¹ “Within the last twenty years in particular,” wrote G. F. G. Stanley in 1956, “it has been the common sport of constitutional lawyers in Canada to criticize, cavil and poke fun at the dicta of the judges of the Privy Council and their decisions in Canadian cases. Canadian historians and political scientists have followed the legal party line with condemnations of ‘the judicial revolution’ said to have been accomplished by Lord Watson and Lord Haldane, and the alleged willful nullification of the true intentions of the Fathers of Confederation.” “Act or Pact? Another Look at Confederation,” in Cook, Ramsay, ed., Confederation (Toronto, 1967), 112.Google Scholar

² I have not confined my sources to the writings of the legally trained. Historians and political scientists are also considered. Their approach, although less influenced by technical considerations, did not differ significantly in orientation from that of the lawyers.

Canadian criticism of the Privy Council was part of the more general dissatisfaction present in many of the jurisdictions for which it was a final appeal court. See Hughes, Hector, National Sovereignty and Judicial Autonomy in the British Commonwealth of Nations (London, 1931)Google Scholar, for an analysis.

³ Russell, Peter H., The Supreme Court of Canada as a Bilingual and Bicultural Institution (Ottawa, 1969), 34–5Google Scholar, identifies the same two streams of criticism singled out in this article. André Lapointe, , “La jurisprudence constitutionnelle et le temps,” Thémis, 7 (1956), 26–7Google Scholar, adds a third main criticism, the failure to use adequate legal arguments, but this is clearly subsidiary and is not in fact discussed in his article.

⁴ Macdonald, V. C., “Judicial Interpretation of the Canadian Constitution,” University of Toronto Law Journal (hereafter UTLJ), 1 (1935–6)Google Scholar, provides a general centralist interpretation of the intentions of the Fathers and the bna Act they created, which he contrasts with the judicial interpretation of the act. See also Smith, H. A., “The Residue of Power in Canada,” Canadian Bar Review (hereafter CBR), 4 (1926), 438–9.Google Scholar

⁵ MacDonald, “Judicial Interpretation,” 267, after noting that a centralized federation was intended, observed “how closely the language of the act reproduces that intent…” O'connor, W. F. stated: “there are not any material differences between the scheme of distribution of legislative powers between Dominion and provinces as apparently intended at the time of Confederation and the like legislative powers as expressed by the text of Part VI of the British North America Act, 1867.” Report Pursuant to Resolution of the Senate to the Honourable the Speaker by the Parliamentary Counsel Relating to the Enactment of the British North America Act, 1867, any lack of consonance between its terms and judicial construction of them and cognate matters, hereafter the O'Connor Report (Ottawa, 1939), 11.Google Scholar

In his most recent publication, Donald Creighton states that the Fathers regarded federalism as a “suspect and sinister form of government… British American union, they admitted, would have to be federal in character; but at the same time it must also be the most strongly centralized union that was possible under federal forms… This basic principle guided all the planning whose end result was the British North America Act of 1867.” Canada's First Century: 1867–1967 (Toronto, 1970), 10 (see also 44–6).

The extent of Macdonald's centralist bias is evident in his prediction in a letter to M. C. Cameron, dated Dec. 19, 1864: “If the Confederation goes on you, if spared the ordinary age of man, will see both local governments and all governments absorbed in the General Power.” Cited in A. Brady, “Our Constitutional Tradition,” mimeo., paper presented to the Progressive Conservative Party Policy Conference, Niagara Falls, Autumn 1969, 16n.

For additional support for the thesis that a centralized federal system was both intended and embodied in the bna Act, see Cheffins, R. I., The Constitutional Process in Canada (Toronto, 1969), 37Google Scholar; Creighton, D. G., British North America at Confederation (Ottawa, 1939)Google Scholar; Dawson, R. M., The Government of Canada, rev. by Ward, Norman (4th ed., Toronto, 1963), chaps. 2 and 5Google Scholar; Kennedy, W. P. M., The Constitution of Canada, 1534–1937: An Introduction to Its Development, Law and Custom (2nd ed., London, 1938), chap. 19Google Scholar; Kennedy, , Some Aspects of the Theories and Workings of Constitutional Law (New York, 1932), 86–7Google Scholar; Lower, A. R. M., Colony to Nation (Toronto, 1946), 329–31Google Scholar; Mclnnis, E., Canada: A Political and Social History (rev. ed., New York, 1960), chap. 13Google Scholar; Report of the Royal Commission on Dominion-Provincial Relations, hereafter the Rowell-Sirois Report (Ottawa, 1954), I, 32–5; Scott, F. R., “The Development of Canadian Federalism,” Papers and Proceedings of the Canadian Political Science Association (hereafter PPCPSA), 3 (1931)Google Scholar; Scott, , “The Special Nature of Canadian Federalism,” Canadian Journal of Economics and Political Science (hereafter CJEPS), 13 (1947)CrossRefGoogle Scholar; Scott, , “Centralization and Decentralization in Canadian Federalism,” CBR, 29 (1951)Google Scholar; Scott, , Canada Today (London, 1938), 75–8Google Scholar; Tuck, R., “Canada and the Judicial Committee of the Privy Council,” UTLJ, 4 (1941–2), 41–3.CrossRefGoogle Scholar

⁶ “The Residue of Power in Canada,” 433. For additional assertions that the failure of the Judicial Committee to use pre-Confederation evidence was partially responsible for their misinterpretation of the bna Act, see Tuck, “Canada and the Judicial Committee,” 40–1. Macdonald, V. C., “Constitutional Interpretation and Extrinsic Evidence,” CBR, 17 (1939)Google Scholar, is a helpful discussion of the actual practice of the Privy Council.

⁷ “The Terms of the British North America Act,” in Flenley, R., ed., Essays in Canadian History (Toronto, 1939), 129.Google Scholar

⁸ Can. H. of C. Debates, April 5, 1937, pp. 2584–5.

⁹ O'Connor Report, 11–14, and Annex 1.

¹⁰ R. W. S., “Criminal Appeals,” CBR, 4 (1926), 410.Google Scholar

¹¹ Mallory, J. R., Social Credit and the Federal Power in Canada (Toronto, 1954), 29Google Scholar, notes that generally historians, political scientists, and lawyers have argued that the courts misinterpreted the bna Act. See, for example, Lower, Colony to Nation, 376–7; Creighton, D. G., Dominion of the North (Boston, 1944), 380–1Google Scholar; Cahan, C. H., Can. H. of C. Debates, April 5, 1937, p. 2575Google Scholar; Kennedy, W. P. M., “The Interpretation of the British North America Act,” Cambridge Law Journal, 8 (1943), 156–7, 160CrossRefGoogle Scholar; Macdonald, V. C., “The Constitution in a Changing World,” CBR, 26 (1948), 29–30, 41Google Scholar; MacDonald, , “The Privy Council and the Canadian Constitution,” CBR, 29 (1951), 1035Google Scholar; Smith, “The Residue of Power in Canada,” 434.

¹² Creighton, Canada's First Century, 49.

¹³ Laskin, B., “‘Peace, Order and Good Government’ Re-examined,” CBR, 25 (1947), 1054.Google Scholar

¹⁴ The vehemence which ran through many of these criticisms is evident in Laskin's assertion: “My examination of the cases dealing with the Dominion's general power does not indicate any inevitability in the making of particular decisions; if anything, it indicates conscious and deliberate choice of a policy which required, for its advancement, manipulations which can only with difficulty be represented as ordinary judicial techniques.” Ibid., 1086. Kennedy, “Interpretation of the British North America Act,” 153–6, and Tuck, “Canada and the Judicial Committee,” 56–64, describe the development of the misinterpretation of this clause. See also Creighton, Dominion of the North, 380, 466–7; Dawson, Government of Canada, 94–102; MacDonald, “The Constitution in a Changing World,” 33–4, 41; O'Connor Report, Annex 1, 52–78; Richard, E. R., “Peace, Order and Good Government,” CBR, 18 (1940)Google Scholar; Schmeiser, D. A., Civil Liberties in Canada (London, 1964) 8–9.Google Scholar

¹⁵ “Interpretation of the British North America Act,” 156 and 156, n. 42. The situation was so anomalous that Anglin c.j. asserted that he found it difficult to accede to the proposition that “it should be denied all efficacy as an independent enumerative head of Dominion legislative jurisdiction.” King v. Eastern Terminal Elevator Co., [1925] s.c.r. 434, at 441. Schipper, Lionel H., “The Influence of Duff c.j.c. on the Trade and Commerce Power,” University of Toronto Faculty of Law Review, 14 (1956)Google Scholar, discusses the influence of the provincial bias of Duff on the evolution of this clause. For critiques of Privy Council interpretation, see Claxton, B., “Social Reform and the Constitution,” CJEPS, 1 (1935), 419–22Google Scholar; Keith, A. B., “The Privy Council and the Canadian Constitution,” Journal of Comparative Legislation, 7 (1925), 67–8Google Scholar; MacDonald, “The Constitution in a Changing World,” 36–42; Macguigan, M., “The Privy Council and the Supreme Court: A Jurisprudential Analysis,” Alberta Law Review, 4 (1966), 421Google Scholar; Scott, F. R., “Constitutional Adaptations to Changing Functions of Government,” CJEPS, 11 (1945), 332–3Google Scholar; Smith, A., The Commerce Power in Canada and the United States (Toronto, 1963 )Google Scholar; Tuck, “Canada and the Judicial Committee,” 64–9.

