The Lawmakers: Judicial Power and the Shaping of Canadian Federalism

By Martin, Ged | British Journal of Canadian Studies, May 2004 | Go to article overview

The Lawmakers: Judicial Power and the Shaping of Canadian Federalism


Martin, Ged, British Journal of Canadian Studies


John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press for the Osgoode Society for Canadian Legal History, 2002), xx + 453 pp. Cloth. £40. ISBN 0-8020-3751-8.

The Canadian constitution was hacked into its legal form, the British North America Act, during a few hectic weeks of January and February 1867 by a London barrister, F.S. Reilly, a workaholic Irishman who also specialised in train crash litigation. Since he was working from a package of resolutions agreed by conferences of mutually suspicious colonial politicians, it is not surprising that there was, shall we say, some degree of ambiguity in the resulting provisions. Happily, Saywell rides but lightly his untenable theory that at the last minute Macdonald and the British conspired to force unpalatable changes upon French Canada. What matters throughout this superb study is how the resulting document was interpreted. Here, Saywell is in no doubt: the judges and not the politicians have shaped the Canadian constitution. Until 1949, the final arbiter was the Judicial Committee of the Privy Council, that ersatz substitute for a proper imperial court of appeal where British judges struggled to relate parliamentary enactment to their imagination of distant Canadian reality. The long-running debate on the role of the Judicial Committee was effectively surveyed by the British scholar, David B. Swinfen, in his 1987 book, Imperial Appeal, which Saywell acknowledges (although a gremlin consistently misdates it by ninety years). The existence of the Judicial Committee produced two effects. First, it stultified the development of Canada's own Supreme Court, established in 1875, whose judges were trapped in frustrating irrelevance between the nether and upper millstones of provincial and imperial jurisdiction. …

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