Tracings of Gerald Le Dain's Life in the Law 9780773556188

Citation preview

t raci n g s o f g e r a l d l e dai n’s li fe i n the law

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Tracings of Gerald Le Dain’s Life in the Law

Edited by

g . b l a i n e ba k er and

r i c h a r d ja n da

McGill-­Queen’s University Press Montreal & Kingston • London • Chicago

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©  McGill-Queen’s University Press 2019 ISBN ISBN ISBN ISBN

978-0-7735-5518-1 (cloth) 978-0-7735-5519-8 (paper) 978-0-7735-5618-8 (eP DF ) 978-0-7735-5619-5 (eP UB)

Legal deposit second quarter 2019 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Katharine A. Pearson Chair in Civil Society and Public Policy, McGill University.

We acknowledge the support of the Canada Council for the Arts, which last year invested $153 million to bring the arts to Canadians throughout the country. Nous remercions le Conseil des arts du Canada de son soutien. L’an dernier, le Conseil a investi 153 millions de dollars pour mettre de l’art dans la vie des Canadiennes et des Canadiens de tout le pays.

Library and Archives Canada Cataloguing in Publication Tracings of Gerald Le Dain’s life in the law / edited by G. Blaine Baker, Richard Janda. Includes bibliographical references and index. Issued in print and electronic formats. isb n 978-0-7735-5518-1 (hardcover). – is bn 978-0-7735-5519-8 (softcover). – isb n 978-0-7735-5618-8 (ep df ). – is bn 978-0-7735-5619-5 (ep u b ) 1. Le Dain, Gerald.  2. Canada. Supreme Court.  3. Judges – Canada – Biography.  I. Baker, G. Blaine, editor  II. Janda, Richard, 1959–, editor KE8248.L42T73 2018 KF345.Z9L42T73 2018

347.71'03534

C 2018-903630-3 C 2018-903631-1

This book was typeset by Marquis Interscript in 10.5 / 13 Sabon.

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Contents

Preface vii Bernard J. Hibbitts   1 Juristic Biographies, Homage Volumes, and “Tracings of Gerald Le Dain’s Life in the Law”  3 G. Blaine Baker   2 University Boot Camp and World War II Army Service  49 Gerald E. Le Dain   3 The Walker, Martineau Years, 1950–1953  60 C. Ian Kyer   4 Part-time Montreal Law Practice and Part-time Law School Lecturing of the 1950s and 1960s  68 Stephen Scott   5 Le Dain and Legal Education: A Tale of Two Cities  79 Roderick A. Macdonald   6 The Tree of Knowledge, the Axe of Power: Le Dain and the Transformation of Canadian Legal Education  106 H.W. Arthurs   7 An Accidental Soldier in the War against the War on Drugs  133 Melvyn Green   8 Pleading Public Law Issues in the Barfried Enterprises Case  168 Gerald E. Le Dain   9 The Federal Court Years, 1975–1984  170 John M. Evans

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vi Contents

10 Crown Zellerbach: Bringing Clarity to National Concern  216 Peter W. Hogg 11 Constitutional Transitions: Le Dain’s Approach to Jurisdiction over the Environment  230 Richard Janda 12 Gerald Le Dain : Sur la société libre et démocratique  335 Andrée Lajoie and Louise Rolland 13 Judicial Opinion Writing  385 Gerald E. Le Dain 14 Engaged Professionalism  388 Rosemary Cairns Way 15 “One Judge Down”  406 Bonnie Brown 16 Cases Argued, Cases Decided, and Scholarly Writing of Gerald Le Dain  417 G. Blaine Baker Postface 428 Allen M. Linden Contributors 431 Index 437

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Preface Bernard J. Hibbitts Gerald Le Dain dared. As a young man he fought for his country in World War II, seeing action in Holland and Germany with the Canadian Army artillery. When it wasn’t fashionable and certainly not necessary for a newly minted McGill law graduate, he enrolled in a doctoral program at the University of Lyon, France, taking his degree in 1950. After achieving success in practice and law teaching he accepted an appointment as the founding dean of the relocated Osgoode Hall Law School at York University when that rapidly growing institution was wracked by the student politics and social tensions of the late 1960s. He famously led the Commission of Inquiry into the Non-Medical Use of Drugs (ever since known eponymously as the Le Dain Commission) from 1969 to 1973, recommending to a stunned polity that marijuana be legalized and regulated in Canada. After almost a decade on the still very young Federal Court in Ottawa, he took on his final professional challenge in 1984, agreeing at the behest of Prime Minister Pierre Trudeau to serve as the first new justice appointed to the Supreme Court of Canada since the implementation of Trudeau’s own path-breaking Canadian Charter of Rights and Freedoms. I had the privilege of being one of Gerry’s first Supreme Court law clerks. My colleague Bruce Ryder and I had initially been hired by Bora Laskin, the late chief justice whom Gerry was in some sense replacing. Reassigned to the low man on the Court totem pole, we were, in the spirit of the eighties, the “new kids on the block.” But of course Gerry was the real new kid. With his luxurious white mane cascading over the tips of his ears he may have looked to journalist Jack Batten like an “aging rock impresario,” but there was nothing

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aged about him. He was impassioned and fiercely enthusiastic about his task. He had an impish, refreshingly youthful, and self-deprecating sense of humour (have you ever seen a Supreme Court justice lurch, Quasimodo-like, back into his office after an animated conversation with a clerk?), but in more serious mood he could seize on an idea, a position, or an argument and almost literally wrestle it to the ground. He told us that he regularly got up at 5 a.m. to work and write, and we believed him. To us he was a lion of a man. And so it was with some shock that I, having moved to the United States to teach, learned in late 1988 that Gerry had been brought low by depression and had more or less been relieved from duty by Chief Justice Brian Dickson. At sixty-four – still young by Supreme Court standards – he would never work again. At first I could not imagine how such a vigorous individual with such a vigorous mind could suffer such a debilitating and completely uncharacteristic setback, but over time (over years, in fact) it gradually became clearer to me. In some ways Gerry Le Dain’s tragedy was chillingly foretold by my first meeting with Chief Justice Laskin in 1983, when I was originally interviewed. By that fall Laskin was already sick, having lately suffered a stroke and lost considerable weight, but after some recuperation he had returned to his office and was doggedly carrying on, even if my abiding image of him from the time is that of a little man in a big doorway wearing a navy blazer that no longer fit him well. At one point during our conversation, Laskin pointed to a series of documents piled high on a long table to his left. With some weariness, and in an obvious effort to explain why he needed help, he said, “That, Mr Hibbitts, is the Charter of Rights.” Of course Laskin had been a bold exponent of civil rights throughout his legal career. He hardly resisted the new Charter, but he clearly recognized that it marked a sea change not only in the position and power of the Supreme Court, but in the workload facing individual justices. Laskin died five months later. Although he had been in declining health for years, I’m convinced to this day that it was the added strain of the Charter that finally killed him. Enter Gerry Le Dain. It was clear from the outset that Gerry was a creature of exceptional deliberation, a man who not only knew the law but appreciated the supreme responsibility of his new position. Sense of humour or not, he took judging very seriously and would brook no self-inflicted mistakes. Now on the top court, with no further appeal beyond him and with the burden of setting key Charter

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Preface ix

Gerald Le Dain and Bora Laskin, courtesy of the Le Dain family

precedents that might stand for generations, he agonized over his cases. That, perhaps, was his tragic flaw, his Achilles heel. Even in his first year on the Court, we, his clerks, could see the overwhelming care and the tremendous time he invested in his work. In retrospect that was a warning, but we didn’t see it. Neither did Gerry. It is likely, however, that it was a major contributor to the mental illness that ultimately cost him his job. In many ways he cared too much. His was a strength that became a weakness, a gift to others that became a trap for himself. So Gerry became another victim of the Charter. In the second decade of a new century, one wonders whether Gerry’s fate would have been different if he were serving on the high court today. Canadian society in general and the Canadian legal profession in particular have made great strides over the last thirty years in the consideration, diagnosis, and treatment of mental illness. We are no longer as frightened or dismissive of it. We know it is disease, like cancer, that can strike any one of us at any time. We therefore accord its sufferers more attention and respect. In the 1980s, however, Gerry was given little if any real chance to recover. At the instance of his chief he was cut loose and coldly abandoned to his fate after little

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more than three months, quite possibly to the detriment of all those who might subsequently have benefitted from his considerable talents and broad perspective. Given time and proper treatment, Gerry might have become the first Canadian high court judge to have publicly overcome a depression diagnosis. What a role model that would have made him! What an impact he might have had on the interpretation of Canadian mental illness laws and on the Charter rights of those suffering from mental disability! But instead an impatient Supreme Court went full speed ahead, with the usual suspects churning out Charter rulings at pace. In the short run, Gerry’s removal may have seemed to make institutional sense, but in the long run, was it just? Did it necessarily make Canadians better off? And did it help – or irreparably harm – Gerry Le Dain? In recent years a minor academic literature has developed on what might be termed the “humanity of judging,” relating the function and role of the judge to his or her status and standing as a human being. The literature explicitly recognizes that instead of being some kind of disembodied determiner who lives grandly in the law, judges are inevitably people with strengths and weakness, passions and joys, capacities and sensitivities. Gerry would have appreciated this approach. He also would have understood that it is but a short step from recognizing the humanity of judging to considering its “humaneness,” or lack thereof. Do we sometimes ask too much of those whom we call upon to make the most delicate and often the most demanding decisions of the day? Do we fail them as human beings by not giving them more of the time, resources, and understanding they need – in sickness and in health – to do the jobs that we have asked them to do? By virtue of not doing that, are we doing them and ourselves a disservice by being complicit in the destruction of some of our best and brightest, be they legal luminaries like Gerry Le Dain or others who have confronted similar challenges in less prominent settings? The humanistic turn in our interpretation of judging is increasingly reflected in portraits and photographs of high court judges in various (generally Commonwealth) jurisdictions that show them not with ancient books and / or imposing robes, but rather in more casual circumstances and attire, with colleagues and even family members, overtly reminding viewers of their humanity and inviting connection on an entirely new, more personal level. Here, fittingly, Gerry was far ahead of his time. To my mind, the best picture of him is not the signed official photo in regalia that he gave me at the end of my clerkship

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Preface xi

in 1985, but rather a wonderful portrait shot by Harry Palmer in 1991, three years after Gerry’s retirement, reproduced on the cover of this book. The setting is not an office or a courtroom, but Gerry’s own home, with family pictures resting on the mantle behind him as he sits casually on a desk with his briefcase askew alongside. His suit is crumpled and his shoulders slightly hunched, but as he looks away from the camera with a hint of a smile on his face his eyes still twinkle, and his great white mane still cascades over his ears. His suit pocket carries pens ready to write yet another judgement, were he only asked; his lapel sports his Order of Canada pin, a testament both to the gifts he gave his country and the price he paid for his service. Here is certainly a consummate Canadian jurist, but more importantly, here is a daring human being, a lion of a man battered but unbowed. This book is offered in his memory.

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1 Juristic Biographies, Homage Volumes, and “Tracings of Gerald Le Dain’s Life in the Law” G. Blaine Baker

This introductory chapter has three goals. A first purpose is to survey local production of juristic biographies and homage volumes over the course of the last century and a half. Canadian lawyers have seldom been good about acknowledging or even remembering how their contemporary culture fits into inherited patterns. It therefore seems important to offer lightly annotated inventories of relevant bibliographic material at the outset of much modern legal writing. This historiography is also intended to provide scaffolding for brief, related assessments of the strengths and weaknesses of biographies and homage volumes as vehicles for historical inquiry. Reflection along those lines seems warranted by the apparently widespread contemporary acceptance and even enthusiasm for the telling or celebration of leading lawyers’ life stories. A second goal of this chapter is to provide a biographical sketch of Gerald Le Dain, pulling together publicly available source material and informal commentary made by his contemporaries when they learned about the assembly of this collection. That project is continued on a larger scale in the substantive chapters in this volume, each of which deals with a particular period or event in Le Dain’s professional life. A third purpose of this chapter is to anticipate, thematically, how the preface and the post-face, together with the fifteen substantive chapters in this anthology, will work together as an appreciation of

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Le Dain’s contributions as a jurist through these tracings of his life. This collection’s broad themes are Le Dain’s intellectual and managerial contributions to the Canadian legal academy, his contributions to national law reform as a constitutional advisor, a commissioner of inquiry, and as a judge, and his contributions to appellate jurisprudence. The chapters are presented in chronological order, which allowed them to be grouped loosely around this anthology’s themes (Le Dain moved, sequentially, from the academy to law reform to the courts). Introductions to collections should probably be unexceptional so as not to divert attention from the articles they precede (the anthology’s main events), and that literary custom was kept in mind during this chapter’s composition.

Ju ri s t ic B io g r a p h ie s a n d Homage Volumes As is shown most clearly by this collection’s preface and post-face, this is a homage volume insofar as much of it was written by people with warm or relevant connections to important aspects of Le Dain’s life. Yet, about a third of the contributors (G. Blaine Baker, John M. Evans, C. Ian Kyer, Andrée Lajoie, and Louise Rolland) did not know Le Dain well. Others (Rosemary Cairns Way, Melvyn Green, Bernard Hibbitts, Peter W. Hogg, Richard Janda, Allen M. Linden, Roderick Macdonald, and Stephen Scott) were closer to him, but had not interacted regularly with Le Dain during his later years. All of the authors were, however, uniquely equipped in scholarly terms to set up markers at intervals across Le Dain’s life. The fact of sixteen contributors with varied approaches should also help to deflect standard criticisms of juristic biographies and homage volumes that single authors often identify too closely with their subjects, that those writers sometimes begin with the presumption that their subjects are praiseworthy, and that analytic points of view in juristic biographies and homage volumes tend to be one-dimensional.1 An author’s close identification with a subject, assumptions about greatness, or the lack of a critical edge might be acceptable in “vanity press” publications or other texts written for popular audiences, but they are probably not appropriate in works with aspirations to critical scholarship. The hope here is that collective writing focussed on the volume’s subject will provide an injection of new credibility into this literary form, analogous to the boost given lately to biographical writing by solely authored biographies of multiple subjects (prosopographies).2

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It is tempting to suggest that juristic biography and the celebration of Canadian legal lives scarcely existed as fields of research and publication thirty years ago and that work of that kind, especially judicial biography, has come into its own in the last three decades. Leading indicators of that new enthusiasm include recently published life stories of Supreme Court of Canada justices like Claire L’HeureuxDubé, Ivan Rand, Bora Laskin, Emmett Hall, Brian Dickson, Bertha Wilson, and William McIntyre.3 There have also been several monographic studies of Federal Court and provincial Superior Court judges.4 That work has, for the most part, been received as a welcome groundswell of scholarly interest in leading judicial personalities.5 Local commentators have also continued to watch closely and enthuse about the production of offshore judicial biography and autobiography.6 It is notable, however, that those favourable responses to local and international writing have not generally included professional historians or other social scientists, nor have they extended much into Quebec or overseas sites.7 When the field of study in issue is expanded to include “juristic” biographies at large, the results of contemporary research and writing are even more striking. In that regard, one thinks first of the work by Eric Adams and Sandra Djwa on Frank Scott, but there is a large stock of similar monographs.8 There is also the Dictionary of Canadian Biography, a monumental national undertaking in shared scholarly responsibility, which is now available in sixteen volumes spanning the period between 1000 and 1930. In respect of subjects who died during the four decades straddling the turn of the twentieth century, for example, approximately 320 of those four volumes’ entries deal with lawyers, judges, and legal academics.9 Executive Director Robert Fraser of that Dictionary was also able to extract Upper Canadian biographies from the series to produce a self-standing volume on “provincial justice.”10 Ranging in length from 200 to 10,000 words, Dictionary of Canadian Biography entries are typically more modest than monographic biographies, but their contextualization and sourcing of subjects has been superb. Recent years have also seen the publication of a number of Canadian juristic autobiographies, of varying ambition and success.11 Perhaps most promising, at least for research purposes, has been the production of annotated collections of primary source material related to particular legal figures.12 The Osgoode Society for Canadian Legal History has, moreover, now transcribed about 95,000 pages from

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interviews with approximately 600 legally oriented subjects. Those texts are available, subject to access and confidentiality regimes, in the Public Archives of Ontario at Toronto’s York University.13 The Supreme Court of Canada Historical Society has also commenced a program of oral histories with retired judges of that Court, such as Louise Arbour, Michel Bastarache, and John Major. One should be mindful in connection with such projects, however, that people generally sculpt their memories for specified purposes. Finally, the history of Canadian legal institutions written in prosopographic form is currently living a “ninth life,” especially for courts.14 Ninth life seems like an appropriate descriptive phrase, since institutional legal history done through the medium of collective biographies has deep roots in this country.15 Books that comprise a recent spate of Canadian law-firm histories share some of the features of prosopography and can thus be characterized as another form of collective legal biography.16 The temptation mentioned at the outset of this section of the chapter and the achievements recited in the last few pages are, however, slightly misleading. That deception is revealed, in some measure, by references in the last paragraph to the lengthy pedigree in Canadian legal history of prosopography as a type of institutional history. As one might have supposed in respect of a very standard late-Victorian and Edwardian form like biography, juristic biography did not come into vogue in Canada on the basis of the prominence that the Charter of Rights and Freedoms recently gave local judicial decision-makers and other legal professionals. Indeed, there is a long, prolific, and largely respectable tradition of juristic biography writing in this country.17 Finding those books was a challenge that required turning the pages of older publishers’ catalogues, auction advertisements, inventories on death, and the like (a similar challenge was presented to librarians who were asked to make those volumes available through interlibrary loans!). As several commentators have observed, however, traditional legal biographies tended to have been motivated by instincts like the moral desire to focus on a particular life for teaching purposes or the developmental urge to use a life as a geographic settlement guide or advertisement.18 One of the most intriguing characteristics of those biographies is the historical contingency of conceptions of juridical “greatness” they reveal. Another notable feature is that they attracted little Canadian public commentary, and certainly far less of it than that garnered locally and at the same time by offshore juristic

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biographies.19 The most that can be said in defence of juristic biographies is probably that they are a distinctive and engaging trope that amount to a defensible literary form in its own right, so long as one does not misrepresent it as mainstream legal history. In any event, the Canadian legal-biographical tradition included a related form of near-biographical scholarship in law, the homage volume. Reference to a tradition of twentieth-century Canadian legal biography at large therefore offers a suitable entree into a more focused and detailed discussion of legal homage volumes or Festschrifts, with which this collection shares features. It is again tempting to start by observing that legal homage volumes have enjoyed new and significant local popularity in the last quartercentury. Homage volumes for judges have been a prominent part of that production.20 But collections of essays assembled as tributes to legal academics have predominated, in qualitative and quantitative terms.21 Those volumes are, however, best understood as the current representation of a discernible, local, legal-literary custom.22 It is notable, however, that, despite the continental European origins and profile of the Festschrift as a literary form, legal collections assembled in honour of English-speaking Canadian subjects are proportionately more numerous than homage volumes for Quebecers. It is also noteworthy that Festschrifts for Quebec legal academics far outnumber those for Quebec judges and may be a kind of reflection of conceptions of authority in that legal culture. In any event, though the amount of biographical content has varied from one tribute volume to another, there has generally been enough of it to warrant the inclusion of Canadian legal Festschrifts in the larger category of juristic biography.23 Patterns in the fashionableness, rate of production, and character of locally produced homage volumes for legal subjects essentially parallel those that have prevailed in the publication of Anglo-American or North Atlantic juristic Festschrifts.24 Despite the stable presence of juristic biography as a local, legalliterary form, Canadian commentators have had little to say about its theoretical underpinnings, its strengths or weaknesses as an avenue for historical inquiry, or the ways and means of its production.25 There has been even less published reflection on local homage volumes as vehicles for juristic biography or as forums of legal-historical writing at large.26 As is often the case, those lacunae contrast with historiographic patterns that prevail elsewhere in the North Atlantic world, even when one takes into account the Canadian intelligentsia’s

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proportionately smaller size than that of its American counterpart.27 There has, moreover, been no apparent attempt in Canadian legal writing to integrate the insights of a rich companion literature on the theoretical dimensions of biographical inquiry at large.28 Nor has there been any notable effort in that literature to follow relevant debate occurring in journals like Biography: An Interdisciplinary Quarterly; History and Theory, or Rethinking History: Journal of Theory and Practice.29 Willard Hurst, the late doyen of modern American legal historians, once remarked sarcastically that reading Albert Beveridge’s multivolume biography of United States Chief Justice John Marshall sparked his lifelong commitment to scholarship in legal history.30 That was so, said Hurst, not because the Beveridge quartet was especially informative or insightful but because it was an elitist account of an individual life that revealed little about the social contours of the early nineteenth-century seaboard states or about the legal diversity that characterized them, and because it began with an assumption of personal greatness.31 That biography, like many of its kind, also failed to reconcile writing about courts’ administration of “the rule of law” with studies of judicial personality. In the succeeding seventy-five years, neither Hurst nor his proteges wrote much biography, although they did produce a great deal of legal history “from the ground up.”32 Other Anglo-American scholars have, however, continued to produce juristic biography, including several who have provided an unprecedented recent boost to modern English legal history through that medium.33 A similar trend has emerged elsewhere in the British Commonwealth.34 That is not to say that modern British or imperial legal history has been written predominantly in biographical form, only that biography has been a significant part of it.35 And, despite Hurst’s misgivings about the unrepresentative character of most biographical subjects and the decontextualized or unduly intellectual nature of studies of them, American juristic biographical writing continues apace.36 It is also notable that the bulk of those juristic biographies, Canadian, English, Commonwealth and American alike, have not been written by practising legal historians. That state of affairs is an awkward one, since it seems to be challenging for nonhistorians (especially lawyers) to appreciate that the collection and organization of information about a life, together with the explanation and assessment of those data, are themselves historically contingent exercises. Part of that difficulty may stem from the fact that

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much juristic biography has been very modern legal history, but there are enough good examples of twentieth-century legal history to show that a recent time frame need not result in journalism or hagiography.37 Insofar as there was scholarship in Canadian legal history before a generation or two ago, that writing tended to be antiquarian, formalistic, or biographical.38 And, although scholarship in local legal history has “taken off” in the last twenty or thirty years, legal history as a discipline still tends to exist on the margins of university faculties of arts, social science, and law. For the most part, production of legal homage volumes and biographies has persisted and even expanded as a field of Canadian intellectual activity, in spite of the emergence of more ambitious and diverse forms of local historical scholarship in law.39 This collection is probably best described as a hybrid of homage (or Festschrift) and biographic forms. It has more (and more rigorous) history in it than one finds in many homage volumes, and it deals with events and periods in Le Dain’s life in a manner different from the treatments of topics of interest to an honouree that one often finds in Festschrifts. There are, however, too many gaps in Le Dain’s life in this collection to call it a full-blown biography. More detailed discussion of the ways that specific essayists in this anthology have attempted to deflect criticisms sometimes directed towards legal life stories or celebrations of those lives is provided in the third section of this introductory chapter, “Tracings of a Life in the Law.”

G e r a l d L e Dai n Only one significant law journal article about Gerald Le Dain has been published, and it focused on his use of the constitutional language of “free and democratic societies” in the immediate pre- and post-Charter-enactment periods. It has been reproduced in this anthology.40 Le Dain is also mentioned, in passing, in general histories of the institutions with which he was associated and in the multiplying biographies of jurists with whom he worked.41 His death late in 2007 led to the publication of several brief eulogies and obituaries, and, perhaps naturally, he regularly figured in local “who’s who’s” and related publications.42 But there has not yet been sustained treatment – academic, journalistic or otherwise – of any aspect of Le Dain’s life.

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Gerald Le Dain was born to Eric George Bryant Le Dain and Antoinette Louise Whithard in Montreal in 1924. His younger brother and only sibling, Bruce, achieved prominence as a Quebec-based landscape painter with work reminiscent of the Canadian Group of Seven.43 The Le Dains were Anglo-Quebecers who took pride in their family’s French Protestant (Huguenot), Channel Islands heritage. Le Dain attended Westhill High School on West Hill Avenue in Montreal’s Notre-Dame-de-Grâce neighbourhood, and subsequently began McGill University’s bachelor of arts program in 1942 as a William Birks Scholar. He enlisted in the Canadian armed forces the next year and, following the McGill Army Training Course, saw active service as an artilleryman in Europe. The war’s conclusion led to his enrolment in England’s Khaki University in 1945, where he met his wife-to-be, Cynthia Emily Roy, at a debating tournament with a private girls’ school (Westfield College). They were engaged to be married two weeks later!44 On return to Montreal in 1946, Le Dain commenced McGill’s bachelor of civil law program on a veteran’s bursary. He completed that degree in 1949, with the school’s Elizabeth Torrance Gold Medal and its Sir William Macdonald Travelling Scholarship, which enabled him to undertake and complete doctoral studies in law at France’s Université de Lyon.45 Despite that string of academic successes, Le Dain remained sensitive about his middling social background, especially during the time he was studying on scholarships or bursaries and later in a profession populated in ­significant measure by more privileged Anglo-Quebecers.46 On his return from graduate legal studies, Le Dain started law practice with Montreal’s Walker, Martineau, Chauvin, and Allison firm. He joined McGill’s Faculty of Law as a full-time instructor and its secretary in 1953.47 In that position, which Le Dain filled until 1959 and again from 1966 to 1967, he taught and wrote primarily in fields of federal common law like banking and negotiable instruments, and in the area of judicial review of administrative action.48 Although full-time Canadian legal academics were few during that period, it can be said that Le Dain’s scholarly production was respectable by prevailing customs.49 Le Dain shifted employers between 1959 and 1961 to join the Legal Department of the Canadian International Paper Company and thereafter practised law for a further five years with the Montreal firm of Riel, Le Dain, Bissonnette, Vermette, and Ryan. Long-time McGill teaching colleague and Montreal neighbour of the Le Dains Ivan

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Gerald Le Dain on a winter outing, courtesy of the Le Dain family

Vlasic thought that Le Dain’s concern about providing financially for his growing family was an important motivator of those changes of employment.50 Le Dain’s family came to include six children: Jacqueline, Catherine, Barbara, Caroline, Eric, and Jennifer (one of whom became a lawyer). In any event, a significant part of his work at Senator Maurice Riel’s firm consisted of providing opinions in constitutional matters to the attorney general of Quebec, which resulted (on about a dozen occasions) in appearances by him before the Supreme Court of Canada.51 Those mandates led to the achievement by Le Dain in 1965 of the position advisor to the special counsel on the Constitution to the minister of justice, and, in 1968, to his appointment as a consultant to the Royal Commission on Bilingualism and Biculturalism.52 Most important in that emerging sequence of involvement in commissions of inquiry was Le Dain’s work, from

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1969 to 1973, as chair of the colloquially named “Le Dain Commission Inquiry” into Canadians’ non-medical use of drugs. Le Dain became dean of Osgoode Hall Law School in 1967, a position that required him to oversee and consolidate for a period of five years the move of that school from the control and geographic precincts of the Law Society of Upper Canada to York University.53 Peggy (Mrs Bora) Laskin and Le Dain’s McGill law-teaching colleague Jean-Gabriel Castel seem to have been responsible for the recommendations that led to his appointment to Osgoode.54 The reasons for Le Dain’s move from Montreal to Toronto are less clear but probably had to do with administrative lethargy at McGill, his general curiosity and ambition, and his need for income enhancement. Le Dain continued at Osgoode for two years after the conclusion of his deanship, again teaching primarily in the fields of constitutional law, banking law, and administrative processes. Perhaps suitably, this volume will be published very close to the fiftieth anniversary year of his assumption of Osgoode Hall’s deanship at York University. Le Dain was appointed to the Federal Court of Appeal and the Court Martial Appeal Court in 1975 and quickly became a judicial specialist in areas of law that he had been practising and teaching or writing about for a quarter century: administrative law, maritime law, and the law of banking and negotiable instruments. His production on the Federal Court was influential and prolific and compares favourably in qualitative and quantitative terms with the work of other similarly situated Canadian judges of the day.55 High external recognition also began during his Federal Court of Appeal years, with Le Dain receiving honorary doctor of legal letters degrees from Concordia (1976), York (1976), and Acadia (1978) Universities. McGill followed in 1985, and Le Dain was made a Companion of the Order of Canada in 1989. McGill University’s Faculty of Law has, moreover, recently announced major fund-raising for a Le Dain Endowment in Constitutional and Administrative Law.56 Bora Laskin’s death in 1984 created a vacancy on the Supreme Court of Canada that was filled by the Liberal government of Pierre Elliott Trudeau (on the recommendation of Minister of Justice and former University of Windsor Faculty of Law Dean Mark MacGuigan) with Gerald Le Dain. In the assessment of Federal Court historian Ian Bushnell, the Federal Court “received a burst of positive publicity in May 1984 when it was announced that Gerald Le Dain of the [Federal] Court of Appeal had been appointed to the Supreme Court

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of Canada. Le Dain was the first judge to go from the Federal Court to the highest court [and was followed in that transition by Frank Iacobucci and Marshall Rothstein].”57 Le Dain sat on the “Dickson” Supreme Court for four years and was thus regularly engaged by early Charter cases.58 He continued, however, to make a mark in private law “writ large,” divisionof-­powers jurisprudence, and in the law of judicial review of administrative action.59 Commentators on that Court’s business have observed that Le Dain’s institutional practices there were conventional, insofar as he rarely turned in solo dissents, separate concurrences, or otherwise occupied outlying positions.60 In some aspects of life Le Dain was, as Harry Arthurs has put it, “a locomotive of a man.” Several observers have pointed out, for example, that he wrote the Supreme Court’s decision in Regina v Therens (a “driving under the influence of alcohol” case that remains the leading Canadian judgment on the meaning of “police detention”) in the wake of the death in 1975 of his daughter Jacqueline in a traffic accident (but not at the hands of a drunken driver, as some commentators have reported).61 That perseverance is testament to Le Dain’s character and principle, of which Arthurs spoke. In other moments, however, he tended toward self-doubt. Indeed, John Evans has identified in this volume several of those moments to which Le Dain himself drew public attention.62 Le Dain left the Supreme Court in the fall of 1988. Contributors to this volume like Bernard Hibbitts, Richard Janda, and Stephen Scott have referred in their chapters to the context of that departure, which was followed by a sort of “nervous exhaustion” or “depression” that led to Le Dain’s hospitalization for a couple of months in the mental health ward of a Quebec military hospital.63 That treatment seems to have been provoked by the insistence by Court administrators that he retire. Early exits may sometimes be preferable for judges and their constituents, but there seems to be and to have been significant family, medical, and fraternal legal opinion that it was premature in Le Dain’s case.64 A different result might have followed today, almost thirty years later, since treatment regimens and especially public understanding of mental illness have changed considerably. Le Dain’s departure from the Court was also complicated by the impending illness-based retirement of Justice Jean Beetz, and especially the concurrent ordinary-course retirement of the increasingly controversial and sometimes underproductive Justice Willard Estey.

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In any event, and contrary to a recent tendency among retired judges, Le Dain did not re-enter the practice of law, accept consulting mandates, or offer alternative dispute-resolution services during those twenty years. Although capable, he effectively did not work in law after he left the Supreme Court, and that form of retirement had something to do with the circumstances under which he left the Court.65 Instead, Le Dain spent time in local historical and neighbourhood projects with his wife Cynthia (who predeceased him in 1995, with cancer), with his surviving children (his daughter Catherine also predeceased him in 1998), and with his grandchildren, often at the family’s summer home in Quebec’s Laurentians district.66 He was also his wife’s primary caregiver during her extended last illness. Family life has rarely been treated in homage volumes, and excerpts from Le Dain’s diaries in this anthology (his letters home from war service in Holland and Germany, for example) were therefore welcome.67 Le Dain also maintained regular and warm contact in retirement with his former judicial clerks and articling students. Indeed, three of those clerks or articling students (Bernard Hibbitts, Richard Janda, and Rosemary Cairns Way) are contributors to this collection, and five of them followed in Le Dain’s footsteps as legal academics (Janda, Hibbitts, Cairns Way, Bruce Ryder, and Robert Solomon; the other Le Dain clerks, now in active law practice, were Lisa Brownstone, Leslie Kelleher, and David Butt). Personal loyalty and continuing close relations are not unusual among Canadian judges and their clerks, but the regard Le Dain inspired in his clerks is striking.68 Judicial clerks are bound by long-term, contractually stipulated obligations of confidentiality to the Supreme Court, as well as by their judges’ and juridical communities’ expectations of decency. Those duties and understandings have been the object of greater refinement and scrutiny in the United States than in Canada, sometimes more often on the basis of their breach than their observance. Presumably that is because judicial clerks have been retained by American appellate courts for more than a century, and because there are hundreds of them at any one time.69 Customs in which Canadian clerks participate in confidence are, perhaps naturally, evolving, and those are the caveats and spirit with which the contributions to this collection by Le Dain’s judicial clerks should be viewed.70 Preliminary plans for this project had Le Dain’s blessing and that of his family prior to his death, but it bears emphasis that none of the extended family participated in the conception, writing, or editing

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of individual chapters other than the CBC documentary by Bonnie Brown that is reproduced in this volume. Although Le Dain provided the editor with excerpts from his unpublished memoirs, portions of which were then shared with several of the authors of chapters in this book, he exercised no role in the choice of contributors to this collection or in their articulation of topics or themes. His only suggestion was that a number of his former judicial clerks (of whom there were six) and articled law students or stagiaires (of whom there was one) be invited to participate in it. Indeed, one of the unfortunate parts of that sequence of events is that Le Dain passed away before potential contributions to this volume had been solicited, which made oral histories with him by any of its authors impossible. Le Dain’s voice can, however, be heard in these pages from time to time through the reproduction of portions of his memoirs.71 Nor did any of the chapters, except perhaps the preface and post-face, begin with the premise that Le Dain was self-evidently a good public servant or that a plurality of observers would share his values and views. At most, the animating assumption was that his presence made a difference in the sometimes arcane but exalted worlds of legal education, law reform, and judging, and that that difference merited assessment.

