Brian Dickson

Brian Dickson: A Judge's Journey

ROBERT J. SHARPE
KENT ROACH
Copyright Date: 2003
Pages: 622
https://www.jstor.org/stable/10.3138/j.ctt13x1qjf
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  • Book Info
    Brian Dickson
    Book Description:

    Engaging and incisive,Brian Dickson: A Judge's Journeytraces Dickson's life from a Depression-era boyhood in Saskatchewan, to the battlefields of Normandy, the boardrooms of corporate Canada and high judicial office, and provides an inside look at the work of the Supreme Court during its most crucial period.

    eISBN: 978-1-4426-2103-9
    Subjects: History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)
    R. ROY McMURTRY and PETER N. OLIVER

    In this book, two highly qualified authors, Robert Sharpe, a justice of the Court of Appeal for Ontario, and Kent Roach, a law professor at the University of Toronto, provide us with a penetrating analysis of the brilliant yet surprising career of Brian Dickson, by common agreement one of Canada’s greatest judges.

    Brian Dickson, a successful Winnipeg corporation lawyer, astounded his colleagues in 1963 by accepting an appointment as a Manitoba trial judge. Over the next twenty-seven years, including seventeen at the Supreme Court of Canada, Dickson participated in and ultimately led a revolution in Canadian law. The Dickson years...

  4. Preface
    (pp. ix-xiv)
  5. Part One: Introduction

    • 1 A Judge’s Journey
      (pp. 3-26)

      Brian Dickson’s judicial career spanned a period of twenty-seven years, from his appointment as a trial judge in Manitoba in 1963 to his retirement as chief justice of Canada in 1990. He spent seventeen years on the Supreme Court of Canada, six as the nation’s chief justice, and retired as Canada’s dominant judicial figure. The Dickson era was a period of dramatic social and legal change. During this period, the Supreme Court of Canada emerged from relative obscurity to become a powerful national institution that dealt with some of the most controversial issues of the day. Brian Dickson was at...

  6. Part Two: Life before the Bench, 1916–1963

    • 2 Prairie Upbringing
      (pp. 29-47)

      Robert George Brian Dickson was born on 25 May 1916 at Yorkton, Saskatchewan. His mother and father were Irish Protestant immigrants. Dickson’s father, Thomas, the youngest of six children, was born in 1886 on a modest family farm in County Down in what is now Northern Ireland. He got a job with the Bank of Ireland after completing grammar school, but his economic prospects in Ireland were not bright. In 1913 Thomas decided to seek his fortune in Canada and take up a position with the Bank of British North America in Darlingford, Manitoba.

      Dickson’s mother, Sarah Elizabeth Gibson, was...

    • 3 Off to War
      (pp. 48-64)

      Canada declared war on 10 September 1939, following Germany’s invasion of Poland on 1 September and Britain’s declaration of war on 7 September. Brian Dickson had already enlisted as a member of the non-permanent active militia with the 38th Field Battery, 5th Field Brigade, Royal Canadian Artillery. By late 1939, Dickson’s involvement with the regiment was taking up more and more of Dickson’s time, and by early 1940 it had become an almost full-time endeavour. Dickson entered the Canadian Officers Training Corps and spent the summer of 1940 at Camp Shilo, near Brandon, Manitoba, training with field guns. Further training...

    • 4 Law and Business: Family and Community
      (pp. 65-88)

      From 1945 until his appointment to the bench in 1963, Brian Dickson worked very hard to become a prominent member of the Winnipeg legal, business, and social establishment. He rose quickly through the ranks of Aikins MacAulay, one of Winnipeg’s leading law firms, to become a firm partner and leader, his clients including many of the city’s most important corporations. He was also deeply involved in the affairs of his profession, becoming president of the Manitoba Law Society and holding senior office in the Canadian Bar Association. Dickson, however, was more than a lawyer. He had a keen business sense...

  7. Part Three: A Judge in Manitoba, 1963–1973

    • 5 Queen’s Bench
      (pp. 91-109)

      Samuel Freedman, a highly respected member of the Manitoba Court of Appeal, was the first person to ask Dickson to consider the possibility of a judicial appointment. Freedman had been a judge since 1952, when he was appointed as a trial judge at the age of forty-four. He was a brilliant and witty speaker, widely regarded as one of Canada’s finest judges, and a strong candidate for an appointment to the Supreme Court of Canada. It would not have occurred to Freedman that Dickson, the man he was recruiting for the bench, was the one the prime minister would select...

    • 6 Court of Appeal
      (pp. 110-132)

      In June 1967, after almost four years as a trial judge, Dickson was appointed to the Manitoba Court of Appeal. The appointment ‘just seemed to be a sort of natural progression’ and Dickson did not hesitate to accept when Canada’s flamboyant new minister of justice, Pierre Elliott Trudeau, called. ‘It was a further opportunity to learn a little more law in a different environment and it was a very congenial court at the time.’ The ‘spartan digs in some of those minor Manitoba towns’ were starting to get ‘a little tiresome.’ It was also a pleasant change to have a...

