Chief Justice W.R. Jackett: By the Law of the Land 9780773568075

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C H I E F JUSTICE W.R. J A C K E T T By the Law of the Land

Wilbur Roy Jackett, born in a small town in Saskatchewan in 1914, is inextricably connected to some of the most important developments in Canadian legal history. As scholar, public servant, and jurist, he was a leading figure in Canadian law, serving during the governments of Mackenzie King, St Laurent, Pearson, Diefenbaker, Trudeau, and Clark. After graduating from the University of Saskatchewan's College of Law, Jackett was chosen as a Rhodes scholar. He returned to Canada from Oxford not long before the outbreak of the Second World War and joined the ten-man Department of Justice as a junior lawyer. Through extraordinary hard work, rigorous legal analysis, and a bent for organization, he eventually became Canada's eighth deputy minister of justice. He left this position after three years to become general counsel for the Canadian Pacific Railway and was later appointed president of the Exchequer Court of Canada. He quickly revamped the level of service provided by the court to the legal profession and the public and was instrumental in both the creation of the Canadian Judicial Council and the design and creation of the Federal Court of Canada. As the first chief justice of the Federal Court, he led the new court by example, moulding it into the most efficient and effective court in the country, despite opposition from provincial superior courts and the Supreme Court of Canada. After fifteen years on the bench he retired in 1979 at the height of his judicial career, believing that this would help the court develop. He continued to work in relative obscurity at what he loved best - solving legal problems - but never again appeared before the courts. RICHARD w. POUND is a senior partner at Stikeman, Elliott, chancellor of McGill University, and a member of the International Olympic Committee.

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Chief Justice W.R. Jackett By the Law of the Land R I C H A R D W. POUND

McGill-Queen's University Press Montreal & Kingston • London • Ithaca

© Richard W. Pound 1999 ISBN 0-7735-1898-3 Legal deposit fourth quarter 1999 Bibliotheque nationale du Quebec Printed in Canada on acid-free paper McGill-Queen's University Press acknowledges the financial support of the Government of Canada through the Book Publishing Industry Development Program (BPIDP) for its activities. We also acknowledge the support of the Canada Council for the Arts for our publishing program.

Canada1

Canadian Cataloguing in Publication Data Pound, Richard W. Chief Justice W.R. Jackett: by the law of the land Co-published by the Osgoode Society for Canadian Legal History. Includes bibliographical references and index. ISBN 0-7735-1898-3 1.Jackett, W.R. 2. Canada. Federal Court Biography. 3. Judges - Canada - Biography. I. Osgoode Society for Canadian Legal History. II. Title. KE416.J33P681999 347-7i'o434 C-99-900725-4

This book was typeset by Typo Litho Composition Inc. in 10/12 Palatino.

Contents

FOREWORD INTRODUCTION ILLUSTRATIONS

1 2 3 4 5 6 7 8

Vii ix xiii

Beginnings Oxford Years The Saskatchewan Triumvirate Life in the Department Deputy Minister Interlude: The CPR Years The Exchequer Court of Canada Extracurricular Activities: The Canadian Judicial Council and the Federal Court of Canada 9 The Jackett Court 10 Retirement

3 26 47 60 88 130 145 197 226 277

Appendices 1 Extracts from Chief Justice Laskin's Judgment in the Capricorn Case 2 Department of Justice Lawyers, 1938-65 3 Minister of Justice and Deputy Ministers of Justice 4 Interviewees and Correspondents

291 296 301 304

NOTES

307

INDEX

349

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Foreword

The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity was founded at the initiative of the Honourable R. Roy McMurtry a former attorney general for Ontario, now chief justice of Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research-support program, a graduate student research-assistance program, and work in the fields of oral history and legal archives. The Society publishes volumes of interest to the Society's members that contribute to legal-historical scholarship in Canada, including studies of the courts, the judiciary and the legal profession, biographies, collections of documents, studies in criminology and penology, accounts of significant trials, and work in the social and economic history of the law. Current directors of The Osgoode Society for Canadian Legal History are Jane Banfield, Tom Bastedo, Brian Bucknall, Archie Campbell, J. Douglas Ewart, Martin Friedland, Charles Harnick, John Honsberger, Kenneth Jarvis, Allen Linden, Virginia MacLean, Wendy Matheson, Colin McKinnon, Roy McMurtry, Brendan O'Brien, Peter Oliver, Paul Reinhardt, Joel Richler, James Spence, Harvey Strosberg, and Richard Tinsley. The annual report and information about membership may be obtained by writing The Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N6. When Richard Pound told us he was working on a biography of Wilbur Jackett, former chief justice of the Federal Court of Canada, and asked us

viii Foreword

to consider publication, we were pleased and somewhat sceptical. We had recently published Ian Bushnell's history of the Federal Court of Canada and Wilbur Jackett's attitude towards that enterprise seemed to us to have been a combination of scepticism and disapproval. Chief Justice Jackett, it appeared, was of the old school and believed the judiciary should be, rather like the British Navy in days of yore, 'the silent service/ In the circumstances we wondered whether it would be possible to produce a full and accurate biography. The author has proved us wrong. In this study he paints a portrait of a lawyer who had enormous influence - much of it behind the scenes - on the administration of justice in Canada. Deputy minister of justice. General counsel for the CPR. President of the Exchequer Court of Canada. Scene-setter for the Canadian Judicial Council. Father of and midwife to the new Federal Court of Canada. Leader extraordinaire of that court during its formative years. Rigorous legal thinker and judge. Procedural innovator, yet largely unknown outside a small circle of friends and colleagues. This biography traces Jackett's path through a significant period in Canadian legal history and provides unique glimpses of the Department of Justice and the courts in action. We believe it will be read and appreciated by a wide audience and deserves to occupy an enduring place in Canadian judicial biography. R. Roy McMurtry President Peter N. Oliver Editor-in-Chief

Introduction

The idea for this book came to me in the course of preparation for an income-tax appeal, ultimately spectacularly unsuccessful, in which I had replaced previous counsel. It was possible that members of that firm might be called as witnesses to explain the background of the matters in issue and they could not, therefore, act in the matter before the courts. Wilbur Jackett was advisory counsel to the firm and it was agreed that he would be available to assist in the preparation of the case. I had not seen him since his retirement from the bench in 1979 but had vivid recollections of appearing before him in the Federal Court of Appeal, a daunting but stimulating experience on each occasion for he seemed to know at least as much about my cases as I did. As counsel, you might be able to run for a while, but you certainly could not hide. As we worked on the appeal, I realized that I knew very little about him, so I undertook a quick review of what he had done before going on the bench and then engaged him in some discussion of work in the Department of Justice and on the bench, all of which was enormously interesting. I had just finished another book, which I had enjoyed writing, and was looking for another project, so, one day when I was visiting him at his Gatineau cottage to work on our appeal, I said that I had a proposition for him but that I wanted him to pretend he was still a judge. He asked what I meant. I said that I wanted him to listen to a proposition I was about to make and then to think about it before deciding. He was curious enough to agree. I said that I would like to write a biography of him. He retorted immediately that it was a 'damn fool idea and a waste of time/ I replied that I thought he had made a significant contribution to Canadian

x Introduction

legal history, much of which was extremely interesting but not generally known, and that it was, after all, my time. Anyway, he should think about it and I would call him in a couple of weeks, which he did and I did. Had he thought about it, I asked in the follow-up call? He had and still thought it was a damn fool idea, but said that he supposed he should be flattered that someone thought enough about him to undertake such a project. He did not, however, want to spend too much time on it, since he had a lot of work, which was important to him. I assured him that he would have to invest very little time and that all I wanted was to be able to come and chat with him occasionally. I brought him a copy of my other book, so he could decide whether I had any aptitude for writing. He took it, was uninterested in the subject matter (the 1988 Olympics), but apparently was otherwise satisfied. He returned the book. Thus began a fascinating opportunity to discover the background to important portions of Canadian legal history and the workings of the Department of Justice and the courts. In the process, it became increasingly clear that Jackett had played a far greater role in the development of several Canadian institutions than I had suspected at the outset. It was difficult to get much personal information from Jackett himself, who was extremely protective of his privacy and not at all forthcoming on the subject. He was very suspicious of the whole idea of the book and, to be fair, had no idea of who I was and what I might do with the information. I spent as much time as I could to assure him that this was a biography concerned principally with his legal contributions but that it would not be complete without some personal background of where he grew up, where he studied, and what he thought about some of the events that affected him. So, bit by bit, we established some rapport and I agreed to let him see how I proposed to use the personal material. Apart from my prying into personal and family matters, he was clear that this was to be my book and that he had no desire to be involved in what I might conclude. I was immensely fortunate to discover that his elder sister, Flossie, had kept his letters to the family written when he was at Oxford, and his nephew Jim Woolsey was kind enough to let me see them. Jackett was almost horrified that they still existed; he himself had not kept any such mementos and did not want all this 'personal stuff7 to be in the book. He dashed off a frosty letter, warning me not to use any such material except for the purpose of determining his whereabouts during the relevant period. There were several occasions on which he reached the brink of 'calling the whole thing off' and he said that, if he had known from the outset that there would be so much interviewing of family, friends, and associates, he would never have agreed to it in the first place. The closest to complete disaster came when I prepared some questions for him to ask

Introduction xi

his wife, Kathleen, on my behalf. He was furious and it was only after some time that he consented to provide a written reply to the most innocuous questions, which I have included in the work to underline the protective nature of their relationship as well as the mutual enjoyment they have of each other. There are different views of what an historian should do when writing history or biography. Should the characters speak as much as possible through their own voices? Or is the historian's role to interpret the characters in his or her own words, thereby producing an inevitable overlay of perceptions about events, people, and 'proper' results that may or may not be shared by the characters themselves? I have tried to balance the two views but must confess to a preference for the former, on the basis of my belief that a reader - in order to form a personal view as to any interpretation given by an author - is entitled to know what the character actually said or wrote. I hope that I have been generally successful, especially with Jackett himself, so that some flavour of the man comes alive in his own language. The economics of publishing, alas, require that reams of interesting material must be cut - a painful process for any author. One can be quite sanguine about cutting others' prose, but decidedly less so with one's own. The inevitable result of having to choose is a series of 'snapshots' of the main character, strung together in a manner that creates (one hopes) an overall impression similar to an early motion picture, flickering, but nevertheless containing a sense of continuity moderately satisfying to an audience. I have identified the people who have helped me with the material for this work in appendix 4 and reiterate my profound gratitude for their willingness to be involved. In particular, however, I want to thank The Osgoode Society for Canadian Legal History, not only for its willingness to take on this work as part of its publishing program, but also for its ongoing efforts to encourage writing in this field. Peter Oliver has been indefatigable in providing guidance and counsel as I have tried to bring the work together, and his advice, gently proffered, that a literary tree that falls in the forest may, indeed, make no sound if there is no one to read it, has helped to shape the final product. The assessors engaged to review the manuscript have made many valuable suggestions for improvement. They should share any credit for what may be perceived as useful in the final product; the shortcomings are mine alone. Marilyn MacFarlane has been a great help throughout and a source of much good material which I have incorporated in the work. Finally, I appreciate the understanding that, with my long-time attachment to McGill University, it was my strong preference that the publisher be McGill-Queen's University Press. It was generous of the Society to accommodate that sentiment.

xii Introduction

It conies as a continual shock to me that, despite the evidence of any calendar, there just do not seem to be fifty-two weekends in every year that are available to work on projects of this nature. My family has been most accommodating and has always welcomed the emergence of the basement mole as he makes his way, eyes blinking, towards the sunlight, sometimes voluntarily and sometimes under orders to do so. I thank them for their patience and understanding. Montreal, May 1999.

Jackett home in Tompkins, Alberta. From left, Grandmother Elizabeth Sweet, Wilbur Jackett, Fanny Jackett, Flossie Jackett.

William Henry (Harry) Jackett, c. 1908.

Tompkins, Alberta, 1912. From left, Flossie, Fanny, Wilbur.

Jackett family, Kamsack, 1934. Back row, from left, Marguerite, Wilbur, Audrey, Flossie.

Jackett in his first office in the Justice Building, Ottawa, c. 1939.

Saskatchewan Rhodes scholars in Jackett's rooms at Queen's College, Oxford, 1936. From left, Fred McLean, Francis Leddy, Jackett, J.D. Weir.

Oxford University lacrosse team (1937). Jackett is standing second from left, back row.

Frederick Percy Varcoe, deputy minister of justice, 1941-57.

Donald Spencer Maxwell, deputy minister of justice, 1967-73.

Elmer A. Driedger, deputy minister of justice, 1960-67.

Donald Scarth Thorson, deputy minister of justice, 1973-77.

Kathleen and Wilbur at the unveiling of his portrait at the Federal Court of Canada, 1981.

Investiture as officer of the Order of Canada by Governor General Ed Schreyer, April 1982.

The chief justices of the Federal Court of Canada with senior court officials. From left, Frank lacobucci, Julius Isaac, Huguette Narum (appeals coordinator), Arthur Thurlow, Jackett, Robert Biljan (administrator), 1988.

Jackett, 1960. General counsel, Canadian Pacific Railway.

Chief Justice W.R. Jackett No free man shall be taken or imprisoned or dispossessed, or outlawed or exiled, or in any way destroyed, nor will we go upon him, nor will we send against him except by the lawful judgement of his peers or by the law of the land. Magna Carta, clause 39

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1 Beginnings

Early in the second half of the nineteenth century, four brothers, some accompanied by the beginnings of the next generations of their families, set out from Devonshire, England, to make their lives in Canada. They settled in the general vicinity of Peterborough and of Lindsay, Ontario, and took up farming or the different trades that supported the largely agricultural economy of the area. Many of the brothers' descendants remain in the region and some still farm. Others branched out into different activities as the families expanded and the farms eventually were no longer sufficient to support all the progeny. The women married within the community, many to farmers as well. The Peterborough region is a picturesque part of rural Ontario, featuring rich soil and an abundance of water in its many rivers and connecting lakes. In time, it would become one of the province's more popular 'cottage' areas, providing a haven for residents of Ottawa, Toronto, and even Montreal eager for relief from summers in the city. When the Jackett brothers first arrived, however, there was still much work to be done to clear the land and develop the farms that would make the region's rolling hills a prosperous and reliable agricultural location. One of the brothers, Thomas Jackett, was Wilbur Jackett's great-grandfather. He was born in 1834 in Devonshire, where he married Kaziah (Cassea) Wickett, three years his junior. Although the family records are somewhat spotty, it appears that they had eleven children, five sons and six daughters.1 Their second son, William Henry Jackett, Wilbur Jackett's grandfather, was born in England in 1858, shortly before the family set out for Canada.

4 Chief Justice W.R. Jackett

Thomas Jackett's original trade was that of carriage-maker and, upon arrival in his new country, he first settled in Glendine. His brother Henry farmed in Oakwood, while Albert and Richard settled in Fenelon Falls, where they acquired an interest in the power station established there. In his later years, Thomas became something of a recluse. Although these matters were not much discussed, the family lore has it that either he left Kaziah or she put him out of the house, perhaps as a result of the 'Demon drink/ He took up living on Muskrat Island, a small tract of land in the Upper Scugog River, where he did some hunting and trapping. He would visit the community on occasion for supplies, making the trip by boat in the summer and by walking across the ice of the frozen river in the winter. Since Thomas was well into his seventies at this time, those on shore kept a loose watch over him. In spite of this, Thomas's eventual demise proved as unusual as the latter part of his life had been. In late February 1914 Thomas's on-shore neighbours became concerned when they saw no sign of him for a couple of days. He had come to the mainland for bread, crossing the ice, on a Saturday and returned the same way. A search party, which included two of his sons and two of his sonsin-law, found a bag of bread on the ice and shortly thereafter came upon the grisly sight of Thomas, frozen upright in the ice and water where he had fallen through. The recovery of the body was dangerous because of the current in the river, but the feat was accomplished and Thomas was buried in Lindsay's Riverside Cemetery. His widow lived another five years, dying on 13 June 1919, and is also buried in Riverside Cemetery. Thomas Jackett's second son, William Henry Jackett, married Margaret V. Shouldice, whose family had come to Canada from Ireland in the early part of the century. Their eldest son, named after his father but called 'Harry/ was born in Bobcaygeon, Verulan Township, Victoria County, on 10 November 1882. Bobcaygeon was, at the time, a delightful settlement on the Grand Trunk Railway, twenty miles northeast of Lindsay and eleven miles east of Fenelon Falls, that was laid out in 1834 by its founder, Thomas Need, who had bought the land a year earlier from the first patentee. Need built a mill which was bought out in 1839 by Mossom Boyd, who built the first locks in 1839. By the time Harry Jackett was born in 1882, the population had grown to almost 1,000. The family moved in 1887 to Manvers Township in the same county and later, in 1896, to Janetville, a hamlet in Manvers Township, located on McDermid's Creek, twelve miles south of Lindsay and forty-four miles northwest of Coburg. The population of Janerville was less than a hundred. Margaret Shouldice died in, or shortly after, childbirth at the age of twenty-eight on 22 December 1891. There were six other children of the marriage besides Harry: John James (Jack), born in 1886, Annie, born in

Beginnings 5

1887, Amelia, born in 1888, Henrietta, born in 1889, and Edward and Walter.2 On 26 February 1894, shortly over two years following the death of Margaret, William Henry Jackett married Rebecca Shouldice, his widow's younger sister. Rebecca, born in 1872, was nine years younger than her sister Margaret and fourteen years younger than her husband. She and William farmed for many years in South Ops,3 and they remained married until William's death on 10 December 1937 in Bobcaygeon. His father's second marriage did not sit at all well with twelve-year-old Harry, who refused to remain in their home and left to live in Lindsay, where he learned carpentry for a time before he, together with his younger brother, Jack, left and headed west shortly after the turn of the century. They worked their way as carpenters in the railway towns that were springing up as the conglomeration of railway lines that would, in time, become part of the Canadian National Railways pushed west. With the complications of the many half-relationships and the residual hard feelings that Harry, and possibly Jack, harboured with respect to the second marriage, the Jackett family as a whole is not close and little effort has been made to draw it together. As is the case in most families, such relationships and family history as exist tend to have been nurtured by the women.4 Harry's and Jack's westward movement coincided with a similar, but unconnected, move that would eventually lead to the marriage of Harry and Fanny Sweet. William Gee and Anne Markham were married in 1840 in Cambridgeshire, England, and eight years later emigrated to Upper Canada, settling in Dorchester, near London. Elizabeth Gee was born on 20 January 1856 in Mossley, the seventh of their thirteen children, and would become the family 'character,' living well into her ninety-ninth year until she died in North Battleford, Saskatchewan, on 29 July 1954. In 1880 she married Sheldon Sweet, a slate roofer born in Dorchester in 1852, and they became pioneer homesteaders at Imperial, in the future province of Saskatchewan. Fanny Sweet, their fourth child, was born in Dorchester on i November 1889 and travelled west with her parents. Little remains in the family records of Sheldon Sweet other than a few photographs of an elderly man with a huge moustache. He died on 11 September 1943, in Imperial. 'Lizzy,' on the other hand, became larger than life and clearly dominated the relationship. During the last ten years or so of her life, all ninetyeight years, seven months, and nine days of it, she travelled extensively to visit her grandchildren. She was a remarkable enough character that there was a photograph and article in the Winnipeg Free Press of 17 March 1949 on the occasion of her visit to Winnipeg on a Trans-Canada Airlines flight at the age of ninety-four. At the time of the interview, she was on her way

6 Chief Justice W.R. Jackett

to visit with one of her granddaughters, Amy Seabrook, in North Battleford. It was her first airplane flight and she announced, during her interview, that she was never too old to try something new. She could remember Jesse James and had seen the Countess of Dufferin, wife of the Earl of Dufferin, who had come west, probably on that occasion to inaugurate a railway line and to ride on the train named for her.5 The Sweets were running a boarding house in Southey, one of Saskatchewan's small railway towns, when the Jackett brothers came through in their search for work. By then Harry had been earning his keep as a carpenter at Balgonie, Saskatchewan, for five years. It took almost no time for true love to blossom. Audrey Jackett, the youngest of their children, reports that her father was absolutely smitten when he first saw young Fanny Sweet and thought she was 'the only girl in the world.' Harry and Fanny were married in Southey on 18 November 1908, less than three weeks after her nineteenth birthday; he was twenty-six. He continued his trade and homesteaded, in Southey until 1911, when he was hired by the Beaver Lumber Company, a Winnipeg-based firm that owned and operated a chain of small-town lumber yards in Manitoba and Saskatchewan, to establish a lumber yard in the village of Tompkins, Saskatchewan, on the main Canadian Pacific Railway line, not far from the Alberta border. Although Tompkins was not one of the divisional points on the railway, the railway was nevertheless the most important enterprise in the town, without which Tompkins would likely not have existed. Harry built the family house for the company and then rented it for twenty dollars a month. There would be six children born to Harry and Fanny, two of whom died at birth. Flossie May was born, while the family was still in Southey, on 11 September 1909. The first male child was stillborn. Wilbur Roy was born at home in Tompkins a year and a half later, on 27 June 1912. Marguerite Fern was born two years later, on 9 June 1914, at the small hospital in Maple Creek, Saskatchewan. Audrey was born in Kamsack, Saskatchewan, on 4 April 1920, and the final Jackett child, another boy, was stillborn in 1921. When they were young, Harry Jackett's children often used to go to visit their grandparents in Imperial. Grandma Lizzie Sweet thoroughly disapproved of her husband's smoking, but, following his death, after carefully washing them out with soap and water, she sent all his pipes to her grandson, Wilbur. She was a strong-willed, religious woman with a prodigious memory and a sharp tongue. Sunday, she told one of her grandchildren, was for praying, not curling. She also thoroughly disapproved of cards, viewing them as the work of the devil. This conviction did not, however, prevent her from having her own deck of cards, but that was different, because, she said, there was no gambling with her deck.

Beginnings 7

Flossie became a teacher, in accordance with her father's wishes and despite her own aspirations to become a nurse. After a year at teachers' college to obtain the required authorization, she began teaching at Kamsack's Doyle School in 1928. She was later to teach grade five at Victoria School for many years. Wilbur remembers that, at one stage, she became involved in a disagreement with the local school trustees because she gave lessons on Darwinism. Her teaching provided her with a modest income and she was able to help with the financing of her brother's university education, all of which and more was repaid when Wilbur eventually finished his studies and began to work full time. It would not be until Audrey, her youngest sister, left to study nursing at Yorkton that Flossie would be able to make a career change from teaching to nursing. She and Audrey went through the program together and qualified as registered nurses. Although Flossie was the eldest of the Jackett chidren, she was the last of the four to wed, marrying Reginald Woolsey, a first cousin of the family and considerably older than herself, on 18 November 1942. Reginald was a prospector in Albert Canyon, British Columbia, before he and Flossie moved to Victoria. There, the complement of children born to Flossie and Reginald grew to four.6 Flossie seemed destined to provide much of the caring for both her parents' family and her own. Because of her mother's illnesses, Flossie had played a large part in the raising of her siblings. Probably as a result of this experience, she would never, subsequently, allow anyone else to look after her own children, despite circumstances that might have called for assistance. In an unexpected turn of fortune, she also had to care for Reginald, who was debilitated, relatively early in life, with Alzheimer's disease. As for Flossie's relationship with Wilbur, her help over the years of his youth and studies built up a moral debt that Wilbur never regarded as extinguished, and he regularly helped her make ends meet throughout the rest of her life. Flossie died in Victoria on 4 September 1986. Marguerite, who was to find in Wilbur an idealized older brother, became a registered nurse and married a doctor, Charles Scribner.7 Her career in nursing was more or less in defiance of Harry's wishes. Daughters, particularly younger daughters, appear to be able to 'manage' their fathers, and Marguerite, no exception to the pattern, got a job in the Kamsack hospital to show him that she could do the work that Harry insisted would be too hard for her. When Harry found out, he decided to let her try to become a registered nurse, just so she would prove to herself that she could not do it. She went to train at the City Hospital in Saskatoon, where she did qualify, and then relocated to Winnipeg to work as a nurse. This paved the way for the entry into the same field by Flossie and Audrey a few years later.8

8 Chief Justice W.R. Jackett

It was a feature of the Canadian west that what you did was more important than who you were or where you had come from. Ancestors were ancestors, but what counted in opening up a new territory were your personal accomplishments. Although Harry Jackett had not had the benefit of much formal education, he more than made up for that through unrelenting hard work. He combined his expertise in carpentry with a natural head for business and fully managed a small enterprise for a large company. His advice and good judgment were sought out by many small businesses in the community; indeed he won the confidence of his fellow citizens wherever he settled. In Tompkins, he was on the school board for eight years and was overseer, the equivalent of mayor, of the village for the same period. One of the few pieces of memorabilia kept by Harry was a CPR telegram which he received, as mayor of Tompkins, from Admiral Halsey, chief of staff to the Prince of Wales, later to become King Edward VIII. The Prince of Wales was, at the time, in Victoria, British Columbia, on a royal tour of Canada, one of several such tours within the Empire that he undertook following the First World War on behalf of his father, King George V. The Canadian tour, which had started in Newfoundland on 12 August, moved on to Quebec City by 21 August and to Toronto by 25 August. In Ottawa on i September, Edward laid the cornerstone of the Peace Tower on Parliament Hill, and he then continued through western Canada. The telegram received by Harry Jackett on 29 September 1919 stated: W.H. Jackett Mayor, Tompkins, Sask. Your wire of September 25th. Royal train will stop for few minutes at Tompkins about 3:25 pm October 3rd. No speech must be expected from His Royal Highness. Admiral Halsey, Chief of Staff.

The town turned out, the train stopped to take on fuel and water, no speech was given by His Royal Highness, the train continued east, and Harry saved the telegram. The Jackett family was never wealthy, but, at the same time, was not short of necessities. The lumber business in small western towns, although important to the inhabitants and complicated to run, was, in economic terms, fairly marginal. Both in Tompkins and, later, in Kamsack, Harry took on all sorts of extra jobs to help make ends meet. He was an

Beginnings 9

auctioneer. He had a bachelor partner in a pool hall in Tompkins, who actually lived in the Jackett home for a time and shared a room with Wilbur. The boarder took care to remain on Wilbur's good side and stayed out of a turf war over the bedroom by bringing a regular supply of chocolate to the younger roommate. Harry Jackett ran two or three of the rural telephone companies, which were the full extent of such services in the early days on the prairies, and acted as secretary-treasurer for the farmers involved. He sold coal. His lack of formal schooling may have accounted for his interest in the school boards and the eventual sacrifices the family made to get Wilbur to university. On the other hand, Harry always had a car, first a Model-T Ford and later a Chevrolet Cabriolet. He made a point of never walking to work. He would go to the town barber three times a week for a straight-razor shave. In 1920, shortly before Audrey was born, the Beaver Lumber Company transferred Harry Jackett to Kamsack, Saskatchewan, to open a lumber yard at the divisional point on the railway. Wilbur can remember driving from Tompkins to Kamsack in the family's old Model-T. His father was one of the first in the area to have acquired a 'horseless carriage.' Given the primitive state of the roads in the west at this time, the three- or fourday trip, while exciting to an eight-year-old boy, would have been anything but smooth. KAMSACK, SASKATCHEWAN

The name 'Kamsack' appears to have been derived from the nickname of a well-known local Indian and is believed to be based on the Saulteaux word meaning 'large.'9 It is located in an area that is a legacy of the most recent Ice Age, emerging as the glaciers retreated in stages to the north. A remnant of one of the last stages of withdrawal is a moraine now known as the Duck Mountains, the droppings of part of the accumulated glacial debris. The soil resulting from the decay of the long grass which grew in the area was quite fertile. Trees did not gain much of an early foothold owing to frequent prairie fires. The drainage is into the Assiniboine valley and the tributaries of the Assiniboine River, on which the town is located. The Assiniboine itself drains into the Red River near Winnipeg and the Red drains into Lake Winnipeg. In 1882 there was but a handful of settlers, the number of whom grew to approximately 200 in the next couple of years and that increase, in turn, led to a petition for a post office. The name 'Kamsack' first appeared as the name of the post office located on the farm of one John Moriarty and the post office was moved into the village effective i January 1905. By 1911, the village had been incorporated and declared to have the status of a town.

10 Chief Justice W.R. Jackett

The emergence of Kamsack as a thriving town was, however, a near thing. But for a change in the planned route of the Canadian Northern Railway, Kamsack might never have become at all important. For anyone to prosper in the west in the early days, he had to have food and shelter; for a town to flourish or even exist, it had to be near the railroad. The farther one was from the railway, the more marginal the existence. After all, what was the point of producing crops if you could not bring them to market for sale? Until 1901, a mere eleven years before Wilbur Jackett was born, the survey plan for the Canadian Northern was to take it through Fort Livingstone, some twenty-five miles to the north of Kamsack. This reflected federal government policy of trying not to build railway lines within three miles of Indian reserves, which was part of the agreements reached with the Indians in setting the boundaries of their reserves. But, as in many dealings with native peoples, the original policy became secondary, this time in the face of Ottawa's desire to accelerate the westward development of the country. The particular pressure was a response to the then very aggressive settlement of the American west that was then under way. The American settlers had already reached the west coast and were beginning to cast interested glances at the vast unsettled tracts of land to the north. The line drawn across forty-nine degrees north latitude was not as apparent to people looking for land as it was to the cartographers. It became politically imperative for the Canadian government to be sure that its people were visibly present. If the earlier promises to the Indians became hostage to this new policy, well, so be it.10 Kamsack had another lucky break. The basic plan for the railway, as it opened up the west, was for there to be a station approximately every ten miles along the line. The idea was to make it possible for farmers to be able to reach a railway station by wagon and to return to their farms in the course of a single day. This system allowed many villages to develop in the Kamsack area. These included Togo (originally Felly Siding, but renamed after Japanese Admiral Togo, who achieved a major victory at the Battle of Tshushima in the Russian-Japanese War that had ended shortly before), Runnymeade (the native home of one of the English construction workers on the railroad), Cote (named after the Saulteaux Indian Chief), Veregin (named after the Doukhobor leader who joined his followers in the area in 1902), and, of course, Kamsack itself. The bonus for Kamsack was that it was selected as a divisional point, one of the stations at which the locomotives would stop, usually every 150 miles or so, to take on water and fuel. This led to much more rapid and extensive development than would otherwise have occurred. Infrastructure such as roundhouses to turn the locomotives around, accommodation for the trainmen, repair shops, railway sidings for up to 800 railway cars, and an express office

Beginnings 11

sprang up in the town. Stock from Alberta, on its way east to slaughter, had to be fed. Ice houses to hold the ice needed to line the refrigerated railway cars were built and filled with two-foot-by-four-foot, 6oo-pound blocks of ice carved from the Assiniboine River or McEachern's Lake, packed in sawdust. The perishables were kept in the ice house to keep them from spoiling while the refrigerated cars were relined. The railway was the defining industry of the town. It was also its lifeline, since it was virtually impossible to consider any form of travel in the west except by rail until well into the 19308. In the Kamsack area, the roads were nothing more than cart tracks until 1928, when the road from Kamsack to Canora was transformed into an 'earth highway/ The Canadian Northern Railway became part of the Canadian National Railways following creation of the CNR, as a government-owned railway by a federal order-in-council dated 20 December 1919. The purpose was to unite several financially troubled railroads, including the Intercolonial, the Canadian Northern, the Grand Trunk, and the Grand Trunk Pacific. Although the basic structure was established at this time, it would take almost three years, until October 1922, before the separate lines that were to become the CNR would be consolidated into a single system under the control of a corporation with its own board of directors. In 1926 the last of the early grain elevators in Kamsack was built. It is likely that Kamsack was spared from some of the worst ravages of the Depression that was to follow because so many of its citizens were employed by the railroad. As early as 1931, unemployment was severe enough that a cost-sharing program had to be worked out to gravel the streets. Although there was never an outright crop failure in the Kamsack area, the yields dropped to well under one-half of those in the 19205. Kamsack ended up as one of the few towns in all of Saskatchewan that was not forced to ask for federal or provincial assistance to meet its welfare costs. An interesting local vignette has it that the hardship might well have been much greater had it not been for the fact that the supervisor of the Duck Mountain Forest Reserve allowed the poor to cut some trees for firewood. Nor was he especially rigorous in stopping the poaching that occurred. Although the supervisor was, of course, duty bound to patrol the reserve, he made an ostentatious practice of conducting his patrols regularly on Saturdays, when everyone was in town, so that he would not stumble by mistake on poachers. In 1905 Dr J. Ira Wallace, the first doctor in Kamsack, came from Nova Scotia. By 1916, Kamsack had become part of the rudimentary telephone system of the day. The toll office opened earlier in the year and by November there was a telephone exchange in place with seventy-five lines and twenty-eight connected telephones. The first lawyer, Stephen Windsor,

12 Chief Justice W.R. Jackett

arrived in 1912 and another, who would play a part in Jackett's life, Harold Mclntosh Stewart, came following the First World War, in 1919. The year 1921 was an interesting one for Kamsack. Its population broke through the 2,000 barrier. The same year, Sarah Ramsland became the first woman member of the provincial legislature and one of the first women elected to public office in Canada when she was returned for Kamsack.11 When her victory was announced, testosterone levels flared, a riot ensued, and a car was destroyed. In 1924 the town participated in the referendum to repeal prohibition. There was not much support for a law that was so consistently ignored and there was the continually embarrassing spectacle of a parade of upstanding citizens being arrested. Unexpected support for the repeal came from the Roman Catholic community, which seemed to adopt, in its voting patterns, the attitude that one's enemy's enemy was a friend. Many of the most virulent anti-Catholics were the most vociferous teetotallers. In 1925 the United Church of Canada was formed from the Methodist, Presbyterian, and Congregational churches, and the local Presbyterian church in Kamsack, on joining the new body, was renamed Westminster Memorial. The Jacketts had been Methodists in Tompkins and Presbyterians in Kamsack, since there was generally only one Protestant church in each of the small towns. Wilbur remembers the vote which was taken on the church amalgamation in Kamsack.12 Radio reached Kamsack for the first time in 1927 when CJGX from Yorkton began to broadcast local programming. Harry Jackett and two of his friends had anticipated the arrival of local radio before this and they brought the first three radios to Kamsack, spending many evenings trying to see from how far afield, mainly in the United States to the south, they could receive signals. 'Talkies' arrived in early 1930. The Federal Building was built in 1931 to house the RCMP detachment and the post office. And, in 1932, the first grain was shipped from Kamsack by rail from the CNR elevators to the northern port of Churchill. In Kamsack, Harry continued his active interest in municipal affairs. Within three years of arriving in Kamsack, he had become well enough respected to be elected a member of the town council, on which he served from 1923 to 1926. He was elected mayor from 1927 to 1930, was a member of the town council again in 1932 and 1933, and mayor from 1935 to 1938 and in 1941. In 1927 he was president of the Kamsack Volunteer Fire Brigade. He was a Conservative in a province where there were practically no Conservatives, but this did not affect his being elected mayor, because party politics did not matter at the local level.13 In a quiet and non-aggressive fashion, Harry Jackett became an integral part of the communities in which he lived and dealt on a fully equal basis with their

Beginnings 13

formally educated doctors, lawyers, and ministers. There was no doubt, however, that he recognized the importance of higher education and he made sure that everyone in the family finished high school and went beyond that to further training. There was little money available to the family and Harry Jackett saw his own salary reduced from some two thousand dollars to only six hundred dollars per year during the Great Depression of the 19305. Despite these hardships, with Harry's energy and a variety of side jobs that brought in a bit of extra money, the family managed in a difficult context when all around them people were on relief. This never happened to the Jacketts and, although, when he died, Harry had only a very modest estate, he had made sure that he had no debts. Even during the depths of the Depression, in addition to all his various jobs, Harry was still active in community affairs. It is a mark of his industry and confidence that he was able to buy a new car in late 1936. Fanny lived the life of an important lady in the small town of Kamsack, which was commensurate with the position of the family in the community, and was a moving force with the Ladies Aid of the United Church. The society ladies of the town made calls upon each other with calling cards of the Victorian style. She was, according to Wilbur, an excellent executive in the only occupations that were available to her as a married woman of the time, organizing bazaars and teas. By nature, she was most hospitable and firmly believed that a good deed done today would be returned to someone somewhere. Hampered for many years by ill health, she was forced to spend a great deal of time in bed. Flossie did most of the caring for Audrey as a baby. GROWING UP IN

KAMSACK

Throughout the period of many of these changes, Wilbur Jackett was growing up in Kamsack or linked to it. He had arrived in Kamsack at the age of eight years, leaving behind in Tompkins his tonsils and bringing with him only a few childhood memories, one of which was the walk with his father to the doctor's office to be separated from those tonsils. He came in time to enter grade four in the local school at the end of Main Street. It was the Central School and was sometimes called the White School, to distinguish it from the Victoria School, referred to as the Red School. Grades three and four were in two cottages and grades five to eight were in another school. High school was at Kamsack High School, later renamed Kamsack Collegiate Institute, which was three more cottages and you had to go outside to change classes. There were between one hundred and one hundred fifty students in high school. One of the

14 Chief Justice W.R. Jackett

friends Wilbur made when he arrived at school in Kamsack was Isabel McWhinney, who was in the same grade, although a year older. They were to be students together throughout their whole school lives and have remained friends well into their eighties. Her father was a missionary minister who taught at and was principal of the Indian reserve school and lived on the reserve itself from 1903 to 1915, when the family moved into Kamsack. He had fought against the government's efforts to pressure the Indians into selling their land, despite the famous pledge of Queen Victoria to protect their rights 'as long as the water runs and the grass grows/ but to little avail. While Wilbur was intelligent and was regarded by the teachers as a serious student, hard-working and a good learner, Isabel and her second cousin, Charlotte Kinnear, regularly finished ahead of him. It was Charlotte Kinnear who ended grade twelve with a scholarship for university. Wilbur was not, says Isabel, one who could have been spotted as destined for a spectacular future. He was not outstandingly brilliant in high school. Their high school class in general was quite smart. She, Charlotte, and Wilbur were the only ones who went from Kamsack to the University of Saskatchewan. Others, including most of the Jewish students, went to Winnipeg, partly because Kamsack was close to the Manitoba border. The family was industrious and Wilbur Jackett was no exception, especially watched over as he was by his father. Harry made him come down to the lumber yard every day while he was in public school and high school, before he started his many odd jobs; Wilbur himself suspects that his father's motivation was to keep him out of trouble. Whatever the reason, it gave Wilbur a chance to see how a small business operated and how dependent employment could be on economic conditions. If business was good, his father might employ someone else in the yard and, occasionally, two. At one stage, there were two other carpenters living in the upper part of the lumber-yard shop, who did much of the local carpentry and building work. One was Harry Oliver and the other was Frank Tellam, who later became the town undertaker, with a resulting narrower specialty in carpentry. There were no power tools in those days and Wilbur learned, first hand, how hard carpenters had to work for their living. He started earning extra money in high school by mowing lawns. He delivered groceries for Harvey's, probably the closest establishment in Kamsack to a department store. The store was open until ten o'clock on Saturday evenings and Wilbur did not finish his rounds until after his baby sister Audrey went to bed, but he always left her some candy all wrapped up for her when she woke up Sunday morning. There is a family photograph of him with his delivery bag on his shoulder. During the Depression, Harold Harvey was unable to keep the business solvent and

Beginnings 15

it 'went under' while the former delivery boy was at Oxford. Another of the young Wilbur's odd jobs was babysitting. Sports never held any particular interest for Wilbur. He skated during the winters, but was not particularly good by Canadian standards. He played a bit of tennis during the summers, with limited success. He may have curled occasionally, but this was a sport that interested his parents and sisters more than him. He has worn glasses as long as he can remember and has had operations for cataracts. He was reasonably active in the Young Peoples Society at the church. He participated in the Wolf Cubs Organization, becoming a 'Sixer/ and later helped the cubmaster; there is a picture of him with a group at a Jamboree at Qu'Appelle on 25 June 1922. He also joined the Boy Scouts, but he did not have a great deal of interest in the organization and did not proceed far in it. It was hardly surprising that the railroad would have its effect on Wilbur as well, so central was it to the town. A substantial portion of the wage earners in the town worked for the railroad, which, by the standards of the day, paid well. The train to Winnipeg came through about ten o'clock at night and many of the townspeople would regularly come out to witness the event. The eastbound train came at eight o'clock in the morning. Wilbur had a job filling the small ice containers on the passenger trains. Although he never 'rode the rails/ the boy next door, who was about his age, did. Even if he had been inclined to ride the rails, which Wilbur maintains he would never have wasted his time in doing, Harry would certainly never have permitted such a reckless and unproductive activity. One of the foremen on the railway, who lived up the street from the Jacketts, offered Wilbur a job as a fireman on the trains. But Wilbur declined the offer, saying he had decided to go to university. This was not as easy a decision to make as it might have seemed. The salary would have been $150 to $200 per month, which was not at all insignificant at the time. It would be fifteen years or more before he would earn such a salary, even after a university education, a Rhodes Scholarship, and a call to the bar. Today, Jackett smiles as he considers what might have happened had he taken the job; he would long since have been out of work, since the fireman position has been phased out of the modern railway. Ironically, the final steps in this direction would occur while he was employed by the CPR. Jackett was never very tall, at his zenith reaching only five foot four and (possibly) a half inches. This did not seem to bother him and no one ever heard him complain about not being tall. Audrey Jackett says that it was not too surprising that he was not tall, since no one else in the family was. The shortness was all in his legs, he once reminded Audrey, who was contemplating the knitting of a sweater for him while he was at

16 Chief Justice W.R. Jackett

Oxford, his point being that she should knit it long enough for his upper body. Isabel McWhinney was even smaller, so he has always referred to her as 'Shorty/ He was called 'fatso' in school because he appeared a bit plump, more like baby fat, as Isabel recalls, not because he was actually fat as such. Jackett remembers not liking the nickname and undertaking to wash with snow the face of anyone who called him that, but he eventually gave up the task as a 'bad lot' after five or six times. Most of the baby fat was lost, Isabel reports, when he went to university, where, she says, he burned up a lot of energy. Jackett decided that he wanted to be a lawyer when he was writing his grade twelve examinations. Before that he had wanted to be a carpenter, no doubt from the regular exposure to it at the Beaver Lumber Company, or a doctor. He decided against the latter because he could not stand the sight of blood. He remembers a time, later at Oxford, when he passed out while reading a particularly gruesome passage in a law report. Earlier, in Tompkins, the same thing had happened when he saw one of the girls in his class with a crochet hook stuck in her hand. He ran out of the room and promptly fainted. The medical positions in the family were filled by his sisters. Harry Jackett had wanted him to go into law because he had always wanted to be a lawyer himself but never had the opportunity. His quiet words of encouragement to Wilbur, 'If you want to go in for law, I'll try to see you through/ may well have been the determining point. The significance of that undertaking, as a matter of family and financial commitment, could not have been lost on Jackett. The importance of family in the life of Wilbur Jackett cannot be overemphasized. In the times and in the place in which he grew up, families stuck together in order to survive. Harry Jackett was a stern father, very much the paterfamilias, whose word on any subject was final. The house was his and this gave him the right to make decisions affecting it and the family. Meals were ready to be served the moment he arrived home from work. The children recall that he had apple pie for dessert virtually every day of his married life. He did not often go to church himself, but the children remember him doling out the money for the Sunday collection when they went. About the only time Harry himself went to church was when the Masons were marching. He did, however, actively support Fanny in her church work and her other social activities. Jackett acknowledges that he was not particularly close to his father, which, given the latter's position as authoritarian head of a patriarchal household, is not too surprising. On the other hand, he is of the firm view that the same social problems we have today would not exist if paternal relationships were all like the one he had with his father. As long as he was in his father's house, Jackett says, he would never have thought of challenging

Beginnings 17

his authority. When his father had particular advice to be communicated to him, such advice was generally channelled through his mother. This may have reflected the general remoteness of fathers of the day or it may have been rooted in Harry's perceptive understanding that such advice might be easier for an only son to accept if it did not come directly from him. Harry died on 23 January 1943 at the age of sixty, only six years afte the death of his own father. When he knew he was seriously ill, he made a trip to Winnipeg, where the diagnosis of stomach cancer was confirmed. When he returned from Winnipeg the last time, it was no secret to the family or the Kamsack community at large that he had come home to die He never let anyone see his suffering. If the pain became unbearable, he would stay alone in his room. One of the few really personal conversations that Wilbur had with his father occurred after he had been struck with the cancer and Wilbur asked him if he had ever tried a good stiff drink to help with the pain. Harry told him that he had tried it once, but the result was so bad that he had thrown the rest of the bottle away. Wilbur came out alone to his father's funeral, on a cold, miserable day with a temperature of some twenty degrees below zero Fahrenheit. It was Harry's associate, Frank Tellam, a carpenter who worked at the Beaver Lumber company, who handled the funeral arrangements and who took Wilbur in by himself to see his father before the services. Fanny died on 21 April 1944, at the age of fifty-five, less than fourteen months afte Harry. Both are buried in Riverview Cemetery in Kamsack. While growing up, Wilbur was closest to Flossie. He and Marguerite were closer in age and of the same generation, and both studied in Saskatoon, so they ended up doing quite a lot together. Audrey was much younger and had very little regular contact with Wilbur. By the time she was eight, he was off to university, appearing only sporadically during vacations. Then he went to Oxford while Audrey was a teenager, and, upon his return to Canada, he almost immediately left for the east. So their relationship developed after they were both adults, by which time they had few interests in common. THE UNIVERSITY OF S A S K A T C H E W A N

After they reached the University of Saskatchewan in Saskatoon, about six hours away by train, the three Kamsack friends, Isabel, Charlotte, and Wilbur, drifted somewhat apart, since they did not have any classes together, and while they would see each other occasionally, they did not stay close. Women students in residence lived in Saskatchewan Hall, where Isabel and Charlotte roomed together. Wilbur did not take up residence in the men's quarters at Qu'Appelle Hall. During his first year at

i8 Chief Justice W.R. Jackett

university, he lived with his grandparents, Sheldon and Lizzie Sweet, then in Saskatoon, who had an extra room in their home. This arrangement appears to have been the result of a negotiation between his mother and the grandparents, because there had been considerable concern about sending him off to university at such a young age. Many of the women of Kamsack thought that Fanny was wrong to have allowed him to go and told her she should have waited another year. Isabel agrees. As it turned out, Wilbur received good grades, but he may have been too young to get the full benefit of the experience. Starting as early as the end of his first year at university, Wilbur was pressed into service as teacher in a couple of the rural schools. Within a day or two of returning home from Saskatoon after his examinations, the superintendent of schools was at the door to persuade him to finish out the balance of the school term teaching in a country school some distance north of Kamsack. He was issued a temporary licence and sent off to teach eight grades in small schools, one of which boasted the cosmopolitan name of Buffalo Hump. It was quite an experience to be teaching all these grades at the age of sixteen. In his second year at university, Wilbur lived in a boarding house with several other students. Expense was still an issue, which was one reason he did not live in the university residence. For his third, fourth, and fifth years, there was yet another boarding house, this one run by a Mrs Andrell, a widow, and her son, where the meals were 'great.' This was in sharp contrast to the meals at the university, where the notorious Miss Dormont was held personally, or at least vicariously, responsible by the judgmental students for the bad meals in both residences. Two of Wilbur's fellow students in the Andrell boarding house were Frank and Charles Scribner from Filmore, who were in the process of following in the footsteps of their father and grandfather, studying pre-medical courses at Saskatchewan before returning to Manitoba to study medicine. Of more interest than their academic careers is the fact that Charlie Scribner would eventually marry Wilbur's sister Marguerite. Marguerite Jackett took part of her training in Saskatoon while Wilbur was studying there and she developed a severe case of hero-worship for her brother. He would include her in parties and take her to occasional university dances and she would hang around her big brother. He encouraged her to study French, assisted her with that endeavour, and generally helped her to succeed in whatever she did. He was the older brother who always had time for her. When he went abroad, his cards and letters were exciting enough that she felt she lived his life vicariously. She would tell her own children, when they were old enough, about his experiences in England, in Spain, and among the Basques. She had a comb and shawl

Beginnings 19

from Spain and a shillelagh from Ireland that Wilbur had given her. The children would use the costumes for romantic daydreams so often that the already embellished experiences of Uncle Wilbur became their own. Marguerite told her children that, when Wilbur was in Spain, people thought he looked Spanish, so she, or somebody, decided they must be descended from a sailor swept ashore in England following the defeat of the Spanish Armada. This sounds very much like the exaggeration of a story told to Jackett by a clergyman on a train in England, that the name 'Jackett' undoubtedly came from a description of the uniforms of the Spanish sailors in the Armada, all of whom wore short 'jackets/ and that the name was relatively common in Devon and Cornwall. During Wilbur's second year at university, D.S. Dawson, a young biology professor from Toronto, had started a wrestling club on campus. There was then no organized intercollegiate competition in a minor sport such as wrestling, so the wrestling team was more of a social group than a competitive university team. They bought four mattresses and sewed them together and, for his part in this exercise, Wilbur was appointed manager and worked out with the team. Interviewed at the age of eightytwo, he said that he could still do the stomach-rolling exercises they were taught as part of the training regimen, with, he said smiling, 'due allowance for being eighty-two/ From time to time, the club members would wrestle with some of the members of the football team. They were big and strong, he said, but were not trained and agile. Involvement in the wrestling team did nothing for the grade he got in Dawson's course. The laboratory assistant in the biology lab did not like him and it was she who set and marked the examination. It was one of the few 'C's he got during his entire time in university. Whatever his disadvantages as such a young student at university, there was no doubt that Wilbur was equal to the academic challenges. Students with senior matriculation, like Jackett, entered second year at the university. His course of study in arts was in mathematics and economics. Wilbur seemed to be able to get 'A's in mathematics more or less automatically. Upon returning home at the end of his first year at university, he was astonished to learn that he had won the Second Year Arts Scholarship, finally managing to pass the two classmates, Isabel McWhinney and Charlotte Kinnear, who had consistently beaten him throughout high school. He once described this as the biggest thrill of his life. It was so far from what he had expected that, when he had looked for the examination results, he just wanted to be sure he had passed. His academic program was a combined curriculum of arts and law, whereby one could do two years of arts with a couple of extra courses and then enter directly into the College of Law. He had taken some extra

20 Chief Justice W.R. Jackett

courses in his first two years of arts, so he had only one carry-over course to take and some of the first-year law courses counted towards the BA. In 1931 he received his BA, graduating with 'great distinction/ That year, the Greystone, the University of Saskatchewan yearbook, recorded: 'WiT is a budding young mathematical genius who aspires to a brilliant career in Law. He obtained his education in Kamsack, came to Varsity in '28 and attacked the course in Arts and Science, winning the Second Year Arts Scholarship. We can only hope that he will distinguish himself as well in Law as he has done in Arts.' In May 1931 Wilbur was awarded the First Year Law Scholarship, and in May 1932 he won the Second Year Carswell Prize, which was awarded to the student taking first place in the second-year examinations. The prize was books with a value of thirty dollars. At the same time, he won the National Trust Prize in Equity, another prize of books awarded to the student with the highest standing in equity. In May 1933, he won the Thomas Dowrick Brown Scholarship, in the considerable amount of two hundred dollars, awarded for the encouragement of legal research. He also won the 1933 Sir Frederick Haultain Essay Prize, awarded to the student submitting the best essay, provided it was of sufficient merit, upon a subject selected by the faculty. (Sir Frederick W.G. Haultain, a former premier, was the chief justice of Saskatchewan. Jackett visited him in his chambers in Regina and found him to be a 'sociable old chap/ well known for falling asleep on the bench from time to time. Jackett remembers arguing a moot court case in front of Sir Frederick, which the judge never got round to deciding.) The essay topic chosen that year was 'Legislative and Proprietary Control of the Inland Waters of Canada/ Wilbur's essay ran to more than fifty typed legal-size pages and, while the writer's inexperience occasionally showed itself, it was an impressive piece of research in a convoluted area of mixed jurisdiction, complicated history, and often conflicting court decisions. Jackett, was quite prepared to draw distinctions and comment on apparent inconsistencies among the various court decisions. A particular passage, which foreshadowed some elements of the approach Jackett would take as a judge, read: A proper interpretation of the respective duties of the legislature and the judiciary would seem to be that the judiciary are to interpret the law in a broad minded way, and that the legislature are to make the needed amendments. If you are going to allow a judge to say that a law is inapplicable merely because the people here have a different way of looking at things, as Rex v. Cyr would have you do, you are entirely usurping the function of the legislature whose essential function surely is to register the changing viewpoint of the people; and when the common law cannot be made to fit the circumstance without obvious judicial legislation,

Beginnings 21 then it is better by far that in one case some litigant shall suffer, than that the law should be distorted to give him 'Solomon' justice and allow litigants in the future to suffer for lack of knowledge of what the law is. It is of course to be realized that our judges have already wrought many changes in the common law of England, on the ground that it was inapplicable, but it still remains for the highest tribunal in the country to get them back on the path and establish order where chaos is rapidly developing.

The College of Law offered a three 'Rs' approach to legal concepts. Dean EC. Cronkite had been to Harvard and was very much committed to the method of studying law through cases, as was James Wilfrid (Bill) Estey. James Alexander Corry, a superb teacher and Rhodes scholar, taught legal history, contracts, wills, bills and notes and various nuts and bolts of the law. Constitutional law at the time was essentially a study of the British North America Act, 1867 and Jackett learned much of his constitutional law studying legal history under Corry.14 Corry would finish his academic career as principal of Queen's University in Kingston, Ontario. Fred Sheppard, who taught torts, practice and procedure, and corporate law, had, as Willard Zebedee ('Bud') Estey, son of Bill, recalls, a genuine photographic memory. Sheppard eventually left the faculty to practise law in Vancouver with the Locke firm and probably had a greater standing in the Vancouver bar than the senior partner, Charles Holland Locke, who was later appointed to the Supreme Court of Canada. Sheppard himself became a judge on the British Columbia Court of Appeal. The study of law was not undertaken in expectation of vast incomes upon completion of studies and a call to the bar. During the Depression, the students all knew that there was little likelihood of getting any work in Saskatchewan after they graduated, since nobody could afford to pay juniors anything, with the result that they were able to concentrate on the fundamental principles and functions of the legal system. There were none of the 'specialty' law courses that now lard law-school curricula. Even Dean Cronkite, who thought Jackett was a brilliant scholar and who was one of those who pushed him towards a Rhodes scholarship, gave him only two first-class marks in all the courses he taught, and these were marks of eighty-one. In all the others, he graded him just short of first class. If you got a first class mark in the College of Law, which was eighty and above, you really earned it. After graduation, Jackett remembers that Dean Cronkite invited him over to his house and, very solemnly, presented him with a drink. It seems to have been widely agreed that the College of Law at the University of Saskatchewan in the 19205 and 19303, despite its relative youth, was the best law school in Canada. Angus Alexander (Alex) Cattanach,

22 Chief Justice W.R. Jackett

whom Jackett would join on the Exchequer Court three decades later, had done his undergraduate degree at the University of Manitoba but had been urged by A.K. Dysart, a puisne judge of the Manitoba Court of King's Bench, to take law at the University of Saskatchewan because, in Dysart's view, it was the most outstanding law school in Canada and most likely on the North American continent.15 For the students, it was a wonderful law faculty in several respects. With only about thirty students in the whole school, the classes were small; throughout law school, Jackett was in a class of six or, in some courses, eight students. The students became close friends with the teachers. Jackett remained lifelong friends with all three of the full-time teachers, Corry, Cronkite, and Sheppard. The part-time teachers included Arthur Moxon, the intellectual leader of the faculty and indeed one of the best teachers and practioners in the country; he had been dean before Cronkite but had left to start a practice in the city with Bill Estey. Estey had come to Saskatoon in 1915 from his native New Brunswick, where he studied before going to Harvard for his law degree. Later, he would be active in provincial politics, acting as minister of education from 1934 to 1941 and attorney general from 1939, until the Liberals were defeated by the CCF in June 1944. On 6 October 1944, he was appointed to the Supreme Court of Canada, as would, in time, his son, 'Bud/ The benefit of a small faculty was that the teaching, instead of consisting of mere lectures, was essentially tutorial in nature. The renowned constitutional scholar, lawyer, and poet, McGill law professor F.R. Scott, was wont to describe a large-class lecture as the process of transferring the notes of the lecturer to the notebooks of the students without passing through the minds of either. For Jackett and his classmates, lists of cases would be handed out and then the principles derived from the cases would be discussed at the next class. With a law school of only thirty students, says Jackett, you could make good use of the library. He recalls with horror an occasion after his retirement when he accepted an invitation to use the University of Ottawa Law Library and found it so crowded that it was impossible to do any research. In 1932 the second- and third-year students in the College of Law formed the Haldane Club, named after Viscount Haldane, who sat on the Privy Council in many of the Canadian constitutional cases. The object was to provide a forum for discussion of constitutional and quasi-legal problems. During the club's first year, the 1931-2, discussions were held under the leadership of members of the faculty and 'downtown' lawyers. In the 1932 edition of the Greystone, we find: Good intentions harboured by various members of the second and third years bore fruit this fall in the organization of the Haldane Discussion Club - where the

Beginnings 23 Seniors and Juniors meet periodically for the threshing out of constitutional and quasi-legal questions. Rus Hopkins was elected President of the fledgling Club, Gordon Honsberger was named Secretary and Bob Barr Treasurer. At the time of writing two profitable meetings have been held. Messrs. Cattanach and Barr were hosts at the initial gathering, when Mr. Corry, B.C.L., read his much-talked-ofpaper on 'Administrative Law.' In the rapid-fire discussion which ensued, the realm of administration was transcended and the members engaged in a somewhat heated dispute concerning a point of legal ethics. In consequence, for our second meeting, at which Mr. Phil Reynolds served as host, Mr. Ferguson, wellknown Saskatoon barrister, talked over with us the difficult question of 'Ethics in the Practice of Law/ Our experiment will certainly be perpetuated.

Two entries in the 1933 Greystone are interesting, since many of those involved would continue to appear throughout Jackett's professional Life. 'The officers selected for [the 1932-3] year were: Honorary President: Dean EC. Cronkite; President, Gordon M. Honsberger; Secretary-Treasurer, Wilbur Jackett. So far this year Mel Sandomersky has led a discussion on the Compact Theory of Confederation and Elmer Driedger discussed the Amalgamation of the Three Prairie Provinces. Before the end of the present term it is proposed to hold two more meetings, in one of which Wilbur Jackett is to lead a discussion on Labour Law in Canada, and E.A. Bence16 will discuss a topic in Jurisprudence/ Jackett's graduation in 1933 from the College of Law, also with great distinction, was noted in the Greystone by the following entry: WILBUR ROY JACKETT

Lord McNaughton and Baron Parke in personem. A consistent scholarship winner and a worshipper of Webster. A second Strangler Lewis, he managed the wrestling team. Of late he has shown a propensity for dabbling in politics. With increased self-confidence Wilbur should go a long way before the law.

Jackett has no idea where the wags on the yearbook committee came up with these comments. They were certainly not, he said, supplied by him. If the reference to Webster is to the dictionary by that name, he admits that he has always been a great believer in looking up words, even if he thinks he knows their meaning. RHODES SCHOLAR

Graduation from the College of Law as its leading scholar in 1933 put Jackett on track for yet another academic distinction, a Rhodes scholarship. At

24 Chief Justice W.R. Jackett

the University of Saskatchewan, the practice had developed of interviewing applicants in the spring following their graduation for attendance at Oxford the following autumn. Jackett's chances were good. Though Saskatchewan had only one 'place/ his academic record was more than sound and, with Corry and Moxon in his corner he would have strong advocates on the selection committee. Community involvement was less a requirement than it is today, but sports participation was considered quite important. His wrestling activity was sufficient, probably barely, to meet the requirement. Several acquaintances speculate, in retrospect and with no knowledge of the circumstances, that he took it up out of knowledge that he would have to have some sport participation in his curriculum vitae in order to be acceptable to a Rhodes committee. The members of the Rhodes selection committee in 1933 were Sir Frederick Haultain, chairman, Dr W.C. Murray, P.H. Gordon/7 Douglas Fraser, Professor J.A. Corry, and Arthur Moxon. Jackett travelled by train from Kamsack in mid-December 1933 for the interview, which was held over lunch and was not too rigorous. He took the train back home and, by the time he got there, the decision had been made. He would be the Saskatchewan Rhodes scholar for 1934. It was an enormous honour and was an occasion of great excitement for Jackett and the whole family. There was general excitement in Kamsack as well, because no one from Kamsack had ever won a Rhodes. The scholarship had a monetary value of £400 per year and was good for up to three years. He would, of course, read law. He consulted with Dean Cronkite and others about the colleges to which he should apply. They recommended Queen's College as his first choice and left it to Rhodes House in Oxford to deal with the process of sorting out the various choices of the many incoming Rhodes scholars that year. He was accepted at Queen's. Isabel McWhinney did not think it came as a great surprise, within the university community, that he won the scholarship, probably because he had won the Second Year Arts Scholarship and had done so well thereafter. The Greystone dutifully recorded the Rhodes award in 1934: With a distinguished record of scholarships and awards won during his attendance at the University of Saskatchewan, Wilbur Jackett, of Kamsack, Sask., will be a worthy representative of the University at Oxford. Mr. Jackett is recognized as one of the ablest graduates of the College of Law and gained the respect and goodwill of his professors and associates. In addition to his accomplishments he has taken an active part in student affairs as manager of wrestling and a member of the Sheaf18 staff.

Although the award of the Rhodes scholarship was announced just before Christmas in 1933, there were still several months to go before

Beginnings 25

leaving for Oxford. The Saskatchewan bar rules of the day were that if you had only a law degree, you had to article for two years, but that if you had an undergraduate degree as well, the articling period was just one year. He began his articles in Kamsack, with Harold Mclntosh Stewart, one of the first lawyers to set up practice in the town.19 A friend of Jackett's father had built Stewart a desk and Stewart took Wilbur in with the desk to do his typing, since he did not have a stenographer and, having been wounded in his left arm in the First World War, could not type on his own. The first few months of Jackett's articling passed, at five dollars per week, in that inspiring endeavour. Interrupting his essentially non-paid articles with H.M. Stewart in Kamsack, Jackett got a job in Regina working in the office of the then premier of Saskatchewan, J.T.M. Anderson. The job was equally menial, amounting to little more than typing letters, but at least it paid something. Unfortunately, however, there was a provincial election on 19 June 1934 and the government of the day was defeated by the Liberals under the leadership of James Garfield Gardiner, which brought an end to the job.20 Jackett packed up his meagre supplies and was leaving the Legislative Building when he encountered Bill Estey, his former law teacher, who asked him where he was going. He explained that as a result of the election he had lost his job and did not know what he was going to do. Estey, who had been elected a Liberal member in the election, told him that he would take care of the problem and he did. Jackett got a new job in the basement of the building, delivering mail and running errands. There was a tradition that the Saskatchewan Rhodes scholars were looked after until they left for Oxford, no matter what, and in Jackett's case the tradition was honoured. He left Regina at the end of the summer and spent a few days visiting his grandparents in Imperial before heading to Kamsack to prepare for the trip to England.

2

Oxford Years

Jackett left Kamsack by train on 25 September 1934. One of his pieces of luggage, which he has kept ever since, was an old-fashioned leather club bag, which the town had presented to him in honour of his Rhodes scholarship. Stopping for a day in Winnipeg to visit with Charlie and Frank Scribner and to have lunch with the local manager of the Beaver Lumber Company, he took in the big-city sights to pass the time before boarding the daily eastbound Canadian National train. He commenced at once to write regularly to the family, which, although proud of his accomplishments and the Rhodes scholarship that would take him to Oxford, was nevertheless very concerned about the prospect of him being so far from home for so long. Jackett himself was not so much apprehensive as keyed-up, but he was certainly aware that this was a major new stage in his life. The railway itself was a tributary for those heading east and to Europe, gathering passengers who faced the excitement of travelling across not only their own huge continent but then the Atlantic Ocean that many of their forebears had challenged under less favourable conditions. Jackett's train companions included a hockey player (a Canadian export of the day) off to play for a year in Wembley, and some young Catholic theology students on their way to Rome for further instruction. The train porter, Jackett thought, had him 'marked for a tip/ because he was very obliging. The end of the line on the train was Montreal, a city that Jackett had never visited but that had all the allure one might expect of a cosmopolitan centre of business and culture previously only read about. To this time, the largest city he had experienced - and minimally at that - was

Oxford Years 27

Winnipeg/ which was, in its own way, a fascinating part of Canadian history and an important hub of culture and business. Montreal, in that period, was the leading city of the country, the location of the most powerful businesses, including the railroads, which played such a determining role in the west, and the largest banks. It was also a city in which the importance of the French Canadians and their language in Canada was demonstrated in daily life, rather than in books. In Montreal, Jackett looked up Norman Genser, a classmate of his parttime employer, W.B. Francis, who had been with the Crown Prosecutor's Office in Saskatoon before leaving to come east. Genser took him to lunch in one of the restaurants in Old Montreal, which had been patronized by the local bar for more than a century, and then to a trial, where Jackett spent the afternoon, experiencing for the first time the peculiar mix of English and French that is the hallmark of court life in Montreal. He was very taken with the fact that, though the lawyers and judge were French and spoke that language in argument, they used accented English when English witnesses were involved or authorities in English were cited. He remembers that in Genser's office all the filing cabinets had fancy locks because their practice was essentially criminal law. Having booked a tourist-class passage on the Empress of Britain out of Montreal, Jackett sailed on 2 October 1934. The initial stage of the trip, in the St Lawrence River area, involved river pilots and a stop in Quebec City to pick up passengers and mail. There was time to send off a final batch of cards and letters before the pilots left the ship in the Gulf of St Lawrence. Tourist class was the cheapest, but, despite having no porthole, his quarters were not by any means uncomfortable. A feature of some novelty was the on-board bath, a large tub of hot salt water, followed by a rinse of fresh water after one soaked enough in the hot water. The swell of travellers on their way to Europe had grown to include even more young theology students and several other Canadian Rhodes scholars. Shipboard friendships developed and some persisted for many years. One of the Rhodes scholars from Montreal was Jean Chapdelaine, who, when he later worked with External Affairs in Ottawa, lived near Jackett.2 Though he had never taken a sea voyage before, Jackett managed to avoid seasickness, partly by taking repeated walks in the fresh air on deck. He reported home that he had bought a beret, about the only form of hat that was unlikely to be blown away. Landfall occurred on 6 October 1934 at Southhampton and Jackett went directly to Oxford by train. His assigned residence was a two-room set, bedroom and sitting room, in a portion of Queen's College called Drawda Hall, a separate building within the college property.3 He was surprised to find that the colleges were right in the heart of the town of Oxford. His

28 Chief Justice W.R. Jackett

room had a gas fixture and a gas grill, which, although more convenient and faster that coal or wood, always terrified him when it lit with a huge 'pop/ He immediately looked up Francis Leddy, the 1933 Rhodes scholar from Saskatchewan, who was reading classics at Exeter College. They became excellent friends and remained so throughout their varied careers. The 1932 Saskatchewan Rhodes scholar was Russell Hopkins, who had become something of an anglophile, mimicing the English accent and manners, something that neither Jackett nor Leddy ever did and that was always the subject of disparaging amusement between them when they discussed Hopkins. Hopkins counselled Jackett to get some more appropriate English clothes so he would not stand out quite so much as a smalltown colonial, advice that the newcomer accepted. Hopkins and Jackett crossed paths for many years, since they both became lawyers and moved to Ottawa, but they were never good friends.4 The value of the Rhodes scholarship, at £400 per year, was enough to pay for fees and room and board and still leave enough for a bit of travel. A measure of its worth was that, at five dollars to the pound sterling, the scholarship amounted to $2,000 per year at a time when Harry Jackett's annual salary had fallen from $1,800 to $600 during the Depression. Even so, it would take careful management to live within the amount of the scholarship, particularly since there was no financial safety net available and anything outside the college was very expensive. This was enough of a concern that Jackett considered it necessary to put the family at ease, without suggesting that he was rolling around in the lap of luxury. It was a matter that required some measure of understatement, since, in many respects, he was in a privileged situation relative to his family and friends at home. He wrote to his parents on 8 October 1934: As near as I can find out Dad my finances will be O.K. Some people seem to think extra money indispensable but Leddy arrived last year with about as much money as I have and seems to think it possible to get along. I plan on going exceptionally carefully the first two terms and the Christmas 'vac' and I think by that time I will be able to make up for the caution money and initial fees they take out this term. I also am going to wherever possible follow strictly cash lines but of course with regard to things such as board lodging service etc. which are on College battels [statement of fees and charges] there is no alternative but to pay each term at the beginning of the next. I bought a little book and am going to keep a record of my expenditures so that I will know where I am at all times. However I think you may rest easy that I will be able to finance without any actual inconvenience and I hope Dad that from now on I will cease to be a financial burden. Not that you have not always made it easy to take money from you but I hope from now on to add rather than to detract from the family exchequer and show that I really have always ap-

Oxford Years 29 predated how generous all of you were with me for so very long. Not that I can repay anything for a long time yet - that is not what I meant to say but what I meant to say is that I want you to know that I do really appreciate your seeing me through those five years and also your assistance this fall as that little bit you gave me was just about enough so that I can ride through without going short until my first installment comes through when the term opens. I will not say anything more to either of you very likely but I hope you realize that I will throughout life feel very grateful to both you and the girls for doing so much more for me so generously than any fellow could reasonably have the right to expect.

It took a while for all the regular students to trickle in at the beginning of term and for university life to get under way. There were many Oxford and College traditions to be observed and Jackett had to meet his tutor, John Walter Jones, who would direct his studies leading to both the BA in jurisprudence and the BCL (Bachelor of Civil Law). Jones, then fellow in law at the college, later became provost of Queen's College. Jones taught every subject in the civil-law program himself. He would explain the minutiae of Oxford life, with all the customs and traditions that came with it, some parts of which were amusing and others merely annoying for someone already having two university degrees. Jackett started off wearing the usual commoner's gown and attended upon Jones for the requisite hour each week. Jones received reports on what time Jackett got in every evening, suggested what lectures he should follow, and assigned him essays to write each week. The method of writing essays on various topics selected by the tutor was not one to which Jackett was accustomed, but it was the accepted program of study at Oxford. He needed some time to get used to the procedure. The tutor would assign books to read and the students were left on their own to study the material. One decision from the University of Saskatchewan that came back to haunt him was his request to Arthur Moxon to be relieved of the necessity to study more Latin so that he could take French. When he got to Oxford, he was inundated with Latin. There were no regular examinations at the end of each term, although from time to time there were college examinations, referred to as 'collections,' none of which counted towards the degrees. Instead, at the end of the whole course of study, just prior to getting the degree, there were comprehensive examinations on the entire field, known as the 'schools,' followed by an oral examination, called a 'viva,' in front of three to five examiners from the various colleges. Students were to appear gowned for the occasion and remain standing throughout the process, which was not, at least in Jackett's case, a particularly 'chummy' or comfortable experience. No holds were barred and questions would be fired at the examinee from any

30 Chief Justice W.R. Jackett

and all of the examiners. The vivas were, at least in theory, public. Russell Hopkins had stayed the year after his own viva to see how the student who followed him would fare. Although technically permissible, it was regarded as bad form to have done so. At the start of term, the students were matriculated into Oxford University, another tradition that seemed far more important to the authorities than to the students. Jackett had already started lectures and had found some of them to be quite good, but he had to interrupt them for the ceremony. The students gathered in their garb in the Hall and proceeded from there to Divinity, to sign the roll in alphabetical order. The vicechancellor then called them up one-by-one to hand them a card and a set of the university statutes. After every twenty or so, he would have them stand up and mumble some unintelligible Latin over them, following which they were bona fide members of the university. The students generally considered the whole performance to be ludicrous. Queen's College was not noted for its wine cellar, but it did brew its own beer. One of the customs was that, if a student made some 'gaffe' or otherwise breached some arcane rule during 'Hall,' the penalty was to down an entire pint of beer without stopping. Jackett said that this did not prove too difficult for him since he had an open gullet and could pour the whole pint without having to swallow. On a more serious note, the Oxford academic year consisted of three eight-week terms,5 interspersed with vacations, which were intended to be used by the students for additional study. With the many activities that surrounded life during the academic terms, it seemed to be the practice that most of the serious work was done during the 'vacs'. Most tried to combine these periods with travel, either within England or on the continent. Jackett had enough money from the Rhodes Scholarship to undertake carefully planned travel. As a new boy, he did not venture too far on the first occasion, staying in England through his initial Christmas. His plans for the Christmas 'vac' were assisted by the visitation program to various English homes initiated by Lady Frances Rider, who had started a similar undertaking during the First World War for Canadian soldiers stationed in England before or after being sent into battle. She continued the program after the war for students from the colonies and dominions. For many years, Jackett had had trouble with his stomach and the problems flared up again at Oxford. He was X-rayed for ulcers and then had to have a test meal, followed by swallowing a rubber tube which was then used to draw off his stomach contents every fifteen minutes. The result was that, instead of having too much hydrochloric acid, as the doctor had initially suspected, it turned out that he had none at all and very little pepsin. He was advised to eat slowly, less at a time, to cut down on meats,

Oxford Years 31

butter, and milk, and to have about five small meals a day, to prevent food from piling up in the intestines, which had been causing the bad headaches and discomfort. This seemed to fit the bill and his problems diminished significantly thereafter. Jackett became active in the moot court group, at which exercise he was very competent, and in the lacrosse club, at which he was far more enthusiastic than expert. In his second year, he wrote home to recount an amusing incident during one of the moot cases: Tuesday we had our moot case against the girls. It was quite a splashy affair as everybody was in evening clothes. Before dinner I was very much afraid I was going to flop as words would not come. However, they gave us a royal reception and I think I did quite well in contrast. I won my point although that was quite a minor consideration. One rather amusing incident occurred when after one of the girls had described a case about wild animals, the judge asked her if that was not somewhat like Daniel and the Lions. It was an attempt on his part to be humorous but the girl very seriously replied that she could not remember the facts of the case/6 He did not pursue any wrestling, but he played a bit of golf, which he had tried sporadically before leaving Canada. He was not much good at it, although he continued to play from time to time once he moved to Ottawa, even joining a small club in the Gatineau area. He was invited to the odd hockey game with some of the Canadians, but, by Canadian standards, his level was very marginal. 'I played goal/ he says, 'but I was no good/ The first time he went with the group to play in London, he skinned both his knees and split his head open when he fell on the ice. A surprise awaited him upon his return from the first Christmas vacation. His rooms had been changed from the ground floor and he had been put into a much larger suite on the first floor, for which he had not asked. He went to Jones, his tutor, for an explanation, which Jones supplied. The younger students who had previously occupied the rooms kept running the bathtub and, because the floors were not level, the tub constantly overflowed and the water came into Jones's quarters, directly below. He knew that Jackett was older than the average student and would, therefore, be more reliable, so he effected the transfer, arranging at the same time for a college scholarship to pay for the difference between Jackett's old rooms and the better set. Not only were the rooms better, but Jackett also got away from the gas burner in his old quarters that used to terrify him each time he lit it. There had been no escape from the ordeal of igniting it, since, without the heat, he would have been too cold to work. It did not take Jackett long to discover that, in England, central heating was a concept that bordered on the alien. It appeared as if the cream of English genius had been spent in developing complicated games, units of

32 Chief Justice W.R. Jackett

measure, and currencies, maintaining a class system based on religion and accent, and governing the world rather than in devising basic creature comforts. This included plumbing, which, in England's case, seemed to have been discovered as a virtual afterthought, long after most of the buildings had been constructed. English cuisine, described by some as an oxymoron, by no means the brightest flower of English civilization, was not something he enjoyed and much of it, such as crumpets, which he described as 'a very heavy receptacle for butter/ caused his digestive system considerable distress. One of the chief differences between Oxford and the University of Saskatchewan was the international character of the institution. In addition to the Canadian Rhodes scholars with whom he was the most friendly, there were many English and other students with whom he also came in contact and the experience broadened his understanding of the world at large. Oxford was also located in the heart of a country that had long dominated huge portions of the world and, if the British Empire was in decline, it was still not too far from the apogee and many of the important decisions affecting world politics and trade were still made in London, often by former Oxford students. The Rhodes scholars had interesting opportunities to meet leaders of the business and legal communities. The Hudson's Bay Company had a practice of inviting some of the Canadians to lunches in London, at the Savoy Hotel, of course, no doubt partly to honour the scholars but also, out of a highly developed sense of self-interest, to establish contacts with students of demonstrated promise who might someday be in a position to be of assistance to the company, which had once controlled vast regions of Canada. During his first spring in England, at one of the lunches, he met John Buchan, who was to be Canada's next governor general; Sir Alexander Murray, the head of the Canadian National Railways Company in Europe and deputy governor of the Hudson's Bay Company; one of the law lords, Lord MacMillan; Lord Lothian, governor of the Hudson's Bay Company; and George Allan, a major shareholder in the Beaver Lumber Company, who had visited Kamsack a couple of years earlier. It was heady company for the young scholars. The maternal side of Jackett's family had come from the area around Cambridge, and there were still relatives who lived in the area. In the lore of many families is the belief, not uncommon when some members have left the mother country and gone overseas, that 'somewhere' in the Old Country there is a missing inheritance just waiting to be claimed. The Gee family appears to have been no exception and one of his mother's charges to Jackett was to visit her family relatives, in Comberton, near Cambridge. He got round to doing so in March 1935, cycling from the

Oxford Years 33

home of a friend whom he was visiting to meet 'Aunt Fanny' and her husband, a retired English Cockney masseur with the Italian name of Sylvassi. He dutifully asked Aunt Fanny about 'the will' and concluded that there was nothing worth bothering about because the family could never find 'the papers' that might have been helpful. He took some pictures of where the Gee house used to be and bought some postcards of the town for his grandparents. It was at Oxford in the spring of 1935 that an experiment began. It proved, in the long run, to be successful and was maintained thereafter. As Jackett expressed the experiment, he 'started to refrain from shaving my upper lip/ He said that the growing of a moustache was done against his will but under pressure from a couple of his Rhodes scholar friends, Len Hawko, of Newfoundland, and Lyman Emrich, from Chicago. He himself was uncertain and tended against retention of the moustache, but opinion seemed to favour it. The 'ayes' eventually had it: the adornment remained and, indeed, became one of the Jackett hallmarks. Jackett was present in England for some of the most interesting royal events in half a century. All his life to date had been lived during the reign of the popular King George V, whose silver jubilee was celebrated on 6 May 1935. Jackett and Hawco decided to go down to London for the occasion and had a wonderful time at the festivities, which seemed to be enjoyed equally by all segments of the British public, from the working classes to 'ladies in no-back dresses trailing to the ground and men in dinner jackets and tails/ all mixed together. He and Hawco hung on a fence and, despite reporting that they were 'almost dead' from clinging to their perch, were able to see the royal procession on its way to St Paul's Cathedral from a distance of ten or fifteen yards. He could not know that the king would be dead in less than nine months and that one of the strangest episodes in English royal history would then ensue with the accession of Edward VIII and his subsequent abdication. The first part of the summer vacation in 1935 was spent in Spain. Jackett travelled with Dennis Hoare, a second-year student at Queen's reading modern languages, the only son of an engineer commander in the navy. The centre of their sojourn in Spain was Santander, in Basque country, on the northern coast. The signs of things to come were already beginning to appear, although the Spanish Civil War would not start in earnest until July of the following year. The ship on which they travelled for the two-day voyage from Dover to Santander was under the German flag and had the requisite picture of Hitler in the dining room, to help the digestion of the passengers. No trip to Spain would be complete without a visit to a corrida and the Oxford students made sure that this part of their education was not

34 Chief Justice W.R. Jackett

lacking. They reserved seats and travelled by antiquated tram to the arena, through the traffic jams, commenting in English on everything they saw. The place was jammed and they soon discovered why it cost more to get seats in the shady part. They learned the traditions of tiring the bull, the role of the picadors and the banderillos, and the drama of the matador, who baits the bull until it is exhausted and then fixes it with his eyes and thrusts it with his sword. It was somewhat gruesome, but, after the first bull met its end, they did not mind. There were nine bulls in all. One horse was gored to death, a bull got in behind the barrier when the hoses were being taken out but was returned to the arena, and the eighth bull was so vicious that it kept jumping the barrier and tossed an attendant into the air. The crowd became insensed and began calling for the 'president' to stop it, only succeeding in this endeavour by hurling their pillows into the ring. The bull was chased away and a new one brought in. They had a wonderful day, but Jackett was not too keen on going again very soon. Jackett and Hoare decided that they would book passage on a Spanish cargo ship and travel along the coast of Spain, with brief incursions into North Africa and Majorca, ending up in Barcelona, from where they would travel by train back to Santander, to end their vacation and return to the United Kingdom. It would prove to be a fascinating trip and the Spanish sailors, who adopted them, took it upon themselves to show the two students far more of the real life of the country than they would ever have seen on their own. The Jackett family in Canada was showered with a series of postcards from each of the exotic spots they visited, including Gijon, Villagarcia, Huelva, Sevilla, Cueta, Malaga, Mililla, Almeria, Valen cia, Sagunto, Palma, Barcelona, and Madrid. The sun was so strong that Jackett was more tanned than at any time in his life; indeed, the tan marks from Spain lasted for several years thereafter. With the tan and the colouring, he came to look rather Spanish, reinforcing the casual observation from the train passenger that the Jacketts in England may have descended from the Armada survivors of Elizabethan times. Barcelona, the final port of call on their cruise, is one of the special cities in Spain. When Jackett was there, the full weight of Generalisimo Francisco Franco's displeasure had not yet been imposed on the city and the autonomous region of Catalonia, but things were nevertheless tense. From there, the travellers returned to Santander for a few days; the pace of the trip had been hectic enough that, apart from postcards from each place they visited, Jackett had not written the usual volume of letters home. This was remedied with a lengthy description upon his return to Santander. Jackett and Hoare then sailed for England on 14 September 1935. After a difficult voyage - the stormy weather of their week led to

Oxford Years 35

the loss of several other ships - Jackett went to Oxford for a change of wardrobe before leaving immediately for Scotland to visit his college friend, Jim Smith, in Glasgow. After a day or so in Glasgow, they set out with another friend for a tour of Scotland. Early October 1935 saw the beginning of Jackett's second year at Oxford. At home in Canada, on 14 October there had been an election in which R.B. Bennett's Conservative government had been routed by the Liberals under Mackenzie King, who took office as prime minister on 23 October. Life continued as before, with the usual activities and a passing concern about the future of Europe, which seemed to be inching towards disaster. League of Nations sanctions against Italy for its invasion of Abyssinia were having no effect. Germany under Hitler was increasingly belligerent and unwilling to accept the European status quo. British politicians - Jackett was an admirer of Neville Chamberlain, Sir Samuel Hoare, and Anthony Eden - were constantly discussing the situation on the continent and Jackett sat close to his radio to try to follow the developments. Like almost everyone else, he could not imagine what the future might hold. The imbroglio was a 'hopeless muddle' and, if there were solutions, they were not apparent to anyone in Britain. Jackett could not see any likelihood of the dramatic situation fizzling out in a compromise settlement. The Christmas vacation was upon him very quickly and he stuck with his resolve to spend it in Paris, arriving through Dieppe on 14 December 1935, a port that, less than seven years later, would acquire a special notoriety in Canadian military history. He stayed in a small hotel, more like a boarding house than a hotel proper, a block from the Luxembourg and a block from the Universite de Paris. The students did a lot of walking and learned how to use the Paris Metro for trips farther afield. He sampled the nightlife of Paris, including the Moulin Rouge and Les Folies Bergeres, but was quick to reassure the family that he was not enmeshed in the fleshpots for which it was so well known. My Christmas was chiefly the day before, that is Christmas Eve. I went to see 'Top Hat' Tuesday afternoon with two French friends and in the evening we went to see the Folies Bergere [sic]. The latter is a musical review and certainly did not seem to me to warrant either its international reputation or the money which you have to pay to see it. In addition, it is a very stupidly built theatre and all the seats seem to be on the same level so that you are continually craning to try to see around the people in front. I, of course, did not understand the dialogue but I was assured that it was not very good. On the other hand, the choruses were what one is led to expect that they will find in France but personally, I prefer the ones with a little more than the Garden of Eden clothing.

36 Chief Justice W.R. Jackett After the show which was from 9 p.m. until midnight, we went to a cafe not far from here for supper. Christmas Eve supper which is supposed to be eaten after midnight mass is known as 'Reveillon'. As prices are rather expensive, we did not have much but I satisfied my curiosity by having my first glass of Champagne and I really liked it.

One of the friends he had met in Santander took him to see the law courts. Jackett reported home that it was quite interesting, since the French lawyers all seemed to talk at the same time as the judge and each other and there seemed to be 'literally millions of them in an enormous building that seemed never-ending/ The 'vac' completed, he returned on 13 January 1936 to begin the next term. King George V had been in failing health for some time and everyone was concerned about his impending death: 'We have been having bad news all day to-day about the King's health and as he is the same age as Rudyard Kipling who died this morning everybody is just a little pessimistic about his recovery. I am rather expecting to hear a bulletin over the radio at midnight before I go to bed.'7 It was not long in coming. The King died at Sandringham on 20 January 1936, and Jackett witnessed the tradition of proclamation of a new monarch. Edward VIII thus commenced his brief period as king, from which position he would abdicate on 11 December 1936. Together with Freeman Stewart, a Nova Scotia Rhodes scholar, Jackett decided in the spring of 1936 that he would spend most of the forthcoming vacation working in Munich, following a few days in Paris on holiday. He had several friends in Paris, whom he had met while in Spain and with whom he had spent some time over the preceding Christmas 'vac'. Jackett and Stewart set off from Oxford to London, where they caught the boat train to Paris, arriving early on Saturday morning, 14 March 1936. He had to assure the family that he would not go to Germany if things looked too ominous, but he thought that the situation (Hitler's occupation of the Rhineland) would have blown over by the time he would be leaving and that they were not to worry on his account. Jackett had come to enjoy Paris very much, especially with its sunshine after gloomy England, the friendly and talkative Parisiens, and the many things to do. He loved pottering around the musty old picture shops and the bookstalls on the streets. Stewart, on his first trip to the continent, took some time to adjust. They had been held up in customs by an officious inspector, who was suspicious of all their books, and the train conductor had been outraged by their lack of suitable French. Stewart responded by disliking all the people who could not speak English, but, after a night's sleep, he recovered his good spirits. They wandered

Oxford Years 37

around the Bois de Boulogne and had some coffee at a small pub with sawdust all over the floor. Everybody seemed to bring their dogs there and there were several chained up inside and we seemed to be in the midst of dog fights or threatened ones all the time - it was just like Europe. Freeman kept threatening to cry 'Heil Hitler' just to see what would happen. The people were very nice - not nearly as obsequious as En glish people of the same kind. There was a little girl playing around and when we left she was swinging outside so I went and asked her something in my best French just as the others came up and what should she reply but '}e vous demande pardon, Monsieur, mais je ne parle pas anglais/ Believe me I have not heard the last of that yet. We all went out to dinner afterwards at quite a decent restaurant where for a prix fixee [sic] of 6 frs. we got soup or hors d'oeuvre, a meat course, a vegetable course, a desert course and a bottle of wine, a bottle of beer or a bottle of cider. We only get 74 frs. to a pound but if it was at par we would get 125 frs. On the menu at this place it was said that English was spoken there so I asked the garc.on if he spoke English and said 'Non, Monsieur, c'est le patron et il est mort.' Freeman has begun to keep a diary of these things.

He bought a sweater for Audrey on the Boulevard Saint-Michel, which took some time as he tried to explain in French that the negligee the shopkeeper tried to press upon him was unsuitable. She finally asked if Jackett spoke English, after which they got along 'swimmingly/ Jackett and Stewart arrived in Munich on 23 March 1936 and took rooms at the Pension Nordlund. Of all the places in Europe that he visited, Jackett loved Munich the most. The family was still nervous, however, and he felt the need to reassure everyone regarding his safety. The media were full of growing concerns about the course that Hitler was pursuing in Europe since he had become chancellor on 30 January 1933-8 Rearmament, an open repudiation of the Treaty of Versailles, had been announced by Hitler on 16 March 1935, when he said that Germany would have a peacetime army of some thirty-five divisions. Remilitarization of the Rhineland, yet another breach of the Treaty of Versailles, had just occurred, on 7 March 1936 as German troops occupied the area. Political reaction within Europe to all of this was limited to protests. Diplomats were becoming increasingly pessimistic about the prospects of peaceful resolution of the German question. The French were worried and Britain was beginning the process of arming, although it seemed to be generally accepted that Germany could not be ready for war before 1938. British political leaders were starting to canvass what support might be counted upon from within the British Empire in the event of

38 Chief Justice W.R. Jackett

hostilities. In the centre of the gathering storm, however, things were very much normal, at least on the surface visible to the general public, despite the alarming reports in the press. Politics did not figure in the lives of the Germans in Munich and they did not seem to be interested in international affairs. Things were run efficiently and law and order seemed to reign supreme. Jackett felt more at home in Germany than when he was in France or Spain. The tone of the German voices was much more like 'ours' - you did not seem to realize you were a foreigner until you tried to speak to them - and they looked more like people in Canada than did the Latins. All in all, he found it a nice and restful place to come for work. He was not, however, blind to the realities that were beginning to emerge. On 25 April 1936 he dashed off a note to Flossie, in which he recounted some of the perceptions of the Germans with whom he spoke. Partly to give her an idea of what life was like in Germany, as seen from the perspective of the people, and partly to offer some additional assurance that everything was, at that stage, fine and the family had no cause for worry, he presented a dispassionate summary of the 'German' side and then commented on it: Finally, something that is even harder to analyze or describe there is what might be described as a spiritual change in Germany. This change in attitude and in outlook consciously brought about by a department of government known as the ministry of propaganda is an aspect of the life of countries such as Russia, Italy and Germany which is viewed with grave alarm by others. And yet one wonders if such a force can be a greater danger when taken out in the open and used consciously than it is as it functions with us, according to the fancies of so-called educationalists, who so deal with facts as to make them prove their own pet hobby horses, or the prejudices of their times. In addition to the conscious direction of the opinions and thoughts of the people, there is greater hope and confidence in themselves as a nation which is due to the feeling that Germany is again beginning to count for something. However, internally it is almost impossible to assess the results of the changeover. The loss of democracy seems to worry most of them but little. It was a question of how much they were willing to pay in order to have democracy and the price was too great. It is of interest that the Fuhrer himself is looked on with considerable respect and affection by all... With regard to Goebbels, Goring, etc., many have little good to say for them. They possibly are just about as popular as a provincial cabinet minister who has a reputation for being a rather unscrupulous politician.

Oxford Years 39 To the Germans, when Hitler ignored both of these treaty obligations, it seemed mere justice as well as sheer necessity. They cannot conceive how any rational fair-minded person could expect them to subject themselves to this disability. They believe that their administration wants peace and that it will give them the peace it has promised, but that this was impossible as long as they were defenceless and open to anyone who wished to go in and take them. However no German will deny that they consider it mere justice that the Polish Corridor, part of Czecho-Slovakia and their colonies should be returned to them. They further see no reason why Austria should not be a part of Germany. There is a sufficiently strong feeling with regard to this now that there seems little doubt that in the absence of a very wise handling of the situation it will be considered justified someday to employ force to achieve that further end

Undoubtedly there is a certain amount of justice in many of the German claims. Just as undoubtedly French fears of German know no reason. If you add the further element that war is sometimes a very useful move in the dictator's game as has been so amply demonstrated by Mussolini, it is not without reason that we may anticipate further trouble in the course of the next decade, in the absence of any truly great European statesmanship.

The last was a prediction that proved to be all too accurate. Work was the usual grind. He was somewhat discouraged about the level of detail that seemed necessary to get a first at Oxford. The value of the work was doubtful if he considered the utility of the courses in relation to what he wanted to do, but the effort had to be made and he was determined to see whether, despite being fed up with all the studying, he could 'come through with a first and save my prestige.' At the Pension Nordlund, guests ate at a common table, and the two Frauleins who ran the house firmly announced that they were now Jackett's German parents; they would correspond after the 'vac' and Jackett resolved to go back again at the first opportunity. He and Stewart saw Hitler a few times driving around in an open car with some of his cronies. At this time, it was early enough in Hitler's career that they were able to get quite close to him, much closer than soon would be possible. During this visit in Munich, Jackett met a new and very talented friend, Elsa Corry, an Australian opera singer studying in Munich, whose acquaintance he would maintain even after he returned to Canada and she was on stage. It started with Jackett's first pub-crawl, German style, which in Bavaria involved singing. Corry was a girl of 'truly tremendous proportions' and they entertained the natives with their singing from pub to

4o Chief Justice W.R. Jackett

pub, following the closing hours around town, although her spectacular voice was the only one anyone noticed. The vacation now truly over, Jackett was once more immersed in study and the routine life as an Oxford student continued, part of which involved a sherry party for Canadian students hosted by the Canadian high commissioner, Vincent Massey. Jackett was not too fond of such occasions; everyone stood around, drank sherry, ate biscuits, and talked. The 'wellknowns' circulated about the room and spoke briefly to the invitees, but no one got to know anyone else and the conversations were uninteresting. By this time there were few law professors at Oxford whom Jackett respected enough to attend their lectures on a regular basis. It was typical of Oxford that there were many people who were very knowledgeable but not much good as lecturers, so that the best thing to do was to spend an hour or so with them in a non-structured environment. Among the outstanding legal scholars then at Oxford were 'Theo' Tyler of Balliol, C.H.S. Fifoote of Hertford, Stalleybass of Brase Nose College, Edwin Slade of St John's, and Vere Davidge of Keble. The principal exception to skipping lectures for Jackett was F.H. Lawson, one of the law dons at Merton College.9 Even Lawson's lectures as such, however, were 'lousy' and a class that started off with one hundred fifty or more students soon dwindled to five or six. These hardy few would go to his chambers for the classes, where they would 'go all over the legal map'; Jackett here learned a great deal of law, much of which was not even on the subject in which Lawson was meant to be lecturing. His mind was far more like those to which Jackett had been exposed before coming to Oxford. Another impressive scholar was John Foster, also a reader, a rank between lecturer and professor, who came up from London once a week; three or four students, the only remnants of a large class which began each term of hopelessly disorganized lectures, would spend useful time with him studying conflict of laws.10 Jackett had been worried throughout his studies about whether he could get a first. The length of time the professors spent with him at his 'viva' - the climax of the Oxford process - indicated that they were not quite sure where to place him. About twenty of us went in at ten o'clock Monday morning and Professor Goodhart the chairman called the roll, all being present. He then called out the names of four of us with the times that they wanted us to come back. That meant that we were on a border line of some kind and that they wanted to give us a real honest to gosh viva. Mine lasted from 11:35 until 12:25.1 most certainly could not answer all of their questions and I do not know how much importance they attached to the ones which I could not answer so I am not much wiser now than I was then as to where I stand.

