The Supreme Court of Canada and Judicial
Legitimacy: The Rise and Fall of
Chief Justice Lyman Poore Duff
R. Blake Brown*
Legal
institutions often seek to achieve
legitimacy
through connections to prominent members of the legal profes-
sion. Sir Lyman Poore Duff, a member of the Supreme Court of
Canada from 1906 to 1944, was heralded as one of the greatest
jurists in Canada’s legal history during the 1930s and 1940s.
His reputation helped engender confidence in and provide le-
gitimacy to the Supreme Court of Canada.
During the Court’s period of transition leading up to the
end of appeals to the Judicial Committee of the Privy Council
in 1949, Duff emerged as a justice thought capable of leading
an independent Court. Although arguably only an adequate ju-
rist, Duff’s educational, ethnic, class, and religious background
were of the kind required of an authoritative legal figure during
this period. Through his work Duff simultaneously symbolized
Canada’s independence and its imperial ties to English law.
Allusions to British justice and English legal traditions instilled
confidence that an independent Supreme Court would be capa-
ble of adjudicating cases concerning Canada’s Constitution af-
ter the elimination of Privy Council appeals. Duff thus served to
link the former Dominion of the British Empire and the new
and independent Canada of the future.
Although his final day as Chief Justice was said to mark
a “milestone in the legal history of Canada”, Duff’s stature in
the Canadian legal community declined significantly after
World War 11. As the Court’s focus on federalism issues gave
way to an emphasis on “rights-protection,” Duffs influence as
a jurist faded into the shadows of legal history.
Les institutions ligales cherchent souvent A obtenir leur I-
gitimit6 en citoyant d’importantes personsalitis de In profession
juridique. Sir Lyman Poore Duff, membre de In Cour supreme du
Canada de 1906 A 1944, a t dsign6 comme l’un des plus grands
juristes de l’histoirejuridique du Canada des annies trente et qua-
rante. Sa rputation a aid6 A engendrer In conflance dans Ia Cour
suprme du Canada et lui dorner sa ligitimit&
Pendant Ia pdriode de transition de In Cour menant A la
fin des appeis au Comit6 Judiciaire du Couseil Priv6 en 1949,
Duff se rdvdla Etre un juge capable de diriger une cour ind6-
pendante. Bien que
‘on puisse soutenir que Duff n’est qu’un
juriste ad~quat, son &ucation et ses acquis ethnique, religieux
et des diffirends de classes 6talent de ceux exigds d’un person-
nage d’autorit6 juridique de l’dpoque. Par son travail, Duff a
symbolis6 a la fois l’inddpendance du Canada mais aussi les
liens impriaux avec le droit anglais. Des allusions lIa justice
britannique et aux traditions lIgales anglaises ont inspir Ia con-
fiance qu’une cour supreme indipendante serait capable de ju-
ger des causes concemant la Constitution du Canada, et ce,
meme apris l’61imination des appels au Conseil Priv& Duff a
ainsi servi de lien entre l’ancien domaine de l’Empire britanni-
que et le Canada nouveau et indpendant.
Mme si l’on dit de ses demiers jours en tant que juge en
Chef qu’ils font figure de jalons das l’histoire 16gale du Ca-
nada>, l’importance de Duff dans a communaut6 ligale a con-
sidirablement didlin6 apris Ia Deuxime Guerre Mondiale.
Alors que la Cour accordait un
la
protection des droits, l’influence de Duff, juriste, s’6vanouissait
dans les ombres de l’histoirejuridique.
importance particuliare
. B.A. (Acadia), M.A. (York), LL.B. (Toronto), M.A. (Toronto), Ph.D Candidate (Dalhousie). This
paper was revised during the author’s tenure as a Visiting Researcher at Harvard Law School in 2000-
2001. The author gratefully acknowledges the financial support of the Social Sciences and Humani-
ties Research Council of Canada and the Izaak Walton Killam Trust. For their support and insightful
comments, thanks are owed to John Saywell, Ian Bushnell, Shirley Tillotson, Jennifer Llewellyn, Viv
Nelles, R.C.B. Risk, Philip Girard, and the students in York University’s 1998-1999 graduate history
course on Public Memory and Popular Culture. An earlier version of this paper was presented at the
Department of History Graduate-Faculty Seminar Series at Dalhousie University.
McGill Law Journal 2002
Revue de droit de McGill 2002
To be cited as: (2002) 47 McGill L.J. 559
Mode de rdf&ence: (2002) 47 R.D. McGill 559
560
MCGLL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 47
Introduction
I. The Supreme Court’s Need for a Legitimating Figure
I1. Lyman Poore Duff (1865-1955)
IIl. Requirements Necessary to Legitimate the Court
A. Personal Characteristics
B. Professional Characteristics
1. Duff and British Justice
2. Duff and Canadian Nationalism
3. Duff’s Perceived Constitutional Expertise
4.
If Not Duff?
Conclusion
2002] R. BLAKE BROWN- THE RISEAND FALL OF CHIEF JUSTICE DUFF
561
Great figures make history no less by the myths we
create about them than by their actual contributions to
the content and spirit of our intellectual life.’
Introduction
Perhaps no profession makes a greater use of history and traditions than the legal
community. Robes, wigs, ritualized courtroom procedures, and ancient Latin terms
have established the majesty of the court to the common citizen, and validated law
courts through a demonstration of antiquity Legal institutions also gain legitimacy
through connections to symbolically important members of the legal profession. The
Supreme Court of the United States, for example, claims “founding fathers” such as
Justices John Marshall and Oliver Wendell Holmes. Marshall’s reign as Chief Justice
from 1801 to 1835 established the U.S. Supreme Court’s reputation and role in judi-
cial review. The U.S. Court’s early membership had been bedeviled “by uncertainties
about their own status in the young American polity” ‘3 Marshall, however, ended this
uncertainty. He has been portrayed as an ardent defender of the American constitution
who “invented American constitutional law”‘ and enunciated principles that preserved
individual liberties protected by the Constitution by strengthening the judiciary’s
power over the legislative branch of government.’ The perception of Holmes as a
“great” judge stemmed from culturally and intellectually fortuitous circumstances in
which Progressive legal scholars in the first half of the twentieth century wished to
further the type of anti-formalist views attributed to Holmes.’ As G. Edward White
tells us, “Progressives considered Holmes’s exposure of the deficiencies of abstract
judicial reasoning and his tolerance for the programs of legislative majorities to be
‘ D. Rosenberg, The Hidden Holmes: His Theory of Torts in History (Cambridge, Mass.: Harvard
University Press, 1995) at 169.
2 For a classic account of how the majestic appearance of courts helped validate eighteenth-century
English criminal law, see D. Hay, “Troperty, Authority and the Criminal Law” in D. Hay et al., eds.,
Albion’s Fatal Tree: Crime and Society in Eighteenth Century England (London: A. Lane, 1975) 17
at 26-31.
‘ R.G. McCloskey, The American Supreme Court, 2d ed. (Chicago: University of Chicago Press,
1994) at 35.
‘ C.F Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence, Kan.: Uni-
versity Press of Kansas, 1996) at 212.
‘ See EN. Stites, John Marshall: Defender of the Constitution (Toronto: Little, Brown & Co., 1981).
6 See G.E. White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford Uni-
versity Press, 1993) at 354-77; D.A. Hollinger, “The ‘Tough-Minded’ Justice, Jewish Intellectuals,
and the Making of an American Icon” in R.W. Gordon, ed., The Legacy of Oliver Wendell Holmes, Jr
(Stanford: Stanford University Press, 1992) 216.
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[Vol.47
manifestations of judicial statesmanship of the highest order.’7 Justices such as Mar-
shall and Holmes represented American legal, social, and cultural ideals, and, in so
doing, validated the U.S. Supreme Court and established the authority of its decisions.
Though its history is much shorter than that of its American counterpart, the Su-
preme Court of Canada has also had justices who helped establish its legitimacy.’
Foremost among them is Sir Lyman Poore Duff, a member of the Supreme Court
from 1906 to 1944, whom the Canadian legal community celebrated during the 1930s
and early 1940s as the greatest jurist in Canada’s history. Duff’s role in lending credi-
bility to the Court may at first appear anachronistic given that the Court was already
fifty-five years old in 1930. As Canada’s imperial ties to Britain weakened, however,
the end of appeals to the Judicial Committee of the Privy Council (“Privy Council”)
became plausible, and the Court came closer to independence. The “modem” Su-
preme Court needed a “great” figure. Just as the U.S. Supreme Court required a sym-
bolic figure following its break with England, so too did the Canadian Supreme Court
as the end of Privy Council appeals neared.
This article will explore Duff’s role in legitimating the Supreme Court of Canada
during the period of transition leading to the end of Privy Council appeals in 1949.
My purpose is not to present a biography of Duff (which has been done before),9 nor
‘ G.E. White, “The Rise and Fall of Justice Holmes” (1971) 39 U. Chi. L. Rev. 51 at 59 [hereinafter
White, “Justice Holmes”]. White, however, indicates that the perception that Holmes supported Pro-
gressive goals relied on a particular interpretation of Holmes’ judicial thought. By the early 1930s,
Holmes
stood on the threshold of deification. … To observers of progressive persuasion his
sense of the impermanency of ideas and intellectual axioms became “realism” or “so-
ciologial jurisprudence”; his willingness to defer to the wishes of those holding posi-
tions of political power became a belief in social experimentation; his tendency to be-
lieve that social upheavals were infrequent and that words alone rarely threatened the
fabric of society became a faith in free speech; his general indifference to social prob-
lems and political issues became enlightened judicial self-restraint. He lacked only a
historical vindication of his attitudes toward judicial decision making and political ar-
rangements-which, after 1931, he received.
(Ibid. at 61.)
‘ By “legitimacy” I mean something akin to “credibility”. Thus, “judicial legitimacy” refers to the
belief by the public and legal profession that the judiciary is capable, learned, and attentive to the task
of judging. By legitimacy I do not intend to raise general philosophical questions concerned with the
rule of law. Such questions may include whether a judge in a particular case made an illegitimate de-
cision by stepping beyond the court’s jurisdiction and into, for instance, the political realm, or whether
the very idea of judicial review is legitimate.
‘ A British Columbia lawyer, David Ricardo Williams, building upon the research of Richard
Gosse, published two articles and a biography of Duff. R. Gosse, “The Four Courts of Sir Lyman
Duff” (1975) 53 Can. Bar Rev. 482 [hereinafter Gosse, “Four Courts”]; R. Gosse, “Random Thoughts
of a Would-be Judicial Biographer” (1969) 19 U.T.L.J. 597; D.R. Williams, Duff. A Life in the Lmv
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
563
to attack Duff’s reputation, but to understand Duff’s role in the Supreme Court’s in-
stitutional history, and the reasons why his reputation grew in the 1930s and early
1940s. My project here is similar to that undertaken by G. Edward White, who, in his
study of the changing image of Oliver Wendell Holmes, Jr., sought to “emphasize the
complexity of the process by which the reputation of a judge is established*” This ar-
ticle argues that Duff’s short-lived fame in the 1930s and 1940s resulted from the in-
creasing likelihood of the abolition of appeals from the Supreme Court of Canada to
the Privy Council. To overcome the traditionally poor reputation of the Court, the Ca-
nadian legal community required a justice who appeared capable of leading an inde-
pendent Supreme Court. Duff, though arguably only an adequate jurist, served as a
legitimating figure for the Court during the 1930s and early 1940s owing to his edu-
cational, ethnic, class, and religious background. Commentators also emphasized his
(Vancouver University of British Columbia Press, 1984) [hereinafter Williams, Duft]; D.R. Williams,
“Begbie & Duff JJ” (1985) 43 Advocate 749; D.R. Williams, “The Political Career of Sir Lyman
Poore Duff” (1984) 6 Supreme Court L.R. 414. W.K. Campbell was a personal assistant and friend of
Duff in his later years who published his memories of Duff. W.K. Campbell, ‘Ihe Right Honourable
Sir Lyman Poore Duff, P.C., G.C.M.G.: The Man as I Knew Him” (1974) 12 Osgoode Hall L.J. 243.
