BURBIDGE, GEORGE WHEELOCK, lawyer, civil servant, judge, and author; b. 6 Feb. 1847 in Cornwallis Township, N.S., third of four sons of Arnold Shaw Burbidge and his first wife, Lydia Amelia Eaton; m. 5 Feb. 1873 Alice E. Maxwell in Saint John, N.B., and they had at least six children; d. 18 Feb. 1908 in Ottawa.
Unlike most lawyers of his day, George Wheelock Burbidge began his career with a university education: he read classics at Mount Allison Wesleyan College, receiving a ba in 1867 and an ma three years later. Called to the New Brunswick bar in 1872, he soon became a partner in the Saint John law firm of Harrison and Burbidge and a leader at the bar. In addition to his routine tasks, Burbidge was secretary of the commission which drafted the 1877 edition of The consolidated statutes of New Brunswick. He also prepared an index of the statutes in force as of 1878, and he was co-author, with William Pugsley*, of the New Brunswick Reports from 1877 to 1882.
On 23 May 1882 Burbidge was appointed federal deputy minister of justice, having been recommended by the departing incumbent, Zebulon Aiton Lash*. Soon after his arrival in Ottawa he became de facto head of the commission which produced the monumental Revised statutes of Canada. He himself drafted a bill in 1884 to codify the criminal law for this work, but although Sir Alexander Campbell*, the minister of justice, tabled the draft in the Senate, he declined to introduce it as a bill because it would have complicated and perhaps have precluded the enactment of the revised statutes.
The statutes were published in 1886, and would have appeared a year earlier but for Burbidge’s involvement in a major court case: in 1885 he had been required to assemble and lead the prosecution team in the trial of Louis Riel*. His behaviour throughout shows that he was biased against the defendant. He was largely, if not wholly, responsible for arranging that Riel alone among the accused was charged under the mediaeval English statute of treasons, which made the death penalty mandatory in case of conviction, rather than under the Canadian treason-felony statute, which provided for life imprisonment. Moreover, he ensured that the trial was moved from Winnipeg to Regina, where conditions favoured the crown lawyers. He was also the guiding hand behind the actual prosecution. By contrast, in 1884 he had displayed fairness by giving strong support to a recommendation by Sir Matthew Baillie Begbie*, chief justice of British Columbia, that the federal government disallow a bill enacted by the British Columbia legislature which barred Chinese subjects of the crown from purchasing, inheriting, or otherwise acquiring crown land. His position as deputy minister led him to appear in several other important legal cases. For example, he had conducted the unsuccessful federal government appeal in the Supreme Court and to the Judicial Committee of the Privy Council in the liquor licensing case of Hodge v. the Queen in 1883 [see Sir Oliver Mowat].
On 1 Oct. 1887 Burbidge became the first justice of the Exchequer Court (today the Federal Court). Created in 1875 at the same time as the Supreme Court, the Exchequer Court had been given legal authority of three kinds: original jurisdiction in suits relating to dominion revenues and in those which involved contravention of dominion statutes where the public interest was concerned, concurrent original jurisdiction with provincial tribunals in suits where the crown in right of the dominion was a litigant, and appellate jurisdiction in contested governmental arbitrations. The justices of the Supreme Court had formed a rota to take Exchequer cases, which they heard on an irregular basis in a few major centres.
Concurrent with Burbidge’s appointment as the first full-time justice of Exchequer was the separation of the Exchequer Court from the Supreme Court. As a later commentator noted, the legislation effecting the change “very materially enlarged” Exchequer’s jurisdiction, which now “comprehended almost every department of the law except crimes.” Burbidge organized the new tribunal and wrote its rules of procedure, which are still followed in their essentials. He also began the practice of ensuring that the court served Canadians where they lived and worked, a typical itinerary taking him from Ottawa to Dawson and then to Charlottetown, with hearings en route. Burbidge gave the first judgements in Canada on several specific causes of litigation, and his decisions soon began to be cited in English and Canadian commentaries. Two of his more important rulings were Samson v. the Queen (1888), concerning the value of land expropriated by the crown, and The Queen v. St. John Gas Light Company (1895), one of the first judicial pronouncements on environmental pollution. As a judge, Burbidge retained the penchant for hard work and the devotion to duty that had characterized him as deputy minister. When his final illness made him too weak to attend court, he gave judgements from his bed.
During his first years on the bench Burbidge had taken advantage of his experience in drafting criminal law by publishing A digest of criminal law of Canada (Toronto, 1890); for the first time all the substantive penal law of the country was collected in a coherent and topical format. The digest provided a partial basis for the Criminal Code of 1892, the first such enacted code in the British empire. The initiative of Sir John Sparrow David Thompson*, the legislation was drafted by Burbidge, Robert Sedgewick, his successor as deputy minister of justice, and Charles Harding Masters, the deputy reporter of the Supreme Court, during the winter of 1890–91. Subsequently, Burbidge was called upon to undertake other extrajudicial tasks. He served as a civil service commissioner, as a member of a dominion-provincial board of arbitration, and as a commissioner for the British Columbia government in its dispute with the Nakusp and Slocan Railway. Burbidge was also active in community affairs. Elected president of the Associated Charities of Ottawa in 1895, he helped found the Victorian Order of Nurses in 1897 and succeeded Lady Aberdeen [Marjoribanks*] as president, serving from 1899 until his death. An eminent public servant whose career began soon after confederation, Burbidge participated in many of the legal and constitutional events which firmly established the dominion as a functioning union.
[So far as can be ascertained, Burbidge left no papers, and it is difficult to find information about his career. Some official correspondence is in the federal Department of Justice registers of mail and letter-books for 1882–87 (NA, RG 13, A2 and A3), and in tiles for the period still held by the department in Ottawa, particularly 29/1884. Other such letters and memoranda are in the Macdonald papers (NA, MG 26, A), the Thompson papers (NA, MG 26, D), the Gowan papers (NA, MG 27, I, E17), and the Campbell papers (AO, F 23; available on microfilm at NA). Brief biographical sketches are in Cyclopædia of Canadian biog. (Rose and Charlesworth), vol.1, and Canadian men and women of the time (Morgan; 1898). Burbidge’s judgements are reported in the Reports of the Exchequer Court of Canada (Ottawa), commonly known as the Exchequer Court Reports. For reminiscences of Burbidge at university, see Benjamin Russell, Autobiography of Benjamin Russell (Halifax, 1932); for more detail of his impact on the criminal law, see D. H. Brown, The genesis of the Canadian Criminal Code of 1892 ([Toronto], 1989). d.h.b.]
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