History of the Court of Appeal

Early Legal History of Newfoundland and Labrador

The Indigenous peoples of Newfoundland and Labrador operated according to customary laws. Their traditional legal systems continued operating long after European contact and continue to have significance today.[1]

The first European legal systems in Newfoundland were also customary. The sixteenth-century fishery was multicultural and multilingual, with English, Norman, Breton, Galician, Basque, and Portuguese fishers. Somehow the fishers quickly worked out a common system for resolving disputes: each harbour was ruled by a fishing admiral, the captain of the first ship to arrive in the spring.[2]

As England consolidated control over much of the island coastal fishery, it gradually integrated the customary rules of the fishery into the English legal system. Fishing admirals were formalized by King William’s Act, and a rudimentary appeal system was created, so that fishing admirals’ decisions could be appealed to a naval officer[3]. Capital crimes were assigned to English courts.[4] As settlement and colonial government grew over the eighteenth century, the fishing admirals were supplemented with winter magistrates, surrogate courts, and courts of oyer and terminer.

Establishing a Superior Court and Appeals

The next step came in 1791 with the establishment of a superior court of civil jurisdiction.[5] The court was temporary and had to be renewed periodically. On its first renewal in 1792, its powers were significantly expanded, creating a superior court of civil and criminal jurisdiction.[6] The new Supreme Court of Judicature had the power to hear appeals from surrogate courts.[7] In that sense it is the first direct ancestor of the Court of Appeal of Newfoundland and Labrador.[8]

The Court was renewed periodically; then in 1809 it was made permanent[9]. In 1824 it was restructured as the Supreme Court of Newfoundland with three judges.[10] When one judge delivered a decision while travelling alone on circuit, his decision could be appealed to the whole Court.[11] This represented another advance in appellate law: for the first time, decisions of superior courts could be appealed within the province.

The 1824 statute also inaugurated a peculiarity that would define appeals in Newfoundland and Labrador for over a century. Because there were only three judges on the court, the Court could not set a three-judge panel to hear an appeal unless it included the judge appealed from. If the other two judges disagreed, the judge appealed from had the deciding vote.[12] It was rare—but not unheard of—for the trial judge to disagree with his own decision.[13]

A three-member court created special difficulties when, as was inevitable in a small colony, one of the judges had a conflict of interest. There was no alternative but to have the conflicted judge hear the appeal.[14]

In 1832 the Supreme Court of Newfoundland was made permanent, and legislative authority over it was transferred to the new Newfoundland legislature.[15] Its basic institutional structure lasted with little change for a hundred and thirty years. It was unaffected by repeated constitutional changes: the arrival of Responsible Government, Dominion status, Commission of Government, and finally Confederation. On the legal side it was unaffected by the abolition of the forms of action, the merger of law and equity, and the 1870s pleadings reforms.

Separating Appeals from Trials

The next set of reforms were aimed at separating appeals from trials. The first step in that change came in 1963 when a fourth judge, James Higgins J., was finally appointed to the Supreme Court.[16] The Supreme Court could now set a whole fresh panel of judges to hear an appeal. The trial judge no longer sat in appeal from himself.

In 1974 the Supreme Court of Newfoundland was separated into two divisions.[17] Appeals would no longer be heard by three trial judges: instead there was to be a separate, specialized appellate bench.

At first the new court had only two members, Chief Justice Furlong and Justice Morgan, and thus was unable to set a three-judge panel to hear an appeal. For eight months it put matters over and dealt with interlocutory issues. In February 1976 Justice Gushue was appointed and the court began hearing and deciding appeals a month later.[18]

A fourth judge was added in 1982, and a fifth and sixth in 1986.[19] The first woman appointed to the appeal court was the Hon. Margaret Cameron, appointed in 1992.[20] The first judge appointed from the appeal court to the Supreme Court of Canada was Rowe J., in 2016.

The final step in separating appeals from trials came in 2018. The Court of Appeal of Newfoundland and Labrador ceased being a division of the Supreme Court and became an independent institution of its own. It was the last Canadian appeal court to be separated from its trial division.

The Court of Appeal of Newfoundland and Labrador Building

The Court of Appeal of Newfoundland and Labrador Building, formerly known as the Union Bank Building, stands on the site of the first prison in St. John’s. A wooden structure, the prison’s construction in 1730 was a significant step in the development of a local, year-round legal system based on English law.[21]

In the early nineteenth century, local courts meant more local sentences and more local prisoners. The old building was rebuilt in stone in 1829, but even the expanded building was too small. In any case it was destroyed in the Great Fire of 1846.[22] Four prisoners had been hanged there between 1832 and 1834: Tobias Mandeville, Arthur Springer, Catherine Snow and Peter Downing.

