SCOTT, DAVID LYNCH, lawyer, militia officer, mayor, and judge; b. 21 Aug. 1845 in Brampton, Upper Canada, son of John Scott, a farmer, and Mary Lynch; m. 19 Nov. 1883 Mary (Minnie) McVittie in Barrie, Ont., and they had two sons and two daughters; d. 26 July 1924 at Cooking Lake, Alta and was buried in Edmonton.
David Lynch Scott’s father had immigrated from Scotland about 1817, and his mother was a native of Vermont. Educated at Brampton grammar school, Scott studied law at Osgoode Hall in Toronto and worked in the law office of his brother Alexander Forsyth in Brampton. Called to the bar in 1870, he practised in Brampton and then in Orangeville, which he served as mayor in 1878–80. Scott also saw considerable military service as a young man. He joined the 36th (Peel) Battalion of Infantry as a private during the Fenian invasions of 1866; he reached the rank of lieutenant-colonel in 1879.
In 1882 Scott moved to Regina, where he began his law career as a partner of William Cayley Hamilton, was called to the territorial bar, and served as the town’s first mayor in 1884–85. He was the first person enrolled as an advocate in the new Law Society of the North-West Territories on 11 Jan. 1885. That same year he was appointed crown counsel for the district of Western Assiniboia. He began by prosecuting a number of minor crimes in Regina. Following the North-West uprising, during which Scott, as mayor of Regina, had organized a home guard, he undertook his first major work for the crown: as junior counsel in the trials of Louis Riel*, Poundmaker [Pītikwahanapiwīyin*], Big Bear [Mistahimaskwa*], and others involved in the uprising. Fully committed to the prosecutions, he took depositions in June and July; in court he conducted the examinations of the accused. His performance has been assessed by historians as clumsy, confused, and lacking knowledge of the rules of evidence. The juries, however, found all those tried guilty. Named qc on 23 Oct. 1885, Scott became legal adviser to the lieutenant governor of the territories on 1 July 1887, but he still continued his prosecutorial work and private practice. In 1890 his firm was known as Scott and White and, in 1896, as Scott, Hamilton, and Robinson.
On 28 Sept. 1894, following the death of James Farquharson Macleod*, Scott had been appointed to the Supreme Court of the North-West Territories as a puisne judge for the district of Northern Alberta, seated at Calgary. He had been angling for a judgeship since at least 1887, had appeared frequently before the court, and had gained a reputation, according to the Regina Leader, as a man experienced in the real world, possessed of a high moral character and a learned legal mind. But not everyone shared this estimate. Assiniboia West mp Nicholas Flood Davin*, whose political career Scott had tried to derail, dismissed him in 1891 as “a flabby mass of conceited mediocrity.”
Though a judge, Scott continued to serve clients in Regina until 1896. In numerous cases from 1894 to 1898 he had to absent himself from the court in banc because he had represented some of the parties at their original trials. In 1907 he joined the Supreme Court of the new province of Alberta. In addition to his court duties in Edmonton, he undertook several judicial investigations, including membership in the royal commission of 1910 on the politically controversial contract of the Alberta and Great Waterways Railway [see Arthur Lewis Watkins Sifton] and an examination in 1914 of the Edmonton police force’s handling of vice.
Scott was one of the most active writers of judicial opinions in the history of the Supreme Court between 1894 and 1910. A master of short judgements with incisive summaries of the legal issues, he established major precedents on enforcing city by-laws, expanding the interpretation of legislative enactments, and broadening the discretionary powers of the court in banc to hear all the circumstances of a case. Like his predecessor Macleod, he wrote often of developing a “law of the west,” where circumstances unique to prairie life would be allowed as evidence in court regardless of common law precedents to the contrary. The Canadian Pacific Railway, for instance, was made liable for damages arising from sparks causing prairie fires; eastern courts held such ignition as accidental. Scott frequently cited Blackstone on the concept of common law as common custom, and the role of judges in defining it for their region. Preferring selectively appointed jps and judges, he envisioned a legal culture that, from the lower to the higher courts, would be moulded by a collective vision.
