The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (review)

There once was a time when Canadian history undergraduates were expected to navigate through at least one course dedicated to Canada's constitutional development. Admittedly, these surveys were often tinged with a self-satisfied and whiggish celebration of the nation's attainment of responsible government and, in time, political, military, and judicial independence, all within the benevolent ambit of English constitutional governance. Thanks in large part to the waning of 'old-fashioned' political history, these surveys have all but disappeared and one suspects that few students are saddened by the retreat. Still, as John Saywell's The Lawmakers: Judicial Power and the Shaping of Canadian Federalism ably and provocatively demonstrates, the place of the Judicial Committee of the Privy Council (JCPC) in Canada's constitutional history has not yet been fully explored. Indeed, Saywell makes the case that a reappraisal of the JCPC and judicial power is overdue.

This is not to suggest that scholars have ignored constitutional history but that a great deal of effort has been devoted to forwarding either the dominion or the provincialist perspective, as if one side occupied an unassailable high ground. And while Saywell favours the centrist or dominion position in these contests, The Lawmakers is not centred on retracing these well-trod constitutional paths. Rather, Saywell is primarily concerned with detailing how the JCPC's decisions in the three-quarters of a century before 1949 echoed the political and personal philosophies and prejudices of Lord William Watson and Viscount Richard Burdon Haldane. Saywell argues that these philosophies and prejudices - encased in the rhetoric of dispassionate judicial finding - shaped the JCPC's judgments in place of a profound or searching comprehension of the BNA Act or the context of its creation. And once these decisions were delivered by the JCPC, lower courts were faced with the challenge of interpreting subsequent questions in light of these idiosyncratic (and sometimes illogical) philosophies, given the patina of constitutional principle. Not surprisingly, the legacy which followed was often a tortuous one.

Having framed the BNA Act's legislative context in his opening chapter, Saywell's second and third chapters establish an analytical starting point by arguing that in the decade and a half after Confederation, the provincial courts had initiated a 'made in Canada' approach to constitutional interpretation. One of the laudable attributes was that, while the provincial courts and, after the mid-1870s, the Canadian Supreme Court delivered a number of awkward decisions, they were being fashioned by an informed sense of the Canadian context. If errors were being made, at least they were 'our' errors. Indeed, Saywell writes that the members of the Canadian Supreme Court were 'overtly conscious' that constitutional interpretation had to be framed by the context of the times.

Standing in the way of a full articulation of this Canadian approach to constitutional interpretation was the right of appeal to the Judicial Committee of the Privy Council - a right that 'imprisoned' Canada until after the Second World War. The nature of this imprisonment is detailed in Saywell's sixth and seventh chapters examining Watson's and Haldane's legacies as the dominant figures on the JCPC from 1889 to 1928. Admittedly, their approach to Canadian constitutional questions was, in the very least, striking. Eschewing the need to draw on the historical or contemporary context in interpreting the BNA Act - or more accurately, rejecting the context offered up by proponents of the dominion interpretation of the constitution - Watson and Haldane felt no such rein when it came to importing their own sense of relevant context. As a result, while Watson and Haldane consistently portrayed their own approach as reflecting a strict application of the principles underlying the BNA Act, Saywell describes these judgments as being idiosyncratic and problematic. The residual authority vested in the dominion government was stripped of nearly all substance in favour...