¹⁶ Smith, “The Residue of Power in Canada,” 433; Smith, H. A., “Interpretation in English and Continental Law,” Journal of Comparative Legislation, 9 (1927), 162–3Google Scholar; Creighton, Dominion of the North, 381; Dawson, Government of Canada, 96–8; Thorson, , Can. H. of C. Debates, April 5, 1937, 2584.Google Scholar

The critics asserted that the original and intended meaning of property and civil rights was much more restrictive than it came to be under judicial fostering. See O'connor, W. F., “Property and Civil Rights in the Province,” CBR, 18 (1940).Google Scholar

¹⁷ “Social and Economic Problems in Canadian Federalism,” CBR, 12 (1934), 423.

¹⁸ Hodge v. The Queen (1883), 9 App. Cas. 117; Liquidators of the Maritime Bank of Canada v Receiver-General of New Brunswick, [1892] a.c. 437; A.G. Ont. v Mercer (1883), 8 App. Cas. 767. See Cheffins, Constitutional Process in Canada, 38–9, 107–8. Cook, Ramsay, Provincial Autonomy, Minority Rights and the Compact Theory, 1867–1921 (Ottawa, 1969), 21–2Google Scholar, discusses the successful attempt of Premier Mowat of Ontario “to make the lieutenant-governor as much the representative of the Queen in the province as the governor general was the representative of the Queen in federal affairs.” See also Stanley, G. F. G., A Short History of the Canadian Constitution (Toronto, 1969), 99–102Google Scholar, and Morrison, J. C., “Oliver Mowat and the Development of Provincial Rights in Ontario: A Study in Dominion-Provincial Relations, 1867–1896,” in Ontario Department of Public Records and Archives, Three History Theses (Toronto, 1961), chap. 2.Google Scholar

¹⁹ This is the gist of comments by Mallory, Social Credit and the Federal Power, 29; Creighton, Dominion of the North, 381; Careless, J. M. S., Canada: A Story of Challenge (Toronto, 1963), 364–5Google Scholar; MacDonald, “The Constitution in a Changing World,” 44.

²⁰ Bank of Toronto v Lambe (1887), 12 App. Cas. 575, at 579. Critics of the Privy Council for its adoption of a narrow legal approach were legion. See, for example, Creighton, Canada's First Century, 49; Lower, Colony to Nation, 334; MacDonald, “The Privy Council and the Canadian Constitution,” 1029–31; MacDonald, “Judicial Interpretation of the Canadian Constitution,” 267–70; Kennedy, “Interpretation of the British North America Act,” 151–2; Kennedy, Some Aspects of the Theories and Working of Constitutional Law, 70–2; MacDonald, “The Constitution in a Changing World,” 23; Thorson, , Can. H. of C. Debates, April 5, 1937, p. 2582Google Scholar; Scott, F. R., “Section 94 of the British North America Act,” CBR, 20 (1942), 530Google Scholar; McWhinney, E., Judicial Review (4th ed., Toronto, 1969), 16–17, 29–30Google Scholar; Tuck, “Canada and the Judicial Committee,” 36–41.

Even supporters of the Privy Council agree that this was its approach. In the midst of the furore over the New Deal decisions Ivor Jennings wrote: “It is not reasonable to expect that the members of the Judicial Committee of the Privy Council would interpret the Act in any way different from that adopted in the interpretation of other statutes. The Act is an ordinary statute, passed by Parliament at the request of certain rather troublesome and very remote colonists on the other side of the world. The judges did not think of themselves as determining the constitutional development of a great nation. Here was a statute in essence not different from many other pieces of legislation; and the judges naturally interpreted it in the usual way, by seeing what the statute said. They were concerned not with the desires of the Fathers, but with the progeny they had in fact produced.” “Constitutional Interpretation: The Experience of Canada,” Harvard Law Review, 51 (1937), 3 (see also 35).

²¹ Lord Sankey's bias was “clearly against pettifogging lawyers’ arguments that interfered with the effective control of social life and the freedom of Dominion action, and this led him to infuse a new spirit into the process of interpretation.” Jennings, “Constitutional Interpretation,” 36. He also suggested (p. 36) that had he been on the court at the time, the New Deal decisions might have been sustained. He discusses Sankey's “liberal” approach on pp. 28–30. A “liberal” interpretation “implies a certain impatience with purely formal and technical arguments” (p. 31). “Liberal” decisions most frequently favourably cited by critics of the Privy Council were Edwards v A.G. Can., [1930] a.c. 124; In re Regulation and Control of Aeronautics in Canada, [1932] a.c. 54; In re Regulation and Control of Radio Communication in Canada, [1932] a.c. 304; British Coal Corporation v The King, [1935] a.c. 500; A.G. Ont. v A.G. Can. and A.G. Que., [1947] a.c. 127.

²² “The Privy Council and the Canadian Constitution,” 1034.

²³ “The Constitution in a Changing World,” 24.

²⁴ Ibid., 41.

²⁵ “ ‘Peace, Order and Good Government’ Re-examined,” 1087.

²⁶ Brady, A. and Scott, F. R., eds., Canada after the War (Toronto, 1943), 77.Google Scholar

²⁷ Colony to Nation, 334.

²⁸ “The Constitution in a Changing World,” 45.

²⁹ “ ‘Peace, Order and Good Government’ Re-examined,” 1086–7.

³⁰ “The British North America Act: Past and Future,” CBR, 15 (1937), 399.

³¹ Some Aspects of the Theories and Workings of Constitutional Law, 92–3.

³² “Judicial Interpretation of the Canadian Constitution,” 282. See also MacDonald, “The Constitution in a Changing World,” 26, 44.

³³ Horn, Michiel S. D., “The League for Social Reconstruction: Socialism and Nationalism in Canada, 1939–1945,” unpublished phd thesis, University of Toronto, 1969, p. 158.Google Scholar

³⁴ “Development of Canadian Federalism,” 247; see also Scott, Canada Today, 32–3, 80–2.

³⁵ “ ‘Peace, Order and Good Government’ Re-examined,” 1085.

³⁶ In 1936 Vincent MacDonald wrote of the “inability of the Canadian constitution to meet the social, economic, and political needs of today and of the necessity for its revision… great problems affecting the social and economic life of the country demand legislative capacity and solution. The second great fact at the moment is that effective solution of these contemporary problems is, in part, handicapped, and, in part, rendered impossible by (a) the terms of the act of 1867, and (b) previous decisions thereon, which, together, withhold jurisdiction where it is necessary that jurisdiction should be, divide jurisdiction where unity of jurisdiction is essential, and in other cases, paralyse action because of doubt as to jurisdiction where certainty of jurisdiction is vital.” “Judicial Interpretation of the Canadian Constitution,” 282. According to A. R. M. Lower, “Objection to Privy Council appeals did not become considerable until about 1930, but it rapidly increased during the Depression when certain decisions visibly hampered the country's ability to cope with the situation.” “Theories of Canadian Federalism – Yesterday and Today,” in Lower, et al., Evolving Canadian Federalism (Durham, NC, 1958), 30.Google ScholarCorry, J. A., Law and Policy (Toronto, 1959), 26Google Scholar, notes how “the great depression of the thirties came perilously close to a breakdown in public order.” See also Beetz, Jean, “Les attitudes changeantes du Québec à l'endroit de la constitution de 1867,” in Crépeau, P.-A. and Macpherson, C. B., eds., The Future of Canadian Federalism/L'avenir du fédéralisme canadien (Toronto, 1965), 134–5.Google Scholar

³⁷ Horn, “League for Social Reconstruction,” 468.

³⁸ A.G. Can. v A.G. Ont., [1937] a.c. 326, at 350.

³⁹ “Centralization and Decentralization in Canadian Federalism,” 1113.

⁴⁰ “Interpretation of the British North America Act,” 159.

⁴¹ “The Constitution in a Changing World,” 42.

⁴² See Russell, Supreme Court, 11–17, for the controversy attending the establishment of the court and the failure to eliminate appeals at that time.

