The Honourable , Chief Justice of

WILBUR F. BOWKER ,`

V11I. Practice and Procedure In the preceding instalment of this article we gave an account of Chief Justice Harvey's early career and of his leading decisions on various subjects-the criminal law, constitutional law, domestic relations, real propety and torts . These decisions on substantive law give some indication of his contribution to the jurisprudence. His judgments on matters of practice and procedure, often of equal importance to the administration of justice, help to give `a picture of other judicial characteristics and attitudes. Rules of Court, like statutes, are never exhaustive and the judges must fill in the gaps. It is always most disconcerting to the practitioner when the requirements in procedural matters at trial and in chambers differ from judge to judge. As the Chief Justice said in one case, "What the practice should be seems of less im- portance than that it should be authoritatively settled"J" He fre- quently spoke for the Appellate Division in laying down the prac- tice to be followed in the future. Thus in a case where a question arose as to the proper practice on applications for possession of land under wartime rental regulations, he wrote : As it was stated by counsel that the Chamber judges are not follow- ing a uniform practice in respect to such applications, we intimated that we would give some direction as to the proper practice so that there might be uniformity,172 and he proceeded to do so. *Wiibur Fee Bowker, Q.C, B.A., LL.B. (Alta.). LL.M. (Minnesota), Dean, Faculty of Law, The first instalment of Dean Bowker's article appeared in the November issue beginning at page 933 (1954), 32 Can, Bar Rev. 933. 171 Hayhurst v. Inrusfail Alotors Ltd., [1935] 1 W,W.R 385, at p. 391, [193512 D.L.R. 272, at p. 277. 172 Hurov v. Clyde, [1943] 2 W.W.R. 470, at p. 472, [194313 D.L.R. 701, at p. 703, See also Prudential Insurance Co. v Security Trust Co , [1942] 3 W.W.R. 494.

1954] The Honourable Horace Harvey 1119

Most decisions on practice concern of course the rules of court. During the Territorial period, the rules were contained in the Judicature Ordinance until 1898, when they were set out separate ly-171 On the formation of the province, the same rules remained in force until 1914, when a completely new set was made.174 Be- fore this the English practice applied where the local rules were silent, 171 but the 1914 rules, which basically remain in force to this day, are an exclusive code, under which the court has been able to develop an independent practice.176 In several cases interpreting the 1914 rules the Chief Justice referred to the fact that he had been a member of the commission that drew them,177 an approach that raises an interesting point of construction . In' 1305 Chief Justice Hengham said to counsel, "loo not gloss the statute, for we know better than you : we made it".1711 On the other hand, Lord Halsbury said that the worst per- son to construe a statute is the one who was responsible for its drafting, because he tends to give effect to what he meant, not what he said. 179 When Harvey C.J. had to construe the 1914 rules he referred to the intention of the framers, including himself.111 Yet many years later, interpreting the revised rules of 1944, in which he had had no hand, he aligned himself on the side of Lord Hals- bury, observing that "it seems to me to be a very unsafe principle on which to interpret a statutory provision or rule by reference to what the framers intended by it".181 One of the most important contributions he made to sound procedure was to insist on strict compliance with the requirements of statutes and rules. He would never tolerate careless or inept practices and on at least two occasions, in an effort to prevent the filing of untidy appeal books and factums, he deprived a success- ful appellant of his costs."' He insisted, though perhaps not always 173 R. O., 1898, c. 21 . The rules are set out in full with the ordinance. 174 The authority for these rules was the Supreme Court Act, 1907, c. 3. This act and the Judicature Ordinance were replaced by the Judicature Act, 1919, c. 3. 175 The Judicature Ordinance, R.O., 1905, c. 21, s. 21. 176 See Augustino v. Canadian Northwestern Railway Co. (1928), 23 Alta. L.R. 351, [19281 1 W.W.R. 481, [19281 1 D.L.R. 1110. 177 For example, McDougall & Secord Ltd. v. Merchants Bank (1919), 14 Alta. L.R. 564, at p. 566, [1919] 1 W.W.R. 830, at p. 831, 46 D.L.R. 672, at p. 673 ; Webster v. Solloway, Mills & Co. Ltd. (1930), 24 Alta. L.R. 632, at p. 633, [1930] 2 W.W.R. 514, at p. 515. ' 178 Plucknett, A Concise History of the Common Law (4th ed., 1948) p. 314. 171 Maxwell, Interpretation of Statutes (10th ed., 1953) p. 26. 186 Godfrey v. Marshall (1917), 11 Alta L.R. 37, at p. 42. 131 Cummings v. Reister, [1948] 1 W.W.R. 237, at p. 239, [1948] 2 D.L.R. 153, at p. 154. 112 Duggan v. Wadleigh and Rankin (1912), 4 Alta L.R. 114, 1 W.W.R.

1120 THE CANADIAN BAR REVIEW [VOL. XXXH with success, that counsel file their factums on time. When they were late he always knew it, because he had the clerk bring them to him as soon as they arrived. Invariably he read them before the appeal came on for hearing and it was obvious from his remarks to counsel that he knew what they contained, grasped the issues and had familiarized himself with the relevant statutes and cases. He was generally more ready than his brethren to set aside a garnishee summons, bill of sale or caveat because of a defect in the supporting affidavit. The rules of court specify certain information "necessary" in an affidavit in support of a garnishee summons, the Bills of Sale Act prescribes the contents of the affidavit that must accompany a bill of sale or chattel mortgage and the Land Titles Act requires an affidavit of bona fides to support a caveat. In the many cases where these affidavits were faulty the Chief Justice showed little inclination to invoke the "slip rule" or a curative section."' The leading case of McPherson v. McPherson seems to furnish an exception to his usual strictness in procedural matters. Here a divorced wife sued to set aside the divorce previously granted against her. She alleged, among other things, that the decree nisi had been made in the judges' library and not in open court. The Chief Justice held that the library became in fact an open court when the presiding judge declared it to be so, but that, even if it were not, the decree was not a nullity. The writer listened to the argument on appeal and formed the impression that the Chief Justice was influenced towards his conclusion by the fact that in his early days at the bar and on the bench court had sometimes to be held in a building other than a court house, even in a pool hall, and that he saw no objection to holding it in a library. The Privy Council held, however, that the hearing had not been in open court and the decree was therefore voidable, but that the divorced wife had waited too long to complain-114 595, 1 D.L.R. 871 ; Chadwick v. Stuckey (1912),5 Alta. L.R. 145, 3 W.W.R. 549, 8 D.L.R. 357. 133 See, on garnishee summons: Mohr v. Parks. Brown and National Manufacturing Co. (1910), 3 Alta. L.R. 252, 15 W.L.R. 250, Beaubier v. Lloyd (1918), 13 Alta. L.R. 47, [1918] 1 W.W.R. 772, 39 D.L.R. 439, Adams v. Adams (1921), 17 Alta. L.R. 109, [1922] 1 W.W.R 47, 62 D.L.R. 721, McParland v. Seymour (1925), 21 Alta. L R. 525, [1925] 3 W.W.R. 666, [192514 D.L.R. 944, and Banque Canadienne Nationale v. Labine, [1933] 1 W.W.R. 385 ; [1933] 2 D.L R 432 ; on bills of sale . MacKenzie v. Royal Bank (1931), 25 Alta. L.R. 281, [1931] 2 W.W.R. 129, [1931] 3 D.L.R. 884, rev'd [1932] S.G.R. 524,[1932] 2 D.L.R. 12, and Kendrew v. Cushing, [1946] 3 W.W.R. 571, 27 C.B.R. 272 ; and on caveats : Wilkinson v. Shackleton (1930), 24 Alta. L.R. 377, [1930] 1 W.W.R. 721, [1930] 3 D.L.R 304. 184 [193311 W.W.R. 321,11933] 2 D .L.R. 244 ; aff'd for different reasons,

