A CANADIAN DEVELOPMENT: NON‐PARTY INTERVENTION
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02451.x |
| Date | 01 November 1977 |
| Published date | 01 November 1977 |
| Author | Bernard M. Dickens |
A CANADIAN DEVELOPMENT: NON-PARTY
INTERVENTION
WHEN
the Canadian federal Minister of Justice surprisingly
appointed the distinguished but controversial constitutional lawyer
Bora Laskin from his academic post of professor at the University
of
Toronto directly to the provincial Ontario Court of Appeal in
1965, the event was the subject of some comment and speculation
in the United Kingdom and beyond. It was questioned whether
Canada, acting through the province of Ontario, the largest
and in many ways the leading common law province in Canada,
would be moving from the English model
of
elevating judges
exclusively from the practising Bar in favour of the United States’
position of recruiting some of its appellate judges from academic
life.
The Ontario experiment apparently satisfied the Ministry of
Justice, since in 1970 Bora Laskin was appointed a puisne judge
of the federal Supreme Court, and on January
7,
1974, though
having been only sixth in priority of appointment in a full Supreme
Court of nine, he became Chief Justice of Canada. It may be
apposite that within eight months of his appointment, Chief Justice
Laskin confirmed in Canadian trial practice the feature familiar
in United States’ courts of admitting the arguments of non-parties.
He may thereby have pointed the way to the emergence of an
authentic North American procedural jurisprudence uniting Canada
and the United States of America.
In the
Morgentaler
case a reputable Montreal doctor who
followed impeccable medical procedures was accused
of
performing
an illegal abortion. He was acquitted at first instance by the Quebec
jury,* but on the prosecutor’s appeal the Quebec Court of Appeal
reversed the decision and ordered the accused to appear before
the lower court for sentence, which it then had the power to do
in a proper case.4 The unsuccessful appeal against conviction to
the Supreme Court
of
Canada5 had important and perhaps far-
reaching implications for Canadian abortion law and practice.6
1
For a full discussion of elements of the case,
see
Bernard
M.
Dickens.
“The
Morgentaler Case: Criminal Process and Abortion Law
”
(1976) 14 Osgoode Hall
L.J. 229.
2
R.
v.
Morgcnfaler
(No.
1)
(1973) 14 C.C.C. (2d) 435.
3
R.
v.
Morgentaler
(No.
5)
(1974) 17 C.C.C. (2d) 289.
4
Unlike the position in England, of course, where the Attorney-General’s successful
appeal upon acquittal on indictment cannot affect the accused’s release: Criminal
Justice Act 1972,
s.
36 (7). The Canadian Minister
of
Justice subscquently reconsidered
section 613 (4) of the Criminal Code (R.S.C. 1970,
c.
C-34) under which the
Quebec Court of Appeal acted, and the Code was later amended to prevent appellate
reversal of acquittal by jury, allowing only the order of a new trial.
5
Morgentaler
v.
The Queen
(1975) 20 C.C.C. (2d) 449.
6
In September 1975 the Minister
of
Justice constituted a Departmental am-
mittee to consider the distribution of abortion services in Canada.
The
Report
of
the Committee
on
the Operation
of
the Abortion Law was released in February 1977.
666
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