The Supreme Court of Canada and judicial legitimacy: the rise and fall of Chief Justice Lyman Poore Duff.

• Author: Brown, R. Blake

Legal institutions often seek to achieve legitimacy through connections to prominent members of the legal profession. Sir Lyman Poore Duff, a member of the Supreme Court of Canada from 1906 to 1944, was heralded as one of the greatest jurists in Canada's legal history during the 1930s and 1940s. His reputation helped engender confidence in and provide legitimacy to the Supreme Court of Canada.

During the Court's period of transition leading up to the end of appeals to the Judicial Committee of the Privy Council in 1949, Duff emerged as a justice thought capable of leading an independent Court. Although arguably only an adequate jurist, Duffs educational, ethnic, class, and religious background were of the kind required of an authoritative legal figure during this period. Through his work, Duff simultaneously symbolized Canada's independence and its imperial ties to English law. Allusions to British justice and English legal traditions instilled confidence that an independent Supreme Court would be capable of adjudicating cases concerning Canada's Constitution after the elimination of Privy Council appeals. Duff thus served to link the former Dominion of the British Empire and the new and independent Canada of the future.

Although his final day as Chief Justice was said to mark a "milestone in the legal history of Canada", Duffs stature in the Canadian legal community declined significantly after World War II. As the Court's focus on federalism issues gave way to an emphasis on "rights-protection," Duffs influence as a jurist faded into the shadows of legal history.

Les institutions legales cherchent souvent a obtenir leur legitimite en cotoyant d'importantes personalites de la profession juridique. Sir Lyman Poore Duff, membre de la Cour supreme du Canada de 1906 a 1944, a ete designe comme l'un des plus grands juristes de l'histoire juridique da Canada des amenes trente et quarante. Sa reputation a aide a engendrer la confiance dans la Cour supreme du Canada et lui donner sa legitimite.

Pendant la periode de transition de la Cour menant a la fin des appels au Comite Judiciaire da Conseil Prive en 1949, Duff se revela etre un juge capable de diriger une cour independante. Bien que l'on puisse soutenir que Duff n'est qu'un juriste adequat, son education et ses acquis ethnique, religieux et des differends de classes etaient de ceux exiges d'un personnage d'autorite juridique de l'epoque, par son travail, Duff a symbolise a la fois l'independance du Canada mais aussi les liens imperiaux avec le droit anglais. Des allusions a la justice britannique et aux traditions legales anglaises ont inspire la confiance qu'une cour supreme independante serait capable de juger des causes concernant la Constitution du Canada, et ce, meme apres l'elimination des appels au Conseil Prive. Duff a ainsi servi de lien entre l'ancien domaine de l'Empire britannique et le Canada nouveau et independant.

Meme si l'on dit de ses derniers jours en tant que juge en Chef qu'ils font figure de [??]jalons dans l'histoire legale du Canada[??], l'importance de Duff dans la communaute legale a considerablement decline apres la Deuxieme Guerre Mondiale. Alors que la Cour accordait tree importance particuliere a la protection des droits, l'influence de Duff, juriste, s'evanouissait darts les ombres de l'histoire juridique.

Introduction I. The Supreme Court's Need for a Legitimating Figure II. Lyman Poore Duff (1865-1955) III. Requirements Necessary to Legitimate the Court A. Personal Characteristics B. Professional Characteristics 1. Duff and British Justice 2. Duff and Canadian Nationalism 3. Duff's Perceived Constitutional Expertise 4. If Not Duff? Conclusion Great figures make history no less by the myths we create about them than by their actual contributions to the content and spirit of our intellectual life. (1)

