Advocate Jan 2014

THE ADVOCATE VOL. 72 PART 1 JANUARY 2014
147
advised letter to the Judges of the Supreme Court agreeing with the resolution
and pointing out that in present situation some judges were wearing
wigs and some were not and suggesting that such conduct was “unseemly”.
The Benchers then went on a little further and suggested that the Judges
consider the question “seriously”.
This resulted in “wigs on the green” and a letter of April 4, 1904, from
L.G. McPhillips, Q.C., one of the Benchers, to the Secretary advising that
“Davis” (E.P. Davis, Q.C.), had told him that Hunter and Duff were very
angry about the resolution and the Benchers letter, particularly in applying
the word “unseemly” to the Judges and, also, in suggesting that the Judges
take the matter “seriously”.
For once the Honourable Mr. Justice Martin was in tandem with the
Benchers; he writing to the Honourable the Attorney-General 17 March,
1905 advising of the concern of the profession and the Benchers and
expressing himself in part as follows:
Seeing that this motion seeks to curtail the personal liberty of the Judges
to wear their “customary” and time-honoured Court apparel, I beg to formally
protest against it, not only on the grounds that Judges being Federal
Officials exercising jurisdiction in the Provincial Courts (except the
Admiralty Court which is Federal) are not subject to such personal supervision,
but also because there is no precedent from such legislation affecting
the courts in the parliamentary annals of our country. Personally I
feel that to even formally propose such personal legislation is at once an
indignity to the Bench and a reflection upon the proposer. I had thought
that sumptuary legislation had disappeared some centuries ago with the
Blue Laws of New England, which are always cited as odious examples of
abhorrent legislation which sought to restrain personal liberty even in
the matter of apparel.
Mr. Justice Martin further pointed out that the majority of his brothers
were in accord with his views and concluded “it is at once most inconsistent
and anomalous that the profession in Canada should adopt the costume of
the profession in England and yet discard that part of it which is its most
distinctive and honoured mark!”
Unfortunately the “majority” did not include the one man who mattered,
Chief Justice Hunter, who, apart from a certain lack of enthusiasm for Mr.
Justice Martin, was not in any event dedicated to the preservation of this
particular part of court attire. Accordingly the Chief Justice, majority or no,
exercised his autocratic privilege and ordered that the wigs be discontinued.
It is related that the following morning eminent counsel, having imbibed
a brace of pre-trial heart starters, cantered into Court doffing his wig to all
and sundry. Unfortunately, nearing the Bench, he tripped and crashed
heavily—ah well!