T r ac in g s o f a L ife i n the Law Bernard Hibbitts’s preface and Allen M. Linden’s postface to this volume are warm and pithy descriptions of highlights in Le Dain’s personal and professional life by a former judicial clerk and a lawschool teaching colleague.72 Focusing on the Toronto years of the sixties and seventies, which Le Dain spent in full-time university administration or teaching at Osgoode Hall Law School, and on his subsequent two decades in Ottawa, they emphasize his law-reform work that ultimately helped to repatriate the Canadian Constitution and enact the Charter of Rights and Freedoms, as well as his engagement with those laws. Adjectives like affable, enthusiastic, courageous, charismatic, and inspirational helped to frame those accounts and to draw together the topic-specific chapters that follow and precede them. A first substantive chapter of this volume consists of Le Dain’s recollections of his World War II military training and service, memoirs that were written long after that experience from notes he made as an eighteen-, nineteen-, and twenty-year-old artilleryman in the

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war-fields of Belgium, Holland, and Germany, and from letters he sent to his parents in Montreal.73 Sleeping in slit trenches, bombedout buildings, and barnyards before crossing the Rhine River with a large Allied force have been described by several contributors to this collection as events that had a lifelong impact on Le Dain, and it therefore seemed appropriate for him to describe them in his own words. Those memoirs also show that even under adversity he was a gifted observer of context and detail and an elegant writer. C. Ian Kyer, the contemporary historian of the Fasken, Martineau law firm, continued these tracings of a life with twenty-five-year-old Le Dain entering law practice at Montreal’s Walker, Martineau, Chauvin, Walker and Allison, an established seven-person anglophone litigation firm that was developing into a full-service practice with an expanding corporate-commercial clientele.74 Although Le Dain spent only three years at Walker, Martineau (and was moonlighting at McGill’s Faculty of Law as a lecturer during much of that period), it seemed important to survey formative surroundings in his first lawrelated job.75 The character of that practice as a general one is not unrelated to the broader theme, canvassed in several other chapters of this volume, of Le Dain as a confirmed legal generalist. An interview with Stephen Scott, an early-1960s McGill law student, reveals something of part-time instructor Le Dain in the classroom and complements the next chapter by Roderick Macdonald on their young subject as a career legal academic.76 Le Dain is described by Scott as having lived “the agony and the ecstasy of the law” before students’ eyes by wrapping himself around desks, lecterns, and chairs. That pedagogical style was not Socratic or otherwise intimidating. But it was nonetheless energized, with the litigants’ conflicts being played out through Le Dain’s sometimes chaotic theatre. By many accounts, he loved to teach and could do so effectively in a variety of settings by collapsing physical space, hierarchy, and formality as necessary. The summer of 1953 saw Le Dain accept a full-time teaching position in McGill’s law school, building on his earlier doctoral studies in France, his publications in the newly minted McGill Law Journal, and on a couple of years of part-time lecturing.77 Macdonald’s treatment of the following decade and a half during which Le Dain continued at McGill under several different arrangements emphasizes his subject’s capacious view of legal education and the sites where it takes place, themes that are echoed in later chapters of this collection by

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Harry Arthurs and Rosemary Cairns Way. Features of Le Dain’s pedagogy are said by Macdonald, a former student of Le Dain at Osgoode Hall Law School, to have been inclusiveness, the inculcation in students of responsibility for the pursuit of social justice, and expansion of the intellectual boundaries of the law-school curriculum to include interdisciplinary content, empirical research, and a range of policy orientations. That chapter also aids understanding of the broader Canadian legal education environment of the 1960s and 1970s. More concretely, Le Dain is reported by Macdonald to have chaired McGill’s Resources Committee of the mid-1960s through which he steered the school towards the creation in 1968 of its trademark National Program of Legal Education and did so despite the oppo­ sition of some members of that committee to curricular reform. Le Dain is thus described as having been long on collegial and prudential governance in the academy, which made him the managerial antithesis of his McGill contemporaries William Meredith, Frank Scott, and Maxwell Cohen. Harry Arthurs’s chapter in this volume begins with Le Dain’s assumption of the deanship at York University’s new / old Osgoode Hall Law School in 1967, which means that it dovetails instructively with Macdonald’s story of Le Dain in two cities.78 Having been Le Dain’s associate dean and then having succeeded him as dean at Osgoode, Arthurs has a unique point of view. The great debate in Canadian and especially Ontarian legal education at milestone moments in the 1940s and 1960s was whether law students should receive occupational training for legal practice, or a more liberal education in law. Arthurs credits Le Dain with leadership in curricular, pedagogical, and research-related innovations in legal education – locally, provincially, and nationally. Le Dain is also said to have shown leadership by taking Osgoode Hall Law School where it wanted to go. His open-minded, collegial, and prudential approaches to university management thus reappear as a sub-theme among several contributions in this collection That stewardship, and the collateral benefits it offered to other reform-oriented Canadian law schools of the late 1960s, attained new poignancy in 2007 and the years that have followed, said Arthurs, on the basis of the Federation of Canadian Law Societies’ announcement of new regulatory regimes that would subordinate university faculties of law to the practising profession for some of the purposes that Le Dain diplomatically and successfully

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resisted half a century ago.79 Challenges to academic legal education by organizations like the Federation of Canadian Law Societies are likely to continue or even intensify, which makes the Manifesto portion of Arthurs’s chapter relevant in an ongoing way. For three years of his Osgoode Hall Law School deanship and for one year following it, Le Dain chaired a federal commission of inquiry into the non-medical use of drugs. Melvyn Green, author of this collection’s “Accidental Soldier in the War against the War on Drugs,” was one of that commission’s research associates and is now an Ontario Court of Justice judge who has lectured and written since his Le Dain Commission service on the regulation of drugs, drug use, and drug-users.80 The over-arching question posed to that commission was the measure in which criminal law should be used to address harms associated with the non-medical use of drugs. Le Dain was said by Green to have come to that inquiry with a disciplined and inquiring intellect, open-mindedness, and a willingness to consult others, rather than with scientific expertise in the field. Ultimately, Le Dain would have separated criminality from drug use, and he did not support an expansion of it. Le Dain’s underlying concern became the collateral damage caused by the war on drugs once he concluded that the “war” was effectively a war on youth. Thus, the commission’s majority proposed the repeal of criminal prohibitions for simple possession of cannabis and cultivation for personal use, while importing, exporting, and trafficking offences would have remained in force. But Green’s larger claim is that the Le Dain Commission’s legacy is as much in the procedures it followed as in its recommendations. The commission undertook a review of existing knowledge (filling gaps through research, as necessary), it integrated youth into a national consultative process in community forums (it also interviewed John Lennon and Yoko Ono!), and it published an interim report to solicit commentary before a final report was prepared.81 Those processes have been adopted by a number of subsequent commissions of inquiry, but the Le Dain Commission’s substantive recommendations have only recently come to the fore. Le Dain himself played no public role in the formation of Canadian drug policy after he delivered the commission’s 1200-page report to Prime Minister Pierre Elliott Trudeau in 1973. Recent proposals by Prime Minister Justin Trudeau have raised once again the possibility of decriminalizing some kinds of recreational drug use and show the current applicability of Le Dain’s law-reform work on that front.

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“Pleading Public Law Issues in the Barfried Enterprises Case” is another excerpt from Le Dain’s memoirs that has been reproduced in this collection, in which he describes his first experience (in 1963) arguing a constitutional issue as counsel for intervenor “The Government of Quebec” in litigation that challenged Ontario’s unconscionable transactions relief legislation.82 It suggests a telling kind of ambivalence on Le Dain’s part about judicial processes and roles, and sets the stage for the three chapters on his judicial decisions that follow. John Evans deals primarily with Le Dain’s nine years on the Federal Court of Appeal (Evans also sat on that Court, for fifteen years and has been widely regarded as one of Canada’s leading administrative law scholars for several decades).83 Evans also has something to say about Le Dain’s interaction on that Court with the Supreme Court of Canada, then and later, and about his work in administrative law on the Supreme Court.84 His conclusions are clear and striking: Le Dain’s judicial work [on the Federal Court of Appeal, especially the limits on federal jurisdiction, the judiciability of Charter claims, the duty to accommodate in human rights law, and procedural fairness in administrative processes] amply ­fulfilled the promise of his appointment … He was, to my mind, the outstanding public law jurist of his generation … The quality of his decisions is underlined by the fact that they have stood the test of time, whether or not the judges of the Supreme Court of Canada of the day agreed with him. He was in tune with ­modernizing trends in legal doctrine, most notably in his approach to fairness in administrative decision-making and to the interpretation of legislation creating regulatory programs.85 Evans concludes his chapter by observing that Le Dain’s departure from the Supreme Court in 1988 “was an enormous loss to the development of the legal framework governing public administration in Canada.”86 That observation is perhaps especially true in issues related to equality of opportunity, procedural fairness, and judges’ sensitivity to their times and places. Peter Hogg’s contribution to this collection is on Le Dain’s judicial draughtsmanship, appropriately followed a few chapters later by six paragraphs by Le Dain himself, “On Judicial Opinion Writing.”87

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But Hogg’s chapter is also a study of Le Dain’s jurisprudence on the “national concern” branch of Parliament’s British North America Act power over “peace, order, and good government” that was written largely from the perspective of R v Crown Zellerbach. That prosecution resulted from the dumping of forestry waste into British Columbia’s internal waters and led the accused to call into question the validity of a federal law that prohibited ships from dumping waste at sea. Following a “masterful synthesis” of earlier case law and academic writing on the scope and components of the national peace, order, and good government power, Le Dain (writing on behalf of the Court) held that “national concerns” are different and separate from subject matters in which the deployment of federal “emergency” or “gap-filling” power might be justified.88 He also held that national concerns can be matters that have grown from things that were formerly thought to be local or private so long as they have achieved national indivisibility or distinctiveness, and that national concerns relate to matters that the provinces are unable to treat adequately. Since World War II, says Hogg, peace, order, and good government’s “national concerns” had gone beyond local or provincial interest and were inherently of concern to the whole country. But doctrinal confusion and a lack of linguistic clarity characterized overlaps among emergency powers, gap-filling needs, and national issues. Le Dain’s judicial opinion-writing elegance not only untangled those overlaps in substantive constitutional law, says Hogg, but did so through an exemplary piece of literary and logical craftsmanship. Hogg’s chapter is a good segue into Richard Janda’s contribution that follows, which surveys Le Dain’s theoretical bases for his judgment in Crown Zellerbach. Janda’s chapter in this volume also grew from the Supreme Court’s decision in Crown Zellerbach, and he uses that text to gain access to Le Dain’s sense of the impact or implication of judicial holdings for the future.89 A similar standpoint could profitably be adopted, says Janda, to illuminate Le Dain’s efforts to chart a future course of rapprochement between the Charter’s fundamental freedoms and its “notwithstanding” clause in his later Irwin Toy v Quebec and Ford v Quebec language judgments. But the construction in Crown Zellerbach of a new subject matter of “natural environment” from constitutional silence, in a way that would operate as a constraint on power, is said by Janda to offer a nearly unique study in judicial statecraft. He also offers a good study of Le Dain merging or reconciling his roles as an academic and a judge.90

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Andrée Lajoie and Louise Rolland contribute an application of discourse theory to this anthology, focusing on Le Dain’s pre- and post-Charter juridical engagement with the legal terms of art “liberty,” “society,” and “democracy.”91 The authors’ overarching observation is that Le Dain’s use of the idea of a “free and democratic society” had less to do with his then-current or previously held convictions about that concept or with the Charter of Rights than it had to do with the kind of law with which he was dealing and the rhetorical expectations of his readership in that field. Similar themes surface in the Evans and Cairns Way chapters in this collection.92 Lajoie and Rolland’s methodology and conclusion are relatively rare, and it bears emphasis that thanks are due to that chapter’s authors as well as to the editors of the McGill Law Journal for permission to reproduce it in this volume.93 “On Judicial Opinion Writing” is a third excerpt from Le Dain’s unpublished memoirs, in which he wrote about clarity, precision, coherence, concision, and confidence in judicial decision-making.94 That text is important, because it reveals some of the tension that Le Dain felt as a judge, and it provides a sense of how much he demanded of himself in that role. Le Dain’s refinement of his conceptions of professionalism across several legal careers is the broad topic of Rosemary Cairns Way’s chapter in this collection.95 She describes her subject as an accomplished generalist in the law, whose legal life was characterized by variety and change. The suggestion that legal professionalism is about technical competencies to practise law or specialization would, says Cairns Way, have disturbed Le Dain, because it seems uncultured and antiintellectual, and because it diminishes the potential for shared values. A capacity to deal with change in a manner consistent with the public interest was Le Dain’s talisman and was thus the way he created and recreated a meaningful life in the law. That creation and recreation entailed a commitment to lifelong learning (a corollary of the social power that is acquired through legal training), aspirational professional responsibility closely linked to ideals of social justice, representativeness and equality in the legal profession, and a shared professional culture built on a liberal education in law and life. For Cairns Way, the striking feature of Le Dain’s professionalism was his capacity to continue refining and practising it in the complementary but diverse settings of law teaching, legal scholarship, university and public-sector administration, law reform, judging, and mentoring judicial clerks.

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It bears repetition that the broad themes of this collection are Gerald Le Dain’s intellectual and managerial contributions to the Canadian legal academy, his contributions to law reform as a constitutional advisor, a commissioner of inquiry and a judge, and his contributions to appellate jurisprudence. More specific themes are the passion, courage, perseverance, flexibility, empathy, and conciliatory spirit that enabled Le Dain to make those contributions to diverse national institutions. The last substantive chapter of this collection, Bonnie Brown’s “One Judge Down,” reproduces a C B C Radio documentary from Michael Enright’s Sunday Edition that was built on several of this volume’s chapters and involved interviews with contributors to this collection. That documentary also provided a first opportunity for Le Dain’s adult children to widely share recollections of their father’s family and professional life, and their sentiments about his retirement from public life. In conclusion, thanks are owed to this collection’s contributors for their engagement and their commitment to its assembly. Several of those essayists have one-of-a-kind standpoints on Le Dain’s legal life (Arthurs, Cairns Way, Green, Hibbitts, Janda and Scott, for example) and several others have unique expertise in the products of that life-work (Hogg, Kyer and Evans, for instance). Gratitude is also due to the Le Dain family and to former national librarian of Canada (and Le Dain’s long-time McGill teaching colleague) Marianne Scott, for organization of and access to otherwise closed Le Dain memoirs and archival deposits that were made accessible to several of the contributors.96 The support extended to me by the University of Toronto’s Faculty of Law during the time this anthology took shape also merits kind acknowledgement.97 Those people and institutions made possible these tracings of a life in the law, together with the chapters’ related contribution to prevailing deployments of homage volumes and biographies as historical and literary forms of writing.

A c k n ow l e d gments I am grateful to Melvyn Green, Rande Kostal, and Mary Stokes, as well as to the Osgoode Society’s 2017 Legal History Workshop and to the anonymous reviewers at McGill-Queen’s University Press, for helpful comments on an earlier version of this text.

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n otes   1 See generally David Sugarman, “From Legal Biography to Legal LifeWriting: Broadening Conceptions of Legal History and Socio-Legal Scholarship,” Journal of Law and Society 42 (2015): 7; William Cornish, Life Stories and Legal Histories (London: Selden Society, 2015); Susan Bartie, “Histories of Legal Scholars,” Legal Studies 34 (2014): 305; R. Gwynedd Parry, “Is Legal Biography Really Legal Scholarship?,” Legal Studies 30 (2010): 208; Richard A. Posner, “Judicial Biography,” New York University Law Review 70 (1995): 502. See also text at notes 26 and 27.   2 See generally Michael Stuckey, “Early Modern English Humanism and Antiquarianism: The Prosopographical Method and Reflections on Historico-Legal Tradition,” Journal of Legal History 33 (2012): 31; Diana K. Jones, “Researching Groups of Lives,” Qualitative Research 1 (2001): 325; Paul Sturges, “Collective Biography in the 1980s,” Biography 6 (1983): 316.   3 See Constance Backhouse, Claire L’Heureux-Dubé: A Life (Vancouver: University of British Columbia Press, 2017); William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand (Toronto: University of Toronto Press, 2009); Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: University of Toronto Press, 2005); Frederick Vaughan, Aggressive in Pursuit: The Life of Chief Justice Emmett Hall (Toronto: University of Toronto Press, 2004); Robert J. Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey (Toronto: University of Toronto Press, 2003); Ellen Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2002); William H. McConnell, William R. McIntyre: Palladium of the Common Law (Montreal and Kingston: McGill-Queen’s University Press, 2000). See also Carol Off, The Lion, the Fox, and the Eagle (Toronto: Vintage Canada, 2001); Gordon Bale, Chief Justice William Johnstone Ritchie: Responsible Government and Judicial Review (Ottawa: Carleton University Press, 1991); David R. Williams, Duff: A Life in the Law (Vancouver: University of British Columbia Press, 1984).   4 See Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land (Montreal and Kingston: McGill-Queen’s University Press, 1999); William Kaplan, Bad Judgment: The Case of Mr Justice Leo A. Landreville (Toronto: University of Toronto Press, 1996); Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer (Toronto: Osgoode Society, 1994); Reginald H. Roy, Sherwood Lett: His Life and Times (Vancouver: UB C Alumni Association, 1991); John D. Arnup, Middleton: The Beloved

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Judge (Toronto: McClelland and Stewart, 1988); Carolyn Swayze, Hard Choices: A Life of Tom Berger (Vancouver: Douglas & McIntyre, 1987); Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact (Toronto: Osgoode Society, 1984); David R. Williams, The Man for a New Country: Sir Matthew Baillie Begbie (Sydney: Gray’s Publishing, 1977). See also Christine Mander, Emily Murphy, Rebel: First Female Magistrate in the British Empire (Toronto: Simon and Pierre, 1985).   5 See, e.g., on Kaplan, Canadian Maverick: Ian Binnie, “Review,” Canadian Journal of Law and Jurisprudence 26 (2012): 3; Jamie Cameron, “Review,” Osgoode Hall Law Journal 48 (2010): 365. On Girard, Bringing Law to Life: Lorne Sossin, “Review,” University of Toronto Law Journal 59 (2009): 251; Jennifer Smith, “Review,” Canadian ­Historical Review 88 (2007): 322; Gilles Renaud, “Review,” Canadian Criminal Law Review 10 (2006): 205; Thomas R. Braidwood, “Review,” Advocate 64 (2006): 861. On Vaughan, Aggressive in Pursuit: Amanda Doucette, “Review,” Saskatchewan Law Review 69 (2006): 455; S. Akbar Hussain, “Review,” McGill Law Journal 50 (2005): 697; Jim Miller, “Review,” Queen’s Law Journal 31 (2005): 419. On Sharpe and Roach, Brian Dickson: Brian A. Crane, “Review,” Ottawa Law Review 36 (2005): 362; Jamie Cameron, “Review ” University of Toronto Law Journal 55 (2005): 93. On Anderson, Bertha Wilson: Anon., “Review,” Alberta Law Review 49 (2012): 751; Paul Sheridan, “Review,” University of Toronto Faculty of Law Review 61 (2003): 133; Antonio Lamer, “Review,” Ottawa Law Review 33 (2002): 433; Rebecca Johnson, “Review,” Canadian Bar Review 81 (2002): 483; Gordon Bale, “Review,” Supreme Court Law Review 18 (2002): 503; Jodi McNaughton, “Review,” Saskatchewan Law Review 65 (2002): 589; Keneth Whiteway, “Review,” Canadian Law Libraries 26 (2001): 63. On McConnell, William R. McIntyre: DeLloyd J. Guth, “Review,” Ottawa Law Review 34 (2002): 159; Gordon Bale, “Review,” Canadian Bar Review 80 (2001): 589. On Pound, Chief Justice W.R. Jackett: Laurent William Bartleman, “Review,” ­Saskatchewan Law Review 64 (2001): 303. On Boyer, Passion for J­ ustice: Gregory Tardi, “Review,” Canadian Bar Review 74 (1995): 388; Gordon Bale, “Review,” Queen’s Law Journal 21 (1995): 273; Gilles Renaud, “Revue,” Revue general de droit 26 (1995): 73. On Bale, William Johnstone Ritchie: Louis A. Knafla, “Review,” Canadian Journal of Law and Society 9 (1994): 240; Ian Bushnell, “Review,” Queen’s Law Journal 18 (1993): 258; Marc Nadon, “Review,” 34 Cahiers de droit 34 (1993): 311; Philip Girard, “Review,” Ottawa Law Review 23 (1991): 713. On Arnup, Middleton: DeLloyd J. Guth, “Review,” Canadian Bar Review 68 (1989): 862; Patrick

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Brode, “Review,” Ottawa Law Review 20 (1988): 503. (On Brode, John ­Beverley Robinson:) G. Blaine Baker, “Review,” Canadian Historical Review 68 (1987): 147; Stephen M. Waddams, “Review,” American ­Journal of Legal History 30 (1986): 283; DeLloyd J. Guth and F. Murray Greenwood, “Review,” Osgoode Hall Law Journal 24 (1986): 1043; David Howes, “Review,” University of New Brunswick Law Journal 35 (1986): 231; Peter E. Russell, “Review,” University of Western Ontario Law Review 23 (1985): 111. On Williams, Duff: Ian A. Hunter, “Review,” University of Western Ontario Law Review 24 (1987): 119; Arthur L. Close, “Review,” University of British Columbia Law Review 20 (1986): 201; Stephen M. Waddams, “Review,” American Journal of Legal History 30 (1986): 283; William H. McConnell, “Review,” Saskatchewan Law Review 49 (1984): 378.   6  See, e.g., Jamie Cameron, “Review,” 39 Ottawa Law Review 39 (2007): 441; Stephen M. Waddams, “Review,” University of Toronto Law Journal 55 (2005): 1023; C.M. Long “Review,” Canadian Journal of Political Science 35 (2002): 435; Margaret H. Ogilvie, “Review,” Canadian Bar Review 72 (1993): 414; G. MacKenzie, “Review,” Canadian Bar Review 69 (1990): 845; Phillip Siller, “Review,” Supreme Court Law Review 11 (1989): 497; W.K.A. Emslie, “Review,” Manitoba Law Journal 17 (1987): 328; Patrick Brode, “Review,” Saskatchewan Law Review 51 (1986): 341; Jamie Cassels, “Review,” University of Toronto Law Journal 36 (1986): 318; Frederick Vaughan, “Review,” Supreme Court Law Review 5 (1985): 431; Paul E. Norton, “Review,” University of British Columbia Law Review 19 (1985): 300; G.H.L. Fridman, “Review,” Canadian Bar Review 63 (1985): 268; G.H.L. Fridman, “Review,” Canadian Bar Review 63 (1985): 265; Michel Krauss, “Review,” Canadian Bar Review 62 (1984): 451; G.H.L. Fridman, “Review,” Canadian Bar Review 61 (1983): 913; W.A. Bogart, “Review,” Supreme Court Law Review 5 (1983): 405; Phillip Slayton, “Review,” University of Western Ontario Law Review 20 (1982): 174; Ruben A. Hasson, “Review,” Supreme Court Law Review 3 (1982): 559; Peter Nowell-Smith, “Review,” Osgoode Hall Law Journal 20 (1982): 419; David Cohen, “Review,” University of British Columbia Law Review 15 (1981): 499; E.G. Hudon, “Revue,” Cahiers de droit 22 (1981): 473; Gordon Bale, “Review,” Queen’s L.aw Journal 7 (1981): 174; William H. McConnell, “Review,” Saskatchewan Law Review 43 (1978): 229; William H. McConnell, “Review,” Canadian Bar Review 50 (1972): 176; Cameron Harvey, “Review,” Canadian Bar Review 47 (1969): 542; Bora Laskin, “Review,” Ottawa Law Review 2 (1968): 511; C.H.C. Edwards, “Review,” Manitoba Law Journal 3 (1968): 162; Roy

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St G. Stubbs, “Review,” Manitoba Law Journal 2 (1967): 318; C.H.C. Edwards, “Review,” Manitoba Law Journal 2 (1967): 327; John Willis, “Review,” University of Toronto Law Journal 17 (1967): 231; R.N. Starr, “Review,” Osgoode Hall Law Journal 2 (1960): 231; A.F. Vassal, “Review,” Canadian Bar Review 39 (1961): 659; R.N. Starr, “Review,” Osgoode Hall Law Journal 2 (1960): 561; J.B. McGeachy, “Review,” Osgoode Hall Law Journal 1 (1958): 91; H.C. Goldberg, Canadian Bar Review 35 (1957): 872; Albert S. Abel, Canadian Bar Review 35 (1957): 997; Harry Batshaw, “Review,” McGill Law Journal 2 (1955): 123; Walter S. Johnson, “Review,” Canadian Bar Review 30 (1952): 90; W.P.M. Kennedy, “Review,” University of Toronto Law Journal 9 (1951): 167; B. Wilkinson, “Review,” University of Toronto Law Journal 9 (1951): 357; P.B.C. Pepper, “Review,” Canadian Bar Review 28 (1950): 361; George S. Challies, “Review,” Canadian Bar Review 28 (1950): 1048; F.R. Scott, “Review,” University of Toronto Law Journal 8 (1949): 410; W.P.M. Kennedy, “Review,” University of Toronto Law Journal 8 (1949): 288; J.R. Johnson, “Review,” Canadian Bar Review 26 (1948): 1498; R. St G. Stubbs, “Review,” Canadian Bar Review 25 (1947): 533; Stubbs, “Review,” Canadian Bar Review 24 (1946): 943; W.P.M. Kennedy, “Review,” University of Toronto Law Journal 6 (1945): 236; Kennedy, “Review,” University of Toronto Law Journal 4 (1941): 434; Kennedy, “Review,” University of Toronto Law Journal 4 (1941): 237; N.A.M. MacKenzie, “Review,” University of Toronto Law Journal 3 (1939): 228; J.F. Dawson, “Review,” University of Toronto Law Journal 3 (1939): 227; F.C. Auld, “Review,” University of Toronto Law Journal 2 (1937): 436; A.A. Macdonald, “Review,” Canadian Bar Review 15 (1937): 742; Charles Morse, “Review,” Canadian Bar Review 13 (1935): 689; R.A. MacKay, “Review,” Canadian Bar Review 12 (1935): 186; F.C. Auld, “Review,” Canadian Bar Review 10 (1932): 402; Charles Morse, “Review,” Canadian Bar Review 8 (1930): 171; William Renwick Riddell, “Review,” Canadian Bar Review 7 (1929): 569; C. Morse, “Review,” Canadian Bar Review 6 (1928): 485; Morse, “Review,” Canadian Bar Review 4 (1926): 350.   7 See generally text and sources at notes 24, 26, and 27.   8 See Eric M. Adams, “The Idea of Constitutional Rights and the Transformation of Canadian Constitutional Law, 1930–1960” (SJ D thesis, ­University of Toronto, 2009); Sandra Djwa, The Politics of the Imagination: A Life of F.R. Scott (Toronto: McClelland and Stewart, 1987). See also Brian Young, Patrician Families and the Making of Quebec: The Taschereaus and McCords (Montreal and Kingston: McGill-Queen’s

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University Press, 2014); Andrée Lajoie, La vie intellectuelle de Rod ­Macdonald: un engagement (Montreal: Thémis, 2014); Michael S. Cross, A Biography of Robert Baldwin: The Morning-Star of Memory (Don Mills, O N : Oxford University Press, 2012); David A. Wilson, Thomas D’Arcy McGee, 2 vols (Montreal and Kingston: McGill-Queen’s University Press, 2008–11); André Pratte, Extraordinary Canadians: Wilfrid ­Laurier (Toronto: Penguin Canada, 2011); Richard Gwynne, John A. Macdonald: His Life, Our Times (Toronto: Random House, 2011); Joanne Chalmers, Portrait of a Mandarin: A Biography of Norman Allan Chalmers, QC , 1929–1996 (Toronto: Chalmers, 2004); Gwynne, John A., the Man Who Made Us: The Life and Times of John A. Macdonald (Toronto: Random House, 2007); George Finlayson, John J. Robinette, Peerless Mentor: An Appreciation (Toronto: Dundurn, 2003); Laurel ­Sefton McDowell, Renegade Lawyer: The Life of J.L. Cohen (Toronto: University of Toronto Press, 2001); Barry Cahill, The Thousandth Man: A Biography of James McGregor Stewart (Toronto: University of Toronto Press, 2000); Azmina Suleman, In the Name of Justice: Portrait of a ­Cowboy Judge: A Biography of James Valentine Hogarth Milvain (Calgary: Legal Archives Society of Alberta, 1998); Peter B. Waite, The Man from Halifax: Sir John Thompson, Prime Minister (Toronto: University of Toronto Press, 1995); Harry Bruce, Corporate Navigator: The Life of Frank Manning Covert (Toronto: McClelland and Stewart, 1995); Charles Pullen, The Life and Times of Arthur Maloney: The Last of the Tribunes (Toronto: Dundurn, 1994); Roger Graham, Old Man Ontario: Leslie M. Frost (Toronto: University of Toronto Press, 1990); Peter B. Waite, Lord of Point Grey: Larry MacKenzie of UBC (Vancouver: University of British Columbia Press, 1988); Allan K. McDougall, John P. Robarts: His Life and Government (Toronto: University of Toronto Press, 1986); Jack ­Batten, Robinette: The Dean of Canadian Lawyers (Toronto: McMillan, 1984); Dale Gibson, Attorney for the Frontier: Enos Stutsman (Winnipeg: University of Manitoba Press, 1983); Brian Young, George-Étienne Cartier: Montreal Bourgeois (Montreal and Kingston: McGill-Queen’s University Press, 1981); David J. Hall, Clifford Sifton: The Young Napoleon, 1861– 1900 (Vancouver: University of British Columbia Press, 1981); Brian Cuthbertson, The Old Attorney General: A Biography of Richard John Uniacke (Halifax: Nimbus, 1980); Gérard Parizeau, La vie studieuse et obstinée de Denis Benjamin Viger (Montreal: Fides, 1980).   9 See Frances G. Halpenny and Jean Hamelin, eds, Dictionary of Canadian Biography, vol. 11 (Toronto: University of Toronto Press, 1982); Halpenny and Hamelin, eds, Dictionary of Canadian Biography, vol. 12 (Toronto:

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University of Toronto Press, 1990); Ramsay Cook and Jean Hamelin, eds, Dictionary of Canadian Biography, vol. 13 (Toronto: University of Toronto Press, 1994); Cook and Hamelin, eds, Dictionary of Canadian Biography, vol. 14 (Toronto: University of Toronto Press, 1998). 10 See Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from the Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1992). See also Julie Soloway and Emma Constante, Leading the Way: Canadian Women in the Law (Toronto: LexisNexis, 2015); John Ralston Saul, Extraordinary Canadians: Louis-Hippolyte Lafontaine and Robert Baldwin (Toronto: Penguin Canada, 2010); Legal Archives Society of Alberta, Just Works: Lawyers in Alberta, 1907–2007 (Toronto: Irwin Law, 2007); Mary Jane Mossman, The First Women Lawyers: A Comparative Study of Gender, the Law, and the Legal Profession (Oxford: Hart, 2006); Jack Batten, Learned Friends: A Tribute to Fifty Remarkable Ontario Advocates, 1950–2000 (Toronto: Irwin Law, 2005); David R. Williams, Just Lawyers: Seven Portraits (Toronto: University of Toronto Press, 1995); A.W.B. Simpson, ed., Biographical Dictionary of the Common Law (London: Butterworth, 1984); J.M.S. Careless, ed., The Pre-Confederation Premiers: Ontario Government Leaders, 1841–1867 (Toronto: University of Toronto Press, 1980); R. St G. Stubbs, Prairie Portraits (Toronto: McClelland and Stewart, 1954). 11 See, e.g., R. Roy McMurtry, Memoirs and Reflections (Toronto: University of Toronto Press, 2013); Alan A. Borovoy, “At the Barricades”: A Memoir (Toronto: Irwin Law, 2013); Allan Blakeney, An Honourable Calling: Political Memoirs (Toronto: University of Toronto Press, 2008); Martin L. Friedland, My Life in Crime and Other Academic Adventures (Toronto: University of Toronto Press, 2007); Roland Penner, A Glowing Dream: A Memoir (Winnipeg: Shillingford Publishing, 2007); Frank Manning Covert, Fifty Years in the Practice of Law (Montreal and Kingston: McGill-Queen’s University Press, 2005); David W. Beaubier, Prairie Lawyer, Country Judge (Regina: Law Society of Saskatchewan, 2005); Alex K. Paterson, My Life at the Bar and Beyond (Montreal and Kingston: McGill-Queen’s University Press, 2005); Fred Kaufman, In Search of Justice: An Autobiography (Toronto: University of Toronto Press, 2005); Thomas R. Berger, One Man’s Justice: A Life in the Law (Seattle: University of Washington Press, 2002); Ian Scott and Neil McCormick, To Make a Difference: A Memoir (Toronto: Stoddart, 2001); Sam H.S. Hughes, Steering the Course (Montreal and Kingston: McGillQueen’s University Press, 2000); David Vanek, Fulfillment: Memoirs of a Criminal Court Judge (Toronto: Dundurn, 1999); Webster MacDonald,