Oxford Years 41 Two people took me on. Professor Goodhart quizzed me first in Jurisprudence and International Law and then Dr. Stalleybass took me on and his first question was 'What do you call the female of the horse?' Can you see me blink? I thought I was in the wrong department. However I modestly suggested that it was a mare. So then he asked me how I spelled it. What a flood of revelation swept over me then. Can you guess the rest. Well he informed me that I had spelled it 'mayor' and not 'mare' twice on one exam. However they treated it rather as a joke. I hope they looked on it as such. The rest of the viva was a pretty serious affair. Chiefly on mistakes or ambiguities in my exams some of which I could fix up and some of which I could not.11

When the smoke cleared, however, he fell just short of a first. He wrote home to report that he was sorry he had not a better mark, but that he was not too bothered because he had never considered that he had a good enough memory to be able 'to cinch the detail they required for a first' and he had messed up on a couple of his exams. He was ready to start work on the BCL and would make a determined effort to see what he could do, although the tradition seemed to be that, without a first in the BA, it was difficult to get one in the BCL. There was only the briefest pause before beginning work for the BCL. Once again, Jackett decided to spend the vacation in Munich, after a week in London, where he had the opportunity to meet a Saskatchewan politician, "the Honourable Mr. Patterson'; however, he did not know either what office Patterson held or, according to his friend Charles Bane,12 which side of the house he was on. During the same week, Jackett and Bane went up to the Marble Arch part of Hyde Park to watch the activity at Speakers Corner and quite enjoyed the heckling that was provided by the crowd. There was the usual collection of political speakers - communists, socialists, and Irish nationalists as well as representatives of several religious denominations and fanatics of various descriptions. All were labouring under some sense of grievance and had been telling the same story for as much as twenty years, according to the seasoned observers of the scene. On arrival in Munich, he was greeted with open arms and kisses from his German 'Frauleins' at the Pension Nordlund. There were many of the same visitors, too, so things took up where they had left off. He was in Munich during the time of the Berlin Olympic Games and heard them broadcast every day, but without understanding the content. The end of the summer of 1936 brought a return to Oxford from Munich in September and the formal conferring of the BA degree on 15 October, for his first two years of study. That December brought a well-publicized end to the reign of Edward VIII. The press had been filled with sensationalized commentary on the

42 Chief Justice W.R.Jackett

friendship of the king with Wallis Warfield Simpson, commentary that became even more frenzied when it was learned that she intended to divorce her husband at the end of October. A week before the decree nisi had been granted on 27 October, the prime minister, Stanley Baldwin, had an audience with the king and advised him of the problems that were being generated as a result of his association with Mrs Simpson. On 16 November the king had a further meeting with Baldwin and told him of his intention to marry Mrs Simpson. He gave Baldwin to understand that, if he could not marry her and still remain on the throne, he was nevertheless prepared to proceed, whatever the consequences. This set in motion the inevitable process leading to his abdication, despite some efforts to find a way around the constitutional crisis. Once the word 'abdication' appeared in the press on 3 December, all hopes for a solution were lost and, on 10 December, Edward signed an instrument of abdication, which was passed by Parliament the following day. That evening the king addressed the nation and the Empire to explain the reasons that compelled him to abdicate. Opinion throughout the world on the step that Edward had taken was divided. Jackett responded to Flossie's concerns on the matter: As for the abdication Flossie I am afraid that like yourself I have a feeling that we expected a different reaction from the King. On the other hand I am afraid that I did not realize that such little progress had been made towards freeing the British peoples from their old prejudices in what are broadly known as moral matters. You see no matter what stories that were current in the American magazines about Mrs. Simpson, the only thing which they knew against her was that she had twice obtained a divorce. Everybody disavowed the charge that they held her nationality or her status as a commoner against her. The incident therefore constitutes a definite registration of public opinion to the effect that a person who has had their marriage dissolved is morally under a cloud. Now it just happens that this to me is supported purely by prejudice and that common sense and logic is all in favour of a proper system of divorce. Consequently I like to feel that the King's action constitutes a protest against outworn moral precepts. However I must admit that I have my doubts sometimes as to whether that was the real motive behind it all. If you look at it that way then you must admit that honesty called for the decision that he made and that it took a much stronger man to make such a decision than to give in. As for Mrs. Simpson I know nothing about her. This much I have learned since being in England that American journalism is subject to grave suspicion with regard to anything it prints about affairs outside of America. Certain magazines which Americans accept as gospel e.g. 'Time' are hopeless with regard to foreign affairs. X3

The pinnacle of Jackett's athletic career came in 1937, when he was named to the Oxford team that would play against Cambridge in la-

Oxford Years 43

crosse. This achievement carried with it the entitlement to the Oxford 'blue/ the school colours for having represented Oxford against the archrival Cambridge. Because lacrosse was a minor sport at Oxford, unlike, say, rowing, the colour was a 'half-blue'. Although his report of this honour was expressed rather diffidently to his mother, he was quite elated and, ignoring his normal tendency not to keep mementos, he made a point of sending home the game program and some photographs of the occasion. Jackett says that he was not very good at lacrosse; he played defence and ran around waving his stick. The best he could do, he said, was hit the ball; he could not catch or throw it. Regardless, Jackett got his half-blue. The time at Oxford, which had seemed to stretch endlessly at first, was now drawing rapidly to a close. Writing to his father, he reported that he had got much more out of his third year than of either of the first two. This did not extend, however, to knowing what the examiners at Oxford seemed to want, and indeed he had reached the conclusion that the results depended as much on the particular set of examiners on the examination board than anything else. What made the year more satisfactory was the ability to meet with pre-eminent scholars, to talk with them and to get to know them. Oxford was parsimonious about conferring the rank of professor of law and there were only four full professors at the time. One was the editor of the Law Quarterly Review and his classes consisted of discussing cases which he was to report and in respect of which he was trying to determine what to say. Another was the Regius professor in Roman law, whom Jackett got to know through a series of lectures combining law and history conducted by a Jewish refugee under the professor's patronage. Jackett's own tutor had a reputation for getting good marks for his students but had not established any reputation for scholarship. A much-planned trip to Ireland finally occurred in the spring of 1937. Ireland proved to be as interesting as Jackett had hoped. He stayed in a girls' school, run by three old Anglican women; for most of the time he was there, the girls were absent. He and Charles Bane studied at Trinity College Library, conveniently located but not much of a library, and in King's Inn, where most of the barristers did their own reading. He found Dublin to be the poorest town he had ever seen, with dreadful slums and severe poverty, right up against nice neighbourhoods. But the people were friendly and helpful and, aside from the poverty, he thought Dublin a pleasant provincial town. The vacation over, it was back to Oxford for the final Trinity term. Jackett was present in England for one of the great ceremonial occasions of his era, the coronation of George VI, the shy and often stuttering younger brother of the abdicated Edward VIII, untrained for the role now thrust

44 Chief Justice W.R. Jackett

upon him but to which he would respond magnificently, especially during the war that was inexorably approaching. Jackett had an unexpected meeting with George VI during a reception at the Guildhall in London, when the king had become separated from the royal party; the two ended up talking for fifteen or twenty minutes before the protocol officials remedied the situation. The occasion was sufficiently momentous that Jackett says he has absolutely no recollection of what they discussed. He wrote a lengthy account of the coronation for the family and sent a copy to the Kamsack Times for publication. Then, at last, and with considerable trepidation, he faced his final examinations. The result of the BCL was the same; he just missed getting a first. Once again I got a second. I am still rather in a maze about it because I know all the people who got firsts and feel morally certain I know more about the whole business than they do. However I am trying not to think about it much because I feel a little bitter when I do. As far as I am concerned personally I do not care. A second is as good as a first for practice any day and that is what I want. But a first sounds much better and I know you would have liked it. I enjoyed the work and I tried hard. It did not come off and I am sorry. In spite of the nice things the Times had to say about my style I do not seem to be able to make Oxford dons with ideas of their own try to understand mine.

Once again I am sorry I was not able to cable that I had got a first but I assure you that I have never tried anything harder and while I would not want it to be said to anybody else because it does not sound cool I honestly feel that if I am second class so are three out of the four who got firsts. I will let you know my actual results when Mr. Jones sends them to me.14

Whether because of the preparation for Flossie's visit, the continental tour, or a Freudian slip because of his disappointment with the results, Jackett did not complete the formalities necessary to receive the BCL and discovered only this several years later, when he applied, in the Oxford tradition, for an MA degree, which was routinely granted by the university upon the mere passage of time and the payment of a modest fee of something in the order of £25. He then paid the necessary fees for the BCL and it was conferred on 23 June 1949, along with the MA, when he and his wife, Kathleen, were on a trip to London. Years later, asked in an interview about his seconds, Jackett replied: 'Well then afterwards I was told that I was lucky because the people who

Oxford Years 45

took firsts went into an academic career and in those days when you went into academic work that is where you stayed. Whereas the people who got good seconds and I was pretty close to the margin were more likely to get things in practice. I think by and large I would probably have ended up in a law school which I wouldn't really have enjoyed over the years/ None of his friends has ever heard him complain or express any disappointment about not getting firsts. Disclosure of such a personal matter would not have been in his nature. After many false starts and bolstered in the plan by constant encouragement from her brother, Flossie did come to England in the spring of 1937 for their much corresponded-about tour of Europe. They spent some time in England before heading off, with Rosamund Willis15 along for company, from Victoria Station on i August 1937 to Paris, where they stayed at the Grand Hotel Terminus, near Gare Saint-Lazare. Flossie was squired around to the tourist sights of the Quartier Latin, Notre Dame, Versailles, the Louvre, les Champs d'Elysee, Saint-Denis Cathedral, the Exposition, and Les Folies Bergeres. They had the ritual argument with a Parisian taxi driver who tried to cheat them, without which no visit to Paris would be complete. They left for Munich via Strasbourg on 10 August arriving the next morning. They visited the two Frauleins at the Pension Nordlund and did the usual tourist activities. They then set off on 21 August for Lenggreis, a small town in the Bavarian Alps which Jackett had visited the previous year, staying at the boarding house run by Frau Sgoff for a week. Afterwards, they worked their way back through Munich to Cologne and Brussels. On 30 August they took a night boat train to Dover and spent the next day at Rosamund's place in Luton getting ready to sail for Canada. Flossie met Elsa Corry, the Australian singer Jackett had encountered in Munich and with whom he had kept in touch thereafter. They set out for Canada via Waterloo station on 2 September, arriving in Quebec the morning of 9 September and landing finally in Montreal the following morning. The train trip west - colonist fare was all they could afford started the next day. Jackett stopped for a day in Winnipeg, where he met Marguerite and her intended, Charles Scribner, the latter now a resident at the Winnipeg General Hospital. Scribner smuggled him into the hospital and put him up for a night in the residents' sleeping quarters. Flossie continued on to Kamsack, where her new class of twenty-six students in grades five and six awaited her, and arrived on the morning of 13 September. Jackett followed a day or so later and spent some time at home in Kamsack before leaving for Saskatoon to try to find work. There can be little doubt that the experience at Oxford had a significant effect on the young Saskatchewan student. The Rhodes scholarship was a

46 Chief Justice W.R. Jacket*

validation of a good mind and an ability to work hard. Oxford, whatever the equivocal impression with which it left him, forced him to learn to work on his own and clearly identified what was his greatest weakness at that stage, namely, the ability to write effectively, a demon he would continually try to wrestle to the ground throughout his career in the law. It was almost always possible to discern what he meant, but he was not someone with the gift of easy expression of his ideas and had not, apparently, been forced to concentrate on this task in his earlier studies. The substance was sound, but the form needed more work. This shortcoming was undoubtedly the dividing line, in a part of the world where use of the English language was regarded as paramount, between the Oxford first and a strong second. The broadening of Jackett's scope of knowledge and experience through association with leading English and international scholars and students and travel abroad was invaluable. Exposure to foreign countries and the need to try to understand the meaning of world events stretched his mind beyond anything for which he could have hoped from immediate pursuit of a legal career in Canada at that time, even assuming he could have found work during the Depression. It was a fortunate confluence of events that created for him the time to reflect, study, and become part of the Rhodes scholar network that included many of the leading figures in Canadian government, business, and education. The Jackett who returned to Canada was far more mature than the one who left three years before. His sense of himself as a Canadian was more developed, and he was profoundly critical of the class structure he had found in England. He had a greater appreciation of his abilities and limitations, and he was more confident of his ability to relate to others. He was ready to work. And to work hard. Already evident were the traits that would turn him into one of the leading lawyers in his country.

3

The Saskatchewan Triumvirate

H.M. Stewart was not in a position to offer Jackett anything upon his return, not even the menial work that had been available immediately following graduation from the College of Law. Jackett wrote letters to practically all the lawyers he knew, including Ronald Martland, a 1928 Rhodes scholar and later a judge on the Supreme Court of Canada, who had been ahead of him at Oxford, and Buzz Fenerty, who had returned to his father's firm in Calgary, as well as to W.B. Francis at the McKercher firm where he had worked in Saskatoon during law school. There were no places, not even for an articling student, not even for someone with his outstanding record. His tutor at Oxford, J. Walter Jones, had provided him with a solid letter of reference: The Queen's College Oxford. 11 March 1937 Mr. W.R. Jackett entered the College in 1934 as a Rhodes Scholar from Canada. Last June Mr. Jackett obtained a very good Second Class in the Final Honour School of Jurisprudence just missing a First in the 'Viva.' During the past two terms he has been working for the B.C.L. and is bound to obtain at least a very good Second Class, and may perhaps do even better. Mr. Jackett has been a very useful and agreeable member of the College and has made many friends among the undergraduates.

48 Chief Justice W.R. Jackett Besides his knowledge of Law Mr. Jackett has many qualities which make for success at the Bar or in Business. He has a clear mind, an easy style in writing or speaking, and considerable command of detail. He has been an official of the College Moot Club and has taken a very active part in its proceedings. He has also played Lacrosse for the University against Cambridge. He is thoroughly competent and reliable and I can highly recommend him for any post requiring ability and sound character. (sgd) J. Walter Jones (Fellow and Tutor)

Jones had told Jackett that, in the real world, the English real world at least, the fact that he had played for Oxford against Cambridge was a matter of more importance than he might otherwise have imagined and he had, accordingly, included this in his letter. With Jackett's general perception of his own athletic abilities, he probably would not have drawn attention to his half-blue. Those who have not lived through the Great Depression of the 19303 can have no real understanding of how devastating it was, particularly in the Canadian west. There was simply no work to be had. People were leaving Saskatchewan in droves, for the east or to try their luck in the provinces farther west. The exodus was not confined to unskilled labour but extended to even the most highly educated. Those who stayed often ended up driving taxis, acting as ushers in theatres, or engaged in some work outside the practice of law, trying to make ends meet. The economic calamity of the 19305 was a worrying preoccupation for Jackett, even during his Oxford years, as he followed developments from afar and as the remainder of his scholarship money became all too finite. In his correspondence to the family, this concern surfaced over and over again, especially as the time to return drew closer. He simply had to find some lawyer who would take him in, at least to finish his articles, but the prospects were particularly grim in 1937 as the west continued to reel under the crushing burden of the Depression. Persistent inquiry eventually led him to Gilbert H. Yule, a well-known counsel in Saskatoon, who agreed to take on Jackett as an articled student at the rate of $10 per week. 'Bert' Yule was an excellent trial and appellate court lawyer, who acted as the Canadian equivalent of the English barrister, doing only court work, and he was regarded as one of the best in the area. He was considered to be on a par with Emmett Matthew Hall, who later became chief justice of Saskatchewan and, in 1962, a judge on the Supreme Court of Canada. The two were often opposing counsel in litigation and each regarded the other as a crafty and slippery

The Saskatchewan Triumvirate 49

opponent. Each firmly believed, of course, that he was superior to the other. Yule had once boasted that, in one of his years of practice, he had earned as much as $10,000, a princely sum indeed in those times and in that part of the country. Gordon Blair, another Saskatchewan Rhodes scholar from the University of Saskatchewan College of Law, who was to become executive assistant to the minister of justice, an MP, and eventually a judge of the Ontario Court of Appeal, describes Yule as an outspoken, short-tempered, good counsel who loved the law and spent a good deal of his time in the law library working up his cases.1 Jackett remembers learning a great deal from Yule about forming a legal opinion on a question. One element in particular of Yule's advice that sticks with him is that, if you have enough of a "gut' feel about what the answer should be, you should not give up just because you cannot find an immediate justification for it. Even $10 per week proved, on occasion, to be too rich for Yule to support from the fees which he earned. There were many times, at the end of the week, when Yule, who was an agent authorized to issue money orders on behalf of the CNR, paid Jackett by writing out a money order drawn on the railway account so that Jackett would have his $10. This primitive system seemed to work and, as far as Jackett can recall, nothing untoward ever developed from it which caused any difficulties for Yule. To help ends meet, Jackett also acted as an insurance adjuster on behalf of A.S. O'Fallon, a friend of Yule's who ran a small branch of an adjusting firm.2 O'Fallon paid him $25 per month for travelling hundreds of miles to outlying areas to adjust losses suffered by farmers when their barns were lost to fire or other natural hazards. Having grown up in the shadow of the Beaver Lumber Company, Jackett had some experience with lumber and other construction materials and proved to be quite good at estimating what would be required to replace the structures. He would examine the requirements and then go to the local lumber yard to make arrangements with the operator for the replacement. Once the operator knew that Jackett had a connection with 'the Beaver/ relations were excellent; he could almost always get a free estimate and the parties generally accepted his arrangements. It proved to be a cheap way to adjust the losses. In those days, the lumber-yard operators filled the role of what would now be regarded as general contractors. They knew what was needed for the various structures, not just the lumber, but the other components as well, and could help provide the expertise to rebuild the structures. This work called for an extraordinary amount of travel into the outlying areas, but it provided enough of a supplement to his income from Yule that he was able to rent a room in a boarding house with a single hot-plate for rudimentary cooking or coffee-making.

50 Chief Justice W.R. Jackett

In the course of his work during the fall and winter of 1937-8 in Saskatoon, Jackett taught a company law course at the College of Law and sat occasionally as a judge in its moot court, one case involving Gordon Blair and Darrel Heald, the latter of whom would become attorney general of Saskatchewan and, in late 1971, a colleague of Jackett's on the newly constituted Federal Court of Canada. In the evenings, he taught another company law course to accounting students working their way through the night school program to become chartered accountants. The need for permanent employment continued to loom ever larger. Jackett finished his articles in 1938 and was called to the Saskatchewan bar on 28 February 1938. One of his friends, Ross Tolmie, a 1929 Rhodes scholar from British Columbia who had returned from England before Jackett went over, was working with the legal branch of the Department of National Revenue in Ottawa and suggested to him that he might want to get in touch with the deputy minister, Colin Fraser Elliott. Jackett, who was prepared to work practically anywhere, made the contact and Elliott seemed disposed to give him a job. He wrote to Jackett outlining the position and set out a salary range of $3,100 to $5,100. Then, shortly thereafter, a second letter arrived, putting the whole matter on hold. Politics had intervened. The Liberal minister of national revenue, James Lorimer Ilsley, was responsible for the appointments, which were by order-in-council and made on the basis of patronage.3 There were three positions open at the time. Ilsley was damned, he said, if he was going to waste one of these appointments on a westerner.4 To avoid the appearance of too much one-sided patronage, however, he wanted a Conservative to fit in the middle of two Liberal bookends, Edward S. MacLatchey from Nova Scotia and Edouard Belleau from Quebec. The choice was Harry Heward Stikeman of Quebec, who would become a leading figure in Canadian law in the field of taxation. With Ottawa still in his mind, Jackett came across an advertisement for a position as a legal officer in the Department of Justice and was one of almost a hundred applicants for the single position. In due course, he was offered the job in a telegram sent by C. Percy Plaxton, then acting deputy minister. The offer, unfortunately for Jackett's thin pocketbook, was made for a position located in Ottawa, instead of in Saskatchewan, so he had to pay his own way east. Had it been an offer made in Saskatchewan, followed by relocation, the department would have paid the railway fare, but the department was centralized in Ottawa. The starting salary was $220 per month, with a couple of small deductions, but it was enough to live on. And so, after spending Christmas in Saskatoon rather than returning home to Kamsack, he set off, arriving in Ottawa for the first working day of 1939. In retrospect, Jackett considers that the political intervention which led to the disappearance of the job with National Reve-

The Saskatchewan Triumvirate 51

nue was the luckiest thing that ever happened to him. He would, he said, have been stuck in tax and would never have achieved the broad exposure to the other areas of law, particularly constitutional, nor have met the leading counsel with whom he would learn his trade before the courts. Not atypical of the general salary situation within Justice, Jackett's job paid $50 per month less than Stikeman's, even though the Justice position was arguably more senior than a similar one in National Revenue.5 The new job overlapped with another major change in Jackett's life. During the time he worked with Yule in Saskatoon and did the part-time adjusting for O'Fallon, he had met and fallen in love with Ella Kathleen Robertson, a University of Saskatchewan graduate from Prince Albert, then editor of the social page of the Saskatoon Star-Phoenix. They met at the Picardy Lunch Counter, where Kathleen, O'Fallon, and two or three others regularly had lunch. Jackett gradually became part of the group and the friendship began. Kathleen was born in Johnston, near Glasgow, Scotland, on 2 January 1909, the only child of Robert Robertson and Ella McKinnon. The Robertsons settled in Prince Albert during her childhood. Kathleen had attended the University of Saskatchewan, earning a BA in 1928 and a BEd in 1929. She taught school for a year following graduation, as had her mother, who had taught in a one-room schoolhouse. She had come to the attention of the Star-Phoenix as a result of articles on student life that she had written for the paper while she was at university and was offered a job as editor of the women's page. With a federal government job in hand, even at only $2,640 per year, there was enough money to get married and they became engaged before he left for Ottawa. Several months later, on 5 September 1939, they were married in Ottawa in a small ceremony. Jackett did not discuss his decision to go east with his father and only told him after the fact. He was living in Saskatoon on thirty dollars per week and he would no longer have been expected to have been guided by his father's judgment at that stage of his life. There was, in any event, no chance of getting a job in Saskatoon. The move to Ottawa started on New Year's Eve in 1938, when he boarded the sleeper train for the day-and-a-half trip. Jackett did two things the day he arrived in Ottawa: he found a boarding house on Gloucester Street and he reported for work. The house belonged to a retired farmer and his wife, and for $30 per month he got a room and three meals per day. He stayed there until he and Kathleen were married. The government of the day was careful with its money. At the end of January, when his paycheck arrived, it was not for the full amount of $220. Jackett complained, on the basis that he had been at work for every working day of the month. To no avail. He then got Plaxton, as acting deputy minister, to write a letter to Treasury Board confirming this. The

52 Chief Justice W.R. Jackett

request was again refused. To this day, there is still a widely held belief among Department veterans that Jackett persisted with his efforts until he was successful, but Jackett himself insists that he was never able to persuade the authorities to part with the few extra dollars. Things were very tight in the department. The deputy minister himself, W. Stewart Edwards, had had to get in a battle with Treasury Board just to get a telephone for Jackett. Edwards was convinced that a lawyer could not function without a telephone, but things were so closely controlled in Ottawa that even a single telephone had to be requisitioned by the deputy minister and then the request was solemnly considered by the group of ministers constituting the Treasury Board.6 Edwards was off sick when Jackett first reported for work, as was Frederick Percy Varcoe, the leading active lawyer in the department, who would, in time, have the greatest influence on Jackett's career in Justice. It was not a large department at the time. Including the deputy minister and Jackett as the new boy, there were only ten lawyers.7 Between them, they managed all the legal work of the government, dealing with the lawyers throughout the country appointed under the customary patronage system and taking cases that they considered important enough for the department to handle on its own. Such was the importance of the Department of Justice and its lawyers who appeared before the courts at the time that, early in Jackett's career, Varcoe took him to be introduced to Sir Lyman Duff and Alexander K. Maclean, respectively the chief justice of Canada and the president of the Exchequer Court of Canada.8 The minister of the day was Ernest LaPointe, Prime Minister Mackenzie King's able Quebec lieutenant, whom Jackett met only on three or four occasions. LaPointe was by then not healthy and died in 1941.9 Jackett met more regularly with his successor, the urbane Louis St Laurent, who would go on to become prime minister.10 Whenever Jackett was working on anything important, he would accompany Varcoe, who had by then become deputy minister, when Varcoe went to meet with St Laurent. WORK IN THE EARLY YEARS

Under Stewart Edwards and his predecessors, including Edmund Leslie Newcombe, the Department of Justice had become something of a post office, simply receiving requests for opinions and action and parcelling them off to counsel on the patronage lists. Jackett's arrival coincided with a concerted effort to change the role of the department. Unlike most government departments, Justice was not an operating department as such but a well organized and functioning law office for government. Much of this impetus was the result of the effort and determination of Frederick

The Saskatchewan Triumvirate 53

Varcoe, who became deputy minister in 1941 and remained in that position until 1957." The department's work was divided principally into regional 'dockets' which were assigned to its lawyers. The docket responsibility involved hiring lawyers for land work, small prosecutions, and other matters. When Jackett arrived, Varcoe assigned him the Ontario docket, which, until then, he had been handling. There was, in addition to docket responsibility, drafting of legislation, giving of opinions, and some counsel work, although it was generally the practice to engage agents for most litigation from a patronage list maintained in the minister's office. When a new file was opened, it would be sent to the minister's office, from which it was returned with the name and address of the patronage lawyer to which it was to be referred. The established procedures were formal. Every incoming piece of mail came in over the deputy minister's desk and the deputy minister himself would assign the requests for opinions to specific lawyers.12 Once this happened, the lawyer became responsible for the carriage of the matter, but under the strict supervision of the deputy minister. All opinions were given by the deputy minister himself. The procedure was for the lawyer responsible to prepare a memorandum to the deputy minister, to which would be attached a draft opinion or letter for his consideration. There were no exceptions. Some of the older deputy ministers had insisted on signing every piece of mail that left the department. Edwards used to come back to the office in the evenings to sign even routine letters of acknowledgment or transmission. When Edmund Leslie Newcombe was deputy minister and was away for several months attending the Privy Council sittings in London, upon his return, he would call for all the correspondence sent out in his absence, review each letter and opinion, and, if he did not agree with what had been said, write his own letter, correcting whatever had been previously communicated.13 This procedure continued after Varcoe became deputy minister. The theory was that the deputy minister had to know what was going on in the department, to be sure that there was nothing that needed to be brought to the attention of the minister.14 In Varcoe's office, the memoranda and draft opinions prepared for his review and approval would be placed in a series of boxes on a long table, one for each lawyer in the department, so if you were a junior, you could see how many of your files were there. Urgent files were flagged with a red sticker and were dealt with expeditiously. Others might sit for days or even weeks before Varcoe's secretary, Beatrice Brace, cynically regarded by many as the 'real' number two in the department, would call the lawyer involved and say, in a dramatically breathless manner (she was active as an actress in

54 Chief Justice W.R. Jackett

stage productions in Ottawa), that Mr Varcoe wanted to see him 'right now/ which meant precisely that. Upon arrival, the lawyer might find himself being grilled on the contents of a memorandum written weeks before. The experience could, to say the least, be quite unnerving. On the other hand, the lawyers rationalized it as good preparation for questioning in court. Many years later, having won the confidence of Varcoe, Jackett persuaded him to alter these arrangements as part of a plan to relieve the deputy minster of some of the purely routine work. The incoming letters were, after the mail was reviewed to be sure there was nothing that needed the personal involvement of the deputy, sent directly to the specific lawyer running the file, but the lawyer was still required to follow the customary practice of sending everything to Varcoe or, once Jackett had become assistant deputy minister, to him, for approval and signature of any responses or opinions. The flow of correspondence was also made somewhat easier in later years by a further reorganization into rough divisions of the type of work being done within the department, rather than just the various provincial or regional dockets that had been the norm when Jackett had started. There was certainly an element of 'sink or swim' within the department when Jackett arrived and he felt that he was well over his head in some of the responsibilities assigned to him, which produced alternate worry and discouragement when he did not get it right and a feeling of great satisfaction when he did. Jackett's mentor for the first year or so was John MacNeill, a Maritimer and veteran of the First World War, who steered him in the right direction as he worked to find his footing. MacNeill's pace was a bit slow and Jackett often found that, if he went into his office with a question at 3:00, he might well still be there at 5:15 and MacNeill would give him a ride home. MacNeill left the department in 1942 to become clerk of the Senate, the senior legal job on Parliament Hill. One piece of advice given to him by MacNeill, which Jackett has never forgotten, was that, at least once during each week, he should read the Interpretation Act. It was MacNeill who told him much of what Varcoe was like and this perspective helped Jackett not to let Varcoe's brusque attitude 'get him down' in the early years. During the summer of 1939, the first Defence Purchasing Board was set up in Canada, under the chairmanship of Robert Charles Vaughan (vicepresident of purchasing, supplies, and steamships at Canadian National Railway in Montreal). Vaughan had a couple of the traditional CNR male secretaries working under him. These were not secretaries in the sense of stenographers, but men who had worked their way up through the organization from the bottom. Vaughan had started the same way, as a

The Saskatchewan Triumvirate 55

messenger in Toronto, working his way up from there to eventual presidency of the company.15 Jackett, the most junior lawyer in the Department of Justice, was advising the board and confessed to having had 'no idea about the whole thing/ The initial board evolved into the Department of Munitions and Supply, under the leadership of the redoubtable Clarence Decatur Howe. Jackett recalls that he drafted the order-incouncil regarding industrial disputes and related matters under the War Measures Act and did a lot of work on the regulations under the unemployment-insurance legislation, working with the chairman, Arthur McNamara. All of this was uncharted water, filled with legal shoals, through which a completely inexperienced lawyer was required to navigate with very little by way of compass. The other lawyers were helpful and supportive, but the general knowledge that war in Europe was all but inevitable dramatically increased the volume and importance of government preparations for the struggle ahead. Once the war had begun, the pace only increased. Jackett's only boondoggle came his way during the period preceding the federal election held on 26 March 1940, when he was sent out to Regina to advise local radio stations on compliance with wartime regulations, on which he had been working. At the time, the election rules regarding radio censorship were vague. Jackett was set up with an temporary office in suite 411 of the McCallum Hall Building, since this was well before the time the Department of Justice had begun to establish regional offices. After looking around for accommodation, Jackett made a deal with the Saskatchewan Hotel for the entire period he would be in Regina. Kathleen arrived on February 13th and stayed for a few weeks. The operators of radio stations were apparently told that they could call Jackett for advice if there were any questions which arose under the terms of regulations issued under the War Measures Act. Nobody, he said, ever called. JACKETT, MUNDELL, AND DRIEDGER

One of the by-products of the dreadful economic conditions in the prairie provinces during the Depression was the influx into the federal public service in Ottawa of a remarkable group of lawyers, many of whom were graduates of the excellent College of Law at the University of Saskatchewan. Jackett had been one of the first to go east and was responsible for the recruitment into the Department of Justice of two Saskatchewan friends, each of whom would make a vital contribution to the work and reputation of the department over a period of many years.16 So remarkable a combination were they that they came to be known within the Department as the Saskatchewan Triumvirate.

56 Chief Justice W.R. Jackett

The second of the Saskatchewan triumvirate was David Walter Mundell, who was two years behind Jackett at the University of Saskatchewan and who had won an IODE scholarship to read for a BCL at Exeter College in Oxford following graduation from the College of Law. He had been successful and active at university, winning the First Year Law Scholarship and holding posts as president of the Historical Society, editor of the university handbook, editor-in-chief of the Sheaf, manager and member of the university tennis team, and acting adjutant of the Canadian Officer Training Corps. When he returned to Canada, he contacted Jackett, who introduced him to C.P. Plaxton, and Mundell joined the department in September 1939. He and Jackett had offices on the second floor of the Justice building on either side of one of the stenographers. Mundell would stay at Justice for fourteen years and then leave the department to teach and work in Toronto. In the Department of Justice, he became Varcoe's favourite of the three Saskatchewan lawyers. He was generally regarded as the most gifted of the young Department of Justice pleaders and was the 'darling' of the courts. Keith Eaton, a lawyer from the Maritimes who joined the department in 1948, recalls that, often, if Varcoe were reviewing a memorandum from a junior lawyer and his instinct told him there was something wrong but he could not put his finger on it, he would call in Mundell, who would pace about the room mulling over the problem and then almost always come up with the answer for which Varcoe was looking. Mundell worked as counsel, with Gerald Fauteux, to the royal commission established in February 1946, and chaired by Supreme Court justices Roy Kellock and Robert Taschereau, to investigate the infamous Igor Gouzenko affair. Gouzenko was the Soviet cipher clerk who defected from the USSR embassy in Ottawa on 5 September 1945 and broke the story of the extensive Soviet spy network operating throughout North America. Some observers mark this incident as the real beginning of the Cold War. It was one of six royal commissions on which Mundell would act as counsel during his career. He was assigned to the Department of Finance for a time, which was probably a waste of his talents as counsel, but he was well respected in that department too, particularly by the former Winnipegger, Mitchell Sharp, recruited during the War by Clifford Clark, the very influential deputy minister.17 The second recruit and third member of the triumvirate was Elmer A. Driedger, who was a year behind Jackett at the College of Law, graduating in 1934. He was of Menonnite background and could speak German, which was still spoken in parts of rural Saskatchewan. The combination of his academic ability and German led to a scholarship at Marburg University, offered on somewhat the same criteria as the Rhodes scholarships, where he was able to study until political developments in Ger-

The Saskatchewan Triumvirate 57

many forced his return to Canada a year or so before the war. He was an acquaintance of Jackett's from university days and developed into a friend after graduation. Jackett regarded him well enough that he had advised his sister Flossie to have him draw up her last will and testament. He told Flossie that he was a 'damn fine' lawyer and would not 'soak' her. Jackett had been instructed by Varcoe during 1940 to draft an advertisement for the position of librarian at the Supreme Court of Canada. The Department of Justice was, at that time, responsible for the staffing of such positions.18 Having drafted the advertisement, he sent a copy of it to Driedger, who was then eking out a living in Yorkton and encouraged him to apply for the job. Sir Lyman Duff, the chief justice of Canada, hired Driedger for the job in December, 1940. Towards the end of his first year as librarian, Jackett arranged for Driedger to meet Varcoe and for the new deputy minister to make an offer to Duff to 'borrow' him for the department. Sir Lyman Duff, who, Jackett observed wryly, was not as practical as he might have been, did not realize what a jewel he was losing and agreed to let Driedger go. He joined the department in December 1941. It became a matter of some amusement for Jackett and Mundell that Driedger, who had arrived after them, had a much bigger office across the hall.19 Thus began a career that would eventually lead to Driedger becoming deputy minister of justice in 1960 when Jackett left the department to go to the CPR. Driedger was not interested in court work, but he was a superb draftsman and, after his arrival at the department, was gradually assigned most of the responsibility for the drafting of statutes, in addition to his other duties of opinion and advisory work. He soon developed a reputation in the drafting field and became a mentor in such matters to many of the junior lawyers in Justice, all of whom also did some work of this nature. Varcoe had done a great deal of the legal drafting within the department and took care to teach the junior lawyers how to do it as well. Particularly during the war, submissions to the Governor-in-Council under the War Measures Act were very important and needed to be carefully drafted. The younger lawyers in the department worked on such ordersin-council on a regular basis, dealing constantly with deputy ministers and heads of government agencies. All of the young lawyers did some legislative drafting; Jackett drafted six or eight bills during his first year in the department. They used three or four fairly basic reference texts, as well as relying constantly on the Interpretation Act. The best teacher was the school of hard knocks, of which the headmaster was Varcoe, who would review their drafts and return them with curt notations in his green ink such as: 'Not clear' or 'Do you mean [this] or do you mean [that]?' They spent a good deal of time studying the structure of a

58 Chief Justice W.R. Jackett

legislative sentence since, generally, any section of a statute had to be drafted in the form of a single sentence. When Elmer Driedger began to develop legislative drafting as a form of specialty practice within the department, Varcoe instructed Jackett to spend some time with British draftsmen, who had developed a much more orderly and organized method of getting instructions prepatory to statutory drafting. He thought that Canadian draftsmen should benefit from their experience in the field and wanted Jackett to get the project under way. Once the initial contacts had been established, on one of Jackett's trips to England to deal with some of the Privy Council cases that had been held in abeyance as a result of the dangers of travel during the war, Driedger became more directly involved in development of the Canadian process and was himself sent over by Varcoe to find out how they 'did it' in the United Kingdom. A new procedure evolved whereby, before the legislation was drafted, a memorandum would be prepared for Cabinet, which would then review the policy considerations and, once Cabinet was agreed on the policy of the legislation, a draft bill would be put together to implement such policy. Prior to this time, the operations had been rather haphazard. The Justice lawyer who was designated to draft a particular statute would speak with officials in the appropriate department to find out what they thought their minister had in mind for whatever bill he wanted and, if this was not clear, he might have to discuss the matter with the minister himself. During the war, the Saskatchewan triumvirate carried an enormous share of the workload at the Department of Justice. They were recognized and appreciated by ministers and the Canadian Privy Council as the real backbone of an otherwise rather weakly staffed department. Too old for active military service, Jackett, Driedger, and Mundell practically lived in the department during the war. They gave opinions 'on the run' to pools of stenographers to whom they would dictate almost non-stop from a stack of files on a large table in a room that resembled that of a war cabinet. The triumvirate literally kept the Department of Justice running while the older group, by then consisting principally of Ed Miall, Dick Olmsted, and P.M. Anderson, was getting ready to retire.20 They pulled the department together during the war and were poised to take it over by the end. The war years established the reputation of each of the triumvirate as well as the triumvirate itself. The size and complexity of government activity during the war increased in geometric proportions, all of which required the necessary 'machinery' and legal frameworks to be established, including the drafting of new statutes, wartime regulations, and ordersin-council, over and above the regular work of Justice. The amount of

The Saskatchewan Triumvirate 59

work that descended upon the triumvirate was almost beyond measure. Within the department, as it began to expand after the war, the exploits of the three became the stuff of legend and there was a profound admiration, bordering on reverence, that lasted for years, for the volume and quality of what they had been able to accomplish. The old Justice hands who knew them continue to marvel at how they held the department together. Each had his particular style and capacities. Jackett operated by preference with the language used in the statutes and looked for precedent to support his conclusions or, if the precedent was a statement of the law from the Privy Council or the Supreme Court of Canada, he accepted that statement as the law. It led to occasional, but inaccurate, characterizations of him as a strictly 'black letter' lawyer who did not venture with enthusiasm into new areas.21 Perhaps Jackett's most remarkable feature was his ability to sit there, day after day, week after week, month after month, and churn out a huge volume of exceptionally high-quality work. Driedger did not have Jackett's physical stamina, but he had a very orderly mind, excellent judgment, an efficient working style, and an ability to delegate. Over the years, the relationship between Jackett and Driedger became even closer and it would be a rare occasion on which Jackett would give an opinion or draft a document without first getting Driedger's reaction. Mundell was quite different from the other two. He was something of a free spirit, not nearly as organized, and as a result accomplished less, but he was acknowledged as the most flexible and creative of the three.22

4

Life in the Department

It would be difficult to understand Wilbur Jackett without examining the figure who had the most influence on him as a lawyer and who taught him much of what he learned about the real practice of law. Over the period of his professional life, Jackett has appeared with, appeared before, and worked with some of the best-known professionals in Canadian and British law. But few had as much to do with the shaping of him as a lawyer as Frederick Percy Varcoe. Undoubtedly the leading governmental lawyer of his day, Varcoe had been the number three lawyer in the Department of Justice when Jackett arrived to begin work in January 1939. All of the senior lawyers at that time were experienced in the operations of the department. W. Stewart Edwards was then deputy minister, but he was ill and would retire within a year. C. Percival Plaxton was acting deputy minister and limped along in that position, without ever becoming deputy, until his appointment as an Ontario judge, the purpose of which was to clear the way for Varcoe's appointment as deputy minister.1 After Plaxton was off the scene, Varcoe did not make any secret of the fact that he had arranged for the judicial appointment 'to get rid of him/ Varcoe was born in Toronto in 1889 and had attended the University of Toronto, earning a BA, followed by the then prescribed course of study in law at Osgoode Hall leading to his call to the Ontario bar. He first came to Ottawa as a junior advisory counsel in the Department of Justice during the short prime ministerial tenure of Arthur Meighen in 192O-1,2 working his way up through the ranks until his appointment as deputy minister in 1941. His special interest was the constitution and he made sure that he

Life in the Department 61

took every constitutional case that he considered important, as well as other cases when he deemed them worthy of his personal attention. Varcoe held the post of deputy minister for sixteen years, during which the reputation of the department constantly grew. His tenure ended on i May 1957, his sixty-seventh birthday, after two requested extensions. Varcoe was a remarkable, if somewhat eccentric, character and stamped the department with his own style. He demanded nothing less than the best its lawyers had to offer. Those who could not meet the standards and who were not prepared to work the long hours required were soon dispatched to other departments or left the public service entirely. Varcoe himself was a very hard worker and expected the lawyers in the department to work regularly on weekday evenings, as weU as on Saturdays, half of which was mandatory in any event as part of the regular work week until well after the war. This particular expectation was the backdrop to the agreement Jackett negotiated with Kathleen shortly after they were married. Without the agreement, Jackett was concerned that there would be 'uncertainty.' He would work Tuesday, Wednesday, and Thursday evenings from eight until eleven o'clock, and all of Saturday and Sunday afternoons. Apart from these hours, the balance of his time was 'at her disposal' and Kathleen was free to accept social engagements on their behalf or to make commitments that would involve him. Sunday morning was the only real holiday of the week. Kathleen enjoyed good health at the time and had other activities. This 'deal' was not altered until several years following the war, when Kathleen had her first operation and he began, instead, to bring work home with him in the evenings so that she was not left alone. Jackett often found Varcoe talking to his stenographer - he did not have a secretary - probably, he thought, to keeps tabs on him and to find out how he was doing and whether he was sufficiently busy. Varcoe regularly had the librarian give him a list of the people who used the library at night. If a lawyer was not so listed, Varcoe would call him to ask if he was not occupied and then he would send more files to him. As a practical matter, however, says Jackett, if Varcoe wanted you, you were there, whatever the day or time of day. There is a story, which continues to circulate in Justice even to this day, regarding Varcoe and Jackett. It goes something like this: Varcoe called Beatrice Brace, his secretary, saying, 'Get me Jackett.'3 Brace called Jackett's secretary on the fourth floor of the Justice building to say, in her customary breathless fashion, that Mr Varcoe wanted to see Mr. Jackett 'right now' in his thirdstorey office, only to be told that Jackett was at his cottage in the Gatineau on leave. Informed of this by Brace, Varcoe announced peremptorily that 'Mr. Jackett does not take leaves,' reached for the phone, called the RCMP, and had them send a car to the cottage to pick him up and bring him back

62 Chief Justice W.R. Jackett

to the office. Jackett says that he does not remember the incident. Brace thought this might well have been Varcoe's idea of fun. THE DEPARTMENT UNDER VARCOE

Under Varcoe's leadership, the Department of Justice fought very hard to resist any kind of political encroachment into the legal matters affecting government. As deputy minister of Justice, he drew an absolute dividing line between the legal and the political. Gordon Blair was appointed in late 1951 by Justice Minister Stewart Sinclair Garson as his executive assistant. On Blair's first day of work, Varcoe called Blair into his office and stated, 'I am the senior law officer of the Crown and I do not want anyone interfering with my advice to the Minister.4 Is that clear?' In a similar vein, when Gordon Robertson was appointed clerk of the Privy Council, Varcoe announced that he was damned if Robertson was going to get between him and the government. The politicians seemed to be wary of Varcoe, possibly because of the tough reputation he had earned in R.B. Bennett's day.5 He was regarded as the one person who really carried weight in the department. He had a rough, tough way of dealing with the politicians regarding legal matters. He did not hesitate to tell ministers that something was unacceptable, and they almost invariably accepted his judgment on such matters. One of the few areas in which he had not got his way was in a fight with External Affairs. Varcoe disagreed with External Affairs concerning the protocol it had signed regarding war crimes. His legal view was that these were not 'crimes/ as defined, when they were committed. This led to a distinct coolness between External Affairs and the Department of Justice. The legal division of External Affairs came to be regarded as something of a legal dead end within government, cut off from the natural source of support from the Department of Justice. It was one reason why Gordon Blair left it early in his career. The rift was never healed and, in time, the External Affairs group came to take some degree of perverse pride in the fact that their lawyers did not come to them on a basis decided within Justice, as was the case with almost all other departments.6 Varcoe was far more likely than Jackett to go off in new directions and liked the challenge of an uncharted future. Jackett preferred things to be solidly based as a matter of law, in the common law tradition, before he moved forward and built on the existing structures. Marguerite Ritchie, one of the first women in the department, joining in April 1953, says that Varcoe had a 'thing' about section 91(2) of the British North America Act, 1867 and the possibilities it might contain for expansion of the role of the federal government. These were the beginnings of the days in which the

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federal government sought to use its power to raise money by direct taxation and its related spending power as a practical means of expanding the role of the federal government beyond the stricter constitutional limitations contained in the statute.7 Philosophically, Jackett was far more inclined to ask himself the question of what is the best legal course of action from the point of view of his client.8 This included not only the matter of what was prescribed by the particular statute but also, in each case, what the costs might be to establish the point through litigation, although there were occasions when the question of principle was important enough for the government that the cost of establishing it became secondary. There is no doubt that Varcoe was generally regarded as a rigorous thinker and Jackett credits much of his own success to the training he got from Varcoe. Jackett appeared with Varcoe in several cases and considered him to be a good counsel, except that Varcoe thought he was better than the judges on the courts, including the Supreme Court of Canada. Though he made little effort to disguise this view, Varcoe was nevertheless respected by most of the judges on the Supreme Court, who certainly listened with respect to any arguments he advanced on behalf of the crown when he appeared before them. They worked on several Supreme Court of Canada facta together, which required him, under the constant prodding of Varcoe, to hone his legal thinking and expression very early in his career as it related to work before the courts. On constitutional matters, which were Varcoe's primary interest, Jackett recalls that Varcoe used to like to get you into his office and explore the ramifications of various issues, with particular attention to the meaning of words that were used. Varcoe had the Shorter Oxford Dictionary on a stand in a corner of his office. Jackett says that he was never there for a meeting of any duration in which Varcoe did not go to check the dictionary three or four times. Varcoe had a lucid mind and an easy writing style that was particularly intelligible. His work, The Distribution of Legislative Power in Canada,9 although somewhat dated now, is a perfect example.10 Some observers consider Varcoe to have been more of a pleader than a litigator, one who would much rather argue a legal point than deal with witnesses and the other troublesome aspects of trial work. Ward McKimm, who joined the department in July 1954, does not think that Varcoe would have been at all effective with a live witness in court. He was a far better appellate counsel than trial lawyer. Some of this tendency rubbed off on Jackett as well, who was also more comfortable dealing with legal issues than with witnesses. Whenever possible, Jackett tried to get agreements as to the facts, which, he says, saved you from surprise, being stabbed in the back at the last moment, and from the possible poor performance of the witness at trial. He tried hard, far more

64 Chief Justice W.R. Jackett

than Varcoe, to get inside the mind of his opponent, to anticipate what he would be likely to advance as evidence or to argue, and to prepare accordingly. Varcoe's opposite predilection, not to try to understand what was in the mind of his opponent and thus to get to the position which would be the most likely to achieve what he wanted, was one reason why he tended not to get along with people. It was, perhaps, somewhat different with determining what the courts might think. One of his juniors, Keith Eaton, remembers Varcoe getting ready to prepare the factum prior to arguing the so-called Rentals Reference case in the Supreme Court of Canada.11 This case dealt with the validity of the Transitional Powers Act, which had the effect of continuing some of the controls contemplated under the War Measures Act. It was a case in which Varcoe used the Saskatchewan triumvirate to good advantage. The first thing he did was call for an Ottawa telephone book and start leafing through it. When asked what he was doing, he growled that he was checking to see how many of 'these characters' (the Supreme Court of Canada judges) lived in rented premises. The background to the case involved Mitchell Sharp and David Mundell, who had been assigned to the Department of Finance at the time. Ottawa wanted to abandon federally imposed rent controls, which had been rendered constitutional only by reason of the War Measures Act; however, well aware that such controls were supported by the electorate, the government did not want to do anything that would make it unpopular before an election. After much thought, the government decided that the best way to get out of this field would be to state a case for the Supreme Court of Canada. The answer it received from the court was that the controls were still valid but would not be so indefinitely. It was a perfect answer from the political perspective. The federal government then wrote to the provinces, saying that this was the opinion it had received and that, in one year, all federal rent controls would be lifted. This gave the provinces enough time to respond with legislation of their own, and the federal government was able to lift the controls with a minimum of unhappy federal voters. Views within the department about personal relations with Varcoe varied. As Carson's executive assistant, Blair was between the minister and Varcoe. Varcoe wanted things done quickly and well; he was always shouting about the lawyers and the minister. Nobody, Blair says, was on really friendly terms with Varcoe. It is also a fact that Varcoe was much older than most of the lawyers in the Department. Indeed, he was only two years younger than Jackett's father. Perhaps as a result, he was distant. Gerard V. LaForest, a future judge of the Supreme Court, thought that Varcoe was basically kind but that he could be very snappy. Alban Garon considered him very tough with the lawyers but also fair.

Life in the Department 65

When Richmond Olson12 broke his leg skiing a day or so before a trial at which he was supposed to be assisting Varcoe, Varcoe, upon hearing the news, snarled, 'Too bad it wasn't his God-damned neck/ The wounded Olson was called by Beatrice Brace and given the standard order, 'Mr. Varcoe wants to see you. Right now.' This was easier said than done, since he was in a full leg cast, but he got his crutches together, hobbled through the Justice building, took the elevator to the third floor where Varcoe's office was located, and manoeuvred himself down the corridor to Varcoe's corner office. Upon admission to the office, Varcoe said, 'I just wanted to see if you are still with us.' Back he went. On another occasion, Varcoe returned one day from court and demanded that Brace ask that 'God-damned MacLeod' whether he knew the meaning of the word 'chronological.' One of the duties of the junior lawyers was to go to the Supreme Court Library to get copies of the case reports to which Varcoe proposed to refer during the course of his argument before the Court; the lawyer was then to place the reports on the counsel table in the courtroom. Varcoe liked the volumes to be set out in order of the date of the case, but Allan MacLeod, armed with a copy of his factum in the case, had set the books out in the order they were referred to in the factum, believing that was the order in which Varcoe would refer to them and reach for them as he was arguing. Mistake. Brace volunteered that she was sure MacLeod knew the meaning of 'chronological/ but Varcoe insisted that she call him and ask him, which she did. On yet another occasion he was heard to ask about 'God-damned Mundell and what was he doing going to court with brown socks on?' The relationship between Varcoe and Jackett was always somewhat equivocal. Jackett believes to this day that Varcoe made no pretence of liking him and made it clear that he expected more from him than from the others. In the early days, Varcoe was rather contemptuous of him, as an upstart westerner who had been to Oxford on a special scholarship. Jackett observes that Varcoe saw weaknesses in most people long before he saw their strengths. He rode Jackett very hard, but, at the same time, obviously recognized his abilities and was otherwise fair in his treatment of him. He certainly, says Jackett, never failed to tell him everything he needed to know in order to do what it was that he wanted Jackett to do. And he was instrumental in getting Jackett started with important litigation that led to a good standing before the courts. He was also content, from an early stage, to leave a good deal of the administrative responsibilities of the department to Jackett. It is a mark of his good judgment that Jackett personally recruited not only his eventual successor as deputy minister of Justice, Elmer Driedger, but also the two deputies who succeeded Driedger, Donald S. Maxwell

66 Chief Justice W.R. Jackett

and Donald S. Thorson.13 Both of the latter were hired by Jackett in 1951 during the course of their studies at Osgoode Hall. Maxwell was a tall, well-filled-out, former football player, whose knees had paid the customary price for participation in the game, and the result of being less than fully mobile was that he had a tendency to put on weight. He was a hard worker and a good lawyer and gave the impression of being very confident, often showing more confidence in some of their cases than Jackett himself. Maxwell gave Jackett the impression that he liked to work with him. The competitiveness that Maxwell showed in all matters meant that he was not the most popular lawyer within the department, but there was never any doubt as to his abilities. When Jackett left the department, Maxwell took over the civil-litigation portfolio which Jackett had managed for many years and did most of the senior litigation of the department, often with George Ainslie, who, in turn, became one of its best counsel.14 Don Thorson was the son of Joseph Thorson, president of the Exchequer Court of Canada. Jackett hired him in spite of, rather than because of, this relationship. Had there been another candidate as good as Thorson, Jackett would not have chosen him, given the amount of work the department did in his father's court. There was, however, no doubt that the 'two Dons' - Don Maxwell and Don Thorson - were the outstanding candidates, so they were both offered positions. Thorson worked mainly for Elmer Driedger in the advisory and drafting work of the department for the first couple of years and, thereafter, showed no great desire to move away from that work.15 He gradually became irreplaceable in this field and it was decided that he should remain there. Years later, when Maxwell was deputy minister and Jackett had been appointed to the Exchequer Court, Jackett recalls with some amusement that it was impossible to convince Maxwell that he was not as good at drafting as Thorson. When the Divorce Act was being completely revised and the Federal Court Act was in the works, Maxwell reserved these for his own personal attention, but Jackett ended up doing the drafting. Jackett was always fond of both of them and their good relations proved to be helpful after he was on the bench and he was able to convince them to make changes designed to improve the administration of justice. When asked whether he and Varcoe made a good combination, Jackett said that, with the Rhodes scholarship, he had three or four points against him, undoubtedly a residue from William Norman Tilley's mentorship of Varcoe/6 and that Varcoe dropped all the tedious administrative jobs, including taking care of routine staffing matters, on him. His overall assessment was that he was useful to Varcoe and this was probably an assessment they both shared. In addition, many of Varcoe's habits and approaches would rub off on Jackett. Despite the lack of personal warmth

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between them, Jackett had great respect for Varcoe, which eventually became mutual and made them an effective team. LaForest, who arrived at the department in 1953, remembers coming to Varcoe with an opinion which differed from Jackett's and, instead of simply telling him he was wrong, Varcoe merely stated, obliquely, that he highly respected Jackett and Jackett's opinions. Jackett says that he never dealt with a case of any importance without having assured himself that Varcoe both knew what he was doing and was generally favourable to the direction in which he was heading. If he thought that there was any possibility of embarrassing either the minister or the deputy minister, he would send whatever he was working on to Varcoe before it went out. There were lots of cases on which they disagreed and about which they argued. Jackett thinks perhaps, in retrospect, that he may have had more influence on Varcoe than he had thought at the time. He and Varcoe worked out a system between them whereby, if a file contained nothing for the deputy minister to think about, it did not go to him. Most of the lawyers agreed that Varcoe and Jackett made a good and balanced team, with Varcoe willing to take chances and try new ideas and Jackett preferring an approach or solution that was based on precedent. In constitutional cases, Varcoe had an intuitive approach - and a flair for the dramatic - which seemed to find favour with the courts. Jackett would almost always opt for a technical position and was therefore much better than Varcoe in statutory cases, such as income tax. Varcoe had a highly developed sense of how the court was responding to his arguments, whereas Jackett seemed much less able to shift ground in midstream and was more than likely to work his way doggedly through the argument he had prepared and be sure it all got put before the court. Varcoe seldom went to social functions. He might say that he was coming but, at the last moment, he would find some pretext not to go. Within the department, Jackett can only recall one occasion on which Varcoe hosted a cocktail party, at which he seemed singularly ill at ease. He thinks it was at this party that Varcoe, who may have seen Kathleen only half a dozen times in the eighteen years that they worked together in the department, said to her, 'Mrs. Jackett, you passed me in the street and did not recognize me. This will affect your husband's promotion.' Undoubtedly an awkward attempt at humour, Varcoe's remark could also have been a way of indicating that he was aware that Jackett was not one of those underlings who fawned on him. This was true enough. Besides, from a career-enhancement perspective at its baldest, Jackett did not think that it would be Varcoe who decided who would be the next deputy minister.17 On the other hand, despite an aversion to social affairs

68 Chief Justice W.R. Jackett

attended by wives of the departmental officers, which he considered could lead to nothing but trouble (a conviction shared by Jackett in due course), Varcoe would hold an annual dinner for the department and do a reprise of the year. It was rather like being mentioned in dispatches and there was great rivalry between the civil-litigation group and the others to see who got the most 'mentions/ Varcoe was not a regular churchgoer but went in binges, not apparently enjoying the experience all that much. When he did go, he would report to Brace on Mondays how many grammatical errors the minister had made in the course of his sermon the previous day. The central issue seemed to have been the standards of ministerial pleading before the Ultimate Court of Appeal on behalf of the congregation. No comment would be made on the substance of the message. AN INCOME-TAX SPECIALTY

Jackett started working on income-tax bills in about 1942 and kept that portfolio until he became deputy minister. Long before the budget meetings, a group of twenty or thirty would gather in the minister of finance's office. Jackett was the only lawyer there for such meetings, since it would be his job to turn the policy decisions into statutory format. After the budgets had been announced in the House, they would meet with Kenneth Eaton18 and others from Finance and National Revenue in Jackett's office to draft the bills. The routine was that they would spend three or four hours discussing the content, following which Jackett would personally prepare the draft statutory language. They would then meet the next day to discuss the drafts. Charles C. Gavsie of National Revenue was a terrific contributor to these meetings, says Jackett, because he was able to inject the perspective of what the language would mean to someone in business. This particular capability was not, and still is not, always the long suit within the public service. In the course of budget meetings, Jackett got to know Douglas Abbott, the minister of finance after the war, who later went to the Supreme Court of Canada, where he continued to be completely certain that he knew exactly what was intended by every tax provision which happened to come before him, as well as Paul Martin (father of the current minister of finance), a successor to Abbott as finance minister. One of the great learning experiences for Jackett in connection with drafting the 1948 Income Tax Act, which was roundly complimented as a model of clear drafting, was that he got a chance to work through the entire Department of National Revenue, dealing with and picking the brains of the specialists in each aspect of the workings of the system. It was one

Life in the Department 69

of the rare occasions on which he attracted media attention for his work at the department. There are few fields in the law in which the legislative cat-and-mouse game is played in such deadly earnest as in income tax. In the early days of taxation, the rates were low enough that income tax did not attract a great deal of attention, but, as the need for revenues to feed the growing and omnivorous appetite of government expanded after the war and the rates began to climb, the private sector grew increasingly concerned about the size of the shovel being put into their stores. The statute was technical in nature and the technical game was afoot. For many years, those inside government were hopelessly outmatched by the batteries of lawyers and accountants at work on behalf of the private sector to do their best to minimize the taxes they paid. As Stikeman said, 'Nobody inside government had any idea what was going on in practice/ There was constant surprise within government at how the legislative provisions were being 'worked' by the tax professionals.19 It left government with virtually no practical alternative but to start applying an endless series of increasingly complex legislative bandaids to try to stem the 'leaks' from the idealized tax system, which, of course, simply accelerated the vicious circle. By 1956, Jackett, speaking at the tenth annual Canadian Tax Foundation conference in Montreal, was trying to explain to the tax-professional community the problems inherent in drafting tax legislation, and he pleaded both for simplification of drafting and for leaving it to the courts to establish the applicable principles. The title of his speech was Too Much of Income Tax Law?20 and it could be seen as something in the nature of an apologia of the legislative draftsman, forced to respond under pressure and time constraints established by the makers of tax policy. As a public servant, Jackett points out, he expressed no opinion on the policy considerations involved in the legislation. He is, nevertheless, somewhat defensive about some of the general concepts in 'his' 1948 act, which were later supplanted by specific rules. He notes that there are risks attached to the choice of trying to draft more specific provisions, but he concludes that the need for certainty sometimes outweighs the desirability of waiting for the courts to establish the applicable principles. Given the delays that could be encountered as a result of the long reserve periods in the Exchequer Court and the further delays in going to the Supreme Court of Canada, there was some validity to the point of not waiting to see what the courts might decide.21 The income-tax field was one in which there were many tensions within government. The policy was generally devised within the Department of Finance, with input from the Department of National Revenue as

70 Chief Justice W.R. Jackett

to the mechanics of collection and practicalities of implementing the policies, and the legislation was then drafted by the Department of Justice. The principal tension, once the statute was in place, was between Justice and National Revenue, since Justice was trying to get back control of tax litigation, which had, over the years, apparently drifted into the purview of National Revenue. The statutes prior to the 1948 act had contained substantial discretionary powers exercisable by the minister of national revenue, represented by his redoubtable and omnipresent deputy minister, Colin Fraser Elliott, and National Revenue was jealous of the power which flowed from these provisions.22 Varcoe and Elliott could not stand each other. Elliott was often heard to exclaim, 'God save us from civil servants and Varcoe!' No doubt the enmity between Varcoe and Elliott was reflected in the perceptions within each of their departments.23 Jackett said that a symptom of the bad relations between the departments was that Elliott, who had once offered him a job and who knew that he was the Justice official charged with responsibility for drafting the 1948 Income Tax Act, purported never to remember his name. The tensions between the departments would occasionally rise to the surface in public. There was a case one time before Joe Thorson in the Exchequer Court, in which Jackett and R.W.S. Fordham, one of the older lawyers with National Revenue and later a member of the Tax Appeal Board, both appeared for the minister of national revenue and Thorson asked which of the two was the chief counsel.24 Each rose to his feet at the same time to announce that he was. In fact, Jackett was in a position in which he was about to disavow something that Fordham had done in the file. Thorson said that he would adjourn until they had the matter sorted out. Jackett phoned Varcoe and asked him to tell 'this idiot Fordham' that it was the deputy attorney general of Canada who represented the crown in litigation and not the minister of national revenue. At this point, the practice in tax cases was for the Department of Justice lawyers normally to have a lawyer from National Revenue with them. The eventual outcome of the power struggle between the two departments was an agreement that, in tax cases, National Revenue lawyers could appear but not lead. The Department of National Revenue, for its part, did not think that Varcoe dealt with tax cases particularly well. Reward Stikeman remembered assisting Varcoe in a case in which he did not consider that Varcoe had made things even the slightest bit clearer by the end of his argument.25 Stikeman always believed, as apparently did National Revenue generally, that Varcoe did not understand income-tax cases and that he was confused when he began, confused throughout, and no less confused at the end. Certainly Varcoe felt the same way about Revenue and was no

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fan of Stikeman even after he left the Department of National Revenue to begin his own successful tax practice. Varcoe once told Keith Eaton that he was sending him to London to oppose Stikeman's application for leave to appeal to the Privy Council in St. Catharines Flying Training School v. M.N.R.26 just for the experience, because he thought Stikeman was sure to succeed. Upon Eaton's return, Jackett told him that Varcoe seemed to get almost sadistic pleasure from the news that Stikeman's application had been dismissed. To be fair, however, until the advent of Jackett, it was probably true that National Revenue generally knew more about tax litigation than most of the lawyers at Justice. BEFORE THE COURTS

A particular benefit for young lawyers in Justice in the days when Jackett joined the Department was exposure to the leading counsel in the country. Since it was the practice on most important cases to engage outside counsel to appear with the Justice lawyers, they got the chance to work with them and to learn how cases should be prepared and argued. Senior lawyers in recent years seem to appear before the courts less often than formerly and so young lawyers, particularly in private practice, seldom get the opportunity to learn from experienced counsel. Jackett never had the opportunity to appear with some of the giants of the previous generation, such as Eugene Lafleur, but he did meet Aime Geoffrion27 and Norman Tilley and appeared often with and occasionally against Cyril Carson, Roy Kellock, a future chief justice of Canada, and Lionel Forsythe. Anecdotes about these men were also passed on to him by Varcoe, who had known them all very well and had appeared with them before the courts both in Canada and in England. Geoffrion, who had a prodigious memory, used to make a list of points to be argued and work through them until he felt that he had hit on something to which the court was receptive. Habitually speaking too quickly for the ordinary judicial mind to follow his arguments, he routinely made a large marginal note near the top of his page, saying 'lentement,' and, farther down, 'plus lentement/ Cyril Carson, on the other hand, was deliberate to the point of being considered as 'plodding' by some observers. Jackett says, however, that there is nothing wrong with being a plodder if you get to the right result. Carson used to have every word of his argument written out in full and would work through it page by page. On one occasion in the Supreme Court, as he was working through an argument, he would turn the page and Jackett and Allan Findlay, a junior in Carson's firm, who had their copies of the argument, would turn their pages at the same time. The

72 Chief Justice W.R. Jackett

court chided Carson on this, after which the juniors were forbidden by Carson to turn the pages as he argued. Part of the regular training of the junior lawyers, such as Jackett, Charles Stein of Quebec,28 and Mundell, was to work on the facta for cases that would be argued by Varcoe or senior outside counsel and, occasionally, to appear with them before the courts. The litigation was a kind of 'bonus' for the young lawyers and it was done in their spare time, after the docket work was finished for the day. Most of them were delighted to have the experience and did not mind the extra work which it involved. Going through the exercise of reducing the cases to their essentials was excellent training for them, both as to presentation of an argument and as to the legal content of the various arguments. The departmental training was to reduce the length of the written argument contained in a factum to its absolute minimum and all of the lawyers honed their skills for such purpose. It was sufficient to note only the points which were to be argued and it was regarded as poor practice to file a factum which read like oral argument. There were, at the time, no formal limits on the length of oral argument before the Supreme Court of Canada, unlike today, when the parties are generally limited to one hour. Because of this, the practice changed to lengthy facta and the court has now had to cut back on the length of written arguments. Jackett suspects that the change to lengthy facta may well have been a consequence of the increase in the number of lawyers without courtroom experience appointed to the court, who were not used to the tradition of oral argument and who were far more comfortable with argument in writing. One day Varcoe called Jackett into his office to say that the chief justice had remarked to him that the Supreme Court of Canada had been seeing Jackett and Mundell with him on several cases and that it was about time the court started hearing from them in their own right.29 After that, Jackett hardly ever went to court with Varcoe. Jackett says that he generally had a pretty good reception in the Supreme Court.30 Asked how he would describe himself as counsel, Jackett smiled, paused, and said that he was 'mundane/ He thought, however, that he came to be seen as one who could be relied upon to give the overall picture, which is important if you appear regularly before the courts. In one constitutional matter, he appeared for the attorney general of Canada and said that, according to his instructions, he was there for the principal purpose of assisting the court. Chief Justice Patrick Kerwin, who had replaced Thibaudeau Rinfret on i July 1954,31 said that if the crown was not pushing a particular point, he did not want to hear it. In the corridor later, Justice Charles Locke told Jackett that he was sorry they had not let him provide whatever assistance he might have been able to give.32

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Lawyers, including ones in the Department of Justice, often get stuck with arguing cases in which they do not believe. Jackett says that there were three or four such cases that he can recall, but he had learned early on that, even if it were clear to him how the case should be disposed of, there was a good chance that in the end he would be found to be wrong. The only advice you can give to a client, says Jackett, is that, if he is prepared to go a certain distance, then 'this is what I think will happen/ You cannot say that 'This is the law/ The law is, to be realistic, what the final court to hear the case says it is. Your job as counsel, he says, is to put up the best argument possible for the case. Jackett observes that he was often wrong when he thought he was right, the lesson being that you can never know what a court may think is important. In any event, on any given piece of litigation, the nature of the courtroom lawyer is such that, once the competitive juices got flowing, by the time you get to court, you generally have come to believe in the case. On the matter of 'belief/ Jackett remembers a case in the Supreme Court of Canada with Heward Stikeman, who kept saying to the court that he 'believed' this and 'believed' that. Justice Roy Kellock, gently reminding Stikeman of the proper role of counsel before the court, said to him, 'Mr. Stikeman, your client "believes," but you "submit/" Stikeman, typically undaunted, said, 'No, no, I believe!' Jackett was a strong believer in the principle that it is better, in arguing your case, to deal with the tough points first rather than to let your opponent do so and have the court think you may be trying to avoid them. His approach to cases was that they were essentially legal questions. He would be the first to admit that he did not have broad experience in questions of fact during his time as a lawyer, although, when Jackett became a judge, Bud Estey says that he took to the factual aspects of trial work without any difficulty, assembling the factual underpinnings of the cases, assessing credibility of witnesses, and all the other issues raised by the presence of witnesses in the courtroom. Typical of Jackett's approach was the manner in which he worked with Keith Eaton in Taylor v. Minister of National Revenue.^3 Jackett wanted Eaton to look after the examination and crossexamination of a shrewd Toronto businessman who had made a large profit on lead futures and on whose evidence it was likely that the case would turn, leaving him free to concentrate on the argument. During the evening preparation before the appeal was heard, Jackett showed Eaton his neatly typed argument and cautioned him to bring out the evidence on cross-examination that would fit into his argument. They decided upon a narrow approach, including only those arguments that they considered supportable, sometimes referred to as the 'Cyril Carson approach' as contrasted with that of John Robinette, who was well known for shifting his grounds while on his feet, after getting the court's reaction.34

74 Chief Justice W.R. Jackett

Peter Troop, one of Jackett's recruits from the early 19505, says that Jackett had a forceful personality as counsel and was not particularly subtle. His predilection was to take a technical position, arguing the plain meaning of the text of the law and relying on precedent to support the position. Jackett was not one who had large teams working on cases and seldom had conferences to review the cases. He was quite dominating and somewhat scary too. Troop remembers that in the case of Subsidiaries Holdings Company Limited,^5 after Jackett had argued, J.D.C. Boland, his junior from National Revenue on the case, mentioned another possible tack to get at the question before the court. An angry Jackett said that it was a good point but it was by then too late to make the argument. Jackett would be the last of the deputy ministers of justice to appear on several occasions in the Privy Council before such appeals were abolished.36 There was no particular problem being taken seriously as a Canadian lawyer before the Privy Council, and indeed several Canadian counsel were especially well regarded, including Eugene Lafleur, Aime Geoffrion, and Norman Tilley. One had, naturally, to learn the customs and take advice on how to deal with the judges in court. The practice was to spend half a day or so with the English counsel who had been retained for the case and review the idiosyncracies of the members of the panel which would be hearing the appeal, to figure how best to play up to them and how each might be likely to respond to the arguments to be put forward. There was a Canadian, Frank Gahan, who lived in London and who had a call to the English bar, whom the Department of Justice regularly used as a 'junior' and who remained as a junior until shortly before he retired, although he eventually 'took silk/37 Jackett agrees that the English barristers had a better command of the English language than the Canadian lawyers who appeared before the Privy Council. The only time he was actually called upon to speak in the Privy Council, he stood up to say that the government of Canada supported the position of the CPR in the particular matter and sat down immediately, shaking.38 He remembers the hearings at 9 Downing Street, where the lawyers were gowned but the law lords, who sat in a semi-circle at the floor level, were not. There was a single lectern for use by counsel and the lawyers spoke down to them - only physically, however! Before the Privy Council in the 19405 and 19505, Jackett remembers, every time a quotation from a judgment was referred to, the three ushers who attended upon the five judges would get the case so that they could share the court's three copies of the case report among themselves. The judges would insist that, when counsel cited judicial statements in other cases to support their argument, they also explain the context of these statements. Counsel had to 'place' the quotes for the court. This is not al-

Life in the Department 75

ways done in Canada. In the Privy Council, the judges were all experienced trial and appellate lawyers and, as Jackett says, 'knew their way around a courtroom/ One might very well be referring to cases either argued or decided by members of the panel, so it paid to be careful when citing cases. In England generally, outside the courtroom, Jackett found that he had occasional difficulty, as a colonial, to persuade individual English lawyers to pay attention and to take him seriously in matters of common law. He remembers, in particular, an occasion on which the Canadian government was buying some land in central London and he had trouble with the English solicitors, none of whom had ever gone into the legal problems inherent in transferring land from one persona of the crown (British) to another (Canadian). The English lawyers had not had to grow up on the particular schizoid character of the Canadian constitution, in which the central question in many of the leading cases revolved around the rights of the federal crown versus those of one or more provincial crowns. Practising in a unitary state, they had not read the applicable cases and had to be persuaded that he knew what he was talking about. Jackett made arrangements to get a call to the Ontario bar in 1952, since he felt that it was not right for a lawyer practising in the province to be unqualified to appear before its courts. It involved a period of formal articles to Varcoe and a routine, but laborious, procedure to be called. He was offered an exemption, as a dominion queen's counsel,39 from writing the normal examination, but wrote it nevertheless. An assistant deputy minister of justice - an appointment that came in 1949 - could not be too careful. Cyril Carson, on behalf of the Law Society of Upper Canada, signed the notice of call, dated 24 September 1952. Shortly thereafter, in a case before the Ontario Court of Appeal, Jackett got his first taste of the rough treatment for which some of its judges were notorious.40 When Jackett stood up, Justice R.E. Laidlaw, barked at him, 'What are you doing here?' Jackett says, 'They almost chucked me out without hearing me/ and he practically had to prove that he was a member of the Ontario bar. The attorney general of Canada was opposing the purported issuance of a writ of habeas corpus ad testificandum by Justice E.-G.-E. Chevrier of the Supreme Court of Ontario in the course of divorce proceedings and directed at an individual who was, at the time, confined in the federal penitentiary at Saint-Vincent de Paul in Montreal. On the basis of the pre-confederation law of Upper and Lower Canada, a Quebec subpoena could still run in Ontario and vice versa. What was being attempted in this case was to extend the law regarding subpoenae generally to habeas corpus. The Ontario Court of Appeal, he says, gave him a rough ride; there were three or four very tough characters on the bench

76 Chief Justice W.R. Jackett

who regarded themselves as virtual law lords and treated the lawyers appearing before them as being 'down there' and much less worthy. The court did not like the argument he was putting forward. Such was the nature of the court in that era that the judges told him that they had not thought of the point he proposed to raise (mat the attorney general of Canada was a proper party to the appeal) and that they would give him until the end of a case they were about to hear to come up with reasons why they should even hear his case. In the end, he made his point and was successful on the substantive appeal as well, when the appeal court concluded that the Supreme Court had no power to issue a writ of habeas corpus to a person outside the territorial jurisdiction of the court, namely, Ontario. He had a far better experience in front of Justice Walter Schroeder of the Ontario Supreme Court, who gave him a quite different impression of the court41 RUNNING A DEPARTMENT

The volume of legal work increased exponentially as government expanded, fuelled as well by the ongoing effort to try to use the Department of Justice Act to control all government legal services.42 Much of it was routine but, since it related to government, it had to be kept under tight control and operate within established policy, more so than the legal work in most private practice. A failure to exercise such control could have an impact on the rights of citizens, the perception of government by the public, and the fortunes of a government in office. The old structures were straining to accommodate the demands for action and it was becoming increasingly difficult for the deputy minister to know everything that was going on in his department. Operating within the applicable strictures, Jackett had, early on, demonstrated a capacity for handling administrative matters and Varcoe was disposed to allow him to take on more and more over the years. In his later years, Varcoe had withdrawn from most of the court work and had vacated the administrative field in Jackett's favour, so that he could concentrate mostly on advisory and opinion work. The result was that Jackett had an enormous impact on the organization and control of the department's work and the recruitment and instruction of its legal officers. It would not be accurate to equate his ability to handle such matters with enjoyment of the exercise, but he did them with seeming ease. The range covered virtually everything, from recruitment to on-the-job training, procedures, and reorganization of the manner in which the department as a whole did its business. The lawyers in the department during the late 19403 and 19503 had a generally exceptional depth of talent and dedication and Jackett must be given credit for recruiting most of the talented and dedicated officers who

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joined the department in that period. Every year, he and a public-service officer, often Walter Regan, would make a trip across the country to seek out the law students who showed the promise to 'make it' in the department. In fact, Jackett was the first to go to the law schools for recruitment. He made a point of getting to know the various schools and the programs they offered. David Henry was recruited in October 1945 from the Department of the Judge Advocate General. John D. Affleck arrived in January 1947. Keith E. Eaton was hired in November 1948 from Nova Scotia, Luc A. Couture in August 1949 from Quebec, and Sol Samuels, another Dalhousie graduate, in July 1950 from Nova Scotia. The 'two Dons/ Maxwell and Thorson, both of whom would eventually become deputy ministers of justice, arrived in 1951, and Gerard LaForest in June 1952. They were followed by several others, among them Donald H. Christie in June 1953, C. Robert O. Munro, R. Warden McKirnm, and Peter M. Troop in 1954, Guy Favreau and Alban Garon in 1955, and Hilton J. Mclntosh and George Ainslie in 1956.43 Troop recalls Jackett's practice of asking the candidates to write an examination, in which he would ask the candidates to write a factum in respect of a case in which he had some interest. The approach to employment relations remained resolutely 'top-down' and authoritarian throughout Jackett's time in Justice. It was not until after Maxwell and Thorson joined the department in 1951 that it occurred to anyone to complain about salary.44 Some of the younger lawyers, such as Peter Troop, thought this may have been a carry-over from the experiences of the war years. Even such important matters as a major change of assignment were seldom, if ever, discussed in advance. You might well find on your desk on a Friday afternoon a memorandum from Jackett saying that, effective Monday morning, you were to be reassigned to entirely different responsibilities. There was no consultative process involved; you did what you were told and went where you were assigned. This regimen extended to such matters of detail as a memorandum, prepared by Jackett, which formed part of the desk book of each lawyer, in which the procedures to be followed were meticulously described. These prescriptions, which included how many copies of each document were to be made, how correspondence and documents were to be maintained in the files, how letters were to be addressed and signed, were not mere guidelines for the lawyers. They were the rules to be followed, upon pain of Jackett's displeasure. Jackett had his own desk book in which he kept track of cases and legal points that interested him. He was also constantly working on his chart of Privy Council decisions on Canadian constitutional cases, which he had started as a sort of hobby; several others in the department, including Varcoe, encouraged him to persevere with it. The chart, which Jackett

78 Chief Justice W.R. Jackett

eventually had printed and distributed within the department and to others who had an interest in constitutional matters, was an extremely useful research tool for all decisions of the Privy Council dealing with the British North America Act, 1867, broken down by each specific statutory provision considered by the Privy Council. A glance at the chart would provide a reference to every case in which a particular section had been interpreted.45 Along with the 'charting' of the cases, Jackett also produced an essay in 1949, which he revised somewhat in 1951, entitled 'Sections 91 and 92 of the British North America Act and the Privy Council/ He contributed this to a collection of legal essays that a number of the Saskatchewan law graduates decided to publish in honour of Arthur Moxon, the first dean of the College of Law at the University of Saskatchewan.46 Evidence of Jackett's depth of scholarship is displayed in his contribution to the Moxon festschrift. Here, in describing what his essay purports to do, Jackett reveals the essence of his approach to the law: 'This paper is an attempt to disentangle and classify the principles to be applied in solving problems arising with reference to sections 91 and 92. The problems to be discussed may be classified as: (a) those arising in the interpretation of sections 91 and 92, that is, in ascertaining the legislative scheme of the sections, and (b) those arising in the application of sections 91 and 92, that is, in determining the validity of laws purporting to have been enacted pursuant to those sections.'47 For anyone inclined to suggest that a 'technical/ 'black letter lawyer' may, somehow, be inferior in ability to one who seeks inspiration in places other than the law or the decided cases, Jackett's essay comes close to constituting a complete answer. The depth of knowledge and analysis of the basic statute defining the Canadian constitution is evident in every paragraph of a multifaceted review of the applicable principles of interpretation. It is scholarly and, at the same time, an immensely practical breakdown of the subject matter into manageable bites for anyone commencing a study of the statute. The matrix of tests and decided cases that had defined the Canadian constitution to that time demonstrate the degree of experience assembled within the Department of Justice. The concluding paragraph of the essay is instructive: By its very nature, the B.N.A. Act presents problems of construction and application not encountered in ordinary statutes. Questions 'that might have seemed unreal at the date of the British North America Act' arise for determination under it. It has been said that 'it planted in Canada a living tree capable of growth and expansion within its natural limits.' [Edwards v. A.G.for Canada, [1930] A.C. 124 at p. 136] While precedents are as applicable to its interpretation as to the interpreta-

Life in the Department 79 tion of other statutes, the development of Canada from colony to nation has effected a revolutionary change in the nature of the 'matters' arising to be dealt with under it. Only by keeping in mind constantly this revolution in status can effect be given to the express words of sections 91 and 92 so that, notwithstanding our divided sovereignty, Canada will have a Parliament able to act in all matters of other than a 'merely private or local nature in the province' and be able to take her place as a fully emancipated member of the family of nations.48

It was a tremendous learning experience for the younger lawyers to work with Jackett. First and foremost, they were able to observe his nononsense efficiency. This was almost the first thing you noticed about him. He could do in half a day what it might take others three days to accomplish. He was at his desk early and never wasted time. He was a quick reader and had a well-organized mind. When travelling on a plane to Toronto, Jackett would take out his files and work the entire way. He did not like idle chatter. He could explain a case in a manner that made it both interesting and comprehensible. He was a 'hound' for research and loved obscure points. Once he had an answer to a particular problem, he had a very retentive memory. If you were working with him on a case, you could observe the depth of his preparation, see the results of nonflamboyant presentation, where he never had any trouble answering the questions put to him by the judges. The intellectual force was always apparent, in court or in the office. Working for him was like a post-graduate course in law. One other aspect of the practice of law that you learned from working with Jackett was that it was hard work and the way you learned your trade was to work hard. Depending upon the degree of dedication of each lawyer, this was either respected and embraced or it was resented. He worked hard and expected you to do likewise. Those who did not got onto the wrong side of him. One in particular was Hugh Laidlaw, an Ottawa lawyer from a well-known family, who, for his part in the unequal relationship, was wont to refer to Jackett disparagingly as 'the man from Kamsack/49 Some thought that his demands for hard work and evening work affected their family life and that, if they elected to set more time aside for their families, they simply got left behind. It was one of Jackett's rules that those in the litigation section would not leave on vacation until all of their work was completed. A Manitoba lawyer once sent all of his files with unanswered correspondence to Jackett, covered by memoranda asking for instructions. On his return he was, to use his words, "farmed out' to the Department of Agriculture as legal adviser and never returned. Jackett recalls the incident somewhat differently, saying that the lawyer involved was simply unable to keep up with the pace of Justice

8o Chief Justice W.R. Jackett

and was sent to a department where the volume of work was more suited to his capacity. There were never any hard feelings, he says, and the lawyer remained on good terms with him. Two other members of the civillitigation section, who did not like working evenings, once made an arrangement between them under which they took turns going back to work, on the understanding that the one working would turn on the other's office lights. When Jackett discovered what was going on he was furious. David Henry recalls the way Jackett would deal with a problem that might be troubling an officer. There was no lengthy consideration of several possibilities. Jackett would do it once: 'Here's what you do. Send it up to me when you are finished.' He had, said Henry, a mind like a steel trap. Jackett could get his case law together very quickly. Mundell, by comparison, used to have a new idea every thirty seconds, which meant that his approach would constantly change as he worked on a problem. Mundell would immediately say, 'Let's do a memo/ and start to dictate. He would do a first paragraph, then turn it all around and start over, and, five drafts later, would have the guts of a memo. There was a different idea or approach each time. In contrast, when it came to setting up a file for an appeal, Jackett had an unerring insight into how it should be organized and could eliminate, with speed and incision, the unnecessary documents and any material unrelated to the issue. The lawyers were taught never to use a word in pleadings or opinions unless they were absolutely sure of its meaning. Jackett admonished Don Thorson, after he had begun to specialize in legislative drafting with Driedger, 'Before you start drafting, get the concepts straight.' Jackett was quite particular about the form of acknowledging letters. They were not to say, 'I acknowledge receipt of a letter, but, 'I acknowledge your letter' or, 'I have for acknowledgment your letter,' since the notion of receipt was already inherent in the word 'acknowledge/50 Couture recalled how Jackett prepared him for testimony before House committees. He would warn him that if you are asked, for example, how many [things] do you have, you don't say, 'I think .../ or some MP would bark at you, 'Do you think or do you know?' Do not, Jackett would say, give an answer and then follow it up with, 'What I mean is ...' or you were likely to get, 'Why didn't you say that in the first place?' The approach within the department was technical and its best teacher was Jackett. The education was not always smooth sailing. There was a process of being 'Jackettized/ a phrase coined by Keith Eaton, who married Jackett's secretary, Margaret Cook. If Jackett got a memorandum with which he did not agree and if he was in a bad mood, he could tear a strip off you. On the other hand, there was an informal atmosphere and lawyers would

Life in the Department 81

often gather around Jackett's desk while having lunch and discuss legal matters. Beginning in the days when he was an assistant deputy minister, he brought sandwiches to the office for lunch and the stenographers made coffee for everyone, for which they were content to let him pay, and there would be six to eight people who would drop in to discuss almost anything, whether legal or social. There was no agenda and the talk would range across the whole spectrum, including what the stupid courts had recently done. Visitors for lunch would include, when they happened to be in Ottawa, his friends Alex Corry from Queen's University and George Curtis when he was dean of law at the University of British Columbia. The routine continued when Jackett was deputy minister as well. If you knocked on his door and needed help he would put down what he was working on and help with the solution. He was somewhat impatient with lesser mortals and did not suffer fools gladly, but he stood behind all of the Department of Justice lawyers and gave them his full support. Nowhere was this more apparent than in his efforts to try to get the government to pay higher salaries to Justice lawyers, but it was not until he became deputy minister that he was able to make major inroads on this front and, as it turned out, the increases came into effect only after he had left the department. Peter Troop had occasion, for a time, to call at 489 Wilbrod Street, a place across the street from the home of Sir Lyman Duff, which has since been torn down. He had met a girl, Nora Scott, whom he later married, and went with her to meet her mother, who lived with her on the third floor. To his mild horror, he saw an apartment on the second floor where the name on the door was 'W.R. Jackett.' What this meant, of course, was that he would have to go past the front door of his boss each time he went out with his intended. He recalls that there was a big party at the apartment one evening during the Christmas holidays, which became a bit rowdy and lasted until past midnight. Troop advised the revellers that 'Mr. Jackett' lived downstairs. Clearly well fuelled with Dutch courage, they said, 'Let's go downstairs and see Mr. Jackett.' Troop, Don Thorson, and Don Maxwell, inter alia, went down, knocked on the door, and Jackett let them in and served cheese and drinks. Jackett remembers Wilbrod Street well, having moved there from the London Arms Apartments at the corner of Metcalfe and Gloucester streets where he and Kathleen had first lived. He also recalls seeing regularly Sir Lyman Duff, chief justice of Canada, scuttling out to the front of the house in his dressing gown to pick up his morning paper, routinely left in this deliberately awkward place by the paper-boy, who fought a successful toss-and-run campaign to impose his will on the chief justice. Patrick Kerwin, who would later become another chief justice of Canada,

8a Chief Justice W.R. Jackett

lived on the corner, next to Duff.51 McKimm says that Jackett could not understand why anyone would want to own a house (although he had his Gatineau cottage), so he never got the benefit that everyone who bought an Ottawa house in those days would now have from capital appreciation. Perhaps, he thinks, he would not have had time for it since he carried such a heavy load of work. Jackett ran good meetings. He knew where he wanted to go and was usually quite persuasive about it. If persuasion failed, of course, his decision as to what was to be done and how it was to be done prevailed. He was an excellent leader of the department, fair with the employees, and made an effort to be as friendly as possible, given his position as their boss. Everyone recognized the amount of work he did and the amount of time he devoted to making sure the department ran smoothly. Jackett was extremely well organized on a personal basis. When Troop arrived for his first day of work and was shown to his office, he was delighted and impressed to see the name 'P.M. Troop' already on the door of his office. One of Jackett's notable qualities was that he hated being in the limelight or having his name appear in public and did everything he could to avoid it. Jackett was sensitive about the reputation of the department. Don Christie recalled a Maritime student who did a piece of legal research on the office of the lieutenant governor. Eugene Forsey, not then a senator, got hold of this and 'shredded' it. Jackett went 'ballistic' because the author had managed to create the impression that he had spoken as an employee of the department. Troop remembers Jackett's practice, as assistant deputy minister, of personally signing all letters relating to the civil-litigation portfolio; all draft letters and the related files were to be in his office by 4:00 p.m. The routine letters were signed quickly, while those that required some thought or were more complicated were set aside. By about 5 o'clock, Jackett would come down the hall to say, 'I do not agree/ or there would be a little note with a formula like, 'Please consider my revision of your draft letter and, if satisfactory, please send it out/ In many cases, these would be letters that he had already caused to be retyped and that he had already signed. They invariably went out as 'suggested/ Jackett used to come in at night and do 'file reviews' to see if the files assigned to a lawyer were in good shape. If there were things out of order or, if steps that should have been taken to move the file expeditiously had not been taken, the hapless lawyer would find a memo in the morning asking why this or that had not been done. Perspectives on Jackett differed within the secretarial staff. Kay Simms, a secretary for several of the lawyers in the department, says that Jackett stood out. He was, she notes, short, fat, and ambitious. It was rumoured

Life in the Department 83

that he had 'bought' his Rhodes scholarship, an absurd notion to anyone having the slightest idea of both the Rhodes scholarship process and Jackett's personal background. He was energetic and always seemed to be bustling around, getting his foot into everything. It was his attitude that seemed to give the impression of ambition. Jackett, Simms says, was hard to work with; his brain seemed to work like an engine at full speed. Varcoe's detractors said that Varcoe had seemed to think that, if he kept his staff under his thumb, they would bow down before him. Simms believes that Jackett was trying to emulate Varcoe. He was hard on some of the staff and left scars that would not heal. The junior lawyers played up to him. Even though she did not like him personally, she says, there was no doubt that he worked hard and was brilliant. Simms admits, however, that not everyone found it hard to work for Jackett. Lil Butternay worked for Jackett for a long time and she and her husband and family were invited to the Jackett cottage. He worked with Rita Lahey for many years; they got along very well with each other and he kept her as his secretary when he became deputy minister. He certainly did not go through batches of secretaries the way some bosses do. It was equally clear that both the first-string and second-string secretaries considered it to be a promotion to work for him. Some of the key people on whom the whole department relied to keep things moving included Gordon Smith, an intelligent and efficient clerk in charge of records and filing, Norman Hollingsworth, who kept a large number of files moving in and out of the file room with amazing ease, and David Johnstone, the most senior and extremely popular civil servant in the legal branch who drafted many real-estate letters for the signature of a legal officer. His office was next to Jackett's and he assisted in connection with the preparation and storage of exhibits. Files were coded with stickers to indicate what was involved: an 'R' sticker was David Henry, in the Restrictive Trade Practices Branch; 'A' was for automobile cases and, if there was no sticker, it was for Jackett. The arrangement was nevertheless quite formal. The person who had a particular docket had to deal with every matter, no matter how routine. When Jackett took over as assistant deputy minister, he changed the system so that you could pass on the work to Johnstone with an indication of what route to follow. All incoming letters came in over a lawyer's desk. He got this idea of having Johnstone prepare drafts of routine letters from observations of the practice in English solicitors' offices, where clerks do a lot of such preliminary work. He does not remember having any trouble convincing Varcoe about the change. When Marguerite Ritchie joined in 1953,52 Jackett was already heading up all civil litigation. All the men in the section grew moustaches, she

84 Chief Justice W.R. Jackett

thinks, because of the influence of Jackett. They modelled themselves after him. She says that she could tell the people who worked for him because of this. Jackett had power; he was the only boss in everything that had to do with litigation. He would have passed some things on to Varcoe, but only pro forma, except for the constitutional matters which Varcoe loved. Nobody interfered with him. Jackett, she observes, dealt fairly with everyone; you knew where you stood. He was very direct and did not particularly spare your feelings. He would state bluntly what he thought. He had a passion for law and clear thinking. You could not 'sell' Jackett anything; it was not worth trying. He would listen and give a fair hearing, but you knew you had an uphill battle. You would have to force him to change his mind with a strong argument. Once, when she had failed to do so, she left his office saying to herself that she was glad he was so hard to convince, because if she ever did convince him she knew he would not change his mind back. He was filled with energy. He did not just walk. He would enter a room, says Ritchie, with a sentence on the tip of his tongue. Everyone would invariably stop talking. He took control as a function of his energy. If he came in to listen, he would listen and absorb and be able to make his point or intervention quickly and in context. Jackett took on the initiative of developing a new statute, the Crown Liability Act,53 to govern actions against the crown and, basically, to make it easier to sue the crown, removing some of the arcane common law barriers which had previously applied. Prior to that time, Jackett considered he was duty bound, as government counsel, to raise any available defence in proceedings against the crown, which sometimes caused practitioners on the other side to mutter about such a 'technical bastard/ Yet there were many lawyers who were grateful when he called them to say that their petitions of right did not disclose a cause of action against the crown but that, rather than moving to strike out their petitions, as he might well have done, he wanted them to come to his office so he could help them revise their pleadings. In a similar vein, although in relation to a different problem, David Henry had argued a case involving a branch of the Bank of Nova Scotia in Winnipeg and dealing with an assignment of a claim against the crown.54 The traditional posture was that such assignments could not legally be effected. Jackett had come to the conclusion that there was no rational basis for saying that such a defence should be raised in favour of the crown. He instructed Henry, however, to take the department's traditional litigious position before the Exchequer Court, to explain to the court that this was an important point of principle and to make it clear that there was no hurry for it to be decided. With Joe Thorson on the bench, that could mean several years. In the meantime, while Thorson pondered, the Justice lawyers drafted an amendment to

Life in the Department 85

the Financial Administration Act to provide for such assignments. A number of issues like this had made it clearer and clearer as time went on that saying certain recourses did not apply to the crown, or that the crown had special defences, did not save any money, since political influence was sought by the affected parties and brought to bear. It was thus better for the crown to be in the same position as the subject, unless there was some special policy reason for the crown to be exempt. Jackett had, with all his experience in litigation on behalf of the government, long been concerned with the arcana and general difficulties of such litigation, particularly the complications put in the way of ordinary litigants who had claims to be exerted against the crown. Many of these were the detritus of the theory that the monarch, from whom, in classical legal theory, all rights flowed, could not be sued. It was important, as the influence of big government became increasingly pervasive, to simplify and demystify the process. Over the course of discussion among the Justice lawyers, Jackett brought up the idea of revising these rules and putting them in statutory form. The idea became appealing to them and Jackett personally undertook the task of drafting a statute for the purpose, which eventually took the form of the Crown Liability Act, enacted in 1953. Although the new act had only twenty-four sections, the lawyers took a great deal of time in drafting and redrafting. Section 3(1) resulted in the crown being liable in damages to the same extent as anyone else in respect of a tort committed by a servant of the crown and 'a breach of duty attaching to the ownership, occupation, possession or control of property/ Jackett says that they had little trouble with the minister, since any statute that would help citizens sue the government would be politically popular; their hardest job was to convince Varcoe that it was a good idea, but they succeeded and the self-generated project became reality. Jackett also completely changed the manner in which the bulk of the work before the Exchequer Court of Canada was done. When, for example, Keith Eaton arrived in 1948, virtually all of the crown counsel work in the Exchequer Court of Canada was done by local agents of the minister of justice whose names were provided by the minister's office. Some of those agents were experienced and competent counsel. Others were not. In the face of pressures from regular clients, they all tended to give their local work priority, with the result that they were quite often unprepared for trial during the scheduled sittings of the Exchequer Court that were held in the four western provinces each spring and fall and in the Atlantic provinces in June. Jackett devised a solution that revolutionized counsel arrangements, which is still functioning well. He obtained Varcoe's approval to send junior departmental officers on circuit. There had been previous occasions when department counsel had assisted agents on appeals

86 Chief Justice W.R. Jackett

in Ontario and Quebec. The local agents in the western and Atlantic provinces were advised of the new arrangement and told that the reason was to give the young lawyers good experience. The young lawyers themselves were told that a more important reason was to ensure that difficult questions of law affecting the crown were properly argued. The arrangement worked well because the local agents were happy to have all the assistance they could get and, within a few years, the younger lawyers were able to take on the cases themselves. Jackett got matters to the point that only those cases involving knowledge of local conditions, such as expropriation trials, required instruction of local counsel. The same approach was taken with respect to appeals before the Tariff Board, where the record of National Revenue had not been good and there was criticism of the performance of some of the officers who appeared before it. Jackett started sending junior lawyers from the civil-litigation branch of the Department of Justice to 'assist' the older lawyers and the results showed definite improvement. The younger lawyers all remember Jackett being tough when instructing counsel on the patronage list. He did not have much confidence in lawyers from outside the department and there was a constant struggle to get them to understand what the legal problem was. They were political appointees, under the patronage arrangements, so he was stuck with them and the challenge was to make the best of a bad lot. Over time, Jackett had made a point of getting to know the minister's secretary and, without fighting the system, would talk to him or her about the problem and its importance, which led eventually to the deputy minister or the legal officer in the Department of Justice having at least some opportunity to comment on the agent to be appointed to a particular file. Once they were in place, he was involved in regular briefing of the agents and generated enormous volumes of high-level legal opinions for their benefit as they prepared to represent the crown. Peter Troop recalls that Jackett had a practice of taking law reports, such as the Dominion Law Reports, the Ontario Reports, and the Appeal Cases, with him if he was using the office washrooms, so as not to have any wasted time. One day he rushed out of the washroom, waving a DLR case involving Canadian Commercial Corporation,55 furious that he had been unaware of the case: there was no file on it. He did not know about it. He should know about all such cases. Apparently it was one of those cases that had been taken over by a subrogated insurer, which had assumed the carriage of it. This incident led to a procedure whereby even subrogated insurers had to act in such a manner that the Department of Justice retained notional control over the file. By the time Varcoe's reign as deputy minister, which covered virtually all of Jackett's working life with the department, came to an end, the de-

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partment had grown to some three times the size it had been when he arrived. It was well staffed with bright and hardworking lawyers and tightly organized. The whole of the civil-litigation portfolio was under the firm control of Jackett and the range of matters handled directly by the department had increased significantly. The only question that remained was who would become the new deputy minister when Varcoe retired.

