{"id":261805,"date":"2004-04-01T05:00:00","date_gmt":"2004-04-01T10:00:00","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/issues\/the-lawmakers-judicial-power-and-the-shaping-of-canadian-federalism-book-review\/"},"modified":"2025-10-07T19:40:56","modified_gmt":"2025-10-07T23:40:56","slug":"the-lawmakers-judicial-power-and-the-shaping-of-canadian-federalism-book-review","status":"publish","type":"issues","link":"https:\/\/policyoptions.irpp.org\/fr\/2004\/04\/the-lawmakers-judicial-power-and-the-shaping-of-canadian-federalism-book-review\/","title":{"rendered":"The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (compte rendu)"},"content":{"rendered":"

It is exceedingly rare that a reviewer gets the opportunity to lavish unconditional and highly deserved praise on a book and its author. And yet, such an occasion makes the reviewer’s task both easier and more difficult. As a former Saywell student in York University’s graduate history program and a \u201cprofessor\u201d of the history of Canadian federalism, I have waited impatiently for the appearance of this study, the fully mature product of a fulsome career of research, teaching and administration. Most emphatically, John T. Saywell’s seminal The Lawmakers<\/em> was well worth the wait. It is, by far, the most impressive piece of Canadian legal\/historical scholarship that has appeared in a very long time.<\/p>\n

The pith and substance of The Lawmakers<\/em> is central to one’s ability to grasp the nature and import of the contemporary debate swirling around the Supreme Court justices’ contested role in the interpretation and implementation of the Canadian Charter of Rights and Freedoms<\/em>.<\/p>\n

In a remarkably exhaustive and lucid manner, Saywell reconstructs the 140-year story of the evolution of Canada’s system of judicial review and its inevitable impact, first for the worse and eventually for the better, on the painfully slow maturation of a uniquely Canadian form of federal governance. His central thesis is that the longstanding domination of Canada’s judicial structures and philosophy by the highly \u201cimperial\u201d Judicial Committee of the Privy Council (JCPC) thwarted the development of a Canadian jurisprudence and, in so doing, completely distorted the nature of federalism envisaged by the Fathers of Confederation in the British North America Act<\/em>, 1867. Saywell’s study reminds us that the \u201cImperial Canada\u201d mindset, explored so well nowadays by David Cannadine and other new wave Imperial historians, had become so deeply entrenched in the judicial culture of our \u201ccolonized\u201d Supreme Court, that it took three decades of obiter dictum<\/em> and decisions to restore a semblance of balance in the Canadian federal system.<\/p>\n

It took a further two decades of obiter dictum<\/em> and decisions to consolidate this new balance and to open the door to long overdue innovative judicial thinking which, he maintains, is finally helping to forge a more robust yet flexible Canadian federalism. \u201cThis book has its villains and its saviours. But its fundamental objective,\u201d writes Saywell in his afterward, \u201chas been less to cast blame than to show that the law of the constitution is what the judicial lawmakers have said it is, and will be what they say it may be.\u201d A word on Saywell’s methodology for analyzing what was\/is often perceived as a baffling and mysterious judicial review process is essential. In a brilliant tour de force, he weaves together rich unexplored archival sources with the full range of approaches embedded in the existing historiography\u2014 historical, textual, doctrinal, prudential, and structural\u2014 to construct a far more complex, nuanced, dynamic, and highly revealing story of what was at heart a remarkably human process, one deeply influenced by the inherent flaws and strengths of a few prominent and powerful Law Lords, the villains, followed by the saviours, Canada’s Supremes, as they are cheekily referred to by their detractors and supporters. Saywell begins with a moderately revisionist analysis of the genesis of sections 91 and 92, the division of federal and provincial powers, which reside at the heart of the judicial review process. The Colonial Office’s attempt to weaken provincial control over property and civil rights, section 92(13), in return for greater special status for Quebec, was rejected by GeorgeEtienne Cartier and Hector Langevin, two leading fathers of Confederation, who clearly favoured enhanced provincial autonomy. This fateful decision would later allow the JCPC’s Law Lords to fashion section 92(13) into an all-powerful provincial residual powers clause which they used time and time again to trump Ottawa’s much broader Peace, Order and good Government of Canada residual clause.<\/p>\n

