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Supreme Court of Canada
Taschereau Court
Strong Court ← → Fitzpatrick Court
	Henri Elzéar Taschereau in 1898.
	November 21, 1902 – May 1, 1906; (3 years, 161 days)
Seat	Second Supreme Court of Canada building
No. of positions	6

Taschereau Court (1902–1906)

The Taschereau Court refers to the period in the history of the Supreme Court of Canada from 1902 to 1906, during which Henri Elzéar Taschereau served as Chief Justice of Canada. Taschereau succeeded Samuel Henry Strong as Chief Justice after the latter's resignation, and held the position until his retirement on May 1, 1906.

The Taschereau Court, much like all iterations of the Supreme Court prior to 1949, was largely overshadowed by 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.

The Taschereau Court is known for the considerable turnover of justices during its short existence, with two new appointees dying in 1903 and resignations from other appointees after a short period on the bench. Additionally, the Taschereau Court continued to face many of the same criticisms as its predecessor, the Ritchie Court and Strong Court, including the concerns about the conduct of its justices, the excessive length and lack of clarity in its decisions, and significant delays in the publication of those decisions.

Membership

The Supreme Court Act, 1875 established the Supreme Court of Canada, composed of six justices, two of whom were allocated to Quebec under law, in recognition of the province's unique civil law system.^[1]^[2]^{[ps 1]} Early appointments to the Court reflected an unwritten regional balance, with two justices from Ontario and two from the Maritimes.^[3]^[4] There was no representation from the western territories or British Columbia.^[5]

On November 17, 1902, Chief Justice Samuel Henry Strong resigned from the Court after Justice Minister Charles Fitzpatrick arranged for Strong to receive both his judicial pension and a salary as chair of a commission to revise and consolidate the statutes of Canada.^[6]^[7] Justice Taschereau was elevated to the role of Chief Justice, following the tradition of the most senior puisne justice being appointed to the role.^[8] Taschereau became the first Quebec justice to hold the position of chief justice.^[9] Snell and Vaughn note that Taschereau was viewed by the legal community as the most qualified justice on the Court at the time, and the appointment would help legitimize the Supreme Court in the eyes of Quebec.^[9]

Justices from the Taschereau Court who continued into the Strong Court included Robert Sedgewick, Désiré Girouard, Louis Henry Davies, David Mills.

With the elevation of Taschereau to the role of Chief Justice, Strong's position on the court was replaced with John Douglas Armour, the Chief Justice of Ontario. Prior to the appointment, Armour had spent 24 years as a judge, but was already in poor health.^[10] Armour only participated in two sessions of the Court, before dying in England during his service on the Alaska Boundary Commission.^[9]

On May 8, 1903, David Mills died, and was replaced a week later, on May 16 by Wallace Nesbitt, a lawyer from Ontario who practiced in Toronto and Hamilton.^[9] Snell and Vaughn note that Nesbitt was a strong choice, both with his strong reputation and relatively young age of 45.^[9] Nesbitt was a conservative, which in the era of partisan appointments by the Liberal Laurier government was unusual.^[9]

On July 11, 1903, Armour died after only seven months after his appointment, and was replaced with Albert Clements Killam, the Chief Justice of Manitoba and first Western appointment to the Supreme Court of Canada.^[11] Prior to Killam's appointment, there had been significant pressure from western bar associations and members of Parliament to have representation on the Supreme Court.^[11] Killam practiced law for eight years, briefly served as a Conservative member of the Legislative Assembly of Manitoba, and was appointed to the Court of Queen's Bench of Manitoba in 1885.^[11] Killam was also a younger appointment like Nesbitt, at the age of 53.^[11]

Killam's time on the Supreme Court was short, and on February 6, 1905, Killam retired to become Chief Commissioner of the Board of Railway Commissioners.^[12] On February 10, John Idington was appointed to the Court from the High Court of Justice of Ontario.^[13] With Idington's appointment, the only western justice was reverted back to an Ontario justice. Idington had been a Crown attorney with knowledge of criminal and municipal law. He had limited judicial experience as he was elevated to the Ontario court only a year before his appointment to the Supreme Court.^[13] Idington's appointment was a surprise to the legal community and western Canada, and raised speculation that it was difficult to persuade judges to accept an appointment to the Supreme Court.^[13]

On October 4, 1905, Nesbitt resigned from the Court, for "reasons purely private", one of the few occasions where a justice resigned early.^[13] Snell and Vaughn note that Nesbitt did not appear to be in poor health, and it is likely that a position on the Court was not the career Nesbitt wanted.^[13] On October 5, 1905, James Maclennan was appointed to the Court from the Court of Appeal for Ontario. Maclennan had a specialty in the law of Equity, and had been in a partnership with former Ontario Premier Oliver Mowat, and joined the bench after repeated attempts at elected office in 1888.^[14]

The Taschereau Court ended with the resignation of Chief Justice Henri-Elzéar Taschereau on May 2, 1906, at the age of 69.^[14] Taschereau claimed that his resignation was part of the condition for his appointment to the Imperial Privy Council earlier in 1904, which entitled him to sit on the Judicial Committee of the Privy Council.^[14] Taschereau remained as chief justice until the Laurier government found a replacement.^[14] By his retirement from the Supreme Court, Taschereau had served as a judge for 44 years with over 27 years on the Supreme Court. In his final years on the Court his energy and health had been worsening.^[14]

Timeline

Bar key:

Mackenzie appointee Thompson appointee Bowell appointee Laurier appointee

Other branches of government

The Taschereau Court began during the 9th Canadian Parliament, under a majority government led by Liberal Prime Minister Wilfrid Laurier.

