Strong Court


The Strong Court was the period in the history of the Supreme Court of Canada from 1892 to 1902, during which Samuel Henry Strong served as Chief Justice of Canada. Strong succeeded William Johnstone Ritchie as chief justice after the latter's death, and held the position until his retirement on November 18, 1902.
The Strong 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 Strong Court continued to face many of the same criticisms previously directed at its predecessor, the Ritchie Court, including concerns about the conduct of its justices, the excessive length and lack of clarity in its rulings, and significant delays in the publication of their decisions.

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. There was no representation from the western territories or British Columbia.
On September 25, 1892, Chief Justice William Johnstone Ritchie died at the age of 78 after a relapse of bronchitis. Early speculation suggested that Prime Minister John Abbott might appoint Justice Minister John Sparrow David Thompson as chief justice. At the time, there was a widely held view that the position should not automatically go to the court's longest-serving member. Prominent Conservative senator James Robert Gowan, a key party advisor on legal matters, strongly opposed this possibility. Gowan wrote to Justice Minister Thompson suggesting that Justice Strong be allowed to retire and that the appointment be delayed. He also expressed a lack of confidence in Strong's work ethic. However, three weeks after becoming prime minister, Thompson appointed Strong as the court's third chief justice.
Justices from the Ritchie Court who continued into the Strong Court included Télésphore Fournier and Henri-Elzéar Taschereau from Quebec; as well as John Wellington Gwynne and Christopher Salmon Patterson of Ontario.
File:Hon. Sir Louis Henry Davies.jpg|thumb|left|Appointed in 1901, Louis Henry Davies is the only Justice in the history of the Supreme Court appointed from Prince Edward Island.
On February 18, 1893, Prime Minister Thompson appointed Robert Sedgewick, Deputy Minister of Justice and a Nova Scotia lawyer, to the Supreme Court to replace the sole Maritimer, chief justice Ritchie. Sedgewick specialized in equity law, lectured at Dalhousie Law School, and was notably young at the time of his appointment, at age 44.
Justice Christopher Salmon Patterson died on July 24, 1893, and was replaced a few months later, on September 21, by George Edwin King, a former premier of New Brunswick and a justice of the Court of Queen's Bench of New Brunswick. King specialized in commercial and criminal law and was described by chief justice Strong as "probably the best commercial lawyer in the Dominion." The appointment of King, a second Maritimer, to replace the Ontario-based Patterson drew criticism amid ongoing concerns about the lack of representation for Western Canada. King had previously been considered a suitable candidate for the Supreme Court as early as 1888.

Growing political involvement in the court's composition

During the Strong Court era, the conservative government grew concerned about the increasing age and frequent absences of several justices. At the time, there was no mandatory retirement age. In 1894, the House of Commons passed a motion permitting any justice of the Supreme Court who had reached the age of 70, with at least 15 years of judicial service and five years on the Supreme Court, to retire with a lifetime pension equal to their salary. When this failed to prompt the retirement of Justices Gwynne and Fournier, Justice Minister Charles Tupper wrote to chief justice Strong to inform him that he would ask both justices to retire or introduce a bill in Parliament to compel their retirement. Tupper also asked the court registrar to provide information on the age, attendance, and delayed cases associated with Gwynne and Fournier, though the Registrar provided only a narrow response to the request. Chief Justice Strong was described as "going out of his way" to support and cooperate with Tupper's initiative.
Justice Strong replied to Tupper, stating that he did not believe a pension would be sufficient to encourage the retirement of Gwynne or Fournier. Instead, he recommended instituting a mandatory retirement age of 80. Emboldened by Strong's support, Tupper contacted Gwynne and Fournier to request their retirement. Fournier agreed to retire following a leave of absence. Gwynne also reportedly agreed to retire but remained on the bench after the Conservative government failed to identify a suitable replacement.
Justice Télésphore Fournier retired from the court on September 12, 1895, and was succeeded by Désiré Girouard, a former Conservative Member of Parliament and mayor of Dorval, Quebec. Girouard was an author and contributor to legal journals and had been critical of the Supreme Court during his time in Parliament. He had not previously served as a judge and had declined appointments to lower courts, but was praised for his role in addressing the McGreevy-Langevin scandal in Parliament.
When the Liberal government under Prime Minister Wilfrid Laurier came to power in 1896, it adopted a more cautious approach to changing the Supreme Court's membership. This caution persisted despite calls from the Ontario and Quebec Bars for the removal of Justices Strong and Gwynne. Laurier prepared for vacancies by identifying willing nominees in advance, allowing for swift appointments when the opportunity arose. Although David Mills had been selected to succeed Gwynne, the Liberals chose not to pressure or entice Gwynne into retirement, which frustrated Mills.
George Edwin King died on May 7, 1901, and was succeeded in September of that year by Louis Henry Davies, a former Liberal Premier of Prince Edward Island, Member of Parliament, Senator, and Cabinet member in the Laurier's government. Davies became the only justice in the court's history from Prince Edward Island. Despite his high political profile, Davies had little legal experience, having practiced law for only five years before entering politics. His patronage appointment was attributed to his service to the Liberal Party and drew criticism from the legal community.
John Wellington Gwynne had reportedly agreed to retire in 1896, but when the Conservative government failed to find a suitable replacement, he agreed to remain on the court. After the Laurier government came to power, it identified David Mills, a Liberal Member of Parliament and Senator from Ontario, as Gwynne's successor. However, the Laurier declined to pressure Gwynne into retirement. Gwynne died on January 7, 1902, and Mills was appointed to the court on February 8, 1902. Mills lacked significant legal experience, having only begun practising law in the 1880s despite graduating from law school in 1855. His appointment was widely regarded as a patronage reward from Laurier. Mills had long been promised a seat on the Supreme Court and had actively interfered with the appointment of other judges to preserve his place. He also refused offers of appointment to lower courts and government positions. His appointment drew sharp criticism for his age which he was already 71, limited legal practice, and the overtly political nature of his selection.
On November 18, 1902, the Strong Court came to an end when Chief Justice Strong resigned from the court after Justice Minister Charles Fitzpatrick arranged for him to receive both his judicial pension and a salary as chair of a commission to revise and consolidate the statutes of Canada.

