Davies Court


The Davies Court was the period in the history of the Supreme Court of Canada from 1918 to 1924, during which Louis Henry Davies served as Chief Justice of Canada. Davies succeeded Charles Fitzpatrick as Chief Justice after the latter's resignation, and held the position until his death on May 1, 1924.
The Davies Court, much like all iterations of the Supreme Court prior to 1949, was largely overshadowed by the Judicial Committee of the Privy Council, which served as the highest court of appeal in Canada, and whose decisions on Canadian appeals were binding on all Canadian courts.
The Davies Court continued to face many of the same criticisms as its predecessors, the Ritchie Court, Strong Court, Taschereau Court, and Fitzpatrick Court including the concerns about the quality and partisan nature of the appointments, and the growing political role of the justices.

Membership

The Supreme Court Act, 1875 established the Supreme Court of Canada, composed of six justices, two of whom were allocated to Quebec under law, in recognition of the province's unique civil law system. Early appointments to the Court reflected an unwritten regional balance, with two justices from Ontario and two from the Maritimes. Western Canada was not represented until the early 1900s.
On October 21, 1918, Chief Justice Charles Fitzpatrick unexpectedly resigned at age 66, citing declining health. Historians Snell and Vaughan note, that he had lost interest in judicial work and was more focused on political issues, including the alienation of French Canadians after the Conscription Crisis. Before resigning, Fitzpatrick wrote to Prime Minister Robert Borden and Justice Minister Charles Doherty requesting appointment as Lieutenant Governor of Quebec, which was granted on October 23, 1918.
On October 23, 1918, Prime Minister Borden appointed Louis Henry Davies as the sixth Chief Justice of Canada. Davies, the senior puisne justice with 17 years on the bench, was in poor health at age 73. Two months earlier, he had sent Borden two telegrams expressing interest in the position, citing his credentials, and promising to resign in three years after reaching 20 years of service. Cabinet approved his appointment by a narrow majority. Although it was publicly expected that Lyman Duff or Francis Alexander Anglin would be chosen, Snell and Vaughan note there is little evidence that the government seriously considered other candidates. They describe Davies as a weak choice for Chief Justice, as he was elderly, had not distinguished himself on the Court, and lacked demonstrated leadership ability.
Justices from the Fitzpatrick Court who continued into the Davies Court included John Idington of Ontario, Lyman Duff of British Columbia, Francis Alexander Anglin of Ontario, and Louis-Philippe Brodeur of Quebec.
On October 25, 1918, Borden appointed Pierre-Basile Mignault of Quebec to fill the vacancy created by Fitzpatrick's resignation. Mignault, then 64, was a civil law scholar and professor at McGill University, best known for his nine-volume Droit civil canadien. Snell and Vaughan describe his appointment as strong, bringing scholarly depth and 40 years of legal practice. Others considered included Justice Minister Charles Doherty, Eugène Lafleur, and Louis-Philippe Pelletier.
On January 30, 1924, Prime Minister William Lyon Mackenzie King appointed Albert Malouin of Quebec to replace Justice Brodeur, who had resigned on October 9, 1923. Malouin, 66, was a Quebec Superior Court judge. Snell and Vaughan call his appointment "the least thoughtful in the history of the ." Malouin had not sought the position, was not informed until after the decision, and made clear to his colleagues that he had no interest in serving. He suffered from severe diabetes which he had nearly died from and was in poor health. His appointment was recommended by Ernest Lapointe, overruling Justice Minister Lomer Gouin's preferred candidates, Thibaudeau Rinfret and Louis St. Laurent. Conservative was also considered. Snell and Vaughan suggest Malouin's appointment reflected political infighting between Lapointe and Gouin. Malouin resigned on September 30, 1924, after less than a year on the Court, the second shortest tenure in its history, and the shortest to conclude other than by death.
Justice Brodeur had resigned at age 61 due to poor health and arthritis that impaired his ability to write. Mackenzie King, who described Brodeur as "like a brother or a father," arranged for his appointment as Lieutenant Governor of Quebec, succeeding Fitzpatrick.
On May 1, 1924, Chief Justice Louis Henry Davies died at age 78. He had planned to retire in 1921 but stayed on due to a dispute over the value of his pension. By late 1923, his health had declined to the point that he could no longer perform his duties. Prime Minister Mackenzie King privately accused him of remaining in office too long. On September 16, 1924, Francis Alexander Anglin was appointed as the seventh Chief Justice of Canada.

