Horace Harvey
Encyclopedia
Horace Harvey was a lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...

, jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...

, and a Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...

 of Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...

, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

.

Early and Family Life

Harvey was born in Elgin County, Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....

 on October 1, 1863, to William Harvey, Liberal Member of Parliament
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...

 for Elgin East
Elgin East
Elgin East was a federal electoral district represented in the Canadian House of Commons from 1867 to 1925. It was located in the province of Ontario...

 from 1872–1874, and Sophronia (née) Mack.

A Quaker, he married Nora Lousie Palmerin in Ontario in 1893 . Together they had one son, Alan Burnside Harvey, on April 22, 1899. Alan became a Rhodes Scholar, a lawyer, Queen's Counsel
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...

, Registrar of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

, and editor of Tremeear's Annotated Criminal Code, Canada.

Early career

He received his Bachelor of Arts
Bachelor of Arts
A Bachelor of Arts , from the Latin artium baccalaureus, is a bachelor's degree awarded for an undergraduate course or program in either the liberal arts, the sciences, or both...

 degree in 1886 and a Bachelor of Laws
Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...

 degree from the University of Toronto
University of Toronto
The University of Toronto is a public research university in Toronto, Ontario, Canada, situated on the grounds that surround Queen's Park. It was founded by royal charter in 1827 as King's College, the first institution of higher learning in Upper Canada...

 in 1888. He was admitted to the Ontario Bar the following year and to the Northwest Territories
Northwest Territories
The Northwest Territories is a federal territory of Canada.Located in northern Canada, the territory borders Canada's two other territories, Yukon to the west and Nunavut to the east, and three provinces: British Columbia to the southwest, and Alberta and Saskatchewan to the south...

 Bar, the predecessor to the Law Society of Alberta
Law Society of Alberta
The Law Society of Alberta is the self-regulating body for lawyers in Alberta, Canada.-Purpose:The Law Society is created and governed by the . As a law society, the Law Society is much more than a professional association and every lawyer who practices in Alberta must belong to it...

 in 1893.

Harvey began his career in Calgary, Alberta at the firm of Harvey and McCarthy. In 1896 he was Registrar of Land Titles for Southern Alberta before his appointment as the Deputy Attorney General
Deputy Attorney General
Deputy Attorney General is the second-highest-ranking official in a department of justice or of law, in various governments of the world. In those governments, the Deputy Attorney General oversees the day-to-day operation of the department, and may act as Attorney General during the absence of...

 of the Northwest Territories in 1900, requiring him to move to Regina
Regina, Saskatchewan
Regina is the capital city of the Canadian province of Saskatchewan. The city is the second-largest in the province and a cultural and commercial centre for southern Saskatchewan. It is governed by Regina City Council. Regina is the cathedral city of the Roman Catholic and Romanian Orthodox...

, Saskatchewan
Saskatchewan
Saskatchewan is a prairie province in Canada, which has an area of . Saskatchewan is bordered on the west by Alberta, on the north by the Northwest Territories, on the east by Manitoba, and on the south by the U.S. states of Montana and North Dakota....

. His first judicial appointment came on June 27, 1904, when he was appointed a judge of the Supreme Court of the Northwest Territories
Supreme Court of the Northwest Territories
The Supreme Court of the Northwest Territories is the name of two different superior courts for the Canadian territory of the Northwest Territories, which have existed at different times.The first Supreme Court of the North-West Territories was created in 1885...

 and stationed in Macleod, Alberta where a new courthouse had been built that year. With the creation of the province in 1905, he moved back to Calgary, and with the creation of the Supreme Court of Alberta
Court of Queen's Bench of Alberta
The Court of Queen's Bench of Alberta is the superior court of the Canadian province of Alberta....

 in 1907 to which Harvey was appointed on September 16, 1907, he moved to Edmonton.

