Canada’s Supreme Court at Work

The Personnel, Problems and Peculiarities of the Country’s Highest Tribunal

W. A CRAICK March 1 1914

Canada’s Supreme Court at Work

The Personnel, Problems and Peculiarities of the Country’s Highest Tribunal

W. A CRAICK March 1 1914

Canada’s Supreme Court at Work

The Personnel, Problems and Peculiarities of the Country’s Highest Tribunal


WHEN litigation upward through the courts has failed to convince the losing side that they have “had enough,” when a hum life depends on the disposition of an application for new trial, when legislators fall out over points of privilege and jurisdiction; there are six me on whose shoulders the responsibilities of a decision rest.

The Supreme Court of Canada is to all intents and purposes the court of final appeal; for it is only in rare instances and when large sums or vital principles are at stake that the disposition of Canadian affairs is carried to the Privy Council. The powers of the Supreme Court judges are wide. They decide the fate of men and millions, sifting justice from the mass of evidence that the lower courts send up to them.

In the public mind, these six judges loom up great, majestic and rather mysterious and awe-inspiring. Their de-

liberations are not often made public; by their decisions are they known. The average man is not even cognizant of where the court sits but probably imagines a lofty room, rather dimly lighted with the judges bewigged and begowned, considering with awesome deliberation and portentous frown the weighty matters before them—the Thibet of legal-

dom into which the layman can never penetrate.

A glimpse at our highest tribunal, its personnel, problems and peculiarities, will therefore be of greatest interest.

On visiting the home of the Supreme Court for the first time, one feels surprise at the unexpected humbleness of the present “precincts of puisne.”

Some day the Government of Canada may do something towards housing the Supreme Court of the Dominion in quarters a little more in keeping with the dignity and importance of that august tribunal. At present one must seek the hall in which Canada’s highest court of justice transacts its affairs, in a comparatively small and entirely plain and unpretentious building, near the western entrance to the Parliament grounds, a place resembling to a certain extent the lodge at the gate of some great man’s estate. Tradition has it that the structure, albeit solidly built of stone

was nothing more nor less than a shelter, storehouse and workroom for the artisans employed in the construction of the Parliament Buildings, and that it was deemed a sufficiently convenient place to accommodate a court that might or might not survive its infancy. Be

this as it may, there is a somewhat glaring inconsistency between the importance of the court and the poverty of the building which contains it.

On the ground floor of the Supreme Court building is located the library in which is to be found an excellent collection of law reports, statutes and text books covering the English, French, Canadian and American jurisprudence. The library is under the supervision of the Registrar of the Supreme Court, Mr. E. R. Cameron. Mr. Cameron is the second occupant of the position, lie having succeeded th late Robert Cassells, K.C., of the well-known legal family of that name, several years ago.

A Court of Crimson

In the upper storey of the building, there are located the judges’ chambers

and the court room. The latter wears a semi-ecclesiastical appearance. With rounded ceiling of varnished wood and walls covered to a good height with red burlap, the color design of the apartment is overwhelmingly crimson. There is a thick red carpet on the floor and on the pew-like benches for the accommodation of visitors, the cushions

are likewise red. At the end opposite the main entrance there rises the platform on which the six judicial desks are placed in a row, each the exact counterpart in every detail of its neighbors. Red curtains hang at either side of the platform, and to cap the climax, on days when judgments are delivered, the six members of the Court appear in brilliant scarlet robes bordered with ermine.

The last act in the drama of Canadian law is played with a setting in sharp contrast to the usually sombre background of the court.

On an ordinary day, the judges file in soon after eleven o’clock dressed in their black robes. The scene becomes in a moment theatrical, instead of ecclesiastical. The six look like the players in some old drama, so curious is their appearance. The robe consists apparently of a long gown, with sleeves edged with ermine, and a cape also edged with ermine. On most of the occupants of the bench the effect is fairly good. On two or three it suggests an uncomfortable degree of warmth.

Visitors are few and far between and the plush-upholstered pews rarely contain more than two or three curious onlookers, a remarkable contrast to the Supreme Court at Washington, where there is always a crowd of spectators. Within a brass railing sit the King’s counsel robed in plain black silk gowns. Midway between them and the judges, on an eminence but slightly lower than the judicial platform, sits the Registrar of the Court, and at the ends of tables to right and left, there are stationed the reporters. This company with one or two attendants patiently awaits the opening of the Court.

