the bill. The continuing pre-Confederation hesitancy and caution about the creation of the court was aptly shown by his comment that the bill would not be pressed unduly and that the government would be guided by the feeling of the House as to whether they would do other than submit it at that time. Nothing more was heard of this bill in the legislature and Macdonald later said, when he introduced a second bill in March of 1870, that this earlier attempt had been "more for the purpose of suggestion and consideration, than for a final measure."21 Although the existence of a national court of appeal, at least as a symbol of a nation and its legal system — "the crown of the whole edifice," as one historian put it22 might have been expected to have achieved a high level of priority in the new confederation, at this time the opposing forces were proving to be too strong. The court that was proposed in the initial bill of 1869 was to have been made up of seven judges - a chief justice and six associate judges. A quorum was to consist of four judges. It was to be "a general court of appeal," and was to hear appeals from provincial courts that concerned questions of provincial law. Although the court was said to have been patterned on the United States Supreme Court, there was a very major difference between them. The American court was not a general court of appeal and it did not possess jurisdiction over the laws of the various states per se; it dealt with the law of the central authority. The most important element in the legislation that had created the Supreme Court of the United States in 1789 was that a system of courts for federal matters had been brought into being, with the Supreme Court at its apex.23 It has been said that the American court had a significant nationalizing impact in the early years of the independent colonies,24 and that consequently that tendency would have been overwhelming had it been able to hear appeals on matters of state law, as was to be the case with the Supreme Court of Canada. A sense of unreality surrounds the 1869 bill that surely must have condemned it to failure. The most significant aspect of the proposed court was its original jurisdiction. The judges of the court were to sit in Toronto, Quebec City, Halifax, and Fredericton in panels of two, for certain cases, and singly for others.25 The original jurisdiction of the Supreme Court in the United States had been based on matters of federal jurisdiction and what was called "diversity of citizenship," as when citizens of two states were involved in a case being litigated in the state of one of the parties. In Macdonald's bill, the original jurisdiction of the proposed court consisted of several parts: there was exclusive jurisdiction over cases in which the constitutionality of a provincial law was challenged,26 those in which the revenue laws of Ottawa

8 Attempts were applicable, those in which a party was the British government, a British colonial government, a provincial government, a foreign government, or a consul of a foreign state, and those that involved dominion law that had been enacted to carry out the terms of an Imperial treaty. As a blanket measure, it also had jurisdiction over those cases in which the dominion law to be applied had been specified as coming within the exclusive jurisdiction of the court.27 There was to be both exclusive original jurisdiction to issue the write of habeas corpus ad subjiciendum in extradition cases,28 and exclusive jurisdiction in admiralty law.29 On top of this, the court was to have a concurrent and original jurisdiction in civil cases when the parties were from different provinces, or when one was from outside Canada.30 Thus the American idea of diversity of citizenship appeared, by which a party would have a choice of courts — federal or provincial. A federal court system was to have been established, which included federal law enacted to fulfil the obligations of a treaty.31 At this time Canada had no external political presence of its own. Internationally the Empire was a unity, administered out of London, and treaties with foreign countries would be made there. Section 132 of the British North America Act gave Ottawa legislative jurisdiction to enact legislation to carry out the terms of any Imperial treaty, thus potentially taking legislative jurisdiction away from the provinces, in the event that the subject-matter of the particular treaty involved matters within provincial constitutional authority. By the proposed legislation Macdonald had combined two thoughts — a general court of appeal on a national level, and an additional court for the administration of the laws of Canada. A resemblance to the American Supreme Court could be seen, but the bill went much further and provided that a single judge of the court would sit in the capitals of the various provinces to deal with matters involving purely provincial law and the administration of justice within the province, such as the "trial of all issues of facts in actions on the common law side of the ... Court," the "hearing of causes in suits on the equity side of the ... Court," and in Quebec the judge was to exercise the jurisdiction of a single judge of the Superior Court.32 Not only was a judicial system for matters within the constitutional authority of Ottawa being created, but also a system that could replace the existing provincial superior courts at the trial level. When it is recalled that only seven judges were to be appointed to the court, the potential workload would have been astounding. There was still more. In addition to the original jurisdiction there was also the expected appellate function. It was wide in scope. An appeal was allowed from the cases heard by the Supreme Court judges exercising original jurisdiction, as well as from all superior courts in the provinces, not only from the highest courts.33 The provincial courts of appeal would potentially be

9 The Captive Court eliminated. There were no limits placed on the cases that could be appealed to the new court, and an appeal could be launched at any time within two years from the decision having been rendered in a lower court.34 Provision was also made for a "Special Case on Constitutional Matters."35 Under this authority the federal government could ask the judges to give opinions on the constitutionality of any provincial statute. The image of the court was thereby unquestionably projected as an instrument of the federal government to be used in the control of provincial law. The federal government could use its power to disallow a provincial law if it was found by the court to have infringed the provisions of the constitution. Again dominion law was not to be questioned. Copies of this astonishing 1869 bill were sent to judges throughout Canada for their opinions. It was of little wonder that the most common criticism was the existence of the original jurisdiction.36 In the opinions that were received from several judges, only that of Chief Justice Ritchie of New Brunswick stands out. He produced a monograph of twenty-four pages, which he presented before the members of the legal profession in Fredericton. He foresaw in the proposed jurisdiction of the new court the destruction of the provincial courts, which he could not accept. For him the court should be a final court of appeal that would deal only with important cases, and that would be composed of judges from provincial superior courts who would have experience, knowledge, and talent recognized to be greater than the remaining judges of the provincial courts. With respect to an appeal to the Privy Council, with which the 1869 bill did not deal, Ritchie proposed that only "very exceptional cases" should proceed to London. He commented: "Does it not sound very like a reproach to our Dominion to say that there is not sufficient legal talent within its boundaries to decide finally the legal rights of the parties in all ordinary suits? Does it not ignore the principle so largely conceded, that we are fit for Local self Government."37 In such a lengthy and complete expos^ of the question, it was not unnatural to see Ritchie turn to the issue of the judicial function and that of the nature of the law itself. He viewed the "great fundamental principles of law" as being unchangeable. He wrote "jus dicere et non jus dare, is the maxim of Judges," (the law is to be declared and not to be made). The judge's task was to interpret the law. The judicial power for Ritchie was the "power to determine and declare what is the law of the land."38 As to what Ritchie actually understood by the words "declare" and "interpret," we do not know. It is doubtful how serious Macdonald was with respect to the 1869 bill. Was it merely some sort of bargaining device? It was without question an overkill - a gigantic overkill. To the extent that it was Henry Strong's responsibility, Strong's judgment must be questioned. The original jurisdiction had to go, but Macdonald considered it to be the backbone of the new court. If it was to be merely an appellate court, then

10 Attempts Macdonald saw the need only for a small body of judges, not for the seven that were proposed.39 If there was to be a very limited constitutional role for the court and the appellate jurisdiction was to be considered as somewhat minor, and since the original jurisdiction, the key part of his plan, had been rejected, there was no hurry to reintroduce a measure to establish the court. There thus seemed to be no compelling need for it to exist as far as Macdonald and his party were concerned. A second bill was finally introduced on 18 March 1870 and it differed significantly from the 1869 bill. The second bill that was introduced was actually the third bill that had been created. As Macdonald noted in the House, copies of an earlier bill had been erroneously distributed.40 The bill that had been made public by mistake, was fairly similar to the bill of 1869, with the following variations: the admiralty jurisdiction had been removed; the timelimit for an appeal had been shortened from two years to six months; a monetary limit of $500 had been added, with certain exceptions and under special circumstances, and most important, of the original jurisdiction only revenue cases remained and habeas corpus in extradition cases had been changed from exclusive to a concurrent jurisdiction. All other concurrent areas were eliminated. An attempt had been made to retain the wide appellate jurisdiction but that had also disappeared with the 1870 bill. Appeals from courts of original jurisdiction were retained, but the consent of the parties was needed. Timelimits for appeals were omitted and replaced with notice requirements.41 The monetary limit was eliminated. An interesting addition consisted of provisions to regulate the appeal to the Privy Council. Sections 40 and 43 read: If any final judgment of the Supreme Court be given for, or in respect of any sum or matter at issue of or above the amount of value of five hundred pounds sterling, or if such judgment involves directly or indirectly, any claim, demand, or question to, or respecting property or any civil right, amounting to, or above the value of five hundred pounds sterling, any party feeling aggrieved by such judgment, may within fourteen days next after it is given, apply to the Supreme Court by motion or petition, for leave to appeal therefrom to Her Majesty in Her Privy Council. Nothing in this Act shail extend or be construed to extend to take away or abridge the undoubted right of Her Majesty, upon the humble petition at any time of any party feeling aggrieved by any judgment of the Supreme Court, in any case in which it may appear to Her Majesty that some constitutional question, or some matter of great public interest, or some right, the value of which cannot be estimated in money, is involved, or in which for any other reason Her Majesty may be so advised, to admit the appeal of such party therefrom, upon such terms, securities, limitations, restrictions and regulations as Her Majesty may think fit, or to reverse, correct, or vary such judgment as to Her Majesty may seem meet; but except in cases where an

11 The Captive Court appeal is allowed by this section, or the three sections next preceding it, the judgment of the Supreme Court shall be final and conclusive. In addition, for criminal appeals, section 46 stated bluntly: "The judgment of the Supreme Court, in such cases, shall be final and conclusive." While Macdonald supported the appeal to the Privy Council in the discussion of the bill in the House, it was clear from the proposed legislation that his support extended only to allowing a person the right of going to the foot of the throne to request justice, even though in fact the chance of being heard was to be rare, as when constitutional issues and matters of great public interest were involved. The appeal was to be a symbol of the British Empire, and a tie to the Crown. Although this second bill had gone a considerable way to eliminate the objections that had arisen with respect to the first attempt, it was withdrawn in the end, ostensibly for the reason that the session was too far advanced for it to be pressed.42 However, the real reason was apparently pressure exerted by the members of Parliament from Quebec in Macdonald's party, based on the fact that Quebec was governed by civil law, and the rest of Canada by the common law of England.43 At the time the Liberal-Conservative party of Macdonald44 was dependant on Quebec support. The Liberal party was based in Ontario. Macdonald never again introduced a measure to create the court. The future existence of the court would be affected by the difficulty that had been encountered in establishing it; its creation was controversial and the notion of controversy would attach to its future existence. The very existence of the 1869 bill would have identified the court with the highly centralized "Macdonaldian constitution," which had components that contained a real potential for the creation of a unitary state. The 1869 measure was unreal and would have served to create nightmarish images for many. An interesting provision that had appeared in the 1870 bill was the requirement that no judgment of a court appealed from would be affirmed or reversed without the concurrence of at least four judges of the Supreme Court, unless an appeal was taken to the Privy Council and there was consent of the parties.45 This unusual rule was obviously a response to those critics of the 1869 bill, who had seen the judges of the proposed Supreme Court as of equal ability to the judges of the provincial appellate courts. This attitude would result in heads being counted. Such a viewpoint had appeared in a stark form in a letter to Macdonald from J.G. Spragge of the Ontario Court of Chancery. He wrote that the chancellor of Ontario felt strongly that the judgments of the provincial courts should not be overruled except when a larger number of the judges of the new court concurred in the overruling than the number of judges in the provincial court who had concurred in that judgment/"1 Chief Justice Meredith of the Quebec Superior Court had

12 Attempts also engaged in the problem of counting judicial heads at the end of litigation.47 This attitude of equal respect for the judges of the provincial courts of appeal and those of the Supreme Court created an enormous problem for the new court.48 If, as might be assumed, the highest appeal court in the province was composed of the best judges that were to be found in that province, then, since the judges of the Supreme Court could not be any better than the judges on the provincial courts, the only way in which to justify an appeal would be by greater numbers, that is, by more judges on the bench hearing the appeal. But, as the proposed court was not larger than some of the provincial courts and since there would be seven judges on the bench hearing appeals from at least four provinces, there could not be more than three judges from each province on the court. Only two judges would be trained in Quebec's legal system, with the result that it would be viewed as an appeal from five very capable judges on the Court of Queen's Bench to two very capable judges on the Supreme Court. As the other provinces would experience a feeling of independence, the same numbers' game would apply to them. It seemed an insoluble situation. The insertion of the provision mentioned above in the 1870 bill was an attempt to solve this problem. The respect afforded the various provincial courts by the members of their bar was being felt. Provincial autonomy was asserting itself. Ritchie's suggestion in his 1869 monograph that the best judges from the provincial courts be appointed to the Supreme Court would have gone a long way towards dissipating the problem. That it was not adopted was perhaps a result of difficulty in obtaining judges for the new court. If the best judges on the provincial courts did not want to go to Ottawa, then there was no way out of the problem. Without adopting Ritchie's proposal, the result would be that unless the Supreme Court bench was increased in size, thereby justifying an appeal based on more judges hearing the case than had heard it in the court below, there would be difficulties. The only other possibility lay in giving the new court a function other than that of a general court of appeal. If only certain cases were to be allowed to go to Ottawa, then the appeal might at least be partially justified. William Young, chief justice of Nova Scotia, had recommended a monetary limit on the cases, and Chief Justice Ritchie of New Brunswick was in favour of limiting appeals either as to amount or principle involved. In response a monetary limit of $500 had been included in the bill of 1870 that had been erroneously circulated, but it did not appear in the bill that was actually introduced that same year.49 The years 1871 and 1872 passed with Macdonald making no further move to create the court.50 In the House of Commons in 1872, Dorion, the leader of the Quebec wing of the Liberal party, expressed regret that the court would not be created since such a court would do away with the necessity of the appeal to the Privy Council, which was creating suffering for litigants in

13 The Captive Court that province primarily because of the expense involved. At the time, appeals from French Canada amounted to 80 per cent of the reported appeals that had been taken to the Privy Council from 1825 to 1872 from British North America. A survey of the appeals based on the names of the parties indicates that they were taken by predominantly English-speaking litigants. In 1873 the creation of the court again occupied the attention of the government,51 and in the Speech from the Throne in October of 1873, it was said that a bill would be forthcoming. However, before any legislation could be introduced, public knowledge of the "Pacific Scandal" broke upon the Macdonald government and it resigned in November 1873." Six years in the life of confederated Canada had passed, and all the initial attempts to create the Supreme Court of Canada had failed. The problem now passed to the new Liberal government of Alexander Mackenzie. Following the fall of the Macdonald government, the Liberals under Mackenzie quickly called a general election for early 1874, which they won decisively. In their first Speech from the Throne on 27 March 1874, it was indicated that a bill would be introduced to create the court, but again nothing happened. A year later, in February 1875, the Speech from the Throne again announced the proposal to deal with the court, and this time a specific justification for the court had apparently been found: its necessity had become more and more apparent in the settlement of constitutional questions. At the time of the early attempts to create the court, with the exception of the comments of Chief Justice Ritchie of New Brunswick, no distinct thought with respect to the role of a final appeal court surfaced. While Ritchie saw only important issues going to such an institution, the current opinion within the legal system seemed to be that such a court was just to be the occasion for another hearing before another group of judges. With respect to the nature of the judicial process, again only Ritchie articulated a concern and his position was that judges declare the law and do not make it. What he understood by "declaring" the law and "making" the law was not elaborated upon but must have been conditioned by his belief that there were fundamental legal principles that had a timeless quality to them. The early inability to create the court did indicate that the life of the new court, once created, would not be easy. As far as the creation of the court was concerned, the story of the burial of Joseph Guibord, who had died in 1869, was nearing a crucial stage.

2 The Creation of the Supreme Court

The bill to establish the court that was introduced on 23 February 1875 by Telesphore Fournier the Liberal minister of justice, was similar to the 1870 bill introduced by the Macdonald government. The changes that had been made to the original 1869 bill had been drastic, but were necessary and were apparently considered adequate. Opposition from Conservative members of Parliament from Quebec had prevented John A. Macdonald from establishing the court,1 and in 1874, the Liberal party under Mackenzie had faced the same problem with its members from Quebec.2 When success was finally achieved in 1875, it meant that, for the moment at least, Quebec opposition had been sufficiently muted. Something had happened. Significantly, when Fournier introduced the bill that would finally become law, he began by mentioning the concern with the jurisdiction of the court over "local laws," that is, provincial law, which had been the key problem as far as Quebec was concerned. In spite of the previous opposition from Quebec, the Liberals had decided that jurisdiction over provincial law should be possessed by the court. However, a number of changes from the earlier bill were aimed directly at the Quebec concerns. As a general rule, no appeal from Quebec was to be heard if less than $2,000 was in dispute.3 There was no monetary limit created with respect to cases from the other provinces. The standard measure of the importance of a case at the time was the amount of money involved in the dispute. The creation of a monetary limit meant that it was intended that only fairly important cases would proceed to the higher court; the $2,000 limit was high, and by today's standard would amount to approximately $40,000. For the common-law provinces, the court would potentially have to deal with any case that a litigant wished to take to it. The high amount of money attached to cases from Quebec would probably have meant that commercial cases would be those most likely to go to the new court; such cases were in the main governed by English law, and involved English-speaking Quebeckers.

15 The Captive Court A second change for Quebec occurred when a provision was added by amendment during the debate in Parliament specifying that at least two of the judges of the court must be selected from the Quebec bar. Since the total number of judges had been reduced from seven to six in the Liberal bill, this meant that Quebec was to be guaranteed a third of the justices of the court.4 The objection to the court's original jurisdiction in the earlier bill was to be overcome by the creation of two courts, the Supreme Court of Canada and the Exchequer Court.5 This was, of course, a cosmetic change at the time, since the two courts were to be comprised of the same judges. When exercising original jurisdiction, they were to be the "Exchequer Court," and when exercising the appellate jurisdiction, the judges were to be the "Supreme Court of Canada." The original jurisdiction covered revenue cases, hence the adoption of the name "Exchequer" for the new court. In the United States, the establishment of a system of federal courts had been highly significant and was deemed necessary for fear of the assertion of power by any particular state against Washington through the use of its courts. In Canada, that concern had not been heard up to this time, but the thought was planted by Fournier when he justified the existence of the new courts on the basis that the federal government might need an institution of its own in order to secure the due execution of its laws, since it might not always be safe for the federal government to be at the mercy of the tribunals of the provinces. This declaration of a lack of trust appears to have been nothing more than a rationalization for the creation of the court. As long as the appeal to the Judicial Committee of the Privy Council existed, there was at least the appearance of a "national" court sitting in London, but feelings in Quebec had distinctly cooled towards the Judicial Committee because of the Guibord case. If any single event might be said to have allowed the creation of the Supreme Court in March of 1875 after years of failure, it was the death of Joseph Guibord in the city of Montreal in 1869. THE G U I B O R D CASE The issue that arose in Brown v. Les Cure et Marguilliers de I'Oeuvre et Fabrique de Notre Dame de Montreal^ otherwise known as the Guibord case, was whether Henriette Brown, the widow of Joseph Guibord, could force the Roman Catholic church to bury her husband's body in consecrated ground in the local Catholic cemetery, which was the Cote-des-Neiges cemetery in Montreal.6 The controversial aspect of the case that propelled it into public view was the involvement of the Institut canadien. The Institut had been formed in 1844 in Montreal to be a literary and scientific society whose members would hear lectures on various topics and discuss matters of interest to them.7 At the time of its formation there was no French language university in Montreal.

16 The Creation of the Supreme Court By 1857 it was said to have 700 members. Over time the membership of the Imtitut became identified with liberals who advocated free speech and thought - members of the Parti rouge, a radical political party founded by Papineau following his return from exile. The Parti rouge was later identified as the Quebec wing of the Liberal party. Significantly, the Institut and the Parti rouge supported the idea of the separation of church and state. The controversy surrounding the Institut was ignited in 1858 when Bishop Bourget, the bishop of Montreal, issued pastoral letters warning of certain writings available within the community, which he maintained were contrary to faith and morals. The Institut responded to the pastoral letters by convening a meeting at which a majority of the members decided that it would judge the morality of its library for itself.8 Bishop Bourget was completely committed to the ultramontane movement, which was highly authoritarian and dedicated to the idea of the unity of church and state, with the church in the position of supremacy over the state. In Quebec the movement acquired a nationalistic tone that linked the unity of the faith and the French language. Generally, the movement was highly reactionary when confronted with the new ideas that appeared during the nineteenth century. The revolutionary outbreaks in Europe in the middle of the century and the attack on Rome by Italian revolutionaries that forced the pope to flee the city, solidified the reactions and amplified the belief in the authority of the pope. This ultimately resulted in 1870 in the acceptance of papal infallibility and the complete victory of ultramontanism within the church at the first Vatican Council. The rejection by the Institut of the authority of the bishop to act as a censor caused him to use the authority of the church to condemn it and the Liberal party in another pastoral letter. One of the means he employed to attempt to destroy the Institut was to require the denial of the sacraments of the church to its members. In the face of this attack, the membership, which had been at 700 prior to the pastoral letters, declined to 450 in 1861, then to 300 by 1867. When Les Rouges supported the Italian revolutionaries at the same time as French Canadians were being recruited and sent to Rome to fight for the church, Bishop Bourget issued decrees from Rome in the summer of 1869 that condemned the Institut and its annual publication, which consisted of a collection of various articles. The 1868 publication was put on the Index. It contained articles on free thought and annexation with the United States. Later, a pastoral letter from Bishop Bourget forbad membership in the Institut on pain of being deprived of the sacraments — "meme a 1'article de la mort." In the midst of this dispute on 18 November 1869 Joseph Guibord died. He had been an original member of the Institut. Because he had not renounced his membership in the Institut, the church refused to bury his body in consecrated ground but did agree to inter it in unconsecrated ground in

17 The Captive Court the cemetery. His widow refused and sought a writ of mandamus to compel the church to bury her husband in the consecrated area. While the litigation was under way, the body was placed in a vault in the protestant Mont-Royal Cemetery in Montreal. Judge Charles Mondelet of the Superior Court ordered the writ of mandamus to issue, but this decision was reversed by three judges of the Court of Review. Their decision was affirmed unanimously by five judges of the Court of Queen's Bench. From this decision of Quebec's highest appellate court, an appeal was launched to the Judicial Committee of the Privy Council in England. Before the case could be heard by the Privy Council, Guibord's widow, Henriette Brown, died, but the Institut canadien as universal legatee was granted leave to continue the appeal. The Privy Council recognized the importance of the case by using the unusually high number of six judges to hear the appeal (a bench of three judges was usual). Judgment was rendered on 21 November 1874, almost five years to the day after Joseph Guibord's death.9 The Privy Council held that the writ of mandamus could issue since Guibord had not been under any ecclesiastical censure to deny burial of his body according to normal rites and in the usual part of the cemetery. The Privy Council also held that the church was subject to the ordinary courts. An adverse public reaction to the decision resulted in a crowd turning back the funeral procession at the gates of the cemetery. When two months later on 16 November 1875 the body was finally laid to rest, the burial was under the control of the army, which used more than a thousand troops. To avoid any possible disturbance of the grave, it was filled with iron and cement and a large flat rock was placed on top. Following the failure of the first attempt at burial, the bishop had urged calm on the part of the people. He promised them that the grave would be separate from consecrated ground. Although it is unclear what actually took place, it appears that the bishop had the ground within which Guibord's grave was situated de-consecrated. In a lengthy, three-part article entitled "Church and State," D&ire" Girouard, who later became a Conservative member of Parliament, and even later a judge of the Supreme Court of Canada,10 supported the view that the church should be left alone by the state and subject only to constituted authorities in spiritual matters. He added the following comment, which summed up the attitude of Canadians with respect to the strong influence of religion on the society: "The European who breathes in an atmosphere impregnated with the poison of socialism, may be astonished by such a phenomenon, but to the Canadian who has escaped the influence of modern philosophism, this state of things appears quite natural, most wise and salutary."11 The Institut canadien faded away. By 1875, there were only 175 remaining members, half of whom were English-speaking. Even Rudolphe Laflamme, a

18 The Creation of the Supreme Court

leading member of the Parti rouge and a lawyer for the Institut in the Guibord case, resigned in 1874. The Guibord case was not far from the minds of the members of Parliament when they debated the creation of the court.12 For many French Canadians, it may have been opposition to the Privy Council that swung them over to support the legislation, rather than enthusiasm for the Supreme Court of Canada. THE JUDICIAL CRISIS IN QUEBEC, 1873-1874 In addition to being affected by the Guibord case, the Quebec members of Parliament were no doubt, also influenced at the end of 1873 by the revolt of the members of the Montreal bar against the Court of Queen's Bench, Quebec's highest court of appeal.13 At a meeting of the bar on 16 December 1873, the following resolution was passed: "Resolved, That the administration of justice in the Court of Queen's Bench has been, for some years past, inefficient, unsatisfactory and destructive of the confidence which should be reposed in the highest Court of the Province; and that, in the interests of justice, an immediate enquiry by Royal Commission into the causes of such a lamentable state of affairs is imperatively required." In addition, the following motion was made and adopted: "That in view of the foregoing resolution, the Bar of this section abstain from pleading before the Court of Queen's Bench during the present term, and that the Chairman of this meeting do communicate this and the foregoing resolution to the said honourable Court." This motion was made on the ground that since an investigation in the form of a royal commission had been requested, it would be inappropriate for the members of the bar to appear before the court. The complaints articulated at the meeting of the bar were numerous. The meeting began with the information that in that morning twenty-seven reserved judgments had been discharged without explanation because there were not enough judges available. A backlog of cases had apparently slowed the process, which resulted in hardship to litigants. In addition, some of the judges were displaying a brusqueness and lack of courtesy to the lawyers. Swirling in the background was the complaint that the appointments of judges were made as rewards for political service, and not for professional reasons. The result was that there was a loss of confidence in their decisions. It was alleged that one particular judge had been in poor physical health and was frequently absent, which contributed to the backlog of cases. Another judge was said to be deaf, although he continued to sit on the bench. The accusation was also made that partiality had been shown to certain members of the bar, and something appeared to be going on behind the scenes.

19 The Captive Court When the court opened on 18 December, the chairman of the Montreal bar attempted to present the resolutions to the court, but the judges would not accept them, and he placed them on the clerk's desk as a gesture of delivery. In a surprising move, Thomas Kennedy Ramsey, one of the judges, said that he sympathized with the lawyers, asked for a copy of the resolutions, read them, and then handed them back, saying that the method taken by the bar would not bring about the desired end. Subsequently one of the judges resigned and two were given leave of absence. Thus, by early March 1874 there was no longer a need for the members of the Montreal bar to boycott the court, since it had ceased to function, lacking enough judges for a quorum. The chief justice finally resigned, and in an attempt to remedy the situation, the highly capable Antcine-Aime* Dorion, then minister of justice in the Mackenzie government in Ottawa, was appointed chief justice. During the crisis, there had been a tendency to comment favourably on the existence of the appeal to the Privy Council, yet taking an appeal across the Atlantic was expensive, and the Privy Council was an English court. When opposition to the Privy Council developed over the Guibord decision, the existence of a court in Ottawa became more attractive - it would have at least some judges from Quebec and it would certainly be closer. Thus with extreme dissatisfaction with the quality of justice in the highest appeal court in Quebec by the powerful Montreal bar, coupled with the momentary, but highly charged reaction against the Privy Council due to the Guibord case, the moment was ripe for the creation of the Supreme Court of Canada. The situation would no doubt have been aided by the fact that the Quebec wing of the governing Liberal party was identified with the Parti rouge with its sentiments towards Canadian, or canadien, independence. DURING THE DEBATE on the bill to create the Supreme Court in 1875, there was little controversy voiced. As in the earlier attempts, members from Quebec viewed the jurisdiction over provincial law as a cause for alarm with the potential for great danger.14 Otherwise, there appeared to be no widespread objection from the members from the other provinces. One notable exception was David Mills, a Liberal from Ontario, who considered that the bill was antagonistic to the federal principle, since the court would have jurisdiction over the laws of the provinces.15 Mills had received a legal education in the United States at the University of Michigan and his view may have reflected this fact, since the Supreme Court of the United States did not have jurisdiction over matters of state law. Although he had never practised law, he was considered a scholar of constitutional law and late in life was appointed to the Supreme Court of Canada.16 Since to a large extent the thoughts associated with the Macdonaldian constitution that is, extensive

20 The Creation of the Supreme Court power to the dominion and little power to the provinces, were still dominating, any appeal to federal principles fell on deaf ears. Indeed Fournier, the minister of justice, responded by pointing out that the difference between Canada and the United States was that the provinces, unlike the states, were subordinate powers.17 Thomas Moss, a Liberal from West Toronto, voiced concern about the possible overturning of the decisions from the Ontario appellate court, a court which he thought was about as effective as was possible to attain. Such a concern revealed the potential for enormous difficulties for the new court. As a general court of appeal, its function would be to review the decisions of the lower courts, but reversal was said to be unacceptable. Moss put forward the scenario of the new Supreme Court reversing a decision of the provincial court, and the legislature of Ontario subsequently reversing the Supreme Court.18 Aemilius Irving, another Liberal from Ontario, and a bencher of the Law Society of Upper Canada, expressed concern about the continuing appeal direct from the provincial appellate courts to the Privy Council, which had been created by Imperial law, and was thus beyond the immediate control of Ottawa. If the appeals from provincial courts of appeal to the Privy Council were left untouched, he said that he "could not ... imagine a more dismal spectacle than would be afforded by six melancholy men living in this city endeavouring to catch an appeal case, which, but for this Act, would have gone to England."19 There was little in the way of controversy with the final establishment of the court in 1875 except the concern of Quebeckers for the inclusion of their law into the jurisdiction of the new national court and in the end a majority of the members of the House of Commons from Quebec did vote against the amendment that would have excluded provincial law from the jurisdiction of the court. However, what followed with respect to the "Irving Amendment" went a fair way toward making up for the previous lack of discussion.20 THE I R V I N G A M E N D M E N T In light of what was soon to transpire with regard to the appeal to the Privy Council, it is interesting to note that in 1875 the Liberals considered it advisable that no provision with respect to the appeal be put into the act when it was introduced, although Fournier did comment that he wished to see the practice of appealing to England ended. He also noted that a new court was to be created in England within the year that would deal with the appeals. Later in the debate he stated that he considered that the appeal would end with the creation of the new court in England,21 which accounted for the omission of any provision dealing with the appeal in the proposed Canadian statute when it was introduced.

21 The Captive Court The appeal to the Judicial Committee of the Privy Council had been of concern to the Quebec members of the Liberal party for some time. In 1874, Antoine Dorion, then leader of the Parti rouge, had stated that Quebec was suffering from the appeal and that one effect of the creation of the Supreme Court would be to do away with it.22 In MacdonakTs 1870 bill, the appeal to the Privy Council had been regulated by providing for a monetary limit of £500, and appeals in criminal cases had been completely cut off. The amount of £500 had been a standard figure for Privy Council appeals for some years. It amounted to $2,500, which would be roughly $50,000 today. On the first day of the debate, 23 February 1875, Sir John A. Macdonald, then leader of the opposition, had referred to the stated desire of the justice minister to have the appeal ended. Macdonald's position was clear and simple — there should be an appeal, since Canada was a dependency of Britain. Macdonald viewed the appeal to the Privy Council as much beyond the rather simple question of what courts should exist within the judicial hierarchy. He was concerned with the link between Canada and Britain, and the appeal had to be maintained as a symbol of that link. Macdonald's 1870 bill to create the court had contained a provision that would have regulated the appeal, and another that purported to abolish the appeal in criminal cases with the exception of the extraordinary exercise of the prerogative right of the Queen to take any appeal, given the appropriate circumstances. For Macdonald, the appeal was not seen as a normal part of the legal system, but as a symbol of Imperial unity. Robert Wilkes, a Liberal member for Toronto Centre, went even further than Macdonald on the question of the appeal to the Privy Council and considered that the Supreme Court should not be created, since he saw its existence as possibly leading to a break of the links with Britain.23 On 16 March Aemelius Irving gave the first indication of greater things to come. At that time he addressed himself to the question of appeals being taken directly from provincial courts to the Privy Council, a practice that he considered would result in the passing by of the proposed new Supreme Court of Canada if it were allowed to be continued. He proposed to offer an amendment that would eliminate such an appeal. He commented that the session had been dreary, and if nothing else happened, at least the proposed amendment would provide "a little dressing."24 living's promise to liven things came true to a degree that he probably never imagined. His proposal created an immediate reaction, and several members of the House rose to offer a challenge. A.L. Palmer, a Conservative from New Brunswick, considered that the dominion had no power to do away with the right of appeal from provincial courts.25 An Ontario Conservative, J.H. Cameron, maintained that the right of appeal was expressly reserved to the colonies.26 It even agitated the Liberal side of the House, when Robert Wilkes challenged the scheme on the basis of the wide principle that an inherent right of appeal to the sovereign was possessed by all British subjects.27

22 The Creation of the Supreme Court J. Langlois, a Conservative member from Quebec,28 rose and spoke in favour of the amendment and against appeals to the Privy Council in general. He stated that there was a growing feeling in Quebec against the appeals, and he mentioned the cause celebre, the Guibord ca&z. For him, the new Supreme Court was to be better than the Judicial Committee because of the lower cost involved, and the presence of at least two judges from Quebec on the court in Canada. He considered that the appeal to the Supreme Court should be made final, although he would not take away the right of appeal to the foot of the throne by the prerogative power of the sovereign, even though in his opinion such appeals had virtually fallen into disuse. However, as far as the legislative power to abolish the appeal was concerned, he thought that the dominion did not possess it, but that the provinces could act to remove the appeal to Britain. Rudolphe Laflamme, a Liberal member from Quebec, who had been a lawyer for the Institut canadien in the Guibord case, turned on the court that had upheld his side in the Guibord affair, and advanced rouge thoughts. He asserted that the Privy Council was a danger to Quebec since there were no judges from that province sitting on the committee, and its members were ignorant of Quebec law. In his opinion, Canadian judges were as good as English judges. He added that once the bill to establish the Supreme Court of Canada was passed, it would have the practical effect of abolishing appeals to the Privy Council, and after the new English Court of Appeal was established, the appeal to the Privy Council would in any case no longer exist.29 He threatened not to support his party and to oppose the bill if the appeal to the Privy Council was left intact.30 On a clause-by-clause discussion of the bill, Irving, supported by a member from Cape Breton, moved his amendment, which would have cut off appeals directly from provincial appellate courts to the Privy Council. It was lost. When, two weeks later on 30 March, the bill came on for third reading following the 6 P.M. recess, Aemelius Irving rose and moved, seconded by Laflamme, that there should be no appeal from the new Supreme Court to the Privy Council. The minister of justice, Fournier, adopted the amendment! In the last stages of the debate, the Mackenzie government had made a move to abolish the appeal to the Privy Council. Macdonald, who had been fairly quiet throughout the entire debate and was in agreement with the measure to create the court, was on his feet immediately.31 He proclaimed that for him this was the first step toward severance from Britain, and if included in the Act, it would almost certainly lead to disallowance by the British government. In Macdonald's opinion, the amendment would have no effect other than to show disrespect to Her Majesty. The brief, but spirited, debate on the Irving Amendment brought several points to the fore - points that would be heard on and off for the next sixty years.

23 The Captive Court For Macdonald and others, such a move could be taken as evidence of a growing impatience in Canada toward the connection with Britain. If the colonial link was to be spoken of as a chain, it was to him a golden chain that he was glad to wear.32 One Conservative from Quebec, A.P. Caron, took the opposite position from the one expressed earlier in the debate by Rodolphe Laflamme and asserted that in his view, the appeal protected the position of Quebec.33 Although New Brunswick Conservative A.L. Palmer favoured the abolition of the appeal, he did not think that it was legally possible for the Parliament of Canada to do so. He also raised the point that because the amendment had been proposed at the "tail-end of the discussion," it could not be given full and proper consideration.34 As did Macdonald, he foresaw the possibility of disallowance that could, in his opinion, endanger the entire bill and consequently the very existence of the Supreme Court. He suggested that a separate bill might be used if the government considered it politic to abolish the appeal. For those in favour of abolition, the main consideration was ostensibly economic in nature, probably because it would have been unthinkable to have heard declarations of Canadian independence at the time. The cost was said to be so high that the appeal was being abused by wealthy corporations and individuals. Telesphore Fournier had himself made this point.35 Alexander Mackenzie, the prime minister, entered the debate for the first time and made the point that the opponents of the amendment were exaggerating its effect. The amendment, in his opinion, would only lessen the number of appeals, and the Privy Council could still be petitioned for leave to appeal. He pointed out that at the time of the debate in 1875, Ontario and Quebec both restricted appeals to Britain based on monetary considerations.36 The Irving Amendment passed by a vote of 112—40, and thus section 47 of the bill came into being: The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her majesty in Council may be ordered to be heard: Saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal Prerogative.

The vote had split primarily along party lines - 35 Conservatives and 5 Liberals (4 from Ontario and 1 from Prince Edward Island) had voted against it, while 99 Liberals and 13 Conservatives had voted for it. Seven of the 13 Conservatives were from Quebec; none were from Ontario. It seems that, in general, Ontario was the province most sentimentally attached to the retention of the appeal. The appeal was a symbol of the Imperial connection, and of all attachments, symbols are very powerful.

24 The Creation of the Supreme Court In the Senate a motion to strike out section 47 was declared lost by the speaker after a vote of 29-29. A "party vote" was clearly involved, but the factor of region was also present.37 In light of what was to transpire following the enactment of the legislation that created the Supreme Court with regard to section 47, there is a need to examine the nature of the appeal to the Judicial Committee of the Privy Council. THE APPEAL TO THE PRIVY COUNCIL The Judicial Committee of the Privy Council as the ultimate appellate tribunal for Canada and the Empire had its origin in mediaeval times. Since the Middle Ages, the monarch was said to possess the prerogative of entertaining and disposing of applications from people who claimed relief from what were alleged to be unjust decisions of judges.38 The king or queen was thus perceived to have the supreme appellate jurisdiction within the legal system, and the image was projected of the monarch as the fountain of justice. The theory of appealing to the monarch was described as the right to be able to go to the foot of the throne to seek redress of a grievance. It was conceived to be a fundamental right of all British subjects.39 For England and other parts of the British Isles, with the victory of Parliament over the monarch, the supreme appellate authority became the king in Parliament, specifically the House of Lords. During the seventeenth century as the colonial empire in North America and the West Indies began to grow, colonists exercising their rights as British subjects began to send petitions to England complaining of decisions of their local courts and seeking a remedy. The courts in England refused to take jurisdiction when the case arose outside their territory and consequently the need arose to establish some tribunal to hear these petitions. Historically, appeals from the Channel Islands had gone to the king in council rather than the courts, and this provided a model. In 1661, the Committee of the Privy Council for the Business of Trade for the Plantations was given the task of dealing with any such petitions. This judicial appeal work was incidental to its administrative duties related to trade matters. By the end of the seventeenth century, the judicial duties were separated from the administrative duties, the committee for Trade and Plantations undertook the judicial function, while the Board of Trade was created to handle the administrative duties. This structure continued until 1833, when the judicial body was formalized by statute as "The Judicial Committee of the Privy Council."40 Before 1875, the appeal from British North America to the Privy Council was used overwhelmingly by Quebec litigants. From 1825—74, there were

25 The Captive Court 101 reported decisions of the Privy Council dealing with appeals from British North America. To 1870, they averaged 1.5 per year, while after 1870 the average jumped to 8. Of these, 78 per cent were from Quebec, 9 per cent from Ontario, 9 per cent from the Maritimes, and 4 per cent from Newfoundland. In the years 1873-74, 82 per cent of the appeals were from Quebec. There were two aspects of the appeal that were of vital importance in understanding its attraction. The appeal to the foot of the throne was viewed as a fundamental right of a British subject, the exercise of which had in fact created the Judicial Committee. The second aspect was the powerful mystique of being able to think in terms of going to the foot of the throne, of being able to imagine a source of perfect justice within society, and particularly within the legal system. With the formalization of the Judicial Committee of the Privy Council in the early part of the nineteenth century into what was in essence a court, people began to think of the appeal as consisting of two parts. There was the appeal as regulated by the law of the particular colony, by which one could go to the "court" known as the Judicial Committee of the Privy Council,41 but there was also, as an inherent right, the possibility of a petition (referred to as an appeal upon doleance)42 on special grounds when not permitted by colonial law but when it was considered that justice demanded an appeal.43 The language of section 47 illustrates the two parts of the appeal: The judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard: Saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal Prerogative. According to the language of the provision, there was to be an end of the appeal as of right to "any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard," which would have been the Judicial Committee of the Privy Council up to that time. The right to petition for special leave by use of the "Royal Prerogative" was left intact, as it had to be since a colony did not have legislative power to deal with the sovereign's power. There was also, however, a reference to "any Court of Appeal established by the Parliament of Great Britain." When Fournier had introduced the bill to establish the Supreme Court, he had referred to the fact that there was to be a new court created in Britain which would result in an end to the appeals.

26 The Creation of the Supreme Court

THE ENGLISH JUDICATURE ACTS, 1873-1875 The words in the middle of section 47 that purported to cut off appeals "to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to Her Majesty in Council may be ordered to be heard," turned out to be somewhat of an embarrassment. The court referred to did not exist at that time and never did come into being. The implication was that the members of the Parliament of Canada had been confused, and if they were confused about the courts that existed in Britain, then it might logically follow that they were also confused about the nature of the appeal to the Privy Council. In actual fact there was no misunderstanding about the nature of the appeal. Any confusion (if it can be called that) that did exist stemmed from the belief that there was to be a new court established in Britain that would take over the appeals that at the time went to the Judicial Committee of the Privy Council. The new court was, of course, the statutory court referred to in section 47. In England the system of appeals at this time was confusing, and a royal commission under the chairmanship of Lord Cairns had reported in 1869 that it should be overhauled. In particular, it was recommended that a single new appeal court should be established. In 1873 legislation was passed which was to reform the English court structure. A Supreme Court comprising a High Court and a Court of Appeal was established. The appeals to the House of Lords were to come to an end, with the exception of appeals from Ireland and Scotland. Under the new law, the Crown could refer the appeals that would have gone to the Privy Council to the new Court of Appeal, and this was the expected course. The reform measure was set to come into force on 1 November 1874. In 1874, a bill was introduced to end all appeals to the House of Lords, and to create the "Imperial Court of Appeal," but as support within Parliament for the retention of the appeal to the House of Lords grew, this later bill was suddenly dropped and the earlier 1873 reform legislation was postponed to 1 November 1875. Political forces were at work so that a further attempt to end the appellate jurisdiction of the House of Lords in 1875 also failed. This bill was withdrawn on 8 March 1875, and the bringing into force of the 1873 legislation was again postponed to November 1876. The latter action occurred at the time that the bill to create the Supreme Court was going through the Canadian Parliament and was unknown to the Canadian legislators. In the end, the appeal to the House of Lords remained, and the new Court of Appeal existed only for England; the Judicial Committee's jurisdiction remained as it had been. Lord Cairns, who had become lord chancellor in early 1874, had been given the task of completing the reform that his royal commission report had recommended in 1869, and he had failed.44

27 The Captive Court The members of the Canadian Parliament acted on the belief that a new court would be created to handle the appeals which would have gone to the Privy Council, and the wording of section 47 reflected this. When the British failed to create the court as a final court of appeal, the words used in section 47 became at best surplus, and at worst, they gave the appearance of confusion. Having passed the Canadian Parliament, the Supreme and Exchequer Court Act would now make its way to Britain for scrutiny. The thought in Canada was that the appeal to the Privy Council would come to an end, and even though the right of appeal to the foot of the throne, which engaged the royal prerogative, would still exist, it would be more symbolic than practical. Lord Cairns, the lord chancellor, would now turn his attention from court reform to section 47.

3 Section 47 and the Lord Chancellor

John A. Macdonald was not alone in his feeling that the attempt to end the appeal to the Privy Council would doom the Supreme and Exchequer Court Act when it came to be reviewed in London. Lord Dufferin, the governor general, was hesitant about assenting to the Act because of his concern about its validity while it contained section 47, but he was finally convinced by the Canadian government that the Act was within the legislative power of the dominion, and he gave his assent to it on 8 April 1875.' A copy of the Act was sent to the Colonial Office accompanied by a memorandum from Mackenzie. In the memorandum the Canadian government took the position that, since the Parliament of Canada had the authority to regulate appeals to the Privy Council, this power could be extended and the appeal abolished altogether as long as the right of a petition for special leave to appeal was retained, as it had been by the concluding words of section 47. Mackenzie went on to assert in the memorandum that since earlier colonial acts had limited the appeal and had been allowed to stand by Britain, there was therefore no reason why the Supreme and Exchequer Court Act, the product of a legislature enjoying more extensive powers than any other in the colonial Empire, should excite objection. Although the Colonial Office was not greatly concerned about the law after it had been examined, there was some question that possibly the prerogatives of the Crown had not been sufficiently protected. It was thus decided to refer the statute to the law officers. However, before the law officers had had a chance to examine it, the first note of the coming dispute was sounded when Lord Richmond, lord president of the council, conveyed to the Colonial Office his concern about the effect that the existence of section 47 would have on the judicial constitution of the Empire. The issue was on the brink of acquiring considerable political proportions relating to the Empire. It was while visiting England and Scotland in the summer of 1875 that Prime Minister Mackenzie was informed by the earl of Carnarvon, the

29 The Captive Court colonial secretary, that the law officers had come to have doubts about the validity of the legislation, and as a result disallowance might be recommended. Macdonald's dire prediction seemed on the verge of coming true. Mackenzie struck an informal agreement with Lord Carnarvon by which it was apparently decided that the Act could come into force as it was and subsequently, if the law officers persisted in maintaining their objection to the offending clause, it could be modified after consultation. When Mackenzie arrived back in Canada in August 1875, Lord Dufferin was in England on holiday and the general commanding the troops at Halifax, Sir O'Grady Haly, was administering the country. With what the Colonial Office considered as surprising and unnecessary haste, Mackenzie had the general travel to Ottawa to proclaim the Act into force, which was done on 17 September.2 Although Haly had telegraphed London to inquire as to whether there was a probability of disallowance, he proclaimed the Act before a reply was received. The speed with which Mackenzie acted on his return to Canada has been attributed to the urging of Edward Blake, who had succeeded Fournier as the minister of justice in May 1875. Although Blake had taken a minimal part in the creation of the statute, he now became its main proponent. His actual involvement with both the manner and the form of the creation of section 47 is unknown, but in all likelihood he simply inherited it. However, he was now fully committed to the enterprise and threatened to resign if the legislation was disallowed. He had put his political reputation on the line. Blake was eager and excited about the problem,3 which he may have viewed as an opportunity to demonstrate his avowed nationalistic bent. He had become identified with the Canada First movement and with a speech made in Aurora, Ontario, in October 1874, it seemed as if he had become that group's bona fide political leader. Canada First was a movement that took form in the early 1870s, and was made up of a small group of intellectuals in Ontario, who had the intention of furthering a national sentiment in Canada.4 Blake, who had been premier of Ontario briefly in 1871-72, joined the Mackenzie government in 1873 as a minister without portfolio, but he resigned early in 1874 because he felt generally uncomfortable with the route being taken by Mackenzie and his government.5 He was skyrocketed into prominence as a nationalist by the speech he gave to a gathering of Liberals held at Aurora, early in October 1874,6 in which he urged the existence of a national spirit in Canada, and made the point that Canadians were not free. The speech created a considerable stir, and projected Blake to the front of any nationalist movement. The Liberal party remained resistant, however, to the pleas of Canada First, and it was generally considered that when Blake returned to the Liberal government as minister of justice in 1875, the heart had been taken out of the movement, and it faded away into the history books. Although Blake may have envisaged that his political fortunes would

30 Section 47 and the Lord Chancellor be better served in the main Liberal party under the leadership of Alexander Mackenzie rather than at the front of Canada First and its political party, the Canadian National Association, nevertheless this "national spirit" seems to have asserted itself with the section 47 controversy. Having projected an image, it thus became important for him to maintain it. When the Colonial Office expressed its negative reaction to what it perceived as unnecessary haste on the part of the Canadian government in bringing the Act into force, Mackenzie replied that his understanding of the informal arrangement that he had made with Carnarvon was that only clause 47 was the subject of dispute, and not the establishment of the court. Mackenzie did agree, however, that the opening of the court would be delayed until after Christmas of 1875. After a period of frequent telegrams back and forth, the Colonial Office agreed on 1 October that no objection would be offered to the Act being brought into force, and the appeal clause, which was indeed the sole problem, could be amended later if it was thought necessary. The judicial functions of the court were proclaimed into force on 11 January 1876. In order to convey clearly to London the Canadian position with respect to the appeal to the Judicial Committee of the Privy Council in a formal manner, Mackenzie and Blake decided that a memorandum would be drafted by Blake and sent to Mackenzie as prime minister. Mackenzie would then forward it to the Colonial Office. In the memorandum dated 6 October 1875, Blake adopted what might be called a formal legal style in that he avoided all direct references to political factors. The points that he made were basically very simple. He stated that in the days before Confederation, the provincial legislatures had exercised the power of determining when the judgments of their courts would be treated as final. He was able to refer to the authority of a decision of the Privy Council itself by which the existence of the power to cut off appeals had been accepted.7 His next argument was that with Confederation and the enactment of the British North America Act, the dominion of Canada had been created with at least the same power as the pre-Confederation colonies, and indeed, he asserted, it had in fact been given by the Act more power of self-government, and must therefore be competent to make the judgments of its courts final in all cases. The concluding and main point taken by Blake was simply to articulate the reasoning that if the limitation of appeals was lawful through their restriction based on the amount of money involved and thus the vast majority of cases could be blocked, then surely all cases could be prohibited from being appealed to England. While R.G.W. Herbert, the permanent under-secretary in the Colonial Office, was prepared to accept the position advanced by Blake in the memorandum, the law officers had come to the conclusion that the appeal to the Privy Council had to be retained. It was in early November 1875 when Lord

31 The Captive Court Chancellor Cairns entered the scene and wrote to Carnarvon, the colonial secretary. Cairns reacted strongly against the Act, and asserted that he considered that the concluding part of section 47 ("Saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal Prerogative"), the saving clause as the queen's prerogative, was "waste paper."8 Faced with such a view, Carnarvon perceived that the debate on section 47 was escalating and the position hardening, and he thus decided to arrange a meeting between the opponents. He invited Blake to come to England to meet with Cairns. At the end of November, Lord Carnarvon, Lord Cairns, and the duke of Richmond met, and it was made clear by the lord chancellor that he wanted a new clause inserted in the Act in place of the existing provision. Richmond approved of this move. The clause put forward by Cairns read: Provided always that nothing in this Act shall extend or be construed to extend to take away or abridge the undoubted right and authority of Her Majesty, Her Heirs and Successors, upon the humble petition of any person or persons aggrieved by any Judgment, Decree, Order or Sentence of the said Supreme Court in Appeal, to admit on consideration of the particular circumstances of the case his her or their appeal to Her Majesty in Council from any Rule, Judgment, Decree, Order or Sentence, upon such terms ^and securities, limitations, restriction and regulations as Her Majesty in Council Her Heirs and Successors shall think fit.9 The language of the clause, with the use of such words as "the undoubted right and authority," shows that it was simply an attempt to make very clear the fact that the prerogative power to receive appeals was to remain intact. Significantly, the language used by Lord Cairns was the same as that contained in Macdonald's 1870 bill to establish the Supreme Court. Section 43 of the 1870 bill had read: "Nothing in this Act shall extend or be construed to extend to take away or abridge the undoubted right of Her Majesty, upon the humble petition at any time of any party feeling aggrieved by any judgment of the Supreme Court ... [basis for the exercise of the power] ... to admit the appeal of such party therefrom." In correspondence written by Herbert to Dufferin dated 6 December, the proposed clause was included, and in addition, there was an interesting postscript in which the appeal to the Privy Council from provincial courts, which would still exist, was called an anomaly and, if left untouched, the Supreme Court "will surely thus be deprived of much of the dignity & supremacy which it is the very proper desire of Yourself & of the legislature to confer upon it." It was then suggested that the appeal from the provincial courts could be abolished "if the appeal from the Supreme Court to England is adequately secured." All the Canadian government would have to do was to ask and "in consideration of the clear definition of the appeal to the Privy

32 Section 47 and the Lord Chancellor Council from the Supreme Court," the British government would probably grant the request.10 London was prepared to negotiate, and it seemed clear that the concern was with the prospect of the ending of all appeals. As an additional bargaining point, Herbert made reference to the fact that the Canadian government had requested an extension to Canadian securities of the power of investment given to British trustees that was not expressly limited, and pointed out that section 47 had generated interest among British members of Parliament. Questions would be asked when Parliament met and the last time that the issue of extending the power of investment to colonial securities had arisen, a main objection was that English courts would not have jurisdiction with respect to litigation concerning the securities. The conclusion was pointed: "How then can we expect those with whom the responsibility rests, to empower English Trustees to invest in Canadian Securities at the moment when Canada raises any doubt as to the possibility of her disconnecting herself from the Imperial Appeal Court?"11 Since Blake had staked his political reputation on the saving of the legislation that had created the Supreme Court, and with partisan politics being what they were in Canada, it must have come as an enormous blow to him and the Liberal party to be asked to adopt the language of Macdonald's provision from 1870. It would not only have been seen as an admission of error by the Liberals but also an acknowledgment that the Conservatives had been right. Blake rejected Cairn's clause. As of that time, early December, he had not yet received a reply to his memorandum of 6 October, to which he believed himself entitled. On 9 March 1876 the reply was sent. It consisted of two memoranda, one from the Privy Council Office and another from the law officers and approved by Lord Chancellor Cairns. In a covering letter Carnarvon made it clear that the problem had become a political one — namely, the tie between Canada and Britain. Section 47, introduced in the dying moments of an otherwise uneventful debate by a back-bencher, had become a symbol of disunity within the Empire, threatening it at the very moment that it was beginning to acquire its mystique. The eight years following Confederation that it had taken to create the court had been too long. The question was now not whether Canada possessed legal authority to enact section 47, but whether it was in the interest of the Empire for it to do so. Carnarvon's letter gave the clear impression that it was thought that section 47 would have the effect of abolishing all appeals.12 In the memorandum from the Privy Council Office, the emphasis was on the nature of the appeal - its prerogative character. This may have been due, at least partly, to the reference to the proposed statutory court in section 47. It was asserted that Canada could not abolish a prerogative power, which had not been questioned in Canada. The memorandum went on, however, to assert the notion of the appeal as "a powerful link," as "one of the most

33 The Captive Court important ties" within the Empire. The appeal to the throne was said to be a right of all British subjects. The Privy Council Office went on to affirm the benefits of the appeal: it might provide a remedy that was not available in ordinary courts; it was without the influence of local prepossessions; it provided uniformity of law where English law applied; and it allowed litigants to have access to judges of the highest judicial authority and legal capacity. Specifically with reference to Canada, it was pointed out that the appeal had been used with some frequency in the past, and particularly with the creation of a federal system, there was the need for the interpretation of the constitution dividing legislative power between the federal and provincial legislatures. The Judicial Committee of the Privy Council, it was said, could provide the needed impartiality. London did not mince words when it was pointed out that in Canada "strong divisions of race, religion, and party are known to exist." Because of these strong feelings, there was consequently the need for the protection of minority rights, which could be achieved by the decisions of a perfectly impartial and independent tribunal. It is clear from the British response that the objection was indeed the abolition of all appeals, and regulation would have been perfectly acceptable — even severe regulation. The monetary limit was suggested as £1,000, which was double the normal amount of £500.13 Blake's memorandum, perhaps through respect, was directly dealt with in the second memorandum, which was from the law officers. The formal legal style with its attempt at a "non-political tone" that had been used by Blake may also have been a factor in the sending of two responses. First, the law officers pointed out that there was a very important difference between regulating appeals and abolishing them. If Canada had the power to regulate the appeal, as asserted by Blake, it did not necessarily follow that there was the power to provide that no appeal was to be brought. While the power of self-government of the provinces and the dominion over local matters was acknowledged, the British power of disallowance was referred to as showing the supervisory power of London over the parts of the Empire when larger issues were at stake. The previous decision of the Privy Council referred to by Blake as an authority for the abolition of the appeal was distinguished on the basis that in that case the Crown had assented to the abolition, while in the instant situation the very question was whether the Crown should do so. It is of interest to note that diplomatically it was not mentioned by Cairns that the 1832 case referred to by Blake might have been considered overruled by an 1862 decision.14 It was next pointed out that some misapprehension existed in Canada as to the nature of the appeal to the Privy Council. A distinction, as indicated by section 47 itself, was apparently thought to exist between "an appeal as a species of a prerogative remedy in particular cases, and an appeal in the regular course leading to a reference to the Judicial Committee." It was

34 Section 47 and the Lord Chancellor then asserted that no such distinction existed and the appeal was one and indivisible. The point made by the lord chancellor was that if the legal power is given to regulate something, then impliedly that something has to remain in existence, and therefore no power to abolish it has been granted. This was and remains a well-established rule with regard to subordinate law-making bodies, such as municipalities. The use of this point in the context is a fairly clear indication of the view being adopted at this time with respect to the status of Canada within the Empire - it had a limited law-making ability such as a municipality.15 The main weakness of the argument put forward by Blake seems to have been that he had tied the power of abolition to the power to regulate as a matter of straight deduction. London was accepting, and indeed urging, Canada to regulate. Canada would have had to assert a specific power to abolish the appeal, which would have involved an expression of independence, at least on this point, which at the time was not only unacceptable in London, but would also have been politically unacceptable within English Canada. The experience of the Canada First movement would amply demonstrate that fact. The point that Canadian legislators were confused about the nature of the appeal to the Privy Council would have had the effect of making section 47 appear confused. Indeed, the description of the appeal as being of one nature and not two was itself confusing. That the appeal originated historically based on prerogative power was indeed true, and in theory it continued to have that basis. In practice, however, there were two appeals: the appeal regulated by local legislation, and the right to apply for permission to appeal in spite of the local law. The law officers and Lord Cairns were thus asserting theory rather than practice. This illustrates a major problem with respect to attempting to differentiate between a so-called "formal legal argument" and simply a "reasonable argument based on all relevant factors." If the attempt is to function solely within a plane of thought that used only certain nonpolitical "legal" factors, such as the language of rules or of previous decisions in isolation from reality, then one indeed courts confusion. One is operating in an artificial world where theory can overwhelm actual practice. It was Blake who had chosen to make a formal "legal" argument. Was such an argument all that Blake considered he could make politically at the time, or was it all that he and the Canadian government were capable of making in the circumstances? As might have been expected, the reply caused Blake some concern. In a letter to his friend and colleague, David Mills, he wrote that he thought that there was "much force" in the arguments in the memoranda, and that Canada lacked authority to interfere with the prerogative by attempting to abolish the appeal. When Mills tried to support him by belittling the

35 The Captive Court prerogative and stressing the constitutional right of Canada to full selfgovernment, Blake replied that the saving of the prerogative in section 47 both weakened the argument and lessened the value of the clause. As indicated by Mills, the question was really self-government and the extent to which it could exist at that time. Blake saw serious personal consequences for himself if he were to fail in saving the provision.16 Self-interest was beginning to loom large for Blake and the Liberals. After he had made a request that the topic be kept unofficial, Blake left for London on 3 June 1876. Because of commitments in Canada, he had not been able to leave at an earlier date. Unfortunately for him, when he arrived in Britain, the British government was involved in a crisis with respect to Turkey and Parliament was still sitting. The session was due to end in midAugust. As a result, events moved slowly. After several meetings with Herbert and Carnarvon, he finally met on 5 July with Cairns. Blake reported to Mackenzie after the meeting, that he did not think Cairns would agree to the abolition of the appeal, and although he did not like the question of regulation, it had been discussed.17 Following their meeting, Cairns drafted a memorandum that reached Blake on 17 July in which it was said that section 47 could be left as it was since the saving clause at the end left the appeal intact, in Cairn's opinion, although regulation by Canada would be advisable.18 Canada was being caught up in the creation of the Empire, and the theory behind the appeal to the Privy Council was becoming reality at this time. The leave-to-appeal jurisdiction that had been all but dormant was about to come alive. Cairn's intention was to have the contents of the memorandum sent as a despatch to the Canadian government, but for political reasons Blake did not want the subject of the regulation of the appeal raised officially. Early in the year he had received a scare when word was apparently received in Canada in late January that the Act had been disallowed by the British government. The opposition press had attacked Blake as inferior to Macdonald in judgment.19 He wanted no more problems of that sort. In a letter to Carnarvon dated 18 July, he wrote that the Canadian government had not considered the matter of regulation of the appeal, and when the question did arise it should appear that any regulation was a Canadian idea. However, he went on to say that if Britain was determined to refer to the question of regulation then two despatches should be sent. It was finally agreed with the British government that there would be two documents: the first, intended for the public, was to be short and simply announce that the Act would be left to its operation. A second document would contain the reasons for allowing section 47 to remain intact, along with suggestions as to regulation of the appeal in the future, which was to be secret. The despatches were dated 29 August 1876.20 Before leaving England at the end of August, Blake drafted a memoran-

36 Section 47 and the Lord Chancellor dum for the information of the British government, which he proposed would be used when the subject of the appeal to the Privy Council next arose. In it he made the arguments for the abolition of the appeal from decisions of the Supreme Court of Canada and addressed the earlier memoranda of the Privy Council Office and the lord chancellor. His emphasis was on Canada and Canadians being able to take things into their own hands. He judged that such sentiments would have to wait before they could be aired publicly. It was not until the late 1930s when more than sixty years had passed that the Canadian government again moved to eliminate the appeal to the Privy Council. By this time the memorandum was no longer needed to persuade anyone. It is interesting to note that in 1900 at the time when the Australian constitution was before the British Parliament that Blake, who was then a member of the British House of Commons, stated: I speak from experience, because I know that in the country whence I come, while a different set of circumstances obtains and there are different provisions, there is yet a written Federal constitution; and it was found with that where bitter controversies had been excited, where political passions had been engendered, where considerable disputations had prevailed, where men eminent in power and politics had ranged themselves on opposite sides, it was a great advantage to have an opportunity of appealing to an external tribunal such as the Judicial Committee, for the interpretation of the Constitution on such matters.21 Had Blake become caught up in the Empire? One might wonder if in his expression of concern for "political passions," he had a moment of thought for his abandonment of what might have been in the best interest of the Supreme Court and Canada because of his own partisan political concerns. As far as the public was concerned, the appeal to the Privy Council had been abolished except for very exceptional cases in which there was the appearance of a virtual failure to do justice. But Blake knew that the British government considered that the leave-to-appeal jurisdiction had the potential of restoring the appeal as a normal part of the legal process. A little over a year after the end of the discussion with respect to the appeal, the first petition was brought for leave to appeal. Leave to appeal was refused, but using the unusually large bench of five judges, the board decided that in a "proper case," their lordships would have no hesitation in advising that an appeal be heard from a judgment of the Supreme Court of Canada. The factors involved in granting leave to appeal were to be the amount of money involved in the particular case, and whether there was a general principle of law involved that would affect a number of other cases. This was not the language of an extraordinary use of the prerogative power that had been

37 The Captive Court thought to exist. The decision of the Privy Council was rendered by Lord Chancellor Cairns. The appeal had thus not ended, and the future of the Supreme Court would without question be affected.22 A legal journal at the time focused only on the fact that leave had not been granted, rather than on the reasons given, and noted: "If the Supreme Court ... were to constitute simply an additional stage through which every keenly contested suit must be dragged, such a tribunal would present itself as an intolerable evil."23 Blake could not accept any suggestion that the Liberal government had erred, or needed instruction from Britain. The government had passed up the chance to eliminate the appeal that existed direct from provincial courts of appeal to the Privy Council, which would have made all cases go to the Supreme Court before reaching England. The government had also passed up the chance to regulate appeals and thus prevent the great majority of potential appeals from going across the ocean. Dominating events was a fear of partisan political repercussions. The "strong divisions of party" referred to by London had reached out to ensnare the new court at its birth. There was also the political messiness that might have resulted from an alteration of section 47. Mackenzie had told the governor general that without section 47 he could not have got the bill through Parliament and that the French members and a majority of senators had made the provision a condition of their support for the creation of the Supreme Court.24 Since the reasons why the British government had left section 47 intact had been kept secret and the initial impression was that the appeals to the Privy Council had ended,25 the damage that had been done to the new court by the controversy was not that obvious. Macdonald had used the occasion of the enactment of section 47 to select the British connection as his theme upon which to stage a comeback from the disaster of the Pacific Scandal, and in late 1875 he had uttered the well-remembered words: "I am a British subject, and British born, and a British subject I hope to die."26 For the "loyal Americans," the British connection was their raison d'etre, and to the extent that the existence of the Supreme Court was associated with the nationalism of Blake's Aurora speech, and a symbol of political independence,27 it would be viewed negatively. The sentiments expressed by Canada First were to go nowhere. Blake had opted for the mainstream Liberal party in the end. The court had been created, but disturbing noises were reverberating around it, and none more than those contained in London's assessment that "strong divisions of race, religion, and party are known to exist." They had the potential to prevent the Supreme Court from functioning in the way that it should.

4 Starting Up

The Supreme and Exchequer Court Act had received royal assent on 8 April 1875 and on 17 September those sections of the Act were brought into force that related to the organization of the court, and the appointment of judges, the registrar, clerks, and other personnel. The judges who were to preside in the court in the crucial early sittings were appointed on 8 October and early in the new year on 11 January 1876, the proclamation was issued that the judicial functions would take effect. Following the appointment of the judges, the Earl of Dufferin, the governor general, gave a very large and auspicious banquet at Government House in mid-November to celebrate the inauguration of the new court. In a short speech, he offered a toast to the judges and spoke of the establishment of the court as evidence of the unification of Canada and of the stability of the nation. "The authority of a Court of Justice is founded on the soundness of its decisions," he said, and then very aptly went on: Under the free constitution of the British Empire, no earthly power can check the growth or diminish the weight of an authority established on such a basis. A great court thus becomes the author of its own supremacy - nay, it can extend its ascendancy beyond the limits of its natural jurisdiction, and impress foreign codes of jurisprudence with its own interpretations of equity and justice. Witness the respect and deference with which the Chief Court of the United States is quoted by British and European jurists. Such a court is the parent of peace, order and good government; it is the guardian of civil, political and religious liberty.1 With the establishment of the court, the legal profession had acquired a great responsibility to the people of Canada, in order that the court should gain the authority and prestige of which it was capable. Significantly, evidenced in Dufferin's language were thoughts about the role of a final appeal court, and the nature of the judicial or legal process. The public also seemed to be aware that something grand was involved in the creation of a final

39 The Captive Court court of appeal for the nation, particularly with regard to constitutional cases. A report in the Toronto Globe stated that the emphasis in the new court was to be constitutional cases, which reflected the need recognized in the Speech from the Throne of 1875.2 The court was perceived as having the power to influence legislative policy, with the consequence that the newspaper concluded that the judges could not be mere "technical" or "case" lawyers, but men of broad and common-sense views. It was said that they should appreciate the liberal rules of interpretation of a constitution as distinct from the stricter rules used in the interpretation of a statute. Within the legal profession there seemed to be an awareness of something different about the nature of the new court, and the consequent need for somewhat different judges than for the lower courts. The Canada Law Journal addressed the question by pointing out that a constitution had to be approached differently from a normal statute: judges must shape "their decisions not solely by technical or case law, but according to the more liberal rules of constitutional jurisprudence."3 The Journal went on to point out that in the event of any difficulty in this matter, the decisions of the courts in the United States would prove helpful. By 1875 any controversy over the constitutional role of the courts seems to have disappeared. In 1870, John A. Macdonald had not envisaged the court as having the power to invalidate any legislation; rather, references would be used to advise the government for the purpose of deciding upon disallowance. At that time Macdonald had felt that the public had wrongly acquired the idea that constitutional issues were to be the main function of the proposed court.4 However, in the parliamentary debates of 1875, there was no indication that the constitutional role promoted by the Liberals was of any concern to the members, nor was there any apparent thought with regard to the kind of judge who would be appropriate to sit on the bench of the new national court. A prime reason given for the creation of the court, after years of failure to do so, had been the role of an interpreter of the constitution, but there was no indication in the House that there was any perceived difference between the new court as an appeal court compared with any of the provincial courts of appeal. It would simply provide a second, or another appeal. The only thought that surfaced was the simple one that if competent judges could be found for the provincial courts of appeal, there should be no insurmountable problem in finding six more judges of the same calibre. Although there was a murmur of concern expressed in the Canada Law Journal, this did not appear in the legislature even though the discussion was completely controlled by members of the legal profession.5 In the main the legal profession was simply not concerned about any inquiry into the nature of the judicial process and the role of the Supreme Court of Canada. What was acknowledged was the comfortable and minimal notion that judges would apply the law to the facts of a case.6 Central to any question as to the function that the judges were to carry

40 Starting Up out and how they were to go about deciding cases would be the judges themselves. The appointments of the six judges in 1875 should have been viewed by those involved as crucial for the future of the institution. INITIAL APPOINTMENTS TO THE SUPREME COURT There seems to have been no question but that the first six judges would come from the four original provinces: Ontario, Quebec, Nova Scotia, and New Brunswick. Quebec had, of course, been assured two positions by law, and the four remaining positions were easily divided between the other three provinces - two judges from Ontario, and one each from Nova Scotia and New Brunswick. The Ontario bar had some difficulty accepting that only two judges would come from that province - three were thought to be the appropriate numbers, with one as chief justice.7 It was unlikely that a court dominated by judges from Ontario would have been acceptable to the other provinces, but anything less would make the new court unacceptable to Ontario. A suggestion that there should be a judge from British Columbia was met with laughter in the Commons,8 due, no doubt, to the fact that in the 1874 election no Liberal member had been returned and six Conservatives had been elected. Nothing was heard with respect to Prince Edward Island or Manitoba. Warning signs were already to be seen in Ontario. The judges were officially appointed on 8 October 1875 by the new minister of justice, Edward Blake, who had replaced Te"lesphore Fournier as minister shortly after the Supreme and Exchequer Court Act had been passed.9 Although petitions for appointment arrived in Ottawa in considerable numbers,10 the choices were limited if the provincial superior courts were to be the prime source of judges. Partisan politics would again be a problem since in 1875 all the superior court judges appointed between 1867-74 would have been named by the Conservatives under Macdonald. In Quebec the Court of Queen's Bench had just gone through the lawyer's strike of 1873-74, and as noted earlier, Antoine-Aimd Dorion had been appointed chief justice in 1874 as part of the reform of the bench. Dorion had been minister of justice in the Mackenzie government from its creation in 1873 until his appointment as chief justice of Quebec. The rouge leader was highly respected and a very high profile Liberal. He was Blake's first choice as chief justice of the new court but he preferred to stay in Quebec." Next to Dorion in precedence on the Quebec appeal court was Jean-Thomas Taschereau, who had escaped unscathed from the lawyers' strike, and who also seemed an appropriate choice. He was selected and agreed to sit on the new court, although apparently with considerable reluctance. The other three judges of Quebec's highest appeal court were not French and although it was not mentioned at the time publicly, the rumour was that only lawyers of

41 The Captive Court

French background would be chosen.12 If this were true, then the dynamics of selection were obviously to be quite different with respect to the selection of French or English judges, since the Quebec Court of Queen's Bench had three English-speaking and two French-speaking judges. For the second judge from Quebec, the government went outside the courts and selected Te'lesphore Fournier, the minister of justice who had introduced the legislation to create the court. His appointment had actually been decided upon in May 1875, when Blake agreed to come back into the Mackenzie cabinet, replacing him as minister of justice.13 This required that Fournier be moved, which he was, to postmaster general, until his appointment as a Supreme Court justice could take effect. At the time there were several references to the fact that Rudolphe Laflamme, the rouge lawyer, had been offered a puisne judgeship, and had declined.14 It seems that the government was having to look to its own ranks for Quebec representation, since suitable judges within Quebec were apparently reluctant to go to Ottawa. Jean-Thomas Taschereau was a member of a very prominent Quebec family, whose brother, Elze'ar-Alexandre, was archbishop, and would become the first Canadian cardinal in 1886. He was almost sixty-one years of age and had been a judge for ten years. Although appointed to Quebec's highest court by Macdonald, his branch of the family supported the Liberal party. Te'lesphore Fournier was fifty-two years of age when appointed and had been a leading member of the Parti rouge, and an editor of a newspaper in Quebec. He had been a member of Mackenzie's cabinet from the beginning, first as minister of inland revenue, and later as minister of justice. For Ontario, Edward Blake himself had been offered the position of chief justice in April, but he was not inclined at that time to leave political life.15 Chief Justice Draper of the Court of Error and Appeal was seventy-four years old, and was thought to be near retirement.16 He was also a Conservative. It seemed appropriate, certainly in Ontario, that the position would thus fall to William Buell Richards, the chief justice of Ontario.17 He was also a personal friend of Mackenzie.18 Although he was in ill health, Richards accepted the position. He was sixty years old, and had been a judge for twenty-two years. He had been a supporter of the Reform (Liberal) party, and attorney general of Canada West in 1851-53. The second judge selected from Ontario was Henry Strong, an obvious choice based on the Law Journal's opinion of him. He was highly respected and had been suggested as early as 1868.19 He was considered to be a person of great talent and learning, a "scientific" lawyer, one of the best civil law jurists in Canada, and thoroughly familiar with French.20 He had also drafted the 1869 bill for Macdonald. His apparent manifest qualifications overcame his political leanings. Representing New Brunswick was the perfectly logical and unimpeachable

42 Starting Up choice of the chief justice of the province, William Johnstone Ritchie. He had been a judge for twenty years, and was sixty-two when appointed to the Supreme Court. The selection of a judge from Nova Scotia proved much more difficult. There were eight judges on the provincial supreme court. The chief justice was Sir William Young, an ex-Liberal premier of the province, but he was seventy-six years of age. Two other judges were also in their mid-seventies, and John William Ritchie, the well-respected Judge in Equity, was the brother of William Johnstone Ritchie of New Brunswick, and also a known Conservative. The other three judges were Jonathan McCully, a Liberal, a father of Confederation, sixty-six years old, and a judge since 1870; Hugh McDonald, a Liberal member of Parliament from 1867—73, who had been appointed a judge in 1873 by Mackenzie, and who had opposed Confederation; and Henry Smith, who had been attorney general of Nova Scotia, and had been appointed a judge by Mackenzie in January 1875. It is not known whether any of these judges of limited judicial experience and obvious Liberal credentials were approached. The person who was finally appointed from Nova Scotia was William Alexander Henry. Henry had been a member of the Legislative Assembly in Nova Scotia from 1841—43 and 1847—67. He had been solicitor general and attorney general of the province. Originally a Liberal, he had crossed the floor to sit as a Conservative in 1857 over a dispute with respect to Roman Catholics. He had supported the church. Henry's mother was a Roman Catholic and he had been baptized in that church. He was a father of Confederation, and had been defeated in 1867 in the backlash of the people of the province against Confederation. At the time of the Pacific Scandal, he returned to the Liberal party. Of the fathers of Confederation, he alone had not received any obvious political reward, such as a ministry, senatorship, or judicial appointment. With respect to the initial bench of the new court, the Canada Law Journal had mixed feelings.21 The fact that there were only two judges from Ontario was already a matter of some agitation, and although three judges from Ontario had been hoped for, there was some satisfaction in knowing that the chief justice was from the province. The name John Hillyard Cameron was mentioned as someone who would have made a good judge, had not financial difficulties made it impossible. The reference to Cameron raises questions about the overall sincerity of the writer of the note, since it would seem impossible that Cameron would have been considered. He was a Conservative member of Parliament, and strongly identified with the party. He had also been involved to a degree in the Pacific Scandal. Richards was said to be "a man of powerful intellect, taking a wide grasp of a subject and looking at it 'all round/ so to speak; discussing it not only with reference to the abstract law therein involved, but also with reference to its relation to the wants and habits of a new country." He was said to possess a "brilliant common sense." Strong's appointment was described as admir-

43 The Captive Court able. He had no equal in intellectual capacity. With his knowledge of the civil law and his familiarity with French he would, it was said, be able to help the Quebec judges with cases from their province. Ritchie was described as "an able lawyer," of "strong will and decided views," and having lengthy judicial experience. His tendency to limit provincial power in constitutional cases was noted. It was concluded that overall it was an excellent appointment. His brother from Nova Scotia would also, in the Journal's opinion, have been a good choice. Henry was dismissed with a petty one line statement: "Mr. Henry, from Nova Scotia, is said to be a fair lawyer." The Journal noted that the Quebec representatives were both selected from the Quebec area, and thus Montreal was not represented. The Montreal area was where commercial matters were based, and where English-speaking lawyers dominated. The new judges were said by the Journal to be "good French lawyers," but of little help in commercial or criminal cases in which English law was used. The opinion of the Conservative Montreal Gazette with regard to the appointments was venomous. Fournier's appointment was attacked by saying that the difficulty in finding people to accept an appointment may have been because of "lawyers of standing [being] unwilling to accept such a colleague." He was said not to add strength to the court and to be little known to the bar. With respect to Taschereau, the newspaper was polite. He was said to be a gentleman, and of fair standing in the legal profession. A point was made of the fact that neither were commercial lawyers, and commercial law cases would represent the bulk of the cases heard by the new court.22 The Gazette imagined the scenario in which the judges from the provinces with English law would defer to the Quebec judges on questions of Quebec law. Combining this scenario with the newspaper's opinion of the two Quebec judges, then what emerged was the following: there would be an appeal from five respected (one assumes) judges of the Court of Queen's Bench to two judges of the Supreme Court, one of whom was not respected at all, the other of whom was fair, and neither of whom were commercial lawyers. The factor of partisan politics was an overwhelming presence in all of this. The Liberal Globe of Toronto was much more reserved. Richards received the most praise, being described as having shrewd common sense, with a liberal turn of mind. Strong was said to be satisfactory. Fournier had sterling ability; Taschereau had eminent ability combined with experience. Henry, twice attorney general of the province, was described as the head of his profession in Nova Scotia. Ritchie was noted for his ripe experience. The precedence of the judges that was established was Richards, chief justice; Ritchie, Strong, Taschereau, Fournier, and Henry. The basis upon which the judges were ranked seems to have been primarily that of judicial experience. The first four had been superior court judges, while Fournier and Henry had not. Ritchie had been chief justice of his province, an obvious reason why he was ranked above Strong and Taschereau. Richard's appointment

44 Starting Up as chief justice seems unquestionably to indicate that the provinces were not all considered equal. Ontario and Quebec, old Canada, dominated, with Ontario apparently receiving a higher political ranking, which would also explain why Strong was given precedence over Taschereau. Strong had been a judge since 1869, and a member of Court of Error and Appeal since 1874; Taschereau had been a judge since 1865, and a member of the Queen's Bench since 1873. Fournier, who was fifth in rank, had been a minister in the federal government, and Henry at the time of his appointment could only claim to be a member of the bar. As might have been expected, there was a definite Liberal tone to the bench. Richards had been attorney general of Ontario, as a member of the Reform party. Ritchie had been a Liberal member of the provincial legislature and the executive council. Fournier was a minister in the Mackenzie government. Taschereau was a known Liberal supporter; and although Henry had been a Conservative for a number of years, he had returned to the Liberal party at the time of his appointment. Only Strong did not seem to have an obvious political affiliation, but his Conservative leaning was apparent. The average age of the initial bench was fifty-seven years; Strong was the youngest at fifty years of age, and Ritchie was the oldest at sixty-two.23 The average age of fifty-seven made it one of the youngest benches in the history of the court.24 With both the creation of the court and the appointment of the first bench, there was little thought evident about a philosophy of the judicial process, and as to the role of a final court of appeal in a nation, although there was some. These concerns are vital to the functioning of our highest court of appeal and also of the legal system in general. To most people within society it may seem somewhat odd to be concerned with what judges do, or are supposed to be doing — everyone knows what judges do — they simply apply the law to a set of facts — don't they? The appointment of the two Ontario judges brought the problem into focus. They were in stark contrast to each other with regard to the judicial function. While Strong was said to be a "scientific lawyer," meaning a person who viewed the legal process as the strict application of known rules to a set of facts, without concern for anything else, Richards was said to be a lawyer who took a broad view, and who displayed a common-sense approach, meaning that although the rules would guide him, much more should be taken into account. He would decide with reference to the wants and habits of the country, it was said.25 In the study of law, the judicial function is a crucial and highly controversial question. The next part of this study will try to make the problems clearer and to unravel some of the controversy. A critical examination of the actual functioning of the judges over the years will be the focus of the parts that follow.

PART B

The Judicial Function

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5 The Judge as Adjudicator

In order to undertake a critical analysis of the judicial function as actually practised by the judges of the Supreme Court of Canada over the years, it is necessary to understand clearly what is involved in the "judicial function" and in the process of judicial decision-making. While it may appear obvious to say that a judge's function is to apply the law to the facts involved in a dispute, yet the topic of the nature of the judicial function has occupied countless numbers of pages in the legal literature of the world. Noticeable, however, is the fact that Canadian writing on the subject has been very sparse, and with regard to the Canadian judiciary, it has been all but absent until very recently. This telling point is indicative of the impoverished nature of independent legal thought in Canada. Although the topic is traditionally called the "judicial" function, it is the legal system or legal process that is being analysed. The judge approaches a problem in the same way as a lawyer, who suggests a solution to the judge. Therefore, although comments and criticisms throughout this book will usually identify the judiciary, the lawyers who conducted the cases and the system of legal education that existed must share them in whole or in part. It is the entire legal profession that is being examined - judges, practitioners, and educators. This part examines the role of the judge as an adjudicator (the adjudicative process within the legal system), and as a law-reformer (the law-making process within the legal system). By describing such processes in simple terms it is hoped to dispel the mystery that so often attaches to the legal system, both for the profession itself and the public. This examination of the legal system focuses on the highest court of appeal, the Supreme Court of Canada, and as a result certain aspects of the system that operate at the trial level, or in lawyers' offices, or elsewhere, will not be examined in any detail. The fact that it is the Supreme Court that is

48 The Judge as Adjudicator being studied must always be kept in mind, and must condition many of the comments that will be made. Any study of the legal process begins with a reference to our dominant constitutional principle - the Rule of Law.1 This principle demands that a judge operate within the confines of legal rules, and that personal, subjective, or ad hoc decision making must be avoided. This book is concerned with what the confines of legal rules really are. At its simplest, the principle known as Rule of Law requires that we be concerned with how much the law has affected any solution that has been reached, as opposed to how much effect the individual judge has had. THE LEGAL PROCESS A dispute arises within society that may involve a landlord-and-tenant matter, a traffic accident, a family matter, a commercial dealing, a corporate affair, or perhaps society itself, as in criminal cases. Within the society a solution to the problem that has arisen is sought by using the legal system rather than by resorting to self-help through the use of physical or political force. The legal system provides impartial adjudication by a judge whose decisions will be respected and obeyed by those involved in the dispute. In order to arrive at a reasoned decision, it is expected that the adjudicator (judge) will listen to the stories of both parties and reach a conclusion as to the facts that were involved, that is, what has happened. To settle the controversy, the adjudicator is expected to call upon a knowledge of the law (the rules of the game), and to determine who wins based on the facts that were found to be true. Thus rules of law are to be applied to ascertained facts. Canada is a federal state in which the constitution divides the power to make laws between the central Parliament in Ottawa and the various provincial legislatures. This means that a constitutional challenge to law can arise based on the division of powers. While such a challenge usually begins in a dispute involving individuals or corporations, the federal government and the provinces will become involved and generally take over the carriage of a constitutional issue if it is considered of sufficient importance. In addition the federal government in Ottawa possesses the power to refer questions to the judges of the Supreme Court, which have almost always been questions with respect to the constitutional validity of law. With the creation of the Canadian Charter of Rights and Freedoms in 1982 the idea of individual rights versus society's welfare has taken on considerable interest in Canada, in that an individual's assertion of freedom of expression or religion, for instance, can result in the destruction of a law that was ostensibly enacted in the public or social interest. For Canadians this has been a novel thought, and for the legal system and the profession it has brought the potential for tremendous change.

49 The Captive Court It is trite to say that it is a poor lawyer who takes a client to court. There is a definite professional responsibility resting on a lawyer to attempt to reach a solution to the problem that has confronted the client without engaging the courts. The use of the judiciary as adjudicators should occur only when the problem proves too difficult to solve otherwise. If a dispute reaches the Supreme Court of Canada, it must be realized that it has already been heard by at least two other courts (unless it is a reference case). Since 1975, for civil cases, the Supreme Court itself must judge a case to be of sufficient "public importance" to be heard by it.2 The conclusion must be that the disputes that reach the Supreme Court of Canada should be highly contentious in nature. ADJUDICATING THE DISPUTE The process of solving a problem that has been thrust into the legal system involves a number of fairly distinct aspects, whether engaged in by a lawyer or a judge: 1 2 3 4

The facts are ascertained, and understood; The applicable legal rule is found; The rule is applied to the facts; and A decision or conclusion is reached.

This all looks very simple, but what is actually involved in these aspects of the legal process can be very complex. 1 The Facts It is crucial to appreciate the central role that facts play in the process of solving problems. Of course a judge must take into account the relevant facts involved in the dispute, but in order to do so in a meaningful manner, the judge must have a proper appreciation of those facts. The use of the adversary system in the legal process places a considerable onus on the lawyers who have charge of the particular case to be capable of appreciating and selecting the relevant facts. In simple terms, does the lawyer or judge relate to the facts involved in the dispute? The necessary appreciation is made possible from life experience and study. When one thinks about the benefits for a lawyer of having practice experience, it must be realized that a major benefit is that of having acquired life experience in the problems that beset human beings. The greater the experience of the judge - and again this means personal as well as judicial experience - the better able will the judge be to understand the facts and their significance in the dispute. Of course a judge has the potential assistance of

50 The Judge as Adjudicator counsel in order to comprehend fully the factual situation, which could involve the use of experts in various fields of study. The failure of a judge or lawyer to solve a dispute adequately because of an inability to understand what the problem actually is may be difficult to assess. The reviewer would need to possess or have access to appropriate knowledge of the nature of the particular problem and its background. It is possible that a judge might go into enough detail in the reasons for judgment that a failure to understand would be exposed, but this would be rare. Should the judge and the lawyers not truly understand the facts upon which the law will be applied, then the solution or decision reached by the judge will be a solution to the problem only in the sense that there will be a winner and there will be a loser. In such a situation it would have been cheaper to flip a coin. A "loonie" could have been used and we could speak of "loonie justice." Of course the value should not be underestimated of having a device to select a winner and a loser that the parties agree ahead of time to accept, but an absolutely crucial element to our legal process is the belief that it is a rational decision-making process. The ability to give meaning to facts involves an awareness of society, which can be gained by experience and study. The entire legal profession must be made up of socially literate persons — persons who are knowledgeable about social values and are able to deal with them as factual information when necessary. There are two kinds of facts involved: those known as "adjudicative facts," which are the facts intimately connected with the dispute that has arisen, such as who did what to whom, when, and where, and those known as "social facts" or "legislative facts," which are facts about the society in which the problem has arisen, and which give meaning to the adjudicative facts.3 It is assumed through the concept of "judicial notice" within the legal system that a judge has a knowledge of social facts or values. The lawyers should be prepared to fill in any gaps in the judge's knowledge. It should be an obvious characteristic of those who enter the legal profession that they have an interest in public affairs, political matters, and social values. Social literacy is a requisite for the members of the profession. For the Supreme Court of Canada, the adjudicative facts should be taken as found by the lower court, unless the judges of the Supreme Court reach the highly unusual conclusion that the finding of fact by the lower court was clearly unreasonable. Social facts, however, dominate everywhere independently of what the lower judges have found. It is more than likely that an appeal that reaches the Supreme Court involves a controversy about social facts, and hence, social values. In disputes involving constitutional law, which comprise a considerable amount of the work of the court today, and which have always provided the cases of the greatest public profile, the social facts are the facts in the case, and the adjudicative facts remain only as background.

51 The Captive Court 2 The Legal Rule The second aspect of the process of solving problems within the legal system is for the judge, again aided by the lawyers, to find the legal rule that should be applied. An understanding of the facts will indicate an area of law, such as negligence, contract, or property. Further study of the problem may lead to other and more appropriate areas. One of the most vital questions involved in the legal process has concerned the appropriate sources of the law. It is necessary to understand the rules operating within the legal system that direct the lawyer or judge to the rules that are to be applied. A concern with the sources of the law is central to a knowledge of the operation of the legal or judicial process. Certain sources admit of no controversy, while others engage some of the deepest disputes within the system. Legislation. The laws enacted by the legislature, called statutes or acts, the by-laws created by a municipality, or the regulations made under the authority of statutes make up legislation. This is without question the first source to be tapped by a lawyer or judge searching for a rule to apply. At this point in the analysis of the system, there should be no problem considering a code of law, such as the Criminal Code of Canada or the Civil Code of Quebec as "legislation." An assessment of the performance of a judge with respect to the finding of relevant legislation and the appropriate rules in it should be one of the easiest tasks in the study of the judicial function. A failure to find the appropriate piece of legislation or to consider the relevant provisions of a statute, or the simple misreading of a provision would result in a per incuriam decision, that is, one that may have settled the particular dispute by picking a winner, but that has no other value as a guide in the future.4 This would be another example of "loonie justice." Such incompetent decisions are rare, as one would hope and expect. If such an error is detected during the time that an appeal is available, it will be easily corrected. The law that has been found in the legislation is the "base rule" and consists of words that must be given meaning. They are only symbols that need to find life in the mind of the reader. Common law. The expression "common law" is used to refer to the "law of England" that was created by judges over the years, and as such was at its height in the sixteenth and seventeenth centuries.5 The law of England is the basis of the law in English Canada, and part of the law in Quebec, as well as the basis of the law in most of the United States. It developed through a case-by-case, pragmatic approach by judges, and is "judge-made law" in contrast to law established in a statute or code, in which general rules are

52 The Judge as Adjudicator

normally laid down. In England, when the legislature became more active in law making during the seventeenth and eighteenth centuries, the nonstatutory or common law began to be replaced by statutory rules. While a considerable quantity of judge-made law still remains today, it is shrinking. Cases in which relevant legislation has been interpreted by judges are not included under the term "common law."6 If a code of law has been adopted, then this source of law ceases to exist. When it is determined that the common law is the source that must be examined, then it can be a much more difficult exercise to find a rule than when legislation is the source. The sometimes lengthy reasons for judgment written by a judge frequently do not render an easily identified applicable rule, such as the relatively pithy rules found in statutes, by-laws, or regulations. Finding the law in the common law involves the theory that from the reasons that a judge gave when reaching a particular solution in a previous decision (the judgment in the case), a rule can be distilled, called the ratio decidendi of the case. A start to a demystification of the process would be to translate the Latin words into English. The words "ratio decidendi" mean "reasons for judgment," that is, why the judge reached the particular decision, and that seems simple enough. The reasons of a judge in a previous decision are capable of yielding a variety of rules that may help in the solution of future problems. There is no one magical rule to be found. This notion that each case yields only one rule has bedevilled minds and consumed time far beyond its practical importance. For any given case, a choice of rules exists — from the most basic and narrowest — namely, the facts of the case and the result, to various generalizations that can be extracted from the narrow formulation of the rule. Each generalization from the facts and the result that is legitimate is a proper rule of law that can be used in a future case. A choice exists in all instances. Mention must be made of cases in which legislation has been interpreted and applied. Such cases may be thought of as expressing law in that the meaning given to the words of a legislative provision adheres to the provision and becomes part of it. Sometimes a case in which a piece of legislation has been applied may be thought of as being an example of the application of law. Again, there is a choice - is the previous case an example of law or of application? The answer is that it depends. The distinction between law and the application of law is not always easy to make when dealing with cases involving legislation. This problem will be dealt with in chapter 6, under the heading "Application Law Reform." An Authority When considering cases as the source of rules, whether those making up the common law or those in which legislation has been interpreted, the word

53 The Captive Court "authority" becomes important. A standard question by a judge to a lawyer who is putting forward a rule that has been found in a previous case is to ask if the case is an "authority," meaning, is the court in which the case originated recognized as authoritative by the jurisdiction as being able to establish rules of law, which must then be followed? The decisions of some courts may be viewed as "persuasive" rather than "authoritative." Since the English or common-law system is found in several other countries, such as Australia, the United States, and Canada, there are cases from a variety of courts around the world that have become known within Canada. There is thus a need for an ordering of the cases based on the court of origin so that "authorities" may be ranked. For instance, a judge in a provincial superior court must consider cases from a court higher in the hierarchy of courts such as a court of appeal or the Supreme Court of Canada, as well as cases from the court of which the judge is part, and cases from lower courts in the provincial hierarchy, such as provincial courts and district courts. There are also cases from foreign jurisdictions, ranked as for the particular foreign hierarchy of courts. Being part of the British Empire has had a considerable effect on the question of what authority Canadian judges gave to various cases decided by English courts. For many years it was extremely difficult to think of England as a foreign nation for domestic Canadian law, and there was no will to do so when that idea became more feasible. Tradition was very powerful and today the thought is still not accepted completely. For the Supreme Court of Canada, as of 1912, for instance, the authorities ranked in order of authoritative power were decisions of the following courts: 1 2 3 4 5

House of Lords; English Court of Appeal; Judicial Committee of the Privy Council; English High Courts; and Supreme Court of Canada.

Decisions of the higher Australian courts, as well as those from the United States, and in particular the Supreme Court of the United States, were considered persuasive. Today the Supreme Court of Canada would rank at the top of the hierarchy, and the courts of England, the United States, and other common-law countries would all be termed more or less persuasive. The changes that occurred to the ranking indicated above for 1912 will be examined in chapters to come. Once a rule has been found from the common law, as with a rule found in legislation, the words of that rule have to be given meaning when it is applied. Writings. If legislation or the common law do not yield a rule, then perhaps textbooks and articles in law journals might be referred to by judges. The

54 The Judge as Adjudicator tradition of the jurisdiction would dictate the weight or even whether such sources should be consulted. The tradition used to be that only an author of a textbook who was deceased could be considered as an authority, if the author had been of high reputation. There was a felt need for an "authority" and the legal system did not want to run the risk of the author having a change of mind. If the author were living, the statement of the law found in the writing was to be considered persuasive, to varying degrees. Other Sources. This catch-all phrase simply covers any other source that a judge might consider relevant in the search for a legal rule. There is indeed controversy here. Do other sources exist beyond legislation, cases, and the writing of jurists? If so, what are they? This question will be explored in later chapters. ONCE THE RELEVANT legislative provisions, cases, writings, and other sources have been found, they must be read and analyzed. From a critical analysis, there should arise an appropriate rule to apply, if one is to be found. A persistent controversy surrounds the subjective element in judicial decision making. The finding of the rule to apply in a case is as objective a task as can be found in the judicial function. At this stage, the judge is simply finding language that makes up a rule that purports to be relevant to the solution of a problem. The meaning of that language is crucial, but it is not, strictly speaking, involved at this point. The prime principle of our constitution and hence our society is Rule of Law, which demands that we are to be governed by law. The selection of the law to apply must be as devoid of human frailty as possible. The judge must approach the task of analysing for a rule with a judicial frame of mind, meaning that personal values, prejudices, and biases are to be repressed. As human beings, judges and lawyers are naturally affected by their personal values, however acquired. A bad lawyer and judge is governed by them. A good lawyer and judge will make an honest effort to banish personal bias from the adjudication process. An assessment of the functioning of a judge with respect to the finding of a legal rule should be fairly easy to make. If legislation is involved, it will be that much easier than with the common law where there is an element of choice involved as to the generality of the language of the rule to be used. Also, for cases in which legislation has been interpreted, there is the flexibility of treating a case as either "law" or "application" (which will be dealt with in the next part). If a judge does not use the appropriate source of law, or is selective, then this should be fairly apparent, and will hopefully be brought to the attention of the legal profession and the public. Without a critical component to the legal profession and for the legal system, there is a danger that the participants in the system will slide into incompetent or corrupt behaviour.

55 The Captive Court 3 The Application of the Law The third aspect in the process of solving a problem within the legal system consists of the application of the legal rule to the facts. The ability to see this stage as separate and distinct from that of finding the legal rule goes a long way towards understanding the legal process. The failure to recognize a difference between "law" and "application" causes a clouding of the nature of the process. While the choices available to a judge are limited with regard to finding the law, the choices with respect to applying the law are potentially very wide. The key element in the application of law may appear self-evident, but as will be seen repeatedly in this study of the Supreme Court, it is often lost sight of. The application of rules to facts must involve thinking. Reasoning, which consists of logic and experience, must be used, and judgments must be made. Above all, CHOICES must be made. Choosing involves thought, and thinking is always conditioned by social values. In the vast body of writing on the judicial process, I have not found a better expression of this seemingly simple idea than that given by Roger Traynor, the late chief justice of California. Traynor maintained that a judge was required to have "an actively analytical mind," and that there was no way that he could spare his mind from thinking. The soul of the law, Traynor said, was reason, not merely the rulebook.7 The rulebook is the "law," reason is "application." In the chapters that follow, stress will be laid on "creative" decision making within the legal system, and whenever comment is made about the creative element in the judicial process, the reference is to the thinking out of a problem and the creation of a solution that will act as a guide for the solution of future problems. Emphasis on the thinking out of a problem with respect to the application of law injects the appearance of a subjective element into the decisionmaking process that seems to jar against the principle of Rule of Law. However, whatever subjective element is present need not be overwhelming. It is inevitable that there will be some aspect of subjectivity since the decision making is an intellectual exercise conducted by human beings. Contrary to the idea of thinking out a problem, many within the legal system developed the approach that would project the appearance that the legal rule that had been found by the judge was being applied in a mechanical manner as if it were a scientific formula, with no concern for any factors other than the logical deduction from the words of the rule itself. This was apparently undertaken to achieve an "ideal," namely, impartial justice under the Rule of Law, with a minimum of personal input by a judge. The approach allowed one to respond to the question as to why a particular decision had been reached by a judge by saying that it was the particular rule

56 The Judge as Adjudicator that was the cause. Thus it was said that judges did not make policy choices (at least they did not appear to be doing so). The only creative force in the judge using this approach was apparently that of finding a rule, not coming to a conclusion after a rule was found. Certainty was a dominant concern behind this theory of the judicial function. If judges made it appear that they were simply applying a rule to facts then there was an image of certainty. The hope was that from the look of certainty a feeling of confidence would be created in the public, and confusion and litigation would be reduced. This attitude came through clearly in a statement of Viscount Birkenhead in the House of Lords in 1922: "[I]t is undoubted true that it is even better that some slight degree of injustice should be done in an individual case than that the Courts should abandon the sure anchorage of a dependable rule."8 As a general proposition, the great majority of the judges of the Supreme Court over the years have adopted the approach that for the rules of law, they should be concerned with the "plain meaning" of the words and not with the consequences of their decisions. In the drive for objectivity and mechanical adjudication, the judges would seek the intention behind the words of a law by only construing the language used. It was thus not the intention that the judges were actually seeking, but again, the plain meaning of the words. If the result of the judges' construction did not, in fact, carry out the intention of the legislation, then it was up to the government to amend the statute concerned. For the word "intention," "policy" could, of course, be substituted. In other words, it was accepted that the judges were not to determine the policy behind an enactment and then to interpret the words in keeping with the policy of the law. If the judges had engaged in the ascertaining of policy and the fulfilling of it by interpretation of the words used, this would obviously give the appearance of being engaged in the creative exercise of the making of law. During the late nineteenth century and the early part of the twentieth century, the term "scientific jurisprudence" could be encountered in the legal literature. Use of the term meant more than a simple knowledge of the rules of law. The rules were conceived to be fixed and immutable, as lawyers perceived the laws of science to be, which were there to be discovered in nature. The nineteenth-century view of order, uniformity, permanence, and the belief that human beings could know or discover orderliness governed by a set of laws that were universal, timeless, and unchanging, was operating within the legal profession. As late as 1923, Mr Justice Anglin of the Supreme Court stated unequivocally: "Our common object is to make the administration of justice as nearly certain and scientific as it is possible that any human institution can become."9 The finding of an appropriate rule was treated in essence in the same way as a formula in science.

57 The Captive Court At the time of any case, social values exist that must be taken into account, yet legal rules viewed as scientific rules are thought to be a closed logical system, in which literalism operates. It was, and is, common to hear the distinction being drawn between a legal point of view and a moral or political point of view. Where the notion of mechanical jurisprudence is accepted as descriptive of the judicial process, then it is important that all relevant cases have been considered, and have been adequately analysed and understood. If certain cases have been ignored, then the reason for their exclusion must be understood. It may be that some judges use some cases, while others go to different ones. The selective use of cases suggests either incompetence, deception, or at least the non-working of mechanical jurisprudence. The mechanical model of the judicial function fits well with the idea that the role of the judiciary is pure arbitration. In the adjudication of disputes, the main consumers of the services offered by the legal system in the years that the Supreme Court has existed, namely from the late nineteenth century until the present, has been the corporate-commercial world. Writing of the American social context, one author has asserted that by the middle of the nineteenth century, the legal system had been reshaped to the advantage of men of commerce and industry.10 The expense of the use of the legal system alone would dissuade most individuals from using it, and the fact that a monetary criteria was for many years the formal basis upon which the importance of a case was judged meant that the role that the corporate-commercial world desired was dominant. An arbitration system in which the facts of the business world were understood was important and such a background was very prominent among the judges of the Supreme Court over the years. In that world, certainty in the conduct of business affairs was a prime requisite. What was not wanted were creative arbitrators who were concerned with notions of justice and able to alter the rules. Changes in the rules should occur only through the actions of the legislature in response to the political power of the commercial world. The participants in the corporate-commercial disputes that reached the legal system were players in a game that was not for the faint of heart. With their resources they were mainly of equal ability, and they simply wanted a "referee" to "signal an offside" or "call an out" when the occasion presented itself. Justice in the corporate-commercial setting was playing by the rules, and the sports analogy was very compatible. Also compatible with the pure arbitration or corporate-commercial model was the Blackstonian theory of law. Law was conceived of as consisting of fixed principles that were there to be discovered and applied by judges, with adaptation of the law to the changing circumstances of society to be the task of the legislature. This attitude or belief necessitated the finding of an "authority" in order to give at least the appearance that the judge was indeed

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simply finding the law and was not "making it." The finding of an "authority" was a legitimizing process. The reasons that judges gave when making decisions have been the subject of an extensive study in the United States. They were of two kinds: first, "authority reasons," which consisted of the use of previous cases (precedents), both binding and persuasive, as well as statutes, regulations, and various "authoritative" writings; second, "substantive reasons," which were reasons other than authority reasons that were rational (reasons that derive their justificatory force from a moral, economic, political, institutional, or other social consideration). The author made this important point: An authority-minded judge who rejects or remains oblivious to the primacy of substantive reasons will feel more comfortable with cases of conflicting precedent than with cases of first impression. In the former, he will at least have some "law" to apply, and often he will conveniently find that one of the two precedents can be distinguished away, a course not open in a case of first impression. In cases of first impression, an authority-minded judge may confront a genuine crisis. For him, the law consists solely of authority, yet in such cases there is none. Rather than create a new precedent out of substantive reasons, as has been necessary since the beginning of the common law, the authority-minded judge might rest his decision on precedent not truly controlling. Or he might bend or fictionalize relevant doctrine and thereby dim the lights for future judges."

H.L.A. Hart, a prominent modern legal philosopher, considered the problem that all legal rules contain general words, and therefore a certain amount of flexibility exists in applying a rule. Although he accepted that there was some flexibility, he pointed out that there was also a core of settled meaning for words. If a situation occurred when the facts led to the conclusion that the core of the rule applied, then the judge had no choice but to apply the rule, regardless of consequence. However, when there occurred a situation in which the words of the appropriate rule were neither obviously applicable nor ruled out, then the rule could not be applied by logical deduction to the case in point, and the judge had to take into account some concept of what the law ought to be. Hart called the area of uncertainty surrounding legal rules the "penumbra," the area where the judge was forced to "legislate" and take into account the needs of society. Hart considered that whenever a judge failed to take advantage of this area of uncertainty to strike out and introduce a new and better rule that would be beneficial for the future, the blame lay with the Blackstonian theory of law. This theory that the law was a complete body of rules existing from time immemorial that was unchangeable except to the limited extent that legislatures had altered them was termed by Hart a

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"childish fiction." It has also been said that behind this "illusion" was the childish desire to have a fixed, father-controlled universe free of chance and error due to human fallibility. The theory has also been called a pretence, and a ghost.12 For Hart, the intelligent decision of penurnbral questions was not one made mechanically, but in light of aims, purposes, and policies. He said that laws were incurably incomplete and that the penurnbral cases must be decided rationally by reference to social aims; it was thus, through what he called the "open texture" of rules that judges exercised choice by "legislation." In "plain cases" where a rule obviously covers the facts, or just as obviously does not, then according to Hart, the judge has no choice but to apply the law. When neither of the "plain" situations occur, analysis and thinking are involved.13 Interpretation of a Rule How a rule is applied depends on the meaning that is given to the words used. When examining the subject of the interpretation of the language of a provision in a statute or the language of a common-law rule, two matters are of concern: first, the meaning that the words are to be given and second, the rules within the legal system that govern the process by which the meaning is to be arrived at. With regard to statutory interpretation, an enormous amount of literature has developed dealing with the rules that govern the process of interpretation, and how judges deal with the words of a rule found in a statute.14 To the extent that the words of a common-law rule are treated as firmly established in the law, any discussion about statutory interpretation should be equally applicable to the common-law rules. The establishment of such a mystique about the reading, understanding, and applying of rules found in a statute must be attributable to an attempt to avoid any appearance of making choices of values. The more rules that can be summoned forth give the appearance that the rules are determining the ultimate solution, not the mind of the arbitrator. In sum, having determined the facts in a case, which will have led the lawyers and consequently the judge to the appropriate area of the law and hence to a rule to be applied, it next becomes necessary to determine the meaning of the language of the rule. When the voluminous writing on this topic is deciphered, it becomes clear that the only serious controversy involved in deciding what meaning to give to the words of a statutory or common-law rule is what to do with the idea of the purpose of the rule in question. Why was it enacted? What was the intention of the creators of the law? What is the policy behind the law?

60 The Judge as Adjudicator

The Contexts The language of a law or rule acquires meaning within three contexts: first, the context of language, that is, the ordinary meaning of the words within the society at the time in question; second, the context of the law, namely, if the rule appears in a statute, then the words of the rule have meaning within the context of the general theme of the statute, and as well as within the context of other accepted rules of law; and third, the context of the society, that is, the words have meaning as determined by the values of the society at the given time. Obviously the first two contexts are conditioned by the third, the social context. Certainly when the words used are plain and unambiguous, it can be said that they must be construed in their ordinary sense. The context of language alone would be engaged in this situation. But when are the words to be considered plain and unambiguous? The contentiousness involved in a case that has made its way to the Supreme Court would seem to rule out a solution based on the "plain meaning" of a rule. In the voluminous literature on the subject of how to approach the task of giving meaning to the words of a legal rule, it is very common to see the point made that a judge is faced with a choice: to adopt the literal or plain meaning of the words, or to try and determine, as best as can be done, the actual purpose behind the rule and to decide accordingly. The "plain-meaning" rule, as the first choice is called, has the compelling appearance of objectivity and hence of a non-creative role for the judge. For the greater part of the existence of the Supreme Court of Canada, the judges affirmed in statements of "judicial policy" that they unquestionably adopted the plain-meaning rule. The reality behind these statements will be examined in later chapters. One encounters statements such as: "Our duty is simply to construe the language of the statute as we find it. Where that language is plain and unambiguous we are not to speculate as to what was or might have been the intention of Parliament, or as to the consequences which we think impolitic or undesirable which follow from adherence to the plain language of the statute."15 and, "With the policy of Parliament we have nothing to do. Our duty is simply to construe the language used."16 The classic quotation that has been thrust forward in an attempt to write paid to any contrary notion came from the high authority of the Judicial Committee in 1895: "The question which had to be determined was the true construction of the language used. The function of a tribunal is limited to construing the words employed; it is not justified in forcing into them a meaning which they cannot reasonably bear. Its duty is to interpret, not to enact ... The question is, not what may be supposed to have been intended, but what has been said."17 "Its duty is to interpret" - those words reverberate throughout the history of the Supreme Court to this day. The meaning of "interpret" seems to have been taken by the vast majority of the Canadian legal profession to be "construing the words employed," and the possibility

61 The Captive Court that creative judges might have been using the word to refer to judicial law making (creativity) as opposed to political or legislative law making appears to have been missed completely.18 Of enormous significance is the fact that in the case from which the above quotation was taken, the lord chancellor concluded his point by writing: "It is quite legitimate where more than one construction of a statute is possible, to select that one which will best carry out what appears from the general scope of the legislation and the surrounding circumstances to have been its intention." Thus, the quotation used to exemplify the language context in the end directs us to the other contexts as well: the legal context ("the general scope of the legislation"), and the social pontext ("the surrounding circumstances"). The first context, language, is naturally the starting point, but the other two contexts come into play when necessary. Unfortunately for the Supreme Court, it appeared that language context was thought to be the only one to consider, and the all-important concluding comment by the lord chancellor was forgotten or perhaps never actually grasped. In 1935, the chief justice of Canada, Sir Lyman Duff, stated: "The judicial function in considering and applying statutes is one of interpretation and interpretation alone. The duty of the court in every case is loyally to endeavour to ascertain the intention of the legislature; and to ascertain that intention by reading and interpreting the language which the legislature itself has selected for the purpose of expressing it."19 A drive to achieve objectivity and impersonal decision making20 may be laudable but it should not result in a rejection of the reality of the decisionmaking process. It seems staggeringly trite to say that there can be disagreement over whether words are plain in meaning, since a meaning cannot be given to words in isolation from the other contexts that involve making judgments. Certainly it seems inevitable that words would be given meaning based on the interpreter's "personal baggage." The wish may be to curb this tendency, but to eliminate it seems impossible. The plain-meaning rule facilitates the use of personal biases. The individual who is controlled by a strong preconceived bias jumps at answers, because to that person the answers are self-evident. The simple assertion that the meaning of a word is plain fulfils their desire to state conclusions. For such a person articulation of the value choices is foolish, since there were no choices in the first place, and hence discussion of them would be useless. The plain-meaning rule also stops discussion, since any attempt to engage in it dissolves into an "it is'7"it isn't" exchange. This would take us back to school-yard discussions in elementary school. Perhaps we should call it the "school-yard" approach. For devotees of the plain-meaning rule it is occasionally accepted that the plain-meaning or language context can be departed from if it would lead to some absurdity, or repugnance or some inconsistency with the rest of the statute in which the words appear.21 This is a natural position to take since

62 The Judge as Adjudicator judges and lawyers have an interest in the governing of society, and would try to avoid creating absurdities in the law. The second context, that of the law, is thus brought into play, but unfortunately the vagueness and indefinite nature of the idea of an absurdity is the same as the idea of a plain meaning — it allows one to jump at answers. Is there any legitimacy, however, in the thought that so long as the decision reached by a judge can be justified by the language context, then there is no need to agonize over the other contexts? For a pure adjudication model such as might be acceptable in the corporate-commercial world, this view might possibly have an appeal, but for any role of the judge in stating the law or reforming it, it loses legitimacy since the other contexts must come into play. Even for adjudication the question of why the real reasons are not stated, and why one would simply justify within the language context, seems difficult to answer. It is likely that a judge will always take the legal context into account when giving meaning to words, along with the obvious language context. When the social context is introduced, the controversial topic of the purpose of a law arises, that is, the policy behind the law, or the social values. Concern with determining the actual purpose of a law leads to the discovery that there still survives, rather like a ghost or spirit than something of substance, a rule known as the rule in Heydon s Case.22 According to this rule, which dates from the sixteenth century, a judge is directed to determine why a law was created and then interpret the words of the law in keeping with its purpose. It is obvious that this rule of interpretation runs completely counter to the plain-meaning rule, and in light of the official commitment of the Supreme Court to the plain-meaning rule over the years, it is no wonder that the rule in Heydon's Case is a ghost - one would expect it to be dead. That it could still be brought forward in 1938 by Professor John Willis in his article on the topic may have been more of an attempt on his part to keep its spirit alive, rather than a description of what judges were saying that they were doing. Heydon's Case was decided in 1584,23 which tells us that it comes from the heigh-day of judicial law making in the common law. The plain-meaning rule, on the other hand, dates from the mid-nineteenth century, when law making by the judiciary was being repudiated in conformity with the corporate-commercial model.24 To make matters virtually impossible for anyone who thought of breathing life into the rule from Heydon s Case was the existence of an additional rule that ostensibly prevented a judge from referring to any matters extrinsic to the words of the law.25 It was therefore not possible to determine the policy of a law — its purpose. For the advocates of the plain-meaning rule, that was just as it should be. The intent of legislation had to be determined from the words used; there was nothing else. Inevitably, however, the purpose behind a law is public knowledge and as such it would be silently noticed, without a

63 The Captive Court specific declaration by a judge that judicial notice was being taken. Thus the judge would undoubtedly be aware of the reason why the law was passed and although apparently dealing with the plain meaning of words, would be applying that known purpose to the task of giving the words their supposed plain meaning. A problem can occur if a lawyer should wish to argue that the words should be interpreted in a particular way, and attempts to show that the proposed meaning fits with the purpose, or even that a change in the original purpose has occurred because judges have altered it in the past and the lawyer wants to return to the original purpose. The judge can resist the challenge by use of the plain-meaning rule. The degree of control over a judge is greater if the purpose of the law has to be articulated. The use of the plain-meaning rule gives the judges enormous personal freedom, whereas emphasis on the purpose constrains them. The conclusion is that in order to determine whether a particular set of facts falls within a rule, a judge must consider such things as public opinion, political expediency, ethical values, justice, values, aims of the society (consensus within society), and social, economic, and political policy. I prefer to call all of these by the name social values. If social values are not taken into account, then what is? A literal application of a rule is assumed not to be possible. Thus the judge cannot respond to the question "why?" by saying that the words of the rule compelled the answer. It is necessary to be alert to the fact that current values dominate judicial decision making, except in the most obvious of cases, and if it is naively accepted that the words of a rule the symbols — are dominating, then judges are provided with opportunities for the input of their own unarticulated values. Judicial decisions must be analysed for the values that conditioned the conclusions that were reached. Discussion and debate can then focus on the appropriateness of the values chosen by the judges. 4 The Decision The result in a case is important, particularly for the litigants, but the reasons behind the result make the law and that is what is of interest to the legal profession. The result alone is an act of will and the exercise of political power. In a proper analysis and evaluation of the judicial function, no credit should be given for the decision reached. There must, of course, be a decision, since otherwise there would be a complete failure of the judge to perform the assigned function - to arbitrate a dispute. The only question to be asked with respect to the decision reached is whether it follows reasonably from the previous three parts, that is, from the facts, the law, and the application. Result-oriented decision making, meaning that a judge has reached a conclusion without concern for the law, is clearly improper. Should a judge feel compelled as a human being to reach what is perceived to be a just result,

64 The Judge as Adjudicator regardless of the existing law, then reasons for judgment must be created to support the decision. The reasons given create law, and the saying that hard cases make bad law could be applicable. If a judge wishes to reach a certain conclusion but is confined by the law as objectively determined, then perhaps the law should be changed. The reform function of the judge, which is the subject of the next chapter, might be engaged. It might be of concern to some that no merit or demerit per se is given a judge for the final decision. How would one evaluate a judge who administers law that is perceived to be evil? Naturally, a discussion and study of the notion of "evil" raises problems of enormous proportions by itself. According to what has been dealt with in the previous parts of this chapter, it would appear that the particular judge could be assessed as an excellent judge; however, assuming that a law could be classed as being evil, then the society in which the particular judge was functioning would itself be tainted with evil, and consequently also the judge. Possibly one might accept the proposition that a judge might pass as a judge and fail as a human being. However, the evaluation of the judge merely as a judge in such a society would be completely inconsequential. THE REALITY BEHIND ADJUDICATION is that to the extent that there is a choice for a judge (or lawyer) when selecting a common law rule and when applying the rules, it must be the social context that determines the choice that is ultimately made. The values of the society at the given moment would incline the judge to a particular decision. The consequence of the decision would be relevant. When, however, there has been a change in social values over the years so that the trend of past decisions is no longer acceptable to a significant segment of society, then the judges would have three alternatives: to take the precedents as stating the law, and apply the law regardless of current social values, perhaps with the comment that it was hard law but still the law; to reform the law by treating the previous cases as an application of the rule and then create a new application without reforming the base rule in any way (application reform); or to take the precedents as the law and then change them to reflect current values (rule reform). The references to reforming the law in the last two alternatives mean a move out of the role of a judge as an adjudicator and force an examination of the role of the judge as a law-reformer. When dealing with the judge as an adjudicator, it was important to distinguish between finding the rule of law and applying it. This distinction is still vital as there are two instances of law reform, application reform and rule reform. Although over the years many judges have staunchly denied the fact, the truth is that they have always engaged in the task of reforming the law.

