View source for Lyman Duff

{{Short description|Chief Justice of Canada from 1933 to 1944}}
{{Infobox officeholder
| honorific-prefix    = [[The Right Honourable]]
| name                = Sir Lyman Duff
| honorific-suffix    = {{post-nominals|country=CAN|PC|GCMG|size=100%}}
| image               = Lyman Poore Duff.jpg <!--Topley Studio Fonds / Library and Archives Canada / PA-027987-->
| imagesize           = 
| caption             = Duff in 1910
| order               = 8th
| office              = Chief Justice of Canada
| termstart           = March 17, 1933
| termend             = January 6, 1944
| nominator           = [[R. B. Bennett|Richard B. Bennett]]
| appointer           = [[Earl of Bessborough]]
| predecessor         = [[Francis Anglin]]
| successor           = [[Thibaudeau Rinfret]]
| office2             = [[Puisne Justice]] of the [[Supreme Court of Canada]]
| termstart2          = September 27, 1906
| termend2            = March 17, 1933
| nominator2          = [[Wilfrid Laurier]]
| appointer2          = [[Earl Grey]]
| predecessor2        = [[Robert Sedgewick (jurist)|Robert Sedgewick]]
| successor2          = [[Frank Joseph Hughes|Frank Hughes]]
| birth_name          = Lyman Poore Duff
| birth_date          = {{birth date|1865|1|7|mf=y}}
| birth_place         = [[Meaford, Ontario|Meaford]], [[Canada West]]
| death_date          = {{death date and age|1955|4|26|1865|1|7|mf=y}}
| death_place         = [[Ottawa]], [[Ontario]]
| spouse              = 
| alma_mater          = [[University of Toronto]]<br/>[[Osgoode Hall Law School]]
}}

'''Sir Lyman Poore Duff''', {{post-nominals|country=GBR|PC|PCc|GCMG|size=100%}} (7 January 1865 &ndash; 26 April 1955) was a Canadian lawyer and judge who served as the eighth [[Chief Justice of Canada]]. He was the longest-serving justice of the [[Supreme Court of Canada]],<ref>{{cite web| url=https://www.thecanadianencyclopedia.ca/en/article/sir-lyman-poore-duff|title=Sir Lyman Poore Duff | author=David Ricardo Williams|publisher=[[The Canadian Encyclopedia]]|accessdate=August 26, 2019}}</ref> until [[Beverley McLachlin]]’s 17-year tenure from 2000-2017.<ref>{{Cite web |last=reporter |first=Tonda MacCharles Ottawa Bureau |date=2017-06-12 |title=Chief Justice Beverley McLachlin to retire from Supreme Court of Canada |url=https://www.thestar.com/news/canada/chief-justice-beverley-mclachlin-to-retire-from-supreme-court-of-canada/article_258422d3-e31d-55e3-841d-9a8a7033b384.html |access-date=2024-12-16 |website=Toronto Star |language=en}}</ref>

== Early life and career ==
Born in [[Meaford, Ontario|Meaford]], [[Canada West]] (now [[Ontario]]) to a [[Congregationalist]] minister, Duff received a [[Bachelor of Arts]] in [[mathematics]] and [[metaphysics]] from the [[University of Toronto]] in 1887. After graduation, he taught at [[Barrie Central Collegiate Institute|Barrie Collegiate Institute]] while studying for the bar.{{sfn|Campbell|1974}} Duff later took courses at [[Osgoode Hall Law School]] and was called to the [[Law Society of Upper Canada|Ontario Bar]] in 1893.{{sfn|Campbell|1974}}

Duff practised as a lawyer in [[Fergus, Ontario]], after being called to the bar.{{sfn|Campbell|1974}} In 1895, Duff moved to [[Victoria, British Columbia]], and he continued his career there. In 1895, he was appointed [[Queen's Counsel]] (Q.C.), which became King's Counsel (K.C.) on 22 January 1901 upon the [[death of Queen Victoria]].{{sfn|Campbell|1974}} In 1903, he took part, as junior counsel for Canada, in the [[Alaska boundary dispute#Arbitration|Alaska Boundary arbitration]].

== Justice of the Supreme Court of British Columbia ==
In 1904, he was appointed a puisne judge of the [[Supreme Court of British Columbia]].

== Puisne Justice of the Supreme Court of Canada ==
[[Image:Lyman Duff.jpg|120px|thumb|left|Bust of Duff in the [[Supreme Court of Canada]] building.]]

