Supreme Court Season 2: Season of the SCC: Part 8

Cartwright CJ, Laskin CJ, Le Dain J, Cory J, Arbour J, Charron J, Karakatsanis J

Cartwright CJ, Laskin CJ, Le Dain J, Cory J, Arbour J, Charron J, Karakatsanis J

 

On December 22, 1949, two new justices were added to the Supreme Court. The more senior of the two was the Rt. Hon. John Robert Cartwright PC CC MC (1895-1979). Born in Toronto, Cartwright went to UCC and Osgoode Hall, then signed up for the Army in World War I. He was wounded twice in battle, awarded the Military Cross, rose to the rank of captain, and served as an aide-de-camp to three generals. After the war, Cartwright passed the bar in 1920 and took up private practice in Toronto. In 1947, he was prosecuting counsel for the federal government in spy trials resulting from the Kellock-Taschereau Commission.

Cartwright became Chief Justice on Sept. 1, 1967. The most important cases of his tenure included Carnation Co. v. Quebec Agricultural Marketing Board (1968), which found provincial laws overlapping with federal commerce laws are not necessarily invalidated; R. v. Whitfield (1969), which set the definition of arrest as needing to include actual physical seizure or detention; Walter v. Attorney General of Alberta (1969), which upheld provincial restrictions on communal land ownership, despite incidentally discriminating against Hutterites and Doukhobors; and R. v. Drybones (1970), which empowered the courts to strike down federal legislation which contravened the 1960 Bill of Rights, an important precedent once the Charter of Rights and Freedoms was passed in 1982. Cartwright retired from the bench on March 13, 1970, and returned to private practice. He died in 1979.

The Rt. Hon. Bora Laskin PC CC FRSC (1912-1984) was appointed to the Supreme Court on March 19, 1970. Laskin was born in Ft. William, ON, which is now Thunder Bay. His brother, Saul, was later the mayor of Thunder Bay. Bora went to U of T, Osgoode Hall, and Harvard Law School, called to the bar in 1937, and taught law at U of T and Osgoode Hall from 1940 to 1965. He was a judge of the Ontario Court of Appeal from 1965 to 1970.

Laskin became Chief Justice on Dec. 27, 1973, to the shock of many in the legal community, who expected Pierre Trudeau to follow tradition and appoint as chief the senior-most justice, Ronald Martland. The tail end of Laskin’s court saw the proclamation of the Charter of Rights and Freedoms, and in many ways Bora Laskin was Canada’s first modern Chief Justice. Jordan House Ltd. v. Menow (1974) found bars had a duty to make sure drunk guests arrive home safely; Canadian Aero Service Ltd. v. O’Malley (1974) ruled that a subsidiary company’s directors have fiduciary duties to their parent company; Attorney General of Canada v. Lavell (1974) ruled it was not contrary to the Bill of Rights to deprive Native women of their benefits if they marry non-Native men (a ruling which influenced the drafting of the Charter of Rights and Freedoms; the law in question was repealed in 1985); R. v. Kienapple (1975) established the “Kienapple principle”, where you can’t be charged with more than one crime from the same act; Jones v. Attorney General of New Brunswick (1975) found the Official Languages Act constitutionally valid; Interprovincial Cooperatives v. Dryden Chemicals Ltd. (1975) decided a province cannot constitutionally pass laws that apply to other provinces; Morgan v. Prince Edward Island (Attorney General) (1976) upheld a provincial limiting non-residents’ ability to own land; Reference re Anti-Inflation Act (1976) found the federal government had the power to control inflation; MacDonald v. Vapor Canada Ltd. (1976) struck down a clause of the Trade-marks Act penalizing practices “contrary to honest industrial or commercial usage” for being a provincial power; R. v. Miller and Cockriell (1977) upheld the death penalty as constitutional; R. v. Leary (1977) limited the use of the intoxication defence; R. v. Kruger and al. (1977) found Aboriginal hunting rights don’t automatically supersede provincial gaming laws; R. v. Smithers (1978) defined how involved in a death you have to be before you can be charged with manslaughter; Capital Cities Communications Inc. v. CRTC (1978) decided cable TV is within federal jurisdiction; Attorney General of Quebec v. Kellogg’s Co. of Canada (1978) allowed provinces to regulate TV advertising; Nova Scotia Board of Censors v. McNeil (1978) decided film censorship is not criminal law and is a provincial power; Attorney General of Canada and Dupond v. City of Montreal (1978) decided municipalities can control parade traffic by passing anti-nuisance laws; Reference Re Agricultural Products Marketing Act (1978), a.k.a. the “Egg Reference”, upheld the legality of a federal agricultural marketing scheme; R. v. Manitoba Fisheries Ltd. (1978) defined a regulatory taking as expropriation; Cherneskey v. Armadale Publishers (1979) found a defence of fair comment is not applicable if the editors don’t agree with the comment; R. v. Dunlop and Sylvester (1979) ruled that just being at the scene of a crime doesn’t count as aiding and abetting; R. v. Lewis (1979) found not all criminal acts require a motive; R. v. Solosky (1980) declared solicitor-client privilege to be a fundamental right; R. v. Pappajohn (1980) limited the use of a mistake of fact defence in rape trials; Pettkus v. Becker (1980) reformed property distribution in common-law separations; Reibl v. Hughes (1980) held that doctors obtaining medical consent have a duty to disclose all risks fully; R. v. Ron Engineering and Construction (Eastern) Ltd. (1981) found the issuing of a call for tenders constitutes a contract in and of itself; Reference re Residential Tenancies Act (1981) set out the separation of jurisdiction between courts and administrative bodies; Seneca College v. Bhadauria (1981) found discrimination does not exist as a tort in common law; Reference re Resolution to Amend the Contitution (1981) set the parameters for the patriation of the Constitution of Canada; Minister of Justice v. Borowski (1981) set the standard for public interest standing to challenge the legality of a law; Ontario Human Rights Commission v. Etobicoke (1982) stuck down unjustified age discrimination; R. v. Vetrovec (1982) established the ability for judges to warn juries about the untrustworthiness of witness testimony; Shell Oil Co. v. Commissioner of Patents (1982) found the new use for an old compound is patentable; R. v. Saskatchewan Wheat Pool (1983) found any tort of breach of statutory duty is subsumed by the law of civil or criminal negligence; R. v. Perka (1984) limited the defence of necessity to occasions where involuntariness is strictly limited; and Reference re Upper Churchill Water Rights Reversion Act (1984) found that legislation passed by the government of Newfoundland to take back water rights contracted out to the province of Quebec was unconstitutional.