The present building was built in the early 1860s when the Newfoundland Government leased the land to the Union Bank of Newfoundland.[23] It is made of brick with sandstone trim in the Classical Revival style, with high ceilings and arched windows. Originally its windows were protected by built-in roller-type iron shutters, similar to an old-fashioned roll-top desk. These shutters saved the building from the Great Fire of 1892, leaving no openings through which embers could enter. It is one of the few buildings in the area to survive.[24]

Two years after the Union Bank building survived the fire, the bank itself collapsed in the Bank Crash of 1894.[25] The building reverted to the government and housed several government departments over the years. In 1975–1976 it was renovated to house the new Appeal Division, and it has been an appeal court ever since.

The building has changed little since its initial construction. There was a small addition to the back of the building sometime shortly after 1892, and a new roof and windows were installed in the early 1980s, replacing the old iron shutters. In the early 21st century the building was made more accessible, with an elevator inside and a ramp outside, and the old fire exit was upgraded. Otherwise, it stands today as it was when built.

Prepared by Michael Collins, Legal Research Officer

[1]     Little is known about Beothuk customary law. For some information on the Inuit and Innu justice systems, see John L. Joy, “Caubvik and Captain George Cartwright’s Legal Regimes: A Comparative Study of Traditional Aboriginal and Settler Justice in 18th Century Labrador”, in Melvin Baker, Christopher Curran, and J. Derek Green, eds., Discourse and Discovery: Sir Richard Whitbourne Quatercentennial Symposuim, 1615–2015 And Beyond (St. John’s, NL: SS Daisy Legal-History Committee, 2017), at 55–82 (“Whitbourne Symposium”). Some information on Mi’kmaq legal systems is available in Leslie Jane MacMillan, “Koqqwaja’ltimk: Mi’kmaq Legal Consciousness”, available online: http://www.collectionscanada.gc.ca/obj/s4/f2/dsk4/etd/NQ79241.PDF.

[2]     See Peter E. Pope, “The Admiral System: Customary Law and Conflict Management, 1500–1700”, Whitbourne Symposium at 27–38. For more on how the fishing admiral system coexisted with settlement attempts in the seventeenth century, see Philip Girard, “Newfoundland’s Constitution from Contact to King William’s Act”, Whitbourne Symposium at 39–51; Hon. J. Derek Green, “Sir Richard Whitbourne and the Rule of Law in Early Colonial Newfoundland: The First Court of Vice-Admiralty in the New World”, Whitbourne Symposium at 17–26;

[3]     10 & 11 William III, cap. 25, s. 15. See also Jerry Bannister, The Rule of the Admirals: Law Custom, and Naval Government in Newfoundland, 1699–1832 (Toronto, ON: Osgoode Society for Canadian Legal History, 2003).

[4]              King William’s Act, s. 13.

[5]              Judicature Act, 1791, 31 Geo. III., cap. 29.

[6]              Judicature Act, 1792, 32 Geo. III. Cap. 46.

[7]              Judicature Act, 1792, s. 5.

[8]     The legislation only allowed appeals from judgments of over forty pounds. Chief Justice Forbes, somewhat ambitiously, held that the Court could hear appeals of judgments of less than forty pounds: Clift v. Holdsworth (1819), 1 Nfld. L.R. 167. Tucker C.J. reversed this, holding that there was no power to appeal judgments of less than forty pounds, but that the Court could review smaller orders using the prerogative writs: Hunter & Co. v. Hernaman and Howard (1823), 1 Nfld. L.R. 285.

[9]     33 Geo. III. C. 76 (1793); 34 Geo. III. C. 44 (1794); 35 Geo. III, c. 25 (1795); 36 Geo. III, c. 37 (1796); 39 Geo. III, c. 16 (1799); 39 Geo. III, c. 17 (1799); 43 Geo. III, c. 29 (1803); 46 Geo. III, c. 29 (1806); An Act for Establishing Courts of Judicature in the Island Of Newfoundland and the Islands adjacent; and for re-annexing part of the Coast of Labrador and the Islands lying on the said Coast to the Government of Newfoundland, 49 Geo. III, cap 27 (1809).

[10]             Judicature Act, 1824, 5 Geo. IV, cap. 67.

[11]             Judicature Act, 1824, s. 13, 15,

[12] The procedures for appeals to the whole court varied over time. Sometimes the appeal would first be heard by the two judges who had not heard it yet, and the trial judge would only be consulted if they disagreed: see, e.g. American Aerated Water Co. Ltd. v. Gadens Ltd. (1948), 16 Nfld. L.R. 194 (Emerson C.J. and Dunfield J. on appeal from Winter J.); and Peckford v. Peckford (1948), 16 Nfld. L.R. 347 (Dunfield and Winter JJ. on appeal from Emerson C.J.) Sometimes the whole court would hear the appeal immediately: see e.g. Currie et al v. MacDonald et al (1948), 16 Nfld. L.R. 365, the decision on the constitutionality of Confederation. Dunfield J. sat in appeal from his own trial decision, said he had “little to add to what I said in my original judgment and have not heard anything in the appeal to lead me to change my views”, and then gave three pages of additional reasons: pp. 420–423.