Chief Justice of Alberta

Alongside Harvey, two other judges from the Northwest Territories Court made the transition to the Alberta Court: David Lynch Scott
David Lynch Scott
David Lynch Scott was a Canadian militia officer, lawyer, and judge. He served as mayor of Orangeville, Ontario from 1878 to 1880 and mayor of Regina, Saskatchewan from 1884 to 1885.-Early life:...

 and Arthur Sifton. The latter was appointed the first Chief Justice of Alberta. When Sifton became the Premier
Premier of Alberta
The Premier of Alberta is the first minister for the Canadian province of Alberta. He or she is the province's head of government and de facto chief executive. The current Premier of Alberta is Alison Redford. She became Premier by winning the Progressive Conservative leadership elections on...

 of the province in 1910, Harvey was elevated to the position of Chief Justice of Alberta by letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...

 issued October 12, 1910.

It is important to recognize that when the new Supreme Court of Alberta was formed, it comprised a trial division and an appellate division (essentially, brother justices of the Supreme Court sitting en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...

 with a quorum of three). Harvey supported an independent appellate court designed only to hear appeals. The Judicature Act enacted these changes in 1919, and it was proclaimed in 1921. The proper way to have done this would have been to abolish the old Supreme Court and create two new courts: one for trials, another solely for appeals. However, due to "slipshod and inartistic" drafting, the enacting statute merely created an independent appeal court without abolishing the old Supreme Court of Alberta.

Although Harvey expected to become the Chief Justice of the Appellate Division
Court of Appeal of Alberta
The Court of Appeal of Alberta is an Canadian appellate court.-Jurisdiction and Hierarchy within Canadian Courts:The Court is the highest court in Alberta, Canada...

 and thus Chief Justice of Alberta, his judicial appointments had all been made by a Liberal Prime Minister
Prime minister
A prime minister is the most senior minister of cabinet in the executive branch of government in a parliamentary system. In many systems, the prime minister selects and may dismiss other members of the cabinet, and allocates posts to members within the government. In most systems, the prime...

 Sir Wilfrid Laurier who had been in office from 1896-1911. By the time the two courts were separated in 1919, Conservative Prime Minister Arthur Meighen
Arthur Meighen
Arthur Meighen, PC, QC was a Canadian lawyer and politician. He served two terms as the ninth Prime Minister of Canada: from July 10, 1920 to December 29, 1921; and from June 29 to September 25, 1926. He was the first Prime Minister born after Confederation, and the only one to represent a riding...

 was in office. Instead of Harvey, Meighen appointed the conservative Scott by federal letters patent dated September 15, 1921. Much to Harvey's dismay, he became the Chief Justice of the Supreme Court Trial Division.

Harvey applied via reference
Reference question
In Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....

 to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 in the case cited as Reference re Chief Justice of Alberta for a declaration that he, not Scott, was the Chief Justice of Alberta. By a four to two majority, the Supreme Court agreed with Harvey that he held the highest judicial office in Alberta.

Although Scott had declined to make an appearance before the Supreme Court, he appealed the decision to the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

. Lord Atkinson
John Atkinson, Baron Atkinson
John Atkinson, Baron Atkinson was an Irish politician and British judge. He was born at Drogheda, County Louth, the eldest son of Edward Atkinson, a physician, of Glenwilliam Castle, County Limerick and Skea House, Enniskillen, County Fermanagh, and his wife Rosetta. He died at 39 Hyde Park Gate,...

 delivered the decision for the Committee in 1923, overturning the Supreme Court and finding in favour of Scott. Harvey continued to hold ill will, to the extent that at the first hearing convened by the appeal division, Harvey walked into the courtroom with Scott, told everyone he was the true Chief Justice, and then left Scott to preside. Scott's victory was nevertheless short lived as Scott died less than a year after the Judicial Committee's decision.