⁴³ The Kingdom of Canada (Toronto, 1908), 227; see also 22, and Ewart, , The Kingdom Papers (Ottawa, 1912)Google Scholar, I, 88. For a study of Ewart, see Douglas L. Cole, “John S. Ewart and Canadian Nationalism,” Canadian Historical Association, Historical Papers, 1969. “Canadian history as Ewart viewed it had but one chief theme – Canada's fight for freedom from imperial control” (p. 65).

Nationalist criticisms of the Privy Council waxed and waned up until the thirties. There was a brief flurry immediately prior to the First World War. See Raney, W. E., “Justice, Precedent and Ultimate Conjecture,” Canadian Law Times (hereafter CLT), 29 (1909), 459Google Scholar; Deacon, W. S., “Canadians and the Privy Council,” CLT, 31 (1911), 9Google Scholar, and “Canadians and the Privy Council,” CLT, 31 (1911), 126–7; Ewart, J. S., “The Judicial Committee,” CLT, 33 (1913), 676–7Google Scholar; also “Address by W. E. Raney,” Proceedings of the Canadian Bar Association (hereafter PCBA), 5 (1920), 221–4. McWhinney points out that the very low repute of Privy Council judges in the depression represented not only dissatisfaction with “economically conservative judicial decisions… [but]… also, in part, an outpouring of local nationalism in that the court… was an alien (in the sense of English) tribunal…” Comparative Federalism (Toronto, 1962), 21–2.

⁴⁴ “Abolition of Appeals to the Privy Council: A Symposium,” CBR, 25 (1947), 571; see also Scott, , “The Consequences of the Privy Council Decisions,” CBR, 15 (1937), 493–4.Google Scholar

⁴⁵ Hon. Garson, Stuart S. (minister of justice), Can. H. of C. Debates, Sept. 20, 1949, pp. 69, 74–5.Google Scholar

⁴⁶ Brunet, Michel, “Canadians and Canadiens,” in Cook, R., ed., French-Canadian Nationalism: An Anthology (Toronto, 1969), 289Google Scholar, discusses the war and postwar nationalist drive to centralism, of which the abolition of appeals was a part.

⁴⁷ “The Development of Canadian Federalism,” 245. See also Corry, J. A., review of Browne, G. P., The Judicial Committee and the British North America Act (Toronto, 1967)Google Scholar, in this Journal, 1 (1968), 217–18; Rowell-Sirois Report, I, 57–9, and Browne, The Judicial Committee, 40, 84, 158–9.

⁴⁸ Ibid., Browne.

⁴⁹ As John Dafoe believed. See Cook, R., The Politics of John Dafoe and the Free Press (Toronto, 1963), 217.CrossRefGoogle Scholar Modified versions of this view were also presented by A. R. M. Lower, “Theories of Canadian Federalism,” 38; Brossard, Jacques, La Cour Suprême et la constitution (Montreal, 1968), 172Google Scholar; and Turi, Guiseppe, “Le déséquilibre constitutionnel fiscal au Canada,” Thémis, 10 (1959–60), 38.Google Scholar Hughes, National Sovereignty and Judicial Autonomy, 98, 104–5, discusses the possibility of Judicial Committee bias “where the issue is one between a Dominion and the British Government or between a Dominion person or firm and a British person or firm… This is based on its composition which is predominantly English and partly political…”

Unspecified allegations of political expediency are contained in Thorson, , Can. H. of C. Debates, April 5, 1937, p. 2582Google Scholar, and MacDonald, “Judicial Interpretation of the Canadian Constitution,” 285.

⁵⁰ For discussions of the provincial bias of the Judicial Committee, see Labrie, F. E., “Canadian Constitutional Interpretation and Legislative Review,” UTLJ, 8 (1949–50), 318–23Google Scholar; McWhinney, Judicial Review, 51 n.7, 67, 69; MacDonald, “The Privy Council and the Canadian Constitution,” 1030–2, 1035; MacDonald, “The Constitution in a Changing World,” 23; MacGuigan, “The Privy Council and the Supreme Court,” 426–7. McWilliams, R. F., “The Privy Council and the Constitution,” CBR, 17 (1939), 582Google Scholar, attempts to prove that the Privy Council was not a defender of the provinces or responsible “for whittling down the powers of the Dominion.” See also Browne, The Judicial Committee, 77.

⁵¹ Privy Council treaty references are summarized in Arès, R., Dossier sur le pacte fédératif de 1867 (Montreal, 1967), 66–8Google Scholar, and criticized in MacDonald, “Privy Council and the Canadian Constitution,” 1030–1.

⁵² Cheffins, Constitutional Process in Canada, 130, provides a summary of the speculation on the reasons for the provincial bias of Watson and Haldane. Some interesting reflections on Haldane are contained in the “Address by the Right Honourable Sir David Maxwell Fyfe,” PCBA, 37 (1954), 149–51. Robinson, Jonathon, “Lord Haldane and the British North America Act,” UTLJ, 20 (1970)CrossRefGoogle Scholar, and Scott, Canada Today, 77, refer to the relevant writings of Haldane. Robinson attempts to explain Haldane's provincial bias as an outgrowth of his Hegelian philosophy. See also the obituary of Watson given by Haldane, , CLT, 23 (1903), 223–5.Google Scholar

⁵³ See, for example, Creighton, Dominion of the North, 466; Thorson, , Can. H. of C. Debates, April 5, 1937, p. 2585Google Scholar; Laskin, “ ‘Peace, Order and Good Government’ Re-examined,” 1077; MacGuigan, “The Privy Council and the Supreme Court,” 425; Scott, Canada Today, 77–8.

Jennings asserted that “Lord Watson held to the fixed idea that Canada was a true federation and that it was the function of the Board to maintain something called ‘provincial autonomy’ which was not in the Act.” Jennings is an exception, however, in claiming that Haldane favoured the provinces reluctantly because of the “weight of the previous decisions.” “Constitutional Interpretation,” 35–6, 21.

⁵⁴ Haldane, Lord, “The Work for the Empire of the Judicial Committee of the Privy Council,” Cambridge Law Journal, 1 (1923), 150.Google Scholar

⁵⁵ Cited in Ewart, Kingdom of Canada, 20.

⁵⁶ Can. H. of C. Debates, Feb. 1, 1937, pp. 426, 444.

⁵⁷ Special Committee on British North America Act: Proceedings and Evidence and Report (Ottawa, 1935), 82. Dawson, R. M., ed., Constitutional Issues in Canada, 1900–1931 (London, 1933), 343–4Google Scholar, reprints a 1912 editorial from the Ottawa Journal strongly critical of several decisions in which the Privy Council supported “vested right against the public weal,” while the decisions of the Canadian courts had been “in favour of the public.” These cases are briefly noted by Pierson, C. G., Canada and the Privy Council (London, 1960), 47.Google Scholar For depression fears that business would seek to shelter behind the provinces, see Mackay, R. A., “The Nature of Canadian Federalism,” in McLaren, W. W.et al., eds., Proceedings, Conference on Canadian-American Affairs (Montreal, 1936), 202.Google Scholar F. H. Underhill wrote that the use of provincial rights to obstruct social reform was “largely camouflage put up by our industrial and financial magnates. None of these worthy gentlemen wants a national government with sufficient constitutional power to be able to interfere effectively with their own pursuit of profits.” “Revolt in Canadian Politics,” Nation, 139 (Dec. 12, 1934), 673, cited in Horn, “League for Social Reconstruction,” 439.

⁵⁸ Scott, “Centralization and Decentralization in Canadian Federalism,” 1116; Scott, “The Consequences of the Privy Council Decisions,” 492; Mallory, J. R., “The Courts and the Sovereignty of the Canadian Parliament,” CJEPS, 10 (1944), 166–73.Google Scholar Since the Revolution Settlement, asserted Mallory, British judges “have been activated by an acute suspicion of the motives of both the executive and the legislature and have conceived it their duty to confine the application of statute law to cases where its meaning could not be mistaken” (p. 167). “Upon occasion the very novelty of government expedients has seriously strained the impartiality of the type of judicial mind which is shocked by the unorthodox” (p. 173). See also Mallory, “The Five Faces of Federalism,” Crépeau and Macpherson, The Future of Canadian Federalism, 6–7, and Social Credit and the Federal Power, 53–6 and chap. 3.