Other justices of the Canadian Supreme Court have also published short pieces based upon their
recollections of Duff. See .Rand, “Rt. Hon. Sir Lyman Poore Duff, G.C.M.G., 1865-1955” (1955)
33 Can. Bar Rev. 1113; T. Rinfret, “Sir Lyman Duff’ (1955) 2 U.B.C. Legal Notes 337.
There have also been several attempts to unpack Duff’s judicial philosophy. Articles by Lionel
H. Schipper, Richard Gold, and a future justice of the Supreme Court, Gerald LeDain, dissect Duff’s
judicial reasoning. Their concern is not with Duff the man, but with the intellectual coherence of his
judicial decisions. L.H. Schipper, ‘The Influence of Duff C.J.C. on the Trade and Commerce Power”
(1956) 14 U.T. Fac. L. Rev. 1; R. Gold, “Sir Lyman Duff and the Fork in the Road” (1988) 46 U.T.
Fac. L. Rev. 424; G. LeDain, “Sir Lyman Duff and the Constitution” (1974) 12 Osgoode Hall L.J.
261.
Collectively, these efforts adequately chronicle Duff’s career and judicial approach but fail to in-
terrogate why he became a symbol of the Canadian legal profession during the 1930s.
‘0 White, “Justice Holmes”, supra note 7 at 55. See also G.E. White, “The Canonization of Holmes
and Brandeis: Epistemology and Judicial Reputations” (1995) 70 N.YU. L. Rev. 576. In his study of
Benjamin Cardozo, Richard Posner undertook a similar task. R.A. Posner, Cardozo: A Study in
Reputation (Chicago: University of Chicago Press, 1990) at 58-69. He characterizes this type of study
as “the sociology of reputation”, the task of which is to examine the “nature of reputation and how it
is affected by merit, exploitation, accident, and politics:’ R.A. Posner, “Judicial Biography” (1995) 70
N.Y.U. L. Rev. 502 at 520, n. 53.
Analyses of judicial reputations are somewhat uncommon; studies of the reputations of artistic
figures are more numerous. See e.g. RE. Kapsis, “Reputation Building and the Film Art World: The
Case of Alfred Hitchcock” (1989) 30 Soc. Q. 15; G.E. Land & K. Lang, “Recognition and Renown:
The Survival of Artistic Reputation” (1988) 94 Am. J. Soc. 79; J. Rodden, The Politics of Literary
Reputation: The Making of and Claiming of ‘St. George’ Orwell (New York: Oxford University Press,
1989); G. Taylor, Reinventing Shakespeare: A Cultural History, From the Restoration to the Present
(New York: Weidenfeld & Nicolson, 1989); J. Tompkins, “Masterpiece Theater. The Politics of
Hawthorne’s Literary Reputation” (1984) 36 Am. Q. 617.
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connections to the traditions of British justice, but, in addition, took pains to portray
Duff as a loyal Canadian, whose long judicial tenure, work on royal commissions, and
perceived expertise in constitutional law ensured that Canada and its constitution
would be in good hands if Privy Council appeals ended.” This article supports these
conclusions through a four-part discussion that establishes the need for a legitimating
judicial figure in Canada during the 1930s; provides a short biography of Duff; sug-
gests which personal, professional, and jurisprudential factors permitted Duff to pro-
vide credibility to the Supreme Court; and, finally, explores why Duff’s stature in the
Canadian legal community declined after World War II.
I. The Supreme Court’s Need for a Legitimating Figure
In explaining why Duff became an important judicial figure for the Canadian Su-
preme Court during the 1930s, it is first necessary to have a basic understanding of the
history of the Court, its changing role in Canadian society, and the emerging trends in
constitutional and legal analysis that by the 1930s strengthened the movement to end
appeals to the Privy Council.
The British North America Act, 1867 (“BNA Act”) gave the Dominion govern-
ment responsibility for creating a “General Court of Appeal for Canada”,’ 2 and an
1875 act of Parliament established such a court.” The original Court consisted of six
justices. Lacking its own accommodations, the Court operated from rooms in the Par-
liament buildings for its first five years. In 1882 the Supreme Court moved into a re-
” Canadian legal historians have explored the topic of judicial legitimacy in Canada in other con-
texts. Philip Girard investigated the Supreme Court of Nova Scotia’s quest for legitimacy in the period
between 1850 and 1920. He argues that the establishment of responsible government in 1848 de-
mystified the colony’s judiciary and laid bare the political patronage behind many appointments by
vesting the responsibility for choosing judges from the imperial government to the colonial. The res-
toration of the court’s image employed three strategies: “[A] greater insistence on the professional at-
tainments of aspirant judges and a slow suppression of the more obvious manifestations of patronage;
the creation of an ‘official’ history for the court and its judges; and an emphasis on imperial linkages
in the form of knighthoods, lifestyle, and imagery.’ P. Girard, ‘The Supreme Court of Nova Scotia,
Responsible Government, and the Quest for Legitimacy, 1850-1920” (1994) 17 Dal. L.J. 430 at 435-
36. These tools of legitimation, particularly the first and third, also appear in the descriptions of Duff
during the 1930s, though Canada in 1935 was a different place than Nova Scotia at the beginning of
the twentieth century, and these social, political, and cultural differences were reflected in the par-
ticular efforts to strengthen the reputation of the Supreme Court of Canada.
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 101.
“Supreme and Exchequer Court Act, S.C. 1875, c. 11. See I. Bushnell, The Captive Court: A Study
of the Supreme Court of Canada (Montreal & Kingston: McGill-Queen’s University Press, 1992) at
14 [hereinafter Bushnell, Captive Court].
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
565
furbished building formerly used as a stable and workshop,” remaining in this loca-
tion until moving into the present Supreme Court building in 1946. The Supreme
Court, however, was not a highly respected institution during the late nineteenth and
early twentieth centuries. The legal community held the Court in low esteem for at
least four reasons. First, the Court was unable to select which cases it would hear. For
example, if a civil dispute involved a sum of money above a predetermined amount,
the justices, unlike today, were required to hear the dispute, regardless of whether the
case raised new or contentious legal issues. Second, the “Supreme” Court was gener-
ally not the last court of appeal for Canadians.” Litigants dissatisfied with its decision
could appeal to the Privy Council in London, a body composed of English judges and
a select number of jurists from across the British Empire. Third, Canadian lawyers did
not respect the Supreme Court because many litigants could appeal cases directly
from provincial appellate courts to the Privy Council, thus by-passing the Supreme
Court and removing one expensive level of litigation.” Last, the Court was often criti-
cized for the poor quality of its membership. This critique stemmed from the percep-
tion that English legal training was superior to Canadian, and from the reluctance that
many of Canada’s leading lawyers expressed to nominations for appointment to the
Court because of its comparatively poor salary and the sense that the Court was weak
and ineffectual.’7
Articles in Canada’s legal journals indicate the lack of respect given to Canada’s
highest court in the 1920s. Writers often focused on the Court’s inability to attract the
” According to J.G. Snell and F Vaughan, the “building’s origins were a source of denigration of
the Court over the next fifty years and more” J.G. Snell & F. Vaughan, The Supreme Court of Can-
ada: History of the Institution (Toronto: University of Toronto Press for the Osgoode Society, 1985) at
49.
” In 1888 Parliament abolished appeals to the Privy Council in criminal cases by An Act Further to
Amend the Lmv Respecting Procedure in Criminal Cases, S.C. 1888, c. 43, s. 1. However, the Privy
Council struck down this legislation in 1926, reasoning that the Canadian Parliament did not have the
authority to interfere with the Privy Council’s jurisdiction to hear appeals from Canada. Nadan v. The
King, [1926] A.C. 482, [1926] 2 D.L.R. 177, [1926] 1 W.W.R. 801 (P.C.). Following the Statute of
Westminster, 1931 (U.K.), 22 Geo. V, c. 4, reprinted in R.S.C. 1985, App. 11, No. 27, the Canadian
government re-enacted the limitation on appeals to the Privy Council in criminal cases; this legislation
was then upheld by the Privy Council in British Coal Corporation v. The King, [1935] A.C. 500,
[1935] 3 D.L.R. 401, [1935] 2 W.W.R. 564. For discussions of these developments, see D. Gibson,
“Development of Federal Legal and Judicial Institutions in Canada” (1996) 23 Man. L.J. 450 at 480-
83 [hereinafter Gibson, “Development of Institutions”]; J.D. Krikorian, “British Imperial Politics and
Judicial Independence: The Judicial Committee’s Decision in the Canadian Case Nadan v. The King”
(2000) 33 Can. J. Pol. Sci. 291.
6 Of the 667 appeals that went to the Privy Council from Canada, 253 had been heard by the Su-
preme Court and 414 came directly from the provincial courts of appeal. P. McCormick, Supreme at
Last: The Evolution of the Supreme Court of Canada (Toronto: James Lorimer & Co., 2000) at 9.
” Snell & Vaughan, supra note 14 at 23-24.
566
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best legal minds. In 1920, for example, the Canada Law Journal argued that if “Can-
ada were ready to induce the best talent of the various Bars to accept judicial posi-
tions” then
there might be much strength in the contention that we should have our final
Court of Appeal in Canada, and the right of appeal to the Judicial Committee
confined to constitutional cases. It is significant, however, that the Supreme
Court of Canada (with very few notable exceptions in respect to some of the
Judges), has for years been so unsatisfactory that, in the result, an appeal is
chiefly taken to that tribunal when, by reason of the amount involved, it cannot
be taken to the Judicial Committee.’
Critics of the Court also believed that Canadian legal training was not comparable to
English legal education, resulting in poor quality Canadian jurists.’9 Appeals to the
Privy Council should remain, the Canada Law Journal wrote in 1921, because Can-
ada “cannot expect to turn out men who are the equals of those whose university
training rounded out by the traditions of the English Bench and Bar incline [them] to
master and solve their problems. “‘ The political patronage underlying many judicial
appointments was also cause for criticism.’ Thus, judges “have not, in many cases,
been chosen for eminent legal ability, but because they had a political claim on the
party that has for the time the appointing power reposed on it “‘ 2 A.C. Galt, a justice of
the Manitoba Court of King’s Bench, concluded that the Court’s poor quality was re-
flected by the Privy Council’s having overturned twenty Supreme Court decisions in
the ten years prior to 1921.3
Most Canadian lawyers were unconcerned about the perceived weakness of the
Court during the late nineteenth and early twentieth centuries. The imperial ties to
Britain placated concerns-why was a strong Supreme Court necessary when Cana-
dians could appeal to the Privy Council, one of the greatest judicial bodies in the em-
pire? The Privy Council, the Lieutenant-Governor of Saskatchewan suggested in
1923, was “the outstanding court in the world as to the territory and population over
“8 “The Judicial Committee of the Privy Council” (1920) 56 Can. L.J. 216 at 216.
‘9 A.C. Cairns, “The Judicial Committee and Its Critics” (1971) 4 Can. J. Pol. Sci. 301 at 344, n.
169.
‘o “Privy Council Appeals” (1921) 57 Can. L.J. 164 at 165.
“1 Of the forty justices appointed before 1949, twenty-two had been politicians. On the role of pa-
tronage in the selection of Supreme Court justices, see PH. Russell, The Judiciary in Canada: The
Third Branch of Government (Toronto: McGraw-Hill Ryerson, 1987) at 113-16; J. Simpson, Spoils of
Power: The Politics of Patronage (Toronto: Collins, 1988) at 305. On the Canadian tradition of pa-
tronage in judicial appointments, see generally W.H. Angus, “Judicial Selection in Canada-The
Historical Perspective” (1967) 4 Can. Legal Stud. 220; G.T. Stewart, “Political Patronage under Mac-
donald and Laurier, 1878-1911” (1980) 10 Am. Rev. Can. Stud. 3 at 8-9.
22 “Appeals to the Privy Council” (1920) 40 Can. L.T. 259 at 260.
23A.C. Galt, “Appeals to the Privy Council” (1921) 41 Can. L.T. 168 at 170.