At length the great men appear from the right. Sir Charles Fitzpatrick, chatting with Sir Louis Davies, leads the little procession. They are followed by the alert and boyish figure of Judge Duff and the stout and dignified form of Judge Brodeur, who take their places to Sir Louis’s right. Then comes Judge Idington, likewise stout and heavily bearded, with Mr. Justice Anglin bringing up in the rear, the pair occupying the desks to the left of the Chief Justice.

The arrangement is not a haphazard one. There is a significance in the position assigned to each occupant of the bench. The right-hand desk of the centre pair belongs of right to the Chief Justice. The left-hand desk is the position occupied by the senior puisne judge. On the left of the Chief Justice sits the second puisne judge in order of service, and on the right of the first puisne judge comes the third appointee. The fourth judge sits at the extreme right of the bench and the fifth judge, being the youngest in point of service, on the extreme left. When a vacancy occurs the judges move up one place, except that in the case of the Chief Justice, the choice of an occupant of the position does not necessarily fall on the senior puisne judge. The present chief, Sir Charles Fitzpatrick, stepped direct into office from outside the Court.

There is no formality in connection with the opening of Canada’s Supreme Court. As the judges file in, the members of the bar and the handful of spectators rise, but seat themselves as soon


With the growth of Canada and the increasing importance of, the Western Provinces, there has been some agitation for a more equitable distribution of Supreme Court seats among the provinces. This may lead in time to an enlargement of the Court so that each province may be represented. As now constituted the Maritime Provinces have one member, Sir Louis Davies; Quebec has two, Sir Charles Fitzpatrick and Judge Brodeur; Ontario two, Judges Idington and Anglin; and the West one, Mr. Justice Duff.

as the dignitaries have disposed themselves in their spacious chairs. The Chief Justice then proceeds to read in a scarcely audible and very rapid voice

a list of judgments, and having done so the first case on the calendar for the day is called and the counsel for the appellants gets to work. As a rule the proceedings are deadly dull. It is a court of appeal and there is no cross-examination of witnesses or addressing of juries to provide any excitement. There is nothing spectacular about the final stage of Canadian jurisdiction.

Briefs containing the pleadings delivered, the evidence presented and the judgments rendered in the courts below, together with the arguments on both sides are printed for the use of the judges of the Supreme Court. These are known as the “case in appeal” and “factums of the appellant and respondent.” With this material before them there is no necessity for going into more elaborate detail. The arguments are confined to three hours. Two counsel only can address the Court and one in reply.

The Personalities of the Judges

To a spectator the personalities of the six men who form the Court would probably have more interest than the arguments in a large majority of the cases that are tried before them. The Chief Justice is the most outstanding figure on the bench, grave, dignified and decorous. On his right Sir Louis Davies presents a kindly and gentle face to the Court, his white hair and grey beard, giving an appearance of wisdom tried by long experience. Next him sits Judge Duff ruddy and boyish, a distinct contrast to his older confrere; he is full of energy, constantly bobbing about in his chair, hitching up his robe and following each ease with an alert mind.

The only French-Canadian member of the Court, Mr. Justice Brodeur, sits somewhat stolidly on Judge Duff’s right, a foil to the vivacity of the latter. He is large and stout, with keen eyes and heavy bristling moustache, and he rarely moves except to lean forward when asking counsel some question.

Judge Idington, on the Chief Justce’s left hand, is also a stout man, with glasses and a heavy beard covering most of his face. He is given to occasional jokes and bears the reputation of being the wit of the Court.

His neighbor, Judge Anglin, is the best-looking of the six judges, invariably neat in his dress, with carefully-trimmed hair and moustache. His expression is serious and he has the appearance of one who can see a good way through most cases.

Three of the six judges attained their present rank through the political arena and three were promoted from Provincial courts. The Chief Justice, who is a native of Quebec and a graduate of Laval University, practised law in his native city for many years. He entered the provincial legislature in 1890 where he sat until 1896. He then joined the Laurier Government as solicitor-general, becoming Minister of Justice in 1902. On the death of the late Chief Justice Taschereau in 1906, he was selected to take his place.

Sir Louis Davies and the Hon. L. P. Brodeur are also graduates of the late

Liberal cabinet. Sir Louis, who is now sixty-nine years of age, was born in Prince Edward Island. He received his legal training in England, becoming a barrister of the Inner Temple, London, in 1866. Returning to his native province he practised his profession in Charlottetown, where he presently entered the legislature, becoming premier at the age of thirty. He was first elected to the House of Commons in 1882, and when the Liberal Government went in in 1896, he was chosen by Sir Wilfrid Laurier to be Minister of Marine and Fisheries. He was elevated to the Supreme Court bench in 1901, and is the senior judge of the six members of the Court.