When Australia sought to restrict appeals to the Privy Council, the British Colonial Secretary, Chamberlain, stated: “The question of the right of appeal must also be looked at from the point of view of the very large class of persons interested in Australian securities or Australian undertakings, who are domiciled in the United Kingdom. Nothing could be more prejudicial to Australia than to diminish the security felt by capitalists who desire to invest their money there. One element in the security which at present exists is that there is the possibility of an ultimate appeal to the Queen in Council…” Cited in Ewart, Kingdom of Canada, 232. In 1909 Clark, J. M. stated that the right of appeal “is also regarded as an important security and safeguard by British foreign investors.” “The Judicial Committee of the Privy Council,” CLT, 29 (1909), 352–3.Google Scholar

The high cost of appeals, which played into the hands of the wealthy, and thus buttressed the position of the economically strong, was a frequent criticism of the Privy Council. See Editorial, “Procedure before the Judicial Committee,” CLT, 25 (1905), 29–30; Deacon, W. S., “Gordon v. Home: Canadians and the Privy Council,” CLT, 30 (1910), 877Google Scholar; Deacon, , “Canadians and the Privy Council,” CLT, 31 (1911), 128Google Scholar, and “Canadians and the Privy Council,” CLT, 31 (1911), 10; Kaulbach, C. E., Can. H. of C. Debates, Feb. 26, 1880, p. 241Google Scholar; “Labor's Views on Dominion-Provincial Relations,” Canadian Congress Journal, 17 (Feb. 1938), 15; Pierson, Canada and the Privy Council, 41–2, 70.

Sir Allen Aylesworth, a former Liberal minister of justice (1906–11), admitted in 1914 that the wealthy had an advantage in appeals due to their high cost, but that was “after all, but one of the advantages which the possession of wealth carries with it in every walk of life.” “Address of Sir Allen Aylesworth, 7th Annual Meeting of the Ontario Bar Association,” CLT, 34 (1914), 144.

⁵⁹ “The Courts and the Sovereignty of the Canadian Parliament,” 169.

⁶⁰ “Labor's Views on Dominion-Provincial Relations,” 10.

⁶¹ Presidential address, PCBA, 6 (1921), 110.

⁶² Presidential address, ibid., 12 (1927), 112–13.

⁶³ Ibid., 24 (1939), 204–5. In their report the previous year the committee referred to the disallowance of Alberta legislation as a “reversion to sound thought. Disallowance in some cases is just as important as enactment.” The report continued to warn, however, that “quite apart from certain notorious Acts, much of this year's product reveals an inspiration which is wholly alien to our usual habits of thought… The Committee believes that it is the general view of the profession that unless we can govern ourselves according to settled and generally recognized principles of right and wrong, we are headed either for anarchy or despotism… it can find no place in any civilized system of law for several Acts passed at the last Session of the Legislature of Alberta… these are only high water marks which stand above the general level and are more conspicuous on that account.” The committee went on to castigate open-ended legislation in British Columbia and Saskatchewan which gave significant, vaguely defined authority to the Lieutenant-Governor-in-Council to make regulations for the carrying out of legislation. Ibid., 23 (1938), 191–3.

⁶⁴ Johnson, W. S., “The Reign of Law Under an Expanding Bureaucracy,” CBR, 22 (1944).Google Scholar Cheffins, Constitutional Process in Canada, chap. 3, contains a brief discussion of the factors behind this evolution in the procedures of government operation.

Cecil A. Wright stated in 1938: “we have to a great extent underestimated the importance of administrative tribunals and the place of modern legislation as regulating forces in modern society. Legislation has always been viewed with disfavour by the common law lawyer because of the traditional view of the common law broadening down from ‘precedent to precedent,’ and undoubtedly the general attitude of the profession today is not different from that of Lord Halsbury who is reputed to have said that ‘the best Act you can have is a repealing Act.’ One consequence of this is that our whole technique and approach to legislation is weak, and as a result antagonism between the legal profession and legislative and administrative bodies becomes more marked.

“We have, indeed, paid so much attention to past judicial policy, that courts and lawyers are frequently in danger of limiting present legislative policy by restrictive interpretations. The notion that a statute shall be deemed to have departed as little as possible from common law principles runs throughout many judicial decisions, yet, as a member of the House of Lords recently said, ‘it is an unsafe guide in days of modern legislation, often or perhaps generally based on objects and policies alien to the common law.” “Law and Law Schools,” PCBA, 23 (1938), 115.

⁶⁵ See Caplan, G. L., “The Failure of Canadian Socialism: The Ontario Experience,” Canadian Historical Review, 44 (1963)CrossRefGoogle Scholar, for the extreme anti-socialist campaign waged by business in the closing years of the Second World War.

⁶⁶ For American experience, see Twiss, Benjamin R., Lawyers and the Constitution: How Laissez-Faire Came to the Supreme Court (New York, 1962).Google Scholar

⁶⁷ Hamilton, W. H., “The Path of Due Process of Law,” Ethics, 48 (1938), 296CrossRefGoogle Scholar, asserted that American courts were more resistant to laissez-faire than other parts of the body politic. “It seems strange that so many jurists stood steadfast against the seductions of laissez-faire; history, political science, and economics can boast no such record… does the whole story, in irony, paradox, and compromise, derive from the innate conservatism of the law – a rock of ages which even the untamed strength of laissez-faire could move but could not blast.”

⁶⁸ Stanley, “Act or Pact?” 112–13.

⁶⁹ Given the strong criticism it subsequently received it is worthwhile to document the extent of its support in earlier years. See, for example, Small, John T., “Supreme Court and Privy Council Appeals,” CLT, 29 (1909), 51–2Google Scholar; Clark, “The Judicial Committee of the Privy Council”; “Address of Sir Allen Aylesworth,” 139; “By the Way,” CLT, 36 (1916), 354–5, 662–3; Wilkinson, W. E., “Our London Letter,” CLT, 41 (1921), 61Google Scholar, reporting Cave, Lord; B[ram] T[hompson], “Editor's Note,” CLT, 41 (1921), 62–3Google Scholar; “Editorial,” CLT, 41 (1921), 83–6; Thompson, Bram, “Editorial,” CLT, 41 (1921), 161–5Google Scholar; Anderson, Edward, “Address to Manitoba Bar Association,” CLT, 41 (1921), 252–3Google Scholar; “Appeal to the Privy Council,” CLT, 41 (1921), 525–6; Pierson, Canada and the Privy Council, 39.

⁷⁰ Galt, A. G., “Appeals to the Privy Council,” CLT, 41 (1921), 172.Google Scholar

⁷¹ Nesbitt, W., “The Judicial Committee of the Privy Council,” CLT, 29 (1909), 252.Google Scholar

⁷² Duff, Sir L. P., “The Privy Council,” CBR, 3 (1925), 278–9.Google Scholar

⁷³ “The Constitution of Canada,” CLT, 34 (1914), 1031.

⁷⁴ “Appeals to the Privy Council,” 168–9.

⁷⁵ PCBA, 15 (1930), 37. Another writer stated that Viscount Haldane was “recognized as the greatest living authority on the interpretation of the British North America Act.” Raney, W. E., “Another Question of Dominion Jurisdiction Emerges,” CBR, 3 (1925 ), 617.Google Scholar

⁷⁶ Nesbitt, “The Judicial Committee,” 244.

⁷⁷ “The Privy Council,” 278. See also Nesbitt, “The Judicial Committee,” 243, 245–6; Riddell, W. R., “The Judicial Committee of the Privy Council,” CLT, 30 (1910), 305–6Google Scholar; Newlands, W. H., “Appeals to the Privy Council,” CBR, 1 (1923), 814–15.Google Scholar

⁷⁸ Nesbitt, “The Judicial Committee,” 250–1; Riddell, “The Judicial Committee,” 304. Ewart, Kingdom of Canada, 228, argued that if the Privy Council did try to produce uniformity of laws in the empire appeals should be abolished, for each community required its own laws. In fact, however, he asserted that the Privy Council endeavoured to keep the various systems of laws distinct.

⁷⁹ Nesbitt, “The Judicial Committee,” 250–1; Clark, “The Judicial Committee,” 349, 352–3; “By the Way,” CLT, 37 (1917), 624–5; “Address of Sir Allen Aylesworth,” 140; Thompson, Bram, “Editorial,” CLT, 41 (1921), 162–3Google Scholar; Ferguson, Howard, PCBA, 15 (1930), 37.Google Scholar The desire of the Macdonald Conservatives to retain appeals to the Privy Council when the Supreme Court Act of 1875 was under discussion was based “primarily on their concern for preserving Canada's links with the Empire.” Russell, Supreme Court, 16.

⁸⁰ Clark, “The Judicial Committee,” 352; Galt, “Appeals to the Privy Council,” 172.

⁸¹ “The Judicial Committee,” 304.