On September 27, 1906, [[Prime Minister of Canada|Prime Minister]] [[Wilfrid Laurier]] nominated Duff for appointment to the Supreme Court of Canada following the death of Justice [[Robert Sedgewick (judge)|Robert Sedgewick]] on August 4, 1906.{{sfn|Snell|Vaughan|1985|pp=90–91}} Duff's appointment was well received by the legal community due to his good reputation and name recognition across Canada.{{sfn|Snell|Vaughan|1985|p=91}}

Biographer Ricardo Williams notes that Duff did not immediately engage with the Court's work, instead in early cases he chose to write short decisions agreeing with another justice.{{sfn|Williams|1984|p=67}} Duff wrote his first decision four months after his appointment.{{sfn|Williams|1984|p=67}}<ref group="ps">{{cite CanLII|litigants=McNeil v Fultz |link= |year=1906|court=CanLII |num=41|format=canlii |pinpoint= |parallelcite=(1906) 38 SCR 198 |date=|courtname=auto|juris=}}</ref>

On January 14, 1919, he was appointed to the [[Privy Council of the United Kingdom]].<ref>Appointment notice at {{London Gazette |issue=31427  |date=1 July 1919 |page=1 }}</ref> Duff was the first and only Puisne Justice of the Supreme Court of Canada to be appointed to the Imperial Privy Council.{{sfn|Williams|1984|p=98}} In 1924, he was elected as an honorary [[bencher]] of [[Gray's Inn]], at the recommendation of [[F. E. Smith, 1st Earl of Birkenhead|Lord Birkenhead]].<ref name=":0" />

In the ''[[Board of Commerce case]]'' (1920), a deadlocked 3–3 Supreme Court was unable to determine the validity of legislation dealing with the federal government's residue power under the [[peace, order, and good government]] provision of the ''British North America Act''. Duff ruled against the validity of the legislation, and did not bind himself to the Privy Council's jurisprudence in the ''[[Local Prohibition Case]]''.{{sfn|Snell|Vaughan|1985|p=141}} The Privy Council on appeal followed some of Duff's reasoning. Snell and Vaughan note that ''Board of Commerce'' represents Duff's emergence as a justice with his own views that went on to influence Canadian constitutional law.{{sfn|Snell|Vaughan|1985|p=141}}

In the ''[[Persons case]]'', Duff in separate reasons from Chief Justice Anglin, agreed that women were not persons for the purpose of appointment to the [[Senate of Canada]]. Rather than Anglin's narrow originalist interpretation of the framer's intent for the ''Constitution Act, 1867'', Duff did not take a direct stand on the issue. Instead he argued the doctrine of [[Parliamentary sovereignty|parliamentary supremacy]] imported under the [[Preamble to the Constitution Act, 1867|preamble to the ''Constitution Act, 1867'']] and the [[peace, order and good government]] residual power of [[Section 91 of the Constitution Act, 1867|section 91]] permitted the Canadian Parliament to set the qualification standards of Senators.{{sfn|Bushnell|1992|p=223}}<ref group="ps">{{cite CanLII|litigants=Reference re meaning of the word “Persons” in s.24 of British North America Act |link=Persons case |year=1928 |court=CanLII |num=55 |format=canlii |pinpoint= |parallelcite=(1928) SCR 276 |date=|courtname=auto|juris=}}</ref> Ian Bushnell notes that Duff's reasons were politically unpalatable for Prime Minister King.{{sfn|Bushnell|1992|p=223}}

During his years as a puisne justice, Duff appears to have not made any contribution of civil law cases coming out of Quebec.{{sfn|Bushnell|1992|p=237}} He did not provide reasons in two leading civil law cases in 1920, and later in a 1933 speech, he noted he was not competent to discuss the development of civil law.{{sfn|Bushnell|1992|p=237}}

In 1931, he served as [[Administrator of the Government of Canada]] (acting Governor-General of Canada) between the departure of [[Vere Brabazon Ponsonby, 9th Earl of Bessborough|Lord Bessborough]] for England and the arrival of [[John Buchan, 1st Baron Tweedsmuir|Lord Tweedsmuir]].{{sfn|Campbell|1974}} Duff took on the position, as the Chief Justice was unavailable. As Administrator, Duff opened Parliament and read the [[Speech from the throne|Speech from the Throne]] on 12 March 1931, becoming the first Canadian-born person to do so.<ref>{{Cite web |title=Calvin Coolidge Says, March 14, 1931 |url=https://coolidgefoundation.org/resources/calvin-coolidge-says-march-14-1931/ |access-date=2025-06-30 |website=coolidgefoundation.org}}</ref>