6 The Judge as Law-reformer

It is when the move is made from an examination of the judge as an adjudicator to the study of the judge as a law-reformer or law-maker that the most common controversy is encountered that exists within the legal system. What are the limits on judicial law making? When should judges make law, and when should they not? It is possible that the query as to whether judges make law can still be heard, but today that question is a relic of the past. However, in the chapters that follow it will be seen that the latter question was very much alive for the greater part of the Supreme Court's existence. In the past it appears to have been accepted virtually without question that the position with respect to our legal system was: "Our Court is different [from the Supreme Court of the United States]. Our Court does not make law. Canadian law is made only by various governments. Our justices interpret the law already passed."1 Within the legal profession itself, the phrase "interpret the law" could be understood to include law making by the judiciary, and the word "legislate" was reserved for use with the legislature.2 It was the case that differences could be articulated between the law making of the legislature and that of the judiciary, but there was still judicial law making. For the public in general, the word "interpret," as shown by the above quote, could be taken to mean something other than law making. However, many within the legal profession also believed that judges did not make law. When the "decision" as part of the process of legal decision making was examined in the previous chapter, it was pointed out that if a judge feels constrained by the law to reach a decision that is though to smack of unfairness or injustice, then the judge should be requested by the lawyers to consider changing the law. What must be avoided is the reaction of a judge who does not realize the potential for reform in conformity with the judicial function and considers that reform is improper and yet is compelled by a personal sense of justice to reach an ad hoc decision. When such a judge

66 The Judge as Law-reformer gives reasons for the decision that he has reached, the need arises to create law to fit the result, although the judge would probably declare that it is beyond the judicial function to do so. What this masked ad hoc law making produces in the end is confusion and possible injustice for future litigants. The action of a judge as a renegade attempting to administer some personal concept of justice must be rejected as illegitimate. There would be a direct breach of the constitutional doctrine of Rule of Law in such an action. When the legitimate scope for law reform within the judicial function is realized, there ceases to be a need for excursions into ad hoc decision making. Law reform or law making by a judge is of two kinds - rule reform and application reform. The considerable discussion that has taken place over the years about judicial law making could have been considerably attenuated by an identification of the two methods of reform. An understanding of the differences between them can lead to a greater understanding of the legal process. If the law that the judge is being urged to apply in order to solve a particular problem is judged to be in some way inadequate, then there would seem to be a need to change it. The inadequacy will inevitably result from social values that have changed between the time that the law was created and that the case is being decided. Clearly, the political process can be used to have the legislature effect the necessary change, but that is not the direct concern here, which is reform by a judge. The ability to reform the law creates political power within the legal system, but the system makes that power available for use only in the service of the client. Thus, the reform of the law within the legal process depends on who the client is and how clients are selected. The client orientation disappears for reference cases when the government refers to the court questions that almost inevitably concern constitutional issues. The political power of the Supreme Court increases dramatically in reference cases. APPLICATION REFORM Until recently, whenever legal scholars discussed law reform, they used language that conveyed the sense of development or modification of a rule. The substance of such discussion was application reform. Application reform, and indeed the application of law itself, is best understood by using the concept of a "base rule." This is simply a readily identified rule, which, in addition to being a provision in a statute or a code, can be a rule of the common law, a principle of law, or a maxim that has over the years attained a position of some permanence. In the past any discussion of law reform that dealt with the question of changing or altering a "base rule" (rule reform) within the common law

67 The Captive Court would be centred on the doctrine of stare derisis, which ostensibly blocked any such reform.3 It must be noted that rule reform is simply not possible when the base rule is a statutory rule. Only the legislature can change the actual language used in a statute. Since until recently the doctrine of stare decisis had the appearance of being solidly in place, it was consequently concluded that it was not possible for a judge to undertake rule reform or law making with regard to base rules. As cases have occurred in which a base rule has been applied, it was entirely probable that those cases applying the rule would be looked upon as part of a new rule: BASE RULE + APPLICATION(S). To the extent that the rule plus the application makes the next application a more mechanical activity, then finding the law might alone suffice. The various applications would create a series of very specific rules. When a base rule has existed for many years and has had many applications, a series of fairly specific rules can develop, thereby allowing for finding the law to be the only activity required. These rules would in essence apply themselves because of the specificity of their language. Thus, the steps of finding the law and applying the law can become blurred. The finding of a fairly specific rule would essentially result in its automatic application. Until the need for reform arises, it does not matter whether the solution of a problem within the legal system is treated as one involving "law" or "application" - the distinction is unimportant until the need for change is felt. When a need for law reform occurs in a case in which the rule being applied is BASE RULE + APPLICATION(S), then a judge may either continue to treat the applications as having created a new rule and reject reform since it would be viewed as rule reform or the judge may be prepared to return to the base rule and strip away the old applications, treating them only as applications. Thus a new application that is made possible by discarding the old ones could be justified by referring to the fact that the base rule had not been changed; simply its application has been altered. This approach has been employed by lawyers and judges over the years and where, in principle, judicial law reform was controversial, any reform that did occur would more often than not be presented in language that gave the appearance of being a simple application of law. A critical analysis would reveal the reality of what had happened. The mental process of reverting to the base rule and viewing cases that interpreted the language as simple applications that serve as guides to decision making but are not in themselves rules that must be followed is the theoretical approach used when applying a code of law. The language of application reform over the years has usually been identified by the expression "development of the law": the law (base rule) has supposedly remained constant, but its use has been developed to meet new social needs.

68 The Judge as Law-reformer RULE REFORM

Rule reform does not exist for statutory rules. It is only by giving new meaning to the language used and the stripping away of previous applications, which would allow a new trend to develop, that change in legislation can be undertaken in the legal system. Since statutory rules are usually expressed in general terms, the application reform that is available can be significant. The subject of rule reform applies to judge-made rules, namely the common-law rules. It must, however, be recognized that many commonlaw rules have achieved a status equivalent to statutory base rules because of their longevity, and thus are prima facie put out of the range of judicial reform, other than through application reform. As has been mentioned, until very recently any discussion of rule reform in the legal literature was always centred on the topic of stare decisis* This term meant that a judge was powerless to change a common-law rule and society (as well as the litigant) had to rely on the legislative process to create reform. Stare Decisis The doctrine known as stare decisis, in translation, means simply "to adhere to" or "to abide by" [decided cases]. A judge is bound by the law as clearly enunciated and laid down as the basis of a judgment in a prior case, and that law cannot be changed by the judge. Over the years, the major significance of stare decisis was that within the legal system there could be no deviation from the rule laid down in a previous decision, whether it had been "wrong" at the time it was made, or whether it was not in conformity with current social needs. No matter what compelling reasons might exist for an alteration of the law that had previously been enunciated, they were to no avail in the legal system. Reform had to rest with the political process. There was, of course, a certain choice available as to the selection of a rule from a case, as was mentioned in the previous chapter. The doctrine of stare decisis is part of the broader theory of precedent, which maintains that present decisions should be based on those rendered in the past. It is virtually self-evident that rational decision making requires reliance on the decisions made in the past, since expressions of rationality are founded on experience. Fairness in treating like cases the same would also favour the following of previous decisions. Stare decisis, however, as it is known within the legal system, goes beyond the theory of precedent and thoughts of fairness since it directs that previous decisions are binding, not just persuasive, or serve as examples, but must be followed or else rationally distinguished. The significance is that changes in social values would seem to be excluded from consideration within the legal process. Reform of the law due to changes in social values would be passed over to the political system.

69 The Captive Court The treating of past decisions as more than persuasive or exemplary, but as imperative directives, whether rationally appropriate or not, is bolstered directly by the theory that the judges do not make law, but only declare it. The mental process that was required by the legal profession was one that attempted to solve the problems that had been presented to it solely by the application of rules of law that had been derived from existing principles and judicial precedents. Law was seen as a self-contained set of rules and principles from which the judge and lawyer need never depart. The resulting conclusion was that judges would never be law makers. The value inherent in stare decisis is certainty in the law as applied within the legal system. Whether a person believes that the law is good or bad, at least the law is known. Certainty is seen to generate stability, simplicity, and the impersonality of adjudication. The point was admirably made by Chief Justice Rinfret in the Supreme Court of Canada in 1951: "It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined."5 As will be seen in the chapters that follow, the desire for certainty seemed to become compulsive for many within the legal system, and any value in keeping the law in tune with the social values under which the litigants lived was pushed aside. With stare decisis intact, the judges could thus assert that policy considerations were not for them and their only task was to search through the language of a previous decision for the basis of that decision, which could theoretically be reduced to a short and pithy statement in the form of a rule. So much for the theory of the operation of the doctrine of stare decisis: The reality of how it worked created considerable scope for judicial creativity. Even the most cursory examination of the application of the doctrine by the judges shows clearly that there was the opportunity for choice by a judge, which had the potential to interfere significantly with the certainty that had apparently supported the doctrine. The choice gave the judge and lawyers scope for creative thought. It bears repeating that "the law" that arises from a previous decision, which the doctrine of stare decisis requires that a judge follow, is called the ratio decidendi of that decision. The Latin phrase, ratio decidendi, translates into nothing more than the reasons for the decision, which can naturally offer the possibility of choice. Every case that a judge decides yields at the very least two possibilities: the narrowest is based on the facts of the decision and the result in the case, so that if a case with identical facts arises then the same result is demanded. From this narrow rule it is possible to begin to generalize, and at least one general principle can be deduced (and very likely

70 The Judge as Law-reformer

more). The two possibilities (at least) that exist can be referred to respectively as the "rule" from the case or the "principle" of the case. Thus every previous decision yields a range of possibilities as to the applicable "directive" that must be followed. There are choices to be made. Since ratio decidendi involves a choice — ranging from a general principle to an exact decision — the result is that rule reform, which is not acceptable under stare decisis, can be converted into application reform by the selection of a more general proposition. Thus, each set of facts can become applications of the general rule. On the other hand, by selecting the narrowest possibility, the previous case can be effectively eliminated as a precedent, since it has been restricted to its particular facts, and a consequent complete liberation from the burden of stare decisis has been achieved, unless the case has facts that are identical to the earlier one. Distinguishing a case becomes easier the narrower the formulation of the ratio selected. The scope for choice in selecting an appropriate ratio decidendi provides an opportunity for creative thought. Whether it is taken advantage of depends on the ability of the participants in the system, and their will to do so. Although the doctrine of stare decisis appeared to be quite restrictive, yet in reality there was considerable scope for creative thought. When in the late 1970s the Supreme Court altered its position and directed that stare decisis would be a rule of practice rather than a rule that had to be followed, the way was opened for overt reform of judge-made rules. IN EXAMINING the question of rule reform, it is important to consider when a judge would want to depart from an earlier precedent. As a general proposition one would not want to follow a previous decision in two situations: first, if the earlier judgment was considered wrong, such as a per incuriam decision in which a previous binding authority had been overlooked and the previous decision had unquestionably applied the wrong law. It has been possible for some time to ignore a decision on this basis but it should be so rare and so politically unpalatable that it need not concern us to any degree at all. The second situation would be if the earlier judgment is considered out of date, in that it no longer fits with currently held social values. One can accept that the previous decision was correctly decided at the time it was heard, but if the case were to be considered as arising for the first time today, it would be decided differently. To reach the conclusion that the earlier decision is no longer socially compatible, the court must consider the social, economic, and political facts of yesterday and today. The traditional factors used in solving a dispute, such as precedent, now fail to answer the question before the judge. In this case, policy or social values can no longer be hidden or neglected. There is, however, a third possibility lurking in the background, namely, that the judge would personally at the moment decide the case differently if it were presented for the first time. This should not exist independently of

71 The Captive Court

the first two situations. The Rule of Law should prevent its existence. That this improper action of the judge can be hidden is a possibility, but hopefully with analysis it can be detected and made public. Since there is probably more than one reasonable solution to a problem, the result is that a judge must exercise restraint from interfering with precedent unless reform is indicated by social changes, and not because of a personal preference for a certain reasonable answer. One thing that appears certain about the Supreme Court is that for the first century of its existence, stare dtcisis in all its pristine glory was present and unquestioned. How the judges coped with it is part of the story to come. Law reform, whether application reform or, since the 1970s, also rule reform, must be predictable, at least to the extent of knowing when an argument in favour of reform can be made. It is not every case that calls for creativity of this nature. The great majority of cases are disposed of in the lawyer's office, in negotiations, in attempts to settle, at a trial, or on the first appeal. While there may be many so-called routine cases, yet there are occasions when creativity is required, and it will be these cases that test the legal process and the profession. For the Supreme Court of Canada, as the highest court, the claim for a law-reform function is compelling, since it is difficult to maintain the view that the appeal should be simply another hearing. Creative decision making requires a thought-process that allows for creativity. Looking to "law" involves linguistic analysis, while looking to "application," which involves thinking about the problem, allows for creativity: the difference is between formulating arguments as to the wording of a rule that will achieve a particular result without articulating why this is being done and formulating arguments that engage social values. In deciding a law-reform case, there is a need to articulate social values and to compare the values with those inherent in the existing law. The changes should accommodate the present social values. When contemplating the search for social values the question that arises is whose values should govern. It seems inevitable that within any society there will exist a majority of people with "dormant values" with respect to a particular social issue. Everyone should not be expected to become agitated over every possible social question. How one views those people with dormant values, with respect to awaking them or not, is a potent political question, which need not concern us directly at this point. It is not to be expected that lawyers and judges will have to conduct polls or canvas the citizen on the street corner. The values to be tapped will be those that are readily apparent. Those within the political process will be expected to awaken dormant values (if that is their social philosophy) in order to present for the legal profession a picture of dominant values within the society. In addition, within a democracy, there will be conflicting values contending for dominance. In a case that has reached our highest court one would naturally expect that there will be conflicting values and

72 The Judge as Law-reformer the need to make a choice. The judges must determine the dominant values. If there are no identifiable dominant values then the status quo must remain. In addition to declining to alter the existing law because new dominant values cannot be identified, a judge may decline to reform law for a number of other reasons, and could conclude that it is more appropriate for the political process to take action. A rule might have become so well established that it is treated as the equivalent of a statutory rule. A judge may lack confidence as to the efficacy of any change in that the effect of the proposed change on society is not known or is uncertain, and there may be a need for research that cannot be adequately carried out in the legal system. The case can be simply too controversial and there is a need for public involvement and discussion. What should not occur is that reform is declined on the basis that it is not the judicial function per se. If judges and lawyers try to avoid troublesome and taxing reform cases and treat all cases as routine adjudication matters, the result would be a routine, uninspired legal system — a captive system. "Judicial Legislation" There is little question that over the years various judges have engaged in law reform, until recently normally disguised as simple application reform. More often than not, and definitely in the years prior to 1970, such action would be controversial and would generate comment among the judges. The expression "judicial legislation" was occasionally used by some judges as a pejorative expression that signalled improper judicial action by a colleague. The expression is much more common today than in the past and indicates that a judge is being accused of going beyond the judicial function and of intruding on the legislative function. IT MUST ONCE AGAIN be pointed out that judicial law making differs from legislative law making. The legislature has sole jurisdiction over the words of a statutory provision — their meaning is for the judges. It is also important to realize that parties to litigation want to have the dispute settled in their favour, and are not normally inclined to take on the task of funding law reform and solving a wide-ranging problem of society, unless it is needed to win the case. It is also crucial to realize that judges should not be selfmotivating, and the lawyers in the cases should initiate the arguments that will then be accepted or rejected by the judges, unless of course the lawyer's contribution is clearly deficient. The issue of creative action on the part of the legal system is definitely engaged when the law-reform role is undertaken, whether application reform or rule reform, but it is also required for the so-called simple application of law, and is the subject of the chapters that follow.

PART C The Early Years, 1875-1885

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7 The Beginning, 1875-1879

When the judges sat for the first time on Monday, 17 January 1876, there were no appeals ready to be heard and the sitting was adjourned. When the next session began in June, there were three appeals to be heard.1 In the meantime, religious controversy had already touched the court in what can be considered its first case although there was no file number assigned to it. It was a reference directed to the Supreme Court from the Senate, In re "Brothers of the Christian Schools in Canada. "2 There was no hearing, nor was any written argument presented. The Senate had been dealing with a private bill to incorporate a Roman Catholic society of teachers, the Brothers of the Christian Schools, when protestant senators raised the question of whether there was constitutional authority for the dominion to do so. When it was agreed to refer the question to the new court in April 1876, the Roman Catholics perceived the action to be an interference with their religion. Only three judges, Strong, Ritchie, and Fournier, considered the question; William Ritchie declined to give an answer, since he had doubts as to whether the legislation that authorized the reference allowed the expression of an opinion on the authority to pass a private bill. In the end, only Strong and Fournier answered the question put to them. They were of the opinion that the bill fell within the provinces' constitutional authority over education,3 and therefore the incoipoiation of the society was beyond the power of Ottawa. Already one of the so-called "peculiar circumstances" that were said to exist within Canada, namely strong divisive religious feelings, had reached out to touch the Supreme Court. In June 1876, at the first formal hearings by the judges, there was the merest taste of cases with only three, yet they were surprisingly indicative of the future work of the institution. A constitutional issue appeared that concerned the vital question of the legislative authority over trade and commerce. The judges were able for the moment to avoid dealing with this, since they unanimously agreed that they had no jurisdiction; the case had

76 The Beginning, 1875-1879 been decided by the Ontario appellate court before the Supreme Court was operational. The hearing of the issue would have to wait, but not for long.4 In Kelly v. Sullivan, a major social problem reached the court in the guise of the Prince Edward Island Land Question.5 This case has the honour of bearing file number one. After Prince Edward Island (then called L'lle StJean) was ceded to the British in 1763 by the Treaty of Paris, the island was surveyed into sixty-seven lots of 20,000 acres each and then distributed by lottery among a few fortunate individuals such as military officers and others to whom favours were owed by the government. Although the grants of the land contained conditions stipulating that the land should be developed, little was done by the landlords. A system of absentee landlords came into being, and the great majority of the settlers were forced to become tenants if they wished to remain on the island. The situation created considerable agitation and several attempts to remedy the problem by forcing the proprietors to sell to settlers had met with no success. The case that reached the Supreme Court involved the final attempt by the province to solve the problem. In 1875 Prince Edward Island had enacted the Land Purchase Act, 1875,6 which provided for the compulsory purchase of those lands still not in use by the owners. A tribunal was set up to deal with any disputes. One landowner whose property was slated for purchase objected to the process, and appealed to the Supreme Court of Prince Edward Island from the decision of the land tribunal that had found against her. The Island court quashed the award that had been made, and the commissioner of public lands of the province appealed to the Supreme Court of Canada. The appeal was heard by five judges (Mr Justice Henry was absent because of illness) and it was allowed unanimously. The decision of the Supreme Court of Prince Edward Island was thus reversed and that of the special land tribunal was restored. The conclusion reached by the Supreme Court was that the Island court did not have authority to consider the merits of the award, only whether the question of the land was properly before the commissioner, that is, whether the commissioner had proper jurisdiction. The conclusion was that the regular courts had no power to review the award of compensation for the taking of the land. The court adopted a hands-off policy with respect to the province's attempt finally to solve the land problem. The third case was from Ontario and involved a commercial matter, an area of law that was expected to occupy much of the energy of the new court. The case concerned the purchase of a water-wheel for a mill.7 With the January session of the 1877 term of the court, the workload began to increase. Ten cases were heard on their merits, followed by twelve in the June sessions, making a total of twenty-two cases for 1877. The cases were divided approximately equally between Quebec (eight appeals) and Ontario and Nova Scotia (seven each). The practice was to sit with the full bench of six judges, which required the appellant to convince four judges to reverse the lower court's decision. An

77 The Captive Court

equal division of 3 - 3 would result in the appeal being dismissed. In the 1870 bill to create the court, a provision for a 4 - 2 vote had been included, but this was absent in subsequent bills. With the court sitting in panels of six, this rule had been achieved in practice. With respect to the judicial function, it was highly significant that an equally divided court was considered socially acceptable. The maxim semperpraesumitur pro negante (the presumption is always in favour of the one who denies) was said to be applicable. Acceptance of an equally divided court meant that little, if any, thought was being given to the idea that judges were creating law rather than simply settling disputes based on established criteria. With an equal division, it would be impossible to look to the reasons for judgment in the case for a clear statement of the law. The search for the law in the decisions of the court was also made difficult by the practice of each judge writing a judgment - sometimes long, sometimes short, but almost always something would be written by each judge. There was at this early stage little evidence of an attempt to establish an institutional response in the cases. Of the twenty-two appeals that were heard and decided on their merits in 1877, only four could be considered federal in nature, and one of these was questionable.8 This meant that a limitation upon the jurisdiction of the court based on concerns for provincial autonomy by the removal of cases involving provincial law would have had a crippling effect upon the workload of the court at the time. Property issues, as well as corporate and commercial matters, accounted for almost two-thirds of the cases heard. A BAPTISM OF FIRE In the 1877 term of the court, the judges were exposed to cases that can rank as the equal of any in the court's history for being controversial and important. BRASSARD v. LANGEVIN, 1877 The Guihord case that had proved influential in the establishment of the Supreme Court, had publicized certain aspects of Quebec society: its nationalism, the power of the Roman Catholic church, and the identification of the church with the state, and hence the church with French Canadian society. The publicity had heightened religious divisions within Canada.9 It can be imagined that the last case that the judges of the Supreme Court would have wanted to hear was one that involved the same issues that had projected Guibordonto centre-stage, but such a case was argued before them in the first year of their operation. This was truly a baptism of fire. The case involved a petition challenging the results of the by-election that had been held on 20 January 1876 in the Quebec riding of Charlevoix, in

78 The Beginning, 1875-1879 the oldest settled region of the province, in the cradle of the French in America. The Conservative candidate, Hector-Louis Langevin, had defeated his Liberal opponent in the by-election. The validity of the election result was challenged on the basis that undue influence had been exerted on certain electors by some Roman Catholic priests. In sermons and private conversations, the priests had made it known to electors that it would be a sin to vote for the Liberal candidate and the Liberal party, which was said by the priests to be dangerous and which had to be crushed. Voters for the Liberals were also threatened with the deprivation of the sacraments. Langevin, a father of Confederation and an ex-minister in Macdonald's Conservative government, had been heavily involved in the Pacific Scandal in 1873 and did not run in the 1874 election, since he could not obtain a safe seat. He was invited to run in the county of Charlevoix in the 1876 by-election and agreed on condition that the church would support him. The Superior Court judge, sitting as a judge under dominion law for the trial of the controverted election,10 dismissed the petition challenging the election, and an appeal was taken to the Supreme Court. Before the Supreme Court, the argument for the appellants, the Liberal electors, was presented by J. Bethune Q.C. as senior counsel, and F. Langelier. Bethune was a member of the Ontario bar, while Langelier was from Quebec. The lawyers for Langevin and the Conservatives were James Cockburn Q.C., of Ontario, and C.H. Pelletier of the Quebec bar. This was an interesting line-up with Ontario lawyers leading for both parties in this Quebec case. Bethune and Cockburn were also both Protestants. The effect was naturally to defuse religious emotions and to give the legal process more of a neutral appearance. The church versus state controversy that was central to the case was made clear by the arguments presented to the judges. The arguments for the appellants, who sought to annul the election, centred on the freedom of elections coupled with the position that the laws of the church were subordinate to the laws of the state and that a priest could not claim immunity from the legal process under the constitution. The respondents took the position that freedom of religion existed, which required that the church should not be limited by the laws of the state. The appeal was heard at the end of January 1877 and took six days, an unusually long period of time, which meant that all parties were being given the time to say what they wanted so as to avoid any accusation that the hearing had been unfair. The Supreme Court rendered judgment quickly, four weeks later, on 28 February." In an unusual move, the judgement of Jean-Thomas Taschereau was reported first in the law reports ahead of Ritchie's judgment. Inevitably the judgments are reported in the order of seniority of the judges, with that of the chief justice presented first. Taschereau wrote in French and his judgment was translated in the reports. In a display of candour, he acknowledged

79 The Captive Court

the difficulty that he and Fournier as Roman Catholics had had with the case. From the facts and the relevant law, he had no difficulty concluding that there had been a breach of the law and he declared the election void on the basis of undue influence. Taschereau maintained that a priest had the role of exercising spiritual functions and dealing with religious matters. He thus challenged the ultramontane position of the church as controller of the state. He went on to dismiss the notion of the immunity of the priest from civil tribunals, which had been affirmed by the trial judge, and which he termed an extraordinary doctrine. Evidence of what must have been the considerable degree of stress that Taschereau experienced in the case clearly emerged when, in the strongest language ever to be heard in a Supreme Court of Canada judgment, he disavowed any personal involvement in reaching his decision. It was the law, he affirmed, not him, that had created the result! He said: As for me, my oath of office binds me to judge all matters which are brought before me according to law and to the best of my knowledge ... I must, therefore, carry out this law fully and entirely, conformably to the Act ... I have no discretion to employ. I cannot alter the law, and I think that, in favour of this proposition, I have the support of the soundest theologians who have written on the question of determining how far the powers and the duty of the judge extend in the application of a law, and even of an unjust law.12

He went on to add that the law was not contrary to his religion. The proposition of law that he used was that "the priest must not appeal to the fears of his hearers, nor say that the elector who votes for such a candidate will commit a sin, or incur ecclesiastical censure, or be deprived of the sacraments."13 In a show of solidarity, the chief justice, William Richards, as well as Strong, Fournier, and Henry concurred in the result reached by Taschereau. Only Ritchie rendered a separate judgment, thus spoiling the unusual demonstration of cohesiveness among the judges. In his judgment, Ritchie elevated the importance of the case by characterizing it as one involving "grave questions of constitutional law." As had Taschereau, but with much less force, he dealt self-consciously with his role. He commented that "having determined what the law is, we have only to apply facts we may find established by the evidence to that law, and to declare whether there has been any breach of the law."14 The constitutional principle identified by Ritchie was that of freedom of elections. The law promoted this freedom, he wrote, by prohibiting anything that was calculated to interfere with the free and independent exercise of the franchise. While the freest and fullest discussion was needed for effective elections, yet this did not include undue influence or intimidation. Ritchie accepted that undue spiritual influence was within the law, and that the church was subordinate to the civil law based on the principle of the constitution that no one is above the

80 The Beginning, 1875-1879

law. Ritchie said: "So long as a man, whether clerical or lay, lives under the Queen's protection in the Queen's dominion, he must obey the laws of the land, and if he infringes them he is amenable to the legal tribunals of the country- the Queen's Courts of Justice."15 The frequent reference to"Queen" would not have been lost on the reader. It was accepted that in constitutional matters, English law was to govern all of Canada, and by Ritchie's characterization of the cases as involving constitutional issues, this meant that he was also free to apply English social values. Ritchie concluded by referring to the actions of the clergy as "terror."16 He could not let the opportunity pass to chastise Quebec in what for him was a characteristically moral tone. Jean-Thomas Taschereau's brother, Archbishop Elze*ar-Alexandre Taschereau was not in complete sympathy with the ultramontane position and the court's decision did not ofFend him. He had softened the ultramontane stand following the by-election by a statement in May 1876 in which he forbade his priests to give political advice.17 However, the bishops in the province formally protested the decision of the Supreme Court.18 As a result of the stand taken by the Taschereau brothers, they were denounced and their religious faith questioned by the strong ultramontane forces in the province.19 The decision of the Supreme Court generally boosted the prestige of the court in English Canada. The Toronto Globe thought that the law had been "courageously interpreted,"20 and printed the full text of the judgments.21 In Quebec, however, the Supreme Court became identified by many with the hated liberalism. About this time, comments began to be raised that the language of the court was English, and all documents were required to be translated, although this was not true for decisions of the Privy Council.22 Thus for some, the court began to be seen as an English-Canadian court with English protestant values. SEVERN v. THE QUEEN, 1878 In June 1877, the judges heard the appeal in Severn v. The Queen.2* This was the first constitutional case heard on its merits by the court, and it could not have been more significant. It involved the immensely important trade and commerce power in the British North America Act.24 Constitutional authority over business matters — the commercial life of the nation — was at stake, and what would emerge were the judges' views of Confederation and the extent of provincial power vis-h-vis dominion power. John Severn was a brewer licensed to manufacture beer by the government of Canada under the authority of a dominion law.25 However, at the time there was also a law of Ontario that required a person to have a licence in order to sell beer of a certain quantity by wholesale for consumption in the province.26 In January 1877, Severn sold wholesale five hundred gallons of beer that he had brewed under a dominion licence, but he did not have an

81 The Captive Court Ontario licence. When the province moved against him to recover the penalties in the way of fines that were provided by the Act,27 he challenged the constitutional validity of the Ontario law. The appeal raised clearly the question of the control of business through licensing. Both the province and the dominion were vitally interested. That the question was very much alive can be seen from the fact that the previous year one of the first three cases to appear before the court in June 1876 had contained the same issue. In that case, Taylor v. The Queen* another brewer had been charged with a similar sale of beer and had raised the question of the validity of the Ontario Act; he was acquitted when the Act was held to be invalid since it was said to deal with trade and commerce, a dominion area of legislative competence. In that case, the province had appealed successfully to the Court of Error and Appeal. The four judges of the Ontario appeal court, which included Henry Strong, were unanimous that the Act was within provincial power. The attempt to appeal the decision of the Ontario Court of Error and Appeal to the new Supreme Court failed when the Supreme Court declined jurisdiction on the ground that the case had been decided by the appeal court before the Supreme Court had been established. The eagerness to have the issue dealt with could be seen by the fact that both parties had given their consent to have the case heard by the Supreme Court and both contended that the court did have jurisdiction. When the Severn case came before the Ontario Queen's Bench, that court followed the judgment of the appeal court in Taylor and held that the Ontario statute was valid. Interestingly, the judges commented that they did so "in deference to the existing decisions of the Court of Appeal, and not from any actual conviction that it [was] correct."28 Since the Ontario appellate court had expressed its opinion in Taylor earlier, it was considered unnecessary to appeal to it, and by the consent of the parties, as allowed by law, an appeal was taken directly to the Supreme Court from the decision of the Queen's Bench.29 James Bethune appeared for Severn, as he had earlier for Taylor, and the theme of his argument was that dominion power under trade and commerce gave it control over trade within the province, as well as trade that was external to the province. Selling was said to be as much a part of the trade of the brewer as manufacturing. The Ontario law was pictured as a danger to trade. The province of Ontario was represented by its attorney general and premier, Oliver Mowat, whose tack was straightforward: "I claim for the Provinces the largest power which they can be given: it is the spirit of the B.NA. Act, and it is the spirit under which Confederation was agreed to."30 Only ten years after Confederation, Ontario was directly challenging Ottawa for power. For the appellant Severn, the point was urged that the provinces had only that legislative power that was expressly given them by the constitution, and

82 The Beginning, 1875-1879 the dominion had all other powers. On behalf of Ontario, Mowat took the opposite approach - the provinces were said to have all the power that they possessed as colonies prior to Confederation, unless it has been expressly given to the central authority. The very nature of the constitution pertaining to the distribution of legislative power was made an issue. That Mowat would make such a point in 1877 indicates that Macdonald's vision of Canada was collapsing, and a true federal system was evolving. It would have been reckless for Mowat to have urged only this broad and far-reaching argument, so he also presented the judges with a much narrower argument upon which could be based provincial power to enact the challenged statute. This argument focused on a distinction between manufacturing and selling. Mowat invited the judges to accept that at least the regulation of the selling of a product was within provincial authority. As the first constitutional case to be heard by the judges, it would have seemed strange for them not to have attempted to lay down some ground rules — views of Confederation, and thoughts as to how to interpret the constitution. The full bench of six judges heard the case. The opinions of three of the judges were already on record. Richards had been on the Queen's Bench in Taylor and had decided against the provincial claim, and in favour of dominion power. This position was overruled by the Court of Error and Appeal of which Strong had been a member. Richards was thus to have another chance. Ritchie had taken a very pro-dominion stance on the same question in am 1875 New Brunswick case.31 In the end, the division among the judges was 4—2 in favour of dominion power, and the provincial law was declared invalid. The two Quebec judges, Jean-Thomas Taschereau and Telesphore Fournier perhaps somewhat surprisingly came down on the side of the dominion authorities. Taschereau commented that although he had doubts, he was prepared to declare the provincial statute invalid. The other two judges who made up the majority were Chief Justice Richards and William Henry. Henry Strong and William Ritchie were the dissenting judges. Each judge wrote a judgment, which contained a wealth of information. With respect to the all-important question of the judicial function, a significant difference was demonstrated between the judges. The approach taken by the chief justice in his consideration of the constitution was not accepted by all of the judges on the court and he felt compelled to defend his view. He said: It may be that I do not take a sufficiently technical view of the matter, that I look too much to the surrounding circumstances and the legislation which I consider applicable to the subject, and that my mind is too much influenced by those circumstances. But I consider the question to be decided is of the very greatest importance to the well working of the system of Government under which we now live. I consider the power now claimed to interfere with the paramount authority of the Dominion Par-

83 The Captive Court liament in matters of trade and commerce and indirect taxation, so pregnant with evil, and so contrary to what appears to me to be the manifest intention of the framers of the British North America Act, that I cannot come to the conclusion that it is conferred by the language cited as giving that power.32 The technical view referred to by Richards was that of looking at the words of the law alone and giving them meaning by examining primarily, if not exclusively, the linguistic context. Hence his reference to "the language cited." Richards was well aware of the political nature of the decision making in which he was engaged and the need to rationalize the decisions of the court with the social context. He took the position that the circumstances should be considered that existed at the time that the British North America Act was created. This would provide the text of the constitution with a social context, within which the words would acquire socially relevant meanings. The underlying nature of the constitution thus became imperative and Richards noted that Confederation had been brought about with the history of the United States in mind, in particular with the recent civil war in that country. It was intended, he maintained, that the difficulties created by the assertion of the rights of the states should be avoided. The provinces would thus not be the sovereign political bodies that the American states had been, but were to have the power possessed by municipal bodies prior to Confederation. Jean-Thomas Taschereau rendered a brief judgment in which, unlike Richards, he appeared comfortable looking at the language of the constitution only in the context of the language found in other parts of the Act, or with reference to dictionary-like authorities. It was true that he referred to "all the surrounding circumstances" with respect to the meaning of certain words in the constitution, but it was not convincing.33 The other judge from Quebec, Tdlesphore Fournier, accepted the judicial function of interpreting the constitution in order to know the limits of legislative power for both Ottawa and the provinces.34 For him the solution of constitutional problems was to be achieved by looking at the "clear and precise terms of the Constitutional Act."35 He justified this statement, which seemed to display a disturbing naivete, by affirming the view that: "it [was] the clear intention of the Imperial Parliament to establish two distinct Governments, with special and exclusive powers, in order to avoid all conflict between the different authorities."36 Such may indeed have been the appearance of the constitution, but the reality of the required decision making was quite different. Fournier made a disclaimer of the use of policy arguments, and he again asserted that for him the proper way of solving constitutional questions was by referring to the express terms used in the Act.37 Fournier seemed to be operating on the premise that a linguistic analysis was the only legitimate one for a judge to undertake, and when he deviated from it by dealing with social factors, he felt the need to explain his actions.

84 The Beginning, 1875-1879 He actually engaged the same concerns as had Richards and asserted that the relative position of the provinces toward the federal Parliament was far different from that of the states towards the United States Congress.38 However, his decision to articulate the need for solely a linguistic analysis forced him to state that it was clear from the words to whom the constitutional power belonged. William Henry of Nova Scotia was aligned with Richards in his approach to the constitution. In determining what certain words meant, he stated that their meaning should be determined "not only from the words ... but from the tenor and bearing of the whole Act, the state of the law at the time, the peculiar position of the United Provinces and the object of their union, with the means for working out the Constitution provided."39 In his opinion the decision reached by the judges should not be a technical reading of a few words in a subsection.40 The dissenting judges, Strong and Ritchie, adopted unquestionably a linguistic analysis, as had the Quebec judges, and an interesting result arose. Looking at the four judges who apparently took only the ordinary meaning of the words into account, the result was an equal split - so much for a plain meaning! Ritchie, in a short dissenting judgment, insisted that he was using the ordinary rules of statutory interpretation. He rejected any need to examine the state of the law in the United States at the time of Confederation, or the problems that may have existed there. For him, the well-known "golden rule" could be used, which ostensibly involved linguistic analysis: "[R]ead the words of an Act of Parliament in their natural, ordinary and grammatical sense, giving them a meaning to their full extent and capacity, there being nothing to be discovered on the face of the Statute to show that they were not intended to bear that construction, nor anything in the Act inconsistent with the declared intention of the Legislature."41 Regardless of this stated view, it was clear that the motivating factor behind Ritchie's judgment, as he himself stated, was a very clear policy matter - the intention to furnish a province with a means of raising a substantial revenue.42 Ritchie took issue with the use of the Ontario experience to interpret the constitution, and felt that he could look to that of New Brunswick. However, he made no reference to his own 1875 decision while on the New Brunswick bench in which he had decided opposite to the position he was now taking in Severn** In fact, this previous decision by Ritchie was diplomatically not mentioned by any of the judges in their judgments, nor did it appear in the reported arguments. It had been referred to earlier by Strong in Taylor in the Court of Error and Appeal. This is questionable "judicial" behaviour, but no one called the judges to task for it publicly. The strongest statement in opposition to Richards' and Henry's view as to how to approach the constitution was made by the other Ontario judge, Henry Strong. In his opinion, every possible presumption should be made in

85 The Captive Court favour of the validity of a challenged law. Then he stated: "We are to bear in mind 'that it does not belong to Courts of Justice to interpolate constitutional restrictions; their duty being to apply the law, not to make it.' "44 So important was this idea for Strong that he repeated it twice more in his judgment.45 The judges' divergent views of the judicial function had an enormous potential for nature controversy among them. Richards and Henry stood apart with a broad and creative view of their role in that not only was a language context or the context of law required but there was the all-important social context to be taken into account. Fournier had given a sign that he might break out of the artificiality of his expressed role of "applying the law, and not making it" when he made an actual excursion into the social context. Ritchie strayed over but refused to acknowledge it, while Taschereau and Strong were adamant in taking the position that only the finding of the ordinary meaning of the words, divorced from the social context, was their task as judges. Thus, in the very first constitutional case, the judges had split badly on the most fundamental question that can exist within the legal process - the judicial function itself.46 It was not surprising that the judges were split on the vital question of the nature of Confederation, which could be reduced to an examination of the views with respect to the powers of the provinces vis-a-vis the dominion. William Henry, a father of Confederation, left no doubt that for him the legislative power of the dominion was unlimited; Canada had the power to legislate for the peace, order, and good government of the country, and this power was limited only by the specific provisions granting authority to the provinces.47 With regard to the specific question of the trade and commerce power of the dominion as it related to a province, Fournier viewed it as "full and complete," involving commerce that was internal as well as external. This could be compared to the commerce power possessed by the federal authority in the United States, which applied only to commerce exterior to a state or commerce with foreign nations.48 For him, sale was part of manufacture, which was clearly within dominion power.49 Henry, of course, viewed trade and commerce as encompassing "all ... details ... every constituent."50 For Henry Strong, the supporter of provincial power, there were coequal and coordinate legislative powers conferred on the provinces.51 Thus, while he was prepared to give trade and commerce a wide meaning, his acceptance of concurrent powers meant that only the disallowance power could be used. Ritchie was also prepared in this case to accept a concurrent area. A key factor in the case was the raising of revenue, a vital matter for all governments. Who would receive the revenue from the lucrative practice of issuing licences was a question involved in the litigation. Henry saw the provincial law as an unwarranted interference by the province in the revenue-

86 The Beginning, 1875-1879 raising power of the dominion, while Ritchie saw within the constitution an intention to furnish the provinces with means by which a substantial revenue might be raised. Strong noted that the issuing of licences was a vital source of revenue for the provinces. THE SOCIAL CONTEXT The all-important question of the social context was brought out dramatically in the Severn case. There was no doubt that the judgments bristled with social concerns, such as who should have the power to raise revenue or to regulate business. The most significant social consideration, however, was the nature of Confederation, and in particular the extent to which provincial power and autonomy was to be recognized. The fact that the judges split 4—2 in the case was a clue that social (public) opinion was split. The majority judges followed what they understood to be the social values that were circulating at the time Confederation was created, which pointed to extensive dominion power and reduced provincial power. The concern in the case was with commercial matters and more specifically, the regulation of liquor. Any special position for Quebec need not have concerned the judges, since commercial matters were considered to be governed by English law and English-speaking interests. A crucial question for the credibility of the court was to what extent the social values identified by the majority as existing at the time of Confederation were still current ten years later. The content of Ontario's argument in the case indicated that there was a social receptiveness for the thoughts expressed about provincial power, and the Toronto Globe expressed the view following the case that "the feeling of the country is evidently in favour of local action as a means of testing the popular will."52 If, as might appear, the social values were in a state of some flux, then the best that could be expected from the judges of the Supreme Court was that they should arrive at a rational conclusion to the best of their ability. Judges such as Richards and Henry would, of course, expose themselves to criticism for openly judging that certain values were to be applied, while a judge such as Strong could immunize himself by projecting a description of the process as being nothing more than a linguistic analysis. It might be said that the majority of the court opted for the values projected by the constitution, not for the values being projected from within society. In the end only its prestige could shield it from the criticism that might result from having made a particular political choice. In the highly partisan environment of Canada nothing but problems could be predicted since the reputation of the institution had definitely yet to be established. IN THE FIRST SIGNIFICANT TERM OF THE COURT, it had been faced with highly contentious issues and had been bold. There were differences among

87 The Captive Court the judges, none more pronounced than that between the two Ontario judges. Prior to his appointment to the court, Richards had been praised for his common sense and broad view of the judicial function, and he had demonstrated those characteristics in the Severn case. Strong had been praised for being a "scientific" lawyer, and his supporters would not have been disappointed by his judgment in the case. Aligned with Richards was Henry and possibly Fournier, while with Strong was Taschereau and Ritchie. The views of the judges as to the nature of Confederation were divided, as perhaps was that of the country. A majority favoured dominion power; a minority favoured the provinces. Whatever else might have been expected, the judges of the Supreme Court were alive and bristling with thoughts. THE 1878 TERM was in stark comparison with the previous one, and it was one that should have been quickly forgotten. Of the twenty-six appeals heard on their merits, twelve were ordered to be reheard, which included all of those heard in the June session.53 Chief Justice Richards' weak health began to fail and he went to Europe in the fall of 1878 for treatment. He either did not sit on the appeals or was absent at the time of the judgment. JeanThomas Taschereau decided to resign in the summer of 1878 and did not participate in the judgments for the cases he had heard, and thus the court lost a quorum for the delivery of its decisions. Moreover, a spark of dissension that would prove destructive in the future within the court was observable at this time between Ritchie and Strong.54 With the rehearings and the absence of notable cases, it was all in all not a good term. Criticisms also appeared. Writing in the Legal News in 1878, W.H. Kerr of Montreal criticized the court for its slowness in rendering judgments, and added the highly disturbing comment that the court was looked upon with great distrust.55 No specifics were given, as might have been expected. The word "distrust" was interesting. If Mowat's strong pro-provincial argument in the Severn case indicated that there was some receptiveness for it, then the pronounced pro-dominion decision in Severn might have caused wonder and perhaps distrust. Jean-Thomas Taschereau had come to Ottawa reluctantly, since he had never actually taken up residence in the city. After only three years as a member of the Supreme Court he was the first of the original appointees to leave the bench.56 He resigned early in October 1878. He had wanted to leave for some time prior to his resignation.57 The reason for his resignation was ostensibly ill health. He died fifteen years later in 1893, at the age of seventy-nine years. The resignation produced the first controversy concerning appointments. He was succeeded by his cousin, Henri-Elze'ar Taschereau. Jean-Thomas Taschereau had resigned as of 6 October and Henri Taschereau was appointed by the Liberals under Mackenzie on 7 October. Controversy swelled up, since on 17 September there had been a general election in which the Conserva-

88 The Beginning, 1875-1879 tives under Macdonald had won handily 137—69 over Mackenzie and the Liberals. The appointment of the second Taschereau to sit on the Supreme Court occurred in the month between the election and the swearing in of the new government. In addition, the son of Jean-Thomas Taschereau, HenriThomas, was appointed by the Liberals to the Quebec Court of Queen's Bench at the same time. In the words of John A. Macdonald: "It [was] a family matter."58 It was pointed out that the appointment of Henri Taschereau was in return for support during the election and if the Liberals had won in 1878 the ex-minister of justice, Rudolphe Laflamme, was to have been appointed. Laflamme had been personally defeated in the election and retired from active politics. Henri Taschereau had actually sat as a Conservative in the pre-Confederation Canadian legislature. To make matters worse, the chief justice, William Richards, was still in Europe for health reasons at the time of the appointment and Henri Taschereau could not be sworn in as a member of the court, since the law at that time provided that the swearing in must be carried out by the chief justice.59 This left the court without a quorum for the hearing of appeals. Richards finally resigned on 9 January 1879. His health had been bad for some time, with serious attacks of asthma. He had had the quality needed for a court such as the Supreme Court although, at the time, the profession may not have been totally cognizant of that fact. He was noted for a mind of wide scope, and the use of broad principles.60 His ability to go to basics would be missed, and although he had never been a leader in the sense of forging a path and taking the other judges with him, he certainly was a leader in the sense of setting an example. However, with the exception of Henry, it seemed clear that the others were not prepared to follow. His rather long-winded judgments with a "folksy" style were an unfortunate distraction from his ability. The new Conservative government was thus faced with the need to appoint a chief justice. This provided Macdonald with the opportunity to influence the institution that had been created and staffed initially by the Liberal government, but the appointment of the senior judge, which was to become a practice, was made quickly. William Johnstone Ritchie became the second chief justice of the court on 11 January. Probably his unimpeachable reputation and the possible affront to the Maritimes should he be passed over made the choice easy. Since Richards had been suffering from ill health for some time his imminent resignation had been known by the Liberals and Edward Blake, Mackenzie's minister of justice, had already decided to make Ritchie the chief justice.61 The decision by Macdonald to elevate Ritchie was in effect an endorsement of the earlier decision by Blake and had the effect of giving it a non-partisan appearance following the overt display by the Liberals with the Taschereau appointment.

89 The Captive Court The first event of the Ritchie years was the appointment of a judge to fill the vacancy created by Richards' resignation. By law, the resignation of JeanThomas Taschereau had required that a judge from Quebec be found for the court, but that was not true for Richards' replacement. It was, however, probably unthinkable at this time that a position held by a judge from Ontario would be filled by a person from another province, when there were strong views in the province that there should be three judges from Ontario. Thus the seat was filled "as of course" from Ontario.62 Although Macdonald's government accepted Ritchie as chief justice, the appointment of its first judge - John Wellington Gwynne — was of a man completely committed to Macdonald's view of Confederation. Gwynne had been a judge of Common Pleas in Ontario for ten years. He had been born in Ireland and came to Canada at the age of eighteen. His legal training had been received in chambers in England. Politically he had supported the Reform party, and had run unsuccessfully in the 1848 election for it. What counted as Macdonald went to battle with Mowat and Ontario over the nature of Confederation, was that he had found a judge who would consistently uphold the idea of the "Macdonaldian constitution." With Gwynne's appointment there began the longest period in the history of the court to date in which there were no changes on the bench — just over nine years (14 January 1879-3 May 1888). NO ONE COULD DENY that there were problems facing the Supreme Court of Canada as it began hearing cases in 1876. Since the Confederation Debates of 1865, Quebec members of Parliament had been very vocal about the prospect of the court dealing with cases from Quebec that involved the civil law of the province. The creation of the court had been perceived by the conservative Quebec press as a threat to the existence of a French province; the court would have the potential to destroy the distinct law of Quebec and to contribute to the move towards centralization and unification.63 For some Canadians, the existence of the court had the definite aura of nationalism that could be seen as posing a potential threat to the unity of the Empire and a severance of the British connection. This concern would have been heightened by the controversy that had erupted with regard to the abolition of the appeal to the Privy Council. Although only briefly, Macdonald had taken up the British connection as a political issue. For the strong clerical influence in Quebec of the ultramontane forces, the decision in Brassard v. Langevin was completely unacceptable. Initially, the Ontario-based Canada Law Journalhad been quite willing to accept the creation of the court as part of the establishment of political independence that naturally flowed from Confederation;64 however, there were signs of future problems with regard to Ontario when the question was

90 The Beginning, 1875-1879 raised as to whether a court with only two judges from the province would create a feeling of confidence in its decisions, particularly since public confidence in the Ontario judiciary was so high.65 Ontario viewed itself as the heartland of the new nation, and saw itself as synonymous with Canada. An institution not controlled by the province would be suspect. The federal principle raised by David Mills in the debates that questioned the jurisdiction of the court over provincial law appeared not in itself to be a consideration in 1875, due toO the still current view (held even by the Liberals) that the provinces were subordinate bodies, unlike the position occupied by the American states at the time of their separation from Britain. The problem of the court dealing with provincial law and the federal nature of the country was referred to by the Canada Law Journal & the time, but it was easily accepted that the court would have jurisdiction over provincial law. By the late 1870s, however, there were indications that the status of the provinces was changing. As Ontario fought for an enhanced status, it was inevitable that the other provinces would be carried along. In Severn, Ontario had fought for a new concept of Confederation, but had been thwarted by a majority of the Supreme Court. Internally dissension among the judges was appearing and centred on Henry Strong, who had no respect for William Henry, and was critical of the new chief justice, William Ritchie.66 In spite of the apparent problems facing the court as a federal institution it must be viewed as somewhat surprising to have it branded as a failure within three years of the hearing of the first case. Yet that is exactly what the Canada Law Journal asserted in 1879. The Supreme Court was under attack, and it was coming from the "heartland."67

8 The Court under Attack

When the Canada Law Journal concluded in 1879 that the court was a failure, the blame was not put on the actual work that had been performed by the judges, but rather on mysterious "great disadvantages" against which the court had to contend, caused by the "peculiar circumstances of Canada." The court was said to have been prevented from being of significant practical use and benefit. Thus, the very existence of the institution was questioned. The "great disadvantages" and "peculiar circumstances" no doubt included the federal nature of Canada, but more specifically the words would have covered the diversity created by religion, language, and culture. The strong divisions of race, religion, and perhaps even party, were operating.1 What is difficult to follow, however, is why these problems should have necessarily made the court a failure, unless the conclusion was that at the time all national institutions, which accommodated regional, racial, and religious differences, would be failures in the eyes of Ontario. It is true that the court had come under professional criticism from Ontario in 1878, at which time the main problem was said to be the length of time that the court was taking between the hearing of an appeal and the giving of the judgment.2 The grievance was also expressed that the judges wrote too many judgments, with strong criticisms being levelled at the practice of each member of the court writing a judgment. What was needed, it was said, was an opinion of the court. The long individual judgments were a painfully obvious indication of a lack of consensus, and perhaps even a lack of attempt to reach a consensus. Although the competence of the judges could never be openly alluded to in the law journal, the complaint of long judgments also raised a concern over the judges' ability to write and think concisely. Only Jean-Thomas Taschereau from Quebec came in for specific comment. He was said not to reside in Ottawa, as was required by law. He had continued to live in Quebec City, and only came to Ottawa to attend the sessions. The journal had praised the residency requirement earlier on the

92 The Court under Attack basis that it was essential that there be centralization for lawyers and judges, which would allow consultation among the judges.3 The complaints of the Ontario legal profession were fairly broadly scattered about and there was more than just "peculiar circumstances" involved. The functioning of the court as an institution was questioned, with the lack of unity among the judges dominating. While it appeared that the existence of the court was being seriously questioned, it was a shock when the matter was raised directly in Parliament. ABOLISHING THE COURT On 21 April 1879, a private member's bill to abolish the court was introduced in the House of Commons by Joseph Keeler, a member on the government side for Northumberland East, Ontario. His reason for introducing the bill was ostensibly economics. He considered that the court cost too much for what it was worth. The Liberal government that had created the court was no longer in power, and the Conservative victory in the election of 1878 had re-established John A. Macdonald as prime minister. At the beginning of the debate that ensued, the bill was treated as a joke, but when Alexander Mackenzie, now leader of the opposition, moved to end it and the motion failed, the debate took on a decidedly serious tone.4 The discussion centred on the right to debate the question of abolishment. Prime Minister Macdonald maintained that the bill was simply proceeding as of course, and, as a courtesy to Keeler, it should be allowed to continue. One could sense the truth in a member's comment: "Nothing could be more calculated to demoralise that Court than that this Bill should be placed on the Order-paper for a second reading with the assent of the leader of the Government, with an overwhelming vote in this house."5 Although opposition to the court from Quebec was alluded to, again with reference to the jurisdiction over civil law possessed by the court, yet it was clear that the source of the dissatisfaction was to be found in Ontario. The criticisms were led by D'Alton McCarthy, a leading member of the Ontario bar as well as of the Conservative party. His speech was short on specifics, but the thrust was that the court was not answering the purpose for which it had been created, and a reference was made to constitutional cases. The centralist bent to the constitutional decisions of the court up to this point, as shown by Severn, was creating a reaction in Ontario. Another speaker directly mentioned as a cause for concern the overturning of decisions from the Ontario Court of Appeal. In the end the bill died with the end of the session. The conclusion seems irresistible that a message was being sent from Ontario, led by D'Alton McCarthy and Ontario Conservative members. Macdonald had obviously acquiesced. When the government supported the discussion of the abolishment of the court, a warning became loud and clear.

93 The Captive Court The Canada Law Journal picked up the topic and commented that there was a strong feeling against the court, which could be accounted for by several matters. Again, spreading the accusations widely, the Journal mentioned that it was an expensive court that lacked the confidence of the profession. Ontario lawyers preferred the provincial courts, it was said. The problem of delays in giving judgment was reiterated, and it was asserted that on several occasions there had been a marked disregard for the convenience of the profession in the hearing of cases. It was charged that the reports were late, incomplete, and defective, which was not a criticism of the judicial function of the court, but of the institution itself. The writer of the article concluded with the rather sad view that the court was necessary, but a disappointment.6 The Legal News, the English language law journal that was published in Montreal, also accepted the fact that the court was a necessity, but considered that it left much to be desired. Some Quebec lawyers, it was said, preferred to go to England, and the rumour was current that the Quebec cases were being left to the two judges from Quebec.7 Throughout the discussion about the creation of the court, the issue of counting heads had been raised. Since it was generally accepted that the highest court would not have a significantly better judiciary than the final appeal courts in the provinces, it was easy to start counting the number of judges who had decided for or against an issue.8 The pride in the quality of the highest court in the province, especially in Ontario, made the practice more acute. The first eight appeals from Ontario had resulted in six reversals, and one of the two appeals that had been affirmed was because of an equal division of the Supreme Court. Of the next six appeals, four were reversed. This was followed by three appeals that were dismissed, but then came the decision in McKay v. Crysler? The litigation in this case involved the question of the validity of the sale of land for taxes, and caused considerable agitation among the legal profession in Ontario when it was decided in early May 1879. The problem was a simple one. The judges of the Court of Chancery in Ontario and in the Ontario Court of Appeal had decided unanimously in favour of one party, and this decision was reversed by the Supreme Court by the slightest of margins, 3-2. The two Ontario judges, Strong and Gwynne, were the dissenting judges, and the majority was made up of Ritchie from New Brunswick, Fournier from Quebec, and Henry from Nova Scotia, the "fair lawyer." The Canada Law Journal made the point clearly: "How is it possible to get an Ontario Bar or the Ontario public or in fact any unprejudiced mind to say that the probabilities are not largely in favour of the view of the nine eminent judges, who have been overruled, on points in which they are specially versed, by three judges of less experience and certainly of no greater ability or research." The Legal News used the case as an example of

94 The Court under Attack the fact that a minority of judges was not a protection for the civil law in Quebec." The agitation against the court continued when a second bill to abolish the court followed soon after the first, and was once again introduced by Keeler, this time in February 1880. However, something had dramatically changed. The dissatisfaction present in Ontario concerning the court, which had been heard so clearly in 1879, was gone. So complete was the apparent satisfaction with the court in Ontario that, a year after the first attack, the members from that province engaged in blatant revisionist history and took pains to deny that there had ever been a problem as far as Ontario was concerned. The new expressions of dissatisfaction came from Quebeckers, who continually referred to the views expressed by the Ontario members in 1879 in order to support their opposition to the court, but this ploy was countered by the Ontario members who downplayed the earlier criticism. Now that the dissatisfaction was being heard from Quebec, the field of the debate had changed dramatically. Whatever had bothered the Ontario Conservative members had apparently been remedied. When the government spokesman, Hector Langevin, promised that the government would study the Quebec dissatisfaction, the agitation to abolish the court was silenced for the moment.12 During the debate on this second bill, Macdonald summed up the situation when he commented that for some reason the court had not obtained the degree of confidence that ought to have been given it. He acknowledged that the inner workings of the court were unknown, particularly as to whether there were any conferences. The comment by Macdonald had been specifically aimed at the allegation that Quebec appeals were being decided by only two judges.13 In the debate, the Liberal Edward Blake was specific in mentioning problems regarding the court. Delay in rendering judgments was at the top of his list. Also the court had not responded to certain complaints, for instance, the need for separate lists for each province, and an additional term, which had required legislation to be enacted when the court would not remedy the situation itself. The existence of too many judgments was still mentioned, this time with the opinion that dissenting judgments should be eliminated completely. The rule of the Privy Council of rendering a single judgment was suggested as a possible solution to the problem. Blake also took the opportunity to air his nationalist tendencies and referred to the fact that constitutional issues were to be the prime reason for the court's existence. English judges had lived their lives, and had their thoughts and feelings formed in a wholly different constitutional atmosphere from Canada. For Blake, the constitution was a skeleton whose true spirit could be made manifest only to the men of the soil. Such a comment would

95 The Captive Court have been completely unacceptable for the vast majority of the legal profession in Canada at the time. There was yet a third attempt to abolish the court. In December 1880 Keeler once again introduced his bill, and when he died in January 1881, it was picked up by Phillipe Landry, a Conservative member from Montmagny, Quebec, thus ending Ontario's last tie with the question of abolishing the court.14 Objections to the court by Quebec again became the focus of the short debate. With the death of Keeler and the taking up of the bill by Landry the basis of the bill shifted from economics to the objections of Quebec. When a bill to limit the jurisdiction of the court by the removal of provincial law was given first reading at this time, a solution to the problem seemed to have been provided, and the necessity of such a drastic measure as abolition was eliminated. During the brief debate, much of what had been said on the previous two occasions was simply repeated. There was again a reference to a language problem. It was pointed out that all of the judges did not speak French, and French-Canadian lawyers who were not fluent in English did not appear before the court.15 Frequent reference was made in the speeches to the promise of the government in the 1880 debate to bring in remedial legislation, and its failure to do so. Langevin simply stated that the government had been too busy and the debate on second reading had been a surprise. When Edward Blake, now leader of the Liberal opposition, moved to end the debate, the motion passed easily. Although a fourth bill to abolish the court was introduced, again by Landry, and given first reading on 12 April 1882, nothing more was heard of it, nor of any further measure to abolish the Supreme Court of Canada. Its existence was now assured, but what kind of an existence remained a question. LIMITATION OF JURISDICTION The bill to limit the appellate jurisdiction of the court by abolishing jurisdiction over provincial law was introduced by D&ire" Girouard on 7 February 1881. It was an obvious solution to Quebec's main grievance against the court's existence, namely jurisdiction over the civil law of the province. However, the proposed legislation would affect all of the provinces, not just Quebec. Ontario had apparently been pacified after the 1879 outburst and, as acknowledged by Girouard, there appeared to be no dissatisfaction with the court emanating from the Maritimes. Thus there seemed little chance that it would be enacted, and what hope did exist was dissipated completely when the Montreal bar, of which Girouard was a member, passed a resolution opposing the bill. Girouard tried to explain the resolution away by saying that partisan politics had been influential, along with dissatisfaction with the local judges, as shown by the judicial crisis of 1873. In a letter from

96 The Court under Attack William H. Kerr, the mover of the resolution, the point was made that the English-speaking citizens of Quebec opposed the bill, and a lament was registered for the fact that there was no English representative on the Supreme Court from Quebec.16 When Attorney General James McDonald, who was from Pictou, Nova Scotia, suggested that no specific examples were being given of instances when the Supreme Court had failed to administer the Civil Code properly, Girouard responded by referring to Johnston v. St Andrew's Church^1 which was said to have generated a great deal of dissatisfaction. In the face of the proposed solution to the grievance of Quebec, the rest of Canada had gone to the defence of the Supreme Court, and the feeling was voiced "that Court is the crown of the edifice of our Constitution." The reaction to the measure became even greater, as the attorney general went on to say: "I think there is no part of our Constitution which we ought to guard more sacredly, no part of our Constitution of which we ought to feel prouder than that Court - a Court which is independent of the Crown, which is composed of the men most learned, most wise, and most competent to deal with great questions which come before them."18 In the face of such rhetoric, Girouard's bill took on the appearance of an act of sacrilege. Even David Mills, who had earlier championed the federal system and the American position of giving the state courts the final say in matters involving state law, remained silent. Prime Minister Macdonald moved adjournment of the debate, which was agreed upon. He referred to the fact that Quebec opposition to the court had prevented him from creating it. He promised that the government would consider the question of the Quebec civil law, but he announced the firm position that either the court would be repealed or it would apply to all the provinces. Later attempts to have a bill enacted that would limit the jurisdiction of the Supreme Court were tried but without any real hope of success.19 There would be murmurs heard for the next century with regard to the issue of the jurisdiction over provincial law, but no serious attempt would be made to eliminate it. For French-speaking Quebeckers a problem was seen to exist — one might say that it was a threat — but no solution was possible given the existing political power in the country. The existence and the jurisdiction of the court were both secure and it was now ready to move forward.

9 The Appeal to the Privy Council, 1876-1879

After the Supreme and Exchequer Court Act had been reviewed in Britain, the simple public announcement had been made that the legislation would be left to its operation. Section 47 had been left intact. Anyone not privy to the discussions that had been carried on by Mackenzie and Blake with the British government would have had the impression that the decisions of the Supreme Court would in the normal course be final and that a litigant desiring to appeal from a judgment of a provincial court of appeal would be required to elect between the Privy Council and the Supreme Court of Canada. Of the cases decided by the Supreme Court from the summer of 1876 through 1879, there was only one request for permission to appeal made to the Privy Council, and it was refused, which supported the view that the Supreme Court was to be a final court of appeal. The case was Johnston v. St Andrew's Church? which had been mentioned by Girouard in the debate on his bill to limit the jurisdiction of the court as having created dissatisfaction in Quebec as to how the civil law of Quebec was handled by the Supreme Court. The issue was whether Johnston, the plaintiff, had the right to occupy a particular pew in the church that he attended, a Presbyterian church in Montreal. The governing body of the church had refused to allow him to have the pew even though he had rented it for some time, and he brought an action in tort in which damages for $10,000 were sought, which today would amount to several hundred thousand dollars. His action was dismissed in the Quebec Superior Court, and an appeal was dismissed (3-2) by the Court of Queen's Bench. In a subsequent appeal to the Supreme Court of Canada, the Quebec courts were reversed by a 4—2 margin, with Ritchie, Taschereau, Fournier, and Henry forming the majority, while the two Ontario judges, Chief Justice Richards and Henry Strong, dissented. There was no question that the judges of the Supreme Court took the case seriously, as the total length of the judgments rendered amounted to more

98 The Appeal to the Privy Council, 1876-1879 than sixty pages - one of the longest at the time. The matter seemed to involve more sound and fury than any great issue of public importance, and was nothing more than the interpretation of the contract that existed between the plaintiff and his church. There was, however, a possibility that it was being viewed in Quebec as a protestant version of the Guibord case. The majority referred to the usage of the Established Church of Scotland, which would in effect have given the plaintiff a right to the pew upon paying the appropriate fee and the pew-holder could only be deprived of the pew by appropriate procedure, which had not been followed in the case. Chief Justice Dorion in the Quebec appeal court had noted that the usage was the same as for Roman Catholic churches. The two dissenting judges regarded the arrangement to be for one year only, with no right to the pew other than by the specific arrangement. In their opinion, there were no established churches in Canada upon which the right to a pew could be based, and churches were to be regarded as voluntary associations. The petition for leave to appeal to the Privy Council was heard slightly more than a year after the discussions between Edward Blake and Lord Chancellor Cairns had ended. There were five members of the Judicial Committee present, which was a large number for such a case and most significantly, as senior member, there was Cairns. As might have been expected, section 47 came up for consideration. The petitioners accepted that the provision prevented an appeal as of right, but they argued that the prerogative to allow an appeal by the Queen, if so advised, had been left entirely untouched and reserved by the language of the section. In the reasons for refusing leave to appeal, which were delivered by Cairns, that part of the section beginning "and no appeal shall be brought" was mentioned, and Cairns pointed out that it referred to "the hypothetical establishment of a Court by the Parliament of Great Britain and Ireland, by which Court appeals from the colonies are supposed to be ordered to be heard," a court Cairns had fought to establish, but which had never been brought into existence. That portion of section 47 could be dropped, he said. The most vital part of his reasons was the conclusion that in a "proper case" their lordships would have no hesitation in advising Her Majesty to allow an appeal from a judgment of the Supreme Court of Canada. The issue was whether this particular petition disclosed "a proper case," and the conclusion was that leave should not be granted because first, $300 was the amount involved (the amount of damages awarded by the Supreme Court), an amount said to be far short of the appealable value that had been defined in Canadian cases previously;2 and second, there was no general principle affecting a number of other cases. In the opinion of Cairns, the case concerned the contractual obligations between a pew-holder and a church, and the appeal would be simply for the purpose of testing the accuracy of the construction put upon the particular document by the Canadian judges.

99 The Captive Court The spirit of the secret memorandum was now public, without, of course, the public being aware of it. It was known that leave to appeal would be granted in a "proper case," and thus the appeal to the Privy Council had not ended and the future of the Supreme Court would without question be affected by the existence of the appeal. It was in 1880 that the story became established that the Canadian statute had had a provision that abolished the appeal, but because of British pressure, a "saving clause" was inserted that preserved the right to apply for leave to appeal.3 This story persisted for many years and may still be thought by some to be true. It is difficult to imagine how it gained acceptance so easily. Possibly the conflict between the impression that the appeal had been abolished that would have existed and the declaration that in a "proper case" an appeal would be heard, could not be reconciled without creation of this explanation. Following the Church Pew case, the Montreal law journal, the Legal News, supported completely the reasons given by the Judicial Committee for denying leave, which were interpreted as meaning that the granting of leave to appeal would not occur as a matter of course. Any other result was seen as disastrous for the Canadian court. The journal commented: "If the Supreme Court ... were to constitute simply an additional stage through which every keenly contested suit must be dragged, such a tribunal would present itself as an intolerable evil." In the article the appeal by way of the prerogative power was continually referred to as "special."4 Cairns had wanted the Canadian government to regulate appeals, but it took no action and section 47 had been allowed to remain unaltered. Now, in the absence of regulation by Canada, the duty fell to the Privy Council to determine which appeals should be heard. In Johnston, a basis for a future granting of leave was established with the reference to the amount of money involved in a case, the appealable value. The prerogative appeal, namely that for which leave had been required prior to 1876, had been reserved for very special cases that could not be appealed as of right, such as when they were below the appealable value, but contained important questions of law. If the Privy Council was prepared to look at the appealable value as a factor that would justify an appeal by itself, then section 47 would have had the effect of simply transferring regulation to Britain, not eliminating the great bulk of appeals, as had been thought. The practice of looking for a general principle of law in the case that would affect future cases had been part of the theoretical criteria for the granting of leave in the past. At least routine cases that dealt with the application of law to facts would not be heard in England. Before the decision of the Privy Council, Mr Justice Fournier, who as minister of justice had had carriage of the Supreme Court bill through the House of Commons, and who had accepted, on behalf of the government, the Irving Amendment, stated in one of the first cases to be heard by the court that the appeal to the new court was a substitute for the appeal to the

100 The Appeal to the Privy Council, 1876-1879

Privy Council.5 Such a statement coming from Fournier would have gone a long way toward creating the view that the appeal to the Privy Council had come to an end, except perhaps under rare circumstances. However, Fournier wrote his judgments in French, which were normally not translated, and thus perhaps what he had said was largely unknown in English Canada. The thought that the Supreme Court was a final court was heard in a Quebec case in 1878. In City of Montreal v. Devlin both the plaintiff and the defendant wished to appeal a decision of the Quebec Court of Queen's Bench. The defendant intended to go to the Privy Council, while the plaintiff was on his way to Ottawa and the Supreme Court. The plaintiff sought to prevent the defendant from appealing to the Privy Council while his appeal to the Supreme Court was pending. Chief Justice Dorion held that the Court of Queen's Bench had no authority to prevent either appeal, but he did comment that if he were to prevent the application for leave to appeal to the Privy Council until the case was determined by the Supreme Court that it would be equivalent to a denial of the appeal, since the judgment of the Supreme Court was final, in his opinion.6 By 1879, there existed at least an appearance that the Supreme Court decisions might be final. Of thirty-eight appeals heard on their merits in the 1876, 1877, and 1878 terms, there had been only one petition for leave to appeal, the Church Pew case.7 Included in the total of thirty-eight was the highly important constitutional decision of Severn v. The Queen, for which leave was not sought. However, in 1879 a change began to occur, when four applications for leave were made, and two were successful. In light of our knowledge today of the role of the Privy Council in constitutional cases, it is interesting to note that one of the unsuccessful applications was a case in which the constitutional authority for the dominion to use provincial courts to hear controverted election disputes was questioned.8 The reason for refusing to hear the appeal was that the Supreme Court had made no error. In the process of considering whether to grant leave to appeal, the Committee had actually dealt with the merits of the case and saw no error in the conclusion that had been reached by the Supreme Court. The focus on the question of error indicates a willingness to review the Supreme Court decisions, but the refusal of leave could be seen as a boost for the court. When the two cases are examined for which leave was granted, it is difficult to understand with any certainty the basis upon which the Privy Council did grant leave. One case concerned the taxing of an English bank in New Brunswick. A principle of general importance was said to be involved, which was to know upon what basis foreign corporations were to be assessed taxes. An economic depression existed at the time and the bank was subject to extremely heavy taxation, namely an assessment based on gross income, rather than net. The bank had applied for leave. The New Brunswick Supreme Court had upheld the assessment, 3-1, and the Supreme Court had

101 The Captive Court

dismissed the appeal, 4-1; Mr Justice Henry dissented.9 The unreasonable tax base was likely the key factor. The other case for which leave to appeal was granted involved an application by an American insurance company. The issue in the case was the interpretation of answers to questions in the application form for life insurance. The case originated in Ontario. The Court of Appeal had on equal division affirmed the Court of Queen's Bench, which had reversed the trial decision. The Supreme Court allowed the appeal, 5—1, with Henri Taschereau dissenting.10 Perhaps the international flavour to the case was a factor, or the acceptance of the appeal was in some way calculated to lend support for the Supreme Court. The Canada Law Journal called the case a "cause celebre" and had characterized as absurd the result in the Supreme Court." The Privy Council upheld the decision of the Supreme Court. Only three years after the court was brought into existence, while most indications had been that its decisions would be final, petitions for leave to appeal began to flow to the Judicial Committee of the Privy Council on a regular basis. However, the granting of leave by the Privy Council, even in a highly important constitutional decision, could still generate a comment in the legal journals in 1880 and necessitate an attempt being made to explain why the appeal would be taken and why there had been no inconsistency in the Privy Council actions when leave was granted.12 The questions that surrounded the Privy Council's granting of leave in 1879 contributed to an aura of uncertainty around the question of the status of the appeal. With the insurance case an amount of confusion resulted from the fact that leave was being granted in what seemed to be a routine case, when it had been thought that only in the rarest of instances would it be given. A significant result of the granting of leave by the Privy Council was that the performance of the Supreme Court was to be made subject to a comparison with that of the highest court in the Empire. In this respect, the Supreme Court lost greatly in the end. In both the insurance case and the case dealing with the taxation of banks, the judgments rendered by the Privy Council were orderly, clear, and easily read and understood. They were brief and to the point. That the Privy Council only rendered one judgment in a case also stood out. In contrast, the Supreme Court judgments were many and very long, rambling, and repetitious, and frequently seemed to be endless. It is often difficult to understand from the judgments what exactly is involved in the cases. In the insurance case, the Privy Council judgment totalled nine and one-quarter pages, while in the Supreme Court, Gwynne wrote twenty-six pages, Henry seventeen and one-quarter, Taschereau, seven and three-quarters, and Ritchie, four and one-half, making in all fifty-five and one-half pages. In comparison, the decision of the Privy Council was a godsend.

102 The Appeal to the Privy Council, 1876-1879 The single judgment of the Privy Council originated from the historical beginning of the court as a committee. The practice of common-law courts was for each judge to be able to write a judgment if it was considered necessary. The Supreme Court stayed with the common-law model, but until recently the judges allowed the exercise of their right to overwhelm institutional integrity.13

10 The End of the Beginning, 1879-1880

The period that can be called the "beginning" of the court's existence came to an end with the 1879-80 term. Of greater significance, however, was that the same term marked the beginning of what would be years and years of uncreative decision making. While criticisms and condemnations of failure were flowing around it and attempts to abolish it were being debated in Parliament, the work of the court did continue. In 1879, the first year of Ritchie's tenure as chief justice, one of the most noteworthy cases was a major constitutional decision in which the nature of Confederation, as understood by the individual judges, was clearly expressed. LENOIR v. RITCHIE, 1879 With the decision in Lenoir v. Ritchie? the Supreme Court thrust itself into a pivotal role in the struggle between those who favoured provincial rights and those who sought to maintain power for Ottawa. It was a series of battles waged by the Liberal government in Ontario against the Conservative government of the dominion that began in the early 1870s and ended in the 1890s with an Ontario victory in favour of provincial power. The initial dispute in the conflict concerned the granting of the title of Queen's Counsel (Q.C.), a title given by the Crown to senior and respected members of the legal profession, which in theory designated lawyers who were worthy of arguing cases for the Crown. The holders of the title would be entitled to seniority within the profession. In 1873, with Oliver Mowat as premier, Ontario enacted legislation "declaring" that the lieutenant governor had the right to appoint lawyers as Queen's Counsel, as well as to create legislation to regulate precedence within the legal profession. In the previous year, the question of the authority of a province to appoint Queen's Counsel had been raised by Nova Scotia, and the prevailing view that emerged at that

104 The End of the Beginning, 1879-1880 time, as articulated by the law officers of the Crown in London and accepted by the dominion, was that the governor general, as the Queen's representative, had the power of appointment, but no such power existed for a lieutenant governor of a province. However, it was accepted that a provincial legislature could confer the power of appointing on the provincial executive by statute, and thus deal with the matter of precedence in that way.2 The 1875 Ontario legislation only deviated from the accepted position by the enactment of declaratory legislation that asserted that the lieutenant governor had the power outside of provincial legislation, that is, as if in possession of the inherent power of the Crown. At the time, this assertion of provincial power had only the effect of boosting the morale of the troops about to engage in the battle for provincial rights. The events that brought the Supreme Court judges into the fight originated in Nova Scotia, where legislation had been enacted following the advice that had been given in 1872 by the law officers and had been accepted by Ottawa. The legislation made provision for the creation of provincial Q.C.s and for the regulation of precedence among members of the bar. The dispute that ultimately reached the Supreme Court was originated by Joseph Norman Ritchie, a younger brother of William Ritchie, the chief justice of the Supreme Court, who did not participate in the hearing of the case.3 Joseph Norman Ritchie had earlier been appointed a Q.C. by the dominion in 1872, and when Nova Scotia appointed its own Q.C.s, many of those honoured were given precedence over him. He applied to the Supreme Court of Nova Scotia for a ruling as to precedence. The court ruled that Nova Scotia law did not in any way affect the Q.C. granted by the dominion or its precedence; thus a Q.C. appointed by the dominion ranked ahead of a Q.C. appointed by the province. An appeal was taken to the Supreme Court of Canada by the lawyers who had been granted precedence over Ritchie by the provincial government, of which Peter H. Lenoir was one. Since Chief Justice Ritchie did not sit on the case, the appeal was heard by five judges — Strong, Fournier, Henry, Taschereau, and Gwynne. The constitutional question of the validity of the Nova Scotia law had not been raised in the hearings in Nova Scotia, although the final order of the Nova Scotia court had stated that it was valid. It appears that the question was raised by the judges of the Supreme Court of Canada themselves.4 The issue of the constitutional validity of the law entailed dealing with the question of the status of the lieutenant governor. The reasons for judgment rendered by the judges of the Supreme Court were quite diverse. Strong followed the decision of the Nova Scotia Supreme Court and held that the Nova Scotia law did not affect the precedence of Q.C.s appointed by the dominion. In his short statement in the case, he used the word "Crown" rather than the word "dominion," which implied that he

105 The Captive Court accepted the then current view that the Crown was not part of the provincial political system. On the merits, Fournier dealt only with the question of whether the Nova Scotia law was retroactive to affect Ritchie's precedence, and he concluded that it had no retrospective effect. He thus was able to avoid the constitutional issue completely.5 Henry, a father of Confederation from Nova Scotia, held that the provincial law was invalid. For him the provinces were simply creatures of a statute, the British North America Act, and as such they were like cities, which were also created by statute; they possessed a prescribed and limited jurisdiction to make law, which must be found in the language of the Act. He would not accept that the power of granting Q.C.s fell within the provincial authority over the administration of justice, and thus there was no constitutional authority for the law, since no authorizing language could be found in the Act.6 Gwynne's judgment showed agreement in substance with Henry, and he added that the dominion was a quasi-imperial power, with the provinces to be viewed as subordinate bodies. The lieutenant governor did not represent the sovereign, but was simply an officer of the dominion government, meaning that the Queen formed no part of the provincial legislature. While both Henry and Gwynne had seen the Nova Scotia law as retrospective, Taschereau maintained that it had only a prospective operation, and thus did not affect Ritchie's precedence. He went on to deal with the constitutional questions, although, in his opinion, there was no real need to do so, which is what Fournier had also concluded. Taschereau maintained that if the Nova Scotia law had authorized that nominations of Q.C.s made at Ottawa could be superseded, then it would have been invalid. He could see nothing in the British North America Act that gave the province the power to deal with the monarch's prerogative rights of conferring honours and dignities, and he went on to assert that the Queen did not form a constituent part of the provincial legislature. For him, the lieutenant governor was an officer of the dominion government. Nevertheless, he declared that the actual Nova Scotia law was valid since he was prepared to accept that it did not deal with Q.C.s, but merely appointed provincial officers connected with the administration of justice, who happened to be called Q.C.s. In choosing to deal with the constitutional issue, Taschereau was following what he saw to be the role of the court: "I feel that I cannot, deciding the case on minor issues, rid myself of the responsibility of considering these grave and important questions, the determination of which this Court has been more specially created for."7 Bravely some of the judges had stridden forward to carry out their mandate to deal with "grave and important questions," questions that were by

106 The End of the Beginning, 1879-1880 their very nature political, and none more than the question of provincial rights, as dealt with by the Liberal Oliver Mowat and the Conservative John A. Macdonald. But, as was their practice, the judges strode forward as individuals. The potential political power of the court crumbled into fragments. Two judges, Henry and Gwynne, had come out strongly in favour of dominion authority and provincial subordination. Since Henry was a father of Confederation, this fact should have given his opinion added importance. It is difficult to know how to assess Taschereau, for although the language he used tended to support the dominion, his result was ambiguous. Strong gave preference to the dominion by his use of language. Only Fournier took a neutral stance. Any attempt to reach a conclusion as to what the law was that the case generated, had to fail due to the variety of the judgments that were delivered. Those judges who had come out in support of the dominion did so to an unnecessary degree — greater than even Ottawa had wanted, when they questioned the validity of the provincial law. POSTSCRIPT The fate of the dispute and that of the Supreme Court decision rests in a postscript. The Q.C. issue remained quiet until 1885 when the secretary of state requested a list of Q.C.s in each province, but only asked for those appointed by the province before 1867, in addition to those appointed by the governor general.8 Ontario objected to the request and took the opportunity to question the correctness of the decision of the Supreme Court in Lenoir v. Ritchie, which supported Ottawa's position. This skirmish was followed up in 1887 when the Ontario government obtained legal opinions on the issue from two renowned English lawyers, Sir Horace Davey, soon to be Lord Davey, a lord of appeal, and Richard Haldane, later to be lord chancellor of England, whose name would be intimately linked with the Privy Council and the Canadian constitution. Both Davey and Haldane criticized the 1879 decision of the Supreme Court with respect to the issue of the status of the lieutenant governor. The authority of Lenoir v. Ritchie was draining away. The issue arose again in 1890, when Ontario and Ottawa both appointed long lists of Q.C.s. Ontario requested that the dominion government create a reference case, but Ottawa refused. The Ontario government then decided to use the legal process itself, and in 1892 a reference case was prepared. The case was never heard by the Ontario appellate court since in that same year, 1892, the issue of the status of the lieutenant governor was taken as having been settled by a decision of the Privy Council, Liquidators of the Maritime Bank v. Receiver General of New Brunswick. In language that echoes to this day within the fabric of the Canadian constitution, Lord Watson for the board stated: "The object of the Act was neither to weld the provinces into

107 The Captive Court one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy."9 This triumph of provincial sovereignty has governed the country to this day. At the time it meant that Lenoir v. Ritchie was dead. The Supreme Court's political credibility was weakened over this issue. Had it overreached itself in 1879? The large questions mentioned by Taschereau were highly political in nature. In order to wield the required political power, the judges would have had to act as a unit to generate credibility, and the Supreme Court had to be seen as an institution, rather than as a collection of individuals. The destructive tendency of individual responses had resulted in nothing but confusion.10 In the 1879 term, Valin v. Langlois, another case decided by the Supreme Court, became the first constitutional law case to go to the Privy Council." While the Privy Council refused leave to appeal, it actually examined the merits of the decision of the Supreme Court and approved it. The pronounced pro-dominion or centralist stance taken by some of the judges in Lenoir v. Ritchie also showed up in this case. Ritchie and Fournier noted that, in their view, the powers of the provinces were specially limited and defined, while those of the dominion were not.12 For Ritchie, the British North America Act differed entirely from the constitution of the United States (which recognized the sovereign power of the states), and significantly, Henry, as previously mentioned, shared such a view. In this term, other constitutional cases of considerable social magnitude comparable to Severn, continued to come before the Supreme Court. CITY OF FREDERICTON v. THE QUEEN, 1880 When Thomas Barker of Fredericton applied to the city for a licence to sell liquor in his hotel, it was refused on the basis that the dominion statute, the Canada Temperance Act, 1878, was in force in the city and the sale of liquor at retail was prohibited. Barker challenged in the courts the refusal of the city to grant him a licence, and he initially succeeded when the Supreme Court of New Brunswick held that the dominion statute was constitutionally invalid. The city appealed to the Supreme Court of Canada. The basis for the decision of the New Brunswick appeal court was that the dominion Act dealt with a local matter. The statute provided that there could be a local option, meaning that the prohibition of the sale of liquor could vary from place to place. It was the existence of the local option that the New Brunswick court felt would not allow the validity of the law to be upheld as an exercise of the trade and commerce power of the dominion, since with the

108 The End of the Beginning, 1879-1880 local option, there was no uniformity across the country. The Supreme Court reversed the New Brunswick court and held that Act to be valid by a 4—1 margin.13 The majority was made up of Chief Justice Ritchie, Fournier, Taschereau, and Gwynne. Henry dissented. In Severn Ritchie had sided with Strong in dissent and had decided in favour of provincial power in that case, contrary to the position he had taken earlier while on the New Brunswick bench.14 Now, in this case, he came down heavily in favour of dominion power, and distinguished Canada from the United States: "The Government of the United States is one of enumerated powers, and the Governments of the States possess all the general powers of legislation. Here we have the exact opposite. The powers of the Provincial Governments are enumerated and the Dominion Government possesses the general powers of legislation."15 This meant that the dominion had general, absolute, and uncontrolled authority to legislate in its discretion, limited only by the language of the British North America Act.16 Since there was no restriction to be found in the Act and since the Canada Temperance Act was a general law applicable to the entire dominion, it was therefore valid. Specifically, he concluded that the law was valid under the dominion trade and commerce power.17 It is interesting to note that Ritchie was careful to put on record a denial that he was taking policy considerations into account.18 In the Severn case Ritchie had declined to mention the earlier decision that he had rendered while chief justice of New Brunswick, in which he had invalidated a provincial liquor-licensing law. In this case, however, he did mention it for the proposition that a province had no power to prohibit the sale of liquor.19 Fournier was prepared to simply concur with Ritchie's opinions. Taschereau rendered a simple judgment in which he approached the problem from the point of view that a province had no authority to make laws unless expressly given by the constitution. Since there was no express power for the province to enact prohibitory legislation for liquor, it consequently had no authority to do so. Thus, the dominion law had to be valid, he concluded. He was also prepared to place the dominion power within its trade and commerce power. Macdonald's appointee, Gwynne, took full advantage of the opportunity that this case afforded him to propound the Macdonaldian constitution. His judgment amounted to a lecture on the scheme of Confederation, as envisaged by Macdonald. The constitution was said to have constituted the dominion as a quasi Imperial power with "absolute, sovereign and plenary" power. On the other hand, Gwynne wrote, the provinces had a limited lawmaking authority, and he gave the "subordinate divisions, termed Provinces" jurisdiction over "matters of a purely municipal, local, or private character — matters relating (to use the language of a statesman of the time,) 'to the

109 The Captive Court family life,' (so to speak,)."20 The approach that he prescribed for the interpretation of the division of legislative power in the constitution was: All subjects of whatever nature, not exclusively assigned to the Local Legislatures, are placed under the supreme control of the Dominion Parliament, and no matter is exclusively assigned to the Local Legislatures, unless it be within one of the subjects expressly enumerated in sec. 92, and is at the same time outside of all of the items enumerated in sec. 91, by which term "outside of I mean does not involve any interference with any of the subjects comprehended in any of such items.21

The result was that since he could find nothing in the British North America Act assigning the subject of the statute to the provinces, it fell consequently within dominion jurisdiction. The extent to which he was willing to go in support of dominion power appeared to have no limits. For him, provincial law had to yield to dominion law, and he asserted "in respect of any matter over which the several provinces might be given any legislative authority concurrently with the Dominion Parliament, the authority of the latter, when exercised, should prevail, to the extinction of the provincial authority."22 Mr Justice Henry had supported a restricted provincial jurisdiction in previous cases, but in this case he declared that there was a limit to the restrictions that could be placed on provincial power. He said: "The Imperial Act was founded on a compact for the federative union of the several provinces;" it was, in his words, "in the nature of a solemn compact." He added that when the union was negotiated and the British North America Act enacted, the leading idea was that in the large and extensive subjects affecting all the provinces, the central legislature in Ottawa should legislate, and the smaller and less important subjects should be left to the local legislatures. What was involved was a question of degree, rather than kind. Gwynne had announced that he was prepared to allow dominion authority to prevail to the exclusion and, if need be, to the extinction of provincial power, and it was against this view that Henry reacted. He might see the provinces as having power over small and local matters, but he was not prepared to see that power, and consequently the provinces themselves, eliminated altogether. Henry's opinion of the intention of the framers of the constitution (of which he was one) required that the judges focus on the words "local and private matters" as had the Privy Council in pre-1875 cases, but this was never to happen. For Henry the trade and commerce power of the dominion did not reach into the provinces to the retail level. It could only go as far as manufacturing and importation of goods into Canada. As a reaction to an assertion of the Macdonaldian constitution in this case in 1880, the compact theory erupted within the Supreme Court. The concern with provincial autonomy was to continue at a rapidly growing pace.

110 The End of the Beginning, 1879-1880 CITIZENS' INSURANCE CO. v. PARSONS, 1880 The decision in Citizens' Insurance Co. v. Parsons™ came shortly after the very pro-dominion result in the City of Fredericton case. Once again the trade and commerce power was involved, with the constitutional issue being the validity of an Ontario statute that compelled the insertion of certain conditions in fire insurance policies.24 By a margin of 4-2, the Supreme Court found in favour of the validity of the statute, thus appearing to go against the pronounced dominion bent of the previous constitutional decisions. Strong had been present at the arguments in the case, but was absent for the judgment; he authorized Chief Justice Ritchie to state that he entirely agreed with the conclusion of the majority. He thus left himself open with respect to the reasons for judgment. The majority of the court that had found in favour of the validity of the provincial law was made up of Ritchie, Fournier, and Henry. The dissenting judges were Taschereau and Gwynne. As Henry had done in the City of Fredericton case, Ritchie took a step backwards from the potential overwhelming power residing in the dominion's jurisdiction over trade and commerce. He concluded that the general nature of the dominion's trade and commerce power could live with a provincial power to regulate property and civil rights in respect to all matters of a merely local or private nature, such as the enjoyment and preservation of property and matters of contract between parties in relation to their property. The potential scope of the trade and commerce power had perhaps begun to bother him (it should be remembered that he dissented in Severn) since he added that, based on the other items enumerated in section 91, he might be prepared to reduce the power from what seemed to be an unrestricted commerce power. Ritchie was also prepared to view the Ontario statute as not being a regulation of trade and commerce, since it dealt with a contract of indemnity. He did not see the law as controlling the insurance business. Fournier rejected the view that the power over trade and commerce could not be taken literally, in order to preserve provincial autonomy; but, in the case he did not consider that the statute was a regulation of trade and commerce since it did not prohibit the commerce of the assurers, but was rather applicable to the contract of insurance. He was not prepared to view the issuing of a policy of insurance as necessarily a commercial transaction, it being a contract of indemnity. Henry continued the limited interpretation of the trade and commerce power that he had begun earlier the same year in the City of Fredericton case. For him the dominion power was to enact general regulations, and it did not cover the regulation of local contracts.

Ill The Captive Court Taschereau, a dissenting judge, viewed the insurance contracts as the trade and commerce of insurance companies, and thus he concluded that section 91 52 was engaged. The trade and commerce power was for him to be taken literally and to mean "all regulations on all branches of trade and commerce." It covered, he emphasized, internal as well as external trade.25 The majority was influenced by an American decision in which the Supreme Court of the United States had taken the position that the issuing of a policy of fire insurance was not a transaction of commerce at all, but was rather the entering into of a contract of indemnity against loss of the property by fire; it concerned the preservation of property.26 Taschereau objected to the use of the American case: The relative positions of the parliament of the Dominion of Canada, and the legislatures of the various provinces, are so entirely different from those of Congress and the legislatures of the several States, that all decisions from the United States Supreme Court, though certainly always entitled to great consideration, must be referred to here with great caution. There the right to regulate commerce in the State is given to the State, not to the Federal power.27 He next urged his colleagues to consider the consequences of a decision that the statute was valid. He referred to the magnitude of the regulation of the insurance industry that had been undertaken by Ottawa. He noted: "where the commencement of a practice was almost coeval with the constitution, there is great reason to suppose that it was in conformity to the sentiments of those by whom the true intent of the constitution was best known."28 He pointed out that there were thirty-one dominion statutes that would be unconstitutional if the Ontario statute were held to be valid, which he said would be a grave and stupendous consequence.29 As far as the insurance business was concerned, he considered it to be impossible for the companies to carry on their business if each province had different conditions and restrictions.30 The very overt use of social facts by Taschereau was unusual for him, but highly informative of the decision-making process in which he was engaged. It is perhaps not surprising that Gwynne would side against provincial power, having taken such a strong pro-dominion stance in his earlier cases. He had little difficulty in seeing the law as a regulation of trade and commerce. He also dealt with the magnitude of the business as indicating the necessity for dominion control. He described fire insurance as "the trade of trades without which all other trades would have dwindled and decayed."31 Gwynne could see "mischief in the provincial law, which, if held valid, would "undermine the fabric which the B.N.A. Act [was] designed to erect."32 Once again he took the opportunity to attack the notion that the

112 The End of the Beginning, 1879-1880 provinces were sovereign, and to assert that they were subordinate bodies. He maintained: "The object of the B.N.A. Act was to lay in the Dominion constitution the foundation of a nation, and not to give to provinces carved out of, and subordinated to, the Dominion anything of the nature of a national or quasi national experience."33 In the judgments of those judges who made up the majority, a concern with the sweeping away of provincial powers had surfaced that directly confronted Macdonald's image of confederated Canada, as was so eloquently presented by John Gwynne. The case was appealed to the Privy Council and although the board affirmed the decision of the Supreme Court, the reasons of Sir Montague E. Smith for the board differed significantly from those of the judges in the majority in the Supreme Court.34 The Privy Council took Henry's approach in the City of Fredericton case, and concluded that there could not have been an intention to have the provincial powers absorbed by the dominion. The question of provincial autonomy, as specifically mentioned by Fournier, was picked up. In what turned out to be a blow that would in the end prove fatal to the Macdonaldian constitution, the board pronounced that the provincial power over property and civil rights, section 92 513 of the British North America Act, was to be understood in its largest sense. The ordinary meaning of the words "trade and commerce" had to be rejected since it had not been intended in the opinion of the Privy Council judges. Restriction of the power over trade and commerce, as well as certain other general powers, was considered necessary to preserve the autonomy of the provinces. The conclusion that section 92 52 could not have been intended to have a meaning as wide as the words "trade" and "commerce" would take it was reached by an examination of the language of the other heads of power in section 91. The collocation of the commerce power with classes of subjects of national and general concern, such as section 91 5515, 17-19, "Banking, incorporation of banks, and the Issue of Paper Money," "Weights and Measures," "Bills of Exchange and Promissory Notes," and "Interest," showed that 91 52 was intended to embrace only the regulation of general trade and commerce. It was theorized that specific enumeration of the other classes of subjects would have been unnecessary if section 9152 had been intended to have a wide scope. Another basis for the conclusion regarding the restricted meaning was found by going outside the words of the section. In the Act of Union of 1707, the expression "regulation of trade" was used, which meant external trade, and the judges saw the word "trade" as being used in the same sense in the Act. The judges were using the legal context to condition the language context. For the very significant conclusion that the words of section 92513, "property and civil rights" were to be understood in their "largest sense," the

113 The Captive Court Privy Council looked at section 91 518 where one class of contract was mentioned, "Bills of Exchange and Promissory Notes," which implied that contracts in general were to be covered by 92513. Of considerable importance was the existence of section 94, which provided for the establishment of the uniformity of law throughout common-law Canada, but which excluded Quebec and its civil law.35 The Privy Council noted that if one were to restrict the meaning of "property and civil rights" and expand the meaning of "trade and commerce," uniformity would be achieved, but that process would make section 94 redundant, and thus leave Quebec without the special position provided for by that section. That, it was felt, could not have been what was contemplated in 1867. Finally, the Privy Council pointed out that the expression "property and civil rights" was also used in the Quebec Act of 1774, and in that statute the phrase meant the entire civil law, as opposed to the criminal law. All the provinces were given the special status of Quebec and a decentralized federal system was the result. The conclusion that was finally reached was that the federal power over "trade and commerce" extended only to "political arrangements in regard to trade requiring the sanction of parliament, regulation of trade in matters of inter-provincial concern, and it may be that they would include general regulation of trade affecting the whole Dominion." This definition remains intact to this day, but this is only the base rule, and the meaning of the words have varied over time. THE CONSTITUTIONAL CASES that found their way into the Supreme Court of Canada in the early years contained issues whose resolution shaped the nature of the country. The strong centralist stand taken by a majority of the judges in the early cases, most dramatically by John Gwynne, weakened its credibility in the face of changing social values. Now the Privy Council entered the arena of constitutional litigation, and the importance of the Supreme Court was about to slip away. The judges were either unwilling or unable to make a showing of strength to help themselves and the institution achieve its appropriate place in Canadian society.

11 The Court Struggles, 1880-1885

As the 1880s began, diversity among the judges was still identified as the main problem of the court, but now there was being projected a feeling of inevitability about the situation. A writer for the Canada Law Journal commented: "Its members are called together from the four quarters of the Dominion; from Provinces having different systems of law, different legal traditions, different practice, and one of them speaking a different language from the others."1 There was no hint given by the writer that the diversity within the country should compel Canadians to find a new and accommodating reality. A suggested solution was for the membership of the court to remain stable in order that a feeling of collegiality might develop, and also that the judges might come into contact with other judges and lawyers. This latter thought created still another focus for criticism with regard to the court, which was the city of Ottawa. As long as the court remained in Ottawa, the opportunity for significant professional contact was seen to be slim. The city, which was a backwoods frontier town at the time,2 was characterized as an out-of-the-way place, lacking the concentration of legal talent that would be found in a larger city. Toronto was suggested as a possible new site for the court, although the question of how the national diversity would be accommodated by placing the court in Toronto was not examined by the writer. There was to be centralization, it seemed, but with Toronto as the core, not Ottawa. At this time, the "want of harmony" in the court was a constant topic of comment.3 In late 1879 and early 1880, problems began to surface with respect to Strong. He began to give oral judgments, and several of his judgments were unreported. It was stated that he had mislaid his judgment for one case, and the decision was reported without it.4 A telling comment on the prestige of the court occurred when the Canada Law Journal announced that on several occasions the court had "endeavoured

115 The Captive Court to commit suicide" collectively and through some of its members but, the Journal was happy to point out, the court was not responsible for all the evil things. With regard to one case, the blame was put on the relevant legislation, rather than the judges. Later, when the Privy Council was able on an appeal to reach a different conclusion, there was silence.5 At this time comments by "R" appeared in the Legal News and "R" became a strong critical voice of the court. The crucial subject of the judges was brought into question, and their selection was said to have been unfortunate, with "R" making the general but telling point that selection should be based on the merits of the candidate rather than made for political reasons or patronage. When "R" turned his talents on the decisions, he commented sharply that one case looked "too like a bit of English law rudely fitted on to the law of this country by an inexpert mechanic."6 The Supreme Court had ostensibly been created for constitutional decision making. At this time, there was some acceptance that the interpretation of a constitution was different from that of an ordinary statute, and that the process was one in which social facts were vital, such as was demonstrated by Richards in Severn. In 1880, Edward Blake could accept publicly that the judges' Canadian background and their experience of the constitutional atmosphere of Canada were important and different from that of English judges.7 When the Privy Council had stepped in and granted leave to appeal in 1880 in the Parsons case, it had evoked some surprise in Canada.8 In 1881, there arose a case that changed the situation completely. MERCER v. ATTORNEY GENERAL OF ONTARIO, 1881 The facts of this case, which was to prove so significant for the Supreme Court, began to unfold four years before the court was established. It all began in June 1871, when Andrew F. Mercer died at Toronto without a will and without any heir or next of kin. His estate amounted to the considerable sum of $150,000. Mercer did, however, have a natural son (also called Andrew Mercer), who, on his father's death, took possession of certain property in Toronto that had belonged to his father. He refused to give it up when the government of Ontario claimed that the estate has escheated to the Crown in right of the province because of a lack of heirs. The government, in the name of the attorney general, was forced to bring an action to recover the property. The son defended his possession of the property by alleging that the province of Ontario had no right to the property since escheat would operate to give the property to the dominion rather than the province. He lost in both the Chancery Court and at the Ontario Court of Appeal, and appealed

116 The Court Struggles, 1880-1885 to the Supreme Court. On the appeal to the Supreme Court, the dominion intervened to argue that the province was not entitled to the property, and the province of Quebec intervened to support Ontario's position.9 What carried an extremely ominous tone for the Supreme Court was an agreement between the governments of Ontario, Quebec, and the dominion that an appeal would be taken to the Privy Council, regardless of what decision the Supreme Court reached. There was no doubt that the subsequent request for permission to appeal a case made by the dominion government and the governments of Ontario and Quebec would be granted. The Supreme Court was being relegated to the role of an intermediate court of appeal in the area of law for which it had apparently been created. The granting of leave in Parsons in 1880 may have come as a surprise and evoked comments, but it would now appear that appeals to the Privy Council would become the norm for constitutional cases. With the case now in the hands of the dominion as well as Ontario and Quebec, Andrew Mercer slipped to the background. The dominion argued that the Queen was part of the dominion Parliament but not part of a provincial legislature and that the lieutenant governor was simply a federal officer without the prerogative right to acquire property by escheat. Ontario's position was presented in part by Edward Blake, who put forward the ideas that Confederation was a compact, and the provinces were not created as subordinate bodies in 1867, but had existed as sovereign political entities before, and this status continued after Confederation. He also advocated that escheat need not be tied to the prerogative power, but could be included in the grant of legislative power to the provinces over property. The lawyer for Quebec argued strongly for a recognition of provincial power. Confederation in 1867 was repeatedly asserted to have been a compact, and the counsel went to a considerable length at that time to propose recognition of the residue of legislative power as lying with the provinces. He maintained that Quebec would not have joined Confederation if a legislative union had been contemplated, since this would have been "an insane union" for Quebec. The province, it was further asserted, needed legislative power for its national existence.10 Although the battle lines were clearly drawn, the judges of the Supreme Court avoided any direct dealing with the problem of the nature of Confederation. However, they had heard the very strong arguments in favour of provincial rights, and such views were certainly part of the social context in which the case would be decided. In spite of the position taken by the two powerful central provinces, four judges of the Supreme Court decided to reverse the decision of the Ontario courts and find in favour of dominion power. The claim of the province was upheld by Ritchie and Strong, in dissent. The pro-dominion stance of the court as taken in Severn was being maintained.

