The Supreme Court of Canada.

AuthorRand, Ivan C.

INTRODUCTION

From a positivist point of view, and just looking at the bare bones of a court, there isn't very much interesting to say about the Supreme Court of Canada. It's a court. In the first place, when we speak of a court I wonder if we ever try to define a "court". What is a court? We all have some general idea that it's a place where justice is done or decisions are made. But that is the reaction of a sort of semi-emotional notion and it doesn't reach that precision that the lawyer's mind requires.

Now a court may mean an area. The early Anglo-Saxon courts would sit under a tree if necessary. There was no building constructed at that time in which all of the present adjuncts to courts were available. They simply decided things in the open and under the great oaks, I fancy, on many occasion. So, we have this word court and we also have a Supreme Court. (1) And that implies that there are gradations. You can't have something Supreme without something that is less than Supreme. It is rather interesting that from the beginning, certainly the beginning of the Norman series of courts established under Henry II and Edward I, you'll meet this expression in some of the records that a case was referred from what were looked upon as the ordinary official courts to the king and his wiser men. I think I'd be the last one to suggest that in the hierarchy of courts you have an ascending density or depth of wisdom. Sometimes you have. But at any rate we do recognise a gradation of some sort and we have this gradation universally accepted in the west.

The existence of a court may raise a question. Why do we have courts? I think the answer is largely this. What would we do without them? Well, without them the individual himself would settle his own affairs and in the early Anglo-Saxon period that was pretty much the case, that individuals did settle their own accounts. And then in the course of time we had the dooms of the kings forbidding them to settle their own disputes without first resorting to community opinion (i.e., to having it decided by the community), as in the hundred courts and the county courts of those days. And there interposed a factor, which is perhaps difficult for us to understand today, that the average person had little confidence in his neighbour. He wasn't willing that his neighbour or any number of neighbours should decide any issue in which he asserted something which was denied by another. The result was the system of ordeals.

The ordeal was simply the appeal to a superior spirit to do what the individual would not trust men to do. So, the organisation of courts proceeded by slow advance over the centuries. The necessity for some mode of decision is obviously due to the fact that we are individuals each with his interests, each with his assertiveness, each with his aggressiveness, which may interfere with the equal assertion and aggressiveness of his neighbour. Somebody has to draw the line. There must be a law; there must be a determination of that law; and there must be a pronouncement and a decision. We must have some means of settling this clash of interests which is characteristic of every society. Whether you consider the tribes of Africa or the masses of the West, there are clashes of interests and we must have some means of determining one way or the other what the solution will be.

FROM THE SAXONS TO THE NORMANS

We derive our organisation from the English courts and the English courts in turn evolved from the Anglo-Saxon courts. One promise made by William the Conqueror was that he would respect the customs of England. For example, he would allow the child to inherit from his father; that was a fundamental obligation. His purpose was to change the organisation from that which obtained in Normandy and in France generally at that time. In that portion of Europe, the king was more or less a figurehead. The real affective persons were the dukes. William was the Duke of Normandy and he determined that in England he would have a single organisation of the then six kingdoms of England. He would have them loaded into one kingdom and that policy was followed by his successors. And you can see it in the organisation of the courts which proceeded very shortly after his death. Under the Saxons, the essential court structure consisted of the county courts, the hundred courts, and the Witan which was the final court to which there could be no resort until the other courts had been exhausted and unless the matter was of some importance. So, it was rather crude until the Normans. If Canadians, in our confidence as primarily Anglo-Saxon, Norman and French descendants, look back over the period of time that it has taken to reach the stage of rational government, of recognising the duties of the individual as well as the community, we will rather erase any conceit because it has taken about 1500 years to reach the stage that we now expect other countries to reach in a few generations.

The Normans happen to have been the best administrators in Western Europe. They exhibited that from the very beginning. In 1087, the Domesday Book was a massive example of their administrative power, a record of every bit of property owned by any person in that country over which the sovereignty of the Normans had been established. And at the time the community courts determined any issue that remained in doubt. The community didn't decide upon the rights or wrongs of the issue. What the community did in the county court or the hundred court was to determine who should bear the onus in the application of the ordeal. But the ordeal was the judge; the ordeal was the means of determining guilt or innocence, one man's property or another man's property. (2) But that soon underwent a change.

The process of centralisation was implemented by a number of very able administrators who happened to be king. Consider, for example, Henry II from whom we trace back in a lineal descent the courts which we have today. Henry II had what now would be called the Court of Queen's Bench, the Court of Common Pleas, and the Court of Exchequer. Later, the Chancery Court arose. These courts met the condition in England of different customs. The expression "common law" derived from the fact that the royal courts under Henry II [1154-1189] and Edward I [1272-1307] administered one custom. The word "common" is derived from the fact that a particular rule or precept or standard became common to the whole of England. Now, the determination of those rules was a determination in very simple and uncomplex, uncomplicated living. We forget that in England at that time there were no great roads except the Roman roads which had been left for centuries. It was not easy to get from one county to the other. Their lives were simple and issues would rarely be anything more than trespasses. That is to say, they did have the conception of property. If I had an animal, it was looked upon as mine and possession of it was nine points of law. This simply meant that possession was prima facie evidence of ownership. And so complaints in the early stages were limited to the protection of property and the protection of a person. Each man had his value. His hand was worth so much, his arm was worth so much, his eye was worth so much and anybody who deprived him of those had to pay an equivalent as was prescribed by the royal dooms or by the customs. (3)

Our law is fundamentally custom. Custom is un-self-conscious acceptance of a course of action which is looked upon as more generally agreeable than any other or than its qualification. So these customs being established, they became the rules of the common law and are today the basis of our law. But in order to appreciate the spirit of that law we must look not only to the social conditions, which are of the utmost importance, we must look also to the underlying assumptions in the minds of those who determined what the rules should be.

Now we do know that most judges at the time of the conquest were members of the clergy. They were the educated people. They were the people who could read. They were the people who represented whatever of the Roman civilisation was available to people in Western Europe and they gave leadership. One interesting act of William the Conqueror was to declare that there must be a separation between the ecclesiastical courts and the ordinary or common law courts. Thereafter, although the bishop or priest had sat in the county court and the hundred court in all previous times, from this decree onward the bishop was denied that privilege. The ordinary courts gained something from the presence of the bishop or priest and that was the procedure of the canon law.

There was no greater subtlety than existed a thousand years ago among the canonists. In large measure, the procedures of our courts derived from canon law because it had become many-sided; it dealt with an infinite number of situations; and royal ministers had become acquainted with it. The common law, which slowly developed by decisions of the courts, and by legislative action, beginning particularly in the eighteenth and nineteenth centuries, together constituted the "stuff" of our social regulation today.

HIERARCHY OF COURTS

There is the hierarchy of our courts. The office of justice of the peace originated in the reign of Edward III [1327-1377]. They were called conservators of the peace. There was a constable who, after a certain period, walked the streets at night to give the alarm if anything happened; but the organised police is a modern institution. There was a complex of regulation that needed by the nature of things a hierarchy. Starting with the local justice of the peace, we go through the gradations until we finally reach the Supreme Court of Canada. In the early days, the appeal was not as formal and precise as it is today. The king originally sat with some of his officers and they would decide questions submitted...

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