Articles / Legal History / 2010 - 2011
Legal History
Dennis Baker's New Book: Can the Supreme Court
be a Threat to Democracy?
(April 2010)
Judges act. That’s why they call it the rule of law. Complaints about “judicial activism” often look like an attempt to cast a cloak of principle over sour grapes. Those who complain of judges being out of control often seem mostly to be wishing that they would have decided things differently.
Dennis Baker does fear courts are getting out of control. But he’s not interested in comparing courts whose judgments he dislikes to those of which he approves. Courts have become too assertive, he suggests. But his solution is to encourage a more active response from legislatures and executives.
In a cogent new book, Not Quite Supreme, Baker does not seek to bully or cajole courts out of their activism. He would let judges judge; he just wants to see some pushback from other constitutional actors.
Baker, a poli-sci prof and political philosopher, is a balance-of-power theorist. The Canadian constitution and political tradition, he argues, is based on a separation of powers that is not total, but remains real. Courts, legislatures, and governments all have their spheres, overlapping but still distinguishable. Each should prevent the other from seizing unchecked power. It follows, Baker argues, that this balance depends on no element acquiring a “trumping” power, one that enables it to take over the functions of the others.
Lately, he suggests, courts have begun to invade the spheres of the other branches of the state. Worse, he suggests, many scholars of constitutional law accept and celebrate the courts’ invasion of the legislative and executive roles. Baker suggests these “judicial supremacists” do want the courts to wield a trumping power to which he believes no agency should be entitled.
Baker does not propose that governments or legislatures should simply ignore the rulings of courts. But he notes that traditionally the role of courts has been to rule on “cases and controversies” – specific cases on particular circumstances brought by unique litigants. Courts have neither the capacity of legislatures to frame general laws not the institutional competence to administer their application.
Greatly to oversimplify Baker’s argument, he suggests there is a place for legislatures to assert their authority over general law and governments to assert their administrative responsibility – particularly in the face of single court judgments that may well prove to be outliers. He suggests there should legitimately be ways for legislatures to defend their lawmaking powers and for governments to defend their spending and administrative powers against the decrees of courts -- particularly against lower court rulings and split decisions that might well be reversed elsewhere.
Baker acknowledges that an ongoing series of judicial decisions, case after case after case, must eventually shape what governments and legislatures can do. But he thinks most “dialogue theorists” are too deferential to courts when they argue that political actors have no legitimate riposte to courts other than the notwithstanding clause. Baker proposes “the minority retort” and “the textual retort” as plausible strategies by which legislatures and governments can engage in a creative and appropriate struggle with courts.
Baker also considers one possible reason why so many constitutional theorists support “judicial supremacy.” Baker acknowledges that, as the Supreme Court once said, today in Canada “except in certain rare cases, the executive frequently and de facto controls the legislature.” (Baker, p. 64) Baker suggests “the orthodoxy” supports judicial power as the only possible counterweight to executive dominance in the era of trained-seal backbenchers. He implies, however, that if the legislature is failing in its role, the solution should be sought in the legislature, not in transferring legislative and executive powers to courts with neither the skills nor the right to exercise them.
Dennis Baker’s Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation was published this year by McGill-Queen’s University Press.
Christopher Moore’s newest book is The British Columbia Court of Appeal: The First Hundred Years, published by UBC Press and the Osgoode Society.
©Christopher Moore Editorial Ltd 2010
Robert Black 1922 - 2010, Founded Two National Law Firms
(September 2010)
Nowadays, big national firms dominate the legal landscape. It’s easy to forget how new they are. It was barely twenty years ago, in 1989, that the Supreme Court of Canada struck down law society rules that prohibited most interprovincial law firms in Canada.
Among the big nationals today are Bennett Jones and McCarthy Tétrault, both well represented on the Toronto legal scene. So it is worth noting the recent passing of a lawyer who never practised in Ontario but who helped bring both those firms into being.
Thirty years ago, Robert Black was a name partner in Jones Black, a leading Calgary law firm. A key firm client was Calgary Power, and Black was both a director and general counsel to that company. But another Jones Black client was an upstart firm called Atco, and Atco launched a hostile takeover of Calgary Power.
Jones Black believed the firm could put up firewalls, recruit independent counsel, and continue to serve both sides. But Black thought the conflict could not be papered over. In 1980 he left Jones Black to form Black & Company, where he assisted Calgary Power’s successful defence against the takeover. Now called TransAlta, Calgary Power continues to thrive.