5

Deputy Minister

With the retirement of Frederick Varcoe as deputy minister of justice, on i May 1957, an era came to an end. He had been in the position for some sixteen years and had left a considerable mark on the federal government and the manner in which its legal business was conducted. There were big shoes to be filled. At a press conference on 15 April 1957, following a Cabinet meeting the same day and three days after the fifth session of the twenty-second Parliament finished, Prime Minister Louis St Laurent announced the appointment of Wilbur Roy Jackett to the position of deputy minister of justice, the highest professional legal position in the country. Jackett does not recall ever being asked whether he was prepared to accept the position of deputy minister. The convention used to be that, since the appointment of a deputy minister was his to make, the prime minister would call the proposed appointee and ask the formal question, but St Laurent did not call. Varcoe had probably told St Laurent that Jackett would accept if appointed. There had been some political speculation of recruiting someone from outside government to become deputy minister. Jackett had been very much aware of this, and also of the fact that there had been consideration, within the advisory coterie surrounding St Laurent, of appointing him as chief justice of Saskatchewan. Jackett had no interest in such an appointment. He had not practised in Saskatchewan and felt, correctly, that he would have been perceived as someone parachuted into the position from 'Ottawa/ which would have had a bad effect on the morale of the court. Another suggestion making the rounds was that there might be several associate deputy ministers, with no deputy minister. Jackett told Varcoe that he would not be

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interested in such an arrangement. Making the job more complicated having to achieve consensus among three associates - would have reinforced any temptation he may have had to leave the public service and make money in private practice. In discussions with Varcoe about the matter of succession, Jackett made his feelings on these issues clear and he is certain that Varcoe relayed them to both Garson and St Laurent. Even if, as it seems, Jackett had already started to think about leaving government one day, he had nevertheless wanted to become deputy minister and worked extremely hard to be prepared for Varcoe's departure. It was not that there were no internal rivals for the position, such as Thomas D. (T.D/) MacDonald, who had been deputy minister of justice in the Nova Scotia government and had come to Ottawa as the director of the Combines Branch, in the apparent belief that he might well become federal deputy minister in due course. This was not to be. It is likely that one of the reasons why David Mundell also left the department was that it had become clear that Jackett was almost certainly going to succeed Varcoe when he finally retired.1 While it is easier to predict once the event has occurred, Bud Estey says that it was no surprise to anyone that Jackett became deputy minister. Keith Eaton, by that time one of the senior litigators in the department, acknowledged that it was generally accepted by all of the lawyers in Justice that Jackett would succeed Varcoe. This internal view is easier to understand when one appreciates the extent to which Jackett recruited and increased the legal staff as older officers under Varcoe retired, as well as the increasingly important role he played in the day-to-day administration of the department as Varcoe slowed down and concentrated on the legal matters of particular interest to him. Even though the appointment of Jackett was widely expected within the department, when Jackett took over Varcoe's office, Richmond Olson, one of Varcoe's personal proteges, recalled that it was upsetting to see a 'stranger' there: 'The office was the man.' Jackett was sensitive to this and remarked to Olson, 'I, too, am uncomfortable.' David Henry recounts that Jackett generally had short shrift for politicians and did not like people coming to him to whom he was not accountable. He could be quite abrupt on such occasions. Such was the extent of Jackett's dislike of politics that one of his junior legal officers, Ward McKimm, was even a bit surprised when he accepted the appointment as deputy minister. He had been delighted to let Varcoe do the politicalpolicy part of the job. On the other hand, it was also clear to everyone that Jackett had always wanted to become deputy minister at some stage, with the attendant respect the position commanded, notwithstanding the political warts that might come with the job. To have succeeded his mentor,

90 Chief Justice W.R. Jacket!

Varcoe, the man who had shaped him as a lawyer, was the culmination of a challenge that had driven him for many years. Whether, having achieved his objective, it was everything he had hoped it might be, is another question entirely. Beatrice Brace, Varcoe's long-time secretary, is fiercely protective of Varcoe's reputation and was no particular admirer of Jackett. She thought Varcoe and Jackett were at opposite ends of the pole. Varcoe was, to her, a policy maker with great foresight, while Jackett was a detail man. Yet, despite all her personal misgivings about Jackett and her hero-worship of Varcoe, when confronted with the evidence of Jackett's obvious influence, she admits that in the long line of deputies who followed Varcoe, he was the best, even if, with Varcoe as the standard for her measurement, he may have been the best of a bad lot. Not long after he became deputy, she says that Jackett 'promoted' her out of her job. Jackett, she says, had made a couple of discerning comments to her when he had fired her. One was that when you know everything about a job, it is time to move on. This was, perhaps, prophetic of his own decision to leave the department. The second was, why should you spend your life at the end of a buzzer? Notwithstanding all his energy and talent, Jackett seemed to her to be somewhat insecure. She remembers one day when Jackett was sitting waiting to go into Varcoe's office, after it was known that he was to become deputy minister. The assistant secretary, speaking of Varcoe, had said, 'He is in a rotten mood today.' Jackett told Brace that was the second time he had heard her talk against Varcoe and that, 'If she does that to him, she could do it to me.' Jackett's appointment had been made on the eve of the call for a federal general election, fixed for 10 June 1957. In that election, the Liberal government, which was to be the last in a succession of Liberal governments that had been in power for twenty-two years, was defeated by the Progressive Conservatives, led by the fiery orator from Prince Albert, Saskatchewan, John George Diefenbaker, whose time in Opposition, a calling to which he seemed particularly well suited, had finally ended.2 For the first couple of months as deputy minister, Jackett advised Stewart Sinclair Garson and, after the election, Edmund Davie Fulton, the exceptionally talented Conservative Member of Parliament from Kamloops, British Columbia, who was sworn in as the new minister of justice. Fulton had been elected in Kamloops in 1945,1949,1953, and again in 1957. Diefenbaker had wanted him to become speaker of the House, probably to neutralize him as a potential rival for power in the Conservative Party, but Fulton had declined, to Diefenbaker's obvious annoyance, preferring to remain a partisan politician. His profile was sufficiently high, and his seat far enough west, that Diefenbaker had little choice but to include

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him in the Cabinet and Justice was his portfolio. Another candidate under consideration for the post had been the Ontario lawyer Arthur Maloney.3 The early period of the new Diefenbaker government was an unsettling time for the civil servants in Ottawa, especially for those in senior positions. There can be little doubt that Diefenbaker considered the upper echelon of the public service as little more than willing Liberal slaves who, with their masters now departed, were determined to embarrass him and his government.4 Fulton was not so persuaded. There had been twenty-two years of Liberal government and everyone had grown used to working together. Whatever difficulties there were under the new Tory regime were more a matter of the civil service's adapting to new ways than it was political opposition to the new government. Nothing he ever saw, Fulton said, supported a case of trying to embarrass or bring down the government. Had it been Fulton's call, he would have moved some of the deputies around into new departments, so that the deputy would have been in a new department, as well as with a new minister, and it would have been easier to adapt to the new ways. C.M. ('Bud') Drury did this when the Liberals later came back into power, perhaps to too great an extent, but the idea was basically sound. Diefenbaker had no confidence in many of the senior deputy ministers, including the deputy minister of finance. The suspicion of Diefenbaker and most of his senior colleagues was unfortunate, because many of the leading civil servants, including Clifford Clark, Gordon and Norman Robertson, Robert Bryce, Arnold Heeney, Charles Ritchie, Hugh Keenleyside, David Sim,5 Jack Pickersgill,6 and Mitchell Sharp, were all to some degree policy-oriented and had resented the immobility of the post-war Cabinet.7 They had things they wanted to do to shape the future of government, as well as the future of the country itself, and they felt that they were being held back by Liberal governments that were essentially along for the ride as Canada emerged from the Second World War a strong nation, positioned to develop farther and faster than virtually any country in the world. The opportunities were enormous and they did not feel, as a group, that full advantage was being taken of them. They could see these slipping away as other countries, including those that had lost the war or had been ravaged by it, began the process of recovery. Among the policy-making bureaucrats, about the only one in whom Diefenbaker had any confidence was Robert Bryce, who was serving at the time as clerk of the Privy Council.8 He was an engineering graduate from the University of Toronto who had gone to Cambridge University and worked directly under John Maynard Keynes. He went from there to

92 Chief Justice W.RJackett

Harvard University as a virtual emissary of Keynesian economics in North America and from there to the Sun Life Assurance Company of Canada before being recruited into the public service in 1937. Within government, according to Mitchell Sharp, he became the 'star' of the Department of Finance. His good counsel, says Sharp, was one of the few elements that saved the Diefenbaker government from complete chaos. Jackett determined to follow Varcoe's example and did not try to become part of the ruling circle of bureaucrats. He did not consort with this group of mandarins on a social basis. He thought that the role of the deputy minister of Justice was such that he should remain somewhat apart in order to be able to provide advice that was unencumbered by social con tact. He knew most of the deputy ministers quite well and worked with them, but he did not get mixed up in the 'second degree political stuff.' To some extent this reflected the more technical nature of the advice given on legal matters, but it was also not in Jackett's character to mix into policy matters, except when a proposed action might reflect on his minister or the department, in which case he would be very much involved. He thought the Department of Justice should be no more and no less than it was officially meant to be. This did not reduce his impact in the areas that mattered to him and, indeed, may well have accounted for the considerable influence which he was able to exercise. Jackett's personal political leanings, while never apparent, were in the same general direction as those of his father, namely, Conservative. All he would ever say publicly was, 'I never pretended to be a Liberal.' With respect to his job as a public servant, he said: 'We still at that time largely had the then British tradition that the public service was apolitical.' This may not have been a view shared by all civil servants at the time and there was a growing concern among the public that the mandarins were perhaps exercising undue influence in Ottawa.9 THE NEW MINISTER

Fulton, having sat in Opposition throughout his own parliamentary career to date, had never had any dealings or even conversations with Jackett before becoming minister. He does not recall anything in particular about his first day in office as minister, other than having a deep appreciation for the appointment. He remembers meeting with Jackett as his deputy, but not the specific matters they may have discussed. Fulton, being careful, believes that he probably would have asked if there was anything that he should know about or that should be brought to his attention. He hoped that his deputy minister would not hesitate to advise him promptly of any matter of policy or administration of which he

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should be aware and that his deputy would be happy to deal personally and directly with him. Jackett would have told Fulton that he had no administrative problems in the department at that time. Fulton was delighted to have a deputy who knew his way around, because he did not have any experience. He never once considered asking Diefenbaker to replace Jackett. Fulton sat down with Jackett and learned the difference between the political and the deputy minister's brief. Jackett was quite content with this division of responsibilities and had a clear idea of where the line was drawn. At a fairly early stage, when he realized that they were not meeting very often, Fulton said that he wanted to meet more regularly, both with his deputy minister and with other senior staff. It appeared to him that the previous minister had met with the deputy only when the minister sent for him, a pattern that which would have been typical of Varcoe, who did not think that he needed the minister's guidance to run the department. Fulton did not believe that this was the best way to proceed, so he established a different procedure. Mondays, he would meet with Jackett to discuss administrative matters. On each of the other days, one of the directors of the various areas for which the minister was responsible would meet, such as the RCMP, penitentiaries,10 bankruptcy,11 and combines. Fulton says that he approached the other directors of the services and they were pleased with the idea and had no problem at all with Jackett being present. This is hardly surprising; Jackett would not have stood for any arrangement that had directors reporting to the minister without passing through him. It was undoubtedly an indication of Fulton's inexperience as minister that he might have thought otherwise. For the Monday meetings, it was pretty much Jackett who controlled the agenda and he managed all the government's litigation without involving Fulton as minister. A good part of the reason for this autonomy was that litigation usually involved other government departments, where the policies involved were those of such departments, over which the minister of justice did not purport to have jurisdiction other than responsibility for the strictly legal implications of any such policy and his role as attorney general in all litigation involving the crown. His idea, Fulton said, was to meet with the directors before some emergency developed. They all worked well at keeping him aware of developments. He believes that Jackett appreciated this, too, since it helped keep him abreast of all aspects of the job, both political and legal. The meetings were usually held in Fulton's office, which was right next to Jackett's within the Justice building. When the House was in session, he had an office in the Centre Block, where the meetings would be held. Jackett brought Elmer Driedger along to the Monday meetings whenever

94 Chief Justice W.R. Jackett

Driedger was working with him on something to be discussed. Fulton thought Driedger was competent but somewhat distant. He said that he could not tell whether Jackett was grooming him but he clearly had a lot of confidence in him. Fulton had a good and favourable impression of the smooth and efficient team Jackett had put together. He admits that he was probably not immediately aware of the high level of morale and esprit de corps, but he recognizes that he must have known at least inferentially and was very pleased. He certainly knew that his staff worked long hours and, as to Jackett in particular, Fulton realized that he could not possibly have stayed on top of things without working extremely hard. He was enthusiastic and loyal. For his part, Fulton says, he tried to conduct himself as minister in a manner that would make Jackett's job as deputy minister easier. Jackett was always ready to do things which would assist in the effective administration of the department and the discharge by the minister of the duties of his office. He did not simply do his job; he did it in a manner calculated to assist others in doing theirs. Fulton says that he never had a sense of being intimidated by Jackett's knowledge of the law and the department, nor by reason of manner or mannerism on his part - on the contrary, he admired Jackett and enjoyed working with him. Fulton generally thought as well that he had the confidence of his deputy. Over the couple of years following Diefenbaker's assumption of office, Jackett became almost a personal adviser to many ministers, giving advice to them in their capacities as ministers in addition to the traditional legal advice of the deputy minister. Perhaps they thought that he might have some special knowledge of how to deal with the strange and increasingly difficult prime minister as a result of his own background in Saskatchewan. In any event, his role was more extensive than the classic role of the deputy minister of justice and he became far more influential than might otherwise have been the case. Peter Troop, for one, says that Jackett was quite a powerful deputy and able to get his way not only with Treasury Board12 but also with the other senior civil servants. He certainly knew how to work the system to get what he needed or wanted. In earlier days, during the war, the juniors used to talk about how he was able to get screens for his office even though such materials were in scarce supply. Jackett remembers the occasion well. They were working long hours into the evenings and, with the windows open, they were beseiged by black flies and mosquitoes, which drove them to distraction. Jackett called Emmett Murphy, the deputy minister of public works, and said that if he wanted the Department of Justice to do anything for his own department, he had better get them some screens.

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Fulton recalls discussing the CF-1O5 Avro Arrow situation with Jackett. The 'Avro Arrow' was a prototype supersonic interceptor aircraft that was under design, a program that had been started by the previous Liberal government in 1953. When the Diefenbaker government began to examine the costs, technical aspects, and prospects of sales elsewhere, grave doubts arose about the entire program. Despite major pressures to carry on, the government began to consider how to get out of the situation and to cancel the program. It was clear that, as a matter of policy, the government had the right to cancel the program. Jackett's brief was to advise the minister whether or not, as a matter of law, the government could do what it might wish to do. Legally, he confirmed, it could. The question was whether it was politically wise to do so. That was the political responsibility of Fulton and his Cabinet colleagues. The government cancelled the program following an announcement to that effect on 20 February 1959, principally, it maintained, because of the costs, and reduced to scrap the seven prototype planes which had been built.13 In place of the Avro Arrow would be a different defence system, utilizing the Bomarc-B missile, to be armed with u.s. nuclear warheads and installed at North Bay, Ontario, and La Macaza, Quebec. The full role of the United States government in the whole matter remains unclear, even today. It was one of the noisier episodes in Canadian political history and would, in due course, have fatal political implications for the Diefenbaker government. Four years later, on 4 February 1963, George Harkness, Diefenbaker's minister of defence, resigned over the government's refusal to accept u.s. nuclear warheads in the Bomarc missiles and Voodoo interceptor aircraft. A day later, the government was defeated on a non-confidence motion on the same issue and an election was called for 8 April 1963. Fulton, as a westerner, was quite involved politically in the negotiation of the Columbia River Treaty, which occupied two or three years, but Jackett had no official role in the formal process, the negotiations for which were handled by External Affairs and Natural Resources. The whole process was one that became highly politicized at first and there would have been little that a deputy minister of justice could have done, although Fulton wanted him in on the meetings as they occurred. They had regular discussions concerning the position to be adopted by the Canadian government, both within Canada and with respect to the United States. This was a big project in its time and one of the first treaties of any genuine, as opposed to merely political, significance that Canada negotiated fully on its own account. There was a great deal of political infighting involved and considerable rivalry for profile between Fulton and Diefenbaker, with the inevitable result that Fulton did not get the credit he deserved for the good work which he accomplished. It took years to

96 Chief Justice W.R. Jackett

put in place, with much travel between British Columbia, Ottawa, and Washington. Attack on the treaty from the Opposition had been led by John Turner, with considerable influence from General Andrew G.L. Mc Naughton. The first Columbia River Treaty was eventually signed in Washington, D.C., on 17 January 1961 by Diefenbaker and President Dwight D. Eisenhower. It was one of Eisenhower's last executive acts as president. One issue on which Fulton has always considered that he got great support from Jackett was the patriation of the constitution - making the constitution fully Canadian. The Conservative government had decided early in its mandate that it wanted to be seen as active in constitutional matters and, to get its feet wet, had begun with a routine constitutional amendment to provide for a retirement age of seventy-five for federally appointed judges, something that was essentially non-controversial, except to some of the judges affected. Judges do not vote, so there was no political cost involved. The government had had to go all the way to London to get this done, since the Canadian constitution was still an imperial statute and required an act of the British Parliament to process the amendment to the British North America Act, 1867. The amendment to effect the change was finally put in place on 14 September 1960, to become effective i March 1961. Fulton thought that the whole process was inappropriate for a selfgoverning nation in relation to a matter that was entirely Canadian. As the amendment was working its way trough the imperial mill, Fulton, with Jackett's assistance, began to consider the mechanics and politics of patriation. He took the matter to Cabinet, said they should start discussing the matter with the provinces, and obtained early agreement for such discussions to begin. Fulton was to chair the meetings. Jackett played an active and vital role setting up the meetings, particularly with the provincial attorneys general. They worked out which issues should be discussed and on which ones agreement should be reached and undertook that they would not discuss specific amendments: the issue was how to accomplish patriation. The federal government was prepared to give an undertaking to consider any amendment proposed by any province. All the provincial governments agreed with this process. The big problem was how to amend the constitution once it was patriated. Somewhat ironically, Diefenbaker's home province, Saskatchewan, then under a CCF (later to become the NDP) government led by T.C. Douglas, refused to participate officially, perhaps because it was worried that it could not obtain amendments which would fit its socialist agenda, but it nevertheless agreed to send observers. In any event, all the provincial representatives at the meetings settled on the process and sent it back to their governments for detailed study. By then, however, the breakdown

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between the federal government and the provinces had begun to occur. The degeneration of these relationships may have been at least partly responsible for the outcome of the federal election of 8 April 1963, which produced a minority Liberal government.14 The Quebec government had also changed following the death of Maurice Duplessis in September 1959, and the patchwork Union Nationale successor administration and the new Lesage Liberal government that later emerged adopted the position that it would not agree to the amendment process unless the federal government agreed to specific amendments. The Quebec government ended up not giving its consent, but it stopped short of a refusal. Jackett had a pivotal role in the meetings, talking with provincial attorneys general and recording the process as it unfolded. All the provincial deputy ministers knew and respected him. The formula agreed upon in the early stages of the discussions, before the breakdown, was later incorporated by Guy Favreau and was described, when it was reintroduced, as the 'Fulton-Favreau' formula. CRISIS WITH THE RCMP

Probably the most serious of the crises that affected Fulton as minister of justice involved the resignation of Leonard H. Nicholson, commissioner of the RCMP, in March 1959. There had been a strike at the Anglo-Newfoundland Development Corporation mill in Grand Falls, Newfoundland, which turned very bitter, with strike-breakers hired, government-supported new unions created, roadblocks, violence and considerable inflammatory public opinion generated. The RCMP was providing police services in addition to those of the Newfoundland Constabularys and the possibility existed that the strike could degenerate into further violence. The Newfoundland detachment was very much over-extended and, under the terms of the agreement pursuant to which the RCMP was acting in Newfoundland, the Newfoundland attorney general requested that Fulton send some reinforcements. Nicholson came to Fulton, since responsibility for the RCMP at the time came under the jurisdiction of the Department of Justice, and said that he wanted the reinforcements. Following their meeting, Fulton told Nicholson that he was inclined to grant the request, but, because of the political overtones, he wanted Cabinet support for any such decision. He raised the matter in Cabinet, said that he agreed with the commissioner's request, and asked for the necessary approval. Diefenbaker intervened forcefully at once and said, 'No/ It would damage the force irretrievably. He referred to an incident during the Depression in Regina when RCMP reinforcements had been called in, which, he maintained,

98 Chief Justice W.R. Jackett

had done great damage to the Mounties' reputation by giving rise to the view that they were anti-labour. On 3 June 1935, some 1,000 unemployed workers started east from Vancouver on freight cars to protest their plight. By the time they reached Regina on 14 June, the number had swelled to about 2,000. The leaders continued the 'On to Ottawa' trek for an unsuccessful meeting with Prime Minister R.B. Bennett. On i July, however, a riot occurred in Regina, the RCMP was called in to assist the local police, and a policeman was killed. This brought an end to the adventure.15 Some other ministers remembered the occasion as well. Diefenbaker was determined that Newfoundland Premier Joey Smallwood, who had added to the general level of hysteria surrounding the strike, was not going to manoeuvre him into a similar situation. The Cabinet, despite a considerable amount of internal dissension, eventually decided that the approval would not be given. Fulton said that he would go to Nicholson and tell him of the decision. Douglas Harkness, from Calgary, then minister of defence, knew Nicholson and offered to accompany Fulton for the purpose. Upon returning to Nicholson, Fulton asked if the physical safety of the Newfoundland detachment was at risk. Nicholson replied that it was not. It was more a matter of relieving the physical strain under which they were operating, not a matter of using the RCMP for strike-breaking. Fulton told Nicholson that he wanted to make it clear that he was not, as minister, overruling a decision made by Nicholson, but that the decision, in this case, was the minister's to make and he, as minister, would not authorize the reinforcements. Nicholson said, 'Very well. You will have my resignation in the morning.' He was as good as his word. Oddly enough, this event did not affect the personal relationship between Fulton and Nicholson, who remained friends and were members of the same book club. Fulton says that he came, in the end, to support the view taken by Cabinet. Shortly after, things simmered down in Newfoundland; there were no incidents that put the force in danger, and the RCMP did not acquire the bad image that might otherwise have resulted. Fulton knew that, if there had been violence, he would have had to resign as minister. Jackett says that one of the most difficult days of his professional career in government followed this incident. He spent an entire day and most of the night with Fulton as Fulton tried to draft explanations for his decision and the outcome. Jackett had to be sure that, in making such explanations in a form suitable for political and public dissemination, Fulton did not say anything that was not true. Politics and the law often diverge and this could easily have been such a case, but they finally agreed on the contents of an explanation. In the House of Commons, Fulton said that the decision had been necessary to preserve the reputation of the RCMP as a na-

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tional police force. It was, at best, a lame explanation, conspicuously devoid of reference to the actual terms of the contract by which the matter should have been governed.16 Diefenbaker was roundly accused of using the occasion to try to win political support from labour, to which he reacted with his usual unbridled anger over any criticism. It was well short of a glorious moment for the Diefenbaker government and, unfortunately, for Fulton as minister. Fulton had thought seriously of resigning, but he was persuaded that this step would amount to complete political suicide.17 Nicholson, says Jackett, was a perfect gentleman - an opinion universally shared - and did not discuss the RCMP crisis with him because Nicholson was aware that Jackett would have been discussing the matter with Fulton and did not want to place him in a difficult position with his minister. In fact, Jackett says that he was not 'roped in' until the government had already got itself into the mess and had to explain itself to the public. The matter eventually ended up in court, when the Newfoundland government took legal action in the Exchequer Court of Canada on 2 October 1959, seeking a declaration that the agreement relating to the services to be performed by the RCMP was valid and subsisting, a further declaration that the federal government was in breach of the agreement, and, on the monetary side, damages. There was a considerable amount of procedural wrangling, part of which involved an effort by Newfoundland to examine a witness from the federal government. The first line of attack was to get at the minister himself. Failing him, Newfoundland wanted to examine Jackett as the deputy minister and, failing Jackett, the assistant deputy minister, Elmer Driedger. In the internal discussions on the general principle of whether a minister or deputy minister could be compelled to attend court proceedings as a witness, Jackett said that, if they were offered money for travel expenses, they were bound to go; that had always been the rule. They would have to find some other basis to resist. President Thorson decided that Fulton was not an 'officer of the Crown' within the meaning of the expression in the statute and refused to name Jackett, since he had been instructed to act as senior counsel for the crown in the proceedings; however, he did name Driedger.18 Appeals from this judgment made their way to the Supreme Court of Canada. Jackett had started as counsel and continued to represent the crown even after he had resigned as deputy minister; Driedger wanted him to keep the file, which was argued before the Supreme Court of Canada in January 1961.19 As deputy minister, Jackett had excellent relations with the RCMP, not yet under the control of the Department of the Solicitor General,20 and, shortly before his retirement as deputy minister, was made an honorary

ioo Chief Justice W.R. Jackett member of all the commissioned and non-commissioned RCMP messes. If the RCMP personnel were meeting with the minister, he would often go with them or they would come to see him first. These relationships survived his appointment to the bench and, after that appointment, one of the few occasions on which he agreed to speak in public was at the 92nd Anniversary Mess Dinner on 28 May 1965, hosted by Commissioner George B. McLellan,21 in the presence of Minister of Justice Guy Favreau. There are not many instances in which Jackett expressed personal opinions about matters of importance and, had it not been for his long relationship with the force, it is doubtful that he would have been prepared to go on record. The speech was typical of Jackett's spare style and ability to summarize the essential elements of the subject with which he was dealing. In a couple of paragraphs, he provided the history of the RCMP and its mandate, before moving on to the problems that required a national approach to the fight against crime, the impediments to a successful fight, and, finally, some suggestions for the members of the force in their dealings with the public. In early English times, the individual was insecure in the enjoyment of his personal freedom and of his property because there was no curb on a monarch who abused his powers at the expense of the individual. Magna Carta coped with that problem by so limiting the Sovereign's powers that he could not legally interfere with the rights or liberties of a subject except as authorized by laws duly enacted by Parliament. When the Constitution of the United States was being created, the apprehension was that Congress or a State Legislature might enact laws that would unduly restrict human rights or fundamental freedoms. The solution adopted by the United States was to incorporate in their Constitution a Bill of Rights by which Congress and the State Legislatures are deprived of capacity to make laws that encroach on human rights or fundamental freedoms. A similar apprehension gave rise to the Canadian Bill of Rights, although it functions in a different way. Generally speaking, in Canada today, neither the executive authorities, that is the various governments, nor anyone else, can interfere with the person or the property of the individual except by sanction of law and our laws are designed to provide all, or almost all, safeguards necessary to protect the person or property of an individual from unwarranted interference. In other words, nobody can legally encroach upon the human rights or fundamental freedoms of the individual in Canada. The real threat to the security of the person and the property of the individual today is not governmental tyrants or bad laws. It is the law breaker. So long as men, to say nothing of women and children, cannot walk with safety in our city

Deputy Minister 101 streets, so long as hoodlums break into the residences of peaceful citizens and rape and rob, so long as gangsters prey on honest businessmen, so long as unprincipled outlaws lead our young people into the use of narcotic drugs and into prostitution, our so-called human rights and fundamental freedoms will lack something in reality. My suggestion, with great respect, to my academic friends who are so concerned about the protection of the status of the individual in our democratic society is that we do not provide the individual with more effective protection by enacting more laws, more effective Bills of Rights, or more constitutional limitations on our legislative authorities. What is required in order to protect the rights and freedoms of the individual is much greater respect for, and observance of, the laws that we have, for, with some minor exceptions, the laws that we have are well designed to protect human rights and fundamental freedoms. The great danger at the moment, as I suggested earlier, is that the institutions in the nation that have the greatest power to mould public opinion - newspapers, radio, television, commentators of all kinds, university professors - tend more and more strongly today (a) to applaud law breaking, and (b) to hamper the efforts of law enforcement agencies. The most typical example of course is the cry of police brutality that goes up if a necessary degree of force is used to protect the public from mass action taken by some irresponsible group to manifest defiance of laws enacted by our democratic institutions. The irresponsible mentality of those charged with responsibility for our mass medium [sic] organs that results so often in anti-police and pro-lawbreaker outcries when the police are required to cope with breaches of the law constitutes a threat to law and order in our time. Somehow a condition must be brought about in which the general public takes it for granted that the law enforcement authorities are providing them an essential service with the least possible interference with the property or freedom of the individual. We must achieve a situation where the general public cooperates with those who are enforcing the law instead of frustrating their efforts by complete lack of cooperation, or even worse, by actually throwing difficulties in their way. The general public must be brought to realize that the police are working with all law abiding citizens to protect them against criminals who constitute a grave threat to their persons and their property. This task of changing the public attitude to law enforcement is of course not a task primarily for the police. It is a task for all those who play some part in the moulding of public opinion.

102 Chief Justice W.R. Jackett JACKETT ON FULTON

The principal philosophical cloud on the horizon from Jackett's perspective as deputy minister was the growing tendency, arising from the suspicions of the Diefenbaker government regarding the civil service, to mix the operational aspects of the departments with political considerations. Although Jackett was generally able to keep Fulton and his political staff from interfering in the operations of his department, he saw the writing on the wall. Ministers began to think that they should be running the departments personally and that the political staff ought to be able to go to the file room and get into the files. The proper scheme, Jackett believed, was that the deputy minister was responsible to the minister and it was up to him to take the blame between himself and the minister if things were improperly handled. It was the responsibility of the deputy minister, in his daily meetings with the minister, to keep him appraised of the troublesome matters that might be on the horizon. The opinion of the deputy minister of justice, Jackett observed, 'counted a lot in those days/ Jackett's view is that a deputy minister of justice, to be able to provide sensible advice, should have fifteen to twenty years' experience in constitutional and related work before being appointed. He knew the decision makers in the other departments and was able to call, when there was something that required more than a routine letter, the right person to discuss what was happening and how they should deal with the particular problem. This was not restricted to the officials of departments. He often found himself called upon by ministers to discuss their legal positions on critical matters that arose from time to time. If there were differences between Jackett and the political side of the department, it was at a philosophical level rather than the personal. Jackett himself had no personal problem with Fulton as minister and considered him generally to be a serious minister trying to do a good job in the portfolio. Fulton was prepared to work through memoranda, even long complicated memoranda, intended for his attention and would note his comments in the margins. Many of his predecessors would not do so and documents had to be reduced to a page or less if there was to be any hope of ministerial consideration. Varcoe had been particularly adept at such forms of communication. It was, Jackett says, always easy to explain legal questions to Louis St Laurent. Varcoe had adopted the practice of doing this on a single page, which Jackett continued when dealing with him during the brief period while he remained as prime minister after Jackett's appointment as deputy.22 Shortly after the election that brought the Conservatives to power, Fulton called a young lawyer from British Columbia, Ian G. Pyper, who had

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been active in the election campaign, and asked him to come to Ottawa to be his executive assistant. Pyper had been involved in trying to build up the Conservative Party in British Columbia and had had some considerable success in the latter stages of Diefenbaker's campaign in that province. Since he had just been admitted to the British Columbia bar, he was not sure this was a particularly good idea, a view that was shared by his firm. The firm arranged for him to go to Ottawa to explore the situation. He met with Jackett and asked what he thought about the proposal, because he had just got a job with an excellent firm and was by no means certain that taking a political post in Ottawa would be the right thing to do. Jackett suggested that it might be useful to speak with Gordon Blair, who had done the same job for Stewart Garson in the early 19505. Blair recommended that he accept and this proved to be the decisive factor in making his decision. Pyper told Fulton that he would take the job but, reflecting the advice he had received from both Jackett and Blair that one should not do this kind of work for too long, would stay for only two years. Pyper considers that it was extremely fortunate to have had Jackett as deputy minister. Jackett, despite his concerns about political meddling, did not try to exclude him in any way. Jackett's job was legal and Pyper's was political and social. From time to time, when there was overlap, they would meet to discuss the situation. Pyper can only recall one instance where each of them said he would put his case to the minister and let him decide. The matter was one of no importance whatsoever and they laughed about it afterwards. It had been a matter of law with some semipolitical overtones. Jackett made sure that Pyper met everyone in the department. Pyper became great friends with Guy Favreau and Don Maxwell in particular. It was 'a lean, mean Department and everyone worked like hell/ Pyper kept Jackett fully informed as to what he was doing. In typical fashion, Jackett kept to the legal side and did not interfere with the political aspects. Pyper found that being a lawyer himself helped him to keep the respective portfolios straight. Pyper was a great admirer of Jackett's excellence at briefing the minister. Jackett could, says Pyper, do in a half page what it took the younger lawyers three pages to do. For his part, Fulton was very good at making up his mind. The ministers had responsibility for their departments and would deal directly with the prime minister and with Cabinet. The Privy Council Office and Cabinet Office had not yet assumed their soon-to-become omnivorous oversight roles. Fulton is still a trifle defensive about the suggestion that the political officials were interfering in the running of the department. His view is that his executive assistants23 attended the meetings, without objection from Jackett, so the minister could be briefed on matters that might have political implications, but they did not direct that departmental decisions be

104 Chief Justice W.R. Jackett

made on the basis of partisan politics. The position of executive assistant resulted from a political appointment and the executive assistant would, therefore, discuss the political aspects of matters with him. Fulton says that he wanted his executive assistants to have access to everything he needed to know, not to dictate what should be done but to alert him to potential political overtones. Jackett would not have been happy about the political overtones generally and this, Fulton recognizes, might have been a factor that made it easier for him to go to the CPR. For his part, Jackett found Pyper easy to work with and they understood each other's responsibilities very well. However, Jackett told Pyper, after the latter had returned to practice, that the system was not working any more and that the incursions of the political into the workings of the department were increasing. Much of Jackett's attitude regarding the judiciary and the relationship between the judiciary and the Department of Justice was conditioned by his experience in Justice and would lead him, both as deputy minister and later, as a judge, to implement a number of changes to create some distance between the department and the courts. From the perspective of a departmental lawyer, Justice officials were close to the Exchequer and Supreme Courts, where much of the litigation affecting the crown was conducted, and so they had to be careful not to step over the line; for example, visiting the judges to 'chat' might lead to chat about cases, which would have been inappropriate. Similarly, since the department was responsible for the courts, Fulton asked Jackett for his advice regarding a request from the Supreme Court of Canada for law clerks. Jackett says he was opposed, because he thought this would mean that the clerks would inevitably end up writing the judgments. You cannot, maintains Jackett, think through a case by reading someone else's work; you have to do it by yourself. The Supreme Court eventually got its clerks, as did most courts. Jackett himself, when he became a judge, never used law clerks in relation to judgments on which he might be working. If he used them at all, which was seldom, it was to look up general points of law in which he had an interest.24 WORKING THE LEGAL AND POLITICAL AGENDAS

As someone who handled patronage appointments for the department, Pyper said that the government patronage lists were entirely normal. If Jackett said he had an important case, he would go through the list to see if they had someone on the list with the expertise Jackett thought he needed. If no one on the list had the expertise, Pyper's job was to clear the use of someone not on the list with the local politicians. For example, they

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once wanted John J. Robinette, who was not on the list, on an important case which another lawyer had lost in the Exchequer Court. Pyper then did what was necessary to make this happen. Generally they discussed the list and tried to match it with the needs of each case that was being assigned. One early case in which politics led to litigation was Walsh Advertising Company Limited v. Her Majesty the Queen.25 Walsh Advertising had been employed, by the previous Liberal government, to prepare advertising and television materials for promotion of the sale of the 1957 series of Canada Savings Bonds. It had done considerable work in that regard through June 1957, when the federal election occurred. Within a month of the new government taking office, Walsh Advertising got a 'Dear John' letter from the new minister of finance terminating the relationship. They were 'out' and others, presumably more in tune with the new government, were 'in.' The government refused to pay anything for the work done or the expenses incurred by Walsh Advertising, which then instituted action in January 1958. Jackett, as deputy minister, was instructed to defend the action. On the question of fairness, it was an unattractive case and Walsh Advertising was represented by Roy Kellock, who had recently resigned from the Supreme Court of Canada.26 It was clear that most judges would likely be looking for a way in which to redress a politically motivated wrong. Jackett's job was to raise all the defences possible in the circumstances. He presented the predictable litigious denials that an employment relationship existed, that there had been an agreement to be paid by the government (Walsh Advertising would have been paid from the gross amounts allocated for placement of the advertising messages, rather than by a separately contracted-for fee or commission), that the work had not been performed to completion, and that what work had been done had not been done to the satisfaction of the government.27 In addition, however, he pleaded that there had been no authority obtained from the Treasury Board to employ Walsh Advertising, as required under the Financial Administration Act, and that no contract providing for the payment of money could have been enforced since there was no certificate from the comptroller of the Treasury certifying that there was sufficient unencumbered balance to discharge any commitment under another provision of the same statute. These were technical arguments, satisfying, perhaps, in law but not calculated to generate much sympathy from a court. The case did not reach trial until October 1960, after Jackett had left the department, but since he had drafted the pleadings in January 1958, Dreidger and he agreed that he should keep the file and the case was argued before Arthur Thurlow in the Exchequer Court. The argument, as

io6 Chief Justice W.R. Jacket*

disclosed by the transcript of the trial, was typical Jackett: he advised the Court of the crown's position and was uncompromising in putting it forward. I come then - having I hope satisfactorily disposed of any possible cause of action except the cause of action my learned friend outlined for breach of contract - I come then to outline the Crown's position. Our first position is that on the evidence no case has been made out first for the existence of a legal contract or for a breach of any such contract, or second for a quantum meruit on the basis of a quasicontract. I will just say in passing that my learned friend, Mr. Gray, will take the part of the argument that deals with the submissions on the evidence. And our second position is that even if the evidence has in your Lordship's view been sufficient to establish liability if the controversy were one between subject and subject, there can, on the facts of this case, be no liability on the part of the Crown because the statute law of Canada provides that there can be no legal agreement binding on the Crown in the absence of certain formalities or steps constituting conditions precedent which did not exist at any time relevant to the facts of this claim.

There was considerable discussion between Jackett and Thurlow during the course of argument, in which it was clear that Jackett could speak from a vast knowledge of the statutory background, the machinery of government, the practical application of the governing principles, and the related jurisprudence - exactly what one would expect from the most experienced of the government lawyers representing the crown. The transcript also makes it clear that Thurlow was not comfortable at all with the direction in which those arguments were leading and that he would undoubtedly be looking for some equitable solution to the situation. In the end, Thurlow gave some satisfaction to Walsh Advertising, awarding $13,000 of a claim for $60,000, but did accept the arguments made by Jackett that there was no binding contract under the Financial Administration Act. He concluded that the crown had adopted some of the results of the work done prior to the time the services had been dispensed with and said it was bound to compensate Walsh Advertising on a quantum meruit basis, finding sufficient elements of a quasi-contract to support the finding. Since that was the basis on which the award was made, not one founded in contract as such, the other provisions of the statute provided no defence to such a claim. In its early years, the Diefenbaker government enjoyed good relations with the Duplessis government in Quebec. Pyper found Maurice Duplessis to be a most exceptional and subtle character. Duplessis would not hesitate to make a personal call to a lowly executive assistant directly if he

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knew the executive assistant had access to the minister. Duplessis called Pyper one day to warn that the appointment of a particular individual from Quebec to the bench would be very bad, and, on the basis of this 'word to the wise/ they caught the documentation on its way to the Privy Council Office. Duplessis was very forthcoming about patronage contracts in various Quebec ridings. Discussing a particular situation one day with Pyper, he said, 'If they want a bridge, they know how to "indicate" that. In this case they did not indicate/ Duplessis said that the way you used major projects, such as the bridge they were discussing, to your advantage was, during the first election campaign, to promise the bridge, during the second, to announce it, and, during the third, to build it. Pyper believes that the demise of the Progressive Conservatives began following the deaths of Duplessis on 7 September 1959 and, shortly thereafter, of Joseph-Mignault-Paul Sauve in 1960. Sauve was followed by Antonio Barrette, who became premier on 7 January 1960. On 22 June 1960 the Liberals under Jean Lesage won the provincial election and the Quiet Revolution began. Seen from Pyper's political perspective, Jackett was known as someone who was doing his job, even though he was not one of the policy movers and shakers. On the other hand, he had very good antennae for political matters and the political aspects of many of the issues. Although many members of the political staff in Ottawa were not all that good, there were exceptions, such as Mel Jack, who worked for George Hees, and Ruby Maybury, who worked for George Nowlan. Pyper remembers an incident with Mel Jack when a Progressive Conservative lawyer by the name of Roland Lamarre came to report that some character, on the basis of some flowery letters from Leon Balcer (to the general effect that he was a good fellow), had taken up some six to eight miles of railway spur line, cut the tracks into one-foot lengths, and sold it for scrap, all without the slightest right or contract. The question was what to do, since, if the Balcer letters ever became public, there would have been a major scandal. Pyper, Jack, and Jackett put their heads together and worked out a deal whereby the fellow was prosecuted, pleaded guilty, and was sentenced. There was a tiny notice in the paper and Baker's name was never mentioned. Fulton's province of British Columbia was the site of a problem that had been simmering, with occasional eruptions, for several years. It involved the Doukhobors, a sect that had left Russia in the later part of the nineteenth century and the early part of the twentieth to settle in Canada. They were seeking protection from religious persecution and had great difficulty in accepting the application of Canadian law to their community, to titie point that they refused to comply with it across a whole range of issues. The Sons of Freedom, in particular, led by Peter Veregin, were

io8 Chief Justice W.R. Jackett

militant. Veregin had led his followers from Saskatchewan, near where Jackett had grown up, to southern British Columbia, where they bedevilled the government, protesting against practically everything and refusing to allow their children to attend schools. The RCMP, which provided the police services in all but the major cities, was assigned to round up the truants and place them in schools against the will of their parents. This produced an even worse relationship and occasional violence. Some of the Doukhobors were angry enough that they wanted to return to the Soviet Union. Most of the government officials were delighted with that prospect and the governments of British Columbia and Canada were even prepared to pay the costs of any such resettlement of Doukhobors, provided they could be sure that the Soviet Union would accept them. The Doukhobors said they had been assured that the Soviet Union would welcome them back, but they never seemed to be able to provide any evidence to such effect. One might well wonder why the Soviet Union would want to take on an obvious problem, unless it might be to demonstrate that the virtues of communism were so great that a return to the motherland was to be preferred to remaining subject to a capitalist government in the West. The provincial and federal governments extended offers to the Doukhobors to facilitate their return, but only a few agreed to go. Most either refused to apply or, if they did, had a range of reservations and conditions that were unacceptable. The two governments struggled with the problem for years, throughout Jackett's term as deputy minister and beyond. Jackett's role was to facilitate communication between the federal and provincial governments and the RCMP, given the department's responsibility for that portfolio. He had to make sure that the British Columbia government did not drop the whole problem on the federal government, while recognizing that Fulton had a particular interest at the political level in making sure that he did not appear to be dodging the issue. Fulton, Jackett, and Commissioner Nicholson of the RCMP went to Victoria at the request of the provincial government in early June 1958 to discuss the violence in the Kootenays.28 At these meetings, British Columbia made its first effort to have the federal government assume full responsibility for removing the Sons of Freedom from the Kootenay area and, at one stage, it even took the position that there was no point in discussing alternatives until the federal government accepted the position. Jackett crafted a letter for Fulton to send to Premier W.A.C. Bennett, indicating that the government of Canada would not accept the primary responsibility for the matter and that the 'Doukhobor problem has been transferred as you suggest/ It was, however, ready to 'cooperate with you to the fullest extent proper for us to do so, in implementing any acceptable solution which

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you may put forward/29 The British Columbia government had formed the view that, if offered assistance to do so, a substantial number of Doukhobors would return to the Soviet Union. Fulton said that assurances in this direction could be given and that the government of Canada would participate with the British Columbia government in making a statement that there was a present and effective plan to supply all necessary assistance. The first draft of the statement should be prepared by the officials 'most intimately acquainted with the problem/ namely, the deputy attorney general of British Columbia and the RCMP officers in the province. Fulton would expect 'an opportunity of participating in the settlement of the final terms of the joint statement/ The matter dragged on and the federal government dodged the attempt to make it responsible for the costs of establishing the Sons of Freedom as settlers in the USSR, but it did agree to pay the costs of train and boat transportation (instead of half the costs, as previously discussed) provided British Columbia would reimburse half the amount by which such costs exceeded the amount paid by the provincial government in establishing the settlers. The joint statement would have to make it clear that the two governments would need to be advised by the Soviet Union whether it would accept the Doukhobors as immigrants and that assistance of any sort would be granted only to persons renouncing Canadian citizenship. A deadline of 30 September 1958 was established and anyone not accepting the offer by that date 'will be understood to desire to remain in Canada subject to all laws, municipal, provincial or federal, governing Canadian citizens and privileged as heretofore to enjoy the rights and liberties of such citizenship/30 Only forty-five applications were received by the extended deadline of 21 October 1958, although there were allegations that a further 2,260 applications for assistance had been signed. These were never delivered, so the two governments agreed that they should, in good faith, process those that had been received but pointing out that the necessary assurances from the Soviet Union had not been received and asking the applicants to provide them. The Fraternal Council, Union of Christian Communities and Brotherhood of Reformed Doukhobors, had been carrying on its own negotiations with the Soviet Union and it was asked to provide the results of those negotiations. No information was forthcoming. The Doukhobors sought a meeting with Fulton, presumably for clarification of the terms of the offer and possibly for an extension of the deadline to accept it, but he was out of town and they met with Elmer Driedger. They tried to meet with Jackett, who put them off by saying that he had not discussed that matter with the minister but that, until the assurances were received from the Soviet Union, there was nothing further

no Chief Justice W.R. Jackett

the government could do. Custody of the children and the amount of financial assistance to those going to Siberia were not issues he could discuss with them. On 7 November 1958 a further 2,200 applications were filed in Vancouver and press reports said that another 500 to 600 forms had not been filed because the applicants sought additional unspecified assurances. The deputy minister of justice in British Columbia wondered whether the federal government should help in getting a definitive answer from the Soviet Union. Ottawa said that the two levels of government should deal with all the applications regardless of the deadlines but make clear that they were waiting for the Soviet assurances. In the meantime, it was now into 1959 and the RCMP, concerned about the children who were not attending school, sought instructions as to how and when they should be picked up. They wanted to avoid the impression of a "grand round-up' and did not want to do it except during daylight hours. They also had to arrange the court appearances necessary for the children to be assigned to schools and to living quarters apart from their parents. When the actions were taken, there was the expected outcry from certain portions of the Doukhobors, but not much sympathy in the local media.31 Jackett began to have increasing concern about the political aspects of the situation as it dragged on and the role that the department was playing. He wrote to Fulton's executive assistant, Jim Macaulay, on 15 January 1960: 'By way of explanation I might say that, while we have a very substantial file in the Department proper, it has always been my understanding that my role in connection with the Doukhobor problem was that I was assisting in connection with a Police problem/ He went on to advise Macauley that he was inclined to think that the minister would feel that he should be consulted in connection with the matter and have an opportunity of discussing the problem with his senior police officers before a final decision was made. He concluded with an elliptical remark that he had some curiosity as to how the matter had developed and exactly where it was going. The British Columbia deputy minister of justice asked Jackett to intervene in an application made by one of the Doukhobor sects to operate a low-cost television station in its area, since he thought that this might encourage a positive attitude, especially if it were combined with bringing electric power to the area to operate the television sets! Jackett made it clear that he was unable to intervene before the Board of Broadcast Governors but would convey the letter to the board. In his letter, a draft of which he sent to Fulton for approval, he also indicated to his British Columbia counterpart what his role was: 'By way of general explanation for the response which I am making to your current letter as well as other let-

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ters that you have written to me in connection with the above subject matter [Doukhobors], I should point out that the problem of the Doukhobors does not fall within the ordinary functions of the Department of Justice and it only falls to me to take some action in connection with them when I am consulted by the Minister or the Police or some other department of the Federal Government with regard to some legal problem, or when I am requested by the Minister in connection with some special problem/ Fulton made him delete the paragraph.32 Jackett conveyed the letter to the secretary of the Board of Broadcast Governors on 21 March 1960, with the following careful caveat: 'I refer you particularly to that part of my letter in which I point out that I am not, of course, personally in a position to assist the Board in considering any such application and that all I can do pursuant to his suggestion is convey to the Board the views expressed by the Deputy Attorney General of British Columbia himself.' FOREIGN LITIGATION

By the mid-1950s, when litigation involving foreign parties or requiring the evidence of persons outside the jurisdiction where the litigation was commenced, began to surface on a regular basis, a perennial problem reasserted itself. How was evidence to be taken when witnesses refused or were unable to come to Canada to testify? The traditional practice, which had been incorporated in most jurisdictions, was the use of rogatbry commissions. This is a procedure under which the court in Canada appoints a person in the other jurisdiction to do the questioning, which is recorded and which then becomes part of the record in the Canadian court. The process was generally assisted by a series of bilateral conventions which allowed for various levels of such commissions. These entailed requests for access to the full power of the foreign courts to compel witnesses to testify, to the use of consular officials, and to the appointment of designated individuals for the purpose. Most of the conventions in force at the time were conventions negotiated by the United Kingdom in its role as the imperial authority, but there was provision for the dominions to become adherents in their own right by a process of notification to the foreign government. As the litigation process heated up, Canadian embassies were getting more and more requests for their officials to act as commissioners under these rogatory commissions. The foreign missions were reluctant to undertake such work because they were understaffed and because consular officials were not necessarily lawyers and might be unsuited to the work of such a commissioner, not knowing what to ask and the applicable rules

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of evidence. The Department of External Affairs was concerned that it would be criticized by the litigants if the process did not work to everyone's satisfaction. The problem was what to do about the commissions which the courts were issuing. External's own legal branch was uncertain, so the Department of Justice was consulted. Two examples will show the nature of the problem and the care with which it was handled. The first was a patent case, Duratube & Wire Limited v. B.F. Goodrich Canada Limited and The Hydro Electric Power Commission of Ontario,33 in which three big Canadian 'names' were involved: Christopher Robinson, Harold G. Fox, and Gordon F. Henderson. Three witnesses were sought to be examined in West Berlin and the persons named in the commission were the Canadian consul and the Canadian vice-consul at the Canadian military mission. On receipt of the commission, the consul, B.A. Keith, wrote for instructions, presuming that he was duty bound to accept the commission and noting the expenses and administrative measures that would have to be undertaken if he or the vice-consul were to act. External Affairs turned the matter over to Justice and Jackett. In doing so, it said that, for various reasons of policy, it did not normally permit Canadian consular officers abroad to serve in the capacity of special examiners for the purpose of taking evidence at the request of legal firms in Canada. However, in this case, it was faced with a commission issued by a Canadian court and the question was whether the individuals named in the commission were bound to act. Could a Canadian court bind a servant of the crown who is not physically within the jurisdiction of the court? Or was the minister of the crown to whom such servant was responsible the final authority in the attribution of the servant's duties? Marguerite Ritchie of Justice assembled a series of files dealing with the taking of evidence abroad and sent a memorandum to Jackett, by now deputy minister. She offered to write to External saying that Justice was unaware of any authority that would permit a consular official to disobey an order of the court. She pointed out a difference between the commission granted in this case from those normally issued in admiralty matters. The latter were authorizations to act. The commission in this case was framed as a request by the court to act. Ritchie had discussed the file with Don Maxwell, who said that, although the language of request was much stronger than the 'authorization' language, it might nevertheless be construed as an authorization. Jackett replied to Ritchie with a handwritten memorandum, in which he 'suggested' a form of response, 'somewhat as follows ...' The letter to the under-secretary of state was, not surprisingly, drafted in precisely the way Jackett had sent his handwritten memorandum. He said that, being issued to a person out of the jurisdiction, the commission did not operate

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as a 'command' but as a 'request' by Her Majesty and that the officer to whom it was directed was not bound to execute it. He then provided advice as to how the decision not to act might be expressed. If, therefore, it is decided by your Department that the Commission cannot be executed without unduly interfering with the public duties of his office as Canadian Consul, I suggest that, out of respect for the Court out of which the Commission was issued, he should return it under cover of a letter to the Registrar of the Court expressing regret that the duties of his post make it impossible for him to comply with the 'request' contained in the Commission and adding that he regrets any inconvenience to the Court, which, it would appear to him, arises from the fact that the order for the Commission was obtained without appropriate arrangements having first been made with either him or his superiors. With reference to the more general question raised by your letter as to whether a Court in Canada can, by its orders, bind a servant of the Crown who is not physically in Canada, I prefer not to deal with this question until it arises as I prefer not to assume that a Canadian Court would exceed its jurisdiction. In any particular case, enquiry would have to be made as to whether jurisdiction to direct the order to a Canadian outside Canada had been legally conferred on the Court. Certainly, Parliament has power to make laws conferring such jurisdiction and a public servant is not entitled to ignore an order of the Court merely by reason of his employment under a Minister of the Crown.

The other side of the coin, namely, allowing foreign governments to have direct contact with Canadian nationals for purpose of litigation conducted in their states, can be seen in the content of a short letter written by P.P. Varcoe to the under-secretary of state for External Affairs on i March 1948. The initials on the copy of the letter suggest that it had been prepared by David Henry and typed by Kay Simms, who had been a secretary in Justice before having something of a falling-out with Henry and leaving to become Joe Thorson's secretary. The background had been a proposal by the high commissioner of the (then) Union of South Africa to establish a procedure whereby the service of documents and the taking of evidence on commission might be carried out by officers of his mission. Varcoe's letter read: 'I am not aware of any statute which expressly prohibits the service of documents or the taking of evidence on commission by diplomatic or consular representatives from abroad. I would, however, point out that you might wish to question the propriety of permitting such representatives as a general rule to serve documents and to seek out witnesses for the purpose of taking evidence on commission when such acts will bring them into direct relationship with Canadian citizens in respect of litigated matters/ No doubt this advice was tendered, inter alia,

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against the background of the famous Gouzenko disclosure of the extent of Russian intelligence gathering and spying. The implications of direct contact by foreign missions and Canadian citizens deserved serious consideration. HONOURS

On 9 May 1958, twenty-five years after his graduation from the College of Law at the University of Saskatchewan, Jackett returned to his alma mater to be awarded the honorary degree of doctor of civil law. Also receiving an honorary degree on this occasion was the newly elected prime minister, John George Diefenbaker. Jackett was presented for the degree by the same dean who had seen him through the college, F.C. Cronkite, in the abbreviated and formalistic manner fashionable on such occasions: Eminent Chancellor, I present to you the Deputy Minister of Justice for Canada. It is a matter of some satisfaction to me that Mr. Jackett is a graduate of the University of Saskatchewan both in Arts and in Law. After his graduation in Law in 1933 he attended Oxford University as a Rhodes Scholar. On leaving Oxford he returned to Saskatchewan and received his call to the Bar. Soon thereafter he went to Ottawa and his advance in the public service of Canada has been rapid. Mr. Jackett is first and foremost a sound lawyer. His scholarship has been shown by his University work and by learned papers prepared over the years. As a craftsman his wide knowledge is combined with a capacity to inquire and analyse and form unbiased judgments. In a country which believes in government under rule of law the position held by Mr. Jackett as a senior official in the National Department of Justice is of tremendous importance. At all levels of government there seems to be a confidence in Mr. Jackett's abilities to discharge the great responsibilities of his position. Eminent Chancellor, I ask that you confer the degree of Doctor of Civil Law, honoris causa, on Wilbur Roy Jackett.

There was an amusing side bar to their incident. The university had decided to give Jackett a doctor of civil law, a more prestigious degree, in academic circles, than the 'ordinary' doctor of laws degree. However, this raised a problem of protocol, for Diefenbaker, not a popular figure at the university, was to receive an honorary degree at the same ceremony. The university had resisted taking this step for some time, but, now that Diefenbaker was prime minister, it could do so no longer. Yet did it have

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to be the prestigious DCL? Ultimately, university authorities decided that Jackett was to get a DCL and if, as a matter of political protocol, that meant Diefenbaker had to get one as well, then so be it.34 Sitting together with Diefenbaker on the academic platform, Jackett was astonished by the prime minister's political skills, to say nothing of his memory. As virtually each graduate came forward, Diefenbaker would identify the person or the parents and know from which town or area they came. THE D I E F E N B A K E R BILL OF RIGHTS

John Diefenbaker had wanted a Bill of Rights to be part of the laws of Canada since 1946, when he was in Opposition and legislation allowing emergency powers of arrest and detainment was being debated in the context of the Gouzenko revelations and their aftermath. He was unable to cause this to happen either in Opposition or as leader of a minority government after the 1957 election. Once he was elected with a majority in 1958,35 however, the matter became a priority; he was sufficiently politically committed to proceeding that he promised, in a speech made to the Canadian Congress of Labour in April 1958, that his government would introduce a bill that would assure the protection of such fundamental rights.36 Much has been written on the Bill of Rights, but not from the perspective of the officials within government charged with preparation of the legislation and the efforts to be certain that it was within the legislative competence of the federal government. After Diefenbaker's election on 10 June 1957, Jackett, knowing that the matter would, in due course, find its way to him, immediately initiated some research into the history of consideration of Bill of Rights legislation in Canada. Considerable material was collected in a memorandum, dated 27 June 1957, prepared for Jackett by David Henry, less than a week after the new prime minister had been sworn in. Jackett scribbled a brief "Thank you' to Henry after reading it on i July - a holiday for most but another day of work for Jackett - and ordered the memorandum to be filed. As it became clearer and clearer that there would eventually be legislation, provided Diefenbaker remained in power, Jackett sent David Henry back into the trenches in December of the same year to prepare an additional memorandum, this time to be shared with Fulton. It reviewed the parliamentary background of such legislation, a matter of particular importance to Fulton, who had been in the House since 1945. While Fulton would clearly not be the driving force behind the bill, he would have at least a share of the responsibility for steering any legislation through the

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House and would be looked to in Cabinet for assurances as to the substantive content of the bill and for its constitutional validity. The same day, 16 December 1957, a second memorandum was prepared, this time for Fulton's information, also dealing with the partisan political history pertaining to the subject matter. Fulton would, therefore, be well equipped for any strategic discussions with Diefenbaker and the Cabinet as a whole, based on the previous political stances of all parties, should the bill go forward. The two memoranda give an excellent example of how the political leadership was supported by the public service. The next step was for Jackett to begin to assemble his own thoughts on a Bill of Rights. All lawyers have the job of knowing their clients. Any Bill of Rights that might eventually be proposed for the consideration of Parliament would inevitably be required to address the personal concerns of this particular prime minister in addition to the many complex legal niceties. Even before the 1958 speech, it was well known within the department that there would, at some point, be an initiative in this direction taken by the government. The matter of a Bill of Rights was not without a good deal of legal subtlety, both as to form and as to content. Prior to sitting down to draft the first attempt at converting the various ideas into legislative format, Jackett wrote a file memorandum on 19 Marc 1958 in which he summarized the ideas that would have to be borne in mind by the federal Parliament if it were to legislate. Where the subject matter of any offending statutes was within the provincial legislative authority, that would fall outside the constitutional authority of the federal Parliament. There were, of course, several ways that a bill of rights might become part of Canadian law. There could be an enactment of the imperial Parliament, but that would not sit well with the Diefenbaker government. There could be parliamentary restraint in the enactment of statutes that might impinge on human rights and fundamental freedoms, but that would be political only and not affect past or future statutes. It seemed to Jackett that the only feasible proposal would be to have a bill that would impose certain restrictions on the effect that might be given to statutes of Parliament - past or future - regardless of their wording, for the purpose of preventing encroachments or restrictions on human rights and fundamental freedoms. In that respect, it was to be, in effect, a rule of statutory interpretation applicable to all federal statutes. A few days later, on 27 March 1958, after consulting with Joseph Thorson, president of the Exchequer Court of Canada, to obtain some international material on the subject matter, Jackett prepared the first draft of a Bill of Rights and circulated it to Driedger, Henry, and Marguerite Ritchie for their comments. He noted that, if there were to be a decision to go ahead with such a bill, it would in due course go to Driedger for draft-

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ing, so what he was looking for was criticism from a substantive or policy perspective. Driedger responded with comments the next day. There was further internal discussion between Jackett and Driedger regarding the form and content of the possible legislation and Driedger suggested some amendments to Jackett's draft. A draft bill and accompanying memorandum were ready to be given to Fulton by 21 April 1958. While there were a few additional improvements added to the draft bill over the next couple of years, and while the format was altered in certain respects, Jackett's draft was remarkably close to the substance of the eventual statute as enacted by Parliament in 1960. Thus, even before Diefenbaker made his speech on 25 April, which committed him as prime minister to introduce legislation, Jackett and Driedger had, in conjunction with the minister, prepared the way and were at the stage where something concrete could be delivered to the prime minister for his political consideration. After meeting with Fulton, Jackett prepared a memorandum for Fulton to sign and deliver to the prime minister, on i May 1958, less than a week after his speech. In it, they gave Diefenbaker the legal and constitutional assurance that it was not a bill which would have to be submitted to the Supreme Court of Canada for any determination of its validity. The need to, or the desirability of, submitting the legislation to the Supreme Court of Canada had been a subject of considerable discussion in some of the early considerations of a Bill of Rights. This procedure may have been an interesting ploy when the Progressive Conservatives were in Opposition and were trying to get the government to consider such legislation as a matter of principle, but, once they came into power and were committed to proceeding with a Bill of Rights, the prospect of a Supreme Court reference was no longer appealing. Diefenbaker had no desire to become a hostage to the range of personal and other considerations of the members of the Supreme Court of Canada; nor did he wish to expose his bill to the competing agendas of the many groups who might be expected to try to intervene in any such reference to the court. The bill could proceed as a piece of legislation which was, in the opinion of his officials, clearly within the legislative competence of the Parliament of Canada - and, therefore, something which his government, with its significant majority, could cause to be enacted. Notwithstanding his parliamentary majority, it was Diefenbaker's political judgment that he should not proceed too precipitously with the bill, so his tactic was to introduce the bill at the end of the 1958 session of Parliament and thus leave it before the public for discussion. Bill C-6o, 'An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms,' was introduced on 5 September 1958.

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The reaction, particularly from within the community of constitutional scholars, was generally unkind and, within the professional ranks, the Canadian Bar Association demonstrated little enthusiasm for the bill. Public and private response was quite critical, not so much as to the idea and contents of the bill as on the grounds that there was no "entrenchment' of the law and that, as federal legislation, it did not bind the provinces. A particular concern was that there was nothing in the bill which would ensure that it could not be repealed or amended in some manner that would render it ineffective in the future to protect the rights that it purported to protect. Some, primarily within the academic realm, also wanted the bill to be the final assault on the federal-provincial conundrum which has been such a part of Canadian legal and political history. The constitutional issues had all been addressed by Jackett and it was now a matter of how far Diefenbaker was prepared to go, politically, to have his 'baby' adopted in the face of the academic and other criticism that it was too weak. The ebbs and flows are well described by Denis Smith in his excellent biography of Diefenbaker.37 Diefenbaker allowed the debate to muddle along for almost two additional years, while Jackett continued to help prepare responses to the bill's critics, who included Bora Laskin, then a professor at the University of Toronto Faculty of Law, Frank Scott from McGill University, and Morris Shumiatcher, a wellknown human rights advocate from Saskatchewan. It was important for the government that its objectives be understood and, more important, that the constitutional limitations of the federal government in certain areas be properly appreciated. There were too many people, especially in academic circles, who saw the bill as a cure-all for matters which were not within the legislative competence of the federal Parliament. Government representatives participated in many debates and seminars or conferences on the bill, and Jackett made sure that they were properly armed with solid legal positions as part of that process. He prepared extensive briefing notes, including a discussion of the relevant judicial decisions, for David J. Walker, Fulton's parliamentary secretary, who was to take part in a debate which included Bora Laskin in early December 1958. Jackett says that he would not have prepared such a document for just any rank and file Member of Parliament and only did this memorandum because of Walker's role as spokesman for the government. Interestingly, he made a point of stating in the memorandum, in response to the announced criticisms of Laskin regarding the bill (and the expected reiteration of them at the conference), that he did not know Laskin and so his comments on Laskin's position should not be taken as personal. Jackett knew perfectly well, of course, who Laskin was and included this disclaimer in his memorandum out of an abundance of sensi-

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ble caution as a public servant. He also sent Driedger to attend the debate and to report back on the outcome.38 More practical suggestions came from lawyers such as Morris Schumiatcher, who were active in the field of civil liberties. Schumiatcher's suggestions were carefully reviewed and contained some ideas which were acknowledged as helpful. It was important for Jackett to keep Fulton appraised of the points which were raised in connection with the bill and to indicate where changes could be made to accommodate the views expressed and to improve the bill where possible, or at least not to allow it to be watered down, made into a statute that would be unconstitutional or be rendered politically unenactable. Fulton, in turn, had to provide Diefenbaker with material he could use in his own, less technical, dealings with commentators on the bill. It appears as if Diefenbaker finally came to view the academic criticism of the bill as more annoying than helpful. Many of the memoranda prepared during this period for the purpose of reassuring the political leaders are quite interesting, including those that considered the effects of a Bill of Rights on the regular operations of departments of government, such as the collection and enforcement powers of the Department of National Revenue in taxation matters. The Department of Justice was the repository of the flood of comments, suggestions, and representations regarding the bill. Driedger was assigned the responsibility of coordinating the day-to-day aspects of the project and of collecting, categorizing, and preparing responses to all of this material. He and Jackett made sure that there was a solid legal response to each submission. By the end of January 1959, Jackett was able to assure Fulton that there was no need to make substantive changes to the bill, except in one minor particular, and a letter was prepared for Fulton to send to Diefenbaker on 27 January 1959 assuring him that the constitutional and legal aspects were sound. Any change, especially in an area as important as human rights, is bound to provoke warnings that it not be too hastily implemented. Indeed, it seems to be a feature of the human condition that, whenever there is a call for 'bold new initiatives' and action does follow, there is an immediate concern raised about the boldness of whatever has been done. On 3 March 1959 the council of the Canadian Bar Association passed a resolution calling for delay in proceeding with enactment of the Bill of Rights until the next session of Parliament. Jackett requested Driedger to review the content of the resolution and to prepare a memorandum for Fulton's consideration. The matter was obviously one for political decision; all Fulton needed to know was the extent of the operative content of the resolution.39 Many of the academics, including Laskin, were all in favour of a reference to the Supreme Court of Canada, which would have

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added to the delay. By May 1959, Jackett and Driedger were ready to recommend the final amendments to the bill to Fulton and to suggest that the minister was now in a position to report to Diefenbaker with a product that was, from a legal perspective, essentially 'finished/ Driedger sent Jackett a memorandum for his approval, with an accompanying letter to the prime minister. One of the principal concerns, both political and legal, was that the Bill of Rights was not going to be part of the constitution, as such, of the country. There were, of course, many complex federal-provincial legal issues surrounding this matter, as well as the need, at the time, to go to the imperial Parliament if there were to be an amendment to the British North America Act, 1867, which was an imperial statute. From the perspective of the Department of Justice, the legal (as opposed to the political) issue was fairly clear and had been the subject of considerable study and discussion between Jackett and Driedger, who were satisfied that the political objective could be accomplished without the need for a constitutional amendment. This became the position that Jackett recommended to Fulton in early November 1959. It is a particular irony that the final bill was introduced in the House of Commons on i July 1960, the first day of Jackett's working life that he was not in the Department of Justice. He had worked until nearly midnight on June 3oth, his final day in office as deputy minister of justice. The parliamentary committee hearings had been handled by Fulton and David Henry, since Jackett was leaving and Elmer Driedger, who had been charged with following the changes that were negotiated with assorted special-interest groups, was in the process of getting up to full speed on the responsibilities of becoming deputy minister. Whatever the bill's shortcomings may have been, Diefenbaker pushed it through the House and it was proclaimed as law on 10 August 1960.4° The Bill of Rights was a considerable political triumph for Diefenbaker, but it has not been a statute that has received a great deal of sympathetic attention from the courts.41 As Denis Smith notes: 'During its first year, the Bill of Rights was invoked in about a dozen court cases and sustained in only one tax dispute. It caused "a ripple on the Canadian legal and legislative scene, but certainly not a splash," in the view of one reporter. It was ten years before the Supreme Court applied the non-discrimination principles of the bill to erase some sections of the Indian Act. As an educational and propagandist device, by contrast, it was an instant prize for the Conservative Party/42 Diefenbaker himself was extremely proud of the Bill of Rights and wrote in his memoirs: "Those law professors and politicians who had condemned it had closed their eyes to what was happening. All the laws of

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this Dominion were made to conform to it. It became the standard and the pattern for those Canadian provinces that wished to enact their own provincial Bills of Rights. No less important were the individual acts of fine citizenship which the Canadian Bill of Rights inspired. For example, I was most impressed when my long-time friend and colleague, the Honourable David Walker, in consequence of his commitment to the concept of non-discrimination, initiated, as President of the prestigious Lawyers' Club in Toronto, the sweeping aside of any barriers preventing Jewish membership/43 The legal content of Diefenbaker's political success was designed by Wilbur Jackett. Fulton, looking back on the process, says that he had anticipated Diefenbaker's desire to have such a bill and that Jackett had, in turn, anticipated him. Fulton smiles, as he remembers an occasion in his office when he mentioned to Jackett that they should, perhaps, now be thinking of drafting the bill. Jackett replied, 'Minister, I was wondering when you might ask me that. As a matter of fact, Elmer [Driedger] has a copy of a draft Bill in his briefcase for your consideration.' WORKING FOR THE DEPUTY

The government he served could count on Jackett for prompt, objective, and sound advice. He was non-partisan. That is not to say, however, that he was blind to political reality. One of his juniors, Derek Aylen,44 can recall the Post Office asking whether they should pay a small claim advanced by some Vancouver parents. A packet of medicine had fallen from a letter-carrier's bag. There was nothing on the outside to indicate what it contained. Some small children found it. They consumed the contents. The medicine was a tranquilizer and they became very tranquil. Happily, they suffered no permanent harm. Aylen had ventured the opinion that the letter-carrier was not liable and hence the crown was not vicariously liable, though the pharmacy that mailed the package might be.45 Jackett did not agree. Aylen was summoned. He suspected, probably not without reason, that Jackett's view might have been influenced by the fact that the 1958 federal election was about to be held and that their minister came from British Columbia. The political backdrop against which they all worked was Diefenbaker. Jackett had known of and met Diefenbaker as early as his law school days in Saskatoon, for the future prime minister was a prominent figure in Saskatchewan at that time. However, he learned much of what he knew about Diefenbaker while paying his respects years later to Arthur Moxon, former dean of the College of Law at the University of Saskatchewan, during a trip to Saskatoon, when Moxon talked about the early Diefenbaker

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days. Moxon had observed - and he was not by any means the first to have done so - that the prime minister was very egotistical. Apparently, Diefenbaker, with little, if any, publicity, took mortgages on the farms of those whom he defended, as security for his legal fees. This seemed to have been generally known by the local legal community but it never became public knowledge and so his reputation as a staunch defender of the downtrodden remained intact. During his time as deputy minister, Jackett says that he managed never to get into Diefenbaker's 'bad books/ a state of grace not as easy to avoid as most senior civil servants might have wished. Even after Diefenbaker had retired, he always went out of his way to say hello to Jackett and to remind him that they were fellow Saskatchewaners. Within government, however, David Walker, Fulton's parliamentary secretary, suggested to Jackett that he spend some time 'getting close' to Diefenbaker or 'going to see' him, but Jackett said, after asking whatever for, that this was not his idea of how a civil servant should act. It appeared that Walker did not think Fulton had much influence, or pulled much weight with Diefenbaker, since Fulton had opposed him for the leadership of the party and that single act of 'disloyalty' was enough for Diefenbaker to write him off. Jackett doubted if Diefenbaker saw Fulton as a real rival after that. Not only did Jackett avoid getting close to Diefenbaker, but he managed, with one exception - a subpoena arising out of the Newfoundland/RCMP matter never even to go to Diefenbaker's office. One of the more bizarre episodes in which Jackett was involved as deputy minister was the discussion between ministers and deputy ministers regarding the shelter that has now come to be called the 'Diefenbunker/ in which the government and its most senior officials were to take refuge in case of nuclear attack. Part of the discussion, which was secret, was that the participants were not to tell their wives about this contingency plan.4*5 Jackett said that was absolute nonsense and that it was unthinkable that government could purport to proceed on such a basis, even assuming that it was appropriate to contemplate the government seeking this kind of refuge. The plan apparently evolved to some degree thereafter and he recalls that Kathleen was later visited by a police officer to discuss arrangements, which extended even to the matter of looking after their cat. Two individuals who would become serious 'players' in Canadian political life, Marc Lalonde and Peter Michael Pitfield, came to Ottawa the same day in May 1959, hired by Davie Fulton.47 Lalonde, who had had some experience as a researcher in the Combines Branch at Justice, started at the end of the academic year of 1'Universite de Montreal, where he had been teaching law for two years. Ian Pyper, Fulton's executive assistant, went down to Montreal to have lunch with Lalonde at the Beaver Club, to

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tell him what it was like to work for Fulton. Daniel Johnson, then leader of the Union Nationale party in Quebec, had warned them not to take Lalonde because his father had been Union Nationale and had broken away from the party. Johnson said they would be very sorry if they took him. Despite these imprecations, Fulton hired Lalonde as a research assistant. Pitfield worked more on the political side of things, dealing with parliamentary and possible constitutional issues. Lalonde attended meetings of the minister and deputy minister quite often where appointments of judges were considered, as well as the legislative program for parliamentary sessions and other problems. Jackett, he recalls, was quite gruff and always ready for an argument. He would stand for no nonsense. Meetings in which he was involved were sharp and to the point. There was no fooling around. Jackett made it quite clear that he did not tolerate fools gladly. He did not seem to think too highly of Pitfield. No twenty-one year old was going to tell him how to run his department. Jackett's utter seriousness on the job notwithstanding, Lalonde says that he had a sense of humour, normally apparent, however, only after the business was done. He could crack a joke or laugh at one, but this was not the image he projected. He had an aggressive posture and stance like a boxer. He spoke like a machine gun, very forcefully. Lalonde says that Jackett was also very firm with the minister. He would say 'Yes, Minister' and, when appropriate, 'No, Minister.' Lalonde cannot remember a single instance when the minister ordered Jackett to do something against his advice, although they often argued and discussed matters. This did not in any way interfere with the good relationship he had with Fulton. Jackett carried a very considerable weight in discussions, whether within the Department of Justice or in interdepartmental situations. He was one of the really 'strong men' of the period. Comparing Jackett and Guy Favreau, Lalonde says that Favreau was much more sociable and liked by everyone, whereas Jackett was respected.48 He ran a very tight ship. He was particularly highly regarded by the staff in the department. The overriding feeling then was that it was an honour to be an official in the Department of Justice. Jackett brought stature within government to the department. The department had its say on every piece of legislation.49 When Jackett was deputy minister, the department had an acknowledged leader who led by example. The lawyers knew that he loved and respected the law. They knew he had an interest in everything that went on in the department and that he insisted on the highest quality of work they were capable of producing. If they had problems, they could come to him for guidance. He did not delegate the tough jobs and was ready to work with them on major court cases and to take the juniors to court with him to see how cases were to be pleaded, not just in the Supreme Court of

124 Chief Justice W.R. Jackett

Canada, but in the Exchequer Court of Canada as well. Their department was well and efficiently run and they all shared in the prestige which the department enjoyed throughout government. Peter Troop recalls with admiration examining files in which instructions and commentary were exchanged (by mail) between Jackett and John Wellington Pickup (later to become chief justice of Ontario)50 on a case in which Pickup was acting as agent. Opinions would arrive and, within a day or two, out would go lengthy new opinions and commentary. Jackett, he says, had an extraordinary ability to churn out high-class work. One rewarding feature of working with Jackett was that he was a person who brought his juniors into everything he did when he thought they could or might make a contribution. Juniors were not excluded, even from important meetings with ministers and agents of the department on major cases. If you had done the work, you went to the meetings and the young lawyers were able to see themselves as useful. When a memorandum and draft opinion letter had to be prepared for the minister's consideration and signature, Jackett would always see it. But if he agreed with what had been written by a junior lawyer, he would often just write on the memorandum, 'I agree. W.R.J.' This was very good for morale. The most junior lawyer felt that, on occasion, the memo he had worked hard to put together would receive the direct and personal consideration of both the minister and the deputy minister. He might be, and often was, called upon to discuss the matter with the minister and deputy minister. It also meant that later on, perhaps years later, anyone looking at the file knew exactly who had looked up the law, who had written the opinion, and why. Jackett continued one important procedure that had been established by his predecessors. Under his specific instructions, all incoming mail came, at least notionally, across the deputy minister's desk. This was not a mere 'totem pole' exercise, nor a mere personal pecadillo. It was, he says, important for the deputy minister to know what was going on. If someone had a 'complaint' or work was not being attended to, as the person responsible for the operations of the department, Jackett had to know about it. He also had to be in a position to know if a matter needed to be brought to the attention of the minister. By the time Don Thorson had become deputy minister in 1972, the department had become so large that he told Jackett he no longer knew what all the intermediate lawyers were doing. Jackett personally reviewed every written opinion given in his name. There was a great volume of these, some dealing with the monumental issues of the day, and others of a minor nature. Jackett saw them all. So there was little chance of contradictory advice coming out of his depart-

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ment. If he did not agree with the draft opinion, he would send for the author. This, says Aylen, could be a somewhat unnerving experience. He could be testy. He could put down a dissent with a few 'deft verbal sabre strokes/ In the winter, another factor contributed to the unease of the juniors. The Justice building was not air-conditioned. But Jackett had a window-sill air conditioner, which he kept running even in winter. So if you were not shaking before you went in, you often were after a minute or two, even if the meeting went well. Even after he became deputy minister, and despite, perhaps even because of, the increasing burden of administering the department, Jackett continued to appear before the Supreme Court of Canada in constitutional cases51 and important tax and other appeals.52 He almost always took along junior counsel to show them the ropes, to get to know them, and to see how they were able to contribute to the development of the cases. He took Aylen along, in late 1959, after only two years in the department, on the Reference re the validity of the British Columbia Milk Industry Act (1956), a case that had profound implications for marketing schemes and trade relations.53 All the Justice lawyers knew that Jackett loved the law. Aylen recalls his ecstatic exposition of 'a new gloss' on an old doctrine which he had discovered or perhaps invented. But he did not let his love of the law distort his conviction that lawyers have a duty to render practical service to the public. He drummed into the departmental officers that the function of the department was 'to keep the legal business of the government on a reasonably current basis/ That was long before elaborate mission statements became a fad. T. Bradbrooke Smith, who also joined the department shortly after Jackett became deputy minister, acknowledges that Jackett had a bit of a reputation for being brusque, but he did not notice this himself. He thought that perhaps some of the lawyers were overly sensitive to criticism and there was no doubt that Jackett could be cavalier in dismissing points or arguments which he considered to have no substance. There was no question that if you did not do good work, a reputation to that effect soon developed. If you were straight and did your work well, Jackett was good to work for. He did not take too much nonsense, but he was not overly gruff or pedantic. His juniors saw him, to some degree, as a lawyer who wanted a jurisprudential basis for any position he was to take before the courts, but he was always prepared to look elsewhere as well for the answer to any problem. Smith says that Jackett was a good solid lawyer. He was not histrionic in court, just his usual forceful self. He did not waste a lot of time. He would review and change the facta prepared for him and was not at all like Gordon Henderson in that regard, who would leave the facta to his juniors and argue whatever he

126 Chief Justice W.R. Jackett

decided was important once he got to court, whether or not that was the position reflected in the factum. Smith does not think of Jackett as a brilliant counsel, someone on the same level of acknowledged genius on his feet as, for example, John Robinette. He was relatively succinct, knew where he was going, and was quite unambiguous. Smith would have ranked him perhaps in the second tier and thinks that Jackett would have said the same thing about himself. One thing was certain, however - he knew his law. He tended to be complicated, especially when drafting. Still, when instructing counsel inside and outside the department, he could quickly home in on the essentials. His mind was detailed and he wanted everything nailed down. He had an ability to focus on issues in court, particularly in constitutional cases. The Supreme Court often gave counsel a rough ride, but it was much easier to take criticism from the bench in those days because many of them had also been practitioners. Smith says it is not the same with some of the academic types, who may seldom, if ever, have donned a bib and gown and done battle on their own, and the court has become somewhat different. When they were before any court, the judges listened to Jackett and had respect for the views which he presented as the deputy attorney general of Canada. Jackett and Smith were in the Supreme Court of Canada on one of Ronald Martland's first cases,54 when he was, in accordance with the court protocol, at the end of the row of judges on the bench. Jackett had made it clear to the Justice lawyers that he had high regard for Martland. Jackett always lived frugally and honestly. He did not take his holidays at public expense. He did not indulge in earthly pleasures at public expense. He saw to it that anything that might be remotely construed as a bribe was returned. Thus, the gift of a cheese at Christmas went back to the would-be donor. So did a necktie given to a young lawyer involved in a customs-tariff case. The ten-year-old Ford car sitting in the deputy minister's place at the front door of the Justice building was his own, and he paid for the gas, unlike the bureaucrats of today55 There was little time for social life in the department, although the Jacketts gave an annual Christmas party at their apartment, to which they invited all the lawyers and their spouses. They were sure that Jackett paid for this himself. With Jackett's example, says Aylen, they worked much harder than the general public would ever believe and for no extra pay. RESIGNATION

To every thing there is a season. Jackett's decision to resign as deputy minister and leave the public service effective the end of June 1960 was as

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decisive as his other actions. Jackett says that he never intended to stay in the Department of Justice until he was sixty-five. He had been there for twenty-one years, had made it to the top of the heap, and there was nowhere left to go. There was too much administration for his liking and he was getting farther and farther from practising law as a pure lawyer. The political climate was beginning to change and the lines between legal and political issues were increasingly blurred. Money may have been part of the equation, but less than one might have thought, since his lifestyle was modest. Undoubtedly, the principal factor was that he wanted, some day, to become a judge. This was the pinnacle of achievement, in his view, for a lawyer. As long as he stayed where he was in the department and did a reasonably competent job as deputy minister, there was virtually no chance that he could get a judicial appointment. With the realism that came from more than two decades in government, in the department from which most appointments were made, he knew that politicians appointed public servants to the bench only in order to get rid of them, and he was not prepared to become sufficiently incompetent to 'merit' an appointment of that nature. He had, therefore, to create some distance between himself and the public service. The CPR, to which he would go as general counsel, was an active company with many important legal problems, so he could get back to being a pure lawyer but with sufficient profile to keep from disappearing in legal circles. The CPR, despite often being in a confrontational position with government, was nevertheless one of the most influential companies in Canada, a factor that was not without importance, given his objective. Fulton, in retrospect, agrees that Diefenbaker's well-known views on the senior civil service made Jackett's judicial appointment from 'inside' unlikely at best. Fulton says that he first learned about Jackett's decision to resign from Ian Sinclair, on the steps of the old Rideau Club. Sinclair said to him, 'I hope you won't be angry, but I have just stolen your Deputy Minister. You will get his resignation shortly/ Fulton tried not to look too taken aback when he heard it, but he was very upset. It came as a great, and unwelcome, surprise to him. He respected Jackett too much to seek to reproach him. He worried whether it was something that he had done which caused him to resign, but he did not ask. Jackett never came to him, he says, and he was hurt that he had not come to tell him before he did it. Even the letter of resignation did not come to Fulton; it went directly to Diefenbaker, since deputy ministers are appointed by the prime minister. When Jackett had made his decision to resign, he dug out Varcoe's letter of resignation from the departmental files and used it as a model. Varcoe

128 Chief Justice W.R. Jackett

had simply written, 'I hereby resign as Deputy Minister of Justice/ Jackett used the same language and sent it to Diefenbaker. The letter was typed by Kathleen, since Jackett did not want any rumours floating around the department until the deed was done. Fulton returned the letter to Jackett, saying that Diefenbaker, obviously concerned, given his general suspicion of the civil service, that there might be some implicit criticism of his government in the resignation of such an important deputy minister, wanted something a bit less stark. And so Jackett added a paragraph saying that he had enjoyed working with some of the cabinet ministers. He had not worked with all of them. Kathleen retyped the letter and it was dispatched to Diefenbaker's office. It was returned once again, and he was asked to delete 'some of.' Kathleen retyped it a third time. Although a great deal of time has gone by, Jackett thinks that he probably gave the department some relatively short period of notice before leaving. His initial recollection was that it may have been in the order of a month, possibly even less. Once you are known to be leaving, he says, your usefulness becomes severely limited. Jackett's last day as deputy minister was 30 June 1960. He spent most of the day in the House of Commons with Davie Fulton dealing with the departmental estimates, following which he went back to the office to sign a few letters and opinions and was out just before midnight. Fulton was not the only one who was surprised by Jackett's announcement. Almost everyone in Justice was stunned by his decision to leave. No one seemed to understand why he would have done so. They had a smoothly running department, with a respected and universally acknowledged leader who loved the law, who commanded respect throughout government, who saw to it that his lawyers were as good as the best in the business, and who was not some eminence grise foisted on them by the Prime Minister's Office or Privy Council. Their department had a 'winner' and they were proud of it and him. They did not think that the money was why he had left; money had always seemed to be of little concern for him personally, although he fought hard to get the salary levels for the junior officers raised to reasonable levels. Ward McKirnm recalls that Jackett was furious when McKirnm left the department in late 1959 to go into private practice with an Ottawa firm and wrote a memo to Cabinet complaining about the low level of salaries. McKirnm was making $7,600 at the time he left, after five years of rigorous training and work, having started at $3,710 per year. When Diefenbaker was in Opposition, he told Jackett that he should get 'those people' to pay him more money. Nothing happened then. Nor did anything happen in that regard when Diefenbaker came into power. Ironically, it was only after Jackett had left that his efforts in that direction bore fruit and the general salary levels were increased.

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129

The public service lost one of its best and most loyal with the resignation of Wilbur Jackett as deputy minister of justice. The times were changing, and it seemed no longer possible to maintain the traditions of an apolitical administration of government departments that had marked almost a century of Canadian self-government.56 For someone who viewed the separation between political and civil service as bordering upon the sacred, it seemed better to cut the umbilical cord and revert to law as a learned profession than to remain and watch the distinction gradually erode. He departed as he arrived, without fanfare. He left behind him a collection of well-trained lawyers who had absorbed his respect for the law and ethic of hard work in the service of the federal government. They would have to make their own terms with the changing landscape, but they could do so from a solid base impressed upon them by a real leader. They would no longer have the luxury of saying, 'I have nothing to add, My Lord/

6 Interlude: The CPR Years

The Canadian Pacific Railway Company, then headquartered in Montreal, was a large national corporation with vast resources and holdings. It was a private enterprise that had excellent, even surprising, federal governmental support in view of the government's commitment to its own, unprofitable, national railway venture. Given the federal-provincial tensions of a constitutional nature as well as the normal business relationships that generate disputes, it was also involved in its share of commercial, industrial, and regulatory litigation, always ready to challenge established legal dogma. It needed well-trained lawyers, especially those with a constitutional background, who would be familiar with the legal issues faced by a multi-jurisdictional company in a federal state, as well as a business that was subject to heavy regulation at virtually all levels. In the CPR, people from Manitoba with legal backgrounds were well regarded and held senior positions. Ian David Sinclair was on his way to the top of the CPR. Following his call to the Manitoba bar in 1941, Sinclair had worked for the Guy Chappel law firm in Winnipeg for just over a year before going to the CPR.1 He started in the law department and did a lot of the company's trial work during the war. There were four lawyers in the Winnipeg section of the company and he was the only one with an interest in constitutional matters, which had led to his contact with Jackett. By February 1960, Sinclair had become vice-president and general counsel as part of a steeply ascending career path.2 He was beginning to see the need to pull out of the day-to-day legal side of the business and inject himself more into the management stream. It was also apparent that the assistant general counsel of the day, Frederick Stewart Burbidge,

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had a broader future with the company, although he would remain in the law department until 1962. Burbidge, grandson of George Wheelock Burbidge, the original judge of the Exchequer Court,3 had joined the CPR law department in Winnipeg after his 1946 call to the Manitoba bar, which gave him a good pedigree for success in the company.4 Part of the background to the changes that were about to occur was that, until the late 19503, senior management of the CPR spent an inordinate amount of time in Ottawa fighting rate cases and advocating the company's positions before royal commissions on transportation and similar exercises in the regulation of the railways. In 1959 Diefenbaker established the 'last' royal commission on transportation under M.A. MacPherson. Although Sinclair, with Burbidge as his 'winger/ had carriage for the company of all matters relating to the commission, an important side effect of the establishment of this commission was that the issues of rates and other regulatory aspects were held in abeyance during the time taken by the commission to report. This respite meant that senior management could come back to Montreal to concentrate on running the company. It also led to some changes in the way the company organized its legal services. Sinclair wanted to strengthen the CPR law department and the company was trying to cut down its reliance on outside counsel for all but special matters. What he needed now, as part of the reorganization and his own change of direction, was someone in whom he had a lot of confidence for senior counsel, litigation, and appeal work. The idea of hiring such an individual was discussed among the three executives who effectively determined how the company was run, Norris Roy Crump, the president, Robert A. Emerson,5 the vice-president, and Sinclair, vicepresident, law and general counsel. They checked out their conclusion with Cyril Carson, now a member of the CPR board of directors following the death of Norman Tilley. Carson also continued to do legal work for the company and his concurrence assured the idea's smooth passage at the board level. The question was to whom an approach should be made. The CPR used to try to get the federal government to intervene in their constitutional cases to support its position and one of Sinclair's jobs was to attempt to persuade the Department of Justice to do so. This had brought him in regular contact with both Varcoe and Jackett. He and Jackett had developed a relationship from their days as juniors on several constitutional cases, Jackett carrying books for Varcoe and Sinclair for Cyril Carson. Sinclair had appeared in the Supreme Court of Canada in Canadian Pacific Railway Company v. Kizlyk,6Canadian Pacific Railway Company v. Attorney General for British Columbia and Attorney General for Canada,7 Canadian Pacific Railway Company v. Attorney General of Saskatchewan et fl/.,8 and Canadian Pacific Railway Company Ltd. and Imperial Oil Ltd. v. Tutra et al.9

132 Chief Justice W.R. Jackett

He was always impressed with Jackett's tremendous grasp of the constitutional case law. Sinclair says that he often used Jackett's chart of the Priv Council decisions when preparing constitutional positions or cases on behalf of the company. Jackett used to say to Sinclair that, if he had any additional thoughts, they would be included in the chart. Jackett, said Sinclair, brought a real level of scholarship to the department.10 So, shark hunting in waters filled with first-class lawyers, Sinclair approached Jackett. He thought that Jackett had a westerner's respect for the CPR. Apart from his personal experience working both with and against the CPR, Sinclair knew that hJackett was aware that the compan was run by an active and litigious group of people." From the perspective of someone outside government, Sinclair saw that the Department of Justice had capable lawyers at the time, all well trained and hard working. It was a good place to find good people at a reasonable cost, since the government did not pay them very well. After Jackett left the company to go to the bench, Sinclair recruited several others from Justice, including Norman A. Chalmers,12 Donald Maxwell, who succeeded Elmer Driedger as deputy minister, and C. Robert O. Munro. Whether Sinclair's approach to Jackett was purely serendipitous or whether he had some basis for thinking that Jackett, after only three years of being deputy minister, might be particularly ready for the plucking, we may never know. In any event, with characteristic subtlety, he said to Jackett, 'How much will it take for you to come to be General Counsel at the CPR?' With characteristic forthrightness, Jackett, who was earning about $20,000 per year, said, '$36,000.' With uncharacteristic lack of argument, Sinclair said, 'O.K., when can you come?' And the deal was done. There was no complicated employment contract. It was a short letter of agreement. Jackett had only two conditions to put to Sinclair: first, that he would do only legal work and no administration, and, second, that he would have no corporate title, such as vice-president; he wanted only to be general counsel. Sinclair agreed and had his own title shortened to vice-president, law when Jackett arrived. Jackett talked over the job offer with Kathleen, and she expressed her support of the idea. Afterwards, they visited Gordon Blair to discuss it further. The job would certainly be a new challenge. Despite his efforts to continue appearing before the bench, the office of deputy minister took him away from the courts more than he wanted and was smothering him with all its demands for proper administration of the department. Jackett had come to realize that being deputy minister was not his long-term goal. He was, says Blair, just 'ripe' for an offer of this nature. Blair knew that he would be joining a bunch of 'hard guys' at the CPR but that none of them would be able to push Jackett around; he was just as tough as

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they were. He is a bit more ambivalent on the matter of whether Jackett's leaving to go to the CPR was part of a longer-term objective of becoming sanitized from government as a prelude to judicial appointment, but, with considerably more political background than Jackett, Blair thought at the time that it would not have been difficult to call him back when a successor was needed for Joe Thorson on the Exchequer Court. Neither Jackett nor Kathleen had any particular compunction about moving to Montreal, although the political temperature in Quebec was starting one of its heating-up cycles. He remembers, not long after moving to Montreal, attending a social function to which he was invited at the RCMP headquarters on Dorchester Boulevard, when one of the early bombs of the Front de liberation du Quebec (FLQ) went off. The Jacketts rented an apartment in the Redpath Apartments on McGregor, now Docteur Penfleld, Avenue, and installed Smokey the cat. Jackett then walked to work at the Windsor Station offices of the CPR. A completely coincidental happenstance that occurred in relation to the move to the CPR was Jackett's decision in March 1960 to apply to become a member of the Quebec bar. In that regard, he had written to the Law Society of Upper Canada on 23 March 1960, to the attention of W. Earle Smith, its secretary, on the letterhead of the Department of Justice and as deputy minister, stating: 'As a substantial part of the work of this Department has to do with the Province of Quebec, I have had it in mind for some years to apply for admission to the Bar of that province. I propose to proceed with that application this year.' The letter went on to request the necessary certificates for that purpose from the Law Society of Upper Canada. Smith forwarded the certificate of good standing dated 24 March 1960, containing all the necessary information, plus a statement of account for two dollars. The application proceeded and Jackett got his call to the Quebec bar on i July 1960. Jackett's application for admission to the Quebec bar proved to have been a good decision, even though he had not had in his mind the possibility of working at CPR when he applied in early 1960. By the time he was formally admitted, however, on i July 1960, he had left the department the previous day. He remembers that he had an oral examination as part of the admission process, which was held at McGill University. Someone on the examining committee asked him a Civil Code question on railways and, with that 'soft' question out of the way, the chairman brought the proceedings to a close. It would have been unthinkable, recalled Alan B. Gold, at the time a member of the English-speaking examining committee, to 'fail' the deputy minister of justice in a transfer examination, but the formalities were respected.13 This was not unlike the oral examination given to another Saskatchewan lawyer, George T. Tamaki/4 a few years

134 Chief Justice W.R. Jackett

later. Tamaki was one of the leading income-tax lawyers in the country and had been recruited by Reward Stikeman from a relatively obscure position as editor of a tax service at Richard De Boo to work in Montreal. When the time came for Tamaki's oral examination for admission to the Quebec Bar, he was fed a tax question, in respect of which he undoubtedly knew more than the entire examining panel. It was an interesting transition - from gamekeeper to poacher - in many respects. Jackett knew his previous and only client, the government of Canada, inside out, but he had little acquaintance with the CPR and its business and legal problems. It is essential for a lawyer to know his or her client, to know its business objectives and strategies, to understand the history of its particular landscape. Unless you know this background, says Jackett, you cannot give good legal advice. Any lawyer knows that a client cannot be relied upon to provide the proper legal characterization of its position. This meant that Jackett had to spend a great deal of time with the senior company executives and pore over the company files to learn about the problems they faced as businessmen and then to fit them into the proper legal context. This involved a process of winning their confidence, so that they would talk freely and he would get all of the facts. The senior executives found him to be a quick study and extremely interested in how the business of the company was carried on. He was perhaps less interested in the purely financial matters than in the operational strategies and how the company functioned as an organization. He had no interest in one of the principal sports of corporate life, the internal jockeying for position. W.J.B. Grierson, now retired from the Supreme Court Library, remembers running into Jackett, probably when he was in Ottawa to argue one of the CPR cases that made it to the Supreme Court while he was at the company, and asking Jackett some general question about how things were going, to which Jackett replied, 'I am not interested in other men's careers/ Not one for idle chit-chat at best, he had tough cases before him and was particularly abrupt. Jackett attended one board meeting, to be introduced to the directors, but he did not otherwise become involved at that level. He found that he was needed by different company officers for different purposes. Crump used to visit with Jackett almost on a personal basis. Crump, he thought, was better than Sinclair at knowing what others were thinking and was quite a wily character. Despite having worked his way from labourer up to the presidency of the company, Crump was subtle in many ways and was often underestimated by those who dealt with him. Sinclair, on the other hand, was like a bull in a China shop and had nowhere near Crump's facility for dealing with people. Sinclair had only one direction: forward. He would spend a whole day arguing a point.

