PEOPLE PRINCIPLES PROGRESS PEOPLE PRINCIPLES PROGRESS THE ALBERTA COURT OF APPEAL’S FIRST CENTURY 1914 TO 2014 BY DAVID MITTELSTADT © 2014 David Mittelstadt We gratefully acknowledge the contributions of the following organizations to the publication of this book: Community Initiatives Program Community Spirit Program Alberta Historical Resources Foundation Ministry of Justice Court of Appeal of Alberta Legal Archives Society of Alberta Calgary Bar Association Published by The Legal Archives Society of Alberta 400, 1015 - 4th Street S.W. Calgary, Alberta, Canada T2R 1J4 LIBRARY AND ARCHIVES CANADA CATALOGUING IN PUBLICATION Mittelstadt, David, 1966-, author People principles progress : the Alberta Court of Appeal’s first century, 1914-2014 / David Mittelstadt. Includes bibliographical references and index. ISBN 978-0-9681939-5-2 (bound) 1. Alberta. Court of Appeal--History. I. Legal Archives Society of Alberta, issuing body II. Title. KEA535.2.M53 2014 347.7123’0309 C2013-907821-5 KF8764.ZA3M53 2014 Book design by Mieka West of Jump Consulting Inc. Portraits of current judges of Court of Appeal by Noel Zinger Index by Judy Dunlop Printed in Canada by AGMV Marquis Page vi, public entrance hall Edmonton Courthouse, 1912 Page vii, reception area, Calgary Court of Appeal, CA. 2010 Page viii, entrance to Calgary Court of Appeal, CA. Table of Contents xi Foreword xiii Acknowledgments xv Introduction CHAPTER 1 1 Antecedents CHAPTER 2 29 The Supreme Court of Alberta En Banc, 1907–1921 CHAPTER 3 85 Who Was the Real Chief Justice of Alberta? 1921–1923 CHAPTER 4 107 The Harvey Era, 1924–1949 CHAPTER 5 155 Gushers, Leases, and Liens, 1949–1961 CHAPTER 6 193 Crime and Punishment: The Smith Court, 1961–1974 CHAPTER 7 231 Boom Times Again: The McGillivray Years, 1974–1984 CHAPTER 8 285 The Charter Court, 1982–1991 CHAPTER 9 327 Fraser’s Historic Court, 1992–2002 CHAPTER 10 383 A Court Transformed: 2002 and Onward 443 Thoughts for the Future 446 Glossary of Acronyms and Legal Terms 448 Index vi vii viii As Her Majesty the Queen’s representative, it is my pleasure to extend congratulations to the Court of Appeal of Alberta on the occasion of its Centennial. Albertans, and all Canadians, are fortunate to live in a society that ensures peace, order and good government. We enjoy these tremendous privileges thanks to certain key principles, including the rule of law and an independent judiciary, that stand at the heart of our nation’s proud British heritage. I am honoured to recognize all of the men and women who have played a role in maintaining that important heritage through service to the Court of Appeal of Alberta over the past 100 years. I thank you for your great commitment to Crown and country and for your unyielding dedica- tion to serving the greater good for the benefit of all citizens. His Honour, Col. (Ret’d) the Honourable Donald S. Ethell, OC OMM AOE MSC CD LLD ix Lieutenant Governor of Alberta x FOREWORD The true purpose of the law is not to abolish or restrain, but to preserve and enlarge freedom. – John Locke, 1632–1704 ne hundred years ago, in the midst of great Court of Canada, marking the first decision on the provincial change and opportunity, the Charter protection of religious freedoms. This decision Alberta Court of Appeal came into being. helped create the groundwork for the Oakes test, which OSince inception, it has assisted in the administration continues to guide our courts in their balancing of indi- of justice, provided an important route of appeal for vidual rights and freedoms in a free and democratic Albertans and been empowered by the highest ideals society. of justice. Decisions of the Court of Appeal have been influential in the development of Alberta’s voice and In the course of its 100 years of service to Albertans, the felt across our nation. Alberta Court of Appeal has contributed to the reali- zation of Canada’s vision for an equal, democratic, and A number of cases that the Court of Appeal has ruled free society. This commemorative book celebrates the on have been pivotal to Alberta and Canada. In 1917, Alberta Court of Appeal’s history and its dedication to the Appellate Division of the Supreme Court of Alberta, the administration of justice in our province. this court’s predecessor, was the first to rule in R v Cyr that women could sit on the bench as magistrates. Cyr I would like to acknowledge the Legal Archives Society was a prelude to the landmark “Persons Case,” which of Alberta (LASA) for its role in the creation of this confirmed that Canadian women had the same rights book. LASA initiated and managed the project, and as Canadian men with respect to positions of political worked closely with the writer, David Mittelstadt, the power. Court of Appeal, and others to develop a resource that provides valuable insight into the Court’s history. This The Alberta Court of Appeal was an important contrib- project is an excellent