⁸² This argument was used by British officials in 1876 when the Liberal government attempted to cut off appeals to the Privy Council,” See Cannon, L. A., “Some Data Relating to the Appeal to the Privy Council,” CBR, 3 (1925), 460–2.Google Scholar In discussions on the Australian constitution in 1900 Chamberlain stated that “questions… which may sometimes involve a good deal of local feeling are the last that should be withdrawn from a tribunal of appeal with regard to which there could not be even a suspicion of prepossession.” Cited in Ewart, Kingdom of Canada, 232. The British constitutional expert, A. B. Keith, asserted that the “true value of the appeal… lies in the power of the Judicial Committee to deal in perfect freedom from local or racial prejudice with issues deeply affecting the relations of the two nationalities in Canada, or of the provinces and the Federation, or of the provinces inter se.” Cited in Raney, W. E., “The Appeal to the Privy Council,” CBR, 5 (1927), 608.Google Scholar

For the widespread Canadian support for this line of reasoning, see “Editorial Review,” CLT, 27 (1907), 403–4; Small, “Supreme Court and Privy Council Appeals,” 51; Nesbitt, “The Judicial Committee,” 249; Riddell, “The Judicial Committee,” 304; Fitzpatrick, “The Constitution of Canada,” 1031; “Appeal to the Privy Council,” CLT, 41 (1921), 525, reporting Premier Taschereau of Quebec; Aikins, James, “President's Address to Conference of Commissioners on Uniformity of Legislation,” PCBA, 6 (1921), 286Google Scholar; Brossard, La Cour Suprême, 171.

⁸³ “Presidential Address,” CBR, 5 (1927), 562–3.

⁸⁴ Evan Gray made this point with vigour. “It is time the chief ‘indoor sport’ of constitutional lawyers in ‘lambasting’ the Privy Council and cavilling at decisions of that body was discontinued. The ‘sport’ never had any merit or excuse and it violates ‘good form’ – an essential element of all ‘sport.’ All this talk about distortion of the framework of Confederation and defeat of our national purposes by judicial authority is silly and puerile. If there is distortion, we Canadians all must take the responsibility for the distortion. If there is defeat of national purposes, let us do something worthy of our autonomy rather than continue to accept and complain of the defeat. Our constitution is what our forefathers made it and as we have applied it – not what British judges gave us. If we do not like the constitution as it is, we have always had leave to change it; let us change it – now – in an open, forthright and well-considered manner.” “«The O'Connor Report’ on the British North America Act, 1867,” CBR, 17 (1939), 333–4.

⁸⁵ The issue was posed but not answered by R. Cheffins: “It could be argued that the type of strong federal government envisaged by the political founders of the Canadian nation was impractical and not realizable in a country as large geographically and as culturally diverse as Canada. It could also be argued that the Judicial Committee was recognizing the realities of the social and political life of the nation in upholding the validity of provincial statutes. On the other hand it could be maintained that if the Privy Council had not ruled the way it did, then the provincial governments would never have assumed the importance which they did, and thus their position would not have to be continually sustained by judicial decisions.” “The Supreme Court of Canada: The Quiet Court in an Unquiet Country,” Osgoode Hall Law Journal, 4 (1966), 267.

Both Morton and Careless lay great stress on the contributions of the Judicial Committee to the strong position of the provinces in the 1920s. Morton, W. L., The Kingdom of Canada (Toronto, 1969), 444Google Scholar; Careless, Canada, 364. D. G. Creighton also emphasizes the causal role of the Judicial Committee in breaking down Macdonald's centralized federalism. “The Decline and Fall of the Empire of the St. Lawrence,” Canadian Historical Association, Historical Papers, 1969, 24. See also Scott, “The Development of Canadian Federalism,” 238–47; Goldenberg, “Social and Economic Problems in Canadian Federalism.”

⁸⁶ Kennedy, Some Aspects of the Theories and Workings of Constitutional Law, 100.

⁸⁷ See Rogers, N. McL., “The Genesis of Provincial Rights,” Canadian Historical Review, 14 (1933)Google Scholar, for an incisive analysis of the weakness of the centralist basis of Confederation from the moment of its inception.

⁸⁸ “The failure of the Dominion's economic policies, which formed such important elements in the new national interest, discouraged the growth of a strong, national sentiment; and local loyalties and interests began to reassert themselves.” Rowell-Sirois Report, I, 54. See also Black, E. R. and Cairns, A. C., “A Different Perspective on Canadian Federalism,” Canadian Public Administration, 9 (1966), 29CrossRefGoogle Scholar, and Cook, Provincial Autonomy, Minority Rights and the Compact Theory, chap. 3, especially p. 19.

⁸⁹ Black and Cairns, “A Different Perspective,” 29.

⁹⁰ Ibid., 38–43.

⁹¹ Morrison, “Oliver Mowat,” passim.

⁹² I, 55.

⁹³ Underhill, F. H., The Image of Confedration (Toronto, 1964), 27.Google Scholar

⁹⁴ Cited in Brady, A., “Quebec and Canadian Federalism,” CJEPS, 25 (1959), 260–1.Google Scholar

⁹⁵ See the Rowell-Sirois Report, I, 55–9, for a discussion. André Lapointe, “La jurisprudence constitutionnelle et le temps,” is a suggestive impressionistic study to the effect that Privy Council decisions, 1880–4, constituted appropriate responses to the forces of regionalism which were developing at that time.

⁹⁶ Gray, “‘The O'Connor Report,’” 334–5.

⁹⁷ “The Late Lord Watson,” CLT, 23 (1903), 224.

⁹⁸ For Mowat's position on the role of the provinces, his success with the Privy Council, and his favourable reception by the people of Ontario, see Lower, Colony to Nation, 376–9. Creighton, Canada's First Century, 47, provides a critical assessment of Mowat's philosophy and conduct. Ross, G. W., Getting into Parliament and After (Toronto, 1913), 187–8Google Scholar, states that “Sir Oliver Mowat's success in the courts of Canada, and particularly before the Privy Council, raised him greatly in the estimation of the whole people of Ontario. Were it not for these conflicts with the Dominion Government I doubt if Sir Oliver would have survived the general election of 1883.” Morrison, “Oliver Mowat,” provides the most detailed analysis of Mowat's strategy.

⁹⁹ There is considerable academic support for the proposition that the federal system established in 1867 was too centralist for the underlying regional pluralism of Canadian society, and the related proposition that it was an act of creative judicial statesmanship for the Privy Council to adapt the constitution to pluralist realities. O. D. Skelton stated that the “provincial trend of court decisions paralleled or rather followed, with some time lag, the changes in Canada itself.” Special Committee on the British North America Act: 1935, 27. “In all justice to the Judicial Committee,” asserted Professor Brady, , “they probably did no more than what the majority of Canadians in the earlier period desired. They gave judicial expression to the upsurge of provincialism, evident from the early eighties to the decade after the First World War…” Democracy in the Dominions (2nd ed., Toronto, 1952), 45–6.Google Scholar See also Brady, “Our Constitutional Tradition,” 16. Michael Oliver states of the centralist intentions of the Fathers: “It must be concluded that they either seriously overestimated the range of shared assumptions between the two cultures, or badly underestimated the degree of unity on fundamentals which was necessary to run the centralized state they had tried to create.” “Quebec and Canadian Democracy,” CJEPS, 23 (1957), 504. Cheffins states that the “ineffectiveness” of the centralist features of the bna Act “serves as a classic example of the futility of written positive law in the face of a social environment which refuses to accept the original statutory intention.” Constitutional Process in Canada, 37–8 (see also p. 132). G. P. Glazebrook states: “the Judicial Committee was a make-weight in scales that were otherwise uncertainly balanced. The committee did not create the provincial school of thought; and it is worthy of note that it was long after it had ceased to have jurisdiction that provincialism took on its most extreme form. Nevertheless the strong slant in the legal decisions… may be regarded as influential in the years in which the constitutional debate began.” A History of Canadian Political Thought (Toronto, 1966), 186–7. J. R. Mallory praised the political acumen of the Local Prohibition Case in 1896, but added that “No other judge since Lord Watson's time has attempted the judicial realignment needed by the times and comparable to that achieved by the Supreme Court of the United States after 1937.” “The Courts and the Sovereignty of the Canadian Parliament,” 177.

Even the leading Canadian constitutional expert, W. P. M. Kennedy, later to be so critical of the Privy Council, had strongly praised it in earlier writings. In 1930 he wrote: “I often wonder… with the inevitable divergencies in our national life due to race, religion, geography and such like, whether after all the way of the Privy Council up to 1929 has not been the better way. We might, apart from the Privy Council, have followed paths of greater juristic cohesion. We might have created a stronger legal nation; but it is problematical, had we done so, whether our legal cohesion would not have been compelled, if federation was to have survived, to give ground ultimately to those more compelling forces… and whether we should not have been forced ultimately, in the interest of continuing the union, to retrace our legal steps.” Book review of Cameron, E., The Canadian Constitution as Interpreted by the Judicial Committee, 1916–1929, in CBR, 8 (1930), 708.Google Scholar Kennedy made the same point on several other occasions: see Essays in Constitutional Law (London, 1934), 59–60, 101–2; Some Aspects of the Theories and Workings of Constitutional Law, 93, 101–2.