Interlude: The CPR Years 135

During the course of one interminable negotiation, Jackett passed Sinclair a note in which he asked him if he realized that he had been arguing for two hours over something the value of which was only $5,000. Sinclair retorted that, this was not so, then realized it was, and dropped it. His nature was that, if he saw a good argument, he simply made it. So Jackett saw that he was not there just to give legal advice. Despite the conditions under which Sinclair had hired Jackett, it was clear that Sinclair wanted him to become more active in the management levels of the company. He was constantly having him come to meetings in which business, rather than legal, issues were being discussed. An interesting example of the non-legal and policy work that Sinclair had him do is found in one of the memoranda prepared by Jackett, still in the CPR files, dated 17 December 1962, when Sinclair had asked him to prepare some thoughts on the problem the company was experiencing with the promotion of French-speaking Canadians. It was an issue that affected all national and international companies operating in Canada and was becoming all the more acute as the Quiet Revolution gathered force in Quebec. Earlier that year, speaking at McGill's spring convocation, the Quebec minister of education, Paul Gerin-Lajoie, had served notice that the pace of change in Quebec was about to accelerate when he announced that the church no longer had a place in the educational system of the province. It was not yet clear what that might mean, but companies like the CPR had to anticipate what the effects could be on their businesses. With Jackett writing to Sinclair, there were two westerners trying to come to grips with a problem they could recognize but that essentially was beyond their ken. From the business perspective, the CPR had to operate in a manner best suited to serve the needs of customers and to make a profit for the benefit of shareholders. It could not afford to alienate either French Canadians or English Canadians. Jackett did not think that there should be a universal rule that all communications with the public should be in both languages or to require that all company officials who deal with the public be bilingual. Where the business was all in English, the employee must be able to speak English, and where it was in French, the employee must be able to speak French. The requirement for bilingual employees would be where there was a substantial volume of business in both languages. Extrapolating this to documents, he preferred that, if feasible, they be printed in a single language appropriate to the usage and only where they were used in a bilingual area (for example, train tickets in Montreal) should they be bilingual. A constant concern was the question of whether French-Canadian employees were being discriminated against in matters of promotion. Quite

136 Chief Justice W.R. Jackett

apart from employee morale, there was the practical business consequence that, if French Canadians thought that Canadian Pacific discriminated against them, it could be expected that they would express their annoyance by turning to competitors who did not appear to discriminate against them. This needed to be addressed by making it clear that the company treated all Canadians on their merits as far as promotions were concerned. The matter of language was completely irrelevant unless one or other or both languages was a qualification for a particular promotion. While the policy, stated generally, was quite clear, it was nevertheless important to recognize that, as a practical matter, French-speaking Canadians had been at a disadvantage in the company. Jacktt thought that this was not a matter of prejudice so much as a natural tendency for persons in positions of responsibility to select persons whose background, qualifications, and abilities they knew, rather than persons about whom they knew nothing. He suggested that this might appear to put some at a disadvantage and that the company should study the situation with the objective of taking any action necessary to ensure that French Canadians were not at a disadvantage. He cautioned against any expression of the policy, in a company where practically all senior positions were held by Canadians of British origin, that no person would be appointed to a senior position just because he was a French Canadian. This could easily be misinterpreted by French Canadians as a statement that what might be regarded as discrimination would continue. What should be done instead was to indicate that the company would be taking active steps for the future to ensure that French Canadians were not put at a disadvantage. Such an expression would indicate that the point of view of the French Canadians was appreciated, but without making any departure from proper principles. The company position was not then attracting any substantial volume of criticism from either French-speaking or English-speaking Canadians and nothing should be done to disturb that. There was little to gain and much to lose by entering the whole field of discussion. The apparent inability of English-speaking Canadians to learn other languages was reflected in the following observation, no doubt based on his own struggle with French: "As far as programmes to induce and assist English speaking Canadians to learn to speak French are concerned, this should be restricted to areas where the Company has some need for them to be able to talk French. Generally speaking our French speaking compatriots have greater natural linguistic ability than we have and it is futile for us to try to compete with them. I do not think it is the Company's function as an employer to try to make its English speaking employees bilingual. Each of us must decide for ourselves. In any event, it is a pretty hopeless task to teach a new language to an adult of British origin/

Interlude: The CPR Years 137

Jackett treated Sinclair as the would-be deputy minister, to whom he was proffering advice, to be accepted or rejected in accordance with company policy or other considerations. Sinclair remembers, with amusement, that Jackett would send him memos in 'draft' form, even though he knew perfectly well that, as far as Jackett was concerned, the memo was completely final. It was, he says, a bit like Jackett's decision to buy a few shares in the company. He asked Sinclair if he thought it would be a good investment, even though Sinclair believes he had already done his own research and had made his decision to invest, so he was merely looking for confirmation of what he had already decided to do. In much the same non-legal manner, Burbidge involved Jackett in rate matters, especially once Burbidge went to the traffic department as assistant vice-president, traffic in 1962. In fact, Burbidge talked with Jackett at great length about his plans for the company as it became clearer that he would become president if his career continued on the path that seemed to be indicated. By 1960 he had become assistant general counsel and was close to the career change into the operations of the company which followed two years later. When Burbidge went to the traffic department in 1962, he and Jackett continued to discuss company matters and he enjoyed the perspective he got from Jackett on the problems they discussed. Jackett often advised him to do things more slowly than Burbidge, as an ambitious young Turk, was wont to do. In the meantime, as assistant general counsel, he says that it was 'super' to work for Jackett. Occasionally, Jackett would say to him, 'Stop sending me your god-damned self-educating memos and tell me your conclusions/ This advice proved to be very useful to him later, when he prepared a major report from the traffic department to Crump, Emerson, and Sinclair: he started with the conclusions. If they wanted then to read more, they could look farther in the report. Burbidge was doing most of the company's tax work when Jackett arrived. There was a case they were working on at the time which raised the issue of the tax treatment of the sale of a branch line to Shell Oil in Alberta. Burbidge had read some House of Lords case which suggested that if the line were to be sold over a period of ten years, with Shell paying $50,000 per year, the amounts received by the CPR would not have to be included in computing income for tax purposes and, furthermore, the company could claim capital-cost allowance on the branch line during the period. They met with Fred Cross, then advising National Revenue, who was unimpressed with their position. Since the genesis of the dispute was during his time at Justice, Jackett said that he could not argue the case, so Burbidge did and managed to achieve the desired result. Jackett simply said that Burbidge had been bloody lucky and that he was taking two skins off the same fox.

138 Chief Justice W.R. Jackett

Jackett's closest legal colleague at the company, who became responsible for all the administrative work of the law department that Jackett eschewed, was James Arthur Wright, the general solicitor of the CPR for many years, including all the time Jackett spent with the CPR. After graduation from Trinity College with a BA in 1928, Wright attended Osgoode Hall and was called to the Ontario bar in 1931. He was in private practice with the firm of Beaton, Bell and Ross from 1931 until 1937, when he heard that the CPR was looking for a junior counsel. The then general counsel of the company, Edward Percy Flintoft, asked Norman Tilley, who was a director of the company and who often appeared as counsel on CPR matters, to give him three or four names. The Beaton firm had also engaged Tilley on occasion as its counsel in cases going to the Supreme Court of Canada and Wright had been the junior who had 'carried the books' on one or two appeals. Wright remembers one of those evenings for which most junior lawyers would consider selling their souls. He was in Ottawa, carrying the books for Beaton and D.L. McCarthy on a case in the Supreme Court.15 They were staying at the Chateau Laurier. Tilley, this time the opposing counsel, called McCarthy to invite them for dinner early one evening. They took a taxi to a country club, because there was no alcohol at the hotel. There, they started with drinks by the fire, had dinner, and retired again to the fireplace for liqueurs, where two of the country's leading counsel reminisced about their war stories at the bar and cases they had argued before the Privy Council. It was, he says, one of the most remarkable evenings of his life. These marginal contacts with Tilley were enough to get his name on the list given to the CPR and Wright started on i April 1937. Wright was in Montreal until 1940 and then went to Vancouver until 1954, following which he was transferred to Toronto as solicitor of the Toronto office and, finally, to Montreal in 1959; he remained there until 1972 when he retired as vice-president, law. He did not know Jackett before he arrived at the company and had not been part of any decision to recruit him. Their offices were almost adjacent, so Wright saw quite a bit of him. Wright says that he learned more law from Jackett than he ever did in law school and thought that Jackett would have been a great teacher. He did not use junior lawyers very much, since he did not need their help. By this time Jackett was able to write well and with great clarity; he did not waste words. He picked things up quickly, no doubt at least in part because he knew what the law was. When Jackett left to go to the bench, he recommended to Sinclair, then a corporate vice-president and member of the executive committee, that Wright get the corporate title of vicepresident, Law. Not everyone, he said, would regard the corporate title with the disdain he did when he made his deal with Sinclair and he thought that a vice-presidency would do wonders for Wright's morale.16

Interlude: The CPR Years 139

While at the CPR, Jackett also applied to the British Columbia bar so that he could argue cases for the company in that province. He wrote the required examinations, which were easy enough, and did not get too much of a rough ride from the oral examiners since he was also well known in British Columbia, particularly to the benchers responsible for transfer admissions. Interestingly enough, once he had retired from the Federal Court and was wondering whether he should renew his membership in the British Columbia bar, it was intimated to him by his next-door neighbour that the bar would make it difficult for him. The British Columbia bar was never much enamoured of an itinerant court in central Canada that resolutely refused to establish a local judge in the province to hear the cases arising there. This would have been the petty revenge wreaked upon the man who had come to personify that court, had he wanted to return to practice in British Columbia. Jackett retained some mandates from the Department of Justice to argue a few cases for the federal government, two of which involved appearances in the Supreme Court of Canada: Rebrin v. Bird and the Minister of Citizenship and Immigration17 and Government of Canada v. Government of Newfoundland.^ He also argued Walsh Advertising Co. Ltd. v. M.N.R.19 in the Exchequer Court. With respect to his CPR responsibilities, Jackett appeared as counsel for the company in several cases, two of which went as far as the Supreme Court of Canada. The first was an increasingly hopeless appeal that had worked its way through the Ontario courts and which got to the Supreme Court of Canada on leave to appeal granted by the Ontario Court of Appeal, Canadian Pacific Railway Company v. Zambri.20 The CPR had purported, in effect, to dismiss some hotel workers at the Royal York Hotel for having gone on strike after the expiration of a collective-labour agreement and the exhaustion of conciliation procedures. Its view, based upon well-established common law principles, was that, to remain within the law, each employee must, before or at the moment of ceasing work (that is, going on strike), terminate his contract of employment. The common law view was that, so long as the contract of employment is in existence, it is the employee's duty to work. Failure to come to work is a breach of contract which rendered any strike illegal. There had been an elaborate ballet in which the company provided an escalating series of notices indicating that the employees' failure to return to work would imply that they had ceased to be employees and, when the employees still refused to report, the company took the view that they had thereby terminated the employment relationship. It was an interesting case and one in which Jackett had been certain that the legal position of the company was sound. It turned on Ontario legislation that had grown out of the wartime regulations, on which Jackett had

140 Chief Justice W.R. Jackett

worked as a young lawyer in the Department of Justice and to which he had paid close attention thereafter. In his mind, the conclusions that his opponents sought to draw from the Ontario Labour Relations Act were not even close to what was intended by the wartime enactments, which he never considered to have altered the common law rules that prevented employees from striking. He won at the magistrate's court level but lost at every appellate level thereafter. One of the lawyers for the other side was David Lewis, whom Jackett respected as someone who was both smart and very good at understanding the social factors that were going to be important in the long run.21 He concentrated on these matters and did not spend all that much time in pure legal research. Lewis knew that Jackett thought the CPR was legally correct and, when the case was coming up for trial, told Jackett that the company would lose and offered to tell him - after the case was over - why. The higher the court, Jackett says, the more the decisions revealed a tendency to come down on the side of the unions and to be based on the public's resentment of the CPR. The company position before the Ontario Court of Appeal (which rejected it) included the submission that the Ontario Labour Relations Act had no further application in the circumstances, since the individuals had already ceased to be employees. Jackett, says Donald Bowman, a spectator at the Court of Appeal during his bar-admission course, made his points and expected that they would be accepted, or at least understood, and did not do much of the ducking, bobbing, and weaving to try to come at things from a different perspective that marks the performance of other, more opportunistic, counsel. Jackett fared no better in the case when it got to the Supreme Court of Canada. That court was prepared to acknowledge that Jackett's argument on the common law position was correct, but it unanimously held that the common law had been overridden by the new statute and the resulting strike was not illegal. The second case to get to the Supreme Court of Canada was Bogoch Seed Company Limited v. Canadian Pacific Railway Company and Canadian National Railways.22 The issue in this case related to the question of whether or not rapeseed was 'grain' for purposes of the Crow's Nest Pass rates which were such an important part of the Canadian agricultural economy. Bogoch, which wanted the benefit of the lower rates, claimed that rapeseed was grain, and the company, which wanted the full rates, maintained that it was not grain. The Board of Transport Commissioners had held, by a majority decision, that at the time the Crow's Nest Pass agreement was signed between the crown and the CPR in 1897, rapeseed was not regarded as 'grain' and, accordingly, it could not now be regarded as grain for purposes of the agreement, even though usage in the grain trade had come to recognize it as grain and there had been an amendment to

Interlude: The CPR Years 141

the legislation in 1961 to make this clear. Bogoch nevertheless maintained that it was entitled to the lower rates even prior to the time of the 1961 amendment. There was some internal division of opinion within the CPR law department on the issue, but Jackett's presence and reputation were so dominant that no one was prepared to challenge his view of the matter. His memos on the subject indicated a rather patrician approach. One of them was a simple notation: 'What is the problem, given previous memo by writer?' The proof of the pudding was that the Supreme Court of Canada acknowledged that Jackett's submission on the matter was correct. Interpretation of the statute underlying the Crow's Nest Pass agreement was not to be governed by the usual principles applicable to constituent or organic statutes, which are given the construction most beneficial to the widest amplitude of their powers. These principles should not be applied to the Crow's Nest Pass Act because its purpose was entirely different. Its purpose was to enable the agreement to be made and that agreement reduced the existing rates on grain and flour. The parties to the agreement had contemplated a reduction only on what was grain and flour at the time. Many of the CPR 's legal problems were the usual matters facing any regulated business, such as the maximum rates that could be charged for freight and passenger traffic and the right to abandon uneconomic lines. Both problems also affected the CNR, which always considered that the CPR had a better deal at the hands of government than it was able to achieve. The two competitors nevertheless cooperated in the drafting of proposed legislation affecting the industry and in submissions to the regulatory authorities. They worked very closely together after the MacPherson commission delivered its report. Jackett and J.W.G. Macdougall, general solicitor at CN, collaborated in the preparation of a joint memorandum to be signed by their respective presidents, Crump and Donald Gordon, in November 1963 to George Mcllraith, the minister of transport, regarding submissions on proposed federal legislation that appeared to derogate from the recommendations made by the royal commission.23 Jackett advised the company on such matters as u.s. claims against Canadian carriers and the extraterritorial effect of u.s. legislation as it might bear, or purport to bear, on the CPR as well as the implications arising out of the Kellock commission24 and the u.s. decisions on the matter of phasing-out railway firemen. It was this that enabled him, in retrospect, to laugh at the possibility that he might have accepted the offer of employment as a fireman on the railway in the late 19205, when firemen were among the best-paid of the railway employees, rather than going to university. Another of the areas in which the CPR was active was trucking, which was subject to a variety of provincial, as well as federal, regulations,

142 Chief Justice W.R. Jackett

and he was involved for a couple of years at the Ontario Highway Transport Board as the company wrestled with the regulatory climate in that province. It was a fascinating experience to go through the company files to dig out and reconcile the business and legislative background to the many and complex issues. Jackett appeared for the company before the Conciliation Board established in connection with the 1962 non-operators negotiations (involving workers other than the traditional 'railroaders/ such as engineers, conductors and the like). This was another issue that affected all the railways and so there was a high degree of cooperation between them on the matter. Pierre Taschereau represented the CNR and it was agreed from the outset of the formal hearings that, unless the board was otherwise advised, the CPR adopted any of the evidence and submissions put by the CNR, the CNR adopted any of the evidence and submissions put by the CPR, and the other railways adopted any of the evidence put by the CNR and the CPR. The board was not disposed to get into lengthy proceedings and so advised the parties, which led Jackett to commence the case on behalf of the railways as follows: 'I had considered, by way of opening, outlining at this stage the position that the Railways take in relation to the various demands or requests made by the Unions and in relation to some of the contentions in their Brief which assume concessions or admissions by the Railways, which concessions or admissions we must categorically deny. However, we appreciate the Board's desire to economize time, and I have concluded that it will be sufficient to let the Board learn our position on these various matters in the first instance from the briefs and verbal views that will be put before the Board by the various witnesses.' Jackett then went on to list the witnesses who would be giving evidence. The lead-off hitter was to be Robert A. Emerson, then vicepresident of the CPR, who would set the stage by explaining the position in which the railways found themselves, as far as it was relevant to the demands of the unions. In this respect, Jackett shared Sinclair's opinion that Emerson was an excellent witness and the other railways were delighted to have him speak on their behalf as well. The list also included Robert Bandeen, then chief of development and planning for the CNR, who would later go on to become president of that company.25 Bandeen's role on this occasion was to present the statistical evidence in support of the railways' case regarding the wage demands. Others would address the wage demands generally, the job-freeze demand, supplementary unemployment benefits, contracting out, employee-benefit plans, retraining demands, and the business prospects for 1962 and 1963 as they related to the wage demands. Jackett proceeded to call Emerson and the hearing was under way. One interesting observation was made

Interlude: The CPR Years 143

by Jackett in response to the board's request for a definition of 'a year of service' and which arose out of his experience at the Department of Justice. He noted that, because the chairman had asked them to provide a definition of 'a year of service/ he was, of course, willing to attempt to do so, but with some concern, because as a legislative draftsman he had been accustomed to setting definitions after the substantive scheme had already been established. They were able to devise a definition which was acceptable to both the railways and the unions. The eventual outcome of the proceeding was very good from the employers' perspective on that occasion, but it led to a much tougher bargaining position during the next round of negotiations and there was a strike at that time. By then, however, Jackett had moved on to the Exchequer Court. This conciliation proceeding was the first time Jackett had appeared before something other than a court of law or specialized statutory tribunal such as the Tariff Board and he had been somewhat apprehensive about the process and the board, where rules could, in effect, be made up as they went along. It was yet another occasion on which he encountered David Lewis, who, this time, was a member of the Conciliation Board. During his days as deputy minister, Jackett had been approached by Gerald Fauteux, dean of the Faculty of Law at the University of Ottawa, to teach a course in constitutional law.26 Jackett discussed the matter with the minister and they decided that it would, on balance, probably not be appropriate for him to do so. Sooner or later, it would be likely that he might make some comment or express an opinion that one or more of the provinces might find objectionable, coming from a deputy minister of Justice, and there was little to be gained by the federal government from any such imagined provocation. There was nothing to prevent him from lecturing at the bar-admission course at Osgoode Hall, since he spoke there on questions of crown liability, which did not generally raise the spectre of constitutional faux pas or entrapment. He gave similar lectures at the McGill Faculty of Law at the behest of F.R. Scott.2? The strictures were somewhat less at the CPR, although it had also to be circumspect as to what its senior people might say on constitutional and other questions, given its position as both litigant and regulated enterprise. However, Jackett was prevailed upon to give a series of lectures in March 1962, at Queen's University Faculty of Law entitled 'Foundations of Canadian Law in History and Theory/ With more time on his hands than he could ever have hoped to find while at the Department of Justice, Jackett had a chance to explore in depth some of the complex and interesting legal questions inherent in the subject matter, and he prepared lectures that few law students would ever receive from a more authoritative

144 Chief Justice W.R. Jackett

source.28 He wrote them out by hand and one of the secretaries in the law department typed them for him. He had been agreeably surprised at the quality of the library in the law department and was able to do much more of the research there than he might have anticipated. So scholarly were his lectures that, with little editing, they were turned into an essay of the same title included in the collection of essays published in honour of Dean F.C. Cronkite in 1968.29 The content of the lectures gives further indication of the level of scholarship Jackett brought to the constitutional field, as well as providing an excellent encapsulation of much of our somewhat complicated legal history.30 Jackett's four years at the CPR could not be described as more than an interlude, a chance to get away from government, to shed a crushing administrative burden, to return to the practice of law and recharge his batteries. Montreal was a change of scene. He got some first-hand experience in the private sector, learned how business decisions were made, what issues were important, and how business organized itself to deal with and influence major national policies and, on occasion, to fight with government. The experience rounded out his legal training and, in the end, made him a better judge than might have been the case had the exposure to business not occurred.31 In retrospect, there cannot be much doubt that someone with Jackett's experience and energy was overqualified for the position that he had at the CPR. Compared with the workload that he had handled in government over the previous two decades, the job, while it produced the occasional problem of interest or importance, was virtual child's play and, over time, might well have become intensely boring to Jackett. Had he not been appointed to the bench, it is not at all unlikely that he would have been snapped up by one of the leading law firms which needed senior counsel and could have provided a constant level of work to challenge someone of his ability. On the horizon, however, was something even more exciting, an appointment that would have important consequences for the administration of justice as it affected the country as a whole.

7

The Exchequer Court of Canada

By order-in-council dated 28 April 1964, Wilbur Roy Jackett was appointed president of the Exchequer Court of Canada. There was an interesting background to this important nomination. Within a month of Jackett's departure for Montreal in July 1960, another resignation from the Department of Justice occurred, and this one would have consequences that Jackett could never have contemplated. Guy Favreau, then an assistant deputy minister, left the department to take up private practice in Montreal. Jackett had been aware of the impending resignation and tried to talk him out of it, but Favreau was adamant. The final determining factor may have been the knowledge that he was not going to succeed Jackett as deputy minister. Fulton also tried, in the roundabout manner of politicians, to keep Favreau in the department by attempting to persuade the senior partner of the firm he had chosen not to hire him. Jackett was present in Fulton's office and heard one side of the telephone conversation. Diefenbaker, it appeared, was concerned about losing a senior francophone officer of the Department of Justice, an assistant deputy minister, lest it reflect badly upon him and the government. Favreau became associated with the large Montreal firm, with the appropriately lengthy name of Howard, Gate, Ogilvy, Bishop, Cope, Porteous and Hansard, now mercifully reduced to Ogilvy Renault. Quebec law firms had such inconvenient names because the Quebec bar regulations of the day prohibited persons who were not active partners in a firm from having their names on a firm letterhead, such as deceased former partners. Given the 'Type-A' mentality of most lawyers, as many partners as possible wanted their own names on the letterhead. The result was such a

146 Chief Justice W.R. Jackett

constantly changing landscape of lengthy firm names that even those in the profession had trouble keeping track of them. The public had virtually no chance whatsoever. In any event, with Jackett as general counsel of the CPR, he and his friend Favreau were now in Montreal. They kept in touch. It would not be long before they both returned to Ottawa. The business of the CPR brought Jackett to Ottawa on a regular basis, as did the Gatineau cottage, which he and Kathleen visited during the summers on every weekend that was not occupied by his travel schedule. When in Ottawa, he made a regular practice of dropping in at the Department of Justice and especially on Don Maxwell, whom he had mentored during his own time in the department and who was by then running the civil-litigation portfolio, the same portfolio that Jackett had managed under Varcoe. In and around their discussions of business and general chitchat, they speculated about the future and Jackett made it clear that some day he would be prepared to accept an appointment to the bench. This is much of the stuff of lawyers' conversations; almost every lawyer speculates from time to time about becoming a judge. Not many are willing to accept the reduction of income, few are suited to the purpose, and even fewer have the opportunity of making the choice. But they talk, nonetheless, as did Jackett and Maxwell. In reality, the conversation may well have been more pointed than mere speculation, since Jackett rarely did anything without either a plan in front of him or, at the very least, an objective. In the interim, Favreau had been wooed and recruited by the Liberal Party of Canada under Lester B. Pearson1 and become a candidate in the 1963 federal general election, when he was elected a Member of Parliament in the Montreal riding of Montreal-Papineau. A man of obvious talent and legal experience, he was named to the Cabinet by Pearson, initially as minister of citizenship and immigration and later minister of justice. Part of an important scene was now set. The stage director was the federal minister of justice, Guy Favreau, who had a primary role in the appointment of superior and county court judges and who had worked closely with Jackett. Each of them liked and respected the other. On the judicial 'radarscope' was an ageing Joseph Thorrarin Thorson, holding down the presidency of the Exchequer Court of Canada. Still offstage, among the leading lawyers in the country, with years of experience before the courts and vast experience in the workings of the courts in general, was Jackett, who had made it known that he would welcome an appointment to the bench. It has seldom been the case in Canada (not that Canada is unique in this respect) that mere talent is sufficient to lead to judicial appointment. If that is perhaps slightly less true today as a result of broader consultation

The Exchequer Court of Canada 147

within the profession and a modified 'application' and screening procedure on the part of prospective judges, there was no similar screening process in place in the early 19603. Appointments to the bench were often nothing more than political rewards for party faithful, or, occasionally, a manner of solving some problem or other, as was the case of Plaxton's appointment several years earlier from the Department of Justice. In all but chief justice appointments, which were made by orders-in-council, it was the minister of justice who usually made the final call, after such political consultations among colleagues as he may have considered necessary to avoid politically inept appointments. Without a political background of some sort and a political shepherd, however, it was rare indeed for someone to be appointed to the bench. Favreau had something special in mind for Jackett. Although the Exchequer Court might not have been generally perceived among lawyers as the most prestigious court available at the time, there were three features about it that commended itself in the circumstances. The first was that, while it was a moderately itinerant court, it was based in Ottawa and Favreau knew Jackett's attachment to his Gatineau cottage, the only real estate that Jackett had ever owned or would own. The second was that there was a chief justiceship about to become available when Thorson, who was now caught, with considerable lack of enthusiasm, by the seventy-five-year retirement rule which became effective in 1961, would retire on 15 March 1964-2 Third, and perhaps most important, this was the court that Jackett himself had identified as the one he would like to serve on. His practice had been mainly in the federal system, dealing with claims against the crown, and he doubted that he would be welcome in any of the provincial superior courts, where he would probably have been regarded as an outsider and a political appointee. Maxwell's principal role in the process within government in early 1964 was to make sure that the minister was aware that the time was right and that Jackett was ready to take the step.3 Favreau had to persuade Pearson and colleagues to whom Pearson gave credence that Jackett was the man for the job. On the merits, there could have been little doubt as to the qualifications of his candidate. There was, however, no political connection, as Jackett had been deliberately apolitical throughout his entire career. Those who knew him well might have guessed at a Conservative tendency, but he had, after all, been appointed deputy minister by a liberal prime minister, Louis St Laurent, and had left government as things were beginning to unravel during the Diefenbaker years. This profile, if not appealingly Liberal, was at least no obstacle. Oddly enough, Favreau had at least as much trouble convincing his Cabinet colleagues that Jackett was sufficiently 'western' to be acceptable for the job (which was a

148 Chief Justice W.R. Jackett

political validation of Jackett's instinct that he would have been seen as an outsider on a provincial court) as he did persuading them of the other merits of his candidate. Another, albeit less important, element of the process occurred within the Exchequer Court itself. It was not a big court and the senior puisne judge of the day was John Doherty Kearney, appointed to the court on i November 1951.4 He was a good man but had terrible trouble in making up his mind, and there was no enthusiasm on the court for the possibility that he might succeed Thorson. Gentle inquiries were directed to him, but these were couched in a way that invited, and were intended to generate, a negative response to the idea. 'You probably would not be interested in all the extra work and stress of becoming president of the court, would you?' The necessary indications were obtained. Presumably, Kearney was self-aware enough to know that he would not have been a happy president of the court. Pearson did not seem to care greatly about who became the court's president, except that he was apparently not in favour of appointing a French Canadian. The stage was now fully set. It must have been a particular pleasure for Favreau to make the call to Jackett at his Montreal office at the CPR, saying that the appointment was available if Jackett wanted it. Favreau clearly had no doubt that Jackett indeed was interested. He was not, therefore, at all surprised by Jackett's decision, even if Jackett himself might have been surprised by the level of the appointment, going directly to the rank of a chief justice. Jackett does not remember the exchanges of phone calls, but once he satisfied himself that Kathleen was prepared to return to Ottawa, it was the proverbial 'nobrainer.' There had not been any discussion between the Driedgers and the Jacketts about the decision to leave the department and go to the CPR. They thought it was something he felt he had to do, to cleanse himself from the department, if he was ever going to be appointed to the bench. It was amusing, in retrospect, that when the judicial appointment came through, Kathleen had told Elsie Driedger about it and Jackett had told Elmer, but neither of the Driedgers had told the other. Each of the Jacketts was very pleased and proud of them for the retention of the respective confidences. Not long after his appointment, Jackett encountered the wife of Sydney John Smith, the speaker of the Senate, who hailed from Fulton's home town of Kamloops, British Columbia. She said aggressively, to his face, how on earth he could possibly have been appointed, since he had no political clout whatsoever. No political clout, perhaps, but a powerful friend and admirer in the court that counted - the Cabinet. Few, if any, Canadian judicial appointments would prove to have been more enlightened. The confirming order-in-council was made the same day as Hugh Francis Gibson, a handsome bachelor from Kingston, Ontario, was appointed

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to the court. Jackett's swearing-in was performed, with a nice touch, by Judge Kearney, the ostensible heir apparent, on 4 May 1964, in the courtroom of the Exchequer Court in the Supreme Court building. It was, at Jackett's request, typically low-key and was attended only by Robert Taschereau, the chief justice of Canada, who came downstairs for the occasion, the members of the court who were in town that day, including Arthur Thurlow, and the registrar of the court, Gabriel Belleau. No others were invited, not even Kathleen. In an interview given to the newspaper reporter covering the event, Jackett, in an uncharacteristic self-revelation, admitted that 'Ever since I left law school, I have wanted to become a judge.' 'I have always enjoyed court work/ he added, 'and I'll be engaged in such work from now on.'5 Anyone who accepts judicial appointment has to take a close look at the financial implications. Judges are not generally well paid in comparison with what they can earn as lawyers. Jackett knew that his salary would be reduced to $25,000 from the $36,000 that he was getting in Montreal,6 but he thought that he would come out about even because of lower prices in Ottawa. Somewhat to his surprise, he found that prices in Ottawa in the intervening years had risen almost to the levels in Montreal, so he incurred a considerably greater financial penalty than he had expected. Sinclair says that he always knew that Jackett had a desire to serve on the bench and thought it came from his long association with the courts while in the Department of Justice. He was, nevertheless, sorry to see him go. He also thinks that Jackett may have wanted to go to the Supreme Court of Canada but never quite made it, although he firmly believes that Jackett was more than equal to the challenge of that court. The possibility was effectively precluded, because, in the first place, he had no particular political clout, and, in the second, the redoubtable Emmett Hall was appointed to that court on 23 November 19627 There would have been no practical possibility of a second 'Saskatchewan' lawyer going as well, even though Jackett's connection with Saskatchewan was rather ephemeral by that time, since he had worked mainly in Ontario for almost all of his professional life. His Saskatchewan roots would certainly have been used against him, in any 'competition' for an opening, by the powerful Ontario bar. For his part, although he could not have been blind to the impending retirement age of Joe Thorson, Jackett thought that he really had no chance for any judicial appointment, whether from within or outside government, and he had more or less given up on the possibility. The subsequent events were a combination of luck and of having worked with Guy Favreau while in Justice. Some time after Jackett left the CPR, Sinclair wanted to know from him who there was at the Department of Justice who might replace him.

150 Chief Justice W.R. Jackett

Jackett suggested Don Maxwell, the deputy minister. He thought that Maxwell had no intention of staying in Justice indefinitely and that he probably wanted to make some money. Maxwell and Sinclair seemed to hit it off. Jackett became something of a go-between in their negotiations. Notwithstanding the good relations between the two principals, they took months to negotiate the contract and kept coming back with all sorts of tiny matters, such as the right to a company parking space in the garage. Jackett reminded Maxwell that his own contract had been a onepage letter. He could not see the advantage of long documents: either you get along or you don't. Sinclair also thought that Don Maxwell wanted, some day, to be appointed to the bench and, even though he and Maxwell ended up on less than amicable terms and Maxwell left the CPR as a result, Sinclair is sure that Maxwell would eventually have been appointed had he not died early. Sinclair did not give up hope of getting Jackett back, even after he had been appointed to the Exchequer Court. About three or four years after he had become a judge, Sinclair tried to persuade him to resign and come back to the CPR Jackett told him 'no' on the phone but allowed himself to be persuaded to go down to Toronto for an evening to have dinner and discuss the matter. The answer was the same and Sinclair did not attempt thereafter to pursue it any farther. PRESIDENT THORSON

The Exchequer Court of Canada had been created in 1875 with a relatively limited jurisdiction in matters relating to the federal government. The jurisdiction was concurrent with that of the provincial courts in some areas, such as revenue statutes and cases in which the government initiated proceedings. The exclusive jurisdiction related to actions against the government or its officers in respect of revenue-related matters. It was a somewhat esoteric court and even its name carried with it some history from the legal tradition of the United Kingdom. In the first days of the court, the judges of the Supreme Court of Canada were also the judges of the Exchequer Court, but in 1887 the first judge, George Wheelock Burbidge, was appointed as an exclusive judge in the court, replacing the former arrangement. Jackett's predecessor as president of the Exchequer Court, and one of the many colourful personalities who dominated the Canadian legal landscape during the early and middle portions of Jackett's career, was Joseph Thorarrin Thorson. His family was one of the many Icelandic families that came to Canada around 1875, settling mainly in Manitoba, following a volcanic eruption in the northern highland which had caused

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major damage in the eastern part of Iceland. After law, Thorson opted for a career in politics, rising in time to the rank of federal minister. He became embroiled, as the minister responsible, in a land transaction which had proven politically difficult for the government. There was nothing of any improper nature in the governmental decision, which had involved expropriation of about twenty prosperous farms for the Gimli, Manitoba, airport. The controversy turned on the amounts paid for the property so expropriated, which some, including the Opposition, with characteristic penchant for triumphs of perception over substance, proclaimed to have been excessive. The matter became a political football and the press was filled with it. By the time the reasonable explanation for the prices paid came forward, it was too late to be of any political use. Thorson, as the minister in the midst of the storm, was appointed president of the Exchequer Court of Canada effective 6 October 1942 by Prime Minister Mackenzie King, who was delighted to be able to dump him from the Cabinet. Thorson was a larger-than-life character, an excellent judge who had utter confidence in his judicial view of any matter that came before him - as well as on many others that did not. Nor was he at all shy about expressing such views, whether of the lawyers before him or of the courts that might dare to disagree with him. He was fond of pointing out the errors of the Supreme Court of Canada, especially when this latter court occasionally and, in his mind, clearly incorrectly, overruled one of his judgments. During motions in his chambers, Thorson would often make specific observations on the stupidity of the Supreme Court, illustrating his view with detailed discussions of particular judgments. This idiosyncracy became so notorious that, over time, the Supreme Court of Canada allowed itself to become sufficiently goaded that it added a paragraph on the matter at the end of its judgment in Woods Manufacturing Company Limited v. The King.8 This paragraph read: "There is this to be added. It is fundamental to the due administration of justice that the authority of decisions be scrupulously respected by all courts upon which they are binding. Without this uniform and consistent adherence the administration of justice becomes disordered, the law becomes uncertain, and the confidence of the public in it undermined. Nothing is more important than that the law as pronounced, including the interpretation by this Court of the decisions of the Judicial Committee, should be accepted and applied as our tradition requires; and even at the risk of the fallibility to which all judges are liable, we must maintain the complete integrity of relationship between the courts. If the rules in question are to be accorded any further examination or review, it must come either from this Court or from the Judicial Committee/ In tax cases, of which Thorson heard many, he was convinced that the Supreme Court of Canada never seemed able to grasp what they were all

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about, with the result that its judgments often bore no relation to real life, a perception that still remains. Thorson tried to build up a body of case law that would set forth the applicable interpretive principles in tax and other matters and to bring a sense of consistency to each field. As Thorson's successor, Jackett would, in his own way, do much the same. Motions in the court were often presented in Thorson's chambers and there could be fifteen or twenty lawyers there, waiting for their motions to be heard and dealt with. Jackett said that each of the Justice lawyers hoped that his would not be the last to be heard, because you were then expected to stay for a while and chat with him. 'Chat' may be something of an overstatement, given Thorson's domineering personality. As often as not, the chat might consist of hearing Thorson's latest complaint about the Supreme Court. Thorson's son, Donald Scarth Thorson, was a lawyer in Justice who had been recruited by Jackett. Partly because of his father's position on the court, where it would have been awkward from the perspective of the Department of Justice for him to appear, he did only a bit of motions work before drifting into the legislative drafting area. He was regarded as quite good at this, although some of his colleagues and many practising lawyers thought that he had a tendency to try to anticipate too many eventualities, which led to drafting that was much more complicated than it need have been. He stayed in Justice long enough to become deputy minister, left in 1977 to become constitutional adviser to Prime Minister Trudeau for a year, and was appointed to the Ontario Court of Appeal on 5 July 1978. The appointment was something that Don Thorson had very much wanted and his father was extremely proud of him. Joe Thorson learned about the appointment on his deathbed, the day he died, when he no longer had strength enough to speak. It was perhaps the last time he smiled before he died. Despite lording it over his colleagues and others, Thorson generated personal loyalty in his immediate staff and this was certainly true of Kay Simms, who became his secretary in 1957 after winning a civil-service competition for the job when his previous secretary retired. She doted on him and was convinced that he was a great man; indeed, she expressed the firm view that the time spent by the author on this book would have been much better devoted to one about Thorson. All the same, administration, whether of his own or of the court's affairs, was not Thorson's strongest suit. On a personal level, he was something of a spendthrift and had absolutely no head for his own finances. He was constantly overdrawing his account, and the bank, although deferential with the president of the court, was constantly writing to him to remind him of the overdraft position. Finally, he delegated Simms to look after his account. One day when he had written a cheque for $50 and she pointed out, with

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the exasperation familiar to all blessed with spouses, that he had only $17 in the account, he said to her, 'Don't look at me like that!' Thorson had a great ability to size up people quickly. He was also obstinate. In one notable instance, the latter quality overruled the former when he and Gerald Fauteux, attending a judicial conference together in Brazil, were held up by a robber. Thorson stubbornly refused to turn over his money. The robber shot him. Many years later, one of the secretaries on the court came running into Alex Cattanach's chambers and cried, 'The President has been shot!' Cattanach leapt to his feet, shocked, and exclaimed, 'My God! Not again!' It was, however, 22 November 1963, a different president and a sadder outcome. Thorson was a determined character in all respects. He once broke his back in a car accident when he was backing out of his driveway and, despite the injury, crawled back to his house to call for an ambulance. Typical of his strength of character, he also agreed, late in life, to undertake a risky back operation to try to repair the damage caused by the accident. Thorson was the ultimate patriarch. He was arrogant with his colleagues as well as with many of the court staff. Thorson had bitterly opposed the appointment of Alex Cattanach to the court. Cattanach had been registrar of companies in the Department of the Registrar General, a forerunner of the present Department of Consumer and Corporate Affairs, and Thorson did not think that this was a suitable background for appointment to his court. Cattanach always thought that Thorson had wanted his own brother-in-law from Manitoba to get the appointment. When Cattanach was appointed to the court by Diefenbaker in 1962 despite his objections, Thorson not only railed about the unsuitability of the appointment all over town but also made sure that Cattanach was constantly made aware that he thought he was unworthy. Thorson threw as many cases at Cattanach as possible, hoping that this might discourage him enough to resign. He also required Cattanach to show him his judgments before they were released and forced him to make finicky changes, at least for a while, before grudgingly admitting, according to Cattanach, that they were acceptable. Thorson had also tried the same tack with Jacques Dumoulin. Dumoulin put a stop to this bullying with a particularly elegant ploy. One day, when Thorson strode into Dumoulin's chambers, demanding changes in one of the judgments Dumoulin had written, Dumoulin reached into his desk drawer, pulled out his patent as a judge, purported, theatrically, to study it in front of Thorson, and then announced, reflectively, that he had studied the patent very carefully and that he did not see Thorson's name anywhere on it. Luc Couture remembered going before Thorson in chambers on a motion in which the issue turned on a provision that said a judge 'shall' do whatever it was that Couture was advocating. Thorson decided that, in

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the circumstances, 'shall' meant 'may' and denied the application. There can certainly be an argument that 'may' really means 'shall' on some occasions,9 but Couture felt strongly enough that 'shall' was imperative in the circumstances of his application that he then went before Judge E.-R. Anger in the latter's chambers and got the order he was seeking. Later the same day, he appeared again in chambers on another matter in front of Thorson, who took out his lower denture, waved it at him, and said, 'Couture, never do this to me again.' Sol Samuels, who started as a lawyer in Justice and eventually became commissioner for federal judicial affairs, once got a file assigned to him by Jackett, in which Natural Resources wanted to do something about someone who was trespassing on crown lands near Sault Sainte Marie and cutting wood. Samuels went to Jackett and said that it appeared to him that what was required in the circumstances was to obtain an injunction against the trespasser, ordering him to cease such activity. There was, however, nothing in the Exchequer Court rules that would have allowed the court to grant an injunction in the circumstances. Jackett said that he should make an attempt to obtain one but that all others who had tried the tactic had failed. Samuels prepared the motion, which Thorson, in chambers, was not disposed to allow, so he went to another judge of the court, who did grant the injunction. When Samuels returned triumphant, Jackett pronounced it a miracle. About an hour later, however, Jackett called him to say that Thorson had 'revoked' the injunction. Samuels was thunderstruck and said that was impossible. How could Thorson purport to do such a thing - to revoke a judgment rendered by a fully competent judge of the court? Jackett said it did not matter: 'When Joe Thorson does it, it is done.' Thorson kept all the important cases for himself, believing that if a case involved an important issue, it was appropriate that the president of the court should decide it. In almost all of his cases he wrote excellent judgments, many of which are still cited today.10 One of the troubling offshoots of his presidential policy, however, was the length of time for which judgment was reserved, often running to two or three years and sometimes even longer. This was not a matter of particular importance to Thorson, who held an unshakeable view that his judgments were worth waiting for and the parties would just have to be patient. He was such a perfectionist in his judgments that he even insisted on writing his own headnotes for the cases he decided. He got so far behind that there had to be a special volume of the Exchequer Court Reports published to deal with important judgments he had rendered but for which he had never got round to editing the headnotes.11 Jackett had some sense as well, perhaps from the example of Thorson, that he should be a leader in creating valuable jurisprudence but not nee-

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essarily the way Thorson did it, by having the president of the court decide all the important cases. Jackett thought that Thorson was wrong in some cases, as a result of looking to the future too much when it was hard enough deciding cases for the present. Still, no judge can help but be aware that he is laying down a trail and that today's decisions will have an impact on other cases. As president, and later as chief justice,12 Jackett felt that he was limited to feeding ideas to his colleagues; he could not force them to accept them or to decide in a certain way. There was no Thorson-like marching into the chambers of other judges to tell them what they must or must not do. There were 'visits' to discuss things in general and the progress on troubling cases or those that seemed to be taking an inordinate amount of time to decide. Jackett deliberately did not choose to sit on every important case, which did much for the morale of the court, although he did at least his share of all types of cases, even those in which he had no particular interest, such as the big set-piece patent cases. On the other hand, Jackett was more than ready to select particular judges for certain types of cases. Some judges were better at specific genres of cases than others or liked to hear cases in a certain field, so, as president of the court, it was easy for Jackett to assign the cases accordingly. He would normally not, he says with a smile, put Cattanach on patent cases. Gibson soon evolved into the principal judge on the court in admiralty matters. Thorson had not put out a great number of judgments for his last couple of years on the bench, since he was working on a long judgment in a patent case that had taken fifty-six days to hear.13 Patent cases before Jackett's time on the court used to occupy inordinate amounts of court time. Bud Estey remembers a case argued by Gordon Henderson which involved a patent for a mop wringer-outer.14 Thorson was in considerable dudgeon because the court had been put out of its premises owing to the length of time taken by the case, which had gone past the scheduled time and run up against other cases set down for the courtroom. In consequence, the court was sitting in an office building. During the trial, the janitor, unaware of the sacrilege of interrupting a Thorson trial, came in to mop the room and was using the very thing that was the subject of the litigation, so Henderson got Thorson off the bench to demonstrate it. It was a subject of much amusement for years - having Joe Thorson, the imperious president of the court, mopping the floor. Thorson had never talked about, nor seems to have considered, Jackett as his successor. He had made it fairly clear that he wanted Roland Michener, a well-known and highly regarded Ontario lawyer, to succeed him and may have made this known to the political authorities. His hints to such effect, assuming that they were confined to the level of mere

156 Chief Justice W.R. Jackett

hints, were not picked up, although Michener, a former speaker of the House of Commons, went on to become a much-respected governor general of Canada.15 Thorson continued to haunt the court after his retirement and became personally involved in a constitutional appeal, challenging the Official Languages Act, that dragged on for some years before being dismissed.16 Whatever his personal foibles and shortage of administrative skills, Thorson was a dominating force on the court for almost a quarter century and was a highly regarded jurist who made important contributions in many areas of Canadian law. TAKING OVER THE COURT

When Jackett had first come to Ottawa in 1939, there were only two judges on the Exchequer Court, the president and one puisne judge. At the time of his appointment, there were still only seven, including Jackett and Gibson, plus a number of district judges in admiralty, who sat in different areas of the country in which the court regularly exercised its admiralty jurisdiction. The seven included Kearney, Jacques Dumoulin, appointed i December 1955, Arthur Louis Thurlow, appointed 29 August 1956, Camilien Noel, appointed 12 March 1962, and Angus Alexander Cattanach, appointed 27 March 1962. Jackett and Gibson rounded out the complement and were sworn in on the same date.17 It was only after he got to the court that Jackett had any trepidation about having been appointed president over the heads of other judges who had been there before him. Outside appointments to such positions were, however, not unknown and in England there was even something of a tradition of appointing outgoing attorneys general as lord chancellor. In Canada, appointments to chief justice were a combination of promotions and outside appointments. On the Exchequer Court, Thorson had come directly from political life. For Jackett, the enormity of becoming president, senior in rank to judges with far more experience than he possessed, dawned on him only after he had been welcomed to the court and had established good relations with the small group already there. He wondered to himself how he had had the nerve to accept such a position. He was, however, by no means a stranger to members of the court. He had been, after all, the deputy minister of justice and had often appeared in the Exchequer Court. Arthur Thurlow remembers him as counsel in a case, in which, he acknowledges wryly in his Maritime manner, Jackett 'led him up the garden path' and he was reversed by the Supreme Court of Canada.18 He thought that Jackett was a 'helluva counsel/ When Jackett was arguing, said Thurlow, 'no one was interrupting/19

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Business was business and Jackett was quite austere in that respect. He displayed no great reservoir of humour in the course of conducting the affairs of the court. Once business was over, he was more relaxed. There was, on the other hand, a distinct lack of formality among the judges and the level of collegiality was quite pronounced. Jackett's approach to problems reflected his philosophy that the idea was to get things done. He was not a contemplative type who would ponder at length before taking whatever action he considered necessary. One of his particular administrative strengths was to give people authority to act. He would explain what was needed for the particular task or role, as often as necessary to be sure the person understood, and he then expected that the job would be properly done. It was a great confidence-builder among the staff, who had the sense that they were respected for what they did and that, instead of assuming they would fail, he expected that they would do the job correctly. Jackett adopted the approach that he would never do anything he could get someone else to do. Thurlow recalls a particular example of delegation, when he became chairman of the Copyright Appeal Board. He thought that Jackett did not want to have anything to do with it, so one day someone told him he was now the new chairman, and that was all there was to it. One of the first things that struck Jackett upon his arrival at the court was the administrative mess that existed. After four years at the CPR, where he had enjoyed the respite from administrative chores, he found a nightmare. Whatever good qualities he had, and there were many, Thorson was not much of an administrator and, on top of his general disorganization, was not even particularly interested in running an efficient court. He seemed to have no idea how to schedule the judges' workloads and had not inculcated any sense of urgency among the judges to get judgments out in a reasonable time. His own example would hardly have been inspiring. In the Bank of Nova Scotia appeal,20 which established the important principle that the salaries of government employees could be seized in the same manner as the salaries of 'ordinary' people, it took him almost five years to render a decision. Under Jackett, there were some 'fireworks' with the court staff, says Thurlow, since the new president would not tolerate anything that was 'not according to Hoyle' and would not put up with the administrative laxness that had prevailed under Thorson. Jackett was horrified to discover the extent of 'reserves' - cases in which decisions had been reserved for a later date - among the judges. Cattanach was, as Thurlow described it, 'loaded to the gills,' Kearney was dreadfully slow, Dumoulin was way behind, Noel was inundated but was a fast worker by the standards of the day, and Thurlow himself had a

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few cases requiring decisions. Jackett's solution to the reserves problem was unique. Thurlow says that they were all put into the 'deep freeze' and Jackett and Gibson took on virtually all of the new cases until the other judges were caught up with their reserves. The shock therapy worked. By the end of the first year Jackett was president, the judges were all up to date and they remained reasonably current thereafter. It was not as if the judges were not working hard, says Thurlow, but the way in which Thorson had them scheduled for cases, often with four-week cases back to back, meant that they never had a chance to sit down and think about their decisions. Thorson would habitually fix a trial date and then simply put a judge's name beside it. Judges, says Thurlow, need time to think, especially on long and complicated cases. The court turned, almost overnight, from being a slow, as opposed to leisurely, court into one that rendered prompt service, both as to hearings for the legal profession and as to judgments for the litigants. Most of this was as a result of how Jackett allocated the work. The stoppages that had been built up were unplugged. Thurlow developed the expression of being in 'a state of grace' when he had no outstanding reserves. There had been a special problem with respect to Cattanach, who laboured under a virtually impossible caseload as a result of Thorson's dislike of him. His morale was low and one of the first things Jackett had to do was to help his fellow Saskatchewan judge get back on top of things. The first summer after his appointment, Jackett retired to the Gatineau cottage with a number of the cases on Cattanach's reserve list. This was fairly simple to do because the evidence and argument were all transcribed and so the full record was easily available.21 The finished products of the summer's work were judgments of Cattanach, to be sure, but many of them had been drafted by Jackett to help him get rid of his backlog.22 Jackett believes that he helped Cattanach to learn to write much better judgments, particularly by getting him to make sure he knew what it was he wanted to say and then to be sure he used the right words to express his ideas. 'Say what you mean and do not use words that say what you do not mean.' Cattanach became a very good judge and was seldom reversed when appeals were taken against his judgments. Jackett always thought that he was intelligent and hard-working, despite not always being in control of his mouth. Cattanach's style of running the courtroom was quite a bit different from that of the normal judge. The judges on the Federal Court of Appeal, reading the transcripts of the proceedings at trial in cases on appeal to them, were constantly faced with riotous exchanges between Cattanach and witnesses or lawyers. In one tax case emanating in Regina but argued in Toronto, Cattanach asked counsel theatrically why the case was

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not being heard on a Friday in Regina so that he could attend the Saskatchewan Roughriders football game the following day. He is reputed to have said, in relation to his decision in Ralph Sazio v. M.N.R.,23 a case that dealt with an income-splitting scheme involving the payment of amounts to the personal holding company of the football coach of the Hamilton Tiger Cats (which company in turn paid part of the fees as a salary to Sazio), that he had decided the case that way because he was a fan of the Tiger Cats and Sazio would have left Hamilton if his tax-planning scheme had not worked. In another case, this time in Regina, he asked counsel if they knew the exact height of the McCallum Hall Building in Regina. Counsel were, understandably, not sure. 'I know/ announced Cattanach, 'and do you know why I know?' Counsel did not. 'Because/ he said, '\ was court martialled for flying over it too low.' In E.R. Squibb & Sons Ltd. v. The Queen,24 Cattanach caused an American witness to wonder whether he was faced with a madman on the bench while he was giving evidence as to the establishment of a Canadian subsidiary, the plaintiff in the income tax appeal. The witness, an executive from the U.S. parent company, had testified that E.R. Squibb and Sons Ltd was the wholly owned subsidiary of E.R. Squibb and Sons Inc. in the United States. Cattanach interrupted this banal recitation of uncontested fact to announce to the witness that he should never have got that name. The witness, unable to understand what on earth Cattanach meant, begged his pardon. Cattanach repeated the observation. The witness looked with desperation to counsel to deliver him from this apparent lunatic, clearly wondering what was happening in this foreign court. Finally, Cattanach explained that when he was registrar of companies in the government, he would not have allowed the incorporation of a company in Canada which had a corporate name so similar to that of the United States parent company. The witness remained distinctly apprehensive until his evidence was completed and he could escape. Jacques Dumoulin was one of the judges with a huge load of reserves when Jackett arrived, some going back between three and five years. Careful not to criticize him, Jackett sat down with him and said, "Look, this is a terrible spot they have put you in. We will have to fix things so that you do not get any more until you have caught up.' The message was clear but properly discreet and the time was well used, since Dumoulin was also fully current within a year. Jackett found him to be extremely well read, possessed of a lot of common sense and a writer of clear judgments. And what was more, Jackett adds with a smile, 'He was usually right/ When the Federal Court was established, Jackett selected Dumoulin, even though he was by then in failing health, as one of the first judges to be assigned to the Appeals Division.

i6o Chief Justice W.R. Jackett

One of the few real powers of a chief justice is to decide who will sit on what cases, or, in cases where there may be a problem with a judge, who will not be assigned to a particular case, even, perhaps, to any cases. You cannot, observes Jackett, force a judge to decide a case, let alone how to decide it. All you can do is try to find out if there is a problem, talk through it, and encourage him to make up his mind. You can keep him off cases to which he may not be well suited. As a final resort, you can keep him from sitting on any cases until he decides those he has already heard. In later years, on the Federal Court, after Camilien Noel had his first stroke and Jackett was running the Trial Division of the Court as well as the Federal Court of Appeal, Jackett refused, much to Frank Collier's annoyance, to let Collier sit on any more cases until he got caught up with his judgments. Collier was an excellent judge from British Columbia, but he was notoriously slow in rendering judgments, virtually at the pace of the 'old' Exchequer Court under Thorson. Jackett's view was that if there was no excuse for not writing your judgments, such as being taken up with court sittings, then you damn well got unblocked in a hurry. If this seems somewhat harsh, it was far preferable to the practices adopted by some chief justices of Canada, who, faced with judges who were unable to decide, would challenge or push them openly in the conferences, embarrassing them in front of their fellow judges. The problem was described by Bud Estey as one that was difficult and delicate. It was a humiliating matter to the judges affected and to the other members of the court who witnessed the behaviour. One case ended in resignation of the member and another, Estey thought, led to the death of the member. In contrast, Jackett's solution to the problem was completely private and non-confrontational, which allowed the particular judges the opportunity to work themselves back onside in their own time. The same peer pressure would have been present, but there was no public loss of face. It was simply a concerned president, and later chief justice, helping them get out from under a workload that, for the moment, had become too great to handle. A NEW ERA IN COURT A D M I N I S T R A T I O N

Thurlow says that there was no one as capable as Jackett in administration. Even much later, when he succeeded Jackett as chief justice of the Federal Court of Canada, Thurlow made only a few very minor changes to Jackett's procedures. Jackett was one of the few persons who came to the court knowing how it worked before he came. Having argued cases in the court, he knew what changes were needed in it, from both a general perspective and the particular perspective of the Department of Justice,

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where much of the crown's litigation was conducted. He did all of the motions work himself, except if he was away hearing appeals, when the others would share it until he got back. Jackett's view was that the extra stipend he received as president was recompense for all the administrative work and he did not like to impose tasks on the other judges that he thought were part of his own responsibilities. Looking back at his years on the court, Jackett reflects that if he had known in advance how much of his time would be taken up by administrative matters, as opposed to deciding cases, which was his real love, he might have preferred to have been a puisne judge. Motion days had their share of interest and terror for counsel. The lawyers from the department of Justice were always quaking in their boots because Jackett, despite his long background with the department, did not do them any favours. He probably expected that lawyers for the crown should be particularly well prepared, as they were when he was running the show at Justice. On the other hand, he was always willing to take time with young counsel on motions to tell them what he had considered in reaching his decisions. He urged them always to consider the constitutionality of the provision involved, for example, in connection with certain sections of the Trade Marks Act, where there were occasionally such issues that affected the ability or jurisdiction of the court to do what was being requested. They should then look at the statute and, finally, the decided cases. There are many war stories about the Jackett era at the Exchequer Court. Ross Carson, who had started practice in the intellectual-property field under the tutelage of Gordon Henderson, remembers Paul Ollivier representing the crown in a case where there was an issue of the custody of certain pictures which were evidence or possible evidence in a pornography matter. The pictures were in the custody of the Department of Justice and the other party wanted there to be an independent custodian. Ollivier was surprised and outraged at the implied suggestion of possible impropriety and took the position that 'these [pictures] are held by [the Department of] Justice, my Lord.' Jackett responded to the argument by saying to him that 'Perhaps not everyone has the same faith in Justice that you do.' On one of Carson's motions, Jackett awarded costs 'in the cause' when rendering his decision and Carson, having succeeded on the motion, thought he should have got costs 'in any event of the cause.' He spoke to the matter accordingly, even though he says he probably should have known that Jackett had made up his mind and that he was wasting his time. Jackett retorted that, if he heard one more word about costs, there would be costs for the other party in any event of the cause. On another, Carson was involved in an expungement case, which was a

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summary matter to be decided on affidavits. Jackett did not want to order a cross-examination on the affidavit. Carson felt he needed one, since the matter might turn on the issue of intention, and fought a long uphill battle against Jackett's resistance. Finally, Jackett asked the other counsel to speak. The opposing counsel said that he had no instructions. Jackett blew up, said the order was granted, and castigated the counsel, saying, 'You let Mr. Carson argue for forty-five minutes' essentially for no reason at all, since he had no instructions to oppose the matter. In these matters as in all matters before him, Jackett was an active intervenor in the discussions with counsel. There was seldom much doubt about what he was thinking on a point being argued before him. Jackett says that you need judges who know how to handle the court or the counsel will take over and run things. He was often impatient with many of the intellectual-property lawyers, who had a tendency to dawdle. The patent lawyers, he says, 'had a reputation for being slow/ Jackett himself remembers the Richardson case, one of the first patent cases he heard after he was appointed, and recalls, with a mixture of humour and mild consternation, that when he put some pressure on Joan Clark, counsel for one of the parties, to pick up the pace, she burst into tears. Thurlow, by contrast, was not nearly as active with his interventions. Carson remembers a technique that Christopher Robinson had developed to deal with Thurlow. He would pause in his argument and look up at a corner of courtroom in the Exchequer Court and simply wait, for fifteen seconds or more, until Thurlow filled the silence and asked a question, which then gave him some idea of what he was thinking. Carson wishes that more of the judges had been like Jackett, who took charge and did not put up with foolishness. As counsel, he says, you had to beware of the Socratic method Jackett employed from the bench. If you kept agreeing with him, you soon found yourself in a hole, so you had to be prepared to fight the premises soon enough to avoid the descent from which there was no escape. You also knew, or suspected, that Jackett would have formed some view of the case beforehand, which forced you to be on your best game. Any suspicion that Jackett never permitted his sense of humour to emerge, particularly in relation to his role as a judge, is dispelled by a delightful exchange which occurred one day between Henderson and Jackett. Carson recalls the occasion, when he and Henderson had just finished lunch at the old Rideau Club. They were coming out of the club and encountered Jackett walking along the sidewalk toward them. 'Good afternoon, Judge/ said Henderson, 'I have just read your last judgment/ Without pausing, Jackett said, "I hope not, Mr. Henderson/ and carried on past them. It took almost no time at all before the legal profession became aware that things had changed on the Exchequer Court. During the first summer

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vacation, Jackett took a look at the rules of the court and by i September 1964 had issued a practice note dealing with the streamlining of matters before the court; in particular, the note defined the issues of fact that were to be decided and forced the admission of documents and other facts to cut down on wasted time in trials. Changes to the rules were made in early November and by the end of December the profession was advised that it was a waste of time for judges to copy down case names and citations during oral argument, so the profession was instructed to provide the court with the names and citations of cases upon which it was intended to rely.25 Thurlow recounts that changes in the rules were drafted by Jackett, who circulated them for comment among the members of the court. They almost invariably agreed with the drafts. Thurlow suspects that many of the judges did not pay much attention to the drafts, relying instead on Jackett's expertise or, perhaps, resigning themselves to the fact that the drafts would become the rules because they came from Jackett. The court used to do a western circuit, by train, twice a year. When the train got to Calgary or Victoria, for example, the whole first day of the sittings was spent fixing the order in which the cases would be heard. Since every one of the lawyers might have to proceed on the first day, they all had to have all their witnesses on hand, which led to great inconvenience and expense. The solution, once Jackett came to the court, was simple: he started fixing the dates from Ottawa, so as to save the wasted time of lawyers and witnesses. Jackett claims that he was undoubtedly not the first person to think of the problem, but that it took someone who could look at the matter from the perspective of litigants as well as that of the judges to bring about such a simple and obviously needed change to the system. The principal shaking-up was not in relation to the judges themselves, whom Jackett found to be honest and reliable. It rather involved service to the bar and the public. He had seen at once that something would have to be done in this area. A particular element of service to the public was to make the court accessible to everyone throughout Canada. There was a perception that the Exchequer court was an Ottawa court and Jackett was determined to change this view. By 1970, he was convinced enough that the court had made the necessary effort that he was prepared to act to demonstrate the new reality In The Queen v. Mackinnon,26 he dealt with the question of costs in connection with a motion that was brought in Ottawa and probably should have been brought in Halifax where the defendant was located: In the circumstances, I am of opinion that the order as to the cost of this motion should be designed to compensate the defendant, at least in part, for the extra cost incurred as a result of being required to meet in Ottawa, rather than in Halifax, a morion that not only she answer certain questions, that she should have

164 Chief Justice W.R. Jackett answered, but that she attend at her own expense in Ottawa to answer them, when there was no possible justification that she be asked to come to Ottawa for that purpose. Such a motion is bound to bolster the impression, that is too much prevalent, that this court is an 'Ottawa Court.' There is no justification in statutory law for this erroneous view, and the judges have been endeavoring to ensure that the court operate, as it is supposed to do, throughout all of Canada and in such a way as to bring equal good service to litigants no matter where they are. If it is going to succeed in this effort, it must have the cooperation of the Bar.

He awarded costs against the Crown. Jackett thought that meetings of the court were a waste of time. He had held some during his first year, which merely confirmed this predisposition. According to Jackett, a meeting of more than two people is too big a gathering unless somebody has brought along something they can all study together. He remembers a meeting, which lasted for three hours half a day of judicial time - during which the judges were all upset because the judicial robes they wore were very much like those worn by Queen's Counsel in Quebec and that when they were in the elevators in the courthouse, no one could tell they were judges. At the end of this marathon, Jackett told two of them to go ahead and solve the problem, which led to the gold trim which was adopted and which is still used in the Federal Court Trial Division.27 After that, when he wanted to get something done, he would visit with the judges one by one and develop a consensus, which he would then follow-up with a memorandum circulated to the members of the court. The one-on-one technique became a standard feature of Jackett's administration of the court and one that would continue through his days on the Federal Court. Most of his working day, after dealing with motions and other administrative details, was spent 'visiting' with the other judges to discuss their problems, talk about cases, and generally encourage them to be up to date in their work. He tried to be sure that he 'visited' the judges at least once a week; indeed, he spent a good deal of the working week with them, doing only part of his own writing at the big long table he installed in his office to hold the books he needed for research. The judges felt the same sense of accessibility with him and were constantly stopping by to chat about what was going on in their lives and work. You did not have to make an appointment to meet with Jackett. In his administration of the court, Thorson had built up or allowed a series of customs to develop which Jackett did not think proper. There was a very 'chummy' relationship with senior counsel. It was understood, for example, that no motions involving Harold Fox would be brought on

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during periods when he was out of town. Astonishingly enough, Fox approached Jackett after his appointment to advise him that such a practice existed and Jackett said he was sorry, but that simply was not acceptable. Senior lawyers would often ask for adjournments of the court so they could make or take telephone calls, which often left the presiding judge waiting in his chambers for the lawyers to finish their other business so he could be called back into court to carry on with the trial. On an occasion in Regina, after speaking to a group of lawyers, he had a drink with several of them and they told him of the practice of some of the senior members of the bar phoning the judges directly and making arrangements regarding the scheduling of cases. They apparently thought nothing of the perceived impropriety of speaking about cases with a judge in his chambers without the lawyer for the other party being present. Jackett felt that you cannot run a court properly if the senior lawyers are allowed to get special treatment.28 In open court one day, Gordon Henderson asked if, following the case, he could speak with Jackett on a matter related to the Canadian Bar Association. Jackett agreed, but he wanted his executive assistant present so there would be a witness to observe or confirm that nothing improper had been discussed. A change that Jackett instituted, following a conversation one day with John Robinette, was not to let the members of the bar know in advance what judge would be sitting on the case, an administrative improvement that seemed obvious once he thought about it. This is a practice still followed in both divisions of the Federal Court, even to the point that, moments before the court is about to commence, many court officials will not tell the lawyers, gowned and ready to go, who it is that will appear in two or three minutes. Prior to Jackett, dealings with the Exchequer Court had to be handled through Ottawa agents. This changed shortly after Jackett arrived. He made arrangements for local registries to be opened in the provincial capitals so that lawyers in those provinces who wanted to commence actions against the federal crown could do so without the expense of engaging the Ottawa agents. He arranged to hire administrative assistants at the court, so that lawyers could deal directly with the court but without involving the individual judges. Hearing dates could be organized with these assistants. Jackett himself kept track of what the judges were doing so as not to fall into the same practice as Thorson of assigning cases in a manner that created the bottleneck of reserves that he found when he arrived. Eventually, he got a sheet of paper with all the judges' names on it and where they were going to be over the next few weeks and carried it around with him in the pocket of his waistcoat. In the administration of the court, he liked to have people around him who were efficient and

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who shared his vision of rendering service to litigants. If you did not keep your mind on your job, you soon ran afoul of Jackett, a most uncomfortable state of ungrace. Jackett's firm belief was that the rules of procedure should be worked out in consultation with the court and with the bar. Some rules could be made, in effect, by the president, while others needed to be agreed to by the members of the court before implementing them. Where this was a factor, Jackett would, in keeping with his custom, make his rounds until he got sufficient consensus and would then produce a memorandum for circulation. There were seldom any comments and the procedure would then become part of the rules. With the bar, he was constantly circulating drafts of proposed rules for comment and suggestion and, whenever he spoke at meetings of the bar or sections of the bar that had business in the court, he was at pains to make it clear that he was open to any suggestions for improving the quality of service provided by the court.29 A mark of Jackett's presidency of the court was that he was constantly giving directions to the profession on how cases should be pleaded, evidence presented, and issues narrowed. These directions might take the form of memoranda, speeches, or passages in his judgments. One example can be found in Benaby Realties Ltd. (No. 2) v. M.N.R.,30 in which he criticized counsel for having failed to follow up their agreement on a particular matter in writing and commented adversely on counsel who got themselves into a position in which they were both testifying and arguing. Jackett remembers one occasion when Harold Fox appeared in a case and, in the course of proceedings, Jackett ruled against Fox on an objection he had made. Fox made a sotto voce observation, which everyone in the courtroom, including Jackett, heard, about this ruling exhibiting favouritism. Jackett, pretending he had not heard, asked Fox if he would repeat his observation so that he, Jackett, could hear it. Fox was dreadfully embarrassed and tried to say that it had been nothing at all, but Jackett insisted. He said that Fox had made a remark that everyone in the courtroom had apparently heard, and that he was to stand up and repeat it for the benefit of the court. Fox had no choice but to comply. Jackett believed that either he would run the court or he would be at the mercy of senior counsel. In this respect, he also thinks that one physical attribute that served him well in controlling the courtroom was his ability to increase the volume of his voice beyond normal. There was, however, no personal animosity involved in the Fox incident and it was not long thereafter that Jackett wrote the foreword for the third edition of Fox's textbook,31 which was published after Fox's death. He thought it was a good textbook: for one who was in the course of preparing a brief on a particular point of law, it helpfully provided refer-

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ences to the statute and the applicable cases, rather than expounding on what the law might be in a perfect world or what changes should be made to the law: 'In my view, to be a textbook in the common law tradition, a book must expose the subject matter in an orderly and understandable way and it must, at the same time, provide references to all relevant authorities in a convenient manner. The Canadian Law of Trade Marks and Unfair Competition discharges both these functions. A student or a lawyer who is not familiar with this branch of the law may use this book to obtain a general knowledge of the overall principles involved and to learn how these principles have been applied. A practitioner in the field may use it as a digest of the judicial decisions on the subject.'32 In Jackett terms, the brief foreword was quite laudatory and was a tribute to Fox as a member of the intellectual-property bar. Jackett's views on certain tendencies of academics had been telegraphed on an earlier occasion, when he was still assistant deputy minister of justice. He was asked by the Canadian Bar Review to review a book written by H. Street, Governmental Liability: A Comparative Study, and part of his observation included the following statement: The book does not appear to have been intended as a lawyer's text book and should not be judged by the standards to be applied to such a book. It is, rather, an excellent discussion of the present law relating to certain branches of the subject as a background for a statement of the author's views as to the adequacy of the present law. These views are to be found in the various sections entitled 'Conclusion' and in the final chapter, also entitled 'Conclusion.' The conclusions and the comparisons of different systems of law are of interest to the legislator considering possible changes in the law. The conclusions are, however, disappointing in that the author does not, generally speaking, put forward the arguments for and against the changes that he advocates. Although the penultimate paragraph of the book does indicate that 'surveys' of the basic facts are lacking, the conclusions frequently are put forward as though they were too obvious to require further consideration.33

Jackett was extremely careful not to get too close to members of the bar, though he kept his friends from the time prior to his appointment. One could never be certain, he suspected, whether the lawyers who might want to be friendly were making the effort in the hope of getting some edge. In some respects, however, you have to be careful as a judge that, where friends or acquaintances are involved, you do not lean too far the other way in an effort not to favour them. It was an attitude of 'distance' that he maintained throughout his career on the bench, even with members of the bar who were genuine friends. Bud Estey recalls an incident

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when he had appeared in Montreal and had to get back to Ottawa in a hurry. Knowing that Jackett had come down from Ottawa by car, he went to Jackett's chambers, having given notice to the other counsel, all from Toronto, that he was doing so to try to get a ride with Jackett. Jackett turned him down 'flat' on the basis that it would be unseemly to have one of the counsel travel back to Ottawa with him. Describing the incident later, Estey said that, when Jackett had said he could not be seen to be riding with one of the counsel in the case, Estey offered that perhaps it would be all right if the other counsel raised no objection. Absolutely not, Jackett had said, counsel would be afraid to say 'no' in case he got mad. What about both counsel riding back with him, then? No, said Jackett, he did not want to ride with a bunch of lawyers. DECIDING CASES

It did not take long for the court to become 'Jackett's Court.' While the shadow of Thorson remained for a time, partly as a result of Thorson's habit of haunting the court and prowling the corridors, Jackett's grasp of how the court should be run, his determination to provide service to the profession and the public, and his own high-quality work soon put his stamp on the court. After he had been on the court for a while, and especially once the backlog was cleared up, Jackett came to the conclusion that the judges did not have enough to do. Thurlow says that Jackett had both an enormous capacity for work and the ability to be decisive. He worked very quickly and wrote judgments quickly, and he was very clear-headed. Jackett, says Thurlow, was a 'hound for work/ He surprised everyone with the speed of his work. They were astounded that he could hear a tax appeal and pronounce judgment the next day - sometimes sooner. It was not at all unusual for Jackett to pronounce judgment, even on complicated matters, immediately following the conclusion of argument.34 Many considered Jackett to be a workaholic. Thurlow says not so: if the expression means did he work all the time, then 'yes/ but, if it means too much, in the real alcoholic sense, so that it becomes a problem for family and co-workers, then, definitely not. Jackett was always considerate of other people. He simply did not waste any time and had incredible focus. The others also worked hard, but without the same results. There was no excess verbiage or padding in his judgments. Camilien Noel, says his son Marc, recently appointed to the Federal Court of Appeal from the Trial Division of the Federal Court, of which his father was once associate chief justice, always had tremendous respect for Jackett's legal ability. In fact, Noel's reaction to Jackett's approach and the certainty of his conclusion often bordered on amazement.

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They all noted at once Jackett's penchant of including footnotes for any extra material, which he says he did to avoid interrupting the flow of his judgments or to signal a particular train of thought.35 The use of footnotes became a particular trademark of a Jackett judgment. These were points, he says, that were not in the main line of reasoning leading to the actual decision, but he was concerned that someone reading the case might think the decision was wrong because a certain point had not been raised or considered. In some respects they provided an answer to a possible appeal, should someone wonder whether or not a particular issue had been considered. Putting all this extra material in the body of the judgment proper, he thought, might confuse the reader.36 His belief that having footnotes would not interrupt the 'flow' was, of course, completely wrong. Anyone reading one of his judgments would automatically stop to see what was in the footnotes as they occurred. They were comments by Wilbur Jackett and were always worth reading. It is only a fiction, says Jackett, that judges are trying to interpret the intention of Parliament, or its members. What they are trying to do is interpret the language that has been used in the statute. With a certain amount of practical background and acquired cynicism in such matters from his Department of Justice days, he says that, with reference to the parliamentary debates in Hansard, in the House of Commons or in the Senate, not much of substance is really done by the committees. In the House, the members are speaking for the apprehended effect upon their constituents; in the Senate, they are doing so from the perspective of the effect upon their clients. Asked whether he was a 'black letter' judge, he responds, first of all, by asking what that means. If the law is clear, it is not up to any court to move it away from what it is. If there is an ambiguity or a blank, then the job of the judge is to figure out what fits in best with the basic objective of the law and the general context. Jackett says that he never set out to be a reformer. Judges should not try to change the law for the 'better' - this has always appeared to him to be simply an exercise by some judges to make names for themselves. In rendering judgment, Jackett considered that, if one interpretation leads to a stupid result, a judge should say to himself, perhaps reflecting his training with Bert Yule many years earlier, 'There must be something I am missing/ and take another look. He remembers an intellectual discussion which he had with Noel, a civil law graduate, in connection with common law lawyers. Noel complained that the common law lawyers said they were bound by previous decisions but that, whenever they disagreed with a particular decision, they simply distinguished it, even where the facts appeared to be the same or analogous. Jackett acknowledges the point but says that careful examination of the facts may well

170 Chief Justice W.R. Jackett show differences. If you are really stuck with a precedent, you can make it clear that, were you the final court of appeal, you would not follow it but that there are not enough factual differences to enable you to distinguish it. An example of this approach can be found in a patent case on which Jackett sat shortly after the Federal Court was established, American Cyanamid37: However, possibly because of my common law background, I take something out of the judgment in the Spun Rock case that, it is clear, was not found there by my brother Noel. As I read those judgments, they contain important declarations that I think I should regard as authoritative even though I cannot see a logical basis for them ... I have been tempted by the view there is no intention on the part of these judges to express any opinion except with reference to the facts before me and also by the view which has been suggested that what they really had in mind when they said 'licensee' was an exclusive licensee. I cannot, however, think that either Lord Simmons or Davis J., with their respective backgrounds in the common law would have used the very familiar concept of 'license' to mean only some very narrow class license without saying so. It is certainly not, says Jackett, for a trial judge to 'monkey' with the law; that should, he observes with some irony, be left to the Supreme Court of Canada. He expressed this view, more obliquely, of course, in American Cyanamifc8: When the final Court of Appeal (i.e. the Supreme Court of Canada, or, as it was at that time, the Privy Council) has, very deliberately and explicitly pronounced, in current times, upon a question of 'general importance' concerning the interpretation of a Canadian statute, I do not consider that I, as a judge of a lower court, should take a contrary position because I do not agree with that pronouncement even though I am not, strictly speaking, bound to apply it. In my view, it cannot help but bring the administration of justice into disrepute if lower courts deliberately ignore declarations by the final court of appeal as to the effect of the statutory law. If there is room for reconsideration, that, I should have thought, is the task of the final court. It may be otherwise where passage of time may have made the pronouncement of the final court irrelevant by reasons of changed circumstances or where the obiter dicta relates to the principles of the common law. On the other hand, it is sometimes possible to point the way subtly, but you have to be careful. The Supreme Court of Canada has its own welldeveloped sense of dignity and does not take kindly to being lectured by a mere trial judge. He says that he often wrote judgments in which he expected, and hoped, to be overruled.39

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Jackett considers that speed in rendering judgment is at least as important as being right, the latter being often a very narrow thing in any event. His satisfaction as a judge did not come from having his name before the public and, unlike Thorson, he had no desire for public exposure. Indeed, he did whatever he could to avoid it. Satisfaction came from accomplishing something and from finding a solution to each individual problem that arose. A judge, he believes, should 'do as good a job as possible and let public relations take care of itself/ Jackett says that he used to write judgments in cases while he remembered the argument. He could not write comprehensive notes and, at the same time, pay attention to counsel. Even though as a trial judge, without the benefit of the memoranda that judges have before them in appeals, he made some notes during argument, he still felt that he had to write the case up while he recalled what the notes meant. Court work for him was exacting; the court staff retyped a document one day and got one word wrong, which affected the entire apparent outcome of the case - and got real hell for the error.40 Charlotte Kindle remembers the judgments going through a handwritten draft before she typed them. Jackett's handwriting is not all that easy to read, which he half acknowledges while insisting that his secretaries seemed to have no trouble with it once they became accustomed to it. Jackett's dictation was confined to letters; he did not dictate judgments. After they were typed, he would review them before they went into final form. Whenever he had reserved judgment, Jackett seldom put out a set of reasons without letting Noel or Thurlow have a look at the draft, just to be sure he had not missed something important. In writing judgments, he says, the primary purpose is to dispose of the piece of litigation in a manner that informs the parties why it was so disposed. But you must also recognize that you are writing for lawyers who will come after, since the judgment becomes a statement, in common law theory, of what the law is. Some judgments go much too far, becoming virtual textbooks, in which the courts expound on matters that were not before them at the time. In recent years the Supreme Court of Canada has shown such a tendency. This may well have the effect, in time, of changing the role of obiter dicta from what used to be a serious consideration on a fully argued point which may not have been essential to the particular decision. On the classic theory of obiter dicta, while such expressions did not have the same force of law as the ratio decidendi of the case in which they appeared, it would be rare for a judge of the same or a lower court to disregard them. Where it is by no means certain that a point has been fully argued, even if an opinion has been expressed, the concept must inevitably be weakened.

172 Chief Justice W.R. Jackett CONSTITUTIONAL AND ADMINISTRATIVE CASES

While recognizing that he was regarded as having an excellent reputation for his decisions in tax matters, Jackett does not necessarily accept that this was the primary area of his intellectual interest. Indeed, with his long experience representing the federal crown in constitutional matters and his desire to be sure that servants of the crown exercised their considerable powers in accordance with the law, he exhibited a keen interest in both constitutional and administrative law and was responsible for many of the leading decisions in both branches. The administrative field was one in which there would be enormous change on the horizon, not only from the breadth of the jurisdiction of the Exchequer Court and its successor Federal Court, but also from the advent of the Charter of Rights and Freedoms, which, after Jackett's time on the bench, would expand the scope of judicial review of many forms of government activity which had never before been subjected to rigorous court examination.41 The first constitutional case on which Jackett sat was Porter v. The Queen,*2 which was argued in Sudbury. It involved an attack on the constitutionality of the federal Government Annuities Act, which, it was contended, was beyond the constitutional power of the federal government. A former member of the Sudbury police force had claimed that the statute was unconstitutional and demanded reimbursement of the contributions he had made under the group-annuity contract between the crown and the city of Sudbury. Under the statute, the government of Canada sold small annuities. One feature of the legislation was that, once payments were made for the annuities, the annuitant could not cancel the plan and get the money back, except for the annuity paid upon retirement. Porter wanted his contributions to be refunded. There were several grounds urged in support of the claim, but the only one that caused Jackett any difficulty was the constitutional argument. He decided it to a large degree on the contents of the preamble to the statute, which contained the statutory reason for the 1908 enactment ['... it is in the public interest that habits of thrift be promoted and that the people of Canada be encouraged and aided thereto so that provision may be made for old age/]. Jackett held that this statement was not a colourable attempt to invade provincial jurisdiction. His approach to the constitutional issue was that one had first to look, as the cases required, to the heads of power in The British North America Act, 1867 and determine whether the subject matter was among the classes of subject matter reserved to the Dominion Parliament. He determined that it was not. He then looked to the enumerated heads of jurisdiction reserved to the provincial legislatures under section 92 of the BNA Act and concluded that the subject matter of the statute was not

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there either. Since the subject matter was in neither, then the legislation was constitutionally valid, because section 91 of the BNA Act provided that Dominion legislation was valid if it was not among the classes assigned exclusively to provincial competence under section 92.43 Another early constitutional case that came before him was The Queen v. Murray,44 which he heard in Winnipeg. Involving the question of crown prerogative, the case arose when a servant of the crown (a member of the armed forces), was injured in a car accident. Under Manitoba law, there had been an apportionment of the damages, which would, if the crown prerogative did not apply, have had the effect of reducing the claim against the defendant to 25 per cent of the total damages. The crown was nevertheless claiming the full amount and relied on the traditional common law prerogative that would have prohibited such apportionment and allowed it to claim the full amount. It was a case that a constitutional mind could appreciate, since it involved a careful study of common law principles, the effect of English legislation, the date that English law was imported into what was then the territory, but not the province, of Manitoba, and the effects of many constitutional decisions. The decision is filled with scholarly and historical footnotes and careful dissection of the cases which might or might not be applicable. It also contains two appendices; one identified all the relevant cases, and the other reconciled the result Jackett had reached with a decision of the Privy Council while, at the same time, refusing to follow the result reached by a Manitoba court on the same level as the Exchequer Court. Jackett concluded that when the sovereign in right of Canada relies on the right of tort against a common person, she must, in the absence of some prerogative or statutory rule to the contrary, base herself on the general law governing rights between common persons in the province where the claim arises. The short answer to the question was that Manitoba had enacted a statute which apportioned damages and the sovereign could not have a different basis for her claim. Jackett was the first judge to 'blow the whistle' on cases involving writs of assistance when he decided In re Writs of Assistance.45 These writs were the legal equivalent of search warrants, with muscle. Depending on the language of the particular statute, they authorized the possessor to enter premises (forcefully, if necessary) at all hours of the day or night to seize documents or objects. By today's standards, such writs would be virtually unthinkable and would have no chance of being upheld under the protections granted by the Charter of Rights and Freedoms. They were issued under the authority of several statutes, including the Customs Act, and were required to be issued by the court, sometimes with mandatory language ('shall') and sometimes under less stringent language ('may'),

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to officers of the appropriate department. Extraordinarily, they were valid as long as the person to whom the writ was to be issued remained an employee of the particular department, even if the employee were no longer even remotely connected with the original enforcement activity. Jackett had always been very uncomfortable with this provision and tried to do what he could to have the government take it out of the law. Under the law as it existed when the case came before him, he nevertheless felt compelled, as a judge required to uphold the law, to issue the writ, but, in doing so, he made it quite clear that the powers that were to be exercised by the officers to whom they were issued had to be exercised in accordance with the terms of the statute. In addition, he made it clear that it was not the court that was authorizing the actions described in the writs of assistance, but, rather, the statute itself. He also indicated that, in future, he was going to hear applications for such writs in open court, instead of in chambers, so that people could see what was going on. This caused, says Jackett, a 'great ruckus' with J. Gear McEntyre, then deputy minister of national revenue, who donned his gown and came to court in person to complain that the court should not be interfering with the department's right to say what it needed. Jackett was unmoved and the practice of issuing such writs of assistance, although his judgment drew no public comment at the time, went into considerable decline thereafter. The prospect that writs might draw attention undoubtedly tempered the enthusiasm of the department for making such requests now that Jackett had brought the problem into the open and was leading the court which would decide who heard the applications. Randolph v. The Queen46 contains a good early statement of Jackett's views concerning the right of a subject to be heard when dealing with government agencies. The background to the case was a Post Office decision to suspend deliveries as a result of its belief that there was evidence of mail fraud being conducted from the affected premises. No prior notice had been given to the persons affected by the order and they complained by way of petition of right. Among other protections claimed were those afforded by the Bill of Rights, the drafting of which had been done by Jackett while he was deputy minister. In the end, he did not need to rely on this statute and the 'difficult questions' that might have arisen thereunder and decided the case on the basis of the Post Office Act. He referred to the Privy Council decision in M.N.R. v. Wrights' Canadian Ropes Ltd.,47 a case that he has always considered to contain 'a lot of good law.' It was Jackett's view that, unless Parliament has otherwise provided, a person has a right to be heard and to be given a fair opportunity for correcting or contradicting what is alleged against him before an order is made against him. He considered that right a fundamental rule of British

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justice that must be read into statutes which confer the power to make decisions, whether the power is conferred upon judicial tribunals, administrative agencies, ministers of the crown, or other purely executive authorities. The rule applies to decision-making powers that are of a judicial or quasi-judicial nature, directed primarily to the determination or abrogation of rights by application of a statutory rule to the facts as determined. It does not apply to decisions that are primarily of an executive or administrative or policy nature. Jackett added an interesting sidebar on human nature, which indicated some considerable understanding of government decision making: 'The importance attached to this quite simple right [to be notified of the allegations and of the proposed action to be taken against the person] cannot be exaggerated because an innocent person might be able quite simply to convince the Minister of his innocence and thus avoid the ignominy of having an order made against him and also because, human nature being what it is, it may well be much easier to convince the Minister of the innocence of the person affected before he has made any order than after he has made an order by which he has taken a view against the person affected/48 INCOME-TAX APPEALS

The Exchequer Court and, later, the Federal Court, were the principal courts in which serious tax cases were litigated. There were, of course, appeals available to the Tax Appeal Board, later renamed the Tax Review Board, and, eventually, the Tax Court of Canada, but these were essentially warm-up bodies, designed to deal expeditiously and cheaply with relatively minor cases.49 Appeals from judgments of the board were by way of trial de novo in the Exchequer Court (later, Federal Court Trial Division), which meant starting all over again, so major cases seldom started below the court because of the extra expense involved in having two trials instead of only one. As income-tax rates continued to increase and income tax became a more and more important factor in economic terms, the volume of tax litigation increased dramatically and the number of decisions in the field expanded far beyond what had previously been the case. Given his involvement with the Income Tax Act and related legislation from 1942 until the time he became deputy minister of justice in 1957, it came as no surprise that Jackett almost immediately became the leading judge in this field of law. He was responsible for several landmark cases. He had no compunction about interpreting the Income Tax Act as a businessman would, if the businessman were the subject of the law. Jackett says that he did not think this was particularly novel on his part, but the fact remains that the best decisions in tax law are those that

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demonstrate some understanding of what it is to be in business and the processes by which business decisions are reached. Many judges appear to have been unable to understand what goes into business decisions, with many completely unrealistic judgments the inevitable result. It is an area of the law where a sense of the practical is more important than in most and Jackett imported a sense of business reality that had been sorely lacking before his time. One of the first income-tax cases that Jackett heard was Pichosky v. Minister of National Revenue,50 which was argued for the taxpayer by R. Eugene LaBrie, an Ontario lawyer and author who had taught tax at the Faculty of Law at the University of Toronto. Although the substantive issue was quite narrow and has now been rendered academic by reason of legislative changes, it got off to a rocky start when LaBrie requested that Jackett recuse (disqualify) himself on the basis that he had drafted the Income Tax Act and had given opinions on it during his time at the Department of Justice. LaBrie had a great row of books at the counsel table ready to be used in connection with the motion. This came as a complete surprise to Jackett, who decided that he had better blow away such thoughts quickly or he would be a 'dead duck' as a judge. He said that many attorneys general had been appointed to the bench and he was not going to recuse himself.51 LaBrie persisted and asked whether Jackett would like to give written or more extensive reasons. 'No,' he said, 'these are my reasons.' Jackett thinks, probably incorrectly, that had such a motion been presented today, given a recent spate of judicial navel-gazing about the independence of judges paid by, as the case may be, federal or provincial governments, it might have got a bit more attention. The consequences of such an argument, carried to the extreme, might mean, for example, that tax lawyers would not be eligible for appointment to the Tax Court of Canada, which does seem somewhat absurd. The mere fact, says Jackett, that one might have some preconceived ideas does not necessarily mean that you will bring them to bear when you have an actual case under consideration. As to the substantive aspects of the case itself, Donald Bowman, who argued the case for the crown with Murray Mogan (both of whom are now judges of the Tax Court of Canada), says that it was clear that Jackett had decided what he was going to do on the merits and he rendered judgment after reserving for about an hour. He allowed the taxpayer's appeal. LaBrie ought, no doubt, to have been satisfied with his win-loss record for the day52 In the course of the many income-tax decisions that he would render, Jackett dealt with several important structural concepts in the legislation that went to the heart of the underlying principles in the statute. These

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have, by and large, remained definitive statements of the law and they will likely remain until the constant dike-plugging that marks modern income-tax legislation removes any residual coherence from the Income Tax Act and it becomes little more than a series of stand-alone provisions that cannot be interpreted in the context of a single piece of legislation. Early in his first year on the bench, Jackett decided a case dealing with the meaning of the word "control' in the Income Tax Act as it related to corporations, which remains the leading case in the matter. This was Buckerfield's Limited et al. v. M.N.R.,53 in which he held that there might be many approaches that could be adopted in interpreting the word 'control' in a statute such as the Income Tax Act, such as control by management, where management and the board of directors were different, or control by the board of directors itself. He did not think that either of those approaches was appropriate, however, since the provision contemplated control of one corporation by another, as well as control of a corporation by individuals. He also eliminated the idea of de facto control by one or more shareholders, whether or not they held a majority of the shares. His expression of the applicable principle was that the word contemplates the right of control that rests in ownership of such a number of shares as carries with it the right to a majority of votes in the election of the board of directors. In the same case, argued for the taxpayer by his former opposite number at the Department of National Revenue, Heward Stikeman, then in private practice and very successful as the leading tax lawyer in the country, Jackett also decided that the word 'group,' when used in relation to control by a group, referred to any number of persons 'from two to infinity/ He had been faced with an argument that if the statute had meant 'two' it would have referred to a couple or a pair and that if it had meant 'three' there would have been a reference to a trio. Nor did Jackett accept the argument that, whatever the group might be for purposes of control, the group must actually come together and act together for the purpose of getting the benefit of the low rate of tax that was at issue in the appeal. He refused to cut down the clear words of the statute in such an artificial manner. The following year, in Dworkin Furs (Pembroke) Limited v. M.N.R.,54 he was called upon to decide whether a 50-50 shareholding situation was sufficient to give control. The crown had argued, among other points, that because certain directors were nominated by one of the corporate shareholders and because the 50-50 shareholdings meant they could not be displaced, that shareholder company was in effective control. Jackett held that a director or officer of a company could not, as such, be regarded as an alter ego, nominee, or representative of some other person merely

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because he holds the share that qualifies him for such office as a bare trustee for that person. He expressed doubt that the holding of a veto over the replacement of a particular board of directors constituted control in any of the possible senses in which that word may have been used. Thus, a corporation could not be said to have been controlled by another unless the other could, over the long run, determine the conduct of its affairs. The mere ability to prevent a change in some or all of the directors of the other is not a power of positive control, but a mere veto over change in management. He then reiterated the conclusion he had reached in Buckerfield's Limited. A recurring theme in Jackett's tax judgments was the difference between the actual tax liability resulting from the law, applied to the facts of the taxpayer's conduct, and the administrative process of determining that liability. He considered this difference on many occasions, including in Terra Nova Properties Ltd. v. M.N.R.55 The actual liability is a constant amount which does not change so long as the facts and the substantive law remain unchanged. The assessed amount as varied by judicial decision, which is the amount that the minister and all others concerned are bound to assume is the actual amount of the liability, can change from time to time by virtue of new assessments or judicial decisions. There has often been much confusion among tax practitioners regarding the effect of a reassessment of tax and the effect of such a reassessment upon previously issued assessments or reassessments, as well as on the difference between a reassessment and an additional assessment. Jackett considered this in Abrahams (No. 2) v. M.N.R.,56 in which he held that a valid reassessment displaces the first assessment, which becomes a nullity. This would be different if the second assessment were merely an additional assessment, in which case it would not replace the original assessment but merely supplement it. In the first circumstance, even if an appeal had already been launched against an assessment and the minister were to issue a new reassessment, the proper course for the taxpayer would be to discontinue his appeal, go through the normal process of objecting to the new reassessment, and then, if necessary, appeal from the new reassessment. The taxpayer might, in the appropriate circumstances, be entitled to ask for costs from the minister in respect of the first appeal which had thereby become moot. Jackett sat on many cases that significantly expanded the class or character of business expenditures that could be deducted in the computation of income, moving away from the more rigid classification of such expenditures that prevailed in English jurisprudence and earlier Canadian court considerations of the same type of problem. There are many examples of his approach, of which only a few are noted here. One of the first

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was Algoma Central Railway v. M.N.JR.,57 in which the company sought to deduct the costs of a geological survey of the properties through which its railway line ran, the results of which it proposed to make public in the hope that, if there were mineral deposits in the area, they would be developed and there would be increased railway traffic. Jackett held that the costs were deductible: I should add, however, that in my view, once it is accepted that the expenditures in dispute were made for the purpose of gaining income, on the view, as I understand it, that they were part of a programme for increasing the number of persons who would offer traffic to the appellant's transportation systems, I have great difficulty in distinguishing them in principle from expenditures, made by a businessman whose business is lagging, on a mammoth advertising campaign designed to attract substantial amounts of new custom by some spectacular appeal to the public. Such an advertising campaign is designed to create a dramatic increase in the volume of business. In a very real sense it is designed to benefit the business in an enduring way. According to my understanding of commercial principles, however, advertising expenses paid out while a business is operating, and directed to attracting customers to a business, are current expenses.

An appeal by the crown was dismissed by a unanimous Supreme Court of Canada in a terse judgment which agreed with Jackett's decision.58 He continued to build on this line of thought in Canada Starch Company Limited v. M.N.R.,59 a case that involved the deducibility of a payment of $15,000 by the company to induce a third party from opposing the registration of one of the company's trademarks. The minister had refused to allow the payment as a deduction in computing the company's income, on the view that it was a payment on account of capital. In addition to his knowledge of tax law, Jackett brought to the analysis of the problem an understanding of the history and substantive law relating to trademarks, some of which came from study of the provisions in the course of deciding trademark appeals before the court. While it is true, he reasoned, that existing goodwill can be purchased and, if so, the outlay will necessarily be on account of capital, the only other way that goodwill can be acquired is as a by-product of the process of operating the business. Money, in that respect, is not laid out to create the goodwill or the incidental expression of such goodwill as may be represented in a trademark; goodwill is the result of the ordinary operations of a business, which is, therefore, money laid out on revenue account. Registration of a trademark is merely a statutory device for improving the legal protection for it. Jackett also bridged the gap between the classic analysis of the trader with a simple business and the modern corporate business environment.

i8o Chief Justice W.R. Jackett I have been speaking in relatively simple terms of a trader with a simple operation who buys and sells goods and, for that purpose, adopts some identifying mark. As the facts in this case illustrate, modern business is not conducted in such a simple way. In place of individual traders relying on their individual sagacity and judgment, there are huge corporations for whom each single decision becomes a major operation. Huge sums must be spent on market surveys before a decision can be made as to what product to market or as to what trade mark or trade name to adopt. Industrial designers are employed at great expense to choose a colour and design for a label. Lawyers, accountants and economists find employment in the highly complicated process that has replaced the decisions that an individual would have made 'by the seat of his pants.' Nevertheless, from the point of view of what are current business operations and what are capital transactions, as it seems to me, the distinction follows the same line.