In 1931, Duff was named chairman of the Royal Commission into Railways and Transportation in Canada. When the commission completed its final report in 1932, Duff under severe stress suffered what Prime Minister [[R.B. Bennett]] described as a "complete [[nervous breakdown]]" and was hospitalized. The Prime Minister believed the situation was so severe that Duff would "not likely ever sit on the bench again."{{sfn|Snell|Vaughan|1985|p=133}}{{sfn|Williams|1984|pp=154–156}}

== Chief Justice of Canada ==

In poor health, Chief Justice [[Francis Alexander Anglin]] resigned on February 28, 1933, at the age of 67. He died three days later.{{sfn|Snell|Vaughan|1985|p=146}}{{sfn|Bushnell|1992|p=250}} On March 17, 1933, Prime Minister [[R.B. Bennett]] selected Duff as the 8th Chief Justice of Canada.{{sfn|Snell|Vaughan|1985|p=146}} There was little evidence that Bennett considered other candidates for the appointment, but Bennett was cautious about the appointment due to Duff's poor health. Duff's appointment was popular among the legal community.{{sfn|Snell|Vaughan|1985|p=146}}

Duff had been passed over for the role of Chief Justice in 1924 by Prime Minister Mackenzie King, owing to his support of the [[Robert Borden]] government and his alcoholism.{{sfn|Snell|Vaughan|1985|p=122}} It had been rumored that Duff was intoxicated at the opening of Parliament and the funeral of Chief Justice Davies, and Mackenzie King wrote that Duff's drinking went on for "sprees for weeks at a time."{{sfn|Bushnell|1992|p=215}} The appointment of Anglin serious hurt Duff's feelings and he considered resigning from the Court.{{sfn|Snell|Vaughan|1985|p=124}} Anglin had written the Justice Department advising against appointing Duff to the role of Chief Justice, and resentment remained between Anglin and Duff during the term.{{sfn|Snell|Vaughan|1985|p=124}}

He was made a Knight Grand Cross of the [[Order of St. Michael and St. George]] the following year<ref>Appointment notice at {{London Gazette |issue=34010 |date=29 December 1933 |page=5 |supp=y }}</ref> as a result of Prime Minister [[R. B. Bennett|Richard Bennett]]'s temporary suspension of the [[Nickle Resolution]].<ref group="ps">[https://parl.canadiana.ca/view/oop.debates_HOC1705_01/100 ''Hansard'' (House of Commons Debates, 17th Parliament, 5th Session: Vol. 1), page 99.] </ref><ref>{{Cite web |last=CraigBaird |date=2020-06-20 |title=Canada And Knighthoods |url=https://canadaehx.com/2020/06/20/canada-and-knighthoods/ |access-date=2025-06-30 |website=Canadian History Ehx |language=en-US}}</ref>

When [[Governor General]] Lord Tweedsmuir died in office on February 11, 1940, Chief Justice Duff became the [[Administrator of the Government]] for the second time.{{sfn|Campbell|1974}} He held the office for nearly four months, until [[King George VI]] appointed [[Alexander Cambridge, 1st Earl of Athlone]] as Governor General on June 21, 1940.{{sfn|Campbell|1974}} Duff was the first Canadian to hold the position, even in the interim. A Canadian-born Governor General was not appointed until [[Vincent Massey]] in 1952.<ref>{{Cite web |last=Granatstein |first=J. I. |date=2008-06-24 |title=Vincent Massey |url=https://www.thecanadianencyclopedia.ca/en/article/massey-charles-vincent |access-date=2025-06-30 |website=www.thecanadianencyclopedia.ca |language=en}}</ref>

Duff also heard more than eighty appeals on the [[Judicial Committee of the Privy Council]], mostly Canadian appeals; however, he never heard Privy Council appeals from the Supreme Court of Canada while he served on the latter, otherwise, it would have been seen as a conflict of interest. The last Privy Council appeal heard by Duff was the 1946 [[Reference Re Persons of Japanese Race]].<ref name=":0">{{Cite ODNB|id = 32920|title = Duff, Sir Lyman Poore (1865–1955), judge in Canada}}</ref>

