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That's History: When judges never retired

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In April 2010, U.S. Supreme Court Justice John Paul Stevens will turn 90. If he stays in office 10 more months, he’ll outlast Oliver Wendell Holmes Jr. to become the oldest judge ever to sit on that court. christopher-moore.jpgLife tenure remains the rule in American courts. Stevens might yet be around for another 10 years.

Despite the latest controversy over judicial retirements at the Federal Court, it’s been a while since such elderly judges sat in Canada.

Canadian judges used to remain “during good behaviour,” but their life tenures came to an end at our Supreme Court in 1927 and at the provincial superior courts in 1961.

A simple statutory amendment imposed retirement at 75 on judges at the top court, including justice John Idington, who was already 86. His senility and absenteeism had helped provoked the change.
It was more complicated for provincial superior court judges.

Their lifetime appointments had been written into the British North America Act of 1867. Canada, then unable to amend its own Constitution, had to ask the British Parliament to make the change. It did, and the deed was done within a year.

Some of the judges affected by the new rule complained it was unconstitutional to end their life appointments retroactively. But judges didn’t sue in those days, and the rule stuck.

No Supreme Court of Canada judge seems to have sat past age 87, a record achieved by justice John Wellington Gwynne at the turn of the century. As chief justice of Canada, Lyman Duff got an exemption from the rules, allowing him to retire on his 79th birthday in 1944. He died at 90. Justice Emmett Hall died at 96 but, having lived in the mandatory retirement era, he left the bench at 75.

Today, longevity on the bench isn’t about living longer; it’s about getting appointed earlier. In about three years, Beverley McLachlin will become the longest-serving chief justice in our history and she will still have six more years before mandatory retirement looms.

From the era before mandatory retirement, a less-than-exhaustive search turns up a few notably geriatric judges. The champion may be Sir William Mulock, who sat as chief justice of Ontario until 1936, when he was 92.

More or less tied with him was his colleague, justice William Riddell, who died in office in 1945 also at 92.
Right behind them is the wonderfully named Sampson Salter Blowers. Blowers remained chief justice of Nova Scotia until 1833, when he was 91. He lived to 100.

Blowers held on to his position partly because he feared, correctly, that the government wouldn’t grant him a pension. Future judges didn’t have that problem as pensions for federally appointed judges began in 1869.

Lawyers used to have lurid stories of elderly judges afflicted with hearing, bowel, bladder or memory problems who stayed on far too long. John Arnup, for example, recalled that when Mulock, Riddell, and other older men were sitting on the Ontario Court of Appeal in the 1930s, lawyers who had to face its panels of deaf, quarrelsome, and doddery judges called it “murderers’ row.”

But in fact, mandatory retirement may not have affected judges’ departures that much. In one provincial superior court, the average age of departure through both deaths and retirements was around 73 before mandatory retirement.

Then there are the deputy judges of the Federal Court, who were discovered last summer sitting until all ages allegedly in defiance of the Federal Courts Act and the Constitution.

“If the Constitution Act doesn’t apply to judges, I don’t know who it applies to,” said lawyer Rocco Galati at the time of his recent complaint against the jurisdiction of the deputy judges. That case failed last week when Federal Court Chief Justice Allan Lutfy ruled they don’t actually hold office as judges of the court.

The Federal Court deputies, who are eager to stay on, might draw inspiration from Julius Title. When he died of a heart attack in 2008, Title was officially a retired California state judge. Nevertheless, until his death, he was still regularly filling vacancies in the courts. He was 93.

Christopher Moore’s most recent book is McCarthy Tétrault: Building Canada’s Premier Law Firm. His web site is www.christophermoore.ca.

For more on this story, see "Judges can sit past 75, court rules" in this week's Inside Story

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