The Lawmakers: Judicial Power and the Shaping of Canadian Federalism

Christopher English is a professor of history at Memorial University of
Newfoundland and the author of A Cautious Beginning: The Emergence of
Newfoundland’s Supreme Court of Judicature in 1791–92.

Critics of judicial lawmaking claim that the courts have overreached
themselves in making new law when that function properly and exclusively
belongs to Parliament. The stridency of these attacks has increased
since the adoption of the Canadian Charter of Rights and Freedoms in
1982, but this closely argued study shows that they date back to
Confederation in 1867. After 1875, the Supreme Court, sometimes at odds
with the Judicial Committee of the Privy Council in London—the final
court of appeal for contested Canadian cases until 1949—attempted to
define the constitutional jurisdictions of the federal government and
the provinces demarcated in sections 91 and 92 of the Constitution Act,
1867.

Within this contested jurisdictional framework, the author offers a
detailed examination of decided cases, and informed, often entertaining,
discussion of the legal values, personal motives, and styles of judging
of the three judicial lords—Watson, Haldane, and Atkin—who dominated
the Judicial Committee between 1889 and 1928.

If there were “villains and saviours” among these judicial
lawmakers, we certainly know who they were at the end of this exhaustive
study. The Judicial Committee erred in restricting federal powers, both
defined (trade and commerce, the criminal law) and undefined (peace,
order and good government, and the residual powers that fell to Ottawa
if they were unenumerated as a provincial power under section 92).

There was a temporary correction under Lord Sankey (1929–35), who
announced in Edwards (1929) that the Canadian constitution was a
“living tree” that should reflect the evolving values and context of
the age. Saywell welcomes this approach, which was endorsed by the
Supreme Court after it became the final court of appeal in 1949. But he
expresses misgivings about the extent of federal power discerned by an
activist court in four recent decisions. Could the federal government
rejig the Senate? Enforce wage and price controls? Unilaterally patriate
the Constitution? Set the ground rules for Quebec’s secession? Saywell
concludes that the Court reached “far beyond the law to place a
judicial stamp on what it considered the fundamental principles and
values of Canadian federalism.”

However, supporters of the Court’s initiatives can respond that
government referred these questions to the Court. When Parliament speaks
legally and unambivalently, judges follow. When, intentionally or by
omission, it does not, then judges speak for it. Ultimately, the
political trumps the legal.