In The Investors Group v. M.N.R.,60 Jackett expressed his view that terms (in this case, 'franchise' and 'concession') should be given the meaning or sense in which they are employed by businessmen 'on this continent/ thus expanding the meaning and also distancing the analysis from some of the more artificial distinctions that might have existed under English law. In this sense, franchises and concessions extended, not only to certain kinds of rights and privileges or monopolies conferred by governmental authority, but also to analogous rights, privileges or authorities created by contract between private parties. He specifically declined to give any all-inclusive definition of the terms, saying that it was sufficient for the purposes of the appeal that the words referred to a right, privilege, or monopoly that enabled the concessionaire or franchise holder to carry on his business. Jackett is reluctant to single out the decisions of which he was particularly proud, but he does recall with some fondness Associated Investors of Canada Limited v. M.N.jR.,61 a case that is replete with nuggets of law and analysis of both English and Canadian jurisprudence. The factual background was simple enough: the company made advances to commission salesmen, whose commissions were deducted from the advances as sales were made. One salesman had advances that far outpaced his sales performance and the company reached the conclusion that it would not recover the full amount of the advances. It wrote down the value of its receivable from the salesman by $25,000. It then sought to deduct the amount as a bad debt. There were meaty tax issues involved in the case, not the least of which was the statutory requirement that, for tax purposes, income must be determined on an annual basis, which involved consideration of timing and the nature of advances of the type made by the taxpayer company. Jackett's reasons for judgment contain

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thirteen separate footnotes, each of which illustrates a point he makes or a consideration that contributes to an understanding of the legal principles involved. His decision was based essentially on his own research and did not rely on the cases brought to his attention by the counsel who had argued the case. More important, however, was the framework by which the decision must be reached. He started from the position that profit from a business, subject to any special directions in the statute, was to be determined in accordance with ordinary commercial principles. The question is ultimately one of law that is to be determined by the court, and it is to be answered having regard to the facts of each particular case, with the weight to be given to any particular circumstance depending upon practical considerations. Because it is a question of law, the evidence of experts is not determinative. This is an early expression of a principle with which the courts have wrestled, mainly in relation to the use of 'generally accepted accounting principles/ and Jackett was quite clear in putting the expert opinion of accountants in perspective and by referring to ordinary 'commercial' principles rather than accounting principles. The courts, including the Supreme Court of Canada, have only recently reached the same conclusion. In terms of ordinary commercial principles, the annual profit of a business is ascertained by setting against the revenues from the business for the year, the expenses incurred in earning such revenues. Was a transaction entered into for the purpose of gaining or producing income from the business? If it was not, then the results cannot be taken into account in computing such profits. Even if it was entered into for purposes of the business, if it was a capital transaction, its results must also be omitted from the calculation of the profits from the business for a particular year. Jackett then asked himself the question of whether the statute dictated any different treatment and went on to conclude that the advances were made in the ordinary course of business, that there was no prohibition against the deduction of the bad debts, and that the bad debt occurred, not when the advance was made to the salesman, but when it was determined that it could not be collected. Until that time there had been merely the exchange of one asset (cash) for another of equal value (the receivable from the salesman), such exchange having no effect on the annual calculation of profit from the business. It is a case still relied on for the proper approach to consideration of such general issues.62 Judges are regularly called upon to deal with taxpayers' versions of what happened or what was intended, often long after the event. In Zvadiuk v. M.N.R.,63 Jackett made some observations from the perspective of a trial judge. He acknowledged that there is no legal rule which

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prevents a taxpayer from coming forward long after the event to say that what he had told the taxation authorities at the time when the information was fresh in his mind (or in the minds of those acting for him) was false or erroneous. It is obvious that there is a considerable burden on someone who endeavours to persuade a court that this is so, particularly when the attempt is based almost exclusively on self-serving evidence uncorroborated by any independent evidence and there is no explanation of the inconsistent statements made when the matters concerned were still current. In the circumstances, Jackett concluded: 'I did not find the appellant's evidence persuasive. He was obviously doing his best to put forward a view of the facts that would support his appeal. His evidence seemed to me to be an example of how a person trying to recall events of the past can persuade himself that he actually remembers facts favourable to himself that did not actually occur. This is not an uncommon phenomenon in the courts and, when it occurs, the person involved has frequently brought himself to the point where he honestly believes what he says/ A similar series of observations was made in Lagace v. M.N.R.,64 a case dealing with a welter of real-estate transactions in which the taxpayers had tried to avoid tax on dispositions by running many of the transactions through companies controlled by them. Where the onus is on a party to prove something within his knowledge or concerning his own business affairs, it is incumbent upon him, Jackett said, either to put forward a reasonably complete and documented story that can be tested in cross-examination or to explain to the court why this is not available. Where only sketchy facts are put forward and the court is asked to infer from those facts what the party did, this must weigh heavily against the party. Where a party has not seen fit to give the whole story, Jackett observed that his conclusion would tend to be that the full story was withheld because it was unfavourable to the party who withheld it. Young lawyers often got unexpected boosts in their confidence and occasionally their careers were assisted when Jackett would comment on good performances to their superiors. Alban Garon, now a judge on the Tax Court of Canada, remembers arguing his third or fourth tax case, Didace Dufresnev. M.N.R.,65 and Jackett had made a point of telling George Ainslie that he had done well in it. The case was a classic example of tax planning, in which a father did not exercise subscription rights to additional shares in a family holding company but the children did, so that his interest in the company was thereby reduced. The question was whether a father had made an indirect payment to or had conferred a benefit on the children. The taxpayers argued that a mere forbearance to subscribe for additional shares was not a 'transfer' of anything from the father to

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the children. Jackett had held that the question could not realistically be answered by an analysis of each of the steps taken without taking account of the ordinary well-known facts of life in the world of affairs. The sequence of events in this case had all the earmarks of a series of transactions arranged in advance by the major shareholder and father, upon professional advice, with a view to watering down his own percentage of interest in the corporation and increasing that of his children. Garon always remembers how kind it was of Jackett to take the trouble to comment on his handling of the case. This was not the only occasion; many other lawyers in Justice had the same experience.66 In W.D. Armstrong & Co. Ltd v. Dep. M.N.R. for Customs and Excise,67 Jackett was ready to compliment counsel for an ingenious argument without, however, accepting it: 'Mr. Robinson deserves great credit for the ingenuity, clarity and forcefulness of his presentation, but I cannot agree that the primary meaning of an ordinary English word as set out in the dictionaries is necessarily its "ordinary meaning" in all circumstances. Frequently, English words have more than one sense sometimes overlapping, sometimes quite different and which of those meanings is its ordinary meaning in a particular statutory provision depends entirely on the context on which it is used/ Susan Hosiery Limited v. M.N.R.68 was a solicitor-client privilege case in which Jackett held that such privilege applied at the discovery stage of legal proceedings to communications between a legal adviser and an accountant used as the client's representative. Jackett started with a summary of what was intended to be protected by the law, which included, on the one hand, all communications, whether written or verbal, of a confidential character between a client and a legal adviser directly related to the seeking, formulating, or giving of legal advice or legal assistance (including the working papers directly related thereto) and, on the other hand, all papers and materials created or obtained specially for the lawyer's 'brief for litigation, whether existing or contemplated. He then reviewed the reasons for the legal rules: In so far as the solicitor-client communications are concerned, the reason for the rule, as I understand it, is that, if a member of the public is to receive the real benefit of legal assistance that the law contemplates that he should, he and his legal adviser must be able to communicate quite freely without the inhibiting influence that would exist if what they said could be used in evidence against him so that bits and pieces of their communications could be taken out of context and used unfairly to his detriment unless their communications were at all times framed so as not only to convey their thoughts to each other but so as not to be capable of being misconstrued by others. The reason for the rule, and the rule itself, extends to

184 Chief Justice W.R. Jackett the communications for the purpose of getting legal advice, to incidental materials that would tend to reveal such communications, and to the legal advice itself. It is immaterial whether they are verbal or in writing. Turning to the 'lawyer's brief rule, the reason for the rule is, obviously, that, under our adversary system of litigation, a lawyer's preparation of his client's case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the court in a manner other than that contemplated when they were prepared. What would aid in determining the truth when presented in the manner contemplated by the solicitor who directed is preparation might well be used to create a distortion of the truth to the prejudice of the client when presented by someone adverse in interest who did not understand what gave rise to its preparation. If lawyers were entitled to dip into each other's briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system.

The decision still remains as one of the principal starting points for examination of solicitor-client cases. EXPROPRIATION

Expropriations by the crown and crown agencies were matters argued before the Exchequer Court. The law, as such, was not particularly complicated and most disputes tended to centre on the amount of compensation that would be appropriate in the circumstances. In National Capital Commission v. Budd et a/.,69 Jackett established principles to determine the value to the owner of expropriated land, including the factors involved in reaching that decision. Such value must not be less than its value for its highest and best use, namely, the theoretical price that could be arrived at between a willing purchaser and a willing vendor bargaining on equal terms at that time. There might well be cases where land has a value to its owner in excess of its market value for its best and highest use, such as where a person uses the land for carrying on a business, in which event the value would be equal to the value of the land and the value of the premises, plus the costs of moving to new premises, the so-called "business disturbance' factor. Jackett also stated firm views on the value of expert testimony in such matters.70 He was quite prepared to go his own way when he did not think such evidence was of particular use to him. Experts might well be able to give opinion evidence as to what the theoretical willing buyers and vendors may have been prepared to accept or pay, but not as to any-

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thing over and above the market value of the land in order to be able to remain in possession of it. This was a matter to be determined by proven facts and submissions by counsel on the basis of such facts. National Capital Commission v. Marcus7* was an expropriation case in which the principles governing the determination of market value were considered. Speaking of experts generally, for determining the weight to be given to their evidence, Jackett said that, while each of the expert witnesses may have reached conclusions as to the market value of the property prior to expropriation, for his own purposes, he would want to examine how the factors considered by each witness entered into the final conclusion as to value and then reach his own conclusion. He never allowed the experts to take the place of his own common-sense appreciation of the facts. PATENT AND T R A D E M A R K C A S E S : INTELLECTUAL PROPERTY

Although some might say that Jackett's greatest contribution in the field of patent and trademark litigation was the shortening of what used to be endless and ruinously expensive cases, he also left his imprint in the substantive area of the law, particularly in his view of when patents ought to be upheld and when they ought to be struck down. There came to be a recognizable 'Jackett' doctrine on such matters, which occasionally found some opposition from Justice Louis-Philippe Pigeon in the Supreme Court of Canada, who viewed himself as the leading thinker in this field.72 Jackett's approach to the matter of patents was first to try to determine whether there was a real invention and then to determine whether the inventor had earned the right to the statutory monopoly by setting out all the relevant details of the invention for the public. In that regard, he was prepared to go behind the grant of the patent by the commissioner of patents. Pigeon, on the other hand, seemed to accept that there was, prima facie, an invention if the commissioner had granted the patent and that what was described in the patent was an invention. Jackett thought that the jurisprudence was slipping away from the underlying basis of the legislation. When Jackett arrived at the court, hearing and deciding these cases was a costly and inefficient process which had been gradually allowed to get out of control, in part because the court had not stepped in to make rules which would force the real issues to be identified and limit the time involved. This was due in part, as well, to the fact that the intellectualproperty bar had allowed the role of expert witnesses to become primordial, even determining, in the proceedings. Jackett had no use for

i86 Chief Justice W.R. Jackett

this inefficiency and set out to change the manner in which such cases proceeded. Bud Estey described Jackett's contribution as follows: In the course of taking over the Exchequer Court, Wilbur reorganized its operations from basement to roof. He dramatically reduced the time spent (or wasted) in patent actions from an average of four to six months to six or seven days.

First of all... he modernized the litigation of patents, and indeed attracted American litigation on patents to his Court because of the expeditiousness with which he handled those cases. It was remarkable, at least to me, to watch this process because I knew he had very little underlying scientific curiosity and did not have an ability to pick up the different branches of science quickly or really to understand what most of them were about. He did learn how to use experts and how to discriminate between the opinions of experts. In fact, he applied his talent as an executive to the analysis of patent evidence just like he did in the administration of the workings of the Department of Justice. He also did the same thing for copyright litigation.

This observation is echoed by Ross Carson, who notes that Jackett brought many changes to the entire litigation process, reducing sixty-day cases to a week, simply as a result of the procedural changes he established. In essence, Jackett forced the lawyers to begin thinking about their cases starting with the statement of claim, instead of at the courtroom door. He was a stickler for pleading the material facts involved in the case and for defining the issues which were in dispute, which in itself significantly reduced the overall time required. One of the simplest methods was to force the parties to exchange documents and expert affidavits in advance of the trial. This often led to settlement and at the very least substantially narrowed the issues to be decided. All the intellectual-property lawyers, says Carson, including the leading practitioners, such as Harold Fox, Christopher Robinson, and Donald Sim, were flying by the seat of their pants in the long cases, which was why the trials lasted so long. They learned the cases from the experts, which led to lengthy and tedious examinations and cross-examinations while the lawyers absorbed what the case was all about. Henderson was no exception to the vagaries of this practice. Initially, he strenuously resisted the changes Jackett made to the rules, possibly because they forced him to think about the cases earlier, but eventually he became a convert and was most supportive of them. The rules Jackett developed were so good that the Ontario Rules were later changed to resemble his. Given the reluctance of the Ontario courts to admit anything good about the Exchequer and later the Federal Court,

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this ranks as praise of the highest order, no matter how obliquely expressed. Imitation is the sincerest form of flattery. Carson, to show the state in which this type of litigation was practised at the time, remembers the example of the Polymer case, which ran in the Ontario courts for 100 days. Harold Fox had started the case and Gordon Henderson raised, at some point, the issue of jurisdiction. The judge decided, in the end, that he did not have jurisdiction, but since he had heard the case he wrote a long decision nonetheless. Jackett sat on a somewhat bizarre, but nevertheless complicated, copyright appeal in Composers, Authors and Publishers Association of Canada Limited v. CTV Television Network, Spencer W. Caldwell and The Bell Telephone Company of Canada^ in which it was never really clear whether there was the slightest basis for a claim by the association in the first place, although it took some considerable technical expertise to figure out exactly what was involved. This was not untypical of the manner in which such cases unfolded in court, at least until the Jackett procedural broom had cleaned up the mess. The action was for copyright infringement of musical works. The association had authorized the broadcast of the copyrighted works by the affiliates of CTV but then took action for copyright infringement against CTV, which used the facilities of Bell Telephone to transmit the signal to its affiliates by micro-wave. The claim was that the micro-wave transmission to the affiliates was an infringement of the copyright. Considerable technical data and explanations were put in evidence. In the end, Jackett decided that there had been no infringement, holding that there was no communication of a musical work until the ultimate listeners' receiving sets reproduced the work as originally performed. The case was interesting in a number of respects, one of which is that Jackett announced in open court that he could hardly be expected to follow all this when he had to have someone dial his phone numbers. This was followed by a conference between all the counsel and Jackett and it was decided that a technical adviser should be engaged to assist Jackett, but they could not agree on an individual. Shortly thereafter, one of the plaintiff's witnesses, a physicist from Toronto, proved to be a good witness and stood up to the toughest cross-examination. Jackett asked the permission of the parties to appoint him as an amicus curia, to sit up on the bench with him and explain the technical matters to him. The parties agreed. Bud Estey, who was acting for CTV, said that Jackett's eventual judgment was a 'technical masterpiece/ Jackett himself was careful to acknowledge the contribution of the expert in his reasons for judgment: All parties agreed before the conclusion of the trial that they had complete confidence in the professional integrity of Mr. Frederick Gall, a consulting engineer in

i88 Chief Justice W.R. Jacket! the field of telecommunication, who gave evidence for the plaintiff, and that, if the Court should decide to make use of his services after the trial, he could be consulted as though he had been appointed under section 40 of the Exchequer Court Act as an assessor to assist the Court in the hearing of the cause. I have consulted Mr. Gall during the course of the preparation of these reasons for judgment and I desire to acknowledge his very real assistance in helping me reach my conclusion. In saying that, I do not wish to be taken as indicating that Mr. Gall shares my views as to the result or as to any particular statement in these reasons. The conclusions are, as they must be, entirely my own.

Union Carbide Canada Limited v. Trans Canada Feeds Limited et a/.,74 was a case in which Jackett established an interesting procedure. He ordered that the trial be split into two parts, the first of which would be to determine whether certain factual situations could be established and the second of which would proceed at a later date, if the facts were established. The judgment runs to more than seventy pages in the official reports, probably the longest reported judgment Jackett ever wrote. There were eight days of trial on the first issue and Jackett gave judgment, astonishingly enough, on the final day of that part of the hearing, which established, if nothing else, that he was working at least as hard as the counsel on the case. He decided that the elements of infringement had been established. The second portion of the trial was to determine if the patent was valid. His reasons gave indications to counsel preparing for the later portion of the trial as to the questions to which they should direct their minds. The patent, pertaining to thermoplastic technology, was eventually held to be invalid owing to a lack of inventive ingenuity and for having claimed too much, namely, for having tried to pretend that the patent, and therefore, the monopolistic protection which it would have afforded, purported to cover more than could be demonstrated as new by the holder. The detailed treatment given to the questions of law and legislative policy provided valuable signposts and checklists for everyone in the patent field, including the vital question of prior knowledge or art, the level of knowledge of the reasonably skilled workman in the specific area of the patent, and, for the litigators, the need to give notice through crossexamination where it was intended that a suggestion be put to the court that the evidence of a witness was not to be believed. He also put the parties on notice that, where the evidence was incomplete, it was impossible to expect a court to reach the right conclusion and the risk to the parties was that the court might well come to a conclusion that may be completely divorced from reality. The court is stuck with the evidence before it and presentation of evidence is uniquely within the control of the parties, not the court.

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Over the years, the reported cases are full of Jackett's efforts to improve the process of litigation in the field and he was not the least bit shy about including in his judgments his views on how matters should be pleaded and what should be contained in the pleadings, often telegraphing what might be the outcome in future for those who were not paying attention to such judicial guidance. In Dow Chemical Co. v. Kayson Plastics & Chemicals Ltd., he identified the essentials of a statement of claim, having observed that actions for damages in such cases had a tendency to become 'Royal Commissions/75 The same year, in Precision Metalsmiths Inc. v. Cercast et al.,76 he had originally disposed of an application to strike out a statement of claim in a patent-infringement application on the day of the hearing, without reasons. A week later, he decided that he should give reasons and referred to his decision in Dow Chemical, while giving the plaintiff a modified second chance to frame the pleadings in a proper manner. In Imperial Oil Limited,77 which involved opposition to a trademark 'S.A/ by Imperial, whose position was that the mark infringed its 'Esso' mark, Jackett made a comment on the French pronunciation of 'S.A/ as somewhat similar to 'Esso/ but, on the basis of his appreciation that the ordinary Canadian motorist would be unlikely to confuse the two, he found that there was no actionable confusion involved. In Philco Corporation v. RCA Victor Corporation,78 he had to consider the question of whether the commissioner of patents had authority to extend certain delays provided in the Patent Act. Part of the difficulty in this case was that the practice of the commissioner to extend delays had been one of long standing. Jackett was prepared to act on his knowledge as a judge of the court and on information communicated to him on the subject by counsel of long experience, but not on the basis of evidence proffered on the subject or of the consequences which might flow from a decision that the delays could not be extended. If evidence were to be admitted as to the meaning of ordinary words in a statute, there would be 'no end to the ability of parties to protract trials when it suits their purposes/79 He decided that the delays established by Parliament could be extended only by Parliament and not by the commissioner of patents. The same would be true, for example, for appeals from the Exchequer Court to the Supreme Court of Canada; once the delay was fixed by the judge, as authorized by the statute, he could not extend it further. In Chateau-Gay Wines Limited v. Le Gouvernement de la Republique frangaise,80 Jackett refused, in delightful language based upon his knowledge of how governments work, to permit a disguised action against the government of France to proceed: In the event that the proceedings are amended so as to be unobjectionable as to form, there should, in my view, be no further attempt at service of them unless it

190 Chief Justice W.R. Jackett is made pursuant to a special order of the Court which, in my view, it is not likely that the Court would be inclined to grant. I should myself be inclined, if the proceedings are so amended, to order that the registrar bring them to the attention of the Attorney General of Canada with the suggestion that the Secretary of State for External Affairs may desire to consider whether they should be brought to the attention of the government of the Republic of France, in some appropriate way, as a matter of courtesy, and an indication that there will a reasonable delay in the carrying on of the proceedings in this Court to provide the government of the Republic of France with an opportunity of deciding whether it desires to take any action with regard thereto.

In Benson & Hedges (Canada) Limited v. St. Regis Tobacco Corporation,81 Jackett disagreed with the registrar of trademarks, but he pointed out that the Supreme Court of Canada had ruled earlier the same year that he should not substitute his opinion in respect of that decision unless there was a wrong principle of law, which he had not found. This appears to be a case where he left the matter open for the Supreme Court of Canada to disagree, which apparently it did in allowing an appeal from the judgment.82 Wilkinson Sword (Canada) Limited v. Juda^ provided Jackett with the opportunity to learn about the Trade Marks Act, on which he spent a good deal of one summer at the Gatineau cottage. The result is a lengthy judgment in which there are thirty-eight footnotes and an appendix. The case is a virtual treatise on the statute, including a review of its purpose and the approach to be taken in interpreting it. The decision includes one of his rare references to a legal textbook, the second edition of Harold Fox's work.84 Efforts to reform the process of patent litigation continued after Jackett was on the Federal Court of Appeal. In Leithiser v. Pengo Hydra-Pull of Canada Ltd.,85 he directed some trenchant remarks at the profession and its traditional method of pleading in such actions. This involved the general statements in pleadings that the invention was 'obvious' and 'did not involve any inventive step/ Jackett served notice that he did not regard such allegations as sufficient and that litigants should thereafter indicate what the previous 'state of the art' was, as a matter of fact, so that the issues regarding it could be reduced, before trial, to whatever aspects were in real dispute between the parties. There was a new broom in place and the new rules were to be applied, even though 'in more leisurely times it was thought fit to leave such questions in the air until they reach the ultimate court of appeal.' He also chided the lawyers about expert affidavits and pointed out that the rule which required them to be filed was designed to effect reductions in the length and expense of trials as well as to assist settlement of disputes: 'It only has the desired result when counsel make a bonafide effort to make it work and do not subcon-

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sciously or otherwise fall back into their old "poker-playing" habits of keeping their best cards up their sleeves until the ultimate appeal unless forced to reveal them earlier. In this case, a reading of the record leaves me with the impression that a large part of the trial was taken up with time involved in requiring experts to give explanations and draw illustrations that could - and should - have been incorporated more usefully and effectively in the affidavits themselves/ This decision caused great concern among patent practitioners and seemed to warn that the previously accepted standards of description, to be required if patents were to be upheld by the courts, would have to be improved. The invention had to be properly described or the patent might fail on that ground alone. This was new ground for the profession and, as such could be expected to inspire resistance to both the message and, in some respects, the messenger. Jackett was quite prepared to innovate in matters of procedure, where the need to base decisions on past practice was less important. In 1968 he challenged members of the intellectual-property bar to think of new approaches to litigation and show a willingness to consider radical changes in the resolution of disputes. It was their duty to re-examine practice and procedure to see if it could be improved and they must be prepared to reappraise the validity of many of the established principles in the context of twentieth-century litigation, as opposed to deciding the relatively simple issues at hand when they were adopted. It is a reflection on the competence of pleaders when pleadings remain in a state throughout discovery that makes it appear as if there is an actual dispute whereas there is merely a failure to work out a statement of undisputed facts. They should consider the merits of the trial phase of the judicial process, which has many disadvantages and imperfections, but Jackett warned that improvement would not be possible until such time as the sentimental attachment was stripped away from the only potentially dramatic step in the judicial process. He even suggested that, for some types of cases, they could adopt a system for supplying affidavits, in advance of trial, that could be used in lieu of verbal testimony. He based this idea on his own experience of listening to witnesses, the vast majority of whom give evidence that is never effectively challenged. The same system is used by several regulatory agencies to shorten their proceedings dramatically. He had set the stage for these suggestions with a general challenge to the bar to consider whether the judicial system as it existed was best serving the needs of society. The mere fact that there was not an obvious state of disorder did not mean that the judicial system was satisfactorily discharging its function of determining disputes. The alternatives of arbitration, boards, and commissions were not as satisfactory for the

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settlement of disputes as a sound and effective judicial system and, to the extent that disputes were referred to such other agencies, there was a failure of the courts to fulfil their function in society. He was also apprehensive of failure in another sense - the ability of society to provide an aggrieved party a remedy that he can afford. That, he regarded, was an absolute failure to provide the services for which the judicial system was set up. One of the responsibilities of the courts was to control delays in fixing dates for trial and the decision of cases after trial. Regarding procedure, the test should be to consider whether the delay and expense it occasions are justified by the role played in achieving the ultimate result. Jackett's own view on the intervention of the courts into the conduct of disputes between litigants is that, where the parties are represented by counsel, it is for them to decide the pace at which the matter will proceed. If they are content, for whatever reason, for the process to drag on, perhaps in the hope or expectation of settlement, the court should not intervene. The court is at the service of litigants; it does not 'own' the litigation or have the right to take over its conduct. If one party wants a case to proceed more quickly than the other, there are means to move it forward. Socalled 'case management' has the courts interfering in that process. The fact that there may be cases that have, with the consent of both parties, not come to trial or hearing is a mere statistic, without significance. Jackett says that what the court can and should contribute is availability of a judge or panel when the parties are ready to proceed and the rendering of judgment as soon as possible after the hearing. THE ADMIRALTY JURISDICTION

Although it was, Jackett felt, part of his duty as a judge to hear his share of admiralty cases, it was perhaps the area of the law that held the least appeal for him and he soon allowed Gibson to become the effective head of the admiralty section of the court. The source of admiralty law was always something of a frustration for Jackett, who found that the farther back you went to try to determine the source of the law, the more it seemed to have come from the 'fairies' and there was nothing tangible at the end of the road. At least with statutory law, you could follow the principles as they developed from a base which was known and available. Notwithstanding his disinclination for the field, in December 1968 Jackett circulated a lengthy memorandum to the judges of the court on a particular point of admiralty law known as Limitation of Liability, a matter through which certain claims could be limited to specified amounts based on the tonnage of the ship in question. It was a detailed examination not only of the concept itself but also the statutory basis for it, which he traced back as far as 1554; it addressed as well the jurisdiction of the

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Canadian courts in admiralty, which required reference to a host of Imperial statutes and Canadian laws as the legislative authority of the Canadian Parliament evolved, and the circumstances in which the defence could be raised and in what manner. It was typical that Jackett, as president of the court, would undertake to do something of this nature to help make sure that the court dealt with the problem from a secure historical and legal perspective. No judge of the court could have been anything but profoundly grateful for having such a memorandum to which reference could be had when faced with an issue of this nature. All of the material needed to deal with any question of procedure and jurisdiction was not only at hand but also organized in a form that could virtually become part of the reasons for judgment if the question arose. In the case of Konin Klijke Nederlandsche Soombootmaatschappij N.V. v. The Queen,86 in the course of a motion to strike certain allegations from a pleading in an admiralty action, Jackett considered the proper rules of pleading 'material' facts as opposed to evidentiary facts. The case had arisen out of Quebec and he inserted an appendix in the judgment indicating what he thought might be the differences between the rules of pleading in Quebec (relevant facts) and the common law (material facts), the differences between the discovery proceedings in Quebec and those in the other provinces, and the differences between pleading the facts that constitute the cause of action and pleading the facts that are relevant to the truth or falsity of such facts. WINDS OF CHANGE

Within only a few short years, Jackett turned the Exchequer Court of Canada into a well-organized, well-administered court with a presence throughout Canada, almost unrecognizable from the court he inherited. Jackett was as dominant as his predecessor Joe Thorson, but with a completely different style and approach to providing service to litigants. The court was forging ahead, speeding up the process of obtaining justice, reducing the costs of access to justice, making access itself as simple as possible, and turning out high-quality judgments. The relationships with the legal profession were improved and the profession was able to participate in the design of the procedural aspects of practice before the court. The cases he decided were based on his understanding of the duty of a judge to determine the facts of the case without bias and to decide, in an intellectually honest manner, according to legal principles or rules. Where the law was written, this intellectual honesty had to be applied to the law as written. Where it was unwritten, he tried to find what could be determined from past consideration of similar situations and apply it to the facts before him. A judge should not set himself up as an independent

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forecaster of what future judges should decide. He believed that the principle of stare decisis was important and that the law applied today should be based on the past, because the law should be the same no matter who happened to be the judge in a particular dispute. A proper legal system requires judges to apply rules taken from the same sources, from existing rules of law, not from rules made up for the particular case. If a judge strays from this concept, the parties to a dispute do not get justice according to law, but justice according to a particular judge, who might consider, for example, that a person should not be making a claim that appears to the judge to be exacting an unnecessary pound of flesh from a defendant. Jackett thinks it is difficult enough to avoid this, as an individual, even when deciding cases on existing law. He himself would have decided many cases differently had he not thought it his duty to decide according to the law, but, either one has a system of law or there is an inevitable move towards the system of dictatorship, as in the days when the sovereign decided on the basis of whatever considerations seemed to be the most convenient at the time and there was no system of law to apply. It is probably safe to conclude that respect for a system of law as a necessary element in the concept of society is the fundamental basis of Jackett's entire life in the law. The law, even before it took the form of legislation, was an accepted set of rules that governed human relations and relations with the sovereign. In time, as society developed, a legal system was superimposed on the innate set of rules as a means of making changes in those rules. Within such a system, it was important to see how similar questions had been dealt with in the past. It was then possible to say that this was how judges had decided such a question and, therefore, this is how I will decide. True justice relates to past practice, so that judges are not simply dispensing favours. If, as occasionally appears, a judge dislikes a previous decision, he must look again and try to see if he can find the true principles that were applied and the rule, as decided, may need some qualification, so that an adapted, more complicated, system is passed on to the future. Jackett's conviction that the law is a bulwark against tyranny had developed in the course of his studies at university. As early as 1933, speaking at a church group in Kamsack on the subject of 'A Young Man's Duty/ he took the opportunity to contrast the natural state described by Thomas Hobbes in Leviathan with a system of laws to govern conduct within society. His thesis then was that it is the duty of citizens to go the 'whole way' and obey the law not only when it pleases them or when they think it is good or when they think it would be wrong not to obey; citizens had an obligation to obey the law at all times and under all circumstances - in large matters and in small, in the letter and in the spirit. While he admit-

The Exchequer Court of Canada 195 ted that he set the law on a high pedestal, he was convinced that no set of laws could work efficiently or achieve their purpose if they are obeyed only part of the time. It was a view explicit in everything he wrote and implicit in everything he decided. Years later, when writing the essays that were published in the collections dedicated to Arthur Moxon and F.C. Cronkite, he started from the same basis, this time drawing on his years of experience in the law. Thus: Justice in Canada is administered in accordance with the law. This is our bulwark against prejudice and tyranny. What is the law? I am not here so much attempting to answer that question as to explain how, under our system, it is answered in relation to particular problems.

Statutes and judicial decisions are the materials lawyers use in constructing the answer to each such question. The problem is to fit a particular statute or judicial decision into its proper place so as to give it due weight and value in the solution of a specific problem, and historical analysis can assist in this task. He reiterated the same thought to members of the intellectual-property bar at the forty-first annual meeting of the Patent and Trademarks Institute of Canada in 1968: A modern civilized legal system is a substitute for what is sometimes referred to as the law of the jungle. In the absence of an effective legal system, instead of a civilized society, there would be a primitive state of affairs where human beings living in contact with each other would be able to do what they want, and to take what they want, subject only to the limitations on the physical and mental capacity of each individual to impose his will on those with whom he comes in contact. Such a state of affairs obviously tends to breaches of the peace, to say nothing of the unhappiness of those who find themselves subject to the whims of others who are superior to them in brawn or brain.

The fundamentals of a legal system that will make this difference between a civilized society and a primitive state of existence are (a) a body of substantive rules defining the rights of the members of society and the correlative obligations flowing therefrom; and

196 Chief Justice W.R. Jackett (b) the necessary machinery to ensure that such rights are observed.

The measure of the success of the judicial system is the degree of its success in determining disputes in a way that society finds acceptable. In assessing that success, or the lack of it, due regard must be had to the cost of having conflicts of human wills resolved according to the procedures provided by the judicial system.

Absolute commitment to this philosophy through his work and decisions profoundly influenced the Department of Justice while he was there and the courts he later presided over. It permeated the approach of the Justice lawyers and the judges to questions of law and provided them with a solid and legally conservative base of operation for many years. Whether both have been able to sustain the disciplined thinking required of such an approach so many years after his departure is for others to determine, but the absence of a leader by example certainly makes it more difficult. While all this was going on, unbeknownst to almost everyone, including the judges of the court itself, the days of the Exchequer Court of Canada were numbered and it would soon be transformed into the Federal Court of Canada, of which Jackett would become the first chief justice. For several years, Jackett had played a central role in the design and development of the new court, working with officials in the Department of Justice, personally designing the statutory framework of a far more ambitious national court than the one that currently existed, developing a comprehensive set of rules for the court that would enable it to deal expeditiously with the expanded range of cases that would come before it, and preparing a manual of practice for the guidance of the bar and bench alike. It was a remarkable tour de force well beyond the capabilities of anyone else in the country.

8

Extracurricular Activities: The Canadian Judicial Council and the Federal Court of Canada

In addition to his duties as president of the Exchequer Court, Jackett became intimately involved in two initiatives that would change the judicial landscape in Canada. The first was the formation of the Canadian Judicial Council and the second was the design and development of the Federal Court of Canada. Both came about as a result of his vast experience in government, his ability in legislative drafting, and his prodigious capacity for sustained hard work. Even more remarkable was the fact that both developments were proceeding at roughly the same time, although the preliminary work on the Canadian Judicial Council had started sooner than the push towards the new court. THE CANADIAN JUDICIAL COUNCIL

During the same month that Jackett was sworn in as president of the Exchequer Court, an effort spearheaded by University of Toronto professor John Edwards came to fruition. This was the first National Conference of Judges on Sentencing, held at Hart House at the University of Toronto on 27-9 May 1964. Edwards was director of the university's Centre of Criminology, having come to Canada from the United Kingdom in 1958. He had developed a particular interest in the process of sentencing, one that contains numerous variations and often apparently contradictory practices, many of which are unintelligible to the public at large. Edwards conceived the idea of bringing together the chief justices from all Canadian courts which were involved in criminal sentencing to discuss issues that arise at all levels of the judicial system. While this sounds like an

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eminently sensible idea, like all new ideas, it produced a less than overwhelming initial response. However, Edwards got some key encouragement from leading judicial figures of the day. First and foremost was John R. Cartwright, then a puisne judge of the Supreme Court of Canada, later to become chief justice of Canada. Edwards had identified Cartwright as someone whose judgments in criminal matters made him stand out in relation to his other colleagues on the court. He had invited Cartwright to become a founding member of the advisory council of the Centre of Criminology and, when he got financing from the University of Toronto to host the conference on sentencing, he asked Cartwright if he would be prepared to act as chairman.1 The conference brought together the chief justices of Alberta, Manitoba, Ontario, Quebec, and Saskatchewan, some other invited judges, representatives of the federal Department of Justice, the Penitentiary Services, the Parole Commission (the predecessor of the National Parole Board), and some provincial attorneys general.2 At the end of the proceedings, a resolution was passed recommending that a mechanism be set up for the purpose of calling judicial conferences periodically on subjects dealing with the administration of justice. It was proposed that a committee of judges consisting of the chief justice of Canada and the chief justices of the provinces, or their substitutes, be formed for the purpose of organizing the conferences and to prepare the agendas. Edwards agreed to organize the first meeting, to be held on 17-18 November 1964. Bit by bit the meeting was pieced together and, when the chief justices, this time not just the chief justices of the provinces but also those of the superior trial courts, came together that November in the Senate Room at the University of Toronto, it was the first time since confederation that they had ever sat with each other.3 The opening dinner was held at the Park Plaza Hotel and the only non-chief justices present were Edwards and Elmer Driedger, by then deputy minister of justice. One of the objectives the chief justices had on that occasion was to make an informal choice of the first chairman. Such weighty deliberations were not the stuff of which mere mortals should partake, so the judges requested Edwards and Driedger to wait in the corridor until the puff of white smoke emerged. The choice proved to be enlightened: Chief Justice Edward M. (Ted) Culliton of Saskatchewan. Edwards described him as gregarious, dignified, and not at all a prima donna. Culliton believed in what they were doing. It seems to have been at the suggestion of George Alexander ('Bill') Gale, chief justice of the High Court of Ontario, that the judges looked outside Ontario for the chairman and it was certainly clear that Gale had suggested Culliton. Culliton continued to chair the successor

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meetings and would later play an important, even determining, role on the Canadian Judicial Council until his retirement. There can be little doubt, however, that Gale was the prime mover in getting the conferences established and that, without his active involvement, the whole idea might well have been stillborn. The combination of Gale and Culliton, with the assistance of Lucien Tremblay (chief justice of Quebec) and George S. Challies (chief justice of the Quebec Superior Court), was the initial nucleus that drove the process from the beginning. The meeting itself was no mere social gathering. It had an ambitious agenda and the judges were worked to virtual exhaustion.4 The agenda alone, without the supporting material, ran to several single-spaced pages and the judges themselves added to this, to produce an agenda of sixty-three items to be discussed in five separate discussion groups, each one facilitated by a university professor. The agenda included the future of the conference of chief justices and general questions affecting courts of appeal, as well as sentencing, criminal appeals, amendments to the Criminal Code, the need for a permanent criminal-law reform Committee, preliminary hearings, the administration of criminal justice, and the penal system of Canada. The funds to defray the travel and living expenses of the participants had come from the federal government, upon the approval of Guy Favreau as minister of justice. They had come, however, with the admonition that the federal government should not be regarded in future as the source of similar funding. No doubt, the federal government was worried about where this initiative might lead. Driedger was concerned about the costs and noted that these could not be authorized by the minister of justice alone but would require the approval of the Treasury Board, which would want to know exactly what role was envisaged by such conferences. He wondered whether it was appropriate for judges to enter into legislative matters. He believed that, for the Treasury Board to approve expenditures, it would have to be understood that discussion be limited to judicial matters, procedural and administrative, and not touch in any way upon legislative ones. Even at that, there would be no guarantee of Treasury Board support. Later during the conference, when Driedger was pressed for indications of what would be required to maintain the financial support, he said that there might well be three conditions: that the meetings be private, with confidential discussions and no press releases, that no recommendations be formulated, and that discussion be focused on matters pertaining to criminal law and criminal procedure. These admonitions led to adoption of the following resolution: 'Be it resolved that this Conference is

2oo Chief Justice W.R. Jackett

convinced that it is desirable that there be held annually a meeting of the Chief Justices of the Superior Courts of Canada or of their representatives, for the purpose of discussing confidentially common problems dealing with the administration of criminal law/ Eventually it came to be recognized that a brief press release would have to be issued at the end of each conference, but these were kept deliberately bland and non-controversial. Though the press had been quite strident about having been excluded from the early conferences, a media presence would certainly have impeded discussions among judges. The press-release mechanism was settled upon as the best compromise in the circumstances for the conferences and seemed to have been generally well accepted.5 Chief Justices Gale and Tremblay were appointed to meet with Favreau and to express the wishes of the group, after consulting with the chief justice of Canada. If they were successful, the next conference would be called for mid-November 1965 at the University of Toronto and Edwards undertook to organize the conference were the funds to be obtained. Favreau was, at the time, enmeshed in a number of political problems and it was not until early June 1965 that Gale and Tremblay were able to meet with him to discuss the matter.6 Favreau was prepared, once again, to pay the travel and living expenses, although not the organizational expenses of the conference. He rejected the suggestion that the meetings be confined to Toronto, Ottawa, and Montreal and felt that they should be in all the provincial capitals as well as in Ottawa. The incremental costs would, he thought, be minimal. He also agreed, after discussion with Driedger, that the subject matter should be expanded from the very narrow range indicated by Driedger at the 1964 conference; indeed, he now believed that the conferences would be of little value unless the chief justices were able to have unlimited discussion on other areas of federal law and even provincial fields of legislation, such as civil law and civil procedure. This matter was addressed by a resolution, one of two adopted by the conference in 1965. Partly from interest on the part of the chief justices and partly to be sure that the financial support of the federal government would be maintained, it was formally resolved that the conference should not be restricted merely to matters of sentencing and criminal law. This would also, it was hoped, encourage the provincial governments to support the conferences, which led to the second resolution, which was to ask that the provinces help to contribute to the establishment of a modest secretariat. Edwards had made it clear that neither the University of Toronto nor the Centre for Criminology had the financial resources to support the organization of future conferences. From this modest beginning, the National Conference of Chief Justices acquired more momentum and the 1965 conference was regarded as even more beneficial than the original.

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One matter on which Driedger had been adamant, in relation to federal funding of future conferences, would prove to have a significant impact on the conferences and the eventual formation of the Canadian Judicial Council. Driedger had said that there would be no additional federal funding for the conferences unless the president of the Exchequer Court, a federal court, was invited to participate. This was a matter that he and Jackett had discussed on several occasions and Jackett helped form Driedger's views on what the conferences should consider. Accordingly, Jackett attended the second conference in November 1965, even though non-criminal matters had not yet been added to the agenda of the conference and the Exchequer Court as such had no criminal jurisdiction.7 With the chief justice of Canada sitting resolutely on the sidelines at this stage and for several years thereafter, Jackett was the only judge of a 'federal' court who attended the conferences.8 He thought that it would be useful to sit with the other chief justices in the country to hear their problems and to see how they dealt with them. It also gave him a chance to raise problems of his own regarding the administration of his court. The meetings were small enough that, when a problem was raised, they used to go around the table and each of the chief justices would describe how the matter was dealt with in his province. Jackett's immediate influence and, no doubt, his knowledge of the federal labyrinth were such that he was part of a small group appointed by the 1965 conference, consisting of Gale, George Challies, and himself, to find and engage the first director of the conferences, in the person of Toronto lawyer John H. Francis. Though the Supreme Court of Canada remained aloof from the conferences, the other chief justices kept Chief Justice Robert Taschereau fully informed of what was going on. Despite regular invitations to participate, it was not until the conferences were linked with the statutorily created Canadian Judicial Council that the Supreme Court of Canada was prepared, with some initial trepidation, to play any official role.9 The presumptive argument advanced was that the Supreme Court of Canada might some day be required to rule upon a decision taken by the conferences, but the suspicion remained among the other judges that its judges simply did not want to be perceived as being on the same level, at the conferences, as the other judges in lower courts. Even once the statutory body had been established, Chief Justice Gerald Fauteux, Cartwright's successor, was reserved about the organization. It was only after a year or so of presiding over the council that Fauteux came to believe it was a most worthwhile exercise and he eventually became an enthusiastic supporter. Early difficulties occurred in Quebec that made continuance of the conferences as a national institution problematic and that required Jackett's intervention to find the eventual solution. Claude Wagner was the

2O2 Chief Justice W.R. Jackett

minister of justice of Quebec and had experienced some differences of opinion with the other ministers of justice at a meeting in Ottawa. Whether because of this or some other reason, he was slow in responding to the requests by Tremblay and Challies in late 1965 and early 1966, following the 1965 conference, for Quebec government financial support of the organization of the conferences. Challies left Wagner with copies of the minutes of the 1965 conference, which contained a record of the discussions and the resolution regarding provincial government assistance, and resolved to have a follow-up meeting. Tremblay was also prepared to raise the matter with Premier Jean Lesage, if necessary. Both Tremblay and Challies were concerned that they could not participate in the organization if their province were the only one that made no contribution. There was an intervening provincial election in Quebec during 1966 and Wagner was replaced by Jean-Jacques Bertrand. Although Bertrand expressed initial interest in the matter, Quebec eventually refused to participate in the subscription.10 Tremblay, Dorion, and Challies decided, with regret, that it would be inappropriate for them to participate in the 1966 conference in Victoria. This was a serious blow to the national character of the conferences. The issue was how to get the Quebec chief justices back into the fold in the face of Quebec's refusal to participate in the costs of organizing the conferences. It was here that Jackett was able to play a crucial role. In early 1967 he met with Tremblay and Challies, both of whom he liked and admired, in order to get a personal appreciation of their predicament. Once he was certain that he fully understood their perspective, he asked them whether the difficulty would be obviated if the government of Canada were to pay all the expenses, travel and organizational, of the conferences.11 They agreed that it would. In Ottawa, in the meantime, there had been a change of both minister of justice and deputy minister of justice. The new minister, Pierre Trudeau, who did not get along well with Elmer Driedger, arranged for Driedger to be appointed consul general of Canada in Hamburg, and Donald S. Maxwell, one of the 'two Dons' whom Jackett had recruited for the Department of Justice in 1951 when he was assistant deputy minister, became the new deputy minister. Jackett approached Maxwell at the beginning of April and convinced him that the federal government should pay the administrative expenses of the conference as well as the travelling expenses of the chief justices. To start the official wheels in motion, Jackett arranged with Maxwell that he would write to Maxwell making the suggestion, on his own behalf and not purporting to write on behalf of the conference, that Maxwell seek the necessary authority to pay the expenses, so that the offer could be made at the next meeting of the conference, to be held in Charlottetown that Oc-

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tober. He even provided Maxwell with the constitutional 'map' that he and Driedger had worked out at the end of the previous year which would make it possible for the federal government to do so: 'I suggest that, upon consideration, you might come to the conclusion that an annual allowance to the Chief Justices jointly, in that [the estimated costs] or some other appropriate amount, for the payment of the administrative expenses of their holding an annual conference, would fall within the provisions of section 100 of the British North America Act, 1867, which provides, inter alia, that the "allowances' of the Judges of the Superior Courts shall be provided by the Parliament of Canada.' Before sending his letter to Maxwell, Jackett showed a draft to Gale,12 who, although a bit concerned about the federal government paying all the costs, concurred with the idea and commented that his letter was well worded. 'I do not know/ he said, 'who else could write with any greater flair or authority/13 Gale's worry about the federal role, which reflected his predilection as the chief justice of one of the Ontario courts, was that it would be desirable to have the provincial governments know that they were participating in the exercise. 'As the President of a Dominion court,' Jackett, he said, 'might not appreciate that attitude, but he thought it was one of substance.' In the final analysis, however, the desirability of having all the chief justices participate in the conference outweighed the possible advantage of having the provinces share in the costs of the exercise. Gale was also relieved that the federal government had dropped its earlier demand that the only subjects to be discussed at a federally funded conference be those over which the Dominion had jurisdiction. Maxwell replied in June, stating: "This will confirm that on May 25 last I obtained approval in principle from the Treasury Board to include items in next year's estimates to cover the costs of travelling and living expenses ... and other administrative costs ... for the purpose of the annual meetings of the Chief Justices. In light of this authority I feel that I can propose that the Government of Canada undertake to pay the costs of these conferences as part of the Department's ordinary administration.' Jackett sent copies of Maxwell's letter to Gale, Tremblay, and Challies.14 Gale observed that he did not pretend to be expert in interpreting governmental language but he took it that, with annual administration of the conferences assured, the big problem was solved.15 Jackett confirmed the understanding and, more important, advised Gale that, provided Tremblay and Challies knew such an offer would be made at the Charlottetown conference, they would feel free to attend the conference on that occasion.16 That was why Jackett had been anxious to get an early indication from Maxwell as to his success in obtaining the necessary authority. It proved to be an elegant solution to a potentially divisive situation with

204 Chief Justice W.R. Jackett

respect to Quebec and one that stemmed from Jackett's particular legal and departmental experience.17 The conferences demonstrated in microcosm one of the fundamental problems in Canada. On a personal and working basis, all of the judges involved got along well and were delighted with the occasions for exchange of views and experiences. This applied throughout the country and whether the judges were anglophone or francophone. It was at the governmental levels that institutional frictions and resistance occurred. British Columbia wanted the conferences to be organized by the staffs of the chief justices in whose province each conference would be held. The concern was not so much the small amount of money to be contributed for the organization on a national basis as it was that it would be perceived as yet another Ottawa-dominated institution. Quebec was worried about being folded into a national organization in which its own identity might be diluted. Its concern, which persists today, accounts for the continual apparent (and real) lack of cooperation in many national organizations and initiatives. In this particular circumstance, there was a constitutional escape hatch that allowed a good idea to be implemented. The conferences continued to grow in importance. They were attended by the federal deputy minister of justice, at the invitation of the chief justices. There was some hesitation about including the federal minister of justice, since Gale and Jackett both agreed that discussion would be considerably freer if only the deputy minister were present. In addition, purely as a matter of appearance, they believed that it should not look as if the minister were attending the conferences as the minister nominally 'in charge' of the judges. The deputy minister could be there as a useful observer, someone in a position to assess the universality of problems and to communicate suggestions regarding legislation and other matters to the minister. As a practical matter, it was not likely that ministers would attend in any event. Jackett's wry insight on the matter was expressed in a letter to Gale: 'From my experience with ministers, and particularly Ministers of Justice, I should not be too apprehensive about one finding time to sit in during the course of our ordinary discussions except, possibly, for one half-day meeting. Ministers invariably aspire to do a great deal more than they can possibly find time to do.'18 There proved, as he anticipated, to be no danger of sustained ministerial presence at any of the conferences. An interesting spin-off from the conferences was the establishment of seminars for judges, at which judges other than the chief justices were able to meet on a regular basis to discuss and review important topics and issues with which they were faced in the course of their duties. These proved useful and led to a national camaraderie between judges of all the

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superior courts. Jackett himself was not a great believer in the seminars, which reflected his personal opinion that the way you learn your profession is to work on specific matters under the tutelage of someone who prods you, criticizes your work, and shares experiences on a first-hand basis. He had little use for organized seminars in which thirty or forty people tried to stand up and explain the law and he suspected that many were far more interested in the social aspects of the occasions. He was, however, in the minority and the seminars have become well established. The matter of disciplining judges has always been a delicate issue. On the one hand, the independence of the judiciary is a fundamental platform of the rule of law in our society. Judges must be free and independent so that they can decide any matters which come before them with complete confidence that the manner in which any decision is reached will be impartial and that no action can be taken by the executive branch of government which might cause the judge to decide one way or the other. On the other hand, human nature is what it is and there will be, from time to time, individuals who may take advantage of their positions of relative immunity or who otherwise fail to live up to the high standards of conduct essential for judges, and there must be ways of dealing with such people in order to preserve public respect for and confidence in the administration of justice. How should complaints against judges be handled? Generally, complaints had been directed to the chief justices or to the minister of justice, whose portfolio included the appointment of judges. Even before he became deputy minister, Jackett had been concerned about the propriety of the minister dealing with such matters. He remembered occasions on which a deputy minister had been asked to approach senior members of the bar to try to get them to persuade judges, who were well over the hill and constantly falling asleep in court, to retire.19 There was a time when the Ontario Court of Appeal had several members who were in their eighties. This lobbying by the deputy minister was, he thought, an unseemly business. The only constitutional formula for the removal of a judge from office required a joint resolution of both Houses of Parliament. This is a most awkward procedure and probably far more severe than is merited by most judges' transgressions, which might amount simply to delays in rendering judgments or rude comments in court. Many complaints, in contrast, come from disgruntled litigants, who are upset that things may not have gone according to their view of the matter. The difficulty, of course, lay in the question of who was entitled to take a decision on the issue and, where appropriate, to impose a sanction. The chief justices also felt the same frustrations and were unable to cope with the combination of complaints and their own inability, as a

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matter of law, to impose sanctions in appropriate circumstances. These frustrations would lead to a recommendation from the chief justices that there be some more formal structure through which such matters could be handled within the judiciary. From their search for a solution emerged the idea that a body with statutory authority be established and equipped to deal with both such matters. This, in turn, would lead to the idea of the Canadian Judicial Council. Early discussions had contemplated the enactment of a new statute establishing the council, but Jackett was of the view that it would be better, since the subject matter related to the duties of judges, not to have a separate statute but simply to prepare amendments to the Judges Act, which applies to all federally appointed judges, and to the Financial Administration Act. This would involve the least possible constitutional exposure, while still providing the necessary legal authority for the council. When the resolve to press for creation of the Canadian Judicial Council was taking shape in 1970, the conference asked Jackett to draft the proposed amendments to the Judges Act to provide for the creation of the council and to empower it to deal with disciplinary matters as well as more general topics relating to improvements in the quality of the administration of justice.20 Jackett did so and, after he had worked closely with the Department of Justice on both the concept and the statutory mechanics, the resulting amendment was approved by the new minister of justice, John Turner, and the legislation was introduced in the 1971 parliamentary legislative schedule. The Canadian Judicial Council was established effective 9 December 1971.21 Possibly the most interesting feature of the council was that it reflected an initiative on the part of judges, not Parliament. It was the judges who considered that the mechanism was necessary and they organized both the creation of the council and, in cooperation with the Department of Justice, its passage into law. The most effective person in the exercise was Wilbur Jackett, who knew how to get it done and knew the people who could follow through with the mechanics. The final preliminary work had been accomplished at the 1971 conference of chief justices in Regina and the chief justice of Canada, Gerald Fauteux, knowing that the groundwork for creation of the council was now in place, did make an appearance at the Regina conference to make it clear that the chief justice of Canada would obviously participate in a statutorily mandated body, one of the functions of which was to examine complaints against judges. In reality, this function was the principal new element to be brought about by the legislation; the continuingeducation function and annual conferences already existed in fact. There was an amendment to the bill between first and third readings to provide that, in making an investigation into the conduct of judges, the

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council would be deemed to be a superior court, since otherwise it might have been subject to the prerogative writs issued by the Trial Division of the newly constituted Federal Court.22 Fauteux believed that the chief justice of Canada should not be involved in any investigation of a judge, since, if such an investigation led to criminal proceedings, it would be impossible for him to sit on the matter if it ever reached the Supreme Court of Canada and it would be desirable to have a full bench in these circumstances.23 Jackett played a considerable role during the final preparatory meeting. He was appointed to the executive committee of the nascent organization, and this committee, with such assistance and counsel as it considered necessary, was charged with drafting and submitting to the full council the by-laws deemed necessary to implement the new sections of the Judges' Act.24 The conference was to meet on 10-11 December in Ottawa. The executive committee was also to hire a director and supporting staff, as well as to find an office in Ottawa to house them.25 Gale thought that Jackett had connections in Ottawa that might help in finding a director. For his part, Jackett said that the director was the key to the whole functioning of the council and that, without a good director, the council would be 'fifty per cent a failure.' They agreed that the director should be a knowledgeable and discreet lawyer. Jackett said that the director must be capable of dealing with complaints in a tactful way, competent to get rid of the frivolous but mindful of when and whom to consult. He suggested a small committee of chief justices, perhaps three, to whom the director could look for guidance at every turn. Given the quality of the person for whom they were looking, Jackett thought that the salary of a puisne judge might be appropriate. Maxwell gulped, but he thought that the expenditure might nevertheless be accommodated. The arrangement regarding complaints about judges was that the new council must investigate certain types of complaints and might investigate others. The mere fact that a council composed of judges could investigate such complaints has had a salutary effect on judges throughout the country. There is nothing more embarrassing than to be criticized by one's peers for conduct that falls short of standards which they recognize as appropriate for judges. The council exhibited a high degree of discretion in the investigation of complaints directed to it. It had to be particularly careful that mere complaints, which might, upon investigation, prove to be unfounded did not operate to destroy the reputations of the judges against whom they were made. Under the by-laws, the executive committee was responsible for investigating and determining whether there was cause for a formal action. Culliton, as chairman of the executive committee, generally took responsibility for the initial work on behalf of

2o8 Chief Justice W.R. Jackett

the executive committee in determining whether or not a complaint revealed conduct which required formal investigation by the council. In each case, the judge whose conduct was complained of was invited to provide an explanation. Most of the complaints revealed nothing of substance, but, in those cases in which action was called for, the council might indicate that the conduct of the judge was to be corrected by a certain date, as in the case of judges who had been unreasonably long in rendering judgments, failing which the matter would be brought before the council as a whole. In virtually every case of such delays, the judge managed to bring all his judgments up to date within the time specified by the council and no further action was required. In a few serious cases, some of which involved judges whose abilities to act may have been affected by medical problems or alcohol abuse, the judges involved resigned before the complaint was given formal study by the council. The mechanism was successful in all respects, relieving the minister of justice from pressure to intervene and assisting the chief justices of the courts in potentially awkward dilemmas involving members of their own courts. It also avoided repetition of the less-than-brilliantly handled investigation of complaints involving the pre-appointment activities of Judge Leo Landreville, in which Ivan Cleveland Rand, then retired, owing to age, as a judge of the Supreme Court of Canada, had acted as sole investigator.26 Jackett considered that Rand's treatment of the matter was deficient because he did not identify any particular guidelines which Landreville had transgressed and such matters ought to be determined against a failure to measure up to certain requirements. In addition to drafting the legislation creating the council, Jackett, during the Christmas holidays a year earlier in 1970, had exercised his talents as draftsman in writing the council's by-laws, which were eventually discussed with Chief Justice Fauteux and the other chief justices who might not yet have seen them.27 They were adopted by the council at its inaugural meeting in Ottawa on 10 December 1971. Chief Justice Challies proposed a formal motion of appreciation to Jackett, seconded by Justice Eugene Marquis, representing Chief Justice Dorion of Quebec on the occasion, for the outstanding job he had done in preparing the by-laws in such a short time. The motion was carried unanimously. Pauline Sprague, on loan from the Department of Justice, was appointed the first secretary (that is, director) of the council. It is clear from the minutes of the first meeting of the council that the efforts of Jackett in finding space, recruiting staff, and attending to the many administrative needs of the new council had been essential and that his vast knowledge of the federal administration had made it all possible. No other judge could possibly have caused all this to happen so expeditiously. Even more remarkable was that he accom-

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plished all this during the first year of establishing and organizing the new Federal Court of Canada. Once the council was established by statute, the chief justices of Canada, beginning with Fauteux, were active in the organization.28 During Jackett's time on the council, both Fauteux and Bora Laskin29 presided over its activities, although the de facto leadership continued to be provided by Culliton, who became vice-chairman of the council and remained as chairman of its executive committee. The conferences of chief justices continued to be held as well, to discuss the matters originally contemplated regarding the administration of justice, usually the day before the council meetings, and were carefully differentiated by those involved from the activities of the statutory body, the Canadian Judicial Council, although the chief justice of Canada agreed to chair both meetings. Jackett was never a lover of meetings. Yet he thought that, if meetings were small enough and if you had people interested in the same fundamental problems, such as the administration of courts, then the opportunity to come together to discuss problems, both on and off the agenda, could be useful indeed. He never had any doubts about the early meetings of chief justices in that regard. The character of the conferences began to change when the wives of the judges were included; from this position, the meetings took on a social character which has increased over the years. Jackett believed that the conferences' value diminished as their social aspects increased in importance. Although he and Driedger had brought their wives to the early meetings, their wives were close personal friends and did not get involved in the working sessions and did not see anyone else. In this respect, Jackett's views were no different from the ones he held with respect to his own court, where there were very few social occasions. He thought that social life should be separate from business life. Early on in his career as a civil servant, one of the senior lawyers told him that there was nothing that caused more trouble than departmental picnics, where all the wives had to kowtow to the wives of the deputy ministers. Another concern that Jackett had brought with him from his time as deputy minister of justice was the relationship between the courts and the Department of Justice. He found that judges were somewhat too prone to treat the department as the boss. He remembered being introduced to judges out west who referred to him as 'the boss,' which did not annoy him so much as alarm him that the judges seemed to have such little understanding of the proper relationship between the judiciary and the executive. He had puzzled over it on many occasions and had, at one stage, when he was on the bench, written a memorandum to the Supreme Court of Canada asking whether it thought that this was the appropriate

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relationship between the department and the courts. The department paid all the salaries and expenses of the judges and court officials and handled the full administration of the court and the lines of actual authority were far from clear. Further, there was a tendency for the department's filing room to regard the courts' archives as nothing more than an extension of the department. The Supreme Court of Canada did not seem overly concerned, but Jackett persisted and finally convinced Don Thorson, when Thorson became deputy minister, to set up a separate office, still under the jurisdiction of the department but at least notionally separate from the department itself, to look after matters pertaining to the courts and judges. At first, Thorson had told Jackett that he was making a fuss over nothing, but he later found out that the middle-management levels within the department were doing things and making decisions with respect to the operation of the courts about which he knew nothing. By this time, the Department of Justice had expanded to the point that the deputy minister no longer knew everything that was going on. In the end, Thorson became a reluctant believer. Eventually this concern led to the creation of the office of the commissioner for federal judicial affairs, the first incumbent of which was Sol Samuels, a long-time Justice lawyer who was by that time an assistant deputy minister. When the council reviewed the possible candidates for the position in September 1977, Jackett absented himself from the deliberations because he had recruited Samuels for the Department of Justice and knew him well. Jackett worked behind the scenes with the Department of Justice, mainly with Don Thorson, in getting this mechanism established, with the principle that the appointment would carry a status equivalent to that of a head of department. This is a rank in the public service that is not as high as a deputy minister, but the holder of such an office deals directly with the minister rather than through a Deputy Minister. Jackett was experienced enough to know that responsibility for the courts was not something that a minister of justice was likely to be prepared to surrender to parliamentary committees, along the lines adopted in the United States. He was not prepared, personally, to try to 'sell' the minister on a system that would take the minister entirely out of the picture. The best that could be hoped for, and what was achieved, was that the commissioner for federal judicial affairs would be sufficiently removed from the day-to-day operations of the Department of Justice to create a semi-independent structure. Samuels had been sounded out regarding the position first by Don Thorson and later by Ron Basford, the minister of the day. He remained as commissioner until his retirement in 1981. The delicacy of the position

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was always a factor, since it was really the deputy minister who decided on the budgets for the courts and, indirectly through this process, even the number of judges. As commissioner, Samuels had to be careful to let the court staff do as much of this work as possible and create as much distance between the courts and government as possible, an exercise that was only partly successful. There were tensions over such matters as salaries and benefits for judges, language training (for which there was no budget), and expense accounts. One Toronto judge needed a wheelchair as a result of a condition he had prior to his appointment and he charged for a limousine to take him from his home to the courthouse. Samuels turned him down, on the basis that no one works until he gets to the office. The judge wrote to him, demanding to know who was his boss. Samuels said it was the minister of justice, Jean Chretien, and gave the judge his address. After Samuels had retired, the judge sued him and the crown and, to Samuel's surprise, the judge was successful before Alex Cattanach. Samuels was never called and only learned about it later. The judges often talked about preparing a document which would provide guidance as to the standards of conduct of judges. The law is a selfgoverning profession, so the idea among judges that they should establish such standards was not foreign to them. They were reluctant to allow the matter of judicial conduct to be handled by laymen, on the view that if you were going to rule on the conduct of judges, you should know something about the conditions under which they operate. They could not, however, agree on how the standards of conduct should be formally expressed. Jackett and some others thought that there should be a code of ethics for judges, which should be included in a handbook. Typical of Jackett's initiative, he then prepared, in late 1972 and early 1973, a series of drafts of a document entitled 'Canons of Judicial Ethics for Canada/ but there was an insufficient consensus among the judges to adopt it. The research committee of the Canadian Judicial Council noted that Jackett's draft document was 'a document remarkable not only for the intrinsic worth of its subject matter but also for the clarity and conciseness of its expression.' The judges were not opposed to the idea of a code, but they were concerned that the rules it might contain would not take into account all the possibilities which might arise and that it might, therefore, do more harm than good. Jackett thought that those concerns could be addressed in the drafting of the code and believed that he had enough drafting experience to have done it in the form of appropriate guidelines.30 Bud Estey was a member of the Canadian Judicial Council, first as chief justice of the High Court of Ontario and later as chief justice of Ontario. This was during the chairmanship of Bora Laskin and Jackett was then chief justice of the Federal Court of Canada. Summing up Jackett's role at

212 Chief Justice W.R. Jackett

that time, Estey says: 'In all those deliberations with many strong-willed persons such as Chief Justice Culliton of Saskatchewan and Sonny Nemetz,31 Wilbur was regarded as the administrative technician par excellence. This is one of the reasons for the difference in outlook and relationship between Wilbur and Bora Laskin. They were at opposite ends of the yardstick of administrative competence/ Jackett's advice was extremely valuable to the council and headed off a number of impasses relating to the federal administration of the courts. It was Jackett who made possible the arrangement for supernumerary judges, who work half-time to top-up their pension to an amount equal to their former salary. He also removed some of the edginess in requests for improving the remuneration of federally appointed judges. Knowing the administrative mind-set, he developed a complicated algebraic formula for keying the remuneration of judges to the appropriate level of the senior public-service officials. He was, in short, the high priest of administrative matters on the Canadian Judicial Council. Both the conferences of chief justices and the Canadian Judicial Council have made an important contribution to the administration of justice in Canada, as well as to the independence of the Canadian judiciary. This was the result of a combination of factors: the vision of a few who believed that judges should have the opportunity to meet to discuss problems of common interest; the need to find a way to deal with judges whose conduct might fall short of the appropriate standards; and the government's view that the independence of the judiciary should be reinforced. Jackett served on the executive committee of the council from its inception until 1979, the year in which he resigned as chief justice of the Federal Court. He was an important part of the glue that held the earlier conferences of chief justices together and made possible the step forward to creation of a statutory body provided with the necessary administrative structures and funds to carry out its responsibilities. In volunteer organizations, it is typical that contributions over a period of many years cannot be compensated except through the thanks of those who understand both the nature of the contribution and the sacrifices that have been borne to make the organization the success it has become. This proved to be no different in Jackett's case. On 3 March 1980 Chief Justice Laskin, as chairman of the Canadian Judicial Council, wrote the following letter to Jackett: Dear Wilbur, It gives me great pleasure to advise you of a resolution, unanimously adopted by the Executive Committee of the Canadian Judicial Council and of the Conference

Extracurricular Activities 213 of Chief Justices, expressing deep appreciation to you for your work as a member of the Executive Committee and of the Canadian Judicial Council and the Conference of Chief Justices. Your experience and wisdom have stood us in good stead throughout the years in which you have served with us. I would like to add my personal appreciation for the help that you have always willingly given me in carrying out my duties as Chairman of the two bodies. With our best wishes to Kathleen and to you. Yours sincerely, Bora THE FEDERAL COURT OF CANADA

On i June 1971 a new Canadian court began sitting. It was the Federal Court of Canada, which replaced the former Exchequer Court of Canada. The proclamation of the court was signed on 17 May 1971 by the man whom Joseph Thorson had wanted to succeed him as president of the Exchequer Court but who had been called to higher office effective 17 April 1967 - Governor General Daniel Roland Michener. The new court was the brainchild of Wilbur Jackett and Donald S. Maxwell, one of Jackett's proteges in the Department of Justice days, by then deputy minister of justice, with the political support and assistance of the young, ambitious, and energetic minister of justice, John Napier Turner.32 The most remarkable feature of the court and its creation was that the guiding force was not government but the then president of the Exchequer Court, who had a vision of a national court that would develop a specialty in dealing with all claims against the crown and other matters of federal jurisdiction, such as patents, trademarks, admiralty and appeals against decisions of federal tribunals and regulatory agencies. With the Federal Court's creation, much of the arcana of the litigation process was radically reformed and justice was made accessible across the country on an effective and efficient basis. Nor was Jackett's vision confined to an overview which was then put into effect by officials in the Department of Justice. Jackett's involvement was hands-on and detailed. He drafted the legislation itself, feeding his drafts to Maxwell, who had little experience in legislative drafting and who relied almost totally on his former mentor for the substance of the legislation and for the machinery which would make it work, the rules of the court. As early as 2 January 1969, Maxwell had forwarded a second draft of a Federal Superior Court Act under confidential cover to Jackett. (Jackett did his drafting by hand and the drafts were then typed at the Department

214 Chief Justice W.R. Jackett

of Justice.) John J. Mahoney, brought in to deal with the complicated admiralty provisions, was reviewing Jackett's draft regarding the proposed jurisdiction of the new court by 2 May 1969. He was to discuss the provisions with members of the admiralty bar without disclosing that the proposal was to be part of a new Federal Courts Act. By 8 January 1970, draft number five of the Federal Courts Act was in existence and Mahoney reported to Maxwell that he had had a meeting the previous week with Jackett to discuss some proposed comments and amendments in the admiralty provisions. He advised Maxwell that some of the suggestions he had made might have led to confusion and that they should stick with Jackett's changes to his draft. Few, if any, of the judges on the Exchequer Court had any idea of what was going on; Jackett did not even tell Arthur Thurlow. Only Charlotte Kindle, as his secretary, was generally aware of his close work with Maxwell on the project. It was not the first time that Jackett, while on the bench, had assisted Maxwell in statutory drafting. Divorce had been a thorny legal and religious problem in Canada for many years and it had required legislative action in the Senate in order to obtain divorces, an anachronism that simply had to be changed. Eventually the conditions arose that made it politically possible for the government to legislate in the field. It fell to Maxwell, as deputy minister, to get the job done and he turned for help to Jackett, who gave his advice in the form of the draft legislation which became the Divorce Act. Jackett says that he spent almost as much time on the divorce legislation as he did on the federal court project. Maxwell was always somewhat irked that he was not regarded as a legislative draftsman of the calibre of Don Thorson. He had the contempt of the courtroom lawyer-barrister for those who spent all their time behind their desks, firmly believing that this lesser species could not form the same considered view on legal questions as those who had the experience of getting kicked around while on their feet in court. Whatever the merits of this proposition, he was not as good as Thorson in the drafting and desperately needed Jackett's experience in order to pull off the challenge. So, in an arrangement worthy of Cyrano de Bergerac, Jackett fed him the lines and Maxwell emerged as the 'author' of the new statute. Turner acknowledges that he was aware that Jackett was probably doing all the drafting of the Federal Court Act, but Jackett made a point of never dealing with him on that matter but always with Maxwell as the deputy minister. He was certainly privy to the fact that Jackett was the architect and doing the drafting and that Maxwell was charged with the internal 'stickhandling' in the department, but he was careful to create a Chinese wall between himself and the process since it might have been seen as improper for the minister to be having direct contact with the

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president of the existing court. John Turner concurred, enthusiastically, with the idea to extend the jurisdiction of the Exchequer Court. But the effort was, officially, an initiative of the Department of Justice. Jackett himself occasionally attempts, with less than total success, to deflect some of the suggestions that the court was his creation by saying that, even if the best way of dealing with the subject matter was to do so in the form of draft legislation, the adoption of the ideas contained in the draft legislation reflected the decisions of others, not himself. As someone on the existing court, he was familiar with the practicalities of litigation and the machinery of the courts, so he was able to 'help' by feeding ideas to those who would eventually decide on the policy reflected in the suggestions he made. Few, if any, are swayed by this effort at self-deprecation. At the time, Jackett felt that he might be in something of a delicate position in the matter, although he considered it was quite proper in the circumstances to help if he could. The appropriate proprieties were, therefore, maintained. Turner was not aware of the degree of involvement that Jackett had with respect to the Divorce Act, but he was not too surprised when he learned of it much later.33 Even in his administration of the Exchequer Court, as noted earlier, Jackett had tried to make that court easier to use as a national court by establishing branch registries in the various provincial capitals, so that litigants would not be forced to institute their proceedings in Ottawa though local agents. By setting up local registries and devising administrative procedures which would speed up the litigation process, a national court could function as a national court in the true sense of the word. The time had long since come, he felt, when a court could not claim to be a national court if litigants were forced to come to Ottawa to lay claims against the Crown. This was a perception which was, no doubt, influenced by the fact that he was not originally from central Canada and was not, therefore, burdened with its firmly held, but Ptolemaic, view that the country revolved around Ontario and Quebec, as well as by his exposure to the full Canadian legal scene acquired in public service, both as general counsel to a national corporation and as a judge of several years' experience on the Exchequer Court. Gestation No proposal for a federal court with expanded jurisdiction had been 'on the table' when Jackett was in the Department of Justice.34 Nor does it seem to have been a consideration while Elmer Driedger was deputy minister. It was not the sort of project that would likely have commended itself to Dreidger, in any event. Driedger's involvement in relation to the

216 Chief Justice W.R. Jackett

courts generally tended to be the standard of the day: formal documentation regarding appointments, royal and other commissions, and the general administration of the various courts. While the idea may have been floating around, it was probably not before 1968 that the project of establishing the court really got going. Maxwell, by then the new deputy minister, was someone well attuned to matters political and would have been much more inclined than either of his immediate predecessors to recommend a major shift of policy. Moreover, he had the indispensable ally whom he needed in Jackett, the sine qua non, someone who not only knew what was needed but who had the ability and energy to convert an idea into reality. The concept of the court was that it was to be an itinerant court with its central location in Ottawa. Reflecting on this central feature, Thurlow knew that Jackett would not have considered any other possibility. He wanted the judges to be together and to be going out to the various locations for hearings, rather than to post a judge to a certain place and leave him there forever. Not knowing which judge might be coming forced the lawyers to prepare their cases on the merits and not to tailor them to the idiosyncracies of a particular judge. The work was done in such confidence that no one on the Exchequer Court knew it was happening until the legislation was ready to be introduced. Thurlow doubts that there has ever been a confluence of such strong characters - Jackett, Maxwell, and Turner - in the justice field. Effective and decisive, this triumvirate got everything done and through the system remarkably quickly. Turner concluded that the idea for the Federal Court had been in the minds of Jackett and Maxwell for some time. They came to discuss the idea with him and he thought it was a good one. Jackett and Maxwell sought to widen the jurisdiction of the federal system through what became sections 18, 28, and 29 of the Federal Court Act. The Ontario and British Columbia courts, however, were suspicious. They held firmly to the dogma of the inherent jurisdiction of the provincial superior courts via the common law as the only true jurisdiction for the old prerogative writs. Their resistance notwithstanding, what the three founders were looking for with the Federal Court was a consistent jurisprudence in this area of the law. Turner says that Prime Minister Trudeau had virtually nothing to do with the Federal Court legislation. Given the pipeline between Trudeau and Bora Laskin, some people thought that he had been involved and that the whole idea of the Federal Court had been a Laskin 'plot/ Nothing could be farther from the truth, says Turner: Laskin, in the end, became an enemy of the Federal Court. Turner thought that Trudeau was sympathetic to the idea, but he never got involved in the matter. Trudeau had, in

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addition, great confidence in Don Maxwell. The matter had certainly never advanced at all, if it had even surfaced, during Trudeau's stint as minister of justice. Turner says that his personal motivation for the creation of the court was rooted in the general concern of citizen versus state.35 This, he said, was reflected in sections 18,28, and 29 of the Federal Court Act as well as in changes to the Expropriation Act, allowing challenges to the amounts of compensation offered by the crown when it exercised its statutory powers of expropriation. It was also reflected in two new pieces of legislation: the Bail Reform Act, reversing the burden of proof in such matters; and the Statutory Instruments Act, providing for parliamentary review of regulatory power. Turner wanted to bring justice closer to the people through a legal aid system, in the period when storefront lawyers, such as Michael Harcourt36 and Ian Waddell,37 were coming into prominence. He wanted a circuit federal court, but one 'resident' in Ottawa, in order to be sure of the collegiality needed for consistency of decisions. He had tested his personal inclination in discussions about the idea with John R. Cartwright, chief justice of Canada, and Earl Warren, chief justice of the United States Supreme Court. On the basis of these discussions, Turner decided that he wanted a national court applying federal law, not a dual system.38 Cases against the crown, he felt, should be handled consistently. It requires a specialized court to deal with such diverse subject matter as admiralty, taxation, administrative law, intellectual property, and immigration and federal labour law. He wanted a swift and efficient court and consistency of judgments across the country. There was a national-unity factor as well, with a circuit bilingual court having a trans-provincial jurisdiction. A circuit itinerant court in special areas of federal law was, he said, to bring justice to the people and make it more accessible, quicker, and less expensive. Turner notes, regarding the legislation itself, that this was the first major reform of the Exchequer Court since iSSj.39 The legislation provided a national appellate forum below the level of the Supreme Court of Canada and so would relieve the workload of that court, which was then hearing direct appeals from tribunals and was conducting judicial review. It would provide a wider and more consistent review of decisions of administrative tribunals. Its writs would run across Canada, providing consistency and uniformity. The review was intended to relate to process, not policy. Parliament, says Turner, deliberately delegates to all boards and commissions a range of policy decisions that have to be made within a general area of competence. Parliament does that because it seeks a certain independence in those decisions, partly to withdraw the decision-making

2i8 Chief Justice W.R. Jackett

power to some degree from, the political arena and also because ministers and departments do not have the necessary opportunity and time to deal with such matters. Insofar as policy or the administrative function is delegated, there is no intent that the courts should supplant the policy determined by tribunals and commissions. Parliament delegated the administrative policy to those boards; the courts should not interfere. The courts should not supplant their policy for the policy that Parliament determined should be decided by those boards. There is nothing in the Federal Court Act which suggested that role for the court. The review process was made wider, and was intended to be made wider, than the old prerogative writs. Recourse, says Turner, was to be available where principles of natural justice are not applied, where each party does not have an opportunity to make his case, where a board has exceeded its jurisdiction or gone beyond the scope or ambit of the statute which gave birth to the tribunal or the administrative scope with which it was charged, where the board refuses to exercise its jurisdiction, and where the board has misinterpreted the law. In the last case, whether the error in law appears or not on the record of that decision, the decision of the board can be set aside. It is not open to the board to avoid declaring its reasons. The board must declare its reasons. Even if it does not, the court may nevertheless look behind the decision to ascertain why it has been made. Interestingly enough, in the original planning, Jackett says that he had not envisaged the creation of the Federal Court of Appeal as well as the Trial Division. He rather thought that it might simply have been an additional level of expense. But the Supreme Court of Canada was in the early stages of contracting the volume and nature of cases that it was prepared to hear, and there was the further concern that the jump from a trial court to the Supreme Court was just too big. In any event, once Jackett thought about the idea, he came round quickly to the view that it was a worthwhile variation on the original concept. He thinks that it was probably the combination of Turner, Maxwell, Gordon Henderson, and Christopher Robinson who initially favoured the idea. Jackett became enthusiastic about the Court of Appeal and added some distinctive touches of his own, such as the fact that it is the court, in the effort to provide better service, which prepares the appeal case, which is both faster and cheaper for the litigants.40 Turner's share of the responsibility for managing the project was to get the Canadian Bar Association on side and to shepherd the process of getting the legislation through the House. He recalls that one of the first things they felt they had to do was to persuade the bar of the merits of the idea. They sent out some 12,000 questionnaires to members of the bar and

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had some 1,200 replies, a remarkable statistical return on any direct-mail campaign, especially to lawyers. Many responses contained detailed submissions and suggestions. He recalls that there was some entirely predictable opposition from British Columbia, which had always resisted the idea of a national court and wanted judges assigned permanently to British Columbia. During the three-party parliamentary hearings, Gordon Henderson, who had headed up the review of the legislation on behalf of the Canadian Bar Association, appeared on behalf of the bar. There was unanimous support for the idea in the parliamentary committee, many members of which have gone on to become judges themselves or attain positions of national importance. Among those on the committee were Mark MacGuigan, Lincoln Alexander, and Gordon Blair.41 In the House, there were supportive speeches from both the Progressive Conservatives and the New Democratic Party. Turner is convinced that one of the reasons the project went so smoothly was the breadth and depth of the consultative process. One of the myths that has always surfaced with respect to formation of the Federal Court is that it derived from an experience that John Turner had had when he was still in practice. Turner had represented Chrysler before the Board of Transport Commissioners, a case that related to shipping cars across the Great Lakes on a basis that would have lowered the cost of each car by $300. His position had been opposed by the railways and the steel companies and Turner came away without success. He thereupon applied to get leave to appeal to the Supreme Court of Canada. The application was heard by Robert Taschereau,42 whom Turner suspected was drunk at the time. Taschereau turned him down. It was widely thought that the Federal Court was Turner's way, once he became minister of justice, of inserting another level of court between the Board of Transport Commissioners and the Supreme Court of Canada. Turner laughs off the suggestion, even though Taschereau's decision angered him at the time. What he did do about the Supreme Court, he says, was to make sure applications for leave to appeal were heard in future by three judges instead of a single judge. Birth The official opening of the Federal Court on i June 1971 was marked by special sittings, deliberately held in several cities across Canada, to signal the existence of a new regime. Jackett, as the new chief justice, presided over the Ottawa sitting in the Supreme Court building, attended by himself, Camilien Noel, the associate chief justice, and Justices Arthur Thurlow, Alex Cattanach, and Roderick Kerr. In Victoria, Jacques Dumoulin

22O Chief Justice W.R. Jackett

presided, as did Hugh Gibson in Toronto,43 Allison Walsh in Montreal,44 and Fred Sheppard in Vancouver.45 The openings were attended by prominent members of the bar and speeches were made on the occasion. Among Jackett's remarks were: In addition, the whole area of judicial review of federal boards, commissions and other tribunals has been removed from other Canadian courts and assigned to the Federal Court of Canada. Generally speaking, where the occasion for such a review is an attack on a 'decision' of a federal tribunal, the jurisdiction to entertain the attack is assigned to the Federal Court of Appeal and, where the occasion for judicial review of a federal tribunal arises otherwise, the jurisdiction is assigned to the Trial Division. One feature of the Federal Court Act stands out stark and clear: the overriding objective of the Court is to give service to the litigants. This involves, insofar as both the Trial Division and the Court of Appeal are concerned: 1. sittings throughout Canada so arranged as to bring the Court to the individuals concerned if it can possibly be arranged, 2. sittings at such times as will enable matters to be heard as and when they are ready, and 3. judgments delivered with no more delay than is essential for due deliberation. It involves further a procedure so designed as to eliminate all unnecessary steps and expense and to reduce to the minimum the cost of obtaining an adjudication of a dispute. Equally important to the 'service' objective, the Registry is being organized so that there will be local service to litigants and their legal advisers

Another feature of this Federal Court that involves planning is the necessity of being ready at all times to make available to litigants services in either of the official languages as and when required. Quite apart from any legal requirements, the ability to give such service is of primary importance if the Court is to achieve its objective of service to the litigants. To do so, it is, of course, necessary to have an adequate portion of the judges competent to hear cases in the one language or the other or both, as may be required from time to time. It will be appreciated, I hope, that a great deal of effort and work has gone into the arrangements that have already been made to make the Federal Court a court capable of giving service to the litigants, although it must be admitted that it is inevitably a slow process and that much remains to be done. On behalf of my

Extracurricular Activities 221 colleagues and myself I wish to pay tribute to those who have been, and are, making progress possible. In the first place, the various Ministers of Justice and Deputy Ministers of Justice during the past several years have exerted great effort and influence with a view to modernizing the administration of the Court. I can say that we have not made any suggestion to the Department of Justice that has not been taken up and given the most sympathetic consideration. I sincerely believe that all meritorious suggestions have resulted in remarkably fast executive action ... I should, I think, particularly mention the present Minister of Justice, the Honourable John N. Turner, and the Deputy Minister, Donald S. Maxwell, Q.C. They have been responsible for what has been arranged during the few years just passed, when the creation of the new Court has been in the planning stages. They have both shown an appreciation of what is involved in creating a sound basis for the operation of a healthy Federal Court and they deserve to be specially remembered for their very substantial contributions to the new judicial system which has its inception today. In saying what I have just said concerning the cooperation of the executive arm of government with this judicial organ, I should say at the same time that there has, throughout, been complete loyalty to the tradition of our system that, while responsibility for supplying the Court with the facilities to carry on its work is imposed on the executive, there is, and always must be, a complete separation between the executive and the carrying on of the judicial work of the Court. The necessary relations between the executive and the administrative arrangements for the Court has [sic] never in any way impinged on the work of the judges as such. Nobody can be more conscious of the fundamental necessity of maintaining that principle than the present Minister and Deputy Minister of Justice and the judges of this Court. The second tribute, in connection with the work of preparing the Court for its new role, that I wish to pay at this time, is to the administrative officers of the Court. In particular, credit must be given to Mr. Walter C. Collier, the Administrator. Mr. Collier has demonstrated an ability for initiative, imagination and sheer hard work without which it would have been impossible to have the new arrangements at a stage where we can today make a start on what I regard as a new adventure in court administration. The essential condition, as we appreciate it, is that there should be no intermingling so far as matters arising in the Trial Division are concerned. In order to achieve what we regard as a proper relationship, having both ends in mind, we have unanimously agreed on the following Convention: There will be no discussion between a Trial Judge and an Appeal Judge of any problem involved in a particular case that originated in the Trial Division until at least one year after it has been finally decided. For this purpose an Appeal Division Judge who presided at a trial is a Trial Judge for that case.

222 Chief Justice W.R. Jackett On behalf of myself and my colleagues, I wish to express our sincere resolution and our confident optimism that, with the continued cooperation of all concerned we will justify in the years ahead the confidence reposed in us by Parliament when it enacted the Federal Court Act. George W. Ainslie represented the attorney general of Canada, John Turner, who was attending a conference of attorneys general on the constitution and could not, therefore, be present to see the inauguration of the court which he had been so instrumental in creating. Ainslie reviewed the contributions of the judges of the Exchequer Court, including Joseph T. Thorson, who was present in court for the occasion, and noted some of the comments of the attorney general of Canada46 recorded in Hansard during second reading of the Federal Court Act. The court, Turner had said, was designed to effect very substantial changes in the administration of justice in this country at the federal level

There is a growing feeling among those who practice law and those who observe the judgments of the courts that these ancient common law remedies are no longer adequate for present day purposes. We as legislators must surely be certain that when we set up a statutory body to administer the definite legal principles in accordance with the defined procedures, or in accordance with the rule of law and natural justice as interpreted by the courts, the jurisdiction we have created and conferred will be exercised properly and for the proper benefit of those for whom it was established. There is only one mechanism that can afford us that satisfaction, and that mechanism is the duly constituted and independent courts of this country. [Ainslie continued:] My Lords, Parliament has thus established the mechanism by conferring upon the Court of Appeal of Canada a wide jurisdiction to review and set aside decisions of administrative agencies which, in making their decisions, have failed to observe the principles of natural justice, have erred in law in arriving at their conclusions or have made perverse and capricious findings of facts. At the same time, Parliament has freed the Court from the confining tethers of the old prerogative writs. There has been conferred upon the members of the Bar, together with the judges of this Court, an opportunity to work out and develop the various guidelines wherein the interests of the State can be balanced with the rights of the citizen. This Court, in exercising its supervisory jurisdiction over the administrative process, will be unique in the world, for in giving life to the statutory provisions

Extracurricular Activities 223 of section 28 of the Federal Court Act, it will be able to draw upon the traditions of the common law with its prerogative writs and the traditions of the civil law with its Conseil d'etat. Gordon R Henderson, in his capacity as a bencher of the Law Society of Upper Canada, spoke of the history of the original Exchequer Court and of the judges of the analogous court in Canada, concluding: However, we are not here today as pallbearers at the end; we are here to herald a beginning. This is the first day of the Federal Court of Canada. I congratulate you, My Lords, on your participation in this new challenge. This Court has a rare opportunity to deal with a new statute, new jurisdiction and new procedures. The statute permits a flexibility to enable the Court to adapt new principles to the needs of changing times and changing concepts. It is well that both divisions of the Court will be peripatetic. The Court, being bilingual, recognizes our two founding nations. It deals with both common law and civil law ...

The new jurisdiction given to this Court by way of review over boards, commissions and tribunals vests in you a power to protect the individual against the power of the State. I would urge that you apply this new jurisdiction not narrowly, but largely, in the spirit of the statute to protect against the dangers of an unruly bureaucracy. It is significant that the new jurisdiction is not geared to those principles founded in the igth century, evolved before government became so widely involved in the general activity of the community. We will think with nostalgic longing to the Exchequer Court, its great judges who presided, and the eminent counsel who pleaded there, but while fondly remembering the old, we nonetheless hail the new. Jackett still remembers, with some horror, one aspect of the opening of the court. He had written out a sheet of what he wanted to say at the special sitting, which he gave to Charlotte Kindle an hour and a half before the time of sitting to type, asking her to leave it in front of his seat on the bench. He arrived in court, in the presence of all the dignitaries, only to find that it was not there. He says that it was one of worst moments in his life on the bench. He had to send the registrar out to look for it. The registrar rushed out to find Kindle and she said, 'Here it is/ having left it, carefully typed, on her desk. She was a great typist, Jackett admits, and she was with him longer than anyone else, although she was, he says, no good at filing and had, it seemed to him, the knack of making life more difficult rather than easier.

224

Chi

ef Justice W.R. Jackett

Over and above his role behind the scenes in creating the new court, Jackett was acknowledged as the master of the rules and procedures before the court. In preparing the rules of the court, Jackett had a tabula rasa and was free to pick and choose among rules of other courts to get the best of each and to add others, all designed to make the job of litigation as simple and expeditious as possible. This is not to say that the rules are without their own complications, but the principal objective was to move the process of each case towards either hearing or settlement. Jackett has always thought that 99 per cent of cases should be settled by the lawyers involved if they are doing their jobs properly. He referred to the Exchequer Court rules, Admiralty rules, and Ontario and English rules for ideas. Jackett says that he tried to develop a new general scheme, starting with definitions and then moving on to rules for the running of the court and the basic steps of procedure (for example motions), first at the level of the Trial Division of the court and later at the Federal Court of Appeal and in specialty situations. The job, which was considerable and done entirely by himself, was accomplished over a couple of summers, while the idea of the court itself was being refined. Jackett says that he did all his big jobs over the summer, when the court was not hearing cases except in emergencies. He did not take time off to do it. He felt that it was fortunate that if, as president of the Exchequer Court, he was getting stuck with the job of drafting the rules, then at least he had had sufficient experience in drafting that he could take on the job without the trauma that would have attached to the effort for someone with no such experience. One of the most useful publications in relation to the Federal Court is the Manual of Federal Court Practice, an idea that came directly from Jackett. Jackett told Maxwell that, if the government would find the money to publish it for the lawyers across the country, he would undertake the work of producing it. Maxwell agreed and Jackett spent the summer vacation of 1970 writing the manual and researching the cases which he cited in support of many of the observations and directions it contained. As Maxwell had promised, the government published it through the Queen's Printer. There is, however, no such thing as a free lunch and the manual was published under the name of John Turner, as minister of justice. Jackett says that he was surprised to find Turner's name on it, but then, upon reflection, he concludes that he had been around politicians long enough that he should not have been surprised. A measure of the manual's usefulness, says Arthur Thurlow, is that when he was associate chief justice and later chief justice of the court, he made sure that he gave every newly appointed judge a copy. Darrel Heald was one of the many judges on the court who thought Jackett's manual was first rate. He recalls that, early in his judicial career, he was

Extracurricular Activities 225

sent off to Winnipeg to hear an interlocutory injunction and there were several pages in the manual which gave a great bird's eye view of the entire subject. It was, he says, Very practical material/ This is a view shared by Jean-Eudes Dube, who said that it was the first book he read after his appointment and was an excellent start for any new judge called upon to work in the court. It was so clear for him that he thought the legislation may have been based on it, not the other way around, but Jackett definitely wrote the manual after the legislation had been completed. By \ June 1971, therefore, Jackett had created a new court, prepared the rules by which it would operate, and drafted a manual to assist practitioners before the court and the judges themselves in the workings of the court. It was an incredible demonstration of energy, talent, experience, and legal knowledge, a combination that was unavailable to the country except in Jackett, and without which the court could never have come into existence, certainly not within the timetable that enabled the harnessing of Turner's political interest.

9

The Jackett Court

Since the old Exchequer Court had been completely transformed into the new Federal Court, there was a challenge of having to deal, in effect, with two courts and a selection had to be made from among the existing judges as to who would sit in the Trial Division and who would be designated for the Court of Appeal. There were egos to be managed, a matter of which Jackett was very much aware as he made the selections from among the Exchequer Court judges that would be confirmed by the appropriate authorities. He also needed an associate chief justice in whom he could have complete confidence to run the Trial Division. He chose Camilien Noel for a variety of reasons, including his excellent legal mind and for the linguistic balance his appointment would give the court. If there was to be any problem, it was at the administrative level, since previously Jackett had full control of the whole court and, for all his charm and judicial strengths, Noel was not in the same league as Jackett in actually running a court. Now, even though Jackett was chief justice of the court, the administrative authorities were somewhat more ambivalent and some minor differences did arise, which led to the occasional administrative, but never judicial, friction. Arthur Thurlow was pleased with the choice of Camilien Noel as the first associate chief justice of the court. He thought that he was a 'natural' for the position, even though Jacques Dumoulin was senior to him on the bench. That potential problem was solved with Dumoulin's appointment to the Court of Appeal, where he sat only a few times before he became ill and was forced to leave the court on i December 1972, not long before the statutory retirement age. The experience on the Federal Court of Appeal

The Jackett Court 227

was, for Thurlow, somewhat like driving a new car, since, with a few exceptions on appeals in admiralty matters, where Jackett was not adverse to using three judges on occasion, he had always sat as a trial judge. The final line-up of judges was as fellows: the Court of Appeal consisted of Jackett, Thurlow, and Dumoulin, while the Trial Division included Noel, Cattanach, Gibson, Walsh, and Kerr. The Federal Court of Canada was ready to go. BUILDING THE TEAM

There were additions to the court almost at once and several others during Jackett's time on the bench, partly to fill the roster of judges originally projected and partly to handle the increasing workload of the court as Parliament conferred more areas of jurisdiction upon it. Those who joined the original bench and who were members while Jackett was chief justice are identified below. For the most part, they were or became capable judges and all seemed committed to the new role that the court was to play. Louis Pratte, appointed to the court from the Faculty of Law at Laval University on 10 June 1971, was the first judge named to the Federal Court of Canada as newly constituted. He had started practice with the St Laurent firm in Quebec City, as had Camilien Noel. He had never expected to be appointed to the Federal Court and had rather been hoping to be appointed one day to the Quebec Court of Appeal, on which his father, Garon, had sat and was recognized as a very capable jurist. He is sure that Noel must have mentioned his name to John Turner. At the time of his appointment, Pratte knew nothing about the basic subject matter dealt with by the Federal Court. He had not known Jackett at all, although he had heard of him as deputy minister and as general counsel at the CPR. The first time he actually met him in person was the day Jackett swore him in as a judge. Pratte would sit in the Trial Division, to which he was first appointed, for just over a year and a half, when he was promoted, on 25 January 1973, to the Appeals Division. He considered that he was more suited in temperament to appeal work and, even as a lawyer, he much preferred work before appellate courts to trial work, so he was quite happy with the change. Dealing with the facts is something he acknowledges that he always found difficult. On the other hand, he knew the importance of getting some trial experience and was glad to have sat in the Trial Division for a couple of years to learn that aspect of judging at first hand. He was never sure why he was appointed to the Federal Court of Appeal. He wonders, perhaps, if it was because he was on good terms with Jackett and the powers-that-be realized they 'were on the same wavelength/

228 Chief Justice W.R. Jackett

Darrel V. Heald, a former attorney general of Saskatchewan, was the next of the new members of the Federal Court, appointed on 30 June 1971. He had discussed the prospect of his appointment with John Turner, who had been Very high' on the judicial-review aspects of the court. Kindle recalls her embarrassment on the occasion when Heald first came to the court and stuck his head in the door of the office leading to Jackett's chambers. She thought it was the typewriter repairman for whom they had been waiting; when the typewriter repairman came, he looked more like a judge than Heald. Shortly after being sworn in, he was invited to have lunch with the chief justice, in Jackett's chambers. It began a practice that would continue over the years, when Jackett used to call him from time to time to say, 'Can I come and break bread with you?' They both brown-bagged it for these occasions. Heald was another firm believer in having trial experience before going to sit in appeal, where he was appointed on 4 December 1975. You have to have 'been there' before you sit in judgment on a trial judge, he says. It is all very well to have a pristine transcript and appeal book in front of you, but you also have to understand the heat of battle and how things actually take place. Frank Collier, appointed later in the year on 16 September 1971, was the lone British Columbia judge on the court. He was a fine judge, before whom it was easy to plead, but was dreadfully slow in rendering judgment. He remained in the Trial Division until his retirement in 1992. When Jackett was running the Trial Division of the court during Noel's illness, he put pressure on Collier, who seemed to him to have no conscience regarding delays in deciding his cases, to get his judgments out and threatened not to assign him any new cases until he was caught up with his reserves. Collier was not at all pleased with this, because he enjoyed hearing the cases, and he did his best to insist upon sitting. Although Jackett prevailed, he was never sure whether, as chief justice, he really had the legal power to stop Collier from sitting on cases. Patrick Mahoney, a corporate and tax lawyer from Calgary, who was a minister in the Trudeau government, and Raymond Decary, a tax lawyer from Montreal, were both appointed on 13 September 1973. Mahoney was later promoted to the Federal Court of Appeal on 18 July 1983 and retired somewhat early for health reasons. Jackett had not known Mahoney as a minister and did not spend too much time with him as a trial judge other than when he was running the Trial Division during Noel's illness, but he says that Mahoney acquired a reputation as a solid, influential judge when sitting on the Federal Court of Appeal. He had known Decary when Decary was representing National Revenue and they appeared in a few cases together.1 Decary struck him then as bright and sound, but

The Jackett Court 229

he later developed some mental instability and was never a great success. He retired early as a result of the condition. Four days after the appointments of Mahoney and Decary, George Addy was appointed to the Trial Division from the High Court of Ontario, where he had sat since 1967. Addy had practised in Ottawa and he added bilingual strength to the Trial Division. Jackett always thought that Addy had a good legal mind, although he tended to find the spectacular points. Jackett did not get to know him very well in comparison with the other judges, but he had respect for him. Addy had the habit of writing memoranda to Jackett, to which he gave careful attention and responded in like manner. Jack Urie was appointed directly from his general commercial practice in Ottawa to the Federal Court of Appeal on 19 April 1973.2 Hugh Gibson was a close friend and had suggested that, if Urie ever wanted to become a judge, he should try to get on to the Federal Court. In February 1973 Urie was having lunch with John Turner, now minister of finance, and mentioned to him that he thought he would like an appointment to the Federal Court. On Easter Sunday shortly thereafter, while on holiday in Madrid, he got a call from Turner, who said, 'You have an appointment to the Federal Court of Appeal. Do you want it?' Urie said he didn't know and asked if he could he think about it for a while. Turner told him the order-in-council was already passed, so he had better take it. Urie was sworn in by Jackett at a special sitting of the court, at which Chris Robinson, Don Thorson, then deputy minister, and a couple of members of the local bar all spoke. Jackett then said a few words and closed the special sitting, unfortunately before Urie had a chance to say anything in front of some two hundred friends who had shown up for the occasion. Urie announced that he had a few words to say and Jackett quickly 'unclosed' the sitting and was apparently quite embarrassed. Immediately following the appointment, Urie wanted to have a chat with Jackett, so he called him and Jackett told him to pick up a sandwich and come over to his chambers. Urie still remembers it as amusing that he had to go and get a sandwich to bring with him to the chambers of the Chief Justice. One of the subjects was Urie's concern about a direct appointment to the Appeal Division of the court. He mentioned to Jackett that he had been appointed to the Court of Appeal and observed that he wished he had had some judicial trial experience. Jackett surprised him by asking whether he would like to get some. He arranged for Urie to be assigned to the Trial Division for a year or so, which was particularly easy to do since Jackett was filling in for Noel during his illness. Urie sat for fifteen months in the Trial Division to get the trial experience both he and Jackett believed was necessary before sitting in appeal. This arrangement had an

230 Chief Justice W.R. Jackett

additional advantage for the court, since the Trial Division still had more work than the Court of Appeal.3 William Ryan, a New Brunswick law professor and dean of law at the University of New Brunswick until his appointment in 1971 to the Law Reform Commission, was appointed directly to the Court of Appeal on 11 April 1974. Unlike Heald and Urie, he advised Jackett that he had no intention of sitting, even for a time, in the Trial Division. Jackett says that he always took this as a sign of lack of confidence, since it is much harder to run a court on your own as a trial judge than to sit as part of a panel on appeal, especially as a junior member (Jackett calls them Voters') on the panel. Ryan never seemed, at least from his own perspective, to get along with Jackett. He thought that it may have been because Jackett was strongly prejudiced against academics and, particularly, young academics. There can be little doubt that their styles were different. Ryan had formed the view that Jackett had been opposed to his appointment to the court, perhaps because he had not been properly consulted beforehand. Jackett was, however, never consulted about the appointments to the court and should bear no part of the responsibility for the occasional disparaging reference to the court as 'Senate West/ There is no evidence that Jackett disliked academics as such, although he suspected that many of them were more concerned with churning out material to enhance their reputations than engaging in a lifetime of serious study of the law. For his part, Ryan felt that Jackett was too much in the business of rendering or producing judgments, like products from a factory. He was not at all comfortable with the pace at which Jackett worked and assumed, without knowing Jackett's depth of knowledge and capacity for concentrated work, that the chief could not consider the problems and reasons for judgment in the sort of detailed way that Ryan preferred. That said, however, Ryan was intellectually satisfied with his work on the court and developed an expertise in administrative appeals of Public Service Commission decisions. Jean-Eudes Dube, a francophone from New Brunswick who had held two ministerial portfolios in the Trudeau government, wanted and was given an appointment to the court on 9 April 1975. He was appointed to the Trial Division but wanted to get his judicial feet wet in a somewhat different way. He thought that it would be easier to sit on a panel of three, so he could just shut up, look around, nod wisely from time to time, and concur at the end. Jackett took him to Toronto for a week of immigration appeals with Louis Pratte and he watched Jackett demolish the bulk of the appeals in about five minutes. Most of the appeals were solely for the purpose of delaying deportation orders, so much so that many of the lawyers, who knew perfectly well what would happen, did not even show up for the exercise of being shot down.

