Chief Justice of the Supreme Court of Canada
On June 4, 1906, Prime Minister Wilfrid Laurier appointed Fitzpatrick the 5th Chief Justice of Canada after the retirement of Henri Elzéar Taschereau on May 2, 1906. Personally, Fitzpatrick sought a role on the Supreme Court as early as 1904, but Prime Minister Laurier opposed his appointment, noting his importance to his Cabinet. With his appointment to Chief Justice, Fitzpatrick became the only person appointed directly to the role since the first Chief Justice William Buell Richards, and the only person appointed to the role appointed without any prior judicial experience.
Fitzpatrick and the Court took a narrow view of civil liberties. In Quong Wing v The King, the Court upheld a Saskatchewan law prohibiting white women from working for Chinese-Canadian men. In upholding the law, Fitzpatrick considered it similar to any other employment legislation, intended to "safeguard the bodily health, but also the morals of Canadian workers."
Snell and Vaughan note that the retirement of Chief Justice Samuel Henry Strong in 1902 led to an improvement in the inter-personal relationships of the Court. Several of the Justices made efforts to create a cooperative atmosphere at the Court. Chief Justice Fitzpatrick's efforts were a main catalyst for this improvement. He secured a knighthood for the senior Puisne Justice Girouard. When conflicts did arise, justices were cooperative and the issues did not linger.
As Chief Justice, the Court made several changes to improve efficiency and administration for French language appeals. In 1907, to increase efficiency of the Court, the rules of the Court restricted the number of counsel that could be heard by each side of a case to two, and a maximum time of three hours for arguments. In 1908, a French stenographer was appointed to the Court staff. Additionally, Fitzpatrick made more frequent use of judicial conferences than his predecessors, and was known to consult Court staff members including his secretary and the Court Registrar on his draft decisions.
Fitzpatrick continued to participate in politics on the bench, giving private political advice to active politicians. Fitzpatrick lobbied the government to appoint Judge Cannon of Quebec to the Court upon the death of Justice Robert Sedgewick. Fitzpatrick had a personal debt to Prime Minister Wilfrid Laurier of $5,000. Fitzpatrick did not only provide political advice to the Liberal government, but also recommended Senate appointments, legislation and provided political advice on issues in Quebec to the Borden government. Snell and Vaughn note that Fitzpatrick acted as Prime Minister Borden's personal agent to the Quebec Conservative Party.
Fitzpatrick was appointed to the Imperial Privy Council in 1908, permitting him to sit as a member of the Judicial Committee of the Privy Council. His appointment was delayed as there was a maximum of two appointments, and former Chief Justice of Canada Samuel Henry Strong refused to resign despite no longer attending sessions. In 1909, Fitzpatrick was appointed as a British member of the Permanent Court of Arbitration in the Hague. He enjoyed the appointment and made a considerable effort to be reappointed in 1913. Fitzpatrick heard nine appeals as a member of the Privy Council, but did not write any reported opinions. Fitzpatrick lobbied Lord Haldane to deny leave to appeal from provincial superior courts directly. At the time, a litigant could appeal to the Supreme Court or the Privy Council, which was a common occurrence. Lord Haldane subsequently implemented a stricter regime for hearing appeals directly from provincial superior courts.
Fitzpatrick's time on the Privy Council included a scandal. In 1918, John Wesley Edwards, and later William Folger Nickle, raised concerns in Parliament about Fitzpatrick's use of a $2,500 allowance to cover travel costs to England, despite not attending any sittings. Edwards accused Fitzpatrick of "deliberately stealing from the treasury of the country and putting the money in...[his] own pockets" Fitzpatrick and Prime Minister Robert Borden responded that there was no legal issue and that Fitzpatrick had acted in good faith. When Edwards revived the issue the following year, Fitzpatrick, by then Lieutenant Governor of Quebec, returned the allowance.
On October 21, 1918, Chief Justice Fitzpatrick unexpectedly resigned at the age of 66, citing his declining health. However, historians Snell and Vaughn note that Fitzpatrick lost interest in judicial work and was more interested in political issues, including growing alienation of French-Canadians following the Conscription Crisis. Prior to his resignation, Fitzpatrick wrote Prime Minister Robert Borden and Justice Minister Charles Doherty seeking the appointment as the Lieutenant Governor of Quebec, which was granted on October 23, 1918. Prime Minister Robert Borden appointed Louis Henry Davies of Prince Edward Island as Fitzpatrick's successor.