Mr. Justice Brodeur, the baby judge, who was appointed shortly before the dissolution of the late government, also of Marme and Fisheries. His career has also been a mixture of law and politics. Educated at St. Hyacinthe College and Laval University, he was called to the bar in 1884. He practised in Montreal, came to the Court from the Department where he was counsel at various times in several notable .cases. Entering Parliament in 1891, he was chosen deputyspeaker on the accession of the Liberals and was made speaker shortly afterwards. In 1904 he was sworn in as Minister of Inland Revenue, being transferred to the Department of Marine two years later.

Judge Idington, the first of the three non-political judges, comes of Scottish parentage, though bom in Ontario. He is a graduate of the University of Toronto and Osgoode Hall. As a lawyer he practised in Stratford, where he acted as Crown Attorney for the County of Perth for many years. He became a judge of the High Court of Justice of Ontario in 1904, and the following year was transformed to his present position at Ottawa.

Judge Duff, who represents the Western Provinces in the Court, is also an Ontario man, the son of a Congregational minister. He was born forty-nine years ago in Meaford. Soon after his graduation from the University of Toronto and Osgoode Hall, he went to British Columbia, where he commenced practice in Victoria. Here he rose to considerable prominence as a member of the bar, being engaged as counsel in a number of important cases. In 1904 he was appointed a puisne judge of the Supreme Court of British Columbia, and two years later was called to Ottawa to his present seat on the Supreme Court bench.

The sixth member of the Court, Mr. Justice Anglin, is the eldest son of the late Hon. T. W. Anglin, former speaker of the House of Commons, and a brother of Margaret Anglin, the talented Canadian actress. He is a graduate of Ottawa University and Osgoode Hall. He practised for several years in Toronto, becoming Surrogate Clerk in 1896. He was elevated to the bench in 1904 as a judge of the High Court of Justice of Ontario, and five years ago was transferred to the Supreme Court.

When the Supreme Court was first

established by Act of Parliament in 1875, one of the contentions of those who opposed its creation was that it would have little or nothing to do. A member speaking on the Supreme Court Bill ex-


The impression has gone abroad that almost any case may be appealed from the Supreme Court to the Privy Council. That this is not so, is evident from the fact that out of 265 cases, in which it was sought to obtain leave to appeal since the Supreme Court was established, leave was refused in 124 eases. Of the 143 cases in which leave to appeal was granted, the decision of the Supreme Court was affirmed in 56, and reversed or modified in 54, while 31 cases were not presented.

pressed the opinion that the work of the Court would be very light, and that he could not imagine a more dismal spectacle than that afforded by six melan-

choly men, living in Ottawa, and endeavoring to catch an appeal case, which but for the court, would have gone to England. He was convinced that the judges would become rusty and relapse perhaps into a state of barbarism.

Without at present going into the much debated question of the jurisdiction of the Supreme Court, to what extent has the prophecy of this pessimistic parliamentarian been realized? Those who are familiar with the routine of the Court and the volume of work it accomplishes, know very well that the judges who compose it have no time to grow melancholy. There are three terms during the year. The first begins on the first Tuesday in February, the second on the first Tuesday in May, and the third on the second Tuesday in October. In each instance the Court sits until all the cases on the calendar for that term are disposed of,—work that often extends over two months.

The morning session of the Court lasts from eleven until one and the afternoon session from two until four, but this does not mean that the judges have nothing to do for the rest of the day. So much has the work of the Court been increasing of recent years that the hearing of the cases represents only a small part of the time that must be bestowed on them. Frequently both before and after the Court sits, the judges meet to discuss cases and on Saturday afternoons there is always a formal discussion in the conference room. In cases where a decision can be arrived at with comparative ease, the tenor of the judgment is decided upon and an arrangement is made whereby one judge writes the views of the others. In other more involved cases and where opinions differ, longer time is needed for consideration.

As on the average three-quarters of the appeals heard by the Supreme Court are dismissed, there are always a certain number of cases that can be summarily disposed of. Judgment in such cases is usually handed down on the Monday following the hearing. As for the other eases, the judges work on them, as opportunity offers, between the sittings of the Court. They are men who undoubtedly spare no effort to arrive at exhaustive decisions and all six are conscientious and painstaking investigators. It is well known by those in touch with the judges of the Supreme Court that they work exceedingly hard and carry their labors over into the evening. Judge Idington for example works every night until twelve and one o’clock, while the Court is in session.