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
567
which it has jurisdiction, the systems of law which it expounds and the selection it has
of judges.”2’ Unlike the U.S. Supreme Court, which quickly established itself out of
necessity following the American War of Independence, the Canadian Supreme Court
remained limited by its colonial tether. Rather than attempt to create an independent
Canadian jurisprudence, Canadian lawyers and judges demonstrated considerable
faith in the value of British legal practices, institutions, and judicial reasoning. This
adherence to imperial legal traditions-that is, to ‘British justice’-was important. As
Greg Marquis suggests, any historical “study of Canadian attitudes towards the law
and the uses of the legal system must begin with the English cultural heritage, par-
ticularly the powerful view of British institutions as the bulwark of liberty “‘
The praise heaped upon Lord Richard Haldane during the 1920s is indicative of
the extent to which English Canadians accepted the idea of British justice and the role
of the Privy Council. During this period, Canada’s lawyers considered Haldane to be
the British Empire’s greatest expert on Canadian constitutional law. After his ap-
pointment to the Privy Council, Haldane wrote several famous decisions, including
Board of Commerce,6 Fort Frances, and Snider.’ These decisions became touch-
stones for critics of the Privy Council during the 1930s, 9 but in the preceding decade
most Canadian legal professionals held Haldane in high esteem. For example, soon
after Haldane’s death in 1928, W.P.M. Kennedy of the University of Toronto recalled
Haldane’s “high conception of duty” and “old-world courtesy”.. . ‘There is little ne-
cessity for readers of this Review to write anything of the great legal qualifications of
the late Lord Haldane,” Kennedy surmised, because Haldane’s “position” as lawyer
and jurist is secure with the ages-among the outstanding of the profession.”‘
Canadian legal professionals were also relatively unconcerned about the quality
of the Supreme Court prior to the late 1920s because most Canadian lawyers ap-
proved of the Privy Council’s approach to Canadian constitutional cases. The politi-
cians who drafted the BNA Act divided legislative responsibility between the Domin-
ion and provincial governments. As the ultimate court of appeal for Canadian cases,
the Privy Council determined whether the Dominion or provincial governments pos-
4 H.W. Newlands, ‘Appeals to the Privy Council” (1923) 1 Can. Bar Rev. 814 at 814.
2 G. Marquis, “Doing Justice to ‘British Justice’: Law, Ideology and Canadian Historiography” in
W.W. Pue & B. Wright, eds., Canadian Perspectives on Law and Society: Issues in Legal History
(Ottawa: Carleton University Press, 1988) 43 at 45.
26 Re Board of Commerce Act, 1919, and the Combines and Fair Prices Act, 1919, [1922] 1 A.C.
191, 60 D.L.R. 513, [1922] 1 W.W.R. 20 (P.C.).
‘Fort Frances Pulp and Power v. Manitoba Free Press, [1923] A.C. 695, [1923] 3 D.L.R. 629
2’Toronto Electric Commissionerv. Snider, [1925] A.C. 396, [1925] 2 D.L.R. 5 (P.C.).
See below, text accompanying notes 99-101.
W.P.M. Kennedy, “Lord Haldane-A Personal Note” (1928) 6 Can. Bar Rev. 567 at 569.
(PC.).
“‘ Ibid. at 567.
568
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sessed the legal right to legislate on a particular issue under the BNA Act. Politicians
driven by nationalistic concerns occasionally attempted to establish the Supreme
Court as Canada’s last court of appeal,32 but for the most part the legal community was
unsupportive of these attempts and accepted the Privy Council’s role as the ultimate in-
terpreter of the division of powers.3
It is generally agreed that formalist methods of legal reasoning affected the inter-
pretation of the BNA Act during the late nineteenth and early twentieth centuries. Well
into the nineteenth century, Canadian lawyers and judges were more concerned with
the effects of decisions than with the creation of a scientific, logical set of legal doc-
trines.’ Legal formalist principles replaced this tendency during the late nineteenth
and early twentieth centuries. Legal formalism was marked by a strong belief that law
was composed of scientific legal rules that could be discovered by a careful study and
application of legal principles; that legal rules could best be discerned and applied by
a close examination of existing decided cases; that legal documents such as legislation
and contracts spoke for themselves, such that a judge could determine their meaning
by simply looking for the “plain meaning” of the words; that sharp distinctions could
be drawn between, for example, “law” and “policy”; and that judges could impartially
hear the case before them, having no concern for the policy implications of their rul-
ings. Decisions were to be made by the application of scientific legal doctrines, not by
attempts to adjudicate cases in consideration of the policy of legal outcomes. As
Thomas C. Grey has concluded, legal formalism was characterized by the “aspiration
that the legal system be made complete through universal formality, and universally
formal through conceptual order. A few basic top-level categories and principles
formed a conceptually ordered system above a large number of bottom-level rules,”
and the “rules themselves were, ideally, the holdings of established precedents, which
32Snell & Vaughan, supra note 14 at 178ff.
‘ Articles published in the Canada Law Journal and the Canada Law imes during the 1920s indi-
cate the legal profession’s positive view of Privy Council appeals. See e.g. “The Judicial Committee
of the Privy Council” (1920) 56 Can. L.J. 89; “Appeals to the Judicial Committee of the Privy Coun-
cil” (1920) 56 Can. L.J. 171; ‘The Judicial Committee of the Privy Council” (1920) 56 Can. L.i. 216;
“Privy Council Appeals” (1921) 57 Can. L.J. 164; “Appeals to the Privy Council” (1922) 58 Can. LJ.
82; “Appeals to the Privy Council” (1922) 58 Can. L.J. 133; “Appeals to the Privy Council” (1920) 40
Can. L.T. 259; “Ontario and the Privy Council” (1920) 40 Can. L.T. 449; “Privy Council Appeals”
(1921) 41 Can. L.T. 83; “Privy Council Appeals” (1921) 41 Can. L.T. 161.
See generally G.B. Baker, “The Reconstitution of Upper Canadian Legal Thought in the Late-
Victorian Empire” (1985) 3 L. & Hist. Rev. 219. See also P. Brode, Sir John Beverley Robinson: Bone
and Sinew of the Compact (Toronto: University of Toronto Press, 1984); B.J. Hibbitts, “Progress and
Principle: The Legal Thought of Sir John Beverley Robinson” (1989) 34 McGill L.J. 454; B. Young,
The Politics of Codification: The Lower Canadian Civil Code of 1866 (Montreal: Osgoode Society
and McGill-Queen’s University Press, 1994).
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
569
upon analysis could be seen to be derivable from the principles “’35 In this way of un-
derstanding the law, judges avoided discussing policy and legislative intent, and in-
stead suggested that their decisions stemmed from value-free analytical deduction
from generalized premises.’
Several Canadian legal historians have described the effects of this way of think-
ing about the law on the determination of federalism cases. R.C.B. Risk, for example,
suggests that the legislative spheres of the Dominion and the provinces were judicially
interpreted as completely separate to ensure that judges did not overtly consider the
policy implications of their decisions. ‘ Moreover, since the BNA Act was said to speak
for itself, Canadian judges became reluctant to consider the intentions of those who
wrote the constitution. Bernard Hibbitts has summarized the effect of this jurispru-
dential trend in terms of the BNA Act:
On the level of federalism, jurisdictional boundaries between the two principal
levels of government were to be strictly enforced so as to preserve the neces-
sary degree of constitutional “balance” In this context it became clear that
judges were not to concern themselves with actual legislative intent above and
beyond the statutory language used to express it. They were not to have regard
to the general aims of the legislator or to the social consequences of particular
interpretations. They were, in sum, to separate considerations of law and policy
and keep them separate.”
The practical result of this form of legal analysis was that, beginning in the late nine-
teenth century, the Privy Council increasingly prevented the Dominion from enacting
legislation that infringed on provincial legislative jurisdictions.”
For a time, this constraint on the Dominion government seemed not to have ob-
jectionable policy implications. In particular, provincial jurisdiction in social welfare
– T.C. Grey, “Langdell’s Orthodoxy” (1983) 45 U. Pitt. L. Rev. 1 at 11.
‘ On formalism, see generally M.J. Horwitz, The Transformation of American Law, 1780-1860
(Cambridge, Mass.: Harvard University Press, 1977); P.S. Atiyah, The Rise and Fall of Freedom of
Contract (Oxford: Clarendon Press, 1979); T.C. Grey, “Modem American Legal Thought’
(1996)
106 Yale LJ. 493.
. R.C.B. Risk, “Canadian Courts Under the Influence” (1990) 40 U.T.L.J. 687 at 689 [hereinafter
Risk, “Canadian Courts”]. On the effects of formalism in Canada in this period, see also R.C.B. Risk,
“Constitutional Scholarship in the Late-Nineteenth Century: Making Federalism Work” (1996) 46
U.T.L.J. 427; R.C.B. Risk, ‘A.H.E Lefroy: Common Law Thought in Late Nineteenth-Century Can-
ada: On Burying One’s Grandfathe’
(1991) 41 U.T.L.J. 307; R.C.B. Risk, “Constitutional Thought in
the Late Nineteenth Century” (1991) 20 Man. LJ. 196; R.C.B. Risk, “John Skirving Ewart: The Le-
gal Thought” (1987) 37 U.T.LJ. 335; K. Roach, “The Administrative Law Scholarship of D.M.
Gordon” (1989) 34 McGill LJ. 1.
” B.J. Hibbitts, “A Bridle for Leviathan: The Supreme Court and the Board of Commerce” (1989)
21 Ottawa L.R. 65 at 104-05.
” Risk, “Canadian Courts”, supra note 37.
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matters was not threatened so long as relative economic stability and pre-Keynsian
economic policies meant that the Dominion government did not frequently attempt to
initiate its own social programs.
Politicians driven by nationalistic concerns occasionally attempted to establish the
Supreme Court as Canada’s last court of appeal,” but for the most part the legal com-
munity was unsupportive of these attempts. Despite some concerns about the in-
creasing limitations on the Dominion’s ability to legislate, most legal commentators
accepted the Privy Council’s interpretation of the division of powers.”
The problems with a formalist interpretation of the constitution, however, became
fully apparent after the onset of the Great Depression. Many Canadians believed that
the Dominion government was better suited than the provinces to combat the Depres-
sion-that economic and social problems should be addressed on a national scale
through the creation of new government initiatives and spending programs. 2 The for-
malist constitutional decisions of the Privy Council, however, granted the Dominion
little power to inject the Canadian economy with a government stimulant because
most broad-based initiatives would infringe on the jurisdiction of the provincial leg-
islatures. Criticism of this trend gradually grew through the 1930s and was fully real-
ized when the Privy Council found almost all of Prime Minister R.B. Bennett’s “New
Deal” legislation unconstitutional in 1937.”‘ While the Privy Council upheld a federal
act that sought to assist the ravaged prairie agricultural industry, it struck down legis-
lation that created new labour regulations, established a system of unemployment in-
surance, devised an industry competition policy, and created a method of marketing
natural products.’ As will be shown, these decisions became the focal point for many
Snell & Vaughan, supra note 14 at 144, 182-85.
4 See generally the articles cited supra note 33.
42R. Simeon & I. Robinson, State, Society, and the Development of Canadian Federalism (Toronto:
University of Toronto Press, 1990) at 75; J.L. Granatstein, The Ottawa Men: The Civil Service Man-
darins, 1935-1957 (Toronto: Oxford University Press, 1982) at 273; R. Bothwell, I. Drummond & J.
English, Canada, 1900-1945 (Toronto: University of Toronto Press, 1987) at 262.
“‘ Canada (A.G.) v. Ontario (A.G.), [1937] A.C. 326, [1937] 1 D.L.R. 673, [1937] 1 W.W.R. 299
(P.C.) [hereinafter Marketing Reference cited to A.C.]; Canada (A.G.) v. Ontario (A.G.), [1937] A.C.