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Memoirs of a Maverick Lawyer: Be Jublilant My Feet (Calgary: Detselig Enterprises, 1993); Peter K. McWilliams, The Rambling Tales of a Country Lawyer (Toronto: McWilliams, 1990); David Walker, Fun along the Way: Memoirs of Dave Walker (Toronto: Robertson, 1989); Jules Deschênes, Sur la ligne de feu: autobiographie d’un juge en chef (Montreal: Stanké, 1988); John Stanton, Never Say Die! The Life and Times of a Pioneer Labour Lawyer (Ottawa: Steel Rail Publishing, 1987); L. St G. Stubbs, A Majority of One: The Life and Times of Lewis St George Stubbs (Winnipeg: Queenston House, 1983); Murray Peden, Harken to the Evidence (Stittsville, ON : Canada’s Wings, 1983); James A. Corry, My Life and Work: A Happy Partnership (Kingston: Queen’s University, 1981); A.D.P. Heeney, The Things That Are Caesar’s: Memoirs of a Canadian Public Servant (Toronto: University of Toronto Press, 1972). 12 See, e.g., Peter N. Oliver, ed., The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856–1878 (Toronto: University of Toronto Press, 2003); J.M. Bennett, Some Papers of Sir Francis Forbes (Sydney: Parliament of New South Wales, 1998); William H. Morrow, ed., Northern Justice: The Memoirs of Mr Justice William G. Morrow (Toronto: Osgoode Society, 1995); Douglas Hay and Ruth Paley, eds, Friends of the Chief Justice: The Osgoode Correspondence in the Archives of the Law Society of Upper Canada (Toronto: Law Society of Upper Canada, 1990); Michiel Horn, ed., A New Endeavour: Selected Political Essays, Letters, and Addresses by F.R. Scott (Toronto: University of Toronto Press, 1986); Jack H. Sissons, Judge of the Far North: The Memoirs of Jack Sissons (Toronto: McClelland and Stewart, 1968). 13 See Osgoode Society for Canadian Legal History, Annual Report, 2016 (Toronto: Osgoode Society, 2017), 11. See also Elizabeth Dawson, “Archival Sources for Legal Biography at the Institute of Legal Studies,” Legal Information Management 1 (2014): 48. 14 See, e.g., Dale Braun and D.J. MacPherson, eds, “Five Decades of Chief Justices of Manitoba,” Manitoba Law Journal 36 (2012): 1–196; Dale Braun, The Court of Queen’s Bench of Manitoba, 1870–1950 (Toronto: University of Toronto Press, 2006); R. Blake Brown and Susan S. Jones, “A Collective Biography of the Supreme Court Judiciary of Nova Scotia, 1900–2000,” in The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle, ed. Philip Girard, Barry Cahill, and Jim Phillips, 204–42 (Toronto: University of Toronto Press, 2004); Charles E. Haliburton, A Biographical History of the Judges of Nova Scotia, 1754–2004 (Kentville: Judges of Nova Scotia, 2004); Canada. Supreme Court, The Supreme Court of Canada and Its Justices, 1875–2000: A

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Commemorative Book (Toronto: Dundurn, 2000); David R. Verchere, A Progression of Judges: A History of the Supreme Court of British Columbia (Vancouver: University of British Columbia Press, 1998); Louis A. Knafla and Richard Klumpenhouwer, Lords of the Western Bench: A Biographical History of the Supreme and District Courts of Alberta, 1876–1990 (Calgary: Legal Archives Society, 1997); Clara Greco, “The Superior Court of Judicature of Nova Scotia: A Collective Biography, 1754–1900,” in Essays in the History of Canadian Law: Nova Scotia, ed. Philip Girard and Jim Phillips, 41–67 (Toronto: University of Toronto Press, 1990); Ignace-G. Deslauriers, La Cour supérieure du Québec et ses juges 1849–1er janvier 1980 (Quebec: Deslauriers, 1980). See also Barbara Jane Messamore, Canada’s Governors General, 1847–1878: Biography and Constitutional Evolution (Toronto: University of Toronto Press, 2006). 15 Compare Roy St G. Stubbs, Four Recorders of Rupert’s Land (Winnipeg: Peguis Publishers, 1967); Francis-J. Audet, Les Deputés de Montréal, 1792–1867 (Montreal: Les Éditions des Dix, 1943); P.-G. Roy, Les Juges de la Province de Québec (Quebec: Paradis, 1933); F.-J. Audet, Les juges de la province de Québec, 1764–1924 (Quebec: Action Sociale, 1927); A.W.P. Buchanan, The Bench and Bar of Lower Canada down to 1850 (Montreal: Burton’s, 1923); J.W. Lawrence, The Judges of New Brunswick and Their Times (St John: Joseph William Lawrence, 1907); W.A.G. MacAlister, The Bench and Bar of the Provinces of Quebec, Nova Scotia and New Brunswick (Montreal: J. Lovell, 1907); David Breckenridge Read, The Lives of the Judges of Upper Canada and Ontario from 1791 to the Present Time (Toronto: Rowsell and Hutchison, 1888). 16 See, e.g., Norman Bacal, Breakdown: The Inside Story of the Rise and Fall of Heenan Blaikie (Toronto: Barlow Publishing, 2017); C. Ian Kyer, Lawyers, Families, and Businesses: The Shaping of a Bay Street Law Firm, Faskens, 1863–1963 (Toronto: Irwin Law, 2013); Christopher Moore, McCarthy Tetrault: Building Canada’s Premier Law Firm, 1855–2005 (Toronto: Douglas & McIntyre, 2005); Richard W. Pound, Stikeman, Elliott: The First Fifty Years (Montreal and Kingston: McGill-Queen’s University Press, 2002); Carol Wilton, ed., Inside the Law: Canadian Law Firms in Historical Perspective (Toronto: Osgoode Society, 1996); Curtis Cole, Osler, Hoskin and Harcourt: Portrait of a Partnership (Toronto: McGraw-Hill, Ryerson, 1995); Carol Wilton, ed., Beyond the Law: Lawyers and Business in Canada (Toronto: Butterworth, 1994); Douglas Mitchell and Judy Slinn, The History of McMaster, Meighen (Montreal and Kingston: McGill-Queen’s University Press, 1989).

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17 See, e.g., Conrad Black, Duplessis (Toronto: McClelland and Stewart, 1977); Joseph Schull, Edward Blake: The Man of the Other Way, 1833– 1881 (Toronto: Macmillan, 1975); Robert C. Brown, Robert Laird Borden: A Biography (Toronto: Macmillan, 1975); Margaret E. Pang, N.W. Rowell: Ontario Nationalist (Toronto: University of Toronto Press, 1975); L.F.S. Upton, The Loyal Whig: William Smith of New York and Quebec (Toronto: University of Toronto Press, 1969; E. Watkins, R.B. Bennett: A Biography (Toronto: Kingswood House, 1963); R. Graham, Arthur Meighen: The Door of Opportunity (Toronto: Clarke, Irwin, 1960); E.G. MacGill, My Mother the Judge: A Biography of Judge Helen Gregory MacGill (Toronto: Ryerson, 1955); Donald G. Creighton, John A. Macdonald: The Young Politician (Toronto: Macmillan, 1952); A. Marin, L’Honorable Pierre-Basile Mignault (Montreal: Fides, 1946); J.W. Horan, On the Side of the Law: A Biography of J.D. Nicholson (Edmonton: Institute of Applied Art, 1944); Henry Borden, Robert Laird Borden: His Memoirs (Toronto: Macmillan, 1938); Benjamin Russell, Autobiography of Benjamin Russell (Halifax: Royal Print, 1932); William J. Loudon, Sir William Mulock: A Short Biography (Toronto: Macmillan of Canada, 1932); William Renwick Riddell, The Life of William Dummer Powell, First Judge at Detroit and Fifth Chief Justice of Upper Canada (Lansing: Michigan Historical Commission, 1924); H.H. Ardagh, Life of Sir James Robert Gowan KCMG , LLD , Senator of Canada (Toronto: University Press, 1911); A.W.P. Buchanan, The Buchanan Book: The Life of Alexander Buchanan (Montreal: A.W.P. Buchanan, 1911); C.J. Townsend, Life of Honourable Alexander Stewart (Halifax: Charles James Townsend, 1911); C.R.W. Biggar, Sir Oliver Mowat: A Biographical Sketch (Toronto: Warwick Bros and Rutter, 1905); C.W. Robinson, Life of Sir John Beverley Robinson (Toronto: Morang, 1904); Charles Durand, Reminiscences of Charles Durand of Toronto, Barrister (Toronto: Hunter, Rose, 1897); M. Ogilvy, Les hommes du jour: Sir J.J.C. Abbott (Montreal: Cie de moulins à papier, 1891); J. Lathern, The Hon. Judge Wilmot: A Biographical Sketch (Halifax: Wesleyan Office, 1880); C.E. Cartwright, Life and Letters of the Late Honourable Richard Cartwright (Toronto: Bedford Bros, 1876). 18 See, e.g., Philip Girard, “Judging Lives: Judicial Biography from Hale to Holmes,” Australian Journal of Legal History 7 (2003): 87. 19 But see Cameron Harvey, “Review,” Manitoba Law Journal 3 (1968): 157; Edward A. Tollefson, “Review,” Saskatchewan Law Review 29 (1964): 131; Walter S. Johnson, “Review,” Canadian Bar Review 24 (1946): 248; Roy St G. Stubbs, “Review,” Canadian Bar Review 24 (1946): 162;

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Charles Morse, “Review,” Canadian Bar Review 16 (1938): 75; John E. Read, Canadian Bar Review 11 (1934): 68; Arthur S. Bourinot, “Review,” Canadian Bar Review 4 (1926): 134. Compare sources cited in note 7. 20 See, e.g., Stephen Aylward and Pam Hrick, eds, In Furtherance of Justice: The Judicial Life of Thomas A. Cromwell (Toronto: Lexis Nexis, 2017); Ivo Entchev and L.M. Kelly, eds, Judicious Restraint: The Life and Law of Justice Marshall E. Rothstein (Toronto: LexisNexis, 2016); Dwight Newman and Malcolm Thorburn, eds, The Dignity of Law: The Legacy of Justice Louis LeBel (Toronto: LexisNexis, 2015); Robert G. Clarke, ed., “A Judge of Valour: Chief Justice Samuel Friedman,” Manitoba Law Journal 37 (2014): 1–274; Graham Mayeda and Peter Oliver, eds, “Justice Charron at the Supreme Court of Canada,” Supreme Court Law Review 65 (2014): 3–360; Michel Morin, ed., Responsibility, Fraternity, and Sustainability in Law: In Memory of the Honourable Charles Doherty Gonthier (Markham: LexisNexis, 2012); DeLloyd J. Guth and John P. McEvoy, eds, “Ivan C. Rand at the Supreme Court of Canada 1943– 1959,” University of New Brunswick Law Journal 61 (2010): 1–339; Kim Brooks, ed., One Woman’s Difference: Madam Justice Bertha Wilson (Vancouver: University of British Columbia Press, 2009); Adam Dodek and Daniel Jutras, eds, The Sacred Fire: The Legacy of Antonio Lamer (Markham, ON : LexisNexis, 2006); Jamie Cameron, ed., Reflections on the Legacy of Justice Bertha Wilson (Markham: Lexis-Nexis, 2008); Neil Finkelstein and Constance Backhouse, eds, The Laskin Legacy: Essays in Commemoration of Chief Justice Bora Laskin (Toronto: Irwin Law, 2007); Sujit Choudhry, Patrick Macklem, David Schneiderman, and Lisa Austin, eds, “Education, Administration, and Justice: Essays in Honour of Frank Iacobucci,” University of Toronto Law Journal 57 (2007): 129– 606; Ken Cooper-Stephenson, ed., “Special Issue to Mark the Retirement of the Honourable E.D. Bayda,” Saskatchewan Law Review 70 (2007): 223–327; “Symposium Honouring the Late Mr Justice Kenneth Lysyk,” University of British Columbia Law Review 38 (2005): 273–586; Lionel D.A. Smith, ed., Ruled by Law: Essays in Memory of John Sopinka (Markham, ON : Lexis-Butterworths, 2003); Elizabeth Sheehy, ed., “Madame Justice Claire L’Heureux-Dubé,” Canadian Journal of Women and Law 15 (2003): 1–193; Rebecca Johnson and John P. McEvoy, eds, Gerard V. LaForest at the Supreme Court of Canada 1985–1997 (Ottawa: Supreme Court of Canada Historical Society, 2000); Claire L’HeureuxDubé, ed., Première conférence Albert Mayrand, l’homme et son oeuvre (Montreal: Thémis, 1998); DeLloyd Guth, ed., Brian Dickson at the Supreme Court of Canada, 1973–1990 (Winnipeg: Canadian Legal

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History Project, 1998); Mélanges Jean Beetz (Montreal: Thémis, 1995); Moira L. McConnell, ed., “Bertha Wilson Symposium,” Dalhousie Law Journal 15 (1992): 1–260; Roland Penner, ed., The Dickson Legacy (Winnipeg: Legal Research Institute, 1992); Ernest Caparros, ed., Mélanges Louis-Phillippe Pigeon (Montreal: Wilson and Lafleur, 1989); “Nathaniel T. Nemetz Special Edition,” University of British Columbia Law Review 23 (1988): 1–196; “Chief Justice Bora Laskin: A Tribute,” University of Toronto Law Journal 34 (1985): 321–727; Cameron Harvey, ed., Chief Justice Samuel Friedman: A Great Canadian Judge (Winnipeg: Law Society of Manitoba, 1983); G.H.L. Fridman and J.J. Quinn, eds, “The Rand Symposium,” University of Western Ontario Law Review 18 (1979): 1–151. See also “A Tribute to Ian Scott,” Queen’s Law Journal 34 (2009): 769–928. 21 See, e.g., Margaret M. de Guzman and Diane M. Aman, eds, Arcs of Global Justice: Essays in Honour of William A. Schabas (New York: Oxford University Press, 2018); Simon Archer, Daniel Drache, and Peer Zumbansen, eds, The Daunting Enterprise of the Law: Essays in Honour of Harry Arthurs (Montreal and Kingston: McGill-Queen’s University Press, 2017); Elizabeth Shilton and Karen Schucher, eds, One Law for All? “Weber v. Ontario Hydro” and Canadian Labour Law: Essays in Memory of Bernie Adell (Toronto: Irwin Law, 2017); Richard Janda, Josalie Jukier, and Daniel Jutras, eds, The Unbounded Level of the Mind: Rod Macdonald’s Legal Imagination (Montreal and Kingston: McGill-Queen’s University Press, 2015); Jane B. Sprott and Julien R. Roberts, eds, “A Festschrift in Honour of Anthony N. Doob,” Canadian Journal of Criminology and Criminal Justice 32 (2013): 457–600; “Hugh M. Kindred: A Tribute,” Dalhousie Law Journal 35 (2012): 237–431; Sanjeev Anand, ed., Children and the Law: Essays in Honour of Nicholas Bala (Toronto: Irwin Law, 2011); Randall Morck, ed., Recreating Canada: Essays in Honour of Paul Weiler (Kingston: Queen’s University, 2011); Anita Anand, Anthony Duggan, Colleen Flood, and Edward Iacobucci, eds, “Law, Economics, and Public Policy: Essays in Honour of Michael Trebilcock,” University of Toronto Law Journal 60 (2010): 155; Hamar Foster, Benjamin L. Berger, and Anthony R. Buck, eds, The Grand Experiment: Law and Legal Culture in British Settler Societies (in honour of John McLaren) (Vancouver: University of British Columbia Press, 2009); John Armour and Jennifer Payne, eds, Rationality in Company Law: Essays in Honour of D.D. Prentice (Oxford: Hart, 2009); David Dyzenhaus, Daniel Hunt, and Grant Huscroft, eds, A Simple Common Lawyer: Essays in Honour of Michael Taggart (Oxford: Hart, 2009); Jim

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Phillips, R. Roy McMurtry, and John T. Saywell, eds, Essays in the History of Canadian Law: A Tribute to Peter N. Oliver (Toronto: University of Toronto Press, 2008); Pierre Noreau and Louise Rolland, eds, Mélanges Andrée Lajoie (Montreal: Thémis, 2008); Martha Shaffer, ed., Contemporary Issues in Family Law: Engaging the Legacy of James G. McLeod (Toronto: Thomson Carswell, 2007); Grant Huscroft and Michael Taggart, eds, Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (Toronto: University of Toronto Press, 2006); “Constitutionalism and Public Morality: A Tribute to John D. Whyte,” Queen’s Law Journal 31 (2006): 441–795; Lynne Castonguay and Nicholas Kasirer, eds, Études offertes à Jacques Vanderlinden, étudier et enseigner le droit (Cowansville, QC: Yvon Blais, 2006); Harry Arthurs, David Dyzenhaus, Martin Loughlin, and Mike Taggart, eds, “Essays in Honour of John Willis,” University of Toronto Law Journal 55 (2005): 311–890; Régine Beauthier and Isabelle Rorive, eds, Le code Napoléon un ancêtre vénéré: Mélanges offerts à Jacques Vanderlinden (Brussels: Bruylant, 2004); Obiora Chinedu Okafor and Obijiorfor Aginam, eds, Humanizing Our Global Order: Essays in Honour of Ivan Head (Toronto: University of Toronto Press, 2003); “Constitutional Law Issue in Honour of William G. Lederman,” Queen’s Law Journal 19 (1993): 1–468; Pierre-Claude Lafond, ed., Mélanges Claude Masse (Cowansville, Q C : Yvon Blais, 2003); Benoît Moore, ed., Mélanges Jean Pineau (Montreal: Thémis, 2003); Jacques Beauhne, ed., Mélanges Ernest Caparros (Montreal: Wilson and Lafleur, 2002); Gerald A. Thibault, Pierre Perret, Louis Pelletier, and Benoit Beaudoin, eds, Les Mélanges Gérald Beaudoin (Cowansville, QC: Yvon Blais, 2002); Joseph F. Fletcher, ed., Ideas in Action: Essays on Politics and Law in Honour of Peter Russell (Toronto: University of Toronto Press, 1999); G. Blaine Baker and Jim Phillips, eds, Essays in the History of Canadian Law: In Honour of R.C.B. Risk (Toronto: University of Toronto Press, 1999); Alison Nancy May, Simon Devereaux, and Greg Thomas. Smith, eds, Criminal Justice in the Old World and the New: Essays in Honour of J.M. Beattie (Toronto: University of Toronto Centre of Criminology, 1998); J.E.C. Brierley, Roderick A. Macdonald, and Yves-Marie Morissette, eds, Mélanges PaulAndré Crépeau (Cowansville, QC: Yvon Blais, 1996); William Kaplan and Donald M. McRae, eds, Law, Policy, and International Justice: Essays in Honour of Maxwell Cohen (Montreal and Kingston: McGill-Queen’s University Press, 1993); Joan N. Fraser, ed., Law Libraries in Canada: Essays to Honour Diana M. Priestly (Toronto: Carswell, 1988); Patrick Fitzgerald, ed., Crime, Justice and Codification: Essays in

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Commemoration of Jacques Fortin (Calgary: Carswell, 1986); Anthony N. Doob and Edward L. Greenspan, eds, Perspectives in Criminal Law: Essays in Honour of John Ll.J. Edwards (Aurora, ON: Canada Law Book, 1985); Sandra Djwa and Ronald St J. Macdonald, eds, On F.R. Scott, Essays on His Contributions to Law, Literature, and Politics (Montreal and Kingston: McGill-Queen’s University Press, 1983). 22 Compare O.P. Dwivedi, ed., The Administrative State in Canada: Essays in Honour of J.E. Hodgetts (Toronto: University of Toronto Press, 1982); Dale Gibson, ed., Aspects of Privacy Law: Essays in Honour of John M. Sharp (Toronto: Butterworths, 1980); G.M. Wilner, ed., Jus et Societas: Essays in Tribute to Wolfgang Friedmann (Hague: Martinus Nijhoff, 1979); Adrian Popovici, ed., Problèmes de droit contemporain: Mélanges Louis Baudouin (Montreal: Presses de l’Université de Montréal, 1974); Otto E. Lang, ed., Contemporary Problems of Public Law in Canada: Essays in Honour of Dean F. Cronkite (Toronto: University of Toronto Press, 1968); Mélanges offerts à M. Raymond Cossette (Quebec: Chambre des notaires de la province de Québec, 1968); Pierre Azard, ed., Études juridiques en hommage à monsieur le juge Bernard Bissonnette (Montreal: Presses de l’Université de Montréal, 1963); J.A. Corry, F.C. Cronkite, and E.F. Whitmore, eds, Legal Essays in Honour of Arthur Moxon (Toronto: University of Toronto Press, 1953). 23 Prior to this collection, I had participated in six Canadian homage volumes in which, apart from my contributions to two of them, there is very little biographical material. See G. Blaine Baker, “Musings and Silences of Chief Justice William Osgoode: Digest Marginalia about the Reception of Imperial Law,” Osgoode Hall Law Journal 53 (2017): 741 (Douglas Hay); Baker, “Character-Building at Multiple Sites of Justice: Administration and Teaching as Texts, Scholarship as Ethical and Political Action,” in Janda, Unbounded Level, at 214 (Roderick Macdonald); Baker, “Strategic Benthamism: Rehabilitating United Canada’s Bar through Criminal Law Codification, 1847 to 1854,” in Phillips, Tribute to Peter N. Oliver, at 257 (Peter Oliver); Baker, “Willis on Cultured Public Authorities,” in Arthurs, University of Toronto Law Journal, at 335 (John Willis); Baker, “R.C.B. Risk’s Canadian Legal History,” in Baker and Phillips, Honour of R.C.B. Risk, at 17 (Dick Risk); Baker, “Public Frivolity and Patrician Confidence: Lower Canada’s Brothers-in-Law, 1827 to 1833,” in Brierley, Melanges, at 43 (Paul-André Crepeau). 24 See generally Dietrich Pannier and Anja Aulich, eds, Bibliography of Legal Festschriften: Germany, Switzerland, Austria, including Festschriften Registrer 1864–1999 (Berlin: Wissenschafts-Verlag, 2006); F. Rolin,

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“Les principes gouvernant l’élaboration des volumes des Mélanges: Con­ tribution à l’étude de la littérature mélangiale juridique,” in Mélanges Benoît Jeanneau, ed. C.-A. Garbar, 3–19 (Paris: Dalloz, 2002); M. Taggart, “Gardens or Graveyards of Scholarship? Festschriften in the Literature of the Common Law,” Oxford Journal of Legal Studies 22 (2002): 227. 25 But see R.W. Kostal, “Shilling for Judges: Brian Dickson and His Biographers,” McGill Law Journal 51 (2006): 199. See also Mary Jane Mossman, “Gender and Professionalism in Law: The Challenge of (Women’s) Biography,” Windsor Yearbook of Access to Justice 27 (2009): 19; Girard, “Judging Lives”; David R. Williams, “Legal Biography in Canada” in Fraser, Law Libraries in Canada, at 121. 26 But see Nicholas Kasirer, “Of combats livrés and combats livresques,” Canadian Journal of Law and Society 19 (2004): 154. 27 Compare Patrick Polden, “Judging Judges,” in Making Legal History, ed. Anthony Musson and Chantal Stebbings, 53–71 (Cambridge: Cambridge University Press, 2012) 53; Frank B. Cross and Stephanie Lindquist, “Judging the Judges,” Duke Law Journal 58 (2008): 1383; G. Edward White, “Neglected Justices: Discounting for History,” Vanderbilt Law Review 62 (2009): 319; Roy Kreitner, “Biographing Realist Jurisprudence,” Law and Social Inquiry 35 (2010): 765; Laura Krugman Ray, “Lives of the Justices: Supreme Court Autobiographies,” Connecticut Law Review 37 (2004): 233; W. M. Billings, “Judges’ Lives: Judicial Biography in America, 1607–1995,” in The National Conference on Legal Information Issues: Selected Essays, ed. T.L. Coggins, 192–205 (Littleton, C O : F.B. Rothman, 1996) 187; L. Przybyszewski, “The Dilemma of Judicial Biography,” Law and Social Inquiry 21 (1996): 135; Symposium, “National Conference on Judicial Biography,” New York University Law Review (1995): 485; G. Edward White, “The Renaissance of Judicial Biography,” Reviews in American History 23 (1995): 716; Michael J. Gerhartt, “The Art of Judicial Biography,” Cornell Law Review 80 (1995): 1595; Carol Sanger, “Curriculum Vitae (Feminae): Biography and Early American Women Lawyers,” Stanford Law Review 46 (1994): 1245; Posner, “Judicial Biography”; Robert M. Spectre, “Judicial Biography and the United States Supreme Court: A Bibliographical Appraisal,” American Journal of Legal History 11 (1967): 1; John P. Reid, “Irresponsible and Unimaginative: The Lawyer and the Historian as Judicial Biographer,” Law Library Journal 57 (1964): 128; Charles Fairman, “The Writing of Judicial Biography: A Symposium,” Indiana Law Journal 24 (1949): 363. See also Sarah Burnside, “Australian Judicial Biography,” Australian Journal of Politics and History 57 (2011): 221; James A. Thomson,

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“Swimming in Air: Lionel Murphy and Continuing Observations on Australian Judicial Biography,” Australian Journal of Legal History 4 (1998): 221. 28 Compare David Mackenzie, “Where Character Meets Circumstance: Political Biography in Modern Canada,” Acadiensis 42 (2013): 182; Bernard Fetz, Towards a Theory of Biography (New York: de Gruyter, 2009); Wilhelm Hemecker, Biography: Contributions to Its History (New York: de Gruyter, 2009); “Biographie et histoire,” Revue d’histoire de l’Amérique française 54 (2000): 67–131; Morton J. Horwitz, “Contracted Biographies and Other Obstacles to Truth,” New York University Law Review 70 (1995): 714; Laura Kalman, “The Power of Biography,” Law and Social Inquiry 23 (1998): 479; Scott E. Casper, Constructing American Lives: Biography and Culture in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1989); Eric Homberger and John Charmley, The Troubled Face of Biography (New York: St Martin’s, 1988); Cameron Harvey and Linda Vincent, “MacKenzie and Lesueur: Historians’ Rights,” Manitoba Law Journal 10 (1979): 281; Park Honan, “Theory and Form in Literary Biographies,” New Literary History 16 (1985): 639; B.L. Vigod, “Biography and Political Culture in Quebec,” Acadiensis 7 (1977): 141. 29 See, e.g., Jeremy D. Popkin, “Coordinating Lives: Between Autobiography and Scholarship,” Biography 24 (2001): 783, Jaume Aurell, “Making History by Contextualizing Oneself: Autobiography as Historiographical Intervention,” History and Theory 54 (2015): 244; Jaume Aurell, “Autobiography as Unconventional History: Constructing the Author,” Rethinking History 10 (2006): 433. 30 See Albert J. Beveridge, Life of John Marshall, 4 vols (New York: Houghton, Mifflin, 1916–19). 31 See Hendirk Hartog, “Snakes in Ireland: A Conversation with Willard Hurst,” Law and History Review 12 (1994): 370, at 371. See also Willard Hurst, “Who Is the Great Appellate Judge?,” Indiana Law Journal 24 (1948): 398. 32 See generally Christopher Tomlins, ed., “Engaging Willard Hurst: A Symposium,” Law and History Review 18 (2000): 1; Robert W. Gordon, “J.W. Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 9; David H. Flaherty, “An Approach to American History: Willard Hurst as Legal Historian,” American Journal of Legal History 14 (1970): 222. 33 See, e.g., Arthur Lendin, Mr Justice McCardie (1869–1933): Rebel, Reformer, and Rogue Justice (Newcastle-upon-Tyne: Cambridge Scholars

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Publishing, 2016); Neil Duxbury, Viscount Kilmuir: A Vignette (Oxford: Hart Publishing, 2015); Andreas Rahmatian, Lord Kames: Legal and Social Theorist (Edinburgh: Edinburgh University Press, 2015); David Swinfen, Moncreiff: The Life and Career of James Wellwood Moncreiff 1811–1895 1st Baron Moncreiff of Tullibole (Broughty Ferry, UK : Shakenoak, 2015); Andrew Borrows, David Johnston, and Reinhardt Zimmermann, eds, Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford: Oxford University Press, 2013); Norman S. Poser, Lord Mansfield: Justice in the Age of Reason (Montreal and Kingston: McGill-Queen’s University Press, 2013); David Foxton, The Life of Thomas E. Scrutton (Cambridge: Cambridge University Press, 2013); Hilary Heilbron, Rose Heilbron: The Story of England’s First Woman Queen’s Counsel and Judge (Oxford: Hart, 2012); Frederick Vaughan, Viscount Haldane: Wicked Stepfather of the Canadian Constitution (Toronto: University of Toronto Press, 2010); Douglas F. Martin and Jean Graham Hall, Yes, Lord Chancellor: Biography of Lord Shuster (Chichester: Barry Rose, 2003); Wilfrid Prest, William Blackstone: Law and Letters in the Eighteenth Century (Oxford: Oxford University Press, 2002); Anthony Lentin, The Last Political Law Lord: Lord Sumner (1859–1934) (Newcastle: Cambridge Scholars, 2008); Neil Duxbury, Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004); Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford: Oxford University Press, 2004); Nancy L. Matthews, William Sheppard, Cromwell’s Law Reformer (Cambridge: Cambridge University Press, 2004); Allen D. Boyer, Sir Edward Coke and the Elizabethan Age (Stanford: Stanford University Press, 2003); Rose A. Melikan, John Scott, Lord Eldon, 1751–1838: The Duty of Loyalty (Cambridge: Cambridge University Press, 1999); Geoffrey Lewis, Lord Atkin (Oxford: Hart, 1999); John Hostettler, Lord Halsbury (Chichester: Barry Rose, 1998); Edmund Heward, A Victorian Law Reformer: A Life of Lord Selborne (Chichester: Barry Rose, 1998); Stephen M. Waddams, Law, Politics, and the Church of England: The Career of Stephen Lushington, 1782–1873 (Cambridge: Cambridge University Press, 1992); Raymond Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 1988); K.J.M. Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge: Cambridge University Press, 1988); Geoffrey R. Elton, F.W. Maitland (New Haven, CT: Yale University Press, 1985); William E. Rumble, The Thought of John Austin: Jurisprudence, Colonial Reform, and the British Constitution (London: Athlone, 1985); Richard A.

