The Duff Court was the period in the history of the Supreme Court of Canada from 1933 to 1944, during which Lyman Poore Duff served as Chief Justice of Canada. Duff succeeded Francis Alexander Anglin as Chief Justice following Anglin's resignation, and remained in office until his own resignation on January 7, 1944.
The Duff 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 period of the Duff Court coincided with increasing criticism of the Privy Council and a growing favourable public awareness of the Supreme Court.
The contemporary view of Chief Justice Lyman Duff was that of "Canada's greatest jurist," a characterization that later commentators have criticized for Duff's unoriginal thinking and failure to address social conditions in his decisions. During this period the Court delivered several decisions with enduring jurisprudential significance, including the articulation of an implied bill of rights in Reference Re Alberta Statutes (1938), and recognition of the constitutional status of Inuit in Reference Re Eskimos (1939).
Membership
Under the Supreme Court Act, the Court was composed of seven justices, two of whom were allocated to Quebec under law, in recognition of the province's unique civil law system. Other appointments reflected an unwritten regional balance, with two justices from Ontario, two justices from Western Canada, and one justice from the Maritimes.
Supreme Court appointments during this period also reflected an apparent religious dimension. Chief Justice Anglin had reportedly lobbied for his appointment in part to provide legitimacy for Irish-Catholics in Canada. Anglin's subsequent successors Frank Joseph Hughes, and Hughes replacement Patrick Kerwin were both Irish-Catholics.
Appointment of Chief Justice Duff
Chief Justice Francis Alexander Anglin resigned on February 28, 1933, at the age of 67 due to poor health and died three days later. On March 17, 1933, Prime Minister R.B. Bennett selected Duff as the eighth Chief Justice of Canada. There is little evidence that Bennett considered other candidates for the appointment, but Bennett was cautious about the appointment due to Duff's poor health. Duff had taken several absences from the Court over the previous years, including one for abdominal cancer surgery, and another for what was described as a "complete nervous breakdown." As a condition of the appointment, the government required Duff to sign an undated letter of resignation. His appointment was well received within the legal community.
Former prime minister William Lyon Mackenzie King had passed over Duff for Chief Justice in 1924, despite Duff's seniority over Anglin and his reputation as one of the Court's most capable jurists. Duff's close association with Robert Borden's Conservative government and rumours of alcoholism made his appointment politically untenable for King. Duff's biographer, David Ricardo Williams, argues that alcoholism was not the true reason for his exclusion. Williams instead believes Prime Minister Mackenzie King sought to strengthen Liberal support in Quebec, where Duff's role on the wartime conscription appeals board had been unpopular. Historian Ian Bushnell disputes this interpretation. Anglin himself had written to the Department of Justice opposing Duff's promotion, and the tension between the two continued throughout Anglin's tenure as chief justice.
Membership of the Court
Justices from the Anglin Court who continued into the Duff Court included Thibaudeau Rinfret of Quebec, John Henderson Lamont of Saskatchewan, Robert Smith of Ontario, Lawrence Arthur Dumoulin Cannon of Quebec, and Oswald Smith Crocket of New Brunswick.
On March 17, 1933, Prime Minister R.B. Bennett appointed Frank Joseph Hughes of Ontario to the Supreme Court at the age of 49, filling the vacancy created by the resignation of Chief Justice Anglin. Hughes was called to the bar in 1911 and established in practice in insurance law, and also served for a period as assistant Crown attorney. Snell and Vaughan describe Hughes as a capable appointment. Hughes resigned less than two years later following a heart attack and because of the effects of relocating to Ottawa on his family.
On January 31, 1935, Prime Minister Bennett appointed Henry Hague Davis of Ontario to the Court at the age of 49, filling the vacancy created by the resignation of Justice Smith on December 6, 1933. Davis was called to the bar in 1911, and practised in corporate and criminal defence. In 1933, he was appointed to the Ontario Court of Appeal where he was described as being perceptive and possessing a "discriminating mind." Snell and Vaughan note that no records exist explaining the thirteen-month delay before Smith's replacement was appointed. Smith's vacancy is the longest vacancy in the Supreme Court's history.
On July 20, 1935, Prime Minister Bennett appointed Patrick Kerwin of Ontario to the Court at the age of 45, filling the vacancy created by the resignation of Justice Hughes on February 12, 1935. Kerwin was called to the bar in 1911 and practised in Guelph with Donald and future Hugh Guthrie, who later served as Minister of Justice. Kerwin was involved in politics, and served as treasurer of the Conservative Party.