  8. Part Four: The Supreme Court, 1973–1984

    • 7 Starting Slowly
      (pp. 135-157)

      Brian Dickson served on the Supreme Court of Canada from 1973 to 1990. During that time, both he and the Court changed a great deal. Dickson joined a Court that decided many cases but did so in a manner that added little to the development of the law. It was strongly criticized for having ‘an outmoded and unduly narrow conception of the role of law’¹ and for failing ‘to examine in depth the legal principles’ or ‘the philosophy of law’ that animated its decisions,² which were unfavourably compared in terms of their intellectual quality with those of the United States...

    • 8 Gaining Ground
      (pp. 158-178)

      If Dickson started slowly and cautiously in his first few years on the Supreme Court, he soon made up for lost time. From 1976 to 1983, he developed as one of the Court’s leading figures, a judge prepared to innovate and, if necessary, to dissent. Despite his frequent disagreement with Laskin during his early years on the Court, Dickson now moved closer to Laskin’s views.

      This middle stage in Dickson’s career was one of striking change on the Court. A Court that had been criticized in the early 1970s for following precedents and not recognizing the broader implications of its...

    • [Illustrations]
      (pp. None)
    • 9 Compassion and Equity
      (pp. 179-201)

      In the late 1970s and early 1980s, Dickson played an important role in reforming the private law. Especially where the legislature had not stepped in, he was willing to innovate in a bold and sometimes quasi-legislative manner. As in other areas, he was attracted to general and simple principles. The concerns about substantive fairness that animated Dickson’s public-law decisions were present in his private-law decisions as well. He wrote several landmark judgments requiring that women have their contributions recognized when their marriages ended. He was also prepared to provide remedies for the abuse of power, whether by governments, corporations, or...

    • 10 Write and Rewrite
      (pp. 202-217)

      Dickson quickly earned a reputation as a writer of remarkably clear judgments. It cannot be said that his competition on the Supreme Court at the time was particularly stiff. There was a pronounced preference for legalistic judgments that were based upon an arid recitation of the relevant statutes and case law. Reference to scholarly writing was rare.¹ Most judges considered it to be neither necessary nor appropriate to discuss underlying policy considerations or to locate the legal issues in their broader social, economic, or political context. The Court often spoke in an obscure and technical legal voice, making little or...

    • 11 Fault and Free Will
      (pp. 218-239)

      Upon his appointment to the Manitoba Court of Queens Bench, Dickson, perhaps remembering that he had received some of his lowest marks in criminal law, had confessed that he would have to do some studying in the field. As it turned out, however, Dickson left a formidable and lasting impression on criminal law as the leading exponent of the requirement that accused should not be convicted unless they were at fault for committing harm. The fault principle meant that accused who committed a prohibited act would not be guilty if their mind was not directed to the crime. To take...

    • 12 Balanced Federalism
      (pp. 240-262)

      Brian Dickson served on the Supreme Court of Canada during a period of acrimonious constitutional debate and profound constitutional change. The constitutional battles of the 1970s and 1980s were fought on several fronts. The federal government was determined to modernize Canada’s constitution, complete with an amending formula and a Charter of Rights. But the federal plan collided with a determined push for increased provincial powers, fuelled by the rise of Quebec nationalism and the claims of the western provinces for increased control over energy, natural resources, and the environment. These battles, complicated by an economic downturn and fights over diminishing...

    • 13 Patriation of the Constitution
      (pp. 263-282)

      On 2 October 1980, Prime Minister Pierre Elliott Trudeau announced that, despite overwhelming provincial opposition, the federal government would proceed with a request to the United Kingdom Parliament to amend Canada’s constitution. The federal proposal would ask Westminster to patriate Canada’s constitution with an amending formula and a Charter of Rights and Freedoms. Trudeau proposed unilateral federal action following more than a decade of constitutional debate, confrontation, and impasse. It set the stage for a protracted constitutional battle between the federal government and the provinces, a battle involving fundamental political and legal issues fought at first ministers’ conferences, in the...

  9. Part Five: Chief Justice and the Charter, 1984–1990

    • 14 Chief Justice
      (pp. 285-308)

      Chief Justice Laskin died in April 1984. His death was a blow for Dickson, who a month later wrote to a friend: ‘We are still in the state of shock on the death of Bora. He and I were not only colleagues for some eleven years, but the closest of friends and his passing has left a great void. However, his influence will continue to be felt on the Court.’¹ Laskin’s death followed a period of serious illness during which he had been unable to carry out his duties as chief justice. Roland Ritchie, the senior puisne judge, was also...