This most remarkable judicial revolution, Saywell argues persuasively, need not have materialized. But it did. Why? Because judicial imperialism trounced a nascent, immature Canadian nationalism when the attempt to abolish appeals to the JCPC failed. The \u201cmade in Canada\u201d provincial superior courts and the newly minted Supreme Court\u2014 whose jurists perceived\u2014 the British North America Act<\/em> as an Imperial Statute\u2014 gave trade and commerce a broad scope and property and civil rights a narrow scope, and believed that the \u201cresidual and declaratory clauses meant exactly what they said\u201d were hijacked by the JCPC, dubbed the infallible Caesar. In reality, the JCPC was presided over by a less than eminent body of secondrate, self-indulgent, pompous and often eccentric Law Lords carrying out their Imperial duty in a shabby courtroom environment. Saywell destroys the powerful and sustaining myth of a highly confident, invariably unanimous \u201cimperial\u201d JCPC by demonstrating that most of its major decisions were made by a single Law Lord wielding the pen. The JCPC’s reliance on strict rules of statutory construction and a categorical dismissal of historical evidence or context in its 1892 Manitoba Schools Act<\/em> decision allowed the Law Lords to construct, and reconstruct in case after case, their own highly speculative interpretation of the 1867 Constitution. Sir John A. Macdonald’s profound mistrust of the JCPC propelled him to leave the battle over the nature of federalism up to the corporate sector and a very ambitious, determined and well prepared Oliver Mowat, premier of Ontario for a quartercentury and champion of provincial rights.<\/p>\n

The three villains in Saywell’s story\u2014 dealt with in three tightly argued and superbly crafted chapters in which he deftly cuts through all the competing historical interpretations\u2014 are Lord Watson, 1889-1912, Viscount\u00a0Haldane, 1911-28, and Lord Atkin, 1935-49. The conservative, imperialistic Scotsman, William Watson, in a sequence of increasingly \u201cinventive\u201d judgments, radically altered the structure of sections 91 and 92 and \u201casserted the independent status of the lieutenant governor as the representative of the Crown for all purposes of provincial government.\u201d Watson’s theory of coordinate authorities in their respective watertight compartments, based on his belief that the federation was a compact of colonies\/provinces, emboldened him to ratchet the federal balance irrevocably toward the provincial governments.<\/p>\n

The politically ambitious, assimilated Scotsman, Viscount Haldane, who sported a \u201ccolossal\u201d vanity in the words of Harold Laski, was a self-avowed romantic do-gooder. A mediocre jurist and longtime friend and admirer of Oliver Mowat, Haldane used the JCPC to refashion Canada’s unacceptable quasi-federal system into a loose confederation of \u201cindependent kingdoms\u201d under the tutelage of the British monarchy. By systematically undermining the \u201cPeace, Order and Good Government,\u201d declaratory, regulation of trade and commerce, and criminal law clauses, Haldane effectively transformed Ottawa and the Supreme Court into powerless eunuchs.<\/p>\n

The early years of the Great Depression, when Lord John Sankey held sway over the JCPC, are characterized by Saywell as an alltoo-brief interlude of \u201cprogressive constructionism.\u201d An advocate of big working principles, Sankey breathed a new spirit into judicial review in Edwards (the remarkable 1930 Persons case) when he declared that the British North America Act<\/em> \u201cplanted in Canada a living tree capable of growth expansion within its natural limits.\u201d This new spirit, propelled by the Statute of Westminster, found expression in the groundbreaking 1932 Aeronautics<\/em> case when Sankey used section 132 on Treaty Obligations to grant Ottawa control over the skies, which was followed up by Viscount Dunedin’s resort to \u201cPeace, Order and good Government\u201d to grant Ottawa control over the airwaves in the 1932 Radio case. Ottawa’s judicial good fortune was short-lived. The swing of the judicial pendulum was quickly reversed when anti-statist, freeenterpriser Lord Atkin, following in the footsteps of Canada’s Supreme Court, repudiated \u201cprogressive constructionism\u201d in his 1937 decisions declaring Prime Minister Bennett’s New Deal legislation ultra vires<\/em> of the Parliament of Canada. Sankey’s \u201cliving tree\u201d was replaced with Atkin’s own felicitous metaphor: \u201cWhile the ship of state now sails on larger ventures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.\u201d<\/p>\n

Ottawa’s dramatic reversal of fortune prompted an alliance between academic legal realists and Canadian nationalists to lobby for the abolition of appeals to the JCPC. Reluctant to act, Ernest Lapointe, Prime Minister King’s minister of justice, was pressured to refer an MP’s private bill to abolish appeals to the Supreme Court. A majority of Justices confirmed Parliament’s authority, under the Statute of Westminster and \u201cPeace, Order, and Good Government,\u201d to abolish all appeals. The provinces appealed to the JCPC on the grounds that Ottawa could not abolish unilaterally their right to make appeals. The Law Lords, agreeing with Ottawa’s argument that section 101 granted Parliament exclusive control over \u201cthe constitution, maintenance, and organization of a General Court of Appeal,\u201d confirmed the Supreme Court’s decision. Facing a divided Cabinet and fearful of arousing the ire of the premiers, Mackenzie King opted to delay. Prime Minister St-Laurent, following his government’s election in 1949, passed legislation abolishing all appeals.<\/p>\n