355, [1937] 1 D.L.R. 684, [1937] 1 W.W.R. 312 (P.C.); British Columbia (A.G.) v. Canada (A.G.),
[1937] A.C. 368, [1937] 1 D.L.R. 688, [1937] 1 W.W.R. 317 (P.C.); British Columbia (A.G.) v. Can-
ada (A.G.), [1937] A.C. 377, [1937] 1 D.L.R. 691 (P.C.); British Columbia (A.G.) v. Canada (A.G.),
[1937] A.C. 391, [1937] 1 D.L.R. 695, [1937] 1 W.W.R. 320 (P.C.); Ontario (A.G.) v. Canada (A.G.),
[1937] A.C. 405, [1937] 1 D.L.R. 702, [1937] 1 W.W.R. 333 (P.C.). For further analysis of the hold-
ings in these cases, see W.H. McConnell, “The Judicial Review of Prime Minister Bennett’s ‘New
Deal’
(1968) 6 Osgoode Hall L.J. 39 [hereinafter McConnell, “Bennett’s ‘New Deal’].
The Farmers’ Creditors Arrangement Act, 1934, S.C. 1934, c. 53; The Natural Product Marketing
Act, 1934, S.C. 1934, c. 57; The Limitation ofHours of WorkAct, S.C. 1935, c. 63; The Weekly Rest in
Industrial Undertakings Act, S.C. 1935, c. 14; The Minimum Wages Act, S.C. 1935, c. 44; The Em-
2002] R. BLAKE BROWN- THE RISEAND FALL OF CHIEFJUSTICE DUFF
571
commentators in the 1930s,4 including critics of formalist legal analysis and the Privy
Council.
The social and economic crisis of the 1930s began to affect how Canadian law-
yers thought about the Supreme Court, the Privy Council, and conservative (i.e. for-
malist) modes of legal analysis. The inability of the Dominion to legislate effectively
led a greater number of Canadian politicians, intellectuals, and lawyers to call for the
end of Privy Council appeals.’ In a 1937 radio address, from which the Winnipeg Free
Press and Bench and Bar subsequently published excerpts, University of Manitoba
president (and former Dalhousie law professor) Sidney Smith declared, “It does ap-
pear that we cannot expect from the Privy Council an interpretation of the constitution
that will enable the Dominion to take over some of the social services and the regula-
tion of industrial activities which the provincial legislatures, with insufficient revenue,
are unable to undertake.’ The Privy Council’s New Deal decisions, Smith concluded,
were “characterized by a narrow legalism “‘ 7 Some Canadian lawyers began to suggest
that if the Supreme Court became Canada’s last court of appeal, then the judicial in-
terpretation of the BNA Act would be more attuned to the needs of Canada in the De-
pression. Traditionally, many Canadian legal professionals believed that if the Privy
Council’s judges knew little about Canada, then the Privy Council would not make
decisions with regard to the nation’s political affairs. ‘ Imbued with formalist ideas,
legal commentators in the early twentieth century, according to Alan Cairns, believed
that “the great virtue of the Privy Council was its impartiality, a product of its distance
from the scene of the controversies it adjudicated, and, unlike the Supreme Court, its
absence of any direct link with either level of the governments whose interests clashed
in the court room.”‘
By the 1930s, however, Canadian legal academics were criticizing the Privy
Council’s perceived ignorance of Canadian conditions. These critics formed part of a
Canadian legal realist movement, a group of Canadian legal academics who, like their
ployment and Social Insurance Act, S.C. 1935, c. 38; The Dominion Trade and Industry Commission
Act, 1935, S.C. 1935, c. 59.
” Cairns, supra note 19 at 325-26; P. Romney, Getting it Wrong: How Canadians Forgot Their Past
and Imperilled Confederation (Toronto: University of Toronto Press, 1999) at 169-80.
D. Owram, The Government Generation: Canadian Intellectuals and the State, 1900-1945 (To-
ronto: University of Toronto Press, 1986) at 221-53; PH. Russell, The Supreme Court of Canada as a
Bilingual and Bicultural Institution (Ottawa: Queen’s Printer, 1969) at 33 [hereinafter Russell, Su-
preme Court].
47 S.E. Smith, “Privy Council Decisions” (1937) 7:5 Bench & Bar 4 at 5.
“s See e.g. “Appeal to the Privy Council” (1921) 57 Can. LJ. 98; “Privy Council Appeals” (1921)
57 Can. LJ. 164.
4 Cairns, supra note 19 at 318.
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American counterparts, recognized that judicial decisions were inherently political.’
Dalhousie’s Vincent MacDonald and McGill’s Frank Scott were among the most
prominent Canadian legal scholars to criticize the Privy Council. In his 1935 discus-
sion of the Privy Council’s decision in British Coal Corporation v. The King, Mac-
donald asserted that constitutional interpretation “allows, and even requires” that
regard be had to the general policy of the instrument and the occasional disre-
gard of the intention of the draftsmen or the sense in which they used the words
they wrote. This is peculiarly so today when the frame of circumstances to
which the Act applies has undergone, and is undergoing, radical and rapid al-
teration.”
In the same year, MacDonald asked legislative reformers to consider how far the re-
moteness of the Privy Council “has made for impartiality, and how far it has made for
a warping of the constitution due to ignorance of Canadian conditions.”52 MacDonald
claimed in 1937 that so far “as our constitution is to be affected by judicial decisions
motivated by policy and conceived expediency it is arguable (if indeed, not demon-
strable) that its development will best be directed by a Canadian court familiar with
Canadian conditions, needs and modes of thought’ 3 Scott’s criticisms of the Privy
Council also implicitly argued that the judiciary should consider local policy needs.
“To imagine that we shall ever get consistent and reasonable judgments from such a
casually selected and untrained court [i.e. the Privy Council] is merely silly” Scott
suggested in 1937, and thus, “[t1o continue using it under the circumstances is costly
sentimentality. The Privy Council is and always will be a thoroughly unsatisfactory
court of appeal for Canada in constitutional matters; its members are too remote, too
-o R.C.B. Risk, “The Many Minds of W.PM. Kennedy” (1998) 48 U.T.L.J. 353 at 369-70. For fur-
ther discussion of this movement, see R.B. Brown, “The Canadian Legal Realists and Administrative
Law Scholarship, 1930-1941” (2000) 19 Dal. J. Leg. Stud. 36; R.B. Brown, “Realism, Federalism,
and Statutory Interpretation during the 1930s: The Significance of Home Oil Distributors v. A.G.
(B.C.)” (2001) 59 U.T. Fac. L. Rev. 1 [hereinafter Brown, “Realism”]; R.B. Brown, “Cecil A. Wright
and the Foundations of Canadian Tort Law Scholarship” (2001) 64 Sask. L. Rev. 169; R.C.B. Risk,
“Here Be Cold and Tygers: A Map of Statutory Interpretation in Canada in the 1920s and 1930s”
(2000) 63 Sask. L. Rev. 194; R.C.B. Risk, “The Scholars and the Constitution: PO.G.G. and the Privy
Council” (1996) 23 Man. L.J. 496; R.C.B. Risk, “Volume 1 of the Journal: A Tribute and a Belated
Review” (1987) 37 U.T.L.J. 193; R.C.B. Risk, “John Willis-A Tribute” (1984) 9 Dal. L.J. 521; J.E.
Bickenbach & C.I. Kyer, “The Harvardization of Caesar Wright” (1983) 33 U.T.L.J. 162; D. R6aume,
“The Judicial Philosophy of Bora Laskin” (1985) 35 U.T.L.J. 438.
” VC. MacDonald, “British Coal Corporation and Others v. The King: Three Comments” (1935)
13 Can. Bar Rev. 615 at 633 [emphasis in original].
2 V.C. MacDonald, “Judicial Interpretation of the Canadian Constitution” (1935-36) 1 U.T.L.J. 260
at 284-85.
at 427.
3 V.C. MacDonald, “The Canadian Constitution Seventy Years After” (1937) 15 Can. Bar Rev. 401
2002] R. BLAKE BROWN- THE RISEAND FALL OF CHIEFJUSTICE DUFF
573
little trained in our law, too casually selected, and have too short a tenure.’ By estab-
lishing that the Privy Council had little knowledge of Canadian conditions, Scott thus
countered the traditional view that English legal education created judges better suited
to hearing federalism cases from Canada.
The poor reputation of the Supreme Court, however, undoubtedly still gave pause
to legal critics urging the elimination of Privy Council appeals. This problem had
been noted earlier. In 1927, Charles Cahan, a Montreal Member of Parliament, advo-
cated an independent Supreme Court, but admitted, “We must give to our own Su-
preme court a higher standing, and create greater confidence in its decisions on the
part of the people of this country before we can abrogate the right of appeal to the
Privy Council.”” For advocates of ending Privy Council appeals, it was imperative to
improve the Supreme Court’s image. As will be shown, Lyman Poore Duff served as
a major symbol in this transformation of the Court’s reputation. Supreme Court histo-
rian Ian Bushnell hints at Duff’s role: “There was a need for a judicial hero at this
time and one was being created ” ‘ The remainder of this article unpacks how Duff
served as a symbolic figure in the legitimization of the Supreme Court in its ascen-
dancy to a final court of appeal.
II. Lyman Poore Duff (1865-1955)
Duff was bom in Ontario in 1865, the son of a Congregationalist minister of
Scottish and English ancestry. 7 He was active in debating societies at the University
of Toronto while pursuing Bachelor of Arts and Bachelor of Laws degrees. Upon
graduation Duff articled in Fergus, Ontario, and in 1894 Duff moved to Victoria,
British Columbia, where he became involved in the Liberal party and married. In the
small legal community of Victoria, Duff quickly gained prominence as a highly com-
petent, though uncharismatic, lawyer. An important addition to Duff’s curriculum vi-
tae came in 1903 when he was appointed a junior counsel for Canada in the Alaska
boundary dispute proceedings.
Appointed to the British Columbia Supreme Court in 1903, Duff had only three
years of judicial experience prior to his promotion to the Supreme Court of Canada in
1906 at the youthful age of forty-one. Duff took an active role in the social life of Ot-
tawa, though he did not match this social rigour with judicial stardom, composing
relatively few judgments during his first eight years on the Court.” Through the 1920s
FR. Scott, “The Consequences of the Privy Council Decisions” (1937) 15 Can. Bar Rev. 485 at
494 [footnotes omitted].
House of Comnons Debates (9 March 1927) at 1055.
Bushnell, Captive Court, supra note 13 at 256.
For the biographical information that follows, see generally Williams, Duff, supra note 9 at 47-48.
” Ibid. at 67.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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and 1930s, however, Duff wrote more judgments, particularly in the area of constitu-
tional law. In 1918, Duff received an appointment to the Privy Council. It had been a
tradition for the British government to award the Chief Justice of Canada with a seat
on the Privy Council, but Duff was an exception to this practice as he was the first
puisne justice of the Supreme Court to be so appointed. This did not mean that Duff
gave up his work on the Supreme Court; rather, Duff sat at the Privy Council when
not involved in the work of the Supreme Court, typically for approximately two
months per year.”
Duff also served on several commissions during his years at the Court. In 1916,
the Dominion government appointed Duff and the Chief Justice of Ontario, Sir Wil-
liam Meredith, to the royal commission responsible for investigating a World War I
munitions procurement scheme. Duff subsequently became involved in the First
World War conscription crisis. Appointed the Central Appeal Judge under The Mili-
tary Service Act, 1917,'” Duff determined the success of appeals for exclusion from
the draft. In 1926, he became chair of the commission responsible for dividing the as-
sets between the newly formed United Church of Canada and the Presbyterian con-
gregations that had voted against amalgamation. Duff then played a prominent role in
the Royal Commission to Inquire into Railways and Transportation in Canada (1931-
2).6″ This commission investigated the problems of transportation in Canada, inquiring
as to whether the Canadian Pacific Railway and Canadian National Railway should
combine. In his final role as a commissioner, Duff investigated the failed Canadian
military expedition to Hong Kong, ultimately absolving the King government of any
wrongdoing.
Duff received a number of personal accolades and awards following World War I.