No Congestion in the Court

One notable result has been achieved by the diligence of the justices and that Í3 that there is no congestion in Canada’s Supreme Court as there is in the United States Supreme Court. All the cases set for a given term are disposed of before the next term opens and there are no judgments in arrears. Whether this happy condition can be maintained much longer without enlarging the Court, is doubtful Figures presented elsewhere


At the recent fall term, seventy-seven cases were heard, which is a record for the Court. With population increasing as it has done of recent years, the amount of litigation has also grown, a circumstance that is reflected in the number of cases from the Western Provinces. Manitoba sent two cases in 1880, two in 1890, one in 1900, and eleven in 1 913. British Columbia had but one in 1885, nine in 1900 and thirty-four in 1913. There were last year four from Saskatchewan and thirteen from Alberta, as compared with but two from each province in 1907. It can hardly be said that there has been a uniform increase in the number of appeals h eard by the Supreme Court from year to year. The total fluctuates a good deal. Thus in 1885 the Court dealt with 101 appeals, a number which was only less by two than the number dealt with in 19 11. On the whole, however, there has been a decided growth and the record of 176 for 1913 is far in excess of any other year.

Since its establishment in 1875, the Court has received 3,418 appeals, in 3,019 of which it has given decisions. The balance are cases which have not been prosecuted or are still pending. Of those in which decisions have been rendered, 1608 were affirmed, 904 were reversed, 26 were modified, and 384 were quashed, settled or disposed of on pre liminary motions. This means that in 55 per cent, of the cases dealt with by the Supreme Court, the ju dgment of the Court below was upheld, and in 30 per cent, it was reversed.

show how rapidly the work of the Court has increased in recent years.

Oddities and Curiosities of the Court

There are a few peculiarities about the Supreme Court that arouse one’s curiosity. It is enacted by the statute creating the Court that at least two of the six judges must be from the Province of Quebec. This was intended as a safeguard to Quebec litigants on account of the fact that the civil law in Lower Canada is based on the French code and not on English common law. It was felt that there should always be in the personnel of the Court at least two judges grounded in the Quebec law. At present the Chief Justice and Mr. Justice Brodeur fill these requirements.

Another interesting feature of the Court may be illustrated by a reference to a specific happening. On a recent occasion, when a certain Quebec case was to be heard, the Chief Justice left the bench. As five judges form a quorum there was nothing remarkable in this, except that it is usual for both Quebec judges to hear the cases from that province. The explanation for the withdrawal of Sir Charles was on account of his relationship to one of the lawyers fengaged in the action. The connection was actually quite a distant one, but under Quebec laws of procedure it would have prevented the judge from sitting and, without any obligation being imposed at Ottawa, the Chief Justice recognized the situation and declined to hear the case.

In certain actions which come up for hearing, some one of the six judges may happen to be directly or indirectly interested. They are always careful to avoid the slightest suspicion of being influenced by personal considerations and invariably decline to sit in such cases. The question of relationship is but one phase of this wider problem, which extends into the realm of business and finance.

Yet another legal requirement of the six judges has to do with their place of residence. They are required to live either in Ottawa or within five miles of its border. This condition is imposed in

order that they may be close to the Court and in a position to give undivided attention to its work.

When the establishment of a Supreme Court was first mooted by Sir John A. Macdonald in 1869, the bill which he introduced into Parliament in order to create the Court, did not get past its second reading. The principal opposition to the measure was on the ground that provincial rights would be trenched upon, were a federal court permitted to have jurisdiction over the acts of the legislatures. Again in 1870 Sir John tried to pass a second bill through the House, but with like results. It remained for Attorney-General Fournier in 1875 to have the measure carried, though the bill did not become law without considerable opposition.

The Supreme Court was established in 1876 with the_ Hon. Sir William B. Richards as Chief Justice, and Sir William J. Ritchie, Sir Samuel Henry Strong, the Hon. Telesphore Fournier, the Hon. Thomas Taschereau and the Hon. William Alexander Henry as puisne judges. It was not permitted to exist for long without having to face severe attacks. Its creation had not and could not do away with appeals to the Privy Council and, when the Court

reversed certain decisions of provincial courts, its opponents demanded its abolition. In the light of certain agitations of the present day to discontinue the right of appeal to the Privy Council and make the Supreme Court the court of last resort, the movement which came to a head in 1879 is not without its significance.