See also Maxwell, J. A., “Aspects of Canadian Federalism,” Dalhousie Review, 16 (1936–7), 277nGoogle Scholar; E. McWhinney, “Federalism, Constitutionalism, and Legal Change: Legal Implications of the ‘Revolution’ in Quebec,” in Crépeau and Macpherson, The Future of Canadian Federalism, 159–60; McWhinney, Judicial Review, 25–6, 70–1; E. Forsey, “Concepts of Federalism: Some Canadian Aspects,” in Meekison, J. P., ed., Canadian Federalism: Myth or Reality (Toronto, 1968), 349Google Scholar; Stanley, A Short History of the Canadian Constitution, 142.

¹⁰⁰ Federalism and the French Canadians (Toronto, 1968), 198.

¹⁰¹ Cheffins, Constitutional Process in Canada, 130–1, and Lederman, W. R., “Thoughts on Reform of the Supreme Court of Canada,” Alberta Law Review, 8 (1970), 3Google Scholar, both point out the inappropriateness of a literal criticism of Privy Council decisions.

¹⁰² “The Judicial Committee,” 348.

¹⁰³ E. W., “Random Remarks Regarding the Judicial Committee,” CLT, 36 (1916), 370–1.

¹⁰⁴ Bram Thompson, “Editorial,” CLT, 41 (1921), 165.

¹⁰⁵ “Editorial,” CLT, 40 (1920), 261.

¹⁰⁶ MacDonald, “Judicial Interpretation of the Canadian Constitution,” 282–3.

¹⁰⁷ Jennings, “Constitutional Interpretation,” 38.

¹⁰⁸ The Constitution of Canada, 550. See also Cronkite, F. C., “The Social Legislation References,” CBR, 15 (1937), 478.Google Scholar

¹⁰⁹ Left-wing critics of the time disagree with this interpretation. See the Canadian Forum (March 1937), 4, and Steeves, Dorothy in cbc, The Canadian Constitution (Toronto, 1938), 97–8.Google Scholar

¹¹⁰ Cook, R., Canada and the French Canadian Question (Toronto, 1966), 53.Google Scholar

¹¹¹ Creighton, Canada's First Century, 213–14.

¹¹² MacDonald, “The Privy Council and the Canadian Constitution,” 1036.

¹¹³ “Judicial Interpretation of the Canadian Constitution,” 281. MacDonald, “The Privy Council and the Canadian Constitution,” 1034–5, reiterates his earlier statement, and adds that we do not even have certainty (p. 1036). Laskin, “ ‘Peace, Order and Good Government’ Re-examined,” 1056, accused the Privy Council of laying down too many unnecessary dicta and generalities. McWhinney, Judicial Review, 54, suggests that the need for compromise in the committee may have produced obscurities in their decisions. Some earlier technical criticisms may be found in “Editorial Review,” CLT, 6 (1886), 375, and Marsh, A. H., “The Privy Council as a Colonial Court of Appeal,” CLT, 14 (1894), 92.Google Scholar See, by contrast, E. W., “Random Remarks Regarding the Judicial Committee,” 371–2, who praises the committee for its statesmanlike willingness to be inconsistent, and to override legal quibbles. The caveat of H. A. Innis is also worthy of consideration: “But though interpretations of decisions of the Privy Council have been subjected to intensive study and complaints have been made about their inconsistency, inconsistencies have implied flexibility and have offset the dangers of rigidity characteristic of written constitutions.” “Great Britain, the United States and Canada,” in Innis, M. Q., ed., Essays in Canadian Economic History (Toronto, 1956), 404.Google Scholar

¹¹⁴ Kingdom of Canada, 226–8. Ewart repeated his opposition to this defence of the Privy Council on numerous occasions: ibid., 20; Kingdom Papers, I, 88; “The Judicial Committee,” CLT, 34 (1914), 221, 230–1; “The Judicial Committee,” CLT, 33 (1913), 676–8; “Some Farther Comments on Dominion-Provincial Relations,” PPCPSA, 3 (1931), 253–8.

¹¹⁵ Can. H. of C. Debates, Feb. 26, 1880, pp. 253–5, and see Blake, cited in MacDonald, “The Privy Council and the Canadian Constitution,” 1026. For Blake's later partial change of mind, see Russell, Supreme Court, 251, n. 173.

¹¹⁶ Raney, “Justice, Precedent and Ultimate Conjecture,” 460; Thorson, , Can. H. of C. Debates, April 5, 1937, pp. 2581–2Google Scholar; Scott, Canada Today, 77; Tuck, “Canada and the Judicial Committee,” 71–3; Mallory, “The Five Faces of Federalism,” 6.

¹¹⁷ Marsh, A. H., “The Privy Council as a Colonial Court of Appeal,” CLT, 14 (1894), 94.Google Scholar See also Deacon, “Canadians and the Privy Council,” 126–7. This criticism was popular among the opponents of the New Deal decisions. Cahan, , Can. H. of C. Debates, April 5, 1937, p. 2574Google Scholar, and Scott, “The Consequences of the Privy Council Decisions,” 493–4. Jennings, “Constitutional Interpretation,” is the best attempt to discuss the influence of Privy Council personnel on its judgments.

¹¹⁸ “Constitutional Interpretation,” 1–2.

¹¹⁹ “The Canadian Constitution Seventy Years After,” CBR, 15 (1937), 426–7.

¹²⁰ “Canada and the Judicial Committee,” 73 (see also 55–6, 71–2). Versions of this point were made by various commentators. LaBrie, “Canadian Constitutional Interpretation and Legislative Review,” 346; W. R. Lederman, “The Balanced Interpretation of the Federal Distribution of Legislative Powers in Canada,” in Crépeau and Macpherson, The Future of Canadian Federalism, 111; Lederman, “Thoughts on the Reform of the Supreme Court of Canada,” 3–4.

¹²¹ Judicial Review, 72.

¹²² “The Privy Council and the Supreme Court,” 425–6.

¹²³ D. G. Creighton, speaking of the diversity of jurisdiction of the Privy Council, stated: “An expert knowledge of one of these legal systems might be regarded as a respectable accomplishment for an ordinary man. But the titans of the Judicial Committee, from long practice and profound study, have grown accustomed to the multifarious and exacting requirements of their office; and they apparently leap, with the agility of quick-change performers, from one legal metamorphosis to another… To an outsider it might seem that there was at least the faint possibility of some bewilderment and confusion in these endlessly varied deliberations. The outsider might even be so far misled as to conceive of a noble judge who continued obstinately to peruse the Koran when he ought to have been consulting the British North America Act.” “Federal Relations in Canada since 1914,” in Martin, Chester, ed., Canada in Peace and War (Toronto, 1941), 32–3.Google Scholar

¹²⁴ Ewart, “The Judicial Committee,” 676. He also asserted that the Judicial Committee “suffers from a conviction of its own superiority – a conviction due (a) to the ruling character of the race to which its members belong, and (b) to the fact that, by sending our cases to it, we appear to acknowledge our incapacity.”

¹²⁵ Ibid., 676.

¹²⁶ “What gives its imposing respectability, its ponderous finality to a decision of the Privy Council is its unity. There may be considerable diversity of opinion, doubts, hesitations and dissents behind the curtain. But when the curtain goes up one judge delivers the opinion of the Court and it is law. It does not sprinkle like a garden hose; it hits like the hammer of Thor.” Hunter, A. T., “A Proposal for Statutory Relief from the Privy Council Controversy,” CBR, 4 (1926), 102.Google Scholar See McWhinney, Judicial Review, 52–3, for a discussion of the practice and suggested explanations for its survival.

¹²⁷ He continued: “Though the reports summarize the arguments of counsel, the emphasis given to the written opinion mimimizes the case that the majority did not accept. Finally, the opinion of the whole Board is given by one member. The substance is, no doubt, agreed to by the rest of the majority; but it is never certain that all the expressions would have been accepted by the majority if they had fully considered them. The type of opinion differs according to the judge who renders it. He comes to the conclusion desired by the majority and states the reasons acceptable to the majority; but anyone who has drafted a document knows that there are many ways of saying the same thing and that a draft often says more than is intended.” “Constitutional Interpretation,” 2–3.

¹²⁸ Ewart, “The Judicial Committee,” 676.

¹²⁹ E. W., “Random Remarks Regarding the Judicial Committee,” 370.

¹³⁰ The Judicial Committee and the British North America Act.