1954] The Honourable Horace Harvey 112 1

On matters of practice arising under the rules of court, he helped to settle a number ofimportant principles, for example, on examina- tion for discovery of a company officer,"' inspection of documents where privilege is claimed,"' the right to a summary judgment,"' the striking of pleadings 188 and the amendment of pleadings at trial."' , The history of the provisions for jury trial in civil cases is of interest. Before 1914 either party could demand as of right a jury trial in certain enumerated cases, including nearly all common-law actions."" Horace Harvey drafted the new jury rules, 91 which al- lowed a jury as of right in a small number of actions. In other cases the judge had a discretion to direct trial by jury. The members of the court were so far apart on the grounds justifying an exercise of the discretion that in the first case to come before the Appellate Division "no reasons for judgment were ever given because the members of the Court were unable to agree upon any satisfactory interpretation of the rule". 192 They never did agree"' and so in 1918 the rules were changed to restore the right in almost all cases, save that thejudge might direct trial without a jury where the prolonged examination of documents or a scientific inquiry would make this course more convenient. 194 These rules are still in effect. The Appel- late Division, and particularly Harvey C.J., remained hesitant to lay down any general rule that a trial judge should exercise his dis [1936] A.C. 177, [193611 W.W.R. 33, [1936] 1 D.L.R. 321 . In a later case, where a magistrate had held court in a private room in the R.C.M .P . barracks, the Chief Justice loyally said, "The well-established common- law right, of the public to have access to court trials was quite recently emphasized by the Judicial Committee in an appeal from this province, McPherson v. McPherson", and the conviction was set aside : R. v. Green- wood, [1948] 1 W.W.R. 322, at p. 328, [1948] 2 D.L.R. 347, at p. 352 . I'll McDougall & Secord, Ltd. v. Merchants Bank (1919), 14 Alta . L.R. 564, [1919] 1 W.W.R. 830, 46 D.L.R. 672. 188 Webster v. Solloyvay, Mills & Co, Ltd. (1930), 24 Alta . L.R. 632, [193012 W.W.R. 514. 187 Talbourdet v. Junker (1927), 22 Alta. L.R. 435, [192711 W.W.R . 495, [192712 D L.R. 175. 1 8 8 Security Trust Co. v. National Trust Co. (1928), 24 Alta L.R 11, [1928] 1 W.W.R 687, [192812 D.L.R 393. 1 89 Russian Met cantile Co. v. Sloboda (1927), 23 Alta. L.R . 1, [1927] 3 W.W.R. 451, [1927] 4 D.L.R. 931 . HI Judicature Ordinance, R.O., 1905, rule 170. The various jury ordin- ances and acts do not require notice in this account. 191 He so stated in Godfrey v. Marshall (1917), 11 Alta . L.R. 37, at p. 42. 192 As Stuart J. said later in Salter v. (1916), 9 Alta. L.R. 334, at p. 335, 10 W.W R. 173, at p. 174, 27 D L R. 584, at p. 585. M Godfrey v. Marshall (1917), 11 Alta L.R. 37, [1917] 1 W.W.R . 1097 ; Hubbard v. Edmonton (1917), 37 D.L.R. 458,[191713 W.W.R. 732,12 Alta . L.R. 115 ; and Hogan v. Northern Construction Co. (1918), 13 Alta. L.R . 230, [1918] 1 W.W.R. 652. 194 McIntyre v. Alberta Pacific Grain Co. (1918), 14 Alta. L.R . 373, [19181 3 W.W.R. 906, 43 D.L.R. 682.

1122 THE CANADIAN BAR REVIEW [VOL . XXXII cretion by refusing a jury, for example where medical evidence is to be called."' The Chief Justice's own opinion on jury trials ap- pears in the following passage : There it no doubt that the training and experience of a Judge aid him to subordinate his sympathies and his other emotions to his judgment and make him a better person than an inexperienced layman to decide most matters that require to be decided in a Court of law, but it does not follow that that makes him a safer or surer person to decide even some of those questions than sax laymen, and there may even be matters which have to do with the relations of the parties in which thejudgment of a layman in their own walk of life may be more likely to be correct than that of a Judge.'ec Rules of court are a mere framework and the judges must give them content. Whether certainty and efficiency or uncertainty and inconvenience are the result depends peculiarly on the courts. No short summary of practice cases can do justice to the common sense with which Chief Justice Harvey disposed of arguments on the meaning of the Alberta rules. His mark appears clearly on the present practice in the province.

IX. The Doctrine ofPrecedent One of Chief Justice Harvey's most strongly held tenets was that courts should follow precedents . In many cases he accepted with- out question the decisions of the Judicial Committee of the Privy Council or the even when they were at variance with views he had himself expressed."' He followed not only binding authority but, with few exceptions, the decisions of co-ordinate courts in other provinces, particularly where a Dom- inion statute was in issue. In one case, for example, where the ques- tion was whether a lien note is a promissory note under the federal Bills of Exchange Act, he said : If the present case comes within the principle of these decided cases, whatever might be my personal view, I should hesitate to disregard the decisions of the highest Courts in three of our Provinces. . . . I have endeavoured to make a distinction on this basis; but after very careful consideration the only conclusion I can come to is . . . that I must there- fore hold that the instrument sued on here is not a negotiable promissory note.x9x ias Duxbury v. Calgary (No. 2), [1940] 1 W.W.R. 174, [1940] 1 D.L.R. 684 IM Godfrey v. Afaashall (1917), 11 Alta L.R 37, at p. 43 . 197 E g , R. v. Greenwood, footnote 184 supra; Re Royalate Oil Co., [19311 2 D.L.R. 418. 196 Frank v. Gazelle Live Stock Company (1906), 6 Terr. L.R. 392, at pp . 394-395, 5 W.L.R. 573, at p. 575.