Timeline

Other branches of government

The Strong Court began during the 7th Canadian Parliament, under a majority government led by Conservative Prime Minister John Abbott. Abbott was succeeded by Conservative John Sparrow David Thompson, who served from 1892 until his death in 1894. Mackenzie Bowell was named prime minister, serving until 1896, when Charles Tupper briefly assumed the role for 69-days. Tupper was succeeded by Liberal leader Wilfrid Laurier, who won the 1896 general election.
The Strong Court overlapped with two general elections, in 1896 and 1900, both of which resulted in majority victories for Wilfrid Laurier's Liberals.

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, it remained possible—if both parties consented—for appeals to proceed directly from a provincial court of appeal to the Judicial Committee, bypassing the Supreme Court entirely. By 1900, the Privy Council had become dominant in Canadian jurisprudence, often deciding Canadian cases with "little or no restraint or respect" for the decisions of the Canadian courts from which the appeals originated. During the Strong Court, 5.1 per cent of decisions of the Supreme Court were appealed to the Privy Council.
Many important cases continued to bypass the Supreme Court from provincial courts of appeal. In Cunningham v Homma, the Privy Council upheld a British Columbia law that prohibited Japanese Canadians and Chinese Canadians from voting in provincial elections.
In 1895, the Parliament of the United Kingdom amended the constituting documents of the Judicial Committee to allow the Queen to summon a limited number of justices from the colonies. In 1897, Chief Justice Strong became the first Canadian justice to sit on the Judicial Committee. As the position was unpaid, the Canadian government provided Strong with a $1,000 travel allowance. He attended the Committee from 1897 to 1900, remained a member until his death in 1909, sat on 28 reported appeals, and authored eight decisions. Some of these significant decisions include:
  • The City of Winnipeg v Barrett : on the Manitoba Schools Question. The Supreme Court of Canada unanimously overturned the decision of the Court of Queen's Bench of Manitoba, and struck down legislation that effectively ended the official status of the French language. However, the Privy Council overturned the Supreme Court's decision, restoring the legislation.
  • Reference Re Manitoba Education Statutes : on the Manitoba Schools Question. In a 3–2 majority, the Supreme Court of Canada held that there was no right of appeal under section 93 of the Constitution Act, 1867 or the Manitoba Act to the federal government, and that remedial orders could therefore not be issued. As counsel for Manitoba refused to appear before the court, the Chief Justice appointed Christopher Robinson as amicus curiae to present Manitoba's position. The Privy Council overturned the Supreme Court's decision, holding that a right of appeal did exist under the Manitoba Act.
  • Local Prohibition Case : on core principles of the federal peace, order and good government power. In a pair of companion cases, the Supreme Court of Canada delivered conflicting decisions on the validity of an Ontario prohibition law—first upholding it under the double aspect doctrine, and in the subsequent case declaring it ultra vires. The Privy Council ultimately held that the provincial legislation was valid. The decision marked the end of the centralized, Macdonaldian view of the Constitution.
  • Provincial Fisheries Reference : on jurisdictional boundaries of property rights in relation to rivers, lakes, harbors, and fisheries.