¹³¹ The reference is to a tendency, not to ethnic unanimity. Frank Scott was correct in pointing out in 1947 that Quebec had “no single view” on the question of the retention of the Judicial Committee, and in noting that a minister of justice from Quebec, Télésphore Fournier, who introduced the bill to establish the Supreme Court in 1875, stated that he “wished to see the practice put an end to altogether,” and that Ernest Lapointe held similar views. “Abolition of Appeals to the Privy Council: A Symposium,” 571. Scott had earlier argued that minority rights had received better protection from the Supreme Court than from the Privy Council. “The Privy Council and Minority Rights,” Queen's Quarterly, 37 (1930). It is also worthy of note that the elimination of appeals occurred under a French-Canadian prime minister. Pierson, Canada and the Privy Council, 69–70, provides some evidence of French-Canadian opposition to appeals. The 1927 Labrador decision of the Privy Council turned some French Canadians against the system of appeals. See Brossard, La Cour Suprême, 189, and Thomson, Dale C., Louis St. Laurent: Canadian (Toronto, 1967), 91, 208.Google Scholar Further, it is clear that there have been many English-Canadian supporters of the Privy Council right up to its final abolition. These observations do not, however, invalidate the statement about a tendency for opposed evaluations of the Judicial Committee to follow the French-English cleavage.

¹³² For French-Canadian support of the Privy Council's interpretation of the bna Act and/or support for its continuation as a final appeal court see Pigeon, L. P., “The Meaning of Provincial Autonomy,” CBR, 29, (1951)Google Scholar; Pigeon, “French Canada's attitude to the Canadian Constitution,” in McWhinney, E., ed., Canadian Jurisprudence (Toronto, 1958)Google Scholar; Jean Beetz, “Les attitudes changeantes du Québec à l'endroit de la constitution de 1867,” 117–18; CLT, 40 (1920), 315, reporting a speech by Mr Gagne, Horace J. of the Montreal Bar; “Appeal to the Privy Council,” CLT, 41 (1921), 525Google Scholar, reporting a speech of Premier Taschereau of Quebec. Russell notes that in the nineteenth century French-Canadian support for the Judicial Committee, and opposition to the Supreme Court, was primarily based on the belief that the composition, training, and background of the former was much to be preferred to that of the latter for interpretations of Quebec civil law. Supreme Court, chap. 1, passim. See also Brossard, La Cour Suprême, 125.

¹³³ On this attitude of the abolitionists, see Juskaitis, Jonas L., “On Understanding the Supreme Court of Canada,” School of Law Review, University of Toronto, 9 (1951), 7–8Google Scholar; and Leigh, Leonard H., “The Supreme Court and the Constitution,” Ottawa Law Review, 2 (1967–8), 323.Google Scholar Jacques Brossard, “The Supreme Court and the Constitution,” in Ontario Advisory Committee on Confederation, Quebec in the Canada of Tomorrow (Toronto, n.d.), (translated from Le Devoir, special supplement, June 30, 1967), stated: “It was, moreover, in opposing the centralizing aims of the federal government that the Judicial Committee signed its own death warrant; it was accused, not without reason, of having violated the centralizing spirit of the b.n.a. Act of 1867.” U.2.

¹³⁴ Beetz, “Les attitudes changeantes,” 119–21. The divergent evaluations of the Judicial Committee and of a proposed independent Supreme Court are discussed by Russell, Peter, “The Supreme Court's Interpretation of the Constitution since 1949,” In Fox, Paul, ed., Politics: Canada (2nd ed., Toronto, 1966), 117–18.Google Scholar See also Russell, Supreme Court, 31–2, 36–7. In addition to the ethnic based opposition from French Canada there was also considerable provincial opposition to the unilateral nature of the federal action in abolishing appeals. Gérin-Lajoie, P., Constitutional Amendment in Canada (Toronto, 1950)Google Scholar, xvii-xviii. By 1949 French Canadians had become critical of the Privy Council's treatment of French civil law, but this “was counter-balanced by approval of its interpretation of the b.n.a. Act.” Russell, Supreme Court, 31.

¹³⁵ The Judicial Committee and the British North America Act.

¹³⁶ Corry, J. A., while doubtful of the final validity of Browne's thesis, gives the book a very favourable review in this Journal, 1 (1968), 217–19.Google Scholar Critical reviews are provided by Laskin, B., Canadian Public Administration, 10 (1967), 514–18Google Scholar, and Alexander, E. R., UTLJ, 17 (1967), 371–7.CrossRefGoogle Scholar

¹³⁷ See the eminently sensible criticism by Corry, ibid., 218–19. Jennings’ observation is also relevant. “The idea that judges spend days on end in reading all the decisions on any particular topic is one which is sometimes assumed by academic writers; it can, however, be designated as clearly false by anyone who has watched a court give judgment immediately at the end of an argument.” “Constitutional Interpretation,” 27.

¹³⁸ W. R. Lederman, after noting the antithetical literal interpretations of the bna Act by Browne and O'Connor states that in his view “Browne and O'Connor simply cancel one another out. The truth is that the b.n.a. Act was simply ambiguous or incomplete in many respects as originally drafted and the answers just were not in the Act as to how these ambiguities were to be resolved and the gaps filled.” “Thoughts on the Reform of the Supreme Court of Canada,” 2.

Note also the chronic “historical” controversy over the validity of the compact theory and between centralist and provincialist interpretations of the bna Act and/or the intentions of the Fathers. Glazebrook's comment is apt: “one has only to sample the speeches and writings of politicians, academics, and jurists to appreciate the wealth of interpretation of the intent and terms of the original union. It needs a conscious effort to realize that they are describing the same episode in Canadian history. Confederation, in fact, was what you thought it was – or often what it should have been. Which seems to suggest that particular interpretations and points of view were rationalized by tailored versions of the Constitution.” A History of Canadian Political Thought, 264 (see also 153, 258).

¹³⁹ “La Confédération à refaire,” Thémis, 5 (1954), 105. Stanley, “Act or Pact?” 114, asserts that the pre-parliamentary history of the bna Act appears to confirm the interpretation of the Judicial Committee rather than that of the critics.

The 1887 Interprovincial Conference which advocated a much more decentralized federal system than prevailed under Macdonald's prime ministership, claimed that two decades of experience with the bna Act have “disclosed grave ommissions in the provisions of the Act, and has shown (when the language of the Act came to be judicially interpreted) that in many respects what was the common understanding and intention had not been expressed, and that important provisions in the Act are obscure as to their true intent and meaning.” Dominion, Provincial and Interprovincial Conferences from 1887 to 1926 (Ottawa, 1951), 20.

¹⁴⁰ “Canadian Constitutional Interpretation and Legislative Review,” 310. K. N. Llewellyn's statement is also apt: “there is no quarrel to be had with judges merely because they disregard or twist Documentary language, or ‘interpret’ it to the despair of original intent, in the service of what those judges conceive to be the inherent nature of our institutions. To my mind, such action is their duty. To my mind, the judge who builds his decision to conform with his conception of what our institutions must be if we are to continue, roots in the deepest wisdom.” “The Constitution as an Institution,” Columbia Law Review, 23 (1934), 33.

¹⁴¹ Reason and Law (New York, 1961), 84.

¹⁴² Ross, G. H., “Interpreting the b.n.a. Act,” CBR, 7 (1929), 704.Google Scholar LaBrie, “Canadian Constitutional Interpretation,” 310, 318; Rowell-Sirois Report, I, 36.

¹⁴³ A.G. Ont.v A.G. Can., [1947], a.c. 127, at 154.

¹⁴⁴ Robinson, “Lord Haldane and the British North America Act,” 58. See also Bickel, A. M., “The Original Understanding and the Segregation Decision,” Harvard Law Review, 69 (1955).CrossRefGoogle Scholar

¹⁴⁵ Various American writers have noted that the appeal to history in American constitutional interpretation has led to an abuse of history, and does not in fact act as a control on the court. See, in particular, Kelly, A. H., “Clio and the Court: An Illicit Love Affair,” in Kurland, P. B., ed., The Supreme Court Review (Chicago, 1965)Google Scholar; Tenbroek, J., “Admissibility and Use by the United States Supreme Court of Extrinsic Aids in Constitutional Construction,” California Law Review, 26 (1937–8), 448, 451Google Scholar; Hyneman, C. S., The Supreme Court on Trial (New York, 1964), 207–8.Google ScholarFrankfurter, Felix, “Reflections on Reading Statutes,” in Westin, A. F., ed., The Supreme Court: Views from Inside (New York, 1961), 75, 84–5, 88–92Google Scholar, argues the advantages in appealing to historical materials, although he also notes the difficult problems this entails. The difficulty in using historical material is also noted by W. O. Douglas, “Judges as Legislators,” in Westin, ibid., 68–9. North, A. A., The Supreme Court, Judicial Process and Judicial Politics (New York, 1966), 18–29Google Scholar, provides a neutral discussion. Bodenheimer, E., Jurisprudence (Cambridge, Mass., 1962), 348–53Google Scholar, is a good discussion of whether courts should take the original meaning at the time of statutory creation, or the contemporaneous ones understood at the time of decision.

¹⁴⁶ See MacDonald, “Constitutional Interpretation and Extrinsic Evidence,” for a discussion.

¹⁴⁷ Edwards v A.G. Can., [1930], a.c. 124, at 137.