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Cosgrove, The Rule of Law: Albert Venn Dicey, Victorian Jurist (Chapel Hill: University of North Carolina Press, 1980). See also Mads Andenas and Duncan Fairgrieve, eds, Tom Bingham and the Transformation of the Law (Oxford: Oxford University Press, 2009); Martin Loughlin, ed., “Sir Ivor Jennings and the Development of Public Law,” Modern Law Review 67 (2004): 715–86. 34 See, e.g., A. Genovese, Shaun McVeigh and Peter D. Rush: Lives Lived with Law (Wollongong: Legal Intersections Research Centre, 2016); Linda Pearson, Carol Harlow, and Michael Taggart., eds, Administrative Law in a Changing State: Essays in Honour of Mark Aronson (Oxford: Hart, 2008); “Issue in Honour of Lord Cooke of Thorndon,” Victoria University of Wellington Law Review 39 (2008): 1–191; Antonio Buti, A Matter of Conscience: Sir Ronald Wilson (Oxford: Oxford University Press, 2007); Shaunnagh Dorsett and Geoff McLay, eds, “The Salmond Centennial, 2006,” Victoria University of Wellington Law Review 38 (2007): 669– 934; Phillip Ayres, Owen Dixon: A Biography (Melbourne: Melbourne University Press, 2003); Robin Creyke and Patrick Keyzer, The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (Sydney: Federation, 2002); J.M. Bennett, Sir William a’Beckett: First Chief Justice of Victoria 1852–1857 (Sydney: Federation, 2001); Bennett, Sir William Dowling: Second Chief Justice of New South Wales, 1837–1844 (Sydney: Federation Press, 2001); John Hostettler, Sir Edmund Carson: A Dream Too Far (Chichester: Barry Rose, 2000); Thomas M. Curly, Sir Robert Chambers: Law, Literature, and Empire in the Age of Johnson (Madison: University of Wisconsin Press, 1998); Jenny Hocking, Lionel Murphy: A Political Biography (Melbourne: Cambridge University Press, 1997); Joan Priest, Sir Harry Gibbs: Without Fear or Favour (Mudgeeraba, A US: Scribblers Publishing, 1995); Zelman Cowen, Isaac Isaacs (Melbourne: Oxford University Press, 1993); Leonie Star, Julius Stone: An Intellectual Life (Sydney: Oxford University Press, 1992); John Rickard, H.B. Higgins: The Rebel as Judge (Sydney: J. Allen and Unwin, 1984); G. Golding, George Gavin Duffy 1882–1951: A Legal Biography (Blackrock: Irish Academic, 1982). 35 Compare William Cornish, J. Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, and Keith Smith, The Oxford History of the Laws of England, 1820–1914, vols 11–13 (Oxford: Oxford University Press, 2010); R.W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (Oxford: Oxford University Press, 2005); R. Harris, Industrializing English Law: Entrepreneurship and Business Organization, 1720–1844 (Cambridge: Cambridge University Press, 2000); B. Sherman

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and L. Bentley, The Making of Modern Intellectual Property Law: The British Experience, 1760–1911 (Cambridge: Cambridge University Press, 1999); R.W. Kostal, Law and English Railway Capitalism, 1825–1875 (Oxford: Clarendon, 1994); Michael Lobban, The Common Law and English Jurisprudence, 1760–1850 (New York: Oxford University Press, 1991); Harry W. Arthurs, Without the Law: Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985). 36 See, e.g., Ruth Bader Ginsberg, My Own Words (New York: Simon and Shuster, 2016); Meg Greene, Elena Kagan: A Biography (Santa Barbara, C A : Greenwood, 2014); Charles L. Zelden, Thurgood Marshall: Race, Rights, and the Struggle for a More Perfect Union (New York: Routledge, 2013); David M. Dorsen, Henry Friendly: Greatest Judge of His Era (Cambridge: Belknap, 2012); John A. Jenkins, The Partisan: The Life of William Rehnquist (New York: Public Affairs, 2012); Dalia Tsuk Mitchell, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca, N Y: Cornell University Press, 2007); Spencer Webber Waller, Thurman Arnold: A Biography (New York: New York University Press, 2005); Albert W. Alschuler, Life without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000); Frank J. Michaelman, Brennan and Democracy (Princeton: Princeton University Press, 1999); David J. Langum, William M. Kunsler: The Most Hated Lawyer in America (New York: New York University Press, 1999); Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Guilded Age (Lawrence: University Press of Kansas, 1997); David Stebenne, Arthur J. Goldberg: New Deal Liberal (Oxford: Oxford University Press, 1996); Howard Ball, Hugo L. Black: Cold Steel Warrior (Oxford: Oxford University Press, 1996); Tinsley E. Yarborough, Judicial Enigma: The First Justice Harlan (New York: Oxford University Press, 1995); Stephen W. Baskerville, Of Laws and Limitations: An Intellectual Portrait of Louis Dembitz Brandeis (London: Associated University Presses, 1994); Laura Kalman, Abe Fortas: A Biography (New Haven, C T: Yale University Press, 1990); Richard A. Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990); R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985); G. Edward White, Earl Warren: A Public Life (New York: Oxford University Press, 1982). 37 See, e.g., Shelley Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870–1905 (Vancouver: University of

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British Columbia Press, 2012); Philip Girard, Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax (Toronto: University of Toronto Press, 2011); Jamie Benidickson, The Culture of Flushing: A Social and Legal History of Sewage (Vancouver: University of British Columbia Press, 2007). 38 See generally Philip Girard, “Who’s Afraid of Canadian Legal History?,” University of Toronto Law Journal 57 (2007): 727; Vince Masciotra, “Quebec Legal Historiography,” McGill Law Journal 32 (1987): 712; David H. Flaherty, “Writing Canadian Legal History: An Introduction,” in Essays in the History of Canadian Law, ed. David H. Flaherty (Toronto: University of Toronto Press, 1981), 3. 39 See generally G. Blaine Baker, “Quebec and the Canadas, 1760–1867: A Legal Historiography,” in Essays in the History of Canadian Law: Quebec and the Canadas, ed. G. Blaine Baker and Donald Fyson (Toronto: University of Toronto Press, 2013), 3; Jim Phillips, R. Roy McMurtry, and John T. Saywell, “Peter Oliver and the Osgoode Society for Canadian Legal History,” in Phillips, Tribute to Peter N. Oliver, at 1; G. Blaine Baker, “R.C.B. Risk’s Canadian Legal History,” in Baker, Honour of R.C.B. Risk, at 17; Jim Phillips, “Crime and Punishment in the Dominion of the North: Canada from New France to the Present,” in Crime History and Histories of Crime, ed. Clive Emsley and Louis A. Knafla (Westport, CT: Greenwood, 1996), 163. 40 See Andrée Lajoie and Louise Rolland, “Gerald Le Dain: Sur la société libre et démocratique,” McGill Law Journal 38 (1993): 899, and in this volume. There are also several law review case-comments about Le Dain’s judicial decisions. See, e.g., John D. McAlpine and C. Alan Donovan, “Ford v. Quebec; Irwin Toy v. Quebec,” University of British Columbia Law Review 23 (1989): 615; W.A. Bogart, “Understanding Standing, Chapter IV: Minister of Finance v. Finlay,” Supreme Court of Canada Law Review 10 (1988): 377; Jost Blom, “Concurrent Liability in Tort and Contract: Start of the Limitation Period: Central Trust v. Rafuse,” University of British Columbia Law Review 21 (1987): 429. 41 See, e.g., Robert Schertzer, The Judicial Role in a Diverse Federation: Lessons from the Supreme Court of Canada (Toronto: University of Toronto Press, 2016); C.L. Ostberg and Matthew E. Wetstein, Attitudinal Decision-Making in the Supreme Court of Canada (Vancouver: University of British Columbia Press, 2007), 44, 73–8, 117–21, 156–60; Edgar-Andre Montigny, The Real Dope: Social, Legal, and Historical Perspectives on the Regulation of Drugs in Canada (Toronto: University of Toronto Press, 2011); Marcel Martel, Not This Time: Canadian Public Policy and the

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Marijuana Question, 1961–1975 (Toronto: University of Toronto Press, 2006); Canada. Supreme Court of Canada, Commemorative Volume, at 167–8; Chris Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (Vancouver: University of British Columbia Press, 1999); Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 (Toronto: University of Toronto Press, 1997); Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers, 1797–1997 (Toronto: University of Toronto Press, 1997); Ian Bushnell, The Captive Court: A Study of the Supreme Court of Canada (Montreal and Kingston: McGill-Queen’s University Press, 1992). See also Paterson, Life at the Bar; Sharpe and Roach, Brian Dickson; Anderson, Bertha Wilson; Pound, W.R. Jackett. 42 See, e.g., Patrick J. Monahan, “In Memoriam: The Honourable Gerald Le Dain, 1924–2007,” Osgoode Hall Law Journal 45 (2007): 655; Harry W. Arthurs, “A Locomotive of a Man,” Osgoode Hall Law Journal 45 (2007): 657; “Former Judge Le Dain Dies at 83,” Toronto Globe and Mail, 20 December 2007; “Gerald Le Dain Obituary,” Ottawa Citizen, 21 December 2007; “Former Supreme Court Justice Dies at 83,” C B C NE WS website, 19 December 2007. See also “Gerald Le Dain,” in Marquis’ Who’s Who (New Providence: Marquis, 2015); “Hon. Gerald Eric Le Dain,” in Canadian Who’s Who, ed. K. Simpson, 645–6 (Toronto: University of Toronto Press, 1990); “Hon. Gerald Eric Le Dain,” in The Canadian Who’s Who, vol. 11 (Toronto: Who’s Who Canadian Publications, 1967–9), 625. 43 See “Gerald Le Dain,” Ottawa Citizen, 21 December 2007. 44  See “Canada: Gerald Le Dain, 83: Jurist,” Rave News, 3 January 2008. 45 Le Dain’s experience as a graduate student in post–World War II reconstruction France and the studies he undertook at Lyon are examples of important aspects of his life that are not treated in this collection. Portions of his doctoral thesis did, however, find their way into the first article published in the McGill Law Journal, Gerald E. Le Dain, “Twilight of Judicial Control in the Province of Quebec,” McGill Law Journal 1 (1952): 1. 46 See generally Roderick A. Macdonald, “Le Dain and Legal Education: A Tale of Two Cities,” in this volume. 47 For commentary on McGill’s Faculty of Law during the time Le Dain spent there as a student and in his early years of teaching, see generally A.J. Hobbins, “Designating the Dean of Law: Legal Education at McGill University and the Montreal Corporate and Professional Elite, 1946– 1950, Dalhousie Law Journal 27 (2004): 163; Ian C. Pilarczyk, “A Noble Roster”: One Hundred and Fifty Years of Law at McGill (Montreal:

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Gelfand-Martineau, 1998); Roderick A. Macdonald, “Dreaming the Impossible Dream: Maxwell Cohen and McGill’s National Programme,” in Kaplan and McRae, Law, Policy, and International Justice, at 409; Macdonald, “The National Law Programme at McGill: Origins, Establishment, Prospects,” Dalhousie Law Journal 13 (1990): 211. See also J.E.C. Brierley, “Quebec Legal Education: Cultural Paradoxes and Traditional Ambiguities,” Dalhousie Law Journal 10 (1986): 5. 48 See G. Blaine Baker, “Bibliographies of Le Dain’s Scholarly Writing, Cases Argued, and Judicial Decisions,” in this volume. 49 Compare Christopher L. Wiktor, “The Publications of Ronald St John Macdonald,” Canadian Yearbook of International Law 44 (2006): 479; “Harry William Arthurs: Research and Publications,” Osgoode Hall Law Journal 44 (2006): ii; R.C.B. Risk and Michael Taggart, “The Published Work of John Willis,” University of Toronto Law Journal 55 (2005): 887; “Publications of Jean-Gabriel Castel,” Osgoode Hall Law Journal 38 (2000): 369; “Bibliography: John E.C. Brierley,” McGill Law Journal 46 (2000): 13; G. Blaine Baker, “R.C.B. Risk Bibliography,” in Baker and Phillips, R.C.B. Risk, at 583; “Writings of W. Howard McConnell,” Saskatchewan Law Review 81 (1998): 241; Annemieke Holthuis, “Maxwell Cohen: An Overview of His Publications,” in Kaplan and McRae, Law, Policy, and International Justice, at 493; “Publications of J.S. Ziegel,” Canadian Business Law Journal 19 (1991): x; “A Bibliography of Articles and Books by J.A. Corry,” Queen’s Law Journal 12 (1988): 383; “Bibliography of F.R. Scott,” McGill Law Journal 30 (1985): 636; “Bibliography of R.A. Samek,” Dalhousie Law Journal 9 (1985): 469; “The Writings of the Rt Hon. Bora Laskin, OC PC ,” Supreme Court Law Review 6 (1984): xliii. 50 Reflecting on his experience of the same period in McGill’s institutional life, Frank Scott regularly allowed that a perceived need to augment his professorial salary was as much of a factor as any in his assumption of extracurricular responsibility for litigation like Switzman v Elbling, [1957] SCR 284; Roncarelli v Duplessis, [1959] S CR 121; and Brodie, Dansky, and Rubin v R (the Lady Chatterly’s Lover case), [1961] SC R 681. 51 Those Quebec constitutional cases are cited in Macdonald, “Le Dain and Legal Education,” n10, and discussed briefly by him in the accompanying text. That litigation was otherwise left lagely untreated in this collection and is therefore another gap in these “tracings of a life.” 52 See Gerald E. Le Dain, Essay on the Canadian Constitution: Prepared for the Royal Commission on Bilingualism and Biculturalism (Ottawa: Royal Commission on Bilingualism and Biculturalism, 1966).

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53 See generally Michiel Horn, York University: The Way Must Be Tried (Montreal and Kingston: McGill-Queen’s University Press, 2009), 74–129; Mary Jane Mossman, “Educating Men and Women for Service through Law: Osgoode Hall Law School, 1963–1988,” Dalhousie Law Journal 11 (1987): 885; Kyer and Bickenbach, Fiercest Debate, at 264–78; Harry W. Arthurs, “The Affiliation of Osgoode Hall Law School with York University,” University of Toronto Law Journal 17 (1967): 194. 54 Conversations by the author with Jean-Gabriel Castel, April and May 2013. See also Girard, Bringing Law to Life, at 328; Harry W. Arthurs, “The Tree of Knowledge / The Axe of Power: Le Dain and the Transformation of Legal Education,” in this volume. 55 Compare Baker, “Bibliographies of Le Dain’s Scholarly Writing, Cases Argued, and Judicial Decisions” and Evans, “Federal Court” with “The Judicial Opinions of Chief Justice Bora Laskin,” Supreme Court Law Review 6 (1984): xxvii; Marie-Claire Belleau, Rebecca Johnson, and Christina Vinters, “Supreme Court of Canada Cases Written by Justice Bertha Wilson 1982–1991,” in Cameron, Bertha Wilson, at 409; Adam Dodek and Daniel Jutras, “Judgments of Antonio Lamer at the Supreme Court of Canada,” Supreme Court Law Review 46 (2009): 499; and “Supreme Court of Canada: Reasons Written by Mr Justice LaForest,” in Johnson and McEvoy, Gerard V. La Forest, at 561. See also John H. Kim, “Statistical Analysis [of the Supreme Court Reports, 1981–1990],” Osgoode Hall Law Journal 30 (1992): 797, at 851. 56 See McGill University Faculty of Law website. The Canadian Drug Policy Alliance has, for some time, awarded an annual Justice Gerald Le Dain Award for Achievement in the Field of Law. See Canadian Drug Policy Alliance website. 57 Bushnell, Federal Court, at 268–9. 58 See generally F.L. Morton, Peter H. Russell, and Michael J. Withey, “The Supreme Court’s First One Hundred Charter of Rights Decisions,” Osgoode Hall Law Journal 30 (1992): 1. 59 See, e.g., R v Crown Zellerbach Ltd, [1988] 1 SC R 401; CP Hotels v Bank of Montreal, [1987] 1 S CR 711; Central Trust Company v Rafuse, [1986] 2 S C R 147; Finlay v Canada, [1986] 2 S CR 607; Cardinal v Director of Kent Institution, [1985] 2 S CR 643. 60 See generally Donald R. Songer, Susan W. Johnson, C.L. Ostberg, and Matthew E. Wetstein, Law, Ideology, and Collegiality: Judicial Behaviour in the Supreme Court of Canada (Montreal and Kingston: McGill-Queen’s University Press, 2012); Peter McCormick, “Was It Something I Said?

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Losing the Majority in the Modern Supreme Court of Canada, 1984– 2011,” Osgoode Hall Law Journal 50 (2012): 93; Marie-Claire Belleau and Rebecca Johnson, “Judging Gender: Difference and Dissent at the Supreme Court of Canada,” International Journal of the Legal Profession 15 (2008): 57; Peter McCormick, “Standing Apart: Separate Concurrence and the Modern Supreme Court of Canada, 1984–2006,” McGill Law Journal 53 (2008): 137; Christine M. Joseph, “All but One: Solo Dissents on the Modern Supreme Court of Canada,” Osgoode Hall Law Journal 44 (2006): 501; Peter McCormick, “Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada,” Osgoode Hall Law Journal 42 (2004): 99. 61 See R v Therens, [1985] S CR 613. See generally Joseph F. Kenkel, Impaired Driving in Canada: The Charter Cases, 2nd ed. (Markham, ON: LexisNexis, 2014). 62 See John M. Evans, “The Federal Court Years, 1975 to 1984,” in this volume (and Gerald E. Le Dain, “Jean Beetz as Judge and Colleague,” Revue juridique Thémis 28 [1994]: 721, at 725–7). See also Bernard J. Hibbitts, “Preface,” in this volume; Stephen A. Scott, “Part-time Montreal Law Practice, and Part-time Law School Lecturing of the 1950s and 1960s,” in this volume. 63 See Scott, “Part-time Montreal Law Practice”; Richard Janda, “Constitutional Transitions: Le Dain’s Approach to Jurisdiction over the Environment,” in this volume; Hibbitts, “Preface.” 64 See generally Brian Opeskin, “Models of Judicial Tenure: Reconsidering the Life Limits, Age Limits, and Tenure Limits for Judges,” Oxford Journal of Legal Studies 35 (2015): 627; L.A. Powe, “Go Geezers, Go: Leaving the Bench,” Law and Social Inquiry 25 (2000): 1227; David N. Atkinson, Leaving the Bench: Supreme Court Justices at the End (Lawrence: University Press of Kansas, 1999). See also Stephen G.A. Pitel and Will Bortolin, “Revising Canada’s Ethical Rules for Judges Returning to Practice,” Dalhousie Law Journal 34 (2011): 483. 65 See generally Bonnie Brown, “One Judge Down”; and Allen M. Linden, “Postface,” both in this volume. 66 He also wrote Le Dain, “Jean Beetz”; Gerald E. Le Dain, “Response to the Chief Justice,” Osgoode Hall Law Journal 35 (1997): 439; and organized his files for archival deposit. 67 In conversations with biographers Philip Girard and Ian Kyer I learned that Bora Laskin’s family declined to participate in the production of Girard, Bringing Law to Life, and that Caesar Wright’s relatives agreed to assist with the preparation of Kyer and Bickenbach, Fiercest Debate,

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only when they were assured that Wright’s home life would not be central to that book. 68 See generally Lorne M. Sossin, “The Sounds of Silence: Law Clerks, Policy-Making and the Supreme Court of Canada,” University of British Columbia Law Review 30 (1996): 279; Michael McInnes, Janet Bolton, and Natalie Derzko, “Clerking at the Supreme Court of Canada,” Alberta Law Review 33 (1994): 58; Michael John Herman, “Law Clerking at the Supreme Court of Canada,” Osgoode Hall Law Journal 13 (1975): 279. 69 See generally Todd C. Peppers and Artemus Ward, eds, In Chambers: Stories of Supreme Court Law Clerks and Their Justices (Charlottesville: University of Virginia Press, 2012); William E. Nelson, Harvey Rishikof, I. Scott Wessenger, and Michael Jo, “The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation,” Vanderbilt Law Review 62 (2009): 1749; Todd C. Peppers, Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk (Stanford: Stanford University Press, 2006); Artemus Ward and David L. Weiden, Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court (New York: New York University Press, 2006). Leading histories of Canadian appellate courts such as Christopher Moore, The Court of Appeal for Ontario: Defining the Right of Appeal, 1791–2013 (Toronto: University of Toronto Press, 2014); Moore, The British Columbia Court of Appeal: The First One Hundred Years, 1910–2010 (Vancouver: University of British Columbia Press, 2010); Peter McCormick, Supreme at Last: The Evolution of the Supreme Court of Canada (Toronto: Lorimer, 2000); James G. Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution (Toronto: University of Toronto Press, 1985); and Bushnell, Federal Court, make almost no mention of those courts’ judicial clerks. But see Joshua Wilner, “To Be or Not to Be: Some Legal Ethics for Judicial Law Clerks,” Canadian Bar Review 89 (2011): 611. 70 See, e.g., Sharpe and Roach, Brian Dickson; Cameron, Bertha Wilson; Kostal, “Shilling for Judges.” 71 See Gerald E. Le Dain, “University Boot Camp and World War II Army Service,” in this volume; Le Dain, “Pleading Public Law Issues in the Barfried Enterprises Case,” in this volume; Le Dain, “Judicial Opinion Writing,” in this volume. 72 See Hibbitts, “Preface”; Linden, “Postface,” in this volume. 73 See Le Dain, “University Boot Camp.” 74 C. Ian Kyer, “The ‘Walker Martineau’ Years, 1950–1953,” in this volume. See also Kyer, Lawyers, Families and Businesses.

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75 Ideally, it would have included more, and more specific, details about Le Dain’s work at the firm, but available primary sources were few, and existing memoirs were sometimes short. 76 See Scott, “Part-time Montreal Law Practice.” 77 Macdonald, “Le Dain and Legal Education.” 78 See Arthurs, “Tree of Knowledge.” 79 See Federation of Law Societies of Canada, Task Force on the Canadian Common Law Degree: Final Report (Ottawa: Federation of Law Societies of Canada, 2009). See also “Special Issue on the Federation of Law Societies’ Task Force on the Approved Law Degree,” Canadian Legal Education Annual Review 3 (2009): 135. 80 See Melvyn Green, “The First Lady of Reefer Madness: How a Renowned Feminist Polarized Our Racist War on Drugs,” Walrus Magazine, 22 December 2016; Green, “An Accidental Soldier in the War against the War on Drugs” in this volume; Green, “Fetal Alcohol Syndrome: A Judicial Perspective” (paper presented to the Toronto Fetal Alcohol Syndrome Symposium for Justice Professionals, March 2006); Robert M. Solomon and Melvyn Green, “The First Century: The History of Non-Medical Opiate Use and Control Policies in Canada, 1870–1970,” University of Western Ontario Law Review 20 (1982): 307; Melvyn Green, “A History of Canadian Narcotics Control: The Formative Years,” University of Toronto Faculty of Law Review 37 (1979): 42. 81 See generally Gregory J. Inwood and Carolyn M. Johns, Commissions of Inquiry and Policy Change: A Comparative Analysis (Toronto: University of Toronto Press, 2014); Allan Manson, Commissions of Inquiry: Praise or Reappraise? (Toronto: Irwin Law, 2015). 82 Le Dain, “Pleading Public Law.” 83 See generally Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, 3 vols (Toronto: Canvasback Publishers, 1998–2008); J.M. Evans, H.N. Janisch, and David J. Mullan, Administrative Law: Cases, Text, and Materials, 4th ed. (Toronto: EmondMontgomery, 1995); J.M. Evans, DeSmith’s Judicial Review of Administrative Action, 4th ed. (London: Stevens and Sons, 1980). 84 See Evans, “Federal Court.” 85 Ibid. 86 Ibid. 87 See Peter W. Hogg, “Crown Zellerbach: Bringing Clarity to National Concern,” in this volume. 88 Ibid. 89 See ibid.; Janda, “Constitutional Transitions.”

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90 Compare Diane P. Wood, “Legal Scholarship for Judges,” Yale Law Journal 124 (2015): 2592; Vaughan Black and Nicholas Richter, “Did She Mention My Name?: Citation of Academic Authority by the Supreme Court of Canada, 1985–1990,” Dalhousie Law Journal 16 (1993): 377. 91 See Lajoie and Rolland, “Le Dain.” 92 Compare Evans, “Federal Court”; Rosemary Cairns Way, “Engaged Professionalism,” in this volume. 93 Other examples of applied discourse theory in contemporary Canadian legal scholarship include Mark D. Walters, “Your Sovereign and Our Father: The Imperial Crown and the Idea of Legal-Ethnohistory,” in Law and Politics in British Colonial Thought, ed. Shaunnagh Dorsett and Ian Hunter (London: Palgrave, Macmillan, 2010), 91; Rosemary J. Coombe, “The Most Disgusting, Disgraceful, and Inequitous Proceeding in Our Law: The Action for Breach of Promise to Marry in Nineteenth-Century Ontario,” University of Toronto Law Journal 38 (1988): 64; Tom Johnson, “In a Manner of Speaking: Towards a Reconstitution of Property in MidNineteenth-Century Quebec,” McGill Law Journal 32 (1987): 636. 94 Le Dain, “Judicial Opinion Writing.” Compare Paul W. Kahn, Making the Case: The Art of the Judicial Opinion (New Haven, C T: Yale University Press, 2016); Jennifer Barnes Bowie, Donald R. Songer, and John Szmer, The View from the Bench and Chambers (Charlottesville: University of Virginia Press, 2014); Richard A. Posner, Reflections on Judging (Cambridge: Harvard University Press, 2013). 95 See Cairns Way, “Engaged Professionalism.” 96 Library and Archives Canada, Ottawa, Gerald Le Dain Fonds, R923. 97 Thanks are also due to the heirs of Gerald Le Dain, Allen Linden, and Roderick Macdonald, for permission to publish posthumously chapters of this book in respect of which their authors were unable to have the “last word” on reviewers’ commentary and copy editing.

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2 University Boot Camp and World War II Army Service Gerald E. Le Dain

A highlight of our time at St Jean was the visit and inspection by Major Paul Triquet, V C of the Royal 22nd Regiment, who had been awarded the Victoria Cross for his gallantry in the battle for Casa Berardi in Italy in December 1943. We were very impressed to be that close to a Canadian war hero. I elected, following in my father’s footsteps, to go into the artillery, and I was posted at the beginning of June 1944 to the artillery training camp at Petawawa, Ontario. We spent the first nine weeks there undergoing basic training from beginning to end. They ignored the basic training we had undergone at St Jean. The following excerpts from my letters home in June and July 1944 reflect some of the highlights of the period of basic training at Petawawa. Today we went over the bayonet assault course. You know – out of the trench, over obstacles, stick the dummies – down and fire. There were blanks and smoke to add a note of realism. The boys liked it. We all went over three times. On the third I was in front and there was a choice of several openings in the barbed wire for me to crawl through. Well I crawled through another fellow’s, a little guy with a moustache … He had to crawl through another fellow’s opening and we had to wait for him in order to “advance” together. His face was contorted in a grimace as he poked it out under the wire. His moustache fairly twitching, he blurted out, “For Christ’s sake, Le Dain, concentrate!” We had to run across logs which were laid over a deep ditch. The little guy

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with the moustache was so mad he fell off his log and scrambled up the other side of the ditch swearing at the bombardier, who was rolling with laughter … This afternoon I was relieved from duty as hut orderly to go out to the Sten gun range and fire my thirty practice rounds as well as throw two live grenades. We bounced out, another fellow and I, in a springless truck. It was late in the afternoon and we were rushed. An officer shoved a Sten gun into my hands with a magazine and a few instructions, which only confused me. But sighting the target and squeezing the trigger applied to this gun as well, so I managed … The grenade throwing was a novel experience. There’s a tendency to feel, after pulling the pin, that your four seconds to detonation are already ticking off. It is hard to persuade yourself that it is perfectly safe to regard it there in your hand as the officer instructs. After it has been thrown you must watch where it lands. The officer yells “Down!” … and whe-e-e-e-e the base-plug screams over your head as the grenade explodes with a hollowsounding burst. After we had thrown our two grenades we walked along the trench and out on to the road. The sergeant yelled at us to get back into the trench. We suspected something, and as we could not see the sergeant and officer around a corner of the trench, we kept our heads down. In a minute we heard the yell “Down!” and a grenade burst. Then without warning three more followed. Curiosity might have prompted us to raise our heads after the first one. But there is an emotion stronger than curiosity, as you know, and screaming base-plugs make irreparable dents in helmets and heads. In August 1944 we were informed that if we wanted to take an officer’s training course and go before an Officer’s Selection and Appraisal Board, as we had been promised that we would be entitled to do, when we joined the Army Course, we would have to go into the infantry because there was now a surplus of artillery officers in Canada. It was clear from the length of time that would be required to qualify as an infantry officer that those who chose this route would be highly unlikely to get out of Canada, let alone go overseas and see some action before the war ended, which turned out to be the case. Those of us who decided to stay in the artillery were required to sign

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a waiver of “the privilege of appearing as an officer candidate before the Officers Selection and Appraisal Board in Canada,” and we were advised that we could expect to go overseas soon. After giving the matter careful consideration, I decided to stay in the medium artillery as a gunner, and I signed the waiver. As I put it in a letter home, “But if any of the Army Course sees action in this war it looks as if we in the artillery have the best chance.” In the same letter I went on to say, presumably with the apparent manpower shortage or crisis in the infantry in mind, “I would not be surprised at all if upon reaching England as an artillery reinforcement I was transferred to infantry.” After a period of embarkation leave those of us who had elected to remain in the artillery were posted, around the middle of October 1944, to Debert, Nova Scotia, where we underwent further training. We embarked for England on 20 November 1944. I crossed over to the Continent in the first week of March 1945, landing at Ostende, Belgium, on 7 March, exactly two months before the end of the war in Europe. After spending the night in Ostende, we went to No. 2 CBRG in Ghent. We spent a week there, after which I left to go in an advance guard to a place 23 miles northeast of Antwerp to clear a new site for No. 2 CBRG. It was in the direct path of the Vs, the pilotless robombs that we referred to as “buzz-bombs” being aimed at Antwerp. The Vs were passing directly over Ghent, and some actually landed in the city when we were there. We saw many of them in the sky when we were billeted in the mental institution just outside Ghent. At this site we cleared debris and other aftermath of war, but we could do little sightseeing because the fields around were heavily mined. Upon completion of this job we were put on draft for action. We travelled across Belgium and Holland in open trucks through Nijmegen and over the ground the Red Devils had fought to hold to Cleve in Germany. There we slept the night of 22 March. We joined the 7th Medium Regiment, 45th battery, the night of 23 March 1945 when the great artillery barrage preceding the crossing of the Rhine opened up. The week we spent in Ghent we were billeted in a medieval-looking building that was said to be 300 years old and looked like it may have served as a prison. We slept on lice-infected straw in what appeared to have been underground dungeons and ate out of greasy mess tins. Inevitably, dysentery broke out. One of my chums, now Mr Justice Edward Saunders of the Ontario Court of Justice (General Division), was so sick that we wondered if he would make it. I referred

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Gerald Le Dain in his Royal Canadian Army uniform, courtesy of the Le Dain family

to these conditions of unforgettable discomfort – worse, or at least more unhealthy, than anything we experienced in action – in the following excerpts from my letter home dated 13 March 1945: We expect the roll call in the morning to go something as follows: “All those still living raise themselves on an elbow and answer their names by breathing heavily.” I once knew the number of cubic feet of air required per person per hour, but I’m

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damn glad I’ve forgotten. They say there’ll be no need for a sergeant to wake us up in the morning: the rats nibbling on our ears will do the trick … I think our new quarters … rank with the catacombs of Rome and the Paris sewers. If only I was at the other end of the carbon cycle like the plants and breathed in the carbon dioxide, I could face the night with confidence … But it is a beautiful sunny day and I am above ground at the moment storing as much oxygen as possible. The sergeant major is below testing for gas with a Davey safety lamp. I joined the 7th Medium Regiment, RCA the evening of 23 March 1945, the night the crossing of the Rhine began in the 21st Army Group sector. The crossing was preceded by a tremendous artillery barrage from our side, with some counter-battery fire and the occasional strafing from the enemy side. We arrived at the regimental or 45th Battery, headquarters of the 7th Medium Regiment, RCA, near the village of Till, Germany, on the west bank of the Rhine opposite Emmerich on the other side, at the height of the bombardment. We were dropped off with our gear by the trucks that brought us in the yard of the regimental headquarters as occasional enemy shells from counter-battery fire were dropping uncomfortably close. I remember that the trucks that brought us beat it out of there in a hurry. It was a rather abrupt and unnerving introduction to action. There we were, left standing in the yard with our gear, not knowing where to run for cover from the shellfire. Then I saw a soldier stick his head out from the entrance to a dugout and beckon us to come in. I ran for it like a groundhog, and after I scrambled down the steps of the entrance, the soldier who had beckoned me ventured outside to bring a pet dog inside who had been standing around in the yard like us when the shells were dropping in the vicinity. It was a nice touch that introduced me to how far comradely concern and help extended in action. The underground shelter was quite deep and large, as I recall, and well reinforced with a heavy cover on top. It was vastly superior as cover to the slit trenches we would be able to dig on coming into a new gun position, if we had time to dig them at all. The fellows on our gun had dug L-shaped slit trenches so that you could present the smallest target to a strafing plane, depending on the direction from which it approached. The gun was also provided with a mounted machine gun with which to fire at a low-flying plane, but

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it was useless for that purpose, as one or two futile efforts that night demonstrated. We eventually used it to shoot at geese, at which it was not that much more successful. We had to keep up with a very rapid and heavy fire plan that night, and I remember feeling quite exhausted by the end of my shift. I had got used to carrying 100 lb. shells around but not that many, at such rapid intervals for such long periods. According to the reports we received, our fire was very effective, which was encouraging. In the early evening the infantry began to pass through our gun positions down to the riverbank where they got into inflatable boats and crossed over. I can see them now, loaded down with all their gear, passing by us with grim-faced determination, and thinking that I was glad to be in the artillery, and the medium artillery at that, where, because of the range of the 5.5, we could support the infantry from that position on the west bank of the Rhine for about a week before we had to cross over ourselves. The next morning we watched the massive airborne drop a seemingly endless stream of planes towing gliders and then the parachutes slowly descending on the other side of the river. It was an awesome sight. We did not, of course, know that it was also being watched by Churchill, Alanbrooke, and Montgomery only a few thousand yards from us. It was one of the great, climactic moments of the Second World War. In the notebook I kept during the time I was in action I described our crossing of the Rhine into Emmerich, Germany, just after midnight on 1 April 1945: Tonight after midnight we crossed the Rhine. This fateful river, so dark and foreboding in the starless night, was narrow enough – only about 400–500 yards wide, but its current was swift and lashed at the pontoon floats of our bridge. Emmerich appeared to be a dead and ghostly town, the shadows playing eerily on its ruins. It was completely lifeless – the only people in its streets being the provosts at the intersections. The trucks rumbled through. Everywhere there was the smell of wet mortar and the sickening odour of death. Emmerich is a graveyard – its tombstones the stumps of buildings. If anything, its destruction exceeds that of Cleve, but in both it is complete. After crossing over into Holland we encountered some action and uncomfortable sleeping conditions, which I described in my notebook:

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We just had time to dig in at our new position when we had to fire two rounds to knock out two S P s [self-propelled 88 mm guns]. During the afternoon we heard the chatter of machine guns from the woods a mile or two in front of us. Then at supper the 88s began to drop. But we did not realize how close to the front we were until we saw the Crocodile flame throwers in action. Their great 450 ft streams of flame made a spectacular sight arching through the sky in the dusk. Several large fires were started. There was a report that German tanks had broken through … Another fellow and I started a dugout, but it was too dark to find material for the roof so we slept in the open trench with not even a tent above us, to our later regret. It rained during the night, as it does intermittently in Holland, and I awoke about 3:00 a.m. to find myself in several inches of water. There was water below the two-foot level, so that in addition to the rain running down the sides there was seepage beneath us. My blankets, jacket and sweater, which I was using for a pillow, were soaked through. I gathered everything up and crawled miserably into a barn and managed to sleep until morning. We were moving rapidly in our liberation of Holland, but the r­ eaction of the Dutch to us as liberators was somewhat mixed, as excerpts from my letters home during the first two weeks of April 1945 indicate: People in towns that have been liberated but a few minutes before are still delirious with joy when we pull in … We thrill to the cheers of grateful Hollanders in our ears … Everywhere the little girls wear orange (for the Home of Orange) bows in their hair; the men wear orange ribbons in their lapels. The people are obviously awed by our equipment. The 5.5 is a particularly impressive gun when rolling, but to people in houses close to our gun positions it is unnerving. Last week we shook all the windows out of one house. We were forced to cut down a pear tree that had taken an old fellow 20 years to grow. This morning he had tears in his eyes, as he sighed, “All is caput.” “Caput” means finished, destroyed … The battle goes well. The weather is again in our favour. Typhoons roar in with deadly precision for the kill. We advance by leaps and bounds over roads hardening under a warm sun.

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We stop at no hotel for more than a couple of days. Sometimes it is the “Bawling Cow” or the “Braying Ass” or the “SweetSmelling Goat.” Sometimes it is the “Chicken-Coop.” The hotels “on the continent” have such picturesque names. The people are happy to see us, delirious if we have chocolate, ecstatic if we have cigarettes. They barter with eggs, but the egg loses its purchasing power after we have located the chicken coop, and fried chicken in the wee hours of the morning is great stuff for keeping body and soul together. At our last stop we slept with a dozen cows in stalls at our heads. They bawled all night but their hot breath on our necks made things very cozy. The people there, who spoke English fluently, told us about the occupation. The Germans stole everything, including their house, its furniture and their car … Yesterday we made a tremendous advance down roads lined with apple blossoms, past great estates and farmers’ hovels, through hamlets and pretty towns full of model homes. Everywhere the tricolour flew, and in larger towns the Union Jack was graciously displayed. Generally speaking, the people were glad to see us and gave us a great ovation in one place, where all you could see were smiles, orange ribbon and bunting … The Dutch have not yet tired of cheering. They speed us through their towns with screams and waving arms. I think they are glad to see us rolling and hope to hell we won’t stop in town. We have a reputation for knocking out windows, and Dutch homes are all windows. They do not understand the intricacies of artillery science, and are afraid we are going to knock out their tall churches trying to find the range … We crossed back into Germany on 23 April 1945. The last two weeks of the war in Germany were rather more dangerous for us in the 45th Battery of the 7th Medium Regiment, RCA than the liberation of Holland had been, but I continued to receive more than my share of the “Le Dain luck,” as excerpts from my notebook indicate: Crossed the German border late last night after a fifty mile move from Holland. Lost on the way several times. Got into position about 2:30 a.m. … Dug slit trenches and gun pit when we came on shift in the morning. Shells were exploding in front of us, and we could hear the whine.