The University of Toronto conferred on Duff the first of his nine honourary doctorates
in 1922, and he became the first Canadian-born citizen to open Parliament when the
Governor General was unavailable in 1931. While the position of Chief Justice of the
Supreme Court traditionally went to the most senior justice, in 1924 Mackenzie King
passed over Duff, partly out of concern with Duff’s drinking habits. The Dominion
government finally named Duff Chief Justice of Canada in 1933, despite continued
concerns with his fragile physical health, which was aggravated by his drinking.’ A
knighthood followed, bestowed in 1934. In 1940, the King government extended
Duff’s term three years past the mandatory retirement age of seventy-five, and King
issued a further one-year extension in 1943. Duff finally retired from the Supreme
” Ibid. at 98-100.
6′ S.C. 1917, c. 19.
6 See Royal Commission to Inquire into Railways and Transportation in Canada (1931-2) (Ottawa:
King’s Printer, 1932) (Chairman: Lyman R Duff).
6 Snell & Vaughan, supra note 14 at 146.
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
575
Court in 1944, after an unprecedented thirty-eight years on the Court, eleven as Chief
Justice.
If. Requirements Necessary to Legitimate the Court
The remainder of this article explores how portrayals of Duff that highlighted
these personal characteristics and professional experiences were used to legitimate the
modem Supreme Court. Writers portrayed Duff in less than heroic terms during the
1920s, but in the following decade descriptions of Duff changed in tone and content.
A typical description of Duff during the 1920s can be found in a 1924 Toronto Daily
Star article that focused on Duff’s Liberal Party connections more than his judicial
role. The Star noted that “Judge Duff might still be practicing law if he had not been
an ardent Liberal'”‘3 If Duff was to help validate the modem Court, however, this im-
age had to be altered-political partisans do not make for wise, impartial judges. In
the 1930s, discussions of Duff’s political involvements decreased markedly. To dem-
onstrate Duff’s competency, writers emphasized instead particular aspects of his per-
sonal and professional life. Duff’s personal characteristics, including his class, race,
gender, and religion, provided the necessary pedigree for a symbol of the modem, re-
spectable Supreme Court. In addition, legal writers used Duff’s professional capaci-
ties-including his work in commissions, at the Privy Council, and on the Supreme
Court-as evidence of his, and the Court’s, competency. In stressing these character-
istics, Duff’s image would transcend the old Court, and his reputation provided a
foundation for the establishment of an independent Canadian appellate judiciary.
A. Personal Characteristics
For the legal community to believe that any single justice could ensure the Su-
preme Court’s competency, it was necessary for such a justice to possess the right so-
cial background. Educational attainments were thus an important qualification. Well
into the twentieth century, the Law Society of Upper Canada did not require lawyers
to possess a university degree; rather, the Law Society determined membership to the
bar using a ‘guild-like’ education at Osgoode Hall in which students partook in moots
to develop advocacy skills, drafted legal documents, and watched experienced lawyers
ply their trade in Toronto courtrooms.’ As a result of this system, only half of the
63 “The Spotlight: Justice Duff” Toronto Daily Star (23 June 1924). See also Saturday Night (27
May 1916) 4, which reported that one of Canada’s major political parties was “looking to Mr. Justice
Duff as its rising hope, and talks of pulling him off the bench and making him Premier of Canada
when the time comes:’
” G.B. Baker, “Legal Education in Upper Canada, 1785-1889: The Law Society as Educator” in
D.H. Flaherty, ed., Essays in the History of Canadian Law, vol. 2 (Toronto: University of Toronto
Press, 1983) 49; C.I. Kyer & J.E. Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers,
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
576
lawyers in Ontario during the 1920s invested the extra time and expense necessary to
attain a university degree.’
[Vol. 47
Duff’s university degrees thus strengthened his claim to respectability. Duff com-
pleted Bachelor of Arts and Bachelor of Laws degrees at the University of Toronto
between 1881 and 1889, an impressive level of education for a lawyer in this period.
Even without the family connections to ensure he would move into a well-established
Upper Canadian law firm, Duff was able, by means of his education, to pass through
the permeable boundary between the middle and upper classes. As Paul Axelrod con-
cludes, late-nineteenth-century university-educated Canadians “were well positioned
for occupational and community roles that promised social prestige and relative secu-
rity”‘ In this regard, the role of educational attainments in Canada was similar to
England where, according to Eric Hobsbawm, education became “the most conven-
ient and universal criterion for determining social stratification “‘ Duff’s education
not only gave him class respectability, but allowed commentators to emphasize his
mental abilities, substantiating claims that the Supreme Court could safeguard the
administration of justice if the government ended Privy Council appeals. Celebrating
Chief Justice Duff’s well-rounded scholarly achievement, one biographical article
wrote:
One of the by-products of his thorough education is a knowledge of the higher
mathematics, to which he devoted much study at University and with which he
has kept closely in touch by reading almost all the eminent masters on the sub-
ject, thus strengthening and developing his genius for logic which displays it-
self in all his judgments. It is not too much to say that Mr. Justice Duff stands
among the very first minds in Canada in the subject of mathematics. Political
economy is also a hobby with him.”
and Legal Education in Ontario, 1923-1957 (Toronto: University of Toronto Press, 1987) at 3-36;
J.RS. McLaren, “The History of Legal Education in Common Law Canada” in R. Matas & DJ.
McCawley, eds., Legal Education in Canada (Montreal: Federation of Law Societies of Canada,
1987) 111; R.D. Gidney & W.PJ. Millar, Professional Gentlemen: The Professions in Nineteenth-
Century Ontario (Toronto: University of Toronto Press, 1994) at 70-84, 368-75.
61 C. Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797-1997 (Toronto: Uni-
versity of Toronto Press, 1997) at 196.
Toronto Press, 1997) at 88.
6P. Axelrod, The Promise of Schooling: Education in Canada, 1800-1914 (Toronto: University of
67 E. Hobsbawm, “Mass-Producing Traditions: Europe, 1870-1914” in E. Hobsbawm & T. Ranger,
eds., The Invention of Tradition (New York: Cambridge University Press, 1983) 263 at 293.
‘ “Supreme Court of Canada Judges: Rt. Hon. Lyman Poore Duff PC., K.C:’ (1932) 1 Fortnightly
L.J. 285 at 285-86 [hereinafter “Supreme Court of Canada Judges”].
2002] R. BLAKE BROWN- THE RISEAND FALL OF CHIEF JUSTICE DUFF
577
Commentators also claimed that Duff was one of the few people to understand Ein-
stein’s theory of relativity.3
Duff’s esteemed place on the Court was also tied to his ethnicity, race, gender,
and religion. As a white, Protestant man of English and Scottish decent, Duff pos-
sessed the key requirements for entry to the upper reaches of the legal profession.
Women of course faced substantial obstacles in the legal profession well into the
twentieth century,7′ and it was not until Bertha Wilson’s appointment in 1982 that a
woman sat on the Supreme Court.7′ There has never been a Native Supreme Court
justice, or a justice of African descent. Bora Laskin became the first Jewish person on
the Court, when Pierre Trudeau appointed him in 1970.’ Laskin’s ascension repre-
sented a triumph over decades of anti-Semitism.” Roman Catholics had been ap-
pointed to the Supreme Court since its inception, but explicit geographic distribution
rules governed the division of seats on the Court between French and English Canada,
as did implicit religious distribution guidelines. There were, therefore, few Catholics
appointed from provinces other than Quebec. If Duff had been Catholic, his appoint-
ment from British Columbia would have been very unlikely. The Fortnightly Law
Journal made specific mention of Duff’s religious background, noting that Duff’s re-
ligion placed him in a line of great legal minds: “Like the brilliant Osler family in
Canada, and Sir John Simon in England, Mr. Justice Duff is the product of the par-
sonage.” Having the correct gender, religion, and ethnicity, Duff could appear repre-
sentative of British legal traditions.
B. Professional Characteristics
While Duff’s personal characteristics were important factors in allowing him to
lend credibility to the modem Supreme Court, his high-profile official positions also
supra note 9 at 250.
ronto: University of Toronto Press, 2001) at 124-29.
‘ “Retired Chief Justice of Canada Passes Age 90″ Ottawa Citizen (26 April 1955) 4; Campbell,
71 Moore, supra note 65 at 202-03.
” On Wilson’s appointment, see E. Anderson, Judging Bertha Wilson: Law as Large as Life (To-
‘2 Snell & Vaughan, supra note 14 at 218.
“Moore, supra note 65 at 199-200.
74Gibson, “Development of Institutions”, supra note 15 at 491; G. Adams & PL Cavalluzzo, “The
Supreme Court of Canada: A Biographical Study” (1969) 7 Osgoode Hall L.J. 61; Russell, Supreme
Court, supra note 46.
71 “Supreme Court of Canada Judges”, supra note 68 at 285. For other references relating to Duff’s
religious background, see e.g. “The Right Honourable Lyman Poore Duff, EC” (1933) 3:4 Bench &
Bar I [hereinafter “The Right Honourable”]; “Chief Justice Reaches Seventy” (1935) 5:2 Bench &
Bar 1; “Sir Lyman P. Duff, RC., C.J.C., Presides for the Last Tune” (1943) 13 Fortnightly L.J. 145
[hereinafter “Presides for the Last Tine”]. Note that Duff was raised a Congregationalist, but in the
1920s he joined the Church of England.
578
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gave confidence to those concerned about the Court’s quality. Duff’s long judicial
service, tenure as Chief Justice, experience on commissions, and perceived knowl-
edge of the Canadian Constitution supported the perception that the Court was in
good hands.
1. Duff and British Justice
In discussions of Duff’s work, commentators stressed two seemingly contradic-
tory themes: Duff was an imperial tie to English law, and, at the same time, a symbol
of Canadian independence. Allusions to British justice and English legal traditions
helped validate the Court by guaranteeing that an independent Supreme Court would
not abuse the law after the elimination of Privy Council appeals. Just as Carl Berger
has found that Canadian imperialists “regarded history as the repository of enduring
and valuable principles” and that Canadian development had to “proceed in harmony
with these principles,”76 Canadian lawyers supported the Supreme Court’s develop-
ment, so long as it remained under the influence of English legal traditions. At the
same time, discussions of Duff’s work experience also emphasized his admirable
service to Canada, raising more than a hint of Canadian nationalism in the process.
That the Supreme Court had to represent both imperial ties and Canadian nationalism
was evident in the comments of the federal Minister of Justice at the laying of the
foundation for a new Supreme Court building in 1939. “Our Judiciary and our Bar are
greatly and justly honored, and will remain the protagonists of British ideals, of Brit-
ish traditions and of British Justice'” the Minister began, and the “massive architecture
of this new temple of supreme judicial authority, symbolizing the strength of the
bonds existing between Canadians and their institutions, will add to the beauty of our
national Capital.”‘
Canadian legal professionals firmly established Duff’s tie to British justice by
pointing to his work on the Privy Council. Having sat with some of the Privy Coun-
716 C. Berger, The Sense of Power: Studies in the Ideas of Canadian Imperialism, 1867-1914 (To-
ronto: University of Toronto Press, 1970) at 109.
“Reply of the Right Honourable Minister of Justice to the Speech of Her Majesty at the Laying of
Foundation Stone of the New Supreme Court of Canada:’ May 1939, National Archives of Canada,
MG 30, E46, vol. 3, File: Labour-Lovett. The attempt to improve the image of the Supreme Court
during the 1930s required a new building for the Court. The building used since 1882 was in poor
condition, and its size and appearance did not reflect the power and responsibility the Court would
possess after the end of Privy Council appeals. In “Supreme Court Building Living Disgrace to Can-
ada” (1936) 6:4 Bench & Bar 1 at 1, 4, the “shocking condition of the building used by the Supreme
Court of Canada” was noted. According to the journal, “prompt and effective action is absolutely
necessary if the self-respect of law-abiding Canadians is to be maintained” On the symbolism of
courthouses in Canada, see M. MacRae with A. Adamson, Cornerstones of Order: Courthouses and
Town Halls of Ontario, 1784-1914 (Toronto: Clarke Irwin, 1983).