Laskin died in office on March 26, 1984. His son, John Laskin, was a judge of the Ontario Court of Appeal.

Gerald Eric Le Dain CC (1924-2007) was Pierre Trudeau’s final appointment to the Supreme Court on May 29, 1984. Born in Montreal, Le Dain served in the artillery in World War II, then went to McGill, passed the bar in 1949, then earned a doctorate in law from the Université de Lyon. He taught law at McGill, then was dean of Osgoode Hall Law School from 1967 to 1972. In the early 1970s he became a hero to stoners by chairing the Royal Commission of Inquiry into the Non-Medical Use of Drugs from 1969 to 1973, which recommended the decriminalization of marijuana.

Le Dain sat on the Federal Court of Canada from 1975 to 1984. He left the Supreme Court on Nov. 30, 1988, and died in 2007.

Peter deCarteret Cory CC (1924-now) was appointed to the Supreme Court on Feb. 1, 1989. Born in Windsor, ON, Cory flew bombers in the Air Force in World War II, then went to UWO and Osgoode Hall and passed the bar in 1950. He practiced law in Toronto until 1974, then was appointed to the Supreme Court of Ontario, getting a promotion to the Ontario court of Appeal in 1981. Cory retired from judging on June 1, 1999, and has since been Chancellor of York University and Honorary Colonel of the 426 Transport Training Squadron.

Louise Arbour CC (1947-now) was elevated to the Court on Sept. 15, 1999. Arbour was born in Montreal, the daughter of a successful hotelier. She attended the Université de Montréal, clerked for Supreme Court justice Louis-Philippe Pigeon, and passed the Quebec bar in 1971. She taught at Osgoode Hall from 1974 to 1987, when she was appointed to the Supreme Court of Ontario, then to the Ontario Court of Appeal in 1990. In 1996, Arbour was appointed as the UN’s chief prosecutor for war crimes in Rwanda and the former Yugoslavia, where she made headlines for indicting Slobodan Milosevic for crimes against humanity.

Arbour left the Supreme Court on June 30, 2004, to serve as the UN High Commissioner of Human Rights from 2004 to 2008, and was inducted into the French Legion of Honour in 2011. She is now the president of the International Crisis Group.

Louise Charron CC (1951-now) was elevated to the Supreme Court on Oct. 4, 2004. Born in Sturgeo Falls, ON, Charron went to Carleton U and the University of Ottawa and passed the bar in 1977. She practiced civil litigation and served in the Crown Attorney’s Office before teaching at U of O. She was appointed to the District Court of Ontario in 1988 and to the Court of Appeal for Ontario in 1995, and concurrently served on the Nunavut Court of Justice from 1999 to 2004. Charron left the Court on Aug. 30, 2011, and is now a fellow of the Trudeau Foundation, a liberal advocacy group.

Andromache Karakatsanis (1955-now) was appointed to the Court on Oct. 21, 2011. Karakatsanis was born in Toronto to flagrantly Greek parents who owned a souvlaki restaurant. She went to U of T and Osgoode Hall and passed the Ontario bar in 1982. She clerked for judges of the Ontario Court of Appeal and practised privately before entering a string of high-level jobs in the Ontario government: Vice-Chair of the Liquor Licensing Board of Ontario in 1987, Chair and CEO of the LLBO in 1988, Deputy Attorney General and Secretary of the Ontario Native Affairs Secretariat in 1995, Deputy Attorney General for Ontario in 1997, Secretary of the Cabinet and Clerk of the Executive Council of the Government of Ontario in 2000, and finally was appointed to the Ontario Superior Court of Justice in 2002 and elevated to the Ontario Court of Appeal in 2010, where she served a year and a half before joining the Supreme Court.

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