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They were perfect for line but short for elevation. Knocked out some 105s without a pip (a Spitfire who shot the battery and then went in and strafed). In the afternoon the Typhoons went in on the stuff across the Ems and started bright fires all along the dike … About 10:00 p.m. the Germans began to shell us – 88s, 105s, etc. They were perfect for elevation but 300 to 400 yards to the left. We had no slits dug and had to crouch behind a makeshift gunpit of straw bales. Our sergeant watched many of them land. There was actually no sense in trying to duck them because they were travelling at three times the speed of sound (3300 ft per second), but it was an irrepressible instinct, almost a reflex, at the sound of a whine, even though you knew the shell was way ahead of the sound. “How close are they landing?” an officer in battery headquarters (the basement of a house some distance behind our guns) asked. “Close to your house,” our sergeant said, joking. “To this house?” was the anxious reply. Between our own rounds and the enemy fire I was able to dig a slit, but the ground was poor digging, and I was just able to gain protection … We moved the next morning, April 27th … Our new job was to take our place in the A GR A [Army Group Royal Artillery] that was to support the attack on Lear across the Ems. Our position was a neck of land jutting out into a flooded area. Behind us we had the guns of Emden within easy range, in front the objective of Leer. The 13th Field had pulled out of the position the day before and had taken a posting so the ground was taped. We made a gun pit out of bales of straw and dug in the charges. An L slit was dug close to the pit. We went off duty at 1:00 p.m. I found a place to sleep in the cellar and a mattress. In the middle of the afternoon they shelled our position with 4–8 guns (two ground and air burst) for about half an hour. I had been sleeping soundly and was too dopey to worry. I could hear the rounds landing, but had no idea they were so close until I heard voices around me describing the fall of shot. Apparently they were bracketing the guns. Then one bit a chunk out of the corner of the house, right behind me. The windows and bits of plaster were blown in. One of the fellows yelled at me to come over to the other side of the cellar. This startled me, and I sat up instead and looked around. Apparently my

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head was directly in front of the window. And they began to yell louder. I scrambled out in my underwear and crouched down with the others on the other side of the cellar. The shells were bursting around the gun position, and we could hear a voice over the tannoy [the intercom] anxiously asking, “Are you all right on one?” A sergeant’s voice broke in, “Two of my men have been wounded” … Shelled all day – 88s, 105s and 210s. The 7th Medium suffered its worst casualties in one day from enemy action in the entire war. Five men were killed and five wounded … I spent the afternoon, while off duty, sleeping in a German dugout – another manifestation of the “Le Dain luck.” Came out for supper to find two fresh shell holes within 10–15 yards of the dugout. The rum ration was brought around by a young officer whose hand was shaking as he poured it out … After three days of shelling we received this gratifying message from the commander of the 3rd Division, “To Queen Bty, 7th Can. Medium Regt. Our profound and heartfelt thanks for your action of the last three days.” He was referring to our counter-battery work … Rain and cold all day. Moved after supper. Put bales of straw in the ditches but to no avail. Truck got stuck, then gun got bogged. I was too tired to get out of the truck when the gun was being winched. I felt the strain mounting on the cable and at the last moment held my steel helmet in front of my head. The cable snapped and whipped into the back of the truck leaving a large dent in a charge box. I could have had my head whipped but escaped with a bruised forearm, which went numb from a glancing blow by the cable. I thought my arm had been broken, and when I climbed out of the truck I said to my buddies, with a smile on my face, “I’m out.” It was the third example of the “Le Dain luck” within a week. The fourth was when a breach burst, a thing we always dreaded, occurred on my gun just after I had gone off duty at 7:00 a.m. one day. My letter home of 5 May 1945 said, Today on the fifth day of the fifth month of 1945 the war in Europe has ended for us. To celebrate victory I received two parcels from you yesterday. Between us the boys and myself have gorged ourselves on their contents. It is a great day for us. I have

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been very lucky and am truly thankful. The last two weeks have been an intense struggle. We shall discuss all this around the old dining room table.

T h e S u m m e r o f 1 9 45 i n Holland a n d t h e A r m y o f Occupati on When the war in Europe ended on 8 May 1945 our guns were taken away and we set up camp in the town of Markelo in the east of Holland, not far from our gun site on the west bank of the Rhine when the Rhine crossing began. We lived in tents in an open field on the edge of town. There was little to do but read. In my letter home of 14 May 1945, I made a request for books: They are making every effort to keep us occupied with a sports program. There is even a possibility that they will find tennis equipment for us. I would appreciate it very much, folks, if you could send me a parcel of small books – e.g. Modern Library. Any of the following authors would be welcome: Tolstoy, Gorki, Chekov – any of the Russian classics, De Maupassant, Balzac, Kipling (prose works), D.H. Lawrence, Henry James, Thomas Mann, Victor Hugo. As a matter of fact any good books, but small pocket editions. All this at my expense, of course! If I must stay here I refuse to vegetate and become part of the moss and the fungus. The two big concerns for me in May and June 1945 were whether I was going to get home on an early draft, and the upcoming federal election. As for the first issue, demobilization or repatriation was to be based on a points system – so many points for months of service in Canada and so many points for service overseas. The minimum required to go home in an early draft was fifty. I had forty-nine, so I resigned myself to having to stay in Europe for several months and probably having to spend some time in the Army of Occupation. As it turned out, however, this single point turned out to be another piece of the “Le Dain luck,” because if I had had another point I would not have met the girl with whom I spent forty-eight very happy years and had six children.

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3 The Walker, Martineau Years, 1950–1953 C. Ian Kyer

In 1950, having completed his graduate studies in France, twentyfive-year-old Gerald Le Dain decided to practise law in Montreal. He joined the firm of Walker, Martineau, Chauvin, Walker, and Allison.1 It was a substantial firm for its day, having six members.2 Le Dain became the seventh.3 Its offices were in the Bank of Toronto building on the southeast corner of St James and McGill Streets at the edge of Old Montreal,4 just south of Victoria Square and a few blocks away from the banking district, the courthouse, and the city hall. Although the majority of lawyers in Montreal were French speaking, Walker, Martineau was principally, although not exclusively, an anglophone firm. It had been founded in 1907 by two English-speaking lawyers, Henry Noel Chauvin and George Harold Baker, and since that founding most of its lawyers had been anglophones.5 Both Chauvin and Baker were dead by the time of Le Dain’s arrival, but the memory of their exploits was still fresh in the minds of the partners. That was especially true of Chauvin, who had died at age seventyseven just the year before. Le Dain must have heard many a tale of the recently departed Chauvin, who had been much admired in the firm. A lawyer’s lawyer, he had practised for forty-two years and become a noted litigator. In 1933, when he was elected unanimously as Batonnier of the Bar of Montreal and Batonnier Général of the Bar of the Province of Quebec, the Montreal Gazette congratulated the Bar on the excellence of their choice and remarked that unanimity in the election of an English-speaking candidate reflected the “bonne entente” between the English and French members of the profession.6

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Undoubtedly Le Dain was also told that there was a bronze statue of Baker in the main lobby of the House of Commons in Ottawa. Despite the statute, there was not the same respect in the firm for Baker as a lawyer. He had practised only nine years, and during those years he had spent much time in Ottawa as a member of Parliament. What made Baker a subject of pride within the firm was that when World War I came, Baker had volunteered for active service and had died in battle in Belgium on 3 June 1916. Lawyers in the firm knew that he was the first member of Parliament to have given his life for the preservation of his democratic ideals. Le Dain, as the most junior lawyer in the firm, was at the beck and call of all of the partners. With Chauvin, its long-time leader, dead, the most senior partners were now Harold E. Walker, Jean Martineau, and Chauvin’s son, Frank. All three were King’s Counsel and had been with the firm for decades. Harold Walker was sixty-eight7 and the last of the so-called founding partners. Although he had not been with the firm on its founding in 1907, he had joined Chauvin and Baker in 1910, just three years later. Harold Walker may have been the most senior, but it would have soon been obvious to Le Dain that the most impressive lawyer in the firm was Jean Martineau, age fiftyfive.8 Martineau stood out for many reasons. Unlike his partners, Martineau’s first language was French, but more importantly, he was their star. He was assuming leadership not only in the firm but in the Quebec Bar generally. He had been admitted to the Bar in 1919 and made King’s Counsel a decade later.9 By 1950 Martineau was one of Montreal’s most highly respected litigation counsel. One Ontario lawyer would later quip that Martineau was an “adversaire formidable.”10 As a result, he attracted many interesting briefs. When Le Dain joined, Martineau had just been retained to represent Monsieur Langlois, the director of police in Montreal, one of fifty-six members of the police department under investigation by Justice Francois Caron in a public inquiry into police corruption and links to organized crime. That inquiry would last for almost four years.11 It would come as no surprise to Le Dain in 1952 that Martineau became president of the Bureau of Examiners and the next year was elected Batonnier. By comparison, Frank Chauvin, also in his fifties, did not impress. Following in his father’s footsteps, he had joined the firm in 1925, but he would never rise to prominence inside or outside the firm. But if Chauvin’s son could not be considered a power in the firm, the same could not be said for Walker’s son, Robert. The younger

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Walker had graduated from McGill and joined the firm in 1936.12 Although only thirty-eight when Le Dain joined the firm, Bob Walker was already becoming a dominant personality in the firm. He was a take-charge person. During the Second World War he had achieved the rank of lieutenant colonel and the command of the 15th Canadian Armoured Field Regiment. He had become a partner on rejoining the firm in 1946, and in 1949 Bob had been made a KC. If Martineau stood out because of his native tongue and his place in the Montreal Bar, Bob Walker stood out because of his practice. In a firm of barristers, he practised corporate commercial law. Up to this time the firm had been known principally for its expertise in litigation, but Bob Walker wanted to grow the corporate / commercial side of their practice and transform it into a full-service firm. The only other partner in the firm, George A. Allison, was closer in age to Le Dain and, like him, was a war veteran.13 Allison, then thirty-four and in his first year of partnership,14 had graduated in law from McGill and joined the firm in 1940. Just two years later he volunteered for military service and went overseas as part of the Royal Canadian Signal Corps, becoming a lieutenant in 1943. He returned to the firm in 1946 and resumed developing his litigation skills with Henry Chauvin, whom he regarded as his mentor and inspiration. Le Dain would have learned early that Allison was known for his discipline and detail in the preparation of his cases and for his dedication to thoroughness. On the surface Le Dain had much in common with the only other junior lawyer, Roger L. Beaulieu. Like Le Dain, Beaulieu had been born in Montreal in 1924, had graduated from McGill, and had done graduate work out of the country.15 Closer scrutiny reveals that the two were in fact quite different. The most obvious difference was that Le Dain was an anglophone and Beaulieu was a francophone. That difference had given Beaulieu a head start at the firm. Like many young French Canadians, he had not enlisted.16 While Le Dain was in military service, Beaulieu had continued his studies at McGill, graduating in 1947. But the difference in the two young men went much deeper. Le Dain was truly fascinated by the law, whereas Beaulieu saw it as a means to an end. His plan was to use law to prepare himself for a career in the business world. So when Beaulieu completed his legal studies at McGill in 1947, he went to do graduate work in business administration at Harvard. He obtained a master’s of business administration in 1949 and joined the firm at that time.

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For two years Le Dain was the firm’s most junior lawyer. He was undoubtedly pleased when in 1952 he was joined by William Tetley17 and then by Charles Alexander Phelan.18 Both were native Montrealers, having been born there in 1927,19 and each had just been called to the Bar. Le Dain would prove to have much in common with Tetley. Tetley had enlisted and studied at the Royal Canadian Naval College, graduating in 1945 with honours as chief cadet captain. For a year he had served at sea as a midshipman. Even after he returned to Montreal for his schooling he had remained in the Reserve as a sublieutenant and later as lieutenant. He had attended McGill, receiving his B A (Honours Economics) in 1948 and had then studied law at Laval, graduating in 1951. Like Le Dain, Tetley enjoyed writing. Tetley, however, wrote book reviews for the Montreal Star and the Montreal Gazette. Le Dain had more serious matters on his mind. Despite being burdened with his legal work, Le Dain found time to write “Twilight of Judicial Control in the Province of Quebec?” in the inaugural issue of the McGill Law Journal. This important article addressed what Le Dain saw as “a serious situation … developing in Quebec with respect to the control exercised over administrative bodies by the courts of law.” Le Dain also found time to be a sessional lecturer in administrative law at McGill University. Tetley would also end up lecturing at McGill, but many years later. In one important respect Tetley and Le Dain differed. Le Dain was not long for practice, but Tetley would thrive as a practitioner. This difference soon evidenced itself. Tetley had intended to be a tax lawyer and while studying law had taken night courses in accounting at the Association of Chartered Accountants.20 But during his second week at the firm, a New York cargo insurance manager appeared, brought into the office by an underwriter who was dissatisfied with the two large Montreal law firms doing maritime law. Those firms acted for either ship owners or charterers, and the handling of cargo claims was given less attention. The claim that the underwriter wanted handled was a very small one, $200 for a shortage of flour shipped in cotton bags to Montreal. The partners knew that such a claim could only be handled by a junior lawyer. Tetley was quite junior and as a sailor knew something of shipping. He took the file and wrote a very long opinion, explaining that there was no chance of recovery. Despite the length of the opinion and its negative conclusion, the underwriter soon sent another claim for several thousand dollars. Tetley was confident that there would be further work if only he could get to

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New York to personally visit the claims manager who had sent the claim. He approached Bob Walker, asking if the firm would pay for him to him to go. Walker replied that there was no money for such nonsense. Undeterred, Tetley hitch-hiked to New York, where he stayed in the Y MC A . He then made his way to Wall Street to see the claims manager. The manager was very impressed with this “brighteyed and bushy-tailed lawyer” from Montreal – so much so that he called claims managers from seven other marine insurance companies nearby, telling each of them about Tetley and asking if they have any claims on the same ship. When they said yes, Tetley made the rounds, visiting them all and picking up files from each of them. To celebrate his success he bought a set of golf clubs and a golf bag, swung them onto his shoulder and hitch-hiked back to Montreal. As he stood on the road, passing truck drivers would shout “Fore!” out their windows as they drove by. Many a truck rumbled by, but eventually one pulled over and took him all the way to Montreal. Now, however, Tetley had to learn how to sue in Admiralty. The partners were of little help – the firm had never acted in Admiralty. So Tetley signed out files from the Admiralty Court Registrar and studied them carefully. He ended up settling the various claims, and to the delight of the partners he was able to send out one of the largest bills in the firm since before the Depression. There was no such story for Le Dain. He had come to recognize that his true calling was as an academic and not as a practising lawyer, and so in the summer of 1953 he accepted a position at McGill University and he left the law firm. Although brief, the period when Le Dain was an associate was an important one in the firm. It was when the firm began to be transformed from a moderate-sized, anglophone, litigation firm into the large, full-service, largely francophone firm that it would later become. Bob Walker and his like-minded colleague Roger Beaulieu would be instrumental in that transformation. They recognized that the postwar economic boom meant that business lawyers would be much in demand. They started to recruit others. By 1962 there would be twelve lawyers, and by 1972 that number increased to thirty-six.21 Walker would become one of Canada’s most distinguished tax lawyers, chairing the Canadian Tax Foundation. Beaulieu would become one of Quebec’s most powerful business lawyers, acting for the Government of Quebec in creating the Caisse de Dépôt et Placement du Québec and in structuring the James Bay Hydro Electric Power project.

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Others in the group would also go on to great things. Jean Martineau would serve for five years a judge of the Quebec Court of Appeal (1954–59) before resuming his practice as the senior partner in the firm renamed Walker, Martineau, Allison, Beaulieu, Tetley, and Phelan. He would serve as chairman of the Quebec Advisory Council on the Administration of Justice, as a member of the Advisory Council for the Order of Canada, as president of the Canada Council for the Arts, and as a director of several public companies. William Tetley continued to attract maritime law clients and would become one of the world’s leading experts in that field. He would also become a powerful political figure in Quebec, serving in the Bourassa Cabinet as minister of revenue and then minister of financial institutions, companies, cooperators, and consumer protection, and even later as minister of public works and supply. It was Tetley who introduced Quebec’s first consumer protection act. Following his retirement from politics, Tetley would become a popular professor at McGill University’s Faculty of Law. Charles Phelan would become the president of the Junior Barristers Section of the Canadian Bar Association22 and later be appointed to the Quebec Superior Court. Those three years at Walker Martineau brought Le Dain day-to-day experience in the practice of law and introduced him to several of the people who would transform Quebec in the 1960s and 1970s. Significantly, these very accomplished people would later point with pride to their former associate Gerry Le Dain as he too rose to prominence in the law and law teaching.

n otes   1 Much of this chapter is drawn from a short, self-published pamphlet ­entitled Martineau Walker prepared in 1984. It briefly outlines the firm’s history and its practice at the time. A copy can be found in the Fasken Martineau DuMoulin LLP Fonds is in the Archives of the Law Society of Upper Canada at Osgoode Hall identified as PF189. See also C. Ian Kyer, Lawyers, Families & Businesses: The Shaping of a Bay Street Firm, Faskens 1863–1963 (Toronto: Irwin Law, 2013), 261–4.   2 It had been about this size since at least 1929. See the Canadian Almanac 1929 (Toronto: Copp Clark, 1929), 499.   3 Gerald Le Dain ’49 is the seventh and last name in the firm list in Canada Law List (Toronto: Cartwright & Sons, 1951 and 1952) for 1951 at 176, and for 1952 at 185.

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  4 See the professional cards placed in Montreal Gazette, 19 December 1940, 24 January 1948, and 21 February 1953.  5 Montreal Gazette, 2 May 1933, on Chauvin’s election as Batonnier noted that “unanimity of election of an English-speaking candidate yesterday reflects again the bonne entente prevailing amongst a profession the majority of whose members are French-speaking.”  6 Montreal Gazette, 2 May 1933.   7 “Walker, Harold Earle,” Who’s Who in Canada 1958–59 (Toronto: International, 1959), 1100.  8 See Canadian Who’s Who 1985 (Toronto: University of Toronto Press, 1985), 807, and the description of his accomplishments at http://www. barreau.qc.ca/fr/barreau/historique/administration/batonniers-1930-1959. html.   9 Martineau, “The Hon. Mr Justice Jean,” Who’s Who in Canada 1958–59 (Toronto: International, 1958), 1412. 10 Edward B. Joliffe, QC, in introducing Jean Martineau at the Empire Club, 24 October 1968. See “The Canada Council at Work,” an address by Jean Martineau, QC, http://speeches.empireclub.org/60998/data. 11 Globe & Mail, 29 August 1952, 8. See also Alanah Heffez, “1950–54 Caron Inquiry: ‘Montreal in the Grips of the Underworld,’” spacingMONTREAL , 27 March 2013, http://spacing.ca/montreal/2013/03/27/1950-54-caroninquiry-montreal-in-the-grips-of-the-underworld/. 12 See Canadian Who’s Who 1985 (Toronto: University of Toronto Press, 1985), 1280. 13 “Allison, George Anthony,” Who’s Who in Canada 1964–5 (Toronto: International, 1964), 394. 14 “Allison, George Anthony,” Who’s Who in Canada 1958–9 (Toronto: International, 1958), 510. 15 “Beaulieu, Roger Louis,” Who’s Who in Canada 1958–9 (Toronto: International, 1958), 606. 16 On the attitude of young francophones to “Britain’s war,” see John English, Citizen of the World: The Life of Pierre Elliott Trudeau, vol. 1 (Toronto: Alfred A. Knopf Canada, 2006), chap. 2. 17 On Tetley, see https://maritimeaccident.wordpress.com/2008/04/25/websiteof-note-tetleys-maritime-and-admiralty-law/, and his biographical entry in http://en.wikipedia.org/wiki/William_Tetley. 18 Tetley and Phelan appear as “’52” and last in the firm list in Canada Law List (Toronto: Cartwright & Sons, 1953), 193. 19 On Phelan, see “Charles Alexander Phelan” (1927–1991) from Ancestry .com. He was born in born in Montreal on 1 January 1927 to Eugene

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Dillon Phelan and Margaret Lee Beard. He passed away on 5 June 1991 in Montreal. 20 The following is taken from William Tetley, “How to Become a Maritime Lawyer without Even Trying,” which was online but is now only described at https://maritimeaccident.wordpress.com/2008/04/25/ website-of-note-tetleys-maritime-and-admiralty-law/. 21 Christopher Moore, McCarthy Tétrault: Building Canada’s Premier Law Firm 1855–2005 (Vancouver: Douglas & McIntyre, 2005), 232. 22 “Annual Meeting Program” in the American Bar Association Journal, July 1958.

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4 Part-time Montreal Law Practice and Part-time Law School Lecturing of the 1950s and 1960s An interview of Stephen Scott conducted by Richard Janda in September 2013

Stephen Sc o t t : It is a treat to talk about Gerald Le Dain. Le Dain was a friend. We got on very well. Indeed, Armand de Mestral and I came into law school exactly fifty years ago today: autumn 1963, and we were in first year together. Gerry was then practising law in a firm that was called Riel, Le Dain, Bissonnette, Vermette, and Ryan. I had occasion to discuss with him one of the cases he pleaded as intervenor for the attorney general of Quebec, AG (Ontario) v Barfried Enterprises, [1963] SC R 570. In Barfried, the Supreme Court reversed the Ontario Court of Appeal and upheld the unconscionable transactions relief legislation in issue. Afterwards, a Quebec statute was enacted to amend the Civil Code of Lower Canada to include relief for unconscionable transactions in line with the Ontario legislation. Justices Martland and Ritchie dissented in Barfried, and what was interesting was that, although Le Dain was successful, he had enough perspective and enough caution, enough judgment – impartiality, if you like – that he was not completely convinced of his own pleading in the case. He carried out his mandate in good faith. He made his arguments. Counsel can refuse a mandate on the basis of personal conviction but can also take a mandate and make his client’s submissions. Counsel isn’t necessarily expressing personal beliefs. Counsel is making submissions, not expressing opinions. But Le Dain did say that he doubted the correctness of the Barfried decision. I feel that

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now that he is gone, I can pass along that observation without seeming to portray him as indiscreet. In other words, I’m not questioning Le Dain’s integrity. I’m not questioning his professionalism as counsel. I can say what, objectively as a fine jurist, he thought of the issue, including the doubts he had. Le Dain’s giving me his personal opinion doesn’t tell against him but rather shows that he was able to exercise a measure of independent judgment about the strengths and weaknesses of his own cases. Another thing I wanted to mention about Le Dain’s cases, which you wouldn’t get from any reading of factums, is a comment made by Justice Roland Ritchie about Le Dain as counsel. I knew the Ritchie family well, and Roland Ritchie said to me that Le Dain was excellent counsel. He said, “He is real counsel, too, because he deals with each of us directly and deals with our particular concerns.” In other words, Le Dain was not just counsel who arrived and thought, “Here’s the Court. I’m going to give my spiel.” Ritchie liked the fact that Le Dain addressed the judges’ individual concerns and dealt with them individually. I think that that was a considerable compliment. R ic ha r d J a nda : During the time that you were a student and Le Dain was going to court, would he invite students to come? SS: No. No. R J: Did students simply know to come? S S : This was, I think, in 1966, or possibly ’65. We knew he had provincial mandates. The Quebec government was a regular client of his. Apart from Barfried, Le Dain represented Quebec in Mann and again in Commission du salaire minimum. It may well have been the latter case that I heard him plead. It was heard, I think, in June of 1966, and I had just then graduated from law school. At any rate, we had dinner in the Chateau Laurier the night before he pleaded. I have pleaded a number of cases in the Supreme Court, and I would not have had the nerve to go out for dinner the night before. I would always have been cramming in my hotel room, very nervously. But Gerry took me out for dinner in one of the restaurants in the Chateau Laurier – the main dining room – and I think we even had a glass of wine. He was not going to drink too much. But it was an interesting evening. I believe we talked about the ethics of pleading in the Supreme Court, and what was your duty in respect of authorities that did not support you. And he said, “I would not like to be known as counsel who did not present relevant authorities to the Court.” As I recall, the line he drew was that you could say “also relevant are” certain

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named cases or put them in a list of cases that you cited. But you were not obliged to say, “This case is against me, and here is why” and then explain why. So you did not have to belabour it, but you should mention it. R J : Do you believe Le Dain thought that, if you confronted the cases against you, the pleadings were strengthened? SS: You would, of course, do so if you felt that was appropriate and helpful to your argument; you would confront adverse authorities. But you would not need to address them on the supposition that it was an ethical duty to do so. If someone raised them, you would distinguish them. You might even say that they were wrong. But if the case was clearly relevant and it had not been cited, it was not ethical for you simply to try to ensure that it remained an uncited and overlooked authority. I don’t say Le Dain thought that you were obliged to show why some case that no one else thought relevant was relevant, because any of us can do that. Turned, sometimes, to powerful effect, a skilful advocate can show that if you look at something very closely, it is really powerful ammunition against you. I don’t say he thought you should dig and work and produce something out of it against yourself. But Le Dain believed strongly that if it there was a case that on its face was pretty clearly relevant, even though it was adverse, you should mention it. The proper thing was citation in your factum. R J : I know from others that you were an extraordinary student and figure while you were at the law faculty, but was it unusual for Le Dain to have this kind of conversation with a student? SS: Gerry was an open and friendly guy, and he would have talked about almost anything to almost anybody, but we became friends through the years. R J: Were the law school classrooms then in Old Chancellor Day Hall? SS: Yes. There was a classroom in what are now the three big offices on the second floor. And another classroom was in what are now the three big offices on the third floor. The bigger classroom was on the second floor, with a smaller one upstairs. The bigger room was used mostly by the first-year class. By the end of the first year enough students had usually dropped out, or been flunked out, that the room upstairs could accommodate all the second-year or third-year students. My class came in at about ninety and must have graduated at about seventy-five. What the school’s administration tried to do – there was

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this kind of ridiculous strategy – they wanted us first-year students to stick around as long as possible during the day, so they tended to schedule some of our classes at inconvenient hours late in the day. Other groups in the second or third year could then go into the first-year classroom, and the remaining year would be in the room upstairs. Le Dain was, as I said, practising law in those years. He had been teaching full-time after he returned from graduate work overseas and then became part-time while in practice before he came back to full-time teaching. Gerry taught me administrative law. My metaphor for him is that of a contortionist, figuratively twisting himself around the podium. He lived the law. He loved it, and he was passionate about it. He was theatrical, like a great actor. He went through the cases and he lived the agony and the ecstasy of those things. He didn’t just come into class and present cases, he lived them through the conflicts and the issues. R J: I was told that Le Dain would pace up and down in class. SS: He paced, he twisted himself around the desk, and he moved around. R J: He was also famous or infamous for having a particular and peculiar relationship to personal space and could come very close to people. SS: I’ll mention that too. The last time I saw Gerry was a few years before his death. He was at McGill for a class reunion. He saw me in the lobby of New Chancellor Day Hall and buttonholed me, figuratively at least. I remember being told by an English literature lecturer that Samuel Coleridge would close his eyes and let his imagination wander. But so that his interlocutor could not leave, Coleridge would actually grab the button of his shirt or jacket. On that occasion Le Dain did almost that. Of course, we were friends and I was certainly not going to leave. So I spent an hour or so with him in the late afternoon, before his event. I mentioned to him that we had not long before then put up his portrait in the Moot Courtroom with those of our other alumni Supreme Court of Canada judges. He loved that. He reacted to that, and he asked whether he could see his portrait. And I said, “Of course.” I looked through the door of the Moot Courtroom and saw that Stephen Hamilton was giving a lecture in civil procedure. So we tiptoed in and walked along behind the back row of seats. We looked at his portrait and whispered for a couple of minutes. A few weeks later, I happened to run into Stephen. He said, “Wasn’t that Justice Le Dain in the back of my classroom the other week?” And that was the last time I saw Gerry.

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R J : You also almost overlapped with Le Dain as a teaching colleague, I believe. SS: I did my Quebec Bar examinations in 1966–67 when he came back to teach full time, and he was supposed to be continuing on. But it was then that he got an offer to go to Osgoode Hall at York University as dean. I was going to start teaching in the autumn of 1967. At some point in ’66 or ’67, before his appointment at Osgoode, we ran into one another on Sherbrooke Street. He said, “So-and-so told me that you said you were teaching Constitutional Law next term.” And I answered, “Yes, I am teaching Constitutional law next term.” And he said, “But I’m teaching Constitutional Law next term.” To which I said something like, “Well, I mean, of course you can. Of course you’re teaching Constitutional Law next term. But two people can teach Constitutional Law.” That exchange has stuck with me. Why? Because there was an extraordinary individual of great talent who had no need to be insecure about much of anything. And yet, for some reason, there was this pipsqueak guy – me – perhaps a good student with a good academic record, but so what? The young guy was very junior and had never practised law. He was going to be teaching Constitutional Law, and somehow that seemed to bother Gerry. By the time I started teaching he was already off to Osgoode. So we were never teaching colleagues at the same time. But he struck me as vulnerable. I learned more about how sensitive Le Dain could be from Madame Justice Claire L’Heureux-Dubé – I call her l’HeureuseDubé because she’s a wonderful, happy person and she cares. She was candid about considering Chief Justice Brian Dickson to have been, shall I say, insensitive? – my choice of words – in his treatment of Le Dain towards the end of Gerry’s tenure at the Supreme Court. Le Dain suffered serious depression at that time. There is a great deal of pressure on the judges, so I surmise that his depression was workrelated. Justice L’Heureux-Dubé thought that the chief justice pressed Le Dain to resign too soon without giving him enough opportunity to see whether he could get better. Perhaps that would not have made much difference, she thought, but to her it would have been a more sensitive way to have handled the matter. She remembered thinking, “After thirty days away you are done,” and that is a frightening message. She thought that Le Dain’s family shared her view, or that is what she had heard. Justice L’Heureux-Dubé said she had great admiration for Le Dain, who was her next-door neighbour at the Court and with whom she had many exchanges. She recalled one of those

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exchanges in particular in which he asked, “Will I have to resign?” To which, she said, “I answered a definite no.” She is a very kind person and she felt Le Dain’s pain. I wrote a fun review of Bob Woodward and Scott Armstrong’s The Brethren for the Montreal Gazette several years ago. That is a tell-all book of gossip about the United States Supreme Court that was built to a large extent on tattletale comments by law clerks. Indeed, those comments are sometimes slanderous. But I have thought, through the years, that our Supreme Court of Canada law clerks have been wonderful. They have kept their mouths shut. I have never heard any indiscretion. I know lots of former students who were law clerks at the Supreme Court, and I have never heard indiscretion from any of them. RJ: Do you have any observations about Le Dain’s transition from academia to the courts? S S : Yes. He had taught Banking and Negotiable Instruments, at least when he taught full-time. He later wrote the judgment in C P Hotels v Bank of Montreal, [1987] 1 S CR 711 on forgery issues and, when an employee forges his employer’s cheques, who is responsible for forgery. You can hold the company responsible, vis-à-vis the drawee bank, when the company tries to repudiate the cheques and obtain reimbursement of sums debited. Le Dain’s judgment is very well written and extremely thorough. I taught that judgement in my classes. I could see that it is elaborate and leaves no relevant authority undiscussed. So that if you look at that decision, you can see why he might have had a problem keeping up with his work. It was an academic’s style of writing. If you look at CP Hotels and say, “Could a judge write every opinion in that detail, even if only on the issues in respect of which he thinks he’s more qualified than the average judge?” I think that you can see that that would be very hard to do. Le Dain’s legal interests were general, including civil law. On that breadth of interest one should read, for example, his early article in the McGill Law Journal on fungibles and civil-law property. Le Dain was also interested in negotiable instruments. And I think that Civil Law Property and Negotiable Instruments were both courses he taught. But while he was in practice, at least in my time as a McGill law student, he taught Administrative Law. RJ: Is there anything about Le Dain as a teacher that presaged how he agonized about confronting all of the potentially relevant authorities on a subject? Maybe something you mentioned earlier suggested it when you said that he lived the cases?