The Jackett Court 231

The next appointment to the Court of Appeal was Gerald LeDain, on i September 1975. Although his legal roots were in Montreal, LeDain had been dean of law at Osgoode Hall, where he remained as a professor after his term as dean, and he spent much of his time as chairman of the Commission of Inquiry into the Non-Medical Use of Drugs, which lasted from 1969 to 1973. Jackett considered him to have a very sound legal mind. Yet LeDain (like Ryan) agonized at great length in rendering judgments, often going through several drafts before eventually releasing them. Louis Marceau, a former dean of law at Laval University and then ombudsman of the province of Quebec, was the last appointment during Jackett's tenure as chief justice of the court. He was named to the Trial Division on 23 December 1975. The principal setback affecting the court during its early years resulted from the ill-health of Camilien Noel, who had a mild stroke in 1973 and another, more serious one, a year later which left him unable to speak.4 It became clear that he would not be able to go back to work and this was a potential problem for Noel, since, at the time, there was no guaranteed entitlement to a pension.5 Jackett stepped in while Noel was incapacitated, acting almost as a guardian in a protective and paternalistic role, to take over his responsibilities for administration of the Trial Division of the court while still performing his own duties as chief justice. There was a dual purpose: the first was the hope that Noel might be able to return to work, and the second was that there should be seen to be no cause that he be replaced before the pension was guaranteed. Although Noel never returned to work, Jackett made sure that the court functioned efficiently until the requirements under the Judges Act had been met and the pension was secure. When Noel did retire, Arthur Thurlow went back to the Trial Division as associate chief justice, a position he retained until after Jackett had retired.6 UP AND R U N N I N G

Within the court staff, everyone was aware of the change in feeling about the Federal Court in comparison with the former Exchequer Court. There was a real sense of expansion and of national purpose. They all thought that Jackett had a vision of a great country and a great court for that country. It was, at the outset, a small court with an ambitious approach to rendering justice throughout Canada. If litigants wanted a hearing, they got it, virtually whenever and wherever they wanted it. Eventually, this was cut back to limit the sittings of the court to cities in which the provincial courts of appeal sat, although not at Jackett's request. 'Other people's views prevailed,' he says. It is safe to say that the court did not fully

232 Chief Justice W.R. Jackett

appreciate, at the outset, the degree of resistance it would encounter from the provincial superior courts, including the Supreme Court of Canada, but it was determined to exercise the full jurisdiction granted to it by the statute. There was about the court a sense of adventure and a desire to explore the ramifications of the new areas of jurisdiction conferred on it by the Federal Court Act. It took little time for the Federal Court to begin to carve out its place in the Canadian judicial landscape, although, with the exception of some cases under section 28 of the new Federal Court Act, the Federal Court of Appeal had to wait for appeals from the Trial Division to 'mature' into further appeals. The court had been created as an itinerant court by specific design. This had definite advantages in bringing a consistent justice to all parts of the country, but it could be hard on the judges. Charlotte Kindle was never sure whether Jackett himself enjoyed the travel; he seemed to her not to be the worldly sort of person who would have liked it and it was clear that he did not relish the prospect of being away from Kathleen too much. Jackett says that the travel was almost always done alone and you were either in court or in a hotel room - at least he was - so you never got to know much about the cities you were staying in. Some of the judges, such as Louis Pratte, enjoyed the travel, while others, such as William Ryan, did not. Apparently, Ryan had not given much thought to the implications of an itinerant court when he accepted the appointment. He was a diabetic and the time changes or general stress of travelling often caused him to forget his medication; occasionally, he was found in a coma in his hotel room when he did not appear in court on schedule. Jackett was indefatigable in arranging for the necessary staff in the local registries, getting premises for the court, training the staff, and inculcating in them the approach that their role was to help make it easy to get access to timely and reasonably inexpensive justice. He had a hand in everything that was done in the early years, other than the specific scheduling of matters which were heard by the Trial Division of the court, which was the responsibility of the new associate chief justice, Camil Noel. He even took over that responsibility when Noel was ill and added a new level of organization to the Trial Division during that period, which was maintained when Arthur Thurlow took over as associate chief justice. Morale in the court under Jackett was high. Jackett was good with the other judges and treated them well. He dealt with them fairly and continued his routine of coming around to chat and discuss their cases in a friendly way. The other judges had enormous respect for his intellect and his personality. He was a prodigious worker and could work eighteen hours per day. There was little internal formality and you never needed an appointment to meet with the chief justice. The court always worked

The Jackett Court 233

quickly and Jackett's philosophy in that regard still persists two decades after his departure. Even in 1994, fifteen years after Jackett had left the court, there were no outstanding reserves in the Federal Court of Appeal by July 15, following the litigation 'season/ The process was not much changed from the way Jackett had set it up in 1971. As the court gathered momentum and began to hear an increasing number of cases, the logistics of running it became that much more complicated. Jackett dealt with virtually every motion that came before the court and had, in addition, been scheduling every case for hearing. He thought that he should be a regular 'sitting' judge, just like everybody else, and that he was paid the extra stipend as chief justice, as had been the case when he was president of the Exchequer Court, to compensate for the extra work. It was no longer sufficient for Jackett to carry around a sheet of paper, showing where the judges were assigned to sit from time to time. He found a solution, which would prove to be inspired, in Huguette Narum, who became one of the major assets in the administration of the Federal Court of Appeal. She had worked in the Exchequer Court as Jacques Dumoulin's secretary and had not, in that capacity, had a great deal to do with Jackett. When Dumoulin had to retire from the court at the end of 1972, Jackett called her in to see if she would be prepared act as his executive assistant. The day-to-day administration of the court and the operations with the registry were simply too much bothersome detail for him to handle on his own, especially since he liked to sit on appeals as well as direct the 'traffic/ The official position of judicial administrator was created in 1974 to relieve some of the administrative burden. Although designation of the panels to hear the scheduled appeals was the formal responsibility of the chief justice, Jackett says that Huguette Narum did most of the work once she became judicial administrator. As he looks back on his days on the court, Jackett thinks that one of the best things he ever did was to get her performing the role of coordinating the appeals. It was no accident that, when Thurlow was appointed to replace Jackett, the first note he wrote to himself, according to Darrel Heald, was to 'Keep Mrs. Narum/ Seen from Narum's perspective as judicial administrator, Jackett was a man with an iron hand on everything, but he was equally demanding on himself. With her and others, he encouraged them to ask any questions they wanted, but he wanted them not to pretend they understood something when they did not, because he did not want the same question twice. He had faith in people and helped develop them. She says that she could easily have spent her entire career as a secretary, instead of becoming what she did, but for Jackett's recognition of her potential and his careful guidance of her progress. Charlotte Kindle says that Jackett was

234 Chief Justice W.R. Jackett

someone who put people in positions. He would give an employee the challenge and the opportunity and then it was up to the employee to prove that he or she was up to the job. Jackett appreciated talent in people and enjoyed getting the best out of them. He could spot what they were best suited for and wanted smart people around him. He gave people free hands in fulfilling their job requirements. One of the reasons that the court worked so well was the staff that Jackett recruited, trained, and motivated. For the lawyers practising before the court, the clerks were great, especially for young lawyers; they knew a lot and were real professionals, interested in procedure. Walter Collier was particularly helpful, knowledgeable, and expert in the rules. He could be crusty if you tried to push him around, but he and his staff all knew their sniff. Lawyers, who probably needed the most help of all with the new court, could even ask them what procedures to use. Jackett wanted lawyers in all the provinces to have access to the court and to be able to feel free to ask for assistance. On top of this, Jackett's Manual was clear and well organized - just what the profession needed as it began to work in and with the new court. Monique Giroux is another good example of someone brought along under the encouragement of Jackett at the head of the court. She started working at the Exchequer Court on 3 March 1967 as a secretary with the court registry. Four years later, she was promoted to registry officer, in May 1983 she became district administrator in Montreal, and in 1990 she was made regional director, the first such appointment. When she started, the court office in Montreal was in the Cadillac Building, but in December 1971 Jackett negotiated for quarters on the eleventh floor of the new Palais de Justice, where the court remained until it moved into the new Federal Court Building at the foot of McGill Street in 1994. Giroux observed in Jackett a tireless worker who exhibited a constant concern for the effective operation of the court and wanted both good service and easy access to justice. Whenever he was in Montreal, he was preoccupied with the caseload of the court and was tied up all the time trying to be sure it moved along as quickly as possible. He was mostly concerned with the judicial side of things and Walter Collier dealt with the administration. As a secretary, she did not have many dealings with Collier, although this changed somewhat as she was promoted. As for Jackett, he was always ready to sit you down and tell you why the answer to a particular question was 'yes/ or /no-' Wanting the court staff to understand the application of a particular rule, he gave a full explanation of why the rule existed and what could be the impact. He would come in early in the mornings and worked through the lunch breaks, going over his notes and papers. In court, when she attended as registry officer, he

The Jackett Court 235

'really ran the show' and was an excellent judge. He always made a point of speaking French to her; she spoke English to him. Robert Biljan is the current administrator of the Federal Court. He had started working in the Exchequer Court and took over regional operations for the Federal Court of Appeal once the new court was underway and Huguette Narum became the appeals coordinator. Jackett was mentor to Biljan, who did not have a university degree. Jackett said, 'Don't worry about university, Bob, I'll teach you everything you need to know about the Court/ Walter Collier, the administrator of the court, had worked himself up from being a messenger and had had only a grade 9 education. Jackett had the knack about making you feel good about the job. By July 1971, Jackett had spotted what Biljan was doing and had him installed in late August outside his own office as de facto executive assistant. He needed someone to handle the changes of stationery and all the other details of getting the new court into operation and Biljan eventually got a carte blanche from Walter Collier. Before coming to the court, Biljan had spent three and a half years in Justice in a purchasing function, so he knew where to go to get anything they needed, such as the Hansard-type boxes for fasciscules of case reports. Biljan recalls Jackett saying to him, 'Bob, never lie to me. At least I will know what has happened and I will be able to cover for you.' Biljan said Jackett tested him from time to time. 'Bob, I had to test you/ All transitional matters were handled very expeditiously. Biljan acted as Jackett's executive assistant for a year and Jackett let him use the title even though he never officially established such a position. His actual title was clerk of process, formerly known as registry officer, and he later became manager of the Appeals Division of the court. One day in Winnipeg - it was his first day as deputy registrar - he was extremely nervous and was sweating so much that he could hardly see through his glasses. Jackett said, 'Don't worry Bob, you're doing fine/ In 1976 Jackett had told Collier that Biljan would be the next administrator, perhaps not knowing what would be the internal effect of what he had said. Collier approached Biljan, told him he was too ambitious, and asked if he was trying to push him out. Collier spent the next six years, says Biljan, trying to get him fired. Biljan became administrator of the court in 1981. Collier went to Thurlow, then the chief justice, and told him that if he did not get reclassified he would retire. Thurlow said that was his choice to make. Six months later, he asked for an extension of his appointment and got only three months. Biljan says that the lesson from this episode is that you should never try to bluff the court or a judge. Biljan remembers the occasion of procuring a limousine for the court. Jackett was not particularly keen on having one and did not think the

236 Chief Justice W.R. Jackett

court needed it. Camilien Noel was more interested in the idea and used it fairly regularly after his stroke. Jackett himself needed a car only for late arrivals at the airport. Their usual arrangement was for Blue Line Taxis to have a few drivers who could recognize him and they would wait at the airport to take him home. Jackett would give them an extra five dollars or so as a tip. The result was a quasi-limousine service without the overhead. Jackett is reputed to have told Noel, in relation to local service with a limousine, that he sat with his fellow judges on the bench all day and did not need to travel with them in a limo thereafter.7 In any event, Biljan went to the Department of Supply and Services to try to get a car. Ed Schreyer was then governor general and had a limo with the full pomp and security that had cost $80,000 and his office was ready to sell it to the Federal Court for $12,000. Schreyer did not like the limo and appeared to prefer driving around in a Volkswagen or something appropriately egalitarian to reflect his NDP roots as premier of Manitoba. It was driven up in front of the Supreme Court building to be shown to Biljan. This was not the image Jackett wanted. One of Biljan's friends at Supply and Services thereupon produced a choice of a Lincoln Continental, an Oldsmobile 88, and a Buick. They picked the Lincoln first but later changed to an Oldsmobile. Afterwards, when Biljan was reporting on the acquisition, he found that Jackett had his own friend in Supply and Services to whom he had spoken and, when Biljan asked what Jackett's friend had told him about what he had done, Jackett said, 'About what you said/ Another test. Jackett had given the court staff six questions to ask when lawyers were applying for a trial date on an urgent basis, one of which was to identify the particular urgency. A lawyer from the Department of Justice once said, in response to that question, 'Tell him the Deputy Minister asked for it/ Jackett got the story and asked for it to be repeated, but he gave the date that had been requested. The next day or so, he asked for the story to be repeated again. At the hearing, Jackett berated the Justice lawyer for this conduct and it was reported in the media that the chief justice had been critical of crown counsel. Don Maxwell, then deputy minister, came over to see Jackett a few days later. He brought with him a long list of complaints which, Jackett said, had no substance. Biljan later asked Jackett if Maxwell had come over to try to fire him. Jackett laughed and said 'Yeah/ 'What will happen?' asked the nervous Biljan. 'Nothing/ said Jackett.

JACKETT'S ADMINISTRATION Jackett is still convinced that meetings of the court are a waste of time and remains unrepentant of his policy in that regard, as was Thurlow when he took over the reins of the court. He insists, as always, that a meeting

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where there are more than two people is too big a committee, unless someone has brought something they can all study together. The key to running a good court is to get everyone to agree on what has to be done, which he did with his one-on-one meetings with the judges. Jackett's strategy was to go to judges whom he thought would influence the other judges, not just to work through them in the customary protocol order. He had a good understanding of the psychology of where and when to meet. 'If you want a meeting where you may want to leave, go to their offices/ Pratte remembers Jackett's practice of not having meetings of the judges. But, he emphasizes, Jackett spent a lot of time visiting each judge and it was a rare day when he did not see each judge who was in Ottawa when he was there. He would inquire about the family, the work, how things were going, and what the problems might be, and there really was no need for meetings of the whole group. Other judges, such as Addy, would have preferred such meetings, which had been a practice of the Supreme Court of Ontario, but Jackett simply deflected the idea by saying that his door was always open. Jackett seldom dealt with ministers of the crown. When he wanted something done, he dealt with the deputies. Some of his colleagues thought that the way to get things done in government was through ministers. Jackett knew otherwise. Laskin, he says, never seemed to learn that ministers were not the people who actually made government work. George Addy did not understand Jackett's reluctance to call the minister of justice when he wanted something done. The style in the Ontario courts, from which he had been appointed, seemed to have been different and Addy thought Jackett should have followed the Ontario model rather than his own particular method. Addy also thought that Jackett should have complained via a political route, through the informal 'old boy' network, when Parliament started adding to its workload by giving it jurisdiction over more and more classes of subject matter. For his part, Jackett thought that it depended upon what you wanted to get done. For most matters, the deputy ministers were far more reliable in activating the machinery of government than were ministers. Besides, Jackett observed, Tm not Bill Gale.' Jackett was cost conscious and did not unnecessarily spend any of the court's money, although he took particularly good care of his judges' chambers and working conditions, to the great envy of the judges of the Supreme Court of Canada upstairs. This had been relatively easy to accomplish, since he knew the deputy minister of public works. As a matter of courtesy, but perhaps naively in the circumstances, he invited the Supreme Court of Canada judges down to see the modernized premises. By comparison, in the Supreme Court of Canada, the late Wishart Spence

238 Chief Justice W.R. Jackett

was all upset because in his chambers there was a badly worn spot in his carpet which he had not been able to get fixed. One day on his way into court, some men from the Department of Public Works arrived to say that they were there to fix the carpet, which made him very happy. When he came out of court during the break, he found that all they had done was to turn the carpet 180 degrees, so that the worn patch was now behind him. Then he was really mad. Arthur Thurlow followed Jackett as chief justice of the Federal Court of Canada. The two of them had worked together for a long time and were much the same in many respects. He was a virtual disciple of Jackett in the manner of running the court, so there was little difference in the way the court operated, including the absence of meetings of the court as a whole. Thurlow himself was almost uncritical in his admiration of Jackett, whom he considered to be a tower of strength, a tremendously able worker, fast, efficient, about as capable a person as you would ever find. He had a tremendous impact on the court right from the day he came, and for the better. When he became chief justice, Thurlow says, he also did all the motions work and he introduced only minor changes in how things were done. Jackett was, for them all, unique as chief justice. When Thurlow had taken over and he and Biljan were pondering various problems with the court, they would say, "How would Jackett do this?' "Well/ they would conclude, 'He would have done this/ And that would be what they decided. Occasionally, but only occasionally, Thurlow would say, 'Well, things have changed and we can't do it that way.' The styles of Jackett, Noel, and Thurlow were certainly all different. Louis Pratte describes Noel as a charming man, very bright, but not as powerful a lawyer as Jackett. Jackett had a rough exterior but was, in fact, considerate. Thurlow, too, was a charming person and an exceptionally good lawyer, but different from Jackett, with much accumulated experience; a wise judge, he seldom, if ever, made a mistake.8 He was slow and deliberate, not half as quick as Jackett but very reliable; every time Jackett had a serious problem, he would never make a decision without consulting Thurlow. He was humble and quiet, not at all like Jackett, who was like a little wrestler. Louis Marceau recalls that Thurlow, when he came to discuss a case with him, often used the charming introduction of 'Let me play on your piano.' THE COURT F I N D I N G ITS WAY

It was not altogether surprising that, with a new statutory court in existence, one that had a jurisdiction that, in some cases, overlapped those of

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the provincial superior courts and, in some cases, purported to exclude them, a good deal of the early cases involved a testing of the limits - a judicial 'kicking of the tires' - of the new Court. The jurisdiction of any federal court within a federal system, especially under the Canadian constitution, will always have some controversy attaching to it. Jackett was fully aware of this in all his discussions with the bar, whether formal or informal, from the outset of the whole Federal Court project. Nor was it surprising that the provincial courts would resist any apparent encroachment on the full and uncontested jurisdiction they previously enjoyed. This was true even of the lawyers practising before those same courts, especially in Ontario. They were familiar with the courts and had a significant source of income derived from pleading cases involving the federal government in such familiar surroundings, whether or not the action had an impact outside the province, and were in no hurry to venture into uncharted waters unless it was absolutely necessary9 The politics of vested interest and a natural disinclination to change easily overcame the intellectual satisfaction to be derived from a consistent jurisprudence in areas of law that were under rapid expansion in the early 19703. The provincial courts and their lawyers turned out to have a powerful ally in quarters that might also have been expected - the Supreme Court of Canada. The Ontario judges saw the Federal Court as a threat to theirs. Thurlow agrees that the Ontario courts did not like the idea of being deprived of their jurisdiction to hear appeals from federal tribunals.10 This was, of course, quite different from any attempt to prevent the provincial courts from deciding constitutional matters, since the federal Parliament cannot deny the right of the provincial courts to decide constitutional questions." Faraway British Columbia wanted permanent judges stationed there. The danger inherent in this attitude was, said Jackett, that British Columbia judges would then be likely to 'go native' and detract from the national consistency the Federal Court was seeking, although, in due course, Frank Collier became, for all practical purposes, a resident judge of the court in that province. As to the general level of suspicion among the provincial superior courts, Jackett knew that Bill Gale, chief justice of Ontario, disapproved of the Federal Court, as did British Columbia, but he thought that most of the other provincial court systems would not have wanted the additional jurisdiction dumped on them. Even Gale seemed to relent a bit after a while, particularly after Jackett declined to accept the position of vicechairman of the Canadian Judicial Council on the ground that it would not be a good idea to have the chairman (the chief justice of Canada) and the vice-chairman both from federal courts located in Ottawa.12 This

240 Chief Justice W.R. Jackett

notwithstanding, Gordon Blair says that it was 'too true' that the provincial courts took a dim view of the upstart court and that the excellent work done by the Federal Court was never given proper recognition in the provincial courts, especially by the Ontario Court of Appeal, where it was risky to one's reception even to cite a Federal Court decision.13 There seems to be little doubt that the Supreme Court of Canada was somewhat nervous about the Federal Court and the niche it was carving out in the Canadian jurisprudential landscape. As Bud Estey describes it, the remarkably quick, efficient, and successful launch of the Federal Court was a matter of some envy among other judges in Ottawa, perhaps especially Bora Laskin. At all times, it seemed to him, Laskin was under the spell of an inferiority complex vis-a-vis Jackett because of Jackett's extremely detailed and thorough knowledge of everything and everybody in Ottawa. He could get things done. He built the courtrooms, organized the staff, recruited the best people, staked out possessory rights across the country in existing court facilities, and oversaw the publication of the Federal Court Reports and arranged for their wide distribution throughout the profession. None of this passed unnoticed by Laskin, who became noticeably envious of Jackett's administrative ability and the quickness with which he could make things happen. Louis-Philippe Pigeon was an outspoken Quebec judge on the Supreme Court of Canada. He was well regarded for his intellectual capacity but was quite often the dissenting judge on many issues decided by the court. He and Jackett had something of an intellectual rivalry, partly on jurisdictional questions affecting the Federal Court, in which Pigeon reflected the prevailing provincial court judges' suspicion of the upstart court, partly on issues of intellectual-legal approach, and partly on personal matters. Pigeon's wife remarked on more than one occasion over the years that Pigeon did not treat Jackett with sufficient politeness at a purely social level. On intellectual-property matters, Pigeon saw himself as having become an expert. Jackett was also an expert, but the base of their views was somewhat different; Jackett would not hesitate to have a patent declared invalid, whereas Pigeon had a tendency to hold that a patent was almost inviolable. Pigeon did not, apparently, like the idea that some people thought that Jackett was as good as he was, despite Pigeon being in the position, on the Supreme Court, of having the last word. Camilien Noel gave Jackett the impression that Pigeon thought Jackett was becoming too highly regarded. Pigeon took a gratuitous 'shot' at one of Jackett's decisions in an income-tax case, after Jackett had retired. Jackett had held, in the case of Atkins v. The Queen?* that a damage award was non-taxable, based on the Income Tax Act of the day, which was later amended. Pigeon, deciding another case entirely, Jack Cewe Limited v. Jorgenson,15 made

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a point of declaring that, in his opinion, Atkins had been wrongly decided. The comment was completely unrelated to the point he was called upon to decide in his own case. Laskin did not, notes Jackett wryly, 'regard with favour' the way the Federal Court was being operated, although the personal relations between them were quite civil. Although it is not, as he is wont to say, a fully considered position and may properly fall into the realm of speculation, Jackett is not sure, looking back, that he would have insisted upon some of the jurisdiction of the Federal Court, for example, in traditional areas of provincial superior court jurisdiction. Yet he remains convinced that some such jurisdiction is needed to deal with certain federal matters. Without the inherent political considerations that prevail in Canada, there could easily be a major revamping of court jurisdiction. The concerns of the provincial superior courts eventually found their way into their own judgments as well as into some of the restrictions that would be read into the law by the Supreme Court of Canada. The latter did not like the idea of expanding the Exchequer Court of Canada into a judicial-review body for the federal administrative tribunals. The Ontario judges, in particular, were quite adamant about the fact that the existing certiorari practice in Ontario worked adequately. What they failed to recognize, observes Bud Estey, was the uneconomic nature of judicial review in the faraway Ontario courts. In addition, why should Ontario, a province, have a primary role in regulating the administrative activities of the federal government when those tribunals carried on much of their work outside Ontario?16 Ontario, and its chief justice, Bill Gale, in particular, thought that the Federal Court was eating into their jurisdiction. Bora Laskin certainly thought so. The Supreme Court of Canada took the position that the jurisdiction of the Federal Court was in respect of and restricted to statutes enacted by the federal Parliament; it did not agree that the Federal Court had jurisdiction generally in respect of matters that were within the jurisdiction of the federal Parliament, but instead only where that jurisdiction had actually been exercised by such body. If the federal Parliament had not actually exercised the jurisdiction by enacting legislation, then, said the Supreme Court, the Federal Court could not act.17 Arthur Thurlow suspects that the views of the Supreme Court of Canada on the matter of jurisdiction could have been affected by the fact that its judges had all been appointed to the court from the provincial courts (or directly from practice, in some cases). The same view might not have prevailed as easily had there been any judges on the Supreme Court of Canada with experience in the Federal Court, but the first Federal Court judge to ascend to the Supreme Court of Canada was Gerald LeDain, in 1984. The only other

242 Chief Justice W.R. Jackett

has been Frank lacobucci, who served briefly as chief justice of the Federal Court on the way to his present position on the Supreme Court.18 Both of these appointments were made after the Supreme Court had done its radical surgery on the jurisdictional issue. Jackett says that all the judges on the Federal Court thought that the Laskin-led Supreme Court of Canada's view of limitations on the Federal Court's jurisdiction was little short of judicial heresy. The power of the federal Parliament to grant the jurisdiction was clear. There were many perspectives on the efforts by the Supreme Court of Canada to cut back on the jurisdiction of the Federal Court. Some of the decisions were judicial 'stretches' that came from personal attitudes towards the new court as much as from justifiable interpretations of the law. It is often a mistake to think that what appears in judgments of a court is nothing more than an objective interpretation of the law. Judges are human, with all of the tendencies that condition may suggest. In this series of cases, the Supreme Court of Canada deliberately chose a wingclipping interpretation that flew in the face of the basic legislative intent that Parliament had in mind for the Federal Court when it was established. Jackett says that he and his fellow judges never expected to be upheld in all cases and that they were busy enough with their own work that they did not hang around waiting to see what the Supreme Court might do with their appeals. As to the section 101 decisions, he thought that it was a waste of time to read cases on constitutional matters which were contrary to everything he had been brought up to believe and that there was little point in trying to write judgments which would demonstrate that the principles applied by the Supreme Court of Canada were legally unsound. In the judicial hierarchy, it was the Supreme Court that decided how many cookies they would get. So they carried on.1? All this notwithstanding, the Federal Court had its own concerns about what its jurisdiction could, or should, be and was regularly in contact with the deputy minister of Justice regarding matters that it thought were worthy of study and possible legislation, based upon its experience over the first few years of operation. They were also much aware of the concerns that had developed within the provincial superior courts and were prepared to suggest variations on the original mandate of the court. PROCEDURAL COMPLEXITY

If there was one aspect of the new Federal Court Act that seemed to cause confusion, it was the interrelationship between sections 18 and 28 and which remedy would apply in what circumstances. Section 18 set out the

The Jackett Court 243 jurisdiction of the Trial Division and section 28 was for the Federal Court of Appeal. It took some time before everyone figured it out and the issue had a tendency to generate a great deal of heat but very little light. The confusion revolved around the fact that there appeared to be two possible remedies in certain circumstances where an appeal to the Federal Court was provided for in a statute. Where such an appeal was contemplated, the Trial Division had jurisdiction, but there might also be a right to apply for relief under section 28 to the Federal Court of Appeal. The practice developed of joining the two and proceeding with them both together. Jackett provided the judicial roadmap in Aly v. Minister of Manpower and Immigration20: Where there is an application under section 28 of the Federal Court Act in respect of a decision or order and there is a right of appeal from that decision 'if leave to appeal is granted' by this Court, I would normally favour granting leave to appeal as a matter of course, in the absence of special circumstances, on terms (a) that the appeal is launched forthwith, (b) that the appellant forthwith seek an order under Rule 1314 joining the two proceedings and giving directions as to the conduct of the joint proceedings, and (c) that the joint proceedings be heard and determined without delay and in a summary way. My reason for this view is that, when I read section 28 and section 29 of the Federal Court Act together, it is my conclusion that the statutory intention is (a) that no right of appeal previously existing was to be in any way cut down by those sections (except for the substitution of the Federal Court of Appeal for the Supreme Court of Canada effected by the Schedule to the Federal Court Act), and (b) that the right of review provided by section 28 is a minimum right to be available to every party 'directly affected by a decision or order.' This is accomplished by restricting the section 28 right of review only 'to the extent' that the order or decision 'may be ... appealed.' Furthermore, in my view, this modern legislation should be interpreted to eliminate all procedural technicalities that are not absolutely required by the statutory provisions in providing an aggrieved person such relief as falls within the ambit of the jurisdiction conferred upon the Court. Refusal of leave, where there is no apparently arguable question, ordinarily serves the purpose of eliminating unjustified delays and expense. Where, however, the applicant is exercising a right to have the order or decision reviewed under section 28 in any event, in my view,

244 Chief Justice W.R. Jackett leave should be granted so that the court, when it does review the matter, can deal with the substantive questions involved without concerning itself with technical limitations within the ambit of the jurisdiction.

Arthur Thurlow, who agreed with what Jackett had said in Aly, commenting upon the section 18 - section 28 conundrum, says that nobody on the court bothered to read the academic commentary on the process. They were concerned with making the provisions work and not about some theoretical considerations of why it could not, or might not, work. Jackett himself admits, in retrospect, that perhaps they did not take enough time to explain the mechanism to the academic community. Yet he is convinced that sections 18 and 28 worked perfectly well and is quite huffy about the suggestion that they did not, especially when this suggestion came from 'a whole bunch of people who have never set foot in court/ It was, he said, the only part of the Act that he really cared about and he could have 'blown all these damned academic types to hell/ Gordon Blair, who sat on the House of Commons committee responsible for the bill during second reading, thought that the provisions were not entirely clear but there seemed to have been no serious worry at the time and he supposes that they all had confidence that the problems, if any, would be worked out with experience. JUDGES AND JUDGMENTS

Jackett, the leader of the court, was well prepared for the cases he heard and did all the preparation himself, even to the point of checking the citations. As before, he did not use student clerks. Nor did either Louis Pratte or Pat Mahoney. Jackett made his own notes on the cases in handwritten form. He never liked to waste paper and would start his memoranda on a piece of foolscap and make all his changes and editing notes on the same paper, with arrows and balloons filled with inserts all over the place as he pursued his line of thought. He even used envelopes when he ran out of space. He never started over again or threw away the first draft. Louis Pratte was just the opposite. He would start his own neatly written notes on a sheet and, if he changed his mind, he would start over with a fresh piece of paper. Jackett's practice continues to this day and the memos he sends to the firm for which he acts as advisory counsel often test the abilities of the secretaries at the other end of the mails. He does not use a fax or other technological aids. His books are filled with markers, many left over from problems previously researched. The only concession to modern practice is the use of the ubiquitous 'Post-it' pads with a slight adhesive strip to keep them in place.

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Getting from hearing to judgment in the Court of Appeal was not governed by any set procedure. The judges on each panel would generally discuss the case informally before going in and would have some idea of each other's respective preliminary views. They could be ambivalent in a tough case and afterwards would chat again to see if anyone had a definitive view. Maybe someone would agree to try a preliminary draft and they would circulate it for comments. There was no rule of the junior speaking first. Jackett says that he wrote judgments quickly and sent them around for criticism. It was pointless not to do so if he had already done the work. There was not much difference to him between a judgment and a legal memorandum, which may have accounted for the speed with which he could turn them out. It became a matter of some disappointment to him that far too many of the judges on the court simply agreed with what he had written. It made it look as if perhaps they were not doing their own work and gave the impression that he was the only one speaking for the court. As for himself, he often found that he changed his mind in the course of writing a judgment and he thought that others should go through the same process, particularly with difficult points or where it was hard to see exactly where you were heading. It was best for everyone to work out the problem for themselves. Jackett's 'notes' were one of the worst-kept secrets of the court. It was part of the catechism that these "notes' were never judgments or reasons for judgment, although they were almost always thorough enough to be quickly adapted to or turned into reasons for judgment.21 Although the notes might change during the course of argument, from the vantage point of the practising (often perspiring) lawyer, it was all too clear that Jackett would have had a clear idea of what he thought should be the outcome prior to hearing argument. Your job as counsel, says Peter Troop, was to see if you could change his mind before he would reach under the blotter and pull out his 'notes' and deliver judgment. Sitting with Jackett was an education in itself. He could be intimidating, even for his fellow judges, let alone counsel, because his knowledge of the law was so extensive. In addition, he worked so hard and so fast, Pratte says, that you often had the impression you were sitting with God the Father. Heald and Pratte had developed a sort of a ritual when they were flying to or from the west. Heald had been attorney general of Saskatchewan and knew the province like the back of his hand. Kamsack was just north of Yorkton and Pratte would get him to say when they were over Kamsack. Heald would keep an eye out the window and, when it was the right moment, he would tell Pratte and they would bow three times. When they were travelling to sit in cities throughout the country, most of the judges, at the end of the day, would like to relax and

246 Chief Justice W.R. Jackett

have a good dinner. Jackett would go back to his hotel room at 6:00, get into his pyjamas, sleep till 8:30, order a club sandwich from room service, and then, with his bottle of rye, work on his notes until 2:00 or 3:00 a.m. He was always well prepared for the case and seldom learned anything during the hearing that he did not know beforehand. They could be out on a case which lasted three or four days and, on the last morning, Jackett would produce lengthy reasons that were so well done that everyone was overwhelmed and agreed with him. It was usually brilliant work. He was, says Pratte, an extremely bright jurist, very powerful - maybe too powerful. On one occasion in Vancouver, somewhat uncharacteristically, Jackett joined Urie and Pratte for dinner at Hy's Steak House and got 'drunker than a skunk' and they closed the place. Jackett and Pratte were arguing in loud voices. It was lots of fun. To sit on an appeal with Jackett, says Pratte, was 'not a waste of anyone's time.' Jackett would tell the lawyers when they were off base, a characteristic also adopted by Pratte as he became more senior, and the result was that nobody wasted time. Hearings with him would be like discussions of the law. Jackett definitely ran the court when he was sitting. You knew who was the boss and you knew that he had probably made up his mind as to how the case would go and had reasoned it out in advance. He knew a great deal about every area of the law, which was intimidating to many of the other judges. His colleagues might disagree with him on occasion, but they did so diffidently. On the other hand, they all found that Jackett was decent to work for and he never held a grudge of any sort. Urie cites, as an example of Jackett's persuasiveness, a patent case on which he and Ryan once sat with Jackett, who had the idea that the patent was deficient and did not properly describe the invention. It was a section 36 Patent Act issue that had not been raised by either party, but Jackett became fixated on it and called on both counsel to explain their positions. He wrote his judgment on this point. Both Ryan and Urie thought, in their guts, that something was wrong, but they went along with Jackett and concurred in his disposition of the matter. The case was appealed to the Supreme Court of Canada, where Pigeon, Jackett's arch rival in the intellectual-property field, stated that the matter should never have been raised.22 Jackett had a tremendous influence. While he did not try to impose his views on the court, he was such an impressive jurist that it was easy to agree with him. He was perhaps wrong on occasion, says Pratte with a smile, but never obviously wrong. Asked if it was easy to be with him, Pratte said: 'Yes, it was easy but it was sometimes a little humiliating. And ... he didn't do that for that reason ... In a sense it was not too good

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for the court, but in another sense it was really a challenge to be able to work with him, and try and emulate him, it was really a challenge/ Jackett had the potential, says Heald, to be overwhelming, but he was not a bully. You had to know what you were talking about, because he would have researched the topic and he loved to argue. Jackett was forceful in his opinions and had the courage of his convictions. He knew the jurisprudence so well that he tended to be persuasive. Heald remembers a case they sat on23 in which he got talked into agreeing with Jackett and Arthur Kelly. The Supreme Court of Canada reversed them. Jackett laughed about it and told Heald that he should have worked harder to talk everyone into agreeing with him. Heald observes that Jackett, unlike many other judges, was not upset if he was overruled, certainly a contrast with Joe Thorson. He was regarded by his colleagues as an excellent judge and ranked intellectually with the best of the judges on the Supreme Court of Canada. He was the acknowledged real leader of the court, always knowing what he wanted to say and do, so much so that Louis Marceau says that he "was half the court... the other half was the rest of us/ Jackett was, for Pratte, a combination of two personae. On one side, he was the most considerate chief justice you could imagine. He made sure that he knew how you were feeling about things and if, for example, your wife was not well, he would arrange matters so that you did not have to be away from home. On the other side, he could be rough with you if you were disagreeing with him, but quite often he would drop by the next day and say that perhaps you had a point after all. He certainly argued strongly for his ideas, but he was too intellectually honest not to have an open mind. He did not always change his mind, but if he did, he came and said so. Jackett had no compunction about telling Pratte if he thought he had rendered a stupid judgment and Pratte assumes he would have done the same with the others as well. It seemed to Pratte that Jackett never thought of anything but the law. He was a law and order man, not afraid of innovation but with no preconceived ideas, such as always rooting for the underdog. Each case was a separate legal problem to be solved in accordance with the law. He worked all the time; his lunchtime reading, even when they were sitting, was the Times Law Reports. Nourishment consisted of Cheddar cheese, soda crackers, and /-Up ('j-Up, of all things!' says Pratte, with a delightful Gallic shudder). He was not particularly close to any of the judges, but he talked more with Pratte than with the others. Many of his colleagues thought that Jackett regarded Pratte as his judicial 'son/ Jackett certainly regarded Pratte as an excellent judge, but he does recall working hard to help him become even better. Pratte says that Jackett was one of the few on the

248 Chief Justice W.R. Jackett

court with whom he could discuss any problem on the same basis as he could with a civilian. Indeed, it was easier than with Camil Noel. It was not a matter of basic knowledge of civil problems per se, but just being on the same 'wavelength/ On civil-law issues as such, he would tell Jackett what the law or the problem was and thereafter they could discuss the matter with ease. On a tough case, Jackett says, he would like to have Arthur Thurlow as his 'second seat/ Jackett insists that Thurlow was not sufficiently appreciated and that he was much better than most people give him credit for.24 In cases that Jackett took under reserve, such was his opinion of both Thurlow and Noel that he never released a judgment without letting one or the other of them review it in case he was unclear. Where he and Thurlow were on the same case, they often had strong disagreements and they might well go on exchanging drafts for two or three weeks before settling on one with which they were both in agreement. The use by the court of deputy judges was a regular feature of Jackett's administration. This was a matter in which there was not universal agreement within the court. Some of the judges did not mind, while others thought it was not a good idea. There is no question that the administration of the court was improved as a result, since the Court of Appeal in particular was quite small, partly because Jackett did not want the number of permanent judges to grow. The practice made it possible for cases to be decided more quickly for panels could be assembled and dispatched to where they were needed. Jackett acknowledged that it was his responsibility to satisfy himself that the judges he selected were able to handle the work. Some of his colleagues, particularly William Ryan, believed that the deputy judges were either not fully up to date with the law or were too likely to be influenced by Jackett. Pratte remembers at least one occasion when they did not follow Jackett in a case that went to the Supreme Court of Canada and the two deputy judges were confirmed.25 Jackett was delighted, because he knew that some had criticized him for making too much use of deputy judges. Thurlow did not mind the idea of deputy judges sitting on the court. It was, in any event, a practical arrangement for a small court and it gave some degree of local flavour along with some pleasant contact with other judges. To be fair, the deputy judges were all good judges and there is no suggestion that Jackett would have suffered fools on the bench any more than he did generally. Furthermore, with the deputy judges, he made the selections, unlike the members of the court generally, who were chosen elsewhere. His record in getting agreement from deputy judges was not much different than his record in getting it from the regular members of the court. Jackett's own view was that it made for a better federal court to

The Jackett Court 249

use experienced judges from the provincial courts, especially where there may have been factual issues involved.26 The deputy judges rarely wrote reasons, although Fred Mackay once wrote a dissent against Jackett and Thurlow on a technical point in a patent case and the Supreme Court of Canada agreed with him.27 The record of the Federal Court in rendering speedy judgments is a direct consequence of Jackett's views that justice should be at the service of the litigants. Believing in particular that justice should be timely, he imposed this principle on the court through his own conduct, and the tradition, in the Court of Appeal at least, has been maintained to this day. Ryan did not enjoy the pressure of deciding cases quickly and laid the blame for this at Jackett's feet. He contrasted Jackett's approach with that of Arthur Thurlow, when Thurlow later became chief justice: 'Well, I think, he as did I had a feeling that it is as important to get things decided right as to get them decided. And I never liked working under pressure, if pressure involves getting judgments out. I realize there has to be a time limit on these things, things can pile up, but I always felt that with Jackett we were under too much pressure to get the product out.' Ian Bushnell appears to take a dim view of Jackett, consigning him to the pigeon-hole of judicial formalism and contrasting his desire for speedy justice with the more desirable approach of the 'contextualists' who want 'to think out a solution to the problem, and this takes time.'28 This rather makes it seem as if Jackett were some mere automaton, churning out judgments with no thought as to the meaning of the law involved, apparently oblivious to the surrounding context. It is an unfortunate caricature of a superb judge. If one prepares for a case, listens to the arguments, thinks clearly, knows the answer to the particular legal problem, is decisive, and can write clearly and quickly, it is difficult to imagine why one should then take weeks or months to do what could be done forthwith or why that combination of characteristics should be antithetical to mature consideration of the legal issues involved. Bushnell's view sweeps up with the same broom a number of capable jurists who were satisfied with the Jackett 'product' and in respect of whom there is no record of any gun having been held to their heads to force concurrence with a Jackett decision. Asked if there were many new initiatives he took or was conscious of taking, Jackett says that there were a few, but that, on the whole, other than in matters of procedure, where the judge acts qua legislator, he always thought that he was deciding something that had already been decided. This is likely a combination of modesty and the approach of the common law lawyer who believes that the law has always been what it is.29 The role of the judge, in this view, is to 'discover' what precisely the immutable law is in a given situation.30

250 Chief Justice W.R. Jackett

There were, in Jackett's day, few divisions of opinion in the court on matters of judicial principle. He recalls that one of the closest occasions they came to open disagreement related to 'business purpose' in incometax matters, as reflected in the judgments in Leon31 and Massey Ferguson,32 where Darrel Heald and Jack Urie had completely different views. His own view was that a taxpayer could take advantage of parliamentary schemes for tax purposes without running afoul of the Income Tax Act in general terms and this has been regularly upheld by the Supreme Court of Canada. Charlotte Kindle created a veritable magnum opus in the form of a summary of every case heard and decided by the Federal Court of Appeal from its inception to the end of 1979, the year both she and Jackett retired. It runs to some 1,220 legal size pages, all typed by hand. It was something she did because there was always a need to be able to refer to other decisions and this was a way in which she could make sure she knew where everything was. She did it during times when the workload permitted and stayed after work on occasion to keep it up to date. She did not care whether Jackett approved of the project or not. On the other hand, she says, Jackett never said not to do it. It made her job more interesting and meant that she was not just sitting around reading in her spare time, as she did when she was working for Charles Cameron, a former judge on the Exchequer Court. Also, she was not wild about filing, a disposition well known to Jackett. She gave copies of the summary to the secretaries of the other judges and the registrar. She had no help in compiling it and said she did not need it, since there was always extra time available to do it. She also had card files for immigration appeals, a further jurisdictional burden dumped on the Federal Court by Parliament. The Federal Court came to hear more and more cases of an administrative nature as its jurisdiction increased. During his time in Justice, Jackett had appeared in the Supreme Court of Canada as counsel with James C. McRuer, later chief justice of Ontario, on the Noxema case,33 which was the first time he had got together a set of notes on administrative law. From this start, he began, initially during the summer of 1973, to put together the principles of administrative law, along the same lines as his earlier work on constitutional decisions of the Privy Council, although in narrative format rather than as a chart. He continued this for many years, expanding it to a lengthy treatise entitled 'Section 28 of the Federal Court Act and Principles of Natural Justice/ which he regularly updated and made available to his colleagues on the bench.34 However, he said that the Supreme Court of Canada changed some of the principles, added new rules, and restated others, so it was not practicable, in the face of all the regular work of the court, to keep it up. The changes were, perhaps, not to be un-

The Jackett Court 251

expected in a field of law that was relatively new and in which there was bound to be considerable evolution as the rights of citizens and the authority of government were established by the courts. It was a project on which he thought he might work during his retirement. DISTRACTIONS (ROYAL COMMISSIONS)

Jackett was never on a royal commission as a judge; he had firm opinions on the matter and was not worried about expressing them. His view is that some commissions are proper for a judge to do. If so, then the decision is one of weighing such participation against the disruption of the court and the carrying out of its duties. Other commissions are struck because there is a reluctance on the part of the government to make a policy or political decision. Those are, in Jackett's view, not proper for a judge to handle. Although the matter has since been resolved, he also thought that the additional per diems the judges received for sitting as members of the royal commissions were not fair to the other judges who had to carry the load while the judge was away. Darrel Heald has personal experience regarding Jackett's dislike of judges taking on royal commissions. Heald had been approached by Otto Lang, who, as minister of justice, was looking for a third judge to sit on the royal commission dealing with the question of bilingual air-traffic controllers. Heald called Jackett to see if he could accept the position. Jackett said to him that he suspected Heald wanted to do it. Heald said he was interested and thought he could add something and live with any criticism that might eventually result. Jackett said, 'Nobody on this Court is indispensable - even me!' So Heald became part of the commission.35 Discussing the matter at a meeting of the executive committee of the Canadian Judicial Council on 20 September 1976, Jackett said that because, in the past, he had objected to the appointment of judges from his court, he was never consulted any more, he was simply by-passed. In such circumstances, all he could do was to make his views known to the judge, who was not obliged to accept them.36 At another executive committee meeting of the council, on 28 March 1978, Jackett noted that, when a minister called about the appointment of a judge to sit on a commission, it was not usually to get his consent or suggestion but to tell him what would be done. He wrote a forceful letter to Prime Minister Trudeau, complaining about the practice of naming judges to such commissions without first consulting with the chief justice of the court as to the effect on the workload of the court while the judge was occupied with the commission. Trudeau had appointed Hugh Gibson to a commission without consulting Jackett, who thought this

252 Chief Justice W.R. Jackett

was contrary to the routine to be followed in such matters. Trudeau never replied to the letter. COUNSEL BEFORE THE COURT

Colin K. Irving, a Montreal lawyer who does a good deal of pleading in the courts on major cases, remembers an occasion in his younger days pleading before Jackett, during which he referred to and quoted from some legal reference work. Jackett kept repeating 'living author' to Irving, who did not realize what he meant by the mantra. But eventually Irving divined that all Jackett wanted was for him to say that he adopted, as part of his submission, the language of the living author, who was not 'authority' and who might change his mind, since he was still alive. He responded accordingly, once the penny had dropped, and Jackett was satisfied. Jackett was just as hard on his friends who appeared before him as on other counsel. He often told Gordon Henderson to slow down, that 'we are not going to be swayed by great rhetoric; we need time to think.' If Henderson got off on some line of argument that had not been contained in his factum, which happened reasonably often, because the written arguments were generally prepared by junior counsel and Henderson came in for the oral argument, Jackett would ask him where in his memorandum the court might find the point he was making. Henderson would be forced to admit that it was a new line of argument, not one that could be found in the memorandum. Jackett would then require him to file an amended memorandum, so that both his opponent and the court would have a chance to consider the point. With costs for the adjournment against Henderson.37 Heward Stikeman recalled that, on the bench, Jackett could be very stern as a judge, but later, in chambers, quite cordial as he explained why he was going to decide against him. It was typical of a Jackett court that, on an appeal, if the court was not persuaded that the appellant had a case, counsel for the respondent would not be called upon to argue and judgment dismissing the appeal would be rendered on the spot. Jackett recalls that Camil Noel used to get upset when he did not call on a lawyer to reply, because he thought it was discourteous to the lawyer arguing the case for the appellant. Jackett would say to him, 'Why worry about his feelings? After all, he was the one who took on the case.' Counsel, and even witnesses or clients, in cases before Jackett could expect to get a fairly thorough working-over. In the Lois Hollinger appeal,38 which involved the possibility of a taxpayer ending up with a total tax bill in excess of her income, Jackett remarked that her husband (who was present in the courtroom when the appeal was argued) was a doctor and he could

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afford to pay the taxes for her. Jackett does not recall the occasion but says that it would probably have been said in jest and, anyway, there was no court stenographer present. In Dominion Bridge,39 he made pointed remarks to counsel about the Americans involved in the tax planning to set up a Bahamian company, as well as about Kenneth Barclay, a witness at trial, who was present in the courtroom, hiding, said Heward Stikeman, behind him, trying to stay out of sight. Interestingly enough, the tax plan had been developed by Charlie Gavsie, their mutual friend. Jackett was back after the argument, Stikeman observed, 'in about thirty seconds' with the judgment dismissing the appeal. Wilfrid Lefebvre started his career at the Department of Justice in 1970, following a suggestion to that effect from Alban Garon. He became involved in tax litigation from the start and did a great deal of work with George Ainslie, which meant that he was often exposed to Jackett and was witness to the degree to which he engaged counsel. He remembers that Jackett was particularly tough on Ainslie in the Federal Court of Appeal, but the toughness was always on an intellectual level and was never personal. Marc Noel remembers Jackett as generally being hard on the Justice lawyers. He was a bag-carrier for George Ainslie on one occasion and Jackett was 'all over him.' Jackett occasionally wanted to hear first from counsel for the respondent in appeal, generally a most unsettling experience for the counsel who had won in the court below, who usually hopes the court will give the appellant a working-over so that he will know where the court may be positioned on the issues. Lefebvre remembers that Jackett called upon him to speak first in such circumstances in La Cie Immobiliere BCN Ltee v. The Queen40 and it became a ping-pong game. 'You have a point, Mr. Lefebvre/ Then Maurice Regnier, counsel for the appellant had to speak, and so it went. The focus on a particular point in such cases often led to a somewhat confusing pattern of argument.41 From time to time, Jackett would send a memo to counsel before the hearing of a case, asking whether counsel had considered certain cases. This habit of writing to counsel in advance of a hearing once led to a motion by one of the parties that he should disqualify himself. In a case involving AG7P,42 Jackett had written a memo saying that the parties should be prepared to argue some jurisdictional point. On the morning of the hearing, a letter was delivered to the court indicating that a motion to disqualify would be made. However, asking that a point be argued was not the same as deciding it. They took five minutes and Jackett said he was not prepared to withdraw and everyone agreed. Jackett always thought that, as chief justice, he was in a good position to make sure he did not sit on cases where it would be inappropriate to do so.

254 Chief Justice W.R. Jackett

Jackett believed that senior counsel had the job of 'leading' cases argued before the courts. This was the tradition in which he had grown up under Varcoe and which he applied when he was leading counsel. Lawyers would ignore this at their peril. Marc Noel remembers a case in which he and the late Bruce Verchere appeared. Noel had done all the work and Verchere was there mostly for 'show' and client comfort. He got to his feet to introduce the case and said that Noel, who was junior at the time, would argue it. Jackett said, 'No, he won't/ Verchere protested and said, 'But this was the way we prepared.' Jackett said that Verchere could not just turn over the case to junior counsel to deal with the substantive issues. He forced Verchere to labour on through the case and eventually Noel, as junior counsel, was able to fill in the many holes in the argument. David Angus, now a senator, practices in the marine field and says that the worst experience in his professional life was in a case argued before Jackett, Pratte, and the late Miller Hyde, who sat as a deputy judge upon his retirement from the Quebec Court of Appeal. The case was Jasmin Construction Inc. v. Resolute Shipping Ltd.,43 which had been argued before Justice Allison Walsh in the Trial Division on the basis of facts and the application of civil law. Jasmin filed an appeal, strictly for a delay, and Angus got an order for full security to be provided. The money was in the Canadian Imperial Bank of Commerce and the appeal was, in Angus's opinion, clearly dilatory. When the case began, Jackett said to Angus, as counsel for the respondent, 'What do you have to say before I maintain this appeal?' Clearly taken aback, Angus started to argue and claims that he was continually abused by Jackett along the lines of 'there was no room for the civil law in this court,' 'you lawyers from Westmount think you can do anything you want/ and so forth. Angus asked for an adjournment over lunch and consulted with other lawyers in the firm as to what he should do, such as get a stenographer into court or to take some other extraordinary step. It seemed to him that he was almost to be faced with contempt of court for making his argument. The court allowed Jasmin's appeal; Jasmin got the money back and disappeared, since the company was going out of business. The Supreme Court of Canada gave judgment in the subsequent appeal in favour of Angus's client, but by then it was too late and the money was gone.44 Angus says that Hyde later called Angus's father to apologize for Jackett's behaviour. Louis Pratte remembers the occasion. It was one of the few sore points that Jackett had about Quebec lawyers, who were always saying that Quebec law was different on this or that point. Jackett would often go back and discuss these points with Camilien Noel, who would say that there was no difference, so he developed the idea that he was being taken ad-

The Jackett Court 255

vantage of by the local lawyers. Angus, said Pratte, happened to step on this particular landmine when he told Jackett that the Quebec law was different and got hit with the shrapnel of the Jackett explosion.45 You had to be careful in court when Jackett was presiding. Ross Carson remembers having an affidavit sworn by someone from Israel and referring to it as one from a 'foreign jurisdiction/ Jackett, he said, must have thought that he was being pejorative in some way and gave him a dressing down, saying that when he was brought up, he was taught to respect people from other countries, and soon. But he seemed to calm down once he was satisfied that no slight had been intended by use of the term 'foreign jurisdiction/ which Carson had thought was the proper manner of describing the situation. Carson also remembers a motions day when he was with Gordon Henderson, who pleaded the first of several and, in the course of making the argument, shuffled papers around and stuffed them all in his briefcase when he left. When Carson got up for his motion, he discovered, to his horror, that Henderson had made off with the papers for his own motion as well as his own. It is a classic nightmare for the young lawyer. He remembered enough about the case to give the names of the relevant cases, and, though unable, when asked, to give the citations, he promised to send them forthwith. Jackett was not amused by the fact of the vanished papers. Ivan Whitehall came to the Department of Justice in 1971 and has since become chief general counsel. Well in advance of his first court appearance, he knew about Jackett from Derek Aylen and George Ainslie. If you were well prepared and up-front with Jackett, he says, you had no problems. He believed in an aggressive interventionist role and dialogue with counsel. If there was a hole in your case, he found it. For counsel, it was generally quite a satisfying experience to have an intellectual exchange with him. You certainly knew what it was you had to address. He remembers that Jackett went out of his way to tell Don Maxwell, then in charge of all the civil litigation in the department, that Whitehall had done a good job against Maurice Wright on one of his early cases under section 28 of the Federal Court Act, Nanda v. Public Service Commission.46 It was very fine of Jackett to do it, he says, and it certainly helped his career. Whitehall also remembers the occasion on which Sol Froomkin argued the case arising out of the Brinco/Churchill falls plane accident in the late 19603, in which several company executives were killed when there was some confusion regarding the radio-beacon signals at a local airport and the plane crashed into a mountain; the pilot had believed, according to his instruments, that he was descending onto the landing strip.47 The issue then before the court was the situs of the tort and the related question

256 Chief Justice W.R. Jackett

of what limitation periods were applicable. The argument lasted for three days. After a short recess, Jackett delivered a comprehensive judgment. All counsel recognized that Jackett had pioneered the use of footnotes in reasons for judgment. In one section 28 case48 there was a five-page footnote. In another, non-tax, case in which Wilfrid Lefebvre appeared with George Ainslie, MacDonald et al. v. Vapour Canada Ltd.,49 Jackett wrote a thirty-page judgment on constitutional law and trademarks and the ratio appeared to be in one of the footnotes. When the appeal reached the Supreme Court of Canada,50 the first question Laskin asked Ainslie was where the ratio of the decision was to be found and Ainslie said he thought it was in a particular footnote, which he identified. 'Since when/ sniffed Laskin, 'do we find the ratio of a case in a footnote?' The Supreme Court of Canada reversed the Federal Court of Appeal. Whitehall's colleague, Duff Friesen, now a senior general counsel in the civil-litigation section of the department, agrees that it was a challenge to appear in front of Jackett; he had a demanding and exacting legal mind. You had to have a good idea of where you were going and have answers to questions that were not necessarily raised in the factum and to work over the answers to all questions well before the time you got to the courtroom. You could always have an intelligent debate over an issue. Jackett was not patient, especially if you were not on the mark or did not understand his perspective, but this did not inhibit intelligent debate. Friesen remembers two counsel in an intellectual-property case going at each other. Jackett had the sense that they were there because they had not made every effort to have settled the case, and he interjected with something like, 'Don't you guys ever use the phone and talk to each other?' It may well have been, however, that the clients were a bit silly as well. In another case, where counsel was engaged in a discussion with the bench, one of the counsel raised a question with the bench that was not merely rhetorical - he was looking for the answer - and Jackett landed all over him saying, 'We are not here to answer questions of counsel.' Friesen says that he certainly learned never to ask the panel a question. While Jackett had a reputation for being short with counsel, he was quite understanding of the occasional litigant who acted on his own behalf. One such case involved a man by the name of Mario Carota, who had sued for a declaration that an agreement between the government of Canada and the province of Prince Edward Island had been unlawfully entered into and should be void.51 The case was heard in Ottawa and Jackett had asked the crown to pay for Carota's expenses because otherwise they would all have had to go to PEI for the hearing. Jackett also said that Carota was better than many of the lawyers who appeared in the

The Jackett Court 257

court. Jackett asked him if he was familiar with such and such a case and Carota said that he was and be able to discuss it. The understanding flavour of the hearing can be seen from the concluding words of Jackett's reasons for judgment: 'We nevertheless heard the respondent [Carota] with respect to his appeal on the merits; and having indicated that he did not wish to press his appeal except with regard to the injunction he conceded, after some discussion, that this Court would not be justified in interfering with the decision of the Trial Division concerning his application for an injunction/ If there was an area in which the other judges were slightly uncomfortable with Jackett, it was in relation to counsel. Many of them thought that he was a bit too tough and impatient with them and that he may not have fully appreciated the role of counsel to put every possible argument to the court that might advance the client's case, even if it did not find particular favour with the court. With experienced counsel, this was not so much of a problem, not only because they could handle the pressure, but perhaps as well because they would understand the futility of an argument that would lead nowhere and that would be quickly identified as such by Jackett. The experienced counsel also knew that they were arguing in front of someone who knew as much about their case as they did and who likely had a clear idea of what he was going to decide. They would also know that the chances of persuading the other two judges to override Jackett were slim, at best. The judges sitting with him had little opportunity to influence the conduct of the hearing, because, when Jackett presided, there was no question of who was running the show. So they could only swallow their sense that perhaps counsel should have been given more latitude to present the case as they perceived it, even if the eventual outcome would undoubtedly have been the same. Allison Walsh was more categoric. He thought Jackett was rude to both counsel and to his fellow judges. Jackett was certainly conscious of the risk that he would be considered to be 'short' with counsel, but he thought that it was only fair to counsel to tell them that he had been through the case on appeal, the evidence, and the written argument of both parties and that he could not see any answer to a particular point. Having thought about it in advance, the choice was to advise counsel of what he thought, or just sit there and listen, which would have made, in his view, a farce of the whole process. He was not always certain that his fellow judges had gone through the same preparation prior to the hearings. If they had not, he saw no point in being drawn into a lowestcommon-denominator approach and simply took charge of the hearing based on his own understanding of the case.

258 Chief Justice W.R. Jackett PERSONAL GLIMPSES Jackett, who eschewed all publicity, once found himself in a newspaper headline. One day, a seaplane tipped over upon landing on the Gatineau River, in front of his cottage, so he got a boat and rowed out to get the pilot and passengers and bring them back to shore, since they were half-way across the river. There was a small story in the paper later, with the headline 'Judge rows to the rescue.' The rescuees called him their 'hero.' An amusing footnote is that it later transpired that there may have been some implication that drug smuggling was involved. As to publicity in the courtroom, discussed in the context of the interminable television coverage of the notorious OJ. Simpson murder trial in the United States, Jackett expressed the view that Bill Gale, chief justice of Ontario, was probably right in saying that anyone who brought a camera into a courtroom should be put in jail. Neither Jackett nor Thurlow wanted to see any media accounts of the cases in which they were involved. Thurlow even used to turn off the radio, just in case the matter might be raised in newscasts or other programs. Jackett hated having his picture taken. In 1985, at the unveiling of his official portrait at the court six years after his retirement, at the same time as Noel's portrait was also unveiled, Louis Pratte, knowing Jackett's aversion, was berating the photographer for trying to get people organized for a group shot. It was, he said, 'not the sort of occasion for this.' But others came round and encouraged the photographer to do it. The only readily available photographs of Elmer Driedger seem to be those taken on that occasion. Jackett, untypically, came to Biljan later and said that he wished there had been more. Jackett says that he could never see why the chief justice should have an entertainment allowance, even though the statute provided for one. After all, he said, who would he have to entertain? On the odd occasion when External Affairs 'dumped' a visiting judge on him, he paid whatever expense arose from his own pocket. Biljan says Jackett would come out to the office to buy stamps for his personal correspondence and to pay for personal phone calls. Not everyone on the court, he says, did that. Jackett admits that his approach did not seem to be in line with much of the current thinking in that regard. Jackett often listened to baseball games on his portable radio while preparing cases. However, during the famous Canada-USSR hockey series in 1972, Biljan came running in to announce, 'We won!' Jackett asked him what he was talking about; he was unaware of the series at all. 'Baseball is the thinking man's sport, Bob.' With the statistics and all that. Jackett loves legal books. Biljan remembers an occasion when the Supreme Court was throwing out books, such as sets that had become in-

The Jackett Court 259

complete or been replaced. Biljan had picked a few of them out of the basement of the Supreme Court building. Jackett saw them and asked where he had got them and when Biljan reported that they were being thrown out, Jackett exclaimed, 'Show me! Show me!' and down they went. Jackett was like a kid in a candy store and had Biljan bring him a box to carry all the books he wanted. SEPARATION

OF POWERS

It was not until he got on the bench and was involved in the formation of the Canadian Judicial Council that Jackett was able to make some limited progress on the somewhat anomalous relationship between the court and the Department of Justice in the running of the court. The department was the largest and most frequent litigant in the court and the same department was responsible for the administration of the court in which it was litigating. Biljan remembers Jackett giving him hell for going over to the Department of Justice for some documents, because of the appearance it gave regarding the relationship between the department and the court. No one else seemed to have considered the issue and it took him several efforts to get Don Thorson, by then deputy minister of justice, following Don Maxwell, to take it seriously. Jackett thought there should be a separate department for the administration of the courts. He wrote a paper on the role of the Department of Justice running the courts and showed it to his longtime friend, Ronald Martland, and probably to the chief justice of Canada as well, to see if they thought the problem was real. He used the paper as the basis for his discussions with Don Thorson. It was probably true that no one but Jackett could have had such discussions and attracted the appropriate attention, since he had close relations with the senior officials and had probably hired most of them himself. Thorson's first reaction was that he was worrying about nothing, but a few months later he agreed that it was not right and the courts should not be going to Parliament through the minister of justice. The problem was not unique to the Federal Court. Jackett had many meetings with George S. Challies, chief justice of the Quebec Superior Court, which revealed that the Quebec judges had the some problem with the analogous Quebec ministry. His pressure, as recounted earlier, eventually led to the creation of the commissioner for federal judicial Affairs, a definite improvement in the creation of a more arm's-length relationship between the courts and the government. It was Jackett who drafted the necessary amendments to Part III of the Judges Act for the purpose. His concern continued throughout his time on the bench and he went on record with the deputy minister of the day, Roger Tasse, to protest

260 Chief Justice W.R. Jackett

against the inclusion of the rules of the Federal Court in a consolidation of statutes and regulations being carried out by the Department of Justice. He wrote to Tasse on 18 November 1977, saying that, apart from the legal issue of whether the rules could be revised other than as provided for in the Federal Court Act, he was apprehensive as to the dangers involved in proceeding with a revision by persons who were not intimately acquainted with the niceties of practice in the court. In addition, he thought that the rules should not be consolidated with regulations administered by the various departments of executive government as though the court itself were a part of the executive arm of government. The rules of the court had traditionally followed a style completely different from the style adopted in connection with ordinary departmental regulations. Making the rules conform to such style would, in Jackett's view (with which Thurlow, then associate chief justice agreed), 'be one more retrograde step in the almost imperceptible process of eliminating the line between the judicial branch of government and the executive arm of government - a line which, in my opinion, is of the utmost constitutional importance. For the above reasons, I must register my own very strong opposition to the proposed interference with the Rules and my view that the last alternative proposed by Mr. Archambault52 - not reproducing them at all - be adopted/ Tasse had the matter looked into and replied generally that there appeared to be no alternative but to include the rules in the consolidation. He offered, essentially as a matter of courtesy to the much-respected Jackett, to address the concern about familiarity with the rules by sending a draft of the consolidation to Jackett in advance of their publication. The matter was never resolved to Jackett's satisfaction and the consolidation proceeded. LEAVE TO A P P E A L

Until 1975,53 so long as the matter was criminal or, if civil, concerned an amount in excess of $10,000, parties had an appeal as a matter of right to the Supreme Court of Canada. The caseload for the Supreme Court was becoming impossible to manage and a system of applications for leave to appeal was instituted. Once it was in place, it became no easy task to obtain leave to appeal. Such leave can come from the Supreme Court of Canada itself or, in theory, from the court rendering the judgment from which an appeal is sought. Jackett was loathe to use the power to grant leave. In M.N.R. v. Creative Shoes et a/.,54 he noted that, although the court had the authority, the Supreme Court of Canada was in a better position to decide whether this was a case it wished to consider. If, however, it is totally clear that the Supreme Court of Canada would grant leave, then the Federal Court of Appeal could do so as well.

The Jackett Court 261 In our opinion, when there is an application for leave to appeal in a case where the question involved is not obviously one that ought to be submitted to the Supreme Court for decision, this Court must resist the temptation to grant leave merely to avoid possible criticism. It must not grant leave unless it is positively satisfied that the question involved is one that 'ought' to be decided by the ultimate Court of Appeal. Having regard to the extent and the importance of the responsibilities of the Supreme Court of Canada, a lower Court should not grant leave to appeal to that Court in any but obvious cases, because that Court is in a position to make an overall selection of the cases that should be decided by it having regard to its case load and can only do so if lower Courts exercise a responsible discretion in deciding when to grant leave to appeal. The Supreme Court of Canada can grant leave in any case even though leave has been refused by the Court of Appeal. The Supreme Court of Canada cannot withdraw leave once it has been granted by the Court of Appeal.

On the issue of granting leave generally, Jackett remembers a case of an appeal from a decision of the Tariff Board, on the issue of whether importing dried powder was the same as importing the juice of the particular fruit. He did not think there was a 'snowball's' chance of the appeal succeeding, but he said to himself that, if he refused leave, that would be the end of it and another judge might see it differently, so he granted the leave and the appeal was eventually successful. Ever the practical judge, he considers that, generally, the time wasted on hearing applications for leave to appeal is not justified by the time saved in actually hearing the appeals. A HOME FOR THE F E D E R A L COURT

When he was president of the Exchequer Court, Jackett's office used to be out at the front of the Supreme Court building. Once the Federal Court was up and running, and knowing how to work the levers of government, he had an office specially made for him. However, there never has been a special building established for the Federal Court, which is a great pity, given the importance the court has acquired. There have been plans made and on several occasions it has seemed as if the project was about to get final approval from Treasury Board, but somehow it has never quite made it. Many observers think that there was some rivalry between the Supreme Court and the Federal Court about separate quarters for both courts. Bud Estey says this is quite wrong. Both courts were very much in agreement about the need. Jackett had thought there should be an Exchequer Court building as early as the time when he was deputy minister.

262 Chief Justice W.R. Jackett

There simply was not enough room in the Supreme Court building, especially once the Federal Court began to expand. Estey says that Laskin, being a non-administrator, was not particularly interested in the whole thing. At one stage of the consideration, Estey was representing the bar and nobody seemed very concerned, which annoyed Jackett. When Jackett became chief justice, he revived the idea, but still nobody was very interested. Laskin finally woke up to the problem and wanted the Federal Court out because there was not enough room for the needs of the Supreme Court. Plans were drawn. The only possible stumbling block was Louis-Philippe Pigeon, who did not want the building to go where it was planned, because - of all things - it was the location of the statue of Louis St Laurent. Otto Lang, then minister of justice, was stalling since Treasury Board said it would not approve the expenditure. Final approval on the project was on Ron Basford's desk virtually on his last day as minister, and he decided that some other minister should carry the water and refused to authorize it. Several proposals were submitted jointly by the Supreme Court and the Federal court, but to no avail. It was one of the few projects relating to the court that Jackett was, for all his knowledge of the levers of government, unable to bring to fruition. Jack Urie remembers that, at his famous brown-bag lunch with Jackett after his appointment to the court, Jackett told him that he and Urie would be long gone or long retired and they would still not have a new courthouse. Robert Biljan says that Jackett gave up on ever getting a new Federal Court building. Biljan says he told him that he would get one before he died, even if he had to wheel him to the opening. As the current administrator of the court, Biljan keeps assuring Jackett that the building will be built. But Jackett remains skeptical. JACKETT IN FRENCH

Jackett was always short of being fully bilingual, although not from a lack of effort on his part to learn the language. He resolutely took French lessons, both in his office and with Kathleen at courses given at an Ottawa convent on Sussex Street. Most of his colleagues admitted that he could understand the language fairly well, but his pronunciation would have driven 1'Academie franchise to distraction. This notwithstanding, Jackett felt that it was incumbent upon him as the chief justice of a national court to be able to hear cases in French and to turn out at least some judgments in the French language. He accomplished this with his usual doggedness and with considerable help, in the early days on the Exchequer Court, from Camil Noel. During the hearing of the cases, he would not hesitate to engage in his customary dialogue with the lawyers involved and, if he

The Jacket! Court 263

did not understand something, he would ask them to give him the English word or expression and then carry on in French. When it came to writing the judgment, he would start by collecting samples of other judgments in French so that he would have a better idea of the terms and expressions that would make it look as if the judgment was not simply a translation from English. Jackett remembers that the first case in which he published his reasons in French was one in which a civil servant won a money prize for making a suggestion.55 He wrote the judgment in English and then translated it into French, looking at a lot of French judgments to get an idea of how to say certain things. Then he took it to Huguette Narum, who was a secretary at the time, to correct the purely grammatical errors. Then he had some of the French judges, especially Camil Noel, comment upon it for purposes of suggesting wording that did not simply look like a translation. The final product was, therefore, not unlike the work of a committee.56 He would, as chief justice of the Federal Court, preside in some cases argued in French, but it was usually Pratte or someone else who would be called upon to deliver the judgment. Sometimes when he was alone, perhaps on a motion, and had a problem, he would ask counsel, 'Comment vous dites c,a en anglais?' Louis Pratte agrees that Jackett's French pronunciation was terrible, but the French itself and his vocabulary were not bad. When he presided in Montreal, he liked to have Pratte with him to lean on if things got beyond him. He intervened in French cases just as much as in English ones. Pratte remembers a case involving some labourlaw problem in which an employee had been dismissed for incompetence or something and which was being argued in French. The lawyer kept saying that the employee had been 'remercie de ses services/ After an hour or so of this, Jackett asked why, if the employee had been so bad, were they thanking him so much? If Jackett's French was unintelligible to the lawyers, Pratte, who was used to it, would translate it into correct French, which the lawyers often found amusing, but Jackett was goodhumoured about it. As to Louis Pratte's observation about Jackett's difficulty of being understood, Marc Noel puts it in an interesting context Jackett is not always that easy to understand even in English. He would often stutter over an English word on the bench. STABS IN THE BACK

In the early years of the Federal Court, the jockeying for position between it and the Supreme Court of Canada had been jurisdictional and the decisions of the latter had been largely impersonal in tone, notwithstanding a growing perception that there may have been some personal tension

264 Chief Justice W.R. Jackett

between the two chief justices. Laskin and Pigeon were staunch defenders of the traditional jurisdictions of the provincial superior courts and were veritable Horatios at the bridge in restricting what was seen as encroachment by the Federal Court into that domain. There was, however, a particularly unfortunate turn of events that affected Jackett personally and enraged the entire court on his behalf. The case, Antares Shipping Corporation v. The Ship 'Capricorn' (also known as the Ship 'Alliance'), Delmar Shipping Limited and Portland Shipping Inc.,57 was esoteric enough to be totally uninteresting to almost everyone but the parties and a few lawyers. It was an admiralty matter, involving a ship, the Capricorn, which may, or may not, have been sold twice. It was arrested (ships are arrested) in Quebec City in June 1973 by one of the parties which claimed to have bought it. The action in the Federal Court was both an in rem action against the ship itself and also an action against the party which sold the ship to the plaintiff. The plaintiff and the corporate defendants were all Liberian corporations, that jurisdiction of incorporation being one of convenience in the shipping industry and widely used for registering ships and ownership thereof. One of the obvious lines of defence where foreign corporations are involved is to question the jurisdiction of the court in which the proceedings have been brought. Lawyers were engaged and an 'appearance' was filed58 on behalf of the ship, but specifically without admitting the jurisdiction of the court. Because holding ships in port is an expensive business, the arrest of a ship often provokes some response of an economic nature, and this was no exception. A bail bond in the amount of $4 million was posted about two weeks later and a more leisurely consideration of the legal issues ensued. The lawyers for the ship, who also acted for the company which may have been the second purchaser, applied to file what is known as a conditional appearance, in order to object to the jurisdiction of the court. Louis Pratte, who was then sitting in the Trial Division of the Federal Court, heard the application and denied the motion to file such an appearance. The lawyers thereupon moved to strike out the statement of claim and set aside the arrest of the ship. Pratte decided that the action was really only an action in rem against the ship and that the plaintiff could not claim personal remedies against either the subsequent purchaser or the vendor of the ship who may have sold it twice. At the same time, he made an order that these two companies be added as defendants in the action, presumably so that everyone involved in the tangled matter would be before the court. He said that these parties should be served with the applicable proceedings within sixty days or the claim would be struck out and the arrest of the Capricorn similarly struck out.

The Jackett Court 265

Neither of the corporate defendants had any presence in Canada, so service on them of any proceedings was easier said than done. The plaintiff applied to the court for permission to serve the corporations ex juris, which means outside Canada. Pratte dismissed the application, since he did not believe the matter had any connection with Canada. On appeal to the Federal Court of Appeal, Pratte's decision was upheld. The plaintiff then appealed to the Supreme Court of Canada. The bench on the Supreme Court was only five judges, for, although the issue of jurisdiction of the courts in such matters was not without some importance, it was not such as to require a full court. It consisted of Laskin as chief justice and Justices Roland Ritchie, Pigeon, Jean Beetz, and Louis-Philippe de Grandpre. The decision was 4-1 in favour of allowing the appeal and overturning both the Federal Court of Appeal and Pratte of the Trial Division, holding that the court had jurisdiction to entertain the action on both bases and that it should not have refused to allow the service ex juris as requested by the plaintiff. The only dissent was Laskin, who would have upheld the decision of the lower courts. He had lengthy reasons in support of his view, but none of his colleagues agreed with them. All that was innocent enough. Judges on appellate courts often disagree and occasionally quite vociferously. On the surface, Laskin appeared to support the Federal Court on this occasion. But in the process, he embarked on a most remarkable personal odyssey. He sent down a request to the registry of the Federal Court to deliver the court file in the matter. This file was not part of the official record of the appeal before the Supreme Court and was not a document which should even have been considered by the Supreme Court. Whatever possessed Laskin to have sent for the file is unknown. How he felt able to refer to documents in the file, which he knew were not before the court, is even more remarkable. Why no overt comment on this extraordinary behaviour by the chief justice of Canada was made by any of the other judges on the panel is strange indeed, especially when the nature of Laskin's comments in the course of his dissent became clear, remains a mystery. Perhaps it was better for peace with their own chief justice not to call attention to his conduct. As was entirely plain to anyone with legal experience, the actions in the case thus far had been entirely procedural. In almost two and a half years since the case had been instituted and the Supreme Court rendered its decision, the matter had not even progressed to the point at which a defence had been filed. Shortly after Pratte had rendered his decision refusing the service ex juris, notices were filed indicating appeals and certain crossappeals arising from that decision. Jackett, as chief justice of the court,

266 Chief Justice W.R. Jacket*

reviewed the file and prepared a memorandum for the registry of the Court, which contained certain suggestions to the parties, and this led to a certificate regarding the hearing of the appeal and cross-appeal, by consent of the parties. He had looked at the record of the appeal and had seen that there were certain questions which ought to be addressed by counsel for the parties regarding one of the procedural motions. He raised these questions and indicated that certain conclusions might follow if an offhand view he expressed on the question were to prevail, but he invited counsel to proceed if there was a substantial reason for proceeding with its motion and said that the court was ready to sit. It appeared that a motion to appeal from the decision of the Trial Division had not been filed within the appropriate time period. There was nothing in the record to indicate that the court had otherwise extended the time. Jackett pointed out to counsel that, 'superficially/ it was impossible to imagine any fairly arguable basis for not quashing the appeal, and that (as chief justice) he was loathe to set up a court of three judges in Quebec City to hear a motion which would seem to be beyond contestation. It appeared that the matter was obvious to counsel as well, because a notice of discontinuance was issued from the appeal and it was not therefore necessary to dispatch a panel of the court to hear the motion. In his reasons for judgment (see appendix i) Laskin did not seem to realize, despite his perusal of the Federal Court's administrative file, that what was involved was a motion by one of the parties to have a panel of the court come to Quebec to hear the motion. Jackett was prepared to send a panel, if necessary, but he did not want to waste the court's time and money were it not necessary. As Laskin expressed the matter, he made it sound as though Jackett had prejudged the matter and bullied the parties into a particular course of conduct. He used language like, "The proceedings now took what I can only term an extraordinary turn. Without hearing the parties involved ... the Chief Justice of the Federal Court issued what he designated as a "Memorandum for the Registry ..."' Referring to a memorandum Jackett had sent to the counsel for the parties in the matter, Laskin described it as an 'unusual document to come from a Judge in respect of a motion returnable some three weeks later.' Jackett had simply said that the motion had not been launched within the required time period and that it was difficult to imagine a fairly arguable basis for not quashing the appeal, but he was prepared to do so if there was a basis for the argument. The parties agreed, but Laskin coloured it differently: 'Jackett C.J/s memorandum had its effect because ... the appellant issued a notice of discontinuance of its proposed appeal...' He then went on to criticize the manner in which Jackett had organized several of the proceedings, stating that one appeal should have been

The Jackett Court 267

heard as early as the appeal 'which Jackett C.J. forced on under his "Memorandum for the Registry"' referred to earlier in the judgment. His final dyspeptic remark related to a conditional order made by the Federal Court (which knew that proceedings were going ahead in the Supreme Court). Laskin said that, 'although that extra-curial memorandum took cognizance of the conditional nature of the order ... so far as its effect on the action and on the arrest [of the ship] was concerned, it was also based on an anticipated decision of this Court in respect of service ex juris, and that is not a matter on which the Federal Court of Appeal should posit any calculations on what its own course of conduct should be with respect to proceedings that are properly before it.' Despite the fact that Laskin was alone in his dissent, the unfortunate result was a completely personal attack on the conduct of Jackett as chief justice of the Federal Court.59 What is worse, since it appeared in a judgment of the Supreme Court of Canada, there was no opportunity for Jackett to answer or to comment upon it. The innuendo of improper conduct sits there for all to see. Even put at its highest, that Laskin may, possibly, have been concerned that the parties to the litigation may have been intimidated by Jackett's approach to the question of whether there was an arguable case, his comments went far beyond what was reasonable in the circumstances, as did his extraordinary summoning of the administrative file from the court below. The effect on Jackett was devastating. He simply could not believe that a judge of the Supreme Court of Canada, especially the chief justice, could have done such a thing in such a meanspirited manner. His colleagues were horrified and several of them urged him to have it out with Laskin at once, but Jackett said that he would never discuss the content of a judgment of a judge of the Supreme Court of Canada with that judge. That would be improper. He thought of resigning immediately, but he was talked out of it by Thurlow and Pratte as well as Bud Estey of the Supreme Court. That, they said, would accomplish nothing and might even play into the hands of Laskin, whatever his personal goal in the attack may have been. There is little doubt, however, that Laskin's judgment was one of the reasons why Jackett retired from the court much sooner than he might otherwise have done. Marceau had a similar view of the matter. He deplored Laskin's comments and was convinced that there must have been something behind them of a personal nature.60 The relationship was complex and not a little Byzantine. Estey says that he often heard from both Laskin and Jackett for days on end. Laskin did not like and fretted about the recognition of Jackett as the epitome of judicial administration and thought this was a slight on him as chief justice of Canada. On the other side, Estey could not persuade Jackett that Laskin

268 Chief Justice W.R. Jackett

had a 'limited disorientation/ The Capricorn matter seemed to be the start of Jackett's feeling that, as long as he was there, Laskin would not give the Federal Court the natural jurisdiction and liberal interpretation that everyone had intended when the court was established. There was a streak of envy in Laskin that was very evident. This became, says Estey, a vicious circle from which neither Laskin nor Jackett could escape. Estey tried to convince Jackett that he was retreating from his duty when he quit. Jackett, he says, did not seem to understand that you could fight to the death professionally (as practising lawyers do all the time) and still be friends. He thinks that this may have been due to the fact that he had never been in practice - a microcosm of the human experience. Strangely enough, at the personal level, Estey said that Laskin and Jackett did not dislike each other at all, but the one in the superior office thought the other was disruptive of the prerogatives of the chief justice of Canada and the Canadian Judicial Council. On the other hand, Estey says that the Supreme Court as a whole was more or less oblivious to this whole conundrum. The court, he says, is really a set of barons, each with his or her own coteries. Under Laskin, there seemed to be no court collegiality. Martland did not like Laskin. Spence was a friend of Laskin, but no administrator. Ritchie liked Jackett, perhaps because of his admiralty background. Pratte and Laskin did not get along. Pratte worked with his door closed, because of the noise, and Laskin thought it was because Pratte did not like him. Pigeon drove de Grandpre off the court. Pigeon, Estey says, knew a lot of law and understood the federal system, but he was a "mean son of a bitch' and some of his outbursts in conferences could be vicious. On one case when Estey was quite new on the court, arising out of British Columbia, Estey gave his views, in the customary reverse order of seniority, and Pigeon, who was number two or so, said that when they wanted Estey's views on matters of British Columbia law, they would ask and, in the meantime, he wanted to hear from the British Columbia judge. Estey, who thought the issue had been dealt with already in one or, possibly, two decisions of the court, said to Pigeon that Pigeon had written the judgment of the court which applied, and he had no trouble with him after that. Pigeon always wanted to reverse Federal Court decisions; he probably did not like anyone. Estey remembers a case in which Pigeon took umbrage at something in the trial judgment in a patent case involving an aerosol spray, 'Bug Off/ and, knowing the colloquial meaning, thought it was a terrible thing to have something like that in front of children. On the particular relationship between Laskin and Jackett, Estey acknowledges the existence of institutional strain.

The Jackett Court 269 I would say that the friction between the two Chief Justices produced very little observable heat, nor did it produce any worthwhile cooperation from the Supreme Court. Indeed, Wilbur's not-infrequent proffering of assistance or aid in some project of the Supreme Court only aggravated the envy of the Chief Justice of that Court. On the substantive side of the Court, there was no doubt that Wilbur's competency, in the fields of Royal Prerogative, procedure, the Constitution, and all the Privy Council decisions bearing on that statute, was a formidable force when it came to dealing with appeals from his judgments to the Supreme Court.

Louis Pratte says that, in addition to the intellectual rivalry so well described by Estey, the Federal Court, even as a very young court, was working smoothly and the Supreme Court of Canada was not. Pratte's brother, Yves, was on the Supreme Court for two years before returning to private practice in Montreal, but, in all that time, Yves never invited his brother to see him in his chambers, which gives some idea of the court's atmosphere. Prior to this time, there had been only one personal blow-up between Jackett and Laskin, which had occurred on the occasion of hosting a Canadian Judicial Council conference in Ottawa,61 when, because Laskin was so busy as deputy governor general, the organization of the event fell to Jackett. The lunch involved was at Le Cerde Universitaire. Jackett arranged with Camilien Noel to have the court car collect Kathleen, whose stamina was, at the time, particularly low, and to take both Kathleen and Mrs Laskin home after the event. Huguette Narum had been included in the lunch and Laskin had called him up to say that he thought this had been inappropriate. Jackett gave him a dressing down and said this had nothing to do with the administration of the court and that it was none of his business. It seems that Laskin's secretary had formerly been the secretary of Noel or someone and that may have been the motivating factor for the call. Jackett says that Laskin 'backed off' in a hurry. It was typical of both of them that neither ever mentioned the incident to the other. Jackett has always been reluctant to talk about the matter. It was only after it was clear that there was general awareness of the issue within the legal and judicial communities that he would discuss it at all. When he had announced his decision to resign as chief justice, his friend Ronald Martland called him from the Supreme Court to ask what on earth he had done and why. Jackett said that he had had the impression that the Supreme Court did not approve of the Federal Court and the way in which he was running it, so he thought he should resign in the interests of the court. Martland asked him what gave him that impression and Jackett

270 Chief Justice W.R. Jackett

told him about the Capricorn decision. He had been criticized by the chief justice regarding his administration of the Federal Court of Appeal and the other members of the Supreme Court had remained silent. Even after three years, he was still rankled by it, despite having been talked out of resigning on the spot by his friends and colleagues.62 The joy had gone out of the job after that. Jackett does not recall what Martland replied but says that he sounded embarrassed. At about the same time as the Capricorn decision was released by the Supreme Court of Canada, another judgment, written by Justice de Grandpre, in the case of MacDonald et al. v. Vapour Canada Ltd.,63 referred to the 'former' chief justice. Many wondered whether this was an intentional dig at Jackett and his court, the wish being, perhaps, the father of the thought.6! EARLY

RETIREMENT

In the middle of July 1979 Jackett called Jacques Flynn, the new minister of justice in the Joe Clark Progressive Conservative government, and asked for an appointment. A meeting was arranged and Jackett advised Flynn of his intention to resign as chief justice of the Federal Court of Canada. A few days later, he delivered a handwritten letter on the letterhead of the Federal Court of Canada. Ottawa July 19,1979 Honourable Joseph Clark, Prime Minister of Canada, Ottawa Dear Prime Minister: I have now passed my sixty-fifth birthday and I have continued in judicial office for more than fifteen years. I have therefore, subject to resignation from my present office, satisfied the conditions for an annuity under section 23(i)(a) of the Judges Act. During recent years, I have given the matter careful consideration and I have, regretfully, come to the conclusion that, from the point of view of the Court, as well as from my family and personal point of view, it is preferable that I apply for retirement at this time rather than remain in office, if my good health continues, until the age of seventy-five, which the statute permits in the case of a person appointed when I was.

The Jackett Court 271 I, therefore, hereby resign from the office of Chief Justice of the Federal Court of Canada, effective August 15, 1979 or upon the acceptance of this resignation, whichever is later. This resignation is, of course, conditional upon the grant to me of the annuity provided for by section 23 of the Judges Act. If the necessary steps for the acceptance of my resignation can be taken in the immediate future, I shall appreciate it very much. Yours sincerely, W. R. Jackett

It was a carefully crafted letter and it takes little imagination to picture Jackett sitting with the blank paper on his desk and a copy of the Judges Act open beside it. The key, of course, is that the pension, described as an 'annuity' in the statute, for a retiring judge was not by any means automatic and Jackett, no matter how determined he might be to resign, was not prepared to throw away what pension might have been available. Flynn recalls the meeting and his surprise, but he does not think the discussion was one of any depth. It was not a negotiation. He would have consulted Sol Samuels, who was the commissioner for federal judicial affairs, and they agreed that the letter would have to be transmitted to the prime minister, which was done a few days later, coupled with the recommendation regarding an annuity. The matter would have to be handled by way of order-in-council, since the annuity was involved. The prime minister was duly advised in a letter, almost certainly prepared by Sol Samuels, delivered by hand under date of 25 July 1979. The matter was not dealt with as expeditiously as Jackett had hoped. It was obviously a matter of some difficulty to decide upon a successor. Ottawa is not a place in which secrets are well kept and it was not long before the news started to leak. Jackett decided that he should advise the court of his decision, which he did by way of a memorandum dated 19 September 1979. MEMORANDUM TO: THE JUDGES OF THE FEDERAL COURT OF CANADA

As some of you have already heard, it seems appropriate that I advise you all that I have applied for retirement. I have reason to believe that the Government may act on my application effective the end of this month. My plans are to spend a substantial part of my time on legal writing at home. However, as our present apartment is not large enough for me to work in all day, I am taking another (small) apartment to use as my study.

272 Chief Justice W.R. Jackett It may also be that, even within the limitations I regard as appropriate for me as a former judge, I will be employed to do the odd job that I can do at home; and, thus, earn enough to pay the extra expenses involved. I shall not, however, hold myself out as a practicing solicitor and I shall not feel free to accept employment as a lawyer except from other lawyers. I could have put off this move for several years but, if I had done so, it would have been that much more difficult to establish a different manner of working and work is, I am afraid, necessary for me. I wish to express sincere appreciation to each of you who has co-operated in creating such success as we have had in implementing the provisions of the Federal Court Act. Please accept this as my farewell.

Needless to say, the news of his retirement came as a shock. When the time came, he did not tell anyone until after he had done the deed. He did not want to get involved in any discussion of the pros and cons of the matter. He had certainly discussed the possibility with Louis Pratte, the person to whom he was closest on the court, not only in the context of general principle but also as a result of the Capricorn and other attacks on him and the court. He had told Pratte a few months earlier that he intended to resign. Despite knowing that the end was coming, Pratte did not think it was right for Jackett to have resigned when he did, since it deprived the court of the tremendous intellectual leadership that he provided, even though he was not sure that with the increasing numbers of appointments to the court the 'old school' would have been able to continue. Jackett called Huguette Narum, with whom he had as close a relationship on the court as with anyone, from the Gatineau cottage in July to tell her that he had decided to retire. His story to her was that he had promised himself when he came to the court that he would stay for fifteen years. The fifteen years were up and he was going to retire. She burst into tears upon hearing the news. It had come as a complete surprise to her. Jackett tried to lighten the mood by saying that he had done so in order to be able to call her by her first name, since she had often complained that some of the men in the court were occasionally called by their first names, but she was never so addressed. It was a similar shock to his friend and eventual successor, Arthur Thurlow. Jackett came into his chambers and said, 'I resigned.' Thurlow asked him, the judicial phrase coming as if by instinct, 'Can we do anything to reverse that?' Jackett said, 'No.' David Henry was not surprised with the idea that Jackett would retire early. He had by then put his stamp on the court and would naturally think it would be time to move on to other things. He had often spoken, in the Department of Justice days, about judges who had stayed on too long.

The Jackett Court 273

Jackett had believed for some time that a French Canadian should succeed him and he wanted his successor to be Pratte. He was always acutely aware that he had been brought into the Exchequer Court over the head of Noel. Before suggesting his name, he wanted Pratte's approval to do so. Pratte said that he did not want to become chief justice; he said, with a smile, that he had enough trouble just trying to organize his own life, without adding the problems of running a court. He did not like all the administrative work that seemed so easy to Jackett and, not liking it, did not think he could do it well. Nor would he consider the position of associate chief justice, not only for the same reasons, but also because of his strong preference for appellate work. Within the administration of the court, the consternation was also deeply felt. Monique Giroux, who knew Jackett from her days as a secretary of the court in Montreal, had come to think that he would always be there to lead them. Robert Biljan, who had been nurtured by Jackett, felt the same way. Despite his conviction that the best enjoyment he could imagine was to have legal questions on which he could work and find a solution, Jackett says he had thought for a couple of years that he should leave because he was writing too many of the judgments and did not want his personalized stamp on the court. He felt that it was not good for the court to develop into a one-person institution. He had no desire to have his name before the public, unlike other judges, including his predecessor, Joe Thorson. His satisfaction came from accomplishing something and from finding the solution to each particular problem. A judge's job, he says, is to do the best work you can and let public relations take care of themselves. Narum thinks that this was a fundamental difference between Jackett and Laskin, the latter having a highly developed sense of selfpromotion. To Sol Samuels, Jackett said that he could not contribute any more; he had put everything into the job that he could and there was nothing more to be got from it. Narum remembers that, when Jackett left the court, he went through all the cabinets in his office and threw out about 80 per cent of the material in the files, taking only some personal material. He said that he did not want to influence his successor unduly. Thurlow was disappointed that so much material had been destroyed; he would have liked the guidance it might have provided. Jackett says that, had he known Thurlow would have been his successor, he would have left more. But he adds that nothing was thrown out that should properly belong in the court files. All the official documents were maintained by the court registry. Kindle, with the resignation of long-time secretaries for their bosses' foibles, says that it was probably just his nature to have thrown all the stuff away.