117 The Captive Court Chief Justice Ritchie rendered the dissenting judgment, with which Strong concurred, and he decided that escheat was to be seen as an executive power prior to 1867, and provincial executive power and authority was precisely the same after as before Confederation, subject only to any changes made by the British North America Act. He went considerably further when he asserted: "Special pains appear to me to have been taken to preserve the autonomy of the provinces, so far as it could be consistently with a federal union."11 Confederation was thus "a federal union" in Ritchie's opinion and he felt it to be the duty of the judiciary to recognize and preserve provincial rights.12 Influential and consistent support for provincial autonomy existed in the Supreme Court in the persons of Strong and Ritchie. Henry, the father of Confederation, rendered a strange and unsatisfactory judgment, in which he uncharacteristically tried to approach the problem without an expression of the social context. He was prepared to call Confederation an agreement, as he had done before, but one by which the provinces had surrendered their power, and now they depended on the British North America Act for any source of power. His task was thus to look at the words in the Act alone, which led him to conclude that he could not find any language to support the provinces' right to receive the property by escheat. By turning to the words alone for an answer, he projected an appearance of neutrality, although his rationale for doing so was based on a definite view of the place of the provinces in Confederation. This was not a typical judgment by Henry. Predictably, John Gwynne propounded a strong pro-centralist position. For him, the dominion had absolutely sovereign control over all matters of every description that were not expressly assigned to the provinces by the language of the Act. In a lecturing style he discussed Confederation, and had no doubt that the provinces were subordinated to the dominion and that the monarch did not constitute a component part of a province's government or legislature. The judgments of the two Quebec judges, Fournier and Taschereau, who supported the central authority over the claims for autonomy of their own province, merit special consideration. Fournier acknowledged having seen and read Gwynne's judgment and agreed with his conclusions. His lack of any clear reservation about it is surprising, since Gwynne was extremely pro-dominion. Fournier's basic position in the case was that escheat was a fiscal prerogative and as a source of revenue belonged to the dominion since all revenues belonged to Canada unless expressly reserved to the provinces by the Act, and he could not find any reservation to the provinces of the power to receive the estate through escheat. Taschereau added very little, except to make the only comment about the agreement to take the case to England. The other judges remained dutifully silent. Taschereau remarked: "I think it but right for obvious reasons that the

118 The Court Struggles, 1880-1885 final and authoritative determination of controversies on the construction of the British North America Act, which is an Imperial Statute, should emanate from an Imperial judicial authority."13 The "obvious reasons" are unfortunately not obvious to us today, and his reference to the constitution as being "an Imperial Statute" must surely have been only a rationalization. A few years earlier in Lenoir v. Ritchie, Taschereau had said: "I feel that I cannot, deciding the case on minor issues, rid myself of the responsibility of considering these grave and important questions, the determination of which this Court has been more specially created for."14 In his comment in the Mercer case can a hint of irony or of sadness be found? At least, of the judges, we know that Taschereau accepted the subordinate position determined for the court by the governments involved with a smile on his face — real or fake. As had been agreed upon, the case went to England. It was heard by an unusually large bench of six judges, headed by the lord chancellor. It took only two weeks for the Privy Council to reach a decision, and for the first time, a constitutional decision of the Supreme Court was reversed. In a brief and simple judgment delivered by the lord chancellor, the words alone of the British North America Act were found to contain a solution to the problem. The judges of the Privy Council were content to accept that the meaning of the word "royalties," which had been given by the Act to the provinces, included escheats. Thus the property in question belonged to Ontario. The lord chancellor added: "it is some satisfaction to know, that in this result the Courts of Quebec and Ontario have agreed; and, though it differs from the opinion of four judges, constituting the majority in the Supreme Court of Canada, two of the Judges of that Court, including the Chief Justice, dissented from that opinion."15 The four judges who had made up the majority of the Supreme Court, Fournier, Henry, Taschereau, and Gwynne, could not compete against the combined forces of the provincial courts, and two of their colleagues. The fact that Oliver Mowat, the attorney general as well as the premier of Ontario, appeared before the Judicial Committee as one of the lawyers for his province, would have given the impression that the case was of considerable importance to the provinces. The four majority judges could not compete against the changing social values. Back in Canada, the law journals did not react, but simply produced descriptive reviews of the case, and the Canadian Law Times pointedly wrote: "After the Privy Council has pronounced upon a case, it is politic as well as safe to adopt and approve of the decision."'6 The Supreme Court was unfortunately not as lucky. The bottom line was the provinces, led by Ontario, had won a battle against Macdonald and Ottawa, and the Supreme Court as an institution had been on the losing side. THROUGH THE 1880S the number of split decisions of the court increased and reached new heights. The inability to function as a unit and the conse-

119 The Captive Court

quent difficulty in determining what the law was from the judgments rendered could be seen in Dominion Telegraph Co. v. Silver and Payne}7 The Supreme Court reversed the provincial appellate court by a 5-1 vote, but of the five majority judges, no more than two agreed on any particular set of reasons for the reversal. The problems could also be seen dramatically in The Queen v. Doutre™ in which the court split 3-3, with considerable variation among the judges on all points; on the appeal to the Privy Council even the board was driven to comment on "a remarkable diversity of judicial opinion." The judges were not helping themselves. EARLY IN THE 1880S express acceptance appeared of the political necessity of the existence of the appeal to the Privy Council. The appeal was part of the colonial system.19 As an accommodation an aura of myth was created around the Privy Council - it was called "a pure fountain of the highest law."20 Because of the increase in applications for leave, the board articulated a test in 1882 "where the case is of gravity involving matter of public interest or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance or of a very substantial character."21 The Privy Council rejected the argument that the amount in controversy alone would justify leave being granted, which would have virtually established an appeal as of right above a certain amount. In 1876, Cairns had wanted the Canadian government to regulate the appeal but that had not been done, and now the board was establishing its own regulations. The articulation of a test would itself have the effect of normalizing the appeal, which only a few years before had been thought of as a rare, and indeed, virtually obsolete power of the Crown to take an appeal by leave from an overseas territory. In order to justify leave being granted, a virtual failure of justice in the colonial legal system had been thought to have been necessary. Such a notion was not recognizable in the 1882 rule. At this time awareness of the Privy Council was enhanced enormously when it was propelled into public view with its decision in Hodge v. The Queen.22 The Supreme Court's diminishing role was further witnessed by the fact that it had been bypassed in the case and the appeal was taken from the Ontario Court of Appeal to England. Following the decision of the Privy Council in the famous (or infamous) constitutional case of Russell v. The Queen2* in which the validity of the Canada Temperance Act, 1878 had been upheld, the opinion in Canada was that the whole subject of the traffic in liquor was within dominion legislative authority. Macdonald moved quickly and the Liquor License Act, 1883 was passed.24 By that statute, the sale of liquor in Canada was to be regulated by a system of licences, both for wholesale and retail sales. However, problems quickly surfaced when in 1883 the Privy Council rendered its judgment in

120 The Court Struggles, 1880-1885 Hodge v. The Queen. The Privy Council held that the province of Ontario had constitutional authority to enact a liquor-licensing law.25 It was stated that the whole subject of liquor was not to be considered as within either the dominion or the provincial sphere, but rather a subject matter, such as liquor, could in one aspect and for one purpose fall within provincial authority under section 92 of the British North America Act, and could, in another aspect and for another purpose, fall within dominion authority under section 91. The Hodge decision created a considerable stir in Canada. It would be many years before as much would be written in the law journals about any case. It was thought by many to be contrary to the Russell case, which had supported dominion authority to enact a national temperance law, and it was said to have changed everything. What today seems self-evident was apparently not so in 1883, namely that the so-called "aspect doctrine" articulated in Hodge was the reasonable proposition that sections 91 and 92 of the constitution do not deal primarily with things (facts) but with laws, and a law is concerned with doing something with a thing. Thus, it was not liquor as a subject matter that was to be found within sections 91 or 92. Rather the question was what the law being reviewed was doing with respect to liquor. Was liquor being regulated in interprovincial trade under section 91 52, which was trade and commerce, or through tavern licences under section 92 59, or drunkenness, section 91 527, which was criminal law, or as property under section 92 513? The fact that the legal profession in Canada dealt with the problem in the rather unsophisticated way that it did certainly did not bode well for constitutional cases. A repercussion of the Hodge decision was indicated in a speech by the lieutenant governor of Ontario at the opening of the Ontario legislature in 1884. He was reported as saying that the Privy Council had safeguarded the autonomy of the provinces.26 At a time when provincial rights were becoming politically dominant over national interests, the Privy Council had become identified with the cause of provincial rights. The history of the Supreme Court to this point had given a picture that was overwhelmingly dominionoriented. Neither Russell v. The Queen nor Hodge v. The Queen had been heard by the Supreme Court. Russell had gone directly to England from the New Brunswick Supreme Court, and Hodge had gone from the Ontario Court of Appeal. The constitution was taking on a new form without any input from the judges of the Supreme Court of Canada on this vital aspect of Canadian social life. The dire prediction of the dismal spectacle of six melancholy men trying to catch an appeal seemed to be taking shape.27 IN MARCH 1882 the Canada Law Journal stepped up its criticisms of the court. Consultation among the judges was a vital issue, yet according to the Journal not all of the judges resided in Ottawa, which reduced the chances for consultation. In what could be taken to be a description of the situation at the time, the Journal commented that in the absence of consultation "a

121 The Captive Court disjointed patch work of individual opinions" would result. The consequences of such a situation would mean that the decisions of the court would have little weight with the profession, and it would be disastrous in its effect upon the administration of justice in the eyes of the public. In spite of this warning, the disunity continued unabated. The conclusion reached by the journal was that the court had been a failure. Several reasons were given for this assessment, which were "the inherent difficulties of our confederation," the inability to appoint the best people, and those "owing to the difficulties and infirmities of a personal nature which we do not care to enlarge upon."28 The "inherent difficulties of our confederation" could cover the existence of the federal system, and in particular Quebec, as well as the divisive forces of race, religion, culture, and language. As for the personal infirmities that were mentioned, it is not at all clear today what they were at the time that the article was written. In spite of the apparent deteriorating circumstances surrounding the court, a measure of excitement was generated by Mr Justice Henry in two cases of the time. The cases concerned the question of Crown (government) immunity from liability for the actions of its agents, negligent or otherwise, that resulted in death or injury to a person. The barrier that prevented recovery of damages in a case in which someone was physically or economically injured by an agent of the government was the existence of the constitutional principle or maxim of the law - "the King can do not wrong." This meant that the government was not legally responsible for any injuries that it might cause to the people that it governed. Since the government acted through agents, it was, therefore, not legally responsible for the acts of its agents, although the agents themselves could be held accountable by law. Unfortunately, the agents would rarely have the financial resources to pay a sufficient amount of damages. In England during the early years of the nineteenth century, if a person had been injured by the action of an agent of the government, that person would petition the sovereign, that is, the government, asking for a redress of whatever grievance was present, and this "petition of right" would be passed to the lord chancellor with the endorsement, "Let right be done." A restriction on the ability of a person to receive a remedy was declared in 1843 by Lord Chancellor Lyndhurst, namely, that a petition of right could not be used to recover compensation for injuries sustained because of the negligence of servants of the Crown.29 By statute in I860, the law in England was altered to allow a petitioner to bring an action against the Crown in the superior courts, with permission.30 The law as to when damages for injuries could be recovered appeared to remain as it had been; the Crown was still not liable in tort. The judges in England initiated the next change in the law when in 1874 the Court of Queen's Bench, referring for inspiration to the Petition of Right Act of 1860, was able to find a case from the past that could be used as some

122 The Court Struggles, 1880-1885 authority for the proposition that a petition of right would lie for a breach of contract resulting in unliquidated damages.31 Unliquidated damages meant those that could not be determined by simple computation, but must be assessed based on an estimate of the injury sustained. In the 1874 case in which law was created, the judges recognized the increase in the number of contracts between the various departments of the government and subjects as requiring a change in the law. Previously, it had seemed settled that petitions of right would lie only with respect to rights in property.32 In 1875, a Petition of Right Act was passed by the Parliament of Canada, based upon the earlier English statute.33 When the Exchequer Court was established in 1875, the jurisdiction over petitions of right was conferred on it exclusively.34 At the time the following two cases were decided by the Supreme Court of Canada, the state of the law was that recovery of damages against the government for injuries caused by agents of the government might be possible if a contract were found to exist, based on the English judicial law reform of 1874, but if the action for damages was based on tort law, there was no apparent hope that it would succeed. THE QUEEN v. McFARLANE, 1882 McFarlane cut timber on the Madawaska river and floated the logs to the Ottawa river. At Arnprior, the federal government owned and maintained a slide over which the logs would go into the Ottawa river. The problem arose when a larger quantity of logs than the main boom was capable of holding was allowed over the slide into the main boom, with the result that it broke away, and McFarlane's logs floated out. He had warned the slide-master that this would happen. McFarlane sought damages for the loss of his logs from the federal government in the Exchequer Court. The case was argued before Mr Justice Henry in his role as an Exchequer Court judge, who held that a contract had been created by which it was agreed by the Crown that the logs would be carried in a proper manner and re-delivered to the owner from the lower main boom in return for the petitioner paying the required fee. Henry's perspective was to deal with the case as if a private company were involved, rather than as if the Crown should be treated differently. On the appeal to the Supreme Court, Henry was overruled, 4-1. He sat on the appeal and adhered to his earlier judgment, and was thus the lone voice of dissent.35 Ritchie, with whom Taschereau concurred, rejected completely any notion of an analogy of the Crown with private individuals or companies. The Crown had not entered into the running of the slide for profit, as would a private enterprise, but the slide was to be viewed as "public property, created

123 The Captive Court

by the expenditure of public money for public purposes and for the public benefit."36 It was to the cases dealing with the Post Office that Ritchie turned for guidance. A solid body of precedents had developed that established that the postal department was not to be considered in the same way as a private venture. Rather it was described as an institution where "the duty arises out of a great public trust," and as "a branch of the public police."37 If there were any remaining question as to what Ritchie's feeling was on the matter, it was put to rest completely by his characterization of Henry's judgment as "a direct and unwarrantable attack on Her Majesty's prerogative rights and is derogatory to the honor of her Crown and an imputation that ought not in my opinion to be permitted to appear on the records of this court."38 In any case, Ritchie concluded from looking at the pleadings, that the petitioners had not alleged any contract with the Crown, but had conducted the case entirely as a tort action. This would mean that, not only had Henry been engaged in reforming the law by treating the Crown the same as a private person or corporation, but that he had created the petitioner's case for him. Henry's decision had obviously greatly agitated him, and that he would deal with the case on this basis showed a lack of collegiality operating within the court (at least as far as he and Henry were concerned). In a brief judgment, Strong took the same approach as did Ritchie, including the view that no contract had been shown to exist by the petition itself. Quoting another judge, he added that he considered that it would be subversive of the public interest to have public enterprise subject to legal actions.39 The fourth judge, Gwynne, saw the attempt by Henry to use contract in the case as "a novel and ingenious device" to circumvent the rule of Crown immunity in cases of negligence,40 one for which there was no authority cited. He concluded that if public opinion was such that it was thought that a person such as McFarlane should recover damages from the Crown, then legislation should be sought, not an appeal to the judiciary.41 The majority judges had rejected unequivocally Henry's attempt at law reform, but he was not beaten yet, and remained unrepentant. THE QUEEN v. McLEOD, 1883 On 25 August 1880, George McLeod, a thirty-two-year-old bank manager, boarded a train of the Prince Edward Island railway at Charlottetown, Prince Edward Island, with Souris as his destination. He never arrived. The train left the track on a sharp curve because of the condition of the ties, which had not been maintained by the railway, and McLeod, once an active man, was left a "physical wreck."42 There was no question that his serious injuries were a result of the lack of maintenance of the track by the company, which

124 The Court Struggles, 1880-1885 amounted to negligence. Mr Justice Henry, the trial judge, stated the situation clearly when he said: "the safety of life had been recklessly jeopardized by running trains over [the track] with passengers for some time before the accident occurred."43 From today's vantage it would seem that there should have been little preventing McLeod recovering considerable damages from the railway. The trial judge suggested that vindictive damages would be reasonably expected. Such damages are beyond what would be thought to be needed to compensate the victim, and are meant to punish the defendant for the conduct that caused the injuries.44 But - and it was an enormous "but" — the railway was owned by the dominion of Canada and operated by the minister of railways and canals. If it had been privately owned there would have been no problem, but Crown (government) immunity had come into play. At the time of George McLeod's injury, it seemed clear that an action for damages based on the negligence of the railway would be met by the constitutional rule of Crown immunity in cases of tort. An action based on contract might succeed, however. In the Exchequer Court, there was no question that the language used by Henry to describe the facts of the case exuded sympathy for the injured man.45 This may be an example of a "hard case" that will result in the production of "bad law." In such an instance a case may so engage a judge's emotion and sympathy that there is no compulsion to decide in favour of the aggrieved person, which requires that the law be stated (or re-stated) to rationalize the result. The ad hoc law that is produced is "bad law," in that it may not be easily applied to later cases, and creates confusion. Henry knew that he was solidly blocked by the rule of Crown immunity for tort actions, which was so entrenched in the law that it would have been professionally unacceptable to try to overcome it. He had failed in McFarlane in his use of the contract approach, but that could be said to have been with regard to the application of the law, not the law itself. He accepted that McLeod and the railway had entered into a contract for the passenger to be carried safely in return for the payment of the fare. In looking back over the previous decisions in which the notion of holding the Crown liable through a contract action had been dealt with, he was unable to find any qualification added to the term "contract," and he saw no reason for adding any.46 Thus, if a contract had been made, and he saw little controversy in so finding, then the Crown could be held liable under the contract on the basis of the law that had recently been developed. He thus found for the plaintiff and awarded damages of $36,000, which in today's figure would be around $750,000. The appeal to the Supreme Court by the government was allowed, 3-2. Henry again sat on the appeal, and, as might be expected, upheld his previous decision, but this time he was joined by Mr Justice Fournier. The majority consisted of Chief Justice Ritchie, Strong, and Gwynne.47

125 The Captive Court Fournier, in a well-crafted but lengthy judgment, discussed the maxim of the law, "the King can do no wrong," and saw no reason to extend it to allow the government to escape liability under contracts that had been made with private citizens. The rule in France at the time was that when the state entered the private domain and acted as a private person or corporation, then the ordinary civil law would apply. Fournier emphasized that the King was under the law and bound by it equally with his subjects. If the Crown could enter into contracts, then it must be held responsible under the contracts. Fournier then examined the previous cases, primarily the 1874 English case, Thomas v. The Queen, which had changed the law to allow for an action based on breach of contract, and concluded that "there can be no doubt a petition of right will lie for a breach of a contract, and that the Crown is responsible to the other contracting party for any damages suffered in consequence of such breach."48 He saw McFarlane as having totally different facts, and accepted that it had been litigated as a tort action. After dealing at some length with the question of liability in matters of contract, he reached the crucial question of whether there was a contract in the case between the Crown and Mcleod. Although he recognized that negligence had caused the accident, yet the origin of the action was, in his opinion, founded upon contract. He turned to Thomas v. The Queen, for an articulation of the changes in society which justified the decision that he had reached, namely the vast increase in the contracts made between subjects and government departments.49 It is interesting to see his reliance on the previous case for policy statements, as if he needed an "authority" for such social facts. The English case had simply taken notice of the social facts. Fournier concluded by examining the statutes relating to government railways, and by implication from the language was able to conclude that the Crown would be liable. He approached the statutes with the premise that when the government worked as an ordinary company, it ceased to exercise political authority and undertook an ordinary civil transaction. In the Exchequer Court, Henry had dealt only with the question of whether there was a contract; now, as had Fournier, he raised the concern that the government was engaged in ordinary commerce and should be treated accordingly.50 Ritchie seemed to consider that he had already made his point in McFarlane. As far as he was concerned, that case governed and the claim by McLeod was unquestionably a claim in tort law, not contract law. Of prime importance in the study of the life of the court is the attitude of the judges towards their role. As this case shows, Ritchie had reacted strongly to Henry's attempt at law reform in McFarlane, now the reaction became even greater, perhaps since Fournier had also opted to alter the law. Ritchie made the role of the judiciary a constitutional matter. He pointed out that since the case dealt with a matter of constitutional law, its importance was

126 The Court Struggles, 1880-1885 considerably elevated and this fact highlighted the enormity of what the dissenting judges were doing. Not only was a constitutional question involved with respect to the rights of the Crown, but it was also a constitutional principle that judges must not attempt to make laws. He said: This constitutional principle this court cannot ignore; it must not attempt to make laws; it must administer the law, constitutional, local, public or private, as it is, and leave the Dominion Parliament, on general and constitutional questions affecting the whole Dominion, and the provincial assemblies, on local questions, each within the scope of their legislative functions, as declared by the B.N.A. Act, to alter, or adapt the practices or principles in force, to make them, if found expedient so to do, more suitable and applicable to the circumstances of the country.51 Ritchie had consequently branded as unconstitutional the action of Henry and Fournier since they had gone beyond their legitimate function as judges. This showed indeed the strength of the convictions involved. He concluded his reasons by pointing out that McLeod could always petition the government directly for relief, and he gratuitously commented that he had the deepest sympathy for the injured man. Henry Strong brushed the case aside with a half-page judgment in which he said simply that McFarlane could not be distinguished in his opinion. He seemed to be simply impatient with the case. The third judge of the majority, Gwynne, wrote ten pages, which boiled down to the simple opinion that there was no contract between the plaintiff and the railway, and the action was in reality a negligence action. The tendency to overreaction in the case can be seen in the conclusion reached by Ritchie and Gwynne that there was no contract in the case. A much less controversial opinion would have been to take the view that regardless of the contract aspect, the action was simply to be seen as a tort action. An attempt had been made in the United States to break down government immunity by framing the action in contract, but it too had failed.52 In the case, it was arguable that the legislation did suggest that the government railways were to be treated in the same manner as private railways but the majority would have none of it. Gwynne wanted express provisions and would not engage in an inference when it came to making the government liable in damages.53 This case provides us with a prime example of how the judges in 1882 coped with a law-making or law-reform situation. Henry and Fournier attempted to reform the law, but their effort was rejected, although by only a bare majority of judges. Ritchie's strong articulation of the role of the judiciary within the constitution had to be questioned when two of the five judges were the object of a charge of unconstitutional behaviour. It was thus not that clear-cut that there had been improper behaviour, let alone that it should be

127 The Captive Court

called unconstitutional. What the dissenting judges had done was to go beyond what had happened in England and the United States, and they were prepared to put the Supreme Court on its own. That in itself may have been too heady. The Canadian Petition of Right Act of 1875 had expressly given to Canadians the same rights as those given in England in the 1860 English legislation.54 Strong had simply displayed an impatience with the whole issue. Henry used direct and emotional language in his judgement and did not have either the expertise or inclination to mask the reform of the law that the was advocating. He was saddled, however, with the McFarlanf decision. Fournier's more restrained judgment, which accomplished exactly the same thing, gave the appearance of orderliness and no change.55 Fournier appeared to be finding the law. In the famous case of Thomas v. The Queen in the Queen's Bench in England, the words: "We think, therefore, that we are bound by the bankers case to hold" are found at the end of the reasoning. The use of the words "bound ... to hold" signified a lack of change and of creativity. In conformity with a desire for continuity and stability it was the preferred method to draw a proposition from previous cases. In Thomas the previous case, "the bankers case," was only inspiration, with words of "authority" attached. The thought cannot be dismissed that perhaps the battle for reform was lost due to Henry's lack of credibility. He was, it will be remembered, a "fair lawyer" (at least in Ontario), but when compared with Fournier it is clear that he lacked an appropriate style. As shown in McLeod the norm had become diversity among the judges, and there seemed to have been no attempt made to reach a consensus. The complete individualism that marked the decisions was for an appeal court, judicial anarchy. It is interesting to note that five years later, when the question of the liability of the government in a tort action was before the Privy Council in an appeal from New South Wales, the following comment was made: It must be borne in mind that the local Governments in the Colonies, as pioneers of improvements, are frequently obliged to embark in undertakings which in other countries are left to private enterprise ... If, therefore, the maxim that "the king can do not wrong" were applied to Colonial Governments [for tort actions] it would work much greater hardship than it does in England.56

In the opinion of the Privy Council, justice required that the immunity not exist, and if applicable legislation contained words that were sufficient to allow an action against the government, they should be so interpreted by the judiciary. In 1887 a change in the law of Canada was made by legislation and the Exchequer Court was given exclusive original jurisdiction to deal with

128 The Court Struggles, 1880-1885 "[ejvery claim against the Crown arising out of any death or injury to the person or to property on any public work resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties of employment.57 It thus appears that William Henry was not out of touch with social values, yet following the 1887 amendment to the law, the judiciary reduced its impact by giving the words "on any public work" a narrow meaning, and not only viewed a "public work" narrowly, but also required that the death or injury take place on a "public work."58 The narrow interpretation of the law was later called into question in the early years of the twentieth century by some of the judges of the Supreme Court at that time, but their view was that they could do nothing since the doctrine of stare decisis was controlling. One judge in 1916 called the law absurd and barbarous.59 In 1917, another amendment was created that made it clear that the death or injury caused by the negligence of a government employee need not take place on a public work, although the negligence of the employee was required to have occurred "while acting within the scope of his duties or employment upon any public work."60 It was not until the early 1950s, seventy years after McLeod, that the idea began to appear in legislation throughout Canada that the government should be made liable in tort as was any person of full age and capacity,61 and it would be a further twenty years before the law would be the same throughout all of the provinces. It thus appeared that there was no wide-spread dissatisfaction with the general rule of Crown immunity for tort actions, as maintained by the judges. Ritchie's opinion had merit, as measured by the actions of the judiciary over the years: the rule should be viewed as an accepted constitutional rule, and as such it was by definition a basic rule by which the society functioned.62 In the mid-1880s there occurred a case that gives us a rare opportunity of seeing the work of the court in direct comparison with that of the Supreme Court of the United States. It provides a vivid illustration of the attitude of the judges towards their role in the interpretation of statutes. BANK OF TORONTO v. PERKINS, 1883 In this case Mr Justice Strong expressly rejected the application of a decision of the Supreme Court of the United States for the reason that it had used "a principle of statutory construction peculiar to the American courts."63 The principle referred to by Strong was the taking into account of the policy behind a law, that is, its purpose, when giving meaning to its language. In the American case referred to, it had been stated unequivocally that it was the intent of the statute and not the letter that constituted the law.64

129 The Captive Court The other judges of the Supreme Court of Canada did not comment on the American case and the use of policy to find the spirit of the law. They did, however, come to the same conclusion as did Strong about the meaning of the Canadian law, and there was not a murmur of dissent from what Strong had asserted. The approach taken by the Canadian court seems simplistic in comparison with that of the American court. The case involved the provision of the banking law of Canada that prohibited banks from lending money on the security of real property.65 The question that was at issue in the case was the effect of that prohibition on the validity of a hypothec (mortgage). The bank in the case had loaned money to "B" on the security of a hypothec from "C" to "B." In an action against the insolvent estate of "C," the bank sought to establish priority. The Supreme Court held that the transfer by "B" of the security was null and void. The very simple approach of the court was that the prohibition in the statute created a nullity, regardless of any other consideration. In the particular case, the result may have been justified on the basis that the bank was attempting to take advantage of something that they were prohibited from doing; however, the latter comment required a consideration of the circumstances in the case, which the judges had declined to do. The American court's approach was to consider whether in the circumstances the transaction should be considered void. This depended on why the legislative prohibition had been created in the first place. Mr Justice Strong used a quote from an English case as authority for his simplistic approach than act done in violation of a statutory provision was to be considered void, but he did not add that the judgment in the case to which he referred had also said: "The sole question is, whether the statute means to prohibit the contract?" To answer that question would require an active analysis of the problem, not merely the creation of such a simple rule as he did. One thing that this case demonstrated was that the judges, and particularly Strong, the "scientific" lawyer, were in need of rules which were simple in application, and an overall assessment of a problem in order to reach a rational solution using rules as guides was not to be undertaken. Within the Canadian social setting there may have been involved more than a belief in mechanical decision making as a means to achieve certainty and impartial justice. The prevalence of partisan politics may have fostered a feeling that there had to be an extreme avoidance of any appearance of policy factors.66 With partisan politics so rampant, there would have been an identification within society between social values and partisan values, so that a judge might not dare to open the door even a tiny crack to allow social values to intrude.

130 The Court Struggles, 1880-1885 THE FIRST MAJOR REFERENCE case occurred in 1885.67 Prior to this, there had been three Senate references concerning private bills, two dealing with the interpretation of the Canada Temperance Act, another dealing with the New Brunswick penitentiary, and another with courts in British Columbia. None of these references were reported in the Supreme Court Reports. The Liquor License Act reference of 1885 followed the same pattern in that no reasons for judgment were rendered; the judges merely answered the questions submitted. The reference was created as a result of the Hodge case, which had raised doubts about the attempt by Macdonald to take control of the rich field of liquor licensing - rich both in revenue and patronage. It was decided to refer the question of the Canadian Liquor License Act to the Supreme Court. Five days of argument took place with a solid force of provinces made up of Ontario, Quebec, Nova Scotia, New Brunswick, and British Columbia attacking the constitutional validity of the law, and the dominion government arguing to uphold it. Of the five judges who heard the reference, four concluded that the act was beyond the federal constitutional authority, except for wholesale licences and vessel licences. Henry considered that the entire Act was beyond Canada's constitutional power. The reference was taken to the Privy Council and Henry's view prevailed. The entire Act was held to be beyond the constitutional power of Ottawa. As with the Supreme Court, no reasons for the decision by the Privy Council were recorded.68 To the extent that the autonomy of the provinces was being safeguarded by the Privy Council, the Supreme Court had now somewhat joined in, even though a majority had been prepared to give wholesale licences to the dominion. Henry, had decided completely for the provinces and the Privy Council agreed with him. Confederation was changing and provincial rights and autonomy were becoming more and more dominant facts of life. As a mirror of society the Supreme Court reflected the new times. In 1885 Louis Riel was hanged. His appeal to the Privy Council had been rejected. The Supreme Court was not involved, since it had no jurisdiction in the case. Within the country, tension mounted between the French and English and racial and religious animosities surfaced. The Riel case dominated the scene in the mid-1880s. The period marking the beginning of the court had come to an end. In the early days of its existence, it had survived its baptism of fire with Brassard v. Langevin and had made a significant statement for political liberty. In Severn it had taken a stand for the Macdonaldian view of Confederation, although Ritchie and Strong, who had been a significant (and powerful) segment of the court were pro-provincialists. The majority had remained constant, although there had been a reaction in the face of Gwynne's pushing of

131 The Captive Court

the Macdonaldian constitution to its extreme. In William Henry of Nova Scotia, the court had the benefit of having a father of Confederation on the bench, whose views appear to have considerably influenced the Privy Council.69 In 1881, with the decision of the governments of Canada, Ontario, and Quebec to go to the Privy Council regardless of what the Supreme Court decided, the court was robbed of its chance to be the final court of appeal in constitutional cases. With the increase in the assertion of provincial rights, and the Privy Council being hailed as saviour of the provinces because of its decision in Hodge, the pro-dominion record of the Supreme Court haunted it. There was, however, no escaping the dismal record of diversity among the judges, and their inability to react as an institution. There is no question that at this time individual judgments were the norm for appeal courts, but the Supreme Court of Canada was in a special situation, and there were constant demands for institutional responses being made. The court did not (or could not) react to the criticisms and threats. This behaviour proceeded unabated for decades to come, and perhaps in itself would have made the appeal to the Privy Council inevitable. The ever-growing ease of travel to Europe increased the availability of the appeal across the Atlantic. The Supreme Court was a theoretical necessity, but apparently a practical impossibility. Within Quebec, the tensions created as a result of Ontario's reaction to the trial and execution of Louis Riel would cause the "English" court to be seen as a threat.

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PART D

The Years After, 1885-1949

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12 The Manitoba Schools Question

A pall of stillness fell over the court in the second half of the 1880s. The abolition bills had come and gone, and the attempts to limit the jurisdiction of the court had failed miserably. The barrage of criticisms had stopped. High-profile cases did not appear, and in the absence of obvious problems all seemed well. On 3 May 1888, Mr Justice Henry died. He had been the most controversial member of the court during his tenure on the bench. The "fair lawyer" had proved to the most innovative, although in an unruly way. After his death, Ontario finally received its long-sought third judge. The appointment of Christopher Salmon Patterson of the Ontario Court of Appeal by the Conservative government of John A. Macdonald, could not be faulted on its merits.1 As had been Henry, Patterson was an Irish Presbyterian. He had come to Canada at the age of twenty-two. He was in his mid-sixties when appointed, and had not had any obvious political involvements. While he was on the Ontario Court of Appeal, he had indicated a willingness to be creative when necessary and not to be bound by a slavish need to find previously decided cases. He was considered to be a well-read and learned person — viewed as key elements in the make-up of a judge. With Patterson's appointment, the judges were now divided: three from Ontario, two from Quebec, and one from New Brunswick. THE APPEAL TO THE PRIVY COUNCIL IN CRIMINAL CASES ABOLISHED The policy of the Privy Council had always been not to take appeals in criminal cases, except in the rarest of instances,2 and in 1885 this policy had been brought dramatically to the public's attention by the request that was made by Louis Kiel for special leave to appeal. This request was denied.3

136 The Manitoba Schools Question To remove any doubt as to appeals in criminal cases, the Parliament of Canada abolished them by legislation in 1888.4 It might be recalled that in the 1870 bill to create the Supreme Court, Macdonald had included a provision that would have made the decision of the Supreme Court in a criminal case "final and conclusive."5 In 1888, the measure to abolish appeals in criminal cases was brought in by John Thompson, minister of justice in the Macdonald government, who declared that such appeals resulted in "very great inconvenience in the administration of the criminal law in a country like Canada." The problem was said to be the long delay that would result.6 Perhaps due to the controversy surrounding the 1875 legislation dealing with the appeal to the Privy Council, the government expressed the opinion that Canada could abolish the appeal based on the decision of the Privy Council in Cuvillifr v. AylwinJ David Mills pointed out in the debate that the case had been overruled, but this piece of knowledge appeared not to have any effect. Diplomatically, Cairns had not pointed this out when Blake relied upon the same case in the 1876 negotiations over the existence of section 47. In 1888, except for Mills, no concern was raised over the formal ending of the appeals. AS THE 1890S BEGAN, the quiet times that had surrounded the court since the mid-1880s were shattered. What was known as the "Manitoba Schools Question" occurred at a moment in time when chains of events arising from different sources intersected. The result was an event that was socially explosive and that threatened to reach disastrous proportions for the country. The underlying problem still stalks our society. At the time of Confederation, jurisdiction over education was dealt with in a special section in the British North America Act. Section 93 gave the provinces exclusive authority to make laws in relation to education, but provincial power was limited with respect to schools that were operated by a church and that existed "by Law" at the Union. Subsection 1 provided: Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Provinces at the Union. Subsection 3 added the following unusual provision, that provided for an appeal, not to the courts, but to the dominion government if any province interfered with the church schools: Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any

137 The Captive Court Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education.

Subsection 4 continued: In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

Thus the dominion acquired legislative authority to protect the church-run schools from provincial interference. The uniqueness of these constitutional provisions reflects their importance within the Confederation "bargain." Two years after Confederation in 1869, New Brunswick moved to establish a system of public schools that were funded by the state, and were free and open to everyone, requiring no church affiliation. The legislation came into effect in 1871." Although teachers were permitted to open and close schools with Bible reading and the Lord's Prayer, no other form of religious instruction such as the catechism was permitted, and no religious symbols were allowed.9 The Roman Catholics of the province, who had operated their own schools up to the creation of the 1871 Act, opposed the measure and requested Ottawa to disallow it. Macdonald and the Conservatives declined to act since they contended that disallowance was permissible only if a law was unconstitutional or would injure the whole dominion, which they said was not the case. In the very first days of confederated Canada the sound of provincial rights was heard and action by Ottawa was precluded. However, a resolution was allowed to pass in the House of Commons in 1872 that expressed regret about the creation of the 1871 education law and New Brunswick was requested to remedy any causes of discontent. The voice of political power was a mild request. The only political recourse that was open to the Roman Catholics of New Brunswick was to pressure the legislature of New Brunswick to change the law. This was the course of action that Ottawa had suggested. This action had been tried and had failed when the legislation was in the process of being created, and the Executive Council of the province had rejected an amendment that would have created separate schools. The rejection had been by an equal division of the Council. The opponents of the school law were forced to turn from the political forum to the legal one. A challenge was made to a tax assessment for school purposes that was

138 The Manitoba Schools Question levied under the authority of the 1871 law on the basis that the law was invalid due to section 93 of the British North America Act. William Ritchie, then chief justice of the New Brunswick Supreme Court, rendered the judgment of the majority of the judges of the court. In his reasons, he reviewed the pre-Confederation law dealing with education, and reached the conclusion that no religious denomination had any special right distinct from all denominations - by the words of the law the schools were to be common to all inhabitants of the province. He acknowledged that Roman Catholic schools had in fact existed, but that did not alter the fact that there were no legal provisions to that effect, and section 93(1) of the Act clearly referred to schools that existed "by law." Ritchie thus upheld the validity of the 1871 New Brunswick school law.10 Although money for an appeal to the Privy Council had been made available to the parties by Ottawa," no appeal was taken, but another case had been started in the province that had identical facts and this case went to the Judicial Committee.12 The New Brunswick judges in the second case were bound by the judgments rendered in the earlier case and so the Privy Council in effect reviewed both decisions. Their lordships of the Privy Council affirmed the judgment of the Supreme Court of New Brunswick that had been rendered in the earlier case. They entertained no doubt on the question, and did not even call on the respondents to present an argument.13 In the judgment that was rendered on the same day as the hearing, their lordships accepted Mr Justice Fisher's description of the pre-1867 education law, given in the earlier case, as involving no provision giving any denomination the right to run schools at public expense, and pointed out that this description was made more valuable by the fact that Fisher had personally and publicly voiced doubts about the government's policy. The conclusion was that it was legal rights only that were protected under the constitution and not de facto denominational schools. At this point the opponents of the law returned to the political arena and petitioned the New Brunswick legislature for separate schools. They failed. It had crossed the minds of some that Imperial action to remedy the problem might be requested, but such a request had been discouraged in an address of the dominion House of Commons to the queen, and the British government had acquiesced.14 The New Brunswick law had been part of the trend in the nineteenth century to establish non-denominational schools funded and operated by the state. The policy was to provide a common education for all, and to create social harmony and stability by the teaching of uniform values. In 1877, Prince Edward Island moved to establish a public school system.15 The de facto French language Roman Catholic schools were ended, and once again the dominion government declined to interfere on the ground that it was a matter of provincial jurisdiction and the fact that, as with New Brunswick, there were no express provisions of the law existing prior to 1867 that had provided for separate schools for Roman Catholics.

139 The Captive Court

When Manitoba had been created a province in 1870, the education provision of the constitution was altered for the new province and the following section was inserted in the Manitoba Act: In and for the Province, the said Legislature may exclusively make Laws in relation to Education, subject and according to the following provisions: (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to Denominational Schools which any class of persons have by Law or practice in the Province at the Union: (2) An appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the province, or of any Provincial Authority, affecting any right or privilege, of the Protestant or Roman Catholic minority of the Queen's subjects in relation to Education: (3) In case any such provincial Law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper provincial Authority in that behalf, then, and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial Laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section.17

This was essentially the same as section 93 of the British North America Act, except for the addition of the words "or practice" in section 22(1). Thus, it was not only denominational schools in Manitoba that existed by law that were protected, but also de facto schools. Since the establishment of the Red River Colony in the early nineteenth century, there had been conflict between the agriculture of the settlers and the hunting and fishing of the mainly French-speaking Me"tis. When the Hudson's Bay Company's transfer of the lands of the northwest to Canada was underway in 1870, the Me"tis opposed the action and during the Red River Rebellion, a provisional government was created to negotiate terms of entry of the land with Canada. In the negotiations, the promise was made to recognize the rights of the people then living in the Red River area, which was to include rights of religion and the French language. In 1870, the population of Manitoba was approximately equally divided between French- and English-speaking people, and between Protestants and Roman Catholics. Though slightly more than 50 per cent were French Catholics, the balance quickly changed with the arrival of settlers who were primarily English-speaking Protestants from Ontario. With the change in the make-up of the population, opposition to French as an official language was soon generated, along with opposition to the dual system of schools, Protestant and Roman Catholic. As a result of the objections of the then dominant English-speaking Protestants, the equal grants for education were changed in

140 The Manitoba Schools Question

1876 to grants based on the number of students enrolled in each system. As early as 1879, a bill to abolish French as an official language of the province was passed by the legislature of Manitoba, but it was blocked by Joseph Cauchon, the lieutenant governor, a French Canadian. The Riel rebellion and the subsequent execution of Kiel in 1885 helped to create a general feeling of cultural uneasiness in the country in the late 1880s. Perceptions of Quebec nationalism were being generated by the actions of the Quebec government under Honore* Mercier. In 1886, Mercier, a Liberal, had been elected as head of the ominous-sounding "Parti National." His first major action was to call an interprovincial conference, the first of its land.18 The resolutions of the conference directly asserted provincial rights and challenged what might have been left of Macdonald's view of a centralized Canada, thus elevating provincial rights to the position of a solid political fact. Manitoba was not alone in the world and events elsewhere had occurred and were continuing to occur that significantly affected the question of language and religion in that province and in Canada. What turned out to be the catalyst in the brew of racial and religious intolerance had had its beginning over a century before. In 1773, the Roman Catholic religious order known as the Society of Jesus, better known as the Jesuits, was abolished by Pope Clement XIV. The order was re-established within the Roman Catholic church in 1814 by Pope Pius VII. The Jesuits had played a prominent role in the early history of New France and had accumulated large areas of land. With the suppression of the order, the governor general was instructed to take possession for the Crown, but the Jesuits were allowed to continue in possession until the last surviving member of the order died. This occurred in 1800. In 1831, the land was transferred to the control of Lower Canada, with revenue to be used for educational purposes. When the order was re-established by the church, it made a claim for compensation for the loss of its land; this was countered by a claim from the Archbishop that any money received should go to the church. The land had been lying virtually idle over the years since people had been reluctant to purchase parts of it in case there was a problem with title.19 As an attempt at compromise and to settle the controversy surrounding the property, the Quebec government under Honore* Mercier enacted the Jesuits' Estates Act in 1888.20 By this legislation, the province of Quebec would provide money in order to extinguish all claims, including an amount to be paid to Protestants within the province. There was also provision for an arbitrator to decide how much compensation the various Roman Catholic groups who were making claims should receive. The arbitrator was to be the Pope. The political time-bomb that had been created by the fact that the Pope had been invited by a government in Canada to participate in the solution of a social and political problem ticked quietly on for only a short while. The first wide public exposure came in a series of editorials in the Toronto Daily

141 The Captive Court Mail™ The dominant themes expressed in the attack on the Quebec law were the danger of French-Canadian nationalism, and severe anti-Jesuitical sentiments. Within the legal domain, the explosions began to appear eight months after the statute was brought into effect. In the Canada Law Journal of February 1889, a long article for its day appeared in which strong religious feelings and very deep anti-Jesuit sentiments were expressed.22 The premier of Quebec was said to have made a "treasonable invitation to the Pope of Rome." That such an article would appear in a professional journal, with an admission by the writer that he was not concerned with legal questions, showed the strength of the reaction that had occurred in Ontario. The journal had always scrupulously avoided "political" matters.23 In another article that followed immediately after the first in the Journal, the focus of the agitation was left in no doubt - it was the involvement of the Pope. This second article argued that the introduction of a foreign power into Canada was unconstitutional.24 At the beginning of August 1889, a petition to the governor general, Lord Stanley of Preston, asking for disallowance failed. In the governor general's response to the petitioners, he expressed regret that such a deputation had been formed and added: "[W]e should as far as possible act up to that which we find to be for the welfare of the Dominion. During late years we have hoped that animosities which unfortunately prevailed in former years had disappeared, and that the Dominion as a united country, was on the path of prosperity and peace."25 He then called on Canadians to show tolerance. The opponents of the Quebec statute requested the government in Ottawa to create a reference case, but Macdonald refused.26 A part of the problem, and perhaps a major part, was the attitude of many to the Jesuits. Goldwin Smith, a leading intellectual of the time, considered them as a political and social conspiracy and was strongly in favour of the government disallowing the Quebec statute.27 When the government refused to disallow the law, a number of members of Parliament raised the question in the House of Commons and moved a resolution of disallowance. It was defeated overwhelmingly, 188-13. The thirteen members of Parliament who voted for disallowance became heroes for the opponents of the law. They became known as the Heroic or Noble Thirteen,28 or the "devil's dozen,"29 depending on one's viewpoint. The overwhelming rejection of disallowance could be seen as evidence of tolerance for Roman Catholics, or support for provincial autonomy, particularly Quebec. In Manitoba the Jesuits' Estates Act created a reactive backlash that took the form of agitation for abolition of the dual system of schools. It began in earnest in May 1889, accompanied by an attack on the use of the French language as an official language in the province.30 By June, an organization

142 The Manitoba Schools Question called the Equal Rights Association had been formed in Toronto, whose goal was to achieve disallowance of the Jesuits' Estates Act law. In the face of a solid refusal by the government to succumb to its pressure, the members, led by D'Alton McCarthy, a leading Conservative, turned their focus on the Catholic and French language schools of Manitoba and the West. For McCarthy it appeared that his main target was the French. For him it was a question of race rather than religion.31 He was not a member of the Orange Order. He moved a resolution in the House of Commons in 1890 that sought to abolish the use of French as an official language in the Northwest Territories in the interest of national unity.32 There was no question, however, that religion was intimately tied into the controversy. January 1890 saw the introduction of a bill in the Manitoba legislature to abolish the official use of French. The Gazette in both languages had been discontinued in September 1889. A bill was also introduced to end the dual system of schools and to establish one public system. Absent from the legislation was the usual provision dealing with compulsory attendance. It had been thought that the Roman Catholics had a right to separate schools, although not funded by public money and therefore they could not be compelled to attend state schools.33 On 1 April 1890, the Public Schools Act34 was brought into effect. Also passed in the same session was the Official Languages Act,35 which made English the only official language. The atmosphere in the country was for many one of sorrow. The general view was that the 1890s began with Canada at its lowest point, its darkest hours,36 with the country full of profound despair.37 Archbishop Alexandre-Antonin Tachd of St Boniface was the leader in taking a petition to Ottawa in which disallowance was requested, but he was persuaded to let it drop since the Conservative government did not want to use the power, and refrain from involving the courts until after the 1891 election of 5 March. There was a general sentiment against using disallowance and allowing the problem to be dealt with by the courts. Edward Blake, ex-leader of the Liberal party moved a motion in the House of Commons to the effect that the matter should be left for the legal system.38 Macdonald, having experienced the bitter defeat over the rivers and streams statutes with Ontario only a few years before, had definitely soured on the use of the disallowance power.39 In March 1890 he wrote that he considered that only the use of the legal system would result in a decision that everyone would respect and that would end the matter.40 The political power of the judiciary was recognized, but its potency depended on it not being identified as political. The existence of the Privy Council also added a strong element of a lack of political control, once the matter had entered the legal system. The fact that the Greenway government of Manitoba was Liberal certainly would not have made the thought of a battle over disallowance any more palatable.

143 The Captive Court

The legal system was thus thrust into the role of having to provide a solution to this monumental social problem. Political devices had collapsed - even formal ones such as the use of disallowance. The future of the Supreme Court of Canada was at risk. BARRETT v. CITY OF WINNIPEG, 1891 As in New Brunswick, a decade before, the legal system was activated by an objection being taken to a tax assessment on the ground that the authorizing statute was invalid. Two such actions were begun in Manitoba: one by Dr John Kelly Barrett, a Roman Catholic, and another by Alexander Logan, a member of the Church of England. Both were from the city of Winnipeg. The Logan litigation was suspect and in response to a charge in the legislature that the action was being used to "stir up the cauldron," Sifton, the attorney general of Manitoba, responded by admitting that the action was begun "with the consent and the practical assistance of the government but not," he said, "at its instance."41 The Church of England had not previously shown any inclination to set up separate schools, and with the 1871 legislation, it had joined with the other protestant denominations. While the judges, no doubt, saw through the tactic, it did make the point that if the state were not to be allowed to set up a uniform system, then fragmentation loomed as an evil consequence. Barrett lost in the trial court before Mr Justice Killam on the basis that the constitution only permitted the operation of denominational schools and having children educated in such schools, but there was no constitutional right to avoid paying tax for a public school system. The absence of a provision compelling attendance in the new system had apparently avoided any constitutional problem. An appeal to the Full Court of Queen's Bench for Manitoba resulted in an affirmation of the lower court, 2—I. 42 Chief Justice Taylor and Mr Justice Bain were in the majority, and Mr Justice Dubuc dissented. The fact that Dubuc was a French-speaking Roman Catholic was not lost on the Western Law Times.4* With the dominion government paying his costs, Barrett appealed to the Supreme Court of Canada,44 and, in a surprising show of unanimity, the five judges of the court who heard the case reversed the Manitoba courts and found in favour of the Roman Catholics. Mr Justice Gwynne did not sit on the appeal.45 In his reasons for judgment, William Ritchie, the Chief Justice, examined section 22(1) of the Manitoba Act, which referred to denominational schools that existed "by law or practice," and maintained that the words "or practice" in the Manitoba Act were plain, certain, and unambiguous. They had been placed in the Act to deal with denominational schools actually in existence, whether provided for expressly by law or not, and there was no ques-

144 The Manitoba Schools Question tion in his mind that up to 1890, denominational schools had been recognized by Manitoba legislation, even though in 1870 there were no such schools established by law. Thus, having concluded that the constitution covered the situation, the next step was to determine whether the 1890 law prejudicially affected the right to the denominational schools. Ritchie viewed the new law as having completely changed the old system, since it taxed the Roman Catholics to support schools to which they could not conscientiously avail themselves, and required them to find means to support their own schools; it did prejudicially affect the rights of the Roman Catholics and was unquestionably invalid in his opinion. Henry Strong remained unusually silent and simply concurred with Ritchie. In a separate judgment, Mr Justice Patterson came, in the main, to the same conclusions as had Ritchie. The two Quebec judges, Fournier and Taschereau, both rendered their judgments in French. While this was not unusual for Fournier, it was out of the ordinary for Taschereau, who invariably at this time used the English language for his judgments. The reasons for judgment of these two judges did not add significantly to what had been said by Ritchie, although Fournier did raise the New Brunswick controversy of 1871 and pointed out that the words "or practice" had been added to the Manitoba Act to avoid the result that had occurred in New Brunswick when the judges emphasized that it was legal rights only that were covered by section 93 of the British North America Act. Although the New Brunswick legislation had come out a year after the Manitoba Act, Fournier pointed out that the New Brunswick law had first been raised in 1869 and was widely known. There had been an extensive discussion of the law in the legislature prior to the passing of the Manitoba Act.46 As far as the judicial function was concerned, Fournier used a much more sophisticated approach than did the other judges; he demonstrated that he was more aware that when interpreting a constitution, the social consequences should be examined. Although the plain meaning of words was obviously to be considered first, unless there was only one possible meaning, the words had to be given "Pinterpretation la plus liberale et le plus sense'e,' which meant an interpretation that best fulfilled the intention of the lawmaker.47 To discover what was intended by the use of the words in issue the background of the statute - its historical context - had to be examined. From his consideration of the intent of the law in this case he concluded: Les auteurs de la confederation afin d'eViter le renouvellement de 1'agitation qui avail existe" a ce sujet dans 1'ancienne province du Canada entre les catholiques et les protestants, tout en reconnaissant aux provinces le droit de le'gife'rer au sujet de re*ducation adopterent sagement des dispositions pour la protection des droits et privileges des minorit^s, en prohibant toute legislation qui porterait atteinte aux droits et privileges existant sur le sujet.48

145 The Captive Court Thus, although Fournier did not add to the actual points mentioned by Ritchie, his judgment was much more compelling because of his approach. In a case of this magnitude it is hardly satisfying, or persuasive, to be told that the answer is obvious. Although various judgments were rendered, the basic agreement among the judges produced an institutional response that had long been missing in cases of public importance. This case showed that one could have judgments written by several judges and yet have a solid common basis among them. Faced with the enormous challenge of the Manitoba Schools Question, the court had stood up to it. The Logan case involving the Church of England supporters was still before the Manitoba courts and its proponents were able to take advantage of the Supreme Court decision, with the result that the Manitoba Court of Queen's Bench held unanimously that the Manitoba law was invalid, and that the Church of England had the same right to separate denominational schools as did the supporters of the Roman Catholic Church.49 The case was serving its alleged purpose, and the fragmenting of the educational system was looming. The unanimity of the Supreme Court decision was impressive, but the existence of the appeal to the Privy Council meant that it could not be the final word. The Liberal premier of Manitoba, Thomas Greenway, had intended to appeal the case if the Supreme Court went against the province.50 The Manitoba legal journal, the Western Law Times, was content to trivialize the decision of the Supreme Court by pointing out that the court was inclined to overrule Manitoba courts anyway; the figure of 90 percent was mentioned.51 The journal pointed out that Dubuc, the dissenting judge in the Manitoba Court of Queen's Bench, was a French-speaking Roman Catholic and that three of the five judges of the Supreme Court were also Roman Catholics. It was true that both Fournier and Taschereau were Roman Catholics, but who the alleged third one was must remain a mystery, since Ritchie and Strong were both Church of England, and Patterson was Presbyterian. One point was painfully obvious: the issue had torn away the mask of the legal profession's alleged political neutrality.52 The Barrett and Logan cases proceeded uncomfortably together to the Judicial Committee of the Privy Council and while the lawyers for Logan were content to rely on the arguments of the lawyers for Barrett, the counsel for Barrett refused to be associated in any way with the Logan case. Tragically, the decision of the Supreme Court was reversed by the Privy Council.53 Six judges sat on the case, a recognition of its importance, yet the judgment of Lord Macnaghten for the board gave the appearance that the case was very simple. This decision was one of the most unfortunate ever rendered by the Privy Council. There was not a single major error, but rather the errors were varied. First, the simplistic approach to the case was in this instance dangerous. In the brief judgment, it was said that the case operated in a "narrow compass," and the duty of the board was said to be simple,54

146 The Manitoba Schools Question but that was only true of the identification of the problem, not its solution. It was recognized that the words "or practice" in section 22(1) made Manitoba a special case. It was the practice in the province in 1870 that was to govern, and the evidence of Archbishop Tactic* was accepted as articulating the practice at that time. The conclusion reached was that Roman Catholics had the right to establish schools at their own expense, to maintain their schools by school fees or voluntary contributions, and to conduct them in accordance with their own religious tenets.55 Then Lord Macnaghten added: "Possibly this right, if it had been defined or recognized by positive enactment, might have had attached to it as a necessary or appropriate incident the right of exemption from any contribution under any circumstances to schools of a different denomination." No effect to this "necessary or appropriate incident" was given by the Privy Council. The 1890 Act was valid since it did not compel the attendance of any child at a public school, and left each denomination free to establish, maintain, and conduct its own schools. The fact that in 1871 a system of denominational education had been established was not to be taken into account, since the focal point for the determination of the right was "at the Union." In his judgment, Lord Macnaghten made an astonishing statement that can only be taken to show a strong predilection towards uniform state education and non-religious schools. In response to the point that Roman Catholics would be in a less favourable position than those who would take advantage of the free schools, he stated: "It is not the law that is in fault. It is owing to religious convictions which everybody must respect, and to the teaching of their Church, that Roman Catholics and members of the Church of England find themselves unable to partake of advantages which the law offers to all alike."56 It was the recognition of those religious convictions and teachings within our society that created the constitutional provision supposedly guaranteeing denominational schools. The reference to members of the Church of England shows that Logan was still there in the background, muddying the waters. Although Lord Macnaghten disclaimed any concern with the policy of the legislation enacted by Manitoba, he made a clear statement as to the power of the state over education and hence a comment on the church and state controversy. He said: [I]f the views of the respondents were to prevail, it would be extremely difficult for the provincial legislature, which has been entrusted with the exclusive power of making laws relating to education to provide for the educational wants of the more sparsely inhabited districts of a country almost as large as Great Britain, and that the powers of the legislature, which on the face of the Act appear so large, would be limited to the useful but somewhat humble office of making regulations for the sanitary conditions of school-houses, imposing rates for the support of denominational schools, enforcing the compulsory attendance of scholars, and matters of that sort.57

147 The Captive Court A factor that could not have been too far away at all times was that of provincial rights. The Barrett case was heard and decided in July 1892; also decided that same month was Liquidators of the Maritime Bank v. Receiver General of New Brunswick, in which federalism triumphed over the centralist Macdonaldian constitution. Lord Watson for the board had said in that case: "The object of the [B.N.A.] Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy."58 Six judges heard the Maritime Bank case and six judges heard the Barrett case, and five of them were the same.59 Without question provincial rights as a social value, whatever its strength, should appear in a constitutional case as a factor and must influence the decision of a judge, but it should not work so as to eliminate a provision of the constitution. Perhaps in preparation for a disappointment, the point was made in the Western Law Times before the case was decided by the Privy Council that it was sometimes influenced by considerations of political expediency, and might not adhere to the purely legal aspect of the dispute.60 After the decision, the journal expressed no surprise at the reversal of the Supreme Court by the Privy Council, and turned on the Canadian court: "[I]n truth such an event is nothing new to that body, the confidence of the public in which as an exponent of constitutional questions has long been on the wane, and it is difficult after this last reversal to say what weight that Court will in future carry in such questions, if any."61 Whatever heart was left in the Supreme Court of Canada as an institution must have been shattered by the Privy Council's decision. R E F E R E N C E RE MANITOBA EDUCATION STATUTES, 1894 Following the decision of the Privy Council in Barrett, the only formal route open to the Roman Catholics in Manitoba was the use of the appeal to the Governor General in Council, and the possible enactment of remedial laws by the Canadian Parliament.62 However, the opinion was current at the time that since the Privy Council had held that there was no prejudicial effect from the 1890 legislation, there was consequently no appeal that could be taken to the Canadian government.63 In the summer of 1893, the Conservative government of the new prime minister, John Thompson, decided to refer the problem of the use of the appeal to the Governor General in Council to the Supreme Court. Consequently the Supreme Court was asked a number of questions, the heart of which was whether the Roman Catholics of Manitoba could appeal under the

148 The Manitoba Schools Question

constitution — either section 93 of the British North America Act, or section 22 of the Manitoba Act - and whether the government had the power to make orders to remedy their situation. Thompson's position was made much more difficult by the fact that he was himself a Roman Catholic. To make matters even worse he had converted from Methodism to Roman Catholicism. To the Protestants of Ontario he was a "pervert."64 When the reference case came on for hearing before the Supreme Court, no counsel appeared for Manitoba, and the court ordered the appointment of Christopher Robinson, a senior member of the Ontario Bar, to argue in favour of the position that Manitoba would have taken. Later, when the court met again to hear the case, a lawyer for Manitoba appeared to announce that the province did not accept Robinson as its counsel, but that he would not take part in the argument and was present simply to acknowledge that the province had been served with a copy of the case. Taschereau was insistent that Robinson represent Manitoba, while Robinson and the new chief justice, Henry Strong, were prepared to accept that he appeared by direction of the court. Taschereau had disagreed earlier with the actual appointment of Robinson by the court.65 The Western Law Times had criticized the Supreme Court for naming a counsel to argue Manitoba's case, as it appeared that they had interfered with the province's political stance in relation to the case. The power of the legal system, and its legitimacy to deal with the particular case, was being challenged by the province of Manitoba. Chief Justice Ritchie, who had taken a fairly strong stand in favour of the Roman Catholics in the Barrett case, had died in September of 1892. The vacancy created by Ritchie's death had been filled by the appointment of Robert Sedgewick. Sedgewick had been originally from Nova Scotia, but at the time of his appointment he was deputy minister of justice at Ottawa. Christopher Patterson had died in July of 1893 after an illness of several months, and his vacancy had been filled by the appointment of George King of New Brunswick. King had been a judge of the Supreme Court of New Brunswick for thirteen years prior to his appointment to the Supreme Court of Canada. Before becoming a judge, however, he had been active in politics, being premier of New Brunswick for six years, as head of a Conservative government. In 1869, as attorney general of the province he had been instrumental in bringing forward, and finally, in 1871, of obtaining the enactment of the New Brunswick Common Schools legislation that had ended the Roman Catholic separate schools in that province. After Ritchie's death, following a politically neutral course, the position of chief justice went to the next senior judge on the bench, although the appointment took close to three months to make. The irascible Henry Strong became the third chief justice of the court, and in 1896 he had the honour of becoming the first chief justice of Canada.66

149 The Captive Court The dominion did not take part in the argument in the case although it had presented the reference, and consequently only John S. Ewart for the Roman Catholics and Robinson participated. The dominion had provided a forum and then backed away. It can only be concluded that the potential political repercussions of the case were too scary for Ottawa to contemplate, if they had supported the French and Roman Catholics of Manitoba in such an overt manner. When the judgment of the court was rendered four months after the hearing, the unanimity displayed in the Barrett case was gone.67 The judges split, 3-2. The majority, Strong, Taschereau, and Gwynne, said that there was no appeal to the Governor General in Council in the particular case, and remedial orders could not be made. Fournier and King dissented and held that there was an appeal and remedial orders could be made. In his reasons Chief Justice Strong adopted the idea that there was a presumption that the legislature could repeal any statute that it had enacted. This though pervaded his judgment. He could not accept that once the 1871 statute had been enacted, which provided for a dual system of schools, that the legislature could subsequently be put in the position of not being able to repeal it. Only express terms in the constitution, he state, would cause him to accept that the presumption had ceased to operate. He was unable to find any such express terms. He thus reached the conclusion that the right of appeal to the governor general against legislation must be for statutes that affected the rights and privileges mentioned in section 22(1) of the Manitoba Act, that is, those that had existed at the time of union. While section 93(3) of the British North America Act stated that laws established by the legislature after the union could be the subject of an appeal, that subsection specified that the appeal would be from a "provincial authority," which he concluded did not cover the legislature, but referred to administrative bodies. He was able to reach this conclusion because section 22(2) of the Manitoba Act used the words "an appeal shall lie ... from ... the legislature ... or ... any provincial authority," which led to the implication that the creators of the Manitoba Act did not think that the expression "provincial authority" in the British North America Act included the legislature. As he said: "the construction which [the Parliament of the Dominion] has put on the British North America Act if not binding on judicial interpreters is at least entitled to the highest respect and consideration."6" Strong considered that the Barrett case had no direct application in the decision making that the court was being asked to undertake, but he accepted that the Privy Council had decided that there was no right or privilege as claimed in the case existing at the union. Thus there was also no appeal. A side effect of this decision and one that he favoured was that all the provinces would be treated virtually the same. He had remained strangely silent in the Barrett case, and after reading his judgment in the reference, the

150 The Manitoba Schools Question impression is left that the earlier silence was perhaps not acceptance of Ritchie's judgment, nor acquiescence in it, but rather resignation before a united majority, coupled perhaps with a desire to present a united front to enhance the prestige of the court. Taschereau in his judgment took advantage of the occasion to object to reference cases and he expressed doubt that there was constitutional authority to use them, but he did go on to deal with the questions that had been posed.69 There was little doubt that he had been greatly affected by the Privy Council decision in Barrett. Unlike Fournier, who exercised restraint in expressing himself, Taschereau was vitriolic. At one point, he wrote: "I speak cautiously and mindful that I am not here allowed to controvert or even doubt any thing that has been said on the subject by the Privy Council."70 Since the Privy Council had decided that the Roman Catholics had no rights of the nature that they wanted, therefore they also had no appeal to the Governor General in Council, Taschereau said. He voiced agreement with Strong that to deny to a legislative body the right to repeal its own laws would require an express provision to that effect in the constitution. He was able to take personal refuge in the fact that he had merely followed the law, which he said might be viewed as hard law, but still it was the law, and as a judge he had no power to change it.71 For Gwynne, who had not participated in the earlier case, the Barrett case determined the question of the appeal to the Governor General in Council — there was none. The main notion of the Equal Rights Association came through when he pointed out that the 1890 Act placed every denomination and the Roman Catholics in precisely the same position. They were all treated equally.72 Fournier, in dissent, approached the problem in a manner similar to the one that he had used in Barrett, which was once again different from that of the other judges. His view of constitutional decision making again appeared. He referred back to the judgment of Chief Justice Richards in the Severn case of 1878 and said that one must consider the circumstances under which the constitutional provision was created. This would, of course, enable him to determine, as best he could, the spirit of the law. He briefly reviewed the history behind the creation of the Manitoba Act and pointedly commented that during the negotiations that led the creation of the constitution for Manitoba, the parties considered that they had certain rights, and they had enjoyed those rights until 1890 but he went on to add: "it seems by the decision of the judicial committee of the Privy Council in the case of Barrett v. Winnipeg that the delegates of the Northwest and the Parliament of Canada ... had in point of fact no such right ... and therefore that subsection 1 is, so to speak, wiped out of the Manitoba Constitutional Act, having nothing to operate upon."73 Although the parties to the agree-

151 The Captive Court ment in 1870 may have been wrong, he said, yet once Manitoba was created, the rights were put in the form of legislation in 1871, and then by a combination of section 93(3) of the British North America Act and section 22(2) of the Manitoba Act (which is in addition to section 93, not in place of it), there existed an appeal to the Governor General in Council. The other dissenting judge, Mr Justice King, who had been the force behind the New Brunswick school law, reviewed section 93 of the British North America Act in a very clear and well-written judgment, and compared it with section 22 of the Manitoba Act. He concluded that the words "or practice" were the only important difference. Thus section 93(3) and section 22(2) had the same meaning. Under the wording of the sections of the constitution, there was an appeal. A system of separate schools had been established by legislation and there had been a prejudicial affect by the 1890 legislation. In direct conflict with the judgment of the Privy Council in Barrett he asserted "the establishment of the national system of education upon an unsectarian basis is so inconsistent with the right to set up and maintain by the aid of public taxation upon the denominational minority, a system of denominational schools, that the two cannot co-exist."74 Following the decision, Taschereau wrote a letter to Father Adelard Langevin in St Boniface, Manitoba, in which he urged that Bishop Tachd be told that an appeal to the Privy Council should be taken. Taschereau said that his name could be used to convince the bishop, but otherwise his letter should remain a secret.75 He also offered to contribute $50 to a private fund that would be arranged in order to finance the further appeal. It seems as if the sentiment among the opponents of the Manitoba law may have been to admit defeat and stop the litigation with the decision of the Supreme Court, perhaps on the assumption that the decision of the majority of the court was unquestionably correct. In the Pardoning Power case that had been heard at the same time as the Manitoba Schools reference, and for which the decision was rendered a little less than a month after the reference case, Taschereau commented that constitutional questions could never be finally determined in the Supreme Court. He said that "they never have been and never can be under the present system," and he even went as far as to add that the particular case should have been brought directly to the Privy Council.76 As might have been expected, the case did go to the Judicial Committee of the Privy Council. In the Privy Council only four judges heard the appeal, as opposed to six in Barrett. Three of the four had heard Barrett, Lord Watson, Lord Macnaghten, and Lord Shand, while the fourth judge was Lord Chancellor Herschell. Macnaghten's presence would have put a certain amount of pressure on the other judges to leave his judgment in Barrett alone. While Manitoba had refused to participate before the Supreme Court, it was

152 The Manitoba Schools Question

represented before the Privy Council, but by all English lawyers. The Roman Catholics were once again represented by John S. Ewart, who was joined by Edward Blake, by that time a member of the British House of Commons.77 The reasons for judgment of the Privy Council were written by the lord chancellor and they were much longer than those in the Barrett case, at twenty pages, but virtually nothing was said.78 The conclusion that was reached was that section 22 of the Manitoba Act had been substituted for section 93 of the British North America Act, but an appeal could still be brought under section 22 because of its wording. The words "at the union" had been omitted, and the key words were "in relation to education." Thus any prejudicial affect on any right or privilege in relation to education could be subject to an appeal. The right or privilege could have been acquired at any time. It all looked very simple. The adverse affect on the rights and privileges that had been acquired was obvious, and thus an appeal could be brought and remedial measures undertaken by Ottawa. After the decision of the Privy Council in the case, at least some of the Supreme Court judges must have been shaking their heads. The Supreme Court had been reversed once again. The Privy Council had made a mistake with the Barrett decision and the result in the reference was an attempt at remedying the error, but it ended with the Privy Council sending "the ugliest, political question that in recent years had arisen in all Canada," and "a question which threatened to convulse the body politic," to the Canadian government for a solution.™ The government had used the legal system and the problem had been returned in a more acute state. There was a new prime minister. Thompson had died suddenly at the age of fifty at Windsor Castle; he had been in England to be sworn in as an Imperial Privy Councillor. The disintegration of what had once been the government of Sir John A. Macdonald continued. The task of doing something fell ironically to the government of Mackenzie Bowell. He had been grand master of the Orange Lodge of Ontario. History has not dealt kindly with this man at the centre of the explosive issue. One historian described him thus: "Bowell was not a bad man, but his talent for leadership was non-existent. He believed, of course, that he could follow the precepts of Macdonald; but stupidity usually imitates the worst ... He was, in short, a little man in a big place, fatuous, petty, and on important matters untrustworthy."80 The government agreed to hear the appeal, and the hearing was conducted in early March 1895. The Canadian government found in favour of the Roman Catholics of Manitoba and issued orders to the Manitoba government directing it to restore to the Roman Catholics of the province the right to their own schools, a proportionate share of government grants, and exemption from taxation for public state schools. As Macdonald might have predicted, the disobedience of the government of Manitoba continued and it

153 The Captive Court refused to carry out the orders, and informed Ottawa of that fact. The Western Law Times had warned of the futility: "Those who expect relief will have to wait many years before they will get it, unless some amicable arrangement or compromise is effected."81 One aspect of the hearing before the Canadian government that provided an insight into the general attitude to judicial power was the question that was raised as to whether the nature of the hearing was judicial or political. When Bowell took the position that it was a judicial hearing, the Manitoba government announced that the government would be making a political decision. Society had been conditioned to respect and obey legal decisions without question, while political decisions were another matter. In a comment on Ewart's book published in 1895, The Manitoba School Question, the Canada Law Journal-wrote: "it is not, under the circumstances, desirable that we should now discuss it, as the legal points have been settled by judicial decision of the highest tribunal."82 The law "settles" things. By making the decision a political one, the question of provincial rights could be dealt with more openly, but solutions would be more fluid, and definitely debatable. Negotiations began between the dominion and Manitoba, but the federal government was cracking into pieces. Members of the cabinet resigned in protest over the leadership of Bowell. Under the new Conservative prime minister, Sir Charles Tupper, a remedial bill was brought before Parliament, but the Liberals fought it on the principle of "provincial rights," and a number of Conservatives, led by the ever-present D'Alton McCarthy, leader of the Equal Rights Association, were against it on either an anti-Catholic or an anti-French basis. The dominion election of 23 June 1896 intervened and the Conservatives were out, and Laurier and the Liberals were in power. The remedial legislation had been a key issue in the election campaign, and Quebec had voted overwhelmingly in favour of its native son, and for provincial rights, over French and Roman Catholic rights in Manitoba. The Liberals took forty-nine seats in Quebec to sixteen for the Conservatives, which was virtually a direct reversal of the results in the elections of 1878 and 1882. In Manitoba the matter seemed not to be of importance any more to the majority of the people, the English-speaking Protestants. They had won. In the election in Manitoba, five Conservatives were elected against three Liberals. Under the Liberals led by Laurier, a compromise was reached with the Liberal Manitoba government of Thomas Greenway in 1897, but it was very, very far from a system of separate schools compared with the Ontario model. It consisted of a limited amount of religious teaching.83 A language other than English was permitted if there were ten pupils. There continued to be no compulsory attendance. By the end of World War I nothing but a very limited form of permissible religious teaching remained intact. The compromise faded away.

154 The Manitoba Schools Question The Manitoba Schools litigation was the most dramatic to have reached the Supreme Court. It seems harsh to describe the involvement of the legal profession as "comic relief as one writer did, some years later.84 The Supreme Court of Canada had achieved a remedy for the constitutional issue in the first instance, but unfortunately that decision had been reversed by the Privy Council. The Privy Council had attempted to remedy the situation in the reference case, and the problem was turned over to the political system, which must carry the ultimate burden of failure. For the Supreme Court of Canada, the event was tragic. Had that initial decision of the court been allowed to stand, there would very well have been a very different unfolding of events, both with regard to the particular crisis, and potentially for other events in which the divisive forces grounded on race, religion, and party would rear their heads. There may be a tendency to minimize the legal solution — but there is no suggestion that the Supreme Court would not have been followed, supported as it would have been by the Privy Council. The power of a judicial decision was potent, and especially one of the Judicial Committee of the Privy Council. Demographic change was underway in Manitoba and perhaps the decision of the Supreme Court in Barrett would only have prolonged the waiting for the inevitable, but if so, at least the subsequent considered action in Manitoba by the majority would not have been unconstitutional and a reaction led by racist forces such as that of D'Alton McCarthy and his Equal Rights Association. The issue of the abolition of French as an official language in the province was not litigated at the time. It would have to wait 90 years before being held to be unconstitutional.

13 The Court in Disarray, 1895-1903

It took almost three months before Henry Strong was named chief justice following the death of William Ritchie in September 1892. There was a suggestion that the appointment may not have been completely straightforward, and there seemed to be a feeling of unease in the air. Questions regarding the institution surfaced in the legal literature in conjunction with discussion of the possibility that Strong would be selected as the new chief justice. Concern was expressed about the perceived lack of public confidence in the court and pointed reference was made to the lack of agreement and consultation among the judges.1 Questions were also asked about the use of the seniority principle as a method for selecting the chief justice, although, as the journal was careful to observe: "no one will for a moment question the propriety of the appointment."2 With the death of Ritchie, his place on the court was filled by Robert Sedgewick — another person from the Maritimes, which was to be expected. Sedgewick was of Scottish background, who had come to Nova Scotia with his parents at the age of one. His father had been a Presbyterian minister. As had several others from Nova Scotia, he had received his legal education in Ontario, in his case working in a law office in Cornwall. He was a Conservative and had been deputy minister of justice while John Thompson was attorney general. Thompson was prime minister and attorney general at the time Sedgewick was appointed to the court. In the summer of 1893 Patterson died at the age of seventy; he had been in ill health for some time. This caused the Manitoba bar to pass a unanimous resolution that was sent to Ottawa in which it was requested that Patterson's replacement come from the West.3 The Saskatchewan bar passed a similar resolution. The place on the bench left vacant by Patterson's death went, however, to George Edwin King of New Brunswick and the Maritimes once again were represented by two judges. As might have been expected, King was a Conservative; he had been premier of the province and as attor-

156 The Court in Disarray, 1895-1903 ney general had promoted the New Brunswick school legislation of 1871. He was a Methodist. The Canadian Magazine in 1897 described him as having a pugnacity and aggressiveness that made him a leader.4 Perhaps he was expected to be a countervailing force to Strong. While the Supreme Court had never been a darling of the legal profession, there had been restraint in criticizing it publicly, and especially was this true for the previous decade. The maintenance of institutional integrity within the legal system demanded such behaviour. It was, therefore, highly noteworthy that in 1895, three years after Strong's appointment as chief justice, serious criticisms of the court appeared openly in the Ontario law journals.5 The Canada Law Journal apologized for publishing its criticisms, but then took aim at the judges, which it had not done publicly before. It was said that the court was not the strongest, that it did not command confidence, and was disappointing and unsatisfactory.6 There was a sentimental reference back to William Buell Richards, and then the point was made that "nowadays everything about this court has an atmosphere of uncertainty, irritation, and disquiet which makes it anything but a pleasant place to attempt the argument of a point of law." There was no mistaking the cause of the problems — it was the judges. The Canadian Law Times joined the crusade and elaborated on the problems in an editorial. There were frequent interruptions of counsel during argument that prevented a fair presentation, and Chief Justice Strong would stop counsel from reading passages from the law reports, or reading excerpts of the evidence - matters, it was felt, that were best left to the judgment of the lawyers. Of quite a different nature was the complaint that judges would engage in conversations upon the bench while the case was going on, in a loud enough tone to be easily heard throughout the courtroom. These conversations were even worse for not being about the case. This strange behaviour had apparently become common knowledge and there was fear that public confidence in the court would be shaken. A final complaint was that cases were being struck off the list if counsel was not ready to proceed at the very moment when the appeal was called. There was no guarantee that the appeal would be restored to the list, and the litigation might be ended on such a formality.7 With the exception of the astonishing behaviour of conversations among the judges while a case was being heard, which was sandwiched into the list of complaints, the other items of complaint could easily be seen as an attempt to sharpen up the proceedings of the court. It was obvious that there were indeed problems because of the very existence of the unprecedented open criticisms. The disarray that plagued the court manifested itself in the Huson and Local Prohibition cases. These two decisions rendered in January 1895 contradicted each other.

157 The Captive Court IN RE PROVINCIAL J U R I S D I C T I O N TO PASS P R O H I B I T O R Y LIQUOR LAWS; HUSON v. TOWNSHIP OF SOUTH NORWICH, 1895 The Local Option Act of Ontario allowed municipalities to enact by-laws prohibiting the retail sale of liquor.8 The township of South Norwich in southwestern Ontario enacted such a law, which was challenged by William Huson on the basis that it was beyond the power of the province to authorize it, since prohibitory liquor laws were within dominion constitutional authority. The provincial government had created a reference case in 1891 and the Ontario Court of Appeal had upheld the validity of the law, but only for retail sales.9 In Huson, the Ontario court had simply followed its earlier conclusion in the reference case. The challenge by Huson was initially successful and the law was struck down, but this decision was reversed by the Ontario Court of Appeal.10 Then Huson appealed to the Supreme Court of Canada, which hear the appeal in May 1893. The bench consisted of Strong, Fournier, Taschereau, Gwynne, and Sedgewick. Patterson was absent. On 26 October 1893, five months after the hearing in the Huson case and just before judgment was to be rendered, a reference was directed to the court that dealt with the very same issue, namely the validity of the provincial prohibition law. The rendering of the judgment in the Huson case was delayed until after the disposition of the reference. The reference case, In re Provincial Jurisdiction to pass Prohibitory Liquor Laws, was heard in early May 1894, and the judgments in both cases were rendered on 15 January 1895." Significantly, there had been a change in the bench between the reference case and Huson, heard a year before. For the reference case the judges were Strong, Fournier, Gwynne, Sedgewick, and King. Taschereau did not sit on the case. His well known aversion to reference cases might have come into play. Patterson, who had not sat on the Huson case, had died in July 1893. What happened was unbelievable! Separate decisions were rendered in the cases.12 In Huson the Supreme Court upheld by a 3—2 margin the validity of the provincial law, thus providing a reason why the reference was created by Ottawa. The majority was made up of Strong, Fournier, and Taschereau, while Gwynne and Sedgewick dissented. In the reference case the Supreme Court, by a 3—2 margin, held the provincial Act to be invalid. The majority was now made up of Gwynne, Sedgewick, and King, with Strong and Fournier in dissent. Had Taschereau sat on the reference, the result could very well have been an equally divided court, 3-3. It seems that the dominion government had deliberately interfered with

158 The Court in Disarray, 1895-1903 the judicial process with the use of the reference procedure. The judges had apparently been obstinate enough to stay with their original decisions and thus were prepared to create a comic self-image. The public reaction can be seen in the report on the case in the Toronto Globe. The headline was "Provincial Prohibition Denied," but in very small print: "The South Norwich Case brings Ontario an Apparent Opposite Judgment." One can sense an air of disbelief, which produced an inability to describe the confusion or even to comment upon it. There was a discrete silence in the law journals. With respect to the substance of the case, this was the last full battle for the Macdonaldian constitution in the Supreme Court. The judges in favour of the validity of the provincial law - Strong, Fournier, and Taschereau emphasized that the matter was that of "police regulations," such as the licensing and regulating of business as well as of prohibition, which they saw as a local matter, and in the absence of a conflict with dominion law should be allowed to stand. It is interesting that Sedgewick, from Nova Scotia urged that the British North America Act was a "compact" or a "treaty." This point had first been made by Henry, who was also from Nova Scotia. Unlike Henry, however, Sedgewick decided in favour of the dominion. For him, the matter of prohibition fell within the trade and commerce power. Sedgewick was to be later remembered for his comment that the constitution was to be viewed from a Canadian standpoint. He went on to say: Although an Imperial Act, to interpret it correctly reference may be had to the phraseology and nomenclature of pre-confederation Canadian legislation and jurisprudence, as well as to the history of the union movement and to the conditions, sentiment and surroundings of the Canadian people at the time. In the British North America Act it was in a technical sense only that the Imperial Parliament spoke; it was there that in a real and substantial sense the Canadian people spoke, and it is to their language, as they understood it, that effect must be given.13 These were noble sentiments indeed, but were an expression of a concept of Canada that was, by this time, perhaps only a memory. Gwynne once again made the most direct stand for the Macdonaldian constitution: [W]e [must] keep ever present to our minds the fact that the main object of these provincial statesmen, who were the authors and founders of our new constitution, in framing their project of confederation, was to devise a scheme by which the best features of the constitution of the United States of America, rejecting the bad, should be grafted upon the British constitution; and to vest in the provincial legislatures exclusive jurisdiction over all matters of a purely provincial, local, municipal and domestic character, and in the general, quasi-national and sovereign character, the

159 The Captive Court inhabitants of the several provinces might be said to have a common interest distinct from the particular interest they would have in matters affecting the local, municipal and domestic affairs of the particular province in which each should reside.14

For Gwynne, prohibition came within the power over trade and commerce, following the court's decision in City of Fredericton v. The Queen. With respect to that case, he added: "If ever it should be reversed it will in my opinion be a matter of deep regret, as defeating the plain intent of the framers of our constitution and imperilling the success of the scheme of confederation."15 The following year, on the appeal to the Privy Council in this case, the City of Fredericton case would be destroyed by the Privy Council and the scheme of the distribution of legislative power within the constitution would be changed, thus ending within the legal system the Macdonaldian constitution. Gwynne's views could no longer be expressed in a judicial setting. Edwin King, the third judge who supported the dominion power in the litigation, took a simple approach and viewed prohibition as a distinct matter within the constitution and since he could not find it expressed in section 92, he concluded that authority over it had to be that of Ottawa. Naturally the reference case proceeded to the Privy Council.16 The result reached by the board marked the formal end of the Macdonaldian constitution in the legal process. The provincial legislation was upheld. The approach to the scheme of the distribution of legislative powers within the constitution had been to look at section 92 for a grant of legislative power, as was done by King in the Supreme Court, and if it could not be found there, then to conclude that the matter must reside within dominion authority. This approach was completely reversed by the Judicial Committee. It could be said that the constitution itself was turned upside down. The focus now became the heads of power of the dominion in section 91, which had been set out "for greater Certainty, but not so as to restrict the Generality" of the grant of legislative power "to make Laws for the Peace, Order and good Government of Canada." After this case, if a matter was not found to reside in the specific heads of power in section 91, then dominion power was to be severely restricted. It was true that the Privy Council did say that matters might be found to exist within the general grant of legislative power - the power to make laws for the peace, order, and good government of Canada - but they "ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance," otherwise the autonomy of the provinces would be practically destroyed. Provincial autonomy had won the day. The trade and commerce power that had been used by two of the judges, Gwynne and Sedgewick, and for which Gwynne warned that if it were not available the plain intent of the framers of the constitution would be defeated, and the success of the scheme of Confederation would be imperilled,

160 The Court in Disarray, 1895-1903

was dismissed virtually out of hand by the Privy Council. Taking the simplistic view that the power to regulate did not include the power to prohibit, the use of the trade and commerce power that had been given such a sweeping embrace by the Supreme Court in Severn, was annihilated in only two sentences: "A power to regulate, naturally, if not necessarily, assumes, unless it is enlarged by the context, the conservation of the thing which is to be made the subject of regulation. In that view, their Lordships are unable to regard the prohibitive enactments of the Canadian [Temperance Act] as regulation of trade and commerce."17 The old ideas of the nature of the constitution were heard far longer in the Supreme Court than in the society generally. Gwynne had been Macdonald's first appointee, and he had been unswerving in his loyalty to the centralist notion of the constitution. Sedgewick had been a federal civil servant and although he wrote of hearing the voices of the Canadian people in the language of the constitution, they were ghosts that he had heard. The comic spectacle of the court rendering conflicting judgments dealing with such an important matter as the constitution (vital both for law and for society) showed that the individuals who made up the court could not act as a unit. The act of rendering conflicting judgments must have been caused by very strong personal feelings that resulted in a show of complete disdain for the institution. If the judges themselves had lost confidence in it, what was left? As chief justice, Strong had to absorb much of the responsibility for the episode. TfiLESPHORE FOURNIER resigned from the court in early September 1895, at the age of seventy-two. The original appointees were down to one - Strong, the chief justice. Fournier had shown considerable ability in his judgments, notably those in the Manitoba School cases. Since he normally wrote in French and translations were not common, it was likely that he remained an unknown in English-speaking Canada. What few comments there were about Fournier were complimentary: he was said to have decided cases using broad principles and not by slavish adherence to precedent.18 He had demonstrated that he was able to break free on occasion from any "captivity." The Conservative government of Mackenzie Bowell appointed D&ire' Girouard to take the place made vacant by the death of Fournier, Girouard was a Conservative member of Parliament at the time. He had been the founder of the journal La Revue Critique during the judicial crisis in Quebec in 1873—74, and was the author of various other writings. He was the first judge to be appointed who had a record of legal writing behind him. He was also the first Quebec judge to come from the English-dominated Montreal region. He had attempted to limit the jurisdiction of the Supreme Court in 1881 by introducing legislation, but the attempt had failed. He was also known for being a member of the "bolters," a small group of French-Cana-

161 The Captive Court dian Conservative members of Parliament who had momentarily separated themselves from their party and opposed Kiel's execution in 1885. WHEN IN 1896 the Toronto newspaper The Week turned its attention to the coverage of a proposal to abolish the appeal to the Privy Council, it wrote that the Supreme Court had been an "utter failure," "an unmitigated failure." The problems in the eyes of the press were that the civil-law judges from Quebec were dealing with common-law issues, and common-law judges were dealing with civil-law questions; there was a lack of discipline in the business of the court; and there were difficulties imposed by the residence requirement that the judges must live in Ottawa, or within five miles of the city. The Canadian Law Times responded, and conceded that there was a great deal of truth in these complaints but, tongue-in-cheek said that it was wrong to say that the court had been "an unmitigated failure."19 The Law Times did admit that there was a good deal of dissatisfaction with regard to it. The journal accepted that the composition of the court, a mix of common- and civil-law judges, was necessary, as well the locale of Ottawa but doubted that there were no conferences among the judges with respect to their judgments, as had been alleged. On the question of discipline within the court, the journal agreed that many faults existed. Specifically, it was said that counsel were having difficulty presenting their cases because the judges frequently interrupted them with questions. Since The Week had attacked the Supreme Court while defending the appeal to the Privy Council, the Law Times in turn attacked the Privy Council, claiming that the decisions had never been entirely satisfactory, and that it had rendered contradictory judgments. Reference was made to the apparent conflict between Russell and Hodge and the need for the Local Prohibition reference as a result. At least the profession now appeared to be going to the defence of the Supreme Court, but the impression is that the action was more to keep the legal system itself propped up, than as a specific concern with the court. During this period, the Judicial Committee became established as the final court of appeal in the Canadian legal system,20 and while criticism of the Canadian judiciary was still rare, criticisms of the Judicial Committee became common. This was a complete change from the 1880s. The fact that the Privy Council was outside the country and secure may have made the task of criticizing easier. There had always been evidence of the existence of thoughts within the legal profession about the nature of the judicial process other than as the barren one of the mechanical application of rules to facts, although they were never dominant. Judges such as Richards, Henry, and Fournier could have served as models of non-mechanical thinking, despite their imperfections in this regard. In the criticisms that became levelled at the Privy

162 The Court in Disarray, 1895-1903 Council, further evidence emerged that Canadians were aware of a different judicial function for a final appellate tribunal. In the Canadian Law Times it was written: "in a final court where the main object, in constitutional cases, is to set at rest a principle of government, the public lose largely by [the] policy [of deciding only the case in hand without committing itself to the enunciation of a general principle]."21 And the Law Journal stated: "The fact is that he who would construe the British North America Act aright must come to its considerations, not in the spirit of a mere case lawyer, but in that of a lawyer and a statesman."22 Possibly the reason that such sentiments were not aimed at the Supreme Court of Canada was because it had ceased to function as a "final court of appeal." However, the demands that were being made of the Privy Council had never been made of the Supreme Court of Canada or of any other Canadian court. Such a role demanded that the lawyers contribute in a way that they were not being educated or trained to do at the time. Criticisms of social institutions was not a Canadian pastime, and even those aimed across the Atlantic, far from Canada, could become infectious. In the late 1890s concern about the criticism of the legal system surfaced in the Canada Law Journal. Public criticism of a general nature in the press was particularly worrisome, as such a tendency was seen to weaken the administration of justice, which in the words of the Law Journal, was the "root of all good government."23 There was a fear that anarchy would tear at the fabric of society in the absence of a strong legal system. In addition to anarchy, democracy and "growing licence" were also troublesome, since it was imperative that respect for the administration of justice be upheld.24 The issue of the role of the judiciary was brought home to Canadians rather forcefully by R.B. Haldane in his comments about Lord Watson and the Canadian constitution. Writing in 1899, on the occasion of Lord Watson's death, Haldane stated: The function of such a judge, sitting in the supreme tribunal of the Empire, is to do more than decide what abstract and familiar legal conceptions should be applied to particular cases. His function is to be a statesman as well as a jurist, to fill in the gaps which Parliament has deliberately left in the skeleton constitutions and laws that it has provided for the British Colonies.25 Haldane went on to describe how two views of Canada had competed for acceptance. The first would have made Ottawa paramount and the provinces subordinate, with dominion power limited only by those matters specially provided for as within provincial authority. The other view was federalism — the view urged by the provinces. The Supreme Court, he said, had taken the position that Ottawa was to be paramount, and consequently: "Great unrest was the result, followed by a series of appeals to the Privy Council ... Lord

163 The Captive Court Watson made the business of laying down the new law that was necessary his own. He completely altered the tendency of the decisions of the Supreme Court... [H]e expounded and established the real constitution of Canada."26 The candid expression of such views was revolutionary. The Canada Law Journal simply referred to Haldane's address as "admirable."27 The journal itself had alluded to the notion of the judge as a statesman in constitutional cases in 1894,28 and Haldane's remarks certainly gave the idea a boost, but he was dealing with the Judicial Committee.29 As the twentieth century approached, a creative role for the judiciary was known to Canadians and the view of a judge as a "statesman" was familiar. There was a choice available to the Canadian legal profession, although the creative, statesman-like role may have been viewed as "forbidden fruit." Any ability to choose was severely hampered by the domination of the problems within the court under the chief justiceship of Henry Strong. The troubles surfaced in the article dealing with the Supreme Court that appeared in Canada: An Encyclopedia of the Country, published in 1900.30 The author, a lawyer, briefly alluded to the fact that room for improvement existed, but also wrote: "The hearings are not always models of judicial investigation, and there is too much disposition to plunge into general dissertation before Counsel has opportunity to explain what the particular case is and what the Judges below thought about it."31 The appearance of this remarkable comment in so public a place as an encyclopaedia showed the depth of animosity within the bar with respect to the court at the time. The problems were about to create a virtual explosion of criticism. In 1895 there had been criticisms levelled against the court, but in 1902 they reached an unprecedented level of fury. There had been vague and familiar references in 1901 to a lack of harmony and concurrence among the judges on important questions of law,32 and that the court had been unsatisfactory and was becoming worse.33 Henri Taschereau was considered the best lawyer in a weak court.34 However, in 1902 the Canada Law Journal attacked on all fronts.35 The journal began by asserting that there was a lack of confidence in the court. A prime reason for its existence was to hear constitutional cases, and yet these cases in particular went to the Privy Council. The open lack of harmony among the judges created "a spirit of discord and misrule." The sum was that the court was to be branded a discredit to the country. Without expressly identifying anyone, the article went on to state that everyone know where the blame lay and who the discordant element was. The notion that the judges did not have conferences had been rejected in 1895, but now it was said to be true. Worse than that, judgments were apparently being delivered without the other judges knowing what the result would be. If this were true, the court had ceased to function as the institution it was supposed to be; it was merely deciding winners and losers.

164 The Court in Disarray, 1895-1903 In the search for an overall cause for the disastrous situation that was seen to exist, mention was made of a concern that had permeated the Canadian legal system throughout its existence, and which continues to do so, that is, that appointments to the court were politically based. Such appointments weakened the court. In addition leaders of the bar were not attracted because of the low salaries offered to judges. Accompanying the dramatic view that the unsatisfactory performance of the Supreme Court had caused it to fail was the opinion that the Privy Council had been strengthened over the years and "now comprises the best legal talent and greatest judicial capacity which the Empire can afford." The appeal to the Privy Council was now needed more than ever for the professionally degrading reason that the highest court in the Canadian legal system was inadequate. In its criticism the Canadian Law Times was quite specific: only two of the six judges then on the bench had been judges before their appointment to the Supreme Court, and of the other four, only one had been in active practice before appointment. This led the journal to conclude: "The composition of the tribunal has never been regarded by lawyers as satisfactory, but there can be no doubt that it is less so now than at any former period of its existence."36 It is not entirely clear what was considered to be the major cause of the unsatisfactory composition of the court. Was it the fact that three of the judges had had no active practice at the bar? As a journal of the legal profession importance was naturally placed upon practice at the bar. At the time of this article, the six judges were Strong, Taschereau, Sedgewick, Girouard, Davies, and Mills. The two who had been lower court judges were Strong and Taschereau. When the background of the other judges is examined it is not clear which one had had an active practice, and three had not. Sedgewick had been deputy minister of justice for five years after practising law in Halifax for fourteen years. Girouard had been in practice for thirty-five years before being appointed, but had spent many years as a member of Parliament. Davies had practised in Charlottetown, Prince Edward Island, for many years, but had also been both premier of the Island and a member of the federal cabinet for several years. Mills had probably never practised law. He was minister of justice when appointed, and a senator. He had completed his legal education in 1855 but did not become a member of the bar until 1883. Considering the complaints there were being levelled at the court, one wonders what active practice at the bar would actually have changed. The culprit who was finally identified by the Law Journal was Chief Justice Strong.37 Yet he was one of the two judges who had had judicial experience prior to his appointment. The state of the legal system had become so desperate that the criticism had become discordant. In a subsequent edition of the journal, the Supreme Court was said to be weaker than the Ontario Court of Appeal, and in a rare glimpse of consciousness of the judicial function, it started: "A final court of appeal occasionally

165 The Captive Court

feels called upon (and it is well it should be so) to mould the law in view of changed conditions in national life, or in trade requirements, etc."38 Such language normally had been reserved for the Privy Council, when even articulated at all. On 20 November 1902, Samuel Henry Strong resigned as chief justice of Canada.39 The situation was such that concern was voiced in Parliament. Out of a supply question dealing with an increase in the salary for the reporter, there arose the first general debate on the Supreme Court since the abolition and limitation of jurisdiction bills of the 1880s.40 There were references back to those debates, with the comment that since the appeals to the Privy Council were increasing, the Supreme Court was only a stepping stone on the way to the final court and merely added to the expense of litigation. The minister of justice, Charles Fitzpatrick, said that he would be disappointed if the court were abolished, since the dominion needed a court to construe its own laws. He was thus only prepared to justify the existence of the court as part of a federal judicial system, rather than as a constitutional court. The minister proceeded to what he viewed as the next logical step, which was to limit the jurisdiction of the court to dominion law only. This, he said, was a valuable suggestion that ought to be seriously considered. The court was hanging on by a thin thread. Injected into this threatening debate was notice of a resolution of the Manitoba bar which sought to have a judge from the West appointed, since there were complaints that the judges then on the court were not in touch with the laws of the West. Perhaps encouraged by the favourable comments made by the minister of justice about limiting the jurisdiction of the court to dominion law, another attempt to enact legislation to so limit the court was made in 1903, the final attempt to date. The motion for second reading was negatived on division. The bill was introduced by a Quebec member of Parliament.41 From the brief debate that took place, it was clear that opposition was being articulated once again only from Quebec. Outside of Parliament, the severest criticism had come from Ontario, but there was no support in that province for a change in the system. The perceived weakness of the court along with the strength of provincial autonomy provided additional support for the attempt to eliminate jurisdiction over Quebec civil law. The court was said to resemble "the sphinx, a monster, neither man nor beast, and which the passer-by seeks to avoid." For Henri Bourassa, French-Canadian nationalist, founder of the newspaper Le Devoir, and Liberal member of Parliament, something in the court shocked common sense since it was dealing with matters beyond the constitutional authority of the dominion, yet had been created by the dominion; and it was dealing with Quebec civil law with only two judges from Quebec. Although the minister of justice had encouraged the debate to take place,

166 The Court in Disarray, 1895-1903 it was not taken seriously by the government, as only the minister of finance was present when it occurred, and he stated the government's opposition to the bill as simply that it would be inexpedient to adopt it at that time. Institutional integrity is imperative for a conservative society and public criticism of the courts cannot be allowed, yet criticism of the Supreme Court reached such a peak in 1902 that it broke through in the legal journals, and occurred in Parliament, which speaks of its deeply felt nature. Absent from the discussion was any criticism of the actual decisions reached. Litigants were still winning and losing and disputes were being settled, but as the Canada Law Journals® aptly pointed out, much more was wanted of a final court of appeal. The law that the court created was the heart of the matter, but this aspect had all but ceased because of the lack of conferences and general disharmony among the judges. In the 1903 debate about the court in Parliament Quebec opposition came through once again and emphasized the potential inability to have an institution with national characteristics. Such a thing shocked common sense, in the opinion of Henri Bourassa. The question exists how the judges reacted to such criticism. To what extent did their relegation to a lesser role in relation to the Privy Council affect them? Was the colonial image so powerful that the position that was held by the Privy Council in the Canadian legal system seemed perfectly normal or even preferable? These questions must remain largely unanswered. From the time that the court was established in 1875 until the mid-1890s, there had been definite sparks of creativity, and there had been judges capable of creative thought, such as Richards, Fournier, and Henry. There were statesmen of the law. However, the years of turmoil during which Henry Strong was chief justice, and the terribly destructive reversal of the court in the Barrett case took their toll, and the court slid into years that would be sterile ones. IN 1896, the rumour had gone out that David Mills might be appointed to the court. The bar had reacted. Mills had been a Liberal member of Parliament for almost thirty years when he went down to defeat in the 1896 election. He had supported the remedial bill. Later that year he was appointed to the Senate. He had received a law degree from the University of Michigan in 1855, but he had never engaged in the traditional practice of law. His expertise in constitutional matters was recognized by his appointment as a professor of constitutional and international law at the University of Toronto in 1888. The Canadian Law Times had outlined the qualities needed of a judge: Years of practice at the Bar; his competitive strife with his fellows; the learning acquired by the necessity of keeping abreast of his competitors and cultivating his faculties to the utmost; the acquaintance with human nature and the motives that

167 The Captive Court actuate men in their daily relations, their habits of thought, their demeanour under trying circumstances, which is nowhere acquired to the same extent as in a large and varied practice; finally the instinct of the advocate trained by long service to pick out his strongest and most reliable points, which gradually drives him to weigh and consider what is absolute, and not argumentative facts, and what is the undoubted, and not an arguable or tentative, proposition of law.42

Obviously this all added up to the opening words: "years of practice at the bar." What was being aired was a dispute between lawyers who had spent their careers at the bar and those who had entered public life. A vital point was that judges should be able to relate to the facts of the problem that they were being asked to solve. The judges must have life experience, but this need not, of course, be necessarily that acquired from the practice of law. In the eyes of the members of the bar, Mills was seen as an "academic" lawyer. The prospect of a judge who had never practised law in the traditional manner was apparently impossible to accept. It is interesting to note that while the Canadian Law Times maintained that it was expressing a universal and emphatic opposition to the appointment of Mills, a letter to the editor appeared which took exception to this position. The letter pointed out that there were differences between being a judge at the trial level and in an appellate court. What the appellate court judge needed was "study," it was said, which Mills was said to have.43 Interestingly the letter was written by the law librarian of the Supreme Court at the time, Harris Harding Bligh, who has been described as a legal scholar, with extensive legal experience.44 Mills' lack of experience as a practising lawyer continued to dog him. When he was appointed minister of justice and attorney general in 1897, it was remarked that he had no experience in judicial proceedings or in the practice of the courts and he could find himself at a loss. It was said that he would have a more difficult task than previous justice ministers.45 The Canada Law Journal made it clear what the legal profession found objectionable: "he is an 'academic' lawyer, a mere book-worm - one who, to put it shortly in our own words, has studied law as a science instead of being taught by daily practice in the Courts to regard it as a fortuitous concourse of 'cases.' "46 There is apparent here an interesting conflict of ideas in that Strong was praised for being a "scientific" lawyer and now Mills was being rejected because he had only studied law as a "science." It again seemed to boil down to the one item of a lack of practice in the courts, and everything else was rationalization. The emphasis on practice experience meant that judges would have to come from the ranks of the practising bar. John Gwynne, the grand old man of the court, died at the age of eightyseven on 7 January 1902. A month later the minister of justice and attorney general of Canada, David Mills, was appointed. He was almost seventy-one years old. At this time rather than re-introduce the criticisms raised in 1896

168 The Court in Disarray, 1895-1903 to his being an "academic" lawyer, the Canada. Law Journal was tactfully polite; at the same time it did mention his lack of experience in the practice of law, and his age. His scholarly mind was acknowledged. Earlier, on 8 May 1901, George King of New Brunswick had died. He had made no mark on the jurisprudence of Canada. The Liberal government of Wilfrid Laurier, with David Mills as minister of justice at the time, appointed the minister of marine and fisheries, Sir Louis Henry Davies from Prince Edward Island. The Island was thus to have its first, and, to date, its only judge on the court. Davies' career had been political, with almost thirty years of legislative experience. He had been premier of the Island and minister of marine and fisheries for six years in the Laurier government. Within Liberal circles, his appointment was considered of top quality. The Toronto Globe had the most extensive coverage of Davies and his appointment that one would ever hope to see for a judge.47 That a "political statesman" and a "judicial statesman" were not necessarily the same was more than amply illustrated by Davies in the years that were to follow. Henry Strong seemed to dominate the court, and under his leadership, or lack thereof, the court spiralled downward in the estimation of both the bar and the public. The explosion of criticism in 1902 was strong enough finally to cause Strong to resign. It has been said that Strong was suffering from a mental illness that began to show in the late 1880s.48 Strong's resignation came as no surprise, and the next day the senior judge, Henri Taschereau became chief justice. Seniority was again the rule. On the same day, John Douglas Armour of the Ontario Court of Appeal, chief justice of Ontario, was named to the bench. He had unimpeachable credentials but was over seventy-two years old at the time and was in noticeably failing health.49 Henry Strong had been greatly praised as having a keen intellect, and a superb knowledge of the law as a science. Not only was he said to be an expert in the law of England, but also in the civil law. In 1889 he had been highly sought after for the principalship of the new law school in Ontario, and when he had proved to be unavailable, it was accepted that the search would have to be made in Britain.50 A decade later different thoughts were expressed: "If we are told that [the] chief is a man of great ability, it may be answered that we can better dispense with a judge of extra-ordinary attainments than with that which conserves the respect due to the sovereign power which he represents."51 An analysis of his judgments over the more than a quarter of a century that he was a member of the court reveals nothing memorable. For all his apparent intellect and knowledge of law, there was no creativity or imagination. With Strong gone the Supreme Court of Canada was about to emerge from the disarray that had dominated it and to sail into the judicial doldrums.

14 The Sterile Years, 1903-1911

By 1903 the Privy Council had the appearance of a normal appeal court within the Canadian legal system, and its use was not being reserved for exceptional cases. This fact was pointed out by their lordships of the Judicial Committee themselves, who directed Canadian lawyers to bring only cases of significant importance and interest.1 One naturally cannot discount the fact that if a lawyer and a litigant have an appeal court to go to, then it will likely be used. Once the Privy Council came to be accepted as a normal part of the legal system, naturally concerns about streamlining and standardizing the procedure became a topic of discussion within the legal profession in Canada.2 While probably not all lawyers accepted the role of the Judicial Committee in relation to Canada, there was little to indicate that opposition was at all widespread. It was certainly unusual and jarring to read an article arguing for abolition of the appeal. In the July-August edition of the Canadian Law Review such an article written by William Edgar Raney did appear, which strongly supported "Canadian judicial independence" and was critical of retaining the appeal to England.3 Raney was a forty-five-year-old Toronto lawyer, who had entered the legal profession in his late thirties, after he had obtained the gold medal at Osgoode Hall. A man of considerable principle, much more would be heard from him in the years to come. While the topic of his article was ostensibly aimed at the appeal, yet the actual thrust was much more profound. Raney criticized the Canadian judiciary for being " 'cribbed, cabined and confined' by precedent." He commented that the words "natural justice" were frequently heard in the courts of the United States, but were almost never heard in argument in Canadian courts. Significantly he stated: "Independent thought is discounted." This article by Raney was the first direct attack on the "captivity." For him, the answer to the problem lay in ending the appeal to the Privy Council. He thought that as long as the appeal was retained, there was "little room for the growth of a

170 The Sterile Years, 1903-1911 healthy, virile, independent judiciary."4 Raney also emphasized the social context by asserting that as another step toward a "home-made" constitution, the judges needed to have a knowledge of the life and circumstances out of which the laws had been created.5 There was much more in the above thoughts than "independence." This was a definite comment on the Canadian judiciary - it was too preoccupied with precedent and not at all concerned with a broader view of the problems that had been presented to them. The charge of a lack of independent thought struck at the heart of the legal system. Raney had connected the captivity with the appeal to the Privy Council and did not consider whether there were some inherent flaws in the legal system. Even if the Supreme Court were viewed simply as an intermediate court of appeal, a lack of independent thought was not an automatic consequence. It is safe to say that the views expressed by Raney as to the judicial function were not the current views of the profession, which was caught up with the notion that the law could be approached as science. "Scientific law" was the goal to be attained, and Henry Strong had been the closest to an ideal judge under this model. That he had left no memorable judgments did not seem to bother anyone. It must be realized that the proponents of this theory of law viewed science as consisting of fixed and immutable rules that needed only to be discovered through the application of the appropriate energy and skill. The desire for certainty in the law dominated the legal profession. Certainty was to be achieved by viewing the law as consisting of a set of rules that were eternal and to be "discovered," and which by their very existence would provide solutions to the problems facing the judges.6 The rules would operate much as scientific formulae and the only judicial thought involved in a case would be that of finding an appropriate rule, which by its very wording could be applied to the facts of the case. Previous cases became the sources of the law. Even when the base rule was in a statute, its words had to be interpreted, and the interpretations were found in previous cases. The search for a "legal formula" turned into a search for a precedent, which was exactly what Raney had criticized. Naturally this view of the legal process had always had its non-followers in the Supreme Court, such as the first chief justice, William Richards, as well as William Henry, and Te"lesphore Fournier, but they had not been consistent. D&ire* Girouard had made a refreshing comment about the "glorious uncertainly of the law" in an 1898 case, but this was certainly not usual.7 This process of trying to find appropriate rules in previous cases that would operate as formulae became known pejoratively at this time as "mechanical jurisprudence."8 In the early years of the twentieth century, the greatest threat to "scientific" or "mechanical" jurisprudence in Canada was David Mills. While Richards' non-acceptance of a rule-oriented thought process had been categorized

171 The Captive Court

as a "common-sense" approach, meaning that it could be admired but could not be replicated, Mills was tainted with the epithet of being an "academic" lawyer. In a constitutional case Mills made the point that it was the duty of the judiciary "to make the words of the statute yield to its reason and expressed intention." He pointed out that the judges in England had on occasion preferred to follow the reason rather than the exact letter of the law.9 He expressed concern with social changes and with what would be called policy matters, namely social values, as had Richards, but he seemed more conscious of reason as a necessary part of the judicial process. With respect to Richards it had been taken by the profession as having been idiosyncratic. The different approaches of the judges came through clearly in Blackburn v. McCallum and Gosselin v. The King, two cases in which a majority of the court led the court further along the road of mechanical jurisprudence and sterility of the judicial function. BLACKBURN v. McCALLUM, 1903 This case illustrates well the fact that no matter how much a judge might wish that finding and declaring the law was all that was involved in the exercise of the judicial function, the reality of the process will inevitably shine through. In Blackburn v. McCallum, the need arose for creativity and for active decision making. The issue faced by Chief Justice Taschereau, Sedgewick, Girouard, Davies, and Mills, the five judges who heard the appeal, was the legality of a restriction on the way property would be dealt with that was contained in a bequest in a will. In deciding the case, the judges had a choice to make.10 In his will, a father had given his son a piece of land, but with a restriction that the land was to remain free from all incumbrances for twenty-five years after the father's death. The son executed a mortgage on the land as security for a debt that he had incurred, breaking the term in the will restricting his use of the land. The question before the judges was whether the restriction that had been imposed by the father was valid or not. If valid, then the land was lost to the son; if invalid, the son would take the land free of the restriction. Over the years, the values within society as they related to the question of whether land should be kept freely alienable or whether restrictions on the dealing with it, known as restraints on alienation, should be recognized, had naturally been changeable. The law had reflected the changes and as a result cases had been produced that were not based on the same social premise and thus conflicted with each other. Six years before the Supreme Court heard Blackburn v. McCallum, the issue had been dealt with in a lengthy article, and the confused state of the law was exposed." The author, A.H. Marsh,

172 The Sterile Years, 1903-1911 viewed the law as "in a very unsatisfactory state," and "in a state of flux." Judges in Ontario were apparently allowing a greater degree of restraint by conditions on the use of the land than were the judges in England. The focus of the article was an English case of 1875, In re Macleay, in which restraints of some magnitude had been approved.'2 Sir George Jessel, Master of the Rolls, had articulated the test as "whether the condition takes away the whole power of alienation, substantially." Jessel had added that it was a question of substance and not mere form. The words of import in the test were, of course, "the whole power." Restraints of a partial nature were thus permissible. If the Supreme Court were to choose this as the law, then it appeared that the father's restriction on his son's use of the land would stand up since he had restricted only the encumbrancing of the land. The judges in Ontario had taken to following this decision of Sir George Jessel and consequently had allowed considerable restraint, always, of course, short of taking away the "whole power of alienation." The author of the article next turned to a more recent decision from England, that of Re Rasher?* decided in 1884. The English Chancery Division judge in the Rosher case had taken the position that any restraint on alienation was void when attached to an otherwise transfer of complete ownership of land. The writer expressed his personal opinion that the 1884 decision contained "the more rational view," and he considered that the reasoning in it was very convincing. He pointed out, however, that for the judges in Ontario, the matter was settled "until the Supreme Court of Canada would have the opportunity to express an opinion upon the limits of the doctrine," owing to the fact that the Macleay case had been followed and stare decisis had taken hold. The moment had arrived in Blackburn v. McCallum for the Supreme Court to express an opinion and to choose the appropriate law. Not only did the author of the article prefer the Rosher rule, but E.D. Armour, author of a major Canadian work on property law, A Treatise on the Law of Real Property, that was published in 1901 also thought it a more logical and convenient rule.14 The Blackburn v. McCallum appeal was from Ontario, and since the position on the law previously taken by the Ontario Court of Appeal was well known, the parties had agreed to bypass the appellate court and go directly to the Supreme Court from the trial, which had naturally followed the current Ontario approach and found the restraint on alienation valid. Thoughts of law reform must have been in the air in order to justify the appeal, and reform did occur. In the Supreme Court the judges decided unanimously, 5-0, to declare that the condition attached to the bequest was void, thus in effect following the Rosher decision and altering the current of the law in Ontario. The approach of the different judges towards solving the problem that was before them varied significantly.

173 The Captive Court David Mills, the "academic lawyer," reviewed the history of the law and commented: "The relaxations in the system are indicative of the changes which society itself was undergoing."'5 He preferred what he called "the scientific and systematised view" of the law, which he could obtain by a historical survey. Mills opted for the rule that he saw as more in keeping with the needs of society at the time, namely, that a condition would be void if the power to alien was denied generally, or for a limited time. In his judgment, he turned the words "scientific and systematised" against the "mechanical" judges such as Henry Strong by using them in the sense of "planned and orderly," not in the sense that the words of a rule would themselves solve the problem by their very existence. His historical analysis was intended to illustrate the social context of the law over the years, and how it had caused the rules of law to change. He selected the rule that was conditioned by his assessment of the current view on the question, which was evidenced by the 1897 article, Armour's book, and the Rosher decision. Mills' approach to the task of being a judge of the Supreme Court could be contrasted with that of Davies, with whom Sedgewick concurred. Davies avoided all appearance of making a choice, and said that the solution was "a pure question of authority."16 While Davies accepted that there was a general rule, namely that restraints on alienation were void, he also accepted that there was an exception, which allowed him to keep In re Macleay intact. For stability within the legal system and to maintain credibility, judges such as Davies made certain that no case was declared to have been wrongly decided. The exception recognized by Davies was that a prohibition would be valid if it were limited to a specific or particular class of individuals.17 This exception existed solely because the case existed. An absolute restraint for a limited period of time was invalid on the authority of Rosher, and he dismissed the Ontario cases on the basis that they were decided before Rosher. He expressly refused to alter any rule until the English courts had acted,18 which raised the highly intriguing point that while he recognized the existence of judicial creativity, such behaviour was not for Canadian judges. This was a clear illustration of a lack of independent thought and captivity. There was more involved here than simply using English cases, or the existence of the appeal to the Privy Council. In spite of his protestations to the contrary, it was obvious that Davies had engaged in the creation of law when he articulated the proposition that at least there was the need for a time-limit when a restriction was imposed upon alienation.19 The notion of a time-limit seems to have been new. He cited no "authority" for the proposition. He had "created" law, but had not been "creative." Since he had engaged in the approach of simply articulating rules that he had "found," he could apparently articulate new rules without having to explain them.

174 The Sterile Years, 1903-1911 The two judges from Quebec commented that they had some difficulty with the case. Desir^ Girouard only said that while he had doubts about the result, they were not strong enough to cause him to dissent. Taschereau, the chief justice, said that he had had much trouble, and that he gave his opinion with great diffidence. Henri Taschereau looked at the problem quite differently from the other judges. He preferred to treat the bequest as giving the son a limited estate in the land, which would mean that the act of incumbrance would be void, not the father's restriction. This was not the approach taken by the common law; and someone on the court must have told him so, since with reference to what an English judge had said in an earlier case, Taschereau lashed out angrily: "I cannot but admit that he would probably qualify this reasoning as absurd. But I cannot here be bound by that opinion. Even the adherents of the waning colonial servilism that has hitherto found such strong retrenchments in the courts of Canada must concede that we have no claim to the monopoly of absurdities."20 While there was no dissent in the case, there was certainly controversy among the judges. Taschereau spoke out against "colonial servilism" in the courts of Canada, and dealt with an area of English law in disregard of the general approach to the problem in that legal system. He showed no inhibitions in casting aside basic common-law doctrine. Davies and Sedgewick articulated a very authority-minded and mechanical approach, which amounted to saying that the cases had said such and such and that was enough, when in fact there was a choice to be made. In the "pure question of authority" approach, it appeared that the judges were prepared to toss out new "authority" without explanation. A distinct show of captivity was evidenced in Davies' judgment by his reliance on English cases to reform the law. The appeal to the Privy Council did not enter the picture here. Mills, on the other hand, undertook a historical review, "the scientific and systematised view." He noted changes in society and gave the impression that he was dealing with the actual problem at hand. One could understand the reasoning process in Mills' decision, but since Mills lacked credibility within the profession, this would act against his approach. Girouard withdrew from the decision making and although he doubted the result, he did not dissent. The judges had unquestionably been faced with the need for a creative decision, which at the least involved making a rational choice between cases. The result was that the court splintered badly, and ceased to function as such. It became, even more than usual, a group of individuals. The law to be applied in future disputes is to be found in the reasons for judgment. In this case the Supreme Court of Canada had produced no law, but only confusion. Since there were no reasons for judgment of "the court," the bar would be forced either to treat the case as having no precedent value and as simply a particular adjudication (hence continuing to look to England for "law"), or

175 The Captive Court to take refuge in the mechanical, "pure question of authority" approach of Davies and Sedgewick. This latter approach would entail looking at the facts and then at the conclusion, and the case would become a precedent, not for the reasoning, but for the result. Another possibility was that the reasons of an individual judge would be accepted as stating the law. This possibility would effectively pass law-making power to the lower courts through their ability to choose. GOSSELIN v. THE KING,

1903

In 1893, the law of evidence had been reformed and an accused person in a criminal case as well as a spouse were made competent witnesses.21 Prior to that time anyone prosecuted for having committed a crime could not testify at their trial, since under the law they were considered to be incompetent to be a witness.22 Because the law treated spouses as a unity, this meant that the spouse of an accused person was equally incompetent and also unable to testify. Joseph Gosselin had been charged with murder and at his trial, the Crown called his wife to testify against him. The question was whether her testimony should have been allowed or not. The provision of the 1893 reform legislation that was under consideration in the case was: "Every person charged with an offence, and the wife or husband as the case may be, of the person so charged shall be a competent witness." The section went on to state: "Provided, however, that no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage."23 The Court of King's Bench, Appeal Side, in Quebec affirmed the accused's conviction by a narrow 3—2 margin. The two dissenting judges concluded that the wife of the accused was a competent witness only for the defence and not for the prosecution. The conclusion was based on their opinion that to construe the legislation so as to allow the Crown to call her as a witness was opposed to public policy and order, because the marriage relationship would be breached.24 The majority, however, went with the language of the section ("shall be a competent witness") and accepted that all competent witnesses could be called by either side. They were content to use only the language context. In the Supreme Court of Canada, the result was the same as in the Quebec appeal court in that the conviction was affirmed by a 3-2 margin. Mr Justice Davies rendered the judgement for the majority of three judges, which included Chief Justice Taschereau and Mr Justice Sedgewick. He rejected any notion of discussing public policy and stated unequivocally: "Our duty is simply to construe the language of the statute as we find it. Where

176 The Sterile Years, 1903-1911 that language is plain and unambiguous we are not to speculate as to what was or might have been the intention of Parliament, or as to the consequences which we may think impolitic or undesirable which follow from adherence to the plain language of the statute."25 The words of the law were: "every person charged with an offence, and the wife or husband as the case may be, of the person so charged shall be a competent witness"; for Davies a competent witness could be forced to testify without exception. Not only did he reject the social context but also the legal context, that is, the wording of the other parts of the law itself. It was informative that a subsection provided: "The failure of the person charged, or of the wife or husband of such person, to testify shall not be made the subject of comment by the judge, or by counsel for the prosecution in addressing the jury."26 The implication was that the person charged and his or her spouse had a choice. Davies' conclusion meant that, contrary to tradition, the accused in a criminal trial could be called by the Crown. There was no apparent thought about the spirit of the law — why the law was passed. Chief Justice Taschereau, who had concurred with Davies, also wrote a judgment in which he examined in some depth the law as it related to the use of extrinsic evidence in the interpretation of a statute. The conclusion reached was that extrinsic evidence such as the debates of Parliament could not be used when construing any statute. Thus he completely complemented Davies and unequivocally cut off any reference to material that would contain social data and the values upon which the meaning of the words of a law might be based. The approach that the majority judges took was to "construe the language" without any apparent regard for consequences and hence social values. The approach had triumphed by a bare 3-2 majority, but it had triumphed. The debates in Parliament bristle with social values with regard to the enactment of a law — that is what the debates are all about. Therefore, the very fact that Chief Justice Taschereau took the opportunity to lay down so firmly the rule that the debates in Parliament could not be used in the legal system in giving meaning to the language of the law, must cause anyone with an element of curiosity in their nature to wonder about what it was that they should not know. The dissenting judges were Mills and Girouard. Mills held that the wife could not be called by the prosecution. In his opinion, the language of the statute assumed this fact, giving rise to the following subsection: "The failure of the person charged, or of the wife or husband of such person, to testify shall not be made the subject of comment by the judge, or by counsel for the prosecution in addressing the jury." This was a reference to the legal context, which had been ignored by Davies. In addition, Mills did not consider that the judges should imply an intention on the part of Parliament to break down the public policy that had

177 The Captive Court so long protected marital relations.27 He thus also engaged the social context. His conclusion was that the husband and wife had been made competent by the new law, but they could not be compelled to testify against their individual wishes. Girouard in his dissent took a different approach. He focused on the part of the legislation that provided that "no husband shall be competent to disclose any communication made to him by his wife during their marriage, and no wife shall be competent to disclose any communication made to her by her husband during their marriage." He then took the word "communication" to mean more than words of mouth or messages, but to cover all kinds of relations between husband and wife. In the case the wife was asked whether sexual relations with her husband had occurred on a particular day. Girouard held this information to be privileged. By taking this approach, which was beyond the realm of contemporary thinking (and is not accepted even today) Girouard was able to avoid the social context and to use the legal context. No discussion of this case would be complete without an examination of the mysterious debates, whose use was rejected by the chief justice. The 1893 amendment to the law which fell to be interpreted by the Supreme Court had been introduced in Parliament by the attorney general, Sir John Thompson, in response to many years of discussion regarding the question of whether an accused person in a criminal case should be allowed to testify. Since the sixteenth century, the law had developed to prevent anyone with a motive to perjure themselves from being a witness. This exclusion was accomplished by deeming incompetent the parties to a civil action, any person who was interested in the outcome of an action, or the accused in a criminal trial.28 By the late nineteenth century, the prohibitions in civil cases had disappeared, but in criminal cases the accused still could not testify. Added to the rationale that an accused was a person who might well lie was the benevolent reason that the accused's right to silence would be enforced by the law for the accused's own good. The bill that was introduced provided expressly that an accused and the spouse of an accused were to be "competent and compellable." In the debate that followed there was little controversy surrounding the change in the law whereby an accused was allowed to be a witness. The debate was on two other issues - whether the accused should be a compellable witness as well as a competent one, and whether the spouse of an accused person should be forced to testify against his or her own wishes.29 Over the years, the proposals for reform had not advocated forcing an accused to testify by making him or her compellable, as all that had been wanted was simply to allow an accused to be a witness if that person so wished. The addition of the word "compellable" in the 1893 bill had come as a surprise. The opinion was voiced by certain members in the House of Commons that making the accused compel-

178 The Sterile Years, 1903-1911

lable as a witness was a radical departure, contrary to tradition, which stood for the proposition that no person should be compelled to incriminate themself, and also for the presumption of innocence which meant that the prosecution had to make out the case against the accused. Opposition against compelling a spouse to testify was based on the "sacredness of the domestic relation."30 Despite these objections, the government was able to have the bill pass the House of Commons. In the Senate, it was a different matter. The bill was sent back to the Commons with the word "compellable" removed. The government and the Commons agreed with the change and hance the legislation stated only that the accused and the spouse of an accused were to be a competent witness. Thus, there was no question that the legislation was passed with the clear intention of a majority in Parliament that an accused and spouse were to be made competent, but not compellable. A majority of the Supreme Court had thwarted that intention. Of the five Supreme Court judges who heard the appeal, three had been members of Parliament at the time of the debate - Davies, Mills, and Girouard. Girouard did not speak during the debate, but Mills took the position that an accused should not be compelled to testify, which coincided with the final result of the legislative process and with his decision in the appeal. Significantly, Davies had been the strongest advocate in the Commons for making an accused compellable. He had failed in Parliament, but had succeeded on the bench. Davies and a majority of the bench hid behind the "plain language" of the law, and no mention was made of the debates. The fact remained, however, that the Supreme Court had decided contrary to the will of Parliament. It is generally accepted that the most glaring example of a failure on the part of the judiciary is evident when legislation is needed to correct a situation that has been created by the judges. In 1906 the Canada Evidence Act was amended because of the Gosselin decision.3' The minister of justice said that the interpretation of the section that had been given by the majority of the judges had never been intended, as was patently obvious from the 1893 debates. The words "for the defence" were added after the words "competent witness"; thus, an accused or the spouse of an accused could not be called to be a witness by the prosecution. In 1912, the same issue that had occurred in Gosselin appeared before the House of Lords.32 Their Lordships held that it was a fundamental and old principle of the law that a wife ought not be compelled to give evidence against her husband in matters of a criminal nature. Before the right of a wife to refuse to testify would be held to have been changed, there would need to be a definite statement to that effect in the legislation, illustrating that social values condition language. Although the legislation had made the spouse of an accused person competent, it had not made them compellable.