Having lost Black, Jones Black needed a new name. To escape an endlessly changing roster of senior partners’ names, it looked to the founder of the firm: R. B. Bennett, the millionaire Calgary lawyer who was prime minister of Canada 1930-35.
Bennett had been dead since 1947, but his name was perfect for a permanent law firm brand. Robert Black’s tumultuous exit became the stimulus that produced the new moniker, Bennett Jones. From about the year 2000, Bennett Jones began leveraging its leading place in oil-and-gas law to lay foundations for a national law practice.
Robert Black, meanwhile, had been in on the birth of another national law firm.
Out on his own, Black decided not to take his blue-chip roster of clients to some other Calgary firm. Law firms were too small and local for the scale of business they were doing, he concluded, and too often conflicted. He linked up his firm, Black & Company, with McCarthy & McCarthy in Toronto.
In 1980 McCarthys was seeking a way to get in on the Alberta boom. The merger with Black & Company did that and helped launch McCarthys on its path toward national expansion.
But Black’s deal with McCarthys provoked the ire of the Law Society of Alberta. It passed rules forbidding interprovincial law firms. It was Robert Black’s law suit, Black v. Law Society of Alberta, litigated up to the Supreme Court in the 1980s, that cleared the way for Canada-wide law firms. Both of Black’s firms, Bennett Jones and McCarthy Tétrault, would be beneficiaries.
Although he helped bring the big-firm model of practice to Canada, Robert Black always had a fondness for an older style of legal practice. In his personal care for his clients, he struck some as more like an old-style English solicitor than a megafirm honcho.
As early as the 1950s, working with big Wall Street law firms on financings for Calgary Power, Black professed himself “overwhelmed by these immense law firms. And I realized what a different life I was leading as a general practitioner…. They would work endless hours, would not even get home at night, and I found that very foreign to me. Because of course no one in our town would work all night.”
Robert Black, QC, both a founder of megafirm law in Canada and a veteran of times when a top corporate counsel never worked all night, died at home in Calgary in August 2010, at the age of eighty-eight.
Christopher Moore’s newest book is The British Columbia Court of Appeal: The First Hundred Years, published by UBC Press and the Osgoode Society.
©Christopher Moore Editorial Ltd 20010
Women's Courts Then and Now
(January 2011)
Canada’s most recent Women’s Court was launched in 2004.
The lawyers and law scholars who comprise the Women’s Court of Canada today regret what they consider the limitations of the Supreme Court of Canada’s judgments on equality issues and Section 15 of the Charter. So, at www.womenscourt.ca, they have begun issuing their own judgments. The Women’s Court, they declare, operates as a virtual court, rendering alternative decisions on the leading cases “as a means of articulating fresh conceptions of substantive equality.”
Theirs is not, however, the first women’s court Canada has seen. Recently I’ve been reading Amanda Glasbeek’s history Feminized Justice, a history of the women’s court that existed in Toronto from 1913 to 1934.
This was no “virtual” court. It had very real authority, and it was matched by similar women’s courts in Edmonton, Vancouver, and other major cities in North America. The courts were led by women judges, wielded significant power over many women and some men, and even had the authority to ban male spectators.
The women’s courts of the early 20th century were inspired by an explicitly feminist critique. Advocates for women’s courts deplored the male-dominated justice system in which young women who had been corrupted and debauched by men were hauled before leering male spectators, swiftly and unsympathetically tried, and sentenced on terms that sent them toward, rather than away from, ongoing criminal and immoral behavior.
Women’s court advocates wanted a court, preferably with a woman magistrate, that focused on reform and deterrence, rather than punishment and criminalization, for women corrupted by men in a men’s world. They promised it would provide “girls in trouble” with moral authority, social casework, and friendly counsel -- none of which were available from the cold legal precedents and unsympathetic male authority of the regular courts.
Glasbeek shows this was a powerful and persuasive critique. Toronto got a Women’s Court in 1913. By 1922 it was led by a woman, Margaret Norris Patterson, as were the similar courts elsewhere.
The credibility of women’s court came from its promise of social justice rather than judgment; the plan was to support and reform women and save them from male vice and iniquity. Patterson, like most women’s court judges, was proud not to be a lawyer.
Glasbeek shows, however, that the women’s court experiment did not go well.
Women’s court feminism, she shows, was explicitly maternal. The “girls” who came before the court were expected to be “innocent lambs” victimized by men. They would be saved from vice, criminalization, and oppression by deferentially accepting the motherly moral authority of the white, middle-class women whose ideology underpinned the women’s court.
