A History of the Supreme Court

Fort Ann, Annapolis Royal The Nova Scotia Supreme Court is the first superior court to apply the common law within the boundaries of what is now Canada. The common law of Britain came to the province after the French ceded mainland Nova Scotia to the British in 1713, under the Treaty of Utrecht. In 1721, in response to “the dayly cry ... for Justice” from the inhabitants, the British established a General Court at the capital, Annapolis Royal. Based on a model used in Virginia, the court consisted of the governor and members of his council. This court continued to hear all civil and criminal cases until the founding of Halifax in 1749.

Colonel Edward Cornwallis, who became governor when Halifax was established, was authorized to create laws “as near as may be agreeable” to those of Britain. A two-tier court system was put in place, with the General Court retained to hear all criminal cases. It also heard appeals of the decisions of the lower court in civil disputes involving more than £300. Concerns about the legitimacy of legal decisions made by laymen, coupled with complaints that judges of the lower court were applying New England law, prompted the British authorities to appoint a lawyer to serve as chief justice. Jonathan Belcher, a New Englander who had practiced law in England and Ireland, was sworn in as chief justice of the newly established Supreme Court on October 21, 1754.

When Nova Scotia was granted an elected assembly in 1758, one of the first acts passed confirmed all “sentences, verdicts and judgments” of the Supreme Court. A growing caseload prompted the appointment of two laymen, Charles Morris and John Collier, as assistant judges in 1764, but until 1773 they could only hear cases in tandem with the chief justice. The court began sitting once or twice a year in communities outside Halifax in 1774, and this circuit system was extended to the entire province by 1851.

In the late 1780s, a controversy dubbed “The Judges’ Affair” rocked the court. British officials had difficulty finding a permanent replacement for Belcher, who died in 1776. The senior assistant judge, Isaac Deschamps, was in charge for several years despite his lack of formal legal training. Lawyers among the Loyalist refugees newly arrived from the American colonies launched a campaign to impeach Deschamps and the other assistant judge, James Brenton, accusing them of incompetence and bias. The Assembly investigated but Lieutenant-Governor John Parr and his council cleared both judges and dismissed the allegations as “groundless and scandalous.” The complaints resurfaced in 1790 and the Assembly voted to impeach Deschamps and Brenton for “high crimes and misdemeanours.” The Privy Council of the British government reviewed the allegations and, in a 1792 report, exonerated both judges and condemned their detractors. Since 1809, however, all judges of the Supreme Court have been required to have practiced law for at least ten years.

The court grew as the province’s population increased. A fourth judge was added in 1810 and six years later an associate judge was appointed to preside over cases outside Halifax. In 1841 the province’s lower court, the Inferior Court of Common Pleas, was abolished and the Supreme Court assumed jurisdiction over most criminal and civil cases, leaving minor offences and civil disputes in the hands of local justices of the peace.

In 1848, Nova Scotia became the first province granted responsible government – a form of parliamentary government requiring the party in power to have the confidence of a majority of the elected members of the Assembly. Judicial reforms including granting independence to judges of the Supreme Court, who could only be removed from office through a vote of both the Assembly and the Legislative Council.

Upon Confederation in 1867, the federal government assumed the power to appoint Supreme Court judges. Two judges were added to the court in 1870, bringing the total to seven. A County Court was established in 1874 to ease the caseload of the Supreme Court – County Court judges in seven districts heard cases without juries, improving access to justice and allowing for speedier trials. In 1875, the Supreme Court of Canada was created to hear appeals of rulings of superior courts in Nova Scotia and other provinces.

Proposals for court reform surfaced in the 1920s, when Attorney General Walter J. O’Hearn put forward legislation to abolish grand juries and create a separate court of appeal. No action was taken, however, and the grand jury – a group of citizens empaneled to review allegations in criminal cases – persisted in Nova Scotia until 1984, long after it had been abolished in the rest of Canada. The Supreme Court continued to sit as a group to consider appeals until the creation of distinct Trial and Appeal divisions in 1966.

The court recorded a series of firsts beginning in the mid-1960s. Vincent Pottier became the first Acadian named to Supreme Court in 1965; J. Louis Dubinsky, the first member of the Jewish community to serve on the court, was appointed two years later; and Justice Constance Glube – the first woman appointed to the court, in 1977 – was promoted to chief justice of the Trial Division in 1982, becoming the first woman to serve as chief of a Canadian superior court.

During the 1980s, however, the Supreme Court itself was put on trial. Federal Justice Minister Jean Chretien referred the case of Mi’kmaq teenager Donald Marshall Jr., who served 11 years in prison for a 1971 murder in Sydney, to the Appeal Division for review. The court acquitted Marshall but insisted any miscarriage of justice was “more apparent than real” despite growing evidence of misconduct by police and prosecutors. The Nova Scotia government established a royal commission, headed by three out-of-province judges, to investigate the case and the province’s justice system. The commission’s 1990 report condemned systemic racism and political influence in the province’s justice system. Reforms have included giving police the power to decide whether to file criminal charges and the creation of the only Canadian prosecution agency that operates independently of government. The Canadian Judicial Council investigated the five Appeal Division judges who said Marshall was to blame for his wrongful conviction and, while critical of their conduct, the council found no grounds to justify their removal.

The Law Courts of Nova Scotia. More court reforms were undertaken in the 1990s. On the recommendation of the Nova Scotia Court Structure Task Force, the County and Supreme courts were merged to create a bench of 25 judges at the trial level. The Appeal Division was reconstituted as the Court of Appeal, with eight judges. In 1999 a Family Division of the court, with eight judges, was established to deal with divorces and other family law cases in the Halifax and Sydney areas. There are plans to extend its jurisdiction to all parts of the province, replacing the Family Court that still sits in other centres.

The Supreme Court has emerged as a leader in Canada in judicial education and accountability to the public. It spearheaded a program that enables lawyers to provide confidential assessments of the performance of its judges, and created a central administrative office that serves all courts in the province – the first of its kind in Canada. It was one of the first courts to establish a media liaison committee, giving judges and journalists a forum to resolve disputes over court access and problems arising from media coverage. The province’s guidelines for media access and an Internet-based system for notifying the media of applications for publication bans have become models for other provinces. Nova Scotia is also a leader in the creation of restorative justice programs that impose alternative forms of punishment and seek to reconcile offenders and their victims.

As of 2004 the Court of Appeal consisted of the Chief Justice of Nova Scotia (who is also the Chief Justice of the Court of Appeal) and seven other judges. Semi-retired (supernumerary) judges may also form part of the court at any given time. The Supreme Court comprised a chief justice, an associate chief justice and twenty-one judges. There were also six supernumerary or semi-retired judges.

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Sources: Barry Cahill and Jim Phillips, “The Supreme Court of Nova Scotia: Origins to Confederation,” and Philip Girard, “The Nova Scotia Supreme Court: Confederation to the 21 st Century,” in Girard, Phillips and Cahill, eds., The Supreme Court of Nova Scotia 1754-2004: From Imperial Bastion to Provincial Oracle (Toronto: University of Toronto Press, 2004); The Supreme Court of Nova Scotia and Its Judges: 1754-1978 (Halifax: Nova Scotia Barristers’ Society, 1978).

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