- The Court of Appeal for Ontario: Defining the Right of Appeal, 1792–2013 by Christopher Moore
Legal historians who attend cocktail parties have learned to steel themselves in preparation for the glazed eyes and frozen phrases they too often encounter when they disclose their profession to fellow guests. The view of legal history betrayed by such reactions is unfortunate, because laws and the institutions that create, interpret, apply, and enforce them play a major role in shaping, and reshaping over time, all societies, past and present. If one would understand the nature of particular societies, or the dynamics of societal change in general, the role of law must not be overlooked.
No organization of which this reviewer is aware contributes more to an understanding of the relationship between law and society than does the Osgoode Society for Canadian Legal History. Established in 1979 by the Law Society of Upper Canada, it has now published over 100 volumes of the highest scholarly quality and of extensive thematic breadth. Christopher Moore’s The Court of Appeal for Ontario: Defining the Right of Appeal, 1792–2013 is an important and impressive recent addition to that trove.
Following the development of the court from its inception, in an era when the only available appeal from trial courts was to politicians—the lieutenant-governor and selected members of his cabinet—and there were no appeals at all in criminal cases, to its present status as a universally respected institution whose lead is often followed by courts across Canada and in other parts of the world, Moore describes its progress from varied perspectives and through both macro and micro lenses.
Each chapter—spanning the tenure of one or a group of chief justices—examines the court’s major contributions to law during the period in [End Page 481] question (based on a careful “sample of recorded cases” prepared by a team of senior law students), highlights—often quite vividly—the individual roles of prominent judges, and concludes with a detailed statistical analysis of the entire bench during the period in question (the latter feature might have been better placed in an appendix). The impact on the court of such external influences as the granting of responsible government, the jurisprudence of the United States, appeals to the Judicial Committee of the British Privy Council, the advent of Confederation, the amalgamation of law and equity, the development of a distinct appellate bar, the creation of the Supreme Court of Canada, the imposition of a mandatory retirement age for judges (judicial senility having often been a significant problem theretofore), and the encouragement of “judicial activism” by the Liberal federal governments of Pierre Trudeau and John Turner, is carefully assessed. The concluding appendices include complete listings of the court’s members through the years and their tenure dates, as well as a brief biography of every judge.
Canada’s courts are neither corrupt servants of the elite, as some cynics claim, nor infallible automated justice machines as the more wideeyed seem to think. They are institutions designed to apply state-sanctioned norms of human behaviour to particular disputes through the personal judgment of one or more human adjudicators. Understanding that he is describing an intensely human phenomenon, Moore focuses on the people—the wise and irascible, the diligent and lazy, the subtle and egregious—who contributed most to making this court the sometimes contemptible, and recently world-class, institution it has been and is.
He neither pulls his punches where criticism is called for nor withholds praise where he considers it due. He quotes with apparent relish, for example, a lawyer’s description of the 1945 court as being “an abode of ogres, man-eating trolls, their diet of choice being [young] counsel.” On the side of the ledger he credits three people—Chief Justice George “Bill” Gale, Justice Bora Laskin, and Attorney General/Chief Justice Roy McMurtry—with the primary responsibility for bringing about, through divers contributions culminating in about 1970, the remarkable virtual judicial...