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The last case on which Jackett sat was Canadian Javelin Limited v. Frederick H. Sparling, which he heard with John Urie and Willam Ryan on 27 September 1979, and his last judgment was in Kelso v. The Queen, with Gerald LeDain and Roderick Kerr, sitting as a deputy judge, rendered on 28 September 1979, both unreported. Leave to appeal to the Supreme Court of Canada was granted on 20 November 1979 in Kelso. Jackett did not go out on a 'win' - the decision was reversed.65 That Jackett would be able to retain the right to be addressed as 'Honourable' after his retirement was all but a foregone conclusion. The necessary proclamation was duly issued: The Minister of Justice and Attorney General of Canada has the honour to represent to His Excellency the Governor General that the Honourable Wilbur Roy Jackett, who was appointed President of the Exchequer Court of Canada effective May 4,1964 and became Chief Justice of the Federal Court of Canada on June i, 1971, by virtue of Section 60 of the Federal Court Act, ceased to hold office on the first day of October, 1979. Chief Justice Jackett has served with distinction and is eligible to be granted permission to retain the title 'Honourable.' The Minister of Justice and Attorney General of Canada, accordingly, has the honour to recommend that Your Excellency may be pleased, on behalf of Her Majesty the Queen, to grant permission to Wilbur Roy Jackett to retain the title 'Honourable' after his retirement. The Minister of Justice and Attorney General of Canada remains His Excellency's obedient servant. [sgd] Jacques Flynn Approved: Oct. 31/79 [sgd] Ed Schreyer

Jackett's friend, teacher and mentor from the University of Saskatchewan days, J. A. Cony, had by that time retired as principal of Queen's University in Kingston. Jackett had written to him to advise of his resignation. Cony replied with a warm and humorous note that reflected both affection and understanding of his former pupil: Nov. 11/79 Dear Wilbur: My memory, often faulty these days, tells me that I have not replied to your letter of a month or so ago. (If I have done so, it is my memory that is off the beam!)

The Jackett Court 275 I don't doubt that you have earned your retirement several times over. My worry is how the Court will get on without you, and whether you will find sufficient occupation for your active and busy mind. You may not remember the first time we set eyes on one another but I do. It must be almost exactly 50 years ago. Pete McQueen66 and I were the judges of a public speaking contest in Convocation Hall. You gave us a cogent argument designed to prove that Canada, despite the protests of the Government to the contrary, had really slipped off the gold standard. When you came forward to speak, McQueen said to me, 'Here's a bright cookie. You listen carefully to him.' Whether or not I was convinced at the time, I soon learned he was right when you came into the Law School! This is very clear to me, even if I can't remember what happened yesterday!

Sincerely yours, Alex

After his retirement had been made public, Jackett received a civil but somewhat perfunctory letter from Bora Laskin, who had been away from Ottawa for several months as a result of illness: November 22,1979 The Honourable W.R. Jackett, 150 Driveway, Apartment 610, Ottawa, Ontario. K2P iE7 Dear Wilbur, I just learned yesterday of your resignation from the Federal Court and write to express my good wishes, to Kathleen and to you, for happy days in your retirement. As you may know I was hospitalized in Vancouver for almost three months and returned to Ottawa just 10 days ago, not having learned from anybody that you had resigned as of the end of September. You have made a notable contribution to complex branches of our law, something that I and others in the Supreme Court of Canada know so well and it should give you great satisfaction that you have added so much to the development of administrative law. For myself I regret to lose the benefit of your wisdom as a member of the Canadian Judicial Council and of its Executive but I do wish to thank you for the

276 Chief Justice W.R. Jackett assistance that you have always so willingly given to me and other members in the course of our work. With warmest regards to Kathleen and to you from Peggy and from me. Yours sincerely, [sgd] Bora Sic transit gloria mundi.

10

Retirement

Once the deed was done and the retirement formalized, Jackett renewed his membership in the Law Society of Upper Canada. He called Kenneth Jarvis, the secretary of the Law Society, on 5 October 1979, to advise him that he had ceased to be a judge of the Federal Court effective i October 1979, and that he would appreciate having his membership reinstated. Jarvis replied on 18 October and Jackett followed up with a handwritten letter stating that he wanted to be classified as an active, rather than retired, member under the appropriate rule: My plans are to attempt to do some legal writing and for this purpose I have rented a small second apartment in the building where we live. I have no intention or desire to start a law practice or to associate myself with any member of the profession who practices law. I do desire, however, to be free to accept work from practising members of the profession that I can do in my study. In doing so, as I see it, I might be doing something that a person who is not entitled to practice law would be prohibited from doing. On the assumption that there is no special category to cover what I propose to do, I am filling out the forms enclosed herewith as though I were 'starting to practice' in October, 1979. In doing so, however, I wish it to be understood that I will not accept work from a private client and I will not undertake any work commonly regarded as the work of a 'solicitor' as opposed to that of an advisory 'counsel.'

His membership was restored, as a sole practitioner, on 26 October 1979. He did the same in Quebec and his regular membership was reestablished on 19 December 1979.

278 Chief Justice W.R. Jackett

Jackett did not follow the example of Elmer Driedger and take up teaching. Driedger, after retiring from the public service in 1968, went to teach at Queen's University in Kingston for a year before John Turner persuaded him to accept a position at the University of Ottawa, in an institute set up with government funding, to teach legislative drafting, a program that got under way in 1971. Teaching per se was not all that attractive to Jackett. It is much more satisfactory, he says, to deal with specific questions, find the answer, and keep the law as a whole in perspective while doing so, than to purport to describe the existing state of the law in general. On the other hand, when he did teach during his practice, it was clear that he did it well and he gave every impression that he enjoyed both the exercise and the opportunity to go back to the basic underlying principles. His lectures at Osgoode Hall in the 19505 on crown liability, a subject close to his heart, given his piloting of the Crown Liability Act, were logical, straightforward, and sprinkled with examples. He discussed what might be the proper limits of his practice with Ted Culliton, chief justice of Saskatchewan, and a good friend from the Canadian Judicial Council. He had no thought of appearing before the courts, which he thought would be improper, given his position as a judge. This was not a practice that was followed by all former judges. Roy Kellock, following his retirement from the Supreme Court of Canada, had no such compunction and even appeared as counsel in the very court on which he had been a judge, as early as the end of the year in which he retired.1 Nor, having been chief justice of the Court, did Jackett think it would be appropriate for him to sit as a deputy judge, so he refused all offers of such work. If retirement was new for Jackett, it was no newer than the idea of setting up his own practice, something for which all his previous experience provided no guidance whatsoever. He had no business plan for his retirement. He thought that he might get work from lawyers who would be interested in having their pleadings in court proceedings reviewed by someone with his experience. This did not produce much business, other than from some lawyer friends to whom Hugh Gibson had recommended him. Most lawyers are less concerned with the precision of their pleadings than, given the pressures of daily practice, getting them filed within the appropriate time periods. Most did not have the vast experience of Jackett in such matters and were in no particular hurry to take the extra time and incur expense to polish their pleadings to the standards that he would have considered appropriate. At the time of Jackett's retirement, Marc Noel had left the Department of Justice and was in practice in Montreal with Bruce Verchere at a firm then called Verchere Noel and Eddy. They learned, with the rest of the

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profession, that out of 'nowhere' Jackett had decided to leave the bench. Noel and Verchere thought to themselves, 'Wouldn't it be interesting if we could persuade him to do work for us?' They seemed to have known that Jackett had not built any 'bridges' prior to leaving the bench, probably from discussions with Noel's father, and that he would not have a safe landing after his retirement. There was, for the two lawyers in private practice, an obvious marketing advantage to having him aboard. They suspected that Jackett would be reluctant to approach anyone for fear of being perceived as selling something other than his legal talent. So, shortly after he retired, they made an appointment to see him in his Ottawa office apartment, to ask if he would be counsel to their firm. He could do all his work in Ottawa and would not have to move. The Tiffany Apartments on Queen Elizabeth Drive are an old set of apartments along the canal. There are two addresses for W.R. Jackett: one is suite 610 and the other is suite 111 on the ground floor. It is more convenient for visitors to the office to come to the back door. They pass a notice stating, ironically in the circumstances, 'No Solicitors/ dial the apartment number on an ancient intercom system, and open the door following a tinny exchange of voices and a tired buzzing indicating that it is now unlocked. There follows a lengthy, not particularly well-lit, hall and eventually a door on the right hand side of the corridor. The office gives the impression of being bare and undecorated, with an old desk of no particular character, sporting an inexpensive veneer finish, near the window, with the light coming from the left. The chair is a swivel tilter with wheels and a cushion. A bookcase is behind the chair, filled with case reports, statutes, and other documents, many with tab markers showing, and written notes. The visitor sits in a large vinyl-covered armchair of institutional maroon colour with a card table placed in front of it if there is written work to be done. The other rooms (it is a three-room suite) are lined from floor to ceiling with bookshelves filled with the Statutes of Canada, case reports, and a collection of other legal works. There is a storage locker across the hall filled with the overflow of law books. There are almost no memorabilia in evidence except a mounted collection of photographs of the various members of the Jackett family taken many years ago and a photograph of the Privy Council taken in the 19505, shortly before Canadian appeals stopped being heard by that body. The phone on the desk has the same number as for the apartment and when it rings there is occasionally an answer by Kathleen and him at the same time, the protocol for which is quickly resolved. His reactions are very fast, so he almost always is the first to answer. A couple of direct-dial numbers are programmed into the phone, for taxis and for messenger services, since most communication of

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documents is done by messenger. It is a working office, cluttered with papers, journals, case reports and memoranda. In evidence are a well-worn and tabbed copy of the Income Tax Act, the Quebec Civil Code, and an old-fashioned corporate seal for a notary public. The only art work he has is a painting by Sergio de Paoli, which belonged to Alex Cattanach. Cattanach had bought it for his chambers, but his wife did not like it because of its rendering of the angle of a roof and the presence of a garbage can. It was, says Jackett, the way roofs were built in that region and that was where the garbage was kept. The outcome of the uxorious disapproval was that Cattanach did not hang his painting in his chambers after all. Jackett had a space on the wall of his own new chambers that was about the right size, so he asked Cattanach if he could take it off the floor where it was languishing and hang it there. Cattanach was delighted and, since there was no evolution in his wife's views when Jackett retired, the painting now hangs in the Tiffany Apartments. The view from the ground floor office is of a parking lot. If a visitor is present, Jackett sits and faces the card table, usually with some object, such as a letter-opener or paper clip, in his hands. He likes to hold the object with both hands and rock back and forth a bit in the chair. When thinking, he has a tendency to lean back in the chair and look up at the ceiling. He has given up smoking his trademark pipe and Dunhill Standard Mixture Medium, but he still has many of the pipes on hand and will occasionally play with one while talking and even bite tentatively on the stem. He keeps the room cool and, when a visitor is on hand, is often forced to close the window he would otherwise keep open on colder days. He has a large stereo and there is usually some music playing when he works by himself. In the city 'office' he always dresses in a suit or a jacket with a white shirt and tie. It is different at the cottage in the summer, when he may wear old trousers, an open neck plaid shirt, and mocassins. Down the hall is a bathroom, itself an additional storage room for books. There is a small kitchenette with a refrigerator and stove. Jackett keeps his lunchtime muffin in it if there is company and brews percolated coffee that would wake a zombie. The shelves of the kitchenette are also filled with books, one of which is the edition ofHalsbury's Laws of England that belonged to George Wheelock Burbidge, the first judge of the Exchequer Court of Canada. At first, Jackett was extremely reluctant to consider any such association with Verchere and Noel. He did not want his name to appear or to be 'marketed' for value. He had the firm view that he had derived whatever standing he possessed from public service and that one did not trade on that particular background. It would have to be clear from the outset that

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he would never appear in court on behalf of a client nor make representations on behalf of a client even outside the courtroom. He did not want to be trundled around the country making speeches; either he had a reputation based on his lifetime of work or it was too late to try to start building one.2 Noel says this is integrity of a type that few still demonstrate. It took months of discussion before they eventually came to a compromise whereby Jackett would be associated with their firm. Noel thinks that they may first have agreed with Jackett's insistence not even to have his name on the firm's letterhead, a state of affairs that may have lasted for a year or two, but the matter was revisited in 1980 or 1981. By then, Jackett had come to accept that there was a genuine need for his services and that they were not just using his name. He finally agreed to allow his name to appear as 'Advisory Counsel' on the firm stationery. The arrangement worked well from the beginning. When he wrote to his sister Audrey during the first summer after his retirement, evidently in response to a birthday message from her, he was able to say that he was sufficiently busy that he was not considering writing a book on administrative law which he had once contemplated: July 25,1980 Dear Audrey: Thank you for your birthday greetings. Birthdays come so fast that one hardly notices them, at this stage. I assume that you and Milton enjoy changing houses but I have to admit that I do not envy you. I shall be very happy not to move again. I have enjoyed my change of work very much since I retired as a judge. I have a small apartment (my 'study') at the same address, where I have a good working library that I have been accumulating over the years; and I have been receiving enough work from lawyers that I can do in my study so that I always have an excuse not to get down to writing a book. During the summer I move my activities to the cottage for two or three weeks at a time. This week we are in town. Our social life has dwindled - with our capacity for it - to a trickle, which suits me fine although it irks Kathleen that she has not more reserves to do things that we used to. Please give our regards to Milton and the younger members of your family I almost said 'children.' Love, Wilbur

282 Chief Justice W.R. Jackett

The firm was, before its later merger with Bennett Jones, nothing more than a small tax-boutique operation. This suited Jackett, who was not interested in a large organization. He much preferred the original days at the Department of Justice, when there were only a few lawyers and, apart from the litigation which they took on, they dealt internally with government departments. At the CPR, even though it was a huge operation, he had not dealt with the public. As a judge, he had, by conviction of what was proper and what should be avoided, deliberately cut himself off from the public. He never knew, nor took steps to discover, what might have been the reaction to his judgments or what the public or bar were thinking about him. So a small firm and a purely advisory role was probably as close to ideal as he might have hoped. Marc Noel believes it is highly likely that Jackett agreed to become associated with them because he was involved. On the other hand, Jackett liked Verchere and his dynamic, business approach to law - he must have seemed to Jackett like a magician. When Verchere was practising full time, which he did during the early years of the association, he was a great business-getter who could produce mandates from almost anywhere. He radiated a particularly compelling impression of confidence to clients, no matter how uncertain their cases might be. This flowed over into the type of opinions that he would give to them. Verchere always purported to be absolutely sure of every matter, despite Jackett's insistence that the client must decide, based on the probabilities. Jackett, for his part, was always extremely careful about what he asserted. He took care in putting together what he would say and went to great pains to assess the impact. His opinions were full of caveats; he was the complete antithesis of an imprudent person. Noel recalls that the opinions which Verchere was wont to give made Jackett apprehensive. Jackett recalls this as well. Verchere, he says, used to state what the law 'is/ You simply cannot do that as a lawyer, says Jackett. All you can do is say that, if the client is prepared to fight the matter to the highest court, in your opinion, the result would more likely than not to be in accordance with what you had expressed. A lawyer, he believes, cannot be categoric. Within the firm, they made an effort to channel the flow of work through one person, mainly Noel himself. Jackett was not, Noel says, 'social' and they did not want him to be made to feel that he had to deal with people he did not know and with a succession of new faces. Unless there was considerable preparation for the consultations they had with him, Noel recalls, they generally backfired. You had to treat him for what he is - a special individual. Dealing by phone was particularly difficult. The idea of bombarding him with phone calls from people he did not know was impossible and things would go badly. After the firm merged with

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the Calgary-based Bennett Jones, Noel would ask the Calgary lawyers to give him a week's notice of all the details of the problem on which they wanted to consult Jackett so that he could prepare him. In recent years, following Noel's appointment to the Federal Court and the move of Guy DuPont (who replaced Noel as the point of contact) to another firm, he has dealt mainly with Jacques Bernier, whom he likes and respects. Jackett believed as well in Marc Noel's judgment, which tended to be more subtly expressed than that of Dupont, who personified the fighter, ready to do battle on every issue, no matter what. He says that he often had to talk DuPont out of steps that would do no good in the case. Noel, he says, was more instinctive than DuPont. On the other hand, Noel says that Jackett is the only person to whom DuPont ever listened, in the sense of having an effect on him. DuPont developed a strong emotional attachment to Jackett, who seemed to him almost a father figure. Noel could not begin to put a value on how much the firm benefited from the raw judicial ability Jackett brought to them. He loved to develop arguments for them on the questions he was given. He had an acute instinct for a good argument and got a lot of joy out of developing something which he was confident would be of assistance. He was crisp and quick. He took absolutely nothing for granted. He had no confidence in the commercial legal publications for reliable identification of the statutory law. He would go back to the statutes themselves and build up the law, piece by piece, to be sure he had before him the real thing, not just the work product of some commercial editor. And, says Noel, he did find discrepancies from time to time. In the Amway matter, in which the firm was involved for many years, he 'created' his own consolidation of the Customs Act from inception and found anomalies which would not otherwise have been discovered. The resulting arrangement with their firm was always extremely congenial and, personally, Marc Noel developed an even closer relationship with Jackett than he had had previously through the family association. The Noels were probably as close to the Jacketts as the latter would allow, given their limited interest in matters social. Part of the family routine was to include the Jacketts in the family reveillon, after Midnight Mass on Christmas Eve, which might last from 2:00 to 5:00 a.m. The only other overtly social part of the new professional relationship was that, every spring, they would have a get-together in Montreal with Jackett and Kathleen and treat them to as lavish a dinner as possible. The firm would send a car up to Ottawa to get them. This was usually timed to coincide with Kathleen's annual visit to her dentist. As her health declined in the late 19805, the tradition of the spring dinner lapsed. The Jacketts used to stay at the Canadian Pacific's Chateau Champlain, probably out of their

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CPR connection. Interestingly enough, despite the close relationship that developed between Noel and Jackett during their professional association, they never had any specific discussion about Noel accepting an appointment to the bench, although they had discussed it in general terms as a 'some day' possibility. In about March 1992, it was intimated to Noel that there was an opportunity for him to be appointed to the Federal Court of Appeal and he was asked if he would consider it. He spent a week talking it over with his wife and looking at the economics of it and said 'no' at the time. But he decided that, if this offer were ever made again, he would think about it. About one and a half months later he was asked about the Trial Division. He says that he had already worked out the economic effects of an appointment, decided that he could probably manage, and accepted.3 He had no real chance to talk about it with Jackett and, in any event, probably would not have done so. Had Jackett agreed, he says, it would have made no difference, and if he had not, then there might have been bad feelings where none were necessary. There is no doubt that Jackett was a tremendous asset to the firm. But, says Noel, you had to know what he is 'all about' in order to tap the talent. Jackett required that the arrangement be non-exclusive, although he had no intention of associating himself with another firm and never accepted work from another firm thereafter. He would bill them every month with a fee, which started off at approximately $100,000 per year, with a description of the work done and the files involved. He signed every account he sent. This was remarkably cheap, less than senior associates in many firms, and would likely not compare with what some of his former colleagues were drawing from the firms to which they moved upon retirement. They would review the arrangement every year. When he called, he called collect and wanted those who answered the phones to know, so that they would accept the charges. The fact that he was making money made him feel valuable and this was important to him. After a time, they decided to change the arrangement to a monthly retainer. When this was decided, Jackett wanted to have the relationship formalized and to have a provision that allowed either party to terminate it at will. He thereupon wrote out, by hand, a letter agreement, which the firm caused to be typed, pursuant to which he would work part-time for eight months per year. Noel thinks that Jackett may have the only copy of the agreement. In fact, he works far more than the contracted amount. He thinks that he probably works 'only' six hours per day now. There are few firms in Canada who would not be delighted to get six productive hours a day out of a senior partner, let alone one who is into the latter part of his eighties. The after-tax deposit on his judge's pension is about $5,000 per month and that from the public service is about $2,000 per month. He says he ac-

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cumulated a modest nest-egg during the high interest rate years of the early and mid-1980s, which speaks volumes about his investment philosophy. Now, he wonders about whether he would be able to live on his pension income, maintaining both apartments and the cottage and buying his books, since the Bennett Jones Verchere firm has folded its operations in Montreal. With Bernier's move to Toronto, the parties thought that it would be prudent to terminate the formal arrangement as of 30 June 1998. Guy DuPont has already moved to fill the gap and was ecstatic to learn that Jackett would consider working with his firm, Goodman, Phillips and Vineberg. That flow of work from the new source has already started to DuPont's delight and Jackett's great satisfaction. Jackett previously knew of the firm from his occasional association with Philip Vineberg at the bar and on the bench, but he says that his work will be only with DuPont. Today, he is in his office by 9:30 every morning and works until lunchtime, when he goes upstairs to help Kathleen, has a brief nap, and then goes back downstairs to work for the afternoon. There is a constant supply of the work he loves. On one occasion, he had statutes, dating back to those passed during the reign of George II, all over his desk by the window and counter space. He was researching the true origins of the law of set-off as a substantive legal doctrine governing the extinguishment of mutual obligations, separate from the procedural plea which is its most common application, as part of an esoteric argument he was developing for a complicated income-tax-based claim. He follows all the jurisprudence and is happy to discuss the new cases that are decided. He has concern about the Supreme Court of Canada and is convinced that its judges have no understanding of the basic concepts of income tax-law. He was completely amazed at the decision of the court - one of its many split decisions - in the case of Jake Friesen, in which the court decided that a single piece of raw land was 'inventory' for incometax purposes and that it should, therefore, be valued each year for purposes of computing income, whether or not there had been a sale. Jackett could not understand how the obvious description of inventory in the statute could possibly have been interpreted to mean that a single piece of raw land so qualified. He said that the judges just pick cases to support their views without knowing what they mean and what was the context of each decision. Cases that really matter are simply ignored. From time to time he is asked to become involved in certain projects. One aspect of Jackett's approach to group meetings persisted even into his retirement. In February 1995 he received a letter from Tom McDonnell, at the time executive director of the Canadian Tax Foundation, asking him to be part of a group of wise men who would make recommendations on simplification of the Income Tax Act. He refused, on the basis that he had

286 Chief Justice W.R. Jackett

no time to do so, but sent a typical Jackett letter. The proposed committee was too big. He said that what was needed was for one or two people to draft proposals and then have a committee to review them, if necessary. They would have to separate income tax from the incentives that are sprinkled throughout the statute. Constant amendment had led to something with no internal consistency.4 They should check with Canada's treaty partners to see if any have had any success in the matter of simplification and how, if there was success, it was accomplished. He was also asked to participate in the research for the history of the Federal Court of Canada, an undertaking with which he had little sympathy. He thought it was nothing more than a public-relations exercise, a suspicion that was supported by his discovery that the court itself was funding the project, albeit through the Osgoode Society for Canadian Legal History and with editorial control in the hands of the author of the work. He agreed to one interview with Christine Kates, who was charged with the interviews of judges and others on or close to the court, and to one interview with Ian Bushnell, the University of Windsor law professor and author of the work, but he was otherwise quite uncooperative, despite a visit from the then current chief justice of the court urging him to participate more actively. He did not even bother to read the draft portions of the manuscript dealing with his stewardship of the court between 1964 and 1979 when Bushnell sent them to him for comments before the eventual publication of the history in late 1997. Nor is he particularly interested in reading it. No one sent him a copy, in any event. Because of Kathleen's poor health, Jackett erects a veritable force field of protection around her. As recounted at the outset, he thought that it would be too stressful for her to be interviewed for this book, but he eventually agreed that he would ask her some of the obvious questions, omitting anything that he regarded as personal. He would then communicate the answers in one of his handwritten memoranda: Kathleen Robertson of Saskatoon and Wilbur were married in Ottawa on September 5, 1939, immediately after Canada entered the Second World War. The marriage was a simple affair followed by a one week honeymoon in Montreal. Kathleen was born in Scotland of Scottish parents - Mr. and Mrs. Robert Robertson of Johnstone; and, as their only child, was brought to Saskatchewan by her parents just before the First World War broke out. She received her public school and collegiate education in Prince Albert; and then attended the University of Saskatchewan, where she received her B.A. and B.Ed. After leaving University, following a short interval of teaching school, Kathleen became Editor of the Women's page of the Saskatoon Star-Phoenix, by

Retirement 287 whom she had been employed as a reporter of student affairs while she was at the University. It was while Kathleen was with the Star-Phoenix that Wilbur returned to Saskatoon in 1937. They became acquainted through mutual friends. The rest of their joint story is history. To answer the purely personal questions raised by Mr. Pound for publication would be contrary to her Scottish nature. However, with regard to the last two questions, she has no hesitation in saying (a) Wilbur's bridge game, when he was at his best, was uninspired; (b) Wilbur's efforts in the kitchen deserve passing marks as long as he operates under strict supervision. As you will have noted, the response is expressed in my language but I have reviewed it carefully with her. Her only reservations are with regard to the last two questions. However, she admits that I had to 'work' at bridge, which came to her without effort, and that I am careful to do what I do in the kitchen in accordance with pre-arranged planning. W.R.J. 3/1/95 P.S. I regret that circumstances are such that the 'response' is not of much interest to you. The Oxford Certificates are attached. The B.C.L. was, I thought, in 1937.

There is little doubt that they had fun together in devising the response and disclosing as little as possible in the process. The circle of friends is getting smaller, the ability to get around has declined, and Kathleen's health has not improved. Jackett decided to sell his car when he turned eighty, so they hire someone to drive them to the cottage and on any shopping excursions. He goes for a walk each morning, which, when they are not at the cottage, includes a visit to Bouchey's, where he buys a huge muffin which he eats for lunch. Jackett wryly acknowledges that his female doctor has told him to give up three of the things he really likes: a good strong yellow Canadian Cheddar cheese, chocolate bars, and ice cream. The stationary bicycle is now a thing of the past. It was a feature of the Jackett apartments even before he went to Montreal, and while some thought it was there as part of a fitness program, the real fact of the matter was that it was to try to keep his weight down. On his frame of five feet four inches, he packed considerable weight, which once reached a peak of 190 pounds. There was a constant

288 Chief Justice W.R. Jackett

struggle to get this down to a more manageable level, by cutting back on food and desserts and by exercising. The advancing years have taken care of the weight and he worries occasionally about losing too much. Time has slowed down enough that there would, for many, be an opportunity for reflection and remembering. Unlike Toronto lawyer, D.L. McCarthy, who commenced a speech late in his life with the words, 'There comes a time in one's life when one can only remember and this is what I propose to do tonight/ Jackett still never looks backwards. If the arrangements with Bernier and DuPont did not come to anything, he had already begun to consider a project that most lawyers would consider particularly daunting and has collected the cases for the purpose. He thinks it would be a useful exercise to go back to the fundamental concepts of how business income should be measured for income-tax purposes and to analyse the judicial treatment of those concepts with a view to reconciling them and, perhaps now unencumbered by the Supreme Court of Canada, to point out where that court, among others, has gone wrong. There is no one better suited to the task. Jackett maintains that there has never been a day since he resigned that he was sorry he had done so. He is content that he has the ability to decide the important things in his life and to live with the effects of those decisions. u.s. President Harry S. Truman once said that it is amazing what you can accomplish if you don't care who gets the credit. Wilbur Jackett is a sterling example of this observation. He stuck to his work. He worked incredibly hard. He served the law and its institutions utterly faithfully. In the course of a lifetime of work, he has carved a place in Canadian legal history. It is a place that deserves the recognition he never sought and made every effort to avoid. He has been an outstanding public servant on and off the bench and has brought about significant improvements to the administration of justice and the evolution of Canadian law. The man from Kamsack who got off the train in Ottawa in January 1939 has accomplished far more than a normal lifetime's work. Canada has been the beneficiary. The Honourable Wilbur Roy Jackett achieved the designation the oldfashioned way - he earned it.

Appendices

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Appendix 1

Extracts from Chief Justice Laskin's Judgment in the Capricorn Case

At this stage there were pending in the Federal Court of Appeal an appeal by the ship and by Portland from the order of Pratte J. of October i, 1973, a notice of intention by the appellant cross-appeal, and a motion to quash the cross-appeal, and an appeal by the appellant from the order of Pratte J. of November 12,1973 refusing an order for service ex juris. The proceedings now took what I can only term an extraordinary turn. Without hearing the parties involved, and addressing himself to the notice of motion to quash the cross-appeal and to the appeal from dismissal of the application for service ex juris, the Chief Justice of the Federal Court issued what he designated as a 'Memorandum for the Registry' dated November 29, 1973. It was appended as a schedule to a certificate issued on November 30,1973 by the Deputy Clerk of Process of the Federal Court of Appeal, the certificate referring to and setting out an order of the Chief Justice endorsed on the certificate. I set out the certificate (which is entitled in the two styles of cause referable to the two proceedings aforementioned) in full: Upon the suggestion of the Chief Justice as expressed in his Memorandum to the Registry dated November 29,1973 (copy of Memorandum attached as Schedule A to this my certificate) and, Upon the consent of the solicitors for both parties by telephone to the Registry on November 30,1973; i HEREBY CERTIFY that the Chief justice pronounced and endorsed the following order on the above mentioned memorandum.

292 Appendix i ORDER

Pursuant to consents received by the Registry by telephone, I hereby make an order to the effect of paras (a),(b),(c),(d) and (f) supra and I order that the appeal on A-200-73 be heard at Quebec City on Monday, December 17,1973, commencing at 10:30 a.m. November 30,1973 W.R. JACKETT

C.J.

DATED AT OTTAWA, this 3Oth day of November, 1973. This memorandum, which was the foundation of the certificate and of the order which the certificate incorporated, must also be set out in full to show why the order and the certificate were issued. It is in these words: FEDERAL COURT OF APPEAL

DANS LA COUR D'APPEL FEDERALS

November 29,1973 MEMORANDUM FOR THE REGISTRY

re: A-i69~73 The 'Capricorn' v. Antares Shipping - A-200-73 Antares Shipping v. The 'Capricorn' Please communicate with the solicitors for the parties, in the first instance by telephone, and ask them to consider whether there is any advantage in hearing the Appellant's application to quash the Notice of Intention to Cross-Appeal on A-i69~73 before the appeal from the dismissal of the application for service ex juris on A-2OO-73 is ready for hearing. If there is no such advantage, I suggest that the hearing of the latter appeal be expedited and that the application to quash, which is now set down for December 7, 1973, be deferred for hearing immediately after the result of the appeal on A-2oo~73 has been finally determined. As it seems to me on a preliminary reading of the papers, if the refusal of leave to serve ex juris is ultimately upheld, either by a decision of this Court or by a decision of the Supreme Court of Canada, the judgment of the Trial Division of October ist will operate to strike out the action and set aside the arrest of the ship, in which event the Defendant Ship will have got everything sought by its motion to strike and there will be no alternative to its appeal being discontinued or quashed.

Laskin's Judgment in Capricorn 293 If that happens and the appeal from the October ist judgment is discontinued or quashed, there will then be no 'appeal' in the Court to act as a foundation for the Rule 1203 Notice of intention to ask, upon the hearing of the 'appeal/ that the decision that is the subject of the 'appeal' be varied and the subject of the application to quash will become of no effect. On the assumption that the offhand view of the matter that I have indicated is correct, it does seem to me that the question of whether there is going to be compliance with the condition in the October ist judgment must be settled before there will be any point in hearing the application to quash. Unless, in my above appraisal of the situation, I am overlooking something, I suggest: (a) that the motion to quash be adjourned sine die subject to paragraph (f); (b) that the appeal book on A-200-73 be prepared immediately (this should not take more than a couple of days); (c) that the Appellant file and serve his memorandum (Rule 1208) not later than December 6,1973; (d) that the Respondent file his memorandum (Rule 1208) not later than December 12,1974 (sic); (e) that the appeal be heard either (i) at Quebec City or Montreal on Monday, December 17,1973, commencing at 10:30 a.m., or (ii) at Ottawa on Friday, December 14,1973, commencing at 10:30 a.m. (f) that the motion to quash be heard on the same day if, after the hearing of the appeal on A-200-73, it appears to be settled that the appeal on A-i69-73 is going to proceed. If the applicant is of the view that there is some substantial reason for proceeding with the motion to quash on December 7, the Court will be ready to hear it in Quebec on that day. Otherwise, I hope that the parties can agree on the arrangement that I have suggested above, in which case, I will so order. I should, of course, be glad to consider any variation in the above, particularly if the parties can agree on it. (If the parties agree to my proposal, I should appreciate it if they would agree on the place and date for hearing of the appeal.) W.R. JACKETT

Chief Justice The appeal from the order of Pratte J. of November 12,1973, refusing to permit service ex juris, came before the Federal Court of Appeal on February 25,1974. It was dismissed by a unanimous Court upon the following oral reasons delivered byJackett,C.J.:

294 Appendix i Assuming, without deciding, (a) that the Court has jurisdiction in the cause of action set out in the Declaration, and (b) that that cause of action can be enforced by way of an action in rem to the extent that relief can be obtained by an action in rent, there is no connection between the same cause of action as against either of the corporate Defendants and Canada that would justify exercise of the Court's discretion under Rule 307 to order service of the Declaration on such Defendants outside Canada. Leave to appeal to this Court from this order of dismissal was given on May 21, 1974. In the interval between the order of dismissal and the granting of leave to come here, another memorandum, this time styled 'Memorandum for Counsel/ dated April 9,1974, was issued by Jackett C.J. This followed upon a notice of appeal filed by the appellant on March 7,1974 from Pratte J.'s judgment of October i, 1973 and upon a motion to quash this appeal lodged on behalf of the ship on March 26,1974. The 'Memorandum to Counsel,' an unusual document to come from a Judge in respect of a motion returnable some three weeks later, is as follows: THE FEDERAL COURT OF CANADA

The Chief Justice

Ottawa, KIA OH 9 April 9,1974 MEMORANDUM FOR COUNSEL

Re: Antares Shipping Corporation v. The Ship 'Capricorn' A-65-74 This is an application by the respondent to quash an appeal from the Trial Division to the Federal Court of Appeal. The Notice of Appeal, which was filed on March 7,1974, was filed to launch an appeal from a judgment delivered on October i, 1973. An appeal may be brought to this Court from the Trial Division, by virtue of section 27 of the federal Court Act, by 'filing a notice of appeal' within either ten days or thirty days, depending on the sort of appeal from the 'pronouncement' of the judgment appealed from or within such further time as the Trial Division may fix or allow. Obviously this appeal was not launched within thirty days and there is in the Notice of Appeal a statement, supported by affidavit, that the Trial Division has not fixed or allowed any other time limit. Superficially, it is impossible to imagine any fairly arguable basis for not quashing the appeal, and I am loathe to set up a Court of three judges in Quebec City to hear a motion which would seem to be beyond contestation.

Laskin's Judgment in Capricorn 295 I should appreciate it if counsel would discuss the matter and either (a) assure me, through the Registry, that there is some fairly arguable question to be decided, or (b) find some other way of disposing of the matter. W.R. JACKETT

Chief Justice Jackett C.J.'s memorandum had its effect because on April 23,1974 the appellant issued a notice of discontinuance of its proposed appeal from the order of October i, 1973. All of the proceedings touching the matter of service ex juris and touching the appellant's notice of intention to cross-appeal and its subsequent notice of appeal and the discontinuance thereof left untouched the appeal of the ship and of Portland from the October i, 1973 order of Pratte J. affirming the Federal Court's in rem jurisdiction and its jurisdiction over a claim for enforcement of the alleged agreement for sale of the ship. At the hearing before this Court on the question of service ex juris, counsel for the ship and for Portland conceded that the judgment of October i, 1973 must be taken as well-founded on the question of jurisdiction. It must equally be taken to have been well-founded when the Federal Court of Appeal heard the appeal from Pratte J.'s order of November 12,1973, refusing to allow service ex juris. Since the notice of appeal from the order of October i, 1973 brought by the respondent ship and by the respondent Portland was dated October 9,1973, there would have been merit in bringing it on at least as early, if not at the same time as the appeal on the question of service ex juris, an appeal which Jackett C.]. forced on under his 'Memorandum for the Registry' of November 29,1973.1 say this because the parties have been involved in a series of proceedings extending over two years and no statement of defence has as yet been filed. Although that extra-curial memorandum took cognizance of the conditional nature of the order of October i, 1973, so far as its effect on the action and on the arrest was concerned, it was also based on an anticipated decision of this Court in respect of service ex juris, and that is not a matter on which the Federal Court of Appeal should posit any calculations on what its own course of conduct should be with respect to proceedings that are properly before it. Source: [1977] 2 S.C.R. 422ff. Emphasis added.

Appendix 2 Department of Justice Lawyers, 1938-65

YEAR

ARRIVALS

1938

(In place already)

DEPARTURES

P.W. Anderson Henrietta Bourque W. Stewart Edwards (deputy minister) Paul Fontaine Romeo Gibeault John F. MacNeill Ed Miall Richard G. Olmsted C. Percy Plaxton Charles Stein Frederick P. Varcoe 1939

W.R. Jackett (Jan.) J.W. Bernier (Aug.) D.W. Mundell (Sept.) C.P. Plaxton to bench

1940 1941

E.A. Driedger (Dec.)

W.S. Edwards ret.

Department of Justice Lawyers, 1838-65 297

1942

R. Forsyth (Mar.)

J.R MacNeill to Senate

1943

[No changes]

1944

[No changes]

1945

D.H.W. Henry (Oct.)

1946

J.A. MacLeod (Apr.) H.C. Kingstone (Jun.)

Ed Miall (Jan.) retired P.W. Anderson (Jul.) - died H.C. Kingstone (Oct.) to UN

1947

J.D. Affleck Qan.) H.D. Anger (Jul.) A.H. Laidlaw (Aug.) J. Desroches (Dec.)

Romeo Gibeault (May) - died J.W. Bernier to Veterans' Affairs

1948

J. Francis (Apr.) K.E. Eaton (Nov.)

1949

T.D. MacDonald (Apr.) L.A. Couture (Aug.) H. Peterson (Dec.)

1950

J.T. Gray (Jun.) Sol Samuels (Jul.)

1951

A.A. Moffat 0un.) J. Fremont (Mar.) D.S. Thorson (Sept.) Ms. L. Boucher (Oct.) D.S. Maxwell (Oct.) R. Hould

1952

G.V. LaForest (Jun.)

T.D. MacDonald (Feb.) to Combines H.D. Anger (Apr.) to bench

1953

P. Ollivier (Feb.) Marguerite E. Ritchie (Apr.)

R. Hould (May) to Combines L. Boucher (May) - marriage

Charles Stein to Secretary of State R. Forsythe to bench Henrietta Bourque abandoned law

J. Fremont (Oct.) to practice

298 Appendix 2 J.P. Carrier (Jul.) D.H. Christie

A.A. Moffat (Jul.) to practice J.P. Carrier (Sept.) to practice D.W. Mundell (Sept.) to practice

1954

J.C. Martin (Jan.) C.R.O. Munro flan.) G.A. Rogers (Jan.) R.W. McKimm (Jul.) WJ. Creery (Aug.) P.M. Troop (Oct.)

J.T. Gray to prov. government J. Desroches - emigrated

1955

W. Nason (Jan.) E.R. Olson (Jan.) Guy Favreau (May) Alban Garon (Jul.) P.R. Partner (Jul.) L.L. Grant (Aug.) B.C. Hofley (Oct.) E.M. Legault (Oct.)

Paul Fontaine (Apr.) retired A.H.W. Laidlaw (Sept.) to CBC W.J. Creery to practice G.V. LaForest to university P.R. Partner - abandoned law R.G. Olmsted - retired L.L. Grant to practice

1956

G.T. Gregory 0an.) F.F. Gallant (Feb.) G.A. Beaudoin (May) H.J. Mclntosh (Jun.) G.W. Ainslie (Jul.)

E.M. Legault (Feb.) to practice J. Francis - retired G.A. Rogers - to Imperial Oil

1957

J.R.W. Gautreau (Feb.) M.W. De Weerdt (Mar.) D.H. Aylen (Aug.) G. Cote (Aug.) Edythe MacDonald (Sept.) HyCalof(Nov.)

L.A. Couture (Feb.) St. L. Seaway K.E. Eaton (Mar.) to practice F.F. Gallant to Industry P.P. Varcoe (May) - retired W. Nason (Oct.) - death

1958

N.A. Chamers Qan.) L.E. Levy (Jul.) T.E. Armstrong (Aug.) T.B. Smith (Sept.) R. Tasse (Dec.)

B.C. Hofley (Jul.) to Defence J.R.W. Gautreau (Aug.) - practice M.W. De Weerdt (Oct.) - practice

1959

G.H. Nerbas (Jan.) W.M. Lends (Jan.)

T.E. Armstrong (Jun.) - practice S.I. Shier (Sept.) - to practice

Department of Justice Lawyers, 1838-65 299

1960

R.A. Boyle (Apr.) S.I. Shier (Jun.) R.R. Macgillivray (Jul.) J.D. Lambert (Sept.) C.A. Holland (Oct.) J.M. Bentley (Nov.)

G.T. Gregory (Sept.) - practice W.M. Lervis (Oct.) - to practice R.A. Boyle (Nov.) - death G.H. Nerbas (Nov.) - to CNR R.W McKimm (Dec.) - to practice

D.D. Pratt (Feb.) R. Boudreau (Feb.) R.R. Price (Feb.) J.P.M. Charbonneau (Mar.) R.E. Williams 0ul.)

W.R. Jackett (Jun.) to CPR L.E. Levy (Jul.) - to practice Guy Favreau (Jul.) - practice D.H.W. Henry (Sept.) - Combines AJ. MacLeod (Sept.) Penitentiaries

T.D. MacDonald (Sept.) L.R. Olsson (Oct.) R. Bedard (Nov.)

1961

D.F. Walker (Jan.) E.E. Campbell (Mar.) L.P. Landry (Apr.) L.E. Leigh (Apr.) J.R.H. Tucker (May) B.D. Collins (Jun.) L.E. Smith (Jul.) M.H. Thomas (Oct.)

G.A. Holland (Dec.) to Industry

1962

R.G. Gordon (Mar.) D.G.H. Bowman (Mar.) M.J. Bonner (Apr.) M. Berkin (Apr.) P. Sorokan (Jul.) J.W. Ryan (Jul.) A.C. Whealy (Jul.) C.A. Anderson (Sept.)

M.H. Thomas (Jun.) - to practice L.E. Leigh (Sept.) - to university M.J. Bonner (Oct.) - to practice

1963

J.H. Buntain (Jun.) P.J.Y. Boileau 0ul.) R.A. Wedge (Aug.) PR. Coderre (Oct.)

J.C. Martin (Jun.) - death T.B. Smith (Aug.) - to practice G.R. Gordon (Aug.) - to practice R. Boudreau (Aug.) - to CNR D.H. Walker (Sept.) - resigned, ill health

300 Appendix 2 B.D. Collins (Sept.) - to practice L.P. Landry (Nov.) - City of Mtl. J.R.H. Tucker (Nov.) - practice

1964

T.B. Smith (Mar.) J.J. Cavarzan (Mar.) M.L. Ainsley (Apr.) H.A. Newman (Jun.) E.J. Arnett Qul.) Ms. E.M. Thomas (Sept.) C.P. Hughes (Sept.) T.W. Sommerville (Oct.) M.A. Mogan (Nov.)

1965

A.S. Ross (Feb.) N. Thurm (Feb.) R.G. Marks (Mar.) A. Garneau (Mar.) H.B. McDonald (Mar.) F.E. Gibson (Apr.) C.D. McKinnon (Apr.) J. van der Woerd (Apr.) L.E. Levy (Apr.) J. Roy (Apr.) L.W. Law (May) S.A. Hynes (Jun.) B.D. Collins Qul.) L.P. Landry Qul.) J.A.J. Belisle Qul.) N.D. Mullins (Aug.) B. Verchere (Sept.) H. Eyrikson (Sept.) L.R. Olsson (Sept.)

M. Barkin Qan.) - to National Revenue J.J. Cavarzan (Mar.) - practice E.E. Campbell (Apr.) - to National Revenue L.R. Olsson (Oct.) - to practice J.D. Lambert (Oct.) - B.C. Hydro

M.L. Ainsley (Mar.) - practice R.G. Marks (Mar.) - CBC R. Tasse (Apr.) - to Bankruptcy C.A. Anderson (May) - Industry E.J. Arnett Qun.) - to practice R.R. Macgillivray Qul.) Transportation

Appendix 3

Ministers of Justice and Deputy Ministers of Justice

MINISTER

Hon. Sir John Alexander Macdonald Hon. Antoine-Aime Dorion Hon. Telesphore Fournier Hon. Edward Blake Hon. Rudolphe Laflamme Hon. James McDonald Hon. Sir Alexander Campbell (Senator) Rt. Hon. Sir John Sparrow David Thompson Hon. Sir Charles Hibbert Tapper Hon. Thomas Mayne Daly (acting) Hon. Arthur Rupert Dickey Hon. Sir Oliver Mowat (Senator) Hon. David Mills Hon. Charles Fitzpatrick Hon. Sir Allen Bristol Aylesworth Hon. Charles Joseph Doherty Hon. Richard Bedford Bennett Hon. Sir Lomer Gouin Hon. Ernest Lapointe Hon. Hugh Guthrie (Acting) Hon. Esioff-Leon Patenaude Hon. Ernest Lapointe Hon. Hugh Guthrie

FROM

i July 1867 7 Nov. 1873 8 July 1874 19 May 1875 8 June 1877 17 Oct. 1878 20 May 1881 25 Sept. 1885 21 Dec. 1894 6 Jan. 1896 15 Jan. 1896 13 July 1896 18 Nov. 1897 11 Feb. 1902 4 June 1906 10 Oct. 1911 21 Sept. 1921 29 Dec. 1921 30 Jan. 1924 29 June 1926 13 July 1926 25 Sept. 1926 7 Aug. 1930

TO

6 Nov. 1873 31 May 1874 18 May 1875 7 June 1877 16 Oct. 1878 19 May 1881 24 Sept. 1885 12 Dec. 1894 6 Jan. 1896 15 Jan. 1896 8 July 1896 17 Nov. 1897 7 Feb. 1902 3 June 1906 6 Oct. 1911 21 Sept. 1921 29 Dec. 1921 30 Jan. 1924 28 June 1926 13 July 1926 25 Sept. 1926 6 Aug. 1930 12 Aug. 1935

302 Appendix 3 Hon. George Reginald Geary Rt. Hon. Ernest Lapointe Hon. Joseph-Enoil Michaud (Acting) Rt. Hon. Louis Stephen St Laurent Rt. Hon. James Lorimer Ilsley Rt. Hon. Louis Stephen St Laurent Hon. Stuart Sinclair Garson Hon. Edmund Davie Fulton Hon. Donald Methuen Fleming Hon. Lionel Chevrier Hon. Guy Favreau Hon. George Mcllraith (Acting) Hon. Lucien Cardin Hon. Pierre Elliott Trudeau Hon. John Napier Turner Hon. Otto E. Lang Hon. Stanley Ronald Basford Hon. Jean-Jacques Blais (Acting) Hon. Otto E. Lang Hon. Marc Lalonde Hon. Jacques Flynn (Senator) Hon. Jean Chretien Hon. Mark MacGuigan Hon. Donald J. Johnston Hon. John C. Crosbie Hon. Ray Hnatyshyn Hon. Joe Clark (Acting) Hon. Doug Lewis Hon. Kim Campbell Hon. Pierre Blais Hon. Allan Rock Hon. Anne McLellan DEPUTY MINISTERS

Hewitt Bernard Zebulon Lash George Wheelock Burbidge Robert Sedgewick Edmund Leslie Newcombe W. Stewart Edwards Frederick Percy Varcoe

14 Aug. 1935 23 Oct. 1935 26 Nov. 1941 10 Dec. 1941 10 Dec. 1946 i July 1948 15 Nov. 1948 21 June 1957 9 Aug. 1962 22 April 1963 3 Feb. 1964 30 June 1965 7 July 1965 3 April 1967 6 July 1968 28 Jan. 1972 26 Sept. 1975 2 Aug. 1978 9 Aug. 1978 24 Nov. 1978 4 June 1979 3 March 1980 10 Sept. 1982 30 June 1984 17 Sept. 1984 30 June 1986 7 Dec. 1988 30 Jan. 1989 23 Feb. 1990 4 Jan. 1993 4 Nov. 1993 11 June 1997 FROM

29 May 1868 i Sept. 1876 23 May 1862 25 Feb. 1888 13 March 1893 i Oct. 1924 i Oct. 1941

23 Oct. 1935 26 Nov. 1941 10 Dec. 1941 10 Dec. 1946 30 June 1948 15 Nov. 1948 21 June 1957 9 Aug. 1962 22 April 1963 3 Feb. 1964 30 June 1965 7 July 1965 3 April 1967 6 July 1968 28 Jan. 1972 26 Sept. 1975 2 Aug. 1978 9 Aug. 1978 24 Nov. 1978 4 June 1979 3 March 1980 10 Sept. 1982 30 June 1984 17 Sept. 1984 30 June 1986 7 Dec. 1988 30 Jan. 1989 23 Feb. 1990 4 Jan. 1993 4 Nov. 1993 11 June 1997

TO

31 Aug. 1876 22 May 1882 30 Sept. 1887 17 Feb. 1893 19 Sept. 1924 30 Sept. 1941 30 April 1957

Ministers of Justice and Deputy Ministers of Justice 303 Wilbur Roy Jackett Elmer A. Driedger Donald S. Maxwell Donald Scarth Thorson Roger Tasse Frank lacobucci John C. Tait George Thomson Morris Rosenberg

i May 1957 \ July 1960 i March 1967 i March 1973 18 July 1977 30 Sept. 1985 October 1988 October 1994 i July 1998

30 June 1960 28 Feb. 1967 28 Feb. 1973 5 June 1977 29 Sept. 1985 2 Sept. 1988 October 1994 30 June 1998

Appendix 4 Interviewees and Correspondents

I express my thanks and gratitude to the many individuals who have agreed to meet or correspond with me in relation to this work. Without fail, and whatever their connection with or views of Wilbur Jackett, they were extremely supportive of the idea that a biography of someone who has made such a contribution to Canada's legal history was a worthwhile endeavour. In particular, I thank those of his colleagues on the bench, many of whom have allowed me access to the interviews they gave for purposes of the history of the Federal Court of Canada. I hope I have not omitted anyone and apologize if, through inadvertence, I have done so. I have retained the correspondence and my notes of the interviews with those listed below in my files and would be pleased to share them with anyone who may have an interest in pursuing any of the lines of thought or research that they may suggest. The codes that I have inserted indicate, as the case may be, a personal interview (i), correspondence (c), or the interview given in connection with the Federal Court history project (FC). The dates of the interviews have been identified in square brackets. Hon. George Addy (c, FC) Derek H. Aylen (c) Hon. W. David Angus, Q.c. (i) [2 Feb. 1995] Charles A. Bane (u.s. Rhodes Scholar) (c) Madelaine Basta (Dept. of Justice) (i, c) [17 March 1995] Jacques Bernier (i) [8 Feb. 1997] Robert Biljan (i) [9 Aug. 1995] Susan Binnie (Law Society of Upper Canada) (i) Hon. D. Gordon Blair (i, c) [28 April and 11 Aug. 1995]

Interviewees and Correspondents 305 Hon. Donald G. H. Bowman (i) [25 Aug. 1995] Beatrice Brace (i) [19 July 1995] Anne Brennan (Dept. of Justice - Access Office) (i, c) Harold 'Hal' Brown (i) [10 Aug. 1995] Fred S. Burbidge (i) [27 Oct. 1994] Ian S. Bushnell (i, c) [30 Sept. 1994,9 April 1996] Ross Carson (i, c) [17 March 1995] Hon. A. Alex Cattanach (c, FC) Hon. Donald H. Christie (i, c) [22 Sept. 1994] Thomas E. Cole (c) Luc Couture (i) [19 July 1995] Marian Gumming, Department of Justice (i, c) [12 Dec. 1997] Bryan R. Deegan, Supervisor, Regulatory Affairs, CPR (c) Elsie V. Driedger (i) [8 Dec. 1994] Tom Driedger (i, c) [5 Jan. 1995] Hon. Jean-Eudes Dube (c, FC) Keith E. Eaton, Q.C. (c) Hon. Willard Zebedee Estey (i, c) [6 Jan. 1995] Hon. Jacques Flynn (i) [24 May 1995] Duff Friesen, Q.C. [17 March 1995] Hon. E. Davie Fulton (i, c) [22 July 1995] Hon. Alban Garon (i) [3 Feb. 1995] Monique Giroux (i) [13 March 1995] Hon. Alan B. Gold (i) [25 May 1998] Pearl Jackett Green (c) W. J. B. Grierson (i) [7 Dec. 1994] Patrick Hayes, U. Sask. Archives (c) Hon. Darrel V. Heald (i, FC) [28 April 1995] Hon. David H. W. Henry (i, c) [15 Feb. 1995] Colin K. Irving (i) [25 Oct. 1994] Donald J. Jackett (c) Hon. W. R. Jackett (i, c, Fc)1 J. M. Kaye (Fellow and Law Tutor, Queen's College, Oxford) (c) Charlotte Kindle (i, c) [26 Oct. 1994] Joseph Konst (i) [10 Aug. 1995] Hon. Gerard LaForest (i) [11 Aug. 1995] i Interviews were held over an extended period: [1994] 3 Aug.; 22 Sept.; 25 Oct.; 9 Nov.; 7 Dec. [1995] 12 Jan.; 3 Feb.; 18 March; 28 April; 10 Aug.; 11 Oct.; 15 Nov. [1996] 4 Jan.; 5 Feb.; 23 Feb.; 3 April; 10 May; 10 June; 3 July; 22 Aug.; 4 Oct. [1997] 3 Jan.; 14 May; 17 July; 3 Oct.; 16 Oct.; 12 Dec. [1998] 12 Jan.; 30 June; 9 Oct.

306 Appendix 4 Hon. Marc Lalonde, Q.c. (i) [2 Feb. 1995] Hon. Gerald LeDain (c) Wilfrid Lefebvre, Q.C. (i) [21 Dec. 1994] Marilyn MacFarlane (i, c) Isabel McWhinney (i, c) [9 Nov. 1994] Louise Boucher-McKay (i) Hon. Louis Marceau (i, FC) [7 Dec. 1994] R. Warden McKimm, Q.C. (i) [17 March 1995] Frangois Mercier, Q.C. (i, c) [5 Dec. 1994] Huguette Narum (i) [22 Sept. 1994] Hon Marc Noel (i) [11 Aug. 1995] Peter N. Oliver (i, c) E. Richmond Olson (i) [15 Nov. 1995] Hon. J. W. Pickersgill (c) Hon. Louis Pratte (i, c, FC) [12 Jan. 1995] Ian G. Pyper (i, c) [11 Oct. 1995] Audrey Jackett Reusch (i, c) [31 Dec. 1994] Marguerite Ritchie, Q.c. (i) [18 March 1995] Hon. William F. Ryan (FC) Sol Samuels (i) [19 July 1995] Hon. Mitchell Sharp (i) [4 Oct. 1996] Kay Simms (i) [7 Dec. 1994] Hon. Ian D. Sinclair (i) [5 Jan. 1995] T. Bradbrooke Smith, Q.C. (i, c) [22 May 1995] H. Heward Stikeman, Q.C. (i, c) [2 Aug. and 2 Dec. 1994] Marguerite Jackett Sveinson (i, c) [31 Dec. 1994] Roger Tasse, Q.C. (i) [30 June 1998] Jeannie Thomas, Canadian Judicial Council (i, c) [11 Aug. 1995] Marcella M. Szel, V-P, Legal Services, CPR (i) [4 Oct. 1994] Hon. Arthur L. Thurlow (i, FC) [7 Dec. 1994] Peter M. Troop, Q.C. (i, c) [22 Sept. and 9 Nov. 1994] Madge Tubby (c) Rt. Hon. John N. Turner (i) [21 Dec. 1994,5 Jan., and 12 Oct. 1995] Hon. John J. Urie (i, FC) [19 July 1995] Madeleine Wadden (Dept. of Justice) (i) [17 March 1995] Hon. Allison A. M. Walsh (i, c) [2 Oct. 1996] Ivan Whitehall, Q.C. (i) [17 March 1995] Bill Woolsey (c) Jim Woolsey (c) James A. Wright (i) [13 Oct. 1994]

Notes

CHAPTER ONE

1 Such records as remain suggest the following children: Richard (1857), William Henry (1858), Emma (1862), Thomas (1864), Philip (1867), Amelia (1870), Esther May (1871), Eliza Ann (Lysanne) (1874), Hanna Marie (1875), John James (1879), and Florence (1883). 2 There are two infants recorded as buried in the same grave as Margaret. It is likely that they are Edward and Walter, but the cemetery records are not available. 3 Rebecca died on 25 February 1945 in Emily. Both she and William Henry Jackett are buried there. They had six children, Ida Pearl (1896), Clara Margaret (1902), Norman (1904), Ethel (1907), George (1909), and Albert (Fred) (1910). Fred continued to operate the family farm until shortly before his death in 1994, when he sold it to Reid Roadhouse. 4 The best-known of the Jackett family in Saskatchewan was the son of Harry's brother Jack, Victor John Valentine (Vic) Jackett, a well-known goalie for the Regina 'Vies' hockey team and, later, the Yorkton 'Terriers/ in the Saskatchewan senior league. One of the few family members with whom Wilbur Jackett had any contact was Muriel Wright, a female cousin, daughter of his father's sister Amelia from the first marriage, who had married William Wright. Jackett met her while working in Regina after graduation and before he went to England on his Rhodes Scholarship. 5 Frederick Temple Hamilton Blackwood, Earl of Dufferin, was governor general of Canada and served from 25 June 1872 until 14 November 1878.

308 Notes to pages 7-10 6 Nancy Lee (b. 31 August 1944), James Richard (b. 14 January 1946), William John (b. 27 March 1947), and Mary Lou (b. 3 January 1952). 7 Her cousin and local sports celebrity, Vic Jackett, proposed one of the toasts at their wedding. 8 Audrey is the only member of the immediate Jackett family who has moved to the United States. She and her husband, Milton Keene Reusch, whom she married on 26 September 1942, live in Battle Creek, Minnesota. They have four children: Betty Ann Audrey (b. 1943), William Thomas Milton (Bud) (b. 18 November 1945), Lynda Gail (b. 10 July 1948), and James Brian (b. 28 September, 1955)9 A good deal of the material in this portion of this work is drawn from a wonderful collection of material published under the title Spinning Stones: A Woven History, a history of Kamsack and several of the neighbouring communities, Togo, Veregin, Runnymeade, and Cote Regina (FOCUS 1988). The impetus that led the Kamsack history book committee to prepare the book appears to have been the royal visit to Kamsack on 19 October 1987. 10 The Indian situation in the Kamsack area involved the Cote band, whose reserve was along the Assiniboine River. This band had obtained its lands in 1874 pursuant to Treaty 4, the Qu'Appelle Treaty, signed on September 15th at Qu'Appelle and Fort Ellice with the Plains Cree and the Saulteaux Ojibwa. The treaty negotiations reflected the results of several migrations. In the seventeenth century, there had been movement of three different tribes from the east into the area which is now known as Saskatchewan. In the north, the Chippewa forced the Slaves and the Beaver farther to the north and west. Farther south, the new alliance of the Cree and Assiniboine moved in from Manitoba. They were followed by relatives from northwestern Ontario, the Saulteaux. The Saulteaux were given their name by the French, as 'Saulteurs' from the area of Sault Sainte Marie. The westward movement was stopped by the Blackfoot and, more devastatingly, by small pox. This latter scourge eventually made it possible for western settlement by the mainly European whites and the plains Indians were effectively forced to enter into treaties with them, under the direction of the lieutenant governor of Manitoba and the North West Territories (then Alexander Morris) and a retired Hudson's Bay Company trader, W.J. Christie. It took the Indians about three years following the signing of the treaty to decide where they wanted the reserve to be located, but in 1877 they decided that they wanted it to be in their summer hunting grounds, unfortunately for the new railroad survey, in the area of Kamsack. Under the terms of the treaty, each family of five was awarded one square mile. Each man, woman, and child received $12 and a promise of $5 per year. Chiefs were given $25, a suit, a flag, and a medal. Headmen got $15. Part of the agreement was for the establishment of a school on each reserve and education was to be provided. The reserve was to be known as the Cote Reserve.

Notes to pages 12-25 3°9 Following the decision on the new proposed route for the railway in 1901, negotiations ensued once again. Agreement on the new arrangements was reached in March 1904, for the railway lands along the river and, again in 1907, for additional lands for development purposes. The Indians were given other areas and there was a payment of $10 per acre for the difference between what was surrendered and what was provided in exchange. The railway was a reality within weeks of the 1904 agreement. At the time of the 1904 negotiations, some thirty-five Saulteaux families under Chief Gabriel Cote (Mee May) had been involved. 11 Louise McKinney, the first woman to be elected to a provincial legislature, was elected in Alberta in 1917. On 24 May 1918, the Canada Elections Act enfranchised all women for purposes of federal elections. The first woman elected to the House of Commons was Agnes Campbell Macphail, on 6 December 1921. 12 The United Church of Canada Act was passed in 1924 and the first services in the new church were held on 25 June 1925. 13 Harry was an active Mason. The Masonic Lodge in Kamsack was, at the request of its founders, named the King Solomon Lodge, dispensation for which had been granted on 9 July 1909; the lodge's full name was King Solomon Lodge Number 58. Harry was deputy grandmaster of Lodge 58, and he held other posts in the Order as well. 14 Jackett remembers his last lecture from J.A. Corry, a very serious professor, in which he told them a story about a Viva' (an experience he was destined to face at Oxford not long thereafter) in the United States, in which some old fellow asked the candidate what was the difference between fornication and adultery. The candidate confessed that he did not know, whereupon the old fellow said, 'I think we should pass him. I've been trying for years and can't figure out the difference either.' 15 Cattanach was a year ahead of Jackett in law. 16 Ted Bence was a Rhodes scholar, back from England to take his final year of law at the University of Saskatchewan. 17 Gordon was a well-known lawyer who later became a somewhat indifferent judge on the Saskatchewan Court of Appeal, having a tendency to intervene too much in argument. 18 The Sheaf was the university student newspaper. Jackett does not recall any active involvement with the newspaper, but he thinks he may have written a few articles and letters for publication. 19 Stewart was born in September 1895 at Fairy Hill in the Qu'Appelle valley of Ontario parents. His grandfather was born in Scotch Corners, Lanark County, and his grandmother, Margaret Mclntosh, in Scotland. Raised in Regina, he became an army private in the war and studied law at the Regina Law School, operated by the Saskatchewan bar. This was the pre-University of Saskatchewan era and the Regina Law School was the Saskatchewan equivalent of Osgoode

310 Notes to pages 25-37 Hall. He came to Kamsack originally to practice with J.G. Banks but later set up his own practice in the Harvey Building. He served on the Kamsack school board for many years. He died in 1950 in his fifty-fourth year. 20 Gardiner would later become federal minister of agriculture and a fierce defender in the federal Cabinet of the western farmers. For an interesting biography of Gardiner, see Nathaniel A. Benson's None of It Came Easy (Toronto: Burns and MacEachern 1955). On 7 October 1966, Prime Minister Lester B. Pearson designated the dam on the South Saskatchewan River as the Gardiner Dam in recognition of his contribution to Canadian public life. CHAPTER TWO

1 He had been through Vancouver when he was very young, when his mother had taken the children to Victoria, but had little recollection of that occasion. 2 During the war, Chapdelaine acted as secretary to the influential federal Economic Advisory Committee. 3 In Six Centuries of an Oxford College, A History of the Queen's College (13401940) (Oxford, U.K.: Basil Blackwell 1949), by R.H. Hodgkin, the provost from 1937 to 1946, Drawda Hall is decribed as follows: 'Beyond the garden is Drawda Hall, with its gables rising above the roses and apple trees. Drawda has in a sense priority over Queen's, since William of Drogheda (or Drawda) was a Schoolman of the thirteenth century. There could be no greater contrast than that between Drawda and the main building of the college. But strange to say that they are of about the same age. Drawda is an example of the homely style of domestic architecture at the time when the WrenHawksmoor generations were building in stone in the grand manner. It was only acquired by Queen's in 1908; it was only made an integral part of the college in 1936.' 4 Hopkins was on the faculty at the University of Saskatchewan College of Law upon his return and then worked with the Royal Canadian Air Force legal division during the war, ending up finally as the clerk of the Senate. He was clearly a person of some considerable ability and wit, but his legal career never really flourished, at least partly as a result of alcohol. 5 The terms were: Michaelmass Term, eight weeks from the first week in October; Hilary Term, eight weeks from the first week in January; and Trinity Term, eight weeks from the second week in April. The Long Vacation was sixteen weeks from the second week in June to the end of September. 6 Oxford, i December 1935, to Flossie and Marguerite. 7 Oxford, 18 January 1936, to mother. 8 Hindenburg had died on 2 August 1934. Hitler arranged to combine the offices of president, chancellor, and supreme commander of the armed forces, all of which, of course, he would occupy. This was confirmed by plebiscite on 19 August 1934, and Hitler became Ftihrer und Reichskanzler.

Notes to pages 40-9 311 9 Lawson was a prolific author and editor of legal texts and wrote The Oxford Law School 1850-1965 (Oxford, UK: Clarendon Press 1968). 10 Foster was a barrister in London and on the Oxford circuit, a district recorder, and the secretary of the Law Reform Commission, the latter position, Jackett observed, giving him a great deal of influence 'in some very useful work which is going on/ Jackett had occasion to meet him several years later when he was in London on some cases representing the Department of Justice. Norman Robertson, then with External Affairs at the Canadian High Commission, invited him for lunch and Foster was another of the guests. 11 Harpenden, Herts., 14 July 1936, to Flossie. 12 Charles A. Bane was a Rhodes scholar from Chicago, reading for the BCL, and was a hall mate of Fred McLean, the 1935 Rhodes scholar from Saskatchewan at Queen's College. Jackett convinced him to join in on Lawson's informal seminars. In addition to his legal interests, Lawson was an American Civil War buff who spent his vacations touring the battlefields of that conflict. Bane recounts (letter to author dated 24 October 1995) that he had a personal reason for being grateful to Jackett. 'During one of my term vacation periods in London, I had a brief and (I thought) light-hearted romance with a beautiful London lady. Over time, it appeared that she took the encounter more seriously than I did. After I failed to resolve it myself, I turned to Wilbur for assistance. On his next visit to London, he met with the young lady and, lo and behold, the matter ended and everyone was happy. This was perhaps the first of what I am sure were numerous mediation efforts successfully carried out during Wilbur's long and illustrious career at the bench and bar.' 13 Oxford, 31 January 1937, to Flossie. 14 Luton, Beds., 28 June 1937, to father. 15 Rosamund Willis was a close friend and an accomplished artist who ran the Luton School of Fine Arts. Jackett had met her early on in his time at Oxford. He still has a sketch she made of him while on the tour and the family has a couple of her paintings. CHAPTER THREE

1 Yule argued cases in the Supreme Court of Canada at least until the late 19505 and was used, on occasion, as an agent of the Department of Justice, although he does not appear to have been on the main list of patronage counsel. He was often in Ottawa for sittings of the Supreme Court and would regularly invite Jackett up to his room in the Chateau Laurier on such occasions. Jackett remembers having to put his rather sodden mentor to bed very late one evening before he was to appear in front of the court the following morning. 2 Patterson, Waugh, O'Fallon, Taylor Ltd, of which O'Fallon was vice-president and whose offices were located in Suite 611 of the Confederation Building in Saskatoon.

312 Notes to pages 50-2 3 Jackett's friend and fellow 1934 Rhodes scholar from Nova Scotia, Sid Wheelock, later advised him of the background. 4 Many years later, when Ilsley had left politics and become chief justice of Nova Scotia, he became quite ill while returning by train from a judges' conference in Vancouver and it fell to Jackett to make arrangements through his CPR connections to meet the train in Winnipeg and provide Ilsley with medical care. Ilsley also had a brief stint as minister of justice, appointed in 1946 and replaced by Stewart Sinclair Garson in 1948. 5 Justice seems always to have been regarded as the senior of the two departments, going back to the original establishment of the federal government and its departments. See, for example, J. E. Hodgetts, The Canadian Public Service: A Physiology of Government 1867-1970 (Toronto: University of Toronto Press 1973)6 This was not confined to the Department of Justice. Mitchell Sharp, in his very readable memoir, Which Reminds Me ..., (Toronto: University of Toronto Press 1994), recounts encountering the same problem in the Department of Finance. For a description of how the Treasury Board was established and gradually came to be, on a practical basis, more powerful than even Parliament itself in matters of controlling expenditures, see Hodgetts, Canadian Public-Service, ch. 11, esp. 25iff. 7 In addition to Edwards, Plaxton, Varcoe, and Jackett as the new recruit, there were P.M. Anderson, Paul Fontaine, Ed Miall, Charles Stein, John MacNeill, and Romeo Gibeault. Henrietta Bourque was there as a law clerk from Quebec. This was prior to the time that the Quebec bar admitted women, so it had been arranged for her to get a call to the British Columbia bar. Richard Olmsted had been there, but he had been assigned to the Department of Agriculture and only came back to the department, after Jackett had arrived, to edit the collection of Canadian constitutional cases argued before the Privy Council that the department was preparing. The series, ironically, bears his name. In fact, Varcoe never trusted Olmsted to do anything of a legal nature. His appointment was an exercise in Varcoe's patronage and probably had less to do with his legal capacity than with the fact that the wives were friends. 8 Duff had been the chief justice of Canada when Jackett arrived in Ottawa and would remain so until he retired on 7 January 1944 as a result of age. He had long passed the mandatory-retirement age for judges of the Supreme Court of Canada (not then applicable to superior court judges generally) of seventyfive, but his term of office had been extended by a series of statutes for four additional years. He rendered his last judgment on 6 January 1944, the day before he finally retired. Thibaudeau Rinfret replaced him on 8 January 1944. Maclean had been appointed to the Exchequer Court of Canada on 2 November 1932 and remained in office until his death on 31 July 1942. He was replaced by Joseph T. Thorson on 6 October 1942.

Notes to pages 52-3

313

9 LaPointe had the constitutionally significant distinction of having signed Canada's first international treaty (the Halibut Treaty with the United States) without the intervention of Great Britain in 1923, when he was minister of marine and fisheries. 10 St Laurent was, says Jackett, particularly courteous at all times. Even after he became prime minister, he always remembered Jackett. Indeed, if ever one were producing a film and consulting Central Casting to find the perfect character to play prime minister, it would have been St Laurent. George R.W. Owen, a retired judge of the Quebec Court of Appeal and friend of St Laurent's son Renaud, tells a delightful and well-known story about St Laurent attending an important dinner in Paris while he was prime minister. The dessert course was to be served and there was a choice. St Laurent ventured, speaking, of course, in French, that he would have 'les ananas' (pineapple), not pronouncing the final's.' The French waiter, consumed with the obsessional mission of the continental French to ensure that colonials speak the only meaningful language in the world properly, corrected him by saying, 'Mais, surement, Monsieur le Premier Ministre, vous voulez dire "les ananas",' firmly pronouncing the final's.' Without batting an eye, St Laurent responded with a gentle smile/Pourquoi pas,' equally firmly pronouncing the final, silent, 's.' 11 Plaxton was appointed to the bench in Ontario in 1940 and Edwards, who never recovered his health, retired in 1941. 12 In the early days of the department, the filing room was organized in two separate sections, one for opinions and another for the litigation files. When a letter was sent to filing for the opening of a file, the experienced filing clerks would return the newly opened file on the subject along with all the old files relating to it, dating back practically to confederation, so that the lawyer working on it would have the benefit of everything in the department to guide him in the rendering of an opinion. The filing clerks were experienced and had an encyclopedic knowledge of the contents of the files. 13 Newcombe was deputy minister for some thirty-one years, from 1893 to 1924. He was appointed by Sir John Sparrow David Thompson, prime minister from 1892 to 1894. He had been a lawyer and professor of law at Dalhousie University and succeeded Robert Sedgewick, another Nova Scotian. Newcombe appeared in constitutional cases before the Privy Council over a period of almost thirty years, starting with the prohibition case, reported as Attorney General for Ontario v. Attorney General for the Dominion et al., [1896] A.C. 348, and ending with Lord's Day Alliance of Canada v. Attorney General for Manitoba et al., [1925] A.C. 384. He was appointed a puisne judge of the Supreme Court of Canada on 20 September 1924, directly from his position as deputy minister, filling the place then vacant as a result of the death of the chief justice of Canada, Sir Louis Henry Davies. Newcombe died on 9 December 1931.

314 Notes to pages 53-9 14 Human nature being what it is, the lawyers found ways to get around the rigid procedural system and developed a practice of doing a certain amount of the routine work within government over the telephone. 15 See Donald MacKay, The People's Railway: A History of Canadian National (Vancouver: Douglas and Mclntyre 1992), i34ff. 16 Jackett was not involved in the subsequent move to Ottawa by Russell Hopkins, who had taught for a couple of years at the College of Law after he returned from Oxford. 17 Despite not being much help in a career as counsel before the courts, the assignment to Finance was by no means a lateral transfer within the department. It exposed the lawyers to senior officials and ministers and the giving of advice on important legislation. Justice lawyers following Mundell in this position included several who were highly regarded within the department, David Henry, Sol Samuels, and Bradbrooke Smith. 18 The close relationship of the Department of Justice with the administration and staffing of the courts was a matter that came to trouble Jackett more and more over the years. He was, eventually, and only after being appointed to the bench, able to bring about a partial change in the nature of the relationship. 19 While the departmental records no longer exist, Driedger's son, Tom, recalls that his father had, at one time, looked into the files regarding the position that Jackett had won in late 1938. Driedger had also applied for it but had not mentioned this to Jackett. Apparently, among the unsuccessful applicants was a person whose path would cross with Jackett's in the future: Bora Laskin. 20 Miall retired in January 1946, after some twenty-four years in the department. Anderson died in July 1946. Olmsted retired in 1955. 21 Jackett says that, in looking at legal problems, he considered both the wording of the law and the cases decided thereunder; the latter would be the subject of stare decisis, which would be binding on the judges whose decisions you were trying to predict. In that regard, he was greatly influenced by the philosophy of Benjamin Cardozo, the famous U.S. judge. Where there appear to be gaps, then as lawyer (or judge) you have to fill them in and, if the outcome seems wrong, you simply have to find a way around what would otherwise lead you to the wrong result. This was a variation of the theme that Bert Yule had impressed upon Jackett while he finished his articles in Saskatoon. 22 Keith Eaton observed that their legal talents were complementary. Jackett, sometimes referred to as a 'pigeonholer/ tried to solve problems by looking for judicial precedents. Mundell, who was the closest to a legal genius of any lawyer with whom Eaton worked, used to come up with solutions that seemed 'so obvious that the rest of us wondered why we had not thought of them/ Once a solution was suggested following either route, Driedger was skilled at expressing it precisely and consisely.

Notes to pages 60-2 315 CHAPTER FOUR

1 Plaxton was appointed a judge of the Ontario High Court of Justice on 27 January 1941. The old Justice hands remember a predicament into which Plaxton had got himself while acting deputy minister. There had been a couple of volumes of decisions of the Privy Council on appeal from the Supreme Court of Canada edited by Edward Robert Cameron, then clerk of the Supreme Court, and Plaxton had organized a third volume for the more recent decisions, printed under his name, which he wanted to present to the court in one of its open sittings. In this volume he had included a most laudatory letter from Ernest LaPointe, the minister of justice. The problem was that LaPointe had not signed the original letter. 2 Meighen became prime minister upon Robert Borden's resignation on 10 July 1920 and was in office until the defeat of the Conservatives by Mackenzie King's Liberals on 6 December 1921. He had another, much briefer, stint as prime minister in 1926, when, following the resignation of the Liberal government over a customs scandal, the governor general of the day, Lord Byng, refused to dissolve Parliament and invited Meighen to form a government. Somewhat rashly, Meighen accepted, formed a government on 29 June 1926, and was defeated on a non-confidence motion three days later, on 2 July 1926. The Liberals then won the general election on 14 September 1926, when Mackenzie King outmanoeuvred Meighen by turning the focus of the election from the customs scandal to the constitutional issue raised by the governor general's action. 3 Varcoe always called the lawyers in the department by their surnames only. If he called you 'Mr' or by your first name, you knew you were in serious trouble. 4 Strictly speaking, Varcoe overstated his case. The senior law officer of the crown was the attorney general, not the deputy minister, who was the deputy attorney general. If Blair knew the difference, he did not purport to correct Varcoe on the point. In those days, the attorney general (or solicitor general) charged fees to the government for the cases they took, which meant that they generally had larger incomes than the other ministers. 5 Richard Bedford Bennett became prime minister following the federal general election on 28 July 1930, defeating the Liberals and a collection of small parties and independents. He was in office until being defeated by the Liberals in the election of 14 October 1935. 6 On the other hand, Varcoe was a genuine mandarin in certain respects and had no hesitation in becoming involved in creation of government policy, so long as the integrity of the Department of Justice was not involved. When Jackett succeeded him as deputy minister, he did not believe that the deputy minister should be so involved and was never part of the policy-making group of public servants.

316 Notes to pages 63-6 7 It had been much easier to act in this way during the war, when the exigencies of the challenges it brought made it almost imperative that there be a single directing effort led by the Dominion government. The taste within government for such expanded effort, however, did not diminish with the cessation of hostilities. 8 In any event, says Jackett, it is one thing for Varcoe to have had some new ideas as to where the SNA Act might go, but quite another to be looking for new law instead of applying the law to the facts as they were presented. 9 Toronto: Carswell 1954. 10 Oddly enough, Varcoe never told Jackett he was writing the book, although Jackett deduced that he must have been doing so since he would ask him to dig out answers to assorted constitutional questions and provide memoranda. Varcoe acknowledged the invaluable assistance given to him by Jackett in the foreword to the work. He also disclosed his views of the courts when he acknowledged some element of repetition in the book but noted that 'it has not been established that repetition, whether in a classroom or in a courtroom, is a bad thing.' 11 Reference as to the Validity of the Wartime Leasehold Regulations, [1950] S.C.R. 124. While many lawyers worked on the case, Varcoe took David Mundell and Allan J. MacLeod, who joined the department in April 1946, with him to the hearing. 12 Olson had been hired directly by Varcoe in January 1955, operating outside established departmental procedures. He told Olson not to bother accepting a scholarship at Harvard. 'You don't want to go to Harvard, you won't learn anything. Come and work for me. I'll teach you.' He enjoyed the exercise of such deputy ministerial prerogatives; it was one of the trappings of power. Olson recalls his first conversation with Jackett. It was a phone call, in which Jackett said, 'Mr. Varcoe tells me he hired you. Where are you and why are you not here?' Jackett and Olson were never mutual admirers. Varcoe took Olson with him on occasion to the Supreme Court of Canada, for example in Reference re The Farm Products Marketing Act, [1957] S.C.R. 198, and he did so even after he had retired as deputy minister: Dupont et al. v. Inglis et al, [1958] S.C.R. 53513 Roger Tasse, who became deputy minister in 1977 following Don Thorson, was hired in 1958, after Jackett became deputy minister, but Jackett would have had the final word on whether he was to join the department. 14 Ainslie had articled with the well-known Toronto lawyer, Walter Williston. Williston was rough with counsel, to the point that Jackett said he would not engage him for cases in which the Department of Justice was involved if he did not change the way in which he behaved. All his juniors had to be toned down as well. 15 His father had once sent an indirect message to Varcoe, through Luc Couture, one of the departmental lawyers, to urge Varcoe 'to give Don some more

Notes to pages 66-71 317 pleading.' Varcoe reacted coldly to the suggestion, said that the matter of who did what pleading for the department was his business, and ordered Couture not to broach the subject again. 16 William Norman Tilley was one of the leaing counsel in Canada, a tough, essentially self-educated litigator who acted on many of the most important cases in Canada, often on behalf of the Canadian government. For a brief description of his career, see David Ricardo Williams, Just Lawyers: Seven Portraits (Toronto Osgoode Society for Canadian Legal History/University of Toronto Press 1995), 56-89. 17 Perhaps not in the technical sense, but even if Varcoe could not have caused someone whom he preferred to be appointed, he might well have been able to block someone he did not want to succeed him. 18 Eaton was the cousin of Keith Eaton, one of the departmental counsel. 19 In 1960, after he had left the department, Jackett spoke at the annual conference of the Canadian Tax Foundation and still exhibited a residual disapproval for what was going on in the field of surplus stripping, giving the impression that he could not believe what damage the tax professionals were causing to the legislative scheme he had devised while in government. See Report of Proceedings of the Fourteenth Annual Tax Conference (Toronto: Canadian Tax Foundation 1960), 285-91. 20 Proceedings of the Tenth Annual Tax Conference, Canadian Tax Foundation (Toronto). For purposes of his address, Jackett drew extensively from the draft of a book written by Elmer Driedger entitled The Composition of Legislation (Ottawa: Queen's Printer 1957) and from an article by Gwynneth McGregor, 'The Language of Legislation/ Tax Bulletin, Canadian Tax Foundation, vol. 2, no. 5 (1952). 21 With judges like Thorson on the Exchequer Court of Canada who regularly took two or three years to decide cases, it is small wonder that the policy makers were unwilling to wait for such extended periods, especially when there might be additional delays if the case went to the Supreme Court of Canada. Leave to appeal to the Supreme Court was not then required so long as the amount of tax in dispute exceeded the monetary thresholds of the day. 22 Elliott was deputy minister from 1934 to 1947. 23 The suspicions within Justice regarding National Revenue and Elliott were already well developed by the time Jackett arrived, and John MacNeill related much of this lore to Jackett. 24 The case was Henry Goldman v. M.N.R., [1951] Ex. C.R. 274. 25 This was probably The King v. The Toronto General Trusts Corporation, [1942] Ex. C.R. 46, before Maclean, P. 26 [1957] 3 All E.R. 781. 27 Reference as to the Legislative Competence of the Parliament of Canada to Enact Bill No. 9 Entitled "An Act to Amend the Supreme Court Act," [1940] S.C.R. 49, and Weddell Limited v. The King [1946] S.C.R. 499. For a brief description of Geoffrion's career, see Williams, Just Lawyers, 90-123.

318 Notes to page 72 28 Stein had arrived at Justice before Jackett and had taken over the civil-law section after Paul Fontaine. His entree into the department had been the fact that his father was a partner of Ernest LaPointe, then the minister of justice. Jackett and Stein were appointed assistant deputy ministers at the same time and worked well together on all the administrative matters affecting the Department. Stein left the department in 1949 and became under-secretary of state. 29 Jackett had been in the Supreme Court of Canada with Varcoe in the following officially reported cases: Canada Rice Mills Limited v. The King, [1939] S.C.R. 84; The King v. Dominion Engineering Company, [1944] S.C.R. 372; In re Fred Storgoff, [1945] S.C.R. 526; The King v. The British Columbia Electric Railway Co. Ltd., [1946] S.C.R. 235; Mahaffey v. M.N.R., [1946] S.C.R. 450; Greenlees v. Attorney General of Canada, [1946] S.C.R. 462; Attorney General of Canada v. Jackson, [1946] S.C.R. 489; The King v. Anthony, [1946] S.C.R. 569; Dominion Telegraph Securities Ltd. v. M.N.R., [1947] S.C.R. 45; The King v. Gas and Oil Products Ltd., [1948] S.C.R. 215; Reference as to the Applicability of the Minimum Wage Act of Saskatchewan to an Employee of a Revenue Post Office, [1948] S.C.R. 248; Canadian Pacific Railway Co. v. Attorney General for British Columbia and Attorney General of Canada, [1948] S.C.R. 373; Reference as to the Validity of Section $(a) of the Dairy Industry Act, [1949] S.C.R. 8; Sullivan v. McGillis et al, [1949] S.C.R. 201; DiggonHibben Ltd. v. The King, [1949] S.C.R. 712; Winner v. S.M.T. (Eastern) Ltd. and Attorney General of Canada, [1951] S.C.R. 887. 30 Which is not to say, of course, that he always won. He appeared, while at the Department of Justice, in the Supreme Court either alone, with agents, or with juniors in the following reported cases: The King v. Canadian Pacific Railway Co., [1947] S.C.R. 185; The King v. Snell and the Workmens Compensation Board of the Province of British Columbia, [1947] S.C.R. 219; Regina Industries Limited v. The City of Regina, [1947] S.C.R. 345; M.N.R. v. The Great West Garment Co. Ltd., [1948] S.C.R. 585; Toronto Transport Commission v. The King, [1949] S.C.R. 510; Miller v. The King, [1950] S.C.R. 168; St. Ann's Island Shooting and Fishing Club Limited v. The King, [1950] S.C.R. 211; Blackwell v. M.N.R., [1951] S.C.R. 419; Coast Construction Co. Ltd. v. The King, [1951] S.C.R. 759; Robson v. M.N.R., [1952] 2 S.C.R. 223; Manning Timber Products Ltd. v. M.N.R., [1952] 2 S.C.R. 481; The Queen v. Spence and The Queen v. Bradshaw, [1952] 2 S.C.R. 517; Campbell v. M.N.R., [1953] i S.C.R. 3; Goldman v. M.N.R., [1953] i S.C.R. 211; M.N.R. v. Independence Founders Limited, [1953] 2 S.C.R. 389; Campbell-Bennett Ltd. v. Comstock Midwestern Ltd et al., [1954] S.C.R. 207; Phillips and Taylor v. City ofSault Ste. Marie, [1954] S.C.R. 404; M.N.R. v. Anaconda American Brass Ltd., [1954] S.C.R. 737; Wilson v. M.N.R., [1955] S.C.R. 352; F. Hoffmann-Laroche & Co. Ltd. Co. v. Commissioner for Patents, [1955] S.C.R. 414; M.N.R. v. Sheldon's Engineering Limited, [1955] S.C.R. 632; Universal Fur Dressers and Dyers Ltd. v The Queen, [1956] S.C.R. 637; Brooks and Ward v. The Queen, [1956] S.C.R. 683; Reference re The Farm Products Marketing Act, [1957] S.C.R. 198; Canada Safeway Ltd. v. M.N.R., [1957]

Notes to pages 72-5 319 S.C.R. 717; Samson v. The Queen, [1957] S.C.R. 832; B.C. Electric Railway Co. Ltd. v. M.N.R., [1958] S.C.R. 133; Canadian Acceptance Corp. Ltd. v. Fisher, [1958] S.C.R. 546; North Bay Mica Co. Ltd. v. M.N.R., [1958] S.C.R. 597; Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626; Commissioner of Patents v. CIBA Limited, [1959] S.C.R. 378; The Lord's Day Alliance of Canada v. Attorney General for British Columbia et al., [1959] S.C.R. 497; Oxford Motors Limited v. M.N.R., [1959] S.C.R. 548; Caine Lumber Co. Ltd. v. M.N.R., [1959] S.C.R. 556; Frankel Corporation Limited v. M.N.R., [1959] S.C.R. 713; General Construction Co. Ltd. v. M.N.R., [1959] S.C.R. 729; Crawford et al. v. Attorney General for British Columbia et al., [1960] S.C.R. 346; Smith v. The Queen, [1960] S.C.R. 776; O'Grady v. Sparling, [1960]S.C.R. 804. 31 Rinfret had first been appointed to the Quebec Superior Court on 22 July 1922, was appointed to the Supreme Court of Canada on 16 September 1924, became chief justice of Canada on 7 January 1944, and retired, owing to age, on 22 June 1954. See: G.-Edouard Rinfret, Histoire du Barreau de Montreal (Cowansville, Que.: Les Editions Yvon Blais, 1989), 164. 32 This was Campbell-Bennett Ltd. v. Comstock Midwestern Ltd. et al., [1954] S.C.R. 20, in which the attorney general of Canada had intervened. 33 [1956-1960] Ex. C.R. 3, a case argued in November 1954 but not decided by Thorson until October 1956. Thorson commented, at 9, on 'the competent cross-examination to which he [the witness] was subjected by Mr. Eaton of counsel for the appellant/ 34 Eaton remembers assisting Robinette in the case of Goodyear Tire and Rubber Co. of Canada v. The Queen, [1956] S.C.R. 610, where Robinette developed an argument and succeeded on the point in which he had the least confidence. 35 Subsidiaries Holdings Company Limited v. The Queen, [1956] Ex. C.R. 443. 36 He appeared in the following reported cases: British Columbia Electric railway Co. Ltd. v. The King, [1946] A.C. 527; A.G.for Canada v. A.G.for the Province of Quebec et al., [1947] A.C. 33; Co-Operative Committee on Japanese Canadians v. A.G.for Canada, [1947] A.C. 87; City of Montreal v. Montreal Locomotive Works Ltd., [1947] i D.L.R. 161; Canadian Pacific Railway Company v. A.G.for British Columbia and A.G.for Canada, [1950] A.C. 122; A.G.for British Columbia v. Esquimalt and Nanaimo Railway Company et al., [1950] A.C. 87; Canadian Federation of Agriculture v. A.G.for Quebec et al., [1951] A.C. 179; A.G.for Saskatchewan v. Canadian Pacific Railway Company, [1953] A.C. 594; and Minister of National Revenue v. Anaconda American Brass Ltd., [1956] A.C. 85. 37 See, for example, Wright's Canadian Ropes, [1947] A.C. 109. 38 Reference re Taxation of Canadian Pacific Railway Company, [1953] A.C. 594. 39 Jackett learned of his appointment as a KC while in London appearing before the Privy Council. 40 The case was McGuire v. McGuire and Desordi, [1953] O.R. 328, in front of R.E. Laidlaw, J.A. Hope, and J.K. MacKay, JJ.A. His opponent, K.G. Morden,

320 Notes to pages 76-8

41 42

43

44

45

46

softened the experience by trying to help him. Morden went on to become a distinguished member of the same court. He appeared in two other officially reported cases while in the department, Phillips and Taylor v. The City ofSault Ste. Marie, [1953] O.K. 264 and Re Superior Separator Company of Canada Limited, [1954] O.K. i, as well as in Re Mannira, (1958) 16 D.L.R. (2d) 450 (Ont. High Court) and (1959) 17 D.L.R. (2d) 482 (Ont. C.A.). McDougall General Contractors Limited v. The Foundation Company of Ontario Limited et al, [1952] o.W.N. 714. Schroeder, J. came from Ottawa and Jackett had known him there. Reliance was placed on the language in section 5(d) of the act, which gave the attorney general of Canada responsibility for the 'Regulation and conduct of all litigation for or against the Crown or any public department in respect of any subject within the authority or jurisdiction of Canada/ Although the act was passed well before the advent of crown corporations, Varcoe interpreted it as applicable to such corporations. Difficulties were encountered with the legal staff of Central Mortgage and Housing Corporation and the National Harbours Board. These bodies wanted to instruct their own outside lawyers, who sometimes did not understand the principles bearing on crown liability. There were many other very talented lawyers in the department whom Jackett would have approved before they were hired, as well as some hired directly by Varcoe. Those identified here are some of the officers with whom Jackett was particularly active in hiring and training. The same had been true for Jackett. He never asked for a raise, but had begun, after a few years, to keep track of the amount of time he had been working. His approach to Varcoe was indirect: he pointed out all the extra streetcar fares he was incurring three times a day and thought that there should be some reimbursement for this expense. Varcoe, who was no fool, immediately arranged for a promotion, Jackett's first. Looking back, Jackett thinks he would have got farther ahead much faster had he been more forward in matters of this nature. Varcoe, while master of his domain as deputy minister (essentially an unregulated baron, says Jackett), was not all that adept at working the levers of government to achieve such advances as better salaries within the department. W.R. Jackett, Chart of Privy Council Decisions with reference to The British North America Act. The chart covers some 180 cases, from Culliver v. Aylivin, (1832) 12 E.R. 406 to A.G.for Canada v. Winner, [1954] A.C. 541. The chart, as its title made clear, did not include references to non-constitutional appeals to the Privy Council. J.A. Corry, EC. Cronkite, and E.F. Whitmore, ed., Legal Essays in Honour of Arthur Moxon (Toronto: University of Toronto Press/University of Saskatchewan 1953). Moxon was one of the professors at the College of Law who had a great influence on Jackett in his formative years. Moxon became a lecturer in law at the university in 1911 and was appointed professor of

Notes to pages 78-90 321

47 48 49 50

51 52 53 54

55

law in 1913. He became dean of the College of Law in 1919, a post that he held until 1929, when he resigned to go into private practice in Saskatoon, although he continued as a lecturer until 1938. During his period as dean, legal education became centralized at the university, and Wetmore Hall, the law school operated by the Law Society of Saskatchewan (a la Osgoode Hall), was disestablished in 1922. Ibid., 156. Gordon F. Henderson published essentially the same article, entitled 'Working Papers of W.R. Jackett/ in Canadian Patent Reporter 8 (2d) 33. Laidlaw joined the department in August 1947 and left to go to the CBC in September 1955. This was something he had learned from Ed Miall in his first years at the department. Another peculiar expression he learned from Miall was to appear when he became a judge, when he would state, 'I am of opinion that.../ omitting the definite article 'the/ Duff was followed as chief justice of Canada by Thibaudeau Rinfret and Kerwin followed Rinfret. Ritchie was a Varcoe 'hire/ s.c. 1952-3, c. 30. This was Bank of Nova Scotia v. The Queen, (1961) 27 D.L.R. (2d) 120. David Henry and Ross McKimm argued the case for the crown. Thorson's judgment, when eventually rendered on 24 January 1961, ran to more than forty printed pages. Langlois v. Canadian Commercial Corp., (1956) 4 D.L.R. (2d) 263. CHAPTER FIVE

1 He had certainly been among those who were being considered. Charles Gavsie had asked Douglas Abbott, when Abbott was minister of finance, about the chances of his friend, Wilbur Jackett, becoming deputy minister. Abbott had replied, 'What about David Mundell?' perhaps because of his exposure at Finance at that stage of his career at Justice. It is equally likely that Driedger and Favreau were also considered. So it was by no means a sure thing from the outset. As to Guy Favreau, the general feeling at the time within the department seems to have been that a Quebec civil law-trained lawyer could never become deputy minister, because he would be unable to deal with legal questions emanating from the common law provinces. It was not until 1977, when Roger Tasse was appointed, that this attitude was overcome. 2 The Progressive Conservatives won 112 seats, the Liberals 105, the CCF 25, Social Credit 19, and independents 4. The new government was sworn in on 21 June 1957. St Laurent retired as leader of the Liberal Party on 6 September

322 Notes to page 91

3 4

5 6

7

8

1957. Lester Bowles Pearson, following upon the award of the Nobel Peace Prize on 12 October 1957 for his solution to the 1956 Suez Crisis, was elected leader of the Liberal Party on 16 January 1958. In the subsequent, quickly called federal election on 31 March 1958, the Conservatives won a landslide victory, capturing 208 seats, with the Liberals and CCF garnering only 49 and 8 seats respectively. See Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes (Toronto: Osgoode Society for Canadian Legal History/University of Toronto Press 1994), 137-9. Diefenbaker was wont to sneer at the senior bureaucrats as Tearsonalities' and to use other politically charged descriptions of them. The flavour of the suspicion that existed, virtually throughout the entire Diefenbaker government, can be seen in J.L. Granatstein, The Ottawa Men: The Civil Service Mandarins, 1935-1957 (Toronto: Oxford University Press 1982), 266ff. Jackett had a great deal of contact with Sim while Sim headed up Customs and Excise and says that he learned far more about government generally from him than from anyone else. Pickersgill had already left the civil service by the time Diefenbaker came to office. He had run for election in August 1953 and had gone into the St Laurent Cabinet even before running for office. Pearson had gone into the Cabinet even earlier, in 1948, as secretary of state for external affairs. The 'mandarins,' prior to the Diefenbaker government, had enormous influence on government and ministers relied heavily on their deputies to guide them not only with respect to the operations of the departments for which they were nominally responsible but also with respect to the implications of policy, whether political or social. There was a great deal of contact between the senior civil servants and many issues were referred, when there was no consensus, not to Cabinet committees but to interdepartmental committees of bureaucrats, who would study the matter from their own perspective and give advice to ministers accordingly. One of the principal reasons for their high degree of influence was that the government trusted the bureaucrats to give them good advice. It was a position that, with few exceptions, began to erode once the Diefenbaker government appeared on the scene. This may well have been the end of a Golden Age of civil servants in Canada. Some of the works by and about the many talent civil servants of the time include: Charles Ritchie, The Siren Years, A Canadian Diplomat Abroad 19371945 (London: Macmillan, 1954); Mitchell Sharp, Which Reminds Me; J.W. Pickersgill, Seeing Canada Whole: A Memoir (Markham, Ont.: Fitzheny and Whiteside 1994); J.L. Granatstein, A Man of Influence: Norman A. Robertson and Canadian Statecraft, 1929-68 (Ottawa: Deneau 1981); Hugh Keenleyside, Memoirs of Hugh Keenleyside (Toronto: McClelland and Stewart 1981). See Granatstein, The Ottawa Men, xjoiL

Notes to pages 92-9 323 9 See Doug Owram, The Government Generation: Canadian Intellectuals and the State 1900-1945 (Toronto: University of Toronto Press 1986), ch. 12; Granatstein, The Ottawa Men, 2i3ff. and ch. 9. 10 This was prior to the time that penitentiaries became the responsibility of the Department of the Solicitor General. 11 Jackett recalls that, for a time, Fulton had him review all the bankruptcy files that were within the department. Although this was not part of the civillitigation portfolio that was under Jackett's direct control, Fulton had some concern over scandals which occurred and wanted someone of Jackett's stature and reputation to advise him on the matter. 12 It was Jackett, not Varcoe, who was finally able to pry loose major salary adjustments for Department of Justice lawyers. 13 For an account of this unusual episode, see Palmiro Campagna, Storms of Controversy: The Secret Avro Arrow Files Revealed (Toronto: Stoddart Publishing 1992). 14 The Liberals under Pearson won 129 seats, the Progressive Conservatives 95, Social Credit 24, and the NDP 17. 15 There had been a somewhat similar incident during the Winnipeg General Strike in 1919, when the Royal North-West Mounted Police, the precursor to the RCMP, had intervened with similar serious results. The RNWMP had executed federal warrants and arrested the leaders of the strike on 17 June 1919 and four days later, on 21 June 1919, had charged the assembled crowd on horseback. For an excellent account of the Winnipeg General Strike, see J.M. Bumsted, The Winnipeg General Strike 0/1919: An Illustrated History (Winnipeg: Watson and Dwyer 1994). It is probable that the Regina incident weighed more heavily on Diefenbaker's memory than the Winnipeg General Strike, but there is no doubt that he was aware of both incidents. 16 The most recent version of the agreement had been dated 12 June 1957 and the clause (13) that was invoked provided: 'Where in the opinion of the Attorney General of the Province an emergency exists within the province requiring additional members of the Force to assist in dealing with such emergency, Canada shall, at the request of the Attorney General of the Province addressed to the Commissioner [of the RCMP], increase the strength of the division as requested if in the opinion of the Attorney General of Canada, having regard to other responsibilities and duties of the Force, such increase is possible.' It is not difficult to imagine the difficulties that Fulton faced in trying to work around the contractual language when explaining his decision not to comply with the request for additional members. 17 At least one minister, Donald Fleming, who had sided with Fulton on the issue, appears to have recalled Diefenbaker saying that, if things went wrong in Newfoundland as a result of his position on the matter, he would take the responsibility personally and resign. See Denis Smith, Rogue Tory: The Life and

324 Notes to pages 99-109

18 19 20

21 22 23 24

25 26

27

28

29 30

Legend of John G. Diefenbaker (Toronto: Macfarlane, Walter and Ross 1995), 335. It is doubtful that Fulton ever felt he could have counted on that outcome had things turned out badly. By the time Thorson got around to delivering judgment on 15 July 1960, Jackett had left the Department and Driedger was deputy minister. The Government of Canada v. The Government of the Province of Newfoundland, [1961]S.C.R. 383. This occurred as a result of the Government Organization Act, s.c. 1966, c. 25. s. 37, which was proclaimed in force i October 1966. The act confirmed an order-in-council adopted earlier that year and marked the first time that the solicitor general had an established portfolio, with responsibility for the RCMP, correctional institutions, penitentiaries, and the National Parole Board. McLellan succeeded Nicholson as commissioner, when the latter resigned over the Newfoundland matter. With Garson, Varcoe used to provide him with notes, in point form, on filing card-size paper. Pyper was followed by James Macaulay and later by Marc Lalonde. John C. Tait, who would become deputy minister of justice in October 1988, was loaned for a period of time by the Supreme Court of Canada to Jackett, who used him to explore particular topics which interested him but never on the cases which he was deciding. [1962] Ex. C.R. 115. Roy Lindsay Kellock had been appointed to the Supreme Court of Canada on 3 October 1944 (three days before Jackett's former teacher of law, J. Wilfrid Estey, was similarly appointed) and resigned on 15 January 1958 (the day on which Jackett's long-time friend Ronald Martland was appointed). Despite a convention that former judges should not appear before a court of which they had been members, Kellock was arguing in the Supreme Court of Canada before the end of the year in which he resigned, on 3 December 1958, in Canadian Bank of Commerce v. T. McAvity & Sons, Ltd., [1959] S.C.R. 478. Walsh Advertising was able to show that payment had been made in similar circumstances in the past when arrangements had been cancelled, that it had done considerable work on the campaign before the termination, and that some of its work had actually been used in the eventual campaign handled by the new agency. Times have changed. Jackett had a travel advance of $50 for the trip. Rooms at the Empress Hotel in Victoria were $11 per day and $13.50 at the Hotel Vancouver. His total expenses for the trip, including meals and taxis, were $59.33 for four days. Letter from Fulton to Bennett, 21 June 1958. The joint statement was issued on 15 August 1958. The only formal variation of the general rights and obligations of citizenship applicable to the Doukho-

Notes to pages 110-20 325 bors originally settling in Canada was contained in order-in-council P.C. 2747, dated 6 December 1898, which exempted them from military service. The government had apparently always taken the position that this applied to the Doukhobors who came at that time and to their descendants, but not to those coming to Canada at other times, although even with compulsory military service imposed during both world wars, means had been found to obtain exemption for them as conscientious objectors. [Memorandum from Jackett to Fulton, 30 September 1958.] Fulton passed on that advice in a letter dated 2 October 1958, in reply to a question addressed to him by one of the Doukhbors. 31 See Trail Daily Times, 6,8 February 1959. 32 Memorandum to Fulton, i February 1960, to which was attached a draft letter dated 29 January 1960 and a letter dated 2 February 1960 to Gilbert D. Kennedy. 33 The case does not appear to have been reported. 34 Once the university had taken the step, it seemed to become more comfortable with a Diefenbaker connection and, on 26 October 1969, he was installed as chancellor of the University of Saskatchewan. 35 The election was held on 31 March 1958, two and one-half months after Lester Pearson succeeded Louis St Laurent as leader of the Liberal Party. It was a landslide victory for Diefenbaker. 36 See Globe and Mail, 25 April 1958. 37 Smith, Rogue Tory. 38 Jackett's memorandum to Walker is dated i December 1958 and is in Departmental File 180667. Driedger's report is dated 10 December 1958. 39 Driedger advised Fulton on 10 April 1959. 40 8-9 Eliz. II, c. 44, An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. 41 Perhaps part of the reason for this can be deduced from an interview given to the Financial Post by Louis-Philippe Pigeon following his retirement from the bench of the Supreme Court of Canada. He indicated in the course of the interview that he had always thought the Canadian Bill of Rights was intended to be restrictively interpreted, because an amendment had been introduced during parliamentary debate on the bill to provide for more liberal interpretation but had been defeated, thus establishing (at least to Pigeon's apparent satisfaction) that it was not to be given a liberal interpretation, In fact, the amendment had been withdrawn on the basis of assurances by the government that it was unnecessary, precisely because the bill was to be given a wide interpretation. Pigeon had it completely backwards. Even more alarming from the perspective of both counsel and the public, this basis of interpretation of the eventual statute was never disclosed to counsel arguing cases before him, who could easily have set the legislative record straight.