179 The Captive Court

Gosselin was doubly finished. The Canadian legislation had eliminated that part of the case that had allowed the Crown to call the accused and the spouse as witnesses, and the part that had been based on the view that a competent witness was per se also compellable was ended by the House of Lords. The power of the English House of Lords was sufficient to drive the Canadian case from the minds of the members of the legal profession. As far as a majority of the judges were concerned, it seems clear that the English judges were expected to do the thinking for the Canadian legal system. The only thing that prevented the appearance of complete sterility in the court in the two cases just reviewed was the presence of David Mills. It was true that the two Quebec judges, Taschereau and Girouard — especially Girouard — had shown moments of creativity, but in both the Blackburn and Gosselin cases these instances tended to be outside the bounds of conventional wisdom. Although Mills was seventy-two years of age, it was unexpected when on 8 May 1903 he suddenly died, just over a year after his appointment to the court. The Canadian Law Times was unforgiving: "His appointment was regarded by the Bar as an unsatisfactory one, from his want of experience as a practical lawyer, and he certainly added little to his reputation by his judicial work."33 Even in 1989 this assessment was once again trotted out.34 The person who might have been called the first true "judicial statesman" on the bench of the Supreme Court, a person renowned for his sense of justice and his scruples,35 was effectively erased from the memory of the legal system. Within two months, Armour was also dead. He had been appointed as one of the two commissioners for Canada on the Alaska Boundary Commission of 1903.36 His appointment to the court had added more prestige to his position as a commissioner than it had to the work of the court. He died in London while there to hear argument on the boundary question. He had been given six months leave from his judicial duties. Armour was recognized as a good judge who had the quality described as "common sense," together with the ability to know and related his work to the conditions of life in Canada and to understand the spirit of the law. But his fame rested entirely on his performance on the bench in Ontario, not on his very brief tenure on the national court. In its obituary on Armour, the Canada Law Journal took the opportunity to articulate the qualities that were considered to make a great judge. They were: "A man of great natural ability, with a commanding presence, his profound knowledge of the principles of law, coupled with an astonishing memory for cases, and that insight into human nature and appreciation of the fitness of things called common sense ... also the gift of expressing himself in the clearest manner and in forceful language."37 The requirement that a judge have knowledge of the principles of law and the ability for self-expression is obviously unquestioned. What is surprising,

180 The Sterile Years, 1903-1911 however, is that at the time that mechanical jurisprudence was accepted and a judge such as Mills was ignored, the third requirement — the taking into account of social values — was also present: "that insight into human nature and appreciation of the fitness of things called common sense." Common sense! This was how the legal profession described the consideration of social values in the application of law. Of course when a judge such as Mills openly applied social values and advocated such an approach, it was no longer "common sense," which by definition had to be implicit and unarticulated. Following Mills' death, the vacancy on the bench was filled by Wallace Nesbitt. Nesbitt's appointment was unusual for a number of significant reasons. First, he was strongly identified as a conservative, and consequently the Liberal prime minister, Wilfrid Laurier, was making the obvious point that the court was in need of drastic measures to build its prestige by departing from the normal practice of partisan appointments. Second, Nesbitt was only forty-five years of age, one of the youngest appointees in the history of the court. After the appointment of men over seventy such as Mills and Armour, the government was now going the other way. Nesbitt had been in the practice of law for twenty-two years, but had no judicial experience. He was well respected as a lawyer in Ontario, where his expertise lay in the field of corporate and commercial matters, particularly insurance law. With this background Nesbitt might have been expected to fit comfortably into the mould of the majority of the court, but after just two years he would leave the bench and return to what he saw as the more stimulating work of the practice of law. The corporate-commercial background of Nesbitt was a point that merits comment. The mentality normally involved in dealing with corporate or commercial matters within the legal system is fundamentally different from that needed for constitutional matters and law reform in general. The solution of constitutional questions and the creativity needed for judicial law reform involves the identification and active use of social values, whereas in the corporate-commercial world, the legal system is used only as a process of arbitration in its starkest form. The judge acts as an umpire, applying rules in a manner that is as objective as possible. The parties in the corporate-commercial area are always to be considered as equals. Because of the economic resources involved in the litigation of business problems, it is more than likely that upper courts will be used, such as the Supreme Court of Canada. Its role as an arbiter of business disputes is distinctly incompatible with its role as a constitutional umpire or as a developer of the law. A judge whose legal background is from the corporate and commercial world is likely to be in a strange and unfriendly world when faced with issues related to the constitution or law development. As a potential prime user of the court, the business world would, of course, favour business-oriented judges. Although business and lawyers in the

181 The Captive Court

early days of Canada went hand in hand, yet there had been no obvious connection for the first appointees. Later judges such as George Edwin King, who was described as the best commercial lawyer in Canada, had definite business-law backgrounds. Two judges who did not fit the corporate-commercial mould were Mills and Armour. Armour was expressly said not to be a lover of corporations and to be in sympathy with the common people.38 Both Mills and Armour were noted for their broad view of the role of judges. With Armour's death, the West finally achieved a judge on the court with the long sought-for appointment of Mr Justice Albert Killam of the Manitoba Queen's Bench. Within two years, he also left the court; he became the chief commissioner of the Board of Railway Commissioners for Canada. From 1901 to 1904 there had been five appointments to the Supreme Court, of whom only one - Louis Davies - remained after 1905. It probably mattered very little at the time, but the turnover of personnel could not have helped the court function as an institution. The period between 1904 and 1909 was one of constant change of personnel on the bench. With the appointment of Albert Killam in 1903, western Canada had momentarily secured a position on the court, but when he left to head the Board of Railway Commissioners, his position was filled by John Idington, a lawyer from Ontario. The appointment was a surprise,39 and although Idington was definitely a Liberal, he was from the relatively small community of Stratford. He had been appointed a judge of the Exchequer Division of the Ontario Supreme Court less than a year before. His experience was as a crown attorney for twenty-five years, not in the business world. The Canadian Law Times, while not generally critical of Idington's appointment, did state that experienced judges were unwilling to take a position on the court because of having to dislodge themselves and their families. Idington had been on the bench for less than a year; the journal considered him to have been appointed from the bar. This created the threatening comment that the situation of the court was becoming intolerable, since with the exception of the chief justice, the present members of the court had had no judicial experience before appointment.40 The only solution to the problem was to increase the salaries in order to attract people with greater judicial experience. Following the resignation of Wallace Nesbitt late in 1905, his position was filled by a judge with experience, James Maclennan of the Ontario Court of Appeal. He had been on the appeal court for seventeen years, since 1888, and was over seventy-two when appointed to the Supreme Court of Canada, which made him the oldest judge yet to be appointed. The return to appointing a person of his age indicates some difficulty in finding appropriate candidates. Maclennan's appointment was considered a surprise, but his age was the only negative factor mentioned. On his appointment to the Court of Appeal in 1888, the Canada Law Journalhad seen in him the qualities of a

182 The Sterile Years, 1903-1911 good judge: "A man of the highest personal character ... he is ... without fear and without reproach. He is a sound and able lawyer, has had long experience at the Bar, has a judicial mind with a large fund of common sense, and is thoroughly familiar with the business of the country and the instincts of the people. At the same time he has not lost his interest in art and general literature, and few men at the bar have read more of our English classics."41 Once again, without any apparent consciousness of the fact, the social element needed for creative decision making is present under the name "common sense": Maclennan is said to be "thoroughly familiar with the business of the country and the instincts of the people." It has to be understood that use of the term "common sense" in this context meant, of course, that such an approach could not be taught, since having common sense implies intuitiveness and instinctiveness - qualities that are inherent. Another important characteristic ascribed to Maclennan was that he was a literate person - he had an "interest in art and general literature" - which is a trait always seen in judges whose abilities are perceived to be above average. The fact that he was well read and had a wide general knowledge was a momentary return to the qualities of the judiciary of the nineteenth century. Henri Taschereau, who was close to being an original appointee of the court, finally resigned at the beginning of May 1906, at the age of seventyone. He had been on sick-leave for some time.42 The appointment of the new chief justice, Charles Fitzpatrick, has remained unique to this day. He was named directly to the position from outside the court. At the time he was the minister of justice. A brief look at the members of the court in May 1906 may explain why there was a need for this unprecedented move. The senior judge was Robert Sedgewick. He was only fifty-eight, but just three months away from his death due to cancer. De'sire' Girouard, the next in seniority, was sixty-nine years old and considered alert, but the selection of two consecutive French Canadian judges as chief justice would no doubt have been seen as a problem. Girouard had also been a Conservative member of Parliament. Davies had only been on the bench since 1901 for a total of four and a half years; Idington had been a member only since early 1905; and the appointment of Maclennan at seventy-three years of age would probably have been unthinkable. In addition there would have been nothing to justify a jump over Girouard. Only four years earlier in 1902, the court had been inundated with criticism and Chief Justice Strong had resigned. Since that time there had been constant changes in personnel.43 Most important for the prestige of the court, however, was the fact that Fitzpatrick had outstanding credentials in the eyes of the legal profession. He had been catapulted into prominence as chief counsel for Louis Riel and as counsel for Honore* Mercier, the ex-premier of Quebec, when he was prosecuted by the government which succeeded him because of the Baie-des-Chaleurs scandal.44 He could be seen by the legal profession as

183 The Captive Court the saviour of the court. The Canadian Law Times wrote: "under his leadership we hope to see the Supreme Court of Canada take its proper rank as a strong and sound legal tribunal."45 There was hope and expectation. He was the first judge appointed from Quebec who was not of French ethnic origin. He was, however, a very devout Roman Catholic. When Robert Sedgewick died on 4 August 1906, he was replaced by a man whose name would in the future dominate the history of the court. Lyman Poore Duff was the first judge to be appointed from British Columbia, and at forty-one years of age, was the youngest person yet named to the court. He had been a judge of the British Columbia Supreme Court for two and a half years. His appointment was greeted by a show of enthusiasm and considerable praise. He was said to have a great reputation for learning and for sound sense. Earlier his appointment to the British Columbia Court had been described as "one of the very best"; he was said to have a mind cast in a judicial mould.46 The praise is somewhat surprising. Duff had practised law in Fergus, Ontario, for two years before being enticed to Victoria, British Columbia, by Gordon Hunter, his friend and ex-classmate at the University of Toronto. When he was appointed to the bench in British Columbia, he had been in practice for only nine years in Victoria, and had been a member of the bar for a total of only eleven years; this was near the minimum requirement of ten years.47 His biographer has described his career on the British Columbia bench as undistinguished,48 and yet he would join the highest court within only thirteen years of his call to the bar - a remarkable feat. Little in his background signalled such rapid movement. In 1903, just prior to his elevation to the British Columbia bench, he had been junior counsel on the high-profile Alaska boundary arbitration. He had been president of the British Columbia Liberal Association during 1902-03, but had never run for office, a point viewed as a plus.49 In a comment on Duffs appointment to the Supreme Court, it was said that "distinguished jurists are perhaps rare," and they do not always make the best judges. Richards was mentioned as a "most satisfactory" judge, but not a "distinguished jurist." He was said to have been of strong and broad mind, "well fitted to grasp the principles of law, and with the experience and knowledge of men and affairs which enabled them to apply these principles in a rational way to the ever-varying sets of facts and circumstances which came before them." By the term "distinguished jurist" can be understood a "scientific lawyer," that is, one who knows rules - a "mechanical jurist." The writer of the comment could perhaps see the continuing move toward judicial sterility by the failure to appoint a judge such as Richards.50 The changes continued. On 13 February 1909, James Maclennan resigned; he was by then almost seventy-six years old. The appointment of Francis (Frank) Alexander Anglin, at just under forty-four years of age, continued the move to youth.

184 The Sterile Years, 1903-1911

He had been born in Saint John, New Brunswick, but his family later moved to Ontario, where he had studied law. He came from a solid Liberal background. His father had been speaker of the House of Commons during the Mackenzie years, 1874-78. He had taken an active part in politics for the party, and had unsuccessfully sought a nomination. When appointed to the Supreme Court he had been a judge of the Ontario High Court for five years. Two young, and ambitious "scientific" lawyers had been appointed to the Supreme Court. Anglin was the first Roman Catholic to be appointed from outside Quebec. Driven by strong ambition to be a judge, he had thrust himself into the light.52 He wrote a series of lengthy articles published in the Canadian Law Times, one in 1894, and three others, as well as a short book, between 1898 and 1900." These helped to establish his reputation as a "scientific lawyer."54 NEAR THE END of the first decade of the twentieth century, social changes became noticeable, and criticisms of the Privy Council appeared in the public press. The Alaska Boundary issue in 1903 had aroused nationalistic feelings with an accompanying anti-British mood that lingered.55 The Boer War, which had ended in 1902, had created a feeling of national pride in AngloCanada because of Canadian involvement, and the glory and might of the Empire had been tarnished. When the criticisms of the Privy Council appeared in the press a reaction occurred within the legal profession against the act of criticizing judges. The Canada Law Journal responded vigorously to an attack by the Toronto newspapers on a decision of the Privy Council.56 The article was published in various newspapers. So strong was the reaction that the legal profession had gone public. The assault by the law journal was broadly carried out. It was firstly suggested that the judges were experts and could not be fairly criticized by non-experts, namely, the general public. Next, it was attempted to elicit sympathy for judges by saying that a judge could not reply to criticism, and it was consequently "very much like striking a man whose hands are tied."57 Third, with regard to the accusation that the judges of the Privy Council were not familiar with conditions in Canada, the law journal informed the public that cases were decided on the basis of the law, not by popular sentiment. Finally, the journal expressed what was probably the most basic concern of the legal profession and the political elite, the fear that anarchy would result from attacking judges. The warning was sounded: "When once the public has lost confidence in the judiciary of a country, that country has lost its greatest safeguard for law and order."58 The criticisms continued in the press and the Canada Law Journal again attempted to deaden them by taking the position that it was virtually impossible even for an average member of the public to grasp what the judges were doing.59 With regard to the judicial function: the journal stated that

185 The Captive Court "one of the fundamental principles of jurisprudence is that judges are not to make law in the sense of making new principles of decision and they are bound by their oaths, even in new cases, to frame and base their decisions on 'the established principles.' '>6° The legal profession was deliberately shielding itself by projecting the image of mechanical jurisprudence. The public was being told that since the judges do not make law, they are non-political in nature. The use of the word "principles" covered the writer from the accusation of being naive. Depending on what was understood by the word "principles," it could be claimed that judges never made new principles, in the sense that the vague, general rules of the legal system that were virtually unchangeable, but were reflective of the core values of most societies. When a newspaper referred to the legal system as an "institution," the law journal writer responded: "Classing 'the law and its administration' with other 'institutions' strikes one, if we may be permitted to say so, as positively comical."61 To speak of the law as an institution was said by the journal to be "socialist." There was a pronounced recoiling by the profession from any suggestion of a political tone to the law. The year 1909 saw the appearance of a number of articles and addresses in the law journals dealing at some length with the Judicial Committee of the Privy Council, and all of them gush with support for the appeal.62 One address that was printed in both the legal journals in Ontario and was said by the Canada Law Journal to represent the view of the legal profession as a whole, was given by Wallace Nesbitt who had been a judge of the Supreme Court of Canada from 1903-05. A sense of awe is conveyed by the language: "You will see it deciding on one day a question according to the Roman Dutch law; on another a question according to the French law as it prevailed before the Revolution, modified by subsequent Canadian statutes; and on another day according to the common law of England, as modified by Australian or New Zealand legislation; and at the end of the week according to the customs of the Hindu or Mohammedan law."63 The burst of interest in the Privy Council was obviously a reaction to a 1908 proposal that had been made by the government of Ontario to restrict the appeal. The catalyst for the outbreak of criticism and discussion about the appeal to the Privy Council in 1908 was the Street Railway case. There had been a long-standing dispute between the city of Toronto and the Toronto Street Railway Company over control of the operation of the street railway. Litigation began and the city was generally successful before the trial judge, the Ontario Court of Appeal, and the Supreme Court of Canada, but the Privy Council decided in favour of the company. A storm of protest erupted in the Toronto press, which severely criticized the Privy Council for being out of tune with Canadian values.64 In April 1908, J.J. Foy, the attorney general in the Conservative government of Premier J.P. Whitney, introduced into the Ontario legislature certain

186 The Sterile Years, 1903-1911 resolutions dealing with law reform, which were passed. One of these was that the decisions of the Court of Appeal should be final, with the exception of cases containing constitutional issues, those in which federal statutes were applicable, or those where the litigation was between a resident of Ontario and a person resident in another province. A further resolution was that the appeal as of right to the Privy Council should be abolished. Apparently even the almost sacred appeal to the foot of the throne was not immune from political manipulation. The Ontario government - a Conservative one at that — was responding to public opinion.65 Such action by the government would, of course, also feed public opinion. The legal profession objected strongly and a committee of benchers from the Law Society of Upper Canada met with the attorney general to urge that no change be made to the appeal.66 The special committee of the Law Society that had been studying the suggested reforms did report, however, that there was a considerable difference of opinion among the members of the bar about the abolition of the appeal to the Privy Council but "the balance certainly inclines in favour of limiting the appeals in the manner proposed." The report went on to say that the benchers and certain leading counsel had decided views in favour of retaining the appeal.67 There was an apparent gap between the leaders of the bar and the membership. The resolutions of the Ontario government regarding abolition of the appeal of right and the provincial court of appeal were dropped in 1909. At the Imperial Conference of 1907, Sir Wilfrid Laurier, for Canada, had not supported the establishment of a new court in England, an Imperial Court of Appeal. He pointed out that although the appeal to the Privy Council had given "very great satisfaction," and the decisions were "eminently satisfactory," yet, he cautiously pointed out, not all of its decisions had been accepted and some people were not in accord with retaining the appeal. He later acknowledged the existence of a conflict of opinion in Canada. He conceded that there was a great deal of force in the view that a country ought to be able to interpret its own laws, but, as a part of the British Empire, which had Imperial interests, the appeal could be justified.68 At this time the arguments for and against the appeal to the Privy Council were clearly articulated and they were to remain constant over the years, although their individual potency would change as the years passed. The arguments in favour of retaining the appeal were three in number. First, there was the Empire. This was the strongest argument in terms of the frequency with which it was heard, and the length of time that it continued to be made. The Privy Council was called the "legal heart and head of the British Empire,"69 and "one of the strongest links which binds the Empire together."70 For those Canadians who favoured Imperial federation, the appeal was the keystone. For Canadians, other than those of French ethnic origin, there was at this time and for many years to come, no national

187 The Captive Court identity other than British. In a study of intellectual life in Canada in the Victorian period the author identified the prime force within Canadian society as the view that it was an extension of British society, which was the cultural context of which Canada was a part.71 Macdonald's words: "I am a British subject, and British born, and a British subject I hope to die,"72 expressed the facts of life for many. The acceptance of a national identity as British rather than as Canadian need not in itself have created colonial subservience. It could be the acceptance of a "nationality" greater than Canadian; a "nationality" that might pride itself in ruling a quarter of the earth's land mass, that was part of the greatest empire in the history of mankind, a political entity that had acquired a mystical quality. It was believed to be a civilizing force, which was the greatest secular instrument for good that the world had experienced. As it is possible today to think in terms of being a Canadian and also having loyalty to a province or territory, so too this same state of mind could have been operating within Canada in the past. For those people who were said to lack the capacity "to look beyond the borders of their own land," the term "Little Englandism" was applied.73 Canadians were, after all, British North Americans, as the constitution, the British North America Act, proclaimed.74 The second argument that was heard continually over the years was that of impartiality. The board was said to be "clear of all political, racial and religious feelings or animosities,"75 and the apparent indifference of the Privy Council allowed it to dispense justice untainted with any spirit of prejudice. This argument had a certain attraction to it if the judicial function was viewed as involving merely the mechanical application of the language of rules of law to facts, and of course that was the image that the legal profession projected to the public. However, this argument appeared to admit that Canadians were incapable of self-government. The strong feelings of race, religion, and party that had been argued in 1876 in favour of retaining some connection with the Privy Council were openly accepted by many Canadians as a justification for retaining the appeal. An added aspect of the impartiality argument was that the Privy Council had become identified as the protector of provincial rights; a role that the provinces doubted could be assumed by the federally created Supreme Court, with federally appointed judges. This suspicious view of the court could undoubtedly have had an effect on the judges such as creating timidity of action and forcing a low profile, which would in turn have tended to show the Privy Council in a brighter light. The third argument for retaining the appeal was expertise. Praise was heaped on the committee as the "best trained and most enlightened and learned court."76 The British were said to be better lawyers and judges than Canadians. The reason for the lack of sufficient expertise in Canada was attributed to the poor legal education that existed, and the selection of judges

188 The Sterile Years, 1903-1911 based on political factors. This argument, with its masochistic tone, was the first of the three to wane, and had virtually disappeared by the mid-1920s. Was it actually taken seriously, or was it a sign of desperation in arguing for retention of the appeal? In Canada there was no attempt to improve legal education in order to enhance the quality of the legal profession and the Supreme Court. That such a point would be made freely with no ensuing discussion on the topic of legal education itself indicated a disturbing attitude within the profession. Those opposed to the appeal based their argument on one theme nationalism and self-government. One highly interesting point was the criticism that the Privy Council lacked knowledge of Canadian society. This indicated that the opponents of the appeal openly recognized the influence of social factors, and hence must have had a completely different view of the judicial function than those who pushed the impartiality argument. It was the lack of knowledge of Canadian society that supposedly created the impartiality. The fluctuating personnel of the Judicial Committee was also often referred to, as was the considerable expense involved in taking an appeal to England. It had been a constant complaint since the appeal had been brought into being that the expense involved made it the court of the wealthy, whether of individuals or corporations. As the strength of the argument based on a local national pride grew, particularly during the 1930s, it replaced the pride in being part of the Empire, and indeed, it was often antagonistic to the Empire, in that Imperial interests were generally seen as local British interests. The arguments based on impartiality and on expertise became completely intolerable for many. The fact that the arguments for and against the appeal remained constant over the years meant that social conditions within Canada were constant and suggested that any change would have to be determined by external events that were transpiring, over which Canadians had no control. At this time two names appeared that were to be seen for many years in conjunction with the question of the appeal to the Privy Council - John S. Ewart and W.S. Deacon. In 1908, John S. Ewart published his essay, The Kingdom of Canada, in which he was highly critical of the appeal to the Privy Council. He advocated that Canada should be a sovereign nation, and characterized the appeal as "one of the few remaining badges of colonialism, of subordination, of lack of self-government."77 Ewart put the blame on Britain; he said that Canada was not permitted to settle her own lawsuits, and that in 1875 was compelled to forego that power.78 Either this was purely a political statement, or he was unaware that the problem had been, and was, internal. Since it was an internal problem, his attack had to fizzle out somewhere. The 1907 Imperial Conference had acknowledged the power of Canada to regulate the appeal.

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The second voice within the legal profession was that of W.S. Deacon. In a letter to the editor in the Canada Law Journal c& 1910, he was critical of a recent decision of the Privy Council.79 In Deacon's opinion, the decision had dealt with a pure question of fact and had reversed the trial judge and a majority of the Supreme Court. This was a case, in the writer's opinion, that should have been left to the Canadian courts. He made a particular point of the fact that the judges of the Privy Council probably lacked knowledge of the local social conditions, which was necessary for a proper adjudication of the problem.80 The law journal responded to Deacon in an editorial and raised the issue of the trial judge being perhaps unconsciously influenced by some personal or local feeling. It was also pointed out that the provincial appeal court had reversed the trial judge. However, the editorial then commented upon the fact that Canadian judges were selected for partisan political reasons, unlike the English situation when only the very best men were chosen. Under the surface of the debate over the appeal to the Privy Council, there was a conflict between the different models of the judicial function. THE SUPREME COURT became a court of the twentieth century when D&ird Girouard, the last of the sitting judges who had been appointed in the nineteenth century, died unexpectedly on 22 March 1911 following an accident the previous week. He was seventy-four years of age. The appointment of men in their forties continued with that of LouisPhilippe Brodeur, aged forty-nine, who was minister of the new Canadian naval service at the time. He had been speaker of the House of Commons from 1901-04, following which he had been a member of the government until his appointment to the court. The appointment was an obvious and dramatic return to one in which the political background dominated. Of interest is the fact that following Brodeur's appointment, the Supreme Court bench was the youngest that it has been to date, with an average age of fiftyfive years. However, in spite of this, a definite lull hung over the court. With Girouard's death the last glimmer of creativity that had existed at the time was lost. His approach, as contrasted with the other judges, was amply illustrated in a 1909 decision.81 The case concerned a libel action brought against a newspaper. Girouard dissented, but his reasoning showed unquestionably that he was capable of dealing with an issue without slavish adherence to previous cases, and that he considered the effect of social conditions which he perceived to exist at the time. He used the following language, indicative of the social context: "We are here brought face to face with a social and political problem, the liberty of the press ... [T]he press has woefully trespassed upon private rights of late years, since the publication of scandals and of sensational items has become

190 The Sterile Years, 1903-1911 the fashion ... May we not reach the conclusion, from all that has preceded, that the usages of our people have entirely changed on the subject of the press, and what one has a right to expect from it?"82 The approach of the other judges in the case, which had taken virtually a complete hold on the legal profession, was illustrated in the reasons of Lyman Duff, who rendered the judgment of the majority. All that he said was that he could find no case to support the argument presented, and therefore the argument failed. His reasoning consisted of not being able to find a case. Judicial thinking in our highest court was for many years to come to consist of looking for previous cases, with no independent thought being undertaken with respect to the particular problem involved: no cases, no thoughts. Sterility had set in.

15 The Sterile Years, 1911-1918

There is always a desire within a society for certainty in the law, to the extent that it is reasonably possible to achieve. Within the legal profession itself, there is also a desire to provide certainty. In the second decade of the twentieth century, this desire acquired a sense of urgency. The belief became overpowering that there had to be certainty in order that the public would have confidence in the law and in the legal profession. Since the law was to be found in the reasons for judgment rendered by the judges, there was distress within the profession when the state of disunity within the Supreme Court became pronounced during the tenure of Chief Justice Fitzpatrick. The judges failed to create any significant institutional decisions, and the number of individual judgments that were written reached new highs; although disunity had always been a problem, it now became more so, and the concern became translated into open and strong criticism.1 The Canada Law Journal summed up the problem: "In the Supreme Court dissent may almost be said to be rampant. Whilst the bench and Bar may have their harmless and playful vacation jokes about such matters, there is a serious side to the situation, in this, that the public are apt to lose confidence in the administration of justice when the uncertainty of law is thus unnecessarily forced upon their attention."2 It was clearly no longer a laughing matter. A consequence of the concern over disunity was that the single judgment rendered by the Judicial Committee of the Privy Council became very attractive and increased the sentiment of the profession for the retention of the appeal to England.3 While the legal profession ached as the decisions of the Supreme Court jarred more and more against the desire for certainty and the appeal to the Privy Council became more attractive as providing some measure of the longed-for certainty, yet public criticisms of the appeal continued. In a note that criticized newspapers for attacking the Privy Council, the Canada Law Journal tellingly used the title "Our Court of Final Appeal."4 The censure that appeared in some newspapers concerning the

192 The Sterile Years, 1911-1918 appeal was based on the idea that the appeal was an interference with selfgovernment.5 The Canadian Annual Review of 1912 had a special report on what was described as the tendency of the press to criticize the Judicial Committee.6 Apparently the newspapers had split along party lines - the Liberal papers favoured restricting or ending the appeal, while the Conservative press wanted to retain the "link of Empire." The chief point of criticism was said to be the perception of the Privy Council as the protector of vested rights against popular bodies and popular wishes (shades of the Toronto Street Railway case).7 The Financial Post suggested that the attacks on the appeal were part of the socialistic movement. The Supreme Court had virtually no part to play in the discussion about the appeal. Its role was to sit on the sidelines and wait. A slight exception to this occurred when John S. Ewart began a series of comments that were critical of the work of the Privy Council. His attack had shifted to questioning the competence of the board.8 For him, the decisions in the cases analysed were "flagrantly and indisputably wrong."9 He also directed attention to the Supreme Court and pointed out that it was then a good court, able, courteous, and painstaking, which, in his view, never made gross errors. It could be strengthened by adding three more judges, and importantly, if it were the final court of appeal for Canada, there would be an inclination for people to accept appointment to it who now frequently declined to do so. Furthermore, appointments would be made more carefully.10 The reality of this was something to be hoped. Concern with the Judicial Committee spilled over into the Supreme Court, but only in the work of John Idington, who had slipped into the role of a renegade. In a dissenting judgment in Montreal Tramsways Co. v. Lachine, Jacques-Cartier & Maisonneuve Railway Co. he made the following caustic statement with respect to two Privy Council decisions: "A later generation may laugh (when struggling with its results) ... but, meantime, we must accept it with becoming respect as a proper interpretation of the B.N.A. Act."" And, apparently piqued by something in a judgment on a motion for leave to appeal in October 1914, he said: "[A] grave misconception seems to prevail in many quarters, where it is assumed that this is a final court of appeal and its judgments finally decisions of any moot point duly presented to it. It might better be described as a legal sifting machine for sorting out claims on their road to the Judicial Committee of the Privy Council which is the only final court of appeal in our system."12 Such views were not generally considered appropriate, and in an address to the American Bar Association in Washington DC in 1914 on the topic of the Canadian constitution, Chief Justice Charles Fitzpatrick referred to the appeal to the Privy Council as a "gift."13 "In no part of the King's dominions has a greater service been rendered by the Judicial Committee than in Canada, particularly since Confederation," he affirmed.14 He went on to

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assert that lawyers and judges were of one opinion that "where constitutional questions are concerned, an appeal to the Judicial Committee must be retained."15 Such an admission of a lack of ability to self-govern the country made to a foreign audience meant that there were very strong forces at work that were more related to internal pressures than to interest in the welfare of the Empire. Fitzpatrick was from Quebec and his words may have been indicative of a reaction in Quebec that was caused by the calls in Ontario for the abolition of the appeal and for increased self-government. The tendency for the two halves of old Canada to react to each other was still there. The Privy Council had protected Quebec's interests by the creation of the federal state, and sentiments of self-government in English Canada were threatening. Any concern with the judicial function of a final court of appeal that existed under the surface did not show itself at this time, although an interesting item appeared in the Canadian Law Times in 1915.lfi The writer had been present at the December sittings of the Privy Council in 1915 and made the point that the board was a political body that reached political rather than judicial conclusions. He related the fact that a counsel had once remarked at Osgoode Hall (some time before) that the members of the Judicial Committee were good lawyers as well as active and shrewd politicians. This comment had been received with deep disapproval by those members of the profession present and had been viewed as perilously close to professional misconduct. A stronger remark, in the writer's opinion, had been made by a leading English counsel, who had said that the board was, of course, a political body and was influenced by many things besides the argument. It was recounted that everyone who had heard the English counsel's comment at lunch had agreed with it. It is puzzling that Canadians did not accept this, although it is still true today that many in the profession experience a considerable knee-jerk style of adverse reaction to the suggestion that judges are politicians. In the legal context all that is actually meant by the use of the word "politician" is the same as was meant by the word "statesman" at the turn of the century, namely, that a judge should attempt to solve the problem presented by all rational means, including concern with the social context. The cases are there to be used as guides. In Canada, however, there has always been a strong feeling that the legal system should be distanced from political decision making — a possible sign of insecurity. It should not be forgotten that in Canada there is a strong association between the word "political" and tjie word "partisan." In the lull that had settled over the Supreme Court there appeared to be no concern with the substance of the judicial process or with the role of the court as the final court of appeal in Canada. Only in a 1912 constitutional case was a comment found concerning the judicial function and how a judge should approach the interpretation of the constitution. Not surprisingly, it

194 The Sterile Years, 1911-1918

was made by Idington, and characteristically it appeared in one of his many dissenting opinions. [Tjhis is not an ordinary instrument. [The constitution] is but the outline of what was meant to found and form the government for, a great state. And ... we must in the interpretation of its terms and construction of it as a whole, view it if we can as statesmen should, even if we be not such. We must summon to our aid history and especially constitutional history, and some knowledge of the social structure if we would understand aright how to harmonize the various parts when apparently conflicting, and as here by the literal meaning of the terms ["marriage" and "solemnization of marriage"], even in actual conflict.17

The notion of a judicial statesman could still be found. The fact that such a statement existed, even in a judgment by Idington, indicated that such a thought was circulating within the profession. However the note in the Law Times about the political nature of the board would indicate that by the 1910s, such a notion had acquired an heretical element. In the period under review, due to the sterile approach of the judges, there were very, very few cases that merit detailed examination. In the main the judges were deciding who won and who lost in the litigation, and there was no contribution made to the law. There was a constitutional decision of 1914 that illustrated well the manner with which the various judges went about their task. In addition, since it involved racial discrimination, it provides us with a view of the state of humanity of the judges and the society of the time. QUONG WING v. THE KING, 1914 Quong Wing owned and operated a restaurant in the city of Moose Jaw, Saskatchewan. On 10 May 1912, he committed an offence under Saskatchewan law for which he was charged and subsequently convicted. On the day in question he had two white women in his employ as waitresses. The law that he had broken was An Act to Prevent the Employment of Female Labour in Certain Capacities. This short statute had only one main provision: No person shall employ in any capacity any white woman or girl or permit any white woman or girl to reside or lodge in or to work in or, save as a bona fide customer in a public apartment thereof only, to frequent any restaurant, laundry or other place of business or amusement owned, kept or managed by any Japanese, Chinaman or other Oriental person.18

Quong Wing was Chinese. The Act had come into force on 1 May 1912. The fact that the title of the Act only partially conveyed the true meaning of the law revealed an element

195 The Captive Court of self-consciousness that contained a seed of hope, but it was overwhelmed by a much more sinister implication. Quong Wing was convicted by the police magistrate in Moose Jaw, and on appeal to the Supreme Court of Saskatchewan the conviction was affirmed, 3-1. The chief justice, Haultain, dissented. One of the majority judges, Lament, would later go to the bench of the Supreme Court of Canada. The appeal was based on the argument that the legislation was unconstitutional and thus invalid. The constitutional challenge relied on the argument that the statute dealt with "trade and commerce" or "naturalization and aliens," both of which were areas of law that by the constitution came within exclusive dominion jurisdiction.19 Haultain concluded in his dissent that the legislation was "devised to deprive the Chinese, whether naturalized or not, of the ordinary rights of the inhabitants of Saskatchewan. The right to employ, the right to be employed, the right to own property and to own, manage or conduct any business without being subject to unequal and discriminatory restrictions, are just as truly ordinary rights of the inhabitants of Saskatchewan as the right to work."20 The "ordinary rights" of the inhabitants of Saskatchewan or any other province fell with the legislative control of the dominion under "naturalization and aliens," he maintained, with the consequence that the Saskatchewan statute was beyond the power of the province to enact and was thus invalid. The majority of the judges in the appeal court in Saskatchewan denied this content to the dominion power, holding that the legislative power over "naturalization and aliens" did not cover the consequences that resulted from naturalization or alienage, which they concluded fell within provincial legislative authority. As always, the judges had been faced with a choice, one that in this case was more clear-cut than usual, and would not have seemed out of order for the mechanical jurists on the bench. The choice was between two decisions of the Judicial Committee of the Privy Council. It can be noted that in both cases, the Supreme Court had been bypassed. In 1899, the Privy Council had decided Union Colliery Company of British Columbia Ltd. v. Bryaen,2] an appeal from the Supreme Court of British Columbia in which a section of the Coal Mines Regulation Act, 1890 of British Columbia had been challenged constitutionally. The section provided: "No Chinaman shall be employed in or allowed to be for the purpose of employment in any mine to which the Act applies, below ground."22 A shareholder of the Union Colliery Company brought an action against the company for a declaration that the company had no right to employ a Chinese in certain positions, and for an injunction restraining it from employing them. The British Columbia judges upheld the validity of the law that had been brought into question. The Privy Council reversed the courts of British Columbia and held that the legislation was invalid. The judgment of the Privy Council was written by Lord Watson, who noted that courts of law have no right whatever to

196 The Sterile Years, 1911-1918 inquire as to whether legislation is wise or not; the judges simply determine whether the legislature possesses the power to enact the law.23 Very often during this period when the judges were dealing with an obvious policy determination, one saw the declaration that the wisdom of the legislation was not a factor to be considered by the judiciary. If local self-government were a dominant factor, then this might very well be true for the Privy Council. The reasoning of Lord Watson for the Privy Council was that the word "aliens" that came within dominion authority in section 91 525 of the British North America Act referred to, and at least included, all aliens who had not yet been naturalized. The words "no Chinaman" as they were used in the Saskatchewan law were probably meant to denote, and they certainly included, every adult Chinese male who had not been naturalized. In Watson's opinion, the challenged law could be viewed as having two aspects: first, it could be regarded as merely establishing a regulation applicable to the working of underground coal mines, or second, it could be seen as being concerned with the rights, privileges, and disabilities of residents. The Privy Council selected the latter aspects as dominant, since the leading feature of the law was that it had no application except to Chinese who were aliens or naturalized subjects, and it established no rule or regulation except that these aliens or naturalized subjects should not work. Section 91 525 of the constitution invested the legislature of the dominion with exclusive authority in all matters that directly concerned the rights, privileges, and disabilities of the class of Chinese or a resident in the provinces of Canada. This case contained a clear glow of an idea about rights of citizens or subjects that could not be interfered with by provincial laws. The second case that provided the courts in Quong Wing with a choice was Cunningham v. Tomey Homma.u This 1902 appeal from the Supreme Court of British Columbia concerned the constitutional validity of a provision in the Provincial Elections Act that provided that "no Chinaman, Japanese, or Indian" could have his name placed in the register of voters for any electoral district or be entitled to vote at any election.25 The Privy Council upheld the validity of this law. Lord Watson, who had been the intellectual leader of the law lords had died in 1899.26 The judgment was rendered by Lord Chancellor Halsbury for a bench of five judges, only one of whom had sat on the Eryden appeal.27 The argument was rejected that section 91 525 of the constitution applied, and the provision of the constitution was narrowed to include only what constituted alienage or naturalization, and it was said not to cover the consequences that followed from either. The Privy Council made the declaration that the wisdom of excluding a particular race from the franchise was not a consideration.28 This time it seemed to have been true, as the province was being given scope for legislative action. It is interesting that the courts in British Columbia had followed the Bryeten case and had held the law to be invalid.

197 The Captive Court It was needed, of course, for the judges to do something with Bryden. The Privy Council emphasized the particular facts of the case, which was a means by which it could be painlessly overruled (it was restricted to its own facts and was left with no precedential value, unless the same material facts arose again). The Bryden case was taken to have concerned a law that prohibited the continued residence of the Chinese in British Columbia by prohibiting the earning of a living. While there was an obvious repudiation of the Bryden case, so spurious was the distinction between Bryden and Tomey Homma that it must have been open to Canadian judges to continue to select Bryden if the will to do so existed. For the Privy Council to consider that a prohibition against being employed below ground in mines had a greater social impact than being denied the right to vote was astonishing. The Privy Council must have had in mind a weightier policy, such as allowing the colony self-government and the provinces the right to regulate the vote. Reference was made to the suffrage right being subject to local laws in the United States. Perhaps in the eyes of the judges of 1902, Bryden had been wrong not to recognize the policy of self-government, but it could not be overruled because of the pressures of institutional integrity - the institution could not be seen to have erred. The consequence of allowing local democracy to govern in British Columbia had a wide-ranging effect. Failure to be on the voters' list meant that a person could not be elected to the legislature, nominated for municipal office, serve on a jury, or - since the provincial list was used for the dominion voters' list — vote in a federal election. In addition, in order to practice law or pharmacy a person had to be on the voters' list, and this was also required for certain licences, such as hand logging.29 When Quong Wing appealed the split decision of the Saskatchewan Supreme Court to the Supreme Court of Canada, the judges were faced with a choice between the two Privy Council decisions. Five judges heard the appeal, Chief Justice Fitzpatrick, Davies, Idington, Duff, and Anglin. Brodeur did not sit on the appeal. Four judges upheld the legislation, and only one judge, Mr Justice Idington, held that the law was invalid. It took only eleven days after the hearing for the judges to deliver their judgments.30 In an extremely brief judgment that bordered on nonsense, Chief Justice Fitzpatrick characterized the law as being the regulation of places of business in the interest of the morals of females. This, he said, was the same as a law regulating the age of employees or the accommodation of employees. His conclusion was that the provinces had legislative authority to prohibit the employment of women and girls in certain industries or by "a certain class of people" for their protection. Davies, with whom Anglin concurred, proceeded in his typical manner. He emphasized that as a judge he was not concerned with the policy behind the Act or its justice. The policy behind the law must actually have bothered

198 The Sterile Years, 1911-1918 him since he made the declaration twice.31 He maintained that his concern was solely whether the provincial legislatures had the power to enact the law. He pointed out the conflict between Union Colliery Co. v. Bryden and Tomey Homma, but, as he did earlier in Blackburn v. McCallum, he tried to have all the cases exist together. His comment was simply that Tomey Homma modified Union Colliery, and he was bound by the latter case. Although he recognized the obvious, namely, that there was a harsh racial prohibition, yet the power of the provinces within their jurisdiction was complete, and "there is no inherent right in any class of the community to employ women and children which the legislature may not modify or take away altogether."32 As had Fitzpatrick, he viewed the prime purpose behind the law as the protection of white women and girls, not discrimination against Chinese, although that was an effect of the law that he recognized. Duff, from British Columbia, the other judge in the majority of four, also rendered a judgment and engaged in an exercise of "legalise." In sum, his opinion was that he had to accept the Tomey Homma case. The challenged Saskatchewan law did not deal with nationality or aliens, but with race, and this, he concluded, was a provincial matter. In a judgment that was otherwise full of legalise, Duff was the only member of the majority to attempt to explain and justify the law, perhaps because he was from British Columbia. For him, the law was "doing nothing more than attempting to deal... with a strictly local situation." He went on: In the sparsely inhabited Western provinces of this country the presence of Orientals in comparatively considerable numbers not infrequently raises questions for public discussion and treatment, and, sometimes in an acute degree, which in more thickly populated countries would excite little or no general interest. One can without difficulty figure to one's self the considerations which may have influenced the Saskatchewan Legislature in dealing with the practice of white girls taking employment in such circumstances as are within the contemplation of this Act; considerations, for example, touching the interests of immigrant European woman, and considerations touching the effect of such a practice upon the local relations between Europeans and Orientals: to say nothing of considerations affecting the administration of the law.33 Acceptance of a social policy that was in favour of racial discrimination emerged from DufFs judgment. With such a solid position taken by the four majority judges, it could only be a renegade who would have dissented. Idington, the oldest judge on the bench at the time at seventy-four years of age, took a decided civil-liberty approach to the case. He had little difficulty concluding that the purpose of the law was to restrict the rights of the Chinese. In his opinion there existed certain rights - political rights - which were beyond the power of any province to restrict. These political rights were concerned with equality of freedom and

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opportunity and were part of being a British subject. For the purpose of the constitution, they could be implied under the jurisdiction over naturalization and aliens. With this viewpoint, it was hardly surprising that he preferred the BryeUn case, which he said, touched more directly the point involved in the Quong Wing case. The glow of civil liberties in Bryden had been given an effect by Idington. The division among the judges was obvious. Fitzpatrick appeared not to have thought about the problem. Davies and Anglin were prepared to assume that the legislature had justification for enacting the law. Duff openly justified the law based on policy concerns, which by his own standards should theoretically not have happened. Idington in his dissent was rejecting the social values that would justify the law, and he was applying social values that recognized certain political rights — rights inherent in the status of being a British subject. Public opinion was silent, since the case was not reported to the public in the newspapers. SOCIAL VALUES This case raises a very difficult problem with regard to the use of the social context by the judiciary. Throughout this study, it has been asserted that of the three contexts within which a judge functions — language, legal, and social — it is the social context (which flows through the other two) that is paramount. In Quong Wing, what was the appropriate social context? In the decisions of both the Saskatchewan appellate court (3—1) and the Supreme Court of Canada (4-1), and in the jurisprudence of the Privy Council, a choice was apparent. If both choices had legitimacy for the legal system, then it became a question of which one was more appropriate. The majority of judges in both the Saskatchewan court and the Supreme Court accepted the decision of the government as exemplified in the legislation as to what was in the public interest; the minority in both courts recognized certain individual rights based on a notion of equality which could not be trodden upon by governments in the name of the public interest. It must be pointed out that it was a provincial government and not the national government that was being restricted. Since by 1914, provincial autonomy had become a fact of life and the power over the day-to-day affairs of Canadians was subject to provincial jurisdiction, it meant that an effective civil-liberty content to the constitution might have been created. The choice for the judges ultimately became those social values that recognized notions of equality among people compared with those that accepted the considerations that "one can without difficulty figure to one's self ... which may have influenced the Saskatchewan Legislature." These would naturally be the racist attitudes towards Orientals that were predominantly illustrated in British Columbia.

200 The Sterile Years, 1911-1918 Which social values should have dominated the decision? Today we might expect that the values of equality and civil liberties would rule. What must make a difference at present is that public opinion can be generated through news coverage, which, combined with a willingness within the profession and the public to criticize the Supreme Court and the judiciary in general, would force judges to think twice (at least) about making a decision such as that in Quong Wing. In 1914 we do know that the judges had a choice. They were allowed to make it "in private" at that time. The decision in Quong Wing was rendered in February 1914, and in March of that same year the court received its first feature coverage in a popular magazine. A public image for the court was in the process of being created for the first time. Maclean '$ Magazine presented to the public "Canada's Supreme Court at Work."34 This descriptive article contained details of the times of hearings, the length of argument, and statistics, which meant that the writer had had access to the court. There was also fairly good brief descriptions of the judges. The author noted: "To a spectator the personalities of the six men who form the Court would probably have more interest than the arguments in a large majority of the cases that are tried before them."35 That important thought must have sent shivers throughout the profession. The writer described Fitzpatrick as the most outstanding figure on the bench — grave, dignified, decorous. Davies had a kindly and gentle face, white hair, and a grey beard, which gave him the appearance of wisdom tried by long experience. Duff was described as ruddy and boyish, full of energy, constantly bobbing about in his chair, hitching up his robe and following each case with an alert mind. Brodeur, the only French Canadian, was said to sit somewhat stolidly, rarely moving. He was large and stout, with keen eyes and a heavy bristling mustache. Idington was also stout, with glasses, and a heavy beard covered most of his face. He was given to occasional jokes and was considered to be the wit of the court. The sixth judge, Anglin, was said to be the best looking, neat in his dress, with carefully trimmed hair and moustache. He wore a serious expression, and projected the image of one who can see a good way through most cases. The writer then reviewed their educational and professional backgrounds. Three were said to have attained their position through the political arena — Fitzpatrick, Davies, and Brodeur; and three from provincial courts — Idington, Duff, and Anglin. In the article, the writer dealt with an "impression" that almost any case could go to the Privy Council, and he presented statistics to show that it was not true. In light of the constant complaint within the profession that there was no unity among the judges, it is interesting to note that mention was made of a formal discussion in the conference room every Saturday afternoon.36 It was certainly implied that an institutional response was attempted. The article concluded with praise for the judges for keeping abreast of their work.

201 The Captive Court In this period there had been a growing national sentiment in English Canada that had reached out and touched the legal system. French Canada had an existing national sentiment. In the wake of public criticisms of the Privy Council, there was public praise for the Supreme Court. In the Macleans article of 1914 there was not the slightest evidence that anything was wrong with the court or the individual judges, which stood in stark contrast to the encyclopaedia article of 1900.37 As a public relations exercise, the article must have been a success. It remained for the judges to build on the good image, and for the legal profession to assume the national spirit. On Tuesday, 4 August 1914, the world, and Canada with it, began to change. The Empire went to war, and nothing would be the same again. The Great War had begun. World War I was a total war, and all aspects of the economy and society were involved. With the outbreak of war, the War Measures Act was brought into being as "emergency" legislation that in time of war, invasion, or insurrection, could in effect create a dictatorship giving the prime minister and the cabinet greatly expanded powers.38 The principle behind the creation of the law was clearly stated in 1914 by CJ. Doherty the minister of justice of the day: "the necessities of the conditions in which we find ourselves are such that it is necessary for the people of Canada to place their confidence in us for the time being."39 Although the idea behind the War Measures Act was the creation of a dictatorship to deal with the total war, yet in Canada a constitution existed by which a challenge could be made to all law. In the highly charged times of the Great War, such a challenge was launched against the enormous power of the government under the War Measures Act, and the legal system and the Supreme Court of Canada were faced with this highly political question. IN RE GRAY,

1918

In the War Measures Act, 1914 it was provided: "The Governor-in-council shall have power to do and authorize such acts and things, and to make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection, deem necessary or advisable for the security, defence, peace, order and welfare of Canada." The section went on to provide: [F]or greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor-in-council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say: (a) censorship and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communications;

202 The Sterile Years, 1911-1918 (b) arrest, detention, exclusion and deportation; (c) control of the harbours, ports and territorial waters of Canada and the movements of vessels; (d) transportation by land, air, or water, and the control of the transport of persons and things; (e) trading, exportation, importation, production and manufacture; (/) appropriation, control, forfeiture and disposition of property and of the use thereof. (2) All orders and regulations made under this section shall have the force of law and shall be enforced in such manner and by such courts, officers and authorities as the Governor-In-Council may prescribe.40 In 1917, in order to reinforce the army in Europe, conscription was instituted with the enactment of the Military Service Act, 1917.41 Under the law a selective draft was created, with certain exemptions. The exemption involved in the Gray case was that of farm workers. Prior to 1917, the Militia Act had governed.42 It had provided for the selection by ballot of men for military service, but this was thought in 1917 to interfere with the requirement for men in industry and agriculture. As the need for more troops increased, the government, acting under the War Measures Act, created two orders-in-council in April 1918 that purported to cancel the exemptions from military service that had been granted under the Military Service Act. A resolution of both Houses of Parliament approved the orders-in-council. George Edwin Gray, who was involved in farming in Nipissing, Ontario, had been previously exempt from service. When he was selected, he refused to report for duty. Under the Military Service Act, levels of appeal had been established for anyone selected - a local tribunal, an appeal tribunal, and finally the Central Appeal judge. The local tribunal had denied his appeal, but this was reversed by the appeal tribunal, and the government instituted an appeal to the Central Appeal judge, who was Mr Justice Duff. While the appeal was pending, Gray was charged under military law and court-martialled for disobedience to a lawful order, namely his refusal to put on a uniform and to be inoculated. He brought an application for a writ of habeas corpus ad subjiciendum before Mr Justice Anglin in the Supreme Court. Because of the importance of the case and the need for speed, Anglin referred the issue to the court, which sat in special session in July 1918 to hear the case. The issue before the court was the validity of the orders-in-council of April 1918. If they were valid, then Gray was required to report and was subject to the punishment to be levied following the court martial; if they were invalid, then he was exempt from military service. The question of validity depended on whether the government could amend a statute of the Parliament of

203 The Captive Court

Canada, the Military Service Act, by an order-in-council made under the War Measures Act. The same question had been raised earlier before the Appellate Division of the Alberta Supreme Court in Re Lewis and by a 4—1 majority the orders-incouncil had been held to be invalid.43 This decision was rendered three weeks before the hearing in the Gray case. The majority in the Alberta court had been persuaded by the fact that the amendment of a statute by executive action without express statutory authority was unprecedented. The raising of troops had been covered by the Militia Act and was not mentioned in the War Measures Act; therefore, this created considerable doubt in the minds of the judges that it had ever been intended that a statute such as the Military Service Act could be amended under the authority of the War Measures Act. One judge of the Alberta court, Mr Justice Stuart, raised concerns about individual freedom, and stated: "So far as I have been able to discover it was never attempted in Great Britain, where bombs are dropping from zeppelins and the guns of war can be heard ... And the reason is, I think, that Great Britain is the home of constitutional liberty."44 The dissenting judge, Chief Justice Harvey, considered simply that the words used in the War Measures Act were ample to give the power and that urgency was involved. The full bench of six judges of the Supreme Court split 4-2 on the question of the validity of the orders. The majority upheld their validity. That two judges were prepared to step in and interfere with the supply of troops must be viewed as a very significant fact. The dissenting judges were John Idington and Louis-Philippe Brodeur, while those in the majority were Fitzpatrick, Davies, Duff, and Anglin. The case was of great public interest. The courtroom was crowded. A move was under way to use habeas corpus for the men who were being arrested under military law for failure to report, and at the end of April 1918 the government had issued another order-in-council suspending habeas corpus for those arrested. The press was filled with war news and there was the sense that a crucial period had been reached with the arrival of the American forces and the increase in allied victories. The end to the violence had to be in sight. The decision of the Supreme Court came swiftly the day after the hearing.45 Chief Justice Fitzpatrick proceeded in a manner that was highly instructive of the use of the triple context when giving words meaning. He first looked at the language of section 6 of the War Measures Act (the language context) and concluded that the words were broad enough in meaning to cover regulations for the raising of military forces. Next he went to the latter part of section 6(1), the enumeration of certain specific matters, which it was argued limited the general words (the legal context). He concluded that this was not so, due to the words "for greater certainty, but not so as to restrict the generality of the foregoing terms," and also for the reason that the items

204 The Sterile Years, 1911-1918 specified "were more or less remote from those which were connected with the war, and it was therefore thought expedient to declare explicitly that the legislative power of the government could go even thus far." The chief justice finally turned to the social context, about which discussion always surges. He discussed the argument that it could not have been intended to allow the executive to legislate inconsistently with any existing statute, nor could it have been intended to allow a right to be taken away in such a way.46 Fitzpatrick dealt with this point by falling back on the language used: "Taken literally, the language of the section contains unlimited powers." He saw no difficulty in allowing the "natural sense" of the words to dominate, in light of the fact that: "The enlightened men who framed that section, and the members of parliament who adopted it, were providing for a very great emergency."47 He later concluded his judgment with these words: "Our legislators were no doubt impressed in the hour of peril with the conviction that the safety of the country is the supreme law against which no other law can prevail. It is our clear duty to give effect to their patriotic intention."48 He was prepared to withdraw absolutely from questioning the "enlightened men" with their "patriotic intention." In such a case with clear political tones, it was inevitable that the social context would appear; it was educational that Fitzpatrick dealt with it so openly. When Duff came to consider the matter, he recoiled from the task, and fell back on an articulation of the mechanical view, asserting that it was the function of a judge to deal only with the language of a law. He went as far as recognizing the legal context, "the general object of the enactment," but rejected the social context and said in effect that he wanted nothing to do with policy, or social values. However, in the very next paragraph he dives headlong into policy: It ought not, moreover, to be forgotten in passing upon this argument for a narrow construction, that this Act of Parliament supervened upon a decision which was the most significant, indeed the most revolutionary decision in the history of the country, namely — than an Expeditionary Force of Canadian soldiers should take part in the war with Germany as actual combatants on the Continent of Europe; a decision which would entail, as everybody recognized, measures of the great magnitude; requiring as a condition of swift and effective action, that extraordinary powers be possessed by the executive.49 He seems to have felt compelled to state that he could not deal with socialcontext arguments when they would have limited the government, but accepted those that upheld government power, without appearing to notice any inconsistency in his thinking. Anglin, with whom Davies concurred, proceeded much as did Fitzpatrick and Duff. He stressed the generality of the language, of which he said: "More

205 The Captive Court comprehensive language it would be difficult to find."50 And, much as did Duff, he reacted against any suggestion that the judges should concern themselves with social policy, but he too dealt with social factors: "The exercise of legislative functions such as those here in question by the Governor-incouncil rather than by Parliament is no doubt something to be avoided as far as possible. But we are living in extra-ordinary times which necessitate the taking of extra-ordinary measures."51 It creates some surprise to see a dissent in the case, even though it was by Idington. Brodeur who was from Quebec and who concurred with Idington might have been expected to lean against conscription measures. Idington, in what was for him an unusually brief judgment, displayed astonishment at the question before him. Although he recognized the existence of total war, yet "a wholesale surrender of the will of the people to any autocratic power is exactly what we are fighting against," he asserted.52 He would not agree that the executive could amend a statute without express authority. It appeared that the majority of the judges were completely in tune with the "enlightened" and "patriotic" men who had drafted the law, and had issued the orders-in-council. There was, however, one additional point in the case that must be examined, and that was the existence of section 13(5) of the Military Service Act. This subsection provided: "nothing in this Act contained shall be held to limit or affect ... the powers of the Governor-incouncil under the War Measures Act of 1914." Duff was of the opinion that "a powerful argument might have been founded on the provisions of the Military Service Act of 1917, had it not been for section 13(5) of that Act." Anglin said that section 13(5) had confirmed his view that the scope of powers conferred by the War Measures Act was wide enough to allow the amendment of the Military Service Act. The subsection put beyond question the "purpose of parliament to enable the Governor-in-council, in cases of emergency, as defined, to exercise the powers granted by section 6 of the War Measures Act even to the extent of modifying or repealing, at least in part, the Military Service Act itself." Fitzpatrick appears to have paid no attention to section 13(5). If the "powerful argument" mentioned by Duff were to have succeeded, the case would have produced at least an equal division among the judges. Following the decision, the Toronto Globe recognized a prime political function for the judiciary in a nation in which legislation is subject to review by the legal system, namely that the court's decision served to justify the government's action — it served a function as an imprimatur.53 IN THE SECOND DECADE of the twentieth century there was no criticism of the court and its function, other than the expression of dismay at the inability of the judges to reach institutional decisions. What comment there was consisted in the main of brief information pieces that attempted to

206 The Sterile Years, 1911-1918

present a conclusion that could be drawn from a case. The purpose of such writing was to call the case to the attention of the profession. If there was any criticism -expressed, it dealt with the rule involved, and there was no suggestion that the court could have decided otherwise.54 A regular commentator was A.H.F. Lefroy, the editor of the Canadian Law Times, and a professor of law at the University of Toronto. Lefroy had written articles dealing with the judicial junction, and in particular the question of judge-made law, but these had appeared in the English law journal, The Law Quarterly Review, and his examples were all English cases.55 There was no appearance of such thoughts in the Canadian Law Times of which he was editor, or any other Canadian law journal, and there was no indication that his thoughts had any influence in Canada. Although there was no discussion of the process of decision making by the Supreme Court, yet it could be recognized that judges had an active part to play in the deciding of cases. In an article by Lefroy in 1915, he noted that the Privy Council had further defined the meaning of the trade and commerce power beyond the definition of it to be extracted from any previous decision.56 Just before the end of World War I, Charles Fitzpatrick resigned as chief justice to become lieutenant governor of Quebec.57 Serious complaints about the court had dried up under his administration, but so had the court's creativity, with the occasional exception perhaps of Idington's work. Disunity had been very pronounced, if measured by the number of individual judgments. Charles Fitzpatrick had been chief justice for twelve years and four months, second in length of tenure only to Chief Justice William Ritchie with thirteen years and eight months. But in that period he seems to have been more of a symbol than a working leader. Certainly his status as minister of justice prior to his appointment meant that he had been a shining symbol. His judgments were usually very brief and cursory in nature, which were characterized by stating conclusions rather than giving reasons. He had made no contribution to the law in Canada. With the appointment of Louis Davies, there was a return to the seniority principle for the selection of his successor as chief justice. Fitzpatrick's position on the bench as a judge from Quebec was taken by Pierre-Basile Mignault. The civil law of Quebec had acquired a champion.

16 The Sterile Years, 1918-1929

The violence of the Great War was over, but its effect would linger, perhaps forever. As a reaction to the violence with which the imperialist sentiment was identified, an anti-imperialist mood had developed. Thoughts of an Imperial federation were a casualty, and were replaced by notions of independent nationhood. The appeal to the Judicial Committee of the Privy Council was to become a target of the new surge of nationalist sentiment in English Canada. In The Canadian Annual Review for 1919 it was pointed out that there was a small body of determined opinion opposed to the appeal, which in the opinion of the Review had been aggressive, particularly so whenever questions of the British relationship arose. While generally supportive of the Privy Council with particular stress on the notion of its perceived impartiality, the Review did report that Mr Justice Archer Martin of the British Columbia Court of Appeal had spoken out in a case against the appeal in unmistakable language: "When our sons have shown that Canada is fit to cope with any nation in the world on the field of war, certainly the fathers of these sons who have been at the front ought to, at least, be able to cope with all competitors in the field of jurisprudence. Surely our intellectual development has not been arrested. We ought to be able to dispose of these matters."1 As Mr Justice Martin said, "we ought to be able to dispose of these matters," which was true, but would the captivity inherent in the court allow it to happen, even if the will to do so could be found within the legal profession? Discussion of the appeal was brought to the fore in 1920 when the attorney general of Ontario, William Edgar Raney, proposed to abolish any appeal from the Ontario courts to the Judicial Committee. The lawyer who had ventured into uncharted waters and had written against both the appeal and the captivity in 1903 now had his chance to do something about it.2 In the provincial election of October 1919, the sitting Conservative government was soundly defeated and in its place the United Farmers of

208 The Sterile Years, 1918-1929

Ontario were in power with E.G. Drury as premier. The United Farmers had been formed earlier to advance rural interests in the legislature and later to promote moral values and honesty in government. On the question of the appeal to the Privy Council, it was significant that a factor in the defeat of the Conservative government had been its all-out support of the Empire during the war and the anti-imperialist sentiment that had grown after the war.3 As a symbol of Empire the appeal came under fire. The bill promoted by Raney was based on the principle of self-government and of achieving national status.4 It was not surprising that the idea was rejected by the Canada Law Journal. This proposal of the "Farmer Government" was seen as part of a trend "to change the existing order of things," and to "sever perhaps the most important, and at all events the most notable and outstanding link which binds the great Dominion to the British Empire." There was also some concern that such a proposal was unconstitutional.5 The Law Society of Upper Canada protested against the bill and presented a petition to the legislature. A committee of the Ontario Bar Association recommended that no change in the appeal be made.6 The bill was withdrawn on 13 May 1920. Whatever nationalistic mood was flowing through English-Canadian society, the leadership of the legal profession in Ontario was having none of it. As part of the reaction against the proposed abolition of the appeal, references began to be made to the idea of the appeal being a resort to the sovereign, a right of every subject, an ancient right of the citizen to lay his grievance at the foot of the throne.7 The appeal was being clothed in the garb of myth. So emotional was the profession's reaction that, in an amazing show of pettiness, the Canadian Law Times took to spelling Raney's name "Rainey," and engaged in vitriolic descriptions of him and the "Farmers' Legislature of Ontario" in their attempt to alter the appeal.8 The British attitude to the murmurs against the appeal in Canada was pragmatic. Lord Chancellor Birkenhead responded publicly by saying that the existence of the appeal was up to Canadians, and as long as they appealed, they would be heard.9 Officially Quebec continued to favour the appeal and many in English Canada made a great deal of the fact. It was of specific interest that Louis Taschereau, premier of Quebec, asserted in a speech at the convocation of the University of Toronto at which he had received an honorary degree, that the general desire of Quebec was to maintain the appeal, especially in constitutional cases.10 Following a great deal of discussion about the appeal in 1921, Raney again introduced a bill to alter it in 1922. He had modified the proposal so as to provide that all appeals should go to the Supreme Court of Canada before leave to appeal to the Privy Council could be sought. In early March a

209 The Captive Court deputation from the Law Society of Upper Canada stated their opposition to the bill to the provincial government. In June, the bill was withdrawn.1' The legal profession opposed any change, even one that could have potentially elevated the Supreme Court of Canada in status and importance. At this time there was no serious discussion concerning the Supreme Court, and as had been the case for some time, any discussion of the court was tied to the concerns with regard to the appeal to England. Not only was the Supreme Court liable to be ignored, as indicated by the actions of the Law Society of Upper Canada in attacking Raney's 1922 bill, but it could also be sacrificed. Sir C. Hibbert Tupper, son of Sir Charles Tupper, prime minister of Canada in 1896, and himself an ex-Conservative member of Parliament and minister of justice, wrote an article intended for a world audience and affirmed: "Since the Supreme Court of Canada was established there has been a gradual weakening of the Bench. Appointments have been made for purely political reasons, and this tribunal has lost the confidence of the different Provincial Bars." He added: "The value to Canadians of the Supreme Court of Canada has steadily declined, while the value of the Committee has accordingly increased."12 The national pride needed for the success of the Supreme Court with independent thought was not evident. There were, however, some rumblings within the profession against the appeal. At a meeting of the Ontario Bar Association in Toronto on 16 March 1922, the dean of Dalhousie Law School, D.A. MacRae, spoke in favour of the end of the appeal, and surprisingly Frank Anglin of the Supreme Court supported him publicly. Anglin was reported as saying that if the Supreme Court did not have the confidence of the people of Canada, then changes should be made in its personnel. "[I]f it was the Supreme Court in name," he said, "it should be the Supreme Court in fact."13 Now that these voices had been raised within the profession, voices from the most famous of Canadian legal educational institutions as well as from the Supreme Court of Canada itself, the mainstream of the profession was driven to take extreme positions in arguing in favour of the retention of the appeal. In August 1922 at the annual meeting of the Canadian Bar Association, the Committee on the Administration of Justice reported that a majority of the committee favoured retention of the appeal. In the report appeared the most self-effacing statement that could ever have been made with regard to the appeal: They consider that the Judicial Committee has rendered long and valuable services to the Canadian public and to the legal profession by furnishing a tribunal composed of judges of greater learning, more varied experience and wider vision than can be hoped for under present conditions in Canada. They see a great advantage resulting from the existence of such a final Court of Appeal in which there is more freedom from political, racial or religious bias and from local prepossessions.14

210 The Sterile Years, 1918-1929 The report, while not presented for adoption, was received warmly without criticism and was printed in the annual report for future discussion. The leadership and the bulk of the legal profession apparently lacked the will to create a Canadian jurisprudence, and the Supreme Court was an obvious loser. Frank Anglin, now chief justice of Canada, again entered the scene when he took issue with the rationalization of the infamous Russell case by Viscount Haldane in 1925, namely, that the state of drunkenness in Canada when the Temperance Act was passed in the nineteenth century had been so great as to amount to a disaster requiring emergency legislation.15 Anglin's response occurred in his judgment in The King v. Eastern Terminal Elevator Co.,16 in which he said that he felt compelled to take exception to Haldane's comment, and that there was nothing in the Russell case to indicate that the judges had the suggested view of Canadian society. He added: "I should be surprised if a body so well-informed as their Lordships had countenanced such an aspersion on the fair fame of Canada even though some hard-driven advocate had ventured to insinuate it in argument."'7 Regardless of the accuracy of the statements made by Anglin, they did propel him into his much sought-after limelight. The Canadian Bar Review congratulated him on his comment.18 As an interesting aside, the Eastern Terminal Elevator case was one of the very few major constitutional decisions for which the Privy Council declined to grant leave to appeal when it was sought. Perhaps the Privy Council was waiting for signs of national pride. While the chief justice of Canada was defending the fair name of Canada, coincidentally Edward Robert Cameron, the registrar of the Supreme Court, wrote an article entitled "Prerogative Right of Appeal." In it he reviewed the historical material and propounded the view that the provinces and the dominion had the legal authority to end the appeal. The article had a critical tone with respect to the board that tended to humanize it and to point out mistakes that might have been made. The judges who composed the committee in 1880 were described as "the weakest material to be found in that body during the last century."19 The article by the registrar was a fit with the tactic of attacking the Privy Council and trying to discredit it, so as to force an end to the appeal, rather than promoting any positive Canadian attributes that made the appeal no longer necessary. With Chief Justice Anglin publicly in favour of the abolition of the appeal, and openly critical of the board for its lack of knowledge of Canadian social conditions, aided by the registrar of the court, the Supreme Court had momentarily entered the fray. The effect seems to have been nil. Then came the Nadan case. In 1888, appeals to the Privy Council in criminal cases had been abolished, but in 1926 in Rex v. Nadan the Judicial Committee held that the legislation was invalid since it was beyond the authority of Canada to enact.20 The

211 The Captive Court board concluded that the powers given the dominion under the British North America Act were confined to action taken in the dominion and there was no authority to take away the privilege of each subject to invoke the royal prerogative of the King in Council to grant special leave to appeal. John E. Read of Dalhousie University was highly critical of the decision. He accused the Privy Council of having misunderstood a previous decision, and he described the conclusion reached by the board as "a humiliating survival of the obsolete colonial status and serious distraction from our modern Dominion autonomy."21 At the same time as the Empire was undergoing a metamorphosis into the Commonwealth, the decision of the Judicial Committee gave out sounds of colonialism.22 The case stirred the pot and kept the debate on the merits of the appeal going strong. At this time, the Privy Council also caused some estrangement in Quebec as well as the rest of Canada when it decided in favour of Newfoundland with respect to the Labrador boundary dispute.23 THE SELECTION OF Pierre-Basile Mignault in 1918 to fill the vacancy created by Fitzpatrick's resignation was as non-political an act as the selection of Brodeur in 1911 had savoured of large "P" politics. Mignault was then sixtyfour years of age and was highly respected as a jurist, with a nine-volume encyclopaedic work on the civil law of Quebec to his credit. He was a fellow of the Royal Society of Canada, and had occupied the chair of civil law at McGill University since 1914. He had no publicly known partisan political affiliation. Although he was a jurist of repute, he was cut of the same judicial cloth as Davies, Duff, Anglin, and of Henry Strong before them. He was a "rule-oriented," mechanical judge. In 1918-29, the period under review, there were extremely few memorable cases with the exception of one interesting constitutional case that was a taste of things to come. The judges were engaged in judicial review that previewed life in the remainder of the twentieth century, with government involvement in society, and in particular its economic life. IN RE BOARD OF COMMERCE ACT AND C O M B I N E S AND FAIR PRICES ACT, 1919, 1920 Following World War I, serious inflation occurred within the economy as people were eager to buy goods that had been denied them during the war years. There was pressure on the dominion government to act and in mid1919, legislation was introduced to provide for the control of prices, and the Board of Commerce was established to administer the scheme. The legislation had passed without any opposition.24 The creation of the Board of Commerce of Canada as a specialized "court" was not warmly received by the legal profession, who viewed it with

212 The Sterile Years, 1918-1929 great suspicion. It was seen to lack the procedural protections that had become ingrained in the regular courts, and with its considerable powers to call and examine witnesses and its summary procedure, it was even viewed as a danger, although the need for some body to administer the Combines and Fair Prices Act was not disputed.25 When a challenge was made to the constitutional validity of the law that established the board, it prepared a series of questions for the Supreme Court in which the constitutional issue was raised.26 The judges of the Supreme Court objected to the procedure adopted by the board and suggested that there had to be an actual case before the board out of which any questions posed had to arise. The board next adopted the device of adding a simple statement in the form of a memorandum that there was in fact an actual case, but after hearing argument the Supreme Court rejected both this procedure as well as the case. The board was forced to create an actual case in which the validity of an order prohibiting clothing retailers in Ottawa from selling clothing at certain prices was put in issue. The Supreme Court conducted a second hearing on 7 May 1920, and within a month a decision (perhaps it would be more correct to call it a nondecision) was reached. The Supreme Court split 3—3 on the issue of the validity of the legislation. Chief Justice Davies along with Anglin and Mignault found in favour of the validity of the law, while Brodeur, Idington, and Duff held that the legislation was invalid.27 Anglin rendered the judgment for the three judges who found in favour of the validity of the law. They were prepared to uphold the law based on the dominion legislative power to deal with criminal law as far as the penalties that were provided and the inquiries that were authorized.28 In their opinion, profiteering was a prevalent and insidious evil that existed throughout Canada, and the dominion was seen as the only effective government to deal with the problem. Anglin, Davies, and Mignault accepted that the price control legislation could be supported as falling within the dominion legislative power to make laws for the peace, order, and good government of Canada, since the profiteering had attained such dimensions as to affect the body politic of the country. In addition, the trade and commerce power could be used since the legislation could be seen as a law dealing with the general regulation of trade in necessaries of life throughout the dominion. Anglin, supported by Davies and Mignault, was engaged in a highly significant law-making exercise by expanding considerably the scope of the dominion trade and commerce power, and by giving meaning to the suggestion made by Lord Watson in 1896 that he could imagine dominion legislative power being created in a situation in which a matter, local in origin, had taken on dimensions to affect the entire nation. However, nothing in the judgment written by Anglin gave any signal that law making was under way, other than the result.

213 The Captive Court The three judges who held that the law was invalid each wrote judgments. Idington had little or no doubt that the law was invalid and suggested that it must have been enacted through an "oversight."29 He was obviously disturbed by it and the board's power, which he called "repugnant to the ideal of British law and justice."30 He was definitely concerned about socialism. If the dominion were allowed to legislate in this instance, he foresaw trouble ahead. He wrote: "Is there any sumptuary law or socialistic conception of organised society which would not be made to fall within the power of Parliament?"31 Duff considered that the dominion power found within the words "peace, order and good government" had to be restricted to matters that he described as being of unquestioned Canadian interest and importance. He was concerned with the interference with provincial power that would be created by allowing the dominion to easily take over an area of provincial jurisdiction. Nor was he prepared to allow the trade and commerce power to cover the regulations in question. Duff was certain in his mind that the dominion authority did not mean simply the uniformity of regulations on a national level. In an illuminating passage, Duff pointed out that the profit control measure enacted by the government was only one remedy for the current problem that could be taken, and there were others, he said: "a proposal that there should be a general restriction of credits, and that the business of money-lending should be regulated by a commission appointed by the Dominion Government with powers conferred by Parliament. Measures to increase production might conceivably be proposed and to that end nationalisation of certain industries and even compulsory allotment of labour."32 The reference to such things as nationalization and compulsory allotment of labour seemed to be an attempt to parade the horrors of state control of the economy. It had been slightly less than a year since the Winnipeg general strike (born of inflation, unemployment, and labour unrest) had been brought to an end.33 The fact that similar legislation had been passed in England,34 which was mentioned in the case, did not seem to have influenced Duff or Idington, with their concern over socialism. Brodeur, the third judge who condemned the legislation, was prepared to do so without any hint of emotional commitment. In a relatively brief judgment, he accepted that it was clear that, based on the constitutional law as it then existed, the price control legislation was beyond the constitutional power of the dominion Parliament. The position taken by Brodeur throws a spotlight on the law making of Anglin, Davies, and Mignault. On the appeal to the Judicial Committee, the judgment of the board was rendered by Haldane, and the legislation was held to be invalid. Haldane pointed out that the Act had been passed in peace time and was not temporary. For him, it was only in highly exceptional circumstances that the dominion could legislate using the power over "peace, order, and good gov-

214 The Sterile Years, 1918-1929

ernment," as opposed to a specific head of power. The circumstances that were necessary for the dominion to have the constitutional authority to act would have to be abnormal, such as in time of war. In this instance, the war was over. The Privy Council was being protective of provincial jurisdiction. The legislation had been introduced by the Unionist (Conservative) government of Robert Borden, and there had been no opposition to the measures in the legislature, other than comments that the remedy for 'profiteering" would not work.35 Since there had been no dispute, the judgments of Duff and Idington with their overt expression of contrary social values raised a serious question. The impact of the decision was very short-lived. In 1920 serious inflation had been created by consumers who were propelled by cheap credit, rushing to buy goods that had been in short supply during the years of total war. Only two years later in 1922, the economy rapidly contracted, unemployment became common, and prices collapsed. Agriculture was the activity most seriously hurt, while the Maritimes and the prairies were the regions hardest hit. There was no longer a need for the law. The Supreme Court judges in the Board of Commerce case had taken positions contrary to what the legal profession considered to be legitimate. Three judges engaged in extensive law making, although they did not openly acknowledge it; two judges adopted an activist stance and drew openly on social values to destroy the legislation. As a result the case should have affected the legal profession's credibility when it disavowed any task other than a mechanical one. However, since there were no critics of the system, the case passed away, and for the legal profession and the public it was as if the conduct had never really happened. As momentum was building in favour of abolition of the appeal in the Privy Council, in keeping with the English-Canadian idea of independent nationhood, it seems clear that the Supreme Court was not going to help itself reach the exalted status of the final court of appeal. It continued to act as a group of individuals rather than an institution, and as individuals without any apparent commitment to a view of the judicial function, or the role of a final court of appeal. IN EARLY OCTOBER 1923, Brodeur followed in the footsteps of Sir Charles Fitzpatrick and left the court to become lieutenant governor of Quebec.36 Brodeur's appointment to the court had stood in stark contrast to that of Mignault, and so too did the selection of Albert Malouin to replace Brodeur. He was almost sixty-seven years of age. This was a return to the practice of appointing older judges, which was probably a sign that there was some difficulty in recruiting people. Malouin was an ex-Liberal member of Parliament who had been a member of the Quebec Superior Court for nineteen years. He appeared to have nothing going for him other than a willingness to serve, and that soon disappeared when he resigned within the year. He has gone

215 The Captive Court down in history as the judge who, to date, served the shortest period of time on the court - seven and a half months. On 1 May 1924 Chief Justice Louis Davies died. He was almost seventynine, and had been in failing health for some time. With the appointment of his successor as chief justice of Canada there was a departure from seniority, but unlike the appointment of Fitzpatrick, who as minister of justice had come from outside the court with impeccable credentials, the appointment in 1924 came from within and two judges were passed over. Frank Anglin, third in seniority, was selected. The senior judge was John Idington, who at almost eighty-four years of age, would not likely have felt that there had been any imputation on his ability by being passed over. The second judge was Lyman Duff and Anglin's selection had to be seen as a definite rebuff to him. Duffs future career might have been viewed with some scepticism at this point. Duffs failure to be selected must have struck him with devastating force. Apparently he had considered himself as a possible candidate for the chief justiceship following Fitzpatrick's resignation in 1918. Although it does not seem possible that he would have been named in 1918, yet the ConservativeUnionist government of Robert Borden must have thought that it owed him something since he was recommended for membership in the Imperial Privy Council at that time. He thus became the first and only puisne judge to be so named, which occurred on the same day that Davies was named chief justice.37 It was true that Duff had been more in the public eye than any judge before him. Saturday Night had published a number of articles about him in 1916, including one about the Royal Commission concerning the Shell Committee in which Duff received very favourable publicity, and was described as "the live wire of the Canadian Judiciary." Another story concerned the possibility that Duff would become prime minister.38 However, based on his judicial work, there was nothing to single him out from the other judges. The meteoric rise of Lyman Duff had stalled because of alcohol. In 1924 Mackenzie King recoiled at the evidence of Duffs drunkenness - "sprees for weeks at a time." Duff was said to have been intoxicated at the opening of Parliament and at Davies' funeral. In addition there was some question in King's mind about Duffs loyalty as a Liberal, which is interesting as it raises the question as to what King thought about the concept of judicial independence and the issue of party loyalty. King wanted to make another direct appointment with Eugene Lafleur.39 Lafleur had been born in Quebec in 1856 of a Swiss background. He was a Protestant whose father had been a Baptist minister. He was a leading member of the bar and was very well respected, but he was sixty-eight years old and declined because of his age. In the end Anglin was appointed. Duffs biographer has suggested that the problem with alcohol was only a superficial reason for his being passed over as chief justice,40 and that Prime

216 The Sterile Years, 1918-1929 Minister Mackenzie King needed to keep Quebec votes and Duff would not have been well received in that province because of his wartime association with conscription as Central Appeal Judge. Certainly Duffs high wartime profile had been associated with the Conservative party, and did include the speculation that he might become prime minister. The Conservative name was an anathema in Quebec because of the conscription issue. In addition, this association would have soured Mackenzie King for partisan reasons. However, unless King's diary entries are completely discounted, the alcohol problem must rank as the foremost reason. Never before had the selection of a chief justice been a highly political issue, even with Fitzpatrick's direct appointment. Anglin's appointment and Duffs rejection created no public response or discussion from the legal profession. Anglin's appointment as chief justice took effect on 16 September 1924 at a time when the personnel of the court were in a state of flux. Malouin resigned the same day. In his short time on the bench, he had been inactive.41 Within the next few days, Edmund Leslie Newcombe joined the court, taking the position left open by the death of Louis Davies, and Thibaudeau Rinfret took Malouin's place. The composition of the court then looked like this: Frank Anglin, chief justice, Ontario, fifty-seven years of age, fifteen years on the bench; John Idington, Ontario, eighty-four years of age, nineteen years on the bench; Lyman Duff, British Columbia, fifty-seven, eighteen years on the bench; Pierre-Basile Mignault, Quebec, seventy, almost six years on the bench; Edmund Newcombe, Nova Scotia, sixty-five, just appointed; Thibaudeau Rinfret, Quebec, forty-five, just appointed. Newcombe, who was from Nova Scotia, had replaced Davies from Prince Edward Island, and a pattern was in place for one member from the Maritimes to be on the bench. Newcombe had replaced Sedgewick as deputy minister of justice, both having been selected by John Thompson, and now Newcombe had followed Sedgewick's career pattern. It was difficult, however, to see Newcombe as a representative of the Nova Scotia bar after over thirty years in Ottawa. Rinfret had only been a judge of the Quebec Superior Court for two years. On paper there were some disconcerting aspects with respect to the court at this time. Idington, eighty-four, was independent to a fault, and in his later years taken to fits of pique. Duff was the first judge who had been passed over for the position of chief justice, without extenuating circumstances being readily apparent, and he must have been hurting. Following his rejection, his drinking problem grew.42 Mignault, the noted Quebec jurist, was seventy. Newcombe had been a civil servant for over thirty years, and Rinfret had been a superior court judge for only two years. The one certainty was that the uneventful and sterile existence of the Court was to continue. The year 1927 saw a number of changes to the court. First, the number of judges was increased to seven from six,43 and second, mandatory retirement

217 The Captive Court was established to take effect at seventy-five years of age.44 This latter provision had the immediate effect of forcing the retirement of John Idington, who at eighty-six was the first judge to retire due to age.45 Idington is remembered as an individualist and a renegade. In early cases such as Quong Wing and Gray he had articulated a definite civil-liberty position, but in later years he became erratic and petty. In Board of Commerce he was reactive. In the Quebec cases in which the question of the approach to civil-law cases was raised, he launched into concerns with uniformity of law across the country, which was unthinking. In the end he can be remembered as creating the only sounds in the quiet, sterile years, but they had a discordant quality to them. With Idington's retirement and the creation of a seventh position on the bench, there were two openings on the bench to be filled by Mackenzie King's Liberal government of the time. The first new judge was John Henderson Lament of the Saskatchewan Court of Appeal. He was the first judge from the prairie region since Albert Killam from Manitoba had had his very brief stay on the court in the early part of the century. Lament was sixty-one years of age and had been on the Court of Appeal for nine years, previous to which he had been a trial judge of the Supreme Court of Saskatchewan for eleven years. He thus brought extensive judicial experience to the court. A Liberal, he had been the first attorney general of Saskatchewan when it was made a province in 1905. The other appointment was Robert R. Smith of Ontario. Like Lamont, Smith was a member of the provincial appeal court at the time of his appointment. He had sat on the appeal tribunal for nearly four years, and prior that that he had been very briefly in the High Court of Ontario. He was sixty-eight when appointed. Smith was from the city of Cornwall in eastern Ontario, where he had practised alone for a good part of his career. It is difficult to find fault with the appointment of provincial appellate court judges, and in the case of Smith, in particular, it seemed to have the only merit of being a very safe and uncontroversial appointment. THE EXISTENCE of the institution in this period was marked only by the passage of time. There was also no critical examinations of the court or its work in this period. Any case comments were brief summaries, highly descriptive and frequently anonymous. There were still the constant comments about a lack of consensus among the judges, but they were not severe.46 Murmurs could still be detected within the profession about avoiding public criticism so that the confidence and respect of the people could be maintained.47 All of this was a prelude to the most dramatic and informative case in the court's history with respect to the judicial function. No other case has demonstrated as clearly the performance of the judges and the issues involved in examining the question of the nature of the judicial process and the role of a final court of appeal.

17 "There are Statutes, and Statutes"

Without doubt the Persons case of 1928 is the best-known decision that has yet come out of the Supreme Court.1 In addition, it is the case that best illustrates the debate over the proper nature of the judicial function. Unfortunately for the Supreme Court of Canada, it is not a case that is remembered with affection. It still has to be lived down. The Canadian government created a reference case that asked the question whether a woman could legally be appointed to the Senate. Section 24 of the British North America Act, 1867, provided: "The Governor General shall from Time to Time, in the Queen's Name, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate." The specific question asked was: "Does the word 'Persons' in section 24 of the British North America Act, 1867, include female persons?" From the wording of the question one can see the assumption that females were excluded. The case was part of the women's rights movement. In 1918 all women had gained the right to vote in a federal election,2 and Agnes Macphail, a member of the Progressive party, had been elected in 1921 as the first female member of Parliament. The Progressive party was affiliated with the United Farmers of Ontario, of which she was also a member.3 She later sat as a member of the Co-operative Commonwealth Federation (CCF). Membership in the Senate was by appointment of the dominion government, and although requests for the appointment of a woman had been made since shortly after the right to vote had been achieved, no woman had been appointed by the late 1920s. A woman who had been suggested was Emily Murphy. She had been born in 1868, and was a writer of repute, using the pen name "Janey Canuck." She was involved in many women's rights groups. In 1916 Murphy had achieved notoriety by being appointed a police magistrate for Edmonton, the first female police magistrate in the Empire. On the first day that she sat as a magistrate, her authority to hold the position was challenged by a lawyer, who argued that women were not "persons" under the constitution.

219 The Captive Court When in 1921 Arthur Meighen's Conservative government was met with requests that a woman be appointed to the Senate, the position taken was that women were barred from appointment by the language of the constitution.4 However, when in 1922 a senator from Alberta died, Murphy made a request to Ottawa to be appointed but what happened was that the prime minister at that time, Mackenzie King, gave his promise to support women for appointment to the Senate. Murphy decided that further action was needed. The story is recounted that one of her brothers, William Ferguson, who was then a judge of the Ontario Supreme Court, advised her that any five citizens could petition the federal government requesting that a reference be directed to the Supreme Court.5 Such a procedure has never been described in any other context, and hardly seems possible. It had never been tried before, nor since, as far as is known. Nevertheless a petition was drawn up in 1927 with the names of Emily Murphy, Nellie McClung, Louise McKinney, Irene Parlby, and Henrietta Muir Edwards. Nellie McClung was a well-known writer, and advocate of women's rights, as well as an active member of the Women's Christian Temperance Union (WCTU), and a former Liberal member of the Alberta legislature, elected in 1921. Louise McKinney was one of the first female members of a legislature in Canada, having been elected to the Alberta legislature in 1917 as a member of the Non-Partisan League on a promise of prohibition. She was a supporter of women's rights and a member of the WCTU. She sat until 1921. Irene Parlby was a long-time supporter of the United Farmers of Alberta, and a member of the provincial legislature, and a minister without portfolio in the United Farmers government of Alberta. Henrietta Muir Edwards was a symbolic petitioner; she had been an early campaigner for women's rights, and was seventy-eight years of age in 1927. On 19 October 1927, shortly after the petition had been sent, the reference was directed to the Supreme Court of Canada. The process that had been adopted of the petition and the subsequent directing of the reference gave the appearance of the government responding favourably to the claim for increased women's rights. One wonders if in fact the idea of the petition had not come from the government of Mackenzie King. The reference was heard on 14 March 1928 by a panel of five of the seven judges — Chief Justice Anglin, Duff, Mignault, Lamont, and Smith. Rinfret and Newcombe were absent. The federal government had sent notice of the case to all the provincial governments, but only Quebec and Alberta were represented. The United Farmers government of Alberta supported the petitioners, while both Quebec under the Liberal premiership of Louis-Alexandre Taschereau and the dominion government were opposed. The costs of the litigation were paid by Ottawa. The Supreme Court of Canada decided against the petitioners and held that women could not legally be appointed to the Senate under the existing constitution. The chief justice, Anglin, rendered a judgment with which three

220 "There are Statutes, and Statutes" judges concurred, Mignault, Lamont, and Smith. Mignault also added a short judgment of his own. Notably Anglin began with a disclaimer of the input of values. He was not, he said, concerned with the wisdom of the law that he was about to propound; whether women should or should not be members of the Senate was a political matter and the judges were only concerned with the language of the constitution.6 The proposition that he, or anyone, could give meaning to words without considering the social merits of the result, or that it could be done without social values coming into play, is astonishing. Anglin tried to give effect to the neutrality that he had proclaimed by employing a rule that directed that the words of the Act should be given the meaning they had as of 1867, the time when the law was enacted. This was a complete retreat from judicial creativity. There was no doubt that women had not been viewed as eligible for appointment to the Senate in 1867. The result was that the case was over, and the question had in effect been passed on to the government for it to secure a constitutional amendment if it desired. Anglin stated that the rule that he used was the same for all statutes and cited as an authority for this proposition an 1887 decision of the Privy Council.7 The Privy Council had said that the constitution, the British North America Act, 1867, was to be construed by the same rules as were used for other statutes. For the members of the Privy Council this was an entirely reasonable proposition, since the constitution was a statute of the British Parliament, with the same status as other pieces of legislation in their eyes. For Canadians it might have been a different matter. There are statutes, and statutes. Although Anglin referred to an authority for the proposition that the constitution was to be subject to the same rules of interpretation as any other statute, yet none was offered for the rule that in effect petrified the constitutional law in the shape of 1867 values. As a result, his judgment disintegrated. The citation of authority is the essential aspect of a "mechanical jurisprudence." The reason why he cited no authority was that the rule had not existed as he used it, nor has it existed as such since the Persons case. In essence, he was creating the rule that the language of the constitution should be given the meaning that it would have had in 1867. The proper approach is to say that the law should be considered as always speaking, and it is thus not petrified in meaning as of a particular date. The rule that he used has meaning only when considering obsolete statutes that were never meant to apply to current conditions, and is the closest in English law to the notion of desuetude that exists in Scottish law - the lapsing of the authority of a statute that has outlived the reason for its existence, and has ceased to be used although it still exists on the books.8 With this rule he had put an end to the case of the petitioners, but he was apparently not satisfied, and he added further reasons for judgment which

221 The Captive Court also collapsed. He quoted a passage from a 1560 case (perhaps to give the appearance of great authority due to age), in which it was stated that judges have given meanings to statutory provisions that appeared contradictory to the natural meanings of the words used.9 This, Anglin pointed out, was due to the finding of the intent of the legislature. To make the point that it was the intent of the legislature that the judges were concerned with and not the ordinary meaning of words, he again used a quote from the sixteenth-century case in which it was said that judges should determine the intention behind a law "sometimes by considering the cause and Necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign Circumstances." The quotation went on to state that the judges take the purpose or intent of a law to be "according to the Necessity of the Matter, and according to that which is consonant with Reason and good Discretion."10 A problem was that the emphasis on intent over the plain meaning of words contradicted the approach that had been taken by a majority of the judges of the Supreme Court since its creation." His use of the quotation also contradicted his own approach of employing great judicial restraint by using the meaning of the words as of 1867 and his declining to think about current social values. The quotation indicated a wide judicial discretion in the sense of an ability and need to make choices. In a judgment allegedly disavowing judicial activism and creativity, it was decidedly strange that the authority cited stated clearly a need for activism and creativity. The quotation emphasized consideration of the three contexts of language, law, and societal values, as well as of thinking. The date of the case, 1560, was of course the clue to understanding the attitudes expressed in it - it had been decided in the golden age of the common law, and the judicial creation of the law. Anglin seemed to be flailing about in an attempt to rationalize his conclusion that women were not eligible for appointment to the Senate under the existing constitution. He actually proceeded to introduce more rules to substantiate his conclusion. One stated that where a statute is susceptible of more than one meaning, in the absence of express language an intention to abrogate the ordinary rules of law is not to be imputed. At common law women were under a legal incapacity to hold public office, and therefore, he concluded that a decision that women could be appointed to the Senate would be "a striking constitutional departure from the common law."12 The use of the word "striking" signalled that Anglin saw the court as being asked to engage in a major exercise of law reform at the constitutional level, and he rejected that role completely. Another rule stated that the language of a statutory provision was to be construed in its ordinary and popular sense. This was contradictory to what he had previously proposed about the intention or purpose of a law being the governing factor, but it appeared innocuous enough as a rule, except that Anglin must have meant the ordinary and popular sense of the language as it was in 1867 rather than in 1928.

222 "There are Statutes, and Statutes" The final rule that he presented was, he asserted, of the highest authority, and conclusive against the petitioners. It was the law laid down in the English case of Chorlton v. Lings.13 This 1868 decision of the Court of Common Pleas in England had dealt with an argument that the giving of the vote to "every man" by legislation in 1867 included women; the court affirmed that women were not included since at the time they had a legal incapacity from voting at the election of members of Parliament. The acceptance of this case as conclusive legal authority would in itself be fatal to the petitioners' case. What is to be made of this judgment by Anglin for a majority of the judges? In perhaps the highest-profile case to be heard by the court to date, the judgment was unbelievably flawed. The first and last rule brought forward by Anglin would in themselves have determined the issue, but the first was not a rule, and the last did not necessarily apply. It appeared that Anglin was simply unable to cope intellectually with the issue and was throwing out reasons. It must, however, be pointed out that two other judges, Lament and Smith, agreed with him without any comment on their part. They were determined to maintain the status quo.14 Mignault, the eminent Quebec jurist, concurred generally with Anglin, but divorced himself from the spurious reasons of the chief justice, adding what he called a simplified set of reasons. He considered that the question before the court was whether the Canadian government had the power to summon women to the Senate. This question was answered by previous decisions that bound the court, and it was hopeless to contend against the authority of those cases, he maintained. It was principally Chorlton v. Lings that he was thinking about. He added: "The grave constitutional change which is involved in the contention submitted on behalf of the petitioners is not to be brought about by inferences drawn from expressions of such doubtful import, but should rest upon an unequivocal statement of the intention of the Imperial Parliament, since that Parliament alone can change the provisions of the British North America Act in relation to the "qualified persons" who may be summoned to the Senate."15 As did Anglin, Mignault saw the case as involving a change in the law - "a grave constitutional change." Quebec was opposed to the petitioners and for the province, the question of the recognition of women's political rights would have been a "grave" change in the society. Mignault, as a judge, was not going to become involved. As he saw it, it was not part of his role as a judge. But by answering the question he had become involved, as had Anglin, Lament, and Smith, and they gave their imprimatur to the rule that a woman was incapable legally of being a member of the Senate. In passing it is interesting to note that Mignault departed from his usual practice of writing his judgments in French and in this case wrote in English. The province of Quebec was arguing against the petitioners and it would not be until 1940 that women would have the right to vote in a provincial election. It

223 The Captive Court would be 1962 before a woman would be elected to the legislature of Quebec. There was apparently no audience in Quebec that required Mignault to write in French. The fifth judge was Lyman Duff and he parted company completely from his colleagues. In an ingenious judgment, Duff escaped completely from having to take a stand on the issue. He pointed out that the general character and purpose of the British North America Act was to create a constitution similar in principle to that of the United Kingdom, which meant that the doctrine of parliamentary supremacy was accepted. The exceptions to this doctrine existed in the division of legislative powers and responsible government provisions in the act. Other than these exceptions, within their areas of legislative authority the provinces and Ottawa were free from control by the courts.16 Duff preferred to allow the federal legislature to determine the issue by focusing on the words "qualified persons," and leaving the legislature to determine the qualifications. He therefore rejected the view that in construing the Act there was a general presumption against the eligibility of women for public office. In his opinion, the dominion constitutional authority to create the required qualifications for membership in the Senate rested in the general words of section 91 — the power to make laws for the peace, order, and good government of Canada. This was the last answer that Mackenzie King would have wanted from the Supreme Court. If Duff had wanted revenge for his failure to be appointed chief justice in 1924, he had achieved a significant amount. Duff not only departed from the other judges in content, but also in style. He wrote in an essay style in which he dealt with reasoning rather than the use of authority, and presented a general discussion of his position and why he thought it appropriate. Perhaps this ingenious judgment was as close to open law reform as could be carried out in the Supreme Court at the time. What it consisted of was that the judge opted out completely, passed the problem back to the government, and thereby put pressure on it to do something; they were unable to apparently deal directly with the issue. If Mackenzie King had thought that he had avoided the problem by passing it over to the judges, Duff had sent it flying back. The government in Ottawa responded immediately to the Supreme Court's decision by announcing that an amendment to the constitution would be sought to allow women to be senators. Rather than wait for the amendment to be sought, which had an air of endlessness to it, an appeal was launched by the petitioners to the Judicial Committee of the Privy Council. Leave to appeal was granted in November 1928, and the appeal was heard in late July 1929. It was heard by Lord Chancellor Sankey, Lords Darling, Merrivale, and Tomlin, and Sir Lancelot Sanderson. Only the dominion and the petitioners presented arguments;

224 "There are Statutes, and Statutes" Quebec and Alberta did not appear. The decision of the Privy Council was released on 18 October 1929, almost two years to the day after the reference had been created. Since the Privy Council preferred a case to name an appellant and a respondent, rather than the style of heading used in Canada for a reference, In the Matter of a reference as to the Meaning of the Word "Persons" in Section 24 of the British North America Act, 1867, the name of the veteran fighter for women's rights, Henrietta Muir Edwards, was chosen as the appellant; hence the case in the Privy Council was known as Edwards v. Attorney General for Canada.17 It was extremely doubtful that many, if any, people had anticipated what the judgment was to say. The decision of the Supreme Court was reversed, and the language of Lord Sankey, writing the reasons for the judgment of the board, was completely unexpected and unprecedented. He began by stating a social truism, namely that the treatment of women in society depended on the times. This was something that appeared to be absent from judgments in general, and was completely missing in the judgment of the majority of the Supreme Court in the Persons case. It was true that by the common law women could not exercise public functions, but as Sankey pointedly commented: "The exclusion of women from all public offices is a relic of days more barbarous than ours, but it must be remembered that the necessity of the times often forced on man customs which in later years were not necessary."18 He reviewed the authorities, including Viscountess Rhondda's Claim, the interesting decision of the House of Lords given only eight years earlier in which it was held that a woman was not entitled to sit in the House of Lords; the argument in favour of allowing Viscountess Rhondda to sit in the upper house had been based on the Sex Disqualification (Removal) Act, 1919 which had provided that a person should not be disqualified by sex or marriage from the exercise of any public function.19 The House of Lords decided that she could not sit in the House because such a momentous change could not have been intended by the legislation. The standard reaction to change was again presented. In his judgment, Sankey surveyed Canadian history and after noting that the word "person" by itself was ambiguous and in its original meaning would include women, he concluded that the past practice with respect to women's rights should not be conclusive of the present — times might have changed. The previous English cases, including Chorlton v. Lings (which had been relied upon by a majority of the Supreme Court judges) and Viscountess Rhondda's Claim, were not to be applied without question since they had been decided in different circumstances and in different times. This was revolutionary for the Canadian legal system: it represented a rejection of mechanical jurisprudence in that precedents had to be reviewed and not mechanically applied. It was also a rejection of the unquestioned authority and slavish imitation of English cases in Canada that the legal profession had been able to take shelter behind.

225 The Captive Court Canada was said to be in a process of evolution, and the British North America Act was likened to a "living tree"; it was pointed out that it was in fact a constitution. In language that has reverberated throughout the common-law world ever since, he wrote: The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. "Like all written constitutions it has been subject to development through usage and convention" ... Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs. The Privy Council, indeed, has laid down that Courts of law must treat the provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes. But there are statutes and statutes.20 Canadians were being told to do their own thing. The constitution was to be treated as a living tree, not as a petrified one. Sankey completely repudiated Anglin's judgment, and turned the 1560 case that Anglin had quoted from against him when he pointed out (as was clear from the quotations) that as far back as that case it had been laid down that extraneous circumstances may be admitted as an aid to the interpretation of a statute.21 A point upon which Sankey has been criticized was his avoidance of a direct discussion of giving effect to rights by saying that the issue in the case was the power of the executive and not the rights of women.22 This can be seen as a political statement made to calm those who wished to maintain the status quo with respect to the role of women within the society, and who paid more attention to words than the reality of what the Privy Council had decided. However, it also shows Sankey's skill as a jurist. The law was contained in section 24 of the constitution. The language context - namely, the word "persons" — would ordinarily have included women. The Supreme Court had departed from the "plain meaning." The legal context was crucial. Since the provision had never been interpreted, the only legal context consisted of the other provisions of the British North America Act, which Sankey surveyed at the end of his judgment, and demonstrated that the decision he had reached was within the bounds of the language of the other sections of the Act, and was thus justifiable as within the existing legal context. Chorlton v. Lings was irrevelant since it dealt with another statute, another law. If he had proceeded on the basis that the issue was the general one of the rights of women, as opposed to the narrow one of the meaning of section 24 (which it was), then Chorlton v. Lings would have become relevant and he would have

226 "There are Statutes, and Statutes" had to confront directly the social values in the case. He demonstrated that he could forge a creative decision without doing so. Social values had conditioned his decision, which in the end consisted simply of the interpretation of law. The Supreme Court of Canada had made a mistake, but unlike the mistake made by the Privy Council in the Manitoba Schools case23 it seemed that the Supreme Court judges were doomed to continue along the same path. The ability of the Judges, as exemplified by Anglin's judgment for a majority of the court, should have raised serious questions. The years of sterile, mechanical thinking had produced a judgment that was hopelessly flawed. Creative thought was simply not in evidence, other than in DufFs judgment, and there it was creative only in the interesting way in which he avoided dealing with the issue. The court was probably saved by the fact that Anglin's judgment would remain unknown. Other than for the conclusion that women were not persons for the purpose of section 24 of the British North America Act, which attracted considerable criticism from advocates of women's rights, the reasons for that conclusion would be ignored. The profession lacked a solid academic component that might have provided criticism of the legal system; any critics within the profession who did exist would not voice their criticisms and comments publicly. It was not considered appropriate, since there was still a widely held belief within the profession that criticism undermined confidence in the legal system, although by 1928 such a view was declining somewhat. The only article in a legal journal that dealt with the case began with the comment: "Under ordinary circumstances, a criticism of a judgment of the Judicial Committee of the Privy Council is inadvisable."24 The public's concern was primarily with the answer that was reached, and not with the reasoning behind it. There would be little, if any, inclination to read in depth what Anglin had said, and of course the decision of the Privy Council would have rendered such an exercise a complete waste of time in the opinion of the vast majority of those interested, since the Supreme Court had been reversed. Certainly, the judgment of Lord Sankey had such an impact on the profession that its tendency was to drive Anglin's judgment completely from the scene. The absence of legal scholarship within Canada can be seen by the fact that only one article dealt with the dramatic case in the literature, and it was critical of the Privy Council." The author took the position that the Supreme Court of Canada was a court of law, while the Privy Council was a committee advising the sovereign, and as such it was not confined by the rules that limited the actions of a court of law.26 The author concluded: It must seem evident to one who carefully considers the judgment that it is not written in strict accordance with well understood legal principles, and can be explained

227 The Captive Court only by bearing in mind the proposition firstly outlined that there is the outstanding difference between the Supreme Court of Canada and the Privy Council that the one is a Court of law subject to all the restrictions of a Court of law and that the other has no limitations at all, is not bound to follow precedent nor to determine matters upon grounds of law alone but is entitled, if not obliged, to advise His Majesty on grounds of public policy and to take into account matters of political expediency.27 At the very end of the article the author deprecated the fact that "judicial legislation [had] altered the constitution of the Senate of Canada."28 There is no greater indictment of a court than to charge it with "judicial legislation." The point made early in the article that the Privy Council was a committee was omitted from the final part, quoted above, and for good reason — to push the point would be to emphasize form over substance. The Judicial Committee of the Privy Council was a court of law, and it behaved as a court. Even it said so.29 There had been, however, a brief comment in the Bar Review following the Supreme Court's decision, in which a lawyer had criticized the approach taken by a majority of the judges of the Supreme Court and had urged that the constitution in 1867 had been "endowed ... with capacity for expansion so that its principles might be adapted to new and developing conditions." It was said that "the public interests of the day should be of paramount importance in construing a national constitution if its objects are to be achieved."30 Although such a view was not the current stated position of the legal profession, it was happily not alone. In a review of E.R. Cameron's second volume of Privy Council cases dealing with the Canadian constitution,31 W.P.M. Kennedy of the University of Toronto went out of his way to deal with the Persons case, since Cameron had only just mentioned it; it had been decided outside of the time-frame of the book. Kennedy commented that the decision suggested the willingness of the Judicial Committee to deal with the constitution in an elastic manner, and to openly consider social forces when giving the words of the constitution meaning. With respect to the interpretation given the constitution by the Privy Council over the years before 1929 whereby provincial power had been increased and the Macdonaldian constitution long ago eliminated, Kennedy mused that perhaps it had actually been done for the best due to "the inevitable divergencies in our national life due to race, religion, geography and such like."32 The Canadian Bar Review itself proved to be unimpressed, and in 1930 noted that there had been a complimentary reference to the Canadian Bar Review article in the Law Quarterly Review, the legal journal of Cambridge University. It was pointed out by the English journal that in 1922 Haldane had said that a judge of the Privy Council had to be a "statesman," capable of dealing with changes for a "growing constitution." The decision of the

228 "There are Statutes, and Statutes" Privy Council in the Persons case was attributed to this statesmanlike outlook. The fact that the case was a reference was also noted, which meant that it was advisory only, and those criticisms of the reference system that existed could be brought into play against the decision. The reference to "statesman" that some years before had been used as complimentary of judges,33 was now used to mean that the person was acting as a politician, not a judge. In an unusual move, Anglin himself, responded to the judgment of the Privy Council in a later case. In 1930, shortly after the decision of the Privy Council, the Supreme Court was faced with an argument by counsel that the legal rule that appeared to apply in the case at hand was out of tune with present social values.34 Anglin's response, with which Lament concurred, was clear: The short answer to this contention is that the courts must await the action of the legislature, whose exclusive province it is to determine what should be the law. Whatever may occur elsewhere (1929, Canadian Bar Review, vol. VII, p. 617) it would seem to be the plan of this "Court of Law and equity" (R.S.C. (1927), c. 35, s. 3), to give effect to the intention of the legislature as expressed, not to make the law as they think it should be. Judicis est jus dicere, non dare?'' Duff also responded to the point, but in very brief terms. He said simply: "We have before us a dry question of law, and I do not think it incumbent upon me to express either approval or condemnation of the well known traditional attitude of the common law."36 In addition to the contexts of language, law, and society, this introduced the "professional" context, which added the traditions and values taught within the legal profession itself, and which conditioned the functioning of the legal system. Must we then condemn Sankey as a judge, and the Privy Council as a court? If we accept the above, the answer would be yes. A majority of the Supreme Court saw the problem as involving a major law reform, which they declined to undertake. But judges have always reformed the law through application. The rule of law in the Persons case was section 24 of the constitution. That was not changed. It had never been interpreted by a court, and there were therefore no direct precedents to be brought into question. The legal context posed no problem. The table was clean and onto that table the Privy Council put the values that were perceived to exist in the late 1920s in Canada. The Supreme Court applied the values that had existed in 1867, and which by its action continued to exist in 1928. Which was the more illegitimate decision? What was required was a creative and active involvement in the solution of the problem by the judges. As a matter of form the solution undertaken by the Privy Council had all the appearance of the application of law and not its creation through rule reform, which signalled that the Privy Council was operating within permissible limits of judicial creativity.

229 The Captive Court

Although there was some evidence that Sankey's judgment was welcomed within the profession, the pronounced response was that of the Bar Review article which had condemned it as "political," not "legal."37 This reaction naturally tells us a great deal about the legal profession and the perception of the judicial function. So determined was the judiciary to avoid all appearance of law making that the availability of change through application of the law was rejected in the case. However, the haunting thought remains that perhaps the application reform potential was not seen, or it was seen as part of the law itself and thus not as a legitimate activity for judges. The Supreme Court judges and the legal profession had rejected the display of creativity shown by the Privy Council so strongly that they were prepared to reject the Judicial Committee of the Privy Council as being a normal part of the judicial process in Canada. Following the case Cairine Wilson was appointed to the Senate in 1930 by the Liberal government of Mackenzie King. She was the daughter of a Liberal senator from Ontario, the wife of a former Liberal member of Parliament, a member of the women's committee that had worked for King during the election, and the first president of the National Federation of Liberal Women. She had not been a public supporter of women's rights.

18 The Civil Law of Quebec

Pierre-Basile Mignault sat on the bench of the Supreme Court of Canada for almost eleven years from 1918-29. He was born in the United States, at Worchester, Massachusetts, of a French-Canadian father, and a mother of Irish ancestry. As a child the language of his home was English. While still a young boy, his family moved to Montreal, where his father practised medicine. Following his graduation in law from McGill University in 1878, he had entered practice in Montreal, and over time through his writing and especially that of his nine-volume Traitt de droit civil, published from 1895 to 1916,' and his professorship at McGill University, he had established a solid reputation as a jurist of Quebec civil law. It was during his time on the court that serious questions were raised regarding the handling of the civil law of Quebec by the common-law judges and he quickly became a champion of what he termed the purity of Quebec law. Within a month of his appointment to the bench, he declared in a case: "I would deprecate, on a question under the Quebec law, relying upon a decision, even of the Privy Council, rendered according to the rules of the English law." He continued: "I am of the opinion that each system of law should be admitted according to its own rules and by reference to authorities or judgments which are binding on it alone."2 Louis-Philippe Brodeur, the other judge from Quebec on the court at the time, joined with him and was prepared to describe as "dangerous" any reference to foreign law when determining the law of Quebec.3 It is interesting to note the use of the word "danger" in this context - a strong word. Shortly after Mignault's appointment, two cases were decided that have since become reference points with regard to how the civil law of Quebec should be dealt with by the Supreme Court.4 These were the 1920 appeals of Desrosiers v. The King and Curley v. Latreille.

231 The Captive Court DESROSIERS v. THE KING, 1920 In Desrosiers v. the King, the plaintiff had sold hay to a person called McDonnell, not knowing at the time that he was acting as an agent for the dominion government. When McDonnell did not pay for the hay, Desrosiers sued him for the price. During the trial it was revealed that McDonnell had been an agent for the government. The litigation proceeded and Desrosiers received a judgment against McDonnell; when payment was still not forthcoming, Desrosiers sought to recover against the dominion government, and brought a petition of right against the Crown in right of Canada in the Exchequer Court. The petition was dismissed on the basis that since a judgment had been obtained against the agent, an action could no longer be brought against the principal. This decision was reversed by the Supreme Court in a split decision (4-1).5 There were no Quebec decisions directly on point. The judges accepted that there was no question that by the law of England the action would fail because judgement had been obtained against the agent. However, Anglin, Brodeur, and Mignault expressly rejected the use of English decisions in the case. Anglin was critical of the English rule. In a long judgment that contained many quotations from writers and judges, he was able to conclude that the rule in Quebec was different. He commented that the case afforded an excellent illustration of the danger of treating English decisions as authorities in Quebec cases, which did not depend upon doctrines derived from the English law.6 Unlike Anglin, Brodeur adopted a much more simple approach. He emphasized the relevant provisions of the Quebec Civil Code, and concluded that they were based on the writing of the French jurist Pothier; from the language of the Code and the work of Pothier he was able to arrive at the result that Desrosiers could bring his action against the government. Mignault's reasons for judgment were to the same effect, but he took the opportunity to advocate the separateness of the civil- and common-law systems, pointing out that the civil law constituted a complete system of law by itself; there was no need to resort to the law of England for the solution of any problem. To emphasize this point, Mignault asserted that but for the language of the provisions of the Code, he would have accepted the rule of English law, because of the very strong reasoning behind it. The key provision of the code was article 1716: "A mandatory [agent] who acts in his own name is liable to the third party with whom he contracts, without prejudice to the rights of the latter against the mandator [principal] also." Clearly the language was capable of being interpreted to fit either the rule of English or civil law if only a linguistic analysis was undertaken.