1954] The Honourable Horace Harvey 1123

Again, he stressed many times the importance of uniformity in criminal procedure, a matter governed by federal legislation."' Where Alberta had adopted a statute from another province, which had already been interpreted there, then that interpretation should be followed in Alberta."' Often he applied without question the deci- sions of English courts, though in one case he refused to follow the English Court of Appeal"' and in another, the Court of Crim- inal Appeal."' His strong belief in stare decisis became apparent when the court en bane"' had to consider whether it was bound by its own decisions. In 1919 in R. v. Schmolke"4 he gave the opinion of the full court, following a decision of the full court in Nova Scotia, that a magistrate had jurisdiction under the Inland Revenue Act to try a charge of possession of an unlicensed still?°s The next year the court, considering the same problem in R. v. Hartfed, by a majority of four to one overruled Schmolke . The Chief Justice dis- sented vigorously : It must be quite apparent that if the Court does not show respect for its own decisions it can hardly be surprised if no one else does . It throws the door of uncertainty wide open and every counsel not satisfied with a decision can come back and demand a re-argument of the whole question. It leaves a trial Judge in the uncertain position of not know- ing whether he should act on his own judgment rather than follow a

"s E g., R. v. John Irwzn Co , Ltd. (1919), 14 Alta. L.R . 600, [1919] 2 W.W.R 226,31 C.C.C. 54. 200 Bennefzeldv. Knox (1914),7 Alta. L.R. 346,6 W W.R. 737,17 D.L R. 398; following Ward v. Serrell (1910), 3 Alta. L R. 138. In one case, how- ever, the Chief Justice accepted the argument that, although two provincial statutes were similar in form, the Alberta legislature may not have known of the decision in the other province interpreting its act, or even of the existence of the act, and so he need not follow the decision: Anderton v. Soroka (1925), 21 Alta L.R. 100, [1925] 1 W.W.R. 1019, 11925] 2 D.L.R. 488. In another case he held that the rule in Bennefzeld does not apply where the statute of the jurisdiction of origin received no judicial inter- pretation until after the Alberta act was passed : Deugau v. Morrzson, [1938] 3 W.W.R. 269, [1938] 4 D.L.R. 353. 101 Re Western Canada Fire Insurance Co. (1915), 8 Alta. L.R. 348, 7 W.W.R. 1365, 22 D.L.R. 19. The decision, concurred in by Harvey C.J., was delivered by Beck J. 202 R. v. Girvin (1910), 3 Alta. L.R. 387, 18 W.L.R. 482. 201 From 1914 to 1921 the court en bane was called the Appellate Divi- sion. 204 (1919), 14 Alta. L.R. 601, [1919] 3 W.W.R. 409, 33 C.C .C. 371 . 205 The act gave magistrates jurisdiction only where the amount of the penalty or forfeiture was $500 or less. On a charge of possessing an unli- censed still, the maximum fine was $500, but added to this was a forfeiture of twice the amount of the licence fee. If these two amounts are to be added together to determine jurisdiction, then it is obvious that the magis- trate has no jurisdiction on this particular charge.

1124 TIC CANADIAN BAR REVIEW [VOL . XXXII

decision of this division, which this division On appeal from him may itself refuse to follow. . . . tab Stuart J., on the other hand, advanced strong reasons for refus- ing to follow Schmolke. It had been decided, not on the merits, but out of a desire for uniformity in the criminal law throughout Canada. He was "extremely pessimistic about the possibility of this being brought about . . . by means of provincial Courts of Criminal Appeal following previous decisions of the Courts of other prov- inces", and he doubted "if eastern Courts of Appeal will generally be found very ready to bow to decisions from the west" . A provin- cial court should not be expected to follow a decision rendered in any province, even if it is firmly of opinion that the decision was wrong, just because it happens to have been decided first. Beck J. had no qualms whatever about departing from an earlier case : "Sitting as a member of the Appelate Division I repeat what I have said on more than one occasion that I feel bound not to refrain from expressing my real opinion upon questions of substantial im- portance notwithstanding a decision of this division to the con- trary".-°' Fourteen years later, when the Appellate Division was a sep- arate branch of the court in fact as well as in name, it had to con- sider whether to follow the British Columbia Court of Appeal, which had held that a particular type of slat machine is a gaming device and so subject to forfeiture. In the course of his judgment Chief Justice Harvey said : The criminal law is the same throughout Canada and if respect is to be maintained for the admmistiation of it the Courts of the different provinces should not place different interpretations on it but leave it for the Supreme Court of Canada or Parliament to correct any wrong de- cision.2Q 8 The different interpretations of the law on slot inachines "has not increased respect for the courts and has confused and complicated and made more difficult the enforcement of the criminal law in this regard". He then took occasion to discuss Schmolke and Hartfed. In Hartfeil the court had considered itself free to depart from its earlier decision because the Appellate Division was then a 206 (1920), 16 Alta. L.R. 19, at pp. 21-22, [1920] 3 W.W .R. 1051, at p. 1053, 55 D.L.R. 524, at p 525. 267 In a previous case he had said, "I have little respect for the maxim stare decisis . . " : Reventlow-Criminil v. R.Al. of Streamstown (1919), 15 Alta. L.R. 204, at p. 219, [1920] 1 W.W.R. 577. at p. 586, 52 D.L.R. 266, at p. 274. 26 ; R. v. Glenfreld, [1934] 3 W.W.R. 465, at p 467, [1935] 1 D.L.R. 37, at pp. 38-39.

1954] The Honourable Horace Harvey 1125

mere "voluntary committee" of the court and the decision of one committee was not binding on another committee. But this reason- ing could not possibly be applied after 1921, when the Appellate Division became a separate entity. It should now adhere to its own decisions. He then rehabilitated the rule laid down in Schmolke that the court should follow decisions from courts of last resort in other provinces on matters of criminal law. It is "a very salu- tary rule to follow for general purposes though I would not say that like any other good rule there might not be possible ex- ceptions, as if for instance we were satisfied that the other decision is clearly wrong". In his early days on the bench he had certainly on one occasion at least considered that a wrong decision need not be followed. A few months after his appointment, the Supreme Court of the North-West Territories en banc had to decide the neat question whether a railway conductor who accepts a bribe to allow a pas- senger to ride without a ticket is guilty of stealing the amount of the fare from the railway. Harvey J. stood alone in saying that he is not guilty of theft, whatever other crime he may be guilty of." Six years later the Supreme Court of Alberta en banc faced the same problem. Horace Harvey was now Chief Justice of Alberta. Although the new court has taken the place of the old, he said, it is an entirely different Court, and is not in my opinion bound by decisions of that Court any more than it would be by the decisions of its sister Court of the Province of Saskatchewan which occupies the same relation to the earlier Court that this Court does.210 He held the same opinion he had in 1905, and this time two of the four other judges sitting agreed with him and the conviction was quashed. In spite of his respect for precedent, he was still a "strong" judge, and this is not the only case in which he clung to his opinion. He was not a party, for example, to a frequently cited judgment in which the majority of the court laid down a series of conditions that, if present, precluded a trial judge from refusing to accept evidence in a criminal case 211 and, where he could, he restricted it in later cases, though he did not expressly repudiate it.212 209 R. v. McLennan (l905), 7 Terr. L.R. 309, 2 W.L.R. 227, 10 C.C.C. 1 . 210 R. v. Thompson (1911), 4 Alta. L.R. 18, at p. 19, 1 W.W.R. 277, at p. 278, 21 C.C.C. 80, at p. 82. 211 R. v. Covert (1916), 10 Alta. L.R. 349, [1917] 1 W.W.R. 919, 34 D.L.R. 662. 212 R. v. Morin (1917), 12 Alta. L.R. 101, [1917] 3 W.W.R. 693, 38 D.L.R. 617 ; R. v. Nat Bell Liquors Limited (No. 2) (1921), 16 Alta. L.R. 149, [1921] 1 W.W.R. 563, 56 D.L.R. 523.