2002] R. BLAKE BROWN- THE RISEAND FALL OF CHIEF JUSTICE DUFF
579
cil’s finest judges, Duff’s reputation was intertwined with English legal traditions.
Duff thus offered continuity between the older Dominion of the Empire and the new,
independent Canada of the future. In 1929, the Canadian Bar Review took notice of a
comment about Duff in the English legal periodical, The Solicitors’ Journal, and
proudly repeated it: “Mr. Justice Duff’s distinction as a great judge has been recog-
nised very markedly by the frequency with which he has come over to this country to
assist in the disposal of appeals from Canada ” “7 The Fortnightly Law Journal empha-
sized Duff’s connection to the empire in pointing out that Duff had attended the sit-
tings of “that august tribunal on numerous occasions” and had “written opinions for
that body which are classics in English legal literature 79 Duff’s touted competency
led the Bench and Bar to declare in 1933 that Duff “fulfills the highest traditions of
British justice.’ At the bestowment of an honourary degree on Duff in 1935 by Dal-
housie University, Vincent MacDonald, Dean of Dalhousie Law School and vocal
critic of the Privy Council, noted that all the recipients receiving honourary degrees
had “maintained zealously the honour of their profession and the proud traditions of
British Justice”
In regard to Duff, MacDonald stated that as “a member of the Judi-
cial Committee of the Privy Council he has made great and enduring contributions to
the development of the law within the Empire; and he has earned the respect of his
colleagues in that great tribunal.’ At Duff’s retirement ceremony in 1944, Aimd
Geoffrion noted that Duff raised the Canadian representatives on the Privy Council to
“a position of equality with any other member.” Somewhat ironically, then, Duff’s
place on the Privy Council increased Canadians’ confidence in their own judiciary
prior to ending appeals.’
2. Duff and Canadian Nationalism
Canadian lawyers grounded Duff’s allegiance to Canada in his work on various
commissions and the Supreme Court. While Duff’s work on commissions during the
“A Great Canadian Judge” (1929) 7 Can. Bar Rev. 395 at 395.
“Supreme Court of Canada Judges”, supra note 68 at 285.
MThe Right Honourable”, supra note 75 at 3.
S’Dalhousie University Bestows Honors” (1936) 6:9 Bench & Bar 5 at 5.
82kid at7.
‘3 “Farewell Ceremony for Sir Lyman Poore Duff, RC., G.C.M.G” (1944) 22 Can. Bar Rev. 1 at 3
[hereinafter “Farewell Ceremony”].
The emphasis on Duff as a symbol of British justice, however, did not come at the complete ex-
pense of French Canadian legal traditions. In his 1936 speech, Vincent MacDonald complimented
Duff’s ability in both common law and civil law: “In his thirty years as member of our highest na-
tional court he has revealed himself as a master of the two ways of legal thinking represented by the
common law of England and the civil law of Quebec; and his judgments have been equally acceptable
to the adherents of both systems of jurisprudence’ “Dalhousie University Bestows Honors”, supra
note 81 at 7.
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1930s was occasionally the subject of criticism,” commentators generally lauded him
in patriotic terms. In 1933, Mr. Justice Rinfret claimed that Duff’s judicial and com-
mission work represented “the invaluable services rendered to his country.”‘* Years
later, the Fortnightly Law Journal said that Duff “had his share … of extra-judicial
work on important Commissions and Boards that have made great contribution to the
progress of Canada.”87 Authors consistently mentioned Duff’s minor involvement in
the Alaskan boundary dispute, conjuring up the memories of Lord Alverstone siding
with American negotiators.” English Canadian legal literature patriotically described
Duff’s work in the World War I conscription crisis. The Fortnightly Law Journal
claimed that the
public services rendered by Mr. Justice Duff-always without honorarium or
reward of any kind in his own country-have been numerous and outstanding.
The work he performed while occupying the position of Central Appeal Judge,
during the trying years of 1916 to 1918, was so extensive, exacting and onerous
that it can never be fully appreciated, except possibly by those who were im-
mediately associated with him. He alone had the power to decide the fateful
question of exemption or non-exemption from military service in those hectic
days.89
Commentators also pointed to Duff’s extended term as Chief Justice during the dark
days of World War II as proof of his allegiance to Canada, suggesting that Duff had,
finally, retired “to well earned rest from the labours that he has so unstintingly given
in the service of Canada and his chosen profession.”‘ Thus, even though Duff was
said to possess the learning of the great British judges, Canadian lawyers often dis-
cussed his work in nationalistic terms.
‘ See e.g. J.L. McDougall, ‘The Report of the Duff Commission” (1935) 1 Can. J. Econ. & Pol.
Sci. 77.
6 “The Chief Justice of Canada” (1933) 11 Can. Bar Rev. 274 at 274.
‘ “Canada’s Greatest Lawyer and Jurist” (1943-44) 13 Fortnightly L.J. 145.
88 The commission responsible for settling the boundary between Alaska and Canada was com-
posed of three representatives from the United States, two from Canada, and one, Lord Alverstone,
from Britain. Canadians charged that Lord Alverstone sided with the American negotiators so that
Britain could improve its relations with the United States. “Supreme Court of Canada Judges”, supra
note 68 at 285; ‘The New Chief Justice of Canada: Rt. Hon. Lyman Poore Duff, PC*” (1932-33) 2
Fortnightly L.J. 295; “The Chief Justice of Canada”, supra note 86 at 274; “Chief Justice Reaches
Seventy”, supra note 75; ‘The Right Honourable”, supra note 75 at 3; “Farewell Ceremony”, supra
note 83 at 3-4.
9 “Supreme Court of Canada Judges”, ibid.
9 “Presides for the Last Time”, supra note 75 at 145. See also “Sir Lyman Duff’s Extended Term
and Other Hopeful Signs” (1938-39) 8 Fortnightly L.J. 274; “Chief Justice Duff Stays for Another
Year” (1942-43) 12 Fortnightly L.J. 178; “The Rt. Hon. Sir Lyman Poore Duff, RC.” (1943-44) 13
Fortnightly L.J. 151.
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
581
3. Duff’s Perceived Constitutional Expertise
Duff’s involvement and perceived talent in constitutional cases also enabled him
to lend credibility to the Supreme Court. Duff wrote judgments in many of the Su-
preme Court’s constitutional decisions in the 1920s and 1930s. In doing so, he em-
ployed a formalist method of analysis,’ such that it was not uncommon for Duff to
write “mechanical-looking” judgments.’ This formalist approach meant that his
judgments rarely expressed his personal views on legal issues or discussed policy
concerns.’ For Duff, the application of rules drawn from legal precedents determined
substantive outcomes-the common law was keyY Duff also employed a conservative
form of statutory interpretation. In a 1935 Supreme Court judgment, he detailed how
judges should interpret statutes:
The judicial function in considering and applying statutes is one of interpreta-
tion and interpretation alone. The duty of the court in every case is loyally to
endeavour to ascertain the intention of the legislature; and to ascertain that in-
tention by reading and interpreting the language which the legislature itself has
selected for the purpose of expressing it.9′
As Bushnell explains, “With his emphasis on language, Duff could ignore other clues,
no matter how strong, from the legal or social context that could give meaning to
words that were not absolutely clear.”‘ Although legal critics increasingly challenged
this method of analysis as the 1930s progressed, during the 1920s and 1930s Duff’s
formalism and narrow interpretation of the BNA Act dominated the Court. The gov-
ernment continued to appoint justices with jurisprudential views similar to Duff’s
throughout this period, and thus Duff’s “leadership” of the Court during the 1920s and
1930s can partly be explained as a result of his membership on a Supreme Court whose
justices were supportive of his formalistic approach to the law.
Duff’s method of legal analysis, however, caused a difficult dilemma for advo-
cates of an independent Supreme Court. Canadian legal realists attacked the Privy
Council’s formalism in their bid for an independent Court. While critics like Vincent
MacDonald and Frank Scott attacked the Privy Council for failing to take judicial no-
tice of policy considerations, authors in Canada’s law journals praised Duff, despite
” B.J. Hibbitts, “A Change of Mind: The Supreme Court and the Board of Railway Commissioners,
1903-1929” (1991) 41 U.T.L.J. 60 at 94.
“‘ I. Bushnell, The Federal Court of Canada: A History, 1875-1992 (Toronto: University of Toronto
Press, 1997) at 106.
” Williams, Duff, supra note 9 at 277-78.
‘ “It seems no very extravagant claim to say that no single force, not even Parliament itself, has ex-
ercised a deeper influence on the temper of the British people than the common law.” L.P Duff, “The
Common Law Judge and Lawyer” (1933) 11 Can. Bar Rev. 521 at 527.
R. v. Dubois, [19351 S.C.R. 378 at 381, [1935] 3 D.L.R. 209.
Supra note 92 at 116.
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his general unwillingness to support increased Dominion government powers. Cana-
dian legal scholars in the 1930s and early 1940s rarely commented that Duff em-
ployed a judicial approach very similar to that typically used by the Privy Council. As
will be shown, Canadian legal academics after World War II criticized Duff precisely
on this basis.97 The question then arises as to how and why Duff escaped criticism be-
fore 1945. At least two explanations seem plausible. First, in the most famous consti-
tutional cases of the 1930s, the New Deal references, Duff uncharacteristically found
the Dominion’s legislation intra vires in three of the six references. Critics of the Su-
preme Court’s New Deal decisions were thus more likely to focus on Justice Cannon,
who found all of the Dominion’s legislation invalid, or Justice Rinfret, who held in all
but one reference that the central government overstepped its constitutional jurisdic-
tion.98
Second, legal scholars during the 1930s gave most of their attention to the Privy
Council’s decisions. Given the ultimate authority of the Privy Council, the failure
fully to dissect Duff’s reasoning in Supreme Court decisions should not be that sur-
prising. In particular, critics of formalism focused their attacks on Lord Haldane, who
wrote several important division of powers decisions in the 1920s. While many Cana-
dian lawyers celebrated Haldane in the 1920s, by the 1930s they accused him of cor-
rupting the original meaning of the BNA Act.” Ren6 Richard, for example, argued in
1940 that Lord Haldane’s decisions prevented the “statutes of the Dominion from be-
ing or becoming superior to those of the provinces,”‘” while H.S. Patterson wrote in
the Alberta Law Quarterly that “Lord Haldane was [a] great statesman, a great ad-
ministrator and a very considerable philosopher; but it was in his hands that the con-
stitution was twisted until the aims of the Fathers [of Confederation] were in jeopardy
and efficient government rendered almost impossible”‘.. The attacks on Haldane thus
97See below, text accompanying notes 133-36.
98 Reference Re Criminal Code (Canada) Section 498A, [1936] S.C.R. 363, [1936] 3 D.L.R. 593,
aff’d [1937] A.C. 368, [1937] 1 D.L.R. 688 (P.C.); Reference Re Dominion Trade and Industry Com-
mission Act, [19361 S.C.R. 379, [1936] 3 D.L.R. 607; Reference Re Farmers’ Creditors Arrangement
Act, [1936] S.C.R. 384, [1936] 3 D.L.R. 610, aff’d [1937] A.C. 391, [1937] 1 D.L.R. 695 (P.C.); Ref-
erence Re Natural Products Marketing Act, [1936] S.C.R. 398, [1936] 3 D.L.R. 622, aff’d [1937],
A.C. 377, [1937] 1 D.L.R. 691 (P.C.); Reference Re Employment and Social Insurance Act, [1936]
S.C.R. 427, [1936] 3 D.L.R. 644, aff’d [1937] A.C. 355, [1937] 1 D.L.R. 684 (P.C.); Reference Re
Weekly Rest in Industrial Undertakings Act, [1936] S.C.R. 461, [193613 D.L.R. 673.
9 Cairns, supra note 19 at 301,313.
E.R. Richard, “Peace, Order and Good Government” (1940) 18 Can. Bar Rev. 243 at 259.
