Rand, I. C.

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Foreword: [Critical Review of the Work of the Supreme Court of Canada]

York University, Osgoode Hall Law School

Osgoode Hall Law JournalVolume 3, Number 2 (April 1965) Article 1Foreword: [Critical Review of the Work of theSupreme Court of Canada]I. C. RandFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljArticleThis Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode HallLaw Journal by an authorized editor of Osgoode Digital Commons.Citation InformationRand, I. C.. "Foreword: [Critical Review of the Work of the Supreme Court of Canada]." Osgoode Hall Law Journal 3.2 (1965) :168-170.http://digitalcommons.osgoode.yorku.ca/ohlj/vol3/iss2/1FOREWORDDEAN I. C. RANDPeriodic critical review of the work of the Supreme Court ofCanada has never yet been undertaken. The disinclination towardssuch a step exhibits the traditionally reticent attitude towards courtsgenerally, observed in England and followed in this country. Thatjudgments of the highest courts should be subjected to open and rigor-ous treatment by juristic scholars, that such pronouncements shouldnot be treated as bearing their own conclusive justification, has neverbeen the accepted view in either land. Comment on individual judg-ments has maintained a sensitive respect toward them; search forindicated tendencies towards fresh problems in either private or publiclaw has only lately become the subject of general academic inquiry.To some extent that attitude in Canada can be attributed to the com-parative absence of broad scholarly concern for legal research, itselfowing largely to the slow emergence of law schools and to theirtardy expansion of interest beyond provincial boundaries. The domin-ation, also, of thle Judicial Committee tended not only to stifle academ-ic criticism, formerly looked upon as a trespass upon a sacrosanctfield, but also to repress independent judicial thinking in our superiorcourts. Conceding at once to those who have given the basic directionto constitutional interpretation and legal principle affecting Canada,Lord Watson, Viscount Haldane and their associates, the possessionof powerful and comprehensive minds, yet the mere fact of their posi-tion as spokesmen for the sovereign of an Imperial Kingdom tendedto reduce Canadian courts to a submissive observance of the exactletter of both word and phrase in their pronouncements. Their formid-able titles themselves were inordinately compulsive to that acceptance.Had appeals to London been abolished in say 1880, as Edward Blakehad advocated, there can be little doubt that a body of decision interms of Canadian thinking and expression would have resulted which,in the constitutional field at least, would today exhibit a maturity inlanguage, reasoning, and outlook presently in a midway stage of ac-complishment.That Lord Watson tended to be influenced by considerations notclearly articulated in his utterances seems clear from language usedin a tribute to him by Viscount Haldane, published in Volume 11of the Juridical Review, January-December-1899: "He was an Im-perial judge of the very first order. The function of such a judge,sitting in the supreme tribunal of the Empire, is to do more thandecide what abstract and familiar legal conceptions should be applied*Dean Rand who retires this year as Dean of the law school at theUniversity of Western Ontario, is one of the most distinguished former judgesof the Superior Court of Canada.Forewordto particular cases. His function is to be a statesman as well as ajurist, to fill in the gaps which parliament has deliberately left in theskeleton constitution and laws that it has provided for the BritishColonies... He completely altered the tendencies of the decisions ofthe Supreme Court, and established in the first place the sovereignty(subject to the power to interfere of the Imperial Parliament alone)of the legislatures of Ontario, Quebec and the other provinces. He thenworked out as a principle the direct relation in point of exercise of theprerogative, of the Lieutenant-Governor to the Crown. In a series ofmasterly judgments he expounded and established the real constitutionof Canada." We can at once agree that constitutional interpretationinvolves high statesmanship as well as juridical function; but the at-tribution of sovereignty to a province whose legislative enactments aresubject to disallowance by the general government of a federalism isa surprising use of words in such a context, in fact a misuse. EarlierViscount Haldane had spoken of a "great unrest" in Canada as theresult of the decisions of the Supreme Court. The language quotedmay be taken as an accurate general statement of the work of LordWatson, to which in the same sense may be added the accomplishmentof Viscount Haldane himself; but as many commentators have shown,this course of interpretation was not based upon the language of theBritish North America Act; and historical sources do not appearclearly to support the statement that there was in the 80's and 90'sany condition arising from the interpretation of that Act by theSupreme Court which could fairly be described as a "great unrest".It has been suggested that the outlook of Lord Watson envisaged theperpetuation of the Empire, considering the greater probability tobe that its consolidation would be strengthened were the powers ofthe provinces enlarged and those of the Dominion curtailed that apowerful Dominion would sense the instinct of independence morequickly and deeply than the smaller and more or less dependentprovinces. Whatever the authenticity of this suggestion, certainly itis consistent with the tenor of the judgments to which ViscountHaldane refers.In the remaining field of private and public law, there existed asimilar unconscious coercion, an effort to fit the case into the moldof the Committee's language, but by the nature of the subject matteraffected, perhaps less influential on the course of Canadian lawdevelopment. The abrogation of the appeal in 1949 has undoubtedlygiven a fillip in the superior courts to a deepening sense of respon-sibility; here at last are tribunals by the decrees of which, finality,affecting the lives and fortunes of Canadians, will henceforth charac-terize Canadian adjudications. And that responsibility has broughtimplications for the members of the profession and legal scholars ofthe entire Dominion. The increasing profusion of new features andcomplexities of social life inherently call for intensification of legaleducation; academic scholarship has become a vital complement tolaw's administration; and the scholarly member has become thedemand of the profession.OSGOODE HALL LAW JOURNALThe analytical dissection and weighing of individual judgmentscan legitimately lead to the effort to catch the intellectual temperof courts, to glimpse their freedom from or bondage to unconsciousattitudes, their flexibility or rigidity, their openness or closure tofresh ideas, their awareness of transforming social life, their imagi-native capacities, their instinct for logic, strict or pragmatic. Theseattributes or conditions reveal themselves in subtle indications, theperception of which enables achievement of the end in view. Butlegitimacy here stops at the line of that classification, individually, ofjudges which, at times, has run wild in the United States.To those who have participated in the production of this critique,thanks and appreciation are owed by all who are interested in theadvancement of our legal culture. It is to be approved unstintinglyas a desirable feature of academic work. We have already a body ofwriting by senior scholars which in analysis, grasp of relevant con-siderations, and conclusions drawn, is of excellent quality. It is steadilygrowing; its authors are advancing in competence and confidence; andthe appreciation of its utility for the practitioner is steadily deepening.The responsibility imposed upon Canadian schools in 1949 is beingaccepted and this review is to be valued not only for its specificaccomplishment but as well for the evidence it furnishes of intellectualstimulation and expansion within the ranks of the neophytes of law.As on a task of academic fulfillment, they cannot better be employed.[VOL. 3

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Foreword: [Critical Review of the Work of the Supreme Court of Canada]

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