The Captive Court: A Study of the Supreme Court of Canada

Robert A. Kominar is a lecturer in the Department of Law and Justice at
Laurentian University.

If Canada is fairly criticized as being the country with too much
geography and too little history, then the province of legal history is
in even more dire straits. A particularly glaring example of
inattentiveness to our legal past relates to the history of
institutions. Bushnell attempts to rectify this history of neglect by
thoroughly detailing the chronological development of the Supreme Court
of Canada. Since the advent of the Charter of Rights and Freedoms in
1982, this institution has suddenly become the focus of intense public
as well as professional interest. What many Canadians fail to appreciate
is that it was not always thus. The Supreme Court of Canada has been our
final court of appeal only since 1949, and has not always been held in
high regard. It is not constitutionally entrenched as is the U.S.
Supreme Court. Although many look to that court as a role model for
ours, it plays a very different role than was ever intended for its
Canadian counterpart. Just how this different perception of our
Court’s proper institutional role came about is well canvassed in
Bushnell’s early chapters.

This book’s major failing may be unavoidable at this state of
reclaiming our legal past. The work recounts many details, both public
and behind the scenes, of cases the Supreme Court has adjudicated, but
it leaves the reader hungry for more synthesis of its material. It is
almost a cliché these days to observe that the law does not develop in
isolation from society, politics, and morals. To this end, the most
valuable history is the one that enables the reader to see both what the
lawyers and judges were doing and how their actions were part of more
pervasive social and intellectual movements. This book’s weakest point
is its author’s attempt to provide the reader with a feel for the
law’s interconnections with other areas of life. Though one has to be
careful in drawing comparisons, the intellectual approach of a legal
historian like Morton Horwitz of Harvard Law School would be a welcome
next step in the continuing development of Canadian legal history.
Nonetheless, this work is a valuable beginning.