Harvey was then appointed to Scott's position as Chief Justice of Alberta on August 27, 1924, by Liberal Prime Minister William Lyon MacKenzie King
William Lyon Mackenzie King
William Lyon Mackenzie King, PC, OM, CMG was the dominant Canadian political leader from the 1920s through the 1940s. He served as the tenth Prime Minister of Canada from December 29, 1921 to June 28, 1926; from September 25, 1926 to August 7, 1930; and from October 23, 1935 to November 15, 1948...

. He held this position until his death on September 9, 1949.

Conscription Crisis

Harvey played a key role in the Conscription Stand Off of 1918, part of the larger Conscription Crisis of 1917
Conscription Crisis of 1917
The Conscription Crisis of 1917 was a political and military crisis in Canada during World War I.-Background:...

 during World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...

. The federal government passed the Military Service Act
Military Service Act (Canada)
In Canadian history, the Military Service Act was a 1917 Act passed by the Canadian government to effort needed more soldiers, so on April 20, 1918, an order-in-council was passed that removed exemptions from the Military Service Act. This left farming operations across Canada short of much-needed...

 in 1917, introducing conscription
Conscription
Conscription is the compulsory enlistment of people in some sort of national service, most often military service. Conscription dates back to antiquity and continues in some countries to the present day under various names...

 in Canada. However, it contained many exceptions for classes of people such as farmers. In 1918, the shortage of men was dire, and the Canadian Cabinet issued an order-in-council
Order-in-Council
An Order in Council is a type of legislation in many countries, typically those in the Commonwealth of Nations. In the United Kingdom this legislation is formally made in the name of the Queen by the Privy Council , but in other countries the terminology may vary.-Assent:Although the Orders are...

 rescinding those exemptions. Norman Earl Lewis was conscripted and hired lawyer and future Prime Minister R.B. Bennett to apply for a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...

 of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

in the Supreme Court of Alberta.

The hearing before the Court was presided by then Chief Justice Harvey along with four justices on June 21 and 22, 1918. The Court held that since the exemptions had been passed by Parliament, it was not constitutional for a mere order-in-council to remove those exemptions. Harvey was the lone dissenting
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....

 voice. This was quite problematic for the government as within two weeks, over 20 other applications for habeas corpus had been made.

However, rather than produce the conscripts before the Court, the Canadian military was ordered by the highest ranking military official in Canada and supported by the federal government to ignore the ruling. The Court issued a writ of attachment
Writ of attachment
A writ of attachment is a court order to "attach" or seize an asset. It is issued by a court to a law enforcement officer or sheriff. The writ of attachment is issued in order to satisfy a judgment issued by the court. A prejudgment writ of attachment may be used to freeze assets of a defendant...

 against Lieutenant-Colonel Moore, the commanding officer at Sarcee Barracks
Military in Calgary
Beginning with establishment of Fort Calgary in 1875, the city of Calgary, Alberta, has had some degree of permanent military presence throughout its history.-First World War:...

 in Calgary, for failure to comply with the order to produce the conscripts. However, the sheriff on his way to arrest the officer was met by military resistance, specifically newly set up machine guns around the headquarters. Harvey viewed these circumstances as being an affront to the jurisdiction of the Courts to declare laws unconstitutional as he wrote: "This seems to me that the military authorities and the executive government of Canada have set at defiance the highest Court in this province."

Indeed, military officers produced in court an order in council that ordered the conscripts in question to "be dealt with in all respects as provided by the [earlier] orders in council notwithstanding the judgment and notwithstanding any judgment or any order that may be made by any Court." On July 12, 1918, Harvey issued an order to have the military explain its actions before the Court or the Court would employ the sheriff and all the able bodied men in the jurisdiction to seize the conscripts by force.

Eventually, a compromise was reached at Calgary City Hall whereby the military command in Alberta would notify the sheriff with 24 h before the men were required to leave Alberta for eastern Canada. A similar Ontario case reached the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 the following week, which upheld the order-in-council as being constitutionally valid on July 19, 1918.