1126 THE CANADIAN BAR REVIEW [VOL . YYYII Like most judges, he could draw on occasion what may seem to an observer a fine distinction in order to preserve a previous judg- ment of his own. Where the Supreme Court has handed down a decision that seems to conflict with a judgment of his own in an- other case, is a provincial judge being any less than human if he tries to reconcile the two when the situation arises again? Here is an example from the judicial career of Harvey C.J. A judgment creditor wants to seize the crop of his judgment debtor and has a seizure made, but the wife claims the crop on the ground that she owns the land. The creditor replies that the husband is the real farmer, and that therefore he, the creditor, is entitled to seize the crop. In 1926 the Appellate Division held in Sfandard Trusts Co . v. Briggs that the test is : Who carries on the farming operations, the husband or the wife? 211 On the other hand, in 1927 the Supreme Court of Canada appeared to say in the Tencha case, an appeal from Manitoba, that the test is : Who is owner of the land?"' Then in 1930 a creditor in Alberta seized the crop on land the debtor had transferred to his wife but continued to farm himself. The Chief Justice did not ignore the argument that the Supreme Court had overruled the Briggs case, but a ciose scrutiny of the two judgments enabled him to say that it had not. Tencha does not exclude entirely the test that the person in possession or occupancy, rather than the owner of the land, is owner of the crop."' Though Chief Justice Harvey usually insisted on following precedent, sometimes uncritically, and even when it was not strictly binding, yet he was capable of demonstrabng what Sir Frederick Pollock once teimed "judicial valour.111 As we have seen, he did not hesitate to break new ground in the law of torts,211 and, as we shall now see, he did not slavishly apply in Alberta the law of England. By the North-West Territories Act, 1886, the laws of England as they existed on July 15th, 1870, were declared to be in force in the Territories "so far as the same are applicable" and until re- pealed or altered by the appropriate legislature. This provision was brought forward by the Alberta Act. Since it is the judges who '13 0920,22 Alta L R. 113,[1926] 1 W.W.R. 832,[1926] 2 D.L.R. 379 . 214 Banque Canadzenne Nationale v. Tenclza . [1928] S.C.R . 26, [19271 4DLR 665. 217 F. Aloyet Boot & Shoe Co. v. Aloellendozf (1930), 25 Alta. L.R. 76, [19301 3 W.W R 311, [19311 1 D.L.R. 360. 216 Pollock, Judicial Caution and Valour (1929), 45 L. Q. Rev. 293. For subsequent references to this theme aee Note (1946), 62 L. Q. Rev. 5; Cand- ler v. Cane, Christmas and Co, [1951] 2 K B. 164, [1951] 1 All. E.R . 426 . .1' See also, in the law of wills, Re Mewburn Estate, [193812 W.W.R. 433, [1938] 3 D.L .R. 459, rev'd [19391 S.C.R. 75, [1939] 1 D.L.R . 257.

1954] The Honourable Horace Harvey 1127

say whether a particular statute or common-law doctrine is ap- plicable in Alberta, they have in their hands wide power to deter- mine the direction that Alberta law will take. True, the legislature can always change the law as declared, but it seldom does. The matter of imprisonment for debt is an example. In 1869 the Imperial Parliament had passed the Debtors Act, which generally abolished the imprisonment of debtors, but provided that any person with the means to pay who makes default in pay- ment of a debt or instalment of a debt due from him under a judgment of a competent court might be committed to prison for a term not exceeding six weeks. In 1907 Scott J. committed a debtor to prison under this act and on appeal the debtor argued that the act was not applicable to conditions in Alberta. Harvey J., writing for the majority in a three to two decision, pointed out that, if it were not in force, the more drastic common-law power to im- prison would still apply, which he obviously thought would be absurd."' During World War 1, as a result of the campaign for women's rights, Alberta appointed a number of women magistrates. An accused who had been tried by one of these women magistrates applied to quash the conviction, arguing that at common law a woman could not hold public office. Scott J. expressed serious doubts whether a woman was qualified to be appointed to the office of police magistrate, but nevertheless refused to quash. Harvey C.J. sat on the appeal, though the judgment of the court was written by Stuart J. After a searching examination of the historical back- ground, the judgment concluded that women were eligible for public office in England in 1870. In any event, "In my opinion, in a matter of this kind the Courts of this province are not in every case to be held strictly bound by the decisions of English Courts as to the state of the common law of England in 1870. We are at liberty to take cognizance of the different conditions here, not merely physical conditions, but the general conditions of our public affairs and the general attitude of the community in regard to the particular matter in question.""' Perhaps it was this victory that encouraged the champions of women's rights in Alberta to insist on the right of women to sit in the Senate. The issue involved the interpretation of section 24 of the British North America Act, 1867, which says that "The Gover- 21" Fraser v. Kirkpatrick (l907), 6 Tern L.R. 403, 5 W.L.R. 287. 219 R. v. Cyr (1917), 12 Alta. L.R. 320, [1917] 3 W.W.R. 849, 38 D.L.R. 601.

1128 THE CANADIAN BAR REVIEW [VOL. XXXII nor General shall from Time to Time . . . summon qualified Persons to the Senate". No woman had ever been summoned, the assump- tion being that only men are persons for the purpose of the section. In 1927 five Alberta women set in motion a reference to the Su- preme Court of Canada on the question, Are women eligible for appointment to the Senate of Canada? Influenced by the common-law rule that women could not hold public office, the Supreme Court answered the question in the nega- tive. The five Alberta women then appealed to the Judicial Com- mittee. In stating his famous doctrine that the British North Am- erica Act is a "living tree capable of growth and expansion", and that women are eligible to sit in the Senate, Lord Sankey used words similar to those of Stuart J. just quoted : "their Lordships do not think it right to apply rigidly to Canada of to-day the deci- sions and the reasonings therefor which had commended them- selves, probably rightly, to those who had to apply the law in different circumstances, in different centuries, to countries in dif- ferent stages of development"."-°° Although the Chief Justice did not share the readiness of some judges to hold English law unsuitable to conditions in Canada, he never applied it automatically if he genuinely felt it out ofharmony. As late as 1927 the court had to consider whether the rule in Shelley's case, which the House of Lords held in 1897 to be still the law of England, is in force in Alberta. Suppose a will provides : "I devise Blackacre to X for life and then to his heirs". The words "to his heirs" are words of limitation, not of purchase, and give X the fee simple and the heirs nothing, no matter what the intent of the testator or how absurd the result. In the Alberta case, the Chief Justice said that the rule in Shelley's case, like the mortmain laws, rests on reasons affecting the land and society of England, but not applying in a new colony. Even if the rule were introduced, it was abrogated by the Torrens system.2-"

