Supreme Court Season 2: Season of the SCC: Part 1

Richards CJ, Gwynne J, Mills J, Nesbitt J, Maclennan J, Anglin CJ, Hughes J, Kerwin CJ, Spence J, McIntyre J, McLachlin CJ.

Richards CJ, Gwynne J, Mills J, Nesbitt J, Maclennan J, Anglin CJ, Hughes J, Kerwin CJ, Spence J, McIntyre J, McLachlin CJ.

 

The Hon. Sir William Buell Richards PC, Kt. (1815-1889) was appointed by Alexander Mackenzie as the first Chief Justice of the Supreme Court on Sep. 30, 1875, and served for four years.

Richards was born in Brockville; his brother Albert later became Liberal MP for Leeds South. He earned a law degree from the St. Lawrence Academy in Potsdam, NY, and then articled with his uncle in Brockville before was called to the bar in 1837. In 1848 Richards was elected to the Legislative Assembly of the Province of Canada and by 1848 he was Attorney-General. He left politics in 1853 to be appointed to the Court of Common Pleas of Canada West; in 1863 he became Chief Justice of the Court of Common Pleas, then Chief Justice of Ontario in 1868, in which office he heard the appeal of Patrick James Whelan, who was convicted of the murder of Thomas D’Arcy McGee, and eventually executed for it. Richards was sent to Washington in 1871 to study the US Supreme Court, in preparation of founding Canada’s.

As Chief Justice, Richards was roundly criticized for the slowness of the Court’s work and his frequent absenteeism, as he spent much time abroad studying the structures of foreign courts. He was knighted in 1877, and Sir William retired from the court on Jan. 10, 1879, dying of asthma ten years later.

Macdonald appointed John Wellington Gwynne (1814-1902) to the Court on Jan. 14, 1879. He was born in Ireland, studied at Trinity College, Dublin, and came to Canada at the age of 18, first to Kingston and then to Toronto, called to the bar in 1837 and went to London for further study in equity law in 1844, where he got involved in a scheme to build a railway from Toronto to Goderich that ultimately failed. In 1868 he became a justice of the Ontario Court of Common Pleas, staying until 1879. His time on the Supreme Court was marked by a deep commitment to centralism in government and his feud with Justice Samuel Henry Strong. He died on Jan. 7, 1902, while still a justice.

Sir Wilfrid Laurier appointed his Minister of Justice, the Hon. David Mills PC (1831-1903), to the vacancy on Feb. 8, 1902. He was only on the Court for 455 days. Born in Palmyra, ON, Mills earned a law degree from the University of Michigan, and was a Liberal MP from 1867 to 1882 and from 1884 to 1896, serving as Minister of the Interior under Mackenzie from 1876 to 1878. Laurier appointed him to the Senate, serving as Minister of Justice and Leader of the Government in the Senate from 1896 to 1902. Mills died of an internal haemorrhage in May 8, 1903, after a little more than a year as a justice.

Laurier replaced Mills with Wallace Nesbitt (1858–1930), a lawyer from Holbrook, ON, who studied at Osgoode Hall, was called to the bar in 1881, and handled much of the legal affairs of the Gooderham and Worts business empire. Nesbitt served as a justice from May 16, 1903 to Oct. 4, 1905, then retired to return to private practice. Nesbitt suffered a stroke in the summer of 1929 and died the following April.

Laurier filled the void on Oct. 5, 1905 with James Maclennan (1833–1915), a native of Lancaster, ON, and graduate of Queen’s. He passed the bar in 1857, practised law in Toronto with Sir Oliver Mowat, ran unsuccessfully for Parliament in 1874, and was appointed to the Ontario Court of Appeals in 1888, serving until 1905. He retired on Feb. 13, 1909, and died in 1915.

The Rt. Hon. Francis Alexander Anglin PC (1865–1933) was Laurier’s fourth and final appointee to this particular court vacancy, appointing Anglin on Feb. 23, 1909.

Anglin was born in Saint John, NB. His father, Timothy Anglin, was the Speaker of the House of Commons; his sister, Margaret Anglin, was one of the biggest stars on Broadway between 1898 and 1936. Anglin studied at the University of Ottawa and at the Law Society of Upper Canada and was called to the bar in 1888. He was appointed Clerk of the Surrogate Court of Ontario in 1896, and served as a judge of the Exchequer Division of the High Court of Justice of Ontario from 1904 to 1909.

On Sept. 16, 1924, Mackenzie King appointed Anglin to be Chief Justice. It was during Anglin’s tenure as Chief Justice in 1931 that appeals to the Imperial Privy Council were abolished for criminal trials. The Anglin Court also heard 1928’s Edwards v. Canada (Attorney General), the infamous “Persons Case” wherein the Court found that the law did not define women as “persons” with the right to hold public office, a decision overturned the next year by the Privy Council. Anglin retired on February 28, 1933, and died two days later.

