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Captive Court

Captive Court: A Study of the Supreme Court of Canada

Copyright Date: 1992
Pages: 624
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  • Book Info
    Captive Court
    Book Description:

    Throughout his study, Bushnell investigates the question of the absence of an independent judicial tradition in Canada and the development of distinct legal doctrine by the Supreme Court. He analyses the nature and cause of the lack of independent thought that makes the Court "captive" to inherited traditions and legal doctrines and prevents it from achieving its true potential within the Canadian legal system. Previous studies of the Court have concentrated on the years after 1949; by expanding the coverage to include the first three-quarters of a century of the Court's existence, Bushnell has uncovered a critical aspect of Canadian legal history.

    eISBN: 978-0-7735-6301-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Preface
    (pp. xi-xiv)

    • 1 Attempts
      (pp. 3-13)

      On 16 November 1875 at a time that had been kept secret, the burial of Joseph Guibord, a printer, took place in Côte-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...

    • 2 The Creation of the Supreme Court
      (pp. 14-27)

      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...

    • 3 Section 47 and the Lord Chancellor
      (pp. 28-37)

      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 1875.¹ A copy of the Act was sent to the...

    • 4 Starting Up
      (pp. 38-44)

      The Supreme and Exchequer Court Act had received royal assent on 8 April1875 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...


    • 5 The Judge as Adjudicator
      (pp. 47-64)

      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 obviousto 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...

    • 6 The Judge as Law-reformer
      (pp. 65-72)

      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...

  6. PART C THE EARLY YEARS, 1875-1885

    • 7 The Beginning, 1875–1879
      (pp. 75-90)

      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.”²There was no hearing, nor was any written argument presented. The Senate...

    • 8 The Court under Attack
      (pp. 91-96)

      When theCanada Law Journalconcluded 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...

    • 9 The Appeal to the Privy Council, 1876–1879
      (pp. 97-102)

      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...

    • 10 The End of the Beginning, 1879–1880
      (pp. 103-113)

      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...

    • 11 The Court Struggles, 1880-1885
      (pp. 114-132)

      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 theCanada Law Journalcommented: “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...

  7. PART D THE YEARS AFTER, 1885-1949

    • 12 The Manitoba Schools Question
      (pp. 135-154)

      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...

    • 13 The Court in Disarray, 1895–1903
      (pp. 155-168)

      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...

    • 14 The Sterile Years, 1903–1911
      (pp. 169-190)

      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...

    • 15 The Sterile Years, 1911-1918
      (pp. 191-206)

      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...

    • 16 The Sterile Years, 1918-1929
      (pp. 207-217)

      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.

      InThe Canadian Annual Reviewfor 1919 it was pointed out that there was a small body of determined opinion opposed to the appeal, which in...

    • 17 “There are Statutes, and Statutes”
      (pp. 218-229)

      Without doubt thePersonscase 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...

    • 18 The Civil Law of Quebec
      (pp. 230-242)

      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-volumeTraité de droit civil, published from 1895 to 1916,¹...

    • 19 The Attack on the Privy Council, 1930–1939
      (pp. 243-262)

      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 thePersonscase. 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 theQueen’s Quarterlyin 1930, which published an article...

    • 20 The Wait for the End of the Appeal, 1940–1949
      (pp. 263-278)

      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 Duff’s 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...


    • 21 A New Beginning?
      (pp. 281-295)

      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...

    • 22 New Jural Conclusions
      (pp. 296-311)

      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.

      TheBouchercase contained the most overt statement of judicial creativity yet found in the decisions of the Supreme Court of Canada. As French-Canadian nationalism...

    • 23 The Implied Bill of Rights
      (pp. 312-321)

      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...

    • 24 The End of the Fifties
      (pp. 322-328)

      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....


    • 25 The Sixties
      (pp. 331-346)

      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.

      A feeling of law reform surrounded theBolandcase, which was heard by the Supreme Court of Canada in December 1959. The plaintiff, John Boland, had brought an action in defamation against the TorontoGlobe and Mail...

    • 26 The Canadian Bill of Rights
      (pp. 347-368)

      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...

    • 27 The Seventies
      (pp. 369-379)

      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...

    • 28 The Seventies and Law Reform
      (pp. 380-399)

      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.¹ 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...

    • 29 Tensions within the Court
      (pp. 400-417)

      In the person of Ivan Rand, the Supreme Court and the legal profession had been exposed to thoughts that would establish a creative court - a thinking court. However, Rand’s creativeness was mainly limited to the public-law area, and he appeared to be in the mould of the other judges in the traditional areas of private law. Rand could be said to have sneaked up on the profession, since, from his appointment in 1943 until the end of the Privy Council appeal, he was relatively restrained, although there had been signs of something different.¹ When his creative nature broke through...

    • 30 The Constitution
      (pp. 418-434)

      The 1970s and early 1980s were years of significant social activity involving the constitution. The centennial in 1967 and the election in 1968 of Pierre Elliott Trudeau and a Liberal government marked the beginning of a period of continual and intense constitutional discussion.

      Before 1982, Canada was the only self-governing nation that had no legal power to amend its constitution and it was required to ask the legislature ofanother nation, Great Britain, to enact any amendments. No matter how understandable this procedure was based on the historical development of the country, there was no question that it gave the appearance...

  10. PART G THE ERA OF THE CHARTER, 1980-1989

    • 31 Waiting for the Charter
      (pp. 437-448)

      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,...

    • 32 The Charter
      (pp. 449-460)

      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.

      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 air-launched 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...

    • 33 The Abortion Case
      (pp. 461-474)

      At the time of theMorgentalercase, the criminal law dealing with abortion was section 251 of the Criminal Code, which made it a criminal offence for a woman to have an abortion and also for a person such as a doctor to carry out an abortion.¹ However, the law also provided that no offence would be committed in certain situations, such as if the abortion was carried out in an accredited or approved hospital by a qualified medical practitioner, and if it had been approved by the therapeutic abortion committee of the hospital. Approval of the committee was to...


    • 34 Impartial Justice
      (pp. 477-485)

      The lack of independent thought on the part of most of the judges of the Supreme Court has been a subject of constant comment and criticism since there have been critics of the court, particularly since 1949. The “captivity” of the judges was of the strongest possible nature - it was within their mind. It even persisted in the face of challenges from within the court by judges such as William Richards, the first Chief Justice, Télesphore Fournier, William Alexander Henry and his somewhat unruly attempts at law reform, David Mills, the famous politician who was branded as the “academic”...

    • 35 Now and the Future
      (pp. 486-494)

      At the present a creative atmosphere seems to be developing around the court, and it is out of that kind of air that heroes and heroines will arise to provide models for the future. There are indications that the captivity that has so long plagued the judges of the court is losing its grasp, although it has by no means gone.

      Throughout its history, the court has always been caught up in the social changes that have been occurring in Canada. When a social issue comes before the court embedded in the dispute that has generated the litigation, it is...

  12. Appendix
    (pp. 495-498)
  13. Notes
    (pp. 499-582)
  14. Index
    (pp. 583-604)