example of LASA fulfilling its utor to the early interpretation of the Canadian Charter mission to preserve, promote, and understand the evolu- of Rights and Freedom. In Hunter v Southam, the court was tion of law and society in Alberta. tasked with defining the Charter right to be free from unreasonable search and seizure. The Court of Appeal’s On behalf of all Albertans, I am honoured to congrat- analysis and application were unanimously upheld by the ulate the Alberta Court of Appeal on its first 100 years Supreme Court of Canada, and to this day it is the foun- and recognize the important role it has had in shaping dational case for interpreting section 8 of the Charter. Alberta and Canadian society. In R v Big M Drug Mart, the majority of the Alberta Alison M. Redford, QC Court of Appeal decision was upheld at the Supreme Premier of Alberta xi xii ACKNOWLEDGMENTS any individuals and organizations made this Bobbi Jo McDevitt and Cara Schlenker, and legal coun- book possible. First and foremost, Graham sel Laurel Watson. I owe a great debt for the time, mem- Price, the founding president of the Legal ories, and insights of these busy individuals. Special MArchives Society of Alberta, conceived the history, and thanks as well to the Honourable Mary Hetherington LASA executive director Stacy Kaufeld pursued fund- and Elizabeth McFadyen, whose interviews for LASA’s ing and deftly administered the project. Chief Justice oral history program were very useful. Catherine Fraser and the Court of the Appeal of Alberta were enthusiastic and unstinting supporters and pro- Many members of the staff of the Court of Appeal were vided funding, as did the Alberta Ministry of Justice, the involved in this book. Sue Stushnoff was invariably help- Alberta Historical Resources Foundation, the Ministry ful in providing administrative records and dealing of Community Development through the Community with odd research requests. Hildegard Krause provided Initiative Program, the Calgary Bar Association, and many of the photographs, while Senior Legal Counsel LASA through Alberta Lotteries. to the Chief Justice Andrew Foster assisted with edito- rial review and prepared the glossary of terms. Diane Special thanks are due to the LASA’s volunteer Editorial Boisvert, executive officer to the Chief Justice, was Committee. Everett Bunnell, Stacy Kaufeld, Dr. Louis an invaluable liaison, and judicial assistants Priscilla Knafla, the Honorable Willis O’Leary, Justice Keith McLeod, Verla Sharp, Michelle Lindberg and Lorri Ritter, Justice Jack Watson, and Neil Watson reviewed Jukic helped with numerous tasks. many drafts and provided much valuable feedback to the author. Chief Justice Catherine Fraser reviewed I’d like to acknowledge the archives and libraries used the final draft and provided a great many very helpful researching this book and their wonderful, helpful suggestions. Many retired and current justices of the staff, including the Provincial Archives of Alberta, the Court participated in interviews, some very extensive, Glenbow Archives, the Edmonton City Archives, and including the Honourable Adelle Fruman, Howard the Law Society Library in Calgary. Last but certainly Irving, Roger Kerans, Sam Lieberman, Herb Laycraft, not least, Brenda McCafferty, LASA Archivist, and John Major, Willis O’Leary, Anne Russell and William Ewa Gniazdowska, LASA archival assistant and admin- Stevenson; Justices Myra Bielby, Carole Conrad, Peter istrative officer, both spent much time and effort with Costigan, Jean Côté, Catherine Fraser, Connie Hunt, research and other tasks. Bruce McDonald, Peter Martin, Cliff O’Brien, Marina Paperny, Ellen Picard, Keith Ritter, Frans Slatter, and Finally, the stylish book before you is the product of the Jack Watson; and several officers of the Court, Registrars hard work and dedication of portrait photographer Noel Sue Stushnoff and Lynn Varty, case management officers Zinger, Peter Enman, editor, and Mieka West, designer. xiii xiv INTRODUCTION History in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future. – Benjamin Cardozo1 n a sunny July day in 1918, a situation unprec- There can be only one answer to the question, which way edented in Canadian legal history arose in will this Court act? It will continue to perform its duties Alberta. The army had refused, despite a writ as it sees them, and will endeavour in so far as lies in its Oof habeas corpus issued by the Appellate Division of the power to furnish protection to persons who apply to it to Supreme Court of Alberta, to produce several conscripts be permitted to exercise their legal rights.2 in court. In response, Chief Justice of Alberta Horace Harvey ordered the sheriff of the court in Calgary to pro- Harvey’s stirring words continue to resonate in the ceed to the Sarcee military barracks and produce them, twenty-first century as courts and government spar over if necessary by force.