R.B. Bennett replenished the Court with Frank Joseph Hughes (1883–1967) on March 17, 1933. Born in Wellington County, near Drayton, ON, Hughes went to the Ontario Normal School and became a fully qualified teacher, then earned a BA from Queen’s, studied law at Osgoode Hall, and was called to the bar in 1911. He was Assistant Crown Attorney for York County from 1916 to 1921, and then Crown Attorney for a few months before taking up private practice in Toronto. Hughes resigned from the Court on February 13, 1935 and returned to private practice. He died in 1967.

As his final appointment to the Supreme Court, Bennett appointed the Hon. Patrick Kerwin PC (1889–1963) on July 20, 1935. Born in Sarnia, Kerwin studied at Osgoode Hall, passed the bar in 1911, and moved to Guelph, where he was city solicitor and Crown prosecutor for Wellington County. Kerwin was appointed to the High Court of Justice of Ontario in 1932, serving until 1935.

Louis St.-Laurent appointed Kerwin as Chief Justice on July 1, 1954. He was the first chief justice to assume the office after the abolition of appeals to the Privy Council, and the first Chief Justice since 1892 to not be appointed to the Imperial Privy Council; thus, Kerwin is the only Chief Justice since Sir William Ritchie not styled “the Right Honourable”, since the Canadian Privy Council did not begin conferring that title until the 1960s.

A few important cases of the Kerwin Court include Henry Birks & Sons (Montreal) Ltd. v. the City of Montreal (1955), which ruled “public morality” laws were in the federal jurisdiction; Switzman v. Elbling (1957), which struck down Quebec’s infamous Duplessis-era “Padlock Law”; Beaver v. R. (1957), which found that charges of criminal possession required proof of soundness of mind, or “mens rea”; Priestman v. Colangelo (1959), the most important of a number of “stumbling policeman” cases of the time, which found that public officers are not liable for accidental collateral damage in the conduct of their duties; Roncarelli v. Duplessis (1959), which ruled that officials are obliged to exercise the powers they legitimately hold with good faith and within reason; O’Grady v. Sparling (1960), which established the “paramountcy doctrine”, in which federal laws supersede provincial laws in areas of overlapping jurisdiction (in this specific case, penalties for reckless driving); R. v. George (1960), which found that degrees of mens rea can be different for different crimes, so that a person can at the same time be not criminally responsible for theft, but criminally responsible for assault.

Kerwin died in office on February 2, 1963.

Wishart Flett Spence CC OBE (1904–1998) was appointed to the Supreme Court on May 30, 1963, by Lester Pearson. Spence was born in Toronto. He earned a BA in political science from U of T, studied at Osgoode Hall, passed the bar in 1928, then earned a master’s from Harvard Law School the next year. He was a judge of the High Court of Justice of Ontario from 1950 to 1963. As a justice, he chaired the Royal Commission which examined the Munsinger Affair of 1966. Spence retired on December 29, 1978. He died at the age of 94 in 1998.

William Rogers McIntyre CC (1918–2009) was appointed to the Supreme Court by Pierre Trudeau on January 1, 1979. His appointment marked the first time three Westerners were on the Supreme Court at once, lasting until Roland Martland was replaced by Bertha Wilson in 1982. Born in Lachine QC, he moved to Moose Jaw as a child. He earned a BA from the University of Saskatchewan in 1939, then joined the Army. When he returned from WWII, he got a Bachelor of Laws degree from USASK, passed the bar in 1947, and went to practice law in Victoria, BC. He was appointed to the Supreme Court of British Columbia in 1967, then the British Columbia Court of Appeal in 1973. McIntyre retired on February 15, 1989. He died of throat cancer 20 years later.

The Rt. Hon. Beverly McLachlin PC (1943-now) was appointed to the Supreme Court by Brian Mulroney on March 30, 1989. Born Beverly Gietz in Pincher Creek, AB, she studied law at the University of Alberta, where she married Roderick “Rory” McLachlin, a biologist, in 1966. She passed the Bar of Alberta in 1969, then she moved to BC and passed the bar there in 1971. She became a law professor at UBC in 1974, then a judge of the County Court of Vancouver in April of 1981, then a judge of the Supreme Court of British Columbia that September. She was appointed to the British Columbia Court of Appeal in December 1985, and was appointed Chief Justice of the Supreme Court of British Columbia in September 1988, the year her husband died. Seven months later, she was appointed to the Supreme Court.

Jean Chrétien elevated her to Chief Justice on Jan. 7, 2000. She served as acting Governor-General in 2004, when Adrienne Clarkson was having a pacemaker implanted, during which time McLachlin gave assent to the Same Sex Marriage Act. McLachlin was given the French Legion of Honour in 2008. On September 22, 2013, she became the longest-serving Chief Justice of Canada, a record set in 1892 by Sir William Ritchie.

