Halsbury and Canada

This is a response to Gary P. Rodrigues’ post, “Recognized as an authority.”

I think it has been a safe bet since its inception that Halsbury’s laws of Canada would be frequently cited in Canada. In fact, a simple Quicklaw-LexisNexis search of the phrase,”Halsbury’s Laws of Canada,” already (as of today) turns up four hits, including one decision of the Saskatchewan Court of Appeal.

But why Halsbury’s Laws of Canada? The obvious answer is that the good people of LexisNexis believed that Halsbury’s was a valuable trade-name in Canada. But apart from editing a great encylopedia of English law which generations of Canadian lawyers have found useful, what were the Earl of Halsbury’s contributions to Canadian law? Wikipedia has a convenient brief biography of the man. I haven’t yet consulted the book by Alice Wilson-Fox, The Earl of Halsbury, lord high chancellor (1823-1921) (London: Chapman and Hall, 1929). Obviously, then, I don’t claim that what follows will exhaust the subject.

Most famously, Lord Halsbury delivered the opinion of the Judicial Committee in Riel v. The Queen (1885), 10 App. Cas. 675 (QL), advising that Louis Riel should not be granted leave to appeal his conviction for high treason. He said:

Of the objections raised on the face of the petition two points only seem to be capable of plausible or, indeed, intelligible expression, and they have been urged before their Lordships with as much force as was possible, and as fully and completely in their Lordships’ opinion as it would have been if leave to appeal had been granted, and they have been dealt with by the judgments of the Court of Appeal in Manitoba with a patience, learning, and ability that leaves very little to be said upon them.

The first ground of appeal offered by Riel was that the statute providing for the administration of justice in the North-west Territories (a) was not calculated to secure peace, order, and good government, and was therefore ultra vires; and (b) had granted jurisdiction to try “any other crimes”, but not high treason.
The second ground was that the magistrate, because he had only expanded and revised the notes taken by a shorthand writer employed for that purpose, had not complied with the statutory requirement to take full notes of the evidence in writing.

Although Lord Halsbury participated in at least eleven Canadian appeals, so far I have only found one other in which he delivered the reasons: Bank of Montreal v. Sweeny (1887), 12 App. Cas. 617 (QL). In this case, the Judicial Committee advised that the decision of the Supreme Court of Canada should be affirmed on a point of Quebec law summarized in the headnote as follows:

A holder of shares “in trust” is not a mandataire prête-nom and holds subject to a prior title on the part of some person undisclosed. Such holding not being forbidden by the law of the colony, a transferee from such holder is bound to inquire whether the transfer is authorized by the nature of the trust.

Lord Halsbury also gave reasons in a couple of House of Lords decisions that had a Canadian angle. One was Barnardo v. Ford (Gossage’s Case), [1892] A.C. 326 (QL). In this case, the famous Dr. Barnardo was accused of planning to ship a boy off to Canada without the consent of his mother. The mother obtained a writ of habeas corpus, but Dr. Barnardo said that the boy was not in his custody. Rather than making this statement in his return to the writ, however, Dr. Barnardo appealed the decision to issue it. The House was unanimous (a) that there was jurisdiction to entertain such an appeal, and (b) that, in this case, the appeal should be dismissed. It was best that the issues of fact be determined on the basis of a return to the writ. Lord Halsbury came close to dissenting on the first point:

My Lords, as to the preliminary point in this case, I have entertained grave doubts, and I cannot say that even now those doubts have been entirely removed; but it does not seem to me a question upon which I should insist so strongly on my own opinion that I should differ from the rest of your Lordships.

The other case was one in which the House of Lords exercised a jurisdiction which would baffle many Canadians. In Thompson v. Dibdin et al., [1912] A.C. 533 (QL), the Lords decided that a writ of prohibition should not be granted to restrain the Arches Court from admonishing a clergyman of the Church of England who refused communion to a man and his deceased wife’s sister. Since their marriage would have been invalid under the law of England, they had gone to Canada to marry, reckoning that the marriage would be recognized “for all purposes” pursuant to the Colonial Marriages (Deceased Wife’s Sister) Act, 1906. As it happened, this was incorrect at the time, since they lacked a Canadian domicile. The marriage was retroactively validated “as a civil contract”, however, by the Deceased Wife’s Sister’s Marriage Act, 1907. Section one of the latter act said:

Provided always that no clergyman in holy orders of the Church of England shall be liable to any suit, penalty, or censure, whether civil or ecclesiastical, for anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed.

Although three sets of reasons were given, the Lords were unanimous that this section only protected a clergyman who refused, on conscientious grounds, to marry a man and his deceased wife’s sister. It provided no protection to a clergyman who refused communion to such a couple. Lord Halsbury said:

Considering the difference there used to be between those marriages which were absolutely void and those marriages which were voidable, it is impossible to suppose that such language as that could be applicable to what was, until set aside by ecclesiastical authority, a valid marriage. It appears to me the language is wholly and utterly inappropriate to the circumstances of the present case. Everybody would have understood, and I think everybody now would understand, what was the meaning of “persons of notorious evil life”; and to say that that language is appropriate to these persons, who are legally married and whose marriage is absolutely established by Act of Parliament, would, as it seems to me, if it were not so serious a matter, be ludicrous.

Perhaps others are aware of additional reasons why Lord Halsbury should have had an encyclopedia of Canadian law named after him.

Comments are closed.