Timeline

Other branches of government

The Fitzpatrick Court began during the 13th Canadian Parliament, under a majority government led by Unionist Prime Minister Robert Borden.
Borden resigned as Prime Minister due to poor health on July 10, 1920, and was replaced by Arthur Meighen. In the 1921 Federal election, the Liberal Party led by William Lyon Mackenzie King was elected to a majority government.

Relationship with the Judicial Committee of the Privy Council

From 1867 to 1949, the Judicial Committee of the Privy Council served as the highest court of appeal in Canada, and its decisions on Canadian appeals were binding on all Canadian courts. After the creation of the Supreme Court of Canada, parties could still—if both consented—appeal directly from a provincial court of appeal to the Judicial Committee, bypassing the Supreme Court. This became common practice. By 1900, the Privy Council had become dominant in Canadian jurisprudence, often deciding cases with "little or no restraint or respect" for the decisions of the Canadian courts from which the appeals originated. By the early 20th century, it was regarded as a normal part of the Canadian legal system, no longer limited to exceptional cases, a point the Committee itself stressed when urging Canadian lawyers to bring forward only cases of significance or importance.
File:Lyman Poore Duff.jpg|thumb|Lyman Duff became the first Puisne Justice to be appointed to the Judicial Committee of the Privy Council.
In 1895, the Parliament of the United Kingdom amended the Judicial Committee's constituting documents to allow the Queen to summon a limited number of colonial justices. In 1909, Chief Justice Charles Fitzpatrick was appointed to the Imperial Privy Council. In January 1918, Lyman Duff became the first pusine justice to be appointed to the Privy Council.
The appeal to the Privy Council was criticized in English Canada following the growth of anti-imperialist sentiment after the First World War. United Farmers of Ontario Attorney General William Edgar Raney proposed to abolish all appeals from Ontario to the Privy Council, based on the principle of self-government. The Canadian Law Journal and the Law Society of Upper Canada supported the Privy Council and criticized these proposals. At the same time, Quebec Premier Louis-Alexandre Taschereau noted that his province wanted to maintain the appeal. Lord Chancellor Birkenhead made the position of the British government was that the continued existence of an appeal was up to Canada.
  • Board of Commerce case : on the scope of Parliament's authority under the federal power of peace, order and good government. The Supreme Court of Canada split 3–3. Viscount Haldane held that Parliament could not intrude on the provinces' "quasi-sovereign authority" over matters relating to property and civil rights, unless there were "highly exceptional circumstances," such as war or famine. The legislation at issue, which regulated fair prices in trade and commerce, was ruled ultra vires because the subject matter did not meet the emergency standard required to justify federal intervention.
  • Fort Frances Pulp and Paper v Manitoba Free Press : on the scope of Parliament's authority under the federal power of peace, order and good government. The War Measures Act permitted Parliament to implement a price control regime, which was continued after the war. Viscount Haldane held that the emergency powers of peace, order and good government permitted Parliament to temporarily pass laws during great emergencies that would normally be under provincial jurisdiction, and that Parliament may determine when the emergency has ended, and the judiciary needs clear evidence to justify overruling Parliament on the end of an emergency.

    Rulings of the Court

Below is a selection of rulings of the Davies Court.
  • Raymond v Township of Bosanquet : on the duty of care for municipalities and credibility of witnesses. A unanimous Court dismissed an appeal, noting that credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides.
  • Desrosiers v The King : on doctrines of English common law in civil law cases. In a 3–1 decision, Anglin, Brodeur, and Mignault held that English decisions should not be cited as authorities in cases from the Province of Quebec which do not depend upon doctrines derived from English law.
  • Curley v Latreille : on agency in contract under Quebec's civil law. Desrosiers sold hay to McDonnell unaware he was an agent for the dominion government, when McDonnell did not pay, Desrosiers got a court order against McDonnell. Desrosiers then brought an action against the Dominion government as the principal. In a 4–1 decision, the Supreme Court permitted the action against the principal, with justices Anglin, Brodeur, and Mignault rejecting the English common law rule, and applying the language of the Quebec Civil Code.
  • Canada Paper Company v Brown : on nuisance. The unanimous Court issued a permanent injunction preventing a sulphite plant from emitting odors and fumes as it interfered with one individual's ability to enjoy their summer home. Justice Duff noted that in every case the Court would compare the common good of the community with individual claims, and if there was sufficient harm to the common good, an injunction would not be granted.
  • Bedard v Dawson : on federalism and provincial authority to pass laws for the suppression of crime. A unanimous Court held that that Quebec legislation authorizing a judge to order the closing of a disorderly house was valid, and distinct from the federal criminal law powers.