Avenue and Ridley reviews The Last Act

The Last Act: Pierre Trudeau, the Gang of Eight and the Fight for Canada by Ron Graham, Alan Lane Canada, 323 pages, $34.00 (2011)

While 1867 is considered Canada's birth year, there is no doubt that 1982 is another watershed twelvemonth in the history of Canada. With the stroke of a pen, our country went from being a Dominion with a supreme parliament to a quasi-republic with a constitutionally entrenched Charter of Rights and Freedoms. Ron Graham’s The Last Act: Pierre Trudeau, the Gang of Eight and the Fight for Canada is a good place to start for anyone looking for a history of the genesis of Canada’s post-1982 constitution and is an interesting read for anyone with even a passing interest in Canadian public affairs.

Prior to 1982, Canada's principal constitutional statute was an act of Westminster, the British North America Act, 1867 (henceforth BNA Act) and contained everything from defence to hospitals to weights and measurements. Over time the BNA Act itself was amended and by 1949 it could be changed by the Canadian parliament, while still being rooted in London. This was problematic, of course, because between 1867 and 1982 Canada and the United Kingdom drifted apart. World Wars or legislation such as the Statute of Westminster, 1931, helped precipitate this, and Canada was still heir to important legal milestones such as the Quebec Act, 1774 or Magna Carta. Indeed, Canadian courts even weighed English common law judgments such as Davis Contractors v Fareham UDC [1956] or Hedley Byrne v Heller [1964] carefully too; but complete constitutional seperation was only a question of time.

Which is where Pierre Trudeau stepped in. Trudeau, an intellectual and university instructor before entering politics, not only wanted constitutional seperation from the United Kingdom, he wanted entrenched rights as well. Affected by the wave of human rights agreements sweeping the western world after 1945 and the heavy handed approach of Maurice Duplessis’ Union Nationale government in Quebec, Trudeau saw entrenched rights as an improvement upon Canada's pre-existing supreme parliament. In 1971 and 1978 efforts towards entrenchment were made, but it was only in the early 1980s after the Quebec Referendum that Trudeau turned his formidable acumen towards the effort. Prepared to move unilaterally, the Supreme Court of Canada’s Reference re a Resolution to amend the Constitution, [1981] reigned in the prime minister and it is subsequent negotiations with the provincial leaders that compose the bulk of this book.

Which itself is a positive contribution to the story and a welcome read for anyone wanting to brush up on the politics and laws of Canada. With Trudeau being such a prominent player, it is hard not to see him as the star, but other key actors: Peter Lougheed, Bill Davis, Roy Romano, Jean Chretien and Rene Leveque’s are given fair treatment as well. Unabashedly pro-Trudeau, it is not a scholarly work but nor does it try to be. Rather, it is a good presentation of this interesting episode of Canadian history in a welcoming and accessible way.

Legal History in Southwestern Ontario

This past week I took a trip up to Southampton, Ontario on mighty Lake Huron. Up and back, we passed through many small towns – many of which undoubtedly look similar to how they did a century ago, except for the striking cenotaphs raised to memorialize the young men sent abroad during the great wars of the 20^th century. With that in mind, I begin today's blog entry with two such cenotaphs, one in Chesley and the other in Harriston.

(The cenotaphs of Chesley [upper] and Harriston [lower])

The trip had much to see with regard to Canadian legal history as well. My first stop in Chatsworth, now a small bedroom community for Owen Sound, was the birthplace of Nellie McClung, an MLA for Alberta and a famous women’s rights activist. In the late 20s, McClung became part of the ‘Famous Five’ who launched Edwards v Canada (Attorney General) [1928] SCR 276 and [1931] AC 124 better known as the 'Persons Case'.

(Chatsworth, Ontario)

It all started in 1916 when women were asked to leave a prostitution trial. Incensed by this, jurist Emily Murphy asked that the Alberta Attorney-General for a court for women by women and the Attorney-General agreed. This was then challenged by a lawyer who claimed that women were not qualified persons according to the British North America Act, 1867 and the case went to the Alberta Court of Appeal whose judgment held women were indeed qualified persons. Murphy wanted to take this national and submitted her name to be named a Senator in the Parliament of Canada. When this was rejected by Prime Minister Robert Borden, Murphy and her fellow appellants, Henrietta Muir Edwards (Vice-President for the province of Alberta of the National Council of Women for Canada); Nellie L. McClung, Louise C. McKinney and Irene Parlby (all of whom were members of the Alberta Legislative Assembly) petitioned the Governor-General to submit the question to the Supreme Court of Canada. This was done with Edwards v Canada (Attorney-General) [1927] SCR 276 in which the Supreme Court held women were not ‘qualified persons’ for the Senate. This was subsequently appealed to the Privy Council in London (as the Supreme Court of Canada was not yet the court of last resort for Canada) where the judgment was reversed in Edwards v Canada [1931] AC 124. Here the Lords concluded that the word 'persons' in s.24 BNA Act includes both men and women.