X. Judicial Traits Chief Justice Harvey was not unique in his stand that, following of necessity from the doctrine of parliamentary sovereignty, the 1,10 Edwards v. A.-G. for Canada ("Persons"), [1930] A.C . 124, [1929] 3 W.W.R. 479, rev'g [1928] S.C R. 276.[1928] 4 D L.R . 98. For an account of the surrounding events, see Sanders, Emily Murphy : Crusader (1945). 221 Re Simpson Estate (1927), 23 Alta. L.R. 374, [1927] 3 W.W.R . 534, [1927] 4 D.L .R. 817; aff'd [1928] S.C.R. 329, [1928] 3 D.L.R . 773 . The Supreme Court did not consider it necessary to decide the point, because the wording of the will did not bring the rule into play.

1954] The Honourable Horace Harvey 1129

wisdom and fairness of statutes are a matter for the legislature. Over again he insisted on the duty of the court to give effect to statutes, however harsh the consequences . In the Nat Bell case, for example-where the chief witness for the Crown was an informer and the penalty imposed on the company a fine and the forfeiture of over a thousand cases of liquor-Harvey C.J. observed in his dissent: Nor is it within our province to consider the wisdom or justice of either the law which it is sought to enforce or the methods by which it is sought to enforce it. The legal aspect only of these is for our con- sideration and we have no duty or right to deal with legislative or exe- cutive functions, whatever our personal opinions may be.222 Yet it would be wrong to leave the impression that he always insisted on giving literal effect to the words of a statute. Where it seemed necessary he was prepared to imply words223 or, converse ly, to restrict the literal meaning. 224 We have already seen that he went to some length in upholding a disposition of land which the Dower Act declared to be null and void. For the greater part, his interpretation of statutes was guided by the orthodox canons and rules. His important contribution was insistence on uniform inter- pretation of Dominion laws and of provincial laws in pari materia -a trend which, if generally adopted, will have a healthy effect on Canadian jurisprudence. As for decisions on matters governed solely by case law, -the Chief Justice generally was guided by logic and analogy. One might think from some of his judgments that he considered the duty of a judge merely "to match the colors of the case at hand against the colors of many sample cases spread out upon [his] desk".225 His belief in the advantages of stare decisis may some- times have led him in this direction. But, though he sometimes de- cided a point as he would not have done had it been novel, this was the consequence of his concept of the judicial function, not of any notion that rules of law bear no relation to the needs of society. Much can be said for the emphasis put by scholars like the late Mr. Justice Cardozo and Roscoe Pound on the importance of re- 222 R. v. Nat Bell Liquors Limited (No . 2) (1921), 16 Alta. L.R. 149, at pp. 154-155, [1921] 1 W.W.R. 563, at p. 567, 56 D.L.R. 523, at p. 544. For other comments to the same effect see Mayland v. Lymburn, [1931] 1 W.W.R. 735, [193112 D.L.R. 698, 25 Alta. L.R. 310. 221 Re McLeod (1929), 24 Alta. L.R. 565. 221 The King v. C.N.R., [1921] 1 W.W.R. 1178, rev'd in part (1922), 64 S.C.R. 264, which was aff'd, [1923] 3 W.W.R. 547 (P.C.). 221 Cardozo, The Nature of the Judicial Process (1921) p. 20.

1130 THE CANADIAN BAR REVIEW [VOL . XXXII membering that rules of law are not an end in themselves and that judges, in reaching decisions, should think in terms of the welfare of society and the accommodation of conflicting interests. There is no reason for thinking that Chief Justice Harvey would have quarrelled with their approach, but he would certainly have said that questions of this sort are in the main to be left to the legis- lature. He would not have denied that judges may legislate "inter- stitially", but for him the interstices would have seemed minute : the scope allowed the judiciary to mould the law on "functional" or "sociological" lines is confined within very narrow bounds. In one case at least the Chief Justice specifically referred to the prac- tical implications of any decision the court might make. The dis- pute arose when an early snowfall prevented a thresherman from completing his contract to thresh a farmer's crop. The thresherman claimed payment for what he had threshed and the farmer counter- claimed for breach of contract. The Chief Justice, speaking for the court, applied the well-known cases on impossibility of per- formance and held for the plaintiff. Of interest here is his statement that in a province where hundreds of millions of bushels of grain are threshed each year and the threshing season is short, "it is not merely of special interest that each farmer should get his grain threshed but it is of general interest that each thresher should be enabled to use his outfit to its fullest capacity' ' .221 This observa- tion does not indicate "arid conceptualism"?27 If a judge is restricted in giving effect to what is socially or economically desirable, it follows that he is similarly limited in giving effect to what seems to him morally just. Chief Justice Harvey had a strong "prejudice" in favour of the sanctity of pro- mises, yet his concept of the r61e of the courts led him to refrain, assuming the law to be clear, from imposing his own views of what is honourable. In a case that came to the court in 1948, when the Chief Justice was a very old man, a trade union contended that a Dominion order in council permitted it to terminate a collective labour agreement with a coal company in spite of the express terms of the agreement: It was urged by counsel [for the company] that the attempt to terminate the agreement is in complete disregard of the [union's]

226 Klein v. Sanderson (1928), 23 Alta. L.R. 467, at p. 469 . 227 Another example is Areand v. Kaup, [1939] 2 D.L .R . 456, at p. 473, where the Chief Justice, in dissent, gave as a reason for holding that the driver on a main highway should be entitled to assume that others will yield to him, the probability that the legislature wanted to protect the traffic on main highways and so encourage the tourist traffic .

