Vol. 15 No.2 (February 2005), pp.125-127

THE SUPREME COURT OF NOVA SCOTIA, 1754-2004: FROM IMPERIAL BASTION TO PROVINCIAL ORACLE., by Philip Gerard, Jim Phillips, and Barry Cahill (eds). University of Toronto Press for the Osgoode Society for Canadian Legal History, 2004. 550pp. Hardcover. CDN$75.00 / US$75.00 / £48.00. ISBN: 0802080219.

Reviewed by Thomas M.J. Bateman, Department of Political Science, St. Thomas University, Fredericton, New Brunswick, Canada.  Email: bateman@stu.ca .

It goes without saying that Canadians have for a long time been preoccupied with what precisely defines them as an independent sovereign country in the northern half of North America. Canada’s Britishness was more a source of division than unity. Official bilingualism coexists with Quebec separatism. And while official multiculturalism is a marker of the kinder and gentler version of the United States, for critics like Gad Horowitz it is a celebration of “Canadian nothingness.” For many, Canadians are Americans with frostbite.

Some clarity may be emerging on this question. A small cottage industry on Canada-U.S. differences has revived since George W. Bush’s consolidation of his presidency after 9/11. Observers on both sides of the border now seem to think the differences between Canadian and Americans are sharper than ever. Canadians are the tolerant, increasingly secular, socially concerned post-materialists, while the Americans are hardening into jingoistic, culturally insular imperialists who know little of the rest of the world, care even less, and in a strange mix of fear and bravado crusade to remake far-off lands in the image of the American Constitution. After the 2004 presidential election, disillusioned Democrats apparently considered moving north where being Canadian is to re-elect Liberals and smoke dope at a gay wedding.

Another way to put it is to ask whether Canada is of North America or merely in it. Perhaps Canada is the Europe of North America, drifting politically and culturally eastward while the U.S. estranges its erstwhile allies.

The book under review addresses none of these questions. But it adds interesting historical background to a complete answer to them. THE SUPREME COURT OF NOVA SCOTIA, 1954-2004: FROM IMPERIAL BASTION TO PROVINCIAL ORACLE is, as its title implies, about the superior court of one Crown colony that later became a Canadian province. Nova Scotia lies in a pivotal geographical and historical position between the United States and the rest of the Atlantic community of nations. A book on the history of the Nova Scotia Supreme Court reminds us of what we too easily forget: Canada’s early relationship was not really to Europe at all, but to the United Kingdom, and to a lesser extent France. As Canada matured and expanded after Confederation, the political and economic centre of gravity shifted westward, and with this shift the British connection attenuated.  [*126]

Throughout this period, Canada was a North American political order, facing issues of development, expansion, and state-building that likened it more to the U.S. than to the Old World. For those familiar with eastern Canada and for those who live there (after living in Alberta for many years, the reviewer now calls New Brunswick home), a flash of recognition is experienced when they learn, as James Muir and Jim Phillips put it in one essay, “The Nova Scotia Supreme Court . . . was an Atlantic institution” (p.285)—not North American, not European, not British, but Atlantic, absorbing the influences of the countries that line its shores.

This collection of essays is the latest in a series published by the Osgoode Society for Canadian Legal History, produced to commemorate the 250th anniversary of the “oldest surviving common law court in Canada.” The essays are a diverse blend of jurisprudential analysis and socio-political investigation, all taking an historical perspective.

Three themes stand out. The first is that the early Supreme Court was an instrument of Empire. Judges did more than judge. They had a hand in the executive government of the colony, and filled the ceremonial roles by which the state penetrated a largely rural, sparsely populated Nova Scotia society. The Court was a “highly visible manifestation, and a crucial bulwark, of royal authority” (p.53; also see pp.75, 162, 259-60, 284). Imperial authority was all the more carefully cultivated because the Empire did want local political and legal forms to fuel independence in British North America the way they did in the thirteen colonies to the south.

Imperial policy took the form, in part, of direct appointment of judicial officers from the United Kingdom, a practice not at all resented by the locals. What many locals did resent was the movement into the province of Loyalists from the United States, whose affinity for the Crown was matched by an ambition, competence, and acumen that put many longtime Nova Scotians to shame (pp.68ff).

And this leads to a second theme explored in several essays, the influence of American legal forms on Nova Scotia law and judicial conduct. In this regard it is significant that the first Chief Justice of the Court, Jonathan Belcher, pursued an undistinguished legal career in London and Dublin before his appointment to the Nova Scotia bench and had the Tory and Anglican credentials one would expect of an Imperial appointee. But Belcher himself was an ex-patriate New Englander whose father was a governor of Massachusetts. Bernard Hibbitts’ “Her Majesty’s Yankees: American Authority in the Supreme Court of Nova Scotia, 1837-1901” documents the influence of American law on Nova Scotia and in so doing helps paint a complex picture of the Nova Scotian legal and political environment.

The decline of American and British influence in Nova Scotia occurred in step with the rise of Canadian influence. It took time, but Nova Scotia law, in complex ways, began to reflect the province’s place in the wider Canadian political union. The Court took its cues increasingly from the Supreme Court of Canada, straying somewhat from the legal formalism of the Judicial Committee of the Privy Council (JCPC). [*127] Here, too, grand narratives sometimes mislead: very local political issues prompted the Nova Scotia Court to adopt the Macdonaldian view of the status of provinces under the terms of the British North American Act, while the Court nonetheless adhered to a decentralist reading of the division of powers, as was  favoured by the JCPC (pp.407-29).

The essays, thirdly, fill in the details of the development of judicial independence, judicial impartiality, and the separation of powers in the province. It is easy to intone about judicial independence as a basic principle of the rule of law and liberal democracy. Nova Scotia’s history indicates that these principles in their current incarnations are not that old.

Commemorative studies like this one often harbour one fault: they are long on celebration and short on critical reflection. Not until the 1960s was the Supreme Court divided into trial and appeal divisions. Why did this take so long? The reader is not given a full explanation.

Worse, the Nova Scotia Supreme Court has the unfortunate status of being the site of one of the most flagrant and notorious wrongful convictions in Canadian legal history. A young aboriginal man, Donald Marshall Jr., was convicted of murder in 1971 by the Nova Scotia Supreme Court. After the accumulation of revelations of racism and incompetence reaching the highest levels, the Court of Appeal in 1983 finally acquitted him of murder, but also blamed him for many of the circumstances surrounding his wrongful conviction. A subsequent Royal Commission report unearthed myriad deep and distressing problems in the whole legal order and touched off a long period of reform in Nova Scotia. Yet the Marshall affair is mentioned only once in one essay in this book, and author Philip Gerard draws attention only to the poor morale it produced among members of the Court (p.189).

These concerns aside, the essays in this history of the Supreme Court of Nova Scotia reacquaint us with Canada’s colonial history and the role of judicial institutions in that history. Nova Scotia’s early “Atlantic” character foreshadows by very many years Canada’s ambiguous and shifting relations to the Atlantic countries.

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© Copyright 2005 by the author, Thomas M.J. Bateman.