The Taschereau Court overlapped with one general election, in 1904, which resulted in the Liberal party being re-elected to a 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, it remained possible—if both parties consented—for appeals to proceed directly from a provincial court of appeal to the Judicial Committee, bypassing the Supreme Court entirely.^[15] By 1900, the Privy Council had become dominant in Canadian jurisprudence, often deciding Canadian cases with "little or no restraint or respect" for the decisions of the Canadian courts from which the appeals originated.^[16]

Many important cases continued to bypass the Supreme Court from provincial courts of appeal.

In 1895, the Parliament of the United Kingdom amended the constituting documents of the Judicial Committee to allow the Queen to summon a limited number of justices from the colonies.^[17] In 1904, Chief Justice Taschereau was appointed to the Imperial Privy Council which entitled him to sit on the Judicial Committee of the Privy Council.^[14]

Rulings of the Court

The Taschereau Court heard XX cases between 1902 and 1906, averaging X cases per year—significantly more than the preceding Ritchie Court.^[18]

Administration of the Court

The Court operated with a panel of six judges, with a quorum of four judges, meaning that if there was an equal division (3—3), the appeal would be dismissed.^[19]^[20] It was also common for each justice to write their own individual reasons for judgement rather than issuing joint judgments.^[21] This practice, prevalent in the 1880s, continued into the 1890s.^[22] Combined with the frequent dismissal of appeals due to tied votes, made it difficult to establish clear legal precedents or to discern whether a coordinated judicial approach existed. As a result, the Court primarily resolved disputes by applying existing legal principles, rather than by setting new legal standards.^[23] Under the Supreme Court Act, the Court held three sessions per year.^[24]

In its early years, the Court did not sit at a traditional shared bench. Instead, each of the six justices had individual desks. Historians Snell and Vaughan note that this setup coincided with a period in the 1880s marked by deep divisions within the Court and a lack of "consultation and cooperation" among the justices.^[25] The 1890s saw the introduction of judicial conferences.^[26] There is evidence that some justices circulated draft judgments for discussion and engaged in private deliberations.^[26] Nevertheless, the resulting judgments often gave the impression that there was little communication among the justices.^[26]

The Court recognized the right of applicants from Quebec to use either English or French. While French-language materials were accepted, they were translated into English at the Court's expense.^[27] The Supreme Court Act required the Court to publish its own decisions rather than relying on private law reporters, an innovation not found elsewhere in the British Empire. This self-publishing model was intended to ensure that decisions would quickly reach legal professionals and lower court judges.^[28] Judgments published in the Supreme Court Reports were printed in the language in which they were delivered and were not translated.^[27] Despite its promise, the Supreme Court Reports continued to face criticism for numerous shortcomings, including errors, inconsistent editing and citations, a lack of uniform style, poorly written headnotes, and delays from decision to date of publication.^[29]

Growing political role of the Court

The Laurier government appointments to the Supreme Court, minus some exceptions, were high partisan in nature.^[30] Subsequently, during the early 20th century the Court and its justices became involved with national politics through appointments to government bodies and increasing use of reference questions.^[30] The reference questions grew increasingly political, opening the Court up to attack and criticism from the Conservative opposition.^[30]

Changes to the structure and jurisdiction of the Court

Inter-personal issues of the Court

Poor Administration of the Court

Costs and salaries of the Court

Judicial salaries became a public issue in the 1890s, highlighting the importance of alternative income sources, especially as the government sought to encourage justices to retire. For instance, Justice Gwynne served until his death in office at the age of 87.^[6] In 1897, Justice Taschereau requested increased compensation due to the additional responsibilities he assumed during Chief Justice Strong's medical absences.^[31] Strong himself only retired after securing both his judicial pension and a salaried position as chair of a commission to revise and consolidate the statutes of Canada.^[6]

Salary concerns were longstanding. During the 1880s, Supreme Court justices received an annual salary of $7,000 (equivalent to $230,111 in 2023), with the Chief Justice receiving an additional $1,000. Even at the time, this was considered low, and rumours circulated that all the justices, except for Chief Justice Ritchie, had taken several months' salary in advance as loans from banks.^[32] In the 1890s, Supreme Court justices were the third lowest paid in the British Empire, ahead of only Tasmania and Natal. The Colony of Victoria offered judicial salaries nearly twice that of Canada's Supreme Court.^[6] Pensions were also lacking, offering little security and no protections for widows.^[33]

