The Lawmakers: Judidal Power and the Shaping of Canadian Federalism,. John T. ... the Privy Council (JGPG) in Canada's constitutional history has not yet.
Reviews 119 to pull The Land of Open Doors off my bookshelf to discover this information - but it takes little effort to supply these useful geographical details. Compilations such as this one will always be open to nit-pickers and bean counters, and Professors Granatstein and Hillmer are as entitled to their sense of balance and editorial style as I am to mine. For the most part, I enjoyed the immediacy ofthe entries they chose to publish and only wish that they had cast their net a little wider and paid more consistent attention to the time and place in which the report was generated. MARGARET GONRAD University of New Brunswick
The Lawmakers: Judidal Power and the Shaping of Canadian Federalism,
John T. Saywell. Toronto: University of Toronto Press 2002. Pp. xx, 455, $60.00
There once was a time when Canadian history undergraduates were expected to navigate through at least one course dedicated to Canada's constitutional development. Admittedly, these surveys were often tinged with a self-satisfied and whiggish celebration ofthe nation's attainment of responsible government and, in time, political, military, and judicial independence, all within the benevolent ambit of English constitutional governance. Thanks in large part to the waning of 'old-fashioned' political history, these surveys have all but disappeared and one suspects that few students are saddened by the retreat. Still, as John Saywell's The Lawmakers: Judidal Power and the Shaping of Canadian Federalism ably
and provocatively demonstrates, the place ofthe Judicial Committee of the Privy Council (JGPG) in Canada's constitutional history has not yet been fully explored. Indeed, Saywell makes the case that a reappraisal of the JCPC and judicial power is overdue. This is not to suggest that scholars have ignored constitutional history but that a great deal of effort has been devoted to forwarding either the dominion or the provincialist perspective, as if one side occupied an unassailable high ground. And while Saywell favours the centrist or dominion position in these contests. The Lawmakers is not centred on retracing these well-trod constitutional paths. Rather, Saywell is primarily concerned with detailing how the jcPG's decisions in the three-quarters of a century before 1949 echoed the political and personal philosophies and prejudices of Lord William Watson and Viscount Richard Burdon Haldane. Saywell argues that these philosophies and prejudices encased in the rhetoric of dispassionate judicial finding - shaped the jGPG's judgments in place of a profound or searching comprehension of the BNA Act or the context of its creation. And once these decisions were
120 The Canadian Historical Review delivered by the JCPC, lower courts were faced with the challenge of interpreting subsequent questions in light of these idiosyncratic (and sometimes illogical) philosophies, given the patina of constitutional principle. Not surprisingly, the legacy which followed was often a tortuous one. Having framed the BNA Act's legislative context in his opening chapter, Saywell's second and third chapters establish an analytical starting point by arguing that in the decade and a half after Confederation, the provincial courts had initiated a 'made in Canada' approach to constitutional interpretation. One of the laudable attributes was that, while the provincial courts and, after the mid-i87os, the Canadian Supreme Court delivered a number of awkward decisions, they were being fashioned by an informed sense of the Canadian context. If errors were being made, at least they were 'our' errors. Indeed, Saywell writes that the members of the Canadian Supreme Court were 'overtly conscious' that constitutional interpretation had to be framed by the context of the times. Standing in the way of a full articulation of this Canadian approach to constitutional interpretation was the right of appeal to the Judicial Committee of the Privy Council - a right that 'imprisoned' Canada until after the Second World War. The nature of this imprisonment is detailed in Saywell's sixth and seventh chapters examining Watson's and Haldane's legacies as the dominant figures on the jCPC from 1889 to 1928. Admittedly, their approach to Canadian constitutional questions was, in the very least, striking. Eschewing the need to draw on the historical or contemporary context in interpreting the BNA Act - or more accurately, rejecting the context offered up by proponents of the dominion interpretation of the constitution - Watson and Haldane felt no such rein when it came to importing their own sense of relevant context. As a result, while Watson and Haldane consistently portrayed their own approach as reflecting a strict application of the principles underlying the BNA Act, Saywell describes these judgments as being idiosyncratic and problematic. The residual authority vested in the dominion government was stripped of nearly all substance in favour of a broad and, to some eyes, an overly aggressive application of the provincial jurisdiction over property and civil rights. Saywell's view on the consequences is undiluted. Referring to Lord Haldane, Saywell claims: 'He diminished the residual clause, and the power and scope of his enumerations, and elaborated a concept of federalism based on the theoretical, historical, and legal supremacy of the provinces. At times, his observations and arguments were, if he meant and understood what he said, historically and legally absurd.' Writing of a topic too often bruised with tangled