    • 15 Building the Foundations
      (pp. 309-336)

      The Charter of Rights and Freedoms became part of Canada’s constitution on 17 April 1982, but it took almost two years before the first cases worked their way up to the Supreme Court. Though Dickson welcomed the Charter, he worried that the Canadian judiciary was ill-prepared for the challenges it presented.¹ He recognized that many judges would regard the Charter as a ‘heavy’ duty and perhaps some would find their responsibilities under it ‘uncomfortable.’ Believing that it was his role to make sure that all judges were properly prepared for the new legal challenges,² he accepted many invitations to speak...

    • 16 Continuity and Change
      (pp. 337-349)

      The Charter of Rights and Freedoms contains a long list of legal rights designed to ensure the fair administration of criminal justice. Most of these rights are derived from the Anglo-Canadian common law tradition and were a feature of our law before the Charter. But the Charter changed certain fundamental rules of the game. Before the Charter, judges – even Supreme Court of Canada judges – applied the law as laid down by Parliament. After the Charter, judges – especially Supreme Court of Canada judges – had the constitutional duty to ensure that Parliament’s laws complied with the overriding demands of the constitution. Before...

    • 17 Cracks in the Foundations
      (pp. 350-376)

      Less than a year afterBig M,the issue of Sunday shopping returned to the Supreme Court in a case known asEdwards Books.¹ This time, the fight was led by Paul Magder, a Toronto furrier, who for several years had carried on a relentless struggle to remain open for business in the face of Ontario’s Sunday-closing law – a patchwork of prohibitions, exceptions, and exemptions. The Ontario law tried to balance the religious freedom of retailers with the need to ensure retail workers a day of rest with their families, requiring large retailers to close on Sunday while allowing small...

    • 18 Feeling the Strain
      (pp. 377-396)

      The reaction to the Court’s bold steps in the early Charter cases was generally positive and public confidence in the Supreme Court as the final arbiter of fundamental rights and freedoms was high. However, as Charter litigation put the Court at the centre of public debate, its decisions attracted both attention and criticism. Some editorial writers and legal critics thought that the Court was far too eager to strike down laws and feared that its liberal approach to the Charter could undermine laws designed to limit corporate power and protect vulnerable interests.¹ Left-wing critics² pointed out that many of the...

    • 19 Equality Rights
      (pp. 397-411)

      Equality is universally recognized as a fundamental human right and essential democratic value. But equality means different things to different people and Canada’s conception of equality has evolved over time. Defining equality and mapping out the best path to its achievement is a difficult and contentious topic of philosophical, political, and legal debate.

      As a law student, Dickson was imbued with the model of formal equality – the idea that the same standards should be applied to all citizens in an evenhanded manner. Immediately after the Second World War, the focus shifted to equal opportunity with an emphasis on legislation to...

    • 20 Language Rights and National Unity
      (pp. 412-441)

      Language has been a persistent source of division and tension in Canada. The accommodation of linguistic differences lies at the root of our nation, yet we continue to struggle with the problems that emerge from Canada’s complex web of majority-and minority-language groups. The language debate is a familiar and distinctive theme in Canadian law and politics with profound significance for Canadian national unity. It has proved most difficult to resolve and was one of the Supreme Court of Canada’s constitutional preoccupations during the Dickson era.

      Brian Dickson was firmly committed to the principles of bilingualism. Before his appointment as a...

    • 21 The Honour of the Crown
      (pp. 442-462)

      Dickson wrote judgments in almost every aboriginal-rights case of significance during his seventeen years on the Court. As the Court’s representative from the prairies, he often volunteered to write in decisions that came from the western provinces, but his geographical origins alone cannot explain a genuine interest in aboriginal issues that would continue even after his retirement. In part, he was influenced by his experience in Manitoba with aboriginal people. As already recounted, the Dicksons employed Joseph Wawence from the Whitedog reserve and tried to help the Wawence family when their daughter became seriously ill, and they also established scholarships...

  10. Part Six: Retirement, 1990–1998

    • 22 Dickson of Canada
      (pp. 465-482)

      On 4 April 1990 Dickson asked his driver to take him from Marchmont to the prime minister's residence at 24 Sussex Drive. Brian Mulroney greeted Dickson warmly. Dickson handed Mulroney a letter to confirm what he had already told the prime minister: he intended to retire from the bench at the end of the Court’s term in June 1990. Dickson next went to the Court where he dictated a memo to the staff. He asked his colleagues to convene in the judges’ conference room. He told Court staff that he wanted them ‘to know of my decision before it is...

  11. Notes
    (pp. 483-552)
  12. Illustration Credits
    (pp. 553-554)
  13. Index
    (pp. 555-576)
  14. Back Matter
    (pp. 577-578)