Introduction

Perhaps no profession makes a greater use of history and traditions than the legal community. Robes, wigs, ritualized courtroom procedures, and ancient Latin terms have established the majesty of the court to the common citizen, and validated law courts through a demonstration of antiquity. (2) Legal institutions also gain legitimacy through connections to symbolically important members of the legal profession. The Supreme Court of the United States, for example, claims "founding fathers" such as Justices John Marshall and Oliver Wendell Holmes. Marshall's reign as Chief Justice from 1801 to 1835 established the U.S. Supreme Court's reputation and role in judicial review. The U.S. Court's early membership had been bedeviled "by uncertainties about their own status in the young American polity." (3) Marshall, however, ended this uncertainty. He has been portrayed as an ardent defender of the American constitution who "invented American constitutional law" (4) and enunciated principles that preserved individual liberties protected by the Constitution by strengthening the judiciary's power over the legislative branch of government. (5) The perception of Holmes as a "great" judge stemmed from culturally and intellectually fortuitous circumstances in which Progressive legal scholars in the first half of the twentieth century wished to further the type of anti-formalist views attributed to Holmes. (6) As G. Edward White tells us, "Progressives considered Holmes's exposure of the deficiencies of abstract judicial reasoning and his tolerance for the programs of legislative majorities to be manifestations of judicial statesmanship of the highest order." (7) Justices such as Marshall and Holmes represented American legal, social, and cultural ideals, and, in so doing, validated the U.S. Supreme Court and established the authority of its decisions.

Though its history is much shorter than that of its American counterpart, the Supreme Court of Canada has also had justices who helped establish its legitimacy. (8) Foremost among them is Sir Lyman Poore Duff, a member of the Supreme Court from 1906 to 1944, whom the Canadian legal community celebrated during the 1930s and early 1940s as the greatest jurist in Canada's history. Duff's role in lending credibility to the Court may at first appear anachronistic given that the Court was already fifty-five years old in 1930. As Canada's imperial ties to Britain weakened, however, the end of appeals to the Judicial Committee of the Privy Council ("Privy Council") became plausible, and the Court came closer to independence. The "modern" Supreme Court needed a "great" figure. Just as the U.S. Supreme Court required a symbolic figure following its break with England, so too did the Canadian Supreme Court as the end of Privy Council appeals neared.

This article will explore Duff's role in legitimating the Supreme Court of Canada during the period of transition leading to the end of Privy Council appeals in 1949. My purpose is not to present a biography of Duff (which has been done before), (9) nor to attack Duff's reputation, but to understand Duff's role in the Supreme Court's institutional history, and the reasons why his reputation grew in the 1930s and early 1940s. My project here is similar to that undertaken by G. Edward White, who, in his study of the changing image of Oliver Wendell Holmes, Jr., sought to "emphasize the complexity of the process by which the reputation of a judge is established." (10) This article argues that Duff's short-lived fame in the 1930s and 1940s resulted from the increasing likelihood of the abolition of appeals from the Supreme Court of Canada to the Privy Council. To overcome the traditionally poor reputation of the Court, the Canadian legal community required a justice who appeared capable of leading an independent Supreme Court. Duff, though arguably only an adequate jurist, served as a legitimating figure for the Court during the 1930s and early 1940s owing to his educational, ethnic, class, and religious background. Commentators also emphasized his connections to the traditions of British justice, but, in addition, took pains to portray Duff as a loyal Canadian, whose long judicial tenure, work on royal commissions, and perceived expertise in constitutional law ensured that Canada and its constitution would be in good hands if Privy Council appeals ended. (11) This article supports these conclusions through a four-part discussion that establishes the need for a legitimating judicial figure in Canada during the 1930s; provides a short biography of Duff; suggests which personal, professional, and jurisprudential factors permitted Duff to provide credibility to the Supreme Court; and, finally, explores why Duff's stature in the Canadian legal community declined after World War II.

1. The Supreme Court's Need for a Legitimating Figure

   In explaining why Duff became an important judicial figure for the Canadian Supreme Court during the 1930s, it is first necessary to have a basic understanding of the history of the Court, its changing role in Canadian society, and the emerging trends in constitutional and legal analysis that by the 1930s strengthened the movement to end appeals to the Privy Council.

   The British North America Act, 1867 ("BNA Act") gave the Dominion government responsibility for creating a "General Court of Appeal for Canada", (12) and an 1875 act of Parliament established such a court. (13) The original Court consisted of six justices. Lacking its own accommodations, the Court operated from rooms in the Parliament buildings for its first five years. In 1882 the Supreme Court moved into a refurbished building formerly used as a stable and workshop, (14) remaining in this location until moving into the present Supreme Court building in 1946. The Supreme Court, however, was not a highly respected institution during the late nineteenth and early twentieth centuries. The legal community held the Court in low esteem for at least four reasons. First, the Court was unable to select which cases it would hear. For example, if a civil dispute...