On March 24, 1936, Prime Minister William Lyon Mackenzie King appointed Albert Hudson of Manitoba to the Court at the age of 60, filling the vacancy created by the death of John Henderson Lamont on March 10, 1936. Hudson was called to the Manitoba bar in 1899 and practised in corporate and commercial law. He later entered politics as a Liberal, serving as a member of the Legislative Assembly of Manitoba and Attorney General of Manitoba. From 1921 to 1925 he served in the House of Commons as an independent, during this period he declined two offers from Mackenzie King to serve in his cabinet. Although Hudson did not actively seek appointment to the Court, he indicated that he would accept if offered the position. Contemporary reaction to the appointment was generally positive, particularly in the Prairie provinces and within Liberal circles.
On February 9, 1940, Prime Minister William Lyon Mackenzie King appointed Robert Taschereau of Quebec to the Court at the age of 43, filling the vacancy created by the death of Lawrence Arthur Dumoulin Cannon on December 25, 1939. Tascherau was the son of former Quebec Premier Louis-Alexandre Taschereau and grandson of former Supreme Court Justice Jean-Thomas Taschereau. He was appointed without previous judicial experience and taught criminal law at Laval University and civil law at the University of Ottawa prior to his appointment. Snell and Vaughan note the appointment was unexpected, and he was not the government's first choice.
On April 22, 1943, Prime Minister William Lyon Mackenzie King appointed Ivan Rand of New Brunswick to the Court at the age of 58, filling the vacancy created by the retirement of Oswald Smith Crocket. Rand read law prior to attending Harvard Law School, and served in the Legislative Assembly of New Brunswick as a Liberal. He was also New Brunswick's attorney general from 1924 to 1925. Rand had been appointed out of private practice as counsel for the Canadian National Railway in its Montreal office. Snell and Vaughan describe Rand as "one of the most outstanding legal minds" from the Maritimes.
Resignation of Chief Justice Duff
Chief justice Duff reached the mandatory retirement age of 75 in January 1940, but bi-partisan support in Parliament extended his tenure for an additional three years. This remains the only instance in which Parliament has waived the mandatory retirement age for a Supreme Court justice. The reasons for the extension are not entirely clear. Mackenzie King's diary refers only to wartime considerations, although Duff was widely regarded as a leading legal authority. Prime Minister King's diary also notes that he considered the Court to be weak at the time and, in discussions with Justice Minister Ernest Lapointe, concluded that there was no suitable candidate from British Columbia to replace Duff or a justice on the Court to assume the position of chief justice.
By 1943, opposition in Parliament to the extension had increased. The opposition cited both Duff's age of 78 and his role as chair of the Royal Commission on Canada's deployment to Hong Kong, which had exonerated the government of fault. In private correspondence, Duff acknowledged to friends that he felt the effects of age. Duff retired as Chief Justice on January 7, 1944, after 37 years on the bench. The following day, the Court's senior justice, Thibaudeau Rinfret was appointed the ninth chief justice.
Timeline
Other branches of government
The Duff Court began during the 17th Canadian Parliament, under a majority government led by Conservative Prime Minister R. B. Bennett.
The Court's tenure overlapped with two general elections. In 1935, the Liberal Party, led by former prime minister William Lyon Mackenzie King won a majority and formed government. In the 1940 election, King's Liberals was elected to another majority government.
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, parties could still—if both consented—appeal directly from a provincial court of appeal to the Judicial Committee, bypassing the Supreme Court. This became common practice. By 1900, the Privy Council had become dominant in Canadian jurisprudence, often deciding cases with "little or no restraint or respect" for the decisions of the Canadian courts from which the appeals originated. By the early 20th century, it was regarded as a normal part of the Canadian legal system, no longer limited to exceptional cases, a point the Committee itself stressed when urging Canadian lawyers to bring forward only cases of significance or importance.
In 1895, the Parliament of the United Kingdom amended the Judicial Committee's constituting documents to allow the queen to summon a limited number of colonial justices. In January 1918, Lyman Duff became the first pusine justice to be appointed to the Privy Council.
Growing nationalist sentiment in Canada during the 1930s increased support for abolishing appeals to the Privy Council. Legal commentators were also unsettled when the Privy Council pivot to a federalist position in the 1920s, and then back to a provincial rights position in the constitutional decisions concerning New Deal reforms in the 1930s. Critics such as Frank Scott criticized the Privy Council for being "ignorant of the Canadian environment." In 1939, Conservative Member of Parliament Charles Cahan introduced a private members bill to abolish appeals to the Privy Council. Justice Minister Ernest Lapointe referred the bill to the Supreme Court, which held by a 4–2 decision that Parliament had the authority to abolish the appeal.
British Coal Corp v R (1935): competency of Parliament to abolish appeals to the Privy Council. Amendments to the Criminal Code passed in 1933 abolished criminal appeals to the Privy Council after the 1888 amendments were struck down in Nadan v R (1926). Lord Sankey upheld the validity of the abolishment, and emphasized the living tree doctrine. British Coal Corp was the last decision on Canadian law by Lord Sankey.