The SupremeCourt of Canada History of the Institution JAMES G. SNELL and FREDERICK VAUGHAN The Osgoode Society 0 The Osgoode Society 1985 Printed in Canada ISBN 0-8020-34179 (cloth) Canadian Cataloguing in Publication Data Snell, James G. The Supreme Court of Canada lncludes bibliographical references and index. ISBN 0-802@34179 (bound). - ISBN 08020-3418-7 (pbk.) 1. Canada. Supreme Court - History. I. Vaughan, Frederick. 11. Osgoode Society. 111. Title. ~~8244.5661985 347.71'035 C85-398533-1 Picture credits: all pictures are from the Supreme Court photographic collection except the following: Duff - private collection of David R. Williams, Q.c.;Rand - Public Archives of Canada PA@~I; Laskin - Gilbert Studios, Toronto; Dickson - Michael Bedford, Ottawa. This book has been published with the help of a grant from the Social Science Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. THE SUPREME COURT OF CANADA History of the Institution Unknown and uncelebrated by the public, overshadowed and frequently overruled by the Privy Council, the Supreme Court of Canada before 1949 occupied a rather humble place in Canadian jurisprudence as an intermediate court of appeal. Today its name more accurately reflects its function: it is the court of ultimate appeal and the arbiter of Canada's constitutionalquestions. Appointment to its bench is the highest achieve- ment to which a member of the legal profession can aspire. This history traces the development of the Supreme Court of Canada from its establishment in the earliest days following Confederation, through itsattainment of independence from the Judicial Committeeof the Privy Council in 1949, to the adoption of the Constitution Act, 1982. The authors describe the politics of the judicial appointments and document the internal struggles and tensions between the justices. Central to the story is the attitude of successive federal governments to the need for a strong and intellectually vibrant court. Not all prime ministers and ministers of justice took an interest in the Court, and some of their appointments were of less than outstandingquality. Only in recent times have appointments been of consistently high calibre. Until 1982 the Supreme Court of Canada played a minor role in the history of the Canadian political structure. The Charter of Rights and Freedoms has thrust new responsibilities on the Court, and as those responsibilities are increasingly exercised in the years ahead the Court will become a major participant in our national life. This book explores the foundations on which that participation will be built. JAMES C. SNELL is a professor in the Department of History at the University of Guelph. FREDERICK VAUGHAN is a professor in the Department of Political Studies at the University of Guelph. Interior of the present Supreme Court building For Tricia and Karen Snell and Geoffrey and Kevin Vaughan Contents FOREWORD iX PREFACE Xi I The Founding of the Court 1867-1879 3 2 Early Problems 1879-1892 28 3 The Sbong Court 189z-190~ 52 4 The Court in Decline 1902-1918 82 5 An Instrument of Politics 1918-1933 115 6 Toward Centre Stage 1933-1949 145 7 Supreme at Last 1949 171 8 A Decade of Adjustment 1950-1962 196 9 Changing Expectations 1963-1974 214 10 A New Beginning 1975-1982 233 EPILOGUE 255 APPENDIX 259 NOTES 263 INDEX 313 Illustrations Interior of the present Supreme Court building ii Interior of the old Supreme Court building xvi Between pages 170 mid 171 The Supreme Court of Canada building The old Supreme Court building Sir William Buell Richards Sir William Henry Strong Henri Elzear Taschereau Pierre Bade Mignault Sir Lyman Poore Duff Ivan Cleveland Rand Bora Laskin Brian Dickson Foreword THE OSGOODE SOCIETY The purpose of The Osgoode Society is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, former attorney-general of Ontario, and officials of The Law Society of Upper Canada. Its efforts to stimulate legal history in Canada include the sponsorship of a fellowship and an annual lectureship, research support progams, and work in the field of oral history. The Society publishes (at the rate of about one a year) volumes of interest to the Society's members that contribute to legal-historical scholarship in Canada, including studies of the courts, the judiciary, and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of great trials, and work in the social and economic history of the law. Current directors of The Osgoode Society are Brian Bucknall, Archie G. Campbell, Martin Friedland, Jane Banfield Haynes, John D. Honsberger, Kenneth Jarvis, Laura Legge, Allen M. Linden, James Lisson, R. Roy McMurhy, Brendan OBrien, and Peter Oliver. The annual report and information about membership may be obtained by writing The Osgoode Society, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, Canada, M~H2~6. Members receive the annual volumes