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 ”œpro- fessor” of the history of Canadian fed- eralism, I have waited impatiently for the appearance of this study, the fully mature product of a fulsome career of research, teaching and administra- tion. Most emphatically, John T. Saywell’s seminal The Lawmakers 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.
The pith and substance of The Lawmakers 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 imple- mentation of the Canadian Charter of Rights and Freedoms.
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 longstand- ing domination of Canada’s judicial structures and philosophy by the highly ”œimperial” Judicial Committee of the Privy Council (JCPC) thwarted the devel- opment 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, 1867. Saywell’s study reminds us that the ”œImperial Canada” 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 ”œcolonized” Supreme Court, that it took three decades of obiter dictum and decisions to restore a semblance of balance in the Canadian federal system.
It took a further two decades of obiter dictum and decisions to consolidate this new balance and to open the door to long overdue innovative judicial thinking which, he maintains, is final- ly helping to forge a more robust yet flexible Canadian federalism. ”œThis book has its villains and its saviours. But its fundamental objective,” writes Saywell in his afterward, ”œhas 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.” 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 bril- liant tour de force, he weaves together rich unexplored archival sources with the full range of approaches embedded in the existing historiography " his- torical, textual, doctrinal, prudential, and structural " 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 revi- sionist analysis of the genesis of sec- tions 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 weak- en provincial control over property and civil rights, section 92(13), in return for greater special status for Quebec, was rejected by George- Etienne Cartier and Hector Langevin, two leading fathers of Confederation, who clearly favoured enhanced provincial autonomy. This fateful deci- sion 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.
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 ”œmade in Canada” provincial superior courts and the newly minted Supreme Court " whose jurists perceived " the British North America Act as an Imperial Statute " gave trade and commerce a broad scope and property and civil rights a narrow scope, and believed that the ”œresidual and declaratory clauses meant exactly what they said” were hijacked by the JCPC, dubbed the infallible Caesar. In reality, the JCPC was presided over by a less than eminent body of second- rate, self-indulgent, pompous and often eccentric Law Lords carrying out their Imperial duty in a shabby court- room environment. Saywell destroys the powerful and sustaining myth of a highly confident, invariably unani- mous ”œimperial” JCPC by demonstrat- ing that most of its major decisions were made by a single Law Lord wield- ing the pen. The JCPC’s reliance on strict rules of statutory construction and a categorical dismissal of histori- cal evidence or context in its 1892 Manitoba Schools Act decision allowed the Law Lords to construct, and recon- struct 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 quarter- century and champion of provincial rights.
The three villains in Saywell’s story " dealt with in three tightly argued and superbly crafted chapters in which he deftly cuts through all the competing historical interpretations " are Lord Watson, 1889-1912, Viscount Haldane, 1911-28, and Lord Atkin, 1935-49. The conservative, imperialis- tic Scotsman, William Watson, in a sequence of increasingly ”œinventive” judgments, radically altered the struc- ture of sections 91 and 92 and ”œassert- ed the independent status of the lieutenant governor as the representa- tive of the Crown for all purposes of provincial government.” Watson’s theory of coordi- nate authorities in their respective watertight com- partments, based on his belief that the federation was a compact of colonies/provinces, embold- ened him to ratchet the federal balance irrevocably toward the provincial governments.
The politically ambitious, assimi- lated Scotsman, Viscount Haldane, who sported a ”œcolossal” 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 con- federation of ”œindependent kingdoms” under the tutelage of the British monar- chy. By systematically undermining the ”œPeace, Order and Good Government,” declaratory, regulation of trade and commerce, and criminal law clauses, Haldane effectively transformed Ottawa and the Supreme Court into powerless eunuchs.
The early years of the Great Depression, when Lord John Sankey held sway over the JCPC, are characterized by Saywell as an all- too-brief interlude of ”œprogressive constructionism.” 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 ”œplanted in Canada a living tree capable of growth expansion within its natural limits.” This new spirit, propelled by the Statute of Westminster, found expression in the groundbreaking 1932 Aeronautics 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 ”œPeace, Order and good Government” to grant Ottawa con- trol over the airwaves in the 1932 Radio case. Ottawa’s judicial good for- tune was short-lived. The swing of the judicial pendulum was quickly reversed when anti-statist, free- enterpriser Lord Atkin, following in the footsteps of Canada’s Supreme Court, repudiated ”œprogressive con- structionism” in his 1937 decisions declaring Prime Minister Bennett’s New Deal legislation ultra vires of the Parliament of Canada. Sankey’s ”œliv- ing tree” was replaced with Atkin’s own felicitous metaphor: ”œWhile the ship of state now sails on larger ven- tures and into foreign waters she still retains the watertight compartments which are an essential part of her original structure.”
Ottawa’s dramatic reversal of for- tune 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 jus- tice, was pressured to refer an MP’s pri- vate bill to abolish appeals to the Supreme Court. A majority of Justices confirmed Parliament’s authority, under the Statute of Westminster and ”œPeace, Order, and Good Govern- ment,” 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 ”œthe constitution, maintenance, and organization of a General Court of Appeal,” confirmed the Supreme Court’s decision. Facing a divided Cab- inet and fearful of arousing the ire of the premiers, Mackenzie King opted to delay. Prime Minister St-Laurent, fol- lowing his government’s election in 1949, passed legislation abolishing all appeals.
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 innova- tion, merely wet the reader’s appetite for much more. No doubt, Saywell’s succinct overview will prompt upcom- ing scholars to add flesh to the bones and perhaps even contest his interpre- tation of judicial review. Unfortunately for his readers, he opts not to analyze the impact of Charter review on feder- alism yet acknowledges that the Court’s progressive approach in Charter cases influenced traditional federalism cases.
Despite considerable zigzagging, the Canadianization of the Supreme Court " as reflected in its tendency to lean towards Ottawa " finally restored the balance in the federal system.
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 fed- eral 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 devel- opment of the national interest.
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 mak- ing law but merely ”œdetermining the rules of engagement on the political battleground.”
All said and done, The Lawmakers, without reservation, will stand indefinitely as a very high benchmark for all future studies on judicial power and the shaping of Canadian federalism.