In 1942, Duff served as the sole member of a [[Royal Commission]] constituted to examine the Liberal government's conduct in relation to the [[Battle of Hong Kong|defence of Hong Kong]]. The resulting report, which completely exonerated the government, proved to be controversial, and was seen by many as a whitewash.{{citation needed|date=September 2019}}

Upon reaching the mandatory retirement age for judges in 1939, his term of office was extended by three years by a special Act of Parliament;<ref group="ps">{{Cite canlaw|short title  =An Act respecting the Chief Justice of Canada|abbr =S.C.|year =1939 (1st sess.)|chapter =14|link=https://archive.org/details/actsofparl1939v01cana/page/89/mode/1up}}</ref> in 1943, his term of office was extended for another year by Parliament.<ref group="ps">{{Cite canlaw|short title  =An Act to amend an Act respecting the Chief Justice of Canada|abbr =S.C.|year =1943-44|chapter =1|link=https://archive.org/details/actsofparl194344v01cana/page/3/mode/1up}}</ref><ref name=":0" /> He retired as Chief Justice in 1944.<ref>{{Cite web |title=Supreme Court of Canada {{!}} The Right Honourable Sir Lyman Poore Duff, P.C., G.C.M.G. |url=https://www.scc-csc.ca/about-apropos/judges-juges/list-liste/lyman-poore-duff/ |access-date=2025-06-30 |website=www.scc-csc.ca}}</ref>

== Legacy ==
[[Image:LymanDuffBust.jpg|thumb|right|Duff poses with his bust at its official unveiling on September 5, 1947. In the photo (from left to right): [[James Lorimer Ilsley|J.L. Ilsley]], [[James Chalmers McRuer|J.C. McRuer]], Duff, John T. Hackett, K.C., Prime Minister [[W.L. Mackenzie King]] and Chief Justice [[Thibaudeau Rinfret]].]]

Duff employed a conservative form of [[statutory interpretation]]. In a 1935 Supreme Court of Canada judgment, he detailed how judges should interpret statutes:

{{quote|
The judicial function in considering and applying statutes is one of interpretation and interpretation alone. The duty of the court in every case is loyally to endeavour to ascertain the intention of the legislature; and to ascertain that intention by reading and interpreting the language which the legislature itself has selected for the purpose of expressing it.<ref group="ps">{{cite CanLII|litigants=The King v Dubois |link= |year=1935 |court=CanLII |num=1 |format=canlii |pinpoint=381 |parallelcite=[1935] SCR 378 |date= May 13, 1935 |courtname=auto|juris=}}</ref>
}}

Duff has been called a "master of trenchant and incisive English," who "wrote his opinions in a style which bears comparison with [[Oliver Wendell Holmes Jr.|Holmes]] or [[F. E. Smith, 1st Earl of Birkenhead|Birkenhead]]."<ref>{{cite journal |author= W.H. McConnell|year= 1968|title= The Judicial Review of Prime Minister Bennett's 'New Deal|journal= [[Osgoode Hall Law Journal]]|volume= 6|pages= 39–86|publisher= [[Osgoode Hall Law School]]|doi= 10.60082/2817-5069.2376|doi-access= free}} at 51</ref> A former assistant of Duff, Kenneth Campbell, argued that Duff was "frequently ranked as the equal of Justices Holmes and [[Louis Brandeis|Brandeis]] of the [[United States Supreme Court]]".{{sfn|Campbell|1974|p=243}} [[Gerald Le Dain]], an academic and later a judge on the Supreme Court, asserted that Duff "is generally considered to have been one of Canada's greatest judges."{{sfn|Le Dain|1974|p=261}} Other writers have taken a less favourable view, instead arguing that Duff's reputation is largely unearned; his biographer concluded that he was not an original thinker, but essentially a "talented student and exponent of the law rather than a creator of it."{{sfn|Bushnell|1992|p=265}}

More recent commentary has focused on Duff's [[legal formalism]] and its effect on [[Canadian federalism]]. A later successor [[Chief Justice of Canada]], [[Bora Laskin]] attacked Duff's decisions, arguing that Duff used [[circular reasoning]] and hid his policy-laden decisions behind the doctrine of ''[[stare decisis]]''.<ref>{{cite journal |author= Bora Laskin |author-link= Bora Laskin |year= 1947|title= 'Peace, Order and Good Government' Re-Examined|journal= Canadian Bar Review|volume= 25|pages= 1054|publisher= [[Canadian Bar Association]]}}, at 1069-70.</ref> As well, Lionel Schipper noted that, in reviewing Duff's judgments, it was:

