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The Lawmakers

The Lawmakers: Judicial Power and the Shaping of Canadian Federalism

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    The Lawmakers
    Book Description:

    Comprehensive, ambitious, and detailed, The Lawmakers will be the definitive work on the evolution of the law of Canadian federalism.

    eISBN: 978-1-4426-8161-3
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
    (pp. ix-x)
    R. Roy McMurtry

    Anyone who has ever studied Canadian history at the university level has puzzled over the decisions of the Judicial Committee of the Privy Council on the British North America Act. As a student of Professor Saywell’s several decades ago at the University of Toronto, Society editor Peter Oliver was among the many undergraduates who laboured diligently to understand the apparently tortuous ways of British judges as they laid violent hands on the Macdonald constitution. Years later, as a colleague of Saywell’s in York’s history department, Oliver observed ‘with considerable amazement the sheer audacity of Professor Saywell as he offered a...

  4. Acknowledgments
    (pp. xi-xiv)
  5. Introduction
    (pp. xv-2)

    The Lawmakersis the story of the role of the courts in shaping the evolution of jurisdictional federalism. It is not a study of constitutional law; rather, its focus is on the law of the constitution. My concern is not whether the federal or provincial governments should have the power to police Canadians’ right to drink, but how the courts defined their respective powers in reaching a decision.

    I more or less slid into this study as my search for information on or explanation of specific jurists and judicial decisions proved elusive and unsatisfactory – but tantalizing. When old friends...

  6. 1 The Genesis of Sections 91 and 92, 1864–1867
    (pp. 3-16)

    Although much has been written about the division of legislative powers in the 1867 constitution, there is little agreement about the intention of the framers as expressed in the language of the act. During the argument inRussell v. The Queenin 1882, Sir Montague Smith assured counsel that ‘I do not think there is anything so obscure in the construction of the Act, with regard to the distribution of power, and the dominium given to the Dominion of Canada, that renders it necessary to go into the history of it.’¹ Less than a century later, however, given ‘violently opposed...

  7. 2 Made in Canada: The Provincial Courts, 1867–1881
    (pp. 17-31)

    For a decade, the provincial superior courts, without benefit of precedent or authority, faced the challenge of judicial review of the federal constitution. The courts remained as they were on 1 July 1867. Members of the bench had been appointed by a variety of colonial governments and reflected all shades of political opinion. They were not necessarily men of exceptional talent. But as politicians, lawyers, and judges, they, and those appointed in the following decade, had directly participated, on both sides, in the debate over Confederation.¹

    In the first constitutional case to come before the courts, William Ritchie, chief justice...

  8. 3 Made in Canada: The Supreme Court of Canada, 1875–1881
    (pp. 32-56)

    Soon after Confederation, Sir John A. Macdonald began to consider how best to fulfil the promise of section 101 of the BNA Act which authorized the government to establish a ‘General Court of Appeal for Canada.’¹ But pacifying Nova Scotia and Red River, acquiring the west, and planning a railway to the Pacific were matters demanding more immediate attention, and nothing had been accomplished before his defeat in 1873. Two years later, the Liberals announced in the throne speech that a Supreme Court was ‘essential to our system of jurisprudence and to the settlement of constitutional questions.’² The court would...

  9. 4 The Appeal to Caesar
    (pp. 57-77)

    ‘I would very well like to see a clause introduced declaring that this right of appeal to the Privy Council existed no longer,’ stated Télésephore Fournier upon introducing the bill to create the Supreme Court of Canada in 1875. The government hoped that the creation of the new court would end appeals to the Privy Council but had made no explicit provision to this effect in the bill, leaving it to be disposed of at some ‘future time.’ Fournier observed that legislation pending at Westminster would lead to the creation of a new imperial court of appeal and the abolition...

  10. 5 Caesar Speaks, 1874–1888
    (pp. 78-113)

    As they began their long tenure as Canada’s final court of appeal, the members of the Judicial Committee did not see themselves as judicial statesmen whose task it was to shape a federal constitution for a new colony. Although federalism was to them a legislative and judicial novelty, they maintained that their role was the familiar one of finding meaning in the language and thus the objects of a somewhat unusual British statute. ‘In performing this difficult duty,’ wrote Sir Montague Smith, ‘it will be a wise course for those upon whom it is thrown, to decide each case which...