326 Notes to pages 120-3 42 Smith, Rogue Ton/, 346. 43 One Canada: Memoirs of the Right Honourable John G. Diefenbaker: The Years of Achievement, 1957-1962, vol. 2 (Toronto: Macmillan 1996), 264-5. 44 Derek Aylen was another of the talented young lawyers recruited into the department, arriving in August 1957, not long after Jackett had become deputy minister. He remembers, on his first day in the office, being taken in to meet Jackett, a bright eyed, middle-aged man with straight jet black hair and matching moustache. Jackett's office was spartan, compared with those of some of the deputy ministers who came later, and neat and tidy, with just one or two files on the desk. His initial meeting was cordial and, predictably, short. Aylen was assigned to the civil-litigation section, of which Jackett had himself been director and which was his special interest. 45 This position was based on the judgment of Justice Ivan Rand in the Supreme Court of Canada's decision in The King v. Anthony and Thompson, [1946] S.C.R. 569, in which the court held that, in order for the crown to be held vicariously liable for the acts of one of its servants, the servant himself must first have drawn upon himself a personal liability to the third person. 46 This was the formation of the Emergency Measures Organization, established to deal with the possibility of a nuclear attack and announced by the government on 17 July 1959. 47 Lalonde went on to have a remarkable career both in the public service and in government. In 1965 Pearson asked him if he would like to be president of the Canadian Broadcasting Corporation or to come to Ottawa as a policy adviser in the Prime Minister's Office. He took on the latter position in 1966. He later headed a task force on securities regulation and corporate disclosure at the federal level, bringing his report in on the six-month schedule contemplated and on budget, a matter that he still remembers with some satisfaction. In 1968 he became Pierre Elliott Trudeau's chief of staff and was there until the general election in 1972, when he ran for office and was elected in the Montreal riding of Outremont. Once elected, he soon became one of the leading ministers of the day, holding several important portfolios (minister of National Health and Welfare, 1972-8; minister of state for federal-provincial relations, 1975-8; minister responsible for the status of women, 1975-8; minister of justice, 1978-9; minister of energy, mines and resources, 1980-2; and minister of finance, 1983-4) until his retirement into private practice as a lawyer in Montreal in 1985. Pitfield had a significant career as a mandarin, peaking in the Trudeau years, although he never ran for political office. His reward was appointment to the Senate in 1982. 48 One of the young lawyers whom Lalonde helped to get a job at Combines and later in Justice, Roger Tasse (later to become deputy minister), remembers that Favreau, who was something of a bon vivant, used to take the junior lawyers (Gerald Beaudoin, Alban Garon, and Tasse) in the civil-law section out for

Notes to pages 123-6 327

49

50 51

52

53 54

55

lunch on Fridays at an east-end restaurant called Imbros. They referred to Jackett as 'the General' and could tell when he was on his way to his office at the end of the third floor of the Justice Building from his heavy step on the marble floors. They looked up to him as a very hard working, tough lawyer with a vigorous and rigorous mind. This de facto state of affairs was given at least partial statutory recognition in the Canadian Bill of Rights. Under this measure, the minister of justice was required to advise Parliament if any provision of a proposed enactment violated the rights protected by the Bill of Rights. Pickup was appointed chief justice of Ontario on 24 September 1952 and resigned the office on 25 September 1957. These appearances included: Samson v. The Queen and A.G. of Newfoundland, [1957] S.C.R. 832; Canadian Acceptance Corp. Ltd. v. Fisher, [1958] S.C.R. 546; Murphy v. C.P.R. Co. and A.G. of Canada, [1958] S.C.R. 626; Lord's Day Alliance of Canada v. A.G. of British Columbia et al., [1959] S.C.R. 497; City of Toronto and Wellwood v. Outdoor Neon Displays Ltd., [1960] S.C.R. 307; Reference re Milk Industry Act of British Columbia, [1960] S.C.R. 346; O'Gradyv. Sparling, [1960] S.C.R. 804; Smith v. The Queen, [1960] S.C.R. 776. There were as well as a couple of other cases that he took with him when he went to the CPR: Rebrin v. F.W. Bird and Minister of Citizenship and Immigration, [1961] S.C.R. 376, and Government of Canada v. Government of Province of Newfoundland, [1961] S.C.R. 383. These included: Canada Safeway Ltd. v. M.N.R., [1957] S.C.R. 717; B.C. Electric Railway Co. Ltd. v. M.N.R., [1958] S.C.R. 133; North Bay Mica Co. Ltd. v. M.N.R., [1958] S.C.R. 597; Caine Lumber Co. Ltd. v. M.N.R., [1959] S.C.R. 556; Oxford Motors Ltd. v. M.N.R., [1959] S.C.R. 548; General Construction Co. Ltd. v. M.N.R., [1959] S.C.R. 729; Frankel Corporation Limited v. M.N.R., [1959] S.C.R. 713; and Curran v. M..N.R., [1959] S.C.R. 850. While not his normal field, he appeared before the Supreme Court of Canada in Commissioner of Patents v. CIBA Ltd., [1959] S.C.R. 378. He also continued his career before the Ontario Court of Appeal in Re Mannira, (1959) 17 D.L.R. (2d) 482. This was Crawford et al. v. Attorney General for British Columbia et al., [1960] S.C.R. 346. Martland was a 'junior' on both City of Toronto and Wellwood v. Outdoor Neon Displays Ltd. [1960] S.C.R. 307 and Lord's Day Alliance of Canada v. A.G. of British Columbia et al., [1959] S.C.R. 497. There is an amusing history to the 1949 Ford and driving lessons. After the war, Jackett had bought a big solid monster that looked very much like the cars designed before the war. It had a standard transmission, with a clutch and three forward gears. He asked Bud Estey for help so he could pass the examination for his driver's licence. They practised on the streets of Ottawa. Jackett's vision was not all that good, says Estey, and he had a tendency to shave the cars on the right. His operation of the clutch was like a switch - it was either on

328 Notes to pages 129-31 or off. He would snap it out and all four wheels would seem to come off the ground and the car would immediately stall. For the weekend of the test, Estey thought that the best thing to do was to find a friendly examiner. He went down to Rideau Street and found a furniture dealer who was a Liberal appointee, by the name of Bordeleau, and explained to him that Jackett was the Number One Policeman in the country, so it was important for him to pass. An appointment was made and, after instructions from Estey about staying at least a foot from the cars on the right and to drive with the clutch halfway out, off they went with Estey in the back left seat. Jackett forgot about the clutch and stalled immediately, whereupon Estey explained loudly, so Jackett would get the message, that they had been having trouble with the clutch. The message was received and he passed. Of the incident, Jackett says equably that he has no memory whatsoever for things that embarrass him. After that he practised over and over on the highway to the Gatineau and eventually became an adequate driver, although he never enjoyed driving very much. If he were ever to buy a lottery ticket, he said, it would be so that he could hire a chauffeur with the winnings. He stuck with Fords and his last, a 1964 model, was sold in 1992. 56 See J.E. Hodgett, The Canadian Public Service: A Physiology of Government 18671970 (Toronto: University of Toronto Press 1973), 2o8ff., for a discussion of the particular characteristics of the deputy minister. This office is a political one deliberately excluded from the provisions of the Civil Service Act. Yet, as a matter of convention, the holder of the office does not change with the defeat of one government and the election of another. CHAPTER SIX

1 Canada is a small country. Heward Stikeman married Elizabeth Guy. Sinclair helped Stikeman with his Master's thesis. 2 He became president in 1966, president and chief executive officer in 1969, and chairman and chief executive officer, following the retirement of N.R. Crump, in 1972, holding these last two titles until 1981. 3 George Wheelock Burbidge was born in Cornwall, Nova Scotia, on 6 February 1847. He was appointed deputy minister of justice in 1882, in which capacity he, inter alia, attended the trial of Louis Kiel for the purpose of ensuring that due process was observed, and he also appeared in the subsequent appeal to the Privy Council. Maggie Siggins, in her excellent work Kiel: A Life of Revolution (Toronto: Harper Collins 1995), 422, identifies Burbidge as part of the prosecution team. Burbidge is also considered to be the father of the Criminal Code. He became the first judge of the Exchequer Court as part of the reorganization of the Supreme Court of Canada in 1887. 4 Burbidge became president in 1972 and chairman and chief executive officer in 1981, when Sinclair retired.

Notes to pages 131-3

329

5 Emerson was, by all accounts, an extraordinary character. He graduated from the University of Manitoba at the age of fourteen. He had not gone to school but was educated by his mother at home. He went to Yale University on a scholarship before coming to the CPR, where his career was brilliant. Sinclair thought he was superb witness and used him whenever he could in cases involving the company. He died tragically early (a suicide), before his full potential could be realized. 6 [1944] S.C.R. 98. 7 [1948] S.C.R. 373. Jackett was there with Varcoe and Sinclair was there with Carson and H.A.V. Green, one of the CPR lawyers based in Winnipeg. 8 [1952] 2 S.C.R. 231. Jackett was with B.C. Leslie, one of the leading lawyers in Regina, who had, in addition to his legal talents, a great reputation as a humorous after-dinner speaker, and Sinclair was with Allan Findlay. 9 [1954] S.C.R. 427, with Carson, S.J. Helman, and Findlay. 10 Even in recent years, following his retirement from the court, Jackett's constitutional scholarship was still well enough known that, when the CPR consulted Bud Estey on a constitutional question, Estey suggested that Jackett be approached to be a witness, although he knew perfectly well that Jackett would never have agreed to appear in such capacity. 11 Jackett would have known this as well from his exposure to the Tilley, Carson firm, which the Department of Justice engaged from time to time in major litigation. Jackett respected, in particular, Allan Findlay, a partner in the firm. He had also worked on several cases with Cyril Carson. An ironic sideline of that particular personal association was that Carson had complained that there were some partners in the firm who were not carrying their weight, so Jackett had prepared for him a draft partnership agreement designed to alleviate the problem. Carson persuaded his partners to adopt the agreement, but, towards the end of his career, the same provision was used against him. 12 Chalmers later returned to the Department of Justice and finished his career there. 13 The batonnier of the day was Senator Adrian Knatchbull-Hugessen, the father of James Cornelius Knatchbull-Hugessen, who would be appointed to the Federal Court of Appeal from the Quebec Superior Court in 1983. 14 Tamaki's presence in Saskatchewan was the result of the forcible relocation of Canadians of Japanese descent during the war, which included the members of his family in British Columbia. During his lifetime, he worked tirelessly to try to obtain recognition of the injustice of the government's decision and to get some form of compensation to give substance to the apology. One of Jackett's mandates while in Justice was to prepare the government's legal position in defence of the claims. He was not greatly impressed with one of the agents retained for the purpose, H.E. O'Donnell, who required endless briefing and who wrote endless notes of what was told to him by Jackett.

33° Notes to pages 138-41 15 This was likely United Motors Service, Inc. v. Hutson et al, [1937] S.C.R. 294, which was argued on 18 and 19 November 1936. McCarthy and Beaton were against Tilley and F. Erichsen-Brown. Beaton, Bell and Ross were solicitors for the respondent. One other possibility may be Stevens v. City of Chatham, [1934] S.C.R. 353, argued on 21 and 22 November 1934, in which Tilley and McCarthy were opposing each other. The junior counsel may not have been listed. 16 Although Wright had done some court work, appearing with Sinclair on rate cases, on the Royal Commission on Coastal Trade, and with Charlie Gavsie on a timber tax case involving the Esquimalt and Nanaimo Railway, his main role in the company had evolved to that of solicitor rather than counsel. The CPR was an aggressive company and one of the more fascinating legal machinations was working with Wood Gundy on the separation of the CPR'S railway assets from other company assets, which gave rise to the establishment of C.P. Investments Ltd. Crump generally gets the credit for this innovation, but Sinclair was undoubtedly the one who provided the nervous energy to actually get the job done. Bell Canada followed the CPR example when it created BCE Inc. These reorganizations were done because, in rate cases, both companies were convinced, probably correctly, that the non-railway (or non-telephone) assets and income were being used by the regulators to subsidize the railways (or telephone subscribers). 17 [1961] S.C.R. 376. 18 [1961] S.C.R. 383. This was part of the detritus of the RCMP crisis in 1959 that had led to the resignation of Commissioner L.H. Nicholson. 19 [1962] Ex. C.R. 115. 20 [1962] S.C.R. 609. The reported history of the case includes the appeal from the decision of Elmore, senior magistrate of the city of Toronto, by way of a stated case before Chief Justice J.C. McRuer, sub nom. Regina v. Canadian Pacific Railway Co., [1962] O.R. 108. The appeal to the Ontario Court of Appeal, which was in substantial agreement with McRuer, C.J.H.C., is reported at [1962] O.R. 554. 21 It was on this occasion that Jackett first encountered Julius A. Isaac, who was a junior lawyer working for David Lewis. Isaac would go on to a career in the Department of Justice, working mainly in the field of criminal law before being appointed to the Ontario High Court of Justice on 21 February 1989 and from there to chief justice of the Federal Court of Canada, on 24 December 1991, following the elevation of Frank lacobucci to the Supreme Court of Canada. 22 [1963] S.C.R. 247. 23 Interestingly enough, Roderick Kerr, who would later be appointed to the Federal Court, was then chief commissioner of the Canadian Transport Commission, having previously been chairman of the Unemployment Insurance Commission. Jackett describes Kerr as a 'solid legal gentleman.'

Notes to pages 141-4

331

24 Appointment of the Kellock commission brought an end to a huge strike at the CPR. The commission's eventual recommendations eliminated the position of fireman, but it was broad enough in its treatment of technological change that it enabled the railways to handle such changes in a much more enlightened manner than might otherwise have been the case and thus reduced the debilitating effects of multiple strikes. 25 Bandeen became president on i May 1974 and remained in that position until he announced his resignation on 25 January 1982. Pierre Taschereau became chairman on i May 1974 and, after he left in 1976 to become full-time chairman of Air Canada, was replaced by General J. A. Dextraze on i September 1977. See Donald MacKay, The People's Railway (Vancouver: Douglas and Mclntyre 1992). 26 Fauteux had a considerable connection with the faculties of law at both McGill University, where he was a professor from 1936 to 1950 and served as dean in 1944, and the University of Ottawa, where he founded the faculty and was dean from 1953 to 1962. In order to establish a faculty outside the province of Quebec that would be recognized by the Quebec bar, a special amendment to La loi du Barreau had to be enacted, which was 1-2 Eliz. II, c. 53, proclaimed on 26 February 1953. Fauteux was first appointed to the Quebec Superior Court on i April 1947 and was promoted to the Supreme Court of Canada on 22 December 1949. See: G.-Edouard Rinfret, Histoire du Barreau de Montreal (Cowansville, Que.: Les Editions Yvon Blais 1989), 165. 27 Jackett had first met Scott while in the Department of Justice. Varcoe occasionally asked Scott to prepare opinions on some of the constitutional cases with which the department was involved. 28 Ian Bushnell, in his excellent The Federal Court of Canada: A History, 1875-1992 (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 1997), mistakes the comments of Jackett in these lectures as the pronouncements or revelations of a judge as to his view of the proper approach to the law, apparently overlooking the fact that the lectures had been prepared and delivered well before Jackett became a judge, despite a later publication date. As noted elsewhere, when Jackett was on the bench, he loved to be able to say to counsel who cited his articles to him that they were "just articles/ 29 O.E. Lang, ed., Contemporary Problems of Public Law in Canada: Essays in Honour of Dean EC. Cronkite (Toronto: University of Toronto Press/University of Saskatchewan 1968). 30 James Wright was impressed enough with the lectures that he kept a copy until after his retirement. He kindly provided the author with this copy for use in preparing the present work.

332 Notes to pages 144-9 31 This appreciation made him a particularly good judge in income-tax matters and spilled over into some of the other specialties as well, such as expropriation and intellectual property. CHAPTER SEVEN

1 Apparently Pearson had tried to interest the "Three Wise Men/ the name later given by the media to Pierre Elliott Trudeau, Gerard Pelletier, and Jean Marchand, to come on board, but had been unsuccessful. They did not agree with Pearson's defence policy, particularly with respect to arming the Bomarc missiles with u.s. nuclear warheads. As it was, however, and to Diefenbaker's concern (which reinforced his view that the civil service was riddled with Liberals), several former leading civil servants became candidates along with Favreau, including CM. Drury (deputy minister of national defence), Maurice Lamontagne (Privy Council Office), and Mitchell Sharp. 2 Section 9 of the Exchequer Court Act provided that judges of the Exchequer Court had to retire at age seventy-five. 3 Elmer Driedger was certainly aware of Jackett's aspirations and, as deputy minister, may have had some influence, but, in all likelihood, Maxwell, who was far more 'political' than Driedger, was the hands-on insider in the process. Most important of all, however, was Favreau's knowledge that Jackett wanted, some day, to become a judge. 4 Kearney had been a diplomat, having been appointed in July 1941 as high commissioner in the Republic of Ireland. Before coming to the court, he had been chairman of the Board of Transport Commissioners. He came from Montreal and had been in the same firm as Louis St Laurent's son-in-law, H.E. O'Donnell, a well-known Montreal litigator who had handled some of the post-war appeals to the Privy Council. Kearney was dreadfully slow in rendering judgment and had great difficulty making up his mind on cases. He wasted everyone's time after they thought they had him pointed in the right direction. 5 Ottawa Citizen, 5 May 1964. It required some rearrangement of the court schedule for Kearney to do the swearing-in, since he had been selected, probably by Thorson before he retired, to go down to Cornwall that day to hear some tax appeals. Thurlow and Cattanach said that Kearney should pick someone to replace him and it turned out to be Cattanach. When Cattanach arrived in Cornwall, he found counsel ready to plead in front of Kearney, having studied all of Kearney's cases for the occasion. 6 He had not had an increase in the salary agreed upon with Ian Sinclair, but, as counsel, was allowed to retain court costs on cases in which he was successful. So he had been earning something in the range of $40,000 at the time of his appointment.

Notes to pages 149-56 333 7 Hall was first appointed in 1957 as chief justice of the Court of Queen's Bench of Saskatchewan and in 1961 became chief justice of Saskatchewan. He is reputed to have said that Diefenbaker had called him and said he wanted to appoint someone to the Supreme Court of Canada from the west who could speak French. Hall, who had originally come from the Ottawa valley, volunteered the person he knew best. 8 [1951] S.C.R. 504 at 515. It was a unanimous judgment, written by the chief justice, of a court made up of Chief Justice Thibaudeau Rinfret and justices Robert Taschereau, Ivan Rand, Willard Estey, Charles Locke, John Cartwright, and Gerald Fauteux. 9 See, for example, Jack Herdman Limited v. M.N.R., [1983] C.T.C. 272,283. 10 See, for example, Thomas D. Trapp v. M.N.R., [1946] Ex. C.R. 245; The Royal Trust Company v. M.N.R.., [1956-60] Ex. C.R. 70; and Imperial Oil Limited v. M.N.R., [1959] C.T.C. 29. 11 This is the volume cited as [1956-60] Ex. C.R., which was not published until 1965. Jackett says there are many more Thorson judgments which remain unreported because he never got around to writing the headnotes. When Jackett got to the court and found that this practice continued, as well as the variation that the deputy registrar was bringing the headnotes to the judges for their approval, he 'soon put a stop to all that.' Jackett eventually convinced Don Maxwell that the publication of the official reports should be done outside the court. The Supreme Court became envious of this streamlined procedure. It was in somewhat the same state as the Exchequer Court was under Thorson. Louis-Philippe Pigeon, while he was on the Supreme Court, insisted on writing all the French headnotes for the court and Jackett remembers Fauteux being upset with many of them, which Fauteux often felt did not say what had actually been said by him in his reasons for judgment. 12 The chief justice of the Exchequer Court of Canada had always been designated as 'President' of the court. When the Federal Court of Canada was established, the more readily understandable title of 'Chief Justice' was adopted. The Trial Division was presided over by the associate chief justice of the court. 13 Ernest Soragg & Sons Ltd. v. Leesard Corporation, [1964] Ex. C.R. 649, judgment in which was rendered on 26 February 1964. The case occupies 166 printed pages. 14 O'Cedar of Canada Limited v. Mallory Hardware Products Limited, [1956] Ex. C.R. 299. 15 He was appointed on 29 March 1967 and took office on 17 April 1967. GeorgesPhilias Vanier, who had been appointed on i August 1959, served from 15 September 1959 until his death on 5 March 1967. 16 He had to go all the way to the Supreme Court of Canada on the preliminary procedural point of whether he had sufficient status to take the class action as a Canadian taxpayer. Thorson v. A.G. Canada, [1971] 3 O.R. 511; Thorson v. A.G. Canada etal. (No. 2), [1972] i O.R. 86; [1972] 2 O.R. 340: [1975] i S.C.R. 138.

334 Notes to pages 156-67 17 Allison Arthur Mariotti Walsh was appointed to the court on i July 1964 but was immediately seconded to the Senate to handle divorces, since the Divorce Act had not yet appeared and would only come to life after Jackett and Don Maxwell at the Department of Justice got together and Jackett drafted the statute. 18 This was M.N.R. v. Frankel Corporation Limited, reported at [1959] Ex. C.R. 10; the reversal in the Supreme Court of Canada is reported at [1959] S.C.R. 713. The decision in the Supreme Court was unanimous. 19 On the other hand, Thurlow had no compunction about discussing points of law during Jackett's argument, as was clear from the transcript of the argument in Walsh Advertising. 20 Bank of Nova Scotia v. The Queen, (1961) 27 D.L.R. (2d) 120. 21 This was not completely unusual. When judges retired, for example, there was a provision in the Judges Act that allowed them a certain number of months in which to render judgment in cases they had heard. Instead of this procedure, Thorson used to call the lawyers in and get them to agree to have another judge render the judgment based on the record of the case. He had done this, for example, when Edward Robert Cameron retired at the beginning of 1964. 22 A classic example is the decision in M.N.R. v. Pillsbury Holdings Limited, [1965] Ex. C.R. 676, which bears all of the characteristics of a Jackett judgment and few of any of those rendered to date by Cattanach. See also West Coast Parts Co. Ltd. v. M.N.R., [1965] Ex. C.R. 422; Towle Estate v. M.N.R., [1965] C.T.C. 74; Falconbridge Nickel Mines Limited v. M.N.R., [1965] C.T.C. 82. 23 [1968] C.T.C. 579. 24 [1973] F.C. 162. 25 See [1964] Ex. C.R. 1-14 (English) and 15-29 (French). 26 [1970] Ex. C.R. 324 at 328. 27 The Federal Court of Appeal has continued to eschew any trim on its judicial robes and the judges wear plain black robes. 28 The Federal Court of Canada has recently had a good deal of critical attention directed its way (and at specific judges of the court) from the media and the Supreme Court of Canada, arising out of just such conduct. 29 See, for example, the paper he delivered at the forty-first annual meeting of the Patent and Trademark Institute of Canada, entitled 'Practice and Procedure in the Exchequer Court/ which is reproduced in (1968) Cdn. Bar J. 45. 30 [1967] i Ex. C.R. 509. 31 The Canadian Law of Trade Marks and Unfair Competition, 3rd. ed. (Toronto: Carswell 1972). 32 This, of course, has not endeared Jackett to the academic community, which has a highly developed sense of its own status and purpose, not always the same as that of lawyers and judges searching for the meaning of the law under 'battle' conditions. There does not seem to have been much sense of mutual re-

Notes to pages 167-73 335

33 34

35 36 37 38 39 40 41

42 43

44

spect between Jackett, especially as judge, and the academic community, and the same is true today. See Ian BushnelTs The Federal Court of Canada: A History, 1875-1992 (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 1997). Bushnell is a professor of law at the University of Windsor. (1954) 35 Can. Bar Rev. 1055. He did this in Dworkin furs [1966] Ex. C.R. 228 and in Johnsons Asbestos v. M.N.R., [1966] Ex. C.R. 212. Indeed, if a case stretched into a second day, the odds of getting a judgment at the end of the second day were considerably increased, since Jackett would work well into the night to be ready for the second day. Many of them were directed at the Supreme Court of Canada, as not necessarily relevant, but he wanted to make it clear that he had considered the point thus identified. He had discussed the idea of this technique as a factor in writing judgments with Elmer Driedger when he was still at the CPR, before his appointment. [1972] F.C. 739 at 753. At 770. One example of such a case is Beament Estate v. M.N.R., [1969] i Ex. C.R. 407, which the Supreme Court of Canada partially overturned at [1970] S.C.R. 680. This was Underburg G.mbH. v. Bonekamp Corporation, [1967] i Ex. C.R. 284 at 287, where the error - leaving out the word 'not' - was identified in a footnote. Jackett had become interested in this sphere of the law during the course of working on the Noxema Chemical case with J.C. McRuer and had begun to collect the applicable principles of administrative law in a work that he thought, one day, might be expanded into a textbook. He later developed it into a manual, which he made available to his colleagues on the Federal Court, in both the Trial and Appeal Divisions of the court. [1965] i Ex. C.R. 200. The case was argued on 15 and 16 June 1964. Jackett worked on it over the summer and rendered judgment on 4 September 1964. Looking back, he observes that the manner in which he dealt with the case was one with which many constitutional experts would disagree. It raised the question, in retrospect, whether there was any question regarding parliamentary power to enact the Canada Pension Plan legislation. Judging from what he observed at Porter, 213, he suggests he would have had some difficulty with the latter legislation (letter to author, i August 1997). See also his essay, 'Sections 91 and 92 of the British North America Act and the Privy Council,' published in J.A. Corry, F.C. Cronkite, and E.F. Whitmore, eds., Legal Essays in Honour of Arthur Moxon (Toronto: University of Toronto Press 1953). [1965] 2 Ex. C.R. 663. The appeal to the Supreme Court of Canada, [1967] S.C.R. 262, was dismissed, although the latter court, whose reasons were written by his friend Ronald Martland, was not quite as blunt as Jackett had been.

336 Notes to pages 173-85 45 [1965] 2 Ex. C.R. 646. See also comments by Bushnell, Federal Court, 143-546 [1966] Ex. C.R. 157 at 164. 47 [1947] i D.L.R. 721. [1947] A.C. 109. The case had been argued by Varcoe. 48 At 170. The decision was overruled by the Supreme Court of Canada, [1966] S.C.R. 260. 49 Effective i January 1992 the Tax Court became the sole court of original jurisdiction in tax matters and appeals, with the exception of a few 'grandfathered' cases already commenced before that time. Appeals from its judgments now go directly to the Federal Court of Appeal. 50 [1964] Ex. C.R. 946. 51 This was certainly the custom in England, where, between 1801 and 1940, some twelve attorneys general and eight solicitors general had not only been appointed to the bench but become lord chancellor. See: R.EV. Heuston, Lives of the Lord Chancellors 1885-1940 (Oxford, U.K.: Clarendon Press 1964), xxi. 52 Not so! LaBrie apparently pursued the matter, by way of motion, to the Supreme Court of Canada, not being satisfied with the basis on which he had won! Gerald Fauteux, later chief justice of Canada, was heard to comment when he heard about the motion that he thought it was 'insulting' to Jackett to challenge his right to sit on such cases. 53 [1965] i Ex. C.R. 299. 54 [1966] Ex. C.R. 228. 55 [1967] 2 Ex. C.R. 46. 56 [1967] i Ex. C.R. 333. 57 [1967] 2 Ex. C.R. 88 at 95. 58 [1968] S.C.R. 447. 59 [1969] i Ex. C.R. 96 at 102-4,106. 60 [1965] 2 Ex. C.R. 520 at 523-4. 61 [1967] 2 Ex. C.R. 96. 62 Many of the cases he cited in the judgment had not been referred to by counsel and he dug them out himself, although he had been generally aware of their import even during the course of argument. 63 [1967] C.T.C. 447 at 448 and 450. 64 [1968] 2 Ex. C.R. 98 at 108. 65 [1967] 2 Ex. C.R. 128. 66 Among them, Ivan Whitehall and Duff Friesen. 67 [1967] i Ex. C.R. 346 at 351. 68 [1969] 2 Ex. C.R. 27. 69 [1968] i Ex. C.R. 402 at 406-7. 70 At pages 416-17. 71 [1969] i Ex. C.R. 327 at 349 and 351-2.

Notes to pages 185-98 337 72 Jackett admired the work that Thorson had done in the patent field, moving the law forward from the old English cases. He considered Thorson to have been a real thinker and a careful judge in that respect, who did his own research on important points, which was one of the contributing factors to the many delays in his rendering of judgments. 73 [1966] Ex. C.R. 872. Similar litigation arose in the United States, and Jackett's judgment stood up much better than that of the u.s. courts. 74 [1966] Ex. C.R. 884. 75 [1967] i Ex. C.R. 71 at 80-1. 'In general, under our system of pleading, a Statement of Claim for an infringement of a right should clearly show: a) facts by virtue of which the law recognizes a defined right belonging to the plaintiff, and, b) facts that constitute an encroachment by the defendant on that defined right of the plaintiff.' [If the statement of claim does not disclose those two elements of the plaintiff's cause of action, it does not disclose a cause of action and may be disposed of summarily.] 'I cannot recall, and I have not been referred to, any type of case outside the realm of industrial property litigation where there has been a tendency to endeavor to turn an action for damages into a general 'Royal Commission' type of inquiry as to what infringements of the plaintiff's property rights the defendant has been committing.' 76 [1967] i Ex. C.R. 214. 77 [1967] i Ex. C.R. 489. 78 [1967] i Ex. C.R. 450 at 452,454-5. 79 See also: Home Juice Company v. Orange Maison Limited, [1968] i Ex. C.R. 163 at 164. 80 [1967] 2 Ex. C.R. 252 at 256. 81 [1968] 2 EX. C.R. 22.

82 83 84 85 86

Rowntree Company Limited v. Paulin Chambers Co., Ltd. et al., [1968] S.C.R. 134. [1968] 2 Ex. C.R. 137. At 167. (1974) 17 CPR (2d) no at 115-16. [1967] 2 Ex. C.R. 22. CHAPTER EIGHT

i Cartwright had experienced some opposition from his colleagues, who thought that judges of the Supreme Court of Canada should not become involved in extrajudicial functions, but was nevertheless determined to attend. Edwards encountered pockets of resistance from judges who were a bit hostile to the idea of an academic 'upstart' venturing into their preserve and, apparently, daring to 'educate' them. But he got support from both Ontario and Quebec judges and, once they were on board, judges from the other provinces soon followed.

338 Notes to pages 198-203 2 From a talk given by retired Chief Justice Lucien Tremblay at Quebec City, 7 September 1979, on the occasion of la Journee du Barreau. Tremblay was chief justice of Quebec from 1961 to 1977. 3 The chief justice of Canada, Robert Taschereau, did not attend. 4 One judge was tired enough that he needed a nap before the dinner, then, having overslept, he leapt into his dinner jacket and arrived with the dinner jacket and black tie but still in his striped working trousers. 5 In the later years, after the Canadian Judicial Council was established, the practice of issuing press releases ceased, unless there was a specific item which may have warranted such a statement. 6 Favreau's problems eventually led to his political demise. On 17 April 1967 he was appointed to the bench of the Quebec Superior Court, at a time when he was known to be terminally ill, in order to assure his wife of a pension. He died less than three months after his appointment, on 11 July 1967. 7 Perhaps there might have been a back-door criminal jurisdiction, since certain of the Exchequer Court judges had appointments to sit on courts martial. 8 This state of affairs lasted until the Federal Court of Canada was created and it had its own associate chief justice. The chief justices of the provincial courts appear to have been able to live with the Exchequer Court of Canada presence without too much difficulty. It became less comfortable once the upstart Federal Court of Canada was established and its jurisdiction expanded into some of the traditional areas of the provincial superior courts, and there is no doubt that institutional (as opposed to personal) tensions were exacerbated. Even though they worked together well in the conferences, Gale always regarded Jackett as an 'outsider' in this gathering of provincial superior court chief justices. 9 Even John Cartwright, when he became chief justice of Canada, did not participate despite his earlier interest in the conferences when he was a puisne judge. 10 The reason given was that the chief justices of the Court of Sessions and of the Magistrates Court were not included in the conferences. These courts are not superior or section 101 courts within the constitutional definition and their judges are not federal appointments. 11 Throwing federal money at the problem had been one possibility raised at the 1966 conference. Jackett had discussed this option with Driedger. They both knew that the real problem was not just money, but finding the right reason for the federal government to act. They had agreed that, if the conferences could be positioned as a legitimate part of the work of judges, then, constitutionally, it could be argued that it would be appropriate for the federal government to fund them. 12 Letter from Jackett to Gale, i April 1967. 13 Letter from Gale to Jackett, 5 April 1967.

Notes to pages 203-7 339 14 15 16 17

18 19

20

21 22

23 24

His letter to Gale was dated 26 June 1967. Letter from Gale to Jackett, 27 June 1967. Letter from Jackett to Gale, 28 June 1967. As deputy minister, Maxwell was invited to attend the Charlottetown conference. Although the conference was a great success, Maxwell, the bearer of the good financial news, did not enjoy the experience as much as he would have liked since he became seriously ill as a result of eating some bad oysters. Letter from Jackett to Gale, 6 September 1968. Section 99 of the B.N.A. Act was amended [1960,9 Eliz. II, c. 2 (U.K.)], effective i March 1961, to require federally appointed judges (whether appointed before or after the coming into force of the amendment) to retire at age seventyfive. This produced many objections from judges appointed prior to that time. Those appointed before the amendment was made and who had already reached age seventy-five thought they had been given life tenure and that something had been 'illegally' taken away from them. See 'Remarks of E.M. Culliton at a dinner given in his honour on March 20, 1981, by the Government of Saskatchewan and the Law Society of Saskatchewan' (Canadian Judicial Council), 20, and letter from Culliton to Louis-Philippe de Grandpre, then president of the Canadian Bar Association, 9 August 1983 (author's files). Canada Gazette, 27 November 1971,3212, giving effect to a proclamation dated 15 November 1971, signed by Roland Michener as governor general. This was subsection 32(4). Fauteux wrote to Gale on 7 October 1971, following his return from the Regina conference, indicating that he had made a full report to his colleagues, expressing his confidence that they were fully satisfied 'with the result arrived at with respect to the involvement of the Chief Justice of Canada or his nominee in the implementation of Section 32.' He also reported to Gale that 'last Tuesday, Chief Justice Jackett came to see me with a first draft of the directions and by-laws contemplated for the Canadian Judicial Council. We had a pleasant and brief discussion on the matter and it is understood that we shall meet incessantly before the draft is circulated amongst the Chief Justices for their consideration.' In fact, the by-laws were much farther advanced than that, but Fauteux was not aware of the full progress, having taken no previous part in the early discussions. He did seem disposed to have the chief justice participate when the judge being investigated was one of the Supreme Court of Canada judges. In fact, Jackett had anticipated this part of the process and had already prepared a full set of draft by-laws over the previous Christmas holidays, when he and Kathleen had visited their old friends the Tubbeys in Saskatoon. One of the judges was worried about adopting by-laws before the council was fully established, but Jackett reassured him that, under section 7 of the Interpretation Act, there appeared to be power, even when an enactment is not in force,

340 Notes to pages 207-13 to pass necessary by-laws or regulations in order to make the act effective once it does come into force. This was a practical demonstration of the admonition given to Jackett by John MacNeill in the Department of Justice more than three decades earlier, namely, that, at least once per week, he read the Interpretation Act. 25 Once again, Jackett's comprehensive knowledge of the Ottawa situation was called upon and he was asked to use his contacts to find an appropriate director, staff, and premises. None of the other judges had the faintest idea of where to start and how to proceed. 26 See, generally, William Kaplan, Bad Judgment, The Case of Mr. Justice Leo A. Landreville (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 1996). Kaplan's perspective on the formation of the Canadian Judicial Council can be found at 194-7 of this work. The issue of judicial discipline had already been under consideration by the chief justices themselves for some time. After all, they were in the 'front lines' on a daily basis, trying to deal with the practical problems occasioned by a range of complaints. Jackett's view of the Landreville case was that Rand did not purport to give any general guidelines which Landreville had transgressed. Such matters should not be a matter of saying whether the judge has been a bad person or not, but rather should be a question of whether he has failed to measure up to certain requirements. Jackett himself would go a step farther and say that, even though the judge has not done anything that is bad, if he has allowed himself to get, or has got, into a position where the public will not have confidence in him, then he should be removed from the bench. (Interview, 12 July 1991,113-14.) 27 As to getting 'stuck' with the drafting, Jackett observed that, if a person has no experience in drafting, you cannot really help him by fixing his drafts. It was easier, therefore, to do it himself. 28 Even when the statutory framework had been enacted, however, Fauteux remained somewhat skeptical about the council and it took him more than a year to develop any enthusiasm about it. 29 Fauteux retired as chief justice on 23 December 1973 and Bora Laskin was appointed on December 27th of the same year. 30 It would not, however be until 1997 that such a document would be officially prepared. 31 Nathaniel Theodore (Sonny) Nemetz was chief justice of British Columbia. He had been appointed to the B.C. Supreme Court in 1963 and to the Court of Appeal in 1968; he later became chief justice of the B.C. Supreme Court in 1973, retiring in 1988. He was born in Winnipeg on 8 September 1913 and died in Vancouver on 21 October 1997. 32 The definitive history of the Federal Court of Canada is written Ian Bushnell, The Federal Court of Canada: A History, 1875-1992 (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 1997). The prepara-

Notes to pages 215-20 341

33

34

35

36 37 38 39

40

41

42 43 44

tion of this work was motivated by the court's desire to make its presence more apparent in the Canadian legal landscape, and Bushnell, a professor of law at the University of Windsor, was asked by the court to undertake the task. Turner did not know Jackett at all well, if at all, until he had become minister of justice and Jackett was already on the bench. He described him as the best draftsman in the country, but, in speaking of his appointment, said that it had not been popular in legal circles, since he had had no court experience. This was clearly a misapprehension on his part, given the extensive experience which Jackett had before the courts. He was also, said Turner, a good administrator and 'knew his law/ Turner had written to Jackett on 10 October 1968 regarding generalized court procedures, but no mention was made at the time of a new court. Louis St Laurent had once expressed concern, while minister of justice, about the provincial superior courts deciding on matters under the jurisdiction of federal boards and tribunals, but he had done nothing to change the situation while he was in office as prime minister. The substance of Turner's comments is contained in his remarks on the occasion of the court's twentieth anniversary. These remarks, along with those of others gathered for the occasion, have been collected and published informally by the Court: The Federal Court of Canada - An Evaluation, Papers Presented at the 2oth Anniversary Symposium, June 26,1991. Turner's address was entitled 'The Origin and Mission of the Federal Court of Canada.' Later premier of British Columbia. At the time, MP for Coquitlam, BC. See Pace and comments of Justice W.Z. Estey in Jabour case. When the Exchequer Court had been established by Parliament in 1875, it had first been composed of the chief justice of Canada and the other judges of the Supreme Court of Canada. In 1887, this was changed and, for the first time, there was a specific judge of the Exchequer Court. The first was George Wheelock Burbidge, who held office from 1887 to 1908. Upon the 1887 reorganization, the judges of the Supreme Court ceased to be members of the Exchequer Court. With Jackett no longer there, the court is now beginning to move away from some of the early added-value aspects (speed of hearings, flexibility regarding hearings, preparation of the appeal books, and so on) that marked its arrival on the judicial scene. MacGuigan was appointed to the Federal Court of Appeal; Alexander became lieutenant governor of Ontario; and Blair was appointed to the Ontario Court of Appeal. Robert Taschereau was appointed chief justice of Canada on 23 April 1963. In Toronto, Donald F. Sim spoke on behalf of the bar and Larry R. Olsson on behalf of the attorney general of Canada. Batonnier Yvon Jasmin spoke on behalf on behalf of the Quebec bar (in the absence of Marcel Cinq-Mars), Louis-Philippe Landry on behalf of the attorney

342 Notes to pages 220-36 general of Canada, and Ray Kraft on behalf of the English-speaking members of the bar and the admiralty bar. 45 V.R. Hill spoke on behalf of the admiralty bar, N.D. Mullins, on behalf of the attorney general of Canada, and C.C. Locke on behalf of the Law Society of British Columbia (in the absence of the treasurer). Locke said, reflecting the prevailing disapproval of the court in British Columbia, nothing about the court and merely noted the respect in which Sheppard was held for the long years of service to the B.C. bar. 46 This was Turner; the minister of justice is, before the courts, the attorney general of Canada. CHAPTER NINE

1 See, for example Mountain Park Coals Limited v. M.N.R., [1952] C.T.C. 392 (Exchequer Court of Canada) and Diamond Taxicab Association Limited v. M.N.R., [1953] C.T.C. 104 (Supreme Court of Canada). Decary had appeared with the former chief judge of the Tax Court of Canada, Jean-Claude Couture, when the case was argued in the Exchequer Court. 2 He had once appeared in a case, the Lord's Day Alliance appeal, in the Supreme Court of Canada, on behalf of the attorney general of British Columbia, when Jackett was representing the attorney general of Canada. 3 Urie had had some commercial trial experience, had done some intellectualproperty work, and had had a few criminal appeals as a lawyer, as well as some courts martial work in the 19503 in front of Charlie Cameron and two practising lawyers, at least one of whom had been George Addy prior to his own appointment to the bench. However, he had appeared in the Federal Court on only one occasion. 4 When Noel had his first stroke, which Robert Biljan, the current administrator of the court, thinks may have been the result of working too hard, he called from the hospital to ask for some of the files on which he had been working. Biljan refused to send them. Jackett said to him, however, probably knowing what he would have done in the same circumstances, that if a judge asked for a file, 'you send it to him/ Biljan thought this was being a bit hard. 5 These were still a matter of order-in-council and Noel had not yet served the normal period of fifteen years and attained the age of sixty-five. 6 Noel retired on 4 July 1975 and Thurlow was named as his replacement on 4 December 1975. 7 Jackett used the limousine sparingly - a few times to go to Montreal or Quebec; it went against his prairie instincts, he said. He did not like the borderline subterfuge of using something that was supposed to be for work and then ap-

Notes to pages 238-41 343 plying it to personal activities. They should either be paid enough to afford their own cars or forget the whole thing. 8 He uses the French expression sage to describe Thurlow. It is certainly an expression with which Jackett himself would agree. 9 Bud Estey notes that part of the problem may have resulted from the perception that the Federal Court judges were not up to the standards of the Ontario courts. Since the subject matter was limited, essentially, to taxation, federal expropriation, intellectual property and judicial review of federal tribunals, it may have been a less attractive bench than the provincial courts in most provinces. Consequently, Estey thought that the bench was filled with people who could not 'make it' to the provincial courts or by people from provinces where the work of the provincial courts was limited and dull. It reflects an attitude that permeated the Ontario approach to the Federal Court. 10 See Hamilton (City of) v. Hamilton Harbour Commissioners, [1972] 3 O.R. 61, a case in which the Ontario courts held that a federal board was involved and the Federal Court had jurisdiction. 11 This was confirmed in Jabour v. Law Society of British Columbia, [1982] 2 S.C.R. 307. 12 Fauteux had made it clear that he wanted Jackett to be the vice-chairman of the council, because it was clear that the vice-chairman would do all the work and it would be convenient to have him right there in the same building. Jackett wrote to Fauteux and the executive committee saying that he did not think this would be appropriate and that, in his view, the most appropriate person for the job would be Bill Gale. Gale did not want to do it, possibly because his health was not too good at the time and possibly because he realized that perhaps the two senior people on the council should not both be from Ontario, so he suggested Culliton of Saskatchewan. One of the reasons Jackett had suggested Gale for the position was to try to ease the working relations between the provincial courts and the Federal Court, because the work of the Federal Court was gradually mushrooming and the provincial courts had a feeling that it was 'getting too big for its oats.' By declining the offered position, Jackett hoped to signal that he and his court were not threatening the provincial courts. 13 John Osier in Ontario was outspoken in his opposition. The Federal Court judges were invited to the Ontario Supreme Court 'messes' when they were in town and Osier would not even speak to them. Jackett says that the Federal Court established good business relationships with the courts of most of the provinces, but that this was not the case in Ontario, where the opposition to it remained palpable. 14 [1976] C.T.C. 497. 15 [1980] 1 S.C.R. 8l2.

16 Bud Estey has an example. 'I remember that Gordon Henderson reviewed a Board of Broadcast Governors or Canadian Radio and Television Commission

344 Notes to pages 241-9

17

18 19 20 21 22 23 24 25 26

27 28 29

30

decision with reference to a television license in Western Canada by quashing the order of the administrative tribunal in the High Court of Ontario. We litigated that issue right to the Supreme Court of Canada - and did so entirely in Ontario, even though the litigants all had to come from Western Canada for the hearings.' McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; The Queen v. Thomas Fuller Construction Co. (1958) Ltd., [1980] i S.C.R. 695. Jackett had sat on only one of them: Fuller Construction, [1979] i P.C. 877. lacobucci was appointed to the court as chief justice on 2 September 1988 and to the Supreme Court of Canada on 7 January 1991. In Fuller Construction, Jackett merely observed that the court was bound by McNamara and that any problem this might create could be solved by legislation. Why flog a dead horse? Aly Abdel Hafez Aly v. Minister of Manpower and Immigration, [1971] F.C. 540. The author had such an experience on more than one occasion, when, after argument, the court recessed for a few minutes and returned, whereupon Jackett read a judgment which had clearly not been drafted during the recess. This was probably CAB Industries Ltd. v. The Queen, [1977] i F.C. 380. Matsqui Institution Disciplinary Board v. Martineau, [1978] 2 F.C. 637. Louis Marceau would agree and thinks that Thurlow may well have had more influence than Jackett in the construction of the legal problems and the legal interpretation of the law to be applied by the court. This was Burton Parsons Chem. Inc. et al. v. Hewlett Packard (Canada) Ltd., [1973] F.C. 405. The Supreme Court of Canada decision is reported at [1976] i S.C.R. 555Jackett sat with a number of deputy judges while on the court, including Frank Martin Bastin, Fernand Choquette, G. Miller Hyde, Arthur Kelly, Cyrille E.-G. Lacroix, Leon Lalande, Frederick Mackay, Marshall E. Manning, Jean St Germain, Frederick A. Sheppard, Rhodes Smith, and Joseph A. Sweet. Sweet was a county court judge from the Hamilton, Ontario, area and Jackett recalls that Louis Pratte had reservations about a mere county court judge sitting on the Federal Court of Appeal. This was the Hewlett Packard case, [1976] i S.C.R. 555. Ian Bushnell, The Federal Court of Canada: A History, 1575-1992 (Toronto: University of Toronto Press/Osgoode Society for Canadian Legal History 1997), 343-4. David Henry, who became a respected judge of the Ontario Court of Appeal, always thought that Jackett was more a technician than someone moved by the humanity of the situation. Sometimes, says Henry, you have to decide who should win and then work backwards. See his expression of this idea in 'Foundations of Canadian Law in History and Theory/ in O.E. Lang, ed., Contemporary Problems of Public Law in Canada:

Notes to pages 250-5 345

31 32 33

34

35 36

37

38 39 40 41

42 43 44 45

Essays in Honour of Dean EC. Cronkite (Toronto: University of Toronto Press/ University of Saskatchewan 1968), at a8ff. M.N.R. v. A. T. Leon et al., [1976] C.T.C. 532. (Heald, Ryan, JJ.A. and Mackay, D.J.) Massey-Ferguson Limited v. The Queen, [1977] C.T.C. 6. (Urie, LeDain, JJ.A. and MacKay, D.J.) The King v. Noxema Chemical Company of Canada Ltd., [1941] S.C.R. 178. Jackett had not been involved in the case at the Exchequer Court level, [1941] Ex. C.R. 155In a typical Jackett statement, he said that the judges were free to use the 'notes/ provided 'that they are not to be mentioned in any judgment or other publication available outside the Court/ He also stated that 'no matter how categorically stated, all opinions expressed are tentative/ The commission consisted of W.R. Sinclair, Julien Chouinard, and Darrel Heald. At the same meeting, Chief Justice Jules Deschenes of Quebec also complained about the practice, especially as to the possibilities of political intervention or the conditions that might be part of the mandate of any royal commission that might reflect badly on the judiciary. He presented a paper to the Canadian Judicial Council on the subject the following year, on 26 September 1977, in Whitehorse, Yukon. Louis Pratte always thought that Henderson was somewhat overrated and that, because of the volume of his work, it was quite often only in court that he figured out what his real line of argument should be. If the case went into a second day, he was much better, because he would get properly organized overnight and be ready to deal with the real issues on the morrow. Pratte was always delighted when Jackett gave Henderson grief for raising arguments that bore no relation to those in a junior-prepared factum. Lois Hollinger v. The Queen, [1974] C.T.C. 693. (Jackett, C.J., Pratte, J.A. and Hyde, D.J.) Dominion Bridge Company Limited v. The Queen, [1977] C.T.C. 554. (Jackett, C.J., Pratte and Ryan, JJ.A.) [1976] 2 F.C. 433. It may also have led to some general confusion, since the case was appealed to the Supreme Court of Canada, where, in one of the few reversals of any of Jackett's tax decisions, the appeal was allowed. [1979] i S.C.R. 865. AGIP S.p.A. v. Atomic Energy Control Board, [1979] i F.C. 112,190,223. [1974] 2 F.C. 187. [1978] i S.C.R. 907. In the case of Konin KHjke Nederlandsche Soombootmaatschappij N.V. v. The Queen [1967] 2 Ex. C.R. 22, in the course of a motion to strike certain allegations from a pleading in an admiralty action, Jackett considered the proper rules of

346 Notes to pages 255-69 pleading 'material' facts as opposed to evidentiary facts. The appendix to the case sets out a summary of his views on differences between common and civil law proceedings. 46 [1972] F.C. 277. 47 Page et al. v. Churchill Falls (Labrador) Corporation Limited et al, [1972] F.C. 1141. 48 Wright, [1973] F.C. 765. 49 [1972] F.C. 1156. 50 [i977]2S.c.R. 134. 51 Jamieson et al. v. Carota, [1977] 2 F.C. 239. Quoted portion is at 245. 52 Roger A. Archambault was the justice counsel charged with the consolidation of the rules and had written accordingly to Walter Collier, administrator of the court, on 9 November 1977. Jackett was replying to the deputy minister in relation to the letter to Collier. 53 23 Eliz. II, c. 18, assented to 20 December 1974. 54 [1972] F.C. 1425 at 1428. The court did grant leave to appeal in Lavell v. A.G. Canada, [1971] F.C. 347. 55 M.N.R. v. Laurent Gagnon, [1966] Ex. C.R. 114. 56 Another early example can be found in M.N.R. v. Bherer, [1967] C.T.C. 272. 57 [1977] 2 S.C.R. 422. The earlier report of the case can be found at [1973] F.C. 955 (Trial Division). The decision of the Federal Court of Appeal was not reported. It was rendered on 26 February 1974 in court file number A-2OO-7358 An 'appearance' is a document filed in court by solicitors for a party, which may indicate simply that the party is now represented by a lawyer, or which may signal that the party does not accept the jurisdiction of the court or may have some other basis of challenge to the claim other than on the merits of the action as commenced. 59 The majority made no comment upon Laskin's venture into documents that were not before the Supreme Court of Canada, nor upon his attack on Jackett. Roland Ritchie, who wrote the judgment for the majority, after having seen Laskin's proposed disposition of the appeal, made a brief Pontius Pilate-like statement which appears to have been intended to distance the majority from his conduct. At 445 of the reported decision, he simply noted that: 'I have, however, had the advantage of reading the views of the Chief Justice of this Court who has given full reasons for reaching the same conclusion as the judges of the Federal Court and in so doing has analyzed the record contained in the case on appeal and indicated the authorities upon which he relies in disposing of this important case.' [Emphasis added.] 60 In contrast, Marceau believes that Pigeon's antipathy towards the Federal Court was not personal but rather the result of an intellectually honest conviction that the duality of systems contained more problems than solutions. 61 In 1975 there had been a number of meetings of the Canadian Judicial Council in Ottawa, including an executive committee meeting on 14 March, an execu-

Notes to pages 270-86 347

62 63 64 65 66

tive committee meeting on 22 September, and the annual general meeting of the full council on 26 September 1975. The Capricorn case was argued on 23-4 June 1975 and judgment was rendered on 30 January 1976. Not to be overlooked in the equation was the fact that he would have had to have been on the court for fifteen years and have reached the age of sixty-five in order to be eligible for a pension. [1977] 2 S.C.R. 134 at 175. It had been argued in February 1975 and the decision, reversing the Federal Court of Appeal, was rendered at the end of January 1976. This is noted by Bushnell, Federal Court, 225. This is noted as well in ibid. [1981] i S.C.R. 199. Peter McQueen had been an economics professor at the University of Saskatchewan. Years later, he became a director of the Bank of Canada and was killed in a Trans-Canada Airlines crash. CHAPTER TEN

1 The Supreme Court of Canada was, apparently, unamused by this breach of conventional protocol that one did not appear before a court of which one had been a judge and made it clear to Kellock that it did not relish his appearances. 2 They did persuade him to make one speech, on the computation of business profits, on 19 June 1981 at a luncheon function organized under the auspices of the Canadian Tax Foundation. 3 On 26 June 1998 Noel was appointed to the Federal Court of Appeal. 4 This is consistent with his speech at a Canadian Tax Foundation annual conference during the time of his own drafting of the Income Tax Act. See Report of Proceedings of the Tenth Annual Tax Conference, Canadian Tax Foundation (Toronto: 1956). Ian Pyper also remembers Jackett saying that, with all the time wasted by lawyers trying to get around what he had drafted, he was almost sorry he had done it in the first place.

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Index

Abbott, Douglas, 68,321111 Abrahams (No. 2) v. M.N.R., 178 An Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. See Bill of Rights Addy, George, 229,237,342n3 Affleck, John D., 77 AGIP case, 253 Ainslie, George, 66,77,182,222,253, 255,256,3i6ni4 Alexander, Lincoln, 219,3141141 Algoma Central Railway v. M.N.R., 179 Allan, George, 32 Aly Abdel Hafez Aly v. Minister of Manpower and Immigration, 243,244 American Cynamid case, 170 Amway case, 283 Anderson, J.T.M., 25 Anderson, P.M., 58,3i2n7,314^0 Anger, E.-R., 154 Anglo-Newfoundland Development Corporation, 97 Angus, David, 254,255

Antares Shipping Corporation v. The Ship 'Capricorn' (also known as the Ship 'Alliance'), Delmar Shipping Limited and Portland Shipping Company, 264-7, 3461*59,347n6i Archambault, Roger A., 346^2 Associated Investors of Canada Limited v. M.N.R., 180 Atkins v. The Queen, 240 Avro Arrow, 95 Aylen, Derek, 121,125,126,255,326^4 Bail Reform Act, 217 Balcer, Leon, 107 Baldwin, Stanley, 42 Bandeen, Robert, 142,331^5 Bane, Charles, 41,43,3iini2 Bank of Nova Scotia appeal, 157 Banks, J.G., 3ioni9 Barclay, Kenneth, 253 Barrette, Antonio, 107 Basford, Ron, 210,262 Bastin, Frank Martin, 3441126 Beaton, Bell and Ross, 33oni5

350 Index

Beaudoin, Gerald, 3261148 Beetz, Jean, 265 Belleau, Edouard, 50 Belleau, Gabriel, 149 Benaby Realties Ltd. (No. 2) v. M.N.R., 166 Bence, E.A., 23,3O9m6 Bennett, R.B., 35,62,98,315^ Bennett, W.A.C., 108 Benson & Hedges (Canada) limited v. St. Regis Tobacco Corporation, 190 Bernier, Jacques, 283,288 Bertrand, Jean-Jacques, 202 Biljan, Robert, 235-6,238,258,259,262, 273,342114 Bill of Rights, 115-22,325040,327n49 Blackwood, Frederick Temple Hamilton, Earl of Dufferin, 30^5 Blair, Gordon, 49,50,62,64,103,132, 219, 240,244,31504,341041 Board of Broadcast Governors, no, in Board of Transport Commissioners, 140,219 Bogoch Seed Company Limited v. Canadian Pacific Railway Company and Canadian National Railway, 140-1 Boland, J.D.C., 74 Bomarc-B missile, 95,332ni Borden, Robert, 315^ Bourque, Henrietta, 3i2n7 Bowman, Donald, 140,176 Brace, Beatrice, 53-4,61,65,68,90 British North America Act, 62-3,78, 172,203,206; Bill of Rights, 120 Bryce, Robert, 91-2 Buchan, John, 32 Buckerfield's Limited et al. v. M.N.R., 177 Burbidge, Frederick Stewart, 130-1, 137 Burbidge, George Wheelock, 131,150, 280,328nn3,4,34^139 Bushnell, Ian, 249,286,33in28,335^2, 34on32

Butternay, Lil, 83 Cameron, Charles, 250,342n3 Cameron, Edward Robert, 3i5ni, 3341121 Canada Pension Plan, 335043 Canada Starch Company Limited v. M.N.R., 179 Canadian Bar Association, 118,119,165; Federal Court of Canada, 218-19 Canadian Bill of Rights. See Bill of Rights Canadian Congress of Labour, 115 Canadian Javelin Limited v. Frederick H. Sparling, 274 Canadian Judicial Council, 197-213, 239,251,259,268 The Canadian Law of Trade Marks and Unfair Competition (Fox), 167 Canadian Pacific Railway, 127,130-44; French Canadians, 135-6; Jackett, W.R., 130-44; litigation, 139-41 Canadian Pacific Railway Company v. Attorney General for British Columbia and Attorney General for Canada, 131 Canadian Pacific Railway Company v. Attorney General for Saskatchewan et al., 131 Canadian Pacific Railway Company v. Kizlyk, 131 Canadian Pacific Railway Company v. Zambri, 139-40 Canadian Pacific Railway Company Ltd. and Imperial Oil v. Tutra et. al., 131 Canadian Tax Foundation, 69,285 'Canons of Judicial Ethics for Canada' (Jackett), 211 Cardozo, Benjamin, 314021 Carlotta, Mario, 256-7 Carson, Cyril, 71-2,73,75,131,3291x17, 9,11 Carson, Ross, 161-2,186,187,255

Index 351 Cartwright, John R., 198,217,333n8, 337111, 338n9 Cattanach, Angus Alexander (Alex), 21-2,153,155,156,157,158-9,211, 219,280,309ni5,332n5,334x122; Trial Division, 27 Centre for Criminology, 198,200 Challies, George S., 199,201,202,203, 208,259 Chalmers, Norman A., 132,32gni2 Chamberlain, Neville, 35 Chapdelaine, Jean, 27,3ion2 Charter of Rights and Freedoms, 172, 173 Chateau-Gay Wines Limited v. Le Gouvernment de la Republique frangaise, 189-90 Chevrier, E.-G.-E., 75 Choquette, Fernand, 3441126 Chouinard, Julien, 345n35 Chretien, Jean, 211 Christie, Donald H., 77,82 Christie, W.J., 3o8nio Cinq-Mars, Marcel, 3411144 Clark, Clifford, 56,91 Clark, Joan, 162 Collier, Frank, 160,228,239 Collier, Walter C, 221,234,235,346*152 Columbia River Treaty, 95-6 Commission of Inquiry into the NonMedical Use of Drugs, 231 Composers, Authors and Publishers Association of Canada Limited v. CTV Television Network, Spencer W. Caldwell and The Bell Telephone Company of Canada, 187-8 Conciliation Board, 142-3 constitution: patriation of, 96-7 Consumer and Corporate Affairs, 153 Cook, Margaret, 80 Copyright Appeal Board, 157 Corry, Elsa, 39-40,45

Corry, James Alexander, 21,22,24,81, 274-5,309*14 Cote, Chief Gabriel (Mee May), 3O9nio Cote Reserve, 3o8nio Court of Appeal. See Federal Court of Appeal Couture, Jean-Claude, 342m Couture, Luc A., 77,80,153-4,3i6ni5 Cronkite, F.C., 21,22,23,25,114,144, 195 Cross, Fred, 137 Crown Liability Act, 84,85 Crow's Nest Pass rates, 140-1 Crump, Norris Roy, 131,134,137,141, 328n2,33om6 Culliton, Edward M. (Ted), 198-9,2078,209,212,278,343ni2 Curtis, George, 81 Customs Act, 173,283 Davidge, Vere, 40 Davies, Sir Louis Henry, 3i3ni3 Dawson, D.S., 19 Decary, Raymond, 228-9,34^m Defence Purchasing Board, 54 Deschenes, Jules, 3451136 Dextraze, J.A., 331^25 Didace Dufresne v. M.N.R., 182-3 Diefenbaker, John George, 90,91,96, 114,128,322nn4,7,323ni7,325111134, 35,332ni, 333n7; Jackett, W.R., 11522 disciplining judges, 205-6 The Distribution of Legislative Power in Canada (Varcoe), 63 Divorce Act, 60,214,215 Dominion Bridge case, 253 Douglas, T.C., 96 Doukhobors, 107-11,324^0 Dow Chemical Co. v. Kayson Plastics & Chemicals Ltd., 189 Drawda Hall, 3ion3

352 Index Driedger, Elmer A., 23,56-7,58,65,66, 80,93-4,99,105,109,132,148,209, 258,3141-0119,22,32ini, 3241118, 332113,3351136,3381111; Bill of Rights, 116-17,1]L9/12°' 325n39/ consul general in Hamburg, 202; Federal Court of Canada, 215-16; National Conference of Judges on Sentencing, 198, 199,220,201; retirement, 278 Driedger, Elsie, 148 Drury, C.M. ('Bud'), 91,332ni Dube, Jean-Eudes, 225,230 Duff, Lyman, 52,57,81,3i2n8,321^1 Dufferin, Earl of. See Blackwood, Frederick Temple Hamilton Dumoulin, Jacques, 153,156,158,159, 219; Federal Court of Appeal, 226, 227 Duplessis, Maurice, 97,106-7 DuPont, Guy, 283,285,288 Duratube & Wire Limited v. B.F. Goodrich Canada Limited and The Hydro Electric Power Commission of Ontario, 112 Dworkin Furs (Pembroke) Limited v. M.N.R., 177-8 Dysart, A.K., 22 Eaton, Keith A., 56,64,71,73,77,80,85, 89,3i4n22,3i9iin33,34 Eaton, Kenneth, 68,3i7ni8 Eden, Anthony, 35 Edward VIII, 8,36,41-2 Edwards, John, 197,198,337ni Edwards, W. Stewart, 52,60,3i3nn Edwards v. A.G.for Canada, 78 Eisenhower, Dwight D., 96 Elliott, Colin Fraser, 50,70,317111122,23 Emergency Measures Organization, 3261146 Emerson, Robert A., 131,137,142, 329*5 Erichsen-Brown, F., 33oni5

E.R. Squibb & Sons Ltd. v. The Queen, 159 Estey, James Wilfrid (Bill), 21,22,25, 3241126 Estey, Willard Zebedee ('Bud'), 21,22, 73,89,155,160,167-8,186,187, 211, 212,240, 241,261-2,267-8,32^55, 329nio, 333n8,343^19,16 Exchequer Court of Canada, 84-5,14596; administration, 157-68; administrative cases, 172-5; admiralty jurisdiction, 192-3; constitutional cases, 172-5; deciding cases, 168-71, 3i7n2i; expropriation cases, 184-5; history, 150; income-tax appeals, 175-84; interpretation of the law, 169-70; Jackett, W.R., 146-8,156-60; patent and trademark cases, 185-92; 'reserves,' 157-9; Thorson, Joseph Thorarrin, 150-6. See also Federal Court of Canada Expropriation Act, 217 External Affairs: Department of, 112 Fauteux, Gerald, 56,143,153,201,206, 207,208,209,33in26,333nn8,11, 336n52, 339nn22,23, 340111128, 29, 343ni2 Favreau, Guy, 77,97,100,103,123,1456,148,149,199,200,203,32ini, 3261148,332nni, 3,338n6 Federal Court(s) Act, 214,216,217,218, 223,232,242-4,260 Federal Court of Appeal (Federal Court of Canada), ix, 190,218,220, 222,227,242-4,245,248-9 Federal Court of Canada, 196,213-76; administration, 236-8,248; administrative staff, 233-6; appointments, 227-31; birth, 219-25; deputy judges, 248-9; gestation, 215-19; itinerant nature, 232; jurisdiction, 242; leave to appeal, 260-1; procedural complex-

Index 353 ity, 242-4; provincial superior courts, 239-40,241,264; rules, 224-5; Supreme Court of Canada, 240-2,261-2. See also Federal Court of Appeal; Trial Division (Federal Court of Canada) Federal Court Reports, 240 Federal Superior Court Act, 213. See also Federal Court(s) Act Fifoote, C.H.S., 40 Finance: Department of, 69 Financial Administration Act, 105,106, 206 Findlay, Allan, 71,329nn8,9,n Fleming, Donald, 323ni7 Flintoft, Edward Percy, 138 Flynn, Jacques, 270,271 Fontaine, Paul, 3i2n7,3i8n28 Fordham, R.W.S., 70 Forsey, Eugene, 82 Forster, John, 40 Forsythe, Lionel, 71 Foster, John, 40,3iinio 'Foundations of Canadian Law in History and Theory' (Jackett), 143-4 Fox, Harold G., 112,164-5,166-7,186, 187 Francis, John, H., 201 Francis, W.B., 27,47 Fraser, Douglas, 24 Friesen, Duff, 256,336n66 Froomkin, Sol, 255-6 Fulton, Edmund Davie, 90-1,92-104, 323nnn, 16,17; Bill of Rights, 11521,325n39; Doukhobors, 108-11, 3251*30 'Fulton-Favreau' formula, 97 Gahan, Frank, 74 Gale, George Alexander ('Bill'), 198-9, 200,201,203,204,207,237,339n22, 343ni2; Federal Court of Canada, 239,241,338n8

Gall, Frederick, 187-8 Gardiner, James Garfield, 25,3ion2o Garon, Alban, 64,77,182,253,3261148 Garson, Stewart Sinclair, 62,90,103, 312114,324:022 Gavsie, Charles C, 68,253,32ini, 33oni6 Gee, Elizabeth, 5-6,18 Gee, William, 5 Genser, Norman, 27 Geoffrion, Aime, 71,74 George VI, 43-4 Gerin-Lajoie, Paul, 135 Gibeault, Romeo, 3i2n7 Gibson, Hugh Francis, 148-9,155,156, 158,192,220,229,251,278; Trial Division, 227 Giroux, Monique, 234-5,273 Gold, Alan B., 133 Goodman, Phillips and Vineberg, 285 Gordon, Donald, 141 Gordon, P.H., 24,3O9ni7 Gouzenko, Igor, 56,114,115 Governmental Liability: A Comparative Study (Street), 167 Government Annuities Act, 172 Government of Canada v. Government of Newfoundland, 139 Government Organization Act, 324020 Grandpre, Louis-Philippe de, 265,268 Great Depression, 48 Green, H.A.V., 329^ Grierson, W.J.B., 134 Guy, Elizabeth, 328ni Haldane Club, 22-3 Hall, Emmett Matthew, 48-9,149,333n7 Harcourt, Michael, 217,341^6 Harkness, George, 95,98 Harvey, Harold, 14-15 Haultain, Frederick W.G., 20,24 Hawko, Len, 33

354 Index Heald, Barrel V., 50,224-5,228,233, 245,247,250,251,3451135 Heeney, Arnold, 91 Hees, George, 107 Helman, S.J., 329119 Henderson, Gordon R, 112,125,161, 162,165,186,218,219,223,252,255, 343ni6,345*37 Henry, David, 80,84,89,113,115,116, 272,3i4ni7,32in54,344^9 Hill, V.R., 342n45 Hindenburg, Paul von Beneckendorff und von, 3ion8 Hitler, Adolph, 35,37,3ion8 Hoare, Dennis, 33 Hoare, Samuel, 35 Hollingsworth, Norman, 83 Honsberger, Gordon M., 23 Hopkins, Russell, 28,30,3ion4,3i4ni6 Howe, Clarence Decatur, 53 Hyde, Miller, 254,3441126 lacobucci, Frank, 242,33on2i, 344ni8 Ilsley, James Lorrimer, 50,3i2n4 Imperial Oil Limited case, 189 Income Tax Act, 68,175,176,177,240, 250,285 Indian Act, 120 In re Writs of Assistance case, 173-4 intellectual property. See Exchequer Court of Canada, patent and trademark cases Interpretation Act, 54,57 The Investors Group v. M.N.R., 180 Irving, Colin K., 252 Isaac, Julius A., 33on2i Jack, Mel, 107 Jack Cewe Ltd. v. Jorgenson, 240-1 Jackett, Albert, 4 Jackett, Audrey, 6, 7,15,3o8n8 Jackett, Flossie May, x, 6, 7,17,45 Jackett, Henry, 4

Jackett, Kathleen. See Robertson, Ella Kathleen Jackett, Margaret V. See Shouldice Jackett, Marguerite, 7,17,18-19,45 Jackett, Rebecca. See Shouldice Jackett, Richard, 4 Jackett, Thomas, 3,4 Jackett, Victor John Valentine, 307114, 3o8n7 Jackett, Wilbur Roy: administration of the Department of Justice, 76-87,121 6; administration of the Exchequer Court of Canada, 157-68; administration of the Federal Court of Canada, 236-8; administrative cases (Exchequer Court), 172-5; admiralty jurisdiction (Exchequer Court), 1923; appointment to Exchequer Court, 146-8; articling student, 48-50; Bill of Rights, 115-22; birth, 6; British Columbia bar, 139; Canadian Judicial Council, 197-213; Canadian Pacific Railway, 130-44; 'Canons of Judicial Ethics for Canada/ 211; 'Capricorn' case, 75-6, appendix i; civil litigation, 71-6,105-6,318111129,30, 319^6; College of Law (University of Saskatchewan), 20-3; constitutional cases (Exchequer Court), 1725; deciding cases (Exchequer Court), 168-71; deputy minister of Department of Justice, 88-129; Diefenbaker, John George, 115-22; Exchequer Court of Canada, 145-96; expropriation cases (Exchequer Court), 184-5; family history, 3-9, 32-3; family life, 16; Federal Court of Canada, 196,213-76; footnotes in legal writings, 169,256; 'Foundations of Canadian Law in History and Theory/ 143-4; French language, 262-3; Fulton, Edmund Davie, 92104; honours, 114-15; income-tax

Index 355

appeals (Exchequer Court), 84,175; income-tax specialty, 68-71; interpretation of the law, 169-70; Ireland, 43; judicial style, 160-2,169; Kamsack, Saskatchewan, 13-17; Laskin, Bora, 265-70,275-6; marriage, 51; Moxon festschrift, 78-9; Munich, 3740; Ontario bar, 75; Oxford, 26-46; parents, 6,12-13; Paris, 35-7; patent and trademark cases (Exchequer Court), 185-92; philosophy of law, 193-6; prizes and scholarships, 20; Quebec bar, 133; Quebec lawyers, 254-5; Queen's College, Oxford, 278; relationship with father, 16-17; resignations, 126-9,270-2; retirement, 277-88; Rhodes scholarship, 23-5; Royal Canadian Mounted Police, 97-101; royal commissions, 251-2; Saskatchewan bar, 50; 'Section 28 of the Federal Court Act and Principles of Natural Justice/ 250-1; separation of powers, 259-60; siblings, 6,7,17; Spain, 33-4; Too Much of Income Tax Law? 69; University of Saskatchewan, 17-23; Varcoe, Frederick Percy, 63,65,66-7; work ethic, 232-3,246; 'A Young Man's Duty,' 194 Jackett, William Henry 'Harry' (father of Wilbur Roy Jackett), 4,5,8,12-13, 16-17,3°7n1/ 3Q9ni3 Jackett, William Henry (grandfather of Wilbur Roy Jackett), 3,4,5 Jake Friesen case, 285 Jarvis, Kenneth, 277 Jasmin, Yvon, 34ir\44 Jasmin Construction Inc. v. Resolute Shipping Ltd., 254 Johnson, Daniel, 123 Johnstone, Dave, 83 Jones, John Walter, 29,47-8 Judges Act, 206,207,259

Justice: Department of, ix, x, 50,3i2n5; administration, 76-87; Bill of Rights, 115-21; changes, 54, civil litigation, 71-6,105-6; courts, 209-10; drafting legislation, 57 8; drafting orders-incouncil, 57; foreign litigation, 111-14; Fulton, Edmund Davie, 92-104; income tax, 68-71; Jackett, W.R., 50,529,88-129; patronage, 53,104-5; procedures, 52-4,3i3ni2,3i4ni8; Pyper, Ian G., 102-3,106-7; recruitment, 557; 65-6,77; Second World War, 58-9; Varcoe, Frederick Percy, 52-3,60-8,76 Kamsack, Saskatchewan, 9-13,3o8n9 Kates, Christine, 286 Kearney, John Doherty, 148,149,156, 332ni\4,5 Keenleyside, Hugh, 91 Keith, B.A., 112 Kellock, Roy, 56,71, 73,105,278, 32^26,347ni Kellock commission, 141,3311124 Kelly, Arthur, 247,344x126 Kelso v. The Queen, 274 Kerr, Roderick, 219,274,330^3; Trial Division, 227 Kerwin, Patrick, 72,81,321^1 Kindle, Charlotte, 171,214,223,232, 233-4,250,273 King, William Lyon Mackenzie, 35,151, 3i5n2 Kinnear, Charlotte, 14,17,19 Knatchbull-Hugessen, Adrian, 329ni3 Knatchbull-Hugessen, James Cornelius, 32gni3 Konin Klijke Nederlandsche Soombootmaatschappij N.V. v. The Queen, 193 Kraft, Ray, 342ri44 La Brie, R. Eugene, 176,3361152 La Cie Immobilize BCN Ltee v. The Queen, 253

356 Index Lacroix, Cyrille E.-GV 3441126 Lafleur, Eugene, 71,74 LaForest, Gerard V., 64,67, 77 Lagace v. M.N.R., 182 Lahey, Rita, 83 Laidlaw, Hugh, 79,3211149 Laidlaw, R.E., 75 Lalande, Leon, 3441126 Lalonde, Marc, 122-3,326111147,48 Lamarre, Roland, 107 Lamontagne, Maurice, 332ni Landreville, Leo, 208,34on26 Landry, Louis-Philippe, 3411144 Lang, Otto, 251,262 LaPointe, Ernest, 52,313^, 3i5ni, 3i8n28 Laskin, Bora, 209,211,212-13,237,262, 3i4ni9; Bill of Rights, 118,119-20; 'Capricorn' case, appendix i; Federal Court of Canada, 216-17,240,241, 242,256; Jackett, W.R., 265-70,275-6, 346n59; provincial superior courts, 264; Supreme Court of Canada, 268, 34on29 Law Reform Commission, 230 Lawson, F.H., 40,3iinn9,12 LeDain, Gerald, 231,241,274 Leddy, Francis, 28 Lefebvre, Wilfrid, 253,256 'Legislative and Proprietary Control of the Inland Waters of Canada' (Jackett), 20 Leithiser v. Pengo Hydra-Pull of Canada Ltd., 190-1 Leon case, 250 Lesage, Jean, 107,202 Leslie, B.C., 329n8 Lewis, David, 140,143 Limitation of Liability, 192-3 Locke, C.C., 3421145 Locke, Charles Holland, 21,72,333n8 Lois Hollinger case, 252-3

Lothian, Lord, 32 Lyman, Emrich, 33 McCarthy, D.L., 138,288,33oni5 Macaulay, James, no, 324^3 MacDonald, Thomas D. ('T.D.'), 89 MacDonald et al. v. Vapour Canada Ltd., 256,270,34^63 McDonnell, Tom, 285 Macdougall, J.W.G., 141 McEntyre, J. Gear, 174 MacGuigan, Mark, 219,3411141 Mcllraith, George, 141 Mclntosh, Hilton T., 77 Mackay, Fred, 249,344^6 McKimm, R. Warden, 63,77,82,89, 128,32in54 McKinney, Louise, 3O9nn McKinnon, Ella, 51 MacLatchey, Edward S., 50 Maclean, Alexander K., 52,3i2n8 McLean, Fred, 3iini2 McLellan, George B., 100,324^1 MacLeod, Allan, 65,3i6nn MacMillan, Lord, 32 McNamara, Arthur, 55 McNaughton, Andrew G.L., 96 MacNeill, John E, 54,3i2n7,317^3, 24on24 Macphail, Agnes Campbell, 3O9nn MacPherson, M.A., 131 McQueen, Peter, 275,347n6,347n66 McRuer, James C., 250,33on2o, 335n4i McWhinney, Isabel, 14,16,17,19,24 Mahoney, John J., 214 Mahoney, Patrick, 228,244 Manning, Marshall E., 3441126 Manual of Federal Court Practice (Jackett), 224-5 Marceau, Louis, 231,238,344^4, 346n6o Marchand, Jean, 332ni

Index 357 National Conference of Judges on SenMarkham, Anne, 5 tencing (1964), 197-200 Marquis, Eugene, 208 National Department of Justice. See Martin, Paul, 68 Justice: Department of Martland, Ronald, 47,126,259,268, National Revenue: Department of, 69269,3241126,327n54,3351144 71. See also M.N.R. Massey, Vincent, 40 Natural Resources, 154 Massey Ferguson case, 250 Need, Thomas, 4 Maxwell, Donald S., 65-6,77,103,112, Nemetz, Sonny, 212,340^1 132,146,147,150,202,203,213,224, Newcombe, Edward Leslie, 52,53, ^lyca.^ 236,259,332n3,333nn, 334nl7/ 339ni7; Federal Court Act, 216,217, Nicholson, Leonard H., 97,108,3241121, 33oni8 218,221 Noel, Camilien, 156,160,168,169,171, Maybury, Ruby, 107 219,236,252,254,342rai5,6; French media, 258 language in court, 263; stroke, 231, Meighen, Arthur, 60,315^ 342114; Trial Division, 226,227 Miall, Ed, 58,312117,3141120,321^0 Noel, Marc, 168,253,254,263,278,282Michener, Roland, 155-6,213,333ni5 M.N.R. v. Creative Shoes et al., 260 4/ 347n3 Nowlan, George, 107 M.N.R. v. Wrights' Canadian Ropes Ltd., Noxema case, 250 174 Mogan, Murray, 176 O'Donnell, H.E., 329ni4,332114 Morden, K.G., 3191140 O'Fallon, A.S., 49,51,3iin2 Moriarity, John, 9 Official Languages Act, 156 Morris, Alexander, 3o8nio Oliver, Harry, 14 Moxon, Arthur, 22,24,29, 78,121-2, Olliver, Paul, 161 195,3201146 Olson, Richmond, 65,89,3i6ni2 Mullins, N.D., 3421145 Olmsted, Richard, 58,3i2n7,3141120 Mundell, David Walter, 56,64,72,80, Olsson, Larry R., 3411143 89,3141122,3i6nn, 32ini Munitions and Supply: Department of, 55 Ontario Court of Appeal, 205 Ontario Highway Transport Board, Munro, C. Robert O., 77,132 142 Murphy, Emmett, 94 Ontario Labour Relations Act, 140 Murray, Alexander, 32 Osier, John, 343ni3 Murray, W.C., 24 Owen, George R.W., 3i3nio Nanda v. Public Service Commission, 255 Patent Act, 189,246 Narum, Huguette, 233,235,263,269, Patent and Trademarks Institute of 272 Canada, 195 National Capital Commission v. Budd et Patterson, Waugh, O'Fallon, Taylor al, 184 Ltd, 3iin2 National Capital Commission v. Marcus, patronage, 53,104-5 185

358 Index Pearson, Lester B., 146,148,3101120, 322nn2,6,32.31114,325^5,3261147' 332ni Pelletier, Gerard, 332111 petition of right, 174-5 Philco Corporation v. RCA Victor Corporation, 189 Pichosky v. Minister of National Revenue, 176 Pickersgill, Jack, 91,322n6 Pickup, John Wellington, 124,32^50 Pigeon, Louis-Philippe, 185,240-1,262, 265, 268,3251141,333nn, 346n6o; provincial superior courts, 264 Pitfield, Michael, 122,123 Plaxton, C. Percy, 50,51,56,60,147, 3i3nn, 3i5ni Polymer case, 187 Porter v. The Queen, 172-3 Post Office Act, 174 Pratte, Garon, 227 Pratte, Louis, 227,230,231,237,238, 244,254,263,264,272,344n26, 345n37; Jackett, W.R., 245,246,2478; Supreme Court of Canada, 269 Pratte, Yves, 269 Precision Metalsmiths, Inc. v. Cercast et al, 189 Privy Council (England), 74-5 Public Service Commission, 230 Pyper, Ian G., 102-3,106-7,122-3, 324n23,347n4 The Queen v. Mackinnon, 163-4 The Queen v. Murray, 173 Quiet Revolution, 107 Ralph Sazio v. M.N.R., 159 Ramsland, Sarah, 12 Rand, Ivan Cleveland, 208,3261145, 333n8,34on26

Randolph v. The Queen, 174 Rebrin v. Bird and Minister of Citizenship and Immigration, 139 Reference re the Validity of the British Columbia Milk Industry Act (1956), 125 Regan, Walter, 77 Registrar General: Department of, 153 Regnier, Maurice, 253 Rentals Reference case, 64 Rex v. Cyr, 2.0-1 Richardson case, 162 Rider, Frances, 30 Rinfret, Thibaudeau, 72,3i2n8,319*131, 32.11151,333n8 Ritchie, Charles, 91 Ritchie, Marguerite, 62,83-4,112,116, 32in52 Ritchie, Roland, 265,346^9 Robertson, Ella Kathleen (wife of W.R. Jackett), xi, 51,61,122,128,132,133, 146,148,232,262,268,286-7,339n24 Robertson, Gordon, 62,91 Robertson, Norman, 91,3iinio Robertson, Robert, 51 Robinette, John J., 73,105,126,165, 319*34 Robinson, Christopher, 112,162,180, 218,229 rogatory commissions, 111-12 Royal Canadian Mounted Police, 97101 Ryan, William, 230,231,246,248,249, 274 St. Catharines Flying Training School v. M.N.R., 71 St Germain, Jean, 3441126 St Laurent, Louis, 52,88,102,147,239, 3i3nio, 32in2,32.51*35,341^4 Samuels, Sol, 77,154,210-11,271,273, 3i4ni7

Index 359

Sandomersky, Mel, 23 Saskatchewan Triumvirate, 55-9 Sauve, Joseph-Mignault-Paul, 107 Schreyer, Ed, 230 Schroeder, Walter, 76,3201141 Scott, F.R., 22,118,143,33in27 Scott, Nora, 81 Scribner, Charles, 7,18,20,45 Scribner, Frank, 18,26 Seabrook, Amy, 6 'Section 28 of the Federal Court Act and Principles of Natural Justice' (Jackett), 250-1. Sedgewick, Robert, 3i3ni3 separation of powers, 259-60 Sharp, Mitchell, 56,64,91,92,3i2n6, 332ni Sheaf, 3O9ni8 Shell Oil, 137 Sheppard, Fred, 21,22,220,344^6 Shouldice, Margaret V., 4 Shouldice, Rebecca, 5,30^3 Shumiatcher, Morris, 118,119 Sim, David, 91,322^ Sim, Donald, 186 Simms, Kay, 82,83,113,152 Simpson, Wallis Warfield, 42 Sinclair, Ian, 127,130-2,134-5, X37/ 142,149,328nni, 4,3291^15,7, 33oni6, 332n6 Sinclair, W.R., 345^5 Slade, Edwin, 40 Smallwood, Joey, 98 Smith, Denis, 118,120 Smith, Gordon, 83 Smith, John, 35 Smith, Rhodes, 3441126 Smith, Sydney John, 148 Smith, T. Bradbrooke, 125-6,3141117 Smith, W. Earle, 133 Sons of Freedom. See Doukhobors

Spence, Wishart, 237-8,268 Sprague, Pauline, 208 Spun Rock case, 170 Statutory Instruments Act, 217 Stein, Charles, 72,3i2n7,3i8n28 Stewart, Freeman, 36 Stewart, Harold Mclntosh, 12,25,47, 309ni9 Stikeman, Harry Heward, 50,51,69,70, 73,134,177,252,253,328ni Street, H., 167 Subsidiaries Holdings Company Limited case, 74 Susan Hosiery Limited v. M.N.R., 183 Supreme Court of Canada: Federal Court of Canada, 240,261-2; Laskin, Bora, 268 Sweet, Elizabeth. See Gee, Elizabeth Sweet, Fanny (mother of W.R. Jackett), 5,6, i3/17 Sweet, Joseph A., 3441126 Sweet, Sheldon, 5,18 Tait, John C, 324^4 Tamaki, George T., 133-4,32gni4 Tariff Board, 86,261 Taschereau, Pierre, 142,331^5 Taschereau, Robert, 56,149,201,219, 333n8,338n2,341^2 Tasse, Roger, 259-60,3i6ni3,32ini, 3261148 Tax Appeal Board, 70 Tax Court of Canada, 175 Taylor v. Minister of National Revenue, 73 Tellam, Frank, 14,17 Terra Nova Properties Ltd., v. M.N.R., 178 Thompson, Sir John Sparrow David, 313^13 Thorson, Donald Scarth, 66,77,80,124, 152,229,259,31610113,15

360 Index

Thorson, Joseph Thorarrin, 70,84-5, 99,116,146,157,168,171,193,210, 213,214,222,273,3331116; president of the Exchequer Court of Canada, 150-6,3i2n8,3i6ni5,3171121, 3*9*33/ 3241118,332n5,333nn, 337*72 Thurlow, Arthur, 105,106,149,156,1578,163,168,171,214,216,219,224,272, 273/ 332*5,334*19' 342*6,343n8; A/y case, 244; chief justice of the Federal Court of Canada, 238,3441124; Federal Court of Appeal, 226,227; Jackett, W.R., 248,249; provincial courts, 239; Supreme Court, 241 Tilley, William Norman, 66,71,74,131, 138,3i7ni6,33oni5 Tolmie, Ross, 50 Too Much of Income Tax Law? (Jackett), 69 Trade Marks Act, 161,190 Treaty 4,3o8nio Transitional Powers Act, 64 Tremblay, Lucien, 199,200,202, 203, 338n2 Trial Division (Federal Court of Canada), 218,221,226,227,242-4 Troop, Peter, 74,77,81,86,94,124,245 Trudeau, Pierre, 152,262,216,251, 3261147,332ni Turner, John Napier, 96,206,227,278, 342n46; Federal Court of Canada, 213,214,215,216-19,221,222-3,228, 229,34inn33,35 Tyler, 'Theo/ 40 Union Carbide Canada Limited v. Trans Canada Feeds Limited et al, 188 United Church of Canada Act, 3O9ni2 University of Saskatchewan, 17-23; College of Law, 20-3 Urie, John J., 229,246,250,262,274, 342T012, 3

Vanier, Georges-Philias, 333ni5 Varcoe, Frederick Percy, 52-3,60-8,70i, 76,83,88,89,102,113,3i2n7, 3i5nn3,4,6,3i6nn8,10,12,15, 31^17,3i8n29,323ni2,3241122, 32gn7,331^7,336^7; Jackett, W.R., 63,65,66-6,3201144; letter of resignation, 127-8 Vaughan, Robert Charles, 54 Verchere, Bruce, 254,278,282 Verchere Noel and Eddy, 278 Veregin, Peter, 107-8 Vineberg, Philip, 285 Waddell, Ian, 217,341^7 Wagner, Claude, 201-2 Walker, David, J., 118,121,122 Wallace, J. Ira, 11 Walsh, Allison, 220,3341117; Trial Division, 227,254,257 Walsh Advertising, 3241127 Walsh Advertising Company Limited v. Her Majesty The Queen, 105,139 war crimes, 62 War Measures Act, 55,57,64 W.D. Armstrong & Co. Ltd. v. Dep. M.N.R.for Customs and Excise, 183 Wheelock, Sid, 3i2n3 Whitehall, Ivan, 255,336n66 Wickett, Kaziah (Cassea), 34 Wilkinson Sword (Canada) Limited v. Juda, 190 Willis, Rosamund, 45,3iini5 Williston, Walter, 3i6ni4 Windsor, Stephen, 11-12 Winnipeg General Strike, 3231115 Woods Manufacturing Company Limited v. The King, 151 Woolsley, Jim, x Woolsey, Reginald, 7 Wright, James Arthur, 138,33oni6, 33in3o

Index 361 Wright, Maurice, 255 Wright, Muriel, 307114 writs of assistance, 173-4

Yule, Gilbert H., 48-9,169,3imi, 3141121 Zvadiuk v. M.N.R., 181-2

'A Young Man's Duty' (Jackett), 194