published by the Society. Canadians know little about the history and kaditions of their highest court. In providing the first comprehensive history of the Supreme Court , x Foreword of Canada, James Snell and Frederick Vaughan make a significant contribution to Canadian history. Their study deals with such central concerns as the Court’s relationships with government and politicians, the perception of the Court on the part of the bar and the public, and the Court‘s internal administration and personnel. Leading cases are dis- cussed in their historical context to illustrate the main tendencies in the Court’s jurisprudential evolution. Throughout, the authors emphasize the relationships between the Court and the larger society. Often the story they tell is a startling one, especially with respect to the all but crippling problems the Court faced during the first half-century of its life. This is not an account of steady or automatic progress but rather of gradual growth in stature in the face of many obstacles. In this history, Professors Snell and Vaughan demon- strate that the life of institutions, like that of individuals, is complex and uncertain. With the Charter of Rights and Freedoms in place as part of the constitution, the Supreme Court now plays a vastly expanded role in Canada’s system of government. This book adds greatly to our under- standing of our judicial heritage and governmental traditions. Brendan OBrien President Peter N. Oliver Editor-in-Chief PUBLICATIONS OF THE OSGOODE SOCIETY 1981 David H. Flaherty, ed. Essays in theHistoryofCanodian Law,volume I 1982 Marian MacRae and Anthony Adamson Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784-1914 1983 David H. Flaherty, ed. Essays in the History of Canadian Law, volume 11 1984 Patrick Brode Sir Iohn Bmerley Robinson: Bone and Sinew of the Compact 1984 David Williams Duff: A Life in fhe Law 1985 James G. SneU and Frederick Vaughan The Supreme Court of Canada: History of the Institution Preface Given the relatively lengthy life of the Supreme Court of Canada and given the emphasis of Canadian historians on political history and consti- tutional development, it is surprising that no basic history of the Court has been written. This volume is an attempt to fill that gap. Rather than examine in depth one theme or one specific problem, we have tried to write a chronological history of the institution. This has been accomplished by examining the personnel of the Supreme Court, its position in the Canadian polity, its relationship with its political masters, the intellectual environment and representative aspects of the jurisprudene of the Court, and the way in which the institution has been perceived by the public and the legal profession. In short, this is a history of an institution. Some basic themes emerge throughout the study. A judicial conserva- tism has long dominated the Supreme Court ofCanada. Judicial conserva- tism is defined here as ‘a tendency literally to conserve or maintain existing law by shictly, even mechanistically, applying established rules and precedents. The conservative judge is unwilling to modify rules and thus little interested in policy arguments about the effect of his decision or the social function of a rule.’ Justices of the Supreme Court of Canada actively and knowingly adopted shict conshuction because they believed ‘in the principle that changing the law is the province of the legislature, not the judge,‘a sentiment in keeping with Canadian judicial and political culture.‘ xii Preface There has traditionally been a lack of consistent government support for the Court. Initially, Canadian political leaders intended the Supreme Court of Canada to occupy a significant position within the national political structure, providing a unified system of law and jurisprudence that would help to unite a country of disparate regions and needs. But very quickly and for a variety of reasons, government support in meeting those institutional goals weakened. Over the succeeding decades govem- ment interest in the Court was sporadic and often half-hearted. At the sametime, however, thegovernmentwasmorethan happytomakeuseof the Supreme Court and its members. The Court and the justices, together or individually, have fulfilled functions that ranged well beyond their normal judicial duties. In general, the Supreme Court of Canada has not been highly regarded ~ for the quality of its judicial work; this book confirms the accuracy of that assessment. But it is only fair to point out that such a court can only be as good as the environment in which it exists. A strong and effectivecourt, wrote A.C. Cairns, is dependent on a variety of supporters. It must be part of a larger system which includes first class law schools, quality legal journals, and an able and sensitive legal fraternity - both teaching and practising.