The court’s press clippings tended to emphasize young girls just in from the country whom the court saved from drink, prostitution, and other evils of the big city. But Glasbeek’s copious statistics show that such cases were hardly typical.
Many of the court’s defendants, she shows, came from a permanent underclass for whom drink, petty theft, and illicit or disapproved sexuality were a way of life. Many of them came before the court time and again, unreformed and undeterred. They refused to be classed as “lambs” or “girls” or to be mothered by a court they found just as hostile and threatening as traditional male justice.
Moral authority, of course, was not the women’s court’s only power, and the judges tended to render harsh sentences on women who refused to be grateful recipients of maternal correction -- sometimes adding a year to their reformatory sentences if they seemed less than properly appreciative of the court’s efforts.
The inability to fulfill its social-reform promises undermined women’s courts’ legitimacy before an always skeptical legal establishment. Before the Second World War, the women’s court moment had passed. The Toronto one was abolished in 1934.
The new, virtual Women’s Court of Canada of the 21st century proudly and with good reason cites a long heritage of women asserting equality principles before hostile courts in issues like the Persons Case.
It makes no mention, however, of the actual Women’s Courts that existed of the early 20th century.
Amanda Glasbeek’s book suggests why. In the end, the original Women’s Court is not a persuasive precedent for a new kind of equality jurisprudence.
Christopher Moore’s newest book is The British Columbia Court of Appeal: The First Hundred Years, published by UBC Press and the Osgoode Society.
©Christopher Moore Editorial Ltd 2011
Do Haldane and Hegel rule Canadian Jurisprudence?
(February 2011)
Georg Friedrich Hegel was a difficult German philosopher who died in 1831. Richard Haldane was a difficult Scots lawyer who died in 1928. Frederick Vaughan is a Canadian political scientist who argues that much of Canadian jurisprudence is a perverse shadow of Hegelian ideas adapted into law by Haldane.
Fireworks ensue in Vaughan’s biography Viscount Haldane: ‘the Wicked Stepfather of the Canadian Constitution,’ recently published by the Osgoode Society.
Richard Haldane was not only a successful lawyer and judge and an influential British cabinet minister and administrator, but also a very serious and respected student of Hegelian philosophy. He studied in Germany, published philosophical treatises during his public career, and he adopted Hegel’s view that there are few absolutes and that values change over time.
Vaughan’s contention is that Haldane adapted Hegel’s idea to invent the principle that judges can freely reinterpret what statutes actually say. Hegel inspired Haldane, Vaughan argues, to rewrite laws to match his own intuition of what the spirit of the times might prefer.
Because Haldane sat on the Judicial Committee of the Privy Council when it was Canada’s final court of appeal, he wrote several decisions that interpreted the federal-provincial division of powers in the Canadian constitution. Vaughan argues that Haldane ignored both the constitutional text and the intent of the founders in these constitutional decisions, preferring instead to remake the constitution according to his Hegelian notions of what the times required. Somehow the times always favoured the provinces.
There are some problems here. The presumption that judges had to consider the spirit of the constitution was as firmly held by Haldane’s Privy Council predecessor Lord Watson, a fellow Scot but not a Hegelian. And the possibly Hegelian dictum that the constitution must adapt like “a living tree” came not from Haldane but from his successor Lord Sankey, who was neither Scottish nor Hegelian.
In any case, Vaughan quotes only the most extreme of Prime Minister John A. Macdonald’s centralizing comments when he seeks the founders’ intent on these matters. He calls the BNA Act “Macdonald’s constitution” and seems oblivious to the strong-provinces forces underpinning the political alliance that shaped confederation in the 1860s.
In arguing that a Canadian constitution intended to centralize power in Ottawa was deformed by British judges, Vaughan continues an English-Canadian historical/legal theory that began in the 1930s. But Vaughan does not think Hegel’s baneful influence ended in 1928, when Haldane died, or even in 1950, when the Privy Council was dethroned.
For it is not just Haldane’s judgments from the 1920s that Vaughan indicts. He believes the Charter of Rights jurisprudence of the Supreme Court of Canada in recent decades continues to be determined by an enduring Haldane-Hegel tradition in Canadian legal thought. Vaughan wraps up his biography with a full-throated denunciation of the modern Supreme Court.
In recent decades, particularly since the Charter, the court has held that constitutional interpretation must consider the meaning of laws in the light of changing conditions. Vaughan finds this to mean that Hegel’s spirit-of-the-times philosophy has returned to embolden Canadian judges once more to override the constitutional text and the founders’ intent.