232 The Civil Law of Quebec

Duff rendered no reasons and simply voted with the majority in favour of allowing the appeal. Idington dissented. Since there was no settled Quebec law, he proposed that uniformity of the law should be aimed at, and he termed the law which the majority accepted as a "legal novelty." He considered that the rule that precluded Desrosiers from suing the principal was in accord with reason and justice and would reduce litigation. For the Quebec judges, there was in Idington's thoughts of uniformity a danger far greater than a mere reference to English law. CURLEY v. LATREILLE, 1920 The second case, Curley v. Latreille, was heard the day after the Desrosiers appeal, and both judgments were rendered on the same day. The issue in this case was the liability of an employer for the negligence of his chauffeur. One evening the chauffeur had taken the car out for his own pleasure although he had been instructed to return to the garage; through his negligence he caused the death of the plaintiffs son. The plaintiff sued the driver's employer. At the trial the jury found in favour of the parent of the deceased child, and this was affirmed by the Court of Review, but based on a previous decision by the Supreme Court,7 the Court of Queen's Bench reversed the lower courts and dismissed the action. Although the Supreme Court of Canada affirmed the decision of the Queen's Bench (4—1), the majority of the judges expressly rejected the use of the earlier decision of the court as the basis for the affirmation.8 It is interesting to note that the civil-law judges from Quebec differed from each other. Mignault once again went to the words of the Code; this time it was article 1054, which read: "Masters and employers are responsible for the damage caused by their servants and workmen in the performance of the work for which they are employed." The crucial words around which the dispute centred were: "in the performance of the work for which they are employed." In the French version the words were "dans 1'ex^cution des fonctions." The problem for the judges reduced itself to having to choose between two meanings for these words. Was "the work" simply the driving of the car, in which case the accident had been caused "in the performance of the work for which [the driver was] employed," or was "the work" the driving of the car for the employer, that, is, during the course of employment, and not when the driver was off on his own, which meant that the accident had not been caused "in the performance of the work for which [the driver was] employed"? Even though the language of article 1054 was similar to the language of the rule as found from the cases in the English law Mignault specifically emphasized that the words of article 1054 alone were to govern. He rejected

233 The Captive Court the use of English cases, again with the warning that it was dangerous for the civil-law system to seek precedents in the English-law system. Even though the words of the rule might be very similar if not the same in both systems, yet their interpretation might differ. The difference would result, of course, from different social values, but Mignault made no allusion to this fact at all. In the end he adopted the same conclusion as that of the common law, namely, that in order for the injured party to succeed in an action against the employer, the driver would have to be driving the car for the employer at the time of the accident and not be off on his own. He rejected the application of the law that existed in France, that would have favoured the plaintiff, because he saw a sufficient difference between the words of the two Codes to justify departing from the interpretation adopted in France for the Code Napoleon. In the French Code, the words used were "dans les fonctions"9 rather than "dans 1'execution des fonctions," as found in the Quebec Code. Brodeur, in his dissent, also took the occasion to challenge the use of English law. In this instance he added that he could find no merit in the common-law rule and he adopted the French law since it was based on the reasoning that the employer had employed the driver and must take the responsibility for his negligence. Despite being a common-law judge from Ontario, Anglin also spoke out against the use of English-law precedents. He took the position that, while only civil-law authorities from Quebec were to be used, cases from both England and France, however, could be used as examples of reasoning.10 After what seemed an endless examination of both French and English cases, he concluded that the law was the same, although he rejected the approach of the French civil-law judges who treated the problem as a question of fact, meaning that each case was to be decided on its own merits, with only the base rule in the code to guide the judge as far as the law was concerned. Superficially, Anglin appeared to be in tune with the civil law of Quebec, but his search for "civil-law authorities' signalled unmistakably a commonlaw attitude, and his virtually express rejection of the civil-law methodology meant that here was a common-law judge applying common-law technique. One had to shudder, when after thirty pages of judgment, Anglin related that article 1054 of the Civil Code contained no ambiguity or uncertainty in the words, and thus could be easily applied! Lyman Duff once again rendered no reasons for judgment, and again voted with the majority. Idington took the same approach as he had in Desrosiers, although this time it placed him with the majority. In a brief judgment, he accepted the previous decision of the court as authority and applied it. Halpern v. Bulling, the earlier decision that had been directly followed by the Quebec appeal court provided some added clues as to what was taking

234 The Civil Law of Quebec place." The case was a Manitoba appeal of 1914 in which the facts were virtually identical to those of Curley v. LatreilU. In Halpern, the Supreme Court judges were unanimous that the employer was not liable. Brodeur said that he reached his conclusion "with a great deal of hesitation," and then pointed out that in Quebec a different conclusion would be reached. Idington expressed considerable dissatisfaction with the rule, which he called unjust. He regretted having to apply it and hoped that it would be changed. However, when the opportunity arose in Curley v. Latreille to choose the different rule, he did not hesitate to apply the one that he had branded as "unjust." A very strong desire for uniformity must have been at work.12 THE EXISTENCE within Canada of two legal systems, the common-law system of England and the civil-law system based on Roman law, provided the opportunity for enormous potential problems for an institution such as the Supreme Court of Canada. The opportunity was provided as well for a mutual modification of the two systems - and more, the potential enrichment of the substance of the law of both. The existence of the two systems did not appear to create any problems whatsoever; nor was there any apparent attempt to blend the two and create a richer, and more distinct Canadian jurisprudence.13 Both remained officially separate and apart, although in practice the civil law was vulnerable to being inundated by common-law thought because of the fact that only two of six (later seven) judges were from Quebec. The attitude that had been openly expressed by Idington in the 1920 cases was destructive of any uniqueness of the civil law, and hence of any influence it might have had on English law. Survival of French culture for Quebec had been translated into a desire to maintain a distinctive position for the province, which focused on certain elements of the society, such as the civil law. Thus the law of Quebec was more than a body of law; it was a symbol of the province's survival as a separate entity, or nation. By the late nineteenth century, there was between the two legal systems a major theoretical difference with regard to the all-important question of the judicial function. In the civil law, the judge was supposedly more free to engage in application reform of the law. With a code, the judge was directed back each time to a base rule, which was found in the language of the provision in the code. The rules in the code were, by their very nature, general. The previous judicial decisions dealing with the base rule were to be viewed as applications only, and although certainly guides for the judge, they were not to serve as a relief from an independent application of the base rule. Under this system, it was entirely reasonable that a judge, when applying the base rule to a given situation, would have recourse to the writings of jurists who had made a study of the rules and commented upon them. It was also

235 The Captive Court true that custom and usage would become important. Since the judge had a certain freedom in applying the base rule, then anything that helped in the application could be used. When Anglin rejected the treatment of negligence as a question of fact, he was directly repudiating the traditional civil-law approach to a legal problem. The common law as originally understood operated much as did the civil system as far as judicial creativity was concerned; however, in the commonlaw system, the judges did not have a ready source of base rules such as a code. The rules were to be found in the cases, building one upon another. Once the binding nature of precedent was accepted as a prime rule in the nineteenth century, the two systems had to deviate. In the common law, it could be difficult to distinguish between a case establishing a base rule and one that was simply applying a rule that had been previously articulated by a judge. An inability, or laziness, or simply disinterest, to distinguish between the two types of cases would lead to an uncreative judiciary. The cases establishing a rule were, of course, binding in subsequent cases, in the same way that a rule found in a code would always be binding on a civil-law judge. Thus, in the common-law system, a judge was bound by those cases that articulated a rule, and was to be guided by those cases that were examples of the application of a rule. In the civil-law system, a judge was bound by the rules articulated in the code, and was to be guided by those cases that had applied the rules. The manner in which cases were used was the most obvious point of difference between the common- and civil-law methodology.14 Since the Canadian common-law judges and lawyers were not prepared to distinguish between the two types of cases, the tendency was to treat all cases as if they laid down rules, which thus became a series of particular, factdependent rules to be learned. As the so-called rules multiplied, they turned the legal process into an exercise in finding specific rules, rather than thinking about the problem to be solved. Legal thought had degenerated into a search for cases and linguistic analysis. The freedom that was more readily apparent in the civil-law system because of the existence of a code might have been used to free the common-law judges from the bondage of their approach, but the Quebec judges preferred to adopt the attitude of the Canadian common-law judges, to accept that stare decisis applied, and that they as well were bound by previous decisions. Pierre-Basile Mignault was concerned with the survival of the nation of French Canada. His concern was not with the civil-law tradition with regard to the judicial function. He expressly rejected the approach that was evident in France, which allowed judges to adapt the law to meet current social and industrial conditions. He said in an address to the Canadian Bar Association in 1926: "Of course, trained as we have been, we are apt to be shocked by a change in the law brought about by judicial decisions rather than by the action of the Legislature. We naturally have a distrust of judge-made law ...

236 The Civil Law of Quebec

The reforming department of the State is not the Courts of Justice, but Parliament."15 Thus Mignault rejected judicial creativity, and accepted captivity. He went on to say: "I must confess that [an] appeal to the higher principles of law, if they are not really rules of law, is disconcerting to my mind. I am not ready to deal lightly with the written text, nor to subscribe to what a French jurist of high authority says: 'le droit est un chose trop vivante pour ne pas faire plier les textes trop peu robustes.' "l6 He was able to conclude his address with this comment on the work of the French judges: "[W]e must admit, from the point of view at least of the philosophy of law, that the results have in the main been beneficial. We are often told that there are things which are more to be admired than intimated."17 It naturally followed that Mignault was a strong advocate of stare decisis, and the advantage of securing the "fixity and stability of jurisprudence."18 The result was, of course, that he was in essence a Canadian common-law judge, using civil-law (Quebec) rules, that he was trying to keep pure from common-law (English-Canadian) influences, for the sake of survival of a French-Canadian nationality. Mignault, who was the most outspoken of the Quebec jurists when it came to protecting the civil law from contamination, thought of the specific and minute rules and not of the tradition of the civil-law judicial process. Although he and other Quebec judges could be highly sensitive to the use of cases from English-law jurisdictions, this was simply a concern with the source of the rules or law. If the civil-law technique had mattered, then there might have been the greatest of contributions. This might have made the Supreme Court judges grapple with the judicial function at its most vibrant point. It never happened. The Quebec civil-law system became no more than any other body of provincial law, in that the rules might differ but that could be true of the law of, for example, Ontario or British Columbia. As far as the manner in which the judges exercised their judicial function, the Quebec judges were not going to create any problems for the common-law judges. In fact, they were going to be less creative, since they had been exposed to the creative model through their legal tradition and had rejected it. The two Quebec cases of 1920 allow certain conclusions to be drawn about the judges of the Supreme Court and the civil law of Quebec, as of the time when Mignault sat on the court. Mignault's focus was almost entirely on the language of the rules in the Code, and he performed a linguistic analysis. He was prepared to reject the law in France based only on the wording of the rules. Brodeur took a simplified civil-law approach but was less strident about the purity of the law. He adopted the conclusion that the French had adopted. He seemed more willing than Mignault to get behind the words and into the reasoning.

237 The Captive Court Anglin took a definite common-law approach in his use of cases. In one instance he was critical of the rule in English law and adopted the rule that he favoured, while asserting the danger of using English cases, and in the other instance he considered the use of English cases to be acceptable as examples of reasoning. An analysis of his judgments raises the definite possibility that he rationalized and engaged in ad hoc decision making. Idington rode roughshod over Quebec civil law and advocated uniformity in the absence of an established Quebec jurisprudence, which meant existing case law. This was an unabashed common-law approach. Duff rendered no reasons in either case and simply voted with the majority. He appears to have simply withdrawn from making any decision using Quebec law. Later in 1933 in an address given at the eighteenth annual meeting of the Canadian Bar Association, he stated that he was not competent to speak of the development of the civil law, but he considered that if differences of technical terminology were stripped away, the two systems would present few fundamental contrasts.19 Such an admission of incompetence by the then new chief justice of Canada must surely have been noticed by someone. Under such circumstances how could the court function as the final court of appeal for civil-law cases? When the Supreme Court was created in 1875, it was accepted that Quebec would not be treated the same as the other provinces. An appealable amount of $2000 was added to the Supreme and Exchequer Court Act, which was intended to allow only major cases to go to the new court.20 The court was viewed with great suspicion in Quebec as having the potential for creating uniformity of law, destroying a distinct Quebec law, and with it, Quebec autonomy.21 At the time, the English-speaking population of Quebec had a strong tendency to insist on the use of English law whenever possible.22 Appeals from Quebec to the British judges of the Privy Council far exceeded any that were coming from the other British North American courts, and English-speaking litigants were the prime cause. The Supreme Court could be used in the same way. It speaks highly of the survival instinct within Quebec when one examines how Quebec law was dealt with at the beginning of the court's existence. The situation was very threatening from the perspective of Quebec. The judges at that time adopted different approaches to dealing with cases that involved the civil law. Ritchie and Henry both had a distinct tendency simply to apply the various rules of English law in the manner of a common-law judge, while Ritchie did so in a much more obvious manner. Occasionally a statement would be added saying that nothing in Quebec law could be found to indicate a different result from that found in English law.23 Strong was seemingly the most sensitive of the judges from common-law Canada to the use of civil-law materials.24 He had an equity background

238 The Civil Law of Quebec which was thought to enable him to deal with the civil law. The theory in equity jurisprudence was that one dealt mainly with principles as base rules and precedents were to be used as illustrations of the applications of the principles. By the time the Supreme Court was established in 1875 the approach in equity had become the same as that of the common law, and in England the two systems - equity and common law - were being fused; this union would be adopted in the common-law provinces. Thus, although Strong made frequent reference to the fact that Quebec law was to be applied, yet his approach was the same as a common-law lawyer. The common-law approach in Canada meant that previous decisions were demanded.25 The citation of common-law cases by lawyers in Quebec cases became an ongoing problem for the civil-law judges. There seemed little doubt that the lawyers presented whatever arguments would be in their client's interest, and since a majority of the judges were common-law judges, it must have been believed that they would be receptive.26 All of the judges were highly receptive to the citation of previous cases. A review of the judgments delivered in the early years of the court does not reveal any distinctive marks to identify a judge from Quebec, whether one of the Taschereaus, or Fournier, or any other, from any of the common-law judges. When in 1887 the Judicial Committee affirmed unequivocally that the doctrine of stare decisis applied for Supreme Court of Canada decisions throughout Canada, including Quebec, common-law methodology was triumphant.27 Quebec law thus became subject to determination by a court dominated by a majority of common-law judges and subject to the commonlaw doctrine of stare decisis. If the civil law and the law of England were found to be the same, then this conclusion allowed the common-law judges to adopt the approach of the law of England and to bring in English cases.28 If a particular Quebec rule had been derived from English sources, this also meant that the commonlaw technique was to be used.29 Again there was a degree of acquiescence by the Quebec judges. Henri Taschereau accepted in one case that an article of the Civil Code had been based on English law, and then wrote in favour of the practice of using English cases.30 The fact that certain areas of law such as criminal law and commercial law,31 were definitely based on English law, greatly established uniformity in vital areas of social life. If a matter such as the railways was considered to be of interest across Canada, then the common law dominated.32 In the crucial area of the constitution, which directly engages social values and public policy English constitutional principles applied. This was brought home in Renaud v. Lamothe, a 1903 decision. In this case, a testator had provided by his will that any of his children who married outside the Roman Catholic church, as well as their children and any grandchild who was not educated according to the teachings of the

239 The Captive Court church, were to be excluded from any benefits under the will. The plaintiff, a grandchild of the testator whose parents had married outside the church, challenged the condition as being void as against public policy, as a restraint of marriage, and as interfering with freedom of religion. The plaintiff had not been baptized Catholic, nor brought up in the church. The plaintiff won in the Quebec Superior Court, but this decision was reversed by the Court of King's Bench. On the appeal to the Supreme Court, the judges in an unanimous judgment affirmed the decision of the Quebec appellate court, and the provision of the will was allowed to stand.33 Girouard, the only judge from Quebec who sat on the case, rendered the judgment of the court. The other judges on the panel were Strong, Sedgewick, Davies, and Mills. Henri Taschereau, who was related to the trial judge, H.T. Taschereau, did not sit on the appeal. In his judgment Girouard affirmed the opinion that when the rule in the Quebec Code had been based on the French Code, then the French jurisprudence would be the guide, but when a principle of English law had been enacted, then it was English jurisprudence that would be used. Girouard reached the conclusion that the English law as to testimentary dispositions was in force in Quebec, and then he went on: "Ainsi sur une question meme de bonnes mceurs en matieres civiles, telle que comprise dans Tandem droit francais et meme le nouveau, c'est le droit anglais qui doit nous regir, II doit en etre de meme sur une question d'ordre public, qui est le seul motif que les avocats de 1'appelant ont invoque*."34 Girouard was quite explicit in this case that when the question of social values, the morals of society, or public order arose in the law, it was the English law that was to govern. He was concerned with an argument that had been made that a condition attached to a bequest in a will was void as against public policy. English law allowed greater freedom of disposing of property by will, and thus the condition was valid in English law. Arguments of public policy aimed primarily at voiding provisions in contracts and wills were apparently to be based on English values.35 SEVERAL OF THE CASES from Quebec that involved the Civil Code went to the Privy Council. Sitting on the board were Scottish judges who had been trained in the civil law of Scotland which was based on the same system of law as that on which Quebec law was based. They occasionally took it upon themselves to lecture the Supreme Court judges about the civil-law approach to the judicial function. Vandry v. Quebec Railway, Light, Heat and Power Co.36 involved a negligence action based on fire damage that had resulted from the flow of an electric current from wires owned by the power company. During a winter storm, a branch had fallen across the wires and had caused a high current to flow into certain homes, and fire resulted. The case concerned the proof of

240 The Civil Law of Quebec fault on the part of the company. The Quebec appeal court had dismissed the actions due to lack of proof of negligence on the part of the company. The Supreme Court reversed the Quebec Court of Queen's Bench, 3-2. The majority was made up of Idington, Anglin, and Brodeur. Davies and Duff dissented. Fitzpatrick, who was from Quebec, did not participate in the appeal. An appeal was taken to the Privy Council and the decision of the Supreme Court was affirmed, but the board criticized the approach of the court.37 Lord Sumner rendered the judgment for the board of four judges, which included Lord Shaw of Dunfermline and Lord Dunedin, both Scots and trained in the civil law. Sumner criticized the Canadian courts for not having kept in mind the basic question, which was the meaning of the words of the Code. When it came to the use of the French jurisprudence, Sumner rejected its use as "authority," and made a pointed reference to "foreign" law: "still less can [recent French decisions] prevail to alter or control what is and always must be remembered to be the language of a Legislature established within the British Empire." Sumner was aware of the theoretical absence of the doctrine of stare decisis in civil law: "A construction of articles which have long been before the Courts, differing from that hitherto accepted, will always, even in a tribunal not bound by prior decisions, be adopted with caution."38 In the language of Lord Sumner, the "indispensable starting-point" was the language of the code itself and he pointed out that it must be remembered that it is "a Code of systematized principles and rules," which "should be read as a whole forming a connected scheme." Thirty years before, the Privy Council had advised as to the same approach. In Canadian Pacific Railway Co. v. Robinson?"* the Supreme Court had reversed a decision of the Quebec Court of Queen's Bench. Taschereau rendered the judgment of the majority, which included Ritchie, Gwynne, and Patterson, while Strong rendered a separate concurring opinion. Fournier, the other Quebec judge, dissented. One of the grounds upon which the Privy Council granted leave to appeal was that Taschereau and the majority had relied on English decisions. The Supreme Court was reversed.40 Lord Watson, a Scottish judge, rendered the judgment of the board, which consisted of an unusually large bench of six judges.41 He commented on the approach that should be taken for the interpretation of a code. Adopting the langauge from a previous judgment, he wrote: "The purpose of such a [code] surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of... by roaming over a vast number of authorities ... [A]n appeal to earlier law and decisions for the purpose of interpreting a ... Code can only be justified upon some ... special ground."42 In the Supreme Court, since the article of the Code involved in the case had been based on an English statute, the majority had not only used

241 The Captive Court common-law cases but they had done so in the style of the common law.43 In dissent in the Supreme Court Telesphore Fournier had made the same point as did Lord Watson. Emphasizing that a code was involved, he stated: "C'est dans cet article seul que Ton doit trouver la source du droit de Faction," and then he pointedly wrote: "elle ... derive son droit d'action que du statut, c'est-a-dire du code."44 Such directives of the Privy Council fell on deaf ears at the time they were given. The majority of the Supreme Court judges, both common- and civillaw were striving to achieve a conservative, non-active role for themselves; and any suggested used of the civil-law approach with its inherent element of creativity was rejected. Mr Justice Duff in Vandry in 1916 had dealt directly with the civil-law approach. He completely rejected it when he denied the legitimacy of a judge extending by analogy the principle of a rule to meet emerging new conditions. To do so would unquestionably be judicial legislation, in his opinion, and he concluded that there must be proper respect for judicial precedent. Duffs concern was for certainty of the law. He rejected the opinion of a French jurist that the interpretation of law varies with the age, and the innermost sense of the law changes.45 Although Duff was dissenting there seems little question that he was articulating thoughts that were not foreign to the other judges. There was a complete rejection of creative jurisprudence in favour of a mechanical view of the judicial function, and it was impossible to adopt the civil-law methodology. In order to fit into the captive state of mind of the legal profession, the Privy Council decision in Vandry was said to have directed that the Code be treated as a "statute," and thus to receive a literal and narrow meaning.46 Sumner never made that point. The source of the so-called "statute" direction was when Sumner rejected the use of French jurisprudence as "authority," and the following of recent French decisions. The French courts could not, he asserted, be allowed to prevail when dealing with "the language of a Legislature established within the British Empire." That this exclamation of nationalism could be taken to indicate that Canadian judges should approach the code as a statute, and with the state of mind that the words of a statute must be narrowly construed, indicated very clearly the captive state of mind of the Canadian jurists. It suited the Canadian judges, both civil- and common-law, to treat the Code as "a statute," and to give it a "literal" interpretation. When in later years the literal or narrow meaning given to the provisions of the Code came in for criticism, the blame was laid on the doorstep of the Privy Council, and it became the scapegoat.47 IN THE 1930S, nationalistic feelings gripped many in English-Canada, and in the legal system they focused on an attack on the appeal to the Privy Council. The Privy Council was accused of having repudiated the true spirit of the

242 The Civil Law of Quebec

constitution that would have created a highly centralized state. The battlecry consisted of a demand to return to the true intention of the fathers of Confederation. Those Canadians who had become concerned with the so-called intention behind Confederation simply would have to blank Quebec out of their consciousness. Provincial autonomy, so precious to Quebec, had been a force behind the Privy Council decisions; an attack on those decisions meant an attack on the concept of provincial autonomy. The sounds of nationalism in English-Canada were threatening sounds for Quebec, and the need arose for Quebec firmly to secure her autonomy. This took the form of highlighting distinguishing marks, such as the civil law. Unfortunately the attempt to achieve a secure autonomy through a preservation of existing distinctive features meant a move to an attitude of extreme conservatism in the province. Quebec adopted an official portrait of a quaint, picturesque, and essentially rural society that was fundamentally devout and god-fearing. Security was to be found in having one's own way of life, one's own world in which nothing would be tolerated that interfered with the image.

19 The Attack on the Privy Council, 1930-1939

The public image of the Supreme Court of Canada, to the extent that any existed, had been severely damaged in the eyes of many by its decision in the Persons case. However, the legal profession had rejected the creative decision of the Privy Council. The attack on the appeal would increase, but the merits or demerits of the Supreme Court would not figure in the debate. Until late in the 1930s the Supreme Court would only be an onlooker. The debate about the existence of the appeal made the pages of the Queen's Quarterly in 1930, which published an article by John S. Ewart, needless to say in favour of ending the appeal, and another by George H. Sedgewick, a senior Ontario lawyer, who would become a judge of the Ontario Supreme Court in 1930, in favour of retaining it.1 Significantly, Sedgewick ended his article with the comment: "I am not greatly concerned about maintaining the appeal to the Judicial Committee as a link of Empire. If any relation is maintained only as a link of Empire its value for that purpose is doubtful."2 It is consequently very unclear after reading the article why the appeal should be maintained. The only point in favour of retention was that the appeal was a right enjoyed by Canadians because of residence in "a British Dominion."3 The once awesome and mystical appeal to the Judicial Committee of the Privy Council had degenerated into confusion in only a short time. Ewart still propounded the view that Britain had imposed the appeal on Canada, and made an erroneous reference that in 1875 the Colonial Office had directed that the clause ending appeals be eliminated or the Supreme Court Act would be disallowed.4 If he had wanted to allege British control over Canada, the Nadan decision of 1926 would seem to have provided more than sufficient ammunition, but he did not use it.5 The same issue of the Queen's Quarterly contained an article by Frank Scott of McGill University entitled "The Privy Council and Minority Rights." He was sharply critical of the performance of the Privy Council, which he characterized as "a symbol of colonial dependence."6 He too

244 The Attack on the Privy Council, 1930-1939 thought that there had been a clause in the 1875 act abolishing the appeal, and that it had to be removed due to British pressure.7 After reviewing the cases that had dealt with matters of religion and language and had been of interest to Quebec, he concluded that the Privy Council was no more impartial than the Supreme Court, and "in the period under review ... we find that the Privy Council on the whole has accorded slightly less recognition than has our own Supreme Court to the demands of the minority."8 It was, he stated, provincial rights that were safeguarded, not minority rights, but for French Quebeckers this may have been seen as the same thing. It was within Quebec that protection existed. The rights of French-speaking Catholics outside of Quebec, the subject of most of the cases dealt with by Scott, had ceased to be of any special interest to Quebec since the day Louis Kiel was hanged. Scott did mention the Guibord decision, which did directly involve Quebec and which had been instrumental in the creation of the Supreme Court and the attempt in 1875 to end appeals to the Privy Council; the case was being called back into action to aid in the completion of the job. One interesting aspect of Scott's article was his promotion of the quality of the Supreme Court of Canada. In order to round out the process of ending the appeal, there was a need to have a credible Supreme Court that would take over the task once fulfilled by the Judicial Committee as the final court of appeal for Canada. At this time, in a breeze of candour, Professor W.P.M. Kennedy of the University of Toronto wrote: [A]ppeals survive solely because Canadians wish them to survive. I would not be frank if I did not say that there is a growing feeling against them, and poor suitors are certainly at a disadvantage. Doubtless our peculiar political, legal, and human organization has had much to do in the past with the sentiment in favour of appeals to the Judicial Committee; but we hear less and less to-day of the claims urged that appeals are necessary to protect religious, racial, and minority rights. It is gradually dawning on us that such claims are unworthy of our stature and of our judicial honour. There is, however, something pathetic in that every latest fledged lawyer should have some vain, far-off hope of arguing before the Judicial Committee rather than before the highest Courts of his native land.9 Thus, according to Kennedy, the last sticking point for the ending of the appeal might have been found in the Canadian legal system itself. The growth of a nationalistic sentiment after World War I included within it a desire for increased dominion power at the expense of the provinces. The constitution that had developed from the 1880s onward had established provincial rights and had given to Canada a system that was much more federalistic than had been originally envisaged in 1867. The Judicial Committee was strongly identified with the decentralized constitution. During the 1930s, a common criticism that was voiced against the appeal to the Privy Council

245 The Captive Court

was that the board had thwarted the intention of the fathers of Confederation to give to Ottawa, the central authority, extensive legislative power, and to give to the provinces limited power to deal with matters of a local nature. The nature of the constitution came to the fore in two highly significant constitutional cases at the beginning of the 1930s, the Aeronautics and Radio cases. IN RE AERONAUTICS, 1930 This case clearly demonstrates the intellectual bind that the judges of the Supreme Court had created for themselves — their captivity. It was heard in April 1930.10 The Judicial Committee of the Privy Council had rendered its judgment in the Persons case six months before" when Lord Chancellor Sankey had counselled the Supreme Court that the constitution was to be viewed as if it were "a living tree capable of growth and expansion within its natural limits." The language of the constitution - "its natural limits" - was to be given meaning in conformity with the values existing within the society at the time. So powerful was the mental captivity of the judges that they could withstand the admonitions of the Privy Council and reject the case as a non-legal, political decision, even though they also staunchly averred the necessity to follow the precedents created by the Judicial Committee. This makes it indeed difficult to accept the later view that the Privy Council was the cause of the captivity. At the dominion-provincial conference held in November of 1927, the province of Quebec had raised the question of whether the dominion had the legislative authority to assume complete control of aeronautics across the country, including control over flying operations held within a province. It was agreed that a reference would be sent to the Supreme Court. The judges of the Supreme Court were uncomfortable with the reference, which asked the crucial constitutional question of who had control over aeronautics across Canada — Ottawa, the provinces, or both? Several of the judges queried their obligation to answer questions put to them in a reference case. The conclusion was a reluctant one - they were obligated to answer.12 The judges were on their own. There was no possible way to consider the intention, or lack of one, of the creators of the British North America Act in 1867, who would have had no conception of the particular problem. There were also no previous cases directly on point. An international agreement had been reached in 1919 dealing with the regulation of aeronautics, and this was agreed by all to be an Imperial treaty. Thus, by section 132 of the constitution, Ottawa had the legislative power to ensure the performance of any obligations under it, whether affecting Canada or a province.13 The dominion Parliament had enacted the Air Board Act in 1919, which purported to regulate and control aerial navigation.14 Although

246 The Attack on the Privy Council, 1930-1939 the judges were mainly concerned with the power of the dominion to deal with aeronautics because of its alleged power to implement treaties under section 132, yet the major importance of the case resided elsewhere. Each of the judges of the Supreme Court accepted without any apparent reservations that the control over aeronautics would have fallen within provincial control if it had not been for the power to implement Imperial treaties. Ottawa, however, had argued in the case that aeronautics was "a service essentially important in itself as touching closely the national life and interests," and therefore within national control, but the judges rejected this argument.15 Duff, with whom Rinfret and Lament concurred, accepted provincial control because he saw the control over aircraft and related matters to be the same as for garages and automobiles.16 Newcombe demonstrated the mindset of the judges. He went on to the writing of the English jurist Coke, written in 1628,'7 for the proposition that ownership of the soil carries with it the ownership of the air above it. Newcombe concluded that this principle was so well established that the judges were powerless to alter its effect in any way, even to the extent of taking into account the existence of aircraft. Since the provinces had legislative control over the soil, they had control over the air space and with it, aeronautics. The admonition of the Privy Council in Persons to consider social facts of the time obviously could not be handled by Newcombe. The "living tree" had apparently petrified three hundred years before. Although there were no cases, Newcombe demonstrated the need to find something that someone else had written, in this case Coke's writing of 1628. On the bench at this time was Lawrence Arthur Dumoulin Cannon. In 1929 he had succeeded Pierre-Basile Mignault who had become the second judge to be compulsorily retired at the age of seventy-five.18 Cannon was fifty-two and had an Irish-French background, as had Mignault. He had been a judge of the Quebec Court of King's Bench at the time of his appointment. He was married to the daughter of Charles Fitzpatrick, who had been the first non-Francophone to be appointed from Quebec, and who also had an Irish ethnic background. Cannon was also Roman Catholic. It was he who had first exposed the situation that existed in 1875-76 with regard to the appeal to the Privy Council.19 However, the comments made in the Queen's Quarterly in 1930 indicated that those details had not sunk in. In this case Cannon felt compelled to address the thoughts that had been enunciated by the Privy Council in the Persons decision. He maintained that the notion of the constitution as being a "living tree' was not intended to cover concerns about the division of legislative power, and was able to point directly to the judgment of Lord Sankey in which Sankey had said that "it must be remembered" that the Persons case was not dealing with the division of legislative powers. Thus in this particular case, he rejected the approach of

247 The Captive Court

giving to the words of the constitution a meaning in keeping with a large, liberal, and comprehensive spirit. For Cannon, the dominant principle of the constitution was federalism, by which he understood that the provinces were to be dominant unless legislative power could be conclusively shown to be dominion, as either being expressly enumerated in section 91 of the British North America Act, or "unquestionably a matter of national interest and importance and that it does not trench on any of the subjects enumerated in section 92 or that it has attained dimensions as to affect the whole body politic of the Dominion."20 By taking a large view of the words "property and civil rights" in section 92 513 of the constitution, it meant that it had become impossible for something not to "trench on any of the subjects enumerated in s. 92." The fact that the very existence of section 132, the implementation of treaties, recognized the view that something of international interest and importance should be dealt with by the dominion, did not seem to weigh at all upon any of the judges' minds. As was to be entirely expected, the case proceeded to England and the Judicial Committee. The judgment of the board, rendered in October of 1931, was by Lord Sankey. Once again, in unmistakable terms, the Supreme Court was instructed on how to deal with a constitution. Sankey wrote: Great care must ... be taken to consider each decision in the light of the circumstances of the case in view of which it was pronounced, especially in the interpretation of an Act such as the British North America Act, which was a great constitutional charter, and not to allow general phrases to obscure the underlying object of the Act, which was to establish a system of government upon essentially federal principles. Useful as decided cases are, it is always advisable to get back to the words of the Act itself and remember the object with which it was passed.21

The last sentence in the above quote is highly significant. The judges were being advised to drop their complete reliance on cases and to think about the problems that came before them within the context of the words of the Act, and its reason for existence. Naturally one cannot think about a problem without the social context. Sankey was well aware that the nation was a federal state, as he indicated above, but mechanically going to extremes was to be avoided, either by creating overwhelming federal or provincial power. As he put it: "While tjie Courts should be jealous in upholding the character of the Provinces as enacted in s. 92 it must no less be borne in mind that the real object of the Act was to give the central Government those high functions and almost sovereign powers by which uniformity of legislation might be secured on all questions which were of common concern to all the Provinces as members of a constituent whole."22 Based on the existing facts about the nature of aerial

248 The Attack on the Privy Council, 1930-1939

navigation, Sankey concluded that it was a matter of national interest and importance, and was a class of subject that had attained such dimensions as to affect the body politic of the dominion. The social facts relating to the nature of air travel were the bottom line. Even the stalwart opponent of the appeal to the Privy Council, John S. Ewart, was forced to conclude: "Its correctness of direction, its statesman's -like grasp and appreciation of actualities, and the clarity of its reasoning constitute a combination of qualities that force memory of the great American federalist, John Marshall."23 He followed this with the comment that it was "curious that [Marshall's] spirit should have (at length) manifested itself in London rather than at Ottawa." The description "statesman" had returned momentarily to the legal vocabulary. In a comment that was critical of the performance of the Supreme Court in the Aeronautics reference, Ewart wrote: "We have, therefore, three unhelpful and dubious negatives; two puzzling uncertainties; and an indivisible subject divided among ten independent legislative jurisdictions. Truly, a sad, sad mess."24 In the early years of the 1930s, opposition grew to the appeal to the Privy Council. Nationhood and the Statute of Westminster loomed on the horizon. The judges of the Supreme Court of Canada had once again been instructed as to what was needed for a final court of appeal. The way by which another "sad mess" could be avoided had been given, but of course, there was the captivity. IN RE RADIO COMMUNICATION, 1931 A case that aligned itself with the Persons decision and that of Aeronautics was the reference concerning constitutional authority over the regulation of radio broadcasting. As had the Aeronautics reference, this was also generated by the action of the province of Quebec. The province had referred the question of dominion jurisdiction over radio broadcasting to its final court of appeal, and Ottawa had responded by referring the same issue to the Supreme Court of Canada.25 The case seemed similar to the Aeronautics case, but the judges of the Supreme Court demonstrated a surprisingly different approach.26 In the order-in-council directing the reference, the federal government stated that radio broadcasting was "a service essentially important in itself as touching closely the national life and interests."27 This was identical to the language used in the order-in-council in the Aeronautics case. The Radio case was heard and decided by the Supreme Court before the Aeronautics case had been heard in London.28 Unlike the heavy mechanical approach taken in Aeronautics, the judges in Radio referred to considerations of "convenience," "necessity," "harmony or reasonable measure of utility or success in the service,"29 and whether provinces or the dominion could deal effectively with the matter.30 The judges indicated that they were concerned with facts.

249 The Captive Court Although Cannon in the Aeronautics case had restricted Sankey's "living tree" comment to a non-division of powers case, Anglin and Rinfret both referred to Sankey's approach in this case, with seeming acceptance, as evidencing the correct state of mind for them to have.31 It is interesting that Rinfret said: De meme que dans la reference sur 1'aviation, il nous faut ici adapter une loi constitutionnelle datant de 1867 a un sujet qui non seulement n'avait aucune existence, mais dont on ne soupconnait m£me pas la possibility a cette Ipoque. II est exact de dire cependant que I'Acte de I'Amirique Britannique de Nord "is always speaking" et que ses dispositions doivent recevoir un sens de plus en plus e*tendu, au fur et & mesure que les inventions scientifiques et les developpements de la vie nationale exigent de nouvelles solutions constitutionnclles.32 A fundamental conversion seemed to have occurred. Anglin, Newcombe, and Smith all held that control over radio broadcasting fell within federal authority. Anglin interpreted the word "telegraphs" in section 92 510 (a) to include radio broadcasting. Newcombe and Smith were prepared to find dominion authority in the general power, the very thing that they would not do for aviation. Rinfret, the only Quebec judge who sat on the appeal, dissented and would have given control over radio to the provinces. He emphasized the federal nature of the country. Lament dissented in part. He gave transmission control to the federal government, and control over receiving sets to the provinces. For Quebec, radio broadcasting was probably much more important than aviation. Aviation was business, while communications was culturally oriented. Communications could be used to educate as to values. Significantly, when the appeal to the Privy Council was heard, Lord Chancellor Sankey did not sit. Of the five judges in the Radio case, only two had participated in Aeronautics.™ Viscount Dunedin, who had been in the Aeronautics case, delivered the judgment in the Radio case, and it contained none of the fundamental ideas about the judicial function that had been found in Sankey's judgments. On the contrary, the Aeronautics case was expressly limited to having been decided on the basis of the treaty implementation power. The board at this time was content to hold that broadcasting fell within section 92 510 (a) of the Act, within both the word "telegraphs" and the general words "undertakings connecting the province with any other or others of the provinces or extending beyond the limits of the provinces." Although Sankey's thoughts had not been expressly repudiated, there was the clear indication that they were not popular among the judges who heard the Radio reference. A mystery surrounds the fact that Chief Justice Anglin and Mr Justice Rinfret had been prepared to voice Sankey's thoughts in the Radio case, even

250 The Attack on the Privy Council, 1930-1939 though this was contrary to Cannon's opinion in Aeronautics. In December 1930 in the Hough case, Anglin had repudiated Sankey's behaviour, and in Aeronautics there had been no hint that his views were accepted by any judge. Cannon had limited the "living tree" approach to nondivision of power cases. The Radio case was considered in June 1931. It appeared completely out of character for Rinfret, since in a case decided that same year34 he emphasized that the intention behind legislation, that is, the "policy," "must be determined from the words [the legislature] has selected to express it."35 It was the meaning of the words "in their ordinary acceptance" that he meant.36 He was adamant that "it is surely not for the judge so to mould a statute as to make it agree with his own conception of justice."37 The judge in Rinfret's words "must decide according to law."38 For Rinfret it seemed that the only alternative to a linguistic analysis with no concern for social consequences was for the judge to apply his "own conception of justice." He could not accept that a judge could articulate social values rather than personal values. Such a view must be the result of a lack of analysis of the nature of the legal process. In the Radio case, there was no need for the degree of creativity that had been required in Persons and Aeronautics as the provision of the constitution that gave Ottawa power over telegraphs and undertakings connecting provinces or extending beyond the limits of provinces could be seen to cover radio broadcasting. Anglin and Rinfret's apparent (and momentary) conversion must remain an enigma. EDMUND LESLIE NEWCOMBE died at Ottawa on 9 December 1931 after a brief illness. As had come to be expected, it was to the Maritimes that the government looked for a replacement. The person selected was Oswald Smith Crocket of New Brunswick, whose appointment continued the rotation between New Brunswick and Nova Scotia. It took nine and a half months for the appointment to be made, the longest time up to that moment, and what has turned out to be the second longest to date. This was the first appointment made by the Conservative government of R.B. Bennett. As might be expected, Crocket was a Conservative, having been a Conservative member of Parliament for nine years prior to his appointment as a judge in New Brunswick. Anglin's tenure as chief justice came to an end with his resignation effective 28 February 1933. He had been ill for some time, and he died within days of his resignation, at the age of sixty-seven. The senior judge at this time was Lyman DufF, who had been passed over in 1924. There was hesitation on the part of the Bennett government about appointing Duff to be chief justice, and although Anglin's departure had been anticipated for some months, it was over two weeks before Duff was finally appointed. The price of the appointment appears to have been at least an

251 The Captive Court undated letter of resignation signed by Duff,39 an astonishing act for a judge who had any thoughts of judicial independence, a cornerstone of the rule of law. On the same day that Duff was named chief justice, Frank Joseph Hughes was appointed to the court to occupy the position made vacant by Anglin's resignation. Anglin, who had lobbied for a judgeship on the basis that Irish Catholics should be represented,40 had obviously made his point since in Hughes, he was succeeded by another Irish Catholic. Hughes was appointed directly from the bar, and he had had neither a judicial nor a political career. The ethnic and religious criteria must have dominated the selection process for the Bennett government at this time. Hughes was young (forty-nine years of age); his expertise as a lawyer was as a defence counsel for insurance companies in running down cases.41 At the end of the year, Robert Smith retired because of age, which created the second Ontario vacancy in that year.42 The Bennett government again took a considerable length of time — thirteen and a half months, the longest time ever — before appointing Henry Hague Davis.43 Davis had been a judge of the Appellate Division of the Ontario Supreme Court for only two years. He had received an LL.B. from the University of Toronto, and had practised law at Toronto. He was also only forty-nine years of age, which indicated that the Conservatives were taking full advantage of their infrequent appointing opportunity to ensure that their appointees would be around for some time. Life was not made easy for the Bennett government when, within weeks of Davis' appointment, Hughes resigned after less than two years on the bench. It appears that, as had been the case with Nesbitt earlier, he found the practice of law much more stimulating than being a judge of the Supreme Court. Now another judge from Ontario had to be found. This time it took five months, still a relatively long period of time. It was perhaps indicative of the continuing difficulty of the Bennett government in finding judges for the court that the ex-treasurer of the Conservative party, Patrick Kerwin, was selected. At the time he was a partner in the law office of the minister of justice, Hugh Guthrie. Kerwin was only forty-five - another relatively young appointee. The ethno-religious factor continued to apply as the new judge was also an Irish Catholic. He had been a member of the Ontario Supreme Court for almost three years when appointed to the Supreme Court of Canada. He had also been appointed by Guthrie to the Ontario court. The legislation that in 1888 had abolished the appeal to the Privy Council in criminal cases and that had been held to be invalid in the Nadan case, was re-enacted in 1933.44 On an appeal from Quebec, British Coal Corp. v. The King, its validity was again challenged, and this time, sustained.45 The conclusion of the committee seemed obvious: the basis of the decision in the Nadan case has been removed following the enactment of the Statute of Westminster

252 The Attack on the Privy Council, 1930-1939

in 1931, by which the whole area of self-government had been given to Canada. Viscount Sankey, the lord chancellor, wrote the judgment, and once again took the opportunity to instruct Canadians, this time on how to deal with the power that they now had within the legal process because of the complete power to self-govern. He pointed out that the duty of the courts, when interpreting a constitution, was to give its language a large and liberal interpretation, and he reminded Canadians of what he had written in the Persons case. In a series of short notes on the case published in the Canadian Bar Review, a rather disturbing viewpoint came through.46 At a time when the idea that judges were actually rendering "policy" decisions, particularly in constitutional cases, was becoming more and more talked about, one lawyer was at pains to point out in a note the distinction that he saw between a lawyer's view and that of a constitutional lawyer and political scientist. Astonishingly, he took the position that for a lawyer, the nature and scope of the British North America Act was restricted by the situation that had existed in 1867, while a political scientist took into account the present position. Legal technicalities, which were said to tend to confine the view of the lawyer, did not obscure the political scientist's wider visions. One saving fact was that at least the writer tended to group constitutional lawyers with political scientists. However, since constitutional litigation would be undertaken by lawyers, the view expressed did not bode well for Canadian constitutional jurisprudence, and, for that matter, jurisprudence in general in Canada. With the British Coal Corporation case Sankey's direct involvement with Canada's constitution ended. He had left a distinct mark. There had been a number of cases decided by the Privy Council from 1929 to 1935 when Sankey was lord chancellor that had heralded a new approach by the board to Canadian constitutional cases, of which three stand out. First, in 1929, there was the Persons case, in which it was asserted that the British North America Act was a constitution and not simply a statute, and as such it was to be seen as a living tree, rather than a petrified one. A large and liberal interpretation was to be employed. This was followed in 1932 by the Aeronautics case in which it was said that the real object of the British North America Act was to have placed matters of national interest within federal jurisdiction. A flexible approach was signalled. The case had the potential for expanding the general power of the central authority. The third case was British Coal Corporation v. The King in 1935, in which the thoughts in Persons were reasserted, namely the view that there are statutes, and statutes, and that the British North America Act was a constituent or organic statute that required a large and liberal construction.47 Sankey had been appointed Lord Chancellor by Ramsay MacDonald in the second Labour government, having been catapulted into prominence by his recommendation to nationalize the coal industry in a report of a commission to study the coal mining industry in 1919.48 Sankey

253 The Captive Court had been chairman of the commission. With the end of the Labour Government in 1931 he remained Lord Chancellor in the coalition National government and retired in 1935. Sankey had also had judicial experience. He had been a judge of the King's Bench from 1914 to 1928, when he was made a lord justice of appeal The socialist government of which Sankey had been a member had had the policy of according the fullest independence to the self-governing members of the Commonwealth. Of the Canadian constitutional cases heard during the tenure of Sankey as lord chancellor he wrote the judgment of the board in only three cases - Persons, Aeronautics, and British Coal! THE NEW DEAL CASES The package of cases known as "The New Deal cases" became a major weapon in the hands of those trying to discredit the Judicial Committee in the eyes of Canadians and create a mood of resentment, in order to facilitate abolition of the appeal.49 The Conservative government of Richard Bedford Bennett had been elected in the summer of 1930, half a year after the stock market crash of 1929, on the basis of a promise of action, not talk with respect to the increasingly threatening economic situation. The depression worsened and hovered over the heads of the Bennett government like a cloud of doom, with time passing all too slowly for that moment when the voters could let the axe fall. With an election due in 1935, R.B. Bennett went on the radio; beginning on 2 January 1935, and in four subsequent broadcasts, he announced his plan to reform the collapsed capitalist system. Measures were to be created to deal with economic planning and social security. This action had been devised by Bennett without consulting his cabinet. When put to the test by the opposition parties, the measures that were enacted did not live up to what had been promised. The attempt at political salvation in the dying days of the government had projected a dictatorial image of the prime minister and had created a split within his party. The Liberal opposition led by Mackenzie King adopted an argument that did not necessitate King dealing with the merits of the scheme to relieve against the effects of the depression. The Liberals contended that the "New Deal" was constitutionally invalid. The title "New Deal" was borrowed from the expression adopted in the United States to describe the attempts by President Roosevelt to deal with the depression (Bennett had never used the term himself).50 Election day arrived on 14 October 1935 and the Conservative party was devastated, with the Liberals under Mackenzie King achieving an overwhelming victory.51 Since the Liberal government of Mackenzie King had no particular liking for the "New Deal" legislation and since King had raised the constitutional issue, it was decided to refer the question of the validity of the

254 The Attack on the Privy Council, 1930-1939 legislation to the Supreme Court, rather than leave it to operate until someone affected by it would raise the constitutional issue. A simple repeal of the measures was not politically appealing. The references were ordered in November within weeks of the election, and the hope was that the legal system would, in effect, repeal the "New Deal" laws. A year after the reforms had been announced by Bennett, the Supreme Court of Canada heard the reference cases. There were six in all dealing with the various reform measures, two of which dated from 1934. The legislation in the six cases dealt with the following matters: 1 An amendment to the Criminal Code that dealt with unfair trade practices created offences for anyone engaged in trade or commerce or industry to discriminate against competitors of the purchaser of goods by offering a discount, rebate, or allowance over and above any available to the competitors, or to sell goods at prices lower than those existing elsewhere in Canada for the purpose of destroying competition, or selling goods at prices unreasonably low for the purpose of destroying competition.52 2 A board was established to administer the law dealing with unfair trade practices, which had investigatory powers, and the power to recommend agreements within an industry, and to recommend criminal prosecutions. In the same law, a national trade mark was established.59 3 The creation of insurance against unemployment. Compulsory contributions by employers and employees would be put into a fund, which would be administered by a board. Money would be paid to designated classes of unemployed people.54 4 The establishment of legislation dealing with minimum wages, hours of work, and days of work.55 5 The establishment of a marketing board to regulate the marketing of natural products, with local boards to be established under the supervision of the national board.56 6 Provisions for the composition, extension of time, or scheme of arrangement for debts incurred by farmers.57 Every province except Nova Scotia and Prince Edward Island were represented, and they all opposed the validity of the laws. The pieces of legislation that were of the most interest publicly, such as the law relating to unemployment insurance and that dealing with the marketing of agricultural products were struck down by the Supreme Court, while the minimum-wage law and hours-of-work law created a 3-3 split among the judges. The Privy Council affirmed the decisions of the Supreme Court with regard to unemployment insurance and marketing, and held the minimum-wage law and the hours-of-work law to be invalid. The interest in provincial autonomy was the dominating influence.

255 The Captive Court The most contentious case was that involving the Weekly Rest in Industrial Undertakings Act, Minimum Wages Act, and the Limitation of Hours of Work Act, better known as the Labour Conventions case. The Supreme Court had split 3-3, while the Privy Council held that the statutes were invalid. The issue was whether the dominion had the constitutional authority to deal with what would normally have been a matter of provincial jurisdiction when it had been made the subject of an international treaty or convention. The Limitation of Hours of Work Act had been the subject of a reference in 1925, and at that time the Supreme Court had held that the dominion had no legislative power to deal with the matter, and the only thing that could be done by Ottawa was to bring the convention to the attention of the provinces and leave any further action to them.58 The cases generated a considerable amount of academic writing. Frank Scott of McGill University was sharply critical of the Privy Council. The decisions had, in his opinion, stultified the whole development of Dominion status since the war. As foreign judges they were said to be ignorant of the Canadian environment. Scott termed the appeal as "costly sentimentality." Other writers branded the Board as "reactionary."60 The Aeronautics and Radio cases had created the impression in many minds that the trend of upholding provincial power at the expense of the dominion had ended, and a swing was under way to increase dominion power. This view fitted well with the surge of nationalism that was under way within English Canada. It was shattered dramatically when the Privy Council destroyed much of the legislation on the basis of provincial autonomy. As Lord Atkin pithily stated: "While the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure."61 Whatever signal some may have picked up from Aeronautics with respect to enhanced dominion power, it was rejected soundly by the Supreme Court of Canada. The most illustrative example was the Natural Products Marketing Act case in which it was argued by the counsel for the dominion that there had been a departure from the past by the Privy Council, as evidenced by the Aeronautics case and one other case.62 The Supreme Court was asked to review the previous decisions in light of the supposed new departure, but unanimously concluded, that there had been no alteration in the law. Chief Justice Duff, for the court, said: "On behalf of the Dominion it is argued that the judgment in the Aeronautics case constitutes a new point of departure ... One sentence is quoted from the judgment in the Aeronautics case which we will not reproduce because we do not think their Lordships can have intended in that sentence to promulgate a canon of construction for ss. 91 and 92."63 The sentence that was not worth printing was: "The subject of aerial navigation ... [is a matter] of national interest and importance; and aerial navigation is a class of subject which has attained such dimensions as to affect the body politic of the Dominion."64 This sentence had the potential for

256 The Attack on the Privy Council, 1930-1939 reforming completely the approach to the constitutional issue facing the court, namely the use of the words "peace, order and good government" as a source of dominion legislative power. Although no member of the Canadian legal profession took on the question of the proper judicial function, the issue was contested by two British scholars on the pages of the Canadian Bar Review. Berriedale Keith of the University of Edinburgh used the opportunity to try to scotch the thoughts propounded by Sankey in the Persons case. Sankey, in his opinion, had gone outside of the judicial function, and one positive aspect of the New Deal cases was that "that unfortunate precedent" had not been followed.65 Ivor Jennings of the London School of Economics considered that a constitution had to be progressively interpreted to meet new situations. One could not speak in terms of the decisions being right or wrong; it could only be said whether they were desirable or undesirable, politic or impolitic, statesmanlike or lawyer-like, in Jenning's opinion.66 Overall there was a considerable public reaction to the cases which manifested itself in an increased push for abolition of the appeal of the Privy Council.67 While the image of the Privy Council was being smeared, that of the Supreme Court was being shined. Between the time that the court heard the arguments in the "New Deal" cases in February 1936 and the time that the judgments in the cases were handed down on 17 June 1936, Maclean's Magazine ran a feature article on the court entitled "The Seven Justices of the Red Robes." The article was full of praise and reverence, with a heavy anecdotal content. Duff was said to be "the most brilliant judge who ever sat on the Bench in Canada." His judgments were described as "models of classic legal literature."68 There was a need for a hero at this time and one was being created. THE ALBERTA LEGISLATION CASE, 1938 As the attack to discredit the Privy Council was under way, the question arose as to whether the Supreme Court was adequate to deal with the problems that it would have to face. The standard response became that the court was confined by the Privy Council and would at last be free when the appeal was ended. Knowing the performance of the Supreme Court made this notion extremely difficult to accept. There had to be a slippage of the mind to level blame at the Privy Council with regard to the New Deal cases and not also criticize the Supreme Court, which had absolutely refused to take the decisions of the Sankey years as the start of a new era. If the Privy Council judges could be blamed for not following the trend that had been created, then that criticism had to be directed even more strongly at the

257 The Captive Court Supreme Court judges who were supposed to have been slaves of the thoughts of the Privy Council judges. What was needed was a demonstration by the court that it was up to the task that would some day fall to it. The required display of competence was found in the now famous Alberta Legislation case of 1938.69 The adulation that was poured upon the court for its decision in this case has caused it to remain to this day one of the best known of the court's decisions. A few weeks before the Liberals under Mackenzie King returned to power in Ottawa in 1935i there had occurred the unbelievable victory of the Social Credit Party under the leadership of William "Bible Bill" Aberhart in the Alberta provincial election. Aberhart, a school teacher, had founded the Prophetic Bible Institute in Calgary and since 1925 had conducted weekly evangelical radio broadcasts to a considerable audience in Alberta. In 1932, he had become acquainted with the new economic theory of one Maj. C.H. Douglas, a British engineer. The Douglas doctrine was based on the idea that the purchasing power of individuals was less than the total value of goods produced; thus what was needed was to increase a person's purchasing power. This could be done by the government issuing a "social dividend" to all adults, which would have to be spent and which would therefore increase the individual's purchasing power. Aberhart took to preaching Social Credit theory over the radio in the hope that he could persuade the political parties to take it up. It was being projected to the listeners with the tone of a religious revival. As it became obvious that the existing parties were not going to adopt the economic theory of Social Credit simply because the people who actually understood it were very few, if for no other reason, Aberhart created his own political party. On 22 August 1935, the Social Credit party was swept into power in Alberta. For the depression-battered Albertans, there was no need to understand the intricacies of Social Credit theory; what they heard were promises — to solve the economic situation, to issue every adult a $25 dividend, to set just prices, to have debt-free money and to share in the natural resource wealth of the province. Aberhart's policy depended for success on his taking the financial and banking systems into public hands. Unfortunately, the constitution had placed currency, banks and banking, as well as trade and commerce in the sphere of the central authority in Ottawa.70 To increase the problems for the party, its theories were beginning to sound to many like socialism. There was no mistaking its attack on the banking institutions. In August 1937 the legislature of Alberta passed three statutes. One required all banks operating in the province to obtain a licence from the provincial government; another provided that no one could sue the province on any of its legislation without a permit issued by the government; and the third deprived all unlicensed bank employees of their civil rights. The Liberal

258 The Attack on the Privy Council, 1930-1939 government in Ottawa first attempted to have Aberhart agree to a reference to the Supreme Court on the question of the validity of the legislation, and when that failed, Ottawa disallowed the statutes on the basis that they dealt with the federal matters of banks and banking and currency. The law dealing with permits to bring an action was lumped with the other two and suffered the same fate.71 The Alberta legislature enacted new laws and in October 1938 the lieutenant governor reserved the three new Acts. An agreement was reached between the province and Ottawa that their validity would be determined by a reference to the Supreme Court. In addition, a companion reference was made that raised the question of the power of Ottawa to disallow provincial laws, and the power of the lieutenant governor to reserve legislation for Ottawa's consideration.72 The Supreme Court unanimously affirmed the power in law of Ottawa to disallow provincial legislation and to have the law reserved. Alberta had been the only province to participate in this reference. The three statutes that had been reserved and that formed the substance of the second reference case were: An Act Respecting the Taxation of Banks; An Act to Amend and Consolidate the Credit of Alberta Regulations Act; and An Act to Ensure the Publication of Accurate News and Information. Again Alberta was the only province that took part in the case. This time, however, it was met not only by the Canadian government, but also by counsel for the chartered banks, for the Canadian press, and the Alberta newspapers. The first statute dealt with the taxation of banks. The tax levied on banks was considerable. The second dealt with "credit institutions" and undertook to regulate them, while the third Act was the one that established the court's reputation, and is the most interesting. The Alberta "Press Bill," as it came to be known, provided that the government of the province could require any newspaper to publish any statement furnished by the government relating to any policy or activity of the government. This would provide the people of Alberta with true information as to government policy. There was also a provision that required all newspapers, upon request of the government, to furnish the sources of information as to any statements made in the newspapers. If a newspaper did not comply with the requirements of the proposed law, the government could prohibit publication for a definite or indefinite time; also the publication of the writing of a specific person could be prohibited, as well as the publication of information supplied by a specific person. The Supreme Court unanimously held that all of the reserved legislation was invalid. A majority of the judges focused on the Alberta Social Credit Act, which was not specifically in issue, but which was seen as the centrepiece of the "radical reorganization" that was afoot.73 The Social Credit Act was held to be invalid as infringing on federal authority under currency, banks and banking, and trade and commerce. The majority saw the three questioned laws as part of the overall plan, and they consequently perished within the Social Credit Act.

259 The Captive Court

On the question of the Press Bill, the court's fame was made. Chief Justice Duff with Mr Justice Davis pointed out that the British North America Act provided for a representative legislature. Such a legislature, with members elected by the people, functioned "under the influence of public opinion and public discussion," derived its "efficacy from the free public discussion of affairs, from criticism and answer and counter-criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals." Thus, in Duffs opinion, the provision for a representative government in the constitution carried with it a provision for freedom of expression. Freedom of expression was, in his opinion, unquestionably "the breath of life for parliamentary institutions," although he did accept that it could be restricted, such as by considerations of decency, public order, as well as the protection of certain private and public interests, for example, defamation law and sedition.74 At this point, Duff and Davis presented the unprecedented conclusion that the provinces lacked the legislative power to abrogate freedom of expression since that would involve interfering with the Parliament of Canada, "the legislative organ of the people of Canada."75 Interestingly, Duff and Davis stated that the Parliament of Canada possessed authority to legislate for the "protection" of the freedom.76 It would be very doubtful that the two judges thought that they were limiting dominion power by saying that the dominion could "protect" the freedom, but could not abrogate it. The conclusion that the provinces were limited by a concept of freedom of expression in the constitution was heady enough without the unbelievable conclusion that Ottawa was also restricted. Duff and Davis recognized that some degree of regulation of newspapers had to be conceded to the provinces, but that regulation would become invalid, in their opinion, if the law that limited discussion were to interfere "substantially" with the working of the parliamentary institutions of Canada.77 Mr Justice Cannon was the only other judge to consider the notion of freedom of expression; the other three, Kerwin, Crocket, and Hudson, expressly declined to deal with it. Cannon in his judgment noted that freedom of expression was essential to enlightened public opinion in a democratic state, and consequently the provinces lacked legislative power to interfere with the free working of the political organization of the dominion. If there were to be limits imposed on the freedom in the public interest, these were to come from the dominion, since freedom of expression was an equal right of all citizens throughout the country. Even though the proposed legislation was an extremely severe interference with newspapers both by today's standards, and also by those of 1938, Cannon alone held that the Press Bill was invalid in its own right. Duff and

260 The Attack on the Privy Council, 1930-1939 Davis talked about the freedom but held back in the end, and preferred to find that it was invalid simply as part of the scheme of which the invalid Social Credit Act was the foundation-piece. There is no question that freedom of expression had been an important part of our social values before 1938, but to see the idea being used actively by a judge to limit legislative power was far from usual. It was surprising that as many as three of the six judges would have said anything about it. Only Cannon had been willing to make a firm statement of invalidity based on the idea. The result was summed up in the Canadian Bar Review with the following comment: "Never before to our knowledge has the value and importance of the Supreme Court as an instrument of government been brought home so forcibly to the mind of the patriotic citizen who likes to think of Canada as a compact federal state."78 The unanimity among the judges was said to have had "an impressive effect upon the public mind," and the favourable reception that the decision had among the public was suggested as giving support to those that favoured abolition of the appeal to the Privy Council.79 The case became a symbol. ON 30 JUNE 1938, the Senate passed a resolution that directed W.F. O'Connor, the parliamentary counsel to the Senate, to investigate the division of legislative power as set out in the constitution from the point of view of what had been intended, what language had been used, and what had been the decisions of the Judicial Committee of the Privy Council. Any material differences that became apparent were to be documented. The result was the now famous "O'Connor Report."80 Not unexpectedly, the report contained a severe attack on the board, on the basis that there had been "most serious and persistent deviation on the part of the Judicial Committee from the actual text of the Act."81 This was the loudest salvo that was to be directed against the Judicial Committee of the Privy Council. In 1938, a private member's bill to abolish the appeals was introduced by Charles Cahan, a Conservative and lawyer from Montreal, who had been secretary of state in the government of R.B. Bennett from 1930—35.82 His speech contained a collection of all of the arguments against the appeal - the Judicial Committee exercised a political function and its decisions were based on considerations of political expediency; it was ignorant of the social, industrial, and commercial conditions in Canada; the clear intentions of those at the Quebec conference were completely frustrated in many instances; its decisions were carelessly considered; the early judges in the Privy Council of the 1870s and 1880s were of poor quality; British policy was to keep Canada divided, and to continue the colonial system; the right of British subjects to go to the foot of the throne was a mere myth. All of the arguments were there. Certain speakers voiced mild support for the appeal to the Committee,

261 The Captive Court

but in the main the attackers dominated and the attack was harsh. It was agreed between Cahan and Ernest Lapointe, the minister of justice, that the bill should be withdrawn until opinions from the various bar associations could be obtained. Cahan once again introduced a bill in 1939." With this bill, however, the criticisms of the Privy Council that had been so severe in the debate of the previous year were missing. It was now the sovereignty of Canada that was stressed. Opposition was now all but silenced; the minister of justice, Ernest Lapointe, stated his entire agreement with the bill and announced that he would recommend a reference in the near future. As promised, the bill to abolish the appeal was referred to the Supreme Court and the case was heard in the middle of June 1939 by six judges: Chief Justice DufF, Rinfret, Crocket, Davis, Kerwin, and Hudson. Noticeably absent at the hearing was the province of Quebec.84 The issue in the case was not directly the appeal but rather the power of the dominion to cut off appeals from the provincial courts, which raised a question of federalism. Indirectly the appeal to the Privy Council was involved, since if the provinces were said to have exclusive jurisdiction over the appeal from their courts, then certain provinces could retain the appeal to England. The decision of the Supreme Court (4—2) was in favour of dominion legislative power to eliminate all appeals to the Privy Council. Crocket and Davis dissented. World War II had started between the dates of the hearing and the judgment of the Supreme Court. Because of the possibility that an appearance of disloyalty might be displayed if abolition of the appeal was advocated while the war was under way, the hearing before the Privy Council was delayed until after the war ended. It was now only a matter of time. THE LAST CHANGE in the personnel of the court in the pre-World War II period was occasioned by the death of John Lamont at the age of seventy on 10 March 1936. He had been ill for some time, and had been granted a leave of absence in November 1935.85 The Bennett government had been defeated in the October election of 1935, and the selection of the new judge fell on Mackenzie King's Liberal government. Lamont had been from Saskatchewan and it thus was to the West that the government looked for the new judge, who was Albert Blellock Hudson of Manitoba. Hudson was a highly respected corporate-commercial lawyer who had been attorney general of Manitoba in a Liberal government, and had sat in the House of Commons as an independent when he had failed to receive the nomination of the Liberal party. His appointment was well received.86 In the 1930s there was still little in the way of comment and criticism of the law and the legal system in the literature, although there was now a recognizable group of legal academics. Sankey's thoughts had not penetrated

262 The Attack on the Privy Council, 1930-1939

into the consciousness of the legal profession. However, a beginning was apparent in the writing of Bora Laskin at the University of Toronto. Laskin had just returned from graduate work at Harvard in the United States. The judges appeared to be making their decisions in a social vacuum — an ivory tower. They might even be accused of being socially illiterate. One writer wrote of the tradition of merely interpreting the law in order to avoid "the much dreaded ... 'judicial legislation,' " but there was no analysis whatever of how words are interpreted.87 The expression "interpreting" was given the same significance as the words "grounds of law alone," which meant that the social context was to be ignored. A reference could be found to the famous Bar Review article dealing with the Persons case, in which the Privy Council was said not to be a court of law, and thus able to take the social context into account. The "captivity" appeared to be accepted as part of being a lawyer and of functioning within the legal system. Yet the avoidance of social data in socalled legal reasoning was the avoidance of reasoning - of thinking! Although it was written from the vantage point of twenty years in the future the statement "in 1933 the Supreme Court ... would have none of the facts of modern life," summed up the decade.88

20 The Wait for the End of the Appeal, 1940-1949

Lyman Duff was due to retire in early 1940, having reached seventy-five years of age. Thibaudeau Rinfret was the senior judge at the time and had fifteen years experience on the court. However, Prime Minister King decided to extend Duffs tenure, to which Duff readily agreed. The appropriate legislation came into effect in May 1939, and provided for an extension of three years.1 This was the first and, to date, the last extension of a judge's tenure. Apparently Mackenzie King considered that the court was weak because of the ill health of many of the judges, and he could not think of anyone who could be chief justice, or anyone from British Columbia who could replace Duff. Duff had achieved a sufficient reputation to counter any potential political problems that might accompany the extension. In fact, the extension added considerably to the mystique that was developing about Duff and his position as "the greatest jurist this country has produced."2 On 5 December 1939, Arthur Cannon died at Ottawa. Two months later, the Liberals named his replacement, and a third Taschereau took his place on the Supreme Court. Robert Taschereau was the son of Louis-Alexandre Taschereau, the premier of Quebec from 1920—36, whose government had been brought down by the Conservative Maurice Duplessis under the banner of the Union National. He was also the grandson of Jean-Thomas Taschereau, one of the original judges of the court. He had had a high political and social profile, and had been heir-apparent to his father's political power until Duplessis' victory of 1936. He was only forty-three when appointed, one of the youngest judges in the history of the court. As Duffs retirement approached once again (7 January 1943), the question of his replacement arose, and King decided that a second extension was appropriate, to which Duff again agreed. In his diary, the only justification given by King for this further extension was the war. This seems in itself somewhat superficial and far too general. A significant factor could have been the report of Duffs investigation into the sending of Canadian troops to Hong Kong in 1941. Both the decision to send the soldiers to Hong Kong

264 The Wait for the End of the Appeal and the report written by Duff concerning the action came under severe criticism by King's political adversaries. A failure to extend Duffs term, King thought, could be seen to be giving into the opponents of the report.3 Duff had served Mackenzie King and his government well - it would be years before the true extent of his service to the King government would be known.4 In late summer of 1941, the British government requested that Canada send troops to reinforce Hong Kong. In October two battalions were sent — the Royal Rifles of Canada and the Winnipeg Grenadiers. They were essentially untrained troops. Following the Japanese attack on the American military establishment at Pearl Harbor on 7 December 1941, the Japanese forces began their attack on Hong Kong on 8 December. After a stubborn and gallant defence, the colony surrendered on Christmas Day 1941. What remained of the defence force was condemned to spend the remainder of the war in the brutal Japanese prison camps. Soon after the fall of Hong Kong, George Drew, the Conservative premier of Ontario, accused Mackenzie King and his government of incompetence in sending untrained troops into an imminent war zone. Faced with mounting pressure due to continuing accusations by Drew, Mackenzie King decided to create an inquiry into the sending of the troops. Lyman Duff agreed to conduct the investigation. The result was that a completely partial Duff cleared all Canadian authorities of any fault in the affair. Drew turned his attention to the report.5 Even though the true extent of the cover-up was not known with certainty, yet the allegations of George Drew about the Hong Kong Inquiry of 1942 had raised profound questions relating to the integrity of the chief justice. Consequently, the second extension of Duffs term as chief justice had acquired an obvious political dimension. The government dressed Duffs extension as the judge's contribution to the war effort. In the end there proved to be no problem in having the appropriate legislation passed.6 The Canadian government had represented the report of the Duff commission as the judgement of a court, and so Duffs status was of paramount importance. It suited the needs of the politicians to have available an apparent non-political body whose decisions would not be questioned in order to pronounce authoritative conclusions. Oswald Crocket reached retirement age on 13 April 1943.7 Rather than select a judge from Nova Scotia, as might have been appropriate, the King government stayed with New Brunswick. However, Ivan Cleveland Rand, the new judge, was not practising law in New Brunswick at the time of his appointment but was a lawyer for Canadian National Railways at Montreal. He was a Liberal and had been attorney general of New Brunswick for a brief time.8 The corporate offices of a railway were an unique source for a judge for the Supreme Court, and the one in which the corporate-commercial view of the judicial process would have presumably developed.

265 The Captive Court Rand was fifty-nine years of age at the time of his appointment. Born and raised in Moncton, New Brunswick, he had attended Mount Allison University, from which he had received a BA. degree. He studied law at Harvard University, from which he graduated in 1912. Other than David Mills, 1902-3, he was at the time the only judge to have had an American legal education. He was never to lose the influence of that education, which had been acquired in an university environment. After a short time in practice at Medicine Hat, Alberta, and at Moncton, he had joined the Canadian National Railway in 1926. Rand was well known to Chief Justice Duff, who had been in favour of his appointment to the court as far back as 1932.9 On 7 January 1944, DufFs second extension expired and he finally retired from the court.10 The war was still under way but there was apparently no further political reason to keep him on as chief justice. He had been on the bench for thirty-seven years and three months, the longest time of any judge to date. He was immediately succeeded as chief justice by Thibaudeau Rinfret, the senior judge. The assessment of Duff as a judge of the Supreme Court has become complicated. We have the benefit of his biography and although his epithet as "Canada's greatest jurist" is often referred to, yet nothing is presented as proof of the greatness, other than the statement that the other judges were mediocre and "judicial and jurisprudential nonentities."11 Based on his biography, nothing could be more disturbing than if Lyman Poore Duff was indeed "Canada's greatest jurist." How did it come about that he acquired the label? The projection of the image of Duff as a giant within the legal profession began around 1932, just before his appointment as chief justice. Was this in some way tied to the fact that he had been ingloriously passed over in 1924 and there was a need to improve his image before his coming appointment in 1933? The facts regarding the 1924 episode were forgotten. One writer suggested that he had been less popular with the Liberals at the time, "due to obscure causes."12 From 1932 onward his description as "the most brilliant judge who ever sat on the Bench in Canada" became orthodoxy.13 His biographer concluded that Duff was not an original thinker but was essentially a talented student and exponent of the law rather than a creator of it.14 He was said to be a judicial technocrat, and not a judge of broad sweep and vision, and although seemingly widely read, yet his biographer concluded that none of this apparent knowledge made its way into his judicial work. In an article written at the time of DufFs death in 1955, his friend Ivan Rand wrote generally very glowingly of him, but he was forced to acknowledge that Duff had not been receptive to the social ideas of the twentieth century, and that his loyalties to the past may have at times clouded some facets of reality.15 Duff has been presented as an expert in constitutional matters. He was

266 The Wait for the End of the Appeal said to have made his own contribution and not to have been simply a follower of the views of the Privy Council.16 Yet D.R. Williams in his biography concluded that Duffs view of the law as a "social instrument" had no application to the field of constitutional law.17 The consistent comments over the years as to how the Privy Council dominated the Supreme Court with regard to the constitution indicate that during Duffs tenure on the court he was seen to have been a follower rather than a leader. In general terms, his biographer saw him as non-creative. Duffs non-creative characteristic, his being identified as a student rather than a teacher, was given expression in his anti-academic sentiments with regard to the law. In an address delivered at the eighteenth annual meeting of the Canadian Bar Association held in Ottawa in the late summer of 1933 he said: "[The following of precedent] is an art which could only serve its purpose in the hands of a profession disciplined in the practice of the law by actual daily contact with business, and trained in the severest of schools to realize and act upon the necessity that the decisions of the courts must be reasonably predictable, and upon the equally cogent necessity that the rules of law must be capable of adaptation to the conduct of practical affairs."18 Perhaps this was just rhetoric, but it minimized the intellectual element in the law, and was in reality emphasizing only the need to relate the law to social reality without acknowledging that awareness of social facts could be acquired in ways other than the day-to-day work of a practising lawyer. He added that he conceived of the profession of the law as a guild which for centuries had kept, practised, improved, and perfected the mystery and art of the law. These were not the thoughts of a progressive jurist. In 1936, at Dalhousie University, Duff gave a convocation address in which he said that in some parts of North America the existence of law schools for the training of lawyers has resulted in an over-emphasis of the academic side of the lawyer's discipline.19 The simple conclusion with respect to Duff is that this uncreative judge epitomized the "sterile" years of the court's history. As the basis for his supposed judicial stature, his biographer relied upon the opinion that the other judges of his time were mediocrities, and that Duff stood apart in comparison. If true, then based on the assessment of Duff himself, we have the ultimate identification of the period of judicial sterility.20 In the summer of 1944 before a replacement for Duff had been appointed, Henry Hague Davis, Duffs closest friend on the court, died after a lingering illness at the age of fifty-eight.21 There were now two vacancies on the bench. The new judges were appointed only three days apart: Roy Lindsay Kellock from Ontario on 3 October 1944, and James Wilfred Estey from Saskatchewan on 6 October 1944. Kellock had practised law for twenty years and had been a judge on the Ontario Court of Appeal for two years prior to his appointment. He was one of the lawyers who had been selected to work with

267 The Captive Court Duff on the Hong Kong inquiry of 1942. Estey, on the other hand, had an extensive political career behind him. A Liberal, he had been a member of the government in Saskatchewan for ten years until the defeat of the Liberals by the Co-operative Commonwealth Federation (CCF) in 1944, which had occurred just prior to his appointment to the court. DURING THE 1940S the criticisms of the Privy Council continued, indicating that despite the long existence of the appeal and the mystique that had surrounded it, the parting with the board was not going to be clean. The famous Rowell-Sirois Report on Dominion-Provincial Relations was issued in 1940, in which the view was stressed that the Privy Council had changed the constitution.22 This point had been made clearly by Haldane at the end of the nineteenth century, and repeated often. The idea of the judiciary changing the meaning of the constitution had been shunned by Canadians, but it was now of use - unfortunately not as it should have been, to awaken the understanding of the nature of the judicial function, but to condemn the work of the Privy Council. In one of the first major academic articles to appear in a Canadian law journal, the board was severely criticized for its handling of constitutional cases.23 The author, concluded: "An examination of the foregoing cases amply demonstrates the fact that they have produced general uncertainty, and rendered prediction almost impossible. The privy council's great fear has been self-reversal; stare decisis has been its professed touchstone."24 The Supreme Court was accepted as having been always forced to base its decisions on previous Privy Council decisions, and even though there was a nagging doubt about how well the court would have performed had it been on its own, yet the conclusion was that it should be allowed to function without the appeal. The author went on to conclude that since constitutional interpretation depended on policy (a point that was not at all generally accepted within the legal profession in Canada), then the development of the constitution "would be best directed by a Canadian court with first-hand experience of Canadian conditions and needs."25 In a book review written in 1946, Bora Laskin noted that writers on the Canadian constitution were engaged in a " 'year around' open season on the Privy Council (an activity now enjoying almost the status of a national pastime)."26 The preoccupation of legal scholars with "Privy Council bashing" was in full swing, and would continue for some time. Laskin acknowledged that he was thoroughly enjoying the situation. The book that Laskin was reviewing was one that was much quoted in the late 1940s, Problems of Canadian Sovereignty written by Maurice Ollivier and published in 1945. Ollivier was a law clerk of the House of Commons, an association that gave his work added importance. He dealt fairly extensively with the appeal issue and accepted that the constitution had been misinter-

268 The Wait for the End of the Appeal preted by the Privy Council. All of the arguments in favour of abolition were presented. For Ollivier the appeal that had been the appeal to the foot of the throne with its mystic quality of ultimate justice and the link of Empire, had become "a costly nuisance."27 Forces within Canada would not allow a graceful development with respect to the abolition of the appeal, but were creating a sharp and unpleasant parting. As the time approached when the appeal would be abolished, there appeared for the first time an account of the establishment of the Supreme Court.28 It was by an historian. Although it was only an article and could not deal in depth with the events that surrounded the creation of the court, yet it was a contribution. The concluding paragraph of the piece strongly suggested that only by standing behind the court and supporting it as an institution, could it achieve success. The article supplied a necessary item in the creation of an image of self-respect for the much maligned institution. As a symbol of the status of the Supreme Court in society, nothing could be more obvious than the building in which the court was housed. In the debates on the establishment of the institution, there was no mention of a building, and when the court began in 1875, it initially sat in the Parliament buildings in the Railway Committee Room. It soon moved into a building that was originally erected to house workshops built during the construction of the Parliament buildings. It had been considered inadequate, for some time,29 but Hector Langevin, the minister of public works from 1879 until 1891, the member of Parliament who had been unseated by the court in Brassard v. Langevin in 1877, maintained that the building was satisfactory.30 It was finally condemned by the National Health department in March 1936 as injurious to the health of the occupants and a definite fire hazard. The foundation stone of the present building was laid by Her Majesty Queen Elizabeth in the presence of King George VI on 20 May 1939.31 The court began to hear cases in it in 1946. During the war the government used it as office space. The first case to be heard in the new building was the Japanese Deportation reference. The social values caught up in the case greatly trouble our society to this day. REFERENCE RE DEPORTATION OF JAPANESE, 1946 The rampant racism with respect to Orientals that had infected a significant portion of the people of British Columbia from its early days was allowed to take on the dress of patriotism following the attack by the Empire of Japan on the American military base at Pearl Harbor in the Hawaiian Islands on 7 December 1941, which was followed by the effective destruction of British maritime power in the Pacific by the sinking of the battleship Prince of Wales and the battle cruiser Repulse on 10 December; Hong Kong, with Canadian

269 The Captive Court troops involved, fell on Christmas Day 1941. In a non-partisan show of solidarity, the members of Parliament from British Columbia demanded action against those of the Japanese race in the province, which at the time would have accounted for well over 90 percent of the people of Japanese origin in Canada.32 Early in 1942, a policy was initiated of moving the Japanese from the coastal area of British Columbia to other parts of the country. Once the Japanese had been removed from view and their property sold, the members of Parliament from British Columbia, both Liberal and Conservative, sought to complete the task by ensuring that they would never be allowed to return to their previous homes. Removal from Canada was the next item on this racist agenda. The government of Mackenzie King was reluctant to accept that all Japanese should be exiled, and a scheme was developed to give to the Japanese a choice of staying in Canada or going to Japan, with only those who opted to leave the country being sent away. On 4 August 1944, the prime minister announced the policy in the House of Commons.33 The choice that was given to the Japanese Canadians was between "repatriation" to Japan at some future time, with the promise of financial support for the resettlement, and permission to remain in British Columbia until then, or immediate removal away from their homes to the east of British Columbia. Those who chose to stay in Canada and move eastward were required to take government-assigned work or lose relief benefits, and they had no guarantee of employment beyond a few weeks. Since only Saskatchewan had expressed a willingness to accept any of the Japanese Canadians, they also faced the prospect of a hostile reception in other provinces.34 The treatment that the Japanese Canadians had received up to then would certainly have generated feelings of protest that could reasonably have manifested itself in a renunciation of the country that had uprooted them and sold their property. In the United States the plan of having Japanese Americans renounce their citizenship and thereby opening the door for later deportation failed when the Supreme Court of the United States held that the renunciation of citizenship had been made under duress and was thus invalid.35 "Repatriation" was ultimately accepted by 6,884 Japanese Canadians over sixteen years of age, and when the wives and children of those who elected for "repatriation" were added the number rose to 10,347, almost 43 percent of the total number.36 There were no voices of protest against the action of the government while the war was under way, although a Gallup poll taken in February 1944 indicated that while 80 percent of those polled favoured deportation of Japanese aliens, the figure dropped to 33 percent for those who favoured deportation of Canadian-born and naturalized persons of the Japanese race. British Columbia was in line with Canadian opinion in general.37 In 1945, opposition to the plan began to increase noticeably among Canadians.38

270 The Wait for the End of the Appeal

When the war ended, the government intended to replace the War Measures Act with the National Emergency Transitional Powers Act, in which it was planned to include a section that would have given the government the power to control "entry into Canada, exclusion and deportation, and revocation of nationality." However, faced with the opposition by the members of the CCF party and the appearance of the opposition in the press, Mackenzie King's government withdrew the provision at the end of 1945. The only vocal support for the section had come from members of Parliament from British Columbia, who spouted well-worn racist sentiments about the Japanese. When the government failed to have the deportation provision included in the National Emergency Transitional Powers Act, it set about to deal with the situation by creating three orders-in-council under the authority of the War Measures Act, due to expire 1 January 1946. The orders-in-council were passed on 15 December 1945, and were announced in Parliament on the evening of 17 December. Only Alistar Stewart, the CCF member from Winnipeg North, spoke out attacking the racism of certain members from British Columbia and accusing the government of hypocrisy. He charged that this policy of the Liberal government was "a direct negation of Liberalism and of decent, elemental, fundamental democracy." He also added that the government was "an organized hypocrisy."39 The substance of the three orders-in-council40 was as follows: The first authorized the minister of labour to make orders for the deportation to Japan of the following categories of persons: those who were sixteen years of age or older and nationals of Japan who were resident in Canada, and who had made a request for repatriation, or who had been detained under certain regulations and were so detained on 1 September 1945 (which covered aliens); those who were naturalized British subjects of the Japanese race sixteen years of age or over, resident in Canada, who had made a request for repatriation; and those who were natural-born British subjects of the Japanese race, sixteen years of age or older, resident in Canada, who had made a request for repatriation were to be included. Excluded would be naturalized Canadians who had revoked their requests for repatriation before 2 September 1945, and native-born Canadians who revoked their requests at any time up to actual deportation. The second order provided that those persons who were deported would cease to be British subjects or Canadian nationals, while the third provided for the appointment of a commission to make an inquiry concerning the activities, loyalties, and extent of co-operation with the government of Canada of Japanese nationals and naturalized persons of the Japanese race during the war. The orders-in-council caused an unprecedented outburst of public sentiment against the proceedings. With an impressive array of Canadians opposed and the threat of a multitude of habeas corpus proceedings that would

271 The Captive Court clog the process, the government agreed to bring the legal system into the problem, and refer the question of the validity of the orders-in-council to the Supreme Court of Canada. The existence of the prime constitutional rule of parliamentary supremacy, combined with the record of the judiciary in not monitoring the executive under the War Measures Act,41 or in general, must have made the opponents of the orders believe that all that had been achieved was a gain in time in which to mount greater public opposition to the orders. Whatever power of moral persuasion might be gained by the government possessing a decision of the Supreme Court and (inevitably) the Privy Council might be offset by the gain in time. This proved to be the case. An anti-deportation campaign was launched during January and February of 1946. The Supreme Court heard the reference on 24 and 25 January and the decision was rendered on 20 February.42 The validity of the orders was upheld in the main, but the provision forcing the wives and children to go with their husbands and fathers regardless of their personal wishes was held to be invalid by a 4-3 margin. This result was likely not anticipated by the government, or even by the opponents of the deportation. What must have been completely unexpected was the fact that there was dissent with respect to other parts of the orders. Not only had time been gained, but the moral weight of a decision of the Supreme Court had been shattered by the existence of dissenting judges. The question before the judges was whether it must be indicated in the order that the government had deemed the order necessary or advisable for the security, defence, peace, order, and welfare of Canada, or whether this could be presumed. Chief Justice Rinfret wrote a judgment, and with Kerwin and Taschereau concurring, backed off completely from challenging the orders. As far as these three judges were concerned, the power given the executive under the War Measures Act was legislative in nature and equivalent to an act of Parliament, and was thus beyond being questioned by them. Rinfret added a standard disclaimer that he was not concerned with the policy of the measures, which was the concern of the government, and could not be questioned by the court.43 Estey and Hudson upheld the validity of the main parts of the orders on the basis that they applied only to those who had requested to leave the country. There was thus, in their opinion, no forcible removal or deportation involved. Since these two judges relied on the idea of a request to leave, they denied validity to that part of the orders that provided for the inclusion of wives and children. The element of compulsion that was present could not be justified under the orders, they maintained; there had been no statement on the part of the government that such action was necessary for the security of the nation, as required by the War Measures Act. A small step had been taken.

272 The Wait for the End of the Appeal It remained for Ivan Rand and Roy Kellock to take a greater step. They accepted that the government had the power to deport Japanese nationals as aliens, as well as naturalized persons. But Rand saw serious questions when it came to natural-born Canadians. The problem lay with the word "repatriation," which meant a return to patria, and could have no relation to people born in Canada. Their expulsion would amount to banishment, which he saw as a legislative and executive impossibility in the world of 1946. Rand struck directly at the racism involved: "Now I must deal with this case as if, instead of a Canadian national of Japanese origin, I were dealing with that of a natural born Canadian national of English extraction who sympathized with Mosley or a French-Canadian national who supported Petain or an Irish-Canadian national who thought deValera's course justified."44 He could not accept that the power delegated to the executive under the War Measures Act would include the sending of a Canadian to another country without agreement of that country. He viewed it as a violation of the sovereign rights of the other country. Rand stripped away the facade of the orders - he pointed out that if indeed the deportation order was based on a request to leave the country and thus was a voluntary "leaving," and the government had agreed to make financial arrangements, then he could find in the order clear evidence that such an act of expulsion was not deemed by the Governor in Council either necessary or advisable for the peace, order, or welfare of this country by reason of war, and thus the essential condition of the provision for compulsion was lacking. In addition, the two judges simply could not accept that the expulsion of wives and children was necessary for the peace or welfare of the country. The case went to the Privy Council, and the ex-chief justice, Lyman Duff, was brought out of retirement to sit on the board. The government apparently had one more task for him to perform (in addition Duff was from British Columbia). The other members of the panel were Viscount Simon, Lord Wright, Lord Porter, and Lord Uthwatt. Lord Wright rendered the judgment of the board.45 The judgment of the Privy Council was simple and to the point. During an emergency such as would justify proclaiming the War Measures Act into force, there was power in the dominion to deal adequately with the emergency for the safety of the nation as a whole. Although legally it was possible to attempt to prove that an emergency did not exist, yet the rule was that very clear evidence was necessary that no emergency had arisen, or that the emergency no longer existed, before the judiciary would be justified in overruling the decision of Parliament that exceptional measures were required or were still required. This was so even though the question was one of ultra vires. That "very clear evidence" was not forthcoming in the case. Of course there was the disclaimer: "it is not pertinent to the judiciary to consider the wisdom or the propriety of the particular policy which is

273 The Captive Court embodied in the emergency legislation."46 This conclusion excluded any concern with the civil liberty issues by the judiciary. With the wide terms of the grant of legislative power to the executive in the War Measures Act, the Privy Council stated that it was impossible that any argument limiting the executive's power could succeed. On the point of the wives and children, which a majority of the Supreme Court judges had agreed was beyond the government's authority, the Privy Council concluded that no proper inference could be drawn that the government did not also deem it necessary or advisable for the security, defence, peace, order, and welfare of Canada that they should be liable to deportation. This was the judgment that the government had wanted, but it had not been given by the Supreme Court of Canada, but had been obtained from the Judicial Committee with Duffs help. The judgment of the Privy Council was delivered on 2 December 1946. It was too late for Mackenzie King. Time had been won by the opponents of the expulsion, and on 24 January 1947 it was announced that the orders-in-council were repealed. By then it was generally accepted that they would no longer have been used in any case.47 One element of the orders was retained, however, in that there was the requirement that any person of Japanese origin still needed a permit from the minister of labour to change his place of residence. This was known as the British Columbia exclusion order. With the exception of the CCF member from Vancouver East, Angus Maclnnes, the members of Parliament from British Columbia continued to be opposed to the Japanese. In the House of Commons John Diefenbaker, a Conservative member from Lake Centre, Saskatchewan, urged the adoption of a Bill of Rights. Although, as noted by one author, the judges of the Supreme Court might be criticized as having rendered judgments that were "legalistic, cautious, retiring and practically bereft of theoretical reasoning," yet there was a definite spark of creativity in the case, particularly in the judgment by Rand. Only Rinfret, Kerwin, and Robert Taschereau showed no inclination to wield the power that they possessed in favour of concern toward humanity. It was interesting to note that the author of the criticisms mentioned above, could excuse the judges because he considered that such judgments were to be expected in Canada since the judges were thought to be able to consider only "legal points."48 The non-creative, mechanical approach of the legal profession had apparently become an accepted norm for the public, and more important, it served to shield the judges from criticism. THE APPEAL TO THE PRIVY COUNCIL REFERENCE The reference case dealing with the ending of the appeal that had been decided by the Supreme Court in 1940 was heard by the Judicial Committee in late October 1946 before the large bench of seven judges. The judgment of

274 The Wait for the End of the Appeal the board was rendered in January 1947 and it confirmed that Ottawa did indeed have the power to end all appeals.49 The provinces of Ontario, New Brunswick, and British Columbia had fought against recognizing the power of the dominion, while Quebec, Manitoba, and Saskatchewan, as well as the dominion government itself, had supported the existence of the constitutional authority. Nova Scotia, Prince Edward Island, and Alberta had not taken part in the case. It was not long after the Privy Council decision on the appeal question had been released that a private member's bill to abolish the appeal was introduced.50 It was a simple affair, and the only opposition came from Thomas (Tommy) L. Church, a Conservative member from the Toronto riding of Broadview, and ex-mayor of Toronto. Statements about the British connection were fading fast as far as public expression was concerned. However, nothing more happened during that session, or the next. Thoughts of sovereignty dominated, and concern with the Supreme Court cropped up only briefly. Tellingly, Jean Lesage, member for MontmagnyL'lslet in Quebec, and future premier of the province during the Quiet Revolution, suggested that apprehensions did exist with respect to the Supreme Court, and something might have to be done about them.5' Finally in the late summer of 1949, the Liberal government of Louis St Laurent introduced the final bill. In the lengthy debate that ensued, nothing new was added to what had been expressed over the years. The abolition was characterized as part of the process of achieving full self-government, of complete nationhood. The Conservative opposition's contribution to the debate was to suggest that more study was needed owing to the importance that the Privy Council had had as an interpreter of the constitution. The conservative viewpoint with respect to the legal process and the role of the Supreme Court came through when the leader of the opposition, George Drew, suggested that the Supreme Court should be kept aloof from anything that might savour of political controversy in order that respect for it would be maintained. He did not relish Canada having the situation that he saw existing in the neighbouring republic with the Supreme Court of the United States and which had become the centre of political controversy due to its interpretations of the constitution.52 Prime Minister St Laurent quickly attempted to avoid any such discussion by saying that the Supreme Court of Canada would not create new law, but would apply the law as it existed. This would require, he added, "the right kind of a court of justice."53 The "right kind" of court had to be one that resembled what had gone before — uncreative, mechanical — one that would not appear to challenge the government for political power. The statute to abolish the appeal to the Privy Council and to make the judgments of the Supreme Court final and conclusive was finally given royal assent on 10 December 1949.54

275 The Captive Court As the movement towards abolition had gained momentum in the thirties and forties, the notion of the captivity of the Supreme Court had come to the fore. For a preponderance of the members of the legal profession, the captive mentality was accepted as the proper disposition for a "legal" system. However, the movement to end the appeal had expressed the idea that Canadian values should be taken into account by judges, and this could not happen with the members of the Privy Council. Thus conflict within the legal system was inevitable as the notion of the taking of social values into account jarred against the idea of law as consisting of fixed rules to be discovered by the judge and applied through linguistic analysis. For those who viewed the law and its application as much more than the mere mechanical application of words to facts, there would be need for the court to shed its captive mentality once it had become the ultimate court of appeal for Canada — but could it? FOR CANADIAN LAWYERS, the Privy Council appeal had allowed them to participate in the glory of the English legal system. In an article written in 1978 about the last case that had gone to England, the writer, W.G. Morrow, a judge of the Northwest Territories Supreme Court, had expressed the feelings well: "some of the romance in law now appeared to have disappeared." There was expressed by Morrow a sense of awe, at having been in England, at having "truly gone to the foot of the throne." There was "a feeling of sadness."55 There could indeed be sadness after so many years, but it had to relate to the manner in which the appeal was ended. Throughout the years something had prevented reliance on national pride from being the basis of the abolition of the appeal; rather it was felt necessary to attack the quality of the work of the Committee. The true sadness was that the parting had been soiled. The Privy Council had performed well over the years and the severe criticisms that had occurred were mainly political in nature. The judges of the Supreme Court must have known this: now the criticisms would potentially be turned on them - what would be their fate? To honour the event of the creation of the Supreme Court as the final court of appeal for Canadians, Macleans ran one of its periodic feature articles on the court. This time it was entitled "Seven Wise Men."56 The image that was projected to the public was that the court was to be supreme in fact for the first time, and second only to Parliament in importance. The question remained whether the judges of the Supreme Court of Canada would be up to the challenge. As part of the transition to the final court of appeal, the number of judges was increased from seven to nine (the Supreme Court of the United States had nine judges). The two judges that were added were John Robert Cartwright from Ontario, and Gerald Fauteux from Quebec. When the total was

276 The Wait for the End of the Appeal increased to nine, Quebec received a guarantee of three judges, an increase of one. Thus, one of the two new judges had to be from Quebec.57 Cartwright's appointment from Ontario maintained the practice of equality between Ontario and Quebec. Cartwright had no judicial experience but was a highly respected lawyer from Toronto. He was a bencher of the Law Society of Upper Canada (when first a candidate in 1946, he had headed the poll). Fauteux had been a judge of the Quebec Superior Court for two years, and prior to that, his fame lay as a crown prosecutor. His brother was Speaker of the House of Commons and soon to be lieutenant governor of Quebec. Both his grandfather, Honore* Mercier, and his uncle, Sir Lomer Gouin, had been premiers of Quebec. An earlier change in personnel had occurred in 1947 with the death of Albert Hudson of Manitoba.58 His position was taken by Charles Holland Locke from British Columbia. Locke had initially been a member of the bar in Manitoba, and had studied in Hudson's law office in Winnipeg. He had moved to British Columbia in 1928. He was generally considered a leader of the bar in that province, and had been elected as a bencher of the Law Society. The reference case that dealt with the exiling of Japanese Canadians had been permeated with notions of civil liberties. World War II had been fought with battle-cries of freedom, but the court entering the postwar era of the 1950s had a solid core of what could be called conservative "law and order" judges. There was increasing agitation for a written bill of rights and the rallying point became the infamous royal commission known as the Espionage Inquiry of 1946. Following the disclosures of Soviet espionage activities by Igor Gouzenko in 1945, the Canadian government established a royal commission to investigate the communication by public officials and other persons of trust of secret and confidential information to agents of a foreign power.59 Robert Taschereau and Roy Kellock of the Supreme Court were appointed as the commissioners, and Gerald Fauteux was named legal counsel to the commission. John Cartwright was later named as counsel for the government in the prosecution of those named in the report of the royal commission. At the request of the commissioners, Taschereau and Kellock, the government had ordered twelve people detained under the authority of a secret order-in-council.60 They were held incommunicado for several weeks and examined in secret by Taschereau and Kellock and the Royal Canadian Mounted Police. Later, hearings were conducted from 13 February to 27 June 1946, while the Japanese Canadians case was under consideration by the Supreme Court. The existence of the commission awakened public interest in civil liberties, and it came under attack in the legal journals by its employment of inquisitorial methods, that were considered to be an anathema for

277 The Captive Court common-law lawyers. Witnesses were not informed of their rights, and they were refused legal counsel.61 When the report was released it was unusual for being in effect an indictment of certain people and effectively outlined their conviction. As had Lyman Duff, the commissioners, Taschereau and Kellock, had done their government work well. The bar had been involved in the commission in the form of E.K. Williams, the president of the Canadian Bar Association, who was a commission counsel with Gerald Fauteux. In the Japanese Canadian case, Ivan Rand had made a definite judicial commitment to civil liberties. His American legal education had begun to show. With the strong conservative element in the court and the awakening of civil-liberty issues in the society, there would be an interesting decade ahead for the court, and the legal system.

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PART E The Final Court of Appeal for Canada, 1950-1959

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21 A New Beginning?

The appeal to the Privy Council had been abolished. Once those cases that were already in the legal system when the abolition occurred had worked their way through to an end, the appeal would become only a memory. There was not only the possibility of a new beginning for the Supreme Court, there was also a sign that legal education was at the threshold of something new as well. A dispute regarding the importance of the study of law in an academic setting was bedeviling the Law Society of Upper Canada's school, Osgoode Hall, and resulted in the resignation at the beginning of 1949 of the Dean, Cecil Wright, along with three professors, John Willis, Bora Laskin, and Stanley Edwards. This left only two full-time teachers.1 The renegade teachers desired a legal education that would be full-time, while the Law Society wanted to continue a part-time education at the school with concurrent office training. It was not only the status of legal education that was in question, but its nature was being challenged as well: the move was being made away from what was called a narrow "professional" program, in which the nature of the legal system would not be examined, and the courses would be informational, with a steady diet of rules and cases, toward a process oriented program, in which the nature of decision making in the legal system would be examined in all its aspects.2 Legal academics, a rare breed before 1950, could have served better than anyone else as critics;3 however, part-time teachers, who naturally identified with practitioners, dominated, and were uncomfortable being too critical of the profession. Even full-time teachers were in the main too interested in being accepted as members of the profession to become serious critics. The predominant view within the entire profession was that criticism undermined public confidence in the administration of justice. Many within the profession viewed the time spent at law school as largely irrelevant to the practice of law, which was unfortunately all too true. Since the education was overwhelmingly rule-oriented and informational, and the

282 A New Beginning? process of legal decision making was not dealt with, it imparted an artificial, one-dimensional view of the system. The opinion that the educational component was seriously wanting naturally affected the status of the legal academic within the profession, and consequently the role of the academic as critic as well. Since legal studies in an academic setting were viewed as only a small part of the practice of law, then the views of the teachers of such material would lack credibility and be largely irrelevant. To the extent that legal education would actually change, currents of thought would then be sent throughout the profession, to the very top - to the Supreme Court of Canada. With the revolt at Osgoode Hall Law School lay the seeds of a true "new beginning." Whatever lay ahead for the intellectual life of the law and the academic component of the legal profession was unknown, but a famous and highly disturbing occurrence at the beginning of 1950 was a portent of ill times. During the argument in a reference case, Reference re Validity of the Wartime Leasehold Regulations? Chief Justice Thibaudeau Rinfret refused to allow a lawyer to refer to an article in the Canadian Bar Review, for the reason that it was "not an authority in [the] Court." The preoccupation with finding "authorities" had long ago taken hold of the mind of the legal profession, and had resulted in a rule that stated that only the writings of dead authors could be cited as "authorities." The requirement that the author be dead naturally meant that that person could not have a change of mind. The possibility that a writer might have second thoughts created uncertainty and muddied the waters with the use of "authorities." However, the fact that the chief justice should have been prepared at this point in the court's history to take such a stand did not bode well for the court itself. A positive sign from a number of perspectives was that G.V.V. Nicholls, the editor of the Canadian Bar Review, effectively demolished Rinfret's assertion in an article. He concluded pointedly: "It raises the question whether the Supreme Court's approach to the judicial process is to be as broad and forward-looking as is expected from Canada's final court of appeal."5 There was criticism from within the bar and it displayed an awareness of the need for a "broad and forward-looking" approach. The new court of 1875 had faced a baptism of fire at its beginning, and had performed creditably. At the onset of its new life in the 1950s, the Supreme Court faced a case that was of considerably less dramatic impact than those of the 1870s, but which was nevertheless of public interest and did bring out a number of questions. CANADIAN WHEAT BOARD v. HALLET & CAREY LTD AND NOLAN, 1950 As part of the regulation of the economy that was undertaken by the government at Ottawa during World War II, the price of barley had been fixed in

283 The Captive Court 1941 at roughly $0.6475 per bushel. An American named Nolan bought 40,000 bushels in 1943 ($25,900) and stored the grain in elevators owned by Hallet & Carey Ltd. Following the war in 1947, the price of the grain was increased to $0.93 per bushel and Nolan expected to realize a profit of 44 percent ($11,300). Unfortunately for him, the government decided to prevent "decontrol profiteering" and to prohibit dealers who had bought grain at the low price from selling it at the new price. Grain dealers were directed by the government to voluntarily sell the grain they held to the Wheat Board at the old price, but because of opposition by the dealers and owners to the scheme, this voluntary procedure failed, and the government then issued an order-in-council providing that the ownership of all barley in the hands of commercial dealers at midnight on 17 March 1947 would vest in the Wheat Board, which was then directed to pay the old price as compensation. The barley would be offered back to the dealers at the new price. Nolan did not accept this state of affairs and brought an action to obtain possession of the grain that he had bought as well as the documents of title from his agents, Hallet & Carey Ltd. The company justified its refusal to deliver up possession of the grain and the documents by relying on the orderin-council. In another action, the Wheat Board sued the agents for the documents of title and the barley itself. By consent Nolan was added as a defendant in this litigation. In order to succeed, Nolan had to challenge the validity of the order-in-council on the basis that it was not authorized by the National Emergency Transitional Powers (NETP) Act, 1945,6 which had been enacted after the war to take over from the War Measures Act. The specific question that faced the judges was whether the authority for the order-in-council that resulted in the confiscation of Nolan's property could be found in the language of section 2(l)(c), (e) of the Act: The Governor in Council may ... make from time to time such orders and regulations, as he may, by reason of the continued existence of the national emergency arising out of the war against Germany and Japan deem necessary or advisable for the purpose of... (c) maintaining, controlling and regulating ... prices ... (e) continuing or discontinuing in an orderly manner, as the emergency permits, measured adopted during and by reason of the war.

In addition to the words of the above law, the language context, there were also a number of other facts that provided a legal context. The War Measures Act had contained a provision (section 3 (/)), that stated: The Governor in Council may ... make from time to time such ... orders and regulations, as he may by reason of the existence of... war ... deem necessary or advisable for the security, defence, peace, order and welfare of Canada; and for greater

284 A New Beginning? certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor in Council shall extend to all matters coming within the classes of subjects hereinafter enumerated, that is to say ... (f) appropriation, control, forfeiture and disposition of property and of the use thereof.

Thus, during the war, there had been a provision that expressly authorized the taking of property. Another part of the legal context was the preamble to the NETP Act, which stated that since the emergency conditions created by the war had continued, there was a need for the government to have certain transitional powers to deal with the situation; it was deemed preferable that instead of continuing to use the authority of the War Measures Act, a new and special law was created that would authorize the government "to do and authorize such further acts and things and make such further orders and regulations as he may deem necessary or advisable by reason of the emergency." In addition there were the specific powers of the NETP Act, other than subsections (c) and (e): (a) providing for and maintaining the armed forces of Canada during the occupation of enemy territory and demobilization and providing for the rehabilitation of members thereof, (£) facilitating the readjustment of industry and commerce to the requirements of the community in time of peace ... (d) assisting the relief of suffering and the restoration and distribution of essential supplies and services in any part of His Majesty's dominions or in foreign countries that are in grave distress as the result of the war.

A point that generated some controversy among commentators on the litigation was what to do with the information concerning the legislative history of the NETP Act.7 The bill that was originally introduced by the government had contained a provision that gave the government power to deal with the "appropriation, control, forfeiture and disposition of property." The opposition party objected to the inclusion of the power of forfeiture of property, and objections were also registered by the provinces whose representatives were attending a dominion-provincial conference at the time. The government responded to the objections by amending the bill and deleting the forfeiture provision (among other items), and the bill as passed contained the powers as expressed above in subsections (a)-(e). Some members of the opposition were still uncomfortable, and John Diefenbaker noted in Parliament: "We raised strong objection to the power which the government was asking for of appropriation, control, forfeiture and disposition of property ... That subsection has

285 The Captive Court been removed and in place of it another has been brought in namely 2, 1, (c), which in different terms, and terminology still grants the absolute power the governor in council has asked for under the original bill."8 There was no mention of the facts with regard to the legislative history in the twelve judgments that were rendered in the litigation. There was also, of course, the social context, which would entail concern with social values relating to government power, individual rights, property rights, government control over the economy, and so on. Choices were there, as always. The issue was whether the challenged government order was valid or not. The answer had to be based on the above information - there was nothing more that the judges could consider. The trial judge, the chief justice of the Court of King's Bench in Manitoba, had concluded that the order-in-council was invalid since it was not authorized by the provisions of the NETP Act. He clearly reacted to the exercise of power by the government, and thought that he should protect someone such as Nolan "to as great an extent as possible" in the interests of justice.9 He also relied on his knowledge of social conditions to conclude that there was no emergency at the time with respect to barley. The most significant part of the legal context for the trial judge was the fact that the War Measures Act had expressly permitted the appropriation of property, and the absence of this power in the NETP Act showed an intention to withhold the power. The five judges of the Manitoba Court of Appeal were in harmony with the trial judge and were unanimously of the opinion that the order was invalid.10 Four judgments were rendered in which it was clear that the judges disapproved of the exercise of power by the government to seize private property. One judge went so far as to assert the existence of a constitutional right to the enjoyment of property, which would require clear and unambiguous language in a law before he would accept that confiscation had been authorized. Another asserted as a principle of law that the confiscation of private property could not be implied in a law; it had to be expressly provided for. With respect to the government action, the word "astonishing" appeared in the judgments. Social facts came blasting through in the following statement of one of the judges: "[Expropriation of private property by the state, without provision for an adjusted or arbitrated compensation, is so alien to Canadians that it almost raised a presumption that neither parliament nor the Governor-in-Council intended what is attempted by this order-in-council."" The next step in the litigation was an appeal to the Supreme Court of Canada. The case was heard in May 1950 by seven judges. The result was a 5-2 decision in which the majority held that the order was invalid. The majority consisted of Rinfret, Taschereau, Rand, Locke, and Cartwright, while Kerwin and Estey dissented.12 There were six judgments written, and it was noticeable that there was no emotional language or comments, and a seeming

286 A New Beginning? lack of input of the social context, unlike the judgments in the Manitoba courts. Only Locke made a reference to a rule of interpretation that provided that the language of a law must be clear before it would be interpreted to allow the taking away of a property right, but it was unclear as to what he did with the rule. What stood out was that throughout the judgments in the Supreme Court, it appeared as if the judges had had no thoughts regarding any social context. As the chief justice of Manitoba had pointed out, the most significant aspect of the case was the fact that the War Measures Act had contained a specific provision that was excluded from the language of the NETP Act, which led to the conclusion that such a power was not intended to be included in the NETP Act. The dissenting judges, Kerwin and Estey, simply emphasized the language of the relevant provisions, and how that language was wide enough to authorize what the government had done. The case had been under way in the legal process prior to the abolition of the appeal to the Privy Council and it was thus eligible for an application for leave to appeal. It is interesting to note that it was the Canadian government that decided to take the case to England. Such an action could hardly be taken as a vote of confidence for the Supreme Court at the beginning of this new era of its existence. The Privy Council delivered a further blow when it reversed the Supreme Court and held that the order was valid. The reasons were simple: the attitude of the judges should be one of restraint and any query about the purpose of such measures should be put aside; the sole question was whether the words used in the Act were capable of granting the power. The words were seen as clear and unambiguous. As part of the judicial policy of restraint with regard to government policy, the board denied that there was a rule of construction that express language had to be found before it would be accepted that property rights were to be interfered with.13 The most dramatic aspect of this litigation was the subsequent appearance of one of the most intense exchanges to occur in the pages of a Canadian legal journal, in which the existence of the social facts was brought to the fore. The skirmish began with a comment written by an ex-Osgoode Hall teacher and then University of Toronto professor, John Willis, in which he severely criticized the Supreme Court for its decision. In his opinion, an "appalling air of unreality" hovered over some of the judgments. The majority judges were said to be out of tune with the "realities of modern government," and they had approached a socialist act with the eyes of the nineteenth century.14 The use of the word "socialistic" to describe the law with an air of approval was indeed like waving a red flag at a troubled bull. In a series of letters that appeared in the law review, members of the legal profession reacted to Willis' comment by attacking what was described as "totalitarian-

287 The Captive Court

ism." There was no sympathy at all for government involvement in the economy or elsewhere.15 The concluding voice in the Canadian Bar Review was the calm and reasoned one of Wolfgang Friedmann of the University of Toronto.16 His article dealt with the use of political and social facts by a judge, which was a basic concern in an analysis of the case. The "technical legal grounds" apparently employed by the judges of the Supreme Court were a delusion according to Friedmann. He agreed with Willis that modern government was much more involved in society than it had been in the past, and he displayed no distress at the thought. He accepted that judges do make political decisions and commented: Under a democratic system, of which the independence of the judiciary is one of the most precious guarantees, constitutional judges must and do strive for an interpretation untainted by political prejudices and based, so far as is humanly possible, on an impartial consideration of the many factors, of history, logic and political values, which go into a constitutional document. This is a very different thing from the pretence, long abandoned by the greatest of contemporary judges, that the legal interpretation of constitutional texts or of other statutory instruments is devoid of and remote from political and social issues. Such escapism does not help either democracy or judicial independence.17

Battle lines were forming; critics were appearing and speaking out. There was a very clear message that times were changing, both socially and within the legal system. Friedmann had directly challenged the traditional view of the legal process in Canada that the majority of the profession unquestionably accepted. In 1951, the Canadian Bar Review also contained an article on the Supreme Court by Bora Laskin entitled "The Supreme Court of Canada: A Final Court of and for Canadians."18 It provides an excellent source of thoughts concerning the perception of the court, its image up to 1950, and the expectations for it once the appeal to the Privy Council had ended. Laskin has to be seen as a pioneer in legal education in Canada and his views were not those of the leadership of the profession, from which he had separated himself when he left Osgoode Hall for the University of Toronto in 1949. His reputation was in the process of being formed. The article is a pot pourri of ideas about the court. Laskin's view was coloured by his involvement in the attack on the appeal to the Privy Council that had been launched in the 1930s; he placed the court in the context of self-government and of nationhood. One of the badges of colonialism, he wrote, was gone. In the past, he commented, the court had not been viewed as "a potent element in Canadian self-government,"19 but he explained this by the court's

288 A New Beginning? lack of independence, since it had been an intermediate court of appeal, and did not have ultimate judicial authority in the country. At the time in 1950, it might not have been politic for Laskin to have probed deeper; he was part of the legal academic community that had suffered a defeat only a year before when it had to abandon Osgoode Hall, and to launch any major criticisms might not have been advisable while negotiations were under way with the Law Society to recognize the academic program at the University of Toronto as qualifying students for membership in the legal profession. He was prepared simply to point out that the court of pre-1949 had to be viewed as an intermediate appeal court. This left the haunting question as to why the judges had not made a stand for legal self-government, as the nation had done for political self-government. If the absence of an assertion of legal independence was not to be found in the simplistic notion of an intermediate court, then of course the captivity that had operated on the court would carry over after 1949. The crucial part of Laskin's article occurred when he noted that there had been an absence of an independent judicial tradition on the court, which might have simply followed from what he had said before about the Supreme Court being an intermediate court. The compulsion to probe deeper, however, did come through at this point. He commented: "The conservative tradition of the Canadian legal profession reinforced by the awe and timidity of a colonial outlook, and in the late development of university law schools where free inquiry grounded in Canadian experience now gives promise of distinctively Canadian contributions to the common law system."20 Near the end of his article he used the phrase, "a captive court," to describe the problem.21 The captivity had prevented the court from developing any body of doctrine that could be called its own. But what was the captivity as seen by Laskin? He noted that when the occasion arose in which the court might have struck out in a new direction, it had appeared loath to do so, unless the Privy Council had given a lead. For Laskin and others, the nineteenthcentury decisions in which occasional creativity had been apparent had been driven from memory by the intervening sterile years. Laskin lamented that the judges had become engrossed in merely expounding the authoritative pronouncements of the courts. Rather than interpreting the constitution, they had spent their time and energy interpreting what the Privy Council had said the constitution meant. The issue was not, after all, simply being an intermediate court of appeal; the captivity described by Laskin was profound and drove at the heart of the legal system and the entire profession - the judges, the lawyers, and the academics. When Laskin wrote that as of 1950 the court was "a free court subject only to self-imposed limitations,"22 a feeling of discomfort must surely have been aroused within the system. This new "free court," he wrote, "may be expected to make its own assessments of our current social problems and to give us its own solutions."23 Perhaps we could interpolate the thought that it

289 The Captive Court

would also be expected to create a legal doctrine of its own, and to establish an independent judicial tradition. Even more, in deciding constitutional issues the court was expected to assume the grand role of being a coordinate branch of government along with the legislature and the executive; overall, it was expected to discharge a creative role of law making. If the court did not break free of its captivity, Laskin was ready to pronounce a very harsh punishment - it would be "merely a judicial 'zombie,' without soul or character."24 Could the court even come close to achieving what Laskin wanted? As an additional item in the scheme of things, but which was very telling, Laskin dealt with the lack of collective discipline among the judges, marked especially by the lack of judicial conferences. The problem had become so chronic that it possibly should have been considered endemic. As the court began its "new beginning" the thoughts in Laskin's article must have hung like an ominous dark cloud above it. Based on its record and its personnel it seemed impossible that Laskin's directives could be fulfilled; once again it was doomed to failure. Although there seemed to be contentment within the profession, and there seemed to be few in the legal profession that seemed concerned about what agitated Professor Laskin. The nineteenth-century decisions in which creativity did come through on occasion had been driven from memory by the intervening sterile years. David Mills had always been rejected by the profession. In Ontario Laskin and Willis had been effectively driven out of the legal profession's law school. The sterility was still solidly the norm. ANOTHER EARLY CRITIC WAS Gilbert D. Kennedy of the University of British Columbia, son of W.P.M. Kennedy, long-time head of the law program at the University of Toronto. He came out swinging against the court in his 1951 comment on the Interdelegation case. He accused the court of having an "almost 'dead-pan' attitude" and stated that one must wonder "whether we shall ever be more than children of the old country taking all-over leads, except for occasional pranks, from mother's aprons strings." He went on to say that one must be "shocked that, with one exception, no member of the court appeared to see or realize the importance of the task before the tribunal."25 His comments proved to be too much, and the profession struck back at him by calling the criticisms "captious in the extreme," and by pointing out that the constitution was only a statute and the judges "cannot take into account a political expediency of the moment."26 The attitude of the practising bar to critical case comments can be seen in a 1954 comment by E.G. Cowling of Ottawa. For him, it was not worthwhile challenging a decision as to soundness "on academic grounds"; all questions were to be taken as settled except "the still more difficult task of interpreting the interpretation."27 The bar was being given a stagnant role. The exercise of pointing out the weakness of the reasoning in a judgment

290 A New Beginning? would supply arguments, and in "interpreting the interpretation" the weakness of a decision would enter into the equation. The mystery is why not say so, why call it "academic grounds"? The criticisms of the performance of the judges that began in the early 1950s grew into a parade of laments that dealt not only with the decisions reached but also with the much more basic point of the manner in which they were reached. Some legal academics did appear to be assuming a critical role. Gilbert Kennedy continued the onslaught in earnest with a case comment written in 1955 in which he latched onto a comment that Mr Justice Rand had made in a case — Rand had used the phrase: "the authorities in England have pronounced" — after which Rand went directly to his conclusion.28 Kennedy attacked the appearance of a lack of any independent analysis of the merits of the rule, and, in the realist's vein, he urged the judges to give reasons for making their decisions that would contain a discussion of the policy involved in the case and would not simply accept an English case. That the target was Mr Justice Rand was unfortunate. Even if one accepted a mechanical decision-making process, there was a very serious accusation levelled at the court's decision-making process by Kennedy when he accused it of not considering relevant cases. The lack of critics had perhaps permitted the judges to become sloppy. The sum of the criticisms of the time was that the court was not facing its new responsibility as the nation's highest judicial body, and was thus failing to meet expectations. The new era of judicial independence, was not panning out. The captivity was still in evidence. There was an interesting aside by Gilbert Kennedy in his 1955 criticism. Since this was an early attempt at judicial criticism in Canada by a legal academic, one found inserted in the writing a bit of relief in the form of a recognition that "judges are human." It was said that they did not have the luxury of time that academics had and they did not have editorial help to aid in the clarification of thought. What is missing of course is the acknowledgment of the fact that they had each other, and supposedly the lawyers in their written material and oral arguments. Or did they? As a pacifier Kennedy wrote: "Our judges produce, and have produced over the years, some of the finest examples of logical analysis expressed in simple English to be found anywhere."29 Unbelievable! The critics of the legal profession still lacked the power and prestige to be completely aggressive, with perhaps the exception of Bora Laskin and John Willis. In 1958 an article in the Canadian Bar Review approached the question of the development of a Canadian jurisprudence in a very self-conscious and apologetic manner. The author slipped in his comments at the end of the article.30 His audience was primarily the bar. Significantly, his criticism of the judges' tendency to borrow extensively from the judgments of others is

291 The Captive Court relegated to a concluding footnote, which he begins with the words: "Only in a footnote dare the disrespectful suggestions be made." The central theme of the notion of captivity was the lack of independent thought by the judges of the Supreme Court. Laskin had raised the question of the court being under the Privy Council, but it became apparent from his discussion that there was much more to it than that. The judges were preoccupied with interpreting the Privy Council cases. Kennedy raised directly the undue reliance on English decisions, and the lack of independent analysis. Of the signs of captivity none illustrated the condition better than the reliance on English decisions. The civil law of Quebec had a certain immunity, but once it had been determined that the law in Quebec had been based on English law, then any differences disappeared. "THE A U T H O R I T I E S IN ENGLAND HAVE PRONOUNCED" The manner in which the decisions of the courts in England were treated by the Supreme Court and other Canadian courts that followed the law of England was a highly illustrative example of some form of captivity, although what created this specific example was not entirely clear. We are not dealing here with the cause of the captivity, but its most pronounced symptom. By the time the Supreme Court was created in 1875, there had developed a rule that later became known as the rule in Trimble v. HilL This rule stated that if a colony enacted legislation that was essentially a copy of an English statute, then a decision of the English Court of Appeal that had interpreted the parent English statute should be followed by the colonial judges.31 The policy behind the rule had been clearly articulated in Trimble v. Hill'm 1879: "It is of the utmost importance that in all parts of the empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same."32 The following year, in 1880, Lord Blackburn was able to say in the House of Lords: "The Canadian lawyers who gave evidence in this case tell us ... that in construing the effect of the Canadian law when taken from the English, they look to the English decisions, and say the English law is to be understood, and is meant by these Acts to be carried over, bodily, to Canada."33 This quote indicates that the subservience to English cases was very much a Canadian creation. Uniformity of the law within the Empire was obviously a policy to be considered, but by this time Canada had achieved almost complete power of internal self-government. While the rule in Trimble v. Hill was concerned with the interpretation of a colonial statute taken from an English act, in Canada a rule was operating that had a far greater impact on the question of the authority of English decisions in our courts. This rule could be expressed in the form of an equation: THE LAW OF CANADA = THE LAW OF ENGLAND. With the equation in

292 A New Beginning?

full force, if one were to ask at any given moment what was the law of Canada (excluding the civil law of Quebec), then the search would be that of the law in England at that time: the law in England was taken to be the Law of Canada. The effect of the equation was that Canadians occasionally attributed to Trimble v. Hill an expanded meaning, namely, the proposition that Canadian courts were bound by the decisions of the Court of Appeal in England, without any reference to the interpretation of a statute.34 The strength of the equation was to change with the passage of time and the changing face of the Empire. The origin of the equation is not known with certainty, but it seems to be based in part on the reception-of-English-law rule for the colonies. Blackstone had set down as a rule that when the English settled the far-flung parts of the Empire, they carried with them the English law to the extent that it was applicable to their situation and the condition of the colony.35 A distinction was drawn between the common law and statute law, and in practice the reception-of-law rule was viewed as providing that the whole of the common law was to be accepted as the law of the colony, unless it could be shown in a given case that the particular rule was obviously inconsistent with the situation in the colony.36 Behind this was the theory that the common law was founded on "general and immutable principles of justice" that would apply everywhere. Statute law, on the other hand, was said to be in force in a colony only if it were considered to be obviously applicable. In pre-Confederation Canada this reception-of-law rule had apparently been elevated onto a constitutional plane. It was declared: "Our adherence to the principles of the English common law is a duty imposed upon us by written law."37 The written law referred to was the first statute to be passed by the legislature of Upper Canada, in which it was asserted that "in all matters of controversy relative to property and civil rights, resort shall be had to the Laws of England, as the rule for the decision of the same."38 This law had been created under the authority of the Constitutional Act, 1791 that had divided Canada into Upper and Lower Canada. By the enactment of the Quebec Act of 1774, French civil law had applied to Canada, and the 1792 Act of Upper Canada was intended to signify that the civil law of Quebec was no longer to be applicable to Upper Canada. It was however taken to mean that Canadian courts were "bound by the authority of the cases decided in England."39 The attitude of the legal profession in Upper Canada towards English common law was undoubtedly strongly affected by Blackstone's theory of law, which was that law was to be viewed as a complete body of rules existing from time immemorial and unchangeable except to the limited extent that legislatures might have changed them by the enactment of legislation. It was true that the acceptance of this "declaratory" theory of law caused the judges in Canada to look at English decisions as "evidence" of the law, but more must have been present, since theoretically a Canadian could "find" the law

293 The Captive Court before a judge in England might do so, although this thought was seemingly lost in the face of the view that English cases governed the Canadian courts. The result became that Canadian judges did not find the law, they only found the English cases that had found the law. One very significant consequence of the equation was that the House of Lords rather than the Judicial Committee of the Privy Council was viewed as the ultimate appeal court in the Empire.40 Writing in the Canadian Bar Review, in 1923 Mr Justice Anglin could assert that a decision of the House of Lords "carried authority almost equal to that of an Act of Parliament."41 The combination of the view of the judicial function as that of finding the law and not making it together with the equation meant that Canadian judges left the development of the law to the English judges.42 Thus the Canadian legal system could actually function in as mechanical a fashion as one might imagine could exist practically anywhere in the world. In addition to being able to project the appearance of not engaging in a conscious development of the law, but rather merely applying standards developed elsewhere, there were a number of other interesting consequence of the equation. If the House of Lords and the Judicial Committee happened to differ as to what the law might be, then Canadian courts would follow the House of Lords.43 However, the equation was even stronger, since if the Privy Council and the Court of Appeal in England differed, then the decision of the Court of Appeal seemed to be preferred.44 Such a point of view had the potential for producing an embarrassing situation for the Supreme Court. In 1933 the English Court of Appeal had declined to follow an earlier Privy Council decision, a fact that in 1936 was raised before the Supreme Court. Chief Justice Duff considered that doubt had arisen concerning the law, and it was not clear that the cases were harmonious. His judgment reflected an apparent need to incorporate the Court of Appeal decision.45 There were previous decisions of the Supreme Court of Canada that were, in Duffs words "perhaps in conflict with the decision of the Court of Appeal." In 1938, the House of Lords overruled the Court of Appeal and approved the earlier Privy Council decision.46 For the Supreme Court of Canada in 1942 the route to take was apparently simple: the House of Lords was accepted without hesitation, and there was even the suggestion that the previous Supreme Court cases that had been "perhaps in conflict" with English law in 1936 had anticipated the House of Lord decision. The problem expressed in the 1936 decision of the Supreme Court could be conveniently forgotten.47 The strength of the equation was such that in the event that English High Court decisions had criticized the Privy Council, then at least doubt might be cast on the Privy Council decision.48 Cases decided by the Supreme Court of Canada were of course subject to being overruled by the Privy Council, but because of the equation, the Supreme Court was faced with the prospect of being impliedly overruled if a

294 A New Beginning? decision of the House of Lords should happen to differ from what the Supreme Court had decided earlier. A conflict between the Supreme Court and the House of Lords resulted in the Supreme Court decision being cast aside.49 A consequence of all of this was that Canadian lawyers studied and used English cases, and any challenge to the practice would only create irritation within the profession. Until the 1960s there was little in outward appearance to indicate that the sleepy existence of the Canadian legal system was being disturbed. It was true that the rule in Trimble v. Hill, both in its narrow and expanded forms, had been dealt a blow by the Privy Council in 1927, but the authority of the House of Lords was asserted as a rule of law. In Robins v. National Trust Co. Ltd,™ the Privy Council had asserted: "When an appellate Court in a colony which is regulated by English law differs from an appellate Court in England, it is not right to assume that the Colonial Court is wrong. It is otherwise if the authority in England is that of the House of Lords. That is the supreme tribunal to settle English law, and that being settled, the colonial Court, which is bound by English law, is bound to follow it." The board added: "Equally, of course, the point of difference may be settled as far as the Colonial Court is concerned by a judgment of this Board." For Canada as a self-governing dominion within the Empire, the Statute of Westminster would have theoretically ended in 1931 the rule of law enunciated in the Robins case concerning the binding nature of decisions of the House of Lords. In a paper read before the bar association in 1926, and published in the Canadian Bar Review? E.K. Williams of Winnipeg later chief justice of the King's Bench of Manitoba, maintained that he considered it questionable as to how far the rule in Trimble v. Hill would be applied. The social changes created by World War I had caused disturbances to be registered. However, even in 1934 in a paper read at the annual meeting of the Canadian Bar Association, it was considered that the rule in Trimble v. Hill applied to common-law rules as well as to statutes.52 The Supreme Court in the 1930s was not quite ready to be released from its captivity. Chief Justice Duff for the full court, after referring to the Privy Council decision in the Robins case, noted in a 1933 decision: "It is now, perhaps, permissible to say that the observations ... in Trimble v. Hill... are a little too absolute." Duff went on to accept the interpretation that English judges had placed on the English statute that had been the basis of the Canadian law because "the reasoning of the eminent judges ... appears to me to be unanswerable."53 On the eve of the abolition of the appeal to the Privy Council, Gilbert Kennedy of the University of British Columbia had lamented in the Canadian Bar Review, "it may be largely true that we have no jurisprudence of our own, that we follow whatever England does."54 It should not have surprised

295 The Captive Court

anyone when five years after the appeal to the Privy Council had been abolished, Professor Kennedy took aim at the unfortunate phrasing that Mr Justice Rand had used: "the authorities in England have pronounced," and the fact that Rand had then gone directly to his conclusion without any demonstration of independent thought. As long ago as 1865 there had been a repudiation by Britain of the attitude that colonial statutes had to conform to the common law of England. The Colonial Laws Validity Act, 186555 had been the charter of colonial independence in matters of internal law. Colonies were allowed to establish their own law, and only if Britain expressly legislated for the colony in question did the colonial judges need to examine the colonial law for any inconsistencies. Despite this, it was to be a full century later that Canadians were to perceive the first open sign of independence made by the Supreme Court of Canada. In the 1950s there was still no question that the old approach to the use of English cases overwhelmingly dominated the minds of Canadian commonlaw lawyers. Rand's statement: "the authorities in England have pronounced," would have been perfectly innocuous but for a few academics and perhaps a few practitioners who wanted to end the sterility of the Canadian legal system. This was the beginning of a resistance to the concept of the Canadian legal system as being hollow, waiting to be filled with English legal thought.