Reviews 121 verbiage and contrived rationalization, Saywell's direct appraisal is refreshingly forthright. Saywell's eighth chapter, entitled 'Lord Sankey and 'Progressive Constructionism,' 1929-1935,' occupies a crucial place within The Lawmakers. Here we encounter John Sankey, who, as lord chancellor from 1929 to 1935, demonstrated that the 'problem' with appeals to the jcPC was not rooted in the inability of the tribunal to understand either the Canadian context or the real implications of the JCPC's decisions. Rather, Sankey sought out 'big, working principle[s]' to guide constitutional adjudication so that the court would no longer see 'its task as the protection of provincial autonomy in the face of federal aggression, but one examining the concrete issues before the court in the context of a document designed to give the country a workable modern constitution.' Sankey's example suggests that had the law lords been willing to comprehend the Canadian context and history, the imperial tribunal may well have avoided the distortions authored by Watson and Haldane. Still, Sankey's actual influence was limited since the precedential weight of Watson's and Haldane's jurisprudence had long since closed off alternative approaches. Thus, while the proponents of the dominion government's New Deal legislation bolstered their hopes by keeping a weathered eye on Sankey's presence on the court, those same proponents were still fighting an uphill battle against Watson's and Haldane's decisions of the previous half-century. And when the New Deal appeals finally reached the jcPC, Sankey had already resigned in favour of Lord Hailsham, who, in turn, suffered a debilitating stroke in 1936. The new senior law lord was Lord Atkin, whose animosity towards the extension of power on behalf of a central government, obstinate personality, and commitment to the unifying force of the JCPC within the empire all but assured judicial defeat for those forwarding the dominion position and drawn towards Sankey's sense of the world. Saywell's final three chapters detail the JCPC's rejection of the Bennett government's New Deal legislation and the consequent setting in motion of the process to end appeals to England. But as he notes, terminating appeals did not sever the judicial link since, for better or for worse, the Canadian courts were still bound by JCPG precedent. The shadow was long and it would not be until the late 1970s that the Canadian Supreme Court was actively shedding the fetters that had been placed on judicial reasoning. Still, it was not until the post-Charter era that, in Justice Brian Dickson's words, a 'distinctively Canadian jurisprudence' emerged. Sure to generate impassioned argument, one might daim that the greatest contribution of The Lawmakers is in treating Law Lords Watson, Haldane, and Atkins as human beings with all their foibles, peculiarities.
122 The Canadian Historical Review and, all too often, their prejudices. Despite claims to the contrary, the law lords did harbour bias and prejudice and were thus equally exposed to the frailties of those lesser men who merely occupied the lower Canadian benches. From that perspective, while those Canadian judges were just as apt to offer poorly conceived opinions, it must be acknowledged that those distant law lords, who consciously denied the need to frame their own sense ofthe BNA Act within a Canadian context, were many times more likely to arrive at contrived interpretations. That such things did colour the jCPC's approach to interpreting the Canadian Constitution provides a new generation of students with a means to understand the welter of factors shaping those decisions, rather than expecting to happen upon a well-honed constitutional principle. To that end, John Saywell has provided us with new light to explain what has been, in many cases, a series of judgments that too often seemed inexplicable. JONATHAN SWAINGER University of Northern British Columbia
Canadian State Trials. Volume 2: Rebellion and Invasion in the Canadas.
J837-1839. Edited by F. MURRAY GREENWOOD and BARRYWRIGHT. Toronto: 'The Osgoode Society and University ofToronto Press 2002. Pp. xii, 502. $75.00 This collection of essays on the trials stemming from the Canadian rebellions of 1837 and 1838 is the second of four 'state trials' volumes planned by the Osgoode Society for Canadian Legal History and the University of Toronto Press. 'The first volume appeared in 1996 and covered state trials from across British North America between 1608 and 1837. 'The future volumes are tentatively planned to discuss .trials that took place, respectively, from the Fenian invasions to the First World War and from the Winnipeg General Strike to the October Crisis. This second volume is unique in the series for its short temporal coverage and for its limited focus on trials that occurred in the Canadas alone. The editors, F. Murray Greenwood (who passed away during the final preparation of the collection) and Barry Wright, suggest that an entire volume is needed on the prosecutions stemming from the rebellions because these trials represent 'what is arguably the most serious statesecurity crisis in Canadian history,' when over 350 persons were tried for treason or other serious political offences. They point out that despite the substantial historiography on the rebellions, 'the legal dimensions have been relatively neglected,' and the collection offers 'the first comprehensive examination ofthe trial proceedings and related legal aspects ofthe
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