Learning Federalism: the Experience of New Brunswick's 19'" Century Judges

Learning Federalism: The Experience of New Brunswick's 19'" Century Judges William Lahey A thesis submitted in confomity with the requirements for the degree of Master of Laws Graduate Department of Law, University of Toronto c Copyright by William Lahey 2001 National Library Bibliothèque nationale 1+1 of Canada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. rue Wellingtwi Onawa ON K1A ON4 OnawaON KlAûN4 Canada canada The author has granted a non- L'auteur a accordé une licence non exclusive licence dowing the exclusive permettant a la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sell reproduire, prêter, dismbuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des e&ts substantiels may be printed or othenvise de celle-ci ne doivent être imprimés reproduced without the authorys ou autrement reproduits sans son permission. autorisation. Leaming Federalism: The Experience of New Brunswick's 1gn Century Judges Master of Laws, 2001 William Lahey Department of Law University of Toronto Abstract This is a study of how New Brunswick judges interpreted the BNA Act in the first decades of Confederation. Particular attention is paid to The Queen v. Chandler (1869), to City of Fredericton v. The Queen (1979), and to the opinions of William Johnstone Ritchie in early constitutionat cases of the Supreme Court of Canada. It concludes that constitutional adjudication in New Brunswick: opened deep fault lines in the province's legal culture on the relationship between legislatures and courts and the definition of constitutional law; produced a clash of constitutional visions based on different understandings of how confederation made federalism and the English constitution consistent; revealed the infuence of a provincial rights understanding of confederation that Iinked federalism and constitutional interpretation to the protection of individual rights; produced indigenous understandings of the BNA Act that anticipated the achievements of provincial rights in Privy Council cases. Ac knowledgments I would like to recognize and express my appreciation to Professor Richard Risk and Professor Jim Phillips, both of whom gave generously of themselves as thesis supervisor in different stages of the process. One of the (few) advantages of completing this study in two stages has been the opportunity to work with and benefit from them both. I would also like to acknowledge the encouragement and generosity of Professor David Bell of the University of New Brunswick Law School. The three of them could not Save me from the mistakes that undoubtedly remain, which are my responsibility alone. I also wish to thank Bnan Langille, Associate Dean for Graduate Studies, for his enduring support, encouragement and enthusiasm. Finally, I wish to acknowledge the patience, good cheer and support of Kathryn, who Iived it once and then Iived it again, and yet abides. Table of Contents Abstract ......................................................... ii Acknowledgments ................................................. iii Chapter 1 Introduction .......................................... 5 Chapter 2 The Privy Council and the British North America Act: The Search for Explanation ............................. 31 Chapter 3 From Subordinate to Coordinate Federalism: The Evolving Constitution of William Johnstone Ritchie ........ 67 Chapter 4 Federalism, the Common Market and the Blessings of British Liberty: The Constitution According to Charles Fisher ........ 118 Chapter 5 Federalism, Nationalism and Constitutionaf Stability: The Constitution According to Acalus Palmer ............... 184 Chapter 6 The Conclusion - Maritirne Bank ......................... 229 Bibliography .................................................... 247 Chapter 1 Introduction The history of the early years of the judicial interpretation of the British North Amenca Act1has been largely told as the history of the decisions of the Judicial Cornmittee of the Privy Council. There has been some attention paid to the early constitutional rulings of the Supreme Court of Canada, but most often, the treatment is either cursory (frequently, only the outcomes are stated) or ancillary to a focus either on the institution or on the career of particular judges.' Relatively little attention has kenpaid to the constitutional nilings of the superior courts of the province~.~ The reasons for this are probably obvious. Legal scholars have played a large role in writing the history of Canadian constitutional law and they have undoubtedly been guided by the lawyer's tendency to rneasure the importance of a case by it's continuing doctrinal relevance to contemporary law. Cleariy, from that perspective, the constitutional rulings of Canadian courts in the first decades of Confederation have been overtaken by the rulings of the Privy Council or, since 1949, by the rulings of the Supreme Court of Canada. Historians may have been influenced by the same consideration but also by the sense that, beyond their doctrinal significance, court decisions have no or rnodest usefulness as historical records precisely because they focus on legal doctrine and technicality. For historians of Confederation, this impression would understandably be reinforced by the experience of reading the constitutional decisions of the Privy Council. For the most pari, these were written in the language of legal forrnalism or positivism. VVith the exception of a few paragraphs frequently taken to give a glimpse of an underlying (and mistaken) theory of Confederation, the Privy Council's rulings detached constitutional interpretation from political, econornic and social context as well as from the history of Confederation.' They insteaa portrayed doctrinal outcornes as coming from the "tnienrneaning of the words and structure of the constitutional text, derived by disinterested and technical reading of that text. It is possible as well that all scholars in the field have been influenced by a sense that Canadian judges of the post-Confederation period were not capable of producing judicial wnting of lasting significance and interest, and especially so in the constitutional sphere. Ironically, the frequency with which the Privy Council overruled the Supreme Court of Canada has probably contributed to this sense, notwithstandingthat criticisrn of the Privy Council itself has been a mainstay in the literature for 60 years. Low expectations of Canadian judges rnay also have flowed naturally enough from the patterns of political prefement that were the dominant route to the benct~,~as well as by the low assessment of the originality and creativity of Confederation-era judges in other areas of law.' Low expectations might also seem an obvious corollary of the belief that the generation of public men who made Confederation, and that also produced the judges who decided Canada's first constitutional cases, was not activated by grand political or constitutional philosophies but by immediate and pragmatic necessities or ambitions, be it the resolution of the deadlock between Canada East and Canada West, the fear of American aggression or the mutual desire of al1 provinces for broader markets. Whatever the influences, it is arguable that historians have, with some exceptions, overlooked the potential usefulness of constitutional adjudication in the Canadian courts in the early years of Confederation as a source for constitutional legal history. For approxirnately the first two decades of Confederation, provincial courts and the Supreme Court of Canada decided constitutional cases when there was either little or no guidance as to how they should do it frorn either the Privy Council or from constitutional scholarship. Throughout these decades, fundamental questions about the basic structure and key features of the constitution remained outstanding, even as the body of decisions from higher courts and the nurnber and quality of books on the constitution increased.' There is the possibility therefore, that Canadian constitutional cases from these eady years of Confederation can enlighten as to how and what Canadian lawyers and judges who had lived through Confederation thought about the constiution before being told how and what to think about it by higher authorities. This study explores this potential through reconstruction of the experience of the judges of New Brunswick in constitutional adjudication during the first two decades of Confederation. It aims to know what this reconstruction of adjudicative experience can tell us about constitutional thought in New Brunswick, about New Brunswick attitudes to Confederation, about patterns of legal thinking in New Brunswick and beyond, and about the broader development of Canadian constitutional law. It asks how the interpretation of the constitution by the judges of New Brunswick reflect the arguments for and against Confederation made in the years 1864-1867. It asks what constitutionalinterpretation in New Brunswick reveals about how New Brunswick thinking on the constitution and Confederation was alike or different from thinking on the same subjects in

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