22 New Jural Conclusions

In the opening period of the new era of the court's existence it was faced with unprecedented criticisms. It was failing to meet the expectations of certain legal academics, who were thrusting judicial creativity upon the Canadian legal profession. However, the new era began with an extremely radical decision in Canadian terms. Judicial creativity with an activist guise appeared from within the Supreme Court of Canada itself in the work of Mr Justice Ivan Rand. BOUCHER v. THE KING, 1950 The Boucher case contained the most overt statement of judicial creativity yet found in the decisions of the Supreme Court of Canada. As French-Canadian nationalism became more noticeable in Quebec during the 1930s with its intimate link to the Roman Catholic church and its conservative nature taking on a fascist-like appearance, its intolerance of the differences within Quebec society became more pronounced. A growing irritant in the community were the Jehovah's Witnesses, a Christian religious group that viewed all its members as ministers who were expected to carry out a vigorous evangelism. Nations and organized religions such as the Roman Catholic church were seen as the works of Satan. Such sentiments were bound to conflict with those of the French-Canadian nationalists. The consequence was a highly pronounced reaction against the Witnesses that resulted in the decision to use the very weighty criminal charge of sedition against the members of the groupIn the first case involving the charge of sedition, the conviction was upheld unanimously by the judges of the Court of King's Bench in Quebec.1 A motion for leave to appeal to the Supreme Court was dismissed by Mr Justice Hudson, and the full court refused to hear an appeal from Hudson's decision.2

297 The Captive Court During World War II the dominion government provided a solution for Quebec by banning the Jehovah's Witnesses as an illegal organization under the War Measures Act.3 The ban was removed in 1945. Following the war, after the ban had been lifted, the Witnesses once again began their vigorous campaign against the Roman Catholic society of Quebec. Part of the attack was the publication of a pamphlet entitled "Quebec's burning hate for God and Christ and Freedom, is the shame of all Canada." The main thrust of the writing was an attack on the Roman Catholic church and on the courts of Quebec. The courts were alleged to be controlled by the church and engaging in what the Witnesses saw as persecution of them. Several copies of the tract published by the Watch Tower Bible and Tract Society were distributed by Aimd Boucher in late 1946 in the town of St Joseph de Beauce near where he farmed. He was charged with publishing a seditious libel, and following his conviction by a jury, he was sentenced to imprisonment for one month. On appeal to the Court of King's Bench, the conviction was affirmed by a 3—2 majority. The dissent of two judges was based on what was seen to be a faulty charge to the jury by the trial judge.4 An appeal was taken to the Supreme Court and was heard by only five judges (Chief Justice Rinfret, Kerwin, Taschereau, Rand, and Estey), which meant that Rinfret viewed it as a routine case. Three of the judges ordered a new trial on the basis of a misdirection of the jury, while two, Rand and Estey, would have ordered an acquittal of the accused, since in their opinion there could not be a conviction based on the contents of the pamphlet. The different between the majority and dissenting judges was created by a disagreement over what was meant by the words "seditious intention." The judges differed as to what was the law. The majority, Rinfret, Taschereau, and Kerwin, were prepared to accept that the definition of a seditious intention included the intent to promote feelings of ill will and hostility between different classes of His Majesty's subjects, or an intent to create hatred or contempt, or to excite disaffection against the administration of justice. For Rand, in dissent, the only intention that would justify a conviction of publishing a seditious libel was that of inflaming the minds of people into hatred, ill-will, discontent, or disaffection, with the aim of disordering community life, directly or indirectly, in relation to government in the broadest sense. For Estey, also in dissent, the intention had to be the direct incitement to disorder and violence against the institutions of the government. The judgment of the Supreme Court was rendered on 5 December 1949.5 On 21 February 1950, a motion for a rehearing was made and granted on the ground that the court had failed to establish a clear definition of seditious libel.6 The second hearing was conducted in June of 1950 before the full bench of nine judges. Judgment was rendered on 18 December, and Aim6 Boucher walked out of the court a free man.7 His freedom was won by the

298 New Jural Conclusions smallest of margins, 5—4, and was the result in the end of one of the judges changing his mind. Four judges had been added for the second hearing and they split 2—2; thus the original decision in favour of a new trial would have remained by a 5-4 count, except that Patrick Kerwin, one of the three judges who had originally formed the majority, changed his mind and thus the final tally was 5-4 in favour of acquittal rather than of a new trial.8 The five judges of the new majority were Kerwin, Rand, Kellock, Estey, and Locke. The dissenting judges now were Rinfret, Taschereau, Cartwright, and Fauteux — the three Quebec judges, and Cartwright from Ontario. At the time that Boucher had been charged, the meaning of seditious intention that was generally accepted was that given by the Royal Commission on Codification of the Criminal Law in Britain in 1880. That definition was: an intention ... (1) to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, or the government and constitution ... or of any part of it as by law established, or either House of Parliament, or the administration of Justice; or (2) to excite Her Majesty's subjects to attempt to procure, otherwise than by lawful means, the alteration of any matter in church or state by law established; or (3) to raise discontent or disaffection amongst Her Majesty's subjects; or (4) to promote feelings of ill-will and hostility between different classes of such subjects. In 1919 a Special Committee of the House of Commons had been created to examine the law of sedition, and it accepted this definition without question.9 After the final decision of the Supreme Court in Boucher, all that remained of the definition was the second meaning: to excite Her Majesty's subjects to attempt to procure, otherwise than by lawful means, the alteration of any matter in church or state by law established. By a majority of 8—1, the judges had rejected an intention to promote feelings of ill will and hostility between different classes of such subjects. This effectively eliminated any law against hate propaganda. The only dissent on the point was by Chief Justice Rinfret. The majority had changed the law by requiring an intention to produce disorder or violence in relation to the governing of society. The creation of ill will or hostility alone was no longer enough for behaviour to be called criminal. The law reform that had been undertaken by the court was said to have been made necessary by a changed concept of government: as stated clearly by Rand, by 1950 the governors of society were not to be viewed as superior beings who were beyond criticism, but were to be looked upon as servants, "bound to carry out their duties accountably to the public."10 Up the end of the eighteenth century, seditious libel had been aimed at the publication of

299 The Captive Court anything that conveyed the notion of contempt of political authority. Now "new jural conclusions" needed to be created to conform to the new concept. The focus had shifted from the expression of a thought to the consequences that might arise from the use of words, or other forms of expression. Strong words, or words that would be likely to annoy or anger people, were not to be branded as criminal in a free society. Emphasis had now been placed on the actual creation of disorder within the society. It was not the ideas themselves that were of concern, but how they were expressed. The status of the concept of freedom of expression that existed in our law was considerably elevated in importance by the decision. It is of interest to note that Estey commented: "One may freely and forcefully express his views within the limits defined by the law";" to which should be added the point that the law had been redefined by the judges to accommodate what was thought to be an appropriate expression of views. In the reform of the law, previous cases were reviewed and the judges were able to show that there was support for the opinion that it was the promotion of disorder that had come to be the basis of the crime. The reform of the law was still there, but it could be seen as orderly, and within acceptable limits. On the question of the part of the definition that dealt with the administration of justice, there was much greater disagreement among the judges. The division among the judges was now 5-4. While Kerwin, Rand, Kellock, Estey, and Locke stayed with their view of seditious intention, Cartwright, Fauteux, and Taschereau were prepared to accept that it was enough to have an intention to bring the administration of justice into hatred or contempt or to excite disaffection against it. The element of violence or the intention actually to defeat the administration of justice was unnecessary. Rinfret was prepared to accept completely the old definition. Kerwin had changed his mind about the point that, rather than the creation of disorder or the incitement to violence in general which he had accepted at the first hearing, disorder or incitement to violence must also be aimed at constituted or established authority. There were eight judgments rendered by the judges, which again indicated a lack of institutional response. The new era had not changed that unfortunate fact of life. Of those written it was Rand's that attracted attention. No greater statement of judicial law making can be found than: [Constitutional conceptions of a different order making rapid progress in the 19th century have necessitated a modification of the legal view of public criticism; ... The basic nature of the Common Law lies in its flexible process of traditional reasoning upon significant social and political matter; and just as in the 17th century the crime of seditious libel was a deduction from fundamental conceptions of government, the substitution of new conceptions, under the same principle of reasoning, called for new jural conclusions.12

300 New Jural Conclusions In his judgment there are impressive statements concerning freedom of expression, and a free society: "Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life."13 The overt law making and the ringing political statements were what the press wanted. Even when Rand's judgment was that of a dissenting judge, as at the first hearing, it was the one that had received publicity.14 His criticism of the treatment of the Jehovah's Witnesses in Quebec, which was a political comment on his part, was pointed out by the press. Rand was described as "the judge, who is becoming known as one of the great champions of religious freedom and civil liberties."15 Publicity and high praise was also to be found in the legal literature: "The judgment of Rand J. deserves to rank ... with the great legal judgments of history."16 The writer went on: "[I]t is impossible to leave this case without saying that the judgments inspire pride and confidence in the court that is now in all matters Canada's final court of appeal. The judgments reveal boldness in approach to authority, a scholarship in research and expression (aided no doubt by the arguments of counsel) and a sensitiveness to basic principles of law and democracy that represent the judicial process at its best. They will bear comparison with the products of any courts anywhere."17 One result was that in an editorial the Toronto Globe and Mail was prepared to comment that "our Supreme Court might be termed a new instrument of social order and justice," but the editorial was entitled "Certainty Still Lacking." In the opinion of the writer, if the court were to undertake the suggested role, then there must be clarity and certainty in its decisions. Rand had given the court the needed boost, but the lack of unity had to be cured or the continued splintering of the judges would cause the court to fail as a final court of appeal.18 The judiciary and the legal profession had come to accept that law was not made within the legal process, but only applied. The creativity expressed by Sankey in the Persons case had been shunned. Now in 1949 Rand had made a statement in Boucher that was a much stronger statement of judicial law making than had been made by Sankey. Rand and the other judges who were in the majority were not specifically considering the constitution, but the judicial function in general. He dealt with "the basic nature of the Common Law," which was flexibility by which new social values demanded "new jural conclusions," that is, judicially created law - the creation (and the destruction) of law outside of the political system. In light of the dominant attitude within the legal system over the years, it was not surprising that Rand alone made such bold statements. That he was part of the majority in the case gave the statements added import. Although it was Rand who articulated so well what was happening, it should not be forgotten that four other judges reached the same result. Were they out of tune, not only with the legal profession, but with the leaders of the society?

301 The Captive Court Rand had called section 133A of the Criminal Code, which set out defences to the charge of sedition, "a fundamental provision which, with its background of free criticism as a constituent of modern democratic government, protects the widest range of public discussion and controversy."19 Yet the provision that he referred to had once been section 133, and, as such, it was removed from the Code on the recommendation of the Special Committee of 1919. It was said at that time that the language of the defences were too broad, and in many cases prosecutions had failed because of them. The section was: No one shall be deemed to have a seditious intention only because he intends in good faith, (a) to show that His Majesty has been misled or mistaken in his measures; or (ft) to point out errors or defects in the government or constitution of the United Kingdom, or of any part of it, or of Canada or any province thereof, or in either House of Parliament of the United Kingdom or of Canada, or in any legislature, or in the administration of justice; or to excite His Majesty's subjects to attempt to procure, by lawful means, the alteration of any matter in the state; or (c) to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects. One might suppose that in Rand's opinion, such prosecutions must fail within our society. Section 133A, which had been eulogized by Rand, was a reenactment of section 133 and had been put back in the Criminal Code in 1930.20 To view that provision as fundamental when it had been removed thirty years before and only brought back into the law nineteen years earlier, might be said to be an exaggeration. In 1969, nineteen years following Boucher, the hate propaganda provisions of the code were added, thus effectively overruling Rand and the majority of the Supreme Court in Boucher on that part of their decision that had said that an intention "to promote feelings of ill-will and hostility between different classes of... subjects" could not in itself be criminal.21 The question remains as to whether Rand and the majority were truly expressing the dominant values of Canadian society in 1949. Both with regard to the judicial function and civil liberties, Rand had gone far beyond anything that had been accepted as part of the Canadian legal tradition. When in 1959 Horace Read of Dalhousie University wrote a major article dealing with the question of the judicial function in common-law Canada, he described Rand as a "creative lawmaker," but significantly he referred to an innocuous decision from 1943.22 Boucher was not mentioned. Had it been too much too soon? Rand's views in Boucher were apparently to be forgotten.

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A companion case to Boucher that also involved civil liberties was Noble and Wolfv. Alley. It is an intriguing case since its importance lies in the result that was reached and what the reasons for judgment did not say. NOBLE AND WOLF v. ALLEY, 1950 Bernard Wolf agreed to buy from Annie Maud Noble a piece of property with a beach on Lake Huron on which a cottage had been built. The property was situated on the Beach of Pines near Grand Bend and was subject to a restrictive covenant, which read: "The lands and premises herein described shall never be sold, assigned, transferred, leased, rented or in any manner whatsoever alienated to, and shall never be occupied or used in any manner whatsoever by any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood." In the process of completing the transaction, the purchaser's lawyer requested that the seller arrange for a court order declaring that the covenant was void. The seller brought the appropriate proceedings for the requested order.23 The granting of the order was opposed by several people including the Beach O'Pines Protective Association that had been formed around 1935. The association was made up of the other property owners on the beach. The motion requesting a declaration that the covenant was void was heard by Mr Justice Schroeder of the Ontario High Court on 22 May 1948, and on 11 June he ruled that the motion would be dismissed, and that the covenant was valid and enforceable.24 A previous decision that had been used in the argument against the validity of the covenant was Re Drummond Wren, a 1945 decision of Mr Justice R.K. Mackay, also of the High Court.25 Although the Drummond Wren case was not a decision of the Supreme Court of Canada, it merits detailed discussion since it ranks as one of the most controversial decisions ever rendered in Canada and no discussion of the judicial function would be complete without it. It also gives perspective to the Noble and Wolfv. Alley decision of the Supreme Court. The Drummond Wren case concerned the purchase of a lot in East York in 1945 by the Workers' Educational Association. The property, on which a model home was to be built and then raffled off to provide money for the association had a restrictive covenant, namely: "Land not to be sold to Jews or persons of objectionable nationality." In order to avoid problems with the raffle, a motion for an order to declare the covenant invalid was taken in the name of the general secretary of the association, Drummond Wren, which was supported by the Canadian Jewish Congress. No one opposed the motion. Mr Justice Mackay granted the motion and declared the covenant invalid. What caused the case to stand out were the reasons given by Mackay for reaching his decision. He was prepared to strike down the covenant from all angles: first, it was void for uncertainty in that he considered the words "persons of objectionable nationality" as well as the word "Jews" to be

303 The Captive Court

uncertain; second, it was invalid as a restraint on alienation as land should be freely alienable and the restraint in question was not limited either as to time or to the life of the immediate grantee; finally the ground that shook the legal system: the covenant was void as against public policy. In Mackay's opinion, any agreement that would tend to be injurious to the public or against the public good would be void as contrary to public policy. In order to determine the principles relative to public policy, the judge must look to legislation and public law as an aid. Mackay looked first at the San Francisco Charter, to which Canada was a signatory, and which Parliament had ratified: We, the peoples of the United Nations, determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small ... and for these ends to practice tolerance and live together in peace with one another as good neighbours.26

He then turned to the Atlantic Charter in which he said the principles of freedom from fear and freedom of worship were recognized. Ontario had enacted the Racial Discrimination Act, 1944,27 which prohibited the publishing or displaying of anything indicating discrimination against a person because of race or creed, and the Insurance Act,28 which provided that an insurer could not discriminate in a policy because of race or religion of the insured. In addition he was able to refer to the regulations passed under the authority of the Community Halls Act,29 which prohibited denying the use of the halls based on religious, fraternal, or political reasons. He was also able to turn to speeches of Roosevelt, Churchill, and de Gaulle for inspiration, as well as a resolution of the World Trade Union Congress, another resolution adopted unanimously by the Latin American nations and the United States against discrimination, and finally the constitution of the USSR that provided for the equality of citizens. Mackay concluded: In my opinion nothing could be more calculated to create or deepen divisions between existing religious and ethnic groups in this province, or in this country, than the sanction of a method of land transfer which would permit the segregation and confinement of particular groups to particular business or residential areas, or, conversely, would exclude particular groups from particular business or residential areas It appears to me to be a moral duty, at least, to lend aid to all forces of cohesion, and similarly to repel all fissiparous tendencies which would imperil national unity That the restrictive covenant in this case is directed in the first place against Jews

304 New Jural Conclusions lends poignancy to the matter when one considers that anti-semitism has been a weapon in the hands of our recently-defeated enemies, and the scourge of the world.30

Racially restrictive covenants had been accepted as valid over the years and in Blackburn v. McCallum, 1903, a restraint on alienation based on a particular class of people seemed acceptable, at least with a time-limit included.31 It was true, as Mackay stated in his judgment, that there were no cases directly on point, but in each case in Ontario in which racially restrictive covenants had been involved, their validity had not been seriously questioned or considered.32 The Blackburn case was certainly relevant, but it was not mentioned. Earlier in 1945 another such covenant had been challenged before Mr Justice Chevrier of the Ontario High Court on the basis that it violated the Racial Discrimination Act, 1944, which it was argued reflected public policy. Chevrier had rejected the argument and upheld the covenant.33 The legal profession reacted adversely to the reasoning that Mackay had employed, namely his reliance on public policy, although care was always taken to support the actual decision. The consensus seemed to be that the covenant was vague enough to have been struck down as void for uncertainty, if a judge had had the will to do so.34 What unnerved many was the use of public policy by Mackay, which was seen as law making and thus inappropriate for a judge to undertake. The basic fear was that uncertainty would be created in the law because the profession did not see any way of controlling a judge who dealt in this way with social values. An editorial in the Fortnightly Law Journal solved the problem of the case by eliminating it as a precedent. This was done by calling Mackay's excursion into social values (public policy) obiter dicta, meaning that it was a statement made by the way and was not, therefore, part of any law that could be extracted from the decision. At best the references to public policy were to be seen simply as the basis for the exercise of a discretion that the judge possessed by which he could discharge the covenant, and since the application was unopposed, this would be the probable result. Also, viewed as an exercise of discretion, there was to be no value as a precedent to what Mackay had said.35 At about the same time, two American courts had rejected the argument that succeeded in Drummond Wren, and the view in the United States was that racially restrictive covenants were not prohibited by the constitution. It was suggested in an American law journal that Drummond Wren might provide inspiration for an attack on the covenants through a public policy argument based on other legislation existing in a state.36 While the legal profession reacted adversely to the decision, there was praise elsewhere. In an editorial entitled "Blow to Prejudice," the Toronto Globe and Mail praised the decision, which was called "enlightened," "on the noblest level of jurisprudence," and "in the main stream of the humane

305 The Captive Court tradition of British justice." The victory in the war was said to have been confirmed.37 Just before the hearing of the motion by Schroeder in Noble and Wolfv. Alley in May 1948, the United Sates Supreme Court had changed the American law and effectively ended racially restrictive covenants.38 That court took the position that the constitution of the United States applied only to government or state action, and hence would not prohibit the inclusion of restrictive covenants in deeds, yet when a person came to the courts to enforce such a covenant, the power of the state was thereby brought into action and that could be prohibited by the constitution. Racially restrictive covenants were thus valid but unenforceable. Schroeder disagreed with the decision of Mackay in Drummond Wren and brushed aside the recent decision of the United States Supreme Court with the comment that it was decided upon grounds that had no application in Ontario. He saw differences between his case and Drummond Wren, namely, Wren dealt with residential property in the city of Toronto, not recreational property, as in Noble. In Wren, the restriction was unlimited in time, while in his case the restriction was to lapse after 1 August 1962. But even though these differences existed upon which to distinguish the earlier decision of Mackay, Schroeder still chose to engage in a full assault on Drummond Wren. He rejected the idea of using public policy at all and was definitely opposed to using "an entirely novel head of public policy," as Mackay had done — public policy was to him an "unruly horse" (using the stock phrase) and not certain enough. But Schroeder's main attack was on what he viewed as Mackay's inappropriate judicial behaviour. Mackay had arbitrarily extended the rules, and such an interference with freedom of contract, which Schroeder raised to a considerable height of importance, constituted a radical departure from established principle. Schroeder concluded: "Whatever view I may entertain, based upon my conception of justice, morality or convenience, I must always have present to my mind the proper conception of the judicial function, namely, to expound and interpret the law and not to create the law based on my individual notion or opinion of what the law ought to be."39 The other grounds for invalidating the covenants given by Mackay were rejected as well: as a restraint on alienation (a partial restraint, which this was, was permissible), and as uncertain (it could be determined by a judge whether someone fell within the restrictions - "Jewish, Hebrew, Semitic, Negro or coloured race or blood"). From Schroeder's decision an appeal was launched to the Ontario Court of Appeal, which was heard by the large bench of five judges. The Court of Appeal unanimously upheld the restrictive covenant on all the grounds that were argued.40 Little was added to what Schroeder had said, except that Chief Justice Robertson took on the public policy question by asserting that the covenant was not against public policy. He said: "To magnify this innocent

306 New Jural Conclusions and modest effort to establish and maintain a place suitable for a pleasant summer residence into an enterprise that offends against some public policy, requires a stronger imagination than I possess."41 Another judge bluntly asserted that Drummond Wren was wrong in law, and he emphasized sanctity of contract; and for another freedom of association was an absolute within our society.42 An argument based on the doctrine of Tulk v. Moxhay was raised for the first time before the Court of Appeal. Only one judge dealt with it in his judgment, and he rejected it because it had never been alluded to in the previous arguments and all of the parties who would be affected by the decision of the court were not before the court.43 The doctrine of Tulk v. Moxhay takes its name from a case decided by the Court of Chancery in England in 1848.44 Normally an agreement is only enforceable by the immediate parties to it, namely the buyer and seller of the property; however, this doctrine allows the other property owners of the resort area to demand enforcement of the restrictive covenant as well as to defend against the buyer and seller's attempt to have the covenant declared invalid, or to relieve the buyer of its restriction. In order to be able to use the law based on Tulk v. Moxhay, the requirement is that the covenant "touch and concern the land." The promise by the original purchaser not to sell the land to certain racial groups is said to have become attached to the land as an equitable interest and runs with the land. As an alternative to the requirement that the covenant touch and concern the land, it can also be found that a building scheme previously existed. This is the case where title has been obtained from a common vendor, who laid out his property for sale in lots within a clearly defined area subject to the restriction, which was intended to be imposed on all the lots. If a building scheme can be found to exist, then the requirement that the covenant touch and concern the land is no longer a concern.45 Since the judges of the Court of Appeal appeared solidly of the view that the covenant was enforceable, there was concern when they avoided dealing with the Tulk v. Moxhay point. Up to this time it had been thought that a racially restrictive covenant did touch and concern the land; hence the lack of litigation against such covenants. A problem with assumptions is that when the crunch comes, there is nothing solid to point to as authority for what was assumed. A further appeal was taken to the Supreme Court of Canada, and was heard by seven judges.46 Based on what we know about the law prior to the decision of the Supreme Court in 1950, the safest prediction would have been that the covenant would be upheld. Only Drummond Wren had challenged this view and it had been rejected soundly - in effect, overruled — by the Ontario Court of Appeal. Therefore, when the Supreme Court of Canada

307 The Captive Court held 6—1 that the racially restrictive covenant was invalid, the conclusion would appear to be that the court had changed the law.47 Noble and Wolfv. Alley is a significant law-making decision, as well as a significant civil-liberty decision. It was a sister case to Boucher, having been heard and decided at the same time.48 There was the ringing civil-liberty tone of Rand's judgment in Boucher, which drowned out the other judgments, and there were Mackay's words in Drummond Wren to serve as inspiration. There was the result in Noble and Wolfv. Alley, but when one reads the judgments in the case and encounters their blandness, there is a sense that something was operating that needs explanation. The prime reason that was given by the judges for the invalidity of the covenant was that it did not touch and concern the land in question - it did not run with the land — but remained a personal covenant enforceable only as a contractual obligation. For Kerwin, with whom Taschereau concurred, the case was said to depend solely on the rule laid down in Tulk v. Moxhay, and although he did not state outright what he perceived the rule to be, it might be concluded from the various quotations that he presented that the law required that the covenant bind the land and that it refer to the use, or abstention from use, of the land. At this point Kerwin stated that the lawyers were unable to refer to any case where the rule was applied to a covenant restricting the alienation of land to persons other than those of a certain race, by which he must have meant that no case had ever said that they did touch and concern the land. It was also true, of course, that no case had ever said that they did not touch and concern the land. An assumption within the profession had been operating that precluded express statements as such. It was now strange when Kerwin described the rule that he brought to bear in the case as having been "a forward step," and then he asserted that to hold that the racially restrictive covenant had reference to the use, or abstention from use, of land would be to give the rule "an unwarrantable extension." There seemed to be some sleight of hand going on. Since the law as applied up to that time considered that such covenants did "touch and concern the land," Kerwin was altering the application, but the judgment gave the appearance of the judge refusing to change the law, by extending it to cover the covenants in question. Kerwin was doing one thing and saying that he was doing the opposite. By appearing only to apply the old and well-established property-law rule in Tulk and Moxhay, Kerwin had eliminated any law-making and civil-liberty significance to the case, other than, of course, the result itself. For Rand, with whom Kellock and Fauteux concurred, in order for the covenant to be enforceable it had to touch or concern the land, meaning that it had to be directed to the land or to some mode of its use. This was stated briefly, without citation of authority, as if he expected that it should be taken for granted. In Rand's opinion the covenant in question did not meet the

308 New Jural Conclusions

required criteria, which was apparently evident by the language of the rule. In keeping with Kerwin's blandness, Rand merely threw out for consumption this major point without any analysis. In addition Rand went on to state that the covenant was void for uncertainty, and that it was also an improper restraint on alienation. Estey was the sole judge not to deal with the "touch and concern" point. He dealt only with the issue of uncertainty and concluded that the covenant was not certain enough for validity. Mr Justice Locke dissented. He pointed out that the rule in Tulk v. Moxhay had not been raised before Schroeder, and the Court of Appeal had declined to consider it. The Supreme Court in his opinion should accept the appeal court's decision. He agreed completely with Robertson's judgment in the Court of Appeal. The majority judgments gave the unmistakable impression that all that was involved was the finding and application of law, and therefore that no reform function, whether application or rule reform, was being carried out. But there was law reform since the general consensus prior to this decision had been that the covenants were valid and enforceable. The judges appeared to be trying to disguise or hide their reform of the law. The change in the law undertaken by the Supreme Court judges was made clear by the action of the legislature. Following the decision of the Court of Appeal in June 1949, a political movement to alter the law was begun. In March 1950, prior to the hearing of the case in the Supreme Court of Canada, legislation was enacted that declared all such covenants made in the future would be void and of no effect.49 Specifically the provision read: "Every covenant made after this section comes into force which but for this section would be annexed to and run with land and which restricts the sale, ownership, occupation or use of land because of the race, creed, colour, nationality, ancestry or place of origin of any person shall be void and of no effect." When the legislation was passed by the provincial legislature, it was an allparty effort. By agreement, each party put up a speaker for twenty minutes, and the premier, Leslie Frost, made a ten-minute reply. On the point that only new covenants were covered, not those that already existed, Frost simply said that there might be thousands of long-buried deeds in hundreds of registry offices, and "we would not know what we were dealing with." This is surprising, since racially restricted covenants were wide-spread in Ontario, particularly in resort areas, and there may have been little need to create new ones. The members of the legislature may have accepted that they would not know what they were dealing with, but this obviously did not bother the majority of the judges in the Supreme Court of Canada. When they held that such covenants were void, they made the legislation completely superfluous. Obviously the members of the legislature, many of whom would be lawyers,

309 The Captive Court accepted that the Ontario Court of Appeal had accurately stated what was thought to be the law. The Supreme Court had changed it. As far as Drummond Wren was concerned, the judges of the Supreme Court deliberately refused to deal with the case. It was simply mentioned innocuously by Kerwin and Locke. Public policy as a ground for invalidating racially restrictive covenants had been pushed aside and had disappeared.50 The question of racial discrimination had been avoided by the judges. Why was there no ringing denunciation of racism? The effect of the result itself was muted by the reasons for judgment. The Rand in Boucher did not resemble at all the Rand in Noble and Wolf. Was he less certain that the Noble and Wolf decision was in tune with social values? Was the Jehovah's Witnesses problem in Quebec isolated and remote, whereas racial discrimination was widespread? If any of the judges had come out against racial discrimination, what would have happened, for instance, within the Rideau Club of Ottawa where they were all members? The club did not allow Jews to be members. The Supreme Court of the United States had, in its fashion, taken a stand based on the notion of equality. The Supreme Court of Canada had done the same in result, but had created a jurisprudential nonentity. A majority of the judges seemed determined that such a covenant could not be upheld, hence their adherence to the "touch and concern" argument so lately devised. Instead of a constitutional and civil-liberty case, the result was a property case, and a skimpy one at that. Just what were the social values that the judges should have applied? The Toronto Globe and Mailhad praised the Drummond Wren decision in 1945, but two and a half years later they supported Schroeder's judgment. In an editorial entitled "Tolerance and the Law" the idea of a choice of associations was supported, and since recreational property was involved and the restriction would expire in 1962, there was said to be no real problem. In any case it was asked, what harm was done by exclusiveness?51 The following year editorial support was also given to the Court of Appeal decision. Again the right to choose one's own associations was promoted, and it was said: "to give any one a legal right to force himself uninvited into an association of people would be the most certain way to add to social tensions."52 In December 1949 the voters of Dresden, Ontario overwhelmingly rejected a by-law that would have compelled restaurants in the town to serve Negroes. They were barred by the three largest restaurants in the town at the time.53 The Toronto Globe and Mail attacked the vote in an editorial, and called it disgraceful.54 The Boucher decision had generated editorial comment, as had the decisions of the Ontario courts in Drummond Wren and Noble and Wolf. There were no editorial discussions following the Supreme Court decision in Noble and Wolfv. Alley. The language that would have made the case newsworthy

310 New Jural Conclusions

was missing. Even though social values were apparently too strong for the judges, particularly Rand, to speak out, yet the fact remains that the decision had destroyed all legal effect for racially restrictive covenants. While in private-law cases — those of contracts, torts, and property — Rand tended to slip into the established mould of a Canadian judge; yet in public law, particularly that of the constitution, he had had no equal since the days of David Mills. The Supreme Court of the 1950s and the name of Ivan Rand would be inseparable topics. Rand stood apart from the judges on the court. He made no secret of his views with respect to the central question of the judicial function. No other judge has published such a series of writings as he did while serving as a judge." In 1947 in response to the publication of Justice Brandeis' biography, Rand published an article in which he commented that it was Brandeis' "judicial realism" that distinguished him.56 He asserted: "The constitution becomes specifically what the court at any period may declare it to be," and then added that the United States Supreme Court had become exposed to the searching light of public criticism and the backgrounds and intellectual properties of the judges were examined.57 This was not the language that the legal profession would recognize as Canadian. That it was true of the United States could be accepted. In 1950 the appeal to the Privy Council had been abolished, and Rand took the occasion to stage an attempt to lead the legal profession out of the captivity, and to vitalize it, and with it, the law. With the abolition of the appeal, he said that "sooner or later this country must, in the nature of things, have taken over full responsibility in this field, and that until that responsibility had been accepted, there would be lacking some degree of that vital sense, inhering in all courts of a self-contained judiciary, of their own coming of age."58 He departed from the practice of "Privy Council bashing" and instead praised it, in particular noting: "The reasoning is seen to proceed not only from broad and intimate familiarity with precedent and principle but also with that sense, in their many aspects, of surrounding matters, the habits of men and the rhythms of their lives, which communicates strength and realism to judgment."59 It was their awareness of social facts (values) that mattered. He called them "artists in thinking." To Rand "[T]he law declares that to be a legal standard which the community has in fact already established; that is the important consideration; we see the rules arising out of the life which they control." This was definitely not the language of a Canadian lawyer. For Rand there were values of an intellectual, ethical, and aesthetic quality that dominate thought, and judges were exposed to the dominant ideas of the day. He recognized judicial limitations — human weaknesses, attitudes, and personal values. He accepted that a judge's background created attitudes:

311 The Captive Court "There are alien factors that unconsciously may disturb the neutral freedom of judgment and distort the process of adjudication: bias favourable or hostile, a sense of obligation, fear of disapprobation, a weakness for applause; there is the loyalty to class or church or party, the personal preference or dislike, the impulsive reaction of set notions."60 Of prime importance was the fact that there was no question of Rand's commitment to creative jurisprudence: The basic principles and considerations which are to give shape and direction to judgment must be gathered as best they can from the precedents and affirmations of the traditional law, from legislative enactments, from universally accepted attitudes and working assumptions of our polity and their organic tendencies, from the fundamental conception of freedom in society, and from tested experience of what, considering all factors and interests, the mass of free and rational men applying the rule of universality will ultimately accept or demand: these and the modes of reasoning built up over the centuries, "the artificial reason," as Coke called it, of the law, expanded and made flexible by the nature of the new matter of which it partakes.61 These philosophical thoughts were expressed by a judge of the highest court, not from the "grass-roots" academic world. Acceptance would not have been easy without a solid foundation, and Canada had "a general conservatism in social outlook."62 In addition to his advocacy of creative jurisprudence, he was committed to the values of freedom.63 In the Foreword to Canadian Jurisprudence, Rand wrote of the "supreme value of political liberty" and the "liberation of the personality from imposed external and internal subjection." In his opinion, law should maintain peace, free man, and free intelligence.64 The philosopher George Grant described the belief in political liberty as a central thought for English-speaking liberalism.65 No example of Rand's commitment to both creative jurisprudence and freedom was more dramatic than his creation of a bill of rights within our written constitution, which is examined in the next chapter.

23 The Implied Bill of Rights

Prior to the creation of the Canadian Charter of Rights and Freedoms in 1982 it was accepted that the constitution of Canada could be described as consisting of two parts: the British North America Acts, which made up what many called the "written constitution," and the British or English constitution, known as the "unwritten" constitution.1 Since a constitution is generally thought of as consisting of rules that limit the law-maker as to the creation of laws, and that are enforced by the judiciary by the judicial review of legislation, then one would have to say that Britain did not have such a constitution. The only constitutional rule recognized by the law was that Parliament was supreme, which meant that Parliament had the right to make or unmake any law whatever, and no person or body was recognized by the law as having a right to override or set aside the legislation of Parliament.2 Thus, under the English constitution, the judiciary were constitutionally prohibited from engaging in judicial review, and there were no legal restrictions on the power of the legislature. The Canadian constitution before 1982 was made up of a legal part (meaning those rules that would be recognized and enforced by judges to monitor the validity of law), and a political part (those rules that the judges would recognize, but would not enforce so as to invalidate law). Canadians had pride in being a nation of free people. There were many things that the legislature neither would nor could do that would infringe on individual freedoms, such as freedom of speech. There were real political restrictions on the power of the law-maker and as a result of this, the English constitution could be called a political constitution, as distinguished from a legal constitution. Thus when it came to the place of civil liberties within the Canadian legal system, it was accepted that their protection resided within the political rather than the legal constitution. The nature of the English constitution was well illustrated in an article by the English judge Lord Denning appropriately entitled "The Spirit of the British Constitution," in which he expressed the

313 The Captive Court opinion that the spirit of the British constitution consisted of certain instincts, one of which he termed the instinct for liberty.3 This instinct meant that the basis of government was to be free will and not force, which consequently required that there be free and timely elections so that people might have the government they chose (or deserved) to have. The instinct for liberty lay within the political constitution, but it also connected at various points with the legal system. The instinct found its expression in certain fundamental principles: there must be freedom of association so that people might form themselves into a party to advocate an alternative government; there must also be freedom of expression, which was, in Denning's opinion, the keystone of political liberty and the primary requisite for the instinct of liberty. Lord Denning could accept that freedom of expression was an integral part of the constitution, yet it could not be considered to be a legal part in the sense that the judges would apply the concept to question the validity of law. Parliamentary supremacy was the dominant legal rule in the British system, and as Denning wrote: "Judges, of course, administer the law, good or bad, as they find it."4 Freedom of expression as a limitation on the legislative process operated through the political rather than the legal process. The elected representatives of the people were seen as the protectors of the rights of the people who elected them. The legislature was conceived as a check on the executive. Another English jurist, Professor A.L. Goodhart wrote: "[T]he people as a whole, and Parliament itself, recognize that under the unwritten constitution there are certain established principles which limit the scope of Parliament." In Goodhart's opinion, there were four basic principles, three of which were the freedoms of expression, thought, and assembly. The fourth was that Parliament governed in a representative capacity, which was naturally dependent on the principle of freedom of expression. As did Denning, Goodhart was careful to point out that the judges were powerless to enforce the principles, but asserted that they were nonetheless binding or effective since Parliament "could not, even if it wished to do so, abolish freedom of speech," and any attempt to do so would result in revolution. The real protection for political liberty, Goodhart concluded, was the conviction ingrained in each of us by tradition and education that it is our moral duty to be free.5 If society accepted that there was an obligation to maintain liberty and its keystone, freedom of expression, then this obligation or social value must also have been felt by the judiciary and if the concept had a strong foundation within our constitution, and hence society, then it must have infiltrated the decisions of the judges, although theoretically not to the extent of allowing a judge expressly to declare that a particular law was invalid based on the fundamental principle. The legal concept of parliamentary supremacy, which was called the dominant characteristic of the British constitution, blocked judicial

314 The Implied Bill of Rights review.6 The doctrine of parliamentary supremacy could be referred to as the British constitution. To the extent that the decisions of judges reflected social values, then the effect of the spirit of the constitution in the law would be very real. Legal protection for rights and freedoms can and did exist through the judge's construction of the language of legislation and in the application of law so as not to derogate from the rights and freedoms. The presumptions employed by judges when reading the language of the law and the other rules of statutory interpretation have been appropriately called the Common Law Bill of Rights by one Canadian scholar, John Willis. In the opinion of Professor Willis, the presumption against interference with the personal liberty of the individual was the most firmly established of the intent controlling presumptions. The presumption would be applied, he wrote, because the courts regarded themselves as the guardians of freedom, and significantly, although Canadian judges, as with English judges, did not have the power of the American courts to strike down legislation that infringed the rights and freedoms, yet through the use of the presumptions judges could go some distance to establishing protection for civil liberties within the law, which process had a constitutional flavour to it.7 The attitude of Canadians with regard to civil liberties was succinctly stated by George Grant: "The explicit statements of the American constitution guard their system of justice; the British constitution guards the same shape of rights in a less explicit but in a more deeply rooted way."8 A dramatic illustration of the use of civil-liberty ideas within the legal system was the decision in 1950 in Boucher v. The King. In this case the judges redefined seditious intention to fit their estimate of mid-twentieth century values.9 The effect, and indeed the language of Rand, was the same as if a constitutional guarantee had existed such as is today found in the Canadian Charter of Rights and Freedoms. However, in Canada, unlike Britain, there did exist a written constitution, the British North America Acts, and the judiciary had become involved in judicial review of legislation and questioning whether a law was valid or not. Thus, having a taste of judicial power through the constitutional review of legislation, judges might naturally be tempted to engage in judicial review using basic values that reflected the political liberty current in the society and the political constitution. Canadian judges had a means to challenge supremacy of Parliament in the civil-liberty area. In addition to the law making seen in Boucher, there occurred in the 1950s what must be the ultimate in judicial creativity and activism. A bill of rights was created that could be used by the judiciary to monitor legislation and ultimately to invalidate law that was considered to infringe the rights and freedoms that were seen as fundamental social values. The "Implied Bill of Rights" had been created.

315 The Captive Court

SAUMUR v. CITY OF QUEBEC AND ATTORNEY GENERAL OF QUEBEC, 1953 In the Saumur case a challenge was made to the validity of a by-law of the city of Quebec that prohibited the distribution of written matter in the streets without the written permission of the chief of police. Laurier Saumur, a member of the Jehovah's Witnesses, was charged for distributing the religious literature of the Witnesses on the streets without the required permission. The challenge to the by-law was based on what Saumur alleged was his freedom of religion and expression. In the process of solving the constitutional dispute, it became necessary to characterize the law that was challenged, that is, the judges were required to come to a conclusion as to what was the "true nature and character" of the law. Once this had been determined, it could be assigned to one of the heads of legislative power in sections 91 or 92 of the constitution. It was with respect to this most basic point in constitutional adjudication that judicial creativity could be seen. The case was heard by the full bench of the Supreme Court of Canada and by a 5-4 decision the by-law was held to be invalid.10 The courts in Quebec had found in favour of the validity of the by-law. The old problem with regard to the diversity among the judges was magnified. It seems clear that the issue in the case had caused no end of problem for the judges and as a result their reasons for judgment on most of the issues were so varied that no consensus at all could be found. Three judges, Rand, Kellock, and Locke, concluded that the true nature of the law was censorship in that it was aimed at the contents of the literature being distributed, and was perceived thus in relation to the minds of the users of the streets. Mr Justice Rand pushed the furthest into the unknown and articulated the view that freedom of expression was an original freedom that would not allow prior restraints such as censorship. Mr Justice Estey preferred to view the law as being in relation to the free exercise and enjoyment of religious profession and worship, that is, freedom of religion. The four dissenting judges (Chief Justice Rinfret and Cartwright, Taschereau, and Fauteux - all three future chief justices, who also made up the dissent in Boucher) saw the law primarily as related to the use of the streets; this was a police regulation aimed at the suppression of conditions likely to cause disorder within the society. Cartwright and Fauteux challenged Rand's thoughts directly by expressly saying that freedom of expression was not to be considered a separate subject-matter for constitutional purposes, but could be dealt with by the provinces or the dominion as they wished. The enormous creative element that was present was that four of the judges - Rand, Kellock, Locke, and Estey - were of the view that the by-law

316 The Implied Bill of Rights

could be characterized as in relation to a fundamental freedom, and they were thus prepared to give such freedoms constitutional significance in the written or legal constitution (the British North America Act). The result would be that the fundamental freedoms could then be used to invalidate laws. Two of the dissenting judges expressly denied this (Fauteux and Cartwright) while the other two, Rinfret and Taschereau, did not give an opinion on the point since they were satisfied that in any case the by-law was simply regulating the streets. This left Mr Justice Patrick Kerwin, and he held that the Freedom of Worship Act of Quebec applied, and because of a conflict between the bylaw and the act, the by-law could not be applied to Saumur. The Freedom of Worship Act provided that "the free exercise and enjoyment of Religious Profession and Worship, without discrimination or preference, so as the same be not made an excuse for acts of licentiousness, or a justification of practices inconsistent with the peace and safety of the Province, is by the constitution and laws of this Province allowed to all Her Majesty's subjects within the same."11 This conclusion by Kerwin was chosen as the substance of the formal order of the court, even though Estey was the only other judge to apply the Freedom of Worship Act.12 This was an example of adopting what must have been thought to have been the least controversial point. Diversity among the judges had produced desperation. In Saumur the judges who had characterized the law as in relation to freedom of expression were content to say that the law was thereby invalid as provincial law, and they did not elaborate on the dominion legislative power over the freedom, if there was any at all. They were content to leave that question to be decided when it would directly arise. Both Rand and Kellock went to Duffs judgment in the Alberta Legislation case and found the source of the freedom in the preamble to the British North America Act: "Whereas the Provinces of Canada, Nova Scotia and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom." Estey was prepared to find a dominion source of legislative power in section 91 527, the criminal-law power. The placing of the fundamental freedoms within the words of the preamble of the Act gave them their implied nature. Since the order of the court was so minimal, that is, the by-law did not apply to Saumur because of the wording of the Freedom of Worship Act, it came as no surprise that the Act was amended in 1954 to provide that the distribution of pamphlets in public places attacking the religious beliefs of others was not covered by freedom of religious profession.13 The validity of this amendment has never been determined.14 A very surprising aspect of the Saumur case of 1953 was that it did not generate much academic interest — the only articles in the law journals were

317 The Captive Court by law students.15 Yet the issue was considered by Professor Frank Scott of McGill University to be of great significance because it was seen as involving interference with the election process through the control of the distribution of information. In a note he pointed out that the by-law had been designed with groups such as the Jehovah's Witnesses in mind and those who would distribute communist information. At the time, its power was being used to monitor meetings of the CCF, and members of the Social Credit party had been charged under it, while members of the Labour-Progressive party had been arrested during an election campaign.16 Within the Supreme Court, the judges had fragmented on the question of a judicial recognition of civil liberties as constitutional limitations within the legal constitution. The groups were clearly identified: Rand, Kellock, Estey, and Locke were prepared to accept recognition of civil liberties for the purpose of judicial review. Rand and Estey were the spokesmen, and both had received university-based legal education in the United States at Harvard University.17 The judges opposed were Rinfret, Taschereau, Cartwright, and Fauteux, while Kerwin had the swing vote. In Boucher he had changed his mind and gone with the pro-civil-liberty group. In Saumur he took a separate position, but in result again joined with the pro-civil-liberty camp. Kerwin did not see the role of the judge as being creative. He believed in a set form of legal discussion; courts were established to settle disputes, with certainty in the law being of paramount importance. He thus followed a corporate-commercial arbitration model. Kerwin's judgments directly reflected his judicial philosophy. He maintained that the reasons for judgment in a case should deal with the particular case, and principles of wide application should rarely be enunciated. In sum there was to be only resolution of the particular dispute and no judicial creativity.18 On 22 June 1954, Rinfret reached retirement age.19 He had been chief justice for a decade. The seniority principle was operating and Patrick Kerwin succeeded him as chief justice. On the same day that Kerwin was named as chief justice, Douglas Charles Abbott was appointed to the bench. The appointment was one of the most controversial ever made, and was to date the last of the obvious political appointments. Abbott, from Montreal, was fifty-five years of age. He had been a Liberal member of Parliament since 1940, and a member of the government since 1945. At the time of his appointment, he had held the finance portfolio for seven and a half years. He was a well respected politician and recognized to have the necessary leadership qualities to succeed St Laurent as prime minister.20 His departure from the political arena for the court came as a surprise. He asked St Laurent for the appointment when Rinfret retired, and St Laurent obliged him. While he was not the first English-speaking Quebecker to be appointed — Chief Justice Fitzpatrick, 1906—18, could claim that distinction - he was the first Protestant, being a member of the Church

318 The Implied Bill of Rights of England. For Duplessis, the Union nationale, and many of the people in Quebec, his appointment was offensive and provocative. It also showed an insensitivity to the Canadian Bar Association's concerns, since at the time the association was openly critical of the appointment of judges using political considerations as the dominant factors.21 SWITZMAN v. ELBLING AND ATTORNEY GENERAL OF QUEBEC, 1957 As a result of the Winnipeg General Strike of 1919, a provision had been added to the Criminal Code dealing with unlawful associations.22 Under the law any association that sought to bring about changes in government, in industry, or in the economic system by violent action was branded as an unlawful association. Any person who was a member of such an association or who advocated the goals of the illegal association was guilty of an offence. Anyone who provided accommodation for an unlawful association also committed an offence. The penalty for an offence under the section was imprisonment for not more than twenty years, except for someone who provided accommodation, in which case the penalty was a fine of not more than $5,000 or imprisonment for not more than five years, or both. The object of the provision was containment of the Communist party. Once the reaction to the Winnipeg situation had died down, considerable opposition developed during the 1930s to the unlawful associations provisions of the Code. In the dominion election campaign of October 1935, the Liberals made it part of their platform that they would repeal the provision. The Conservatives maintained support for it. When the Liberals won a resounding victory in the election they were able to repeal the law in June 1936. However, at the same time, the law with regard to sedition was amended by the addition of the following provision: "Without limiting the generality of the meaning of the expression "seditious intention" everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated, or who teaches or advocates, the use, without the authority of law, of force, as a means of accomplishing any governmental change within Canada."23 The Conservatives under R.B. Bennett argued against the repeal of the unlawful association law, and asserted that "the maintenance of national liberty is dependent upon the restraint of individual liberty."24 The Conservatives in Quebec had supported the retention of the law and with their victory in the Quebec election of August 1936, led by Maurice Duplessis under the banner of the Union Nationale, they moved to fill the gap left by its repeal. With the very deep feelings of the Roman Catholic church against communism, and the increasing conservatism of the socially

319 The Captive Court powerful in Quebec, it was easy for the Duplessis government to enact the Act Respecting Communist Propaganda in 1937.25 This famous (or infamous) law became known as the Padlock Law. The law made it illegal to print, publish, and distribute material that propagated communist doctrine. No person could use or allow to be used any house within the province for the propagation of the forbidden doctrine, and the attorney general was empowered to order the closing of any such house for up to one year. Any policeman upon instructions from the attorney general could seize any newspaper, periodical, or book propagating communism and have it destroyed. The words "communist propaganda" were not defined in the law. By the use of the Padlock Law, communism and socialism could be confronted, as well as unions, and political parties such as the CCF. With the Roman Catholic church so solidly behind the law and the support of the politically and socially powerful in Quebec, there was little or no opposition to the law from within the province. Of course any opposition could be construed as an offence under the statute. However, opposition from outside Quebec was quite vocal, particularly from the CCF. The Fortnightly Law Journal went as far as to suggest that the act was invalid since it violated "the underlying constitution," the "unwritten British Constitution, the fountain head of which is Magna Carta."26 This might well have been true, but it was an unusual argument to be seen in a Canadian legal journal of the time, which indicated that feelings were running high against the law from outside Quebec. Ottawa was requested to disallow the law, or to refer its validity to the Supreme Court, but the Liberals under Mackenzie King adamantly refused to do either. It was clearly fear of Duplessis' possible response that kept the federal government inactive. King feared that any action such as disallowance would precipitate an election in Quebec, which Duplessis and his conservatives would win.27 While the Social Credit legislation of Alberta dealing with financial matters was being disallowed or referred, the Padlock Law was left untouched. Activity was brisk in the use of the law to make raids for offending literature.28 When challenged before the courts, the validity of the law was upheld by Mr Justice Greenshields of the Quebec Superior Court on the basis that it was a law dealing with property and was not criminal law since it was aimed at the prevention of crime rather than at punishing acts. There was also said to be no curtailment of freedom of speech.29 The challenge that was subsequently to result in the judicial destruction of the law began ten years after its creation. Freda Elbling leased her apartment to someone who in turn granted his interest to John Switzman. Elbling sought to terminate the lease after Switzman had notified her that he was intending to renew it as provided by its terms. Elbling accused Switzman of using the premises to propagate communist propaganda. The attorney general

320 The Implied Bill of Rights ordered the apartment to be padlocked and the seizure and destruction of all offending writings. Switzman responded by pleading that the Padlock Law was invalid. The Quebec government intervened in the litigation to argue in support of the law. Mr Justice Collins of the Quebec Superior Court upheld the validity of the law, and Switzman appealed. Freda Elbling dropped out of the litigation at this point, and the province was left to urge the validity of the law. When the case reached the Court of Queen's Bench in 1954 this marked the first time that an appellate tribunal had considered the constitutionality of the law in the sixteen years that it had existed. A majority (4—1) of the appeal court sustained its validity.30 In November 1956, over seven and one-half years after Freda Elbling began her action, the case was heard by the Supreme Court of Canada. By this time the law had existed for almost twenty years. The full bench was present and with one lone dissent, it was held that the law was invalid.31 There were eight judgments rendered. Only Mr Justice Locke declined to write one; he concurred with Mr Justice Nolan. The impression obtained from the judgments of Chief Justice Kerwin, Fauteux, Cartwright, and Nolan, with Locke concurring, is that the answer was self-evident. The true character of the Padlock Law was said to be criminal law and consequently within federal legislative jurisdiction and hence beyond the authority of the province. Rand with the agreement of Kellock, and Abbott took a different approach. For Rand and Kellock, the law aimed at preventing the poisoning of people's minds; Abbott dealt with it as in relation to the propagation of ideas. Rand maintained that the constitution required "government by the free public opinion of an open society." In such a society there had to be a virtually unobstructed access to ideas as well as to their dissemination. For him: "Liberty [of communication of thought] is little less vital to man's mind and spirit than breathing is to his physical existence."32 Rand was prepared to take the position that the status of being a Canadian citizen endowed Canadians with certain rights and freedoms that were immune from provincial infringement. This was reminiscent of the assertion of the rights of British subjects that Idington had made in Quong Wing'm 1914.33 Rand was to mention such an idea several times in the 1950s, but it met with no success among the other judges. It seemed to be an attempt to get away from the problematic idea of implying the civil liberties in the preamble to the British North America Act. In his reasons for judgment, Abbott made a statement that continues to puzzle us to this day. He stated that neither the provinces nor the dominion could abrogate the right of discussion and debate. This was to be the only clear statement by a judge that there existed an area of law making beyond the authority of both Ottawa and the provinces. It seems that it can only be

321 The Captive Court explained on the basis that the particular law being challenged, the Padlock Law, was obviously contrary to dominant ideas of political freedom, yet the Act survived for twenty years, and was destroyed when nobody wanted it anymore, and did not care. Taschereau, the lone dissenter, maintained that the law dealt with property and the prevention of crime. Although he said that he would accept that freedom of speech was a fundamental liberty, yet the propagation of dangerous doctrines that were destructive to ideas of the social order could be stopped by society.34 For those inclined to accept it, the Switzman case became authority for the proposition that provinces and municipalities lacked legislative authority in the area of freedom of expression. Half of a bill of rights had thereby settled into our constitutional jurisprudence, namely that a provincial law could be characterized as in relation to freedom of expression and thus be beyond the competence of a provincial legislature. Except for Abbott's famous dictum and the silence in Rand's judgments, there was no real question that the dominion could "legally" do as it wished with regard to the restriction of expression. As a result of the flurry of creative activity, articulated best by Rand, the deeply rooted rights were coming into the legal arena as constitutional rights to be used by judges to review law.35 The Implied Bill of Rights was received warmly by some lower court judges in the 1950s and 1960s,36 and a quite explicit acknowledgment of it was made by Mr Justice Tysoe of the Court of Appeal of British Columbia: "Provinces have no power to enact legislation which in its true nature and character relates to freedom of expression concerning any policy or activity of Government or political parties or public men or concerning public affairs or religious subjects or bodies."37 Since the idea of a constitutional bill of rights such as the one within the American constitution was not accepted by many Canadians, both inside and outside the legal profession, it was not at all surprising that the majority of the members of the profession regarded the concept of the Implied Bill of Rights with some incredulity (at best). The creation of the Bill had been an astonishing exercise in judicial creativity that was definitely not seen as traditional judicial behaviour, and it was thus worrisome for many lawyers.38 Judicial creativity did not fit into the image of the legal system that had been projected over the years for the public. The "sterile years" were accepted to be the norm, and thus one might wonder as to what would have motivated the legal profession to enter the difficult and to some extent dangerous area of creativity when the public seemed to accept the sterile image.

24 The End of the Fifties

The bench of the Supreme Court of Canada that began the first decade as the final court of appeal for Canada had had a definite conservative tinge to it in the persons of Thibaudeau Rinfret, Patrick Kerwin, Robert Taschereau, John Cartwright, and Gerald Fauteux. When Kerwin occasionally abandonned his conservative position, the other four judges were left in a dissenting position in the civil-liberty cases of the 1950s. Rand alone had presented a solid appearance of creativity; aided frequently by Roy Kellock and James Estey, he had always been in the majority with respect to the result in the cases. It is unclear how to characterize Charles Locke. By the end of the fifties the court had become solidified in its position as the final court of appeal, but with a number of changes in the personnel on the bench it had acquired a bench dominated by ultra-conservative judges. On 22 January 1956, James Wilfred Estey died after two months in hospital. At the beginning of March 1956, Henry Grattan Nolan of Alberta was appointed, but just over a year later he suffered a heart attack and died.1 On 15 January 1958, Roy Kellock suddenly resigned. On the same day that Kellock resigned, Ronald Martland of Alberta was appointed to take Nolan's place. Martland was the first appointment by the new Conservative government of John Diefenbaker. He had practised law at Edmonton, and had not had any judicial experience. He was to prove one of the most conservative judges to be appointed to the court. He became one of the architects of the judicial destruction of Diefenbaker's beloved Bill of Rights, which would be enacted in just over two years. Shortly after Martland's appointment, Wilfred Judson of Ontario was also appointed to take the place on the bench vacated by Kellock. Judson had been a member of the Ontario High Court for seven years, and prior to this he had practised law at Toronto. He had come to the study of law in his late twenties, after having taught Latin at a Toronto high school for six years. He had been born in England and had come to Canada in his early twenties with a B.A. and an M.A. from the University of Manchester.

323 The Captive Court In the face of the growing conservatism of the bench, Mr Justice Rand had continued his assault on the captivity of the legal profession, but his views had still not acquired credibility despite his years of noted judicial experience; the fabric of mechanical jurisprudence was tightly woven. In 1959, the final year of his career as a justice of the Supreme Court, he outlined in an address the desirable qualities of a member of the legal profession.2 Such a person needed an intellect of broad dimensions, and an intense interest in and lively curiosity about politics, literature, science, the arts, and the field of knowledge generally. This conclusion as to the general qualities that a lawyer and a judge should possess has been a common one among those who have thought about the issue. In brief, a judge should have a broad intelligence, coupled with diverse interests: that is, a learned person.3 What was not emphasized was a "scientific knowledge" of the law. In his address Rand once again advocated breaking away from the captivity in the judicial system: "We must ... do our own thinking-out of new problems and express it in our own idiom." And in keeping with the need to think out the problems, he called for an awareness of social facts and their use: "This calls for more scholarship, more realistic understanding of social facts in widening perspectives and broadening backgrounds, deeper appreciation of new attitudes, assumptions, needs and demands of Man that will emerge from these tremendous changes."4 He directly criticized the practising bar by pointing out a weakness in what the lawyers were presenting to the judges of the Supreme Court - "there is not being displayed that command of the relevant considerations which leads directly to the ultimate issues."5 In order for the judiciary to be creative, lawyers also had to be creative, and on the question of cultivation of the necessary qualities, there was of course the matter of the nature of legal education. At no time had Rand better expressed his views on the need for a creative judiciary. On 17 April 1959, much to his dismay, Ivan Rand reached retirement age and left the court. He was succeeded by Roland Almon Ritchie of Nova Scotia. Diefenbaker's Bill of Rights was now just over a year away, and Ritchie was to become the leader in rendering it ineffective. Diefenbaker's own government's appointments were out of tune with his aim of constitutionally entrenching civil liberties in the law. But the government was Conservative regardless of any lapses that Diefenbaker might have had. Ritchie was also to demonstrate that he could be one of the most conservative and "mechanical" judges ever to be appointed to the court. Like Martland, Ritchie had had no judicial experience prior to his appointment, which may have been an indication that after the many years of Liberal rule the superior court benches were short of Conservatives. He had practised law at Halifax. He was only forty-eight years of age when appointed and with Martland, who was fifty when appointed, would dominate the bench for some years.

324 The End of the Fifties AS THE 1950S CLOSED, there were signs that Canadian legal education was stirring. A major article appeared in the Canadian Bar Review in which, for the first time, there was a reasonably in-depth analysis of the judicial function that focused directly on Canadian cases.6 In the article, Horace E. Read, dean of law at Dalhousie University, openly attacked the captivity. He criticized Canadian judges for depending almost completely on English decisions, and for doing so uncritically and mechanically. He wrote that one had the resulting impression of English judges applying English law. Thus, while the captivity was still in existence at the end of the first decade after the abolition of the appeal to the Privy Council, it was now being exposed in no uncertain terms. In a specific reference to the Supreme Court, Read pointed out that the judges had shown no evidence of regarding the law as a living thing to be applied and shaped to meet the needs of an evolving society.7 With the captivity came the inevitable lack of creativity. The one bright note with regard to the court, Read commented, was the work of Mr Justice Rand, whose performance was in "striking contrast" to that of the other judges. He described Rand as a "creative lawmaker," since he had drawn upon "sources both within and without the body of existing law and [was] shaping the new rule to accord with what those sources indicated that it ought to be."8 It is of interest, as has been pointed out earlier, that the description of Rand as a "creative lawmaker" was drawn by Read from a 1943 decision, and not from the rich storehouse of quotations in the civilliberty decisions of the 1950s.9 One would have thought that Rand's demand for the creation of "new jural conclusions" in Boucher demanded recognition. By the time that the article appeared, the "creative lawmaker" had retired. Horace Read's dismal assessment of the Supreme Court's law-reform capability was amply illustrated by the decision in Deglman v. Guaranty Trust Co. of Canada and Constantineau. DEGLMAN v. GUARANTY TRUST CO. OF CANADA AND CONSTANTINEAU, 1954 This decision has been identified within the profession as a law-reform case in which the doctrine of unjust enrichment became part of the law. Since no one accepts that the judges were "finding the law" in the old sense of that expression, it means that the judges could not escape behind the shield of mechanical jurisprudence. The dispute in the case centred on an agreement that had been made between a woman and her nephew, by which he would help her by doing odd jobs and chores, as well as driving her to various places, and in return she promised to leave him a house that she owned in her will. When she died, no

325 The Captive Court will could be found. Her nephew brought an action against the estate and claimed the property that he had been promised. The oral contract was unenforceable owing to the Statute of Frauds,10 which required written evidence of the promise with regard to the land that was signed by the aunt. The judge of the Ontario High Court and the judges of the Ontario Court of Appeal were prepared to find sufficient part performance to remove the case from the operation of the Statute of Frauds. The doctrine of part performance had developed in equity to relieve against a strict operation of the Statute of Frauds. If acts had been performed that could be seen to be referable to a contract, that is, if the contract had been performed in part, then the agreement might be ordered to be completed without any signed written evidence. The Supreme Court panel of seven judges unanimously rejected the use of part performance, and went on to change the law and accept the application of the principle of unjust enrichment, which provided that if one party was unjustly enriched at the expense of another party, then the law would allow the disadvantaged person to be compensated." Rand for himself, Chief Justice Rinfret, and Taschereau simply articulated the idea involved in the doctrine of unjust enrichment and said that the matter was "elaborated exhaustively" in certain American sources.12 In result all that one had as far as thoughts about the law reform being carried out was the conclusion, based on American research. Cartwright, for himself, and Estey, Locke, and Fauteux agreed with Rand but did not want to leave the conclusion as resting on American sources. A reference was made to the opinion of Lord Wright in a decision of the House of Lords, which Cartwright said was the same as the American material. There was again no independent thought. Both Rand and Cartwright devoted twice as much space in their judgments to a discussion of part performance (which they rejected as applicable) as they did for the discussion of unjust enrichment, which engaged law reform. There was no indication that there was any controversy with regard to state of the law. It was left to writers of comments in the law journals to point out that there was considerable dispute about the law of unjust enrichment, which meant that there was something clearly lacking in the decision of the Supreme Court.13 Since the judges had not demonstrated any independent thinking about the issue in the case, the writers of the case comments were left to articulate the legal problem involved in the case; by taking the conclusion of the court, they then speculated as to what the judges must have been thinking. In one of the case comments, the student writer referred to the selective use of authorities as showing where the court stood on an issue.14 The absence of any discussion of the counter-authorities was apparently not considered by the writer to be a fault in the judgments. It thus seems that the

326 The End of the Fifties

selective use of cases without justification was an accepted means of judicial law reform in the academic world of the fifties. The case illustrates that Rand's creativeness was confined to public-law decisions. In the area of private law he performed in the same fashion as the other judges. The criticism of his statement "the authorities in England have pronounced" seems to have been entirely justified. THE FIRST DECADE after the court became the final court of appeal for Canada could very well be called the Rand years. Rand seemed to be the focus of all discussion, and his views of the judicial function, as demonstrated primarily, in the public-law area, were free of captivity. He offered a challenge to legal education, practising lawyers, and judges, but unfortunately most of the time his views were ignored by the profession. With the exception of James Estey, the other judges were generally content to deal with the problems in the same manner that was predominant during the sterile years. This was apparently the norm, and Rand was an aberration. In Dfglman a result had been produced, but that in itself was not law. Law is constructed from the reasons behind the result. The result in a case, devoid of the reasons behind it, is an act of will, which is the exercise of political power. It seems that the majority of the judges were afflicted with Laskin's curse of being judicial zombies, without soul or character. Horace Read's criticisms, although dramatic, certainly appeared apt. Rand was a leader during a period when leaders were not that obvious. A review of cases judged important during the terms between 1949—50 and 1958—59, twenty-seven in total, indicated that no judge was able to command a majority with respect to the reasons for judgment, except in rare instances.15 However, Rand and Cartwright were able to attract more concurrences than any of the other judges by quite a margin, with Cartwright slightly ahead.16 Rand's advocacy for a thinking profession and judiciary began with the abolition of the appeal to the Privy Council, but there were few to take up his cry. Academic institutions for the study of the legal process were at the time mainly skeletal in nature. It seems very likely that his ideas of the judicial function and of the legal process were simply too unfamiliar to be accepted by the profession, most of whom would have had little exposure to ideas concerning the nature of the legal process, and the role of a final court of appeal. After Rand left the court in 1959, it would be a decade before similar views would be heard from within the court. Either no one had been listening, or they did not know what to do with what they had heard. Rand's American legal education may have set him apart, since the quality of legal education in Canada over the years had apparently been such that the views expressed by him were seen as unnatural, alien thoughts. After he retired from the bench, he became dean of the Faculty of Law at the University

327 The Captive Court of Western Ontario. The scene had been set for the inclusion of his ideas in Canadian legal education. At the beginning of the 1950s a number of academics had expressed very high expectations for the court. This was wishful thinking, since even in the best of circumstances, it could not be imagined that the court would shed its character overnight, especially as it appeared that the great majority of the legal profession were content. The great expectations were articulated by only a few, and there was little motivation to change if no problem was acknowledged. Bora Laskin had lamented that the court prior to 1949 had spent its energies interpreting what the Privy Council had said, rather thank thinking out a solution to the particular problems that came before it. It was too easy to simply say that the captivity of the court was only the result of its status as an intermediate court of appeal. A decade had passed since the appeal to the Privy Council had ended and there had been no perceptible change, with the exception of the judgments of Ivan Rand. AN INTERMEDIATE COURT OF APPEAL While the appeal to the Privy Council had existed, it could be said that the Supreme Court appeared to be in the position of an intermediate appellate court. However, the idea needs to be examined whether the Supreme Court was truly an intermediate court of appeal, or whether some special relationship actually existed. An intermediate appellate court has usually been created to take the load off a higher court, but this was not the situation with respect to the Privy Council. A national existence and the need to deal with constitutional cases for the sake of uniformity created the Supreme Court of Canada, while the Judicial Committee of the Privy Council was created because of the colonial empire, and the social value that all subjects should have the right to appeal to the sovereign for justice. The Privy Council had unquestionably been an integral part of the Canadian legal system, but did this fact, in itself, necessarily relegate the Supreme Court to the position of an intermediate appeal court? The status of Canada within the Empire by 1875 and until 1949 was such that this thesis would be difficult to accept without question. Even the assumption that the Supreme Court of Canada was an intermediate court of appeal from 1875-1949 does not in itself answer the captivity question. Although little has been written about how intermediate courts of appeal function, what literature does exist indicates that creativity need suffer only to the extent that precedents of the higher tribunal would control the work of the lower court.17 The intermediate court would feel an obligation to pay particular attention to the higher court's judgments, and try to

328 The End of the Fifties follow any relevant decision. However, in the absence of a controlling precedent, the intermediate court would be put into the position of having to decide for itself. When faced with the need for creativity the intermediate court might ask how the higher court would deal with the problem and attempt to decide accordingly, or might proceed to determine the issue as best it could, and thereby attempt to persuade the higher court to decide in the same fashion. Whichever approach was taken could very well depend on the circumstances of each case, as well as the traditions that were in place, and the degree of confidence residing in the judges of the intermediate court. As indicated in the previous chapters, the evidence is that the Privy Council respected differences that were developed in the law of the various parts of the Empire. On occasion, the clear message was sent that Canadians should develop the law to suit their own needs. The Supreme Court had not responded. In an interesting article dealing with the work of the Ontario and Quebec appeal courts, Louise Arbour, now a judge of the Ontario Court of Appeal, noted that although the Ontario Court of Appeal was an intermediate court of appeal, yet it was not passive and mechanical. She described it as "a powerful forum for the development of criminal law doctrine," and although the court might acknowledge that it was bound by a Supreme Court decision, yet it could forcefully express its disagreement with the law, and articulate reasons for a new approach. The author looked at various cases and commented: "These cases illustrate the self-image that the Ontario Court of Appeal seems to have of its role in the development of criminal law theory. In its interactions with the Supreme Court, it appears to be looking merely for specific binding rulings which will then be incorporated in its scholarly analysis and exposition of the law."18 This observation is a long way from any description of the pre-1949 Supreme Court, or the court after 1949. For the period that was being reviewed, the author commented: "The Supreme Court of Canada has very unevenly provided the intellectual leadership that could have made it the prime forum for the development of criminal theory."19 The focusing on the appeal to the Privy Council as the cause of the captivity that Laskin and others saw in the court seemed an easy solution, but even if it was an intermediate court of appeal that would not in itself create the degree of captivity displayed by the Supreme Court. As the decade of the fifties ended it seemed that the abolition of the appeal across the Atlantic had not ended the captivity. The Supreme Court and the legal profession had withstood admonitions of academics such as Bora Laskin and John Willis, and had been able to withstand an assault from within the court by Ivan Rand.

PART F

The Court Solidified, 1960-1980

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25 The Sixties

With the arrival of the 1960s it did not take long for the non-creative, conservative nature of the bench to display its continuing domination of the institution. The result was that the fifties were made to appear to have been only an interlude in the sterile existence that had been the fundamental nature of the legal system since the turn of the century. THE GLOBE AND MAIL v. BOLAND, 1960 A feeling of law reform surrounded the Boland case, which was heard by the Supreme Court of Canada in December 1959. The plaintiff, John Boland, had brought an action in defamation against the Toronto Globe and Mail because of one of its editorials written during the dominion election campaign of 1957 in which the newspaper had accused Boland, a candidate in the election, of using shoddy tactics in order to get elected. He was said to have accused the government of being soft on communism and employing pro-communists, and to have used the fear of communism to generate votes from among recent immigrants. The tort of defamation protects a person's interest in his or her reputation by exposing anyone who publishes defamatory material to an action and possible liability in damages. Defamatory material can be defined as any information that would injure a person's reputation by exposing that person to expressions of hatred, ridicule, or contempt by right-thinking members of society. However, the truth of the information is a defence in a defamation action. Intentional falsehoods told about a person that would damage that person's reputation have always been considered outside any protection that may exist based on the value that our society gives to freedom of expression.1 However, if it was the reputation of a "public" person that was sullied, and if the attack was on public actions as opposed to private life, then a very definite concern with freedom of expression arises.

332 The Sixties Certain occasions on which persons should be allowed to distribute information freely, including false statements, have been recognized in the law, as long as the person making the false statement does so without malice, that is, without a deliberate intent to injure someone. On those occasions when a person is protected against a defamation action, that person is said to have a qualified privilege. The word "qualified" is used to indicate that malice would destroy the protection. The occasions that were recognized were those in which a person had a duty, whether legal, moral, or social, to communicate information, such as to the police about a supposed crime, or the giving of a reference, and the recipient of the information had an interest in receiving it, such as the police in controlling crime, or the person who would employ the person for whom a reference was sought.2 Since the protection against being found liable in a defamation action was based on an interestduty relationship between people, it had been accepted in the law that, if the information in question was distributed too widely, the protection of the privilege would be lost, since not everyone would fit into the interest-duty relation. Prior to the Bolandcase, concern with freedom of expression had appeared when some attempt had been made by certain trial judges in the late 1930s and 1940s to extend the scope of the idea of qualified privilege to cover comments and information given to the public concerning matters of public interest, but there had been no express appellate authority for the use of the defence of qualified privilege in such circumstances.3 When, in Boucher, Rand had called freedom of expression "the essence of our life," that comment, combined with the result in the case, was a signal that freedom of expression would take on added significance in the law and the society. The creation of the Implied Bill of Rights was evidence of an increased concern about civil liberties. In the circumstances of the Bolandcase, Rand's call for the creation of new jural conclusions cried out for consideration. Just four years later, the civilliberty explosion that was to occur in the United States received a monumental boost in New York Times Inc. v. Sullivan, in which the Supreme Court of the United States held that a libel action was an infringement on the First Amendment right of freedom of speech when brought by a public official against critics of his official conduct.4 Freedom of expression was said to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people, and public discussion was said to be a political duty. Although some degree of abuse would be inevitable, yet the right of free public discussion was a fundamental principle of the American form of government. The newspaper in the American case was granted a qualified privilege. The same result was possible in the Boland c-a&z. The impetus for law reform in Canada was pushed forward when the trial judge in Boland, Mr Justice Spence, who would join the Supreme Court of

333 The Captive Court Canada four years later, found the occasion to be one of qualified privilege. When the Ontario Court of Appeal ordered a new trial on the ground that there was evidence upon which the jury might find malice, implied appellate approval for the use of the defence of qualified privilege might have been assumed; however, there had been no express approval. Spence had followed two Ontario trial decisions from the late 1940s in which qualified privilege had been recognized.5 The issue that came before the Supreme Court was the law-reform question of whether it should be accepted that the editorial had been published on an occasion of qualified privilege. If this defence could be raised by the newspaper, it meant that the burden of proof would be on the plaintiff, Boland, to prove that the newspaper had been actuated by malice, meaning a real intent to harm him; if the defence was not to be available, then the burden would be on the newspaper to justify the defamatory statements by proving that they were true. The difficulty of establishing truth or malice in either case was such that it was entirely possible that the party who had the burden of proof would probably lose. The Supreme Court showed immediately that it was not about to engage in any creative reform action by the fact that only five judges took part, rather than the full bench. The selection of the five judges was made by Chief Justice Kerwin, who had no concept of a creative court. The five judges who participated were Kerwin, Locke, Cartwright, Martland, and Judson.6 In an unanimous decision rendered at the end of January I960 in which Cartwright delivered the judgment of the court, it was held that prior authority bound the judges to hold that the defence of qualified privilege was not available to the defendant.7 Whether bound by precedent or not, it was clear from the decision that the five judges agreed with the merits of the result. The dominant interests preventing the recognition of the defence were those of not discouraging sensitive and honourable men from seeking public office, and the maintenance of the public character of public men. It was considered by the court that the defence of fair comment was sufficient protection for newspapers in such cases. This defence can be raised when a matter of public interest is involved, at which time the interest of a person in his reputation gives way before a fair comment on the matter of public interest. In order to raise this defence successfully, there must be a matter of public interest and the statement in question, which is defamatory, must be comment and not a statement of fact, which is indicated by the words themselves. In order to characterize the comment as fair, the facts that form the basis of the comment must be truly stated, and comment without a basis of fact is treated as a statement of fact and not a comment.8 The comment must be honest, and not exceed the limits of fairness. When it is said that a comment must be fair, it means that it must be reasonable in the eyes of a jury. There can be no imputation of corrupt or dishonourable motives, and

334 The Sixties as with the defence of qualified privilege, malice will destroy the defence of fair comment. The necessity for the facts upon which the comment is based to be proved to be true meant that fair comment was effectively unavailable as a defence in Boland. The authority that was said to bind the court was the 1951 decision of Douglas v. Tucker, a case involving the 1948 provincial election campaign in Saskatchewan, during which the defendant, Premier Tommy Douglas, accused the leader of the opposition, Walter Tucker, of being involved in fraudulent dealings in land, and that Tucker and his party had been responsible for the taking of lands from the farmers. Douglas had made a speech in Tucker's riding and had agreed to it being reported in a newspaper. It was the newspaper report that became the basis for the libel action. The Saskatchewan Court of Appeal had reversed the trial judge's dismissal of the action, and had ordered a new trial on the basis that no privilege should be recognized. Seven judges of the Supreme Court heard the appeal and the judgment of an unanimous court was also rendered at that time by Cartwright.9 The judges recognized the existence of the defence of qualified privilege for statements made by an elector to fellow electors concerning the fitness of a candidate for office, but the privilege was said to be lost if the publication of the statements was made in a newspaper. The rationale for the destruction of the defence was that the interest in the fitness of a candidate did not exist beyond the electors concerned and publication in a newspaper was considered publication to all the world and therefore to persons not having an interest. Rand had sat on this appeal. In Boland, Cartwright stated that newspapers had no privilege higher than that of an individual citizen, but in reality a newspaper was denied the privilege afforded an individual elector for publishing non-malicious defamatory statements regarding a candidate's fitness for office. For a newspaper, the material it published would always to "to all the world." In addition to the 1951 case of Douglas v. Tucker, the judges also relied on an old English decision Duncombe v. Daniell.™ This case had also been followed in the Douglas case. When it is realized that Duncombe v. Daniell was decided in 1837, we have unmistakable evidence that the judges were not of a mind to reform the law. Cartwright, who rendered the judgment in both Boland and Douglas v. Tucker, had been the counsel for the plaintiff George Drew, the premier of Ontario, in his 1947 action for libel against the Toronto Star and had at the time unsuccessfully argued that there should be no recognition of qualified privilege. As a judge of the Supreme Court of Canada, he gave effect to his earlier argument. An indication that law reform might indeed have been appropriate was the fact that the issue was persistent enough to reappear before the Supreme Court a year later in Banks v. The Globe and Mail Ltd" Cartwright once

335 The Captive Court again rendered the judgment of the court for another bench of five judges in which the result in Bolanetvras followed.12 In the Banks case Harold (Hal) Banks, the Canadian director of the Seafarers' International Union, sued the newspaper over an editorial that accused him of scuttling Canada's deep sea fleet. The newspaper once again claimed qualified privilege. At the trial in June 1958, the trial judge accepted the application of the defence of qualified privilege, but left the case for the jury since there was evidence of malice. The jury subsequently found no malice and the judge ordered that the action be dismissed. The Ontario Court of Appeal affirmed the trial decision. The trial judge had again been Spence, and this time the Court of Appeal definitely recognized the existence of the defence.13 It is interesting that the Ontario Court of Appeal itself granted leave to appeal to the Supreme Court, which reversed the Ontario courts and found the newspaper to be liable. The solidly conservative majority judges of the Supreme Court who heard the qualified privilege appeals in the 1960s, Kerwin, Cartwright, Martland, Judson, and Ritchie14 refused to accept the reform of the law, and reached back 123 years to 1837 for the law and its inherent values that should be applied. Their attitude was dramatically seen by a comparison with that of the American judges in Sullivan. The Supreme Court of the United States considered that the crucial question was what effect the law would have on the participation of the people in the governing of the society; in Boland, the question was what effect the law would have on the governors of the society as far as recruitment was concerned - the judges did not want to discourage sensitive and honourable men from seeking public office. The unanimous Supreme Court of Canada had given no hint that there was a reform issue living in the Bolandcase. B R O D I E v. THE QUEEN, 1962 As the 1960s progressed, the highly controversial and socially vital concept of freedom of expression continued to bedevil the judges of the Supreme Court. There were signs that times were changing and the court would not remain untouched. In the Brodie case the court was asked for the first time to deal with the law of obscenity. Its role as a final court of appeal was put to the test. In November 1961 the court heard an appeal from Quebec dealing with D.H. Lawrence's highly controversial novel, Lady Chatterley's Lover. Change in social values was in the wind. Importation of the novel had been banned over the years since it was first published in 1928, but in I960 the government had approved importation, and although the judges in Quebec in this litigation had unanimously declared the book to be obscene,15 the government had decided that the importation approval was to stay in effect until

336 The Sixties the Supreme Court ruled on the issue. In the United States, a federal appellate court in March 1960 had affirmed a trial court decision that the book was not to be classed as obscene. In England as well in 1960 the novel had been found not to be obscene. Standing in the way of change in the law was the professional context of a traditional restraint by the judges to deal with law reform coupled with the social context of what has been termed the moral imperative operating within Canadian society, that was definitely activated by the concern with obscenity. The Supreme Court of Canada had granted leave to hear the case, but this had taken place after the highly unusual situation of having the full bench of nine judges hear the application. The importance of the case was clearly recognized. The appeal was also heard by the full bench and the Supreme Court held, 5-4, that the book was not obscene.16 Canada was thus moved into a new era by a single judicial vote. The judges who decided that the book was not obscene were Cartwright, Abbott, Martland, Judson, and Ritchie; dissenting were Kerwin, Taschereau, Locke, and Fauteux. All of the judges went about their task in a workmanlike fashion - the facts and the Criminal Code provisions were dutifully set out. The judges were faced, however, with an undeniable policy question of determining what the law should be that was to be applied in future obscenity cases - undoubtedly the real reason that the case went to the court and why the full bench heard it. Following the end of World War II, there was increasing public restiveness about the old restrictions on the expressions of ideas concerning sex. In Canada there had been a virtually complete suppression of public expression of ideas with sexual connotations, with customs regulations serving as a wall around the country. Public reaction against restriction grew during the 1950s. At that time the law that was used to determine whether something was obscene was known as the Hicklin test, and this rule required that the judges make the determination as to whether the matter that was challenged had a tendency to deprave and corrupt those whose minds were open to such influences, and into whose hands the matter might fall.17 Cracks began to appear in the rule in the 1950s when criticisms of it began to be heard within the legal community.18 Judges themselves began to express open concern over the vagueness of the law, which was a sure sign that change was on the way.19 Judges wanted an objective test, one that would take them out of the limelight that had been created by their obvious need to search for applicable social values. In 1959 the Conservative government of John Diefenbaker amended the law by adding a new subsection to the Criminal Code provisions dealing with obscenity. The new law read: "For the purpose of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex in any one or more of the following subjects, namely, crime, horror, cruelty, and violence, shall be deemed to be obscene."20

337 The Captive Court It was unquestionably the intention of the government to add this law to the existing Hicklin test in order to allow easier prosecutions of what were then known as "girlie" magazines. The new test was to be capable of application with speed and certainty, because a series of simple objective tests had been created. This was simply too tempting for the judges. In Brodie, the lawyers had agreed that for the purpose of the case, the new rule was to be the sole test and Hicklin was pushed aside. This agreement went against the government's intention when the new provision was created, and might have been grounded in the belief, based on the professional judgment, that if the Hicklin test were left alive, the judges would not be prepared to reform it, and in particular not be prepared to depart from that part of the rule that prevented evidence of a book's literary or artistic merit from being placed in evidence. The sole use of the new rule would allow the judges to appear to be merely applying the law, not taking the active position of altering an existing rule. The legal profession was undertaking law reform by the agreement of counsel. All nine judges of the Supreme Court did indeed apply the 1959 subsection as the test, and the result was a 5—4 decision. So much for the certainty of the new test. Even though counsel had agreed otherwise, two judges also applied the Hicklin test with a 1-1 result. In the process of deciding the case, a new test emerged, that of applying the community standard of tolerance.21 This new test was said to depend on the view that a general instinctive sense exists in any community as to what is decent and what is indecent. A majority of the judges pointed out that the new test they were using was an objective one, but this must have been only an attempt to deflect potential criticism away from them to the rule itself, that is, to the words of the law.22 When values with regard to an issue such as obscenity are changing, then a social consensus, which is so desperately needed when dealing with such a question, is absent, and an "instinctive sense" as referred to by some of the judges, cannot be confidently ascribed to society as a whole, thus making the judges prone to accusations of simply applying their own values. Although Ritchie sided with the majority with regard to the result, he considered that the new legislation had expanded the meaning of obscene to include that which shocks and disgusts, in addition to that which has a tendency to deprave and corrupt. Thus he was prepared to further restrict society concerning the expression of sexual matters in the face of what seemed to be a tidal wave of change by the lessening of restrictions. Ritchie's conservatism was only beginning to show itself. The majority seemed content to appear to be simply applying the law, but the judgments of the dissenting judges articulated certain basic concerns. Chief Justice Kerwin was concerned about the lessening of social restrictions and the degeneration of civilization. Taschereau rejected the decisions in both England and the United States and viewed the new 1959 law as an attempt

338 The Sixties to halt what he called a "legalized assault against morality." Fauteux wrote as well in terms of corrupting public morals. The "natural law" inclinations of the French-Canadian judges were hovering in the background. By the 1960s a definite fear had arisen among those concerned with the question of the control of obscene material that the law would continue to be used against serious literary works such as Lady Chatterley's Lover. Legislation had been enacted in England in 1959 that was prompted by a series of prosecutions for obscenity brought against well-known and reputable publishers; the English law allowed expert evidence to be introduced to deal with the question of literary merit. English and American courts had approved the novel in question by removing the brand of obscenity from it. The Canadian government had removed the importing ban. Yet as a preview to the Bill of Rights saga that would unfold in the Supreme Court, four judges were prepared to ban the book. Restrictions were going to die hard. In passing, it can be noted that the Canadian Bill of Rights and its guarantee of freedom of expression was dealt with by Mr Justice Casey at some length in the Quebec appellate court, but was not even mentioned by any of the Supreme Court judges.23 WISHART FLETT SPENCE was the first appointment of the Liberal government of Lester Pearson, which had replaced Diefenbaker's Conservative government in 1963. He had been a trial judge of the Ontario Supreme Court for thirteen years. He had a good academic background, with a degree in political science from the University of Toronto. He had studied law at Osgoode Hall. He had also been exposed to American legal education in that he had obtained a masters degree in law from Harvard University in 1929. Prior to his appointment as a judge of the Ontario High Court he had practiced law at Toronto, and his academic credentials had obtained for him the position of part-time lecturer at Osgoode Hall in 1930. He brought a background in American legal education and academic studies to the Supreme Court. THE MAJOR SOCIAL EVENT of the 1960s was the celebration of the centennial of Confederation in 1967. The occasion was a time for reviews of the past hundred years, and as the centennial approached, the legal profession stirred and expressed concerns about the court and its contribution to Canadian society during the past century. The regretful conclusion was that the court had been effectively bypassed as an important arena for the making of vital constitutional decisions.24 Even though the court had not in reality been bypassed and had been involved to the extent that any court could have been in the circumstances, yet this impression was left in the mind of the public, and it became the profession's stated position. It was said to be an anonymous institution, and lacking the qualities of its American counterpart, which was seen to be more

339 The Captive Court than a mere mechanical interpreter of words, and whose judges were said to render judgments that could be provocative and intellectually stimulating. Although the court had not been bypassed, it was clear that, from the viewpoint of the mid-1960s, it had definitely not performed as many would have liked. At this time it was pointed out that the court had not been created by the British North America Act, and thus did not have a constitutional status.25 Laskin had also alluded to this fact in his famous 1951 article. This point had all the appearance of becoming a new excuse. The appeal to the Privy Council had been the scapegoat until 1949; now critics were expressing the view that the court had not performed in the way in which they thought it should have. For some there had arisen the need for a new scapegoat. The alternative would have been to attack directly the quality of the judiciary, and hence the profession, which would have been revolutionary. On the eve of the centennial of Confederation, the Supreme Court rendered its decision in the Jennings case. It was heralded as the first time that the court had expressly refused to follow a decision of the House of Lords. The case became a symbol — the beginning of the development of a truly Canadian jurisprudence26 — yet, on close examination, this so-called landmark decision had some intriguing imperfections. THE QUEEN v. JENNINGS, 1966 The appeal was heard by only five judges and the significance of the case was established when four of them rejected a principle of law that had been stated a decade before by the House of Lords.27 There were two judgments rendered, one by Mr Justice Cartwright with which Martland, Ritchie, and Spence concurred, and another by Mr Justice Judson, with which the same three judges concurred.28 Although the question of the rejection of the previous practice of slavish and mechanical adherence to English decisions, and in recent years, specifically the decisions of the House of Lords, was clearly involved, it was interesting to note that Cartwright in his judgment referred to English cases as a matter of course. With respect to the question of the adherence to English authorities, he noted that a "careful examination" of the question would be required.29 He did not reject the House of Lords case. It was Judson, who, in a separate judgment, dealt solely with the question of being governed by the English decision. He pointed out that the case before them could be decided without rejecting the House of Lords, but he went on to make the point that he considered it necessary that the issue of the authority of the House of Lords be faced at that time and that an opinion be expressed. He concluded that the principle in the House of Lords decision should be expressly rejected. That Martland, Ritchie, and Spence could concur in both judgments is, to say the least, somewhat interesting.

340 The Sixties Because Judson was taking a somewhat bold step, he departed from the "authority reasons" style that was a signature of the court, and analyzed the problem and presented his reasoning. That the English decision was rejected by Judson and not by Cartwright was of slightly added interest in that Judson had been born in England and came to Canada following graduation from the University of Manchester. He had received his legal education in Canada at Osgoode Hall Law School. Perhaps the Supreme Court was compelled to go on its own. On 26 July 1966, the lord chancellor in England launched the House of Lords on what had the potential of being a new existence - he issued a practice statement declaring that the House of Lords was no longer bound by stare decisis.30 Could the Supreme Court of Canada continue to follow blindly the House of Lords when that institution had been instructed to stop following blindly its own decisions? Within two years, the first occasion occurred when the House of Lords would use its new-found power, and although a reading of the case did indeed show that the law lords were showing restraint, yet a previous decision was actually overrulled.31 It is not known whether the action that would be taken by the lord chancellor in July 1966 was known to the Supreme Court of Canada in April 1966 when Jennings was decided. With respect to the House of Lord's decision that was in issue in Jennings, it had not sat well with the legal community.32 From 1956, when it was decided by the House of Lords, until 1963, Canadian judges had followed it unquestionably, and had ignored prior Canadian cases in the process. A refusal to follow the case had developed in Canada in 1964.33 The Supreme Court came into the picture after a rejection of the case had been established. It had been Spence, while a High Court judge in Ontario, who had adopted the case in 1962 and had reversed the previous Ontario trend. On the question of the authority of the decisions of the House of Lords in general, Gordon Bale of Queen's University noted in 1966: "As a House of Lords decision, it is, of course, not binding in Canada: nevertheless, it is highly persuasive. It was considered so highly persuasive by many Canadian judges that it has been followed without discussion and without reference to earlier Canadian decisions which adopted the opposite view."34 The words indicate a major change - from that of considering the decisions of the House of Lords as equivalent to statutes, as put by Anglin in 1923,35 or as binding as a matter of law as stated in the Robins case, to describing them as "of course not binding in Canada." But as can be seen from the quote, the reality behind the words could be something quite different.36 WHEN ONE is considering the demands that were made for a distinctive Canadian jurisprudence, it must be realized that the values of Canadian society might not differ significantly from those in England, the United States, or elsewhere, and so the creation of a truly Canadian jurisprudence

341 The Captive Court did not necessarily mean that Canadian law would be different from that of other jurisdictions, but it had to have been created consciously by Canadians. The judges would have had to think about it. For Laskin in 1950 it was this lack of thought that had disturbed him. The lack of ability to have independent thought was the captivity. The reviews of the work of the court published in the centennial year of 1967 were very critical. Professor Alan Mewitt of the University of Toronto, in his review of the area of criminal law, noted: "It is not, I think, unfair to characterize the basic approach of the Supreme Court to criminal matters as traditional. Looking at recent decisions, one has difficulty in seeing any outstanding landmarks in criminal jurisprudence, though this is not to say that there have not been a number of welcome judgments."37 One might wonder what the word "traditional," used by Professor Mewitt, might have been a euphemism for. In an examination of the law of torts, Canadian judges were accused of abdicating their responsibilities as judges and simply adopting what English judges said; the court had not been able to recognize the extent of its power to forge a Canadian law of torts.38 The captivity was still there apparently, but now it was being focused upon by the academics - the legal profession seemed to have finally acquired its critics. At this time there were several proposals that were being made to alter the role and structure of the court. The Quiet Revolution was under way in Quebec where voices were once again being raised, after many years of silence. It was advocated that the jurisdiction of the court over the province's civil law be eliminated.39 Also prominent were suggestions concerning changes for constitutional law cases.40 The suggestions that were being made about creating the Supreme Court into a constitutional court were attempts to gain autonomy for Quebec. If a constitutional court were created, it would not have jurisdiction over provincial law. Even after more than fifteen years following the end of the appeal to the Privy Council Canadian academics were still inclined to engage in "Privy Council bashing," perhaps in frustration at the performance of the Supreme Court.41 The approach advocated by Mr Justice Ivan Rand had definitely not borne fruit since in 1966 a plea was still being sounded for the need for a sociological approach by the judges, coupled with a criticism of the judges appearing only to deal with words. When Ivan Rand had retired from the bench his views of the judicial function were given an opportunity to become established in a place where they might have had a long range impact - a university law faculty. Rand was named dean of the new law faculty at the University of Western Ontario in 1959. He saw the new law school as developing "in the minds of its students the habit of thinking in terms of the dynamic tradition, in the broadest sense, of our law."42 The University began publication of an annual work that had

342 The Sixties the significant title of Current Law and Social Problems. But it only lasted for three volumes, and a review by Laskin indicated that with the third volume published in 1963 a decline had already set in, with "disunity in the contributions."43 Rand retired as dean in 1964 and by the late 1960s, there appeared to be nothing left of what might be called "Rand's legacy." Either no one had been listening, or they had felt unable to carry it through. At the time of his retirement as dean of the law faculty, Rand wrote in the foreward to volume 3 of the Osgoode Hall Law Journal that periodic critical review of the work of the court had not yet taken place (although he had urged it in 1951), and he blamed it on "the traditional reticent attitude towards courts generally." He was aiming at the legal academics now, among whom there was an "absence of broad scholarly concern for legal research." Volume 3 of the Law Journal contained the beginning of a series of annual reviews dealing with statistical analysis of the Supreme Court Reports. Study of the court had become more earnest in appearance. Five years as dean of a university law faculty had resulted in Rand focusing critically on legal academics. THE BENCH Whereas the appointments of Martland and Ritchie proved disastrous for John Diefenbaker's Bill of Rights, and Judson was certainly no help, the selection of his friend Emmett Matthew Hall in the dying days of his last government might have produced the effect that he sought. However, Hall alone could accomplish little. He had been a judge for five years, and had been chief justice of Saskatchewan. He was appointed on 23 November 1962 to take the position left vacant by the retirement of Charles Locke;44 Hall was then sixty-four years of age, while Martland had been just under fifty-one, and Ritchie had been under fifty when appointed. Although a Conservative, he was to acquire a much different reputation in the years that would follow.45 Hall would become one of the first judges to go public and deal with the issue of the judicial function. In the early 1970s he appeared to have no reservation about the role of the judiciary in making law. He saw the legislatures and the courts as copartners in law making. The judges must continually choose between competing values, in his opinion, and these values were continually changing. For Hall, the ultimate goal was the common good of the people, human dignity, and individual freedom.46 As he described himself, he was in the mould of Ivan Rand, although he had not had any American legal education. He had graduated from the University of Saskatchewan in law in 1919 and had the required law-office education. With Hall's appointment a creative element had been put in place, and when combined with Spence, there was the possibility that trickles of creativity might yet develop and swell.

343 The Captive Court Patrick Kerwin died suddenly at the age of 73 on 2 February 1963. The Conservative government was in the midst of internal disintegration and there were those within the party who wanted Diefenbaker to become chief justice, and thus remove him from the leadership of the party and as prime minister. He refused to take the appointment. Diefenbaker had been told that the judges had been consulted and they had agreed with the appointment.47 In the end, the neutral seniority principle operated and Robert Taschereau became chief justice on 22 April 1963. It had taken over two months to name Kerwin's successor, the third longest time to the present.48 However, because of his declining health due to alcohol, Taschereau resigned just over four years later at the age of seventy.49 By seniority once again John Cartwright became chief justice, but he was seventy-two years old at the time, and was forced to retire due to age two and a half years later.50 In 1967, following Taschereau's resignation, Louis-Philippe Pigeon from Quebec was appointed by the new attorney general, Pierre Elliott Trudeau, whose future appointments to the court would alter it significantly. Pigeon was the first Liberal appointment since the naming of Spence in 1963. He was sixty-two years of age and had practised law at Quebec City. He had no judicial experience, but had been a teacher of constitutional law at Laval University for some years. He had also served as legal adviser to Jean Lesage, the premier of Quebec from I960 to 1966. His expertise in constitutional law and his academic background were factors that sat well with Trudeau. Although Pigeon was a Liberal in politics, his view of law and the legal process was definitely conservative. He would settle well into the mould of Taschereau and Fauteux. He combined his view of law with his commitment to the autonomy of the province of Quebec.51 He emphasized the connection of law with the characteristics of a nation: "The laws of any state are the basis of its structure; they are deeply rooted therefore in its national characteristics."52 For Pigeon, nations were living entities with souls. His view of the legal process was stated thus: "The lawyer must ... treat as certain and indisputable the current principles of law enacted in the statutes and applied by the courts. His function is to analyze these principles and draw proper deductions from them. From a study of legal texts and of decided cases he has to deduce conclusions applicable to the special cases confronting him. Legal training in law schools is almost exclusively directed towards positive law and dispensed mainly by practitioners."53 Like Mignault and most of the other civil-law jurists on the bench, he was a firm believer in the theory of stare decisis taken from the common law. With the retirement of John Cartwright, the Liberal government of the new prime minister, Pierre Trudeau, made its first appointment on 23 March 1970 — Bora Laslcin. The court now acquired a definite public image for the first time in its history; it would never be the same again. Laskin, a Jew, was

344 The Sixties

the first non-Christian to be appointed. He was also identified almost completely as an academic. As had David Mills's appointment almost seventy years before, the naming of Las kin created a controversy within the legal profession and generated complaints from members of the bar because he had not engaged in the practice of law. (Although Louis-Philippe Pigeon had been identified somewhat with academia, it was only as a part-time teacher.) As a teacher of law, Las kin had been a constant voice of criticism in the legal profession against the basic approach of the judges and lawyers. His general article, written in 1950, "The Supreme Court of Canada: A Final Court of and for Canadians," had been aimed solidly at the problem of "captivity," which he recognized as lack of independent thought, or simply thought, by the judges, and which penetrated throughout the profession judges, lawyers, and academics.54 His curse had been a devastating one — a "judicial zombie" - if the profession did not alter its course. As had Rand, Laskin had experienced legal education at Harvard, although only the LL.M., and not the much more profound basic LL.B. degree that Rand had received. As early as 1937, while a student at Harvard, he had written a number of articles in which Cardozo's work The Nature of the Judicial Process was prominently mentioned.55 He commented: "The taught tradition of the common law, that the law is found rather than made has proved remarkably resistant to attack."56 Judges, he thought, should have a "spirit of social understanding." He also considered: "There is much that can be learned from the following remarks of Mr. Justice Holmes: 'I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that they were taking sides upon debatable and often burning questions.' "57 He urged the view that judges require a knowledge of social conditions when interpreting law, and not merely a dictionary and an abstract theory of interpretation. For Laskin the meaning of a statute was a judicial creation in the light of social demands.58 In 1938 in a comment he rejected "the rigid application of rules" as the judicial function (again Cardozo is referred to). He accepted that problems of public policy were frequently involved in the interpretation of statutes, but noted that it was seldom that the judges clearly stated the issue in that way.59 In the same year he urged abandonment of the literal doctrine of statutory interpretation since the theory and practice of government was undergoing vital change.60 The scope and object of a statute had to be examined. Social legislation of the day was in many instances not within the judge's acquaintance, he said, thus making the literal approach unworkable, since the law cannot be interpreted "to the community."61 He noted: "Under the literal doctrine, a judge is practically forced to read into a statute his own ideas of

345 The Captive Court policy when he is confronted by nothing but a mass of words."62 For Laskin, the judges needed objective data to deal with, so that the law could move with the currents of social change, as it must, he thought. His assault on the traditional mode of thinking by the Canadian legal profession continued into the 1940s. In a book review in 1940, Laskin commented that there was a lack in Canada of subjecting constitutional decisions to close scrutiny. He went on: "The 'living tree' doctrine of Edwards v. A.G. for Canada, [1930] A.C. 124, would have more chance of becoming a reality in constitutional interpretation if the members of the legal profession applied to the decisions a critique which went beyond the recitation of passages from the judgments of the Privy Council."63 And, in another book review of that year, a review of Lon Fuller's work The Law in Quest of Itself Laskin commented that in Canada there were many sections in which little attention is paid to the content of the law, and where the search is for the "neat" case and a counsel is careful to "know his judge."64 He thought that there had been little articulation of legal philosophy in Canada, and creative legal writing had received none too cordial a reception by the Courts. In a 1944 book review of The Social Development of Canada by S.D. Clark65 he commented on the lack of "a legal development indigenous to Canada," which was a direct comment on the captivity. He pointed out two factors that he considered at the time to have militated against the development: the wholesale introduction of English law as of various dates, that wedded the courts to a line of decisions from England, and an absence of any Canadian source materials that would provide a background for the law. He ended his brief review by stating: "A perusal of this book will help in some degree to convince [the lawyer] that he must look outside the law for the materials which give meaning to and nourish the legal order."66 He was himself to try and remedy the problem of a lack of Canadian teaching materials by the production of several teaching books.67 He was concerned with sharpening the critical faculties of students and hence the legal profession. His direct attacks on mechanical jurisprudence ended a few years after his return to Canada, perhaps with the dissipation of the youthful enthusiasm that had resulted from his new-found intellectual life at Harvard. But this most prolific writer among Canadian legal academics still made clear his view of the legal process. In an article written in 1955 titled "Tests for the Validity of Legislation: What's the Matter?"68 he wrote in response to an article that had appeared earlier in the Canadian Bar Review61* in which the process of analysis of constitutional problems was presented with the appearance of being completely mechanical. This, as might have been expected, caused no end of irritation for Laskin. In his article he emphasized that the solution to a constitutional problem was complex and he quoted Lord Porter: "The problem to be solved will often be not so much legal as political, social or economic."70

346 The Sixties By "legal" he meant the apparent neutral factors of relying on the ordinary meaning of words and precedents. The interpretation of the constitution for Laskin inevitably involved a view of what the constitution was all about, an attitude to the scheme of the distribution of legislative power. In effect he urged that the Supreme Court throw off its "captivity." He stated further: "What is important is why the decisions turned out to be what they are. ... Unless we know what goes into [the] findings and how they are arrived at, we are merely scratching the surface of constitutional law ... [By] and large, our leading constitution cases could just as well have been decided the other way."71 The latter part of the above quote dealt with the appearance generated by the reasons for judgment in the cases. Based on what Laskin later termed "formal tools," the sterile reasons given by the judges, which were based exclusively on the language in precedents, made the conclusions reached look arbitrary. Laskin considered that there were other real reasons behind the judgments, which were not arbitrary in nature and which had to be made known. His criticisms could be severe and directed at individual judges. In 1964 in a case comment on an early Bill of Rights case, he was very critical of Ritchie's judgment, using words such as "rather questionable assertion," "begs the question," and "a piece of circular reasoning." He also pointed out the fact that passages quoted by Ritchie did not lead to the conclusion stated. Laskin's own conclusion was that there was no reasoning and only the statement of a conclusion by Ritchie.72 Soon after his appointment to the bench of the Supreme Court he presented an address at the Academic Convocation of the Law Society of Upper Canada, in which he said that "the legal system can no more escape questioning than any other of our social institutions;" for him "questioning and criticism are cleansing."73 The Supreme Court of Canada and the legal profession had survived Mr Justice Ivan Rand; now both were faced with Mr Justice Bora Laskin. The appointment of Laskin in March 1970 and the decision of the Supreme Court in The Queen v. Drybones delivered in late November 1969 united to create considerable anticipation about the court's future. In Drybones the Supreme Court had struck down for the first time a provision of a federal statute by using the Canadian Bill of Rights. The publicity that the decision created was challenged only by the Persons case, but this time the public reaction was primarily positive. It appeared as if life would indeed now be very different for the Supreme Court of Canada as the issues involving social change continued to come before it.

