Dean of law at the University of Calgary Ian Holloway says grammar and history is why the court shouldn’t be renamed the Supreme Court
This is a painful column for me to write. Maybe the most painful one of all – and I’ve now written thirty of them since joining Canadian Lawyer as a columnist. For one thing, it involves an institution I know and work with – and one whose members I like and respect very much. For another, it offers yet another example of the Canadian legal profession wanting to turn its back on colour and history and instead choosing to embrace presentism in its most drab and uninspiring form.
I am speaking about the professed desire of the Alberta Court of Queen’s Bench – our superior court of inherent jurisdiction (to use its small ‘c’ constitutional descriptor) to be renamed the the Supreme Court of Alberta.
This is, apparently, a change that has been brewing for some time. The stated reason was proffered by Darryl Ruether, the court’s executive legal officer, in an interview with the CBC. He said that the name change has been on the court's agenda for a few years, “We would like to do it sooner rather than later… Recognizing that there's a certain inevitability to [a name change], doing it in advance seems a little bit more sensitive, I suppose," he said.
Moreover, the CBC reported: “It would be a rename rather than a new name: Supreme Court of Alberta was the moniker the court went by until 1979, Ruether said.”
So that’s it. It’s inevitable. So why not get out ahead of the matter? And when you think about it, it’s just going back to foundations. What could be wrong with any of that? Well, several things, as it turns out.
The first is that talk of inevitability reeks of what is known as historical determinism – the idea that the future is pre-ordained by the past. Yet even a cursory study of our times shows just how wrong-headed this notion is. How many people were saying two years ago that it was inevitable that Donald Trump would win the presidency? Or four years ago that Justin Trudeau would become Prime Minister? What about Glasnost and the end of the Cold War? How inevitable was that? The point is that a claim of inevitability almost always is a cop-out – an attempt to avoid accepting responsibility for one’s decisions.
Secondly, the implication that this would just be reverting to the old name is wrong in history. Or, perhaps to put it more gently, it glosses the history in a misleading way. The story is that in 1907, two years after Alberta became a province, the old Supreme Court of the Northwest Territories was partially carved up to create a new provincial supreme court. The new court had both an original and an appellate jurisdiction. There was a single corps of judges who both presided over trials individually, and who sat in banco on appeals from their brethren. Over time, the press of appellate business grew such that in 1921, the Court was formally divided into trial and appellate Divisions, each with its own chief justice.
Infamously, rivalry between the two divisional chiefs, over who could properly claim to be Chief Justice of Alberta had ultimately to be resolved by the Judicial Committee of the Privy Council.
Alongside the Supreme Court, there was established a body called the District Court. It was the counterpart of what in the older provinces was known as the County Court, presided over by judges who were permanently based in smaller centres.
In 1979, the decision was taken formally to rename the Appellate Division of the Supreme Court, the Court of Appeal of Alberta. It was also decided to merge the Trial Division with the District Court and to call the new entity the Court of Queen’s Bench of Alberta. The point is that the Court of Queen’s Bench is not the same thing as the old Supreme Court. At best, it is a third of it.
The third problem with the proposed change is its timing. Queen Elizabeth is now 93. Happily, she seems to be in good health. Moreover, her mother lived to the age of 101. But good genes notwithstanding, the reality is that she won’t occupy the Throne forever. So however the court tries to gloss it, this can’t help but be seen as a dig of some sort. Maybe a dig against the Prince of Wales, or maybe a dig against the institution of constitutional monarchy itself. Whatever the court thinks, a dig is how a change like this will be spun. Indeed, I could write the Citizens for a Canadian Republic’s press release right now!
A fourth problem is that changes like this represent an example of prioritizing form over substance. Heaven knows that the Canadian judicial system is in sore need of modernization.
Indeed, the court’s annual report notes many commendable projects in this regard. It’s quite correct to say that if the judiciary doesn’t modernize how it does business, then a combination of technology and private dispute-resolution systems will eventually make it redundant. To use an example from near-living memory, the last thing the Court of Queen’s Bench wants is to suffer the fate of the old Court of Chancery. If you want to know how that story ended (hint, it wasn’t happily for the independent life of the court) see the one-two blow of Charles Dickens’ Bleak House and the Judicature Acts of 1873 and 1875.
But the point is that a change of name won’t do a thing to make it seem more relevant or modern. When the Law Society of Upper Canada was proposing to turn its back on its own heritage, I described it as “nothing more than superficial window dressing that won't alter how the public feels about us one iota.”
But what changing the name would do, I argued, is cause us to lose some of our sense of professional identity: “For in a precedent-based system such as the common law, it is conceptually impossible to understand the present without having a sense of the past.” I believed that then, and I continue to believe it now.
The fifth problem is that it’s misleading to call a trial court a ‘Supreme’ Court. Thanks to the hegemony of the Supreme Court of Canada in the Charter era, and possibly nourished by our regular consumption of news about the Supreme Court of the United States, ‘Supreme’ when used as an adjective for the judiciary now means “top.” This was a point made by Edmonton lawyer Avnish Nanda, who practices in both Alberta and B.C., in that same CBC article: “I think it's a terrible idea that's going to cause confusion to the public.”
My own view is that the inherent jurisdiction of the Court of Queen’s Bench is in many ways the ultimate lynchpin of the rule of law. But it is just not true that it is the top court in the Alberta hierarchy.
Yes, four provinces; Newfoundland and Labrador, Prince Edward Island, Nova Scotia and British Columbia call their trials courts Supreme Courts. But the fact that they’ve got grammatically incorrect titles – grounded, one should note, in their own history, which is different from Alberta’s – doesn’t mean that we should adopt them.
As our mothers used to say to us, if everyone else was jumping off the bridge, would we do it, too?
The final problem is the one I adverted to at the outset. That is that this is just one more piece of evidence that the Canadian legal system has lost its sense of romance and history. An institution called the Court of King’s Bench was first known in the fourteenth century. When Alberta decided to name its own separate trial court it (consciously and deliberately) chose to embrace those six centuries of accumulated heritage and experience. Now, we want to turn our backs on all of that. Can anyone say that this represents any kind of a step forward?