The Politics of the Judiciary: The S.C.C. and the J.C.P.C. in late 19th Century Ontario Robert Gregory Lamot, B.A. Honours A thesis submitted tu the Faculty of Graduate Studies and Research in partial Nfilment of the requirements for the degree of Master of Arts Department of Law Carleton University Ottawa, Ontario May 1998 O 1998 Robert Gregory Lamot National Library Bibliothèque nationale .,naci= du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395. nie Wellington Ottawa ON KIA ON4 Ottawa ON KIA ON4 Canada Canada Your iY, Votre relerence Our 6ie Notre relerenca The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or seil reproduire, prêter, distribuer ou copies of this thesis in microfom, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/fb, 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 extraits substantiels may be printed or otheMrise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation, Abstract thesis examines the rote performed by the Supreme Court of Canada and the ludicial Cornmittee of the Privy Council in the field of federal-provincial relations in late nineteenth- century Ontario. It attempts to highli@ that the judiciary, when disceming the meaning of the British North Anmica Act and various Dominion and provincial statutes, despite appearaoces, was not dways adjudicating according to legal principles. While this period of judiciai review has been examineci extensively, the case study used in the thesis- McLaren v. Caldwell- is relatively neglected and serves to illustrate how difncult it was for the judges and law lords to maintain the appearance ofjudiciai independence and impartiality. This study demonstrates that the judiciary, in the early stages of Canada's existence, entered the political arena when striking down or validating government action; a politicization of the courts which took place under the guise of legal formalism. iii Acknowledgements I would like to thank Professor Barry Wright for his guidance, proficiency, and trm~~dous supervision throughout this academic journey. I would also like to thank Professor David Eilioa for his excellent insight, enthusiasm, and assistance in my field of interest. Furthemore, I greatly appreciate the constant support and encouragement that 1received from my parents and my sister. Finaiiy, many thanks go out to the Renfhw crowd for making my expenence in Ottawa an enjoyable one. Table of Contents Chapter 1: Introduction ............................................................................................ 1 WUty in Diversity": Canada, 1867-1 896............................................... 4 The SCC and JCPC in Dangerous Waters................................................. 7 Methodological Considerations.............................................................. 11 Chapter 2: Overview of the Institutional History of the Supreme Court and Judicial Cornmittee, and the Politid History of Early Post- Confederation Canada............................................................................. 16 The Origins of the JCPC ..................................................................... 17 The Origins of the Supreme Court of Canada ......................................... 22 . * The Political Context in Canada.............................................................. 30 Chapter 3: A Summary Histonography of JCPC Decisions on Canadian Federalism.............................................................................................. 43 The Legd Dimensions of the Centraiist and Provincialkt .. Posi~ons................................................................................................ 43 The Judicial Reasoning of the SCC and the JCPC ................................... 54 Chapter 4: Case Study: The Rivers and Streams Episode..................................... 73 Jurisdiction and Public and Private Interests in Riparian Rights ................ 77 Politics of Provincial Rights and the Rivers and Streams Act .................... 79 The Ontario Legislature in an Uproar ................................................ 83 Dominion Politics of DisaUowance and the Judiciary............................... 96 . House of Cornmons m Disarray ............................................................... 97 The Triggering of Political Conflïct................................................... 103 The Participation of the Courts in the Rivers and Streams Debate..................................................................................................... 106 Chapter 5: Conclusion............................................................................................. 127 Taof Cas........................................................................................................... 142 Chapter 1 Introduction The rule of law idealizes a non-political judiciary, with judges insulated from direct political influence, impartiaily administering the law according to technicd doctrinal pnnciples. Judicial review of constitutional matters creates practical dilemmas for this ideal, despite conscious cultivation of the appearance of legd formalism. The Charter of Rights and Freedoms has in recent years made the judicizuy's public-policy role more visible, prominent and contentious and, by extension, raises questions about the politics of the judiciary. However, our courts were not suddenly politicized in 1982. An examination of review of the British North America Act, 1867 by the Supreme Court of Canada and the Judicial Cornmittee of the Privy Council in the late nineteenth centq reveds that Our courts have wielded considerable public policy discretion and influence since 1867. Their role in resolving disputes between levels of govermnent formed an important dimension of Canadian politics. This has tended to be overshadowed by the enhancernent of judicid review of disputes between individuals and the state resulting Eom the Charter. Current debate about the politicization of the judiciary also neglects the pre- Codederation situation. Judicial independence from executive influence developed at a vexy late point in colonial British North ~rnerica.' While in Britain security of tenure was established at the the of the Act of Settlernent, 170 1 and separation of powers achieved at the beginning of the nineteenth century, these fomal parantees ofjudicial independence only started to be irnplemented in the 1830s and were fuliy confirmed only under the British 1 For an exîensive look at the deof Iaw and judicial independence, see F.L. Morton, ed,h, Polincs and the Judicial Process in Canada (CaIgiry: University of îaigarj Press, 1992), pp- 1-18, 13 1-137. North Amenca Act, 1867. The establishment of formai judicial independence, however, did not close off questions about the politics of the judiciary. The role of the courts in interpreting the division of powers under the BNA Act provides a case in point. Wnt large, this paper is about the political power of the judiciary and its impact on Canadian It is presently admitted that judicial review is a natlrral outgrowth '30 a federal form of govemment based on a wrïtten distribution of powers between two levels of government.'y2 According to F.L. Morton, For a federal division of legislative powers to be effective, there must be a mutudy acceptable process for settling the inescapable disputes as to where one govement's jurisdiction ends and the other's begins. Neither Ievel of government can be pennitted to define unilaterally, and thus to redefine, the boundaries of federal-provincial jurisdiction. This would violate the equal status of both Ievels of govement, which is a central principle of classical federalism. In practice, the need for a neutral umpire of federal systems has been met through judicial review by a ha1court of appeaL3 Sirnply stated, "judicial review is the procedure by which courts oflaw consider laws and executive acts in the Light of whether or not these conform with the tems of the constitution and then validate or inva!idate such expressions of legidative or executive will The Judicial CoIllllZittee of the Pnvy Council (JCPC) assumed a novel function within the British Empire by sedgas the court of last resort for resolution of Canadian federal disputes in the 1880s. The British law officers and Sir John A. Macdonald's ' ort ton. Judicial Process in Canada, p. 3 3 9. '~bid., pp. 339-340. 4 kddV. Sdky, The Federal Condition in Cmuda (Toronto: McGraw-Hill Ryerson Limited, 1987), p. 18. Conservative party also 'looked upon the appeals to the Judicial Committee as an essential link of imperial union."' This board was drawn hmpersons who had held hi& judiciai office in Britain, together with a srnail number of Commonwealthjudges. The Privy Council engaged in impenal judicial review before taking on federalism. It was fomally constituted and given jurisdiction over al1 colonial courts by acts of the British Parliament in 1833 and 1844.~ The Privy Council was both a judiciai and political tribunal which arose out of imperial