¹⁴⁸ He added: “it seems to us fallacious, as well as reckless, for the author to suggest that seventy years after Confederation he can assist us by such contemporary records to say that those who framed the Confederation Act intended to do other than what they embodied in the words of the statute.

“Indeed the matter goes deeper than that; what they are seeking to discover who speak of the pre-confederation intention of the framers of confederation or of the constituent provinces has no real existence. The search is pursuit of a ‘will-O-wisp'; when once you leave the natural light afforded by the text of the b.n.a. Act, you are in a realm of unreality….

“Neither should we continue the pretension of the author that by a miracle of understanding and foresight, the Canadian Fathers of Confederation provided in 1867 a constitution suitable to any future.” “‘The O'Connor Report” on the British North America Act 1867,” 316–18, 334.

See also Stanley, “Act or Pact?” 112, for the morass of contradictions involved in attempting to determine the “intentions” of the Fathers. ‘The one sure guide as to what the Fathers really agreed to agree upon, was the language of their resolutions, or better still, the language of the British North America Act itself. And in construing this Act in the way they have, the judges probably arrived at a more accurate interpretation than have the multitude of critics who have so emphatically disagreed with them.”

¹⁴⁹ “Judicial Interpretation of the Canadian Constitution,” 280–1. His approach agreed with Llewellyn's, K. N. assertion that with an ancient statute “the sound quest does not run primarily in terms of historical intent. It runs in terms of what the words can be made to bear, in making sense in the new light of what was originally unforeseen.” The Common Law Tradition (Boston, 1960), 374.Google Scholar See also Friedman, W., Law and Social Change in Contemporary Britain (London, 1951), 252, 254–5.Google Scholar

¹⁵⁰ Mallory, “The Courts and the Sovereignty of the Canadian Parliament,” 173.

¹⁵¹ Rumble, W. E. attributes the same achievement to the American legal realists. American Legal Realism (Ithaca, 1968), 232–3.Google Scholar

¹⁵² Jaffa, H. V., “The Case for a Stronger National Government,” in Goldwin, R. A., ed., A Nation of States (Chicago, 1968), 121.Google Scholar

¹⁵³ Browne suggests that the “constituent statute argument equates ‘liberal’ with ‘federal’ (and so ‘literal’ with ‘provincial').” The Judicial Committee and the British North America Act, 31. This is not entirely true. As indicated in this essay there was also a critique of the Privy Council which was both “literal” and “federal.”

¹⁵⁴ The weak reasoning is similar to that noted by Smiley in “national interest” justifications for conditional grants. Smiley, D. V., Conditional Grants and Canadian Federalism (Toronto, 1963), 48–52.Google Scholar

¹⁵⁵ The Nature of the Judicial Process (New Haven, 1960), 174–5.

¹⁵⁶ Lapointe also notes the incompatibility of the two, and argues that the Privy Council conducted itself in accordance with the constitutional rather than the fundamentalist approach. “La jurisprudence constitutionnelle et le temps,” 27–8.

“The manner of framing the question,” writes Llewellyn, “is psychologically of huge importance. ‘Is this within the powers granted by the Document?’ throws the baseline of inquiry back a century and a half, constricts the vision to the static word, turns discussion into the channels of logomachy. It invites, and too often produces, artificial limitation of attention to the non-essential, the accidental: to wit, what language happens to stand in the Document, or in some hoary – or beardless – text of its ‘interpretation'…

“Contrast the effect of framing the question thus: ‘Is this within the leeway of change which our going governmental scheme affords? And even if not, does the nature of the case require the leeway to be widened to include it?’ The baseline then becomes so much of the past only as is still alive, and the immediate future comes to bear as well. The tone and tendency of the very question is dynamic. The ‘nature of the case’ invites attention to explicit policy. While that continuity with the past which, if not a duty, is wisdom quite as well as a necessity, is carefully preserved – only that the past concerned is that embodied not in an ancient Text, but in a living Government.” “The Constitution as an Institution,” 32–3.

¹⁵⁷ Russell, Supreme Court, 35.

¹⁵⁸ “O Canada,” Canadian Forum, 11 (June 1931), 332, cited in Horn, “League for Social Reconstruction,” 433.

¹⁵⁹ Ferland, “La Confédération à refaire,” 106–7; Beetz, “Les attitudes changeantes du Québec à l'endroit de la constitution de 1867,” 120.

¹⁶⁰ “Commentaries,” Crépeau and Macpherson, The Future of Canadian Federalism, 38.

¹⁶¹ Judicial Review, 69.

¹⁶² Tuck, “Canada and the Judicial Committee,” 75.

¹⁶³ J. R. Mallory recently contrasted the capacity of the Supreme Court of the United States to “ ‘follow the election returns’” with the Privy Council which “was so deficient in both sense and sensibility that the allocation of power in the constitution, by the end of the 1930's, had achieved a remarkable incongruity between the resources, capacities, and responsibilities of the federal and provincial governments.” “The Five Faces of Federalism,” 7. See also MacDonald, “The Privy Council and the Canadian Constitution,” 1032–3, 1035, 1027; MacDonald, ‘The Constitution in a Changing World,” 43–4; MacDonald, “Judicial Interpretation of the Canadian Constitution,” 278; Tuck, “Canada and the Judicial Committee,” 34; B. Laskin, “Reflections on the Canadian Constitution after the First Century,” in Meekison, Canadian Federalism, 139.

¹⁶⁴ “Privy Council Decisions: A Comment from Great Britain,” CBR, 15 (1937), 435.

¹⁶⁵ Rumble, American Legal Realism, 220–1, 227, 232.

¹⁶⁶ Corry, J. A., “Decisions of the Judicial Committee, 1930–9,” CJEPS, 5 (1939), 511–12.Google Scholar See also Rumble, American Legal Realism, 231, on the difficulty of defining relevant criteria for judicial decisions. Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, 73 (1959)CrossRefGoogle Scholar, is an important attempt to define a judicial process which is “genuinely principled, resting with respect to every step… in reaching judgment on analysis and reasons quite transcending the immediate result… on grounds of adequate neutrality and generality.” He is hostile to criteria concerned with immediate results which turn the court into a “naked power organ” rather than a court of law. He describes the resultant ad hoc evaluation as the “deepest problem of our [American] constitutionalism” (pp. 15, 12).

¹⁶⁷ A related question is whether or not Canadian federalism would have had a less turbulent history if the task of judicial interpretation had been undertaken by the Supreme Court. McWhinney, Judicial Review, 73–4, provides evidence on both sides of the question, although personally doubtful that the Supreme Court would have acted differently. Glazebrook, A History of Canadian Political Thought, 258, finds no proof that the Supreme Court would have done otherwise than the Judicial Committee. MacGuigan argues that, from the evidence, it is impossible to decide whether or not the Supreme Court approved of the decisions of the Judicial Committee. “The Privy Council and the Supreme Court: A Jurisprudential Analysis,” 421. R. F. McWilliams, ‘The Privy Council and the Constitution,” 579, also doubts that the Supreme Court would have differed in its interpretation from the Privy Council. Russell, Supreme Court, 255–6, n. 5, notes the difficulty in arguing that the Supreme Court was more pro-dominion than the Privy Council. On the other hand, supporters of the Supreme Court, who note that it and the Judicial Committee usually agreed, have been cautioned not to ignore the fact that the Supreme Court had to take the previous decisions of the committee as the major premise in its thinking. MacDonald, “The Canadian Constitution Seventy Years After,” 426. Scott argues that an independent Supreme Court would have produced decisions much more favourable to the federal government. Canada Today, 77; “Development of Canadian Federalism,” 246.

¹⁶⁸ A point strongly made by W. E. Raney sixty years ago. “Justice, Precedent and Ultimate Conjecture,” 461.

¹⁶⁹ Innis, “Great Britain, the United States and Canada,” 404. Sir Allen Aylesworth told the Ontario Bar Association that “It is… no disparagement to Canadian lawyers or to Canadian judges to say that the men, or some of the men at any rate, who constitute the Judicial Bench in England, and some of the men who sit at the Council Board as members of the Judicial Committee are better read lawyers, are stronger lawyers than any men we have, either at the Bar or upon the Bench, in Canada, and in these circumstances it is a matter of actual daily practical advantage to the people of this country that they should have still the right to take to that Court their complicated cases as between citizen and citizen for final adjudication.” Address of Sir Allen Aylesworth,” 143.

Bram Thompson stated: “The reader of the Law Reports is constantly confronted with cases which the Privy Council decisions prove to have been decided in our local Courts upon the grossest misconception of even elementary principles. Indeed, some of our Courts seem to delight in rendering judgments which are, to say the least of them, utterly perverse.” “Editorial,” CUT, 41 (1921), 164. Russell notes that the early weakness of the Supreme Court inhibited moves to abolish appeals. Supreme Court, 24.