What do lawyers find in the Court of Appeal that they don’t find elsewhere?
One 19th-century commentator thought he knew: “More wisdom and learning, more maturity of deliberation, and a . . . superior capacity for wise and impartial adjudication.”
Today we may be more circumspect about declaring one group of judges simply wiser than all the others. But the exclusivity of appeal court practice still has its attraction for lawyers. No witnesses, juries, policemen, or other civilians. Just lawyers and judges, with the facts already established, arguing out subtle interpretations of the law.
There’s also the bracing assumption that a court of appeal is a pillar of the British judicial tradition, ensuring that no citizen can be ordered about without the right to seek redress against wrongdoing or misjudgment.
Turns out, however, that in historical perspective, appeal courts are rather new. In British Columbia, they are commemorating the 150th anniversary of the founding of the colony of British Columbia, courts and all.
But the Court of Appeal, founded 1910, has not yet reached its centenary. It’s the same throughout Canada: The appeal court is invariably younger than the judicial system itself.
That’s even more striking in Britain itself. In the remote past of England, justice was the gift of the crown to its subjects. And when judges were the king’s men, to whom could one expect to appeal the king’s own verdicts?
For a long time, asking for a rehearing was an appeal for mercy, not justice. Well into the 19th century, the main ground of appeal in England was clerical error in the record of proceedings - nothing to do with justice at all.
Such ideas were duly transported to British America. Into the 1840s, the nearest thing to an appeal court in each Canadian colony was the lieutenant governor’s Executive Council - his political advisors, many of them not even lawyers. When the rebels of 1837 were sentenced, there were petitions for clemency, but no appeals, and executions proceeded just days after the trial court verdicts.
That changed quite suddenly in Canada, and it came alongside democratic reform. The same Canadian reformers who instituted responsible government in the 1840s also undertook judicial reform.
They separated the judiciary from the Crown as a matter of principle, and they shrugged off the antique notion that judges had some royal or divine immunity from error.
In 1849, the nine judges of the three superior courts in Canada West were constituted judges of the Court of Error and Appeal, which could hear appeals from any of their three courts. The appeal process had begun to separate itself from the trial, a trend confirmed by the establishment of the Ontario Court of Appeal as a separate court in 1876.
Something similar took place in other provinces. In most, individual trial court verdicts were appealed to the trial court en banc until a separate appeal court became practical.
Unlike the rebels of 1837, Louis Riel could (and did, though without success) appeal his 1885 conviction, first to Manitoba’s Court of Queen’s Bench, then to the Privy Council in England. The separation of British Columbia’s Appeal Court from its Supreme Court in 1910 reflected the growth of the province more than a new philosophy of justice.
England’s courts, more heavily encrusted with medieval traditions, were slower to adapt. It was 1907 before the Court of Criminal Appeal, with a defendant’s right to appeal spelled out, was created there.
The tradition that justice is the crown’s gift to its subjects is preserved in the Lord Chancellor, who is still both head of the courts and a minister of government, though probably not for much longer.
The idea that judicial error was possible was a reforming one, associated with democratic ideas of accountability.
But the emergence of appeal courts also reinforced notions of a hierarchy of courts that seemed to go to the heads of many judges of appeal.
John A. Macdonald believed the head of every Canadian Court of Appeal should be knighted ex officio, and was annoyed when Ontario’s chief justice Hagerty declined the honour.
But, right across Canada, many judges of the new courts of appeal were astonishingly arrogant, rude, prickly about their exalted status, and quarrelsome among themselves about their precedence.
Fortunately, they are not like that any more.
Christopher Moore has recently been consulting on a centenary history of the British Columbia Court of Appeal. He can be reached at www.christophermoore.ca.