1954] The Honourable Horace Harvey 113 1 solemn promise. That, of course, involves a question of honour which can enter into consideration by the court only if, and so far as, it can help to determine the question of legality, but is naturally a satisfac- tion to any judge when he can come to the conclusion that no reflec- tion can be cast on the law as supporting what appears to be not honourable.2211 Some years earlier he had expressed a similar point of view, some- what less succinctly, in a case where the former principal of a business college in Calgary sought, on the ground that it was in restraint of trade, to set aside a covenant that he would not com- pete in Calgary for five years after leaving the college: One wonders whether in this day [dust after the outbreak of the Second World War] when we are confronted with a situation in which the heads of nations enter into solemn contracts and treaties with the apparent intention of abiding by their promises only so long as they consider them in their interest and repudiating them when they find them of no further value to themselves, which conduct with the spirit underlying it meets with the universal abhorrence of all right-thinking people, the highest Courts or the Legislatures might not properly con- sider that the preservation of the sanctity of contracts entered into by `men of full age and competent understanding' is of even greater pub- lic interest than any restriction on freedom of trade which might be involved. . . . Fortunately many-perhaps a majority-of our people have such a sense of honour that they would scorn to repudiate their solemn promise on any legal ground of its invalidity but with the ex- ample of the tendency and practice we see abroad in high circles that sense of honour may become blunted and give way to the sense of seeming self-interest with disastrous results unless halted by the Courts or the Legislatures.229 The Chief Justice's strict sense of probity also found expres- sion when he came to deal with charges of misconduct against barristers and solicitors . Until the year 1922 the Appellate Divi- sion was vested with the power of disciplining members of the pro- fession and applications used to be made to the court to strike a practitioner off the rolls or restore him. The function of the court in dealing with these applications he once described in the follow- ing words The relationship of solicitor and client is a fiduciary one, involving the utmost confidence on the part of the client, and requiring the strictest honour on the part of the solicitor and the purpose of giving the Court the power which is now sought to be invoked is to preserve 2211 Alexo Coal Co., Ltd. v. Liven, [1948] 1 W.W.R . 195, at p 200, [1948] 2 D.L.R. 34, at p. 38. The Chief Justice, in dissent, held that the agreement remained binding on the union. 221 Garbutt Business College Ltd. v. Henderson, [1939] 3 W.W.R . 257, at p. 262,[193914 D.L.R. 151;at pp. 168-169 . The court unanimously held that the covenant was binding.

1132 THE CANADIAN BAR REVIEW [VOL . XXXII

that honour inviolate amongst solicitors who are its officers, and it appears to me that that end can only be accomplished by imposing suitable punishment for transgressors committing breaches of trust and honour.230 Twice he cited with approval231 the following passage from an English case: We have a duty to perform to the suitors of the Court, and not only to the suitors of the Court but to the profession of the law, by taking care that those permitted to practice in it are persons on whose inte- grity and honour reliance can be placed.232 On applications for reinstatement the Chief Justice tended to re- quire stronger evidence of rehabilitation than did some of his brethren:33 With a sound instinct for the relevant, he insisted that fitness to practise, not mere punishment, is the test in deciding whether to strike or keep a off the rolls. The court's con- cern must be to see that he is a person of such character that the confidence reposed in him will not be betrayed 234 The Chief Justice did not easily yield to the common desire to give a wrong- doer another chance. Certainly Harvey C.J. was a "strong" judge, with a trace of iron in his makeup. Once he censured a trial judge he thought had been unfair to a party : "He [the defendant] does resent, however, the strictures and contemptuous references and findings of deser- tion and of perjury by the learned trial Judge in his reasons for judgment and I think he is justified in so doing, for, in my opinion, they are entirely unwarranted by the evidence".135 In one case, in which the Chief Justice presided at the trial, his charge to the jury included a castigation of defence counsel for what he considered unjustified aspersions on Crown witnesses ; 2`1 and on the appeal in another he said, mildly enough, that counsel had "spent nearly two days in trying to satisfy us that `in addition to' meant some- thing different from what anyone would ordinarily think it

220 Re Harris (1910), 2 Alta. L.R. 503, at p. 506, 13 W.L.R. 131, at p. 134. 231 Re Blaylock (1914), 7 Alta. L.R. 163, 6 W.W.R. 606. 16 D.L.R. 487 ; Re V(1924),20 Alta. L.R. 585, [192413 W.W R. 552, [1924] 4 D.L.R. 852. 232 Ex parte Pyke (1865), 34 L.J. (Q.B ) 121, per Cockburn C.J. at p. 123. 211 Re Harris (1914), 7 Alta. L.R. 272, 6 W.W.R. 628, 17 D.L.R. 103. "" Re Knox (1914), 7 Alta. L.R. 409, 6 W.W.R. 1586, 20 D.L.R. 546. 2-1 Sheaser v Sheaser (1926), 22 Alta. L R. 261, (192612 W.W.R. 389, 11926] 3 D L.R. 196. zae R v Shandro (1923), 19 Alta L.R. 129, [1923] 1 W W.R. 405, [19231 1 DX.R 722, and the Appellate Division ordered a new trial on that ground.

1954] The Honourable Horace Harvey 1133

meant".237 On rare occasions he paid an express compliment to counsel."' In the first twenty odd years of the province's history the Su- preme Court of Alberta had three outstanding appellate judges, Harvey C.J. and Stuart and Beck JJ.A. Occasionally they differed strongly from each other but the combined effect of their work was to give the province in its formative years a body of sound case law. Mr. Justice Stuart was interested in both philosophy and legal history and his scholarly judgments indicate a continual search for first principles. Mr. Justice Beck had a special interest in equity and was inclined to put "justice before precedent" ; in the words of the Chief Justice in 1932, "there has never been a Judge in this province more insistent upon the Court according the fullest protection possible to an accused person".239 The Chief Justice's own judgments reveal him as a careful and thorough workman, with a highly developed sense of relevancy. His reasons for judgment, though the style is not particularly dis tinguished, are clearly and succinctly expressed in their statement both of the facts and the law. He examined cases that were not in the factums and the writer knows of only one case in which he overlooked a relevant authority that might have changed his opinion.249 Usually he avoided extended comment and consequent- ly few of his judgments are long. His practice was to set out the facts, then the relevant cases in an orderly way, and finally to ap- ply the cases to the facts. On occasion he would refer to a law re- view article or a standard textbook. Always he declined to discuss matters that did not arise on the appeal"' or that might affect the interests of parties not before the court.242 His judgments give an impression of confidence and convic- tion. 7[t would not appear that he was ever greatly troubled by the 217 National Trust Co., Ltd. v. Palace Theatre Ltd. (1928), 23 Alta . L.R. 427, at p. 436, [192811 W.W.R 805, at p . 807, [1928] 2 D.L R. 739, at p. 740. 211 Garbutt Business College Ltd v Henderson, [1939] 3 W.W .R. 257, at p. 268, [1939] 4 D.L.R. 151, at p. 174 ...... I would like to add a word of commendation and thanks to the counsel engaged for the very great assistance rendered the Court in their careful analysis of the difficult questions of law involved in their written and oral arguments" . 211 R. v. Scheer (1932), 26 Alta. L.R. 489, at p. 491, [1932] 3 W.W .R . 555, at p. 557, [1933] 1 D.L.R. 310, at p. 312. 24° In Frank v. Gazelle Live Stock Association (1906), 6 Terr. L R. 392, 5 W.L.R. 573, he applied Kirkwood v. Smith, [1896] 1 Q.B. 582, which had been overruled by Kirkwood v. Carroll, [1903] 1 K.B . 531. 241 R. v. Glenday, [1946] 1 W.W.R. 62, [1946] 3 D.L.R. 218 . 242 Corwin v. Avery (1925), 21 Alta. L R. 95, [1925] 1 W.W .R. 811, [192512 D.L.R. 599 ; Canadian Credit Men's Trust Association v. Edmonton (1925), 21 Alta. L.R 160, [1925] 1 W.W.R. 747, [1925] 2 D.L.R . 525 .