Besides the obvious point of holding women as qualified persons, Edwards is also remembered for Lord Sankey’s Living Tree Doctrine which held the constitution was like a 'Living Tree’ and that constitutional interpretation is organic and should be read in a broad and liberal fashion so as to change with the times. This would significantly impact later Canadian constitutional and administrative law.

The second site I stopped was the birthplace of Canada’s 13^th Prime Minister, John George Diefenbaker in Neustadt, Ontario. Diefenbaker, the son of a school teacher and the descendant of German immigrants, moved to the Northwest Territories (Saskatchewan) in 1903 where he was later educated at the University of Saskatchewan. He was called to the bar in 1919 after a short time in Europe, and started work as a small town lawyer. Elected to the Canadian parliament in 1940, Diefenbaker would become leader of the Opposition in 1957 and later that year Prime Minister of a minority government. After three decades of Liberal governance there was little front bench strength for the Tories, but this did not stop a massive Diefenbaker majority in 1958. His government would be moved back to minority status in 1962 and was eventually sent across the aisle in 1963.

(The Diefenbaker home)

In 1960 the Parliament of Canada passed the Canadian Bill of Rights. Bills of rights are a longstanding tradition in the Anglo-American legal world, going back to Magna Carta and Diefenbaker, having been influenced by the Saskatchewan Bill of Rights and numerous cases regarding government power, sought to give Canada one of its own. This Bill of Rights was not entrenched however, and as the product of a supreme parliament could be changed at any time. This is one of the reasons why many in the legal community see it as a failure, while supporters of a supreme (sovereign) parliament see it as a true inheritance of Canada's parliamentary tradition. But that is a subject for another day.

So with that, I concluded my little trip of parts of south western Ontario. It was a great little summer adventure and brought us a little closer to Canada’s rich legal history. We hope you enjoyed the trip!

(Lake Huron)

Our Common History: The Inns of Court

Today Avenue and Ridley is presenting a new blog feature titled Our Common History. This feature will mix photographs taken of significant places in the common law world with brief historical descriptions. The first stop in Our Common History will feature the Inns of Court.

The Inns of Court are professional institutes for barristers in England and Wales and count four in number: Gray's Inn, Lincoln's Inn, Middle Temple and Inner Temple. The resiliency of the English inns is unique in the common law world, although there are existing inns in Ireland (both Northern and the Republic) and in the late 1970s the US Chief Justice Warren Burger, sought to import the idea to the United States with some success – although they never took brick and mortar in the Great Republic like they did in London.

Inns of Court are not just professional associations – they also have drama and debating societies, libraries and dining rooms. Gray's Inn is the smallest of the four and the below photographs were taken from Theobald’s Road in Camden. Famous jurists from Gray's include Sir Francis Bacon, Archbishop of Canterbury William Laud and Lord Atkin.

A couple kilometres south of Gray's Inn is Lincoln's Inn. This striking complex closely resembles the campus of an ancient university and is directly north of the Royal Courts of Justice. Famous members of Lincoln’s Inn include: Sir Thomas More, Sir William Gladstone, William Osgoode (First Chief Justice of the Province of Ontario), Lord Denning and Tony Blair.

Across the street from the Royal Courts and due south of Lincoln's Inn, is this building featuring a statue of Sir Thomas More. Sir Thomas authored the famous book Utopia and was one of the first Lord High Chancellors not to be a clergyman. This is ironic considering he would be canonized by the Roman Catholic Church in 1935, exactly 400 years after his martyrdom.

Finally, we come to the Middle and Inner Temple inns. These two were built around the famous Temple Church, home of the Knights Templar and, according to some, clues to the whereabouts of the Holy Grail. When the Knights Templar feel into disrepute, Edward II took royal possession of the church and it eventually ended up in the possession of the Knights Hospitaller, who subsequently rented it to lawyers. Today the Bar ceremonies for both Middle Temple and Inner Temple take place in the church.

Famous Middle Templars include Sir Walter Raleigh, Sir William Blackstone and famous Inner Templars include Lord Coke and Jawaharlal Nehru. The bottom photo is of the River Thames looking towards the Palace of Westminster directly south of the Temple area.

Avenue and Ridley hopes you have enjoyed this little tour of the Inns of Courts and hopes you come back for future adventures around Our Common History.