{{quote|
apparent that he has given certain factors very little consideration in formulating his decisions. ... In constitutional cases, not only are the actual facts of the case significant but the surrounding social, economic and political facts are equally significant. A shift in these latter factors is as important in deciding a case as any other change in the facts. It is this consideration that Chief Justice Duff ignored.<ref>Schipper 1956, at 11</ref>
}}

In their 1985 review of the history of the Supreme Court of Canada, Snell and Vaughan note that Duff was "most famous justice in the history of the institution [of the Supreme Court of Canada]."{{sfn|Snell|Vaughan|1985|p=90}}

== Honours ==

In 1923, [[Mount Duff (Yakutat)]], also known as Boundary Peak 174, was named after him.<ref name="gnis">{{cite gnis |id=1420648 |name=Mount Duff |accessdate=2018-05-16}}</ref>

== References ==
{{Reflist|2}}

=== Primary sources ===
{{Reflist|group="ps"}}

=== Works cited ===
{{refbegin}}
* {{Cite book|title = Captive Court: A Study of the Supreme Court of Canada|last = Bushnell|first = Ian|publisher = McGill-Queen's University Press|year = 1992|isbn = 978-0-7735-0851-4 |url=https://archive.org/details/captivecourtstud0000bush |url-access=registration}}
* {{cite journal |last1=Campbell |first1=W. Kenneth |title=The Right Honourable Sir Lyman Poore Duff, P.C., G.C.M.G.: The Man as I Knew Him |journal=Osgoode Hall Law Journal |date=1974 |volume=12 |issue=2 |pages=243–260 |doi=10.60082/2817-5069.2236 |id=[https://canlii.ca/t/7nkm9 1974 CanLIIDocs 524]|doi-access=free }}
* {{Cite book|title = The Supreme Court of Canada: History of the Institution|last1 = Snell|first1 = James G. |last2 = Vaughan|first2 = Frederick |publisher = The Osgoode Society|year = 1985|isbn = 978-0-8020-3417-5 |location = Toronto|url = https://archive.org/details/supremecourtofca0000snel|url-access = registration}}
* {{cite book |last1=Williams |first1=David Ricardo |title=Duff, a life in the law |date=1984 |publisher=University of British Columbia Press |isbn=0-7748-0203-0 |url=https://archive.org/details/dufflifeinlaw00will |url-access=registration}}
{{refend}}

== Further reading ==
{{refbegin}}
* {{cite journal |last1=Brown |first1=R. Blake |title=The Supreme Court of Canada and Judicial Legitimacy: The Rise and Fall of Chief Justice Lyman Poore Duff |journal=McGill Law Journal |date=2002 |volume=47 |issue=3 |pages=559–591 |id=[https://canlii.ca/t/2b9c 2002 CanLIIDocs 41]}}
* {{cite journal |last1=Gosse |first1=Richard |title=The Four Courts of Sir Lyman Duff |journal=Canadian Bar Review |date=1975 |volume=53 |issue=3 |pages=482–518 |id=[https://canlii.ca/t/sn5m 1975 CanLIIDocs 26]}}
* {{cite journal |last1=Le Dain |first1=Gerald |author1-link=Gerald Le Dain |title=Sir Lyman Duff and the Constitution |journal=Osgoode Hall Law Journal |date=1974 |volume=12 |issue=2 |pages=261–338 |doi=10.60082/2817-5069.2237 |id=[https://canlii.ca/t/7nkmb 1974 CanLIIDocs 525]|doi-access=free }}
{{refend}}

==External links==
* [https://www.scc-csc.ca/judges-juges/bio-eng.aspx?id=lyman-poore-duff Supreme Court of Canada biography]
* [https://archive.today/20130116005759/http://www.collectionscanada.gc.ca/pam_archives/public_mikan/index.php?fuseaction=genitem.displayItem&lang=eng&rec_nbr=102039&rec_nbr_list=102039 Lyman Poore Duff fonds]

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{{succession box | title=Acting [[Governor General of Canada]] or [[Administrator of the Government]] | before=[[John Buchan, 1st Baron Tweedsmuir|The Lord Tweedsmuir]] | after= [[Alexander Cambridge, 1st Earl of Athlone|The Earl of Athlone]] | years=1931 and 1940}}
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[[Category:Chief justices of Canada]]
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