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possibility that they might be wrong. This is not to imply that he did not recognize the difficulty of reaching a correct decision, but rather that he was philosophical about the possibility that he might be reversed. As he once observed, "That is what a judge is for-to decide difficult questions. If they were easy they would not ordinarily come before him." Although he often differed from his colleagues, there is never a suggestion of rancour in the pages of his judgments. The same spirit finds expression in a case where a certain fudge and members of the legislature had harshly criticized the police magistrate who had presided at the trial :

It must be apparent to anyone conversant with Courts of law that it is no reflection whatever upon a Judge or magistrate that a higher Court should take a different view of the law or the facts from that taken by him There probably never was a Judge yet no matter how able, and not being in the highest Court from which there was no ap- peal, who has not had his judgment reversed by a higher Court with nevertheless, perhaps, a fair prospect of its being restored by a still higher Court. There is room for an honest difference of opinion on most matters which come up for judicial decision, otherwise they would not have to be decided, but when the honesty of the Judge is impugned it is quite a different matter. Of course no one should be entrusted with the power of deciding the questions which come before magistrates and Judges who cannot be trusted to exercise that power honestly 244

Horace Harvey would doubtless have agreed with Lord Mac- millan that a judgment is not an appropriate vehicle for wit and pleasantry, 245 yet once or twice he did indulge in mild humour, tinged with irony. In one case, the operator of a motion picture theatre was charged with violation of the Lord's Day Act, when he showed a picture on Sunday and placed a collection plate at the door. The act forbade performances at which a fee was charged and the Chief Justice, in dissent, held that the theatre director was guilty of a violation of the act. In the course of his judgment he said The word `collection' ordinarily suggests a voluntary contribution because that is the kind of collection which is most frequently in evi- dence. But at a certain time of the year we realize that the collection made by the tax collector has sufficient force behind it. Every large law

243 Godfrey v. Nlaishall (1917), 11 Alta. L R. 37, at p. 43. 244 R. v. Dominion Drug Stores Ltd. (1919), 14 Alta. L.R . 384, at pp . 394-395, [191912 W.W R. 413, at p. 421, 31 C.C.C. 86, at p. 95. 245 Macmillan, The Writing of Judgments (1948), 26 Can . Bar Rev . 491, at p. 493.

1954] The Honourable Horace Harvey 1135

office also has its collection department, contributions to which have little spontaneity or voluntariness.241 In one of the many prosecutions under the prohibition law,' a druggist who sold a concoction called "Tonic Port" argued that it was so nauseating that no one could possibly drink enough to become intoxicated. A majority of the court agreed, but not Harvey C.J. : There is nothing moreover in the evidence of the defendant's expert witnesses to warrant the conclusion that by the exercise of a persever- ance which might perhaps be more commendable in a worthier cause the nausea caused when one first tries to drink the liquor in question may not wear away and disappear in later efforts . Most smokers of tobacco could probably furnish evidence of such a possibility.24T In another liquor case the Chief Justice's humour was vicarious, for he merely concurred in a judgment of Hyndman J. Aphysician was charged with giving a prescription for forty ounces of whiskey to a man who was not in fact sick, and the evidence showed that the "patient" had told the doctor he was about to go to Banff on a fishing trip. Mr. Justice Hyndman said: No matter what our opinions may be as to the virtue of Scotch whiskey on a fishing expedition the Act does not permit it and it is therefore a question for the Legislature to deal with. I am certain it is the judgment of many people that to permit its use on such occasions as a precaution against chills (the great fear of the trout fisherman) would tend to much greater production of fish in these times of scar- city of food . However, "even if a party fishing at Banff actually took ill, 40 ounces would be much more than he would reasonably need, as Banff is well supplied with doctors and hospitals and I fancy en- ough whiskey to restore life to any hapless, chilled fisherman"."'

XI Chief Justice Harvey's public services were extensive. During his long term of office he sat on several royal commissions and other inquiries, and at various times he was appointed administrator of the province in the absence of the Lieutenant Governor. But his special interest, apart from his judicial work, was undoubtedly in

211 R. v. Thompson (l913), 7 Alta. L.R. 40, at p. 41, 5 W.W.R. 157, at p. 157, 14 D.L.R. 175, at p. 176. 241 R. v. Maclean (1919), 13 Alta. L.R. 244, at p. 249, [l918] 2 W.W .R. 154, at p. 156, 40 D.L.R. 443, at pp. 444-445 218 R v. Rose (l918), 14 Alta. L.R. 118, at pp. 123,124,[1918] 3 W.W.R . 950, at p. 955-956, 30 C.C.C 405, at p. 410.

1136 THE CANADIAN BAR REVIEW [VOL . XXXII

the University of Alberta, of whose board of governors he was chairman from 1918 to 1940. The University of Alberta was established by provincial statute in 1906, classes were begun in 1908, and m 1910 a new act es- tablished the board of governors, most of whom, including the chairman, are appointed by order in council. Chief Justice Harvey was the second chairman. The governors have the main respon- sibility for the management of university affairs and the office of chairman is an onerous one. A glance at the minutes of the board during the twenty-two years of Horace Harvey's chairmanship reveals the many important decisions and the innumerable mat- ters of detail in which he had a hand. The depression of course put a halt to physical expansion and when the postwar building pro- gramme took place he had retired. As chairman of the board, rather than as Chief Justice, he was interested in a constitutional dispute between the province and the Dominion over the right to Alberta lands which had escheated. When the province was created, "All Crown lands, mines and minerals and royalties incident thereto" were kept by the Domin- ion. The right of escheat is a royalty and therefore the Dominion was entitled to land in the province that had escheated . In an attempt to secure for itself lands of an intestate who dies leaving no next of kin (heirship having been abolished long before), the province passed an act in 1915 providing simply that all property of the intestate should vest in the province. The Supreme Court held it invalid in so far as it interfered with the Dominion's right of escheat."" Then in 1921 the legislature tried again. A new statute, the Ultimate Heir Act, provided that every person dying intestate with no kin was deemed to have made a will in favour of the Uni- ~ersity of Alberta. When the Dominion contended that this act too was invalid, as an encroachment on its right of escheat, the province argued that it had power to amend the law of inheritance. The Appellate Division, sitting without the Chief Justice, upheld the act, but the Privy Council in 1928 declared it invalid in so far as it applied to lands.25° Since he was chairman of the Board of Governors, the Chief Justice had not sat, but it is probable that

211 Trusts & Guaranty Co v. The King (1916), 54 S.C.R 107, [1917] 1 W.W.R. 358, 32 D.L R. 469. 250 A .-G . for Alberta v. A.-G . for Canada (Escheats), [1928] A.C. 475, 1192813 W.W.R. 97, [192813 D.L.R. 849, af'g [1927] S.C.R . 136, [1927] 2 D.L.R. 194, which had reversed in part (1926), 22 Alta. L.R . 186, [1926] 1 W.W.R. 337, [19261 1 D.L R. 924.