26 The Canadian Bill of Rights

Nothing in the history of the Supreme Court up to 1960 had such a potential for change with the regard to the court, the constitution, or the country as the creation of the Canadian Bill of Rights in August I960.1 For the first time, the judiciary was being invited to consider the question of the validity of legislation based expressly on civil-liberty concepts. Our law had been moulded by social values based on ideas of freedom and liberty, but the judiciary was theoretically forbidden from invalidating law based on those social values. Restrictive interpretation of laws by what John Willis called the "common-law Bill of Rights" would go a long way towards rendering a distasteful law impotent but interpretation, with its limitations, was the means employed.2 The Implied Bill of Rights had been brought into existence, but its legitimacy was suspect and thoughts of it rapidly withered away in the Supreme Court after Rand retired in 1959. With the creation of the Canadian Bill of Rights limits on the law-making power of Ottawa had been produced, and the Implied Bill of Rights might have complimented it and served to limit provincial legislative power. John Diefenbaker had been a Conservative member of Parliament from Saskatchewan since the early 1940s and had frequently urged that a constitutional enactment be created to protect fundamental freedoms and certain rights. His enthusiasm was not matched by Canadians in general. The conservative thinkers were not in favour of a declaration of individual rights and the attitude of liberal thinkers was dominated by the British notion of the protection of civil liberties through the political process. This attitude was succinctly stated by the philosopher George Grant: "The explicit statements of the American constitution guard their system of justice; the British constitution guards the same shape of rights in a less explicit but in a more deeply rooted way."3 The prevailing thought among Canadians with regard to civil liberties and the law was that freedom did in fact exisr and that thoughts of freedom were pervasive, making a written constitutional bill of rights un-

348 The Canadian Bill of Rights

necessary. What was even worse, such a document would have a distinctly American flavour. The real values with regard to liberty within the society were given expression by the way in which things were actually done — even in the legal system. There was, however, something that seemed to be amiss in Canada: doubts had arisen that reliance on the traditional British constitutional values were sufficient to protect liberty and freedom. The traditional view of individual liberty and the fundamental freedoms as prime social values had been sorely shaken by certain events. There was the Padlock Law of Quebec and the Canadian government's refusal to disallow it; it was destroyed by the Supreme Court after twenty years of existence at a time when no one seemed to care anymore. There was the Alberta legislation that would have severely restricted the freedom of the press. There was the racism that had produced the attempt to expel Japanese Canadians. There was what was considered to be the most profound of the aberrations from the tradition of liberty in the actions of the Royal Commission on espionage, conducted by two Supreme Court of Canada judges, Robert Taschereau and Roy Kellock, with a future judge, Gerald Fauteux as a counsel to the commission.4 It became easier for people to accept that perhaps there was indeed a need for a specific American-style bill of rights, enforceable by the judiciary. The traditional social value of respect for the individual was in need of a boost. A terrible dilemma was created by the belief that there was a need for a bill of rights enforceable by the judiciary, and the fact that the prime example illustrating the need was the espionage commission, which was the doing of two Supreme Court judges. It could not be resolved. In 1957 John Diefenbaker became prime minister and the move began towards his long-sought constitutional charter of rights and freedoms. It was soon realized that any agreement with the provinces to amend the constitution to include a bill of rights was at the time impossible to achieve, and consequently the choice that was left was between dropping the matter or creating a federal statute that would limit only the federal legislative power.5 This was a clear warning sign that there was considerable resistance to the creation of a bill of rights to be enforced by the judiciary. The new Canadian Bill of Rights became law on 10 August 1960, and now the judges were being asked for the first time in their history to engage openly in the judicial review of legislation based on civil-liberty notions, which were pure social values. The idea was revolutionary in concept, but there were no clear signs upon which the judges could rely and conclude that the mass of the society was behind the dramatic change, which raised the serious question of whether they should legitimately proceed with it. What signs did exist pointed in the opposite direction. The provinces had successfully rejected the application of the Bill of Rights to matters within their jurisdiction. There was also the fact that its creation

349 The Captive Court had been made a partisan political affair, which could produce a near-fatal influence on its effectiveness. The Liberal opposition had sought to delay the enactment of the Bill and in spite of Diefenbaker's eloquent endorsement of it, they took the position that it was unnecessary, except perhaps in wartime when it might serve as a limit on the enormous powers contained in the War Measures Act.6 It was said by some opponents to have been enacted by Diefenbaker as a politically expedient measure.7 The partisan element was highlighted by referring to the Canadian Bill of Rights as the "Diefenbaker Bill of Rights." The Bill of Rights was, after all, only a statute and although it expressed constitutional ideas, it did not have constitutional credentials. It was also contrary to the traditional British approach to civil liberties. To cap it all off the legal profession was certainly less than enthusiastic about it.8 Some may even have thought it better to allow the Supreme Court to continue to develop civil-liberty concepts as had been undertaken during the 1950s. Within the society the fact that there had occurred so-called aberrations from the traditional view of personal liberty suggested the possibility that the aberrations would become the new norm. It had also to be faced that if civilliberty provisions in a constitution were to have any real effect, they would protect people and groups that the dominant social power viewed as unpleasant (pleasant people, groups, and minorities do not need protection). The result is that the political power of the majority is reduced. In the Canadian society of the time with its instinctive community sense of right and wrong — the moral imperative - the exercise of power was sanctified, and the new Bill was a threat. It also could not be forgotten that the existence of the Bill of Rights smacked of Americanism and those latent feelings of anti-Americanism within society would be pricked. In addition to the major problems associated with the creation of the Bill of Rights, other factors came into play as the 1960s proceeded. The quiet existence of Canadian society was unquestionably beginning to feel the waves of change that came with the end of World War II. In a period of disruption, many sought stability, and judicial review of legislation using civil-liberty concepts would be identified with instability. Quebec society was in revolt, even if "quiet"; there was also the civil-liberty explosion in the United States, and with it came violence. For many Canadians the increase in individual liberty went hand in hand with the disintegration of order and the creation of violence. The line between liberty and licence had been drawn clearly over the years in favour of preventing any acts that might be seen as examples of licence. The 1950s had been noteworthy for the explosion of civil-liberty decisions. However, it seemed that the views on civil liberties found in those remarkable judgments of the Supreme Court of Canada during that period were all from the mind of Ivan Rand. Certainly it was he who articulated the thoughts

350 The Canadian Bill of Rights much better than any of the other judges. It is remarkable that he never dissented, and a majority of the court always joined him in the result. Rand left the bench just before the creation of the Bill of Rights. A crucial matter to know in order to appreciate the reception that the Bill of Rights would be given by the judiciary was the nature of the bench and the attitude of the judges towards civil liberties when the new Bill was introduced. As of 10 August I960, the bench contained Robert Taschereau whose record in civil-liberty cases showed him unquestionably to be an ultra-conservative with regard to individual rights and freedoms. He had been the only judge to dissent in the Padlock Law case. His performance on the espionage commission definitely could not be forgotten. There was also John Cartwright who, based on the four leading civil-liberty cases of the 1950s, could be ranked with or close to Taschereau. Gerald Fauteux, with Taschereau and Cartwright, rounded out a solid core of non-support for the Bill. He had been a counsel for the espionage commission. Diefenbaker's government had appointed Ronald Martland in 1958 and Roland Ritchie in 1959, and although there was no judicial record upon which to base a solid opinion, yet in fact both were ultra-conservative when it came to constitutional protection of civil liberties. Patrick Kerwin, the chief justice, was less than solid in his position on civil liberties and the constitution. He believed in an extreme version of the judge as an adjudicator of disputes, an inappropriate stand for civil-liberty cases, with the vague rules, and the unavoidable dominance of social values. He had changed his mind in Boucher, and had given a typical minimum judgment in Saumur where he had avoided any discussion of .civil liberties. The three remaining judges were Charles Locke, who had tended to support the civil-liberty causes involving the Jehovah's Witnesses and Quebec, but had dissented in Noble and Wolfv. Alley, creating an element of uncertainty about his views; Douglas Abbott, who appeared to be relatively liberal when it came to civil liberties and was somewhat famous for his unbelievable dictum in Switzmarr, and Wilfred Judson was a Conservative appointment. The bench of the Supreme Court in 1960 would not warmly receive the Bill of Rights. Although Rand would never sit on a case dealing with the Bill, he could as dean at the new Faculty of Law at the University of Western Ontario write articles in the place of judgments. Shortly after his retirement he gave us an idea of what his views were when he wrote the following with respect to the words "due process of law" that appeared in the Bill of Rights: "Due Process" [in the United States] is ... interpreted as a limitation on law which to a degree of unreasonableness affects personal liberties or property. Confining that limitation to the broadest sense of procedure is incompatible with the provisions of the Bill of Rights. Section 2 deals with specific matters of that nature in such detail

351 The Captive Court as virtually to exhaust the items of importance. If the inclusion were intended to imply that Parliament can, without repudiating the declarations of section 1, make any utterance a crime, that substantive law is not within the scope of due process, that the latter is restricted to whatever adjectival rules or jural constructs may lie beyond the enumeration of section 2 which, to adapt the language of Macbeth would "keep the word of promise to the eyes and break it to the mind," then it could only be said that the declarations are of no significant value, wordy symbols signifying little.9

Rand infused the words "due process" with the meaning that there was "a limitation on law which to a degree of unreasonableness affects personal liberties or property." He strongly asserted that if substantive review was not to be undertaken then "the declarations are of no significant value, wordy symbols signifying little." In actual fact the words "due process' in the Bill of Rights were the very first to be denuded of meaning by the judiciary; there was never any other view dominating in the legal system than that the words "due process" meant the law as it existed, that is, without any limitations. Rand continued to appear out of step with the profession. Without his presence on the bench his thoughts had no effect. In the article Rand referred to two American articles that he said had greatly benefited him. These were by Edward S. Corwin and were published while Rand was a student at Harvard University.10 This spoke to the influence of one's legal education. Kellock, Rand's friend and supporter in the 1950s had suddenly resigned early in 1958, while Estey, who, with his American legal education had decided in tangent with Rand, had unfortunately died in 1956. Locke, who had also lent some support, left the bench in September 1962 before the cases dealing with the Bill of Rights reached the court. The fourth and last Diefenbaker appointment had been that of his friend Emmett Hall." Hall became the most active of the judges in the 1960s with respect to the interpretation of the Bill of Rights. In spite of the sterility that had marked the Supreme Court since the turn of the century, and the conservative approach of a majority of the judges for all of its existence, yet there had always been sparks of creativity - Henry, Mills, Girouard, Rand, and even Idington. They shone with more or less brightness. With Emmett Hall the sixties acquired its spark. Within the legal system the prime constitutional rule was that of parliamentary supremacy. The constitution in 1960 directed that the judiciary was never to control the legislature, with the all-important exception of deciding a jurisdictional issue dealing with the division of legislative power under sections 91 and 92 of the British North America Act. The fact that the decision in a case such as Boucher had been reached without a written bill of rights had twenty years later been effectively discarded. None of the judges were prepared to assume Rand's stance. Of course, the judges saw it as one of

352 The Canadian Bill of Rights their roles to control the actions of the executive - a role based on the fact that the actions of the executive were governed by law, and the judges were therefore following the dictates of the legislature.12 Now with the Bill of Rights it was time to ask the question of how the judges and, of course, those of the Supreme Court of Canada in particular would react when the Parliament of Canada in the Canadian Bill of Rights was apparently saying "limit me." Another vital consideration was that judges and lawyers had had virtually no preparation for legal discussion of rights and freedoms. Since legal education was practice-oriented, there was no possible value in a course on civil liberties if it would not occur in practice. In legal education the existence of the civil-liberty cases of the 1950s were thought by many to be an aberration. The answer to the question of how the Supreme Court would approach its new task of incorporating values of individual freedom into our society was not long in coming. Civil-liberty cases involve the balancing of values. There is no escaping such a process, nor the articulation of values (policy) if the reasons for judgment are to have any meaning. The Brodie case, discussed in chapter 25, dealt with obscenity, and the balancing of values was required since law making was involved. Significantly it was law making dealing with freedom of expression, a matter that was directly engaged by the Bill of Rights. As a preview of decision making under the Bill of Rights, what the case demonstrated in a disturbing way was the fact that the judges were either unwilling or unable to engage in a value-oriented discussion. Brodie also showed that when it came to dealing with social values directly, the judges were unable to reach a consensus. While concern with the restricting of literary works had been sounded loudly in Britain and the United States at the time, yet it was only by a bare majority, 5-4, that the Supreme Court moved with those concerns. Restriction of individual freedom was still a very prevalent force for the judges of the Supreme Court of Canada. ROBERTSON AND ROSETANNI v. THE QUEEN, 1963 It was just under a year after the decision in Brodie that the court heard its first full-blown Bill of Rights case. The issue was freedom of religion. The appellants operated a bowling alley in Hamilton, Ontario and had been convicted and fined $25 and costs for operating their business on a Sunday, which was prohibited by the Lord's Day Act.13 The appellants argued that the Lord's Day Act was an infringement of their freedom of religion. When the case, Robertson and Rosetanni v. The Queen, was considered by the courts in Ontario, the impression that was projected was that it was not a problem and judges appeared to treat it as having no great significance or

353 The Captive Court merit. The county court judge had dismissed an appeal from the conviction by a magistrate, and gave no formal reasons for doing so; the Ontario Court of Appeal likewise dismissed an appeal without reasons being given. It must have been somewhat surprising when leave to appeal was granted to the operators of the bowling lanes by the Supreme Court. The leave to appeal was granted by a panel of judges that consisted of Chief Justice Kerwin, Cartwright, and Judson. When the case came up, the new chief justice, Robert Taschereau, designated a five-judge bench to hear the case - an unmistakable signal of his view of the case. A bench of five judges signified a routine case.14 The five who sat were Taschereau, Cartwright, Fauteux, Abbott, and Ritchie. Taschereau, Cartwright, and Fauteux had formed three-quarters of the old guard that had opposed the activism of Rand in the implied bill of rights cases of Boucher and Saumur.^ The characteristic fragmentation of the judges disappeared - the Bill of Rights had apparently solidified them. The result was that the Lord's Day Act provision prohibiting the conducting of a business on a Sunday was held not to be an infringement of freedom of religion and it was declared to be valid.16 Ritchie rendered a judgment for the majority of four judges, consisting of himself, Taschereau, Fauteux, and Abbott. Cartwright dissented and rendered a separate judgment. For Ritchie the starting position in his reasons for judgment was that the rights and freedoms set out in the Bill were not to be approached in an abstract way, but their meanings were to be determined by reference to what they had meant before it was enacted. This was an obvious and a reasonable point to make (referring to our tradition and existing values) but if he meant that it was the meaning of a concept of freedom of religion within the law prior to I960 that was to be the reference point, then he had rendered the Bill meaningless. The point was that the rights and freedoms prior to 1960 had their existence within the political and so-called unwritten constitution. In the law freedom of religion was a residue, that is, what was left over after viewing the restrictions. It had no separate legal meaning, only a social meaning. In addition, freedom of religion as defined by the law prior to 1960 would have to include the Lord's Day Act, the very act the court was examining. Thus Ritchie's basic point had the potential of making the Bill of Rights legally impotent. It could even be viewed as begging the question. He turned next in his reasons to the examination of some old cases involving religion, including Saumur, and concluded that the Supreme Court at that time could not have considered the Lord's Day Act to be contrary to the existence of freedom of religion, since the Lord's Day Act was in force at the time and nothing was said about it. The Act was of course a dominion statute and a freedom-of-religion argument would have been meaningless at the time. It became clear very quickly that Ritchie's reasons for judgment

354 The Canadian Bill of Rights were completely spurious and as such were making a mockery of the Bill and consequently the rights and freedoms contained in it. The only genuine point made by Ritchie, and consequently the majority, was that the rights and freedoms exist within an organized society. The emphasis on an organized society harkened to the view of the individual as a member of a society and as having meaning only within the context of society.17 As one writer so aptly described the concept: "As the individual can find realization only in and through Society, it follows that the State, when rightly conceived, is not simply organized authority alien to the Individual, but rather the necessary medium for the development and expansion of his faculties and life; not simply the restrainer of his freedom and liberty, but rather the necessary means through which he secures his highest freedom and his highest liberty - the liberty of being most completely his true self."18 This notion of social values is basically antagonistic to the assertion of "unresponsible" individual action. Ritchie did not stop there, but went on to render the crudest cut of all for the Bill by defining the concept of freedom of religion in the narrowest manner possible. The Bill of Rights had thus created a social narrowing of the freedom since society might be expected to look at the authoritative pronouncements of the Supreme Court of Canada for guidance. Freedom of religion was said by the majority to mean that an individual could not be forced to worship in a certain way. It is impossible to imagine meaningful examples of denials of the freedom. The conclusion could also be that under the Bill religions could not be suppressed. Likewise, realistic examples do not jump to mind. The majority of the Supreme Court had no other sensitivity to freedom of religion than the most extreme interferences possible, which would be unthinkable in today's society. Bora Laskin, then teaching at the University of Toronto, cut through the meaningless reasons and concluded that what Ritchie and the majority had provided was merely the assertion that freedom of religion must be construed with due regard to the Lord's Day Act.19 There were, in other words, no reasons - hence no law — only an assertion of political power. Perhaps the most astonishing aspect of the case was that there was a dissent and that it came from Cartwright. He rejected the view expressed in some cases in the lower courts that the Bill of Rights created only rules of interpretation, which meant that if a law was clearly an infringement of the Bill, then the Bill would cease to have an effect.20 He concluded that a law that could not be interpreted in such a way as to advance the rights in the Bill was not to be applied. This conclusion, which we must assume was accepted by the majority, drove them to define the right or freedom so narrowly that no infringement could be imagined. Cartwright concluded that with freedom of religion there could be no compulsion to follow a course of conduct, positive or negative, for a purely

355 The Captive Court religious purpose. The accepted and rather obvious fact that the Lord's Day Act had been enacted for a religious purpose consequently doomed it according to Cartwright. As a final point, Cartwright pointed out that without the Bill there would be no limits on the power of Parliament to interfere with freedom of religion. This rejected the notion of the implied bill of rights as far as Parliament was concerned. The dissent did not assert the majesty of the rights and freedoms but the existence of the words of the Bill. The impression is clear that it is the language, not the spirit, that is operating, and thus in this case we have a rare example of it being very likely true that for Cartwright he was only construing words, without concern for consequences. The reasons (or more correctly the non-reasons) for judgment rendered by Ritchie must have cast a pall of hopelessness over making any arguments using the Bill of Rights since essentially there had been a rejection of reasoned argument. In 1961, twenty-four cases were reported that contained an issue dealing with the Bill of Rights; there was an annual average of ten over the next four years, and six for the final four years of the decade, reaching a low of four in 1969. Within the legal system the Bill of Rights was atrophying, and so the legal profession and Canadians in general were not expecting the decision of the court in The Queen v. Drybones delivered in late 1969. THE QUEEN v. DRYBONES, 1969 Joseph Drybones was an Indian living near Yellowknife in the Northwest Territories. He was charged under section 94(£) of the Indian Act, with being intoxicated off a reserve,21 after having drunk too much in a hotel in Yellowknife. He was convicted by the magistrate after he pleaded guilty, and was fined $10. When Drybones was persuaded to appeal the conviction, the route to Ottawa had begun of what many at the time would regard as the most significant case in the history of the Supreme Court. Before Mr Justice Morrow on an appeal by way of trial de novo, Drybones was allowed to change his plea of guilty and to raise the issue of the application of the Canadian Bill of Rights. The argument was that he had been denied equality before the law by the application of s. 94(£) of the Indian Act and therefore the law must be declared inoperative because of its conflict with s. 1(&) of the Bill of Rights: "It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely ... the right of the individual to equality before the law." When Mr Justice Morrow accepted the argument based on the Bill of Rights and acquitted Drybones on the trial de novo the Crown appealed to the Court of Appeal of the Northwest Territories. A unanimous bench of

356 The Canadian Bill of Rights three judges dismissed the appeal and then leave to appeal was granted by the Supreme Court of Canada.22 Behind the case was a show of judicial unanimity led by Morrow, but five years earlier, in 1962, the British Columbia Court of Appeal had held that the challenged provision of the Indian Act was valid.23 The British Columbia decision was based on the view that "equality before the law" meant only that every person to whom a particular law applied would be treated the same; this was the "separate but equal" approach long accepted in the United States until destroyed in 1953.24 The Northwest Territories Court in Drybones rejected this social doctrine and concluded that Indians, just because they were Indians, could not be subject to penalties and punishments different from other Canadians. The restricting of equality before the law to nothing more than equality before the courts, which the British Columbia court had done, was in the opinion of the judges to give the Bill of Rights no more meaning than had existed without it. This was perhaps to have been expected of a decision of 1962 when the judges were in open war with the Bill. Unlike the earlier case of Robertson and Rosetanni the Drybones appeal was heard by the full bench of nine judges. In spite of the unanimity in the lower courts, the decision of the Supreme Court was only 6—3 in favour of the Bill of Rights application.25 Ritchie, the architect of the earlier decision that had in essence repudiated the Bill of Rights this time rendered the judgment of the majority in favour of the Bill. Fauteux, Martland, Judson, Hall, and Spence concurred; Hall rendered a short concurring judgment. The dissent was made up of John Cartwright, who was now the chief justice and who had dissented in Robertson and Rosetanni, as well as Abbott and Pigeon; each wrote judgments. Splintering among the judges appeared. Ritchie for the majority of the court began his judgment by rejecting the view that the Bill of Rights was to be used only to interpret laws. His silence six years earlier was corrected by the approval of the reasons that Cartwright had rendered in Robertson and Rosetanni on this point. It is interesting to note that the majority made the point that the decision of the judiciary with respect to the application of the Bill was to render a law inoperative, not invalid. This meant that as long as the Bill existed, the law could not be used, but once the Bill was repealed, the law could come back to life without a re-enactment by the legislature. On the issue of whether the Bill dealt with existing rights as of 10 August I960, Ritchie explained that the backward look at the law in the reasons in Robertson and Rosetanni was an attempt to find the meaning of "freedom of religion," and that the statute books were not to be taken as frozen as of 1960 for the purpose of the Bill of Rights. On the all important question of the meaning of "equality before the law," Ritchie was prepared to say that it meant "at least" that no individual or group of individuals was to be treated more harshly than another under a

357 The Captive Court

law. There was to be no discrimination between persons or groups. Of great importance for the future of the Bill of Rights was the fact that Ritchie was extremely careful to limit the case; he concluded that section 1(£) of the Bill was infringed since, on account of a person's race, it was made an offence punishable at law to do something that all Canadians who were not members of that race might do with impunity. Hall in his concurring judgment expressly rejected the "separate but equal" doctrine as invalid in Canada. Ritchie for the majority was once again silent on an important point. Since Cartwright had indicated in the 1963 decision that he was applying the Bill, not from any conviction that society wanted it, but because of the words of the law, he could now in 1969 say that he had got it all wrong. The words were actually directing the judges to apply the law, he said, and he accepted the "canon of construction" approach that he had earlier rejected. Thus he concluded that he had no authority to interfere with the operation of the particular law. Abbott also adopted the canon of construction approach and accused the majority of that most unforgivable of judicial sins - "judicial legislation." When one thinks back to his famous dictum in Switzman in 1957, in which he concluded that the Implied Bill of Rights would limit the Parliament of Canada as well as the provincial legislatures, his accusation must cause one to do a double take. In what later proved to be the most significant judgment rendered in the Drybones case, Mr Justice Pigeon, dissenting, repudiated absolutely the Bill of Rights. For him, human rights and fundamental freedoms were to be found in the law, in which the clearly expressed will of Parliament prevailed. No overriding general principles were to affect this. He pointed out that section 91 524 of the constitution, the British North America Act, allowed Parliament to make laws applicable only to Indians, and thus the constitution itself referred to a race and allowed for different treatment. In Pigeon's opinion, by enacting the Bill of Rights Parliament could not have intended to have suspended its power of legislation over Indians. Pigeon ended his judgment with an assertion of judicial conservatism, pointing out that there was a presumption against implicit alteration of the law, and that an active use of the Bill of Rights would constitute a radical departure from the basic constitutional rule, supremacy of Parliament, and finally that the rights and freedoms had in the past been treated as canons of construction. The sum of all this was that the Bill of Rights was just another statute and was to be treated as such. It had been stripped of its constitutional nature by Pigeon, who had attacked it head-on, and had done so with clarity of thought and expression. Although the reporting of this case to the public was overshadowed at the time by the reporting that the Apollo XII spacecraft had landed on the moon, it was not long before the case became a fervent topic of conversation. The

358 The Canadian Bill of Rights legal academic community swung into action, beginning with an annotation to the report of the case itself in one report series.26 Although the actual decision in Drybones declaring a provision of the Indian Act inoperative could be heralded as breathing new life into the virtually comatose Bill of Rights yet the quality of the work by the court in the process of reaching that decision did not escape criticism. The court was charged with being "diffident, cautious, uncertain" rather than "courageous, bold, forward-looking";27 and the approach of the judges was called inadequate in that no guidelines had been provided.28 It was said that the decision overruled Robertson and Rosetanni but yet there was no admission of this in the reasons for judgment;29 and even in a very traditional descriptive article with a minimum of critical analysis, the author pondered the thought: "Now that the power of the court is established the main concern is whether the courts will be astute to declare inoperative [legislation]."30 It was clear that the academic community was in sympathy with the result in the case, and the apparent activation of judicial review using civil-liberty concepts, but worried about the ability of the court to use such a power. FOLLOWING THE DRYBONES CASE, the number of reported decisions dealing with the Bill of Rights jumped to thirty-one in 1970, and in spite of the set backs that were to occur for use of the Bill of Rights at the hands of a majority of the judges on the court in the years that followed, the numbers remained at about forty per year throughout the 1970s, and did not noticeably drop off as they had in the Bill's first decade. Times were changing. An interesting aside with respect to the Drybones decision was that in 1968, Pierre Trudeau, as minister of justice, strongly proposed the entrenchment of a bill of rights in the constitution.31 The surprise decision in Drybones may have effectively delayed the implementation of the proposal for some time, since its need appeared less important after the decision. Bora Laskin joined the court shortly after the Drybones decision, and even though his academic fame had rested on constitutional law, yet that had involved concerns for federalism under the division of legislative power, and not civil liberties to any extent. Early in his tenure on the court, in 1972, and in only the third Bill of Rights case that he heard, he had occasion to comment on how the judges should approach their task of applying the Bill. The words were to come back again and again to haunt him. He said: "[Cjompelling reasons ought to be advanced to justify the Court in this case to employ a statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a substantive measure duly enacted by a Parliament constitutionally competent to do so, and exercising its powers in accordance with the tenets of responsible government, which underlie the discharge of legislative authority under the British North America Act."32

359 The Captive Court He was urging judicial restraint because of the nature of the Bill of Rights and its non-constitutional birth. He obviously wanted a much clearer social directive before he would engage in judicial review of this nature. However, three years later in 1975 in Hogan v. The Queen he had changed his opinion, and in order to invigorate the Bill he called it "quasi-constitutional," which meant that although technically it had been enacted by the Parliament of Canada as would be an ordinary statute and its provisions were not found within the written constitution, yet it was in reality a constitutional document that contained the fundamental views of Canadian society.33 However, in this case Laskin was dissenting and a majority rejected this designation of the Bill by him, and to his regret expressly supported his earlier opinion. The Hogan case involved criminal law and the issue was a denial of the right of an accused to contact his lawyer, contrary to section 2(c)(ii) of the Bill of Rights. The question to be decided by the Supreme Court was whether the evidence that had been obtained by the police following the denial of counsel should be excluded due to the breach of the accused's right. A majority of the court, the judgment of whom was once again rendered by Ritchie, held that the Bill had created no change in the law and that the old rule still applied, namely that evidence was not to be excluded based on how it had been obtained. For Laskin, in dissent, with Spence concurring, categorizing the Bill as quasi-constitutional meant: "[W]here constitutional guarantees are concerned the more pertinent consideration is whether those guarantees, as fundamentals of the particular society, should be at the mercy of law enforcement officers and a blind eye turned to their invasion because it is more important to secure a conviction."34 He was prepared to exclude whatever evidence the police had obtained. Laskin became chief justice in the last days of 1973, and as 1974 began he was joined by two new judges - Jean Beetz, a fellow academic, and LouisPhilippe de Grandpre", a practitioner, and past president of the Canadian Bar Association. In Hogan Laskin was a puisne judge when the case was heard, but he was chief justice of Canada when the judgments in the case were rendered and it was as chief justice that he thrust the Bill forward as a constitutional document. Early in 1975, Beetz followed Laskin's lead and also described the Bill as quasi-constitutional.35 In the same case that Beetz asserted the constitutional nature of the Bill, Martland articulated a new approach: Parliament could deal with people differently if the law was enacted in order to achieve a "valid federal objective," and there were "legitimate reasons of policy" for the enactment of such provisions. Drybones was finished and the tide had turned. The case that probably marked the end for Drybones was the Lavellcase of 1973.

360 The Canadian Bill of Rights

ATTORNEY GENERAL OF CANADA v. LAVELL; ISAAC v. BEDARD, 1973 The period of invigoration of the Bill of Rights after Dry bones lasted for just under four years. If the cautious and conservative judges of the Supreme Court had had worries about what they might have been letting loose with the Drybones decision, it came crashing home to them when two years later an Ontario High Court judge was prepared to hold that the entire Indian Act was inoperative, thus effectively ending Ottawa's jurisdiction over Indians under the constitution.36 The Lavell decision eliminated the Bill of Rights as any sort of a political force until the advent of the Charter of Rights and Freedoms. There were actually two cases heard together: Attorney General of Canada v. Lavell and Isaac v. Bedard. In Lavell, the registrar of the Department of Citizenship and Immigration had deleted Jeannette LavelFs name from the Indian Register in late 1970, because although she was an Indian, she had married a non-Indian in April of that year. Section 12(1)(£) of the Indian Act provided: "The following persons are not entitled to be registered, namely, a woman who married a person who is not an Indian." As was provided by law, Mrs Lavell was able to protest the deletion of her name and the registrar referred his decision to a county court judge. The judge held that Lavell had not been deprived of equality before the law because of discrimination by reason of sex since she had the same rights and privileges as other Canadian married women.37 The Federal Court of Appeal granted a motion to review and declared that section 12(1)(£) was inoperative as there had been discrimination on the basis of sex, comparing Indian women with Indian men.38 The Federal Court of Appeal granted the government leave to appeal to the Supreme Court. The companion case was Isaac v. Bedard. Yvonne Bedard was an Indian who had also married a non-Indian. After several years of marriage, she separated from her husband and returned to her reserve. After being allowed to stay for a time, she was ordered to leave by the Six Nations Council in September 1971, and she sought an injunction restraining the Council from expelling her. The injunction was granted and the Federal Court of Appeal's decision in Z^w//was followed. Leave to appeal directly from the Ontario High Court was granted by the Supreme Court, with consent of the parties.39 An important aspect of the Lavell case was the intervenants. Various Indian organizations intervened to argue in favour of retaining the law;40 certain women and organizations of women intervened to oppose the law.41 The Native Council of Canada, an organization of Me*tis and non-status Indians, also supported Lavell and opposed the law. The rights of Indians, Indian customs, the rights of women, equal rights

361 The Captive Court for women - with these concerns involved in the case it was little wonder that the full bench of the court split badly. In the end the decision went against Jeannette Lavell and Yvonne Bedard by a bare 5-4 margin.42 Ritchie, the spokesman for those opposed to use of the Bill, rendered a judgment for only four judges. Pigeon agreed with the result reached by Ritchie, but wrote his own reasons. The first point made by Ritchie was that it was clear that the Bill of Rights was not effective to amend the British North America Act, since that Act was the constitution and was thus supreme. Section 91 524 of the Act, which assigns the subject of Indians to the exclusive power of the dominion, could not be affected by the provisions of the Bill of Rights, and thus the constitution allowed for different treatment for Indians within our society. Ritchie then jumped to the conclusion that Parliament must be able to determine who are "Indians." Thus a majority of the judges of the Supreme Court abdicated their function of judicial review, since they had concluded that the word "Indians" in the constitution was not to be objectively determined and reviewable by a court; a person was an Indian if Parliament said so. Since Parliament had determined that Mrs Lavell and Mrs Bedard were not Indians, the case was consequently over and they had lost. Ritchie conducted a lengthy section-by-section analysis of the Indian Act, noting in this tour that the loss-of-status provision was introduced in 1869, more than a century before. He concluded that registration was a prerequisite to Indian status. The reason that he analysed the statute was to allow him to distinguish Drybones. The provision that was at issue in the Drybones case was the only provision that dealt with Indians off a reserve and thus it was not legislation enacted under the authority of section 91 524 of the British North America Act ("Indians") but was rather criminal law enacted under the authority of section 91 527. Section 12(1)(£) of the Indian Act that was in issue in the Lavell case was, on the other hand, legislation that fell under section 91 524 of the constitution. The Drybones case was therefore said by Ritchie to have no application to the Lavell case. In Drybones, Ritchie had said that it was established that a person could not be denied equality of treatment in the administration and enforcement of the law before the ordinary courts of the land because of his race, but with section 12 (!)(£) there was no such inequality of treatment between Indian men and women. The question is of course that there may have been no racial discrimination, but what about discrimination on the basis of sex? In his reasons for judgment, between his conclusion that the legislature may determine who are Indians and his survey of the Indian Act, Ritchie had dealt at some length with the meaning to be given to the equality provision of the Bill, section 1(£). Based on his other conclusions it was entirely unnecessary to deal with this socially vital question in this case; however, he did so. He said: "In considering the impact of the Bill of Rights on the

362 The Canadian Bill of Rights provisions of the Indian Act I think it desirable to reproduce the portions of the Bill which I consider to be relevant."43 Then, in what can only be described as mockery, he proceeded to set out the entire Bill of Rights. Specifically section 1 reads: It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law. (£)the right of the individual to equality before the law and the protection of the law; (c) freedom of religion; (d) freedom of speech; (r) freedom of assembly and association; and (f) freedom of the press. A quotation from Laskin's judgment in C«rrwas used to explain section 1, and Ritchie stated that the section guaranteed the rights specified irrespective of race, national origin, colour, or sex. The provisions of the Bill could not be invoked unless one of the enumerated rights and freedoms had been denied. Under section \(b) discrimination had to involve the denial of one of the guaranteed rights and freedoms before the Bill would render a statute or section inoperative. This meant that discrimination per se was not a denial of equality. He therefore made the unbelievable separation between discrimination and equality. Then, if that was not enough, he took us back to his view in Robertson and Rosetanni by declaring that the meaning to be given to the language employed in the Bill was the meaning that it bore in Canada at the time when the Bill was enacted. To find the meaning of section l(b) one was to look to the law that was in existence in I960. "Equality," it was said, did not include the egalitarian concept of the United States constitution, thereby attacking Hall's judgment in Drybones, but was part of "the rule of law." It was to the work in the nineteenth century of the English scholar A.V. Dicey that Ritchie looked and he concluded that "equality" in Canada meant equal subjection of all classes to the ordinary law of the land (as enacted) administered by the ordinary courts. It was thus equality in the administration and enforcement of the law with which Parliament was concerned when it enacted section 1 (b) of the Bill of Rights. The meaning of equality had been trivialized, as had freedom of religion a decade before in Robertson and Rosetanni. Pigeon, the other judge who made up the majority of five, agreed that the provision in question was operative, but simply adhered to his reasons in

363 The Captive Court Drybones, which were dissenting at the time, and concluded that in no case had the Bill been given an invalidating effect over prior legislation since Drybones, The Drybones case, the herald of a new life for the Bill of Rights, was dead. The actual death-blow was Ritchie's point that with the Bill of Rights, Parliament could not be taken to have intended to change the conditions for the use and occupation of Crown lands reserved for Indians by the use of broad general language. The language would have to be plain and express to accomplish such a change, Ritchie pointed out; there was also a presumption that a subsequent general enactment was not to be taken as intending to interfere with a special provision. The Bill of Rights, by its very nature, was a general enactment. Ritchie capped off his judgment by going to the extent of approving Pigeon's view expressed in his dissenting judgment in Drybones. Faced with the kind of reasons that were put out for public consumption by Ritchie, Laskin must have experienced considerable agony. Professor Walter Tarnopolsky, as he then was, mused about the difficulty that the teachers of law had in dealing with such reasoning;44 Laskin, the ex-teacher, was now constrained by the awful weight of institutional integrity. For Laskin, with whom Hall and Spence concurred, the Drybones case governed and it was impossible to distinguish it, in his opinion. He saw the questioned provision of the Indian Act as substantive discrimination by reason of sex. He went even further and was driven to call it statutory excommunication. Under the jurisdiction possessed by the Parliament of Canada to legislate for Indians, there needed to be a reasonable classification of Indians as a race, but discrimination on account of sex was not, in his view, a reasonable classification. Laskin referred to the quote from his judgment in the Curr case, used by Ritchie, and said that he had meant that legislation could be held to be inoperative if it involved a prohibited form of discrimination without tying it to "equality." The proscribed discriminations, he said, had a force independent of the enumerated paragraphs (a) to (/"), or they must be read into those paragraphs. Laskin exercised considerable restraint in the face of yet again an example of spurious reasoning by Ritchie, which also once again attracted enough fellow judges to form the lead or majority judgment. Abbott, the fourth dissenting judge, proceeded along the lines taken by Cartwright in Robertson and Rosetanni. He agreed with Laskin that Drybones could not be distinguished, but went on to express regret at what he was doing: for him, the Bill of Rights was undesirable and the protection of civil liberties should be left to the political process under the doctrine of parliamentary supremacy. As had the Drybones case, Lavell created an outpouring of articles.45 They were generally respectful, with about the strongest criticism being that Rit-

364 The Canadian Bill of Rights

chic's judgment was "ponderous, dense, and esoteric."46 The writers sought for meaning out of the meaningless. In the end they were left with the conclusion and the facts - again an act of will, not reason. Of course, criticism of the quality of the reasoning by academics might not have helped find the meaning of the case, but then again there was not one to find, and such criticism might have created some pressure to change in the future.47 The consensus was clear that whatever prospects for the future the Drybones case had indicated, the Lavell case had eliminated. THE CENTENNIAL OF THE COURT occurred in 1975 and one of the themes of an exhibit established in the National Library, apparently initiated by Chief Justice Laskin, was "Fundamental Freedoms - A Selection of Cases." With the exception of Drybones, it was the cases of the 1950s that dominated.48 Fifteen years of the Bill of Rights had virtually nothing to show for itself. The centennial also drew articles commenting on and assessing the performance of the court in its first century of existence. When it came to the topic of civil liberties, it was disappointment that was heard.49 Comparisons were drawn with the 1950s, no doubt encouraged by the National Library exhibit. Comment was made about the lack of sufficient reasons by the majority in the various cases, and the display of a cautiousness, which it was suggested could be fear of the implications.50 Only Laskin seemed to garner praise of any sort. Longing was expressed for something better: "What we need are the Olympian views and memorable phrases of a Holmes, a Sankey, or a Rand."51 If there were thoughts that the pressures to improve that came from both within and without the court would have had some effect, they were shattered in 1976 in the decision of Miller and Cockriell v. The Queen.52 Also shattered was whatever was left of the Bill as an independent force. The true heart of the case can be seen in the decision of the British Columbia Court of Appeal.53 Miller and Cockriell had been charged and convicted for the murder of a police officer, which carried with it the death penalty.54 The accused appealed and argued that the provisions of the Criminal Code relating to murder punishable by death were rendered inoperative by reason of their infringement of section 2(£) of the Bill of Rights, which provided that no law of Canada shall be construed and applied so as to impose or authorize the imposition of cruel and unusual treatment or punishment. The Court of Appeal held that the sections of the Code were not rendered inoperative by section 2(£). The reasoning of the majority of the court was very straightforward: the Bill of Rights was a statute and "no more sacrosanct than any other statute"; consequently the "usual canons of construction apply" and one of which was "repeal by implication." Therefore, if Parliament enacted provisions that could not be reconciled with those of an exist-

365 The Captive Court

ing statute, then the provisions of the existing statute would cease to have effect. The appeal court also mentioned a second canon of construction that was considered by Ritchie in LaveU, namely that a special provision overrides a general enactment. It seems fair to say that the British Columbia Court of Appeal had created an implied "notwithstanding clause" in spite of the clear wording of section 2, which states that "every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied" so as not to conflict with the rights and freedoms set out in the Bill of Rights. On the appeal to the Supreme Court, the full bench decided unanimously that the appeals should be dismissed, but the court split into groups regarding the reasons for judgment: first, Chief Justice Laskin for himself, Spence, and Dickson; second, Ritchie for himself, Martland, Judson, and Pigeon; and third, Beetz, who stood alone. Ritchie gave up judicial review completely when he said that it was very important that Parliament had not used a "notwithstanding clause," since it showed that Parliament did not intend to conflict with the Bill of Rights. To highlight the destruction of the Bill, Ritchie rejected the use of American cases and proclaimed that the American Bill of Rights differed radically from the Canadian Bill of Rights in both purpose and content. Laskin quietly reasserted the view that the Bill of Rights was quasi-constitutional, and that social and moral considerations entered into the adjudication, with the Bill being more than an interpretation statute. Beetz simply divorced himself from Ritchie, probably because he had already termed the Bill quasi-constitutional in 1975. Thus, by the late 1970s, the Canadian Bill of Rights had been rendered ineffective, and it followed logically that the time was also ripe for the destruction of whatever was left of any thoughts concerning the Implied Bill of Rights. ATTORNEY GENERAL FOR CANADA v. DUPOND, 1978 There was a resemblance between the facts of Saumur and those in the Dupond case. A by-law of the city of Montreal that regulated the holding of assemblies, parades, or gatherings on public property in the city was the subject of a constitutional challenge in Dupond, The by-law had been created in 1969 to deal with order in the city by controlling demonstrations. A year later the "FLQ crisis" erupted with the kidnapping of James Cross." The case was heard in late April 1977. The trial judge in Quebec had declared the law to be invalid because it was criminal law and within federal legislative jurisdiction, but this decision had been reversed by the Quebec

366 The Canadian Bill of Rights Court of Appeal on the basis that it was within provincial legislative power as a local police regulation. In the litigation, the province of Alberta joined with the province of Quebec to support the by-law, and Ottawa intervened to oppose it. The Supreme Court split 6—3, with the majority in favour of the validity of the law. Beetz rendered the judgment for the majority, and Laskin for the dissenting three judges.56 For Beetz, the by-law was simply a municipal regulation of a local character. It was regulating public property and was essentially preventive in nature, in that it was controlling social conditions so that criminal activity would not be encouraged. Of particular interest was the majority's response to an argument based on the civil-liberty arguments of the Implied Bill of Rights cases, Saumur and Switzman, and also a separate argument based on the Alberta Legislation reference. The latter argument, and impliedly the other, was rejected absolutely. Beetz said that he had difficulty dealing with such submissions, which were in general terms. "Modern parlance," he said, had fostered "loose language" upon lawyers. He went on to reject civil liberties as part of the constitutional make up of the "written" constitution: "None of the freedoms ... is so enshrined in the Constitution as to be above the reach of competent legislation," he wrote.57 He concluded that no one could assert a right to hold public meetings on public property, and he went to an 1888 case for authority for this point. In addition he was not prepared to discuss demonstrations as a form of expression; they were, in his opinion, to be viewed as collective action. The language of Rand and the other judges that had created the Implied Bill of Rights in the 1950s, albeit imperfectly, had become in the view of the majority of the Supreme Court in 1978, "loose language." Thus formally ended the most creative exercise ever attempted in the court. For Chief Justice Laskin, and Spence and Dickson dubbed the "LSD connection" during their time together on the bench, the by-law was criminal law in its true nature, "a mini-Criminal Code," and as such beyond the power of the province to enact. The dissent clearly reacted adversely to the scope that the law could potentially have on the actions of people: "This is the invocation of a doctrine which should alarm free citizens even if it were invoked and applied under the authority of the Parliament of Canada."58 The dissent, however, never took a stand on the Implied Bill of Rights, allowing it to die without raising a protest. Rand's thoughts receded further and further from the scene. Laskin must have judged it to be an untenable idea. In general, the reasons for judgment in the case appear distinctly unhelpful in coming to grips with the problem involved and its solution. One is left to infer the real reasons. All one can do is take the conclusion, and the facts, and move from there. Soon after the Dupond decision, an even more interesting civil-liberty decision was created.

367 The Captive Court NOVA SCOTIA BOARD OF CENSORS

v. MCNEIL, 1978

When Gerard McNeil, the editor of the Dartmouth Free Press, decided early in 1974 that he had had enough of film censorship, he created the civilliberty case that acquired the highest profile since those of the 1950s. The case was referred by a judge of the Nova Scotia Trial Division to the Appeal Division for hearing. In early 1976 the four judges of the Nova Scotia appeal court heard arguments based squarely on the Implied Bill of Rights. Three of the four judges declined expressly to enter into the field of fundamental freedoms since they were prepared to hold the censorship laws to be invalid as coming within the federal criminal-law power. One judge did enter into a discussion of civil liberties, however, and recognized fundamental freedoms as part of the constitution, which limited provincial legislative power. He relied on Rand's judgment in Switzman, as well as that in Saumur. On the appeal to the Supreme Court of Canada, a majority of the court (5-4) reversed the provincial appeal court and upheld the legislation.59 The majority was made up of Ritchie, Martland, Pigeon, Beetz, and de Grandpre", with their judgment rendered by Ritchie. The dissent, whose judgment was rendered by Chief Justice Laskin, was made up of Laskin, Judson, Spence, and Dickson. From a case that had the appearance of containing a highly significant civil-liberty issue, it ended up looking like a trade and commerce decision. Ritchie, for the majority, entered into a discussion of the business of showing motion pictures. This was a local trade, he concluded, and as such was subject to provincial control. In the process of regulating motion-picture theatres the province could legally deal with moral standards. On the question of fundamental freedoms, dealt with by one judge in the provincial appeal court, Ritchie made the astonishing statement that because he was presuming that the law was valid, therefore he would not be justified in concluding that it infringed any fundamental freedom. This attitude involves the assumption, among others, that censorship on the basis of morals is not an interference with any right or freedom, which was begging the very question that was before the court. Laskin, for the dissent, did not consider the issue of civil liberties, and allowed the opportunity to be lost. He connected the regulation of people's behaviour based on moral standards to the criminal law and the law became invalid, in his opinion, since it was within the federal criminal-law jurisdiction. Most of the judgments rendered in the case at both levels concerned criminal law. The judges in 1978 were not prepared to deal with the question of civil liberties. Almost twenty years of the existence of the Bill of Rights had had no conditioning effect. If anything, the minds of the judges appeared hardened against such ideas within the legal system. In an attempt to

368 The Canadian Bill of Rights give content to a concept of freedom of expression within the law, Rand, in Boucher, had said that the focus of the law must be placed on the consequences that arise from the use of expression, with only an intention to incite violence against government (in the broadest sense) being criminal behaviour. In Saumur he had said that at least the freedom prevented prior restraint of expression. The by-law in Saumur, which concerned the distribution of written matter, was held by three judges, Rand, Kellock, and Locke, to be censorship in its true nature, and thus beyond the power of the province. McNeil confronted directly the opinion expressed in Saumur and yet no reference at all was made to the Saumur case in the judgment of the majority. Ritchie for the majority did cite the Quong Wing case from 1914 for the proposition "that if the legislation is found to have been enacted for a valid provincial purpose the prohibition is equally valid."60 The proposition was virtually self-evident, and the citation of Quong Wing could only be an embarrassment for Canadians, and showed a complete insensitivity towards civilliberty questions.

27 The Seventies

It had been twenty years since the abolition of the appeal to the Privy Council - twenty years during which the Supreme Court had been its own judicial master. Now assessments could be made in the clear light. The work of the Judicial Committee of the Privy Council had been called into question during the 1930s by those who wanted the appeal ended, and it became the practice to voice criticisms of its work from that time onward, even after the appeal had ended.1 There seemed to be general acceptance that the appeal to the Privy Council had created and sustained the "captivity" seen in the decisions of the Supreme Court. The uncritical acceptance of this simple view, with its superficial plausibility, resulted in the casual discarding of seventy-five years of the court's existence. However, by the 1970s when criticisms of the work of the Supreme Court had become commonplace, the Privy Council could no longer be used as a scapegoat, and reassessments effectively exonerated it. Although there were certainly remnants of the old "Privy-Councilbashing" group still in existence who perpetuated the language of the previous years, it became difficult to maintain that position in the light of Alan C. Cairns's article "The Judicial Committee and Its Critics." Cairns effectively dispelled the old criticisms, putting the cause of the problems with the Supreme Court on the various components of the Canadian legal system. In one telling paragraph he asserted: "A strong and effective court requires a variety of supporters. It must be part of a larger system which includes first class law schools, quality legal journals, and an able and sensitive legal fraternity — both teaching and practising. These are the minimum necessary conditions for a sophisticated jurisprudence without which a distinguished judicial performance is impossible."2 Cairns considered that most of the conditions needed in order to achieve a first-class court had been only imperfectly realized in the days of the appeal across the Atlantic, and specially the weaknesses in legal education in Canada

370 The Seventies

had produced a lack of self-confidence and created a reluctance to abolish the appeal. Of enormous importance was his conclusion that, of the Supreme Court, the law schools, the legal profession, and the political elite, none had been able to devise an acceptable role for the court in Canadian federalism in the twenty years since the abolition of the appeal.3 A few years earlier, a book had appeared in which the author G.P. Browne, a historian, had analysed the constitutional decisions of the Privy Council and concluded that they had been correct.4 The book was not well received by the legal community.5 It had obviously hit a nerve, and the fact that Browne was not a lawyer was crucial. Whatever the intrinsic merits of the work, it had challenged the idea that the Privy Council had been in error in its decisions on the constitution, which in turn undermined the stated rationale for the abolition of the appeal since the 1930s. There had been resistance to the thought that the decisions of the Privy Council were perfectly justifiable, whether one could use the word "correct" or not.6 It was at this time, as the 1970s began, that the Supreme Court was subjected to the sharpest public criticism that it had ever received. B.J. MacKinnon, a prominent member of the Ontario Bar, a bencher of the Law Society, and chairman of the Legal Education Committee, who would later be a member of the Ontario Court of Appeal (1974) and associate chief justice of the court (1978), participated in a discussion of the court at the annual meeting of the Canadian Bar Association and did not mince his words: I have been disappointed, generally, in the quality of the judgments and the seeming failure to examine in depth the legal principles involved in the decisions, or to express in literate terms the philosophy of law which moves the particular judge or court. This to me becomes most apparent when the judgments of our Court are compared with those of the House of Lords, the High Court of Australia and the Supreme Court of the United States. It is accordingly difficult from the reasons to assess the individual members doctrinal approach to their work.7

These were profound criticisms that went directly to the question of the quality of the work performed by the judges. MacKinnon quickly went on to say that he did not believe that the quality of the work was a reflection of the quality of judges but was the result of overwork. He then called for legislation to reduce the work-load of the court, by eliminating matters that were not of national importance.8 Thus, as the 1970s began, excessive work-load was now being proposed as an excuse for the quality of the court's work.9 Whatever the cause, the judges were being judged as failing to analyse the law, to articulate sufficiently, and to get down to basics. If Cairns's point was accepted that the court functioned with support from the bar, legal educators, and politicians, then it was of great interest to note

371 The Captive Court in MacKinnon's discussion paper which he, as a practitioner, was delivering at a meeting of practitioners, that he disassociated himself from legal educators. "At the outset," he said, "I emphasize that I discuss these questions not from a position in the groves of academe, but from exposure in the front line trenches."10 The legal profession was fragmented, and animosity was evident between the practitioners and the academics. At this time legal education was experiencing an enormous expansion, and in Ontario Osgoode Hall Law School had been given over to a university setting by the profession. As a result many practitioners began to question what legal education was trying to do. With no tradition of independence and of being critics of the system, those within education would not assert themselves as partners with the bar. MacKinnon went on to note that the press had been using the Supreme Court as a target, but in his view the press was "singularly illiterate and illinformed," as well as being too American-oriented, which he suggested might have been caused by Canadian academics with postgraduate American legal education." In particular, MacKinnon reacted strongly against statistical analysis of judges, and any attempt to "categorize" them.12 Twenty years had produced no apparent improvement in the court, but university law faculties had been created and there now existed a solid potential for critical examination of the legal system, but strains had also been created within the legal profession - noticeably between the bar and the legal educators. In his paper MacKinnon was dealing with the most basic of requirements for an able judge - analysis and exposition. Without these essentials, development of the law and use of social values were impossible. In essence, MacKinnon was accusing the judges of being completely flawed as members of a final court of appeal. The potent criticisms made by MacKinnon could also be heard from legal academics. Professor Peter Hogg of Osgoode Hall Law School of York University wrote: "The Supreme Court of Canada has not been successful in producing consistent, principled decisions in the natural justice area. It has rather produced 'a wilderness of single instances.' '"3 In addition to the ad hoc decision making that he had observed, Hogg commented that although the results in the cases may have been acceptable, yet the court's "reasons for judgment are often woefully inadequate." He added that "the Court's reasons for judgment tend to be brief and in some cases even perfunctory." His conclusion was: "It is plain that the judges of the Supreme Court have viewed their role in almost exclusively adjudicatory terms. They have been preoccupied with the disposition of the particular case before them. This, obviously, is the Court's primary task. But part of the task of administering justice according to law is the enunciation of sound legal reasons for each decision."'4 As a court of appeal, its work was questionable, but as a final court of

372 The Seventies

appeal it was being branded a failure. Hogg did mention "the heavy and diverse caseload" as an important factor in creating the problems. The new excuse was settling in. The tensions between what could still be called in the late 1960s and early 1970s a fledgling legal academic community and the practising bar, which had had effective control over education over the years throughout Canada, were exacerbated immensely by the appearance in the late 1960s of statistical studies of the legal system. MacKinnon had felt strongly enough about such activity to speak out against it in the 1970 discussion paper that he had delivered to the Bar Association. STATISTICAL ANALYSIS Beginning primarily in the 1920s and 1930s in the United States, the legal realists had determined to expose the real influences that were at work and that were behind the decisions of judges. The reasons for judgment that were being produced within the legal system were seen simply as rationalizations. It naturally followed that a demand would be made for judges to articulate the actual reasons behind their decisions, which meant that they would need to refer to the social context as well as the language and legal contexts. Since the language of a rule would determine a dispute only in the simplest of situations with the probable result that litigation would be unnecessary, this meant that cases that had made their way to the final court of appeal would require more than a reference to the words of a rule to provide an answer. The realists were demanding that the legal system articulate the social values that had been used in reaching a solution, which naturally would expose the political nature of the process. As a consequence of the demand for candour, political scientists in the United States zeroed in on the legal process with the research tools of the social sciences and took up the task of investigating judicial behaviour in depth. In the 1960s a wealth of such studies with respect to the American judiciary burst forth, which produced a symposium published by the Harvard Law Review dealing with social science approaches to the judicial process.15 Canadians who had studied law in the United States had been introduced to such thoughts, which were totally alien to the legal mind indoctrinated with the traditional view of the legal process in Canada. The studies assumed that the judiciary were part of the political system. Prominent was the acceptance of an interdisciplinary approach, which even today for many in the legal profession is frightening and threatening. The first exposure to such studies for Canadian law was Peter Russell's 1966 study for the Royal Commission on Bilingualism and Biculturalism, Bilingualism and Biculturalism in the Supreme Court of Canada. It went beyond its title and provided a generous helping of statistical information.

373 The Captive Court In 1967, Sidney Peck, a professor at Osgoode Hall Law School and a former student at Yale University, wrote an article in the Canadian Bar Review describing the behavioural approach to law.16 Professor Peck turned his statistical analysis on the Supreme Court and dealt with three areas of law: taxation, in which he assessed the judges as pro-government or pro-taxpayer; negligence, where the judges would be pro-plaintiff or pro-defendant; and criminal law, in which the categories were increased to cover very proaccused, pro-accused, neutral, pro-Crown, and highly pro-Crown. He then embarked on a discussion of the results. To the extent that R.M. Willes Chitty, a bencher of the Law Society of Upper Canada and publisher of Chitty's Law Journal, was representative of the practising bar, it can be concluded that the bar's reaction to Peck's work bordered on the hysterical. What particularly infuriated Chitty was that Peck's article had been commented upon in the Toronto Globe and Mail, which obviously increased the exposure of the ideas immensely. On the pages of his law journal, Chitty branded the notion behind the article as stupid and lashed out that "perhaps it is not extravagant to inquire why a professor, who undoubtedly has a string of letters after his name as evidence of his academic achievements and perhaps cloistered mind, has made this attempt that has all the earmarks of an attack on the integrity of the judiciary of the Highest Court in the land."17 Chitty questioned the purpose of the article, commenting that "to an experienced practitioner it seems somewhat arrogant for a man of little or no practical experience to attempt to undermine confidence and that to some extent at least must be the effect of this article - in the judiciary of Canada's Court of last resort."18 The old point about undermining the public's confidence in the judiciary was still there. In the nottoo-distant past, Peck's article might have been seen as sedition as far as Chitty was concerned. Chitty finally suggested that the Bar Review should hesitate before publishing such articles. B.J. MacKinnon's reaction to statistical analysis in his 1970 paper may have been only a difference in degree, not kind. Another sign of change for legal thought that appeared in 1970 was the publication of a constitutional law book for use in legal education by Noel Lyon and Ronald Atkey, both of whom had recently studied law at Yale. The book, Canadian Constitutional Law In a Modern Perspective, attempted to alter completely the way in which Canadian lawyers and judges dealt with the solution of problems.19 The traditional idea in education was rejected that saw law as a body of rules that was simply to be learned; in its place was the need for lawyers and judges to be concerned with the process of decision making, which consisted of taking into account individuals seeking goals and values. Constitutional questions could be dealt with only through the context of social (community) values. The book quickly disappeared from use because it was far too much, too soon. Most of the existing cases did not lend them-

374 The Seventies selves easily to the suggested analysis, and much had to be read between the lines. The academic community was, of course, just as infected as were practitioners with the rule-oriented, "black-letter law" approach. Amazingly Bora Laskin, then on the bench of the Supreme Court, and the author of the only other book in the area that was on the market, reviewed the Lyon and Atkey work for the Western Ontario Law Review. Laskin demonstrated that he too could not shed the traditional Canadian approach to law when faced with a work that attempted to do at one fell swoop what he himself had apparently always wanted. He rejected it for use in the education of lawyers: it was "a casebook on public law and administration rather than on constitutional law," and "a reference book for those in political science taking a course in federalism."20 The onslaught of ideas about the study of law, which emphasized the input of social values over the language of rules, introduced nothing new, since the ideas were the same as those of the judges of the nineteenth century who had been admired for their "common sense" such as Chief Justice Richards or the "statesmanlike judges," or David Mills, and, much later, Ivan Rand. Yet even Laskin himself had reacted and a split was created between "law" and "political science." There was a strenuous resistance to the destruction of the simplistic notion of the socially neutral application of rules to problems. In the Canadian Bar Review the Lyon and Atkey book was reviewed by a political scientist, who identified the work as "essentially American," which conflicted with Canadian traditions.21 Writing in the Canadian Journal of Political Science, another political scientist saw it as revolutionary and thought that if its thesis were to be adopted, it would create subjective discretionary power in the judiciary.22 The political scientists saw the analysis of problems as being of two kinds: technical analysis and policy analysis. Technical analysis was non-value-oriented and was to be used within the legal system. Policy analysis, as advocated by Lyon and Atkey, was for use within the political system. In another review written by a judge, the book was dismissed with the thought that if the suggested approach were to be adopted, it "would destroy the disinterested impartiality a Judge should exhibit."23 Judges, we were told once again, were interpreters, not makers of law. While the Canadian political scientists (and judiciary, it seems) were experiencing some difficulty with the work, yet the legal academics of the day who reviewed it welcomed the book. It was not without importance that the size of the work was intimidating, and we were even told by one reviewer that the "red brick" actually weighed five and a half pounds.24 WHILE THROUGHOUT THE 1970S there was a small, but steady stream of academic writing in the journals that criticized the Supreme Court for its arid style of decision making, and which promoted in various ways the abandonment of the "mechanical style" for the reality of the value-oriented process,

375 The Captive Court

the most interesting work of the decade was the publication of the first book that specifically set out to examine critically the Supreme Court. In the Last Resort by Paul Weiler of Osgoode Hall Law School was published in 1974. Interestingly it was co-published and distributed by a subsidiary of a publisher of law books, that dealt with social science topics.25 The author called the work an essay in legal philosophy, and pointed out that he had not engaged in quantitative analysis of the judges' voting behaviour, or a sociological analysis of the judges' backgrounds, the inner workings of the court, or the impact of the decisions on society. Nor had he written a history of the court. He clearly wanted to avoid any prima facie prejudice similar to the over-reaction of a few years earlier to the statistical analysis. The work was said to be an attempt to develop a theory of the role of law in courts, that could be used to appraise the legal reasoning and decisions of the Supreme Court. What he was concerned with was the extent of the influence of the judges on the growth of the law and the evaluation of the quality of the law that had been developed, as well as the proper scope of the judicial function. The author noted self-consciously in the preface that the legal profession (judges and lawyers) were "not used to systematic criticism of a court's performance," and that his earlier articles on the subject had caused a reaction that had viewed the endeavour as unseemly behaviour. He said: "Criticism of a judge's reasoning might properly appear in the course of analysis of an area of law, but it should be hesitant and obscure; certainly one should not administer a general rebuke for a court's style of work as a whole."26 The criticisms of his earlier work had had an effect and he attempted to soothe any further reactions by pointing out: "My focus has been the visible content of the opinions of the Court, not the personal attitudes of any one of the individual judges." He thus attempted to avoid the criticisms that had been aimed at those who published behavioural analysis. There was an obvious awareness that a critical analysis of the judiciary was a very sensitive matter, but he did affirm that individual judges do influence the development of the law and he asserted that academics had the responsibility to the public to "present forthright and understandable criticism of inadequate judicial performance wherever it is found." Weiler concluded his preface with this quote from Mr Justice Frankfurter of the United States Supreme Court: "Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities ... Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt."27 He had to go to an American for the final thought. The traditional feeling of reverence for the judiciary that the legal profession had fostered in the minds

376 The Seventies of the public had apparently been discarded by Weiler, but with self-consciousness: he felt a definite need to justify his book. In the end, the book projected the very traditional image of restraint with respect to the judicial function. "Rule reform" was rejected, since if the judges were to reject earlier rules as a normal procedure, "they would settle disputes on the basis of pure policy without any law, a very different practice from the one we now have."28 When it came to an examination of law reform through development of a rule ("application reform"), Weiler accepted that the primary task of the judges was that of administering the law as it was, with reform of the law left to the legislature. He saw as "polar alternatives" the judge as adjudicator whose function was to resolve concrete disputes between two adversaries, and the judge as a political actor whose function was to adopt general policies for the community and give them the force of law. He accepted that judges invariably perform both functions,29 but the mix he viewed as critical. Judges should be content to tinker with "archaic legal doctrines which do not make the headlines and do not find their way into the political arena."30 However, a major review of an area of law should be left to a legislature. His view of the extent of judicial creativity was expressed as follows: Judges must develop and settle the law in the light of the policies believed appropriate for that area. However, these value judgments need not simply reflect the personal attitudes of the judges who happen to sit on that appeal panel. Instead, the court should be able to discern a series of policy judgments already embodied in existing legal standards. The judges must articulate a theory which explains how these many judgments form a systematic whole, a theory which is summarized in the legal principle. The principle expresses the theme by which a society has gradually resolved the competing interests and values which are the common strands of this area of life. Once such a theory is articulated, it may become the fundamental reality of the law which governs the judges. If a new question arises, a court can and should appeal to this principle to justify its new rule. If one of the existing rules seems incompatible with the thrust of the law's evolution that same principled argument will justify a revision.31 Weiler wanted the judges to use only "a series of policy judgments already embodied in existing legal standards," and he did not accept that they should search for policy (social values) within society itself. He stated: "The concept of a legal principle is the linch-pin of my definition of the proper scope of judicial law-making." Since principles of the legal system (maxims of the law) are so general and vague, this view seems unhelpful. What is involved, however, is the rejection of a political aspect to the law, namely the social context, and the attempt to project the image of the law and the legal system as a self-contained whole. What is a legal principle? For Weiler, it was "an argument which is ap-

377 The Captive Court pealed to as a justification for the adoption of ... a legal rule in ... [a] case where this is necessary."32 He seemed to want decisions justified in terms of something other than social values, by using either rules or principles. Thus there is policy, but it is "legal policy." There was much more to the study than has been covered, but unfortunately clothed with some confusion. Since we understand that the appeal to principle does not provide irrefutable answers, what does? As a study of the court, the most significant statement occurred at the beginning of the introduction: "A strange malaise has overtaken the Supreme Court of Canada in recent years,"33 and he concluded his first paragraph with this sentence: "Our final court of appeal is not providing sufficient illumination and excitement in the evolution of Canadian law." He ended with this assessment of the problem: "My diagnosis of the malady of the Supreme Court is quite simple and can be summed up in one short sentence: Our judges share an outmoded and unduly narrow conception of the role of law in courts,"34 The decision-making ability of the judges came under severe attack in the book in certain areas of the law,35 but overall the critical analysis became problematic since the analysis and criticisms in which Weiler engaged were result-oriented, and thus focused on the question of what result he personally would have reached.36 The important thing was that in his opinion something was very wrong in the court. It was, of course, the captivity. It is not that obvious that following Weiler's suggested method would alleviate the problem. THE AUTHORITY OF ENGLISH CASES The most obvious of the signs of captivity in the Canadian legal system was the EQUATION: the law of Canada = the law of England. This too changed during the 1970s. The most illuminating instance was the saga of Gosselin v. The King, a case that was decided in 1903.37 Nine years after the Supreme Court's decision, the same question came before the House of Lords, and their Lordships decided contrary to the conclusion that the Supreme Court had reached.38 This meant that, at the time, the Gosselin case was finished. In 1930, the Alberta appellate court held that the Gosselin decision was "now of little, if any, authority."39 However, in 1973, the appellate division of the Alberta Supreme Court revived the Gosselin case and followed it as if it had always been taken to express the law; this was done without any mention of the 1930 decision, which would only have created embarrassment.40 In 1970 the Supreme Court refused to adopt a majority opinion in a House of Lords case41 although the dissenting judgment of Lord Pearce was followed very closely. The following year another House of Lords case was ignored by the judges.42

378 The Seventies Although it is enormously diminished, there is still evidence today of the old slavish following of English cases. In 1981 the Alberta Court of Appeal listened to an argument that a Supreme Court of Canada decision should be reconsidered due to a recent decision of the Privy Council that was conflicting. The Alberta court expressed no concern with the nature of the argument, but rightly stated that review of the decision had to rest with the Supreme Court itself. Leave to appeal to the Supreme Court was not granted by that court.43 The 1971 decision of the Privy Council, Ratten v. The Queen** swept through Canadian law and was quickly adopted, thereby eliminating the leading Canadian authority, Rex v. Lelandf* a decision of the Ontario Court of Appeal, without any expression of any apparent thought about what was happening. In 1982, it was noticeable that Madame Justice Bertha Wilson relied exclusively on a House of Lords decision and ignored Canadian cases,46 and in a 1984 decision the House of Lords clearly dominated the judgment of the majority of the Supreme Court rendered by Madame Justice Wilson.47 Wilson was born in Britain and arrived in Canada when an adult. Although the binding nature of English decisions, particularly those from the House of Lords, had ceased to exist sometime during the late 1960s or the early 1970s, the long tradition continued to give English cases a status greater than would be accorded other "foreign" cases. In legal education English decisions are still taught by many academics as a matter of course, thus continuing to condition Canadian lawyers to treat them as a normal part of our legal system. The attitude of the judges when it came to the question of the authority of English decisions has been the starkest example of captivity, and it is important to ask why this approach was taken by the Canadian legal profession to the extent that it was. It is interesting that no reason was ever given by a judge of the Supreme Court for the overwhelming acceptance of the decisions of English judges; it simply existed. Blind obedience to English law as laid down by the courts in England would not have alone created the larger idea of captivity. There was a lack of appreciation of the judicial function — of its scope — and an unquestioning acceptance of the mechanical approach by the vast majority of the judges. This must point to education as a dominant factor. It was seen as a constitutional rule in pre-Confederation Upper Canada, but the application of English law did not require that development could not take place within Canada, or that Canadian judges were not capable of "finding" the appropriate law. The rule dealing with the reception of English law, as articulated by Blackstone, also did not mean that English courts were necessarily to take such a dominant position. Was it colonialism? The word "colonialism" may have been used to explain the phenomenon, but it does not appear to be a necessary condition of living in a colony. Basically, colonialism is the state of mind that requires

379 The Captive Court "touching base" with the mother country before making a decision. It might be likened somewhat to delegation of authority to an administrative official. While there may not be complete independence, there is nothing to say that such delegation completely erases any creative ability. Within political history there are several examples of assertions of independence for internal matters. The creation of the court itself in 1875 involved certain independent actions, such as the proclamation of the Act in force. Did the colonial system require that Canada follow English law? The Robins case said "yes" for "a colony ... regulated by English law," but this was a prima facie rule and the nature of what was meant by "regulated by English law" had to be appreciated.48 The Robins case was decided in 1926, and with the Statute of Westminster in 1931, followed by the British Coal Corporation case, and the Privy Council reference case, the situation changed completely. The fact cannot be ignored that for English Canada the sense of being British was part of a defence mechanism to fend off absorption by the United States, and to establish a raison d'etre for the country. The use of English cases fits nicely into that mentality. Canada had no separate existence. There may well have been a certain sense of awe of English lawyers within the legal profession. The sad state of legal education had been put forward by the profession as a reason to justify the appeal, but nothing was done to cure whatever defects in the education that existed. English Canadian lawyers were certainly educated into the belief that English cases were "the law." There was also no component of the education that offered any critical examination into the nature of the judicial process. The mechanical, unthinking approach is easy and painless. One must query what motivation there would have been to abandon the mechanical approach. Without a critical component to the legal system who would be prepared to challenge and to demand more? The legal profession had projected the image of a profession that required much study, and consequently ordinary persons were conditioned to consider themselves unqualified to discuss points of law, or judicial qualities. The least likely cause of the captivity was the appeal to the Privy Council, even though that is the stated reason. In fact it was the House of Lords that dominated the thoughts of the Canadian legal profession, not the Privy Council. Although the colonial system and the existing rules of law clearly indicated that English decisions should be solid guides in judicial decision making, the captivity could be said to have created a slavish imitation of them that continued to a great extent unabated into the 1970s, and in some respects still survives as the twentieth century enters its last decade. Nevertheless with the 1970s there had come definite signs that the captivity could be falling away.

28 The Seventies and Law Reform

The twenty years that followed the end of the appeals to the Privy Council were disappointing years for many, since, with the exception of Mr Justice Rand, the judges had showed little, if any, inclination to use their status as members of our final court of appeal to engage in law reform, or to render creative judgments.' With the coming of the seventies changes in social values made demands on the court so that ventures into law reform became inevitable. The decade opened with the brave thought from the court that if judgemade law needed to be restated to meet modern conditions, then the judges would do so and not leave the task to Parliament and the ten legislatures. Thus, in Ares v. Venner the Supreme Court took on the reform of the hearsay rule in the law of evidence.2 To add to the professed creativity, the court expressly refused to resort to the opinion of the majority of law lords in the House of Lords that had been expressed six years earlier, that to reform the law of evidence would be judicial legislation and such a change should only be undertaken by the legislature.3 The appeal had been heard by only five judges, an indicator of how the chief justice, John Cartwright, apparently viewed its importance. The five judges were unanimous, and the judgment of the court was rendered by Mr Justice Emmett Hall. The concurring judges were Abbott, Martland, Ritchie, and Spence. Hall was definitely proud of the decision and promoted it publicly as an example of the power of the judges to change the law.4 It is interesting to speculate whether the reform should not in fact be attributed totally to Hall with perhaps Spence's support, since Abbott, Martland, and Ritchie were the least reform-oriented of the judges on the court. The issue in the case concerned a procedural rule, and did not have a high public profile. Several of the other provinces had already reformed the law through legislation.5 There were therefore unmistakable signals that would have

381 The Captive Court indicated to the judges that law reform would be acceptable, and of a minimum overall impact on society. Regrettably, as an early exercise in overt law reform, there was a measure of disappointment surrounding it. When it came to articulating the basis for the reform, which would provide a guide to future action, there was too much uncertainty surrounding the decision. A clear principle of law for future reform of legal rules was missing, although in the judgment there were references to several possible principles. In the end the only certainty left was the specific rule that had been created and it was very narrow and less than what had been achieved in certain provinces through legislation. The court was prepared to take only a small step, and the signals as to law reform coming from it were garbled. While reform had occurred, and at this point in the life of the court that in itself was an event, yet the use of only five judges and their unanimity left an uneasy feeling of artificiality. The lack of any clear principle and the narrowness of the actual result made future use of the case somewhat questionable. Because the court did not articulate guidelines for future requests for law reform, the old feeling of an ad hoc decision remained. At the same time that the Supreme Court was declaring its willingness to reform the law of evidence and to differ from the attitude of the House of Lords, it was deciding The Queen v. Wray.6 The issue of law reform loomed large in the case and it had a very high public profile compared to that in Ares v. Venner. The Wray case, which involved a charge of murder, was concerned with the creation of a rule that would have excluded evidence from a trial based on the behaviour of the police in obtaining it.7 At the time the Americans had a well-known rule that could be used to exclude evidence that had been improperly or illegally obtained by the police, which was based on protection of individual rights under the American constitution. In Canada such a rule did not exist, and the criminal process was essentially dominated by the thought that it was controlling crime and evidence that was relevant to the guilt of an accused person was to be used. An English case of 1861 had succinctly stated the rule: "It matters not how you get, if you steal it even, it would be admissible in evidence."8 Almost a century later the Judicial Committee of the Privy Council had repeated the same idea: "In their Lordships' opinion, the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence is obtained."9 With this background it was surprising that Canadians saw taking shape in the law for a brief time in late 1969 and early 1970 a rule that emulated the American approach of favouring the individual rights of a person caught up in the criminal process. In a completely unexpected decision in Wray, the Ontario Court of Appeal had decided that a trial judge had a discretion to

382 The Seventies and Law Reform

reject evidence, even of substantial weight, if he considered that its admission would be unjust or unfair to the accused or would be calculated to bring the administration of justice into disrepute.10 Unlike the American rule under which if the police behaviour infringed constitutional rights, then the evidence obtained was to be excluded, the new Canadian rule was made discretionary in that the nature of the police action and the need for the evidence in question could be considered. Wray had been charged with non-capital murder, and by what was described as "trickery, duress and improper inducements" by the Ontario Court of Appeal, the police had obtained a confession from him. In addition, the police admitted that they had prevented a lawyer from contacting him so that there would be no interference with their investigation. A rule did exist within the law that allowed the exclusion of the statements made by Wray because of the improper manner in which the police had obtained them. It was decided that what Wray had said to the police could not be used by the prosecution, and this decision was not challenged in the subsequent appeals. However, after confessing, Wray took the police to where he had said that he had thrown the murder weapon, a rifle. At the trial the rifle was admitted into evidence, and in addition, the fact that Wray took the police to where the rifle was to be found was also allowed to be used by the prosecution. In addition to the rule allowing the exclusion of the statements that Wray had made, there also existed a rule that allowed the admission of parts of a statement that had been ruled inadmissible, when those parts had been confirmed by the finding of other facts.11 As a result of this latter rule, known as the "confirmed confession rule,"12 the part of the statement in which Wray had said that he knew where the rifle could be found could be used. It was at this point that the law reform of the Ontario Court of Appeal clicked in — the Court of Appeal would have exercised their discretion and excluded the evidence of Wray's involvement in the finding of the rifle, thus nullifying the effect of the "confirmed confession rule." The basis for the appeal court's decision to create the new rule was a concern with fairness for an accused person, and the disrespect that might attach to the justice system if the improperly obtained evidence were allowed to be used. Leave to appeal to the Supreme Court was granted by a panel of judges consisting of Chief Justice Cartwright, Martland and Spence. Leave had been granted the day before the court released its historic decision in the Drybones case. The permission to appeal was granted on the following question: "Did the Court of Appeal for Ontario err in law in holding that the learned trial judge had a discretion to reject the evidence relating to the involvement of the accused in the locating of the murder weapon?" Because the appeal had been based on the issue of the existence of a discretion to exclude evidence, it meant that the significant question was submerged of whether a rule of

383 The Captive Court evidence should exist by which facts against an accused in a criminal case could be kept out of a trial based on the actions of the police. The general consensus within the legal profession was that such a discretion did exist (at least for evidence of low probative value), and there was clear authority for such a proposition from the Privy Council. A year before the Wray case, the House of Lords had decided that it was "far too late in the day even to consider the argument that a judge has no such discretion,"13 and only six months before Wray the Supreme Court itself had approved the existence of a judicial discretion.14 The distortion of the true question at issue by zeroing in on the discretion to exclude evidence was clearly a warning sign: the Supreme Court apparently did not want to deal directly with an obvious law-reform problem of such social magnitude. By a 6-3 decision, a majority of the Supreme Court, Fauteux, Abbott, Martland, Judson, Ritchie, and Pigeon, held that there was not a general discretion to exclude evidence. The Court of Appeal had upheld the existence of a discretion on two grounds — that the admission of the evidence would be unjust or unfair to an accused person, and that the admission was calculated to bring the administration of justice into disrepute. The latter ground forms the basis for the rule of exclusion in the present Canadian Charter of Rights and Freedoms.15 Martland wrote a judgment in which four judges concurred, Fauteux, Abbott, Ritchie, and Pigeon, in which he rejected the idea of a general discretion and held that the Privy Council cases were not supportive of such a notion. He made no mention of the House of Lords decision a year earlier, nor of the court's own decision six months before.16 For Martland it was only evidence of trifling probative value that might be kept out of a trial by a judge on the basis of unfairness to an accused. If the evidence had any weight beyond a trifling level, then it had to be admitted. On the question of excluding evidence based on an idea of bringing the administration into disrepute, Martland dismissed it completely and quickly. There simply was no authority for such an idea, he said. Judson in a concurring judgment added the point that judicial discretion in the area of law involved in the case would create uncertainty, which he viewed as unwanted. Although the majority was willing to recognize some discretion to exclude evidence if the evidence was of very low probative value, this certainly did not describe the evidence of Wray's involvement in the finding of the murder weapon in the case. The three dissenting judges, Cartwright, Spence, and Hall, must have picked up the spirit that had motivated the Ontario Court of Appeal, as they adopted a strong civil-liberty stance. Cartwright was prepared to recognize a discretion to exclude evidence, both on grounds of unfairness to an accused

384 The Seventies and Law Reform person, and on the basis that the administration of justice would be brought into disrepute. He based this conclusion on the maxim of the law, nemo tenetur seipsum accusare, that is, that no one shall be forced to incriminate themselves. Spence described the protection against self-incrimination in the criminal law as its most basic principle. Hall based his similar conclusion on what he termed a constitutional right to a fair trial. He had thus made the maxim nemo tenetur seipsum accusare a constitutional rule and applied it against the other rules of the criminal justice system. A majority of the Supreme Court had rejected the creation of an exclusionary rule with respect to evidence that had been improperly or illegally obtained, even in the discretionary form stated by the Ontario Court of Appeal; but in rejecting such a rule the majority had narrowed what had previously been thought to be a power in a trial judge to reject admissible evidence. Hiding behind the discussion of a discretion to exclude evidence was of course the real and substantial question in the case, that involving improperly obtained evidence. The result of the case was the complete rejection of any move towards the establishment of a rule for the exclusion of evidence obtained by questionable police practices. Within six months of the Drybones decision, which had been heralded as imparting new vigour into the dormant Bill of Rights, a majority of the court had taken on a distinctly negative civil-liberties appearance. The alignment of the judges was, however, surprising. In Drybones, the majority of the judges, who expressed the desire to make active use of the Bill were Ritchie, Fauteux, Martland, Judson, Hall, and Spence. Hall had written a short concurring judgment, in which he referred to American cases dealing with discrimination, and thereby sounded some note of preparedness to engage in Americanstyle judicial review using ideas involving civil liberties. The dissenting judges had been Cartwright, who rejected the use of the Bill of Rights to review legislation; Abbott who also rejected judicial review and condemned it as "judicial legislation"; and Pigeon, who very forcibly rejected judicial review based on civil-liberty notions. In Wray the majority consisted of Martland, Fauteux, Abbott, Ritchie, Pigeon, and Judson, while the dissent was Cartwright, whose judgment adopted a distinct civil-liberty style, Hall, who wrote in terms of a constitutional right to a fair trial, and Spence. In terms of civil liberties, Hall and Spence were consistent in their positive stance, with Hall's "American" approach in evidence. Abbott and Pigeon were consistent in their negative civil-liberty position. A majority however - Cartwright, Ritchie, Martland, Fauteux, and Judson — appeared to be inconsistent. Cartwright had a strong record of voting in favour of an accused person in criminal cases, which may have been reflected in the result in Wray, but he had demonstrated a lack of willingness in the 1950 cases to deal positively with other civil-liberty issues. Based on what is known to have occurred with the Bill of Rights after

385 The Captive Court Drybones as well as on the Wray case, as far as Ritchie, Martland, Fauteux, and Judson were concerned, there seems to have been something involved in the Drybones case that is not obvious. ON 23 MARCH 1970 an impetus to the formation of a creative court that was actively engaged in law reform was put into place by the appointment of Bora Laskin to the bench. Laskin replaced John Cartwright. The halting and inconsistent steps taken at the beginning of the 1970s were about to be changed. Unlike Rand, whose creativeness lay within public law and the constitutional area, Laskin's influence would sweep across the entire spectrum of the law. After Laskin was appointed, A.S. Patillo, the president of the Canadian Bar Association, was reported as having expressed concern with those who would have the court make law, rather than interpret it.17 Laskin had only been on the court three months when he sat on an appeal dealing with landlord and tenant law in Highway Properties Ltd v. Kelly, Douglas & Co. Ltd™ The appeal was heard in the first session in which Laskin was a member of the court. Even though he was the most junior judge on the bench, he launched a law-reform decision by writing the judgment of the court for himself, Martland, Judson, Ritchie, and Spence. The lawreform aspect of the case was Laskin's decision to change the law with respect to landlord and tenant from that involving purely property concepts to that which would allow the use of contract concepts. The use of property concepts made the law highly formalized, while with contract it would be much more flexible. Laskin wrote: "It is no longer sensible to pretend that a commercial lease, such as the one before the court, is simply a conveyance and not also a contract. It is equally untenable to persist in denying resort to the full armour of remedies ordinarily available to redress repudiation of covenants, merely because the covenants may be associated with an estate in land."19 The lawreform element was clearly shown when Laskin expressly overruled an earlier decision of the Ontario Court of Appeal that had been followed by the British Columbia Court of Appeal in the Highway Properties case. The case took seven and a half months for the decision to be rendered after the hearing, which, based on the time taken for the other cases heard in the same session, meant that it was one of the longer ones. Although he was so junior as a Supreme Court judge, yet Laskin was given his head, which speaks to the prestige that he brought to the court. However, it was curious that the decision was unanimous, and the silence of Martland and Ritchie was somewhat discomforting. What was to become Laskin's most famous law-reform decision, and a case that established him as a creative and activist judge, and which, regrettably for him, also helped to create the image of the "great dissenter," was Murdoch v. Murdoch, a matrimonial property case. Laskin was to become a "folkhero" in the eyes of many Canadians.

386 The Seventies and Law Reform MATRIMONIAL PROPERTY An issue that has been clearly identified with the rights of women within our society has been that of the rights of married women in the property owned by their husbands. At the time of the Murdoch case in 1973, the most significant reform that had occurred in the common law with regard to matrimonial property was the enactment of the Married Women's Property Acts in the late nineteenth century, by which married women were allowed to own property in their own right;20 prior to that time married women had been unable to own property separate from their husbands. The legal doctrine of unity of personality that existed provided in effect that husband and wife were one, and the "one" was the husband; under the law, married women had no separate personality. In the nineteenth-century reform, the emphasis was put on the legal title to property, with the spouses to be treated as strangers. Women who entered marriage with property, or with the financial resources with which to obtain property, benefitted but women who did not have wealth or who did not earn money with which to purchase property did not benefit at all from the reform. The attitude with respect to matrimonial property that dominated society can be imagined by thinking of property and strangers. The question would become: under what circumstances should a stranger be allowed by the law to acquire an interest in property owned by someone else? The answer would readily be: very rarely, if ever. The circumstances under which a stranger could acquire a property right would be when it was the intention of all concerned that such should be the case, and in the event of a dispute there would of course have to be some evidence of that intention. For husbands and wives, the normal evidence of intention was when both husband and wife contributed part of the purchase price of the property in question. Proof of legal title was made by showing into whose name the property was conveyed. Because of the unequal economic status of the husband and the wife, the law created two rules dealing with the purchase of property by one spouse and the possession of the legal title by the other. If the wife's money had been used to purchase the property and the title had been conveyed into the name of her husband, then the law provided that the husband held the property in trust for his wife. This was known as the presumption of resulting trust.21 The presumption could be rebutted by evidence from the husband that was believable that his wife had intended to make a gift of the property to him. The second rule was known as the presumption of advancement, and it arose when the husband provided the purchase money and the property that was purchased was conveyed into his wife's name. In that situation, the law provided that the passage of the property was to be treated as a gift by the husband to the wife. This presumption could also be rebutted by

387 The Captive Court thé husband by believable évidence that he had intended to keep a bénéficiai interest in thé property. By thèse rules, thé law did recognize in some small way a means by which a wife could obtain property rights, but unless her husband was willing to hâve property conveyed into his wife's name, she would hâve no opportunity to acquire any property interest without independent financial resources.22 Only if a wife had made a substantial and direct financial contribution to thé acquisition of property could she be able to lay claim to property owned by her husband. Within society property rights were held nearly sacred in thé law. The dominant attitude in thé Suprême Court with regard to property and thé family, that is, thé husband-and-wife relationship, could be seen in an early attempt to hâve thé judges reform thé law, which failed miserably. In 1949 thé Suprême Court of Canada had been faced with thé case of a wife living in thé matrimonial home with a child after her husband had moved out.23 The house had been purchased by thé husband, and thé ownership was in his name. Following thé divorce, he sought to recover possession of it. The judges of thé Suprême Court took thé position that except in thé case where a spécifie arrangement between thé man and woman could be established by which they were to share in thé home, thé person with thé légal title could without question hâve possession of it. In Kerwin's opinion thé law was clear, and Mr Justice Rand stated: "thé facts tend no doubt, to excite sympathy for thé wife and child, but we must resist thé danger of allowing it to outrun rules too well established to be disregarded."24 In thé early 1950s, thé right of a wife to occupy thé matrimonial home if she was deserted was created by thé English judge Alfred Denning. Her right in thé home was recognized as a possessory right, and although it did not aller thé husband's ownership, it did prevent him from exercising his ownership rights, such as obtaining possession. The wife was given authority to stay in thé house until ordered to leave by a judge. Her right to occupy thé home was said to flow from thé fact of marriage.25 In Denning's view, modem conditions required a new application of thé law. A related reform of thé law that was promoted by thé judiciary in England at about thé same time was thé view that if a wife had actually made some financial contribution to thé acquisition of any property, then she was entitled to at least a one-half share in that property.26 Due to thé attitude of thé légal profession to English cases in commonlaw Canada at thé time, thé 1950s, it was not surprising that Denning's opinion was followed virtually as a matter of course by thé Ontario Court of Appeal.27 The Suprême Court of Canada décision in 1949 in which thé clear and firm rules were accepted, was simply pushed aside, after perhaps a respectful mention.28 When thé time came for thé Canadian common-law courts to fall into line with thé law reform that was underway in England in

388 The Seventies and Law Reform thé early 1950s, a Suprême Court décision could not even slow thé process down. Based on thé impetus for reform created by Denning in England, thé Ontario courts went to thé language of section 12 of thé Married Women's Property Act,29 which read: "In any question between husband and wife as to thé title to or possession of property, either party ... may apply in a summary way to a judge of thé Suprême Court [of Ontario] or ... thé judge of thé county of district court ... and thé judge may make such order with respect to thé property in dispute ... as he thinks fit." The judges held that they had a discrétion that allowed them to reach a just décision with regard to matrimonial property in light of ail thé circumstances in each case. Although Denning's reforming zeal had been eagerly snatched up in Canada, without any independent assessment, thé House of Lords was somewhat less enthusiastic about his judicial law reform. In 1965 thé House of Lords saw fit to partially end thé reform dealing with possession of thé matrimonial home.30 The wife's right to thé matrimonial home was changed from thé property right that had been created by Denning to that of a personal right that would not prevent thé husband from dealing with his property rights. Canadian courts followed suit, once again, without any independent analysis of thé problem.31 The Suprême Court of Canada obtained another chance to deal with thé issue of family property in 1960. In Thompson v. Thompson after thé breakup of thé marriage a wife claimed thé family house and thé lot on which it sat.32 The judges looked for some évidence of thé intention of thé spouses, and Kerwin and Cartwright were able to feel satisfied from thé facts that it had been intended that thé wife should receive a share of thé property. However, a majority made up of three judges, Martland, Judson, and Ritchie, could find no such intention, and thé wife consequently failed in her attempt to receive any share in thé property. For thé majority judges, only some financial contribution would allow a wife to claim a proprietary interest. Unlike thé English cases, which had been followed by lower Canadian courts, thé majority judges were not prepared to allow a claim to a right in property to be made based simply on marriage and cohabitation. The majority, through thé judgment of Mr Justice Judson, also rejected thé use of judicial discrétion to deal with thé problem. The Ontario Court of Appeal in thé case had accepted thé law that had developed to accommodate thé judicial reforms initiated in England by which it was recognized that there did réside a discrétion in a judge to décide "as he thinks fit" whenever there was a dispute between a husband and a wife as to property. The Suprême Court clearly rejected this view and was of thé opinion that if there was to be a change in thé way in which thé law dealt with family property, it was to be accomplished by législation and not thé judges. So strongly did Martland, Judson, and Ritchie feel about this issue of judicial law reform

389 The Captive Court

that thé English judicial opinion of thé time that cases between husbands and wives should be approached with a différent attitude from property cases between actual strangers was expressly rejected.33 The Suprême Court, by a bare majority, affirmed thé strength of property rights, sustained a view of thé marriage relationship, and very importantly rejected any idea of judicial law reform. The three judges, ail appointed by a Conservative government, were having no part in thé disturbing of thé status quo. MURDOCH v. MURDOCH, 1973 After thé Murdochs, who ran a farming opération in Alberta, separated, Mrs Murdoch sought to obtain a half-share in some land that her husband had purchased some years before. The land had been used in thé farming business carried on by thé couple. At both thé trial and thé appeal to thé Appellate Division of thé Alberta Suprême Court, Mrs Murdoch failed. An appeal was taken to thé Suprême Court of Canada, but once again she failed.34 In Mrs Murdoch's failure to obtain a share of thé property lay thé catalyst for thé unprecedented législative law reform of thé late 1970s that was to revolutionize matrimonial property law. Before thé Suprême Court, Mrs Murdoch abandoned an argument that had been based on thé existence of a partnership between her husband and herself. Instead she drew on thé judicial reform that had been initiated in England twenty years before, and argued that her husband held a share of thé property in trust for her. In light of thé Thompson case of I960, this was a fairly dramatic and unusual attempt at law reform in thé Suprême Court. The lawyer for Mrs Murdoch relied on a 1971 décision of thé Alberta Appellate Division, Trueman v. Trueman, that had been decided two years earlier.35 The Alberta judges in Trueman had been prepared to allow a wife to acquire an interest in thé family farm based on her involvement in thé actual working of thé farm beyond what they perceived a homemaker would be expected to do. Naturally, thé judges took their lead in departing from strict propertylaw ideas from English cases, this time from two récent décisions of thé House of Lords that were based on what thé law lords saw as changes in thé home relating to thé rôle of wives, in that it was now common for women to work outside thé family home, and to contribute to a "family fund" which would be used to buy family property.36 The English judges had been prepared to reform thé law by creating a trust for thé wife in property ostensibly owned by thé husband. It was called a constructive or resulting trust. In thé Alberta case, Trueman, thé law reform that had been adopted from England was of course challenged by thé existence of thé 1960 Suprême Court of Canada case of Thompson, but typically thé Suprême Court's décision had been shunted aside and thé Alberta judges were satisfîed with thé

390 The Seventies and Law Reform

comment that nothing in thé cases from thé House of Lords appeared to be in conflict with thé Suprême Court décision.37 Judicial law reform in common-law Canada could appear to hâve a large élément of legerdemain to it. The Suprême Court in 1973 might hâve been expected to support thé Thompson case, especially since thé majority in Thompson, Martland, Judson, and Ritchie, were still very much in évidence and formed a majority on thé bench for Murdoch. The other two judges of thé five-judge bench were Laskin and Spence. This was thé same bench that had decided thé Highway Properties case with its law reform. The counsel for Mr Murdoch naturally argued that thé Trueman case had been wrongly decided because of its failure to follow thé Thompson décision. Thus, Thompson was being thrown up as a block to any reform of thé law in thé Suprême Court. The Suprême Court decided against Mrs Murdoch by a 4-1 margin. The majority of four judges was made up of Martland, Judson, Ritchie, and Spence; thé dissenting judge was Laskin. Martland rendered thé judgment of thé majority, and he went directly to Judson's judgment for thé majority of thé court in Thompson for thé opinion that judges had no discrétion in such a case, and also for thé applicable rule of law, namely, that "in thé absence of some fmancial contribution, thé wife is not entitled to a proprietary interest from thé mère fact of marriage and cohabitation and thé fact thé property in question is thé matrimonial home."38 The majority stayed firmly with thé approach that législation was needed for a change in thé law, and there should be no judicial law reform. The majority of thé court preferred, however, to keep thé Trueman case intact and were prepared to assume that it had been correctly decided on its facts. Thus, it was to be assumed that Mrs Trueman had made a substantial contribution towards thé acquisition of thé property. The conservative frarne of mind of thé judges shone through - no aspersions on thé légal System could be made by suggesting that thé Alberta appeal court had made a mistake in Trueman. The Trueman case was simply pushed aside as having been decided thé way it had been, presumably because of its particular facts. Perhaps more than anything else in thé case that displayed thé majority's basic view of thé problem were thé words that were to reverberate throughout thé country: Mrs Murdoch had not made a substantial contribution to thé obtaining of thé property; her work was "thé work donc by any ranch wife."39 When thé judges undertook a search for an intention of thé husband and wife, what they really sought was évidence that a "normal" marriage arrangement did not exist. In thé Murdoch case, facts played an important part, and there was a serious factual problem in thé case in that thé trial judge had found that Mr Murdoch had not accepted contributions from his wife toward thé purchase

391 The Captive Court price of thé property in question, and that thé husband had regarded money that he had used from a bank account that was in his wife's name as a loan from his mother-in-law, who had deposited thé money. Mr Justice Laskin differed from thé majority in that on thé facts he considered that Mrs Murdoch had made an extraordinary contribution to thé accumulation of assets. The case could hâve degenerated into purely a factual question, which would hâve called into question why thé Suprême Court was dealing with it at ail, although it should be noted that Laskin was prepared to accept labour as a contribution in addition to money, as long as it was labour that was "not simply housekeeping."40 On thé facts Laskin did find that Mrs Murdoch had made a substantial contribution in money. The main impact of Laskin's dissent was his overt statement of judicial law reform: No doubt, législative action may be thé better way to lay down policies and prescribe conditions under which and thé extent to which spouses should share in property acquired by either or both during marriage. But thé better way is not thé only way; and if thé exercise of a traditional jurisdiction by thé Courts can conduce to équitable sharing, it should not be withheld merely because difficulties in particular cases and thé making of distinctions may resuit in a slower and perhaps more painful évolution of principle.41 Laskin proceeded to adopt thé idea of a "constructive" trust, which he regarded as différent from thé resulting trust, which he said depended on thé intention of thé parties involved; thé constructive trust depended on what was thought to be just in thé circumstances, in thé opinion of a judge. The discretionary power had returned. On thé application of thé notion of a constructive trust, Laskin considered that Mrs Murdoch's physical labour on thé farm was such that it would hâve been unjust not to allow her to share in thé farm property. The réputation of thé Suprême Court was damaged in thé minds of many, while that of Laskin soared. The reaction to thé décision was so ferocious that within a few years, pressure on thé provincial governments to change thé law articulated by thé majority in Murdoch had created radical new reform législation. The case produced a sharpness in Laskin's judgment that was aimed at thé majority, and thé beginning of dissension on thé bench. Within three months Laskin was to be named chief justice, passing over thé other judges, and in particular Martland, who was thé senior judge. Thus, in thé public mind, Laskin's promotion would be viewed as an approval of judicial law reform and a rejection of thé approach of thé majority. The very function of a judge of thé final court of appeal was at issue.

392 The Seventies and Law Reform RATHWELL v. RATHWELL, 1978 Although législative reform of thé law was to overwhelm thé question of matrimonial property, yet judicial law reform continued with respect to thé introduction by Laskin of thé idea of thé constructive trust. In 1973 thé Suprême Court had decided that following a séparation, Mrs Murdoch was not entitled to a share in thé property of thé farm that she and her husband had operated. Five years later in 1978, thé court held by a bare 5-4 majority that Mrs Rathwell was entitled to a share in thé farm that she and her husband had worked.42 Dickson, for himself, Chief Justice Laskin, and Spence, wrote: "Many factors, légal and non-légal, hâve emerged to modify thé position of earlier days. Among thèse factors are a more enlightened attitude toward thé status of women, altered life-styles, dynamic socio-économie changes. Increasingly, thé work of a woman in thé management of thé home and rearing of thé children, as wife and mother, is recognized as an économie contribution to thé family unit."43 The point made by Dickson with thé référence to thé contribution of a wife was aimed at thé rule that was followed by thé majority in Murdoch, namely that a wife was not entitled to a proprietary interest in her husband's property from thé mère fact of marriage and cohabitation (which was thé case for thé Rathwells), and there must hâve been a financial contribution by thé wife. Dickson pointed out that he was dealing with an area of law that he termed judge-made law, and he said that he saw a long Une of cases with a lack of consistency between them; thus he was able to conclude that thé law was in an uncertain and unstable state. He acknowledged that there was a need for certainty in matrimonial property disputes, but for him it was not thé certainty based on a belief in firm rules that had so long ruled thé world of property law, but rather it was thé certainty of légal principles hedging in a judicial discrétion that was capable of redressing injustice and relieving oppression. Dickson saw a limit to judicial law reform in thé particular case in that he denied a power to create thé doctrine of family assets, which he said must be donc by thé législature. The common law as it existed in Canada had not recognized thé doctrine of community of property, and in his opinion, judges could not create it. The limit seen by Dickson was one of degree, rather than kind. The principle that Dickson accepted as governing in RathwellVas that thé law would not allow any person to unjustly appropriate to himself thé value earned by thé labours of others. With regard to thé Murdoch case, he said that "having recognized that thé Murdoch décision is distinguishable in various ways, I wish also to say this: to thé extent that Murdoch stands for thé proposition that a wife's labour cannot constitute a contribution in money's

393 The Captive Court worth and to thé extent that Murdoch stands in thé way of récognition of constructive trust as a powerful remédiai instrument for redress of injustice, I would not, with utmost respect, follow Murdoch^ The law-reform judgment of Dickson only gathered thé support of two of thé nine judges, Laskin and Spence, who participated in thé appeal. It is interesting to note that in 1978 it was Dickson who rendered thé judgment, rather than Laskin who had set thé lead in Murdoch. The majority of fîve who decided in favour of Mrs Rathwell was rounded out by Ritchie and Pigeon. In a judgment rendered by Ritchie, who it will be remembered was in thé majority in both Thompson and Murdoch^ it was decided that Mrs Rathwell could succeed in her action whereas Mrs Murdoch had failed because he could fmd évidence of an intention between thé spouses to treat thé farming opération as a joint venture. Proof of such an intention, he said, had been absent in Murdoch. The four dissenting judges, Martland, Judson, Beetz, and de Grandpré, in a judgment written by Mr Justice Martland, were of thé opinion that thé law itself was not in dispute, only its application to thé facts of thé case. They stuck by thé rule as applied in Murdoch, and then pointed out that thé law as created by Dickson, Laskin, and Spence was contrary to what had been established in Thompson and Murdoch. Martland reiterated thé opinion expressed by Judson in Thompson that législation was needed in order to create joint assets (as mentioned by Dickson), and, in his view, it was also needed for thé création of "an immeasurable judicial discrétion," which he saw as having been created by thé new rule articulated by Dickson. The four dissenting judges gave thé impression that they took no issue with thé merits of Mrs Rathwell's claim, nor probably with that of Mrs Murdoch, but to give redress to thé women's grievances would take thé court beyond thé compass of its authority as a court. As a général comment with respect to judicial creativity, Mr Justice Martland went to that old intellectual refuge - thé House of Lords, and quoted Lord Reid: We must first hâve in mind or décide how far it is proper for thé courts to go in adapting or adding to existing law. Whatever views may hâve prevailed in thé last century, I think that it is now widely recognised that it is proper for thé courts in appropriate cases to develop or adapt existing rules of thé common law to meet new conditions. I say in appropriate cases because I think we ought to recognize a différence between cases where we are dealing with 'lawyer's law' and cases where we are dealing with matters which directly affect thé lives and interests of large sections of thé community and which raise issues which are thé subject of public controversy and on which laymen are as well able to décide as are lawyers. On such matters it is not for thé courts to proceed on their view of public policy for that would be to encroach on thé province of Parliament.45

394 The Seventies and Law Reform Lord Reid had proceeded to state that a judge could not introduce a new concept into thé law, and must only develop existing principles. Martland concluded that to make an extension beyond thé scope of thé existing law should be determined as a matter of public policy by législation. In a law-reform case such as Rathwell in which changing social values are being recognized, it is to be expected as a général rule that a variety of judgments can occur, since within society there will be current thé new values, thé old values, and variants of both. The variations within society should corne through thé judges to thé extent that they form a microcosm of society. The variation among thé judgments will greatly affect thé precedential value of thé case and thereby aid (not hinder) thé future development of thé law as thé social values begin to stabilize. In Rathwell, six judges looked for a common intention of thé spouses to allow Mrs Rathwell to obtain her share of thé property. Four did not find any such intention, while two did. Dickson continued thé work of Laskin in Murdoch and denied thé need for a search for a common intention. The idea of thé constructive trust introduced by Laskin was to be used, and an assessment made of thé wife's contribution to thé acquisition of thé property, and in thé end thé judge would estimate what would be a fair and équitable distribution of thé value of thé property. The task undertaken by Dickson, Laskin, and Spence involved more complex thinking, while that of thé other judges had thé appearance of being simple and to an extent mechanical. Any move from captivity would defmitely not make thé life of a judge casier. The présence of Laskin, now aided by Spence and Dickson, and his willingness as a judge to respond to demands for change had exposed deeply held views with regard to thé rôle of thé judiciary and thé légal process. The one judge of five in Murdoch in faveur of reform became three judges of nine in Rathwell, a grass roots effect then set in, and lower court judges went to Dickson's judgment for a statement of thé law,46 and académies focused on his judgment for their analysis.47 The reform process was not yet finished. PETTKUS v. BECKER, 1980 In Pettkus v. Becker thé question of thé constructive trust again appeared before thé court — thé resuit this time was six judges in faveur and three against. The parties had maintained a common-law relationship for over thirteen years, and had established and operated a bee-keeping business. The litigation was undertaken by Rosa Becker to claim a share of thé assets of thé business after she and Pettkus had separated for a last time. The trial judge allowed her a share but only awarded her a number of hives and $1500. The Ontario Court of Appeal allowed Rosa Becker's appeal and awarded her half

395 The Captive Court of thé assets of thé business, which amounted to $150,000. The Suprême Court of Canada affirmed thé décision of thé Court of Appeal.48 The full bench of nine judges was unanimous in dismissing thé appeal, but three judgments were written. Dickson wrote thé majority judgment for himself and five other judges, which included Laskin, and four new appointées. Ritchie and Martland also wrote judgments, with Beetz concurring with Martland. Martland also expressed a concurrence with Ritchie. Dickson used thé appeal as an opportunity for thé court to clarify thé law. This time thé constructive trust was given thé blessing of a solid majority and settled into thé law. Ritchie continued to employ thé search for a common intention, which thé majority rejected as involving too many difficulties, and being a "phantom intent," an artifïcial thing.49 Martland, with Beetz concurring, lashed out in his judgment at thé majority judges for creating "judicial législation," that most péjorative of terms for describing judicial misbehaviour. There was in thé case a clear sign that an escape from captivity was under way when a solid majority was prepared to indicate a willingness to create law; in Dickson's words "to shape ... principles so as to accommodate thé changing needs and mores of society, in order to achieve justice."50 THORSON v. ATTORNEY GENERAL OF CANADA, 1974 In thé period of escape from captivity of thé first half of thé 1970s one of thé more dramatic law reform décisions was Thorson v. Attorney General of Canada, This case was highly informative as to how thé judges of thé Suprême Court viewed their law-making or law-reform rôle, and produced one of thé most "active" décisions in thé history of thé court, but as it was also one of thé earliest overt reform cases, there occurred a masking of thé reform, and consequently there were no cries of "judicial législation." The court was clearly led by Laskin (who was on thé verge of becoming chief justice). In thé Thorson case a rule was overturned that had previously been unimpeached.51 The rule that existed before thé Thorson décision was that in order for a person to challenge thé constitutional validity of a statute in thé courts, that person must hâve "standing," which meant that thé challenger of thé validity of a law had to show that he was "specially affected or exceptionally prejudiced" by thé particular law. So settled was thé rule thought to be, that thé Ontario Court of Appeal in Thorson rendered a brief oral judgment denying Thorson thé right to hâve thé case heard, and did not consider it necessary to hear counsel for thé other side. The meaning of thé words "specially affected or exceptionally prejudiced" that determined whether a person could use thé légal process in an attempt to

396 The Seventies and Law Reform render a law invalid had become understood to mean whether thé person had suffered any hardship under thé law in question or had been adversely affected by it. The issue behind thé case was probably born in 1759 on thé Plains of Abraham and fuelled over a century later by thé Equal Rights Association and D'Alton McCarthy. Thorson was challenging thé création of a bilingual Canada. The notion of a bilingual Canada in thé 1970s stirred thé same strong émotions that had surfaced with a vengeance in Manitoba in 1890. One individual that felt deeply that there should be one Canada where ail would be treated equally, that is use English as an officiai language, was Joseph Thorarinn Thorson. In addition to having deep feelings about thé matter, he also had thé resources and thé political background to attempt to do something about it. Thorson, who was over eighty years of âge and of Icelandic background, was from Manitoba. He would hâve been among thé first students who would hâve gone to school in thé newly created unilingual and non-denominational school System that had been created in Manitoba amidst thé cry of equal rights for ail. Since his ethnie background was neither British nor French, thé acceptance of thé French language as an officiai part of Canada was not readily conceded. A lawyer, he had been a Libéral member of Parliament and minister of national war services for just over a year in thé King government (June 1941-October 1942). He left thé government to become a judge of thé Exchequer Court, and retired over twenty years later in 1964. His antagonism to recognizing French officially within thé country, other than within Québec whose séparation he seemed more than eager to accept, caused him to take open opposition to thé Officiai Languages Act." Politicaily, thé government of Pierre Trudeau was not movable, and thé Act passed in 1969, under which French and English were made thé officiai languages for matters within fédéral jurisdiction, with access to fédéral services to be provided in both languages in certain bilingual districts. Thorson had formed an organization called thé Single Canada League in 1969, somewhat reminiscent in spirit of thé Equal Rights Association of 1889. He was joined in his fight against accepting French as part of thé Canadian fabric by Léonard Jones, thé mayor of Moncton, New Brunswick, and from east and west thé battle against thé Officiai Languages Act entered thé légal process. The question of thé validity of thé Officiai Languages Acts of both Canada and thé province of New Brunswick was referred to thé courts by thé lieutenant governor of New Brunswick. The issue that precipitated thé référence case was thé question of thé conducting of trials in French. As mayor of Moncton, Jones had objected to a request for a trial in French for a Moncton university student who had been charged with loitering on thé mayor's

397 The Captive Court property. The student had thé right to a trial in French under New Brunswick law. Jones was joined as a party in thé référence. Unlike Jones who was made part of thé case, Thorson ran headlong into thé rule that he needed standing, and he was required to show that he individually had been adversely affected by thé law. Knowing that he had not been so affected, Thorson, who argued his own case, based his ability to challenge thé law on an 1908 décision of thé Suprême Court that had allowed a taxpayer of thé city of Halifax to bring an action against thé municipality when thé legality of actions by thé city that had involved thé expenditure of public money was questioned. Thorson's position was simply that as a taxpayer of Canada, he too could bring an action to challenge thé legality of thé Officiai Languages Act under which Ottawa was spending taxpayers' money. Only thé fédéral government offered argument against Thorson.53 In thé Ontario courts, Thorson was given no hint of any possible success in being able to continue his action within thé légal sphère.54 This would hâve put him back into thé political arena, which was hopeless, but there was thé Jones case. The case from New Brunswick had arrived in thé Suprême Court ahead of Thorson, but it had been postponed due to thé illness of Léonard Jones. The first sign that something was about to take place appeared when Thorson was granted permission by thé Suprême Court to hâve thé standing issue heard. Based on thé existing law, there would hâve appeared to hâve been nothing to hear unless thé law was to be changed, and at thé time thé conventional wisdom was that this was not thé rôle of thé court. After Thorson had filed his appeal to thé Suprême Court, a motion had been brought by Ottawa to quash it due to lack of jurisdiction by thé court. This motion was heard by five judges and dismissed. A motion for leave to appeal made by Thorson was granted.55 The judges were Martland, Judson, Ritchie, Hall, and Spence. Although Thorson was able to point to thé 1908 case in which a municipal taxpayer had been allowed to bring an action against thé city, there were other cases to be considered: Smith v. Attorney General of Ontario, in which thé Suprême Court had declined to apply thé older case to a case involving constitutional challenges,56 and Saumur v. Attorney General of Québec, in which thé full bench of nine judges had been unanimous that in order to challenge thé constitutional validity of a statute thé person bringing thé action had to show that personal hardship had been suffered due to thé law.57 When thé Suprême Court granted leave in 1972 it must hâve struck anyone familiar with thé area of law involved as very curious. The five judges who had heard thé application for leave to appeal had ail been on thé bench in Saumur. The Thorson case came on for hearing before thé rull bench in June 1973 and on 22 January 1974, thé décision of thé court was rendered. Thorson's

398 The Seventies and Law Reform appeal was allowed, thé old rule had been abandoned, and thé court established a new rule for thé future. This astonishing display of creativity produced a split décision. Six judges, led by Mr Justice Laskin, made up thé majority, while three judges dissented. At thé time thé judgment was rendered, Laskin had been chief justice for less than a month. For those judges and lawyers who favoured thé traditional, passive approach of thé Suprême Court, thé case heralded unpleasant things to corne. Fauteux and Abbott were two of thé dissenting judges, who favoured a non-reform rôle, and they had resigned just before thé décision was made public, propelling Laskin into thé position of chief justice to replace Fauteux. The dissenting judges - Fauteux, Abbott, and Judson - in a judgment written by Judson, simply applied thé existing law and came to thé unmistakable conclusion that Thorson could not bring thé action. Laskin, for thé majority, rejected thé requirement that a person should hâve to be specially affected or exceptronally prejudiced in order to hâve standing in a case where a déclaration of constitutional validity was being sought. The reason for this conclusion was that Laskin identified thé issue as being whether, as a matter of principle, a statute should be immunized from judicial review by thé déniai of standing. It was a case of recognizing that thé political process was not available as a practical matter in thé instant case and thus either thé judiciary was to step in or thé law was to be left to take its course. Laskin opted clearly for thé involvement of thé judiciary based on what he stated to be thé principle that there is a right of every citizen to hâve parliament act within thé boundaries of thé constitution. Laskin presented a new view of Canada's constitution. Gone was DufPs articulation from thé 1928 Persans case that Parliament was suprême, with thé written constitution, thé British North America Act, as an exception. The written constitution was now suprême, and thé judges had through necessity assumed thé rôle of upholding that constitution. A rationale behind thé rule as it had existed prior to thé Thorson case was thé fear of a flood of actions if thé rule were changed. As had been stated by Idington in Smith in 1924, thé granting of standing would force "assent to such like requests on any point of law puzzling any private citizen on any question."58 The attitude of thé judges in 1924 was made unmistakably clear by Duffwhen he noted that référence cases were available to thé government, but if thé government declined to act there was nothing thé judges could do. There was to be no "citizen's référence."59 Laskin did establish a "citizen's référence" and thé concern with a flood of cases was met by thé same show of confidence and action that had destroyed thé old rule, namely thé judges would keep it under control by thé exercise of a discrétion. Thus, thé ability of thé new-found power of thé citizenry was subject to judicial approval. That approval was, according to Laskin, to be based on a number of considérations: first, was thé issue justiciable, that is, was it a political or a légal

399 The Captive Court question. A légal question would involve a question of thé validity of law. Second, he suggested looking at thé nature of thé law being challenged. If thé law was regulatory in that a person was being regulated, then it would be easy to ask if thé person bringing thé légal challenge to thé law fell within thé group being affected. It might be possible to bring in thé notion of remoteness of thé affect. It was on this point that Laskin was able to push Smith out of sight. In thé Smith case, a company in Montréal had refused to ship to Smith in Ontario some liquor that he had ordered. The company maintained that it could not legally ship thé liquor since there was a law establishing prohibition. Smith sought a déclaration that thé law was not in force. Laskin simply commented that thé décision to refuse Smith standing may hâve been due to what thé judges at thé time saw as too remote an affect.60 Laskin also identified some législation as being by its nature declaratory and directory, which covered thé statute that was being challenged by Thorson. In such a case, when no one would be specially affected, as those words were understood, then any taxpayer could bring an action for a déclaration of invalidity, subject to judicial approval. Curiously in none of thé judgments was there any mention of thé unanimous décision of thé court in Saumur v. Attorney General of Québec in 1964. It becomes even more curious when thé only mention of thé case in thé fédéral government's factum was a référence to thé décision of thé Québec Queen's Bench for thé proposition that "an action against thé Attorney General for a déclaration that a statute is invalid does not lie at thé instance of a person not specially affected by it."61 It is astonishing and extremely disturbing, to say thé least, that thé Suprême Court's décision was ignored, and as a resuit ît must hover like a dark cloud over this dramatic illustration of judicial creativity.62 The Thorson case was never heard on its merits since in Jones v. Attorney General ofNew Brunswick, thé Suprême Court decided unanimously that thé Officiai Languages Act was valid.63 Thorson did however hâve thé opportunity to be heard personally since he acted as counsel for Jones in thé New Brunswick case. In February of 1973 thé English Court of Appeal, led by Lord Denning, had held that an individual could bring an action for a déclaration to enforce thé law if thé person could show a sufficient interest, and there appeared to be no other remedy reasonably available.64 Laskin referred to thé English case in his judgment in passing, and although it may hâve provided moral support, it appeared to hâve no other function. Bora Laskin was leading an assault on thé captivity that he had identified twenty years before. There was, however, a solid core of judges who wanted no part of any show of creativity, and thus serious problems were certain to arise.