The cost of operating the Supreme Court steadily increased—from $54,530 in 1880 (equivalent to $1,792,564 in 2023), to $60,840 in 1890 (equivalent to $2,208,249 in 2023), and $66,087 in 1900 (equivalent to $2,542,306 in 2023).^[33] These rising costs regularly drew criticism from the opposition. Justice Minister and future Supreme Court Justice David Mills remarked that "maintaining [the Court] costs altogether too much for what it does."^[33]

Expansion of duties of justices

During the late 1890s the Supreme Court justices increasingly took on additional roles at the request of government, reflecting the Court's evolving stature and growing involvement in public affairs beyond the bench. These political and quasi-judicial roles outside of their duties on the bench reflected a gradual increase in respect for the Court.^[17]

Legal philosophy of the Court

Appraisal

Criticisms targeted the politically motivated nature of many judicial appointments.^[34] While some legal journals occasionally defended the Court from criticism in the press, historian Bushnell notes that these defences were motivated more by a desire to uphold the credibility of the legal system as a whole than by support for the Supreme Court itself.^[35] By 1902, only two of the six justices on the Court had prior judicial experience, and the Canadian Law Times observed that the Court's composition was held in the lowest regard in its history.^[34] Prime Minister Wilfrid Laurier appointed 10 justices to the Court, and had the opportunity to shape the Court, however, there was no consistent approach to appointments during the era.^[36] Appointments were a mix of merit, patronage, and government interests, rather than what was best for the development of the Court.^[36]

The Laurier government's appointment of Justice Killam to the Board of Railway Commissioners shortly after his appointment to the Supreme Court was a blow to the respect of the Court. Snell and Vaughn note that by moving an appointment to another judicial board, it demonstrated the Court at during its early period was "a political body subject to partisan political maneuverings of the government."^[12]

References

^ Bushnell 1992, p. 15.
^ Snell & Vaughan 1985, p. 12.
^ Bushnell 1992, pp. 40–42.
^ Snell & Vaughan 1985, p. 27.
^ Snell & Vaughan 1985, pp. 12–15.
^ ^a ^b ^c ^d Snell & Vaughan 1985, p. 65.
^ Bushnell 1992, p. 165.
^ Snell & Vaughan 1985, p. 85.
^ ^a ^b ^c ^d ^e ^f Snell & Vaughan 1985, p. 86.
^ Snell & Vaughan 1985, pp. 85–86.
^ ^a ^b ^c ^d Snell & Vaughan 1985, p. 87.
^ ^a ^b Snell & Vaughan 1985, pp. 87–88.
^ ^a ^b ^c ^d ^e Snell & Vaughan 1985, p. 88.
^ ^a ^b ^c ^d ^e ^f Snell & Vaughan 1985, p. 89.
^ McCormick 2000, p. 2.
^ Macklem, Patrick; Mathen, Carissima, eds. (2022). Canadian Constitutional Law (Sixth ed.). Toronto: Emond Montgomery Publications Limited. p. 74. ISBN 978-1-77462-137-0.
^ ^a ^b Snell & Vaughan 1985, p. 68.
^ Snell & Vaughan 1985, p. 75.
^ Bushnell 1992, pp. 76–77.
^ Snell & Vaughan 1985, p. 67.
^ Bushnell 1992, p. 77.
^ Bushnell 1992, p. 155.
^ Bushnell 1992, pp. 77, 119.
^ Laskin, Bora (1975). "The Supreme Court of Canada: The First One Hundred Years a Capsule Institutional History". Canadian Bar Review. 53 (3): 466. 1975 CanLIIDocs 19.
^ Snell & Vaughan 1985, p. 40.
^ ^a ^b ^c Snell & Vaughan 1985, p. 76.
^ ^a ^b Snell & Vaughan 1985, p. 21.
^ Snell & Vaughan 1985, pp. 35–36.
^ Snell & Vaughan 1985, p. 36, 73.
^ ^a ^b ^c Snell & Vaughan 1985, p. 93.
^ Snell & Vaughan 1985, p. 64.
^ Snell & Vaughan 1985, p. 45.
^ ^a ^b ^c Snell & Vaughan 1985, p. 66.
^ ^a ^b Bushnell 1992, p. 164.
^ Bushnell 1992, p. 161.
^ ^a ^b Snell & Vaughan 1985, p. 82.

Primary sources

^ The Supreme and Exchequer Court Act, S.C. 1875, c. 11 (The Supreme and Exchequer Court Act at Canadiana)

v t e The Strong Court (1892–1902)
1892–93:	S. Strong CJ T. Fournier H. Taschereau J. Gwynne C. Patterson
1893–95:	S. Strong CJ T. Fournier H. Taschereau J. Gwynne R. Sedgewick G. King
1895–1901:	S. Strong CJ H. Taschereau J. Gwynne R. Sedgewick G. King D. Girouard
1901 – January 1902:	S. Strong CJ H. Taschereau J. Gwynne R. Sedgewick D. Girouard L. Davies
February 1902 – November 1902:	S. Strong CJ H. Taschereau R. Sedgewick D. Girouard L. Davies D. Mills