One of McLachlin’s first cases as Chief Justice was 2000’s Reference re Firearms Act, in which the Court found that the federal government’s power to regulate firearms was basically a function of the federal power over criminal law, as opposed to the regulation of personal property, a provincial jurisdiction; and therefore, the long-gun registry was legal. Other important cases of the McLachlin Court include R. v. Derrah (2000), which found the so-called “rape shield law” – protecting rape victims from having to answer questions about their sexual history in court – to be constitutional; Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (2000), which found that customs officials had the constitutional right to refuse the import of obscene materials, but struck down a clause of the Customs Act placing the onus on the importer to prove the materials are not obscene; R. v. Latimer (2001), which controversially ruled that Robert Latimer’s mercy killing of his severely disabled daughter was illegal; Law Society of British Columbia v. Mangat (2001), which said that a non-lawyer may be able to practice law under a federal statute, even if it contradicts a provincial law; Cooper v. Hobart (2001), which found that governmental regulators do not have a duty to protect the investors of the persons or businesses they discipline; RWDSU Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. (2002), which ruled that secondary picketing is free speech; R. v. Hall (2002), which upheld the ability of judges to deny bail “to maintain confidence in the administration of justice”; Sauvé v. Canada (Attorney General) (2002), which gave prisoners the right to vote; Harvard College v. Canada (Commissioner of Patents) (2002), which held that higher life forms are not patentable; Siemens v. Manitoba (Attorney General) (2003), which found that province-wide plebiscites were a legitimate exercise of the provincial power over “local matters”; Miglin v. Miglin (2003), which set out new rules for re-opening a separation agreement under the Divorce Act; Figueroa v. Canada (Attorney General) (2003), which declared a section of the Elections Act requiring a political party to field at least 50 candidates before being recognized as an official party to be unconstitutional; R. v. Asante-Mensah (2003), which decided that a reasonable amount of force can be used in a citizen’s arrest; Doucet-Boudreau v. Nova Scotia (Minister of Education) (2003), which defined the scope of minority-language education rights under the Charter of Rights and Freedoms, and penalties for their violation; R. v. Malmo-Levine, R. v. Caine and R. v. Clay (all 2003), which found prohibitions on marijuana to be constitutional; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004), which defined how parents and teachers can legally spank their children; Monsanto Canada Inc. v. Schmeiser (2004), in which a farmer who intentionally harvested and replanted the seeds of crops accidentally sown in his field from a nearly experimental farm constituted copyright infringement; Syndicat Northcrest v. Amselem (2004), which said that freedom of religion includes practices where the individual sincerely feels it is connected to religion, regardless of whether or not it’s required by a religious authority; R. v. Mann (2004), which found that police can search a person detained for questioning, but they can only search for concealed weapons; Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (2004), which found the “reasonable limits” on rights mentioned in Section 1 of the Charter can include service cutbacks taken due to a severe fiscal crisis; Auton (Guardian ad litem of) v. British Columbia (Attorney General) (2004), which found the equality guarantees in the charter do not protect government funding for non-essential medical care (specifically, behavioural therapy for autistic children); Reference re Same-Sex Marriage (2004), which declared Parliament had the authority to legalize gay marriage; Canada (House of Commons) v. Vaid (2005), which defined what constitutes “parliamentary privilege”; Chaoulli v. Quebec (Attorney General) (2005), which struck down sections of the Quebec Health Insurance Act forbidding the purchase of certain types of private health insurance; British Columbia v. Imperial Tobacco Canada Ltd., (2005), which decided a government could sue a tobacco company for recovery of health care costs; R. v. Turcotte (2005), which ruled that exercising the right to silence could not be taken into account as “post-offence conduct”; R. v. Labaye and R. v. Kouri (both 2005), which ruled that consensual group sex in a private place was not an indecent act; Childs v. Desormeaux (2006), which found the host of a party is not liable for injuries inflicted by a drunken guest; R. v. Bryan (2007), which upheld the law banning publication of federal election results until all polls nationwide are closed; Canada Western Bank v. Alberta (2007), which found that a federally-regulated business is not immune from provincial regulation if the province has the power to regulate those areas; R. v. Kang-Brown and R. v. A.M. (both 2008), which limited the police use of sniffer dogs; Alberta v. Hutterian Brethren of Wilson Colony (2009), which found mandatory photographs for government licenses do violate freedom of religion, but is permissible under Section 1 of the Charter; Miazga v. Kovello Estate (2009), which established standards for torts of malicious prosecution against Crown prosecutors, and that Crown prosecutors were not obliged to have a subjective assumption of guilt in order to conduct a prosecution; R. v. J.A. (2011), which found that sexual consent given in advance is not legally binding; Reference re Securities Act (2011), which found the federal government could not constitutionally make a nationwide securities regulator without the express consent of all the provinces; Canada (Attorney General) v. PHS Community Services Society (2011), which found that although laws against trafficking drugs in the Controlled Drugs and Substances Act do not violate the Charter, the failure to provide exemptions to those laws at safe-injection sites does; Canada (Attorney General) v. Bedford (2013), which struck down a number of laws surrounding the restriction of prostitution; and Reference re Supreme Court Act (2014), which found not only that the government could not use a Federal Court judge to fill a Quebec vacancy on the Supreme Court (thus invalidating the appointment of Richard Nadon to the Supreme Court) but also that alterations to the composition of the Supreme Court require a constitutional amendment.

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