19541 The Honourable Horace Harvey 1137

he thought the act valid. One of the province's main arguments in the litigation was that the distinction between real and personal property disappeared when the law of both the North-West Ter- ritories and Alberta assimilated the descent of real property to that of personal property, and the Chief Justice had said in another case that the Territories Real Property Act perhaps changed real into personal property."' In any event, in 1930 the Dominion transferred to the province all lands, mines, minerals and royalties. In other words, the right of escheat is now vested in the province and the province may do what it wishes with escheated lands. The important point from the university's standpoint is that the Ultimate Heir Act was never repealed. It still stands in the statute book and over the years has brought to the university property of substantial value."" Among the public inquiries and royal commissions on which the Chief Justice sat were an investigation of possible impropriety by members of the legislature during the railway crisis of 1910, several inquiries into municipal finances and one to determine the cause of a coal mine explosion. In 1932 he investigated for the federal government a charge that the "Gypsum Queen", a schoon- er alleged to have been sunk by a submarine in 1915, had in fact not been, and that compensation had been improperly paid. He found the charge substantiated and the captain was subsequently convicted of obtaining money from the Crown under false pre- tences253 One of the greatest public services the Chief Justice performed was as chairman of the War Mobilization Board for Alberta dur- ing the last war. This board was responsible for the call-up of draftees and the disposal of applications for deferment and exemp- tion from military service. Although he was seventy-eight when he took the post, he worked tirelessly for over four years, carrying on his judicial functions as well. Those who were associated with him on the board speak in the highest terms of his industry, attention to detail, fairness, and toleration of the views of others. 263 Re Simpson Estate (1927), 23 Alta. L.R. 374, [1927] 3 W.W.R. 534, [1927] 4 D.L.R. 817. 262 While Harvey C.J. was chairman of the board another important lawsuit, arising out of injuries to a freshman student during "initiation" proceedings, was brought against the university. The Chief Justice was named by the university as its officer for purposes of examination for dis- covery . The late A. L. Smith, K.C., of Calgary, one ofcounsel for the plain- tiff, conducted the examination. Needless to say, Harvey C.J. did not sit on the appeal that was subsequently taken. A divided court held the uni- versity responsible : Powlett v. University ofAlberta, [1934] 2 W.W.R 209 . 253 R. v. Hatfield, [1937] O.W.N. 559.

1138 THE CANADIAN BAR REVIEW [VOL . XXXII The reputation of the Alberta board for wisdom and impartiality in carrying out its onerous and often delicate task was due in large measure to the Chief Justice's influence. He received the honorary degree of Doctor of Laws from the University of Alberta in 1917 and from the University of Toronto in 1936. A posthumous acknowledgment of his public services was made five years after his death when in 1954 the Geographic Board of Alberta and the Canadian Board on Geographical Names decided to name various geographic features in Alberta after some of the province's pioneers and builders. Among those honoured was Chief Justice Harvey, the name "Harvey Lake" being given to a lake twenty-one miles north-west of the town of Jasper in Jasper National Park. The writer cannot speak from a close personal acquaintance, but over a number of years he did observe the Chief Justice on the bench. Of medium height and build, with a fresh complexion, good features and white hair, he had a distinguished, almost benign, appearance. On the bench, his questions and comments kept counsel to the point and discouraged loose and inaccurate statements . At the same time he was-though detached-polite, equable and dignified, Off the bench he spent most of his time on his judicial work. His main diversions were in growing flowers and collecting stamps. Not a gregarious person, the center of his life was his home, though he did attend many functions, and enjoyed small gatherings. At them he was gracious, congenial, and an interesting conversation- alist. An organization that did hold great interest for the Chief Jus- tice was the Canadian Bar Association. He was a member from its formation in 1914 and shortly before his death was made an honorary member. He attended the annual meetings regularly and was at the meeting, in Ottawa, as late as 1947. He also enjoyed attending the functions of the of Alberta and until shortly before his death used to come to the annual banquet of the law students at the University of Alberta. If he ever thought any of these gatherings were too boisterous, he gave no sign. As Mr. J. W. Hugill, Q.C., an old friend, says of these occasions, he re- sponded to witticisms even against himself with an "enigmatic smile". Mrs. Harvey died in May 1948 after a married life of fifty-five years. Their only child, Alan Burnside Harvey, was a Rhodes Scholar from Alberta for 1918. Proceeding to Oxford in 1920, he

1954] The Honourable Horace Harvey 1139 received the degrees of B.C.L. and M.A. and was admitted to the English bar as a member of the Middle Temple. After his return from England he practised law in Edmonton until 1937, when he moved to Toronto. Mr. A. B. Harvey, Q.C., was editor of the fifth edition of Tremeear's Criminal Code, which appeared in 1944, and for a number of years has been Editor of Reports for the Law Society of Upper Canada. After Mrs. Harvey's death the Chief Justice's health failed, though his last judgments indicate no decline in his faculties. To the end the notes in his judge's book were precise, accurate and formal, and the handwriting firm until the last few months. The last entry was made less than three months before his death, which occurred on September 9th, 1949. Regrettably his extrajudicial writihgs were not extensive. He did write one or two articles for the law journals on the early ad- ministration of justice in the North-West'254 but, like many others whose ability, knowledge and experience would enable them to make a contribution to legal literature, he could not find time for both writing and his many duties, and had to choose. The hundreds of his reported judgments remain as a record of his public service. Indeed one might say of the Honourable Horace Harvey, Chief Justice of Alberta, as Lord Wensleydale said of himself, that his biography is found in the pages of the law reports. A long story it is, a story of a worthy contribution to the establishment and de- velopment of law in Alberta, and hence to Canadian society."'

264 Harvey, The Early Administration of Justice in the North West (1934-35), 1 Alta. L. Q 1, 171 ; and Harvey, Formerly Rupert's Land, Obiter Dicta, Spring 1948 issue, p. 37, and Fall 1948 issue, p. 37. 266 During the preparation of this article the writer asked various ques- tions of the Honourable Mr. Justice Frank Ford of Edmonton, who re- cently retired from the Appellate Division after a long career as a leader of the Alberta bar, a member of the Trial Division for ten years and of the Appellate Division for eighteen. The writer is grateful to Mr. Justice Ford for the valuable information he furnished . S. W. Field, Q.C., of Edmonton was exceedingly helpful in supplying the writer with much in- formation about the Chief Justice and his career and in answering in- numerable questions. Others who kindly gave information in reply to specific questions were Lt. Col. F. C. Jamieson, Q.C., S. H. McCuaig, Q.C., and Thomas Powell, a retired court reporter, all of Edmonton . J. W. Hugill, Q.C., now of Victoria, B.C., graciously made available his knowledge of the Chief Justice's career, habits and qualities. The Hon. Lucien Maynard, Q.C., Attorney-General of Alberta, kindly gave the writer access to Chief Justice Harvey's judge's book. During the academic session of 1950-1951 the third-year students in the Faculty of Law at the University of Alberta gathered together and summarized the Chief Jus- tice's reported judgments . Alan B. Harvey, Q.C., was good enough to read an earlier draft of the article. Sole responsibility of course rémains the writer's .