29 Tensions within thé Court

In thé person of Ivan Rand, thé Suprême Court and thé légal profession had been exposed to thoughts that would establish a créative court - a thinking court. However, Rand's creativeness was mainly limited to thé public-law area, and he appeared to be in thé mould of thé other judges in thé traditional areas of private law. Rand could be said to hâve sneaked up on thé profession, since, from his appointment in 1943 until thé end of thé Privy Council appeal, he was relatively restrained, although there had been signs of something différent.1 When his créative nature broke through in thé 1950s thé général reaction was one of disbelief. As late as 1974 an article written by Gerald Le Dain, then dean of Law at Osgoode Hall Law School and later to be a judge of thé Suprême Court, could still présent Duff as "one of Canada's greatest judges," and possibly "thé greatest," but thé author felt compelled to point out that there were also those who would single out Rand for that honour. Rand had intruded on thé myth surrounding Duff, but not that much. Le Dain was writing at thé time that Bora Laskin had become chief justice. Since Duff was still thé judicial model for Le Dain, a prominent académie, it could be predicted that others within thé profession would hâve thé same view and that tensions would be released within thé court and thé profession when that model was challenged by Laskin. But whereas Rand's creativity had appeared from within thé System when he was already a judge, Laskin's views were well known before he joined thé court. When he was made chief justice, it was as if he had been given a mandate to impose his views of thé function of thé judges of thé Suprême Court on thé institution. For thé first time, thé press became interested, and thé comfortable anonymity surrounding thé court was stripped away. A considérable source of tension was thé fact that Laskin had been an académie, and thé Ontario bar could recall thé rébellion of 1949 at Osgoode Hall. At that time, thé légal profession had rejected his views of law, lawyers, and éducation, and now, a quarter of a century later, he was chief justice of

401 The Captive Court

Canada. Nor had Laskin himself forgotten that earlier struggle. In 1971, in a letter written to Chitty's Law Journal on thé occasion of thé death of R.M.W. Chitty, a bencher of thé Law Society who had adopted thé rôle of thé spokesman of thé "practical" lawyer,2 Laskin re-opened thé issue of thé 1949 teachers' walkout at Osgoode Hall. He described Chitty's view of law as that of studying it analytically, purporting to find its philosophy and its principles of growth mainly in thé décisions of thé courts and in thé words used by thé judges to convey those décisions. Laskin described 1957 as thé year of thé révolution in légal éducation, when in Ontario university law faculties were allowed to compete on equal terms with thé Law Society's law school. Laskin pointed out that Chitty had been so opposed to an académie orientation to légal éducation that he had stated publicly on thé radio that Osgoode Hall was not an educational institution.9 When he was named chief justice, he passed over five judges - Martland, Judson, Ritchie, Spence, and Pigeon. With thé exception of Spence, thé other judges were of thé old school and very conservative in their view of what thé judges should openly do with respect to their décision making. The court was now being called "The Laskin Court." There had to be trouble. As an additional factor, Laskin had been engaged in thé study of labour law over thé years, appeared to faveur employée rights, and had taken thé side of labour boards with respect to judicial intervention. The corporate-commercial image of thé court was dented. Laskin had replaced Gerald Fauteux, who had been chief justice from March 1970 until December 1973. In February 1973, Emmett Hall resigned, and thé vacancy was fi lied by Brian Dickson from Manitoba. Dickson had been a judge in Manitoba for ten years — four years as a trial judge, and six years on thé Court of Appeal of thé province. His expérience in thé practice of law had been in thé corporate area, which on thé surface would seem to hâve conditioned him to view thé légal process in a way that would not be compatible with Laskin's views. However, when he did occasionally join with Laskin, thé press, who was on thé look out for stories that would appeal to thé public, adopted thé expression "thé L.S.D. connection" for Laskin, Spence and Dickson, in an attempt to create "newsworthy" items. Spence had defînitely aligned himself with thé new chief justice. The most dramatic events of thé Fauteux years were thé sudden and unexpected résignations of Fauteux and Douglas Abbott. Fauteux left thé court two years before he was due to retire, and Abbott, six months ahead of time. At thé time of thèse sudden résignations, there occurred a démonstration that tensions were high among thé judges. Internai problems were prominently displayed by thé events surrounding thé décision in thé case of Kienapple v. The Queen. Not since thé disarray illustrated by thé conflicting décisions in 1895 in thé Local Prohibition référence and thé Huson case had thé judges so disregarded institutional integrity.

402 Tensions within thé Court KIENAPPLE v. THE QUEEN, 1974 In Kienapple, thé Suprême Court formulated a new defence in criminal cases. The law reform occurred by thé barest of margins, with thé judicial votes being 5—4. In thé process of this exercise in judicial activism and creativity, disarray within thé court was manifested, and Fauteux and Abbott resigned. The accused, Kienapple, had been charged with râpe and with having sexual intercourse with a female under fourteen years of âge.4 He was found guilty of both ofFences and sentenced to two concurrent terms of ten years imprisonment. The Ontario Court of Appeal affirmed thé convictions, and Kienapple sought leave to appeal to thé Suprême Court of Canada. The Suprême Court, represented by thé panel of judges consisting of Judson, Spence, and Laskin, granted leave to appeal on a spécifie question: "[wjhether thé accused, having been convicted of râpe, should in respect of thé same single act hâve also been convicted of sexual intercourse with a female under thé âge of fourteen, not being his wife." The issue raised by thé question had not been raised in thé courts below. By thé 5—4 décision, thé court decided that Kienapple could not be convicted of both râpe and having sexual intercourse with a female under fourteen years of âge.5 Laskin rendered thé judgment for thé majority, which included Judson, Spence, Pigeon, and Dickson. He articulated a new defence in criminal law that was called res judicata and that precluded an accused from being convicted for two or more ofFences based on thé same set of facts. The new defence was based on thé rationale that there should not be multiple convictions for thé same injury against thé same person and was said by Laskin to hâve had a long history in thé law. He referred to a sixteenthcentury case in which thé maxim of thé law, "no man ought to be punished twice for thé same ofFence," was articulated. Laskin pointed out that although thé maxim had been stated in terms of double punishment, it should be understood as also directed against double or multiple convictions.6 In thé process of this law making, Laskin maintained that his suggested meaning of thé maxim was exemplified by a 1963 décision of thé Suprême Court that had been unanimous.7 Thus he was able to provide a traditional justification for his conclusion; his law making was somewhat muted, and his conclusion legitimized. In thé 1963 case, Cartwright for thé court had discussed a rule that prevented an accused from being punished more than once for thé same ofFence, but Laskin said that thé word "ofFence" was being used by Cartwright in thé sensé of "same matter." Behind his law making was Laskin's acceptance and use of "thé Court's power to protect an individual from an undue exercise by thé Crown of its power to prosecute and punish."8 Ritchie rendered thé judgment for thé four dissenting judges, who included Chief Justice Fauteux, Abbott, and Martland. Ritchie's tendency in

403 The Captive Court his judgments to state conclusions and not reasoning was amply illustrated by thé one that he wrote in Kienapple. He seemed to hâve been affected by thé fact that a child had been thé victim of thé râpe and that this fact would justify thé second oflfence. In général, there was for him no principle in thé law that a person could not be convicted more than once for thé same act. Fauteux not only dissented for thé reasons given by Ritchie, but also for thé reasons that he himself had given in another case, Doré v. Attorney General of Canada? Martland agreed with Ritchie, but added a sharp criticism of thé granting of leave in thé case by Judson, Spence, and Laskin. It bothered Martland that thé issue had never been raised in thé lower courts, and even if thé accused should win (which he did), there would be no practical effect since he was still subject to thé sentence for râpe. Martland called thé appeal "an académie exercise."10 Open conflict had erupted. Fauteux had applied his own judgment in thé Doré case, and it was with regard to this case that thé judges were thrown into turmoil, and an embarrassing situation. In thé Doré litigation thé accused, an employée of thé Canadian Broadcasting Corporation, had been charged with accepting money from people who were doing business with thé corporation. He was acquitted at thé trial but thé Québec appeal court had reversed thé acquittai on six counts. He appealed as of right to thé Suprême Court. The appeal was heard on 25 October 1972 by a bench composed of five judges: Chief Justice Fauteux, Abbott, Martland, Ritchie, and Pigeon. Slightly less than a month after thé hearing of thé appeal in Doré, thé application for leave to appeal was made in thé Kienapple case, and after a lengthy wait, thé application for leave was granted." On 15 October 1973, thé appeal in thé Kienapple case was heard by thé full bench of nine judges. Judgment in thé Doré case was still reserved at that time, a year after thé appeal had been heard. Events were happening behind thé scène. On 22 December 1973, Chief Justice Fauteux and Mr Justice Abbott both resigned, and Laskin was made chief justice. The judgments in Kienapple and Dorév/ere rendered on thé same day, 12 February 1974. Laskin was now chief justice and his créative law-making style was clearly apparent, but to mar his work was thé fact that thé Doré décision, by a 3—2 margin, reached a différent resuit than Kienapple. For thé second time in its history, thé Suprême Court had rendered contradictory décisions at thé same time. The disarray of thé 1890s that had swirled around thé court due to thé personalities of thé judges was being recreated. Fauteux rendered thé Doré judgment for thé majority of three judges (Abbott and Ritchie concurred), and he simply stated that he did not accept thé point that convictions for two offences from thé same act meant that an accused was being punished twice for thé same offence. Pigeon and Martland dissented. Pigeon followed thé Kienapple décision as a binding authority, and

404 Tensions within thé Court Martland, although he agreed with Fauteux on thé merits of thé case, felt that he too was bound by Kienapple. Fauteux stated that he had become aware of thé décision by thé dissenting judges to use thé Kienapple décision as a binding authority after he had written his judgment. He said that he therefore felt obligated to deal with thé case. He said that he was able to distinguish it and to keep with his original décision by dealing exclusively with thé facts of thé particular cases, and he restricted thé décision in Kienapple to a case of a charge of râpe and sex with a girl under fourteen years of âge. He refused to draw a rule or principle of law from Kienapple. The saga continued on 29 April 1974 when a bench consisting of Chief Justice Laskin, and Justices Martland, Judson, Spence, and Dickson, ordered a rehearing in Doré.n The new hearing was held before thé new full bench with Laskin as thé new chief justice. The positions on thé court made vacant by thé résignations of Fauteux and Abbott had been filled by thé appointments of Jean Beetz and Louis-Philippe de Grandpré. The Libéral government of Pierre Trudeau appeared to be trying to pacify both of thé combatting éléments within thé profession by appointing an académie, Beetz, who had been dean of law at thé University of Montréal, and de Grandpré, who had been thé président of thé Canadian Bar Association. The décision, rendered on 28 June 1974 was unanimous (9—0), thé new Kienapple rule was applied, and thé first décision in Doré overturned. The conclusion was reached that there had been multiple convictions for thé same matter.13 Laskin rendered thé judgment for himself and seven other judges. Ritchie, thé only judge that remained from thé majority in Doré divorced himself from thé rest of thé judges and asserted that he had not changed his view of thé law, but since thé attorney général of Canada had conceded at thé rehearing that thé Kienapple case applied, he was consequently prepared to agrée with thé resuit of thé majority. In thé struggle for control of thé soûl of thé court Laskin had won this battle, but it had been messy. Luckily this time thé astonishing conflict of thé décisions of thé court was allowed by thé press and thé légal académies (as critics) to pass quietly into history without comment and without public awareness. Unfortunately it would not be long before thé tensions within thé court would produce clear signs that thé institution was cracking. THE LEAVE TO APPEAL JURISDICTION At thé beginning of 1975 thé Suprême Court was given thé authority to sélect thé appeals in civil cases that it would hear and décide, and a new stage in thé existence of thé court had been reached.14 The amendment to thé law stated that an appeal would lie to thé Suprême Court from a provincial court

405 The Captive Court of appeal if "thé Suprême Court is of thé opinion that any question involved ... is, by reason if its public importance or thé importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by thé Suprême Court or is, for any other reason, of such a nature or significance as to warrant décision by it."15 Chief Justice Laskin used thé occasion of this change in thé court's jurisdiction to announce that "thé Court's status as Canada's ultimate appellate Court" was finally sealed.16 For Laskin thé new jurisdiction was a symbol that thé court had finally achieved its true nature as a final court of appeal, which for him meant that it had unquestionably a law-making rôle. He had written a quarter of a century earlier that only if thé court had ultimate judicial authority could it be perceived as a potent élément in Canadian government.17 It was possible to picture thé 1975 amendment to thé jurisdiction of thé court as of thé same magnitude of importance to thé existence of thé court as thé 1949 abolition of thé appeal to thé Privy Council.18 There had been no political controversy concerning thé création of thé leave jurisdiction, and thé debate in Parliament was uneventful.19 In thé législature thé problem that was being addressed was not that of enhancing or changing thé rôle of thé court as a final court of appeal, but of simply supplying a remedy for what was perceived to be too gréât a workload for thé court. Specifically, thé purpose of thé législation was to implement thé recommendations of a spécial committee of thé Canadian Bar Association.20 For most of its existence up to this time, virtually no concern had been expressed about thé court having too much work, but by thé late 1960s this had begun to be mentioned.21 The alleged problem had engaged thé attention of thé then minister of justice, John Turner, who had made his views known when he introduced a bill in 1970 by which appeals as of right in civil cases based on questions of fact would be prohibited.22 The problem of workload at this time was actually related by thé minister of justice to thé rôle of thé court. The Suprême Court was to be allowed to deal with matters involving thé constitution, and those that had fédéral and provincial statutory impact and légal importance. Cases involving routine common-law and civil-law adjudication were to be eliminated. Turner also introduced a second bill in 1970 that had as one of its purposes thé réduction of thé workload of thé court.23 He again tied thé workload réduction to a particular rôle for thé court, and he stated that he saw thé court as becoming a more créative court, dealing with questions of law, thé constitution, and public administrative law. At thé beginning of 1972, it was reported that thé minister of justice was continuing his assault on thé workload of thé court, this time by considering législation that would completely end civil appeals as of right. Thèse civil cases were thought to be too unimportant for thé court to consider, and they

406 Tensions within thé Court were slowing it down and clogging its docket. Before bringing in such a law, thé minister approached thé Canadian Bar Association to hâve it study thé problem of thé work of thé court, with thé resuit that a committee was established by thé association, which presented its report to thé government in 1973.24 The recommendations contained in thé report formed thé basis for thé législation that finally created thé jurisdiction by leave of thé court for civil cases in 1975. The committee was chaired by BJ. MacKinnon of Ontario, who had strongly attacked thé quality of thé court's work at thé 1970 annual meeting of thé Canadian Bar Association; at thé time he had placed thé blâme for what he had perceived to be thé judges' shoddy performance on too gréât a workload. . Although thé court's rôle would hâve seemed to hâve been a key aspect of any discussion of workload, as demonstrated by thé comments of thé minister of justice when introducing earlier législation that affected thé work of thé court, yet thé Canadian Bar Association's caseload committee seemed to hâve thé thought that it could deal with thé workload question in thé abstract, and not address itself to thé question of workload and thé rôle that thé court was to assume. In its report, thé committee stated that it was concerned solely with thé problem of case overload, and not with "several political, constitutional, cultural and légal issues."25 To thé extent that this statement covers a concern with thé function or rôle of thé court, then thé committee was attempting to avoid thé unavoidable. Chief Justice Laskin, on thé other hand, used thé occasion of thé altération of thé jurisdiction of thé court to urge his views of thé proper rôle of thé court. For him thé création of thé jurisdiction by leave had caused thé court's function of appellate review — that of thé rôle of simply being another appeal court to correct errors in thé application of law - to be replaced by what he called thé rôle of exercising "supervisory control," by which he meant thé overseeing of thé process of judicial law making.26 In light of thé légal profession's avoidance in thé workload committee report of any mention of a change in thé rôle of thé court, such open assertions of a law-making function must hâve caused quivers in some people. A reaction soon set in against an active rôle for thé court and it is of interest to note that, although in an 1980 interview, Laskin could still talk in terms of thé emphasis for thé court being on légal development, meaning thé adapting of thé law to meet changing social conditions, yet by then something had changed.27 By thé late 1970s it appears that Laskin had begun to perceive thé law making that he contemplated to be of a limited nature. He pointed out that thé judges were engaged in a. judicial rather than a political, executive, or administrative function.28 He went on to explain this point by saying that thé rôle of thé court was essentially adjudicative, although there was naturally a législative élément in thé work performed. Since words could

407 The Captive Court hâve a wide range of meanings, thé judges were required to interpret thé words of thé law as laid down in statutes created by thé législature. As thé judges gave a meaning to a word and applied it to thé facts of a particular case, or when a previous case was distinguished or a proposition laid down in a previous case was held not to apply to thé case before thé court, then, in thé words of thé chief justice: "We are obviously moving some parts of thé process, and if you want to call that a législative or quasi-législative function, it doesn't frighten me a bit."29 The use of thé word "législative," was of course scary for many within thé légal System, but it was only a word. Laskin was essentially describing a nonlaw-making function. It was nothing more than adjudication that he was describing at this time, but he had said a few years before that thé function of thé court would be supervisory, meaning law-making. Between thé making of thé two statements there had been five crucial years for Laskin — from thé beginning of 1975 when he was riding thé high of leading thé court in its new activism, to thé late 1970s and early 1980s when he had been relegated to a dissenting rôle. One talked-about change that was less controversial than thé création of a supervisory rôle was that after thé 1975 amendment to thé jurisdiction of thé court, it was common to hear emphasis being made of thé public-law nature of thé court.30 Dickson, Laskin's successor as chief justice of Canada, went a step further and was prepared to view thé 1975 création of thé leave jurisdiction as having transformed thé court into a forum for debate on matters of public interest.31 The public-law orientation would cover not only constitutional-law cases, but also administrative- and criminal-law cases. Eliminated would be cases in thé areas of private law such as contracts, wills, and damages. WHEN LASKIN was made Chief Justice, he began to use thé full bench for thé hearing of ail appeals. The court had been basically one consisting of a fivejudge panel, with seven and nine judges occasionally sitting. Under Laskin it became momentarily a court with only one panel, that is, ail of thé judges.32 When thé décision was made to use thé full bench, thé possibility of only eight judges being présent must hâve been considered, that could resuit in a 4—4 split. Such a situation would hâve put pressure on thé judges to reach an institutional décision. Equal divisions were hardly rare in thé court's history, but by 1973 they were no longer considered acceptable. When thé judges were faced with thé possibility of an equal division, they proved unable to reach an accommodation and to achieve an institutional response, with thé resuit that thé court's public image and that of its chief justice suffered from thé bad publicity.

408 Tensions within thé Court HILL v. THE QUEEN, 1975 Unfortunately Hill's appeal was heard by eight judges. Ritchie did not sit. The image of thé institution was tarnished by thé resuit, which was that thé appeal was dismissed because thé judges split evenly.33 The accused, Hill, had pleaded guilty to charges of râpe and causing bodily harm. He was sentenced to twelve years imprisonment concurrent. He launched an appeal of thé sentence to thé Ontario Court of Appeal and it was increased to one of life imprisonment, even though thé prosecution had not lodged a cross-appeal with regard to thé length of sentence. What thé public saw was a case in which a person had been sentenced to thé maximum of life imprisonment and thé sentence was to stand although half of thé judges of thé highest court thought otherwise. In thé event of a tie, thé rule was well established that thé appellant, who in this case was Hill, lost, but on thé facts this did not sit well with thé press. The Toronto Globe and Mail reported: "The Suprême Court of Canada deadlocked first time," and that an unprecedented predicament had arisen.34 The two issues raised in this unusual case were first, thé power of an appellate court to increase thé sentence imposed upon an accused at thé trial when thé accused has appealed thé sentence and thé prosecution has not lodged a cross-appeal; and second, an issue that directly raised a law-reform issue, whether thé court should reconsider a previous décision concerning whether it had thé jurisdiction to hear thé appeal of thé accused from thé action of thé appellate court. On thé jurisdiction question, a 1959 décision, Goldhar v. The Queen, had stood in thé way of thé accused. In that case a majority (4-1) had held that thé court did not hâve jurisdiction to hear an appeal against sentence imposed for thé commission of an indictable offence.35 Although thé judges were badly split on thé substantive issue, they were unanimous on thé jurisdiction issue, and Goldhar was overruled. The basis for thé overruling was that it was said that Goldhar had departed from previous décisions of thé court which were not referred to by thé judges in 1959. Thus Pigeon, in a judgment concurred in by Martland, Judson, and de Grandpré, could conclude: "[Tjhis means that on any view of thé rule of stare decisis thé Court has to choose between thé two conflicting views." Goldhar had been followed by thé court in three subséquent cases, while there existed three décisions decided prior to Goldhar that were conflicting. Pigeon opted to follow thé cases prior to Goldhar based on his reading of thé words of thé statute, with thé resuit that he concluded that thé judges in Goldhar had simply got it wrong. While Chief Justice Laskin agreed with thé resuit, he took objection to Pigeon's reasons for overruling Goldhar. He found thé adoption of a literal approach by Pigeon unsatisfactory. Regarding thé various approaches that one

409 The Captive Court

could take in reading thé words he commented: "[T]he relevant question is surely that of determining why one approach is selected rather than another, involving therefore a considération of thé factors that bear on thé sélection." Laskin thought that thé canon of construction selected mattered little; rather, what counted was thé détermination of thé purpose or policy of thé law, which, Laskin said, was what occurred anyway when thé so-called canons were applied. Since reasonable people could diflfer with regard to thé effect of thé language, therefore thé literal approach would create variations depending on thé judge. The conclusion that thé court reached would be influenced by thé judges' view of what thé court's jurisdiction and rôle should be. For thé chief justice, his approach was that he would not exclude cases from thé leave jurisdiction unless it was quite plain that they had been excluded by thé words used in thé statute, and in thé circumstances this was not thé case, and therefore thé appeal could be heard. He repeated thé point about thé artificiality of thé so-called literal approach when dealing with thé substantive issue. He pointed out that thé Ontario Court of Appeal had taken thé literal approach and reached one resuit, while Spence also took thé literal approach and reached an opposite resuit. In his reasons for judgment, Laskin took thé opportunity to lay bare other points concerning thé judicial fonction. He readily admitted that he had a prédisposition to thé resuit that he had reached, since it had been his opinion while he was on thé Ontario Court of Appeal, where he was in dissent. Such candour was not at ail common. In addition he made a somewhat mild, but nevertheless telling point about thé use of English cases. He said: "The provincial appellate Courts in this country appear to hâve been influenced by English cases without, at least so far as their reasons disclose, dwelling on thé terms of thé English législation on which those cases were based.'36 None of thé other judges joined with Laskin in his criticism of Pigeon and his comments on thé judicial process. Even Spence and Dickson left him on his own this time. The judges were breaking apart on thé foundation point of thé judicial function. Laskin was showing an aggressiveness not seen since thé days of thé irascible Henry Strong, but Strong's attacks had not entered into his judgments. The tide had turned in thé war for thé spirit of thé final court of appeal. The case was subsequently reheard with nine judges, and Ritchie, thé judge absent at thé first hearing, decided that thé Court of Appeal had power to increase thé sentence. The resuit was in thé end 5-4 in favour of dismissing HilPs appeal. Laskin was in thé dissent. As chief justice Laskin was expected to lead thé court. At no time in thé court's history, not even in 1949, had such public expectations been created that Canada would finally achieve true légal heroes. Such gréât expectations could be a terrible burden; while a majority of thé judges had been able to

410 Tensions within thé Court

join with Rand in thé results of thé cases, Laskin was to be thé "gréât dissenter." At this time, in 1975, a case arose in which thé ideological différences among thé judges with regard to thé légal process and thé rôle of a final court of appeal erupted in an unprecedented manner. Never before had they grappled with each other openly at such a fondamental level. The pivotai battle for thé soûl of thé court and thé légal System was fought over thé right of Sophie Carswell to picket her employer. HARRISON v. CARSWELL, 1975 With thé Thorson case Laskin had been given his head, but in Harrison v. Carswell^ his intellectual leadership was severely challenged. Sophie Carswell, a striking employée of a supermarket in Winnipeg in 1973 was picketing on thé sidewalk in front of thé store. The problem arose because thé store and thé sidewalk were on thé property of a privately owned shopping centre. The manager of thé shopping centre warned Carswell that she was on private property and asked her to stop picketing. This confrontation occurred on each of four days and then thé manager called in thé police. Sophie Carswell was charged with four ofFences, one for each of thé four days, under thé Petty Trespasses Act of Manitoba.37 The provincial judge acquitted her, but on a trial de novo in thé County Court she was convicted. A fine of $40 was levied, $10 on each charge. Leave was granted for an appeal to thé Manitoba Court of Appeal,38 and thé appeal court allowed thé appeal and 2-1, reversed thé conviction. Chief Justice Freedman rendered thé majority judgment, with which Mr Justice Matas concurred, while Mr Justice Guy dissented.39 In thé Court of Appeal, thé case, which involved only a $40 fine, developed into one of thé foremost décisions dealing with freedom of expression that had occurred in Canada. The issue that was presented to thé judges clearly involved a balancing of thé interest of thé owner of thé shopping centre in his property right and thé interest of thé picketers in peaceful picketing during a strike. Samuel Freedman, thé chief justice of Manitoba, for thé majority struck out into new territory when he held that there was a légal right of freedom of expression. He stated that "in thé conflict between thé property right of thé owner of thé sidewalk, and thé policy right of thé employée to engage in peaceful picketing in thé course of a lawful strike, thé latter right should prevail. It seems ... that considérations both of public policy and good sensé dictate such a conclusion."40 In reaching this conclusion, Freedman relied on cases from thé United States, cases that had involved thé constitutional guarantee in thé First Amendment of thé Constitution of thé United States for freedom of speech. In a bold move, he concluded that whenever thé American courts referred to thé constitutional

411 The Captive Court right of freedom of expression, thé Canadian courts should substitute thé phrase "common-law right." The expression "common-law right" had occurred in other cases, and when used had meant that thé judge had given thé right being asserted thé status of a constitutional right, such as in thé American context. Naturally in thé pré-Charter days, this assertion of one aspect of thé "common-law Bill of Rights" did not include thé ability to destroy a law overtly.41 While there was within thé law "constitutional rights," thèse had not been expressly linked in spirit to thé rights in thé American constitution until Freedman did so in thé Carswell case. The best known of thé common-law rights has been thé right to property, which, in Freedman's opinion, had lost out to a new champion for thé 1970s, freedom of expression.42 A relevant précèdent that required considération was thé 1971 Ontario case, The Queen v. Pètent The dispute involved in thé Peters case that reached thé Suprême Court of Canada had occurred when Peters decided to take a public stand on thé selling of grapes from California in Canada in order to help thé grape-workers in California in their labour disputes. He picketed a supermarket in a shopping centre, urging shoppers to boycott thé store because it sold California grapes. When he was asked to leave by thé management of thé shopping centre and refused, he was charged under thé Ontario statute, thé Petty Trespass Act,44 convicted, and fined $10. Peters appealed to thé Ontario Court of Appeal, first, on thé ground that thé owner of thé shopping centre did not hâve sufficient possession of thé property to maintain a trespass action, and second, that thé Ontario statute was invalid since it was criminal law and thus beyond thé législative power of thé province. There was no argument raised based on freedom of expression itself. The appeal court found against thé accused on both of thé grounds that were argued.45 Peters was then granted leave to appeal to thé Suprême Court of Canada.46 The Suprême Court dealt with thé appeal on thé basis of spécifie questions. The one that is of interest was: "Did thé learned Judges in appeal err in law in determining that thé owner of thé property had sufficient possession of thé shopping plaza sidewalk to be capable of availing itself of thé remedy for trespass under thé Petty Trespass Act, RSO 1960, Chapter 294, section 1(1)?" A full bench of nine judges heard thé appeal and summarily dismissed it with one sentence that said that thé question "must be answered in thé négative." In Peters thé Ontario Court of Appeal had disagreed with a 1964 décision of thé Court of Appeal in Saskatchewan that had decided that an owner of a shopping centre did not hâve thé necessary control over thé premises to maintain an action in trespass.47 At thé time, thé Suprême Court was not prepared to provide any leadership with regard to thé conflict. The majority of thé Manitoba Court of Appeal in Carswell felt that Peters could be distinguished on thé ground that that case had not involved a strike

412 Tensions within thé Court

or current labour dispute. The dissenting judge, Mr Justice Guy, however, was of thé view that Peters was compléter/ identical as to thé facts and thé law, and thus it had to be applied. Since he concluded that thé vital facts were identical, it obviously meant that he was giving no weight to thé fact that there was a strike underway in thé Carswell case. He rejected thé assertion of freedom of expression: "As far as I am concerned it seems to me that thé Canadian law protecting thé sanctity of an owner's right to govern his own private property is to be preferred to that of [a court of thé United States] which considers an owner's right over his own property of less importance than a labour dispute as to hours of work, pension schemes and thé like."48 Leave to appeal to thé Suprême Court of Canada was granted by a panel of judges consisting of Martland, Ritchie, and Dickson.49 The case was heard by a full panel and they split 6-3, with thé majority reversing thé décision of thé Court of Appeal, and finding against Sophie Carswell and freedom of expression.50 There were two judgments rendered in thé Suprême Court: Mr Justice Dickson for thé six judges of thé majority, Martland, Judson, Ritchie, Pigeon, de Grandpré, and himself, while Chief Justice Laskin rendered thé dissenting judgment for himself, Spence and Beetz. So divided was thé court and so strong were thé feelings that thé focus of thé case became thé judicial function, with thé majority strongly implying that Laskin and thé other two dissenters had overstepped thé bounds of what was thé proper rôle for a judge. The majority found it impossible to find a significant distinction between thé case and thé earlier Peters case. This ended it for Sophie Carswell. For thé majority, thé duty of thé court was to exercise an adjudicative function, which meant that it was to décide in a reasoned way from principled décision and established concepts. There was, however, no question in thé minds of thé majority that judges do indeed act creatively and thereby could be said to legislate, but that so-called législation was to be of an "interstitial nature," meaning that large-scale altérations in thé law were forbidden thé judge, and ail judicial action had to be within thé limits of "consecrated principles." In thé eyes of thé majority, speaking through Mr Justice Dickson, acknowledged doctrine was to remain inviolate as far as thé judiciary was concerned, for them thé "consecrated principle," and "acknowledged doctrine" that was recognized was thé right of an individual to thé enjoyment of property, and thé right not to hâve that enjoyment interfered with, except by "due process of law." The right to property was identified as a fondamental freedom. Laskin for thé dissent focused on thé conclusion of thé majority that Peters governed them, and minced no words when he wrote: "This court, above ail others in this country, cannot be simply mechanistic about previous décisions, whatever be thé respect it would pay to such décisions."51 For Laskin, to accept Peters as controlling because it was recently decided was merely to take one side of a debatable issue and say that it concluded thé debate with-

413 The Captive Court

out thé need to hear thé other side. Laskin further affîrmed thé right of thé court to départ from previous décisions if thé need arose, and concluded that "thé présent case involves a search for an appropriate légal Framework for new social facts which show up thé inaptness of an old doctrine developed upon compléter/ différent social foundation."52 Laskin, who, with Spence, had participated in thé Peters case, saw thé brief five-line oral judgment delivered by Chief Justice Fauteux in thé case in which it had been said that thé questions of law should be answered in thé négative, as having been addressed solely to thé questions presented; no factual material had been involved. To highlight thé choice available to thé judges, it can be said that as far as thé following of précèdent was concerned, both Dickson and Laskin were correct. Dickson took from Peters thé widest proposition that was available: thé court's upholding of thé right of thé individual to thé enjoyment of property, and thé right not to be deprived of that enjoyment except by due process of law. Due process of law would not include, in Dickson's opinion, judicial law making. Laskin took thé narrowest proposition available: whether a shoppingcentre owner could theoretically hâve sufficient possession of a sidewalk to support a charge of trespass under thé statute. Both were viable propositions that could be drawn from thé reasoning in thé case, its ratio decidendi. For Laskin, social facts existed at thé time that made freedom of expression, in thé guise of picketing in a labour dispute, more important than thé right of thé owner of a shopping centre to assert private property rights. He went as far as to accept that in Canada, thé same économie and social setting existed as in thé United States, which made thé American cases relevant and weighty. Dickson, who had displayed creativity, lapsed into thé traditional sterility when he concluded that either thé age-old respect for, and indeed sanctity of property rights was to be continued by thé judges until changed by thé législature, or thé judges were to use their personal économie and social beliefs, and thus make arbitrary décisions. Naturally, he opted for thé former position as thé appropriate rôle of thé judge as an adjudicator of disputes. Clearly no one would accept "arbitrary décisions" by judges. For Laskin and thé other dissenting judges, thé search by judges for social values to apply did not involve arbitrary behaviour. The judges had split on two basic points. The first was thé importance to be given to freedom of expression in thé form of picketing in a labour dispute, balanced against thé interest of a shopping-centre owner in private property rights. The second was thé vital point of thé judicial function, namely, thé majority were not willing to départ from what was seen as settled doctrine, while thé dissenting judges appeared to be much more willing to reassess law and change it if they thought it appropriate to do so in Une with current values.

414 Tensions within thé Court

In a rare move, Dickson referred expressly to a number of légal writers when he engaged thé question of thé limits of thé judicial fonction.53 There can be no rigid conclusions drawn from thé particular writings. A common one was, however, that thé judge is certainly not independent of thé values of society, and is also restrained by "settled doctrine." The writings indicated that American judges were more accepting of an active rôle than were their English counterparts, a probably resuit of social conditions. Dickson was not spécifie with regard to what thé exact content was in thé various writings with which he agreed. Social conditions had obviously conditioned thé approach of thé judges of thé Suprême Court over thé years, but it is nevertheless diffîcult to understand why such a degree of captivity was created. It must be remembered that thé resuit in a case does not détermine whether a judge is créative; it is thé reasons for thé resuit that détermine that characteristic. In Harrison v. Carstuell, Mr Justice Dickson did deal with social values, perhaps as a resuit of thé force of Chief Justice Laskin's judgment. In thé concluding paragraph of his reasons for judgment, he accepted that "thé right of thé individual to thé enjoyment of property and thé right not to be deprived thereof, or any interest therein"54 was a fundamental freedom, and consequently it overwhelmed any social value in allowing Sophie Carswell to picket on thé property of thé shopping-centre owner. He had spent many pages trying to show why he felt he had no choice to make and that he had to accept thé particular fundamental freedom and as a judge could not al ter its power in any way. He felt compelled to use thé captivity to shield himself from accusations that he had made a political choice. In this crucial battle that had been fought over thé appropriate judicial function, and hence thé soûl of thé court, Laskin had lost. As thé Suprême Court moved into thé latter half of thé 1970s, thé "Laskin Court" evaporated, leaving once again thé court of old. The lack of an institutional response and thé wide diversity among thé judges can be readily seen in a case involving a négligence action. PASKIVSKI v. CANADIAN PACIFIC LTD, 1975 This case concerned an action against thé railway for négligence in thé injury of a young child. A rule had been developed that exonerated railways from liability if ail statutory requirements and orders of thé Canadian Transport Commission had been complied with, unless there were spécial or exceptional circumstances involved. The prime interest in this case revolved around how thé judges dealt with this rule that relieved railways from liability. Since thé judges were presented with thé question of what to do with thé rule, it was

415 The Captive Court clear that thé law reform function was engaged. Faced with such an issue, thé nine judges who heard thé appeal split into four distinct groups. In thé end, six judges were in faveur of allowing thé appeal and fmding in favour of thé child, while three judges dissented and decided in favour of thé railway.55 Dickson, for himself, Spence, Beetz, and Laskin, questioned thé rule. He noted that it had been created seventy years before to aid railways and hence thé economy, and suggested that they might need no spécial rule in 1975, but he went on to apply thé rule. He was able to accept that spécial circumstances existed that required thé railway to take further précautions in thé circumstances. Laskin, who agreed with Dickson, also wrote a judgment in which he emphasized thé point made by Dickson that thé existence of thé rule was questionable, and he then concluded that in his opinion thé spécial rule should no longer be accepted. Martland, with Ritchie concurring, made no comment about thé existence of thé rule, and simply applied it. They also found spécial circumstances that made thé railway liable. The dissenting judges were de Grandpré, Judson, and Pigeon, who, in a judgment rendered by de Grandpré, accepted thé rule, and found for thé railway. Laskin had charged ahead without hésitation with regard to thé question of changing thé law; Dickson, Spence, and Beetz, proceeded with caution, questioned thé rule, but were prepared to leave k alone if possible; Martland and Ritchie were completely oriented to thé status quo, but prepared to find for thé injured party; and de Grandpré, Judson, and Pigeon were for thé status quo and prepared to find for thé défendant railway. Laskin, who had led thé court in Highway Properties and Thorson, was now alone. THE DRYBONESCASE had generated many comments in early 1970; in particular, thé thought was expressed that a more active rôle for thé court would be a resuit. Laskin had been appointed to thé court just after Drybones and was hailed as an innovator who would interpret thé law in keeping with thé changing social climate. It seemed at thé time that thé captivity was being breached. When in 1973 Laskin was named chief justice, he was thought to bring a new look to a court that was considered to hâve become too old, too cautious, and too conservative. While thé légal profession had generally tolerated his appointment as a judge, his later appointment as chief justice had created some controversy. By thé end of 1975, Laskin was being driven into dissent. Commenting on what was to hâve been thé new era of créative action on thé part of thé judges, Geoffrey Stevens of thé Toronto Globe and Mail headed his column in 1975: "It was not to be."56 According to Stevens thé

416 Tensions within thé Court

gréât expectations following Drybones had not been fulfllled, nor had those that followed Laskin's appointment. Laskin was said not to hâve been able to alter thé direction of thé court: thé captivity was too entrenched. As an aside, thé court celebrated its centennial in 1975, and Laskin initiated an exhibit at thé National Library to mark thé occasion. The centennial generated some articles and comments but it did not générale much excitement. Laskin was changing; in an interview for Maclean s Magazine in 1977, he seemed very cautious, and when questioned about thé conservatism of thé court and about thé way in which thé judges had effectively nullifîed thé Bill of Rights, he referred to reasonable différences of opinion. It was a bland interview, containing answers by Laskin that were not particularly candid.57 In 1977, Judson reached retirement âge,58 and Willard Zebedee Estey was appointed. He was thé son of James Estey, a former Suprême Court judge from 1944-56. At thé time of his appointment he was chief justice of Ontario. He had experienced rapid promotion, having been named chief justice of thé High Court after only two years as a judge of thé Ontario Court of Appeal, and then made chief justice of Ontario thé following year. Although thé outspoken Estey had académie expérience, having taught one year at thé University of Saskatchewan, he held thé view that being a practitioner was essential in order to know thé law, and that generally thé better judges had practised law. He likened it to thé physical skills of a physician.59 He thus failed to accept that thé law dealt with intellectual matters, in contrast to thé observation of physical phenomena or thé use of physical skills, such as were necessary in thé médical profession. His views directly challenged thé credentials of Laskin, Beetz, and other académies. He was a "practitioner's judge." Some changes occurred among thé judges at this time, creating an additional disruptive élément. After only three years and nine months on thé bench, Louis-Philippe de Grandpré suddenly resigned. The vacancy was fîlled by thé appointment of Yves Pratte a few days after that of Estey. Pratte had been chairman of Air Canada and had resigned eleven days before a report was to be tabled in thé House of Gommons dealing with dishonest activities by thé management of Air Canada. Estey had written thé report. The tensions within thé court did not abate, and Laskin suffered a further setback when in May 1978 his health became a problem. He had taken ill in May and it was kept a secret. Although he had returned to thé bench in September 1978, his health continued to deteriorate in 1979, and he was hospitalized in March for tests. Again secrecy was invoked, and thé facts were not revealed until September. In December 1978, Laskin lost an ally when Wishart Spence from Ontario retired, thus breaking thé LSD connection." After considérable pressure by British Columbia to hâve a judge appointed from that province, William Mcintyre was selected in January 1979. Ontario had now been reduced to two positions on thé court.

417 The Captive Court Yves Pratte resigned on 30 June 1979, after less than two years on thé bench. The reason given for his departure was arthritis. Julien Chouinard from Québec was appointed on 24 September 1979. This was thé first and only appointment of thé short-lived interregnum of thé Conservative government of Joseph Clark. Since thé sélection of Abbott in 1954, candidates with too obvious a political tie to thé appointing power had been avoided, but with thé Clark appointment, this aspect had briefly returned. Chouinard was a defeated Conservative candidate from thé 1968 élection, and he had been offered a cabinet position in thé same year that he was appointed to thé court. He had been on thé Québec Court of Appeal for four years.

30 The Constitution

The 1970s and early 1980s were years of signifîcant social activity involving thé constitution. The centennial in 1967 and thé élection in 1968 of Pierre Elliott Trudeau and a Libéral government marked thé beginning of a period of continuai and intense constitutional discussion. Before 1982, Canada was thé only self-governing nation that had no légal power to amend its constitution and it was required to ask thé législature of another nation, Gréât Britain, to enact any amendments. No matter how understandable this procédure was based on thé historical development of thé country, there was no question that it gave thé appearance of an inability to govern oneself. In thé late 1970s Trudeau began to push for légal control of thé constitution within Canada. One heard about "patriating" thé constitution. As was to be expected, thé court became involved with constitutional change, and was drawn into thé political squabble concerning thé patriation question. However, before thé patriation question came to dominate discussions about thé constitution, there were a number of major constitutional décisions rendered by thé Suprême Court during thé 1970s, thé most prominent of which concerned thé validity of thé Anti-Inflation Act. REFERENCE RE ANTI-INFLATION ACT, 1976 In 1974 Canadians experienced soaring inflation that finally reached thé double-digit level, and, while thé opposition Progressive Conservative party under thé leadership of Robert Stanfield pressed for wage and priée controls, thé Libéral government of Pierre Elliott Trudeau stood firm against imposing them. When thé Libéral government, which constituted a minority government at thé time, rejected controls in its budget in May 1974, it was defeated on a vote of confidence, and an élection was called for early July. During thé

419 The Captive Court élection campaign, Stanfield and thé Conservatives led an attack on thé Libérais for failing to deal with inflation, and thé Conservatives promised wage and priée controls if elected. Trudeau and thé Libérais continued to reject thé imposition of controls, primarily on thé basis that Ottawa lacked thé constitutional authority to implement them. The resuit of thé July élection was a clear majority for Trudeau. This being thé third unsuccessful élection campaign fought by Stanfield, he was finished as Conservative leader. As thé concern over inflation continued into 1975 and thé government refused to budge on its position of no compulsory controls, thé unions began to demand higher wages to compensate. Strikes and walkouts grew in number. Finally, as thé pressure mounted to do something, Trudeau announced thé création of controls in October, and in mid-December thé Anti-Inflation Act came into being.1 The new law controlled priées, profits, wages, and dividends for thé fédéral public sector, and businesses with more than 500 employées, and provided for thé establishment of an Anti-Inflation Board to administer thé Act. For other parts of thé economy not directly covered by thé Act, such as thé provincial public sector, it was provided that they would be dealt with on a province-by-province basis through agreements with each provincial government. Unions immediately opposed thé law, and were joined in spirit by business interests. When a teachers' group took steps to challenge thé agreement between Ontario and Ottawa in thé courts, thé fédéral government referred thé question of thé validity of thé Anti-Inflation Act to thé Suprême Court.2 During thé élection campaign of 1974 thé imposition of wage and price controls had been opposed by thé Libérais, principally on thé ground of unconstitutionality. While thé law was being debated in 1975, thé constitutional issue surfaced repeatedly in thé législature, and John Diefenbaker was particularly adamant that it was necessary to state in thé législation that a national emergency existed in order for constitutional validity to be established.3 Although thé Act extended into thé private sector in thé various provinces, thé use of agreements showed a constitutional sensitivity to limited fédéral power over thé inflation problem. The référence case was heard by thé full bench over a five-day period in late May and early June 1976. Judgment was rendered speedily on 12 July.4 There were many participants in thé case - Ottawa, five provinces, and several unions. The province of Ontario, whose actions in thé nineteenth century had in large measure created thé existing fédéral System, now sided with Ottawa in support of thé Act. The provinces of British Columbia, Saskatchewan, Alberta, and Québec, along with thé labour organizations, opposed thé measure. Unlike most other référence cases throughout thé years, on this occasion a considérable quantity of information was placed before thé judges - matters

420 The Constitution indicating government policy, and an économie study and critique regarding inflation. The need for social facts was being recognized. When thé court rendered its décision, thé resuit was that thé full bench had split 7-2 in faveur of thé validity of thé law. There were two judgments among thé majority: Chief Justice Laskin wrote a judgment with which Judson, Spence, and Dickson concurred, and Ritchie wrote a judgment for himself, Martland, and Pigeon. The two dissenting judges were Beetz and de Grandpré, with Beetz writing their judgment. A considérable amount of law reform went on in thé case, but without any express overruling of previous décisions. There were still inhibitions against displaying law making too openly. Throughout thé years, there had developed within thé law thé concept of an "emergency" power residing within thé constitution that would allow Ottawa to deal with national emergencies that might arise and threaten thé existence of thé country. The constitutional authority to deal with such emergencies was said to réside in thé général language of section 91, which authorized Ottawa to "make laws for thé Peace, Order, and good Government of Canada." This idea could be traced back to thé décision of thé Privy Council in thé Local Prohibition case of 1896, in which Lord Watson used thé following language: "[S]orne matters, in their origin local and provincial, might attain such dimensions as to affect thé body politic of thé Dominion, and to justify thé Canadian Parliament in passing laws for their régulation or abolition in thé interests of thé Dominion."5 This language created thé idea that a matter that might once hâve been considered to be local and provincial could at another time be considered "a matter of national concern." In In re Board of Commerce Art, Viscount Haldane sent thé emergency idea clearly on its way with language such as: "[CJircumstances are conceivable, such as those of war or famine, when thé peace, order and good Government of thé Dominion might be imperilled under conditions so exceptional that they require législation of a character in reality beyond anything provided for by thé enumerated heads in either s. 92 or s. 91 itself."6 When thé dépression of thé 1930s was not recognized as a sufficient emergency by thé Suprême Court and thé Judicial Committee of thé Privy Council for thé dominion to be able to legislate for its control, thé resuit was that thé concept of an emergency power of any scope was severely blunted.7 The only emergency readily admitted at that time as engaging thé dominion power was war.8 This might hâve been straightforward had it not been for an 1882 décision of thé Privy Council, Russell v. The Queen,y which had been interpreted as having decided that thé dominion prohibition law was valid as coming within thé général language of section 91. When thé emergency doctrine was later developed, this made thé Russell case an embarrassment. Haldane had tried to eliminate thé case by restricting it to its facts, meaning that thé case was to be

421 The Captive Court followed to thé extent that it held that thé Canada Tempérance Act, 1878 was valid, but for any other purpose it should be forgotten. Otherwise, Haldane suggested that, in order to accommodate thé case with thé emergency doctrine, thé assumption had to be made "that thé evil of intempérance at that time amounted in Canada to one so gréât and so général that at least for thé period it was a menace to thé national life of Canada so serious and pressing that thé National Parliament was called on to intervene to protect thé nation from disaster."10 Unfortunately, ail that Haldane accomplished was to raise thé ire of Mr Justice Anglin in thé Suprême Court, who went to thé defence of wounded Canadian pride." The Russell case lived on as a ghost, always haunting this area of thé law. If one were required to think in terms of an emergency, then how could thé national prohibition law be accommodated within that thought? The province of Ontario, in what seemed to be an attempt to complète thé work that Oliver Mowat had begun in thé nineteenth century, sought to gather more power for thé provinces by destroying thé Russell décision, thereby preventing any increase in fédéral power through thé use of thé case as a précèdent. In June 1939, Ontario decided to refer thé question of thé validity of thé Canada Tempérance Act once again to thé courts. In September 1939 thé Ontario Court of Appeal upheld thé validity of thé statute solely on thé basis that Russell was binding authority. Ontario appealed directly to thé Privy Council, but thé décision of thé board was delayed until 1946 because of thé war. In thé end, ail that thé province of Ontario created by its attempt to bury RussellVas confusion. When thé Ontario référence was fmally heard after thé war, Viscount Simon for thé board rejected thé notion of an emergency as being thé test. He said that "thé true test must be found in thé real subjectmatter of thé législation: if it is such that it goes beyond local or provincial concern or interests and must from its inhérent nature be thé concern of thé Dominion as a whole."12 The conclusion was that an emergency may be an occasion for thé use of thé dominion power, but it was thé nature of thé législation, not thé existence of thé emergency, that must be thé determining factor. Writing in 1947, Bora Laskin was of thé opinion that thé Privy Council décision had indicated a scope for thé général power beyond conditions of an emergency. He went on to state that either thé propositions stated in thé case neutralized much of what had been said previously by thé Privy Council on thé matter, or it added to thé confusion. Laskin thought that thé décision might be a prélude to thé re-invigoration of dominion power under "peace, order, and good government," but this reflected a heavy élément of wishful thinking.13 It was true that Viscount Haldane, during his time on thé Privy Council, had written in terms of thé aspect of a law, and not thé existence of an

422 The Constitution emergency per se, as being thé crucial point.14 Thus thé Privy Council was quite correct in 1947, but there was a staggering lack of communication between it and constitutional jurists in Canada who thought solely in terms of thé existence of an emergency as giving thé dominion thé requisite spécial power and authority. Following thé case in 1947 thé emergency idea was still alive in Canada, but many scholars saw thé possibility of circumventing it by having thé "inhérent nature" of thé challenged law examined, and thus of dealing with what was called thé residuary power. There had always been two uses made of thé words "peace, order, and good government." The so-called "normal" use was thé residuary power, meaning that if a pièce of législation could not be upheld constitutionally by thé language within section 92 and thé language of thé heads of power in section 91, then it would hâve to corne within thé "General Power" as thé ultimate catch-ail. The so-called "abnormal" use was thé emergency use. Ontario, whose actions in thé nineteenth century had shaped thé country, had launched its latest attack in thé pre-war days of 1939 when provincial rights were at a peak, although coming under pressure because of thé dépression and growing nationalism. In 1947 thé world had changed. The accumulation of power within Ottawa during thé war, which was a recognized emergency situation, had conditioned people to that state of affairs. The Empire had effectively corne to an end, and Canada, whether wanting it or not, was on its own. The décision of thé Privy Council in 1947 had created new opportunities for dominion power. Ontario had suffered more than a particular set-back; it had set in motion a force that could hâve changed Confédération. The uncertainty with respect to thé law was still présent when thé question of thé validity of thé Anti-Inflation Act was referred to thé Suprême Court. Clarification of thé law and thé shaping of thé constitution was thé task facing thé judges. The public was watching. In thé argument before thé court, thé validity of thé Act was supported on two bases: first, inflation was a matter that went beyond local, private, or provincial concern, and was of a nature that engaged vital national interest; and second, there was an économie crisis amounting to an emergency or exceptional péril. Chief Justice Laskin preferred to deal only with thé second argument. He asked thé question whether thé Anti-Inflation Act was supportable as crisis législation, avoiding thé word "emergency." He made an extensive review of thé previous cases from Russellof 1882 through to thé Privy Council décision of 1947. His motivation for thé detailed review became apparent when he commented: "What émerges from thé lines of cases up to thé Snider case are différences more of degree than of kind about thé scope of thé fédéral général power."15 He was thus able to deal with thé problem as one of application law reform, and avoided thé more drastic and non-traditional rule reform. The "différences of degree" were to be viewed as applications of a base rule, and he was not going to change it. Up to this time thé test had been that an

423 The Captive Court emergency situation was required, and thé examples had made thé emergency one in which thé life or thé very existence of thé nation was threatened. Now, for Laskin, thé law was that a crisis must exist, and thé previous cases were merely examples that informed a judge but did not direct a particular resuit. This was, of course, rule reform but in thé guise of application reform. Laskin pointed out that in thé Board of * Commerce case Duff had been influenced by a perceived threat of nationalization, but in 1976 he did not believe that thé case was to be viewed thé same way. Laskin considered that DufFs parade of horrors no longer frightened Canadians, and he asserted that "a Constitution designed to serve this country in years ahead ought to be regarded as a résilient instrument capable of adaptation to changing circumstances."16 The thoughts of Lord Sankey in thé Persans case were returning. For Laskin thé previous cases were guidelines, which would not answer thé problem, but could help. It was a considération of thé particular législation and thé surrounding circumstances, that is thé social context, that were "thé commanding considérations,"17 Laskin asserted. It next became necessary for him to consider whether thé Anti-Inflation Act was justifiable as being crisis législation. Laskin slipped into a very passive rôle as a judge at this point. The question, he said, was whether there was a rational basis for thé fédéral government's judgment that there was a crisis. The onus would be on thé challenger of thé law to produce sufficient évidence to prove thé contrary to thé judges. So it was not for Laskin to détermine whether an emergency or crisis existed, but whether it was reasonable that thé government could think so. He had little difficulty in concluding that thé government had acted reasonably. In 1893 James Bradley Thayer, an American constitutional scholar, had advocated extrême rjestraint on thé part of judges when called upon to exercise judicial review of législation. He wrote: "[The judges] can only disregard thé Act when those who hâve thé right to make laws hâve not merely made a mistake, but hâve made a very clear one, — so clear that it is not open to rational question."18 With thé adoption of this view, any invalidation of a law by a judge would raise serious questions. For Thayer, thé judicial function was simply that of "fixing thé outside border of reasonable législative action."19 Laskin's judgment would be an example of thé restraint urged by Thayer. The chief justice did not deal with thé question of whether there was a need for thé controls, which was for thé government to décide. As Laskin demonstrated, a créative judge need not be an activist judge. Even though Laskin was recognized as thé foremost constitutional scholar of his day, Ritchie and Martland would not join with him, and thé resuit was once again an absence of an institutional décision. The judicial split was essentially 4—3-2, and a majority of five was lacking on thé key issue. Laskin's career had prepared him for thé case, but tensions within thé court had thwarted his leadership.

424 The Constitution Ritchie in his judgment, for himself, Martland, and Pigeon, jumped right to a new test, and merely stated his conclusion that thé test was whether thé législation had been enacted "to combat a national économie emergency." The word "économie" was added without explanation. He went on to defîne "économie emergency" as "an urgent and critical situation adversely afTecting ail Canadians and being of such proportions as to transcend thé authority vested in thé Législatures of thé Provinces and thus presenting an emergency which can only be effectively dealt with by Parliament."20 While Laskin used thé language of thé application of law to justify and explain thé reform that he undertook, and had considered social values relating to state régulation of thé economy, Ritchie presented no reasoning, only conclusions. Ritchie, Martland, and Pigeon concluded that évidence could be receivable to prove thé circumstances, but very clear évidence that an emergency had not arisen would be required before an Act could be declared ultra vires. This is virtually thé same law as that created by Laskin, but Ritchie, Martland, and Pigeon, had not been prepared to support him. Beetz, in dissent, dealt with thé first argument, namely that inflation was by its inhérent nature a matter of concern to thé entire country and thus within fédéral authority to control. This argument had been bypassed by Laskin. Beetz rejected thé argument, and on this point Ritchie, Martland, and Pigeon joined with him and de Grandpré to form a majority of five judges. For Beetz, thé dominant idea was thé fédéral nature of thé constitution, which he asserted was its fundamental feature. In order for thé dominion to take authority over a new matter it had to be distinct, with a clear identity. Inflation was said not to be new and it was also said to lack thé necessary concreteness. The three Québec judges supported provincial autonomy, which was an inhérent concern in thé "fédéral nature" of Canada. On thé question of an emergency, Beetz and de Grandpré took a completely différent tack from thé other judges, and on this point dissented. For them, thé emergency power had to be invoked expressly in most explicit terms. Since thé preamble of thé Act did not contain an express déclaration of an emergency, then it had to be concluded that Parliament was not relying upon its extraordinary power, and thé act was invalid. This formalistic approach of Beetz and de Grandpré would hâve thé merit of forcing thé government to alert people that thé emergency power was being invoked and thus focus debate. With regard to thé Anti-Inflation Act itself thé political opposition, which is usually in thé business of creating public opinion, had been silenced and could not oppose thé government's measures since they had fought an élection (and lost) on thé basis that they would introduce such a law. A significant pièce of law reform or law making had been accomplished by Laskin, with Judson, Spence, and Dickson concurring. It had been donc

425 The Captive Court quietly and professionally using application reform. In Laskin's opinion, social change justifiée! his resuit. Unfortunately, thé unwillingness of Martland, Ritchie, and Pigeon to join with Laskin meant that thé case produced a 4-3-2 resuit on thé question of thé law and thé emergency power, although it did resuit in a 5—4 split on thé inhérent nature question. The law reform of Ritchie, Martland, and Pigeon, was there, but it was thé old style of décision making that consisted of conclusions - now you see it, now you don't. Once again diversity among thé judges resulted in thé décision "of thé court" being drained of energy. Another interesting constitutional issue of thé 1970s was thé question of thé control of communications under thé constitution. The "Cable-TV Skirmish" was made much more vital since Québec placed itself at thé centre of thé dispute. PUBLIC SERVICE BOARD v. DIONNE, 1977 No one doubts thé potency of communications within a society to distribute information and to shape social values. With thé advent of radio and télévision, this power was enhanced beyond prior belief, and complète control over thé new média was placed within fédéral hands by thé décision of thé judiciary.21 With thé arrivai of cable télévision, thé provinces were provided with thé possibility of acquiring control over what was rapidly becoming thé means of communication of télévision signais within thé nation. Cable TV, unlike standard broadcasting, was localized and capable of containment, and thus might be seen as a local matter within provincial constitutional authority. In thé mid- 1960s, only 4 per cent of thé country was serviced by cable, then known as community antenna télévision, but by 1975 thé number had grown to 60 per cent. Since early in thé 1970s, Ontario, and in particular Québec, with its felt need to préserve what was seen as a distinct society within thé fédéral state, had agitated for control over cable télévision, along with a greater say in thé télécommunications field in général - radio, télévision, and even téléphone. Within Québec, cultural independence, or sovereignty, with an emphasis on language, had been thé background of thé victory in 1972 of thé Libérais led by Robert Bourassa and in 1973 there was a noticeable increase in political action related to communications, including a dominion-provincial conférence held late in that year. This was followed by another conférence held in Victoria in May 1974 at which Québec, supported by Ontario and British Columbia, had made a clear and strong plea for control over cable télévision. The provincial communications ministers subsequently issued a statement that said that thé fédéral government must recognize "that thé

426 The Constitution régions and provinces in Canada vary widely in their social, économie and cultural circumstances." The ministers went on to assert that effective national policy in communications must respect thé diversity among thé provinces, and that thé fédéral government must recognize thé right of thé provinces to control cable télévision based on thé particular province's needs and policies. With no apparent movement by Ottawa with regard to thé situation, thé Québec government through its Public Service Board began to issue licences for thé distribution of cable télévision. In 1975 thé events that were to bring thé Suprême Court of Canada into thé picture began to take shape. The fédéral Canadian Radio-Télévision Commission (CRTC) issued a licence to François Dionne that covered thé Rimouski, Mont-Joli area of Québec in thé lower St Lawrence région. The province had earlier granted a licence to another person that covered an area that conflicted with thé one assigned to thé fédéral licencee. The battle heated up when thé RCMP seized thé provincial licencee's transmission equipment and thé province replaced it. Ottawa next charged thé provincial operator with operating without a fédéral licence, and thé province followed by charging Dionne with not having a provincial licence. The Québec government wanted to avoid thé courts and to achieve a solution through political negotiations, and Jean-Paul L'Allier, thé communications minister, had publicly commented that thé province would fail before thé Suprême Court of Canada, and that it would not get a fair hearing. When François Dionne defended thé charge against him by challenging thé validity of thé provincial law that required him to hâve a licence, thé matter began its journey through thé légal process towards thé Suprême Court. In November 1976 an event occurred that was to change Canada. On 15 November 1976, thé Libérais under Robert Bourassa were soundly defeated in Québec by René Lévesque and thé Parti québécois. The séparation of Québec from thé fédération (separatism) became a national préoccupation. In thé middle of January 1977, thé Québec Court of Appeal set aside thé décisions of thé Public Service Board, and thé judges unanimously held that thé provincial law regulating cable télévision was invalid as encroaching on a fédéral constitutional jurisdiction. While Québec boycotted thé communications ministers' meeting in late March 1977 in Edmonton, thé meeting did produce an apparent consensus that ways should be explored for thé provinces to take over thé régulation of cable and pay télévision. Ottawa responded by proposing législation that would give thé provinces regulatory power. The bill received first reading but did not proceed further.22 The Suprême Court granted leave to appeal and on 8 June 1977, thé appeal in thé Dionne case was heard.23 The government of Québec did not specifically appear. The Public Service Board was thé named party.24

427 The Captive Court Already under way in thé légal process was another case that became entangled in thé litigation regarding thé granting of licences in Québec, and to a certain extent must hâve embarrassed thé Québec position. When on 1 May 1974 thé CRTC gave approval to a Canadian cable télévision station to delete commercials from programs received from American télévision stations that were being re-transmitted, thé télévision stations in thé United States that were broadcasting thé programs challenged thé décision of thé CRTC and argued that thé action was invalid since control over thé content of programs was within provincial authority. The province of Québec participated in this case. The Fédéral Court of Appeal dismissed an appeal from thé CRTC on 17 January 1975, and thé Suprême Court granted leave to appeal.25 The appeal, Capital Cities Communications Inc. v. Canadian Radio Télévision Commission?** had been heard in late January 1977, but thé décision of thé court in thé case was delayed so that thé décision in it and in thé Québec case could be rendered at thé same time. The judgments in thé two cases were rendered on 30 November 1977. In thé Capital Cities case, thé judges were unanimous that Ottawa could control thé content of thé signal. Laskin, for himself and Martland, Judson, Ritchie, Spence, and Dickson, began with thé point that thé Radio case had established in 1932 that fédéral control covered receiving instruments as well as thé transmitting of signais. To him thé cable antenna functioned thé same as a home antenna. The cable company was not "performing" thé programs, but acting as a conduit. There was a single combined undertaking, with thé same signais reaching thé viewer as were received by thé cable company. The three Québec judges dissented in Capital Cities, but it was with regard to thé question of thé jurisdiction of thé CRTC, which they said had no authority to make thé order challenged. While agreeing that Ottawa had control over thé content of thé cable signal, they differed from thé majority as to thé reasons. For them Ottawa had control in thé particular case because of thé foreign origin of thé télévision signal. In Public Service Board v. Dionne, thé décision was also 6—3 in favour of fédéral control, and what must hâve been seen as unbelievable good fortune for thé Parti Québécois and thé separatist cause, as well as justifying thé Bourassa government's désire to avoid thé Suprême Court, thé three dissenting judges, Pigeon, Beetz, and de Grandpré were once again from Québec. Chief Justice Laskin again wrote thé judgment for thé six anglophone judges of thé majority, while Pigeon wrote thé judgment for thé dissenting judges. Laskin simply repeated thé reasons that he had given in thé Capital Cities case. The three Québec judges did not accept control by Ottawa. They viewed thé opération of thé cable System as local and confined within thé province. The transmission of radio and télévision signais through thé air was accepted to be within fédéral jurisdiction since by their nature they could not be confined. In a fédéral System, divided jurisdiction over an activity was an

428 The Constitution inhérent feature of thé System, in their opinion. The anglophone majority had taken a centralist position with respect to an issue that was seen as vital to francophone survival - communications and culture. NEAR THE END of thé 1970s, political proposais for constitutional change enmeshed thé court. One of thèse was a reform of thé Senate. When thé provinces objected, thé question arose whether changes to thé Senate could be made by thé Parliament of Canada alone. To attempt to settle thé issue, a référence was directed to thé Suprême Court.27 Eight judges considered thé question (Laskin, Martland, Ritchie, Pigeon, Dickson, Estey, Pratte, Mclntyre; Beetz did not sit). The judgment was unanimous and was rendered by "The Court," a rare response for thé judges, and one intended to avoid focusing on any particular member of thé bench as thé inspiration for thé reasons behind thé décision.28 There was an institutional response by thé court. The "Court" had little difficulty coming to a conclusion that no amendment that directly affected fédéral-provincial relationships would be made without prior consultation and agreement with thé provinces. Référence was made to Sankey's views in thé Aeronautics case by which thé concept of thé constitution as a contract and a compromise had been emphasized. This looked perilously close to a judicial approval of thé compact theory of confédération, a concept that had been lying dormant in thé English-Canadian consciousness since thé 1930s. The Senate référence was soon followed by one of thé most remarkable décisions ever rendered by thé court. The Constitutional Amendment référence propelled thé court into public prominence including thé rendering of its décision on live télévision. REFERENCE ON THE A M E N D M E N T OF THE CONSTITUTION, 1981 Prior to 1982, amendments to thé constitution, thé British North America Act, could only be made by thé Impérial Parliament at Westminster. Any discussion and debate about being able to amend thé constitution in Canada before thé 1920s would hâve appeared to be anti-patriotic towards thé Empire, but following World War I, thé glories of Empire and thé values of thé nineteenth century that had led to thé terrible violence of thé war were considerably shaken. The Empire began to be transformed into thé commonwealth and at thé Impérial conférence of 1926 thé principle of equality of status within thé Empire was established. Canada was being propelled towards independence. At thé dominion-provincial conférence of 1927 an amending procédure that was independent of thé British Parliament was

429 The Captive Court considered. Ontario and Québec would not agrée, and thé proposai died. Concern with an amending procédure became a flxture for discussion by thé dominion and thé provinces for thé next fifty years. Review of thé constitution became an issue with thé arrivai of thé 1960s. The quiet révolution in Québec, thé defeat in June of 1966 of thé Lesage government by thé Union nationale led by Daniel Johnson, and thé subséquent increase in assertions of Québec nationalism brought demands for a new set of rules. The centennial célébrations of 1967 spurred on a renewed effort, which included concern with thé substance of constitutional change along with thé method of achieving it. When Pierre Elliott Trudeau became prime minister in 1967, followed by his élection victory in 1968, thé catalyst for change had been put in place. At thé Constitutional Conférence held in Victoria in June 1971, an extensive program was discussed which included a charter of rights and an amending procédure. The province of Québec rejected thé amending formula, and was later joined by Alberta and British Columbia, whose governments wanted full veto powers over any changes to thé constitution. A further attempt in 1976 to reach an agreement on an amending formula failed when Alberta and British Columbia would not move from their position of wanting a right to veto any proposais for a change. On 15 November 1976, a shiver went up thé back of EngHsh-speaking Canada. The Parti québécois with its platform of séparation from thé rest of Canada had been elected in thé Québec provincial élection. The new government had made thé promise to hold a référendum on thé issue of independence. Proposais for constitutional reform put forward by thé fédéral government in 1978 fizzled out as had so many before, and thé immobility that had reigned since 1927 seemed once again to take hold. However, this picture was completely shattered on 20 May 1980 when, in thé promised référendum, separatism was only narrowly defeated. On 21 May, Prime Minister Trudeau promised in thé House of Gommons that there would be a new constitution. This repeated his earlier promise to Quebeckers if they responded to his urging of them to vote "no" in thé référendum, and he issued a threat that thé fédéral government might act on its own if agreement with thé provinces failed. Following this announcement there was a flurry of activity, with private meetings of various premiers, formai meetings, and a tour by Jean Chrétien, thé minister of justice. A split among thé provinces appeared and Ontario, British Columbia, and New Brunswick refused to attend a private meeting of premiers. When no agreement was reached by thé end of thé summer, a resolution was introduced into Parliament by Trudeau and placed before thé House of Gommons at thé beginning of October 1980, proposing that an

430 The Constitution address would be presented to Her Majesty requesting that thé British North America Act be patriated, that there be an amending formula, and a charter of rights and freedoms. This was followed shortly by thé establishment of a Spécial Joint Committee of thé Senate and thé House of Gommons to study thé proposed resolution and to make recommendations with respect to it. Eight provinces opposed thé resolution, but, signifîcantly, two agreed (Ontario and New Brunswick). As part of thé opposition to thé proposed unilatéral action by Ottawa, référence cases were prepared by three provinces, Manitoba, Newfoundland, and Québec. In thé référence cases, although thé wording differed in each province, thé import was to ask thé courts of appeal whether thé proposed unilatéral action afïected provincial power, and also if there was a constitutional prohibition against enacting constitutional amendments that affected provincial constitutional power without agreement of thé provinces. The constitutional prohibition could either be by convention or constitutional law. Between February and April 1981, thé answers were given by thé appeal courts. First, Manitoba said that there was no constitutional prohibition; second, Newfoundland said that there was a constitutional prohibition, both by convention and by law; and last, Québec also said that there was no constitutional prohibition against unilatéral fédéral action. The Suprême Court of Canada had received much criticism over thé years for uninspired and lifeless judgments, with generally a dash of confusion thrown in, but in thé Constitutional Amendment case, thé judgments were sharp.29 One sensés strong feelings in this highly political case. The judgments rendered were joint judgments, thus eliminating any points being made with respect to a particular judge. However, it was universally accepted that Laskin was thé author of those judgments in which he joined, and Martland was thé author of those judgments in which he formed a part. Throughout thé discussion of thé judgments which follows, référence will be made to Laskin and Martland. There was a split in thé court. On thé question of légal limitations, thé judges split 7—2, with thé majority deciding that there were no légal limitations on Ottawa's intended action. What was remarkable, even astonishing, was that two judges maintained that unilatéral action would be illégal. When it is realized that those two dissenting judges were Ronald Martland and Roland Ritchie one's sensé of disbelief is enhanced immeasurably. On thé question of convention, there was yet another split: thé judges decided 6-3 that unilatéral action, even though légal, would be a breach of convention. The overall conclusion was that unilatéral fédéral action, as proposed by Trudeau, would be légal, but unconstitutional. Specifically, thé judges were aligned as follows:

431 The Captive Court unilatéral action légal and not a breach of convention

unilatéral action illégal and a breach of convention

Laskin Estey Mclntyre

Martland Ritchie

Legal

Dickson Beetz Chouinard [ Lamer

breach of convention

A strong feeling was demonstrated by thé extrême activism displayed by Martland and Ritchie, who were known as thé ultra-conservatives. The majority of seven on thé question of legality (Laskin) wrote that Canada had "an internai deficiency," an "anomaly"30 in that it was thé only sovereign and independent nation on earth that could not amend its own constitution. The attitude displayed by thé language used in thé judgment was that something was needed to remedy thé deficiency, and thé process was described as "thé completion of an incomplète constitution ... a finishing opération."31 For Laskin, "thé remaining badge of subservience"32 was being eliminated. He went on to assert: "The stark légal question is whether this Court can enact by what would be judicial législation a formula of unanimity to initiate thé amending process which would be binding not only in Canada but also on thé Parliament of thé United Kingdom."33 Once again that péjorative term "judicial législation" appeared. The dissenting judges were accused by Laskin of acting illegitimately — "unconstitutionally." For Laskin, since no express limit could be found anywhere in thé law on thé power of thé Houses of Parliament to pass resolutions, there was no légal limitation. The British North America Act was silent on thé issue. There was a rejection of thé compact theory as having any affect on thé law, although it can be noted that this was emphasized in thé Sénats référence. The supremacy of provincial législatures was rejected in favour of fédéral paramountcy. In one of thé most astonishing judgments in thé history of thé court, thé unlikely pair of Martland and Ritchie began with thé proposition that thé dominant principle of Canadian constitutional law was federalism, which was, in other words, thé controlling spirit of thé constitution. In thé past, they said, judges had developed légal principles based on thé necessity to préserve thé integrity of thé fédéral structure. They were thus prepared to fill in thé silence that Laskin and thé majority had found. Martland and Ritchie accepted that it was their duty to préserve thé constitution, that is, its essential spirit. At this point, thé judgment moved into what was a discussion

432 The Constitution of conventions. It was difïicult to separate thé two parts and thé attempt to do so produced an artificial séparation. The discussion of conventions was undertaken to show from practice that constitutional constraints had operated without indicating thé kind of constraint, either légal or conventional. The bottom line was that thé exercise of unilatéral action by Ottawa was simply not consistent with thé constitution and was in fact répugnant to it; it was said to be "out of harmony with thé very basis of thé BNA Act"** On thé question of constitutional convention, Martland, now leading a majority of thé judges, gave what was essentially an essay on conventions, and one of thé best to be found. There was clearly a potential educational effect to it, but it was too late, and most people accepted thé idea that thé décision of thé court was confused. From a review of thé past events with regard to amending thé constitution Martland was able to conclude that perhaps unanimity was thé required situation, but he opted for "a substantial degree of provincial consent," which he once again based on thé fédéral principle.35 This was one of thé most vivid incidents of judicial activism in our history. Where did Martland's convention corne from? He created it! There was no subtlety about it. The conclusion was that if a "substantial degree of provincial consent" was not obtained, then thé fédéral government would be acting unconstitutionally. For Laskin, and his minority of judges on thé convention question, thé point was that before it could be asserted that a convention existed, there had to be no doubt, no controversy, and a universal récognition, or unquestioned acceptance. The very fact that thé fédéral government was acting unilaterally and that thé litigation existed could be said to point strongly to thé nonexistence of a convention. It is interesting that Laskîn took issue with Martland's use of thé word "unconstitutional." Traditionally, Martland was quite correct that thé violation of a convention could be termed unconstitutional; indeed, that was thé correct use of thé term, since in thé law at thé time it was not used. The words ultra vires or intra vires were employed in law. But for Laskin, at this time, and on thé verge of seeing a new constitution along thé lines of that in thé United States, it was imperative that "constitutionality and legality must be synonymous."36 Thus, for thé dissent, there was no convention politically precluding thé proposed action of thé fédéral government. It has to be noted that, by asking thé Suprême Court of Canada for an opinion as to thé existence of a convention, and by thé judges answering thé question in thé affirmative, there would be created thé tendency to give thé convention thé appearance, and possibly thé effect, of a légal rule. The sanction of thé Suprême Court would hâve been given. Because thé général public was largely unaware of thé nature of thé Canadian constitution, thé conclusion that thé proposed action by Trudeau was

433 The Captive Court légal, but unconstitutional, appeared very confusing to thé public. Politically, it seemed to be expédient that thé confusion not be dissipated. The resuit in thé case had not been unexpected. In a leaked fédéral document, known as thé "Kirby mémo," in which thé issues and possible positions were analysed for thé priorities and planning committee of thé fédéral cabinet, it had been stated that a court might pronounce that thé patriation process was in violation of established conventions and thus "unconstitutional," even though legally valid.37 In commenting on thé point that thé court had decided that thé plan was légal but unconstitutional, one writer said: "So a distinction whose fascination previously extended only to a few constitutional lawyers or académies has now become central."38 In a period of some thirty years, Canadians' knowledge of their constitution had become lost. No one who knew seemed to want to explain thé use of thé word "constitutional" as it was used by thé majority on thé convention issue, and as it was understood in thé British constitution, especially since Canada was just about to adopt an Americanstyle constitution. The use of thé word "unconstitutional" had been an issue in thé case, and Martland and thé majority had apparently triumphed over Laskin and thé other dissenting judges. In reality, however Laskin's position won, since thé public accepted thé notion that confusion existed in thé case, and since by 1982 thé American use of thé word had become thé one that was dominant in people's minds. THE QUEBEC VETO CASE On 28 September 1981 thé Suprême Court of Canada had branded thé contemplated action of Trudeau and his government as unconstitutional. For thé first time thé delivering of a judgment of thé court had been televised. The sound quality of thé production was very poor, and thé commentators at thé time kept saying that it was ail very confusing. In what unfortunately leaned towards farce, thé image of thé court was certainly not enhanced. The fédéral government could legally patriate thé constitution, but thé terrible prospect that, if thé patriation was undertaken unilaterally, thé argument could then be raised that thé new constitution of Canada was unconstitutional, would hâve been too much for most people, and discussions began again. On November 1981, agreement was reached among ail thé provinces except Québec. The National Assembly of Québec passed a resolution on 1 December 1981, announcing a dissent from thé proposed amendments to thé constitution. On 10 December, thé Québec government referred to thé Québec Court of Appeal thé question of whether thé consent of thé province was necessary in order for thé constitutional changes to take effect. On 7 April 1982, ten days before thé new constitution was to be proclaimed by thé queen on

434 The Constitution Parliament Hill at Ottawa, thé Québec Court of Appeal held unanimously, 5-0, that Quebec's consent was not needed.39 It was not until 14 June 1982 that thé case was heard by thé Suprême Court. The question before thé court looked simple. Did thé requirement of a "substantial degree of provincial consent" mean quantity only, or was there an élément of quality involved, namely that not ail thé provinces were equal, and Québec because of its historical place within Canada might indeed argue for a spécial status. Québec urged thé principle of duality as a basis of Canada, with Québec being a "distinct society," an expression which was contained in thé order of référence of thé Québec government. The Suprême Court decided 9-0, in a judgment of "The Court," that there never was a convention giving Québec a veto. The Suprême Court avoided using thé "substantial degree of provincial consent" test, which was said in thé Constitutional Amendment référence case to be thé convention; instead thé judges looked for a spécifie convention that Québec had a veto. This approach impliedly called into question thé convention found by thé majority in thé first référence. By thé time thé Québec Veto case was heard, Martland had retired. For René Lévesque and thé Parti québécois thé décision, although inévitable, was useful politically as a confirmation that Quebec's status within Confédération was not what Quebeckers wanted.40 The Meech Lake Accord with thé controversy over thé expression "distinct society" was yet to corne.41

PART G

The Era of thé Charter, 1980-1989

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31 Waiting for the Charter

So dominant was the Charter of Rights and Freedoms with respect to thinking about the Supreme Court throughout the entire 1980s that this part of the study, which covers not only the years since its inclusion into our constitution in 1982 but also the very early 1980s, has been titled "The Era of the Charter." The Canadian Bill of Rights had been welcomed into Canadian society as something mildly interesting, but not really needed. The fact that the Liberals, the opposition party of the day, had made it a partisan issue, and had challenged the idea that it was necessary, added immensely to its ultimate downfall. The Supreme Court of Canada and the judges of the lower courts had effectively dismissed it out of hand, with the exception of Drybones, but that case had only a limited practical effect since it was narrowed to its facts; later, in Lavell^ the concept of equality was reduced to insignificance. In 1960 there had existed a sentiment that had made the creation of the Bill of Rights politically possible, but public opinion was not stirred when later the Bill was emasculated by the legal system, and by the Supreme Court in particular. Just as the Bill of Rights was identified with John Diefenbaker, so the Charter of Rights and Freedoms was closely identified with Pierre Elliott Trudeau. When he joined the Liberal government of Lester Pearson in 1967, the prime minister announced in July of that year that the government's plan was to create a bill of rights that would be a clearly recognized part of the "written" constitution. The proposed charter was associated with the plan to be able to amend the constitution in Canada, end Canada's reliance on Britain, and also to protect minority language rights in the various provinces.1 A charter was agreed upon at the Constitutional Conference in Victoria in 1971 by the provincial premiers and Trudeau, who was by then prime minister, and there seemed to be considerable support for the inclusion of a

438 Waiting for the Charter bill of rights in the constitution.2 The agreement on a charter was, however, dependent on an agreement on an amending formula, and when that was not forthcoming, the charter was shelved. Spurred on to renewed attempts to reform the constitution by the election of the Parti que'be'cois in Quebec in November 1976, the federal government introduced into Parliament in June 1978 a planned revision of the constitution. Included were Senate revision, creation of an amending formula, change of the legal status of the constitution as a British statute, division of legislative power, language rights, and a charter of rights and freedoms. Significantly the charter was to be binding only on the federal government and was to be optional for the provinces. Each could adopt it or not. The problems that Diefenbaker had faced twenty years earlier were apparently still alive. Failure of the federal government and the provinces to reach an agreement again ensued and finally, following the federal-provincial conference of September 1980, Trudeau announced his intention to proceed unilaterally with constitutional revision. In the package of constitutional changes that were proposed was a charter that would be binding on both the provinces and the federal government. The option provision for the provinces contained in the 1978 proposals was gone. It was difficult politically to oppose the charter because of the nature of its content, which Canadians had come to view differently after twenty years of conditioning by exposure to American television, movies, magazines, and so on. The old appeal to the protection of rights and freedoms by the British tradition of the political process seemed more hollow than it had been prior to the creation of the Canadian Bill of Rights in I960. With the creation of the bill, sole reliance on this tradition had been rejected. The ethnic mix of Canadian society following World War II made the singling out of British traditions in this area more and more politically sensitive. Still, several provinces, such as British Columbia and Alberta backed off and claimed that political protection of civil liberties by legislatures was better than relying on the legal system. Ontario threw its weight behind the inclusion of individual rights in the constitution, as did New Brunswick and Prince Edward Island. The foremost champion against the creation of a constitutional charter of rights and freedoms became the Conservative premier of Manitoba, Sterling Lyon. The image that was created for Lyon was that of a right-wing reactionary who opposed the assertions of individual rights and freedoms. Few politicians wanted such vivid impressions to be bandied about. The public was being readied for the charter. In the Toronto Globe and Mail of 7 July 1981, the headline on page 1 read: "Canadians not guaranteed basic freedoms, judge rules." The news story was about a provincial court judge in British Columbia who had been considering a by-law that prohibited the display of posters; he had commented that no freedom was so enshrined in the constitution as to be above the reach of competent legislation.

439 The Captive Court A short time before, the Globe and Mail would not have considered such a story to be front-page, headline material, since the subject would have been taken as a given within society. This could only be proof that the view of the philosopher George Grant that "[t]he explicit statements of the American constitution guard their system of justice; the British constitution guards the same shape of rights in a less explicit but in a more deeply rooted way,"3 had become valueless as it applied to Canadian society. This was clearly shown when the Globe and Mail followed a week later with two editorials entitled "Rights and illusions." The point was made that Canadians should realize that our fundamental freedoms were not guaranteed, and we should reject our groundless faith in the belief that they were. It was said that there was the need to entrench a bill of fundamental freedoms in the constitution.4 In the period of time before the actual creation of the constitutional charter, public comments focused on the power that the charter would confer on the judges. The judges were seen as acquiring a definite political role and as such the press gave indications that the judiciary would be subject to the same scrutiny as other politicians. While the legal system had obviously always contained a political element, particularly in the area of the judicial review of legislation, most lawyers and judges liked to think of themselves as having a non-political task. So sensitive were many within the profession about this point that use of the word "political" in a judicial context would be at one's peril in a gathering of the legal profession. The spectre of the dead Bill of Rights, slain by the judiciary, could be dismissed at this time with the incantation of the idea that the Bill had not been in the formal written constitution, but had only been a legislative enactment of the Parliament of Canada. The negative civil-liberty case of McNeil, and the fact that the Implied Bill of Rights had been destroyed by the Supreme Court in Dupondvf&t generally overlooked.5 As the time approached, seminars for judges were created dealing with judicial review and civil liberties, since their legal education had not prepared them. Courses dealing directly with civil liberties had existed, but they were exceedingly rare. After the provinces' challenge to the unilateral action of Trudeau had succeeded when the Supreme Court held that such action was unconstitutional, the provinces, excluding Quebec, reached agreement with Ottawa. Of immeasurable importance to the future of the charter was the insertion of a new provision - a "notwithstanding clause," section 33: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 [Fundamental Freedoms] or sections 7 to 15 [Legal Rights and Equality Rights] of this Charter.

440 Waiting for the Charter (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or a legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). In 1978 there had been provision for the provinces to opt in with regard to the application of a charter; now there was a provision for opting both in and out. There had also been such a provision in the Bill of Rights.6 The conclusion was that the rights and freedoms were guaranteed in the new written constitution unless the politicians determined otherwise, which was the situation that existed before the charter. Thus when the Charter came into being as part of our constitution on 17 April 1982, it did so with a distinctly split personality.7 THE J U D I C I A R Y When the Canadian Bill of Rights was enacted, the most marked aspect of the judges of the Supreme Court had been their definite conservative hue. Rand had retired and Martland and Ritchie were solidly on the bench. When the Charter was enacted, there were indications otherwise, but problems still existed. In 1979, the cover story for Maclean s February edition described how the court was divided and the lack of creativity among the judges. Although Laskin was said to have raised the intellectual tone of the institution, yet this was judged not to have had any significant effect.8 In the early 1980s, academic criticisms were still being levelled at the judges for not analysing sufficiently the problems that were being put before them.9 The leading courtwatcher, political scientist Peter Russell, was able to point out once again the age-old problem that the decisions of the court did not articulate "the fundamental principles underlying the legal doctrines and precedents on which a decision turns," with the judges adhering to what has been coined "a formalistic style of opinion writing." Russell also pointed out the fact that has distressed many and appears to defy correction: "Compared with the highest courts of Great Britain, Australia and the United States, the universal value of its contributions to legal reasoning have [sic] been unimpressive."10 When dealing with the rights and freedoms in the Charter, it is impossible to fall back on the so-called "formalistic style," since this is a euphemism for a decision in which the reasons consist of the names of precedents and the words of a rule. It is mechanical jurisprudence. With the general and value-

441 The Captive Court laden words of the Charter such as freedom of expression, such reasons would be transparently meaningless. But there were changes underway. On 8 February 1980, Louis-Philippe Pigeon, the conservative philosopher of destruction for the Bill of Rights, reached the retirement age of seventy-five, and was succeeded by Antonio Lamer. At forty-seven years of age, Lamer was well below the average age of those appointed in the past. At the time of his appointment, he was a member of the Quebec Court of Appeal, but his prime success had been as chairman of the Law Reform Commission of Canada. He had the reputation for being a reform-minded individual, who as chairman of the commission was considered by the legal profession to be too activist, too liberal. He was committed to assessing the law in the light of current social values." The most significant change was that after nearly a quarter of a century on the court, Ronald Martland retired on 10 February 1982. Although publicly he had been a silent, anonymous judge while on the bench, he spoke out sharply when he retired in 1982 in criticism of the creation of the Canadian Charter of Rights and Freedoms. In an interview with Southam Press, he asserted his belief that the Charter would not really do much for individuals; the power that it would create in the judiciary was better left with the legislature. He said that he did not like judges being given general phrases and being required to give them meaning.12 Since Ontario had in effect given up a position on the court when McIntyre from British Columbia had been appointed in 1979, it was thus not surprising that with the retirement of Martland from Alberta, the next judge was from Ontario. What was unprecedented was the appointment on 30 March 1982 of Bertha Wilson, the first woman to sit on the court. She had been on the Ontario Court of Appeal for six years. She had not had practical legal experience in the traditional sense; as a lawyer her work was of an academic nature in that she had been involved in legal research in a Toronto law firm.13 She had studied philosophy at the University of Aberdeen, Scotland, and had shown creativity while on the Ontario Court of Appeal by creating the tort of discrimination, but her work went to nought when the Supreme Court, led by Laskin, overturned the decision.14 In addition to the reversal of this case by Laskin, it was widely rumoured at the time that Laskin had expressed a specific preference for another Ontario judge.15 Whatever problems might have existed between Wilson and Laskin never came to head, since on 26 March 1984, before the Supreme Court had yet to render a decision in a case dealing with the Charter, Chief Justice Bora Laskin died at the age of seventy-one. His illness had continued since the late 1970s, kept largely undisclosed. The most creative judge to have sat on the bench of the court was not able to turn his energies on the new Charter. However, by the 1980s he was not leading the court, and a combination of illness and what must have been disappointment had caused a general deteri-

442 Waiting for the Charter oration in his ability. He was remembered not only as the "great dissenter," but also the chief justice who brought a conservative court into a new era. With the exception of the early 1970s, however, it had never been the "Laskin Court."16 When Laskin died, the question of who would be the chief justice to head the court as it moved into the age of the Charter became a topic of some interest. Trudeau had acquired the reputation for appointing judges who had displayed some capacity for creative work such as Laskin, Jean Beetz, Antonio Lamer, and Bertha Wilson. The opportunity was present for another dramatic move, particularly since the Charter was knocking at the door of the court. The senior judge was Roland Ritchie, whose record with the Bill of Rights and other civil-liberty cases made him an anathema with respect to the Charter. He was seventy-three, in noticeably failing health, and clearly not in the running. The next senior judge was Brian Dickson, who was sixty-seven. The practice of selection based on seniority - a neutral and the least disruptive process - pointed to Dickson. He was considered capable, and in the end Trudeau opted for him. Dickson was seen as a more conservative judge than Laskin, with a limited view of the role of the court.17 Based on his performance in Harrison v. Carswell and other decisions, it seemed that he was preoccupied with the limits on his function, rather than the scope it could have. His corporate-law background would not serve him well in the Charter cases. The question of the appointment of a judge to occupy the position left vacant by Laskin's death was also before the government. For this person the Trudeau government again selected an academic, Gerald Le Dain, who had been a member of the Federal Court of Appeal for almost nine years. Prior to his judicial appointment, Le Dain had taught at McGill University and had been dean of law at York University. The changes continued; in early November 1984 Roland Ritchie retired because of ill health within a year of the date of his compulsory retirement. His replacement would not be named by Trudeau, but by the Conservatives under Brian Mulroney, who had taken office following the general election of 1984. The Conservatives continued the Trudeau practice, and appointed an appellate judge, Gerard La Forest of the New Brunswick Court of Appeal. La Forest had been appointed to the New Brunswick court in 1981 by the Trudeau government. His background was primarily academic; he had taught law at the University of New Brunswick for twelve years and been dean of law at the University of Alberta for two years. He also had experience working in the federal Ministry of Justice and at the Law Reform Commission of Canada. Maclean s commented on his appointment as heralding "a new era for Canada's highest court."18 Maybe this time, with the other changes that had occurred, it would be true. During what has been called the waiting period for the Charter, the court dealt with a number of cases that provided an insight into the work of the

443 The Captive Court judges as Canadians awaited the Charter decisions. One of the interesting side-effects of the wait was that the Canadian Bill of Rights came alive. With the change in social values that was making the creation of the Charter possible, it was predictable that the Bill of Rights would also acquire new meaning. THE QUEEN v. SHELLEY, 1981 The decision in Shelley could be called a victory for Bora Laskin, but as all were awaiting the Charter, no one cared anymore about the Bill of Rights, and in stark contrast to the reaction to the Drybones case of 1969, the decision in this case was simply noted as "Supreme Court applies Bill of Rights," and was buried on the inside pages of the newspaper.19 The Shelley case was heard at the end of January 1981, and the decision of the court was delivered on 22 June 1981.20 The accused, Shelley, had been charged and convicted of the possession of goods that were unlawfully imported. The problem in the case was one of proof. There was no disagreement that the goods were in his possession, and that they had had a foreign origin.21 The question was whether they had been unlawfully imported. The Crown relied on a provision of the Customs Act that put the burden of proof on the accused in such a case to prove that the goods had been lawfully imported.22 The accused challenged this provision on the basis that it violated his right to be presumed innocent, as guaranteed by the Bill of Rights.23 Laskin rendered the judgment for a bare majority of the court (4—3); the other judges who comprised the majority were Dickson, Estey, and Mclntyre. Laskin held in favour of the accused, since, in his opinion, there could be no necessary connection between the fact that the accused was in possession of goods having an origin outside the country and the fact that they had been unlawfully imported. The Crown in such a case as this was said to have the obligation to introduce evidence surrounding the importation before the accused could be said to have a burden of proof to discharge. It is interesting that Laskin went to the words of Ritchie in an earlier case for support of his conclusion,24 something that Ritchie had done to him repeatedly with regard to his words of restraint in the Curr case. For the first time Ritchie rendered a dissenting judgment in a Bill of Rights case. With him in dissent was Martland and Chouinard. He stayed with his opinion in the 1971 decision The Queen v. Appleby1*1 in which he went to the inspiring words of Viscount Sankey with regard to the presumption of innocence: "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject to any statutory exception."26 Ritchie had at that time focused on the concluding words "subject to any statutory exception," which had the effect of rendering the Bill of Rights impotent, and he had ignored

444 Waiting for the Charter the spirit of Sankey's statement. Not being content with repeating his emasculating idea from Appleby, he went on to emphasize the words "according to law" that appeared in the provision of the Bill dealing with the presumption of innocence "the right to be presumed innocent until proved guilty according to law in a fair and public hearing by an independent and impartial tribunal." The result was, of course, the same - the statutory exception would be the law. The fact that this time a majority of the court did not go along with him must have had some effect. On the eve of the creation of the Canadian Charter of Rights and Freedoms, which would apply to provincial law, and which would be written in the constitution, Ritchie had lost his conservative majority, and Laskin had finally won. THE QUEEN v. ANCIO, 1984 The changes that were underway with regard to the performance of the court in the eighties were illustrated in a case that displayed an ability to escape the captivity that had so long ruled it. The question involved in this case was the intent required for a conviction on a charge of attempted murder when the facts arose out of a constructive murder scenario. The accused, in possession of a loaded sawed-off shotgun, had broken into and entered a residence. His wife was in the residence, and he had intended to force her to leave with him. The gun went off and narrowly missed the man with whom his wife was living. The accused was charged with the attempted murder of the man. In a 1973 case, Lajoie v. The Queen,27 a unanimous court (9-0) had held that a conviction of attempted murder could be sustained in a constructive murder situation. Martland had rendered the judgment of the court, which had consisted of Fauteux, Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon, and Laskin. In this case, the trial judge had directed the jury that the accused had to have the intention to kill a person, and he had declined to direct the jury that an intent to cause bodily harm knowing it was likely to cause death and being reckless whether or not death ensued was sufficient for conviction. The accused was acquitted. The British Columbia Court of Appeal reversed the acquittal and ordered a new trial. The Supreme Court dismissed the subsequent appeal. In a brief judgment, Martland noted that judicial authority was split on the question, went to the wording of the Criminal Code,28 and stated the conclusion that there need not be an intent to kill the victim, based apparently on the wording only. The trial judge convicted Ancio, but the Court of Appeal quashed the conviction and ordered a new trial. The Supreme Court affirmed the Court of Appeal's decision, 7—1.29 Ritchie dissented and merely stated that he felt bound by Lajoie. Mclntyre rendered the judgment of the majority.

445 The Captive Court The Ontario Court of Appeal had held that what had been said in Lajoie about committing attempted murder was obiter. The case was said to have decided that there could be a finding of attempted murder when it was established that the accused meant to cause the victim bodily harm which he knew was likely to cause death and was reckless whether death ensued or not. There was a need to review the Lajoie case, which Mclntyre noted lay at the heart of the controversy about the existence of the rule. After a survey of the previous cases, and a look at the historical development of the offences of murder and attempted murder, Mclntyre responded to counsel's request that logic and principle should dictate the court's decision, not the authorities, by turning afresh to the language of the law. He engaged in an analysis of the language independent of Lajoie and disagreed with Martland's conclusion. He found it "impossible" to agree with the earlier case, and could easily sweep Martland's analysis aside since it had been so shallow.30 The Supreme Court had responded positively to an argument that demanded independent thought about the problem. In the cases that would involve the Charter, the concepts such as freedom of expression would force the judges to enter the area of social values openly. With the competing values that exist within a democratic society choices would need to be made and inevitably the judges would attract controversy — the very thing they had attempted to avoid so rigorously over the years. They had a good taste of social controversy in the following case. "EVE" BY HER GUARDIAN AD LITEM v. MRS "E,"1986 This case, known as the Eve case, involved the issue of the sterilization of mentally retarded people. The case originated in Prince Edward Island. The appeal was heard in early June 1985 by the full bench, which at the time consisted of Chief Justice Dickson, and Beetz, Estey, Mclntyre, Chouinard, Lamer, Wilson, Le Dain, La Forest. The judges refused to take advantage of the opportunity to assert power, and they backed away from determining if and when sterilization should be undertaken. The judgment of the court was written by Mr Justice La Forest, the newest member on the court at the time.31 The fact that he was from the Maritimes may have been a factor in his writing of the judgment. The facts were that the widowed mother of a twenty-four-year-old mentally retarded woman, who had shown signs of being interested in forming a relationship with a male, feared that her daughter might become pregnant, and sought to have her sterilized. There was doubt as to her right as a parent to have the operation carried out and she consequently applied to the court for authorization. The legal route undertaken by the mother was to have her daughter declared mentally incompetent, and then to have a committee es-

446 Waiting for the Charter tablished that would act as her guardian. The mother sought to be appointed as her daughter's committee, and once that had occurred she would then seek authorization to have the sterilization operation performed. There was no controversy regarding the establishment of a committee for Eve, based on mental incompetence, but there arose considerable difficulty when it came to the question of the authorization of the operation. The trial judge, C.R. McQuaid, refused to accept that he had any power to authorize it. After he determined that Eve risked the loss of a basic human right, he said: "the Eves of this world, regardless of how retarded, are nevertheless persons with rights which the courts must preserve and protect."32 He concluded: "[T]he court, in whatever capacity, does not have either the authority or the jurisdiction to authorize a surgical procedure on a mentally retarded person, the intent and purpose of which is solely contraceptive - sterilization for the sake of sterilization."33 The appeal court overruled McQuaid, but by a narrow 2-1 margin.34 The reasons of the three judges of the appellate tribunal were considerably different. Large, a judge of the majority, viewed the operation as therapeutic if the degree of mental retardation was severe enough. For him, the protection from pregnancy for Eve was the same as protection from an illness, such as measles. Campbell, the other majority judge, accepted a power in the judiciary, based on the doctrine known as parens patriae, to authorize a nontherapeutic sterilization, if the judge considered it to be for the welfare of the woman. Campbell also viewed the problem from the perspective of a right to be sterilized, which might be asserted by a competent adult. Eve was seen as having a "substituted right to choose."35 The dissenting judge, MacDonald, followed basically the same route as that taken by the trial judge. He added that in his opinion non-therapeutic sterilization was not in accordance with public policy in Canada. For him, a basic human right was involved. However, he deviated quite sharply from McQuaid's opinion when he mentioned that he did not want to establish as a firm rule that contraceptive sterilizations could never be ordered. Such orders would be exceptional in his view and a close reading of his judgment seems to indicate that they would be ordered only when pregnancy and birth of a child would have a psychologically damaging effect on the mother and there was a likelihood of a substantial injury. The "usual" sources of the law provided little or nothing to aid a judge in the search for an answer. What should a judge do - create law, or decline to do so, and leave it to the political process? The most basic issue in this case was who should make law, the judges or the legislatures. In many instances judges are in need of help from other professions. Legal education as traditionally undertaken does not equip lawyers to deal with a problem such as the one found in this case, namely the sterilization of the mentally retarded. The Canadian Association for the Mentally Retarded, and

447 The Captive Court the Canadian Mental Health Association, along with the federal government intervened to oppose the court ordering the operation. The Public Trustee of Manitoba intervened and supported the power of the judiciary to order the operation, but a new trial was asked for since it was considered that the lower court had not fully considered the particular case. In a long and somewhat repetitious judgment that indicated the natural hesitancy that such an issue could create, Mr Justice La Forest concluded that it could never be said that such an operation would be necessary for the benefit and protection of Eve, because of the intrusion on Eve's rights, the physical damage involved, and the highly questionable advantages. He was concerned with the social aspect of the problem, which he saw as signalling caution to the judiciary. Social values such as concern with eugenics and social attitudes towards the mentally handicapped had become engaged. So too was the competence of the judiciary brought to the fore. La Forest considered that the judges could be ill-informed and had a limited capacity to deal adequately with the problem that had such general social overtones. The Supreme Court had entered an area of some controversy within society. The question was who, if anyone, should be able to authorize the sterilization of a mentally retarded female who is unable to give informed consent. The judges took the position that caution and restraint should be their guide. In 1978 the issue of the sterilization of the mentally retarded had reached public attention when the Ontario government ordered the stop to the contraceptive sterilization of children under the age of sixteen. The Official Guardian had reported that 318 retarded people under eighteen had been sterilized in 1976 (all but fifty were females). The action by Ontario had sent out a signal that sterilizations were to stop until a policy in accord with social values had been established. In the absence of any policy within society the judges are, of course, powerless — their function is to follow social values. The decision of the Supreme Court did appear to give support to those who were opposed to sterilizations, and it was to be expected that the judges would come under attack for the decision. The attack was vehement in the syndicated newspaper column by "Dr Gifford-Jones." It was written: "I'd recommend that the judges discard their ermine robes for a day and take home a severely retarded child. That, for 24 hours, they help to feed the child, change its diapers and try to decipher its unintelligible words. That they witness first hand the dramatic and emotionally exhausting changes that occur in a household faced with this problem."36 It is clear that the judges must understand the social problem with which they are grappling, and they must deal directly with that problem, which is what they have repeatedly been criticized for not doing over the years; however, in the absence of clear social values to guide them, their stance must be to maintain the status quo. While there was no question that the judges had

448 Waiting for the Charter entered the political arena and thus they had to expect such criticisms, "Dr Gifford-Jones" recommendation would have been better directed at other politicians. The old pleas that the judges do not make law, but only apply it, and it is the law that directs the result, not the choice of the judges, would now seem clearly forlorn. IN 1946 on the eve of the new era when the Supreme Court would be the final court of appeal an article had appeared dealing with the establishment of the court.37 In 1985, reminiscent of that occurrence, only on a much larger scale, the first full history of the court was published.38 The work covered the history of the institution up to the creation of the Charter and could serve as a guide as to how the Charter cases would be handled. In an excellent and penetrating preface, the authors identified certain themes: "A judicial conservatism has long dominated the Supreme Court of Canada. Judicial conservatism is defined here as 'a tendency literally to conserve or maintain existing law by strictly, even mechanistically, applying established rules and precedents. The conservative judge is unwilling to modify rules and thus little interested in policy arguments about the effect of his decision or the social function of a rule.' "39 The expression "judicial conservatism" can be seen to be a euphemism for lack of creativity, or lack of thinking about a problem. The court, it was noted, had not been highly regarded for the quality of its work, and the fault was said to lie in the "environment" in which the court existed, and exists, namely, "first class law schools, quality legal journals, and an able and sensitive legal fraternity - both teaching and practising."40 In particular the poor quality of legal education was said to have been notorious. The authors also identified a current of anti-intellectualism which they said has pervaded English-speaking Canadian society, that would have had a dominant influence on education. The book pursued several general tendencies, which the authors identified. These were to emphasize Duffs greatness, and to note both the improvement in the quality of the judges' work over the years, and the element of political patronage in the appointments (particularly Liberal appointments). Finally the topic of politics and the court was strongly and continually emphasized. In light of the criticisms of the court over the years, right up to the present time, the emphasis on Duffs greatness, and the improvement in the judges, which was presented as being on a continuum, must have been an attempt to find something up-beat to write about the institution. As the institution entered a new era, for which it had had little if any preparation, it had acquired at least the prestige of having had a history written about it.

32 The Charter

If the judges had thought that the beginning would be easy with respect to Charter cases, they were rudely awakened when government policy with respect to allowing the United States to test weapons in Canada was challenged. OPERATION DISMANTLE INC. v. THE QUEEN, 1985 The controversy began with the desire of the United States Air Force to stage flight tests in Canada for a new weapon known as the cruise missile, an airlaunched missile that operated as a pilotless plane, 6.3 metres long, with a wingspan of 3.6 metres, and that would eventually carry a nuclear warhead. It was designed to fly close to the ground to avoid detection by radar. In March 1982 it became public knowledge that the Americans had asked the Canadian government for permission to carry out the tests and the Liberals under Pierre Elliott Trudeau had agreed in principle. As a result, protest rallies developed and the proposed testing became a focal point for the disarmament movement in the country. Any involvement by Canada was seen as Canadian participation in the nuclear arms race.1 Canada was already involved to the extent that the guidance system for the missile had been produced in Canada by Litton Systems Canada Ltd; the industry had been the subject of anti-nuclear demonstrations and in October 1982 was the target of a six-million-dollar bombing that injured seven people. Gallop polls in 1982 showed that 50 to 52 per cent of Canadians were opposed to having the missile tested within Canadian territory. In February 1983 it was announced that an agreement had been reached between Canada and the United States that would allow the United States to test weapons in Canada over a ten-year period. It was also announced, however, that a special decision would be taken with respect to the testing of the

450 The Charter cruise missile. When opposition to the testing mounted, Prime Minister Trudeau took the highly unusual step of sending an "open letter" to newspapers across Canada in which he justified the agreement by the fact that Canada was a member of NATO, and the agreement was support for our allies. He said that he saw the cause of the criticisms by some as antiAmericanism. The first test was scheduled for sometime in March 1984. As a political move, a formal request to test the cruise missile was made in June, and a month later on 15 July 1983 it was announced that the cabinet had decided to allow the testing of the missile. The response to the announcement was that various peace groups and labour unions sought an injunction from the Federal Court to stop the testing, and they also sought a declaration that the decision of the government to allow the testing was unconstitutional. The applicants argued that the testing would violate their rights as guaranteed by the Charter of Rights and Freedoms. In the days before the creation of the Charter, if such a protest had even existed, there would have been no hope for any measure of success through the use of the legal system. Now with the Charter the engaging of the legal system very likely created no more real chances of success, but there was an aura of plausibility about the proceedings. The newness of the Charter created an air of anticipation for the average Canadian. The fact that Trudeau and his government were highly unpopular in 1982 and 1983 added an extra element with regard to the litigation. Trudeau gave up his position as prime minister in June 1984 and the new leader of the Liberal party and prime minister, John Turner, led the party to an overwhelming defeat in the general election of September 1984. The government moved to have the action dismissed on the ground that there could be no possible basis for seeking the injunction and declaration. On 15 September, Mr Justice Cattanach of the Federal Court rejected the motion for dismissal and decided that the hearing could go ahead. The government appealed to the Federal Court of Appeal, and a panel of five judges heard the appeal in mid-October 1983. The appeal was allowed, the statement of claim was struck out, and the action dismissed in a decision rendered on 28 November 1983. On the same day, the applicants took the case to the Supreme Court and a three-judge panel consisting of Chief Justice Laskin, Mclntyre, and Chouinard, granted leave to appeal. As a sign of changing times, the Toronto Globe and Mail ran a front-page story about the background of Alex Cattanach, the Federal Court judge. The basis of the coverage was that now that the Charter existed, the public should know more about the judges as individuals, and what their views were. The writer acknowledged that she had met with resistance in compiling her information.2 Such a story has not appeared since. The appeal before the Supreme Court was heard on 14 and 15 February 1984 by a panel of seven judges - Ritchie, Dickson, Estey, Mclntyre, Chou-

451 The Captive Court inard, Lamer, and Wilson. Judgment was not rendered until 9 May 1985, fifteen months later.3 The decision making had apparently been very difficult. On 6 March 1984, the first cruise missile had been tested amidst an air of resignation among the protesters. The government argued that the judiciary had no authority to review cabinet decisions affecting national defence or international relations. Such an argument enhanced the interest in the case since it projected the image that the executive was fighting the power of the courts and saying that the Charter did not apply to it. It was likely that the argument was not necessary in this stark form. It did fit the confrontational style of Prime Minister Trudeau. In the Federal Court of Appeal, there was a 2-2-1 decision, with no dominant reasons for judgment.4 The key point was the argument that the decisions of the government were not subject to review. The argument of the applicants was that the testing infringed their rights under section 7 of the Charter: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The argument that the testing created a deprivation of the right to life, liberty, and security of the person, and that this was not in accordance with the principles of fundamental justice, was easily disposed of when the judges of the Court of Appeal pressed the lawyers for the applicants to articulate what principle of fundamental justice had been breached, and no response was forthcoming. The tenor of the judgments seemed to be that the judiciary did have the authority to monitor the exercise of prerogative power (executive power), but within limits. The crucial question was what were the limits. There was a sense, although not expressed in all judgments, that the political decisions of the government dealing with international agreements and defence matters would not be monitored, because they were perceived to be inherently nonjusticiable. In the Supreme Court, two judgments were rendered: one by Mr Justice Dickson, that was concurred in by Estey, Mclntyre, Chouinard, and Lamer, and one by Madame Justice Wilson alone. Wilson concurred with Dickson only with respect to the result that he reached, not his reasons. Mr Justice Ritchie took no part in the judgment since he had resigned from the court following the hearing and before the judgment was rendered. To the extent that public disaffection with the Trudeau government had been operating, and if Pierre Trudeau had been in some way correct when he mentioned that the protests against the testing of the cruise missile were in part inspired by an anti-American sentiment, then it is important to note that when the decision of the Supreme Court was rendered on 9 May 1985, the mood had changed. The Conservative government of Brian Mulroney was solidly in power with the second largest mandate in Canadian political

452 The Charter history. There was talk of free trade with the United States, and co-operation in the "Star Wars" (Strategic Defence Initiative) research project, to the extent at least of allowing private interests to participate. On the question of the reviewability of cabinet decisions, Mr Justice Dickson referred to Wilson's judgment with the comment that "the facts and procedural history of this case are fully set out and discussed." This might be an indication that Wilson's judgment had been written first as the decision of the court, but she had been unable to carry a majority of the judges with her. Dickson came to the same conclusion as had Wilson but for different reasons. He made only a very brief statement early in his judgment that cabinet decisions could be reviewed, and that the government bore a general duty to act in accordance with the Charter. He later commented that he had no doubt that the Charter applied to the executive, and that the cabinet had a duty to act in a manner consistent with the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Near the end of his judgment he added a short comment on the issue of justiciability, in which he stated that he had no doubt that disputes of a political or foreign policy nature may be monitored by the judiciary. But he went on to state that, in the particular case, he was concerned about the impossibility of the judges finding on the basis of evidence the connection alleged by the applicants between the duty of the government to act in accordance with the Charter and the violation of their rights under section 7. Specifically he could not accept that the increased threat of nuclear war could be linked as a factual matter to the duty to respect section 7. For Dickson, the key word was "speculation." The difference between Wilson's judgment and that by Dickson for the other judges was that Wilson rejected the idea of evidence and proof raised by Dickson and its connection with the issue of whether the court could deal with the matter. For Wilson, it was not the ability of judicial tribunals to make a decision, but whether it would be appropriate for them to do so. Wilson dealt very fully with the issue of the reviewability of cabinet decisions, writing a mini-treatise. Dickson simply accepted the point, thus questioning in effect the effort that Wilson had expended. Wilson did not clearly articulate when it would be appropriate for the judiciary to intervene. It was left vague. She had, in effect, announced her willingness to intervene and then left it to her discretion as to when it would be appropriate to do so. She did give some examples to illustrate her attitude, but they had an air of unreality. Her first example was "the case of a person who is being conscripted for service during wartime and has been ordered into battle overseas, all of this pursuant to appropriate legislative and executive authority." She concluded: "If the Court were of the opinion that conscription during wartime was a

453 The Captive Court 'reasonable limit' within the meaning of s. 1, a conscriptee's challenge on the facts as presented would necessarily fail." It seems impossible to imagine that any judge would hold that it would be an unreasonable limit in the circumstances outlined. As a second example, she gave that "the government decided to force a particular group to participate in experimental testing of a deadly nerve gas." Could such a happening be truly envisaged? At the time when such a possibility exists, our society would have changed so much that any bill or charter of rights and freedoms that had been created by humans could do nothing. Third, "during wartime ... the army began to seize people for military service without appropriate enabling legislation being passed by Parliament."5 This example was subject to review before the Charter since the most fundamental of all our constitutional principles was the Rule of Law. The fact that there was no enabling legislation was the crucial fact and the Charter would not be needed. It would have seemed that this issue was uncontroversial,6 On the question of an infringement of rights under section 7, Wilson considered that the threat to life and security due to an increase in the risk of nuclear war caused by the testing was only an incidental effect, and she was of the view that a direct infringement was needed in order to be able to raise section 7. Since there was no real dispute with regard to the application of section 7, the litigation had to fail. Why then did the Supreme Court take the appeal? In granting leave to appeal, Laskin commented that the "politically charged" case raised legal issues that the court wanted to consider.7 Since Laskin did not participate in the appeal, we do not know what he had in mind regarding the "legal issues." Certainly, it was "politically charged" and all eyes had been on the judiciary with respect to the Charter. In essence the case provided the Supreme Court judges with the opportunity very early in the Charter era to assert that they were prepared to monitor the executive, and thus project the appearance of political power. The traditional role of the judiciary had been to monitor the executive, to ensure that it acted in accordance with law. That role in a Charter context would be to interpret the law that the executive relied upon as the legal authority for its actions, based on the values seen to be expressed in the Charter. The fact that the government had challenged the authority of the judges to review cabinet decisions in the circumstances gave the case more of the appearance of a confrontation, which helped the image of the court. The case had provided the Supreme Court with the opportunity to say publicly that it was ready and willing to use its power, even in a highly political case. When and how it would use the power remained uncertain. It appeared as if Wilson was attempting to make her mark in the high profile Charter litigation that was beginning. Later in 1985 she was to say that "the Charter represents a fundamental re-ordering of the political balance

454 The Charter of power."8 She was also of the view that the judges were the watchdogs over the rights of the citizen. In her attempt to control the decision of the court in Operation Dismantle, she had been able to garner no support. The chief result of the decision in Operation Dismantle was the not inconsequential one of the court saying it was there. The decision the same year in the British Columbia Motor Vehicle Act reference had a much greater effect. REFERENCE RE S. 94(2) OF THE MOTOR VEHICLE ACT (B.C.), 1985 In 1982 the Motor Vehicle Act of British Columbia was amended and one of the changes was section 94(2).9 Section 94(1) and (2) provided: 94.(1) A person who drives a motor vehicle on a highway or industrial road while (