Sir Lyman Duff and the Fork in the Road

RICHARD GOLD

ABSTRACT

Sir Lyman Poore Duff sat on the Supreme Court of Canada for thirty-eight years, starting in 1906; he sat as chief justice for the last eleven years. During this entire period, Duff and the Court faced important issues concerning the meaning of the constitution. Through Duff's encounters with these issues, the author attempts to reconstruct Duff's approach to law, in general, and to the British North America Act, in particular.

Duff began by advocating that the provinces and the dominion had been granted power separately from the United Kingdom. These powers were mutually exclusive with little, if any, overlap. While the two orders of government were each dependent on the imperial parliament, they were independent with respect to each other. Duff's position shifted with time. He gradually came to realize that firm boundaries between federal and provincial powers were impossible to attain. Rather, a certain degree of concurrent power had to be tolerated. Further, with Canada's evolution into an independent state in 1931, Duff's vision of the relationship between the federal and provincial governments changed. The sovereign power, which until that time had rested with the imperial parliament, in 1931 came to rest with the dominion parliament. The provinces' subordination, therefore, switched from the former to the latter.

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Citation: (1988) 46(2) U.T. Fac. L. Rev. 424.
Copyright © 1988. University of Toronto Faculty of Law Review.
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