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SS: He lived the law, and I would say that he did so emotionally. The point is, he loved the law. I have some of those reflexes myself: if there is a footnote to be written, or a case to be cited or distinguished, I am tempted to explain why it is irrelevant in all its detail. But, as I said – and it was only relayed to me second-hand – Le Dain had a problem when he went to the Supreme Court. He felt psychological pressure, it seems. His form of writing involved making sure that you were meticulously correct about everything you cited and that you reviewed everything several times so that you made sure you were exactly right in every affirmation. I always tell students, “Harness paranoia.” Here you are, you have these thoughts, and they should be imperishable. You express them, and you write about them. But at a certain point you’re not going to be around to defend your writing any more, and people may misrepresent and distort it. Remember Fitzjames Stephen: don’t write simply to be understood, write so that you cannot possibly be misunderstood. So, to Le Dain’s scholarly mind, the injunction was: I’ve got to write something so that not only can no one misunderstand it, but no one can distort it, even with malicious intent. If you harness paranoia, at a certain point you can become immobilized – even though, as a matter of principle, as an ideal, it is important to do it and make sure you don’t have mistakes. Even in the Supreme Court’s judgments you can find mistakes. But if you are going to do all these things, which may make you a very good academic writer and a very good scholar, that may impede your ability to produce judgments with the necessary speed. Care, accuracy, comprehensiveness: all those things have to be put together. And, in addition, would it were done quickly! R J: Can you recall anything else of note about Le Dain’s teaching? SS: One thing he did deal with in class, which was very interesting, was a case he won in Quebec Superior Court, called Redbrooke Estates v City of Montreal. It had to do with the construction of the PortRoyal apartment block, a big building on Sherbrooke Street near Avenue Du Musée and Redpath Street. You need only look at it to see that it was vastly higher than the existing buildings in the vicinity, and it was going to block part of the view of the mountain. The City of Montreal wanted to rezone the land to prohibit a building as high as that one was going to be. But the case law as it stood then and afterwards was fairly clear that, through a rezoning done even after you put in an application for a building permit, the city could defeat your right to build – even by a rezoning that took place subsequent

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to your having filed the application. That rezoning could be done, as I recall, right up to the point when you had a perfected right to build. Until you had established a vested right to build and had a court order giving you that right, through mandamus or otherwise ordering the issuance of the permit, your right could be defeated. Once you had the perfected right to the building permit under a court order, later zoning could not defeat it. So what Le Dain did was to get an injunction against the City of Montreal blocking passage of the bylaw. He sought repeated interim injunctions and made an application for an interlocutory injunction on the basis of various allegations such as discrimination. On what basis can you restrain a legislative body, even if it is a municipal body, from passing legislation which ex facie it has a right to enact? In my view, just because you don’t like it, or because it will affect your rights in some way that it can lawfully affect them, at least as a matter of principle, that does not prevent the municipality from acting. Yet he did get the injunctions and they lasted long enough for him to get the mandamus ordering issuance of the building permit, and so the Redbrooke–Port-Royal apartments were put up in accordance with the previous zoning because his injunctions had stopped the City from legislating. That was a real coup for his client and a major success in court. R J: So that part of Montreal’s skyline is thanks to Gerry Le Dain? SS: It is thanks to Gerry Le Dain. I spoke to him about it, and I said, “What right do you have to restrain a legislative process?” He said that he thought it was just a one-time thing. He had succeeded with it against the odds. He had obtained the judgment that time, and it might well be that nobody else would be able to succeed in the same way on another occasion. I imagine that, if it had gone to appeal, the result might have been different. But the appeal process is slow. Maybe the injunctions blocking the rezoning would have been vacated, although the interlocutory injunction was only granted at the same time as the mandamus order. I think the delay was part of the reason for his success. Whether the Superior Court was right or wrong, he had perfected the right to build before the rezoning could take place. RJ: I have had occasion to speak to Tass Grivakis and Peter Blaikie about Le Dain, as well. Peter said, “I remember Gerry as an exceedingly elegant, dashing, eloquent and articulate man, who was utterly charming and delightful. I haven’t the faintest idea what courses he may have taught me, which has nothing to do with the quality of his teaching and everything to do with my lack of attention as a student.

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I never could understand why such a worldly man would have chosen the monastic life of the Supreme Court of Canada.” Tass Grivakis said, “I remember Gerry Le Dain as an enthusiastic teacher, towering over us in class as he paced up and down.” SS: He was all of those things. Yet utterly without pretence. R J: How would you describe the pedagogical method of Le Dain? Was he a lecturer? SS: No. It was case method. He went through the cases in an orderly way. R J : But did he ask lots of questions? Did he interact with students? SS: He would elicit discussion. He’d make the points he wanted to make and elicit discussion. I don’t remember his trying any of the Paper Chase kind of thing: “Mr X, can you give me the facts?” That was not his style. R J : At that time, there were, I think, nine full-time teachers on McGill law school’s staff. But Le Dain was then part-time. Was he present around the school apart from his classes? SS: Not as I remember it. But he clearly loved teaching and lived it and loved it. He saw himself, I suppose, as someone who was effective counsel, got important clients, and got important cases. But since he ended up coming back to the university, I would say that, at least in that period of his life, he saw himself first as a university person. I think it was Bill Lederman at Queen’s University Faculty of Law who remarked when Gerry went to the Supreme Court that appointment was the realization of the ambition of a lifetime. That was probably true. For a while before going to the Federal Court of Appeal, Le Dain lingered around the university longer than he perhaps would have wanted to. I remember him attending a session of the annual Canadian Law Teachers conference, and he seemed at loose ends. Frank Scott, on one occasion, remarked that Le Dain was an artist who liked to change his canvas. R J: You may know that I had tremendous fondness for Gerry Le Dain. But I got to know him best only after I clerked at the Supreme Court because I was, in a sense, an orphan clerk who arrived there at the moment he resigned. I did nonetheless interact with him during that period, and I interacted with his family as well. I had a kind of front row seat on how the pressure you described actually impinged on him. There is discussion of that period in the biography of Brian Dickson written by Kent Roach and Bob Sharpe. I can speak to a bit

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of it, since they put those days on the public record and thereby provoked some controversy. That biography was, in part, a behind-thescenes look at the court, which I think did break confidence in some measure. The authors spoke, for example, of the fact that the reasons in what came to be known as the Ford v Quebec (AG ), [1988] 2 S CR 712 case (it went to the Court as the Chaussures Brown case) … SS: I was involved in that litigation. The application was drafted in my office. R J : You may therefore know by now that those were essentially Le Dain’s reasons. SS: Were they? I didn’t know that. They looked like Jean Beetz’s reasons to me. R J : The coram said that Le Dain, J did not participate in the ­judgment. But the draft was actually his. There were some modifications that were relatively minor ones. But I was therefore witness to exactly what you describe about Le Dain’s agonizing over absolute precision of expression and the desire to ensure that the Court be perfectly understood. SS: Which I believe is important and which has to be done and is very well done in Ford, which is superbly and intricately written. But the challenge is to draw the line at a point that does not make you ineffective and keeps the machinery of justice running. I used to go into class each year at least once with a library truck full of documentation – record, factums, all the case law – which I had used for one of my Supreme Court cases. And I would say, “Look, you’re unhappy with a casebook, which consists mostly of reasons for judgment? But the reasons for judgment are just the tip of the iceberg of the whole case.” And I would say that being on the bench is like being an assembly-line worker in Windsor or Detroit. The assembly line is moving toward you, and you have to attach your widget in the permitted fifty seconds and the thing moves on. So the point is, where do you draw the line in writing a judgment? You want to be precise about what you say and even perhaps say in your reasons, “I’m not going into certain matters,” and you state that exactly. But what you can’t do is go into detailed analysis of all the cases that you cite as favourable or unfavourable. There are limits. And that’s exactly where I think the challenge is. RJ: Le Dain was also extremely conscious of, and preoccupied with, the implications of his decisions, not just for the immediate context, but for the future.

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SS: Yes, as somebody who has a sense of the development of the law, and the importance of the law, should. Nobody should be on a senior court without thinking several steps down the road and reflecting on the implications of what is said or not said in the reasons for decision. I remember an interesting comment that Yves-Marie Morissette made about Chief Justice Dickson. He had been at a hearing and was watching Dickson, and he referred to him as showing “layer upon layer of experience.” R J: I can’t resist telling one a final story. I clerked at the Supreme Court at the same time as my McGill law school classmate Nicholas Kasirer. Nicholas was a clerk to Jean Beetz, and I was with Gerald Le Dain. Both judges resigned from the Court in quick succession. Le Dain resigned twenty days following Beetz. It just so happened that shortly thereafter Nicholas and I arrived at the Court and found that the statues in front of it, Justice and Truth, Iustitia and Veritas, were gone. We only found out later that they had been taken away for cleaning. But I remember coming down the front steps with Nicholas, and saying, “Iustitia and Veritas are gone, they’re going to replace them with Celeritas and Efficacitas.” SS: You know Christopher Wren’s memorial, the memorial inscription for Sir Christopher Wren: “Si monumentum requiris circumspice,” which translates roughly as, “If you seek my monument, look around you.” R J: Of course, at St Paul’s Cathedral in London. SS: Gerry Le Dain needs no other monument than his judgments, which are of high standard. Whether I agree with one or other is beside the point. They are of very high standard. And we should add to his judgments his publications. He was a great scholar, a great teacher, a great counsel, a great judge, and a wonderful human being.

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5 Le Dain and Legal Education: A Tale of Two Cities Roderick A. Macdonald

In t ro du cti on I have spent my entire adult life in the precincts of a faculty of law. I began my legal studies at Osgoode Hall Law School of York University in late August 1969, just three weeks after I turned twenty-one years of age. Forty-odd years later, as I near the end of my teaching career, I often find myself reflecting on what a life in the law can mean. The occasion to contribute to this volume about Gerald Eric Le Dain is a fortuitous opportunity to pursue that inquiry by celebrating another, more illustrious forty-year career in legal education. From 1946 through 1989 Gerald Le Dain profoundly marked Canadian law, the legal professions in Quebec and Ontario, generations of colleagues and students at McGill and Osgoode Hall, and most importantly, the lives of all those he touched – whatever their profession, rank, or social status. Gerry’s career as a legal educator was diverse: he was a skilled advocate, a dedicated defender of the public interest as counsel to the government of Quebec in constitutional cases, a gifted teacher, a compassionate mentor, a profound legal scholar, a creative university administrator, an insightful royal commissioner, and a wise judge. Yet these are only the formal markers of his impact as a legal educator. Gerry held on to a capacious understanding of what constituted legal education and the sites where it took place. His virtue as jurist and as human being was a model for many who came of age as law teachers during the second half of the twentieth century, a period of remarkable effervescence in Canadian legal education.

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Many others have already paid tribute to Gerry’s extraordinary contributions to Canadian law.1 My goal here is more narrowly cast. I should like to explore his impact on Canadian legal education (conceived as broadly as he himself imagined the endeavour). I will do so by adopting a familiar trope of civil law scholarship: the essay in two parts.2 Gerry’s career in law can be understood as comprising roughly two periods. In the first period, from 1946 to 1967, Montreal and the civil law tradition were the loci of his activities; in the second period, from 1967 to 1988, Toronto (and later Ottawa) and the common law tradition played a signal role. This geographic and juristic duality is an initial reason for my evocation of Charles Dickens’s Tale of Two Cities as organizing motif.3 I chose this subtitle for another reason as well, more reflective of Gerry’s self-understanding. Throughout his legal career he wrestled with Saint Augustine’s account of two cities: the City of God and the City of Man.4 Over the course of four decades Gerald Le Dain lived his own version of Augustine’s cities, in a career that, in its most simple expression, alternated between “town and gown” – between the practice of law (as advocate, royal commissioner, and judge) and the university (at McGill as sessional lecturer and as full-time professor, and at Osgoode as dean and as professor). For Gerry, however, the dichotomy was never absolute: as practitioner he was always a sessional lecture; as professor he was constantly involved in the affairs of the profession; as judge he continued his commitment to teaching – his clerks, his colleagues, and advocates and litigants who appeared before him. More importantly, he understood the complex interplay between the life of the mind (nurtured through the university as beacon on the hill), and the life of the body (exemplified in the practice of law and public service). Together, these two cities characterize the special contribution of Gerry Le Dain to legal education in Canada.

T ow n a n d G ow n in M o n treal ( 1946– 1967 ): T h e N o t- s o - Q u ie t Revoluti on in C a n a d ia n L e g a l Educati on Gerald Le Dain entered the McGill Faculty of Law in 1946, following service in the Canadian forces during World War II. He graduated in 1949 as recipient of the Elizabeth Torrance Gold Medal, awarded to the student standing first in the undergraduate class. During his studies, he fell under the sway of Frances Reginald Scott, who taught him

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a two-part constitutional law course in 1946 and 1947 and encouraged him to pursue the study of public law.5 His unpublished bachelor of civil law thesis, “The Judicial Review of Administrative Discretion,” formed the basis of much of his early scholarship, including his first published article, “The Twilight of Judicial Control in the Province of Quebec?,” a contribution that was also the first article published by the McGill Law Journal.6 Following his graduation from McGill’s Faculty of Law, Gerry was awarded the Macdonald Travelling Fellowship from the Faculty and spent a year in France, where he obtained a Doctorat de l’Université from the University of Lyon. At this point, he also developed an interest in mercantile law – banking, bills of exchange, security on property, mandate, factoring, and brokerage – a subject that he taught and about which he published significant articles during the 1950s. His first essay in this field was also published in the McGill Law Journal, under the title “Transfer of Property and Risk in the Sale of Fungibles.”7 This article was as much about the use of title to secure an obligation as about the law of sale. Three years later his outstanding early article, which today remains a classic, “Security on Moveable Property in the Province of Quebec,”8 capped his early reflection on mercantile law.9 After a short period in practice, Gerry was a full-time law teacher at McGill from 1953 until 1958. Although he left the Faculty in 1959 to join Senator Riel in the practice of law, he remained a sessional lecturer in commercial law until his return to full-time law teaching in 1965. His practice during these years came to focus on constitutional and public law, and after 1962 he sometimes acted as counsel to the government of Quebec in constitutional litigation.10 During this period in practice Gerry developed a deep interest in legal education and served on a number of bar committees. In the late 1950s he published three articles on legal education in Quebec.11 Shortly afterwards, Gerry synthesized his ideas in a major study, “The Theory and Practice of Legal Education.”12 The perspectives on university-based law teaching he expressed there came to inform his approach to legal education when he rejoined the Faculty in 1965 (replacing F.R. Scott as the Faculty’s senior constitutional law scholar). They were particularly evident two years later when he chaired the Faculty’s Resources Committee, which led to the establishment of McGill’s National Program of Legal Education in 1968.13 Regrettably, Gerry never experienced the fruits of his labours on the Resources Committee, having been appointed dean of Osgoode Hall Law School in 1967.

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Roderick A. Macdonald

One might characterize this first phase of Le Dain’s career as involving a mediation of the practice of law and the role of professor. Interestingly, the latter half of this period saw a change of scholarly focus from the subjects that initially interested him and that formed the backbone of his practice – mercantile and administrative law – to constitutional law. This field provided an ideal site for Gerry to meld the two dimensions of his unfolding career: as constitutional litigator and contributor to the Laurendeau-Dunton Royal Commission on Bilingualism and Biculturalism,14 and as scholar writing about the Constitution on its one hundredth anniversary.15 Throughout these years he appeared, at least superficially, to be living what he preached in the three articles about legal education published in professional periodicals during the late 1950s. I believe, however, that his second stint on the full-time faculty at McGill saw the maturation of his understanding of legal education and that the Report of the Resources Committee and his subsequent career at Osgoode Hall Law School represented the working out of perspectives he expressed in his 1961 article published in the McGill Law Journal. Indeed, themes addressed in that article recur in many of his subsequent reflections on legal education while at Osgoode.16 Le Dain’s two initial forays into scholarship about legal education were published in the late 1950s while he was still a young professor at McGill. Both were of a distinctly descriptive character. Yet their conception and framing reflected the turmoil of the times in Quebec law teaching. The first article was a report of a survey he undertook of teaching methods in civil law schools, which were, at the time, Laval, McGill, Montreal, Ottawa, and Sherbrooke – and how these faculties were responding to the addition of a fourth year of “practical training” to the undergraduate curriculum.17 The key elements of this survey were teaching and examinations, although Gerry also lamented the inadequate library resources in all faculties,18 the rudimentary physical premises that were not designed for anything other than “magisterial lecturing,”19 and the small size of the professoriate, which made seminars, optional courses, and supervised legal writing difficult to manage, and a lack of good teaching materials.20 Two aspects of Le Dain’s review stand out. First, he was keen to point out that the differences between common law and civil-law teaching methods were more a difference in emphasis than a difference in kind: to his civil-law colleagues he explained that stare decisis was not the straitjacket it was often made out to be; to his common law colleagues he

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noted that the overall objective of the expository and didactic cours magistral was “to train minds capable not only of producing this kind of synthesis themselves, but of applying it to the analysis of particular, concrete problems” – a virtue mistakenly ascribed by some as uniquely a feature of the Socratic method.21 The following year Le Dain was appointed chair of the Quebec committee of the National Committee on Legal Education and Training of the Canadian Bar Association. In this role he drafted the report for presentation to the association’s annual meeting.22 In a careful text that avoided making “firm pronouncements,” he considered three themes that were the source of continuing debate following the reform of the undergraduate curriculum mandated by the Quebec Bar Association in 1955: the necessity of practical training and its relationship to theoretical training; pre-legal education and the relationship of the social sciences to law; and the content and teaching methods in the theoretical part of the program.23 The report seemed to imagine that the fourth year could be a combination of the law faculty offering systematic instruction in the drafting of legal documents and analysis of concrete cases, complemented by work in a mentorship arrangement within a law firm office.24 It also imagined removing courses such as Roman law, legal history, legal philosophy, criminology, and introductory public law from the curriculum and making them prerequisites to admission.25 Finally, the report suggested that a combination of broad doctrinal survey courses complemented by optional seminars dealing with practical problems in specific areas might be the optimal way to balance coverage and depth.26 When one contemplates Le Dain’s career as dean at Osgoode Hall, the fact of his signing such a conservative, anti-intellectual document appears as nothing short of astounding. Two years later, by then in practice but still chair of the Quebec committee, Le Dain drafted a further report focusing on the postfaculty training of law students.27 Unsurprisingly, it retained the orientation of the 1958 report. Le Dain reported that McGill made attendance at a downtown law firm a compulsory part of the fourthyear curriculum, and he articulated the objective as distinguishing between “the practical application of the principles of law to a set of facts,” including, inter alia, the drafting of opinions, the searching of title and the organization of a company, and “practice technique,” that is how to run a law office, how to deal with partners, confreres, and clients, how to run a case, and how to organize one’s daily work.28

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The report concluded that the only defect of the current Quebec system was that there was no mandatory period of office attendance during the fourth year, a requirement particularly important for students intending to enter sole practice.29 Here again, one sees a preoccupation with “practice training” and not with legal education as education, a preoccupation no doubt explicable by the professional context in which he was writing. How different his article published in the McGill Law Journal less than a year later.30 This was Gerry’s first personal account of his views of legal education and his understanding of the role of a law teacher, written (paradoxically) after he had left the faculty to enter private practice. He begins with a rather prosaic and conventional statement that “the object of legal education and training is obviously the formation of lawyers,”31 a formulation that sounds like his earlier writing. All is revealed, however, in his elaboration of “education” and “lawyers.” His sentence continues: “Wherever they are to make their contribution, be it the university, the law office, the courts, the corporation, the government department and tribunal, or the international organization. The intellectual heart and core of this process is the development of what we call the ‘legal mind.’ By that, I understand the acquisition of a certain amount of legal learning or fundamental knowledge and the mental habits, processes and skills which constitute, with the requisite knowledge, the power of the effective lawyer.”32 Notice the order in which these sites of lawyering are placed: the university first, the law office second. Notice also the assumption about the requisite knowledge: legal education is rooted in a notion of education of the person, the mind and the imagination. For Gerry, The student of law is first a student of society, reading in the law a record of its values, aspirations, and the practical arrangement for achieving its many ends, collective and individual. But he is also a student of the law as instrument and technique, for the law is both a thing which mirrors and a thing which shapes …33 Qualities that … we should therefore be trying to help the student to develop, as far as his own ability, the teacher’s ability, and the limitation of the teaching process permit, are thoroughness, intellectual self-reliance and the critical faculty, imagination and foresight, resourcefulness, reasoning ability, judgement, the sense of relevance, the ability to perceive similarities, distinctions and

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relationships, the ability to do effective research, and skill in the use of words …34 The teacher himself must not forget that his essential task is … to challenge the student mind by all the resources at his command, and to give that mind an opportunity to respond and express itself … the most serious educational crime is to kill the imagination.35 At this stage in his career, having experienced both the classroom and the courtroom, it is hardly surprising that Le Dain should have concluded that learning is a lifelong process. “The fact that at any particular stage a man must talk and act as if he knows what he is doing, cannot conceal from him the awareness that he is still learning and growing.”36 Many of his students, at McGill and later at Osgoode, observed that in the classroom Gerry was continually re-litigating cases, agonizing about decisions, and torturing himself in doubts about the correctness of judgments.37 While a superb advocate, Gerry could not resist the lure of the university, and in 1965 he rejoined the Faculty of Law at McGill. At this point he renewed his close working relationship with Frank Scott, whose course in constitutional law he inherited, and with whom he worked on the Royal Commission on Bilingualism and Biculturalism. Frank was a commissioner, and Gerry was engaged to write a study of bilingualism in the Canadian Constitution.38 Ostensibly a review of legislation and cases, the essay revealed Le Dain’s deep commitment to thinking about law in its social, economic, and political context. Yet even in this time of great intellectual and professional success, Gerry remained uncertain of his own capacities in the university setting.39 At the time of his return to the Faculty of Law at McGill, Gerry was to make his most significant contribution to legal education at that school. In 1965 the dean of the Faculty, Maxwell Cohen, launched the idea of resurrecting Robert Warden Lee’s initiative of the 1910s and 1920s to establish a common law (LLB) program in parallel with the existing (B C L ) program.40 After a difficult year-long debate, the Faculty established a resources committee in November 1966 to determine the feasibility of proceeding with such a program, and Gerry was appointed chair.41 The Report of the Resources Committee gives insight into Le Dain’s conception of legal education and his leadership and administrative skills.

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Roderick A. Macdonald

In the eight years since Le Dain had left the Faculty, legal education at McGill and in Quebec had undergone significant changes. As a result of the baby boom, the number of students in the first-year class grew from 70 to 150 and the number of professors from eight to twenty. The curriculum was redesigned through the addition of optional courses and the creation of the Institute of Comparative Law as a home for the graduate program. Dissatisfaction among leaders of the Quebec Bar with the four-year program led to calls to reestablish a full-time Cours de formation professionnelle and to relax the obligatory course requirements for the undergraduate degree. These proposals were adopted in 1968, at the same time as the Parent Commission on Post-secondary Education filed its report recommending the creation of a system of Collèges d’enseignement général et professionnel (C E GE P s), and direct entry of CE G E P graduates into the province’s law programs.42 At this moment of turbulence not only in Quebec legal education, but in Quebec society more broadly,43 Cohen saw an opportunity to exploit the decision of the Law Society of Upper Canada (L SUC ) to relinquish its monopoly on legal education in 1957.44 Le Dain’s management of the Resources Committee, composed of a majority of members who initially were firmly opposed to the National Program idea, and his careful negotiation of complementary developments to the academic program at McGill’s Faculty of Law – the creation of a Civil Law Studies Program, the reintroduction of basic civil law courses taught in French, and the enhanced graduate vocation of the Institute of Comparative Law – overcame this opposition within both the Faculty Council and the University Senate. What is noteworthy is the manner in which Gerry’s evolving views of the vocation of legal education to embrace the liberal arts were reflected in the language of and the recommendations proposed in the report.45 In his brief to the Senate, 17 May 1967, Dean Cohen took a number of key phrases directly from Le Dain’s report, including: “The modest price to be paid for this program will more than justify itself in terms of the contribution that legal education at McGill can make to Canada as a whole, to the scientific development of the law, and in particular to the inter-penetrating of Civil and Common Law which is so much part of the public and commercial life of Quebec.” Gerry’s contribution to the establishment of the new program did not end with the submission of the Report of the Resources Committee. The affiliation of the L SUC proprietary law school – Osgoode Hall

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– with York University in 1967 and the recruitment of Le Dain as first dean later that year put Gerry inside the debate within the convocation of the L SUC as to whether to accredit the McGill program. In January 1968 Cohen presented the plan to the benchers of the LSU C and returned to defend it at the meeting of convocation on 16 February 1968, when it was approved. Between the two meetings the Law Society canvassed the five Ontario law deans for their views. Two were in favour, two were neutral, and one was firmly opposed. Over this period Le Dain quietly lobbied the two neutral deans, with the result that at the time of approval only one dean argued against accreditation of the McGill L L B .46 Echoes of the arguments about the objectives of legal education and the character of a modern law faculty that Le Dain presented to his colleagues can be found in his presentation at the symposium, “The Quest for Justice” on 8–9 November 1968,47 and in his speech to the Association of Canadian Law Teachers in June 1969.48 Both stressed the need to make legal education more inclusive, to increase the students’ sense of responsibility for pursuing social justice, and for broadening the intellectual foundations of the law school curriculum. To a consideration of how these ideas both informed his revised view of legal education and continued to develop, it is necessary to shift locus to Toronto and to Gerry’s contributions to Osgoode Hall Law School.

A d m in is t r at io n a n d Adjudi cati on in T o ro n to ( 1967– 1988 ): T h e T r a n s f o rmati on o f C a n a d ia n L e g a l Educati on In 1967 Gerald Le Dain became the first dean of Osgoode Hall Law School of York University49 and agreed to guide the institution through its affiliation with a university and its physical move from a downtown campus to the suburban campus of York University at Keele Street and Steeles Avenue.50 While the agreement in principle had already been reached before Le Dain became dean, he had the difficult role of overseeing the implementation of the affiliation agreement.51 At that time, a number of significant changes to legal education were occurring. The Law Society also reorganized its curricular requirements, Osgoode set in course the Parkdale legal clinic, it hired Canada’s first social scientist full time (Hans Mohr), and it created

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full-semester special programs in Criminal Justice (taught by John Barber and Paul Harbrecht).52 While most of these events could not be said to be the result of Le Dain’s own work, all of them were consistent with his view of legal education, and he was especially active in their defence.53 Almost immediately afterwards he became involved in two matters that reached beyond the precincts of the academy. Both were Gerry’s first forays into what was emerging as “law and society” studies. In the spring of 1969 he was given the mandate of chairing the Royal Commission Inquiry into the Non-Medical use of Drugs.54 And in June 1969 he was a key participant in a meeting at Montebello on the future of the Federal Department of Justice, a meeting that shortly thereafter gave rise to the establishment of the Law Reform Commission of Canada.55 Several features of Le Dain’s tenure at Osgoode bear notice. The first is the continuity in his view of what the objectives of legal education should be. In a speech delivered to the Annual Meeting of the Canadian Association of Law Teachers in June 1969, “The Future of Canadian Legal Education,” he began, “We are able to contemplate the future of legal education in Canada from a distinctly higher plateau than that on which our colleagues stood but a decade ago. A revolution has taken place with a mere ten years and its pace has noticeable quickened with the last few. There is a purposeful energy, a new confidence and spirit of adventure, and the emergence of resources which give grounds for optimism about the future.”56 He continued, “I think it can be fairly said that under the stimulus of the American example, to which we look increasingly for guidance and inspiration, Canadian teaching and legal scholarship have acquired much more sophistication in recent years – reflecting greater policyorientation, and interest in the contribution of other disciplines, and an awareness of the importance of empirical research.”57 Towards the end of this address, Le Dain turned to the challenges. An initial objective was to achieve a stronger voice from the academic branch. He sought greater financial support from universities. He sought a national approach to accreditation, and upgrading of standards. Most importantly, he emphasized the importance of recruiting Canadian professors and the contribution that improved graduate programs could make to the internal revitalization of the academic mission of law faculties.58

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This theme of rapid evolution in the aims and methods of legal education became the centrepiece of an address delivered in the fall of 1968 at a symposium entitled “The Quest for Justice.”59 Although he was dean at Osgoode, Le Dain was asked to comment on the role of the profession. Since none of the other participants were given a mandate to address legal education, he addressed this dimension of the quest for justice as well.60 In this essay he seized the moment to stress the importance of seeking social justice, the role of the profession in symbolizing equal opportunity, regardless of financial or social status, and the need to recognize significant changes in the demand for legal services and the way in which lawyers will have to deliver their services. Courageously, before an audience of senior members of the profession, he argued that, in each of these dimensions, law faculties have a key role to play – especially in responding in creative and progressive ways. To meet these challenges, legal educators and the legal profession together must learn to be both formalists and realists: “Conceptualization will always be an indispensable instrument in classifying and ordering the substance of law and applying it to concrete cases, but it must not be an imperious source of rules and solutions that deflect us from the discovery of functional reality. The kind of skill and sophistication in law that we have to develop is that which does not mistake the conceptual apparatus of the law for the end of law, but is able to handle it as a flexible instrument for the pursuit of rational and just ends.”61 The second dominant feature of Le Dain’s tenure at Osgoode Hall was his nuanced appreciation of the leadership role that a dean should assume. Le Dain was a firm believer in the importance of collegial governance to the proper functioning of a Law Faculty. Until assuming the deanship at Osgoode, Le Dain had never held an institutional position as academic administrator within a university. His experiences in private practice and as a professor under the autocratic rule of Deans Meredith and Scott at McGill would certainly give him experiential insight into collegial governance.62 Moreover, Le Dain would surely have noticed the decanal style of Maxwell Cohen – long on vision and initiative, short on consultation and adaptability – in the period leading up to the creation of the National Program.63 Nonetheless, through his role as chair of the Resources Committee, noticing the strong opposition of more conservative members of the Faculty to the establishment of an academic institution with a

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philosophical focus, Le Dain would surely have recognized how similar sentiments played out in the opposition of Dean Leal and other conservative members of the Osgoode Faculty to the affiliation agreement with York University.64 By the end of his mandate as dean, in 1972 Le Dain had come to articulate a remarkable vision of a dean’s role and responsibilities. In an eleven-page memorandum prepared for the Appointments Advisory Committee for the next dean of law dated 25 November 1971 Le Dain presented a sophisticated view of academic leadership.65 In his view, the context within which a dean must function comprises four elements: quality of life and work within the school; relations with other members and parts of the university; relations with the profession; and relations with the general community, including ­government, other institutions, and the public. Le Dain nonetheless devoted the bulk of the memo to the first question. His principal concern was faculty recruitment: “One thing that the Dean has to do is reinforce the sense of the value of the uniqueness of each member of the community. He must work against a notion that everyone must do everything, or conform to some general pattern or mould. He must see the strength of the institution as consisting in the richness of its diversity … The Dean plays an important role in reinforcing this sense of personal value – in encouraging men to do the thing that they can do best.”66 The memo continued with several observations about enrolment and admissions policy and relationships with students. Le Dain observed the desirability of maintaining personal contact with all students but recognized its impossibility. Still, he was acutely aware of the need to keep informed of student opinion and of the problems of student councils and newspapers reflecting minority opinion. He concluded, “Since the Dean does not have a reliable means of sampling student opinion he must rely on the validity and effectiveness of the representative process. The government of the Law School must assure an adequate representation of student opinion.”67 From my own days at Osgoode I recall that Le Dain was particularly keen to multiply representative institutions and to test ideas in informal settings with a broad spectrum of students. A recurrent theme of the memo was the dean’s responsibility to set the tone of the School as an academic community. Again, his wisdom shines through.