  11. 6 The Watson Era, 1889–1912
    (pp. 114-149)

    After two decades of judicial review in the Canadian courts and the Judicial Committee, the structure of sections 91 and 92 and their inter-relationship remained substantially as was intended and legislated. Differences of judicial opinion were less on the structure than on the determination of the ‘matter’ of challenged legislation and on the appropriate content or scope of the enumerations. Although the principle of coordinate federalism was generally accepted (with Gwynne a vocal exception), the theoretical and practical status of the lieutenant governor remained legally and politically controversial. But, by the end of the century, the Judicial Committee had imposed...

  12. 7 Viscount Haldane, 1911–1928
    (pp. 150-186)

    ‘His return to active connection with the Law by being placed on the Judicial Committee afforded him great satisfaction,’ noted Haldane’s friend Sir Almeric Fitzroy, clerk of the Privy Council. ‘His ambitions is to sit on those appeals from the self-governing Dominions which raise judicial problems of the highest constitutional import, and so, as I reminded him, take up the great work of Watson, which he has so fittingly commemorated.’¹ It was Watson, Haldane had written, who had ‘expanded and established the real constitution of Canada.’² From 1911 until his death in 1928, at least in Canadian appeals, Haldane dominated...

  13. 8 Lord Sankey and ‘Progressive Constructionism,’ 1929–1935
    (pp. 187-202)

    For almost a decade after Haldane’s death, a new generation on the Judicial Committee adopted a more fluid and comprehensive approach to judicial review which looked at the constitution within a contemporary context. With two exceptions, they did not reject the doctrines and dogmas of the Watson-Haldane era; rather, they ‘explained’ or ‘distinguished’ or applied them in novel ways to new circumstances. In reasoning and decision, the committee found new authority for federal jurisdiction both in the constitution itself and in the enhanced status of the national government.

    The new departure could be attributed to the substance of the issues...

  14. 9 The New Deal at Court and the End of Appeals
    (pp. 203-237)

    In January 1935 Prime Minister Bennett declared that the ‘old order is gone’ and promised a radical ‘New Deal’ to combat the Great Depression. Even before the details were revealed, it was obvious that for the first time in Canadian history an entire legislative program would end up in court. Although the ultimate test would be on Downing Street, not at the corner of Bank and Wellington in Ottawa, the initial references to the Supreme Court are of unusual interest and importance. Not only were the judgments revealing, but almost two thousand pages of oral argument provide a rare opportunity...

  15. 10 Restoring the Balance: The Supreme Court of Canada, 1949–1979
    (pp. 238-273)

    ‘The legacy of the Privy Council was not an easy one,’ recalled Justice Brian Dickson in 1979. ‘A wave of anticipation attended the abolition of appeals to the colonial court; the Supreme Court was arguably not bound by its precedents; was unhampered by its style of statutory interpretation; was freed from the threat of review.’¹ Thirty years earlier, however, the anticipation was tempered by suspicion and doubts. There was legitimate concern that the institutional practices and intellectual capacity of the bench would not enable the Supreme Court to be an acceptable final court of appeal. There was widespread scepticism in...

  16. 11 Consolidation and Innovation, 1980–2000
    (pp. 274-307)

    Academic and political criticism did not deflect the direction, or noticeably restrain the momentum, of the Supreme Court’s jurisprudence in the 1980s and 1990s. Although there was little or no diminution of existing provincial jurisdictional powers, the expansion or enhancement of federal jurisdiction of the previous decades was consolidated. Federal paramountcy prevented encroachment on the enumerated heads and the sweep of the interjurisdictional immunity doctrine was broadened. Confronted by new issues or variations of the old, the court was innovative in finding new uses for the major sources of federal jurisdiction: the criminal law, trade and commerce, and the residual...

  17. Afterword
    (pp. 308-310)

    The judicial lawmakers, not John A. Macdonald or Sir Francis Reilly, are the real authors of Canadian constitutional law. Sometimes they have made law almost imperceptibly at the margin; sometimes radically at the centre. In fact, one among them rewrote the fundamental structure of the federal division of powers. Judicial power is a frightening third estate in a federal system.

    There is an awful finality about judicial decisions, for there is no easy legislative override and constitutional amendments are almost impossible. Each case declares the victors, and to them belong the spoils, or at least the responsibilties, while the vanquished...

  18. Appendix The British North America Act, 1867 (The Constitution Act, 1867) Relevant Sections
    (pp. 311-318)
  19. Notes
    (pp. 319-436)
  20. Index
    (pp. 437-453)
  21. Back Matter
    (pp. 454-455)