History of the Court of Appeal

Prior to 1975 both trial and appeal superior court functions were discharged by a single unit court, the Supreme Court of Newfoundland. Each of the individual judges could and did sit as a trial judge. In the case of an appeal from that judge’s decision the other judges sat together (en banc) to hear it. Thus, until 1975 the history of the Supreme Court of Newfoundland and Labrador, Court of Appeal, and of the Supreme Court of Newfoundland and Labrador, Trial Division, is common to both.

We are indebted to two judges for a good deal of the history of the development of judicature in this, the earliest of British colonial acquisitions. D.W. Prowse was a late nineteenth century judge of the Central District Court of Newfoundland. His history of Newfoundland is regarded as a classic. John Reeves is the first person to hold the office of Chief Justice of Newfoundland. In addition to the contribution he made to the development of a system of judicature in Newfoundland, he also made a quite significant contribution as a recorder of history. In 1793 he wrote and published “History of the Government of Newfoundland”.

While historic events between European discovery in 1497 and 1791, impacting upon the development of a system of judicature, or the prevention of its development, have a significant bearing and are intrinsically interesting, the real beginning point of the history of this Court is the passage by the United Kingdom Parliament of the Judicature Act of 1791. The statute was a response to the recommendation of the United Kingdom Committee of Council for Trade. The statute had a life span of one year and the court it created had limited jurisdiction. It was to be a court of civil jurisdiction “… to hear and determine, in a summary way, all pleas of debt, account, contracts respecting personal property, and all trespasses against the person or goods and chattels…” The court was to be a court of record, “… with all such powers as by the law of England are incident and belonging to a court of record.”

It was to this court that John Reeves was first appointed as Chief Judge. His appointment was by the Crown and he was to sit with two assessors to be appointed by the Governor. The Chief Judge and either one of the assessors could exercise the jurisdiction of the court. It was a very modest beginning, but by comparison with progress toward justice in the preceding nearly three hundred years, it was a great leap forward.

The 1791 statute appears to have been a temporary measure, designed to give the law officers the time they needed to prepare and present to Parliament a bill to create a proper court. Such a bill was presented the very next year. That resulted in the creation of The Supreme Court of Judicature of the Island of Newfoundland. That court was created as a court of criminal and civil jurisdiction,

“… with full power and authority to hold plea of all crimes and misdemeanours committed on the island of Newfoundland, and on the islands and seas to which ships and vessels repair from the island of Newfoundland … in the same manner as plea is holden … in England … and full power and authority to hold plea … of all suits and complaints of a civil nature … and determine such … according to the law of England …”

The Act also provided for the appointment of surrogate courts “… in different parts of the island of Newfoundland …” The court was to have a chief justice appointed by the Crown. The first Chief Justice was John Reeves. However, like the 1791 Court, its statutory life was one year. In his report, filed after the first year, Chief Justice Reeves wrote that “The great and pressing evil at Newfoundland, has been, and still is, the want of a firm and regular administration of justice.” He went on to express the view that the experiment with the courts of 1791 and 1792 was a success and the court should now be made perpetual. The legislation was renewed each year until 1809 when it was made perpetual.

A new Judicature Act was passed by the UK Parliament in 1824. The court to be instituted under that Act was to have: “all civil and criminal jurisdiction whatever in Newfoundland…” and was to have that jurisdiction “as fully and amply, to all intents and purposes, as His Majesty’s Courts of King’s Bench, Common Pleas, Exchequer and High Court of Chancery in … England have … and be a Court of Oyer and Terminer…”

In other words, it was to have the totality of the jurisdiction possessed by all the trial courts of England. The Royal Charter, of 1825, which brought into being the court authorized by the 1824 Act, defined the nature and character of the Supreme Court of this jurisdiction, as it existed from that date until 1975. During that period it was styled the “Supreme Court of Newfoundland”.

By the Judicature Amendment Act of 1974 provision was made for the continuation of the Court in two divisions, “an appeal division to be called the Court of Appeal” and “a Trial Division”. At that time the Court of Appeal was constituted of three judges, the Chief Justice of Newfoundland and Labrador and two other judges of appeal. It started operation as a separate division in 1975.

Today the Court has six judges, and occasionally more, should one or more judges, otherwise entitled to retire, choose to stay on in a supernumerary status. The current version of the Judicature Act, being chapter J-4 of the 1990 Revised Statutes, specifies that the Court is continued with all civil and criminal jurisdiction conferred by the 1824 Judicature Act and the 1825 Royal Charter. There is no doubt, however, that its real beginning was the temporary 1791 Judicature Act, which led to “The Supreme Court of Judicature for the Island of Newfoundland”, brought into being in 1792.