Wanted to Abolish the Court In that year Mr. Keeler, M.P. moved

to abolish the Court. There was obviously a strong feeling of hostility to it throughout the country and several orators waxed warm in their denunciation of its actions. Fortunately the Court found a powerful and persuasive supporter in the person of the late Edward Blake, whose speech on this occasion was undoubtedly the cause of the Keeler motion receiving the six months’ hoist. Since then the Supreme Court has gone on its way uninterruptedly, gaining from year to year in strength and usefulness. The incontrovertible reason for its existence is the necessity for the proper co-ordination of the decisions of the highest provincial courts and a uniform system of jurisprudence throughout the Dominion.

Much might be written concerning the jurisdiction of the Supreme Court, involving the layman in a maze of legal terms that would be most confusing. Speaking generally and subject to a few exceptions, judgments susceptible of appeal to the Court must be either final judgments, judgments of the Court of last resort in a province or judgments in cases originating in a superior court of a province. An appeal is also allowed from the decision of the trial judge in Dominion election petitions, while another and a most important function of the Court is to act as a special adviser to the cabinet of the day on questions relating to the legality of certain acts or proposed acts or proceedings of Parliament.

Privy Council vs. Supreme Court It is enacted in the Supreme Court Act that “The judgment of the Supreme

(Continued on page 137.)

(Continued from page 16.)

Court shall in all cases be final and conclusive—saving any rights which Her Majesty may be graciously pleased to exercise by virtue of her Royal prerogative.” This introduces the much-discussed question of appeals to the Privy Council. As a matter of fact there is absolutely nothing to prevent a litigant from presenting a petition at the foot of the throne, as it is called, praying for special leave to appeal from a judgment of the Supreme Court. At the same time His Majesty in Council, acting on the advice of the Judicial Committee of the Privy Council, is not inclined to admit appeals from Canada’s highest court, save in very special cases.

Generally speaking leave to appeal is only granted in eases involving matters of great public interest or in those in which some important question of law is at stake or valuable property is concerned. Even then it is not the practice to give leave to appeal except a very strong case can be shown. Where there have been three decisions in the Canadian courts, the final one being that of the Supreme Court, their lordships have stated more than once in refusing leave that they do so because the Supreme Court is entitled to every confidence on the part of the Canadian people.

A good illustration of the attitude taken by the lords of the Privy Council is to be found in the recent hearing of the petition of the Canadian Pacific Railway Company for special leave to appeal igainst the decision of the Supreme Oourt, which reversed the unanimous judgment of the Court of Appeals for Ontario in the case of Stone vs. C.P.R.

Co. The board was averse to granting leave to appeal because it was the case of a workman to whom the amount in question was of vital consequence. At the same time they recognized that a legal question of importance, was involved and they agreed to give leave to appeal on condition, first that the verdict and judgment should stand for the whole sum, minus, $10, leaving that small amount to fight about, and secondly, that the railway company should pay the costs of both sides in any event. This eminently fair attitude was appreciated by the appellants, who agreed to abide by the conditions.

The idea that the Privy Council is purely an English institution is erroneous. It is an imperial body and, when appeals are carried to it, no offense is done against the canon which the selfgoverning dominions desire to set up, viz., that their court of final resort should not be outside themselves. The Chief Justice of Canada and the Chief Justices of the highest courts of South Africa, Australia and New Zealand are all members of the Privy Council and frequently sit in London and hear cases, not only from their own countries but from other parts of the Empire. The hope has already been expressed in high quarters that the work of the judicial committee of the Privy Council might be considerably developed. By forming it into divisions which could sit from time to time in different parts of the Empire, its functions would be greatly enlarged and its usefulness as an instrument for solving the Imperial problem widely extended.

Meanwhile the position of the Supreme Court of Canada as the highest court in the Dominion would not be injured by any such change in the organization of the Privy Council. It would still remain as it is to-day an effective instrument in correlating the administration of the Provincial and Dominion laws in the provinces and only such cases as were of constitutional or very exceptional importance would be carried from it to the Privy Council.

The relationship could not be more tersely expressed than it was by the Lord Chancellor in delivering judgment on a recent occasion, “The business of the Supreme Court of Canada” he said, “is to do what is laid down as its duty by the Dominion Parliament and the duty of the Judicial Committee, although not bound by any Canadian statute, is to give to it as a Court of Review such assistance as is within its power.”

Art of Holding’Friends

JOUBERT, the great maker of exquisite epigrams, wrote many on friendship. As he was a man of many friends, and never lost one, his wise sayings may be taken as the flowers of his experience. One of the best of them is: “When my friend is blind in one eye, I look at him in profile.” If we keep this suggestion in mind, perhaps we shall make and keep friends as Joubert did.