A crisis occurred within the Supreme Court in October 1910 when Horace Harvey* was appointed chief justice of Alberta. Scott’s displeasure was marked by his refusal, for the next decade, to sit on appeals in banc, though he continued to sit alone. More controversy arose when separate trial and appellate divisions were created by the Supreme Court acts of 1919–20, which were proclaimed on 15 Sept. 1921. Scott was appointed to head the appellate division and was titled chief justice of Alberta. Harvey, who was made chief of the trial division, claimed that he was still chief justice of Alberta and launched a reference case in the Supreme Court of Canada. It upheld his position, but Scott’s appeal to the Judicial Committee of the Privy Council in 1923 was successful. Championed there by Richard Bedford Bennett*, Scott ended his career secure in the belief that he was the premier judge. When he opened his court’s spring term on 8 May 1923, Harvey was absent and he did not return to sit in banc until after Scott’s death.
Scott had an active social and cultural life. Known for his striking personality, he was a member of the Assiniboia Club in Regina, the Ranchmen’s Club in Calgary, and the Edmonton Club. The University of Alberta awarded him an lld in 1924. An Anglican, he died that year, soon after his court’s summer term, at his cottage on Cooking Lake near Edmonton.
[Biographical information about David Lynch Scott can be found in Canadian men and women of the time (Morgan; 1898 and 1912), Who’s who and why, 1914, and his obituaries in the Calgary Herald and Edmonton Journal for 18 July 1924. Comments by contemporaries are noted by W. F. Bowker, A consolidation of fifty years of legal writings, 1938–1988, comp. Marjorie Bowker (Edmonton, 1989), and in an interview on 19 May 1983 with Justice Ronald Martland, Legal Arch. Soc. of Alta (Calgary), Calgary Bar Assoc. fonds. A photograph and legal sketch of Scott may be found in L. [A.] Knafla and Richard Klumpenhouwer, Lords of the western bench: a biographical history of the supreme and district courts of Alberta, 1876–1990 (Calgary, 1997), 163–64. Scrolls of Scott’s judicial appointments are in GA, M 722.
A valuable collection of Scott’s judical letters and bench-books for 1894–99 and 1902–4, dominated by his trial notes, is found in PAA, 69.310. His written decisions on circuit in the northern and southern judicial districts are found in PAA 78.235 (Fort Mcleod Supreme and District Court records, 1898–1907) and 79.266 (Supreme Court of the Northwest Territories, Dist. of Alta, Northern Div., civil and criminal files, 1898–1907). Some of his judgements are noted in the bench-books of judges Horace Harvey and Charles-Borromée Rouleau in PAA 68.302. GA, M 517 (John D. Higinbotham fonds) also contains some of his correspondence and notes on cases.
The major sources for Scott’s judicial career are the Alberta Law Reports (Toronto), 1907–24 and the Territories Law Reports (Toronto), 1894–1906. R. G. Martin discusses many of his decisions in “The common law and the justices of the Supreme Court of the North-West Territories, 1887–1907” (ma thesis, Univ. of Calgary, 1997). His role in the treason trials of 1885 is ably explained by Bob Beal and R. C. Macleod in Prairie fire: the 1885 North-West rebellion (Edmonton, 1984), 321–27. (Scott’s telegrams on the course of the rebellion are in GA, M 2286). See also L. H. Thomas, The struggle for responsible government in the North-West Territories, 1870–97 (Toronto, 1956). l.a.k.]
Calgary Herald, 27 July 1924. Northern Advance (Barrie, Ont.), 22 Nov. 1883. Canadian annual rev., 1914, 1924. Dominion annual reg., 1885: 235. C. B. Koester, Mr. Davin, m.p.: a biography of Nicholas Flood Davin (Saskatoon, 1980)