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It does not necessarily depend on a cheerleader approach, although that is one technique. Basically, his influence on the tone results from a number of actions and attitudes: the manner in which he treats individuals in the community; the general tone of his personal relations; the manner in which he addresses himself to issues in meetings; the things to which he attaches importance; his sense of priorities; his ability to articulate the intellectual ethos and goals of the community; the respect in which he is held, both as a professional and an individual by the community. Above all, the Dean must have an educational philosophy to which he can relate the general direction of developments in the academic programme and other aspects of the education process in the Law School. He must be a person who cares a great deal about the educational process and who has a real vocation for academic life. He should be a person who loves the University and who sets a high value upon it as an institution.68 In the concluding part of the memo, Le Dain articulates a vision that is also picked up in his later reflections on royal commissions. He observes, “The Dean must be capable of reflecting upon and forming a wise sense of the power and possibility, as well as the limitation, of his office. He must not exaggerate his effective power. Sometimes, the best thing he can do is to make way for other initiatives and resources.”69 A wise understanding of the power and possibilities, as well as the limits of an office is a central theme of his essay on the commissions of inquiry.70 Le Dain drew on his experiences as chair of the Com­ mission of Inquiry into the Non-Medical Use of Drugs71 to trace what might be called the therapeutic role of public inquiries in the life of a community. Of course, he had already been closely involved with another such commission, the Royal Commission on Bilingualism and Biculturalism, for which he was commissioned to prepare a constitutional analysis.72 Le Dain opined that the most important role of the inquiry “was to identify and place the issues in their proper relationships and perspectives.”73 He was sympathetic to governmental use of inquiries to defer action, because he believed that it was useful for the “purpose of developing public awareness and understanding of a complex problem and allowing time for the development and identification of public attitudes.”74

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Gerry was careful to observe that “law is only one of the means by which society can respond to this problem [the non-medical use of drugs] … and if we are to see it in its proper perspective, including both in its possibilities and limitations, we must see it in relation to all the factors which have an influence on the phenomenon.”75 This concern translated into the observation that a commission inevitably becomes, whether it likes it or not, part of the ongoing social process that it is meant to examine. “Its general way of looking at things is probably more important in the long run than its specific recommendations.” As a result, a commission comes to see that it is having an effect on “perceptions and attitudes, on the general way of looking at the problem, and on behaviour, and it comes to feel responsible, if not more so, for this effect than for its specific recommendation to government.”76 As in his view of the deanship, Le Dain was concerned by the complex interplay of independence, leadership, and care not to overestimate power in a commission’s pursuit of its educational mission. In assessing this educational and therapeutic role he concluded, “One of the things we discovered is that we need public opportunities for the exchange of views on vital issues. The hearings provided a public occasion for people to say things to each other that they had obviously never said before. I think that a public inquiry can respond to the need for some extension of the regular electoral process on the social level, a process in which the public can contribute to the identification and discussion of the issues.”77 Shortly after the royal commission reported and his deanship ended, Le Dain was appointed to the Federal Court of Appeal, a position he held for a decade until his appointment to the Supreme Court of Canada in 1984. Following his appointment to the bench Le Dain only rarely wrote extrajudicially. In two convocation addresses he expressed himself obliquely about the duties of a judge as a legal educator.78 Once prior to, and once following his period of judicial service, he also expressed himself about the character of the judicial role – in his tributes to Chief Justice Lyman Poore Duff in 1974 and to Justice Jean Beetz in 1994.79 In neither of these articles did Le Dain directly speak about legal education, although in the latter his conception of the pedagogical role of the judge was especially clear. In 1983, he penned a lengthy tribute to F.R. Scott, whom he always considered his mentor as a law teacher.80

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The convocation addresses were appropriate to their genre. In them Le Dain focused on the responsibility of the lawyer. In describing the role of the lawyer as performing professional functions with “competence, humaneness, understanding, wisdom, respect for personal dignity and consideration for feelings,”81 Le Dain was describing a vision for legal education as well. Interestingly, he added a theme not present in his 1961 essay but developed also in his McGill Convocation address of 1985: the lawyer as educator and architect of the social order. He observes, “There is a great variety of interesting and constructive work to be done in a great variety of places … I hope that a significant number of you will bring your commitment, understanding and skills to various areas of our institutional and community life so that you may raise the level of awareness, improve the quality of judgement and decision, and develop the processes of participation, accommodation and settlement on which, in the final analysis, the survival and health of a democratic legal order depend.”82 A like sentiment about the various roles of the judge is reflected in his tributes to Lyman Duff and Jean Beetz. Of Beetz he added another dimension: One cannot fully appreciate a judge’s contribution to the work of an appellate court unless one has known the contribution which that judge has made to the thinking in cases in which he or she is not shown as the author of an opinion. Judgment in an appellate court is a collegial process, and Jean Beetz was generous with his time and effort in contributing to that process83 … Trying to perceive the implications of a proposed decision for the future of the law and its operating effect in a particular area was one of our most important and demanding responsibilities … It was Jean Beetz’s particular sensitivity to this responsibility … that made him such a wise and helpful colleague.84 So it also is with the law teacher. Law teaching is similarly collegial, and Le Dain was one of the greatest of colleagues in each of the dimensions he came to appreciate in his friend Jean Beetz.85 Probably the most mature reflection of Le Dain’s understanding of legal education can be found in his essay on F.R. Scott. Here, Le Dain reviewed the role Scott played in the development of academic legal education from 1928, when he joined McGill, up to his deanship in

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the first half of the 1960s. Le Dain sought to show the importance of the commitment of the professor to the university, to the life of the mind, and to the inculcation of a sense of urgency and responsibility in his students. He ended with what is more justly a description of his own career, rather than Scott’s: “Frank Scott was a model of excellence for his students and his fellow teachers. He inspired them both. He stimulated the love of law and the professional aspiration of his students, and he stimulated the sense of professional identity and purpose of his fellow law teachers. By his example, he enhanced the academic branch of the profession, helped to attract others to fulltime teaching and scholarship, and strengthened the claim of the academic branch to recognition and support.”86

C o n c l u s i on Several conclusions may be drawn from this review of Le Dain’s forty-year career as legal educator. First, he saw every facet of law, every facet of the legal profession, and every engagement with the law as an educational opportunity – a pedagogical moment. Not just in the teaching of law, but also in the practice of law.87 Not just in deaning, but also in serving as royal commissioner.88 Not just as servant of the university, but as servant of citizens as judge.89 Not just as doctrinal expositor of the law, but as law reformer.90 Second, Le Dain saw legal education in the university as a liberal education. A consistent theme in his work is the conception of education advanced by Alfred North Whitehead.91 He emphasized the importance of the imagination in student learning, the significance of appealing to colleagues and students as individuals, and the notion of duty, intellectual toughness, and responsibility for nurturing occasions to empower the disadvantaged.92 Third, Le Dain saw law as opportunity for pedagogical innovation and social engagement: his support of the National Program proposal at McGill,93 of the Parkdale Legal Clinic at Osgoode,94 for the proposal of the Department of Justice to establish a law reform commission, for the role of royal commissions as instruments of governance,95 and for engaged teaching in which the “student of law is a student of  society, reading in the law a record of its values, aspirations and practical arrangements for achieving its many ends, collective and individual.”96

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Fourth, Le Dain worked tirelessly to ensure that the transition from strictly profession-oriented practitioner-taught legal education to a broad-based interdisciplinary professoriate of full-time scholars became a reality. The evolution in his own thought from his early article in the late 1950s until his essay in 1961,97 his chairmanship of the McGill Resources Committee in 1966,98 his speech to the Canadian Association of Law Teachers in 1969,99 his reply to the attorney general about the contribution of foreign trained academics,100 and his memo to the recruitment committee in 1971101 reflected his appreciation that not only was it important to recruit scholars from around the world who could bring a comparative and interdisciplinary perspective to law, but that it was also important to develop Canadian graduate legal education so as to produce the next generation of Canadian law teachers.102 Fifth, Le Dain saw the role of the teacher to be a model, an inspiration to his students. I have not yet spoken of Le Dain as classroom teacher. Others, such as Bruce Ryder, Harry Arthurs, and Stephen Scott have done so eloquently. Phrases like “larger-than-life personality,” “cared passionately about legal education,” “a locomotive of a man,” “the sheer force of his personality,” “he patrolled the aisles of his classroom,” “a huge heart, large passions, and a striking capacity for empathy” capture an extraordinary teacher of students and colleagues who equally delighted in learning from them.103 In the memorable words of Harry Arthurs, Gerald Le Dain was a teacher of many dimensions: “Gerry was, not surprisingly, a fabulous teacher as well. In his years at Osgoode, he taught constitutional law to our students. However, much more importantly, he taught his young colleagues – he taught me – many things we needed to know: how to set high standards; how to be self-critical; how to take one’s self and others seriously; how to accept the demands of duty; how to draw lines when they needed to be drawn; how to act honourably and generously; and, especially, how to do those things while holding one’s self open to all of life’s joys and sorrows.”104 I also knew Gerald Le Dain as a teacher, particularly as an informal teacher, mentor, and friend. I first met Gerry shortly after I commenced my studies at Osgoode. The encounter did not, however, concern my courses. I was serving as a residence don in an undergraduate college at York University and was asked to help organize an informal consultation for members of the Commission of Inquiry. This was my initial face-to-face encounter with Dean Le Dain. And it was also my

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last encounter with him during my time at Osgoode! I next had the pleasure of meeting him on the front steps of Chancellor Day Hall at McGill shortly after I became dean of law there, and he had just been named to the Supreme Court of Canada. There were many lessons in that brief encounter … but one stood out. In response to my query about deaning, he replied (as best I can recall), “Don’t look back; don’t worry if there are loose ends; if the initiative is any good it will stand a little disorganization until a champion emerges to sharpen it up and push it forward. Don’t wait till everything is perfectly worked out before proceeding; don’t micromanage; leave something for others to do. Dream big; if your head doesn’t hurt about an idea or a project, you’re thinking too small. Make time every day to reflect; if your heart doesn’t hurt, and your conscience doesn’t ache at least once a day, you’re living too comfortably.”105 I wish I could say that I had lived my time as dean fully responsive to Gerry’s injunctions. That I did not do so is no commentary on their salience or pertinence. They were canons by which Gerry lived all his careers as a legal educator. And they are the canons of virtue that continue to inspire.

A c k n ow l e d gments My thanks to Scott Scambler for research assistance and to Tom McMorrow for detailed review and assessment of Le Dain’s teaching philosophy. John Hobbins and Blaine Baker offered detailed critiques of an earlier draft. I am also grateful for the comments and personal reminisces of Harry Arthurs, Richard Janda, and Bruce Ryder. Professors John Durnford, Stephen Scott, and Armand de Mestral – all students and later colleagues of Le Dain – also shared with me their remembrances of Gerry’s time at McGill.

n otes   1 See, notably, the essays in Osgoode Hall Law Journal 45 (2007): 655–63: Patrick Monahan, “The Honourable Gerald Eric Le Dain,” 655; Harry Arthurs, “A Locomotive of a Man,” 657; and Bruce Ryder, “To Make a Difference,” 660.   2 Marc Lemieux, “De ce qu’il n’est pas dit quand tout se dit en deux parties, Revue de la recherche juridique 16 (1989): 3.

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  3 Charles Dickens, A Tale of Two Cities (Oxford: Oxford University Press, 1998).   4 See Augustine, The City of God (Oxford: Oxford University Press, 1963).   5 See Gerald E. Le Dain, “F.R. Scott and Legal Education,” in On F.R. Scott, ed. Sandra Djwa and Ronald St John Macdonald (Montreal and Kingston: McGill-Queen’s University Press, 1983), 106; reprinted from McGill Law Journal 27 (1981): 1. Gerry maintained that Frank Scott was the best law professor he ever encountered as a student; reciprocally, Frank maintained that Gerry was the best law student he encountered as a professor. See, for example, the intimation in F.R. Scott, “Preface,” in Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977), ix; and Arthurs, “Locomotive of a Man,” 659.  6 McGill Law Journal 1 (1952): 1. At the time this article was published, Le Dain was a sessional lecturer in administrative law at the Faculty. A second doctrinal article, “The Supervisory Jurisdiction in Quebec,” Canadian Bar Review 35 (1957): 788, is widely credited with being the first synthesis of this field in Quebec and as inspiring the reform to the relevant books of the Code of Civil Procedure in 1963 (arts 453, 751, and 834– 47). In the 1950s he also published one case comment, “Decertification Order of the Quebec Labour Relations Board – Judicial Control – Prohibition – Declaration of Nullity – Direct Action,” Canadian Bar Review 31 (1953): 821; and two book reviews – “Review of Brian Schwartz, French Administrative Law and the Common Law World; and C.J. Hamson, Executive Discretion and Judicial Control: An Aspect of the French Conseil d’État,” Canadian Bar Review 33 (1955): 742, that derived from this undergraduate thesis.  7 McGill Law Journal 1 (1953): 237.  8 McGill Law Journal 2 (1956): 77.   9 During this period he also published three book reviews in the field of mercantile law – “Review of Ian Baxter, The Law of Banking and the Canadian Bank Act,” Canadian Bar Review 34 (1956): 1083; “Review of John Delatre Falconbridge, Banking and Bills of Exchange,” McGill Law Journal 3 (1956): 113; “Review of James Holden, History of Negotiable Instruments in English Law,” Canadian Bar Review 34 (1956): 495 – as well as another substantive doctrinal article, “The Real Estate Broker,” McGill Law Journal 4 (1958): 219. 10 He appeared on behalf of the attorney general of Quebec in the following Supreme Court of Canada cases: AG Ontario v Anti-Dumping Tribunal, [1963] S C R 570; Prince and Myron v R, [1964] SC R 81; Batary v AG

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Saskatchewan, [1965] S CR 465; AG BC v McKenzie, [1965] SC R 490; Cour de Magistrat de Québec, Procureur Général du Québec v Barreau de la Province de Québec, [1965] S CR 772; Mann v R, [1966] SC R 238; Munro v National Capital Commission, [1996] SC R 663; Bell Telephone Company of Canada v Minimum Wage Commission, [1966] SC R 767; Protestant School Board of Greater Montreal v Jenkins, [1967] SC R 739; Coughlin v Ontario Highway Transport Board, [1968] SC R 569. 11 Gerald E. Le Dain, “Teaching Methods in the Civil-Law Schools,” Revue du Barreau 17 (1957): 499; Le Dain, “Legal Education and Training: A Report of the Quebec Committee,” Canadian Bar Journal 1 (1958): 33; Le Dain, “Practical Training of Law Students in the Province of Quebec,” Canadian Bar Journal 3 (1960): 242. 12 McGill Law Journal 7 (1961): 192. 13 Report of the Resources Committee (McGill Archives, 1967). For discussion, see Roderick A. Macdonald, “The National Law Programme at McGill: Origins, Establishment, Prospects,” Dalhousie Law Journal 13 (1990): 296–313. 14 Gerald E. Le Dain, Essay on the Canadian Constitution: Essay Prepared for the Royal Commission on Bilingualism and Biculturalism (Ottawa: Royal Commission on Bilingualism and Biculturalism, 1966). 15 Gerald E. Le Dain, “Concerning the Proposed Constitutional and Civil Law Specialization at the Supreme Court Level,” Revue juridique Thémis 2 (1967): 107; Le Dain, “Reflection on the Canadian Constitution after the First Century,” Canadian Bar Review 45 (1967): 402. 16 See, notably, Gerald E. Le Dain, “The Future of Canadian Legal Education” (address to the Annual Meeting of Association of Canadian Law Teachers, June 1969); letter to Alan Lawrence, minister of justice, on the presence of American law teachers at Osgoode Hall, 27 July 1971; “Notes for Meeting with the Appointments Advisory Committee,” 25 November 1971; “Interview” with the Obiter Dicta student newspaper on the occasion of his retirement, March 1972; and “1976 Convocation of Osgoode Hall Law School of York University,” Law Society of Upper Canada Gazette 10 (1976): 221. 17 Le Dain, “Teaching Methods in the Civil-Law Schools.” For an early discussion of the desirability of a fourth year within the law faculties, see William J.C. Meredith, “A Four Year Course of Theoretical and Practical Instruction,” Canadian Bar Review 30 (1953): 878. 18 Le Dain, “Teaching Methods in the Civil-Law Schools,” 508. 19 Ibid., 509. 20 Ibid., 511–12, 513.

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21 Ibid., 502, 505, 510. 22 Le Dain, “Legal Education and Training.” 23 For a careful discussion of these changes and their impact on Quebec legal education viewed thirty years later, see J.E.C. Brierley, “Quebec Legal Education: Cultural Paradoxes and Traditional Ambiguities,” Dalhousie Law Journal 10 (1986): 5. 24 Le Dain, “Legal Education and Training,” 34, 35. 25 Ibid., 36. 26 Ibid., 37, 39. 27 Le Dain, “Practical Training of Law Students in the Province of Quebec.” 28 Ibid., 246. 29 Ibid., 247. 30 Le Dain, “Theory and Practice of Legal Education.” 31 Ibid., 192. 32 Ibid. 33 Ibid., 193. 34 Ibid., 194. 35 Ibid., 197. 36 Ibid., 195. 37 See Ryder, “To Make a Difference,” at 660; Arthurs, “Locomotive of a Man,” at 658; conversation with Professor Armand deMestral, 16 June 2010; Gerald E. Le Dain, “Jean Beetz as Judge and Colleague,” Revue juridique Thémis 28 (1994): 721, at 725–7, discussing his anxieties as a Supreme Court of Canada judge about reconciling Commission du Salaire minimum v Bell Telephone Company of Canada, [1966] SC R 767 (which he argued unsuccessfully for the Quebec government); and Bell Canada v Quebec (Commission de la Santé et de la sécurité au travail), [1988] 1 SC R 749 (in which he joined with Justice Beetz, upholding the 1966 decision). 38 Le Dain, Essay on the Canadian Constitution. 39 Like so many outstanding jurists, Gerry came from comparatively humble circumstances and was often teased by Westmount blue bloods for being a “scholarship boy,” the implication being that he somehow did not deserve a place among those destined to be future members of the elite. Le Dain occasionally mentioned how much this disturbed him at the time and how it shaped his views about the necessary role of law in helping to redress imbalances in social power. Conversation with Professor John Durnford, 12 April 2010. Even after he returned to the university as an established teacher and advocate, Gerry retained this sense of insecurity, both about his capacity as teacher and scholar, and about his place in the Faculty of Law. Conversation with Professor Stephen Scott, 16 June 2010.

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40 For a detailed discussion of Lee’s curricular innovations in the period from 1915 to 1921 see John Hobbins, “A Couple of Generations ahead of Popular Demand: The First National Law Programme at McGill University 1918–1924,” Dalhousie Law Journal 31 (2008): 181. 41 Other members of the Resources Committee were Professors Paul-André Crépeau (chair of the Civil Law Studies Program), John Durnford, J.J. Gow (director of the Institute of Comparative Law), Edward McWhinney (director of the Institute of Air and Space Law), Marianne Scott (law librarian), and J.E.C. Brierley (chair of the Faculty Library Committee). The committee reported to Faculty Council in April 1967, recommending the establishment of a “Canadian Programme.” The program as outlined in the Report was adopted at the meeting where it was first tabled and was immediately forwarded to the University Senate for consideration on 17 May 1967. Following a number of revisions (including a change of name to the “National Programme”), it was approved by the Senate that fall. See Macdonald, “National Law Programme at McGill”, at 296–313. 42 See Roderick A. Macdonald, “Dreaming the Impossible Dream: Maxwell Cohen and McGill’s National Law Program,” in Law, Policy and International Justice: Essays in Honour of Maxwell Cohen, ed. William Kaplan and Donald M. McRae (Montreal and Kingston: McGill-Queen’s University Press, 1993) 409 at 417. 43 Edward McWhinney, “Anglophone Quebec and the Quiet Revolution,” in Kaplan and McRae, Law, Policy, and International Justice, 431 at 436–8. 44 C. Ian Kyer and Jerome E. Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers and Legal Education in Ontario 1923–1957 (Toronto: University of Toronto Press, 1987). 45 Throughout this period, Frank Scott remained a bitter opponent of the proposal, although it is unclear whether this is because he feared that it would become a vehicle by which the Montreal anglophone community would be further weakened through the flight of students to common law provinces, or because he thought it might detract from the development of a social justice vocation for the faculty, or because of his deep personal animosity towards Cohen, whom he accused of “throwing him out of his office.” See the poem, “On saying goodbye to my room in Chancellor Day Hall,” in The Collected Poems of F.R. Scott (Toronto: McClelland and Stewart, 1981), at 218. Scott’s opposition remained a painful memory for Le Dain, even following his appointment to the Supreme Court of Canada twenty years later. Conversation with the author, June 1985. 46 This would be the first, but not the last, occasion when Le Dain was required to spend considerable intellectual capital in defending legal

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education before the Benchers of the Law Society of Upper Canada. See Gerald E. Le Dain, “Remarks following the Chief Justice,” Osgoode Hall Law Journal 35 (1997): 439, at 440. 47 Gerald E. Le Dain, “The Quest for Justice: The Role of the Profession,” University of New Brunswick Law Journal 19 (1969): 18. 48 Gerald E. Le Dain, “The Future of Canadian Legal Education” (address to the Annual Meeting of the Association of Canadian Law Teachers, June 1969). 49 The circumstances of Le Dain’s appointment have never been fully explored in published literature. The previous dean of the Law School, Allan Leal, announced his resignation in early 1966, and he was replaced on an acting basis by Alan Mewett. That fall, a joint Law Society–York University decanal search committee was struck, under the chairmanship of Bora Laskin, and Le Dain was appointed in 1967 to the post. 50 See Harry W. Arthurs, “The Affiliation of Osgoode Hall Law School with York University,” University of Toronto Law Journal 17 (1967): 194. 51 For remembrances, see Monahan, “Honourable Gerald Eric Le Dain”; Arthurs, “Locomotive of a Man,” at 657–8. 52 In 1968, the Faculty Council at Osgoode adopted a Report of the Academic Policy and Planning Committee (Stanley Beck, chair), which traced the new program for the Faculty and was adopted by the Faculty Council. That same year the Law Society of Upper Canada changed its requirements for accreditation, which enabled Osgoode to proceed with these initiatives. 53 On Parkdale and Le Dain’s role in its establishment, see R. Roy McMurtry, “Celebrating a Quarter Century of Community Legal Clinics in Ontario,” Osgoode Hall Law Journal 35 (1977): 425. See also Le Dain, “Remarks following the Chief Justice,” at 440; Le Dain, “Letter to Attorney-General Allen Lawrence re US Law Professors”; and Harry W. Arthurs, “The Tree of Knowledge / The Axe of Power: Le Dain and the Transformation of Canadian Legal Education,” in this volume, at note 16. 54 Canada, Commission of Inquiry into the Non-Medical Use of Drugs, Final Report of the Commission of Inquiry into the Non-Medical Use of Drugs. 55 See Antonio Lamer, “The Law Reform Commission of Canada, Twenty Years” (1991) (unpublished speech delivered to an unidentified audience, n.d.). Library of the Supreme Court, LAM19910000e.pdf. 56 Typescript document in National Archives, 10. 57 Ibid., 10–11. 58 Ibid., 11.

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59 Edward McWhinney, “The Quest for Justice and the Role of Government: The Folk-Lore and the Reality of Constitutional Rights,” University of New Brunswick Law Journal 19 (1969): 1–60. 60 Le Dain, “The Quest for Justice,” University of New Brunswick Law Journal 19 (1969): 18. 61 Ibid., 28. 62 On this assessment of the deanships of W.J.C. Meredith and F.R. Scott, see Macdonald, “National Law Programme,” and sources cited there. 63 See Macdonald, “Dreaming the Impossible Dream,” and sources cited there. 64 See Arthurs, “Affiliation of Osgoode Hall Law School with York University.” 65 Gerald E. Le Dain, “Notes for Meeting with the Appointments Advisory Committee.” Long before this memorandum was drafted, Le Dain’s ­talents as a university administrator were recognized by others. In March 1968 he received an invitation to become a candidate for the deanship of the Law Faculty at the University of Alberta. In March 1969 he was solicited to become principal of Sir George Williams (Concordia) University in Montreal, an offer he declined with characteristic humility (see letter to Clarke, 14 March 1969). It is also interesting that in 1972 MacLean’s magazine named him one of the new group of leading Toronto academics. 66 Le Dain, “Notes for Meeting with the Appointments Advisory Committee,” 2. 67 Ibid., 4. 68 Ibid., 4–5. 69 Ibid., 10. 70 Gerald E. Le Dain, “The Role of the Public Inquiry in Our Constitution,” in Law and Social Change, ed. Jacob S. Ziegel (Toronto: Osgoode Hall Law School, 1973), at 79. 71 Canada, Commission of Inquiry into the Non-Medical Use of Drugs, Final Report. 72 Le Dain, Essay on the Canadian Constitution. 73 Ibid., 83. 74 Ibid., 81. 75 Ibid, 83. 76 Ibid., 85. 77 Ibid., 84. 78 “1976 Convocation of Osgoode Hall Law School of York University”; Convocation Address by Mr Justice Gerald Eric Le Dain to McGill

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University’s Faculties of Management and Law (Montreal: McGill University, 1985). 79 Gerald E. Le Dain, “Sir Lyman Duff and the Constitution,” Osgoode Hall Law Journal 12 (1974): 261; Le Dain, “Jean Beetz as Judge and Colleague.” 80 Le Dain, “F.R. Scott and Legal Education.” 81 Le Dain, “1976 Convocation,” 223. 82 Ibid., 225. 83 Le Dain, “Jean Beetz as Judge and Colleague,” 721–2. 84 Ibid., 729. 85 When I arrived at McGill in 1979 and remarked on the elegance of Le Dain’s essays on the “supervisory jurisdiction” and “security on moveable property,” a senior colleague related the following story. In the late 1950s a new recruit to the Faculty had written a piece for publication in the Canadian Bar Review. The comment was rejected with the observation that it was not particularly well written. When informed of the ­outcome, Le Dain offered to help the young colleague (as he had many others, including my informant) recast the essay, making suggestions about organization, syntax, and style. Unfortunately, even this reworked essay failed to gain publication in the Canadian Bar Review, although it subsequently appeared in its reworked form in the McGill Law Journal. 86 Le Dain, “F.R. Scott and Legal Education,” at 115. 87 Le Dain, “Teaching Methods in the Civil-Law Schools”; Le Dain, “Legal Education and Training”; Le Dain, “Practical Training of Law Students”; Le Dain, “Theory and Practice of Legal Education.” 88 Le Dain, “Notes for Meeting with the Appointments Advisory Committee”; Le Dain, “The Role of the Public Inquiry in Our Constitution”; Canada, Commission of Inquiry into the Non-Medical Use of Drugs, Final Report. 89 Le Dain, “1976 Convocation of Osgoode Hall Law School of York University”; Convocation Address by Mr Justice Gerald Eric Le Dain to McGill University’s Faculties of Management and Law; Le Dain, “Sir Lyman Duff and the Constitution”; Le Dain, “Jean Beetz as Judge and Colleague.” 90 Gerald E. Le Dain, “Twilight of Judicial Control in the Province of Quebec,” McGill Law Journal 1 (1952): 1; Le Dain, “Supervisory Jurisdiction in Quebec”; Le Dain, “Transfer of Property and Risk in the Sale of Fungibles”; Le Dain, “Security on Moveable Property in the Province of Quebec”; Le Dain, “The Real Estate Broker in Quebec”; Le Dain, “Concerning the Proposed Constitutional and Civil Law

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  91   92

  93   94

  95   96

  97

  98   99 100 101 102

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Specialization at the Supreme Court Level”; Le Dain, “Reflection on the Canadian Constitution after the First Century”; Le Dain, “F.R. Scott and Legal Education”; Le Dain, Essay on the Canadian Constitution. Le Dain, “Theory and Practice of Legal Education”; Le Dain, “F.R. Scott and Legal Education.” Le Dain, “Theory and Practice of Legal Education”; Le Dain, “Notes for Meeting with the Appointments Advisory Committee”; Le Dain, “1976 Convocation of Osgoode Hall Law School of York University”; Le Dain, letter to Alan Lawrence. Le Dain, Report of the Resources Committee. McMurtry, “Celebrating a Quarter Century of Community Legal Education Clinics in Ontario”; Le Dain, “Remarks following the Chief Justice.” Le Dain, “Role of the Public Inquiry in Our Constitution,” 79. Le Dain, “Theory and Practice of Legal Education,” at 193. See also his interview with the Obiter Dicta on the occasion of his retirement, March 1972 where he observed that the primary role of a dean was to “create the conditions supportive of people’s [professors and students] … efforts.” Le Dain, “Teaching Methods in the Civil-Law Schools”; Le Dain, “Legal Education and Training”; Le Dain, “Practical Training of Law Students”; Le Dain, “Theory and Practice of Legal Education.” Le Dain, Report of the Resources Committee. Le Dain, “Future of Canadian Legal Education.” Le Dain, letter to Alan Lawrence. Le Dain, “Notes for Meeting with the Appointments Advisory Committee.” During Le Dain’s deanship, Osgoode hired several professors from Australia, England, South Africa, the United States, and New Zealand, and the first non-lawyer as a full-time legal academic. As far as I can determine, no professors (Canadian or otherwise) who held graduate degrees from Osgoode or any other Canadian law faculty joined the professoriate during that period. The quotations are all drawn from the tributes published in the Osgoode Hall Law Journal, by Monahan, “The Honourable Gerald Eric Le Dain,” at 655; Arthurs, “Locomotive of a Man,” at 657; and Ryder, “To Make a Difference,” at 660. Arthurs, “Locomotive of a Man,” at 658. These words reflect the deep religiosity that characterized Gerry’s understanding of himself. This religiosity was rarely made explicit, but it seemed always to inform his understanding of the obligation to do one’s duty

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whatever the circumstance, his quiet acceptance of life’s triumphs and tragedies, and his abiding faith in the human spirit. The tributes by Arthurs and Ryder eloquently capture this element of his being, at 658–9 and 662–3, respectively.

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6 The Tree of Knowledge, the Axe of Power: Le Dain and the Transformation of Canadian Legal Education H.W. Arthurs Oh save, oh save, in this eventful hour The tree of knowledge from the axe of Power1

A Memoir Gerald Le Dain became dean of Osgoode Hall Law School on 1 July 1967, an “eventful hour” in the evolution of Canadian legal education. Osgoode, Canada’s largest common law faculty, had been established by the Law Society of Upper Canada in 1889. In 1949, following years of conflict over the form and content of legal education, its entire (but minuscule) full-time faculty complement resigned. Three members – Dean Cecil Wright and Professors Bora Laskin and John Willis – moved to the University of Toronto, reconstituted its undergraduate law program as a three-year post-BA course, challenged the Law Society’s monopoly of legal education in Ontario, and by doing so provoked “the fiercest debate” in the history of Canadian legal education.2 That debate was concluded (or so it seemed) in 1957 when the Law Society entered into an agreement with representatives of Toronto and other interested Ontario universities by which graduates of their “approved” law faculties would be admitted (along with Osgoode graduates) to the society’s articling program and Bar Admission Course and, ultimately, to practise.3

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The Law Society’s motives for entering into the 1957 agreement were fairly clear: it could no longer accommodate the increasing numbers of students seeking admission to its law school.4 Somewhat less clear was the way in which the agreement was formulated. The Law Society had (and still has)5 no statutory power to accredit or regulate law faculties; universities were free to offer law degrees without its permission, and indeed had done so intermittently from the mid-nineteenth century onwards.6 However, the society’s control over admission to practice enabled it to exclude graduates of any law school save its own – a power it notoriously used during the 1950s to force University of Toronto law graduates to graduate a second time from Osgoode.7 In effect, the 1957 agreement squared this circle. It acknowledged both the right of university law faculties to control their own curricula and the right of the Law Society to control admission to practise. Under the agreement, law faculties would be “approved” if they admitted students after at least two years of undergraduate education; required them to complete a “law school course [of] … not less than three years”; and offered a curriculum including “certain basic subjects which would be compulsory” and “additional subjects … at the discretion of each law school.”8 However, no doubt wishing to put the “fiercest debate” behind it, the Law Society agreed that the “basic elements of these courses” were to “be settled by agreement of the law faculties of the universities concerned and of the Osgoode Hall Law School.”9 By doing so, the society explicitly acknowledged the academy’s right to determine the content of the law curriculum; and it accepted that its own residual role in curricular matters would be as an academic governing body – responsible only for Osgoode, its own law school – and not as the regulator responsible for admission to professional practice.10 The law faculties ultimately agreed amongst themselves that students would be required to take eleven “core” subjects and identified some fifteen additional subjects that law faculties would offer on an optional basis.11 No attempt was made to define the actual content of courses in either category; nor were graduates with approved degrees subjected to further testing on their substantive legal knowledge prior to their admission to practise; nor were procedures established for monitoring compliance or punishing non-compliance with the terms of approval. Thus, the competing claims of the profession and the academy were resolved by agreement between them, rather

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than by the invocation of statutory powers. And because many law graduates wished ultimately to practise in Ontario, its effects extended to other provinces as well.12 However, the 1957 agreement did not resolve the underlying controversies over the character and content of legal education that had provoked the resignation of the Osgoode faculty a decade earlier. This was not initially a matter of concern at Osgoode, both because the law school continued to operate under the direct control and close scrutiny of the Law Society’s Legal Education Committee, and because the law school’s leadership and senior faculty favoured a relatively conservative approach to legal education.13 But “the fiercest debate” was to be reignited at Osgoode during the 1960s. In its second iteration, that debate was not simply – and certainly not primarily – about whether the profession would control admission to practise. It was about whether law faculties ought to provide a liberal education in law or occupational training for legal practice; about competing theories of pedagogy and how to implement them; about the critical challenge posed by legal scholarship to conventional views of law and legal institutions; and ultimately about whether replication of existing models of legal professionalism was in the best interests of the bar and the public. These issues were being hotly debated in law faculties across North America – not surprisingly, given the upheaval in most political, social, educational, and legal institutions during the sixties. At Osgoode, while the debate was initially muted, by 1965 it had effectively split the faculty into two factions with younger, mostly American-trained and academically inclined members challenging the intellectual and pedagogic approaches of their more senior, often British- or colonially trained and practice-oriented colleagues. Somewhat surprisingly, the tragedy of 1949 did not repeat itself as farce. In March 1965, the Law Society – increasingly preoccupied with administering its new Bar Admission Course and no doubt anxious to avoid rehearsing “the fiercest debate” – unexpectedly announced its intention to transfer its law school to York University, a recently established institution with two campuses in suburban Toronto. This decision, however, not only made the debate fiercer; it placed the older, conservative wing of the faculty in conflict with its presumptive ally, the governing body, and ironically cast the younger, progressive wing of the faculty as the champion of the Law Society’s initiative.14 The outcome was inevitable. The Law Society and York

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formally agreed that the law school was to affiliate with the university as of 1 July 1968; the dean resigned shortly thereafter, along with several senior faculty members opposed to the move; and the latter were quickly replaced by an expanding cohort of newly hired faculty members willing to support it. This shift in the internal balance of faculty personnel, power and opinion made it almost certain that Osgoode Hall Law School would not only move to a new location under new auspices, but that it would also adopt a new approach to legal education. It was at this “eventful hour” that Le Dain became dean.15 His situation was somewhat awkward. He was accountable both to the Law Society and to York for effecting a smooth transition in the year remaining before the affiliation formally took effect and thereafter to the university alone for ensuring the quality and reputation of its new law school. But he had also to respond to the expectations of the Osgoode faculty. It had been working on the transition for some two years prior to Le Dain’s arrival; its membership and mindset had been transformed over that time; and its commitment to progressive change had deepened, broadened, and gained momentum. Le Dain, however, did not arrive with an established reputation as an innovative legal educator, though no doubt his inclinations lay in that direction;16 he had therefore to win the trust of the faculty. Nonetheless, in many ways Le Dain was well suited for the deanship. He had practised law briefly before joining the McGill law faculty in 1953, returned to practice in 1959, and resumed his teaching career at McGill only in 1966, a year before coming to Osgoode. This unusual combination of academic and practice experience made him a particularly attractive decanal candidate to the Law Society and the university; and his compelling personality immediately won over Osgoode’s faculty and students.17 Still, the question remained: where would he lead the new law school? As things turned out, he led Osgoode pretty much where it wanted to go. By 1968, its academic policy committee had produced a comprehensive report recommending the restructuring of the upper-year curriculum and more modest changes in the first year.18 Implementation of this report required a significant reduction in the 1957 agreed list of compulsory courses, which Le Dain persuaded his fellow Ontario deans and the Law Society to accept the following year, 1969.19 Le Dain was a persuasive, passionate, and intelligent advocate; he was someone the profession was inclined to trust because of his

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Gerald Le Dain’s graduation photo, courtesy of the Le Dain family

experience in practice; and having so recently appointed Le Dain as dean, the Law Society could hardly do otherwise. Rather than advocating specific curriculum changes on the merits, or contesting the Law Society’s right to veto them, he was therefore able to convince the society to develop a relationship of trust not only with himself, but with all of Ontario’s law faculties. Very much in the spirit of the 1957 agreement, Le Dain argued, law faculties should be free to use their best judgment about how to deliver legal education to their students. The success of this strategy is evident in both the form and substance of the Law Society’s 1969 “regulations.” In fact, in formal terms, these were not regulations at all.20 They were simply the Law Society’s endorsement of an agreement under which “the University