The last two chapters, analyzing the maturation of the Supreme Court through three long decades of decisions restoring the balance of Canadian federalism and two further decades of consolidation and innovation, merely wet the reader’s appetite for much more. No doubt, Saywell’s succinct overview will prompt upcoming scholars to add flesh to the bones and perhaps even contest his interpretation of judicial review. Unfortunately for his readers, he opts not to analyze the impact of Charter review on federalism yet acknowledges that the Court’s progressive approach in Charter cases influenced traditional federalism cases.<\/p>\n

Despite considerable zigzagging, the Canadianization of the Supreme Court\u2014 as reflected in its tendency to lean towards Ottawa\u2014 finally restored the balance in the federal system.<\/p>\n

This development, according to Saywell, came not a moment too soon. The next twenty years were challenging but innovative times for the Supreme Court justices. The Court grappled with the proper meaning of sections 91 and 92 as applied to controversial practical problems such as Ottawa’s spending power and shared-cost programs, the interjurisdictional immunity of federal works and undertakings from provincial regulation, and the right to enforce its international treaty obligations. In creating a unique Canadian jurisprudence in these as well as many other fields, the Supreme Court became a legitimate lawmaking institution, one fully committed to overseeing the development of the national interest.<\/p>\n

Readers will be disappointed that Saywell devotes only four pages to analyzing the Supreme Court’s four landmark constitutional decisions and their impact on federalism. Why? Clearly, he is not a fan of Canada’s constitutional developments since 1982 because he considers that the issues, and the Court’s decisions, were fundamentally political and therefore should have been non-justiciable. In its 1980 Senate and 1981 patriation references and the Quebec veto case, the Supreme Court was no longer making law but merely \u201cdetermining the rules of engagement on the political battleground.\u201d<\/p>\n

All said and done, The Lawmakers<\/em>, without reservation, will stand indefinitely as a very high benchmark for all future studies on judicial power and the shaping of Canadian federalism.<\/p>\n","protected":false},"excerpt":{"rendered":"

It is exceedingly rare that a reviewer gets the opportunity to lavish unconditional and highly deserved praise on a book and its author. And yet, such an occasion makes the reviewer’s task both easier and more difficult. As a former Saywell student in York University’s graduate history program and a \u201cprofessor\u201d of the history of […]<\/p>\n","protected":false},"featured_media":0,"template":"","meta":{"_acf_changed":false,"content-type":"","ep_exclude_from_search":false,"apple_news_api_created_at":"2025-08-30T02:03:48Z","apple_news_api_id":"890e66fe-aafc-447d-bea8-5a299029e4fc","apple_news_api_modified_at":"2025-08-30T02:03:48Z","apple_news_api_revision":"AAAAAAAAAAD\/\/\/\/\/\/\/\/\/\/w==","apple_news_api_share_url":"https:\/\/apple.news\/AiQ5m_qr8RH2-qFopkCnk_A","apple_news_cover_media_provider":"image","apple_news_coverimage":0,"apple_news_coverimage_caption":"","apple_news_cover_video_id":0,"apple_news_cover_video_url":"","apple_news_cover_embedwebvideo_url":"","apple_news_is_hidden":"","apple_news_is_paid":"","apple_news_is_preview":"","apple_news_is_sponsored":"","apple_news_maturity_rating":"","apple_news_metadata":"\"\"","apple_news_pullquote":"","apple_news_pullquote_position":"","apple_news_slug":"","apple_news_sections":[],"apple_news_suppress_video_url":false,"apple_news_use_image_component":false},"categories":[9346],"tags":[],"article-status":[],"irpp-category":[],"section":[],"irpp-tag":[],"class_list":["post-261805","issues","type-issues","status-publish","hentry","category-uncategorized"],"acf":[],"apple_news_notices":[],"yoast_head":"\nThe Lawmakers: Judicial Power and the Shaping of Canadian Federalism (compte rendu)<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/policyoptions.irpp.org\/fr\/2004\/04\/the-lawmakers-judicial-power-and-the-shaping-of-canadian-federalism-book-review\/\" \/>\n<meta property=\"og:locale\" content=\"fr_FR\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (compte rendu)\" \/>\n<meta property=\"og:description\" content=\"It is exceedingly rare that a reviewer gets the opportunity to lavish unconditional and highly deserved praise on a book and its author. 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