The BC Court of Appeal marks its 100th anniversary
by Christopher Moore, author of The British Columbia Court of Appeal: the First Hundred Years
Centre photo: Reception for His Royal Highness Duke of Connaught, Governor General of Canada, September 8, 1912.
Bottom photo: Dinner held in honour of Chief Justice Bird on his retirement as Chief Justice, January 1967.
The British Columbia Court of Appeal first sat on Tuesday, January 4, 1910, at what is now the Maritime Museum in Bastion Square, Victoria, and the papers declared it a day “memorable in the legal history of the province.” The next month, it held its first Vancouver sitting at the then-new courthouse that is now the Vancouver Art Gallery.
There had been appeals in BC before 1910. Rather earlier than England, Canada recognized very broad rights of appeal, particularly in criminal cases. Before 1910, however, appeals were heard by the Supreme Court sitting en banc, rather than by a separate court.
British Columbia was booming in the early 1900s, developing northern railroads, opening the port at Prince Rupert, planning the provincial university, and opening buildings like Vancouver’s courthouse. The Law Society had long urged the creation of a Court of Appeal, and Premier Richard McBride agreed in 1907. The law was enacted in 1909, and the court started work soon after. The court began with four judges (it now has 15). A fifth judge was appointed in 1913, but until the late 1930s many appeals were denied on a 2-2 split.
The first chief justice of the appeal court, James Macdonald, was named directly from practice, and he resigned his seat as a Law Society Bencher to take the appointment. Many other Benchers have followed him to the Court of Appeal. Chief Justices Campbell DesBrisay, Sherwood Lett, Allan McEachern and Lance Finch all served as Law Society Benchers, as did Justices Tom Norris, Angelo Branca, Charles Locke, Mary Southin, Jo-Ann Prowse, Tom Braidwood and many others.
From time to time, the appeal court also reviews decisions of the Law Society. In 1912’s French v. Law Society, it agreed that women were not entitled to be lawyers, and in 1950’s Martin v. Law Society, it agreed that communists could not be lawyers either. It was 1985 before Beverly McLachlin became the first woman on the Court of Appeal, but barely 15 years later, women had become a majority of the regular judges, and some judges with left-wing reputations have also made it to the court.
BC has had just two Court of Appeal Acts. The much amended original Act of 1907 gave way in 1982 to a new Act, one much influenced by Chief Justice Nemetz, a skilled administrative campaigner committed to defending independence of the judiciary in a time of rapid administrative reform. About the same time, appointments to the court began to be less political, and now many judges have no evident political loyalties.
To mark the centenary of British Columbia’s highest court, the Legal Historical Society (with support from the Law Foundation) has sponsored The British Columbia Court of Appeal: the First Hundred Years, which will be published this Spring by UBC Press and the Osgoode Society for Canadian Legal History. It will cover all this history and even a few of the courts’ scandals: the feuds of Archer Martin, the sudden resignation of John Farris, and the ambitious judge who was told he could either be chief justice or keep his mistress, but not both. (He became chief justice.)