[13]   See e.g. Young v. Squires (1936), 14 Nfld. L.R. 15, where a court including Kent J. reversed Kent J.’s trial decision, (1935), 13 Nfld. L.R. 350.

[14]   See e.g. Power v. Winter (1952), 30 M.P.R. 131 (Nfld. S.C. en banc), where Winter J. was forced to hear an appeal involving his nephew: Hon. Noel Goodridge, “An Anecdotal History of the Newfoundland Supreme Court and Its Judges”, available online: <www.lewisday.ca/ldlf_files/Anecdotal/anecdotal.pdf>.

[15]   At first the Supreme Court had a single five-year term: Judicature Act, 1824, s. 36. Its initial term was then extended by 10 Geo. IV. C. 17 (1829). It was made permanent by An Act to continue certain Acts relating to the Island of Newfoundland, and to provide for the Appropriation of all Duties which may hereafter be raised within the said Island, 2&3 Wm. IV, c. 78 (1832).

A complete list of the local legislature’s various amendments to the Judicature Act can be found in Newfoundland Law Reform Commission, Legislative History of the Judicature Act 1791-1988, NLRC – IWD4, December 1989, pp. 49-61.

[16]   The position was actually created in 1957 but not filled until 1963: SN 1957, c. 33, s. 3, 4. The trial judge was still entitled to sit “in cases of urgency arising from absence, illness or other cause, or the vacancy in the office of any judge”: s. 27. See also Goodridge, Anecdotal History.

[17]   The Judicature (Amendment) Act, SN 1974, c. 57. The creation of a separate appeal division was opposed by then Chief Justice Furlong: Hon. J. Derek Green, “Remarks On the Occasion of a Special Sitting of the NL Court of Appeal to Mark the 40th Anniversary of the First Sitting of the Court And to Pay Tribute to the Judicial Career of the Hon. James Randell Gushue”, March 17, 2016, available online: www.court.nl.ca/appeal, at footnote 1. The Law Society, on the other hand, was strongly in favour: Minutes of Benchers of the Law Society of Newfoundland, June 29, 1971, October 4, 1971, December 6, 1971, October 2, 1972, June 25, 1974.

[18]   The first cases heard were on March 17: R. v. Vincent Barrington (1975/690); R. v. David Lawrence King (1975/691); R. v. Roy Patrick Conway (1975/689); and R. v. John Joseph Hennebury (1975/688). They were sentence appeals by the Crown, with no conviction appeal filed, but the Court nevertheless quashed all four convictions: Green Remarks, at p. 3. No reasons were filed, but the court minutes indicate the problem was an incurable defect in the original informations, and Gushue J.’s personal bench book indicates that Crown counsel had informed the court that the original informations specified the wrong charges.

[19]   SN 1981, c. 64, s. 1; Judicature Act, 1986, SN 1986, c. 42, s. 156. The fourth judge was the Hon. John Mahoney. The fifth and sixth were the Hon. William W. Marshall  and the Hon. John J. O’Neil: Green Remarks, p. 4.

[20]   The other judges to have sat on the Court are Arthur S. Mifflin (appointed to CA 1979; deceased) ; Noel H. Goodridge (1986; deceased); Geoffrey L. Steele (1989; retired); Margaret A. Cameron (1992; retired); J. Derek Green (1996; still sitting as a supernumerary judge); Clyde K. Wells (1998; retired); Denis M. Roberts (1999; retired); B. Gale Welsh (2001; still sitting); Malcolm H. Rowe (2001; appointed to the SCC 2016); Keith Mercer (2003; deceased); Leo D. Barry (2007; still sitting as a supernumerary judge); Charles W. White (2009; still sitting); Michael F. Harrington (2009; still sitting); Lois R. Hoegg (2010; still sitting); and Francis P. O’Brien (2017; still sitting). The Court has had six chief justices: Robert Furlong (1975–1979); Arthur Mifflin (1979–1986); Noel Goodridge (1986–1996); James Gushue (1996–1998); Clyde Wells (1999–2009) and Derek Green (2009–2017). See Green Remarks, footnote 17.

[21]   Deborah O’Rielly, “Building Report: H.M. Penitentiary”, Heritage Foundation of Newfoundland and Labrador: www.heritagefoundation.ca/media/716/report-h-m-penitentiary.pdf.

[22]   See Jenny Higgins, “The 1846 Great Fire”, Heritage Newfoundland and Labrador: http://www.heritage.nf.ca/articles/politics/st-johns-fire-1846.php.

[23]   Canada’s Historic Places, “Union Bank Building”: http://www.historicplaces.ca/en/rep-reg/place-lieu.aspx?id=2515.

[24]   See Union Bank Building, note 23.

[25]   Heritage 1894, “1894 Bank Crash”: http://www.heritage.nf.ca/articles/economy/1894-bank-crash.php.