Vol. 8 No. 4 (April 1998) pp. 216-217.

by Ian Bushnell. Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History, 1997. 447 pp. Cloth $75.00. ISBN 0-8020-4207-4.

Reviewed by Christopher P. Manfredi, Department of Political Science, McGill University.

Ian Bushnell's lengthy history of the Federal Court of Canada, from its origins as the Exchequer Court through the first two decades of its contemporary structure, examines an institution that occupies a problematic place in the Canadian judicial process. Simultaneously overshadowed by the Supreme Court of Canada and the provincial superior courts, the Federal Court is perhaps best known to Canadians as a home for political patronage and a court in whose proceedings federal political officials believe they can meddle with near impunity. Given the important questions raised by these features of the court (including the rationale for its very existence), and the extensive list of key individuals that Bushnell was able to interview, THE FEDERAL COURT OF CANADA is frustratingly superficial for a book of its length.

The superficiality stems from the author's initial choice of approach. Bushnell suggests that legal historians can treat courts as either social or legal institutions, and he opts for the latter approach. As a result, the book focuses on the court's judges and their decisions. The study's highly formalistic analysis is ironic, given Bushnell's enthusiasm for a "contextual" model of judicial decision making. Indeed, to the extent that the study attempts to explain judicial decision making, the author explains judgments as the product of either formal or contextual decision making. In Bushnell's telling, the heroes of the Federal Court's history are its contextualists.

The book is divided into four sections: two dealing with the court's first incarnation as the Exchequer Court, and two dealing with its reorganization into the Federal Court. For the most part, the reader is presented with a detailed chronology of appointments to both versions of the court, descriptions of the appointees' backgrounds, and summaries of key decisions. In some instances these case summaries are very useful. For example, through its analysis of cases, the book provides an excellent tutorial on the development of various doctrines of crown liability. Similarly, one of the most perplexing questions in recent constitutional jurisprudence in Canada concerns the Federal Court's jurisdiction, and I have never been entirely satisfied with my own exposition of this issue to my students. Bushnell's book at least provides a clear analysis of the key cases that makes it easier to understand the issues and how they have been resolved. In this respect, Bushnell's analytical approach has some value.

Nevertheless, there are numerous points in Bushnell's telling of the court's history where the weaknesses of the approach become clear. For example, in discussing the dispute between the Federal Court and the Supreme Court over the former's jurisdiction, Bushnell alludes to a possible feud between the chief justices of the two courts (Jackett of the Federal Court, Laskin of the Supreme Court). However, Bushnell's focus on judicial decisions leads him to discount such "extralegal" explanations for doctrinal developments. Indeed, he goes so far as to say that such speculation "does a great disservice to the professionalism of the chief justice of Canada, and seriously questions the integrity of the other judges of the Supreme Court" (p. 255). For whatever reason, the Supreme Court has been very uncomfortable with the jurisdiction given to the Federal Court. Is this the product of personal animosity between two chief justices? Is it generated by Laskin's concerns for the institutional integrity of his own court? Is it the product of different visions of Canadian federalism and the role of judicial institutions with it? These are the types of questions to which Bushnell's approach does not provide answers.

The weakness of Bushnell's formalistic approach is perhaps most apparent in his relatively brief treatment of the Federal Court's creation in 1971. For the most part Bushnell considers the court's creation as part of a general process of administrative law reform. This is undoubtedly true, but it is only part of the story. As Bushnell only hints at, the court's creation must also be understood as part of the general policy of the Trudeau government to create a sense of pan-Canadian citizenship that might transcend provincial allegiances. The Federal Court could accomplish this by providing for the uniform application of federal administrative law across the country. Moreover, as a circuit court (a
feature to which Bushnell devotes very little attention), the new institution would provide a federal judicial presence throughout Canada. Unfortunately, these are the sorts of political factors that Bushnell's approach downplays.

There is also a frustrating lack of analysis in Bushnell's comparison of formalism and contextualism as methods of judicial decision making. He simply declares that formalism is an outmoded approach that hinders the judicial quest for justice. That may well be true, but it is hardly an uncontroversial or unopposed view. There is simply no attempt to defend contextualism as either normatively or technically superior to formalism as a means of interpreting the law. The closest Bushnell comes to a defence is a quote at the end of the book from Justice Rosalie Abella of the Ontario Court of Appeal, who is hardly a neutral participant in the debate over judicial power. Indeed, there is perhaps no judge in Canada who is more committed than Justice Abella to the idea of courts as vanguards of social reform.

None of the foregoing is to suggest that there aren't advantages to Bushnell's approach, nor value in his study. Anyone in need of details about the judges appointed to the Federal Court and their important decisions can find the information in this book. However, social scientists concerned about courts as socio-political institutions will at best find snippets of information that will simply raise more questions than they answer.

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