Notable Decisions

  • R. v. Cyr [1917] 12 ALR 1st 320
  • McPherson v. McPherson [1933] 1 WWR 321
  • Hatfield v. Healy [1911] 3 ALR 1st 327
  • Credit Foncier Franco-Canadian v. Ross [1937] 2 WWR 353

University of Alberta

Harvey was the Chairman of the Board of Governors
Board of governors
Board of governors is a term sometimes applied to the board of directors of a public entity or non-profit organization.Many public institutions, such as public universities, are government-owned corporations. The British Broadcasting Corporation was managed by a board of governors, though this role...

 of the University of Alberta
University of Alberta
The University of Alberta is a public research university located in Edmonton, Alberta, Canada. Founded in 1908 by Alexander Cameron Rutherford, the first premier of Alberta and Henry Marshall Tory, its first president, it is widely recognized as one of the best universities in Canada...

 from 1917 to 1940.

Other Work

Harvey wrote by himself, the Alberta Rules of Court in 1914 which were not substantially revised until 1944.

He also served on many boards, including as Chairman of the Mobilization Board for National Services in 1940, and member of the Commission on Alberta and Great Waterways Railway scandal
Alberta and Great Waterways Railway scandal
The Alberta and Great Waterways Railway Scandal was a political scandal in Alberta, Canada in 1910. It resulted in the resignation of the provincial government of Alexander Cameron Rutherford over allegations of conflict of interest in the government's involvement in the financing of the Alberta...

 in 1910; the Royal Commission
Royal Commission
In Commonwealth realms and other monarchies a Royal Commission is a major ad-hoc formal public inquiry into a defined issue. They have been held in various countries such as the United Kingdom, Australia, Canada, New Zealand, and Saudi Arabia...

 to Investigate an Agreement between the City of Calgary and the Calgary Natural Gas Company Ltd in 1919; an Inquiry into the McGillivray Creek Coal and Coke Company Ltd. explosion in 1927, and the Commission regarding the Administration of Justice in 1934.

House converted to Official Residence

Harvey purchased three lots in the Glenora
Glenora, Edmonton
Glenora is a prime residential neighbourhood in the city of Edmonton, Alberta, Canada, overlooking the North Saskatchewan River valley.Glenora is bounded on the east by Groat Road, on the north by 107 Avenue, on the west by 142 Street, and on the south by the river valley and the McKinnon Ravine...

 district of Edmonton in 1914 which he kept until 1946. He cleared and fenced the land and built a tea house on it. In the morning, he would walk from his nearby house to the land to work in his garden, where he had prized gladioli. This land would later house the official residence for Alberta's Lieutenant Governors from 1966 until 2000. The current official residence remains in the area.

Honours

Harvey was the longest serving Chief Justice, having sat on the bench for 44 years, longer than any other judge in Alberta’s history. In his honour, the University of Alberta
University of Alberta
The University of Alberta is a public research university located in Edmonton, Alberta, Canada. Founded in 1908 by Alexander Cameron Rutherford, the first premier of Alberta and Henry Marshall Tory, its first president, it is widely recognized as one of the best universities in Canada...

 Faculty of Law awards the graduating student with the highest GPA over the three year Bachelor of Laws program the Horace Harvey Gold Medal in Law.

He received an honorary Doctor of Laws degree from the Universities of Alberta and Toronto in 1915 and 1936 respectively, and Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...

 made him a Fellowship in the Order of the Coif
Order of the Coif
The Order of the Coif is an honor society for United States law school graduates. A student at an American law school who earns a Juris Doctor degree and graduates in the top 10 percent of his or her class is eligible for membership if the student's law school has a chapter of the...

.

He died on September 9, 1948, in Edmonton, Alberta.

See also

  • Alberta Court of Appeal The modern day Supreme Court Appellate Division
  • Alberta Court of Queen's Bench The modern day Supreme Court Trial Division
The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
x
OK