But where Haldane’s original Canadian critics, notably F.R. Scott and Eugene Forsey, regretted how Haldane had hobbled progressive Canadian policies they supported, it is the progressive views of the modern court that alarm Vaughan.
Vaughan cites the court’s decision that the Charter protects the civil rights of homosexuals. Vaughan interprets this as a Hegelian repudiation of the “argument from nature as well as the biblical foundations” that justify a permanent, unchanging “prohibition against homosexuality.”
It seems a stretch to blame Haldane and Hegel for every 20th century judge who ever abandoned black-letter formalism and began rooting jurisprudence in principles about the law and the constitution. Vaughan’s opinionated biography, however, confirms that anti-court, anti-judge views are very much part of the conservative spirit of these times.
Christopher Moore’s newest book is The British Columbia Court of Appeal: The First Hundred Years, published by UBC Press and the Osgoode Society.
Federalism and the Law
(July 2011)
Say this for federalism: it’s been great for lawyers. For historians too, actually.
Recently, a lot of lawyers have kept busy arguing whether Canada should have a national securities regulator and whether the constitution allows one.
Securities is not actually mentioned in the constitution itself. Courts in Alberta and Quebec have already said the constitution forbids federal regulation of that subject. On the other side, the feds argue a national securities regulator is perfectly constitutional. The Supreme Court’s decision on the question is pending.
Trade and commerce is plainly federal, as are banking, currency, interest, bills of exchange, and promissory notes. These are all economic matters that sound rather similar to securities regulation. On the other hand, property and civil rights are plainly a provincial power. If securities trading is just an aspect of contract law, then it is probably a subject for provincial regulation.
It all comes down to how you read the clauses of the Constitution Act as drafted in the 1860s. Lawyers have been kept busy trying to persuade judges how to do that almost since the thing was drafted.
In the 1870s, when William Parsons found his insurance company had denied a claim to which he felt entitled, it looked like a routine bit of commercial litigation. Except it was an Ontario law that gave him grounds to sue, and Citizens Insurance Company was certain that insurance was a federal matter. So was the federal minister of finance.
The constitutional point was argued through all the courts, making nice work for Citizens’ law firm, the ancestor of McCarthy Tétrault -- except that in the end the courts found for Parsons and the province.
Similarly lumber barons Peter McLaren and Boyd Caldwell had a simple commercial dispute over control of log-driving streams – until Queen’s Park and Ottawa began to fight over which of them had constitutional authority to regulate commerce on rivers and streams. Much litigation flowed from that one.
And control of liquor licensing? That generated enough litigation work to keep all the lawyers well supplied.
In Canada’s early years, the provinces won most of those constitutional battles with Ottawa. Into the 1930s, when courts forbade vigorous federal efforts against the depression on the grounds that those powers were provincial, the provinces and their legal counsel had a great run.
All those decisions permanently confirmed the federal nature of Canada. Not only were the provinces declared to be sovereign in matters that were under their jurisdiction, but they also got jurisdiction over many fields that might have been federal had the court cases gone differently.
That legal trend began to reverse itself in the later twentieth century. Federal authority grew massively during and after World War II, and the Supreme Court became less sympathetic to the constitutional claims of the provinces.
Among historians, the trend seems to have been almost the reverse. There was a long tradition of historians who were appalled by the courts’ ideas about provincial sovereignty and provincial power. These historians, led by Donald Creighton but supported by political scientist Eugene Forsey and legal scholar Frank Scott, believed that the architect of the Canadian confederation was John A. Macdonald, a determined and persistent centralist. How could the courts find for the provinces, they complained, when Sir John, the father of the country, was an Ottawa man to his fingertips?
Lately, even as the courts have been seemed more convinced by Ottawa’s claims, some historians have been giving new attention to the provinces. Look closely at the making of the Canadian constitution, they suggest. John A Macdonald’s vision was centralist, for sure, but his vision was blunted, hemmed in, and defeated in the constitutional negotiations. The only constitution the confederation-makers could accept was a truly federal one. John A was a centralist, sure, but he was not the sole author of the constitution.
There’s a historical suggestion that the framers concluded that anything essential to defending and preserving strong local cultures within Canada had to be local: education, charity, language, even distinct legal systems. But anything essential to building up a strong national economic unit? They tended to want to put those in federal hands. Does “securities regulation” sound more like a federal kind of thing?
Once again Supreme Court judges must decide whether a particular field is more like trade and commerce or more like property and civil rights. Of course, the decision will shape legal and financial history. But they will be taking part in a big historical debate too. It’s likely to be continued by both lawyers and historians for quite a while yet.