10 H.S. Patterson, “The British North America Acf’ (1934-36) 1 Alberta L.Q. 227 at 230. See also
W.P.M. Kennedy, “The British North America Act: Past and Future” (1937) 15 Can. Bar Rev. 393 at
396-97. It is also possible that Duff softened his legal formalist approach toward the end of the 1930s.
See Brown, “Realism”, supra note 50 at 21, n. 112; Gold, supra note 9.
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEFJUSTICE DUFF
583
drew attention away from Duff’s equally formalistic interpretation of the Canadian
Constitution at the Supreme Court.
Duff’s perceived expertise in constitutional law therefore still made him a candi-
date to ground the competency of the modem Court. In its 1937 decision in the Natu-
ral Products Marketing Act reference,’ 2 the Privy Council explained that it had no
reason to write more on the question because, in his earlier Supreme Court judgment,
Duff had addressed the issue “with such force and clarity” that the “few pages of the
Chief Justice’s judgment will, it is to be hoped, form the locus classicus of the law on
this point and preclude further disputes.”” This was high praise, and Canadian legal
journals quickly noted the Privy Council’s view. The Fortnightly Law Journal, for in-
stance, commented:
The first point that must strike anyone reading the judgments is the high opin-
ion held by the Privy Council of Chief Justice Duff’s ability as a constitutional
authority. On one point-the question of national emergency justifying a resort
to the Dominion residuary power–they term his judgment a locus classicus
that forever settles the law.’4
“The tribute thus paid him” the journal continued, “more than confirms the general
opinion that the Chief Justice ranks among the greatest of Canadian constitutional
authorities of all time and must materially add to the prestige of his Court.”” By the
time of his retirement in 1944, Duff’s reputation in constitutional matters was at its
height. According to one commentator, “Nowhere in the great fund of legal
erud[i]tion that he has at all times demonstrated has his voice spoken with greater
authority and more profundity of understanding than in the solution of the constitu-
tional problems that have come before his Court.””
These comments typified the Canadian legal profession’s willingness to applaud
Duff’s judicial work during the 1930s and early 1940s. “Mr. Justice Duff has a keen
analytical mind, as evidenced by his judgments, which are most lucid and eminently
logical,” the Fortnightly Law Journal asserted, and when
he has felt it necessary to dissent from the other members of the Supreme
Court-and it has happened occasionally-it has frequently turned out that his
judgments have been upheld by the Judicial Committee. If the Bar of Canada
were polled from ocean to ocean, there would undoubtedly be an outstanding
verdict in his favour as the possessor of Canada’s keenest legal mind.'”
Marketing Reference, supra note 43.
’03Ibid at 353.
‘c “A Great Chief Justice” (1936-37) 6 Fortnightly L.J. 225 at 225.
I Ibid.
’05 “Presides for the Last Time”, supra note 75 at 145.
“Supreme Court of Canada Judges”, supra note 68 at 285.
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If the government ended appeals to the Privy Council, it was believed that Duff’s
strength in constitutional cases would ensure that the Supreme Court would be up to
the task as the final arbiter of appeals. As the Bench and Bar noted, Canada was “in-
deed fortunate in having as its Chief Justice so tried a jurist, so eminent a scholar and
a gentleman”” while prominent lawyer Philippe Brais told Duff in 1944 that a “very
full measure of credit is due to you for the standing of Canadian justice to-day. Deep
and sincere thanks are owed to you for the confidence and stability which it has as-
sured and will assure to Canada?”” On the day of Duff’s retirement, the Fortnightly
Law Journal enunciated the role of Duff’s reputation in changing dominant percep-
tions of the Supreme Court and helping to end Privy Council appeals: “To say that he
has made the Court what it is to-day is a gross understatement?’ 0” “It is no exaggera-
tion” the journal continued, “to say he raised the Supreme Court of Canada from the
level of mediocrity to a Court of such quality that had all its members had half his ju-
dicial attainment, opposition to abolition of appeals to the Privy Council would have
been impossible:””
Descriptions of Duff’s legal abilities bore little resemblance to the characteriza-
tions of the weak jurists said to sit on the Supreme Court during the 1920s and before.
For example, one law journal wrote that “a former Lord High Chancellor of England
once said that he would put Mr. Justice Duff’s legal acumen on a par with that of ei-
ther Mr. Justice Holmes or Mr. Justice Brandeis of the United States Supreme
Court-which is high praise indeed” ‘2 The popular press took note of the praise
heaped on Duff, and suggested that he possessed the greatest attributes of the English
legal system. The Ottawa Journal claimed that the
nearest approach to the English tradition is Lyman Poore Duff, the Supreme
Court’s new Chief Justice. Student and scholar, master of many things other
than the law, he is the most versatile and arresting figure the Canadian bench
has known since Confederation.
To-day, by common consent, he is one of the Empire’s great Judges. His
record on the Supreme Court has been a procession of triumphs. There has not
been a great legal decision within a quarter of a century with which his name
has not been associated.
‘ 3
A 1936 Maclean’s Magazine article drew public attention to the Supreme Court, and
in so doing reiterated praise for the talents of Duff, including his educational attain-
‘”The Right Honourable”, supra note 75 at 3.
‘ “Farewell Ceremony”, supra note 83 at 2.
1,0 “Presides for the Last Time”, supra note 75 at 145.
Ibid.
112 “Supreme Court of Canada Judges”, supra note 68 at 285.
3 Ottawa Journal (21 May 1933), quoted in ‘The Chief Justice of Canada”, supra note 86 at 276.
2002] R. BLAKE BROWN- THE RISEAND FALL OF CHIEF JUSTICE DUFF
585
ments, religious background, and reputation as “the most brilliant judge who has ever
sat on the Bench in Canada” 14
4. If Not Duff?
It is worthwhile inquiring why Duff, and not another member, became the legiti-
mating symbol of the Supreme Court. The Court’s composition during the 1930s
helps explain the attention Duff received. The Supreme Court had seven seats during
this period.
MEMBERSHIP OF THE SUPREME COURT OF CANADA, 1932-1939
1932 (appointed)
Duff (1906)
Anglin (1909)
Rinfret (1924)
Lamont (1927)
Smith (1927)
Cannon (1930)
Crocker (1932)
1933
Duff
*Hughes
Rinfret
Lamont
Smith
Cannon
Crocket
1934
Duff
Hughes
Rinfret
Lamont
Smith
Cannon
Crocket
1935
Duff
*Kerwin
Rinfret
Lamont
*Davis
Cannon
Crocket
1936
Duff
Kerwin
Rinfret
Lamont
Davis
Cannon
Crocket
1937
Duff
Kerwin
Rinfret
*Hudson
Davis
Cannon
Crocket
1938
Duff
Kerwin
Rinfret
Hudson
Davis
1939 (retired)
Duff(1944)
Kerwin (1963)
Rinfiet (1954)
Hudson (1947)
Davis (1944)
Cannon
Crocket
Cannon (1939)
Crocket (1943)
Robert Smith, Frank Hughes, and John Lamont had short, undistinguished careers on
the Supreme Court. Justice Anglin was highly respected, serving as Chief Justice
from 1924 to 1933, but his death in 1933 meant that he could not be the judicial figure
Canadians needed during the 1930s. The government appointed Justices Patrick Ker-
win, Albert Hudson, and Henry Hague Davis in the mid-1930s, but their inexperience
on the Supreme Court prevented high praise. Though sitting somewhat earlier, Jus-
tices Oswald Crocket and Arthur Cannon also suffered from their relative newness to
the Court. Perhaps more determinative, however, was that each had less than ideal
characteristics. Cannon was a Roman Catholic from Quebec, had limited judicial ex-
perience prior to his appointment, and, while a successful lawyer, had not held any
high-profile extra-judicial positions, such as Duff’s in the Alaskan boundary question.
Moreover, Cannon’s health suffered while on the court, and he took extended leaves
‘ M. Macbeth & L.T. White, “The Seven Justices of the Red Robes: A Quick Sketch of Canada’s
Supreme Court” Maclean’s Magazine (1 April 1936) 26 at 46. In time, commentators began to speak
of Duff not only as a symbol of the Supreme Court’s quality, but also as an architect of the modem
Canadian nation. The Ottawa Journal claimed that Duff “made the administration of justice a con-
structive exercise in statesmanship.” “Sir Lyman Duff’ Ottawa Journal (26 April 1955).
586
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of absence in 1936, 1937, and 1939.”‘ Crocket’s tenure on the Court lasted from 1932
to 1943, but his record was also undistinguished.”6
The only member of the Supreme Court other than Duff who was a viable candi-
date for the symbolic role was Thibaudeau Rinfret.”‘ A member of the Supreme Court
since 1924, Rinfret possessed Bachelor of Arts and Bachelor of Laws degrees. He
was a highly competent practitioner, had taught law at McGill University, and, as a
frequent visitor to the Canadian Club, possessed the combination of legal training, so-
cial graces, and judicial competency necessary to be called Canada’s greatest judge.
Like Cannon, however, Rinfret was limited by his ethnicity and religion. A French
Roman Catholic from Quebec, Rinfret could not symbolize English legal traditions
for the Supreme Court during its transition.
Did anyone question the underlying motivation for the praise heaped upon Duff?.
In an insightful April 1933 article, the Fortnightly Law Journal explicitly argued that
proponents of ending Privy Council appeals were overstating the quality of the Su-
preme Court’s membership. “We have heard a lot recently about proposals to abolish
appeals to the Privy Council …” Such proposals
are not put forward with any legal advantage in view but merely for political
purposes by those whose highest aim in life is to cut Canada out from the Em-
pire. But the proponents of this so-called reform use subtle arguments to cloak
their ultimate purposes, and not the least subtle or least cogent of those argu-
ments is the present strength of the Supreme Court of Canada.”‘
Even though the Fortnightly Law Journal questioned the motivation behind the praise
of Duff, it also lauded his talents. The journal argued that the strength of the Supreme
Court reflected the strength of its membership, but unless the court “has as leader a
man of high legal attainment it is not likely that the full strength of its individual
members will be achieved””‘ Duff was deemed to fulfill these lofty requirements:
“We have grown used to expecting great things from the Supreme Court of Canada,
and with Chief Justice Duff to lead the Court we know we shall not be disap-
pointed.”’20
“5 Snell & Vaughan, supra note 14 at 132-33, 150.
,,6 Ibid. at 147-48.
.. On Rinfret’s background, see ibid. at 125.
“‘ “Fortnightly Notes: The New Chief Justice of Canada” (1932-33) 2 Fortnightly L.J. 285 at 285
[emphasis added].
119 Ibid.
120 Ibid.
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
Conclusion
587
In the late 1930s, Charles Cahan, the Tory Member of Parliament from Montreal
who in 1928 had publicly lamented that the poor quality of the Supreme Court pre-
vented the abrogation of appeals, attacked the Privy Council’s interpretation of the
BNA Act and demanded the end of appeals. Like many Canadian legal scholars, Ca-
han believed that the Privy Council had deliberately attempted to alter the true mean-
ing of the Canadian Constitution. He concluded that members of the Privy Council
were “personally ignorant” of Canada yet arrogated “to themselves a prescience and
clairvoyance which entitles them to substitute their political judgments, and even their
personal preferences, for the deliberate legislative enactments of the elected repre-
sentatives of the people who sit in the parliament of Canada.””‘ Cahan introduced a
bill in 1939 to abolish appeals, and, after the bill received considerable support in
Parliament, the Minister of Justice, Ernest Lapointe, referred it to the Supreme Court,
thus affording the Court an opportunity to adjudicate its own pre-eminence. The Court
found that it was within the Dominion government’s authority to end appeals to the
Privy Council unilaterally without the approval of the provinces.'” The government
postponed the implementation of the legislation until after the Second World War, and
after an unsuccessful appeal to the Privy Council of the Supreme Court’s decision.'”
Finally, in 1949 the Liberal government enacted legislation establishing that new liti-
gation could not be appealed to the Privy Council.”4 Duff retired from the Court in
1944, and his last day as Chief Justice was heralded as a “milestone in the legal his-
tory of Canada!”‘ The legal community marked his retirement with speeches de-
scribing his greatness. In 1947 the Supreme Court unveiled a bust of Duff in the foyer
of the new Supreme Court building, and more eloquent words marked his death in
1955.2”
‘2 House of Commons Debates (8 April 1938) at 2151.
‘Reference Re An Act to Amend the Supreme Court Act, [1940] S.C.R. 49, [1940] 1 D.L.R. 289,
aff’d [1947] A.C. 127, [1947] 1 D.L.R. 801 (P.C.) [hereinafter Supreme Court Act Reference cited to
S.C.R.].
“‘ Canada (A.G.) v. Ontario (A.G.), [1947] A.C. 127, [1947] 1 D.L.R. 801 (P.C.).
M The act held that the Supreme Court “shall have, hold and exercise exclusive ultimate appellate
civil and criminal jurisdiction within and for Canada” and that its decisions “shall, in all cases, be final
and conclusive”‘An Act to amend the Supreme Court Act, S.C. 1949, c. 37, s. 3.
‘ “Presides for the Last Time”, supra note 75 at 145.
126 Rand, supra note 9; Rinfret, supra note 9. It is difficult to determine Duff’s views about Privy
Council appeals and whether he appreciated his own place in the development of an independent Su-
preme Court. Duff rarely commented on the value of the Privy Council and the role of the Supreme
Court, but two occasions deserve attention. In May 1925, Duff delivered a speech to the annual dinner
of the Ontario Bar Association in which he explained the origins of the Privy Council and its great
value to the British empire. He lauded several of the men who had served on the council, suggesting
that the Privy Council’s responsibilities had “been exercised, as a rule, by men who, on account of
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The praise of Duff reflected Canadian social, economic, and legal conditions
during the 1930s. Duff received scant publicity during his first two decades on the
Court, but in their attempts to combat the Supreme Court’s perceived inadequacies,
Canadian legal professionals argued that the Court possessed a great judge, who by
his membership made possible the elimination of Privy Council appeals. Duff had the
necessary characteristics to validate the modem Supreme Court: he was the longest-
serving member of the Court; he possessed the right educational attainments; he had a
long tenure as Chief Justice; he was a white Protestant male; he had loyally served
Canada on government commissions; and he had strong ties to English courts. Duff
therefore became a symbol during the Court’s transition period in the 1930s.”
their character, on account of their learning, on account of their professional eminence, on account of
their political experience, have been qualified for that duty in a unique degree.” The Privy Council had
the weighty responsibility of interpreting the Canadian Constitution, and, Duff concluded, it would
“be many a long year before we shall bring ourselves to abandon entirely the privilege of invoking the
aid of the Judicial Committee in the determination of justiciable disputes-especially in the region of
constitutional law.” Duff did not close the door on the possibility of ending appeals, however, for “the
time may arrive when the people of this country will conclude that this responsibility, the burden of
which has been so long and so generously bome by others, should, in great degree at all events, be as-
sumed by ourselves.” L.P. Duff, “The Privy Council” (1925) 3 Can. Bar Rev. 273 at 275-76,279.
Duff again commented on Privy Council appeals when the Supreme Court evaluated the legisla-
tion referred to it by Ernest LaPointe. Six justices considered whether the Dominion government had
the constitutional authority to abolish appeals. Each justice wrote a judgment, with four finding the
legislation intra vires the Dominion government, and two determining that such an act would be ultra
vires. Duff wrote one of the four majority judgments, and, characteristically, focused on the narrow
constitutional issues raised by the case, rather than the wisdom of ending appeals. He concluded that
Privy Council appeals were not within the subject matter assigned to the provinces by the BNA Act
and that the Statute of Westminster, 1931, supra note 15, had removed the obstacles that had “pre-
vented the Parliament of Canada giving full effect to legislation for objects within its power affecting
the appeal to His Majesty in Council.” Supreme Court Act Reference, supra note 122 at 69-70.
27 While it is beyond the scope of this paper, the developments of the 1930s tempt one to consider
how modem legal practitioners portray the members of the Supreme Court. For example, did the Ca-
nadian legal profession require another legitimating figure during the patriation of the Constitution
and entrenchment of the Canadian Charter of Rights and Freedoms (part I of the Constitution Act,
1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter])? If so, and
even without the benefit of much historical hindsight the answer appears to be yes, how did members
of the bench and bar reconcile the institutionalization of a rights-protecting document more attuned to
American, as opposed to English, legal traditions? What role did Bora Laskin and Brian Dickson play
in this transformation? W.H. McConnell has recently hinted at Brian Dickson’s role in legitimating
the Court during the 1980s. Dickson’s “appointment as chief justice in 1984 coincided with the in-
ception of the adjudication of Charter claims, an exciting time in Canadian law,” and the “legal and
general public seemed to regard him as both the ablest and most sympathetic ‘helmsman’ for inaugu-
rating this new legal era, with all its challenges and problems” W.H. McConnell, William R. McIn-
tyre: Paladin of the Common Law (Montreal: McGill-Queen’s University Press, 2000) at 66. See also
P. Calamai, “The Media and the Court’s Public Accountability” in D.J. Guth, ed., Brian Dickson at
2002] R. BLAKE BROWN- THE RISE AND FALL OF CHIEF JUSTICE DUFF
589
Given Duff’s importance for the Supreme Court in the 1930s and early 1940s, it
is worth inquiring how Duff has been remembered since World War II. While Cana-
dian legal historians have given considerable attention to Duff, they have generally
failed adequately to interrogate the reasons for his fame. Duff has been called a
“master of trenchant and incisive English,” who “wrote his opinions in a style which
bears comparison with Holmes or Birkenhead’ 1 A former assistant of Duff, Kenneth
Campbell, argued that Duff was “frequently ranked as the equal of Justices Holmes
and Brandeis of the United States Supreme Court,”‘ and Gerald LeDain asserted that
Duff “is generally considered to have been one of Canada’s greatest judges”” The
lack of critical commentary regarding Duff may partly be a result of the slow devel-
opment of Canadian legal history, which prior to 1980 was generally an under-
developed field of study. The founding in 1979 of the Osgoode Society for Canadian
Legal History, however, led to demonstrations that Canada had a noteworthy legal
history. In 1984, the Osgoode Society helped publish David R. Williams’ biography
of Duff. Wiflliams argued that Duff stood “apart from his contemporaries”, and was “a
colossus by comparison” to the mediocre members of the Court during the 1930s.’31
By publishing this biography, the Osgoode Society seemed to indicate that the Su-
preme Court had a valuable institutional history and that Canada had a legal history
worthy of study. Thus, just as Duff served as a symbol for the Supreme Court during
the 1930s, in the 1980s he became a legitimating figure for the Osgoode Society-a
historical actor permitting the Society to substantiate the value of further study.
Despite the attention given to Duff by legal historians, Canadian lawyers seem in-
creasingly unaware of the former chief justice. This trend is best explained by the shift
in dominant legal topics and attitudes about the law. For example, the discourse of
“British justice” rapidly declined in importance in English Canada after World War
H12 As a result, Duff’s reputation, intertwined as it was with imperial imagery, lost
much of its resonance. Today’s Supreme Court is less concerned about federalism is-
sues; instead, “rights-protecting” justices such as Brian Dickson and Antonio Lamer
the Supreme Court of Canada, 1973-1990 (Winnipeg: Canadian Legal History Project, 1998) 289; T.
Anderson, ‘A Tribute of Affection and Admiration” in R. Penner, ed., The Dickson Legacy (Winni-
peg: Legal Research Institute, 1992) 297 at 304.
.. McConnell, “Bennett’s ‘New Deal”‘, supra note 43 at 51.
“‘ Campbell, supra note 9 at 243. Richard Gosse, on the other hand, hedged his praise in 1975. Ac-
cording to Gosse, Duff was the “dominating figure in the Supreme Court of Canada’s first hundred
years,” but also noted that Duff “was not a Justice Oliver Wendell Holmes or a Lord Denning.” Gosse,
“Four Courts”, supra note 9 at 482, 483. Ian Bushnell has written the best existing critique of Duff.
See Bushnell, Captive Court, supra note 13 at 265-66.
“LeDain, supra note 9 at 261.
“. Williams, Duff, supra note 9 at 275.
.. For example, Canadian debates over the death penalty between the 1930s and 1950s witnessed
the declining discourse of British justice. See C. Strange, “The Undercurrents of Penal Culture: Pun-
ishment of the Body in Mid-Twentieth-Century Canada” (2001) 19 L. & Hist. Rev. 343.
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have gained notoriety in interpreting the Charter Meanwhile, Duff has drifted into the
shadows of legal history.’33 Unlike Oliver Wendell Holmes and John Marshall in the
United States, Duff’s esteemed place in the Canadian legal community’s conscious-
ness was far from guaranteed. Canadian writers lauded Duff during the 1930s, but in
doing so failed to discuss his formalistic approach to the law or his tendency to limit
the Dominion government’s power to legislate. Once an independent Supreme Court
was secured, lawyers and legal academics critiqued Duff’s legal formalism and its ef-
fect on Canadian federalism. Osgoode Hall law professor Bora Laskin attacked Duff’s
decisions, arguing that Duff used circular reasoning and hid his policy-laden decisions
behind the doctrine of stare decisis.” Duff, critiqued Laskin, had articulated constitu-
tional principles “which rejected social and economic considerations”’35 In Laskin’s
extensive writing on the Canadian Constitution after World War II, according to
R.C.B. Risk, “Haldane was the major villain, Duff his willing collaborator.”” Laskin
was not alone in criticizing Duff. Lionel Schipper wrote in 1956 that throughout
Duff’s judgments it was
apparent that he has given certain factors very little consideration in formulat-
ing his decisions. … In constitutional cases, not only are the actual facts of the
case significant but the surrounding social, economic and political facts are
equally significant. A shift in these latter factors is as important in deciding a
case as any other change in the facts. It is this consideration that Chief Justice
Duff ignored.’37
‘3’ This is very well borne out by Peter McCormick’s recent study of the Supreme Court. McCor-
mick examined the number of times the Supreme Court cited other Supreme Court justices between
1949 and 1999. In the period between 1949 and 1963, the Supreme Court cited Duff far more than
any other justice: 447 times compared to 274 citations to Rinfret, the second most cited judge. In the
period from 1963 to 1984, the Supreme Court continued to cite Duff often, though several other jus-
tices, including John Robert Cartwright and Ronald Martland, were cited about as often (the Court
cited Duff 372 times, Cartwright 373 times, and Martland 371 times). However, from 1984 to 1999
the Supreme Court rarely cited Duff, instead looking to Dickson and Lamer most often (1836 and
1517 citations, respectively). McCormick, supra note 16 at 26, 48, 73, 98, 119, 141.
‘ B. Laskin, “‘Peace, Order and Good Government’ Re-Examined” (1947) 25 Can. Bar Rev. 1054
at 1069-70.
3 B. Laskin, “The Supreme Court of Canada: A Final Court of and for Canadians” (1951) 29 Can.
Bar Rev. 1038 at 1068.
136 R.C.B. Risk, “On The Road To Oz: Common Law Scholarship About Federalism After World
War Two” (2001) 51 U.T.L.J. 143 at 150.
“‘ Schipper, supra note 9 at 11.
2002] R. BLAKE BROWN- THE RISEAND FALL OF CHIEF JUSTICE DUFF
591
Critics have also pointed to Duff’s alcoholism, his alleged partiality in the Hong Kong
inquiry, and the Supreme Court’s racist judgments regarding Canadians of Chinese
and African descent during his tenure.”‘
What makes a great justice has therefore changed. Duff, celebrated in the 1930s
because of his imperial ties, his class, ethnicity, gender, and judicial experience, has
faded in the legal profession’s memory. The modem Supreme Court no longer re-
quires a symbol that does not stand for current jurisprudential and societal views.
“‘ See e.g. J.W.St.G. Walker, ‘Race,’ Rights and the Law in the Supreme Court of Canada: Histori-
cal Case Studies (Toronto: Osgoode Society, 1997) at 103-04; C. Backhouse, Colour-Coded: A Legal
History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press, 1999) at 52-55.