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Faculties of Law undertake to offer instruction” in specified “areas of instruction”; they contained no prescriptive language other than that of the “undertaking” itself; and they explicitly acknowledged that “the academic planning authority of each University Faculty of Law” enjoyed full discretion in connection with the title, content, sequencing, and length of courses. Thus, despite an attempt by Law Society officials at the time to build a record that supported its claim to unilateral control of all aspects of legal education,21 the 1969 “regulations” (like the 1957 accord)22 testify to the emergence of a symbiotic or cooperative relationship between university law faculties and the profession’s governing body: each possesses plenary powers within its sphere of responsibility, but each adjusts its conduct to accommodate the other’s. This formulation doubtless reflected the desire of both parties to avoid a third iteration of the “fiercest debate” of the 1950s rather than a conscious decision to constitutionalize their relationship. However, whatever their motivation, the 1969 understanding effectively confirmed the existence of a regime under which law faculties created their own curricula, the Law Society determined criteria for admission to practise, and the parties engaged in respectful consultation. Le Dain’s strategy produced substantive results as well. The long list of required subjects agreed in 1957 between the universities and the Law Society was reduced essentially to the traditional (and current) first-year curriculum; students were afforded the opportunity to study a number of subjects that had previously been compulsory; and the way was open for Osgoode to move forward with the curriculum reforms that it had launched the previous year.23 However, subsequent developments, at Osgoode and elsewhere, exacerbated the tensions between the academy and the profession over the purpose, values, and modalities of legal education that had been building through the 1960s. One such development was the establishment in 1971 of Osgoode’s Parkdale Community Legal Services project, whose objectives were to expose students to clinical pedagogy, to develop poverty law as a field of legal research and practice, and to initiate a new approach to the delivery of legal services for the poor. The Parkdale project was strongly resisted by some elements within the Law Society.24 However, this resistance was overcome partly because of the latitude that Le Dain and his decanal colleagues had secured for law faculties in 1969, partly because of the assurances he provided concerning staff

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supervision of student activities, and partly because of growing acceptance of the clinical model of delivering legal services within the Law Society and the legal aid plan that it then administered.25 Other changes in law school pedagogy, academic culture, governance, and intellectual perspectives provoked equally intense – though less overt – reactions in professional circles;26 but they were defused by Le Dain in similar fashion. Thus, from the perspective of Osgoode’s faculty and like-minded legal academics across the country, Le Dain had indeed done much to “save the tree of knowledge from the axe of power.”27 However, Le Dain’s further efforts on behalf of progressive legal education were overtaken to some extent by his preoccupations as chair of the Royal Commission on the Non-Medical Use of Drugs – an assignment he accepted in 1969 and completed only in 1972, after retiring as dean.28 Moreover, his own conception of how to move legal education forward did not always coincide with that of his colleagues. In 1969, for example, he initially resisted the precedentsetting appointment of a social scientist to the Osgoode faculty (but later relented). In 1971, he expressed reservations about the introduction of clinical education (but again relented). In 1974 – by now no longer dean – he argued against (but ultimately acquiesced in) proposed changes to the first-year curriculum intended to reduce the hours devoted to so-called foundational courses.29 I mention Le Dain’s other preoccupations and his reservations about the direction and pace of changes in legal education because in a way it makes his achievement all the more impressive. His intense involvement in the royal commission meant that he had not always been centrally engaged in debates over policies he was then asked to advocate. His fairly cautious initial reaction to progressive change may well have been the result of his absence from legal academe throughout most of the 1960s, a decade when change was very much in the air. However, as his decanal record suggests and his path-breaking commission recommendations confirm, he was remarkably open to changing his views, even on highly contentious issues. Whatever his personal predilections, and perhaps because of them, Le Dain became the indispensable man of Canadian legal education. He arrived at a moment of crisis in Canada’s largest (and once most conservative) common law school; he inherited, then augmented and inspired, a faculty that included many of Canada’s leading young scholars; he allowed those scholars to transform the law school’s academic

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program, culture, and governance; he skilfully made the case for the “new” Osgoode and ensured that its ambitions would not be thwarted by a hostile profession or a nervous university; and by doing all those things, he created precedents that other law faculties could follow if they chose to. Le Dain’s very presence as an experienced practitioner who personified and advocated the highest values of legal professionalism, and his strategy of asking that the law school be trusted to act sensibly under his leadership, often carried the day when the merits of the arguments he advanced might not have. Controversial positions espoused by law teachers as academic critics or public intellectuals outraged some elements of the profession. The devaluing of lawyers’ intellectual capital by new approaches to legal knowledge stimulated resentments, especially amongst older lawyers. Individual members of the governing body continued to express concern at the proliferation and interdisciplinary character of optional courses, and at the omission from the list of required courses of some that they perceived as having professional salience. And new patterns of law school enrolment – more highly qualified students, changing gender ratios, greater ethnic diversity, larger graduating classes — led to intergenerational tensions around professional culture, discrimination, and competition. However, thanks to Le Dain, most of these potentially incendiary controversies were resolved without overt conflict. In effect, the Law Society adopted a policy of pretending to regulate, and the law faculties of pretending to comply.30 Law faculties thus became masters of their own fate while the Law Society allowed its own regulatory powers (whatever they might have been) to atrophy. But while this arrangement permitted much greater experimentation in legal education, and in the end ensured that the profession’s new recruits would be better prepared for legal and other careers than ever before, it did have one serious disadvantage: the boundary line between academic autonomy and the profession’s regulatory jurisdiction remained undefined and the machinery for resolving boundary disputes underdeveloped.

A M a n if esto 3 1 By an odd and unhappy coincidence in 2007, shortly before Le Dain’s death, the Federation of Law Societies of Canada (F L S C) appointed

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a Task Force on the Accreditation of Common Law Degrees. Its ostensible purpose was to address several emerging issues of concern to the profession’s governing bodies: the recognition of foreign law degrees as the basis for admission to practise in Canada;32 the pending establishment of several new law faculties (the first in almost thirty years);33 arrangements to facilitate the national mobility of lawyers;34 and the possible characterization of current bar admissions practices as anti-competitive.35 However, the Final Report of the Task Force hardly mentions these issues. Instead, it proposes a regulatory regime that will govern law school admissions policies, curricula, pedagogy, staffing models, resource allocation, and governance processes. This proposal was approved in 2010 by the FLSC, adopted by its member law societies, and is now incorporated in a so-called National Requirement,36 a set of standards to which all common law schools must conform. The risk of a drastic revision of the relationship that Le Dain had helped to forge between law societies and the legal academy was evident almost from the inception of the project. During the consultation process, as the Task Force notes, a number of parties “raise[d] directly or indirectly, the question of whether the Task Force intends some fundamental change to Canadian law schools … That is neither our intention nor what we consider to be our mandate. The Task Force fully appreciates the richness of legal education offered in Canadian law schools and the importance to the law schools of preserving their ability to deliver a rich and diverse legal education to students.”37 But that disclaimer is misleading in two senses. First, while perhaps the Task Force did not “intend” to bring about any such “fundamental change,” that is the clearly foreseeable consequence of its recommendations. And second, the Task Force devised a mechanism – since adopted by the F L S C – whereby the profession’s governing bodies can intervene in legal education whenever they cease to “fully appreciate [its] richness.” In other words, the Final Report amounted to nothing less than a manifesto by the profession’s governing bodies of their intention to reassert the direct control over legal education that was explicitly abandoned in 1957 in Ontario, and gradually over the years in other provinces. Central to the new scheme is an apparently innocuous arrangement whereby graduates of “approved” law faculties will qualify for admission to practise in any Canadian common law jurisdiction. Faculties

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will be “approved” if they limit admission to students with at least two years of post-secondary education (“subject to special circumstances”),38 provide instruction “primarily … in-person,” and offer a teaching program that consists of “three academic years or its equivalent in course credits.”39 They must also possess certain minimal “learning resources,” including “appropriate numbers of properly qualified academic staff,” “adequate physical resources,” “adequate information and communications technology,” and “a law library … sufficient in quality and quantity” to permit the law school to “attain its teaching, learning and research objectives.”40 These academic and resource requirements pose no threat to existing Canadian law faculties. However, they represent potential pressure points for future professional intervention. Three examples: mature students may or may not be admitted to law studies, depending on how the profession defines “special circumstances”; in the profession’s discretion, “course credits” given for study abroad, clinical experiences, or non-law courses may or may not be accepted; and staff may or may not be deemed “properly qualified,” depending on what credentials the profession finds appropriate. Start-up law faculties may also find the new regime problematic, as they seek to persuade the committee that administers the National Requirement – in the face of opposition from existing law faculties and powerful professional constituencies seeking to curtail competition – that they have “appropriate,” “adequate,” or “sufficient” academic resources. However, by far the most radical aspects of the National Requirement relate to the ability of law faculties to control their own ­curricula, pedagogy, resource allocation, and governance. Their “approved” status depends on their willingness to ensure that students acquire: •

•

•

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three “skills competencies” (in problem solving, legal research, and oral and written legal communication);41 “awareness and understanding” of legal ethics and professionalism (in a course dedicated to that subject);42 and “a general understanding of the core legal concepts applicable to the practice of law in Canada” (principles of common law and equity; statutory construction and analysis; the administration of justice); “the core principles of public law in Canada” (constitutional law, including the Charter and the rights of Aboriginal peoples; criminal law; administrative law); and “foundational

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legal principles that apply to private relationships” (contracts, torts, property, and “legal and fiduciary concepts in commercial relationships”).43 These requirements are somewhat more detailed than those that emerged from the 1957 settlement in Ontario; far more extensive than those negotiated by Le Dain in 1969 and actually applied over the next forty years in most provinces; infinitely more intrusive than would be justified, given the total absence of evidence concerning deficiencies in the present system; and at odds with the current practice in virtually every Canadian law school.44 Law schools do not exist merely to enable the profession to reproduce itself. They create and systematize knowledge about law, educate both future legal practitioners and students destined for other careers, train future generations of legal scholars, provide service and disseminate knowledge to general, legal, and policy communities, and contribute to law reform and the administration of justice by providing a critique of the law, the profession, and the legal system. But even if the education of practitioners were their only function, the new requirements would not be justified – nor did the report attempt to justify them. In recommending that law students must acquire three “skills competencies” and be required to demonstrate “a general understanding of the core legal concepts applicable to the practice of law in Canada,”45 the Task Force crucially neglected to explain why some competencies and concepts were identified as “core” and others not,46 or indeed on what basis it concluded that all (most? some?) lawyers share a common core of knowledge. In fact, the scant available evidence – a few Canadian academic studies, a somewhat larger American literature47 – suggests that, to the contrary, lawyers serve very different clienteles, for whom they perform very different kinds of professional tasks, which almost certainly require very different legal and non-legal competencies and knowledge.48 Specialists in, say, intellectual property or taxation will obviously require deep knowledge of the law in these fields but often did not study these subjects at law school and are seldom involved with supposedly “core” fields (such as criminal law or the law of Aboriginal peoples).49 General practitioners, by contrast, deal with a broader range of issues and subject areas. However, they typically perform quotidian tasks for clients of relatively modest means who seldom need, or can afford, professional advice requiring sophisticated

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knowledge of either “core” or “non-core” fields. Consequently, the economics of general practice force them to depend not on raw substantive legal knowledge but on knowledge that has been distilled into standard forms (mortgages, partnership agreements, simple wills) and codified into routine procedures (uncontested divorces, corporate filings, debt collection); to delegate many functions to paralegals and support personnel; and to refer complex files to specialists. Nor is it likely that lawyers employed in corporations, the public service, and N G Os (35 per cent of all members of the bar)50 often utilize “core” knowledge. They generally work in compartmentalized settings requiring job-specific legal and non-legal knowledge; they typically concentrate on specific areas of substantive law; and they too tend to seek specialist assistance as required. However, whatever their line of work, one “competency” is indispensable for all lawyers: the ability to handle unfamiliar problems, to build one’s own conceptual vocabulary and repertoire of skills – legal or not – and to re-educate oneself repeatedly over the course of one’s career, as the legal system adapts to rapid and fundamental social and economic change. Developing this last competency is the prime goal of contemporary legal education. Perhaps that is why the Task Force overlooked it. Everyone knows (and a senior law society official cited in the report affirmed) that lawyers are not “omni-competent.”51 The governing bodies themselves clearly agree. They neither regularly test practitioners to ensure that they possess the competencies and knowledge required of new graduates, nor force them to acquire, say, facility in oral expression or knowledge of constitutional law, nor discipline them for any deficiencies. There can be no more telling rebuttal of the Task Force’s assertion that all lawyers should possess the same “skills competencies” and “core” of “substantive legal knowledge.”52 But perhaps I misunderstand the Task Force. Its insistence that students “must have an understanding of the foundations of law”53 may rest not so much on its desire to prepare lawyers for practice, as on some theory of how legal knowledge is constructed. However, if the “foundations” mentioned by the Task Force were meant to be historical, it would surely have mandated the study of legal history; and if they were meant to be conceptual, it would have required the study of legal theory, the sociology of law, or law and economics; but it mentioned none of these. Or perhaps the Task Force believed that because certain subjects have long been compulsory for first-year

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students, they are inherently “foundational.” This is clearly true in the temporal sense that for decades most Canadian law schools have required students to master some of those subjects in first year before being allowed to proceed to second year. But they are not necessarily “foundational” in the functional sense. Indeed, much of the upperyear curriculum is devoted to studying fields of law in which the “foundational” common law doctrines identified by the Task Force are displaced by legislation. Absent a plausible rationale, then, it is difficult to understand why a twenty-first-century Task Force would chisel the traditional, nineteenth-century first-year curriculum in regulatory stone, ignore the fact that leading American law faculties have long since abandoned this approach, and expand the list of compulsory fields of study by over one-half by adding not only “ethics and professionalism” but also administrative and commercial law, a regression to pre1969 arrangements. Ultimately, however, my concern is not just that the selection of compulsory subjects is indefensible on the merits. It is that the Task Force recommendations placed law faculties at the top of a slippery slope down which they are almost certain to be pushed by future regulators. Why, for example, should students be required to “demonstrate an understanding of the fundamental legal principles that apply to private [sic] … commercial relationships”54 but not to pension plans, spousal relationships, or holders of public offices? Why should they have to demonstrate the ability to “conduct legal research … [and] use techniques of legal reasoning and argument”55 but not the ability to use the literature of the social sciences that both underpins and challenges legal rules and institutions? Why, in this global age, should students be immersed in “the public law of Canada”56 but not international or transnational law? Why should they be obliged to acquire competency in “well-reasoned and accurate legal argument, analysis, advice and submissions”57 but not in dispute resolution or client counselling? And why should law faculties be required to certify that their students have achieved acceptable levels of literacy,58 but not numeracy? These are logical questions, and future regulators will almost certainly conclude that the logical answer to them is that indeed, more substantive fields and skills competencies should be added to the National Requirement. “Logical,” that is, so long as one accepts the following premises: that the list can be compiled without empirical

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evidence of what lawyers do and know today and are likely to do and know in the future; that what lawyers do and know is and will hereafter be based on skills and knowledge common to all lawyers, regardless of the nature of their practice; that absent adherence to this common core in the L L B  / J D program, lawyers are and will be incapable of serving their clients competently and ethically; and that given adherence to the common core by law faculties, governing bodies need not test or sanction practitioners to ensure that they meet the same standards as applicants for admission. What will be the consequences? First, resources will have to be allocated differently. Faculties that do not already require all students to study professional responsibility, problem-solving, communication, or “fiduciary concepts in commercial relationships” will have to either hire new members to teach these competencies and concepts, or redeploy members from their present functions. Second, pedagogy will have to change. Teaching “skills competency” requires a different methodology from, say, teaching courses in gender relations, environmental law, or jurisprudence. With this shift in pedagogy will come a shift in the academic reward system: less for scholarly productivity and graduate supervision, more for teaching the new National Requirement curriculum. And third, academic planning will have to change. Faculties will have to use their scarce (in some cases dwindling) resources, not to respond to what they perceive to be public needs, student preferences, scholarly priorities, or equity commitments, but rather to ensure that they can provide the kind of education on which their “approved” status depends. Moreover the choices forced on law schools by the new requirement are likely to become self-reinforcing. To place the acquisition of competencies and “core” knowledge at the centre of a law faculty’s educational mission is to marginalize and devalue other approaches to legal education. To cite but one example, McGill’s much-admired “trans-systemic” curriculum59 is not designed primarily to ensure that students acquire skills competencies and knowledge of core subjects, though no doubt both of these things occur; it is meant to transmit a uniquely broad and deep understanding of law’s many manifestations in a pluralistic society and a globalized world.60 Students ­considering whether to attend McGill or what courses to take there, and McGill’s faculty considering whom to hire and what contributions to value in awarding promotions will have to choose between the “competencies” approach of the Task Force and its own “broad

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understanding” approach. If they make “wrong” choices, faculty and students alike will be penalized by the loss of “approval” for McGill degrees. That prospect will surely dampen enthusiasm for everything that is most distinctive about McGill’s program. Similar constraints will impair the willingness and ability of all law faculties to address the particular goals they espouse and functions they perform other than those enshrined in the National Requirement. The result will be to diminish or eliminate the innovative tendencies of legal education and scholarship. However, as its consultation paper made clear, the Task Force was unrepentant: “The concern has been expressed that a curriculum-based standard puts too much weight on prescribed courses and may constrain innovative developments in legal education … The Task Force is sensitive to this concern, but has a corresponding concern that innovation should not interfere with graduates receiving an education in the essential concepts of the law necessary for practice.”61 Similarly, in its Final Report, the Task Force reiterated its determination to ensure that all law graduates are trained in accordance with the vision of legal education that it essentially plucked from thin air: “The most important consideration is that the law school be adequately resourced to fulfill its educational mission. At a time when all public resources are subject to financial pressures, the Task Force is reluctant to be too prescriptive … but has concluded that there are certain irreducible minima that must be maintained if law societies are to accept the law degree as evidence that the competency requirements are being achieved.”62 The Task Force, then, claimed the right to elevate the “educational mission” of law faculties over their other missions, including the production and dissemination of knowledge and informed critique of the legal system; assigned pre-emptive priority within the educational mission to the achievement of “competency requirements” rather than other educational goals such as liberal education in law or graduate study; and presumed to insist that what it acknowledged to be “public resources” should be devoted first and foremost to ensuring professional competence, a task assigned by statute to the profession’s governing bodies themselves, and until recently funded by them. Finally, the report specifically repudiated the mutually respectful, laissez-faire relationships that had prevailed between law faculties and provincial governing bodies. It mandated deans to submit an annual report confirming that their law school “has conformed to

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the academic program and learning resources requirements” and to “explain how the program of study ensures that each graduate of the law school has met the competency requirements.” 63 This requirement – unilaterally conceived, imposed without consultation, arguably illegal – has no precedent in the recent history of Canadian legal education. Why would the Task Force be so determined to nudge law faculties towards a more conservative pre-1969 (even pre-1957) conception of legal education? And why would the governing bodies – with no apparent cause – repudiate the decades-long truce between the profession and the academy? What logic could possibly inform these initiatives? Only one: the logic of power. The point of the Task Force recommendations, it seems clear, was not to enhance the quality of legal practice; it was to subordinate law faculties to the control of the profession. It was, in other words, to reassert the position the Law Society initially abandoned in 1957 and – thanks to Le Dain – from which it further retreated in 1969 and thereafter. This is a serious charge to levy. What evidence can I tender in support? First, the Task Force was established unilaterally by the F L S C. It neither invited law faculties to collaborate in a project of crucial importance to legal education, nor consulted them on the terms of its mandate, nor asked them to nominate members,64 nor sought their post facto endorsement of its recommendations, as it did that of the profession’s governing bodies. The second is that while the Task Force invited submissions at large, and dealt directly with representatives of the Council of Canadian Law Deans (C C L D ), its consultation process was remarkably unsuccessful in promoting dialogue with Canada’s legal academic community.65 And understandably so: its consultation paper66 was couched in language that strongly suggested that the Task Force had become firmly fixed in its views before seeking the opinions of others.67 As the Task Force noted in its Final Report, “The creation of requirements represents a change in current practices and any compliance mechanism, however modest, will require some adjustment … [T]he recommendation for a stand-alone course relating to ethics and professionalism and the requirements to address competencies may require adjustments by some law schools.”68 However, neither the “compliance mechanism” nor the “requirements,” nor the ensuing “adjustments” can properly be described as

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“modest.” The compliance mechanism requires that law faculties (and arguably the governing bodies and the F L S C itself) violate their governing statutes;69 the requirement to teach ethics and address competencies involves the appointment of new faculty personnel, almost unthinkable in the present moment of financial restraint; and a profound adjustment of law school priorities is likely to be necessary unless deans are prepared to mislead the governing body, annually, concerning their faculty’s compliance with the new requirements. Nonetheless, the Task Force signalled from the outset that it was determined to wield (or at least brandish) the “axe of power.” Its consultation paper observed ominously that universities – and presumably their law faculties – “have a different mandate from law societies and define their mission differently,” and it noted that the existing laissez-faire arrangements “do not give weight to the responsibility of law societies to determine the academic requirements that are necessary to practise law.”70 And while its Final Report could easily have disavowed any intention to disrupt the long-standing, if informal, modus vivendi between the profession and the academy, the Task Force pointedly declined to adopt a proposed set of “constitutional principles” that would have guaranteed its continuation.71 In fact, as if to emphasize the shift from a mutually respectful relationship with the legal academy to one in which the “axe of power” figures prominently, the F L SC adopted a compliance procedure that requires the legal academy to ritually acknowledge its own subordination. All law deans must now certify annually that their faculties have conformed to academic requirements they did not adopt, participated in pedagogic practices they did not endorse, and adhered to an academic program established by non-academic bodies. By failing to reject this compliance procedure outright when it was first proposed,72 and by subsequently cooperating in its implementation,73 the deans not only abdicated their collective responsibility to protect “the tree of knowledge”; they risked becoming complicit in the implementation of other, illicit non-academic professional projects.74 Le Dain, I feel confident, would not have tugged his forelock in this manner. Given his record of successful advocacy on behalf of the legal academy, he would at a minimum have persuaded the F L S C to accept the law faculties as co-architects and co-administrators of the new system; at a maximum, he would have secured the continuation of the highly successful détente that he negotiated forty years earlier.

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A M o r a l ( o r P o ssi bly Two) One can draw at least one moral from this narrative of the efforts of Canada’s legal professions to regulate the education of their new members from the initiation of “the fiercest debate” in 1949 through Le Dain’s deanship in the late 1960s down to the present. The moral is this: law societies should not make or implement policies concerning legal education in an evidentiary and analytical vacuum and without clearly demonstrating the need for enhanced regulation. Still less should they do so unilaterally, without the consent or participation of those closest to the enterprise and with primary legal responsibility for conducting it. And most assuredly, they should not adopt an approach that puts at risk the great advances in legal education achieved during the four or five decades when law societies acknowledged the limits of their own powers and capacities, honoured their commitment to the legal academy not to act unilaterally, and allowed the axe of power to become blunt and rusted. And perhaps there is a second moral as well. If law faculties do not vigorously defend their autonomy, they are very likely to lose it. Taking the most optimistic view of the matter, the FLSC, the Task Force, and the governing bodies all acted in good faith; they reasserted their de facto ownership of legal education only as a precautionary measure, in order to forestall claims by law schools to have acquired a prescriptive easement over their own governance; and they intend only to provide general guidance to law faculties, while leaving them free in practice to conduct themselves as they deem appropriate. However, this optimistic scenario is unlikely to survive changes in personnel, attitudes, or circumstances within the FLSC or the governing bodies. What if the new regime becomes less tolerant, more intrusive? Obviously, the legal academy will have to resist. It has strong legal and principled grounds on which to reject the F L S C’s unilateral and ill-considered regulatory initiative, and the practical means to effectively veto the National Requirement: a collective refusal to comply. And thanks to Gerald Le Dain they have more: justifiable confidence in their own capacity to develop an innovative, high-quality system of legal education. In any new “eventful hour,” law faculties will have to make a choice either to defend the tree of knowledge, or to live thereafter with the axe of power poised to chop it down.

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A p p e n d ix A Proposed Principles to Accompany the FLSC Standards for Approved Common Law Degrees •

•

•

•

•

•

Governing and accrediting bodies will not adopt, implement, or amend the proposed list of competencies without the participation and approval of the legal academy. Governing and accrediting bodies will commit themselves to respecting the intellectual freedom of individual professorial and student members of law faculties and the autonomy of law faculties to adopt the scholarly and pedagogic approaches they deem best. Governing and accrediting bodies will respect the decision-­ making and resource allocation processes established within the university system. Governing and accrediting bodies will ensure that their practising members possess and maintain the same competencies as law schools are to be required to impart and students to acquire. Governing and accrediting bodies will assist law faculties to acquire any additional human and material resources they need to implement the new requirements. Governing bodies will undertake not to use their accrediting authority for any purpose except the protection of the public against demonstrated harms attributable to shortcomings in the education of entrants.

A c k n ow l e d gments I am relying in this chapter on published accounts of the period, the scant surviving records at York University and in the open archives at the Law Society of Upper Canada, and especially on my own fragile memory. I am grateful to Danielle Bisnar for her helpful research and editorial assistance, to Blaine Baker for providing bibliographic information concerning Le Dain’s publications and papers, and to Paul Leatherdale, archivist at the Law Society of Upper Canada, for his efforts on my behalf.

n otes   1 Erasmus Darwin, The Temple of Nature; or, The Origin of Society, a Poem, with Philosophical Notes (London: J. Johnson, 1803).

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  2 C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers and Legal Education in Ontario 1923–1957 (Toronto: University of Toronto Press, 1987).   3 John Arnup, “The 1957 Breakthrough,” Law Society of Upper Canada Gazette 16 (1982): 18; Christopher Moore, The Law Society of Upper Canada and Ontario’s Lawyers 1797–1997 (Toronto: University of Toronto Press, 1997), 258.   4 Law Society of Upper Canada, Report of the Special Committee on [the] Law School (Toronto: Law Society of Upper Canada, 1957).  5 Law Society Act, RS O 1990, c L8, s 62(4.1).   6 See, e.g., Mark Walters, “Let Right Be Done: A History of the Faculty of Law at Queen’s University,” Queen’s Law Journal 32 (2007): 314, especially “Part II: Queen’s and the Law 1841–1957.” Attempts to open law schools at Toronto, Western Ontario, Queen’s (a second attempt), Ottawa, and Victoria Universities were rebuffed in subsequent years: see Kyer and Bickenbach, Fiercest Debate, 26–9.   7 See Kyer and Bickenbach, Fiercest Debate, chaps 9 and 10.   8 Law Society of Upper Canada, Report, 9.   9 Ibid., 12. 10 Ibid., 9, was explicit on this point: “The two functions which the Law Society now performs as a teaching institution for Legal Education and as part of the accrediting mechanism of the Law Society would be separated.” 11 Federation of Law Societies of Canada, Task Force on the Canadian Common Law Degree: Final Report (n.p.: FLSC , 2009), appendix 2, “Letter from Kenneth Jarvis, Secretary of the Law Society of Upper Canada,” 20 February 1984. 12 The 1957 Report also dealt inferentially with the recognition of outof-province degrees and, to that extent, the interprovincial mobility of law graduates. It provided for “approval” by the Law Society of the degrees of common law faculties in other provinces that conformed to the criteria established for the approval of Ontario law degrees, thus enabling their graduates to article in Ontario, enrol in the Law Society’s Bar Admission Course, and gain admission to the Ontario bar. Graduates with non-Canadian – hence non-approved – degrees remained ineligible for admission unless and until they earned a Canadian law degree, although of course an “approved” law school might be willing to offer them academic credit for subjects studied abroad. 13 See, e.g., Moore, Law Society, at 263–4.

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14 For a fuller account of these events, see Harry Arthurs, “The Affiliation of Osgoode Hall Law School with York University,” University of Toronto Law Journal 17 (1967): 194. 15 The affiliation agreement provided that during the transitional period leading up to the affiliation both parties would share responsibility for major governance issues, and in particular for professorial and decanal appointments. The parties appointed Justice Bora Laskin (then a member of the Ontario Court of Appeal) and Dean Albert Sacks of Harvard Law School to advise them on the development of the new law school. Justice Laskin chaired the decanal search committee that selected Le Dain. Barbara Laskin, his daughter, confirmed in conversation with me that Le Dain’s name was first proposed for the deanship by her mother, Peggy Laskin, at a family dinner. 16 Although Le Dain had made several contributions to debates over legal education, all but one were specific to Quebec and had been published some years earlier. See Gerald E. Le Dain, “Teaching Methods in the Civil Law Schools,” Revue du Barreau 17 (1957): 499; Le Dain, “Legal Education and Training: A Report of the Quebec Committee,” Canadian Bar Journal 1 (1958): 33; Le Dain, “Practical Training of Law Students in the Province of Québec,” Canadian Bar Journal 3 (1960): 242; Le Dain, “The Theory and Practice of Legal Education,” McGill Law Journal 7 (1961): 192. 17 See two memorials for Gerald Le Dain: Harry Arthurs, “A Locomotive of a Man,” Osgoode Hall Law Journal 45 (2008): 657; and Bruce Ryder, “To Make a Difference,” Osgoode Hall Law Journal 45 (2008): 660. 18 Neither the York University Library nor the Osgoode Hall Law School Library appears to possess copies of the 1968 Report of the Academic Policy and Planning Committee (chaired by Stanley Beck, who would become dean from 1977 to 1982). However, its recommendations were confirmed and extended by a 1969 report of the committee, which was, in turn, adopted by the Faculty Council. See York University, Report of the Deliberations of the Council of Osgoode Hall Law School on Curriculum and Related Matters (Toronto: York University, 1969). 19 The remaining compulsory courses were: contracts, torts, real and personal property, criminal law, civil procedure, and constitutional law. The 1968–69 Osgoode curricular reforms were consciously taken “in light of new regulations promulgated by the Law Society of Upper Canada regarding the curriculum of law schools whose graduates seek admission to the Ontario bar” (York University, Report, 1969, para. 2).

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20 Apparently formal regulations were not adopted in either 1957 or 1969. According to the Law Society’s archivist, We cannot find any evidence that any sort of approved curriculum was considered by Convocation [in 1957]. However, the 1972 Report of the Special Committee on Legal Education includes an appendix summarizing the 1957 regulations for approved law courses. The summary lists the subjects an approved law school had to offer. These regulations appear to have been taken from an April 1957 letter from D. Park Jamieson (Chair, Legal Education Committee) to Dr. J.A. Corry (Vice Principal, Queen’s University). An excerpt of the letter appears in the summary of the 1957 regulations. In March of 1969, Convocation approved changes to the law school curriculum which had been proposed by the Deans of the approved Ontario law schools. The changes requested by the Committee of Ontario Law Deans and approved by Convocation are listed as an appendix in the 1972 Report of the Special Committee on Legal Education. (E-mail from Paul Leatherdale to Harry Arthurs, 18 November 2009) While there appears to be no official version of the 1969 “regulations respecting curriculum, sequence of courses and annual session and hours of lectures for approved law schools,” a version of the agreement reached between the Ontario law faculties and the Law Society was reproduced in Osgoode’s 1969 curriculum report (York University, Report, 1969, appendix B). A somewhat summary version of the same document notes that “the following changes were requested by the Committee of Ontario Law Deans and approved by Convocation”: Law Society of Upper Canada, Report of the Special Committee on Legal Education (Toronto: Law Society of Upper Canada, 1972), 61. That report refers to, but does not reproduce, the “undertaking” by the law faculties that formed the basis of the 1957 settlement. 21 A third – presumably “official” – version of what was described as “regulations” was transmitted by the Law Society Secretariat to Le Dain. It omits any reference to the “undertaking” by law faculties and states prescriptively that “the requirements of the Law Society of Upper Canada pertaining to the approval of Law Faculties for the purpose of admission of their graduates … are as follows.” Letter from Kenneth Jarvis, secretary of the Law Society, to Gerald Le Dain, 15 April 1969, Toronto, Law Society of Upper Canada Archives. Jarvis’s covering letter makes no reference to the fact that the “requirements” were adopted in response to the law faculties’ initiative and asserts somewhat misleadingly that “the Legal Education Committee and Convocation … consider it desirable to

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introduce a greater measure of flexibility into the stipulated requirements.” Le Dain’s response gently corrects the record. The law schools, he notes, were “very satisfied … with the manner in which our discussions were conducted and the very constructive result that was reached.” Letter from Gerald Le Dain to Kenneth Jarvis, 16 April 1969, Toronto, Law Society of Upper Canada Archives. Jarvis subsequently acknowledged the role of the law faculties in initiating the 1969 changes. Letter from Kenneth Jarvis to David Jenkins, 20 February 1984, reproduced as appendix 2 to F L S C, Task Force Final Report, 824. 22 See Law Society of Upper Canada, Report, 1957. 23 York University, Report, 1969. 24 The society’s secretariat and some benchers attempted to prevent Parkdale students from providing legal advice to clinic clients, to deny the Parkdale clinic legal aid funding, to deny students academic credit for a term spent in a clinical setting, and to prevent clinic lawyers from supervising articling students. For personal recollections of the events surrounding the establishment of the Parkdale clinic, see “Remarks following the Chief Justice,” Osgoode Hall Law Journal 35 (1997): 432; Le Dain’s remarks are found at 439. 25 See Fred Zemans, “The Dream Is Still Alive: Twenty-Five Years of Parkdale Community Legal Services and the Osgoode Hall Law School Intensive Program in Poverty Law,” Osgoode Hall Law Journal 35 (1997): 499, esp. 511; Shelley Gavigan, “Twenty-Five Years of Creative Tension: The Parkdale Community Legal Services Experience,” Osgoode Hall Law Journal 35 (1997): 443. 26 One perennial source of irritation to the profession and its governing body was the supposed failure of law faculties to equip students with knowledge of the “fundamentals” necessary to practise law. Another was the proliferation of optional courses such as Marxism and the Law. A third was the perceived disrespect exhibited by legal academics in their classrooms, in scholarly publications, and in the media for judges, lawyers, and the legal system in general. In 1973, this irritation led to an attempt in convocation (one of several) to force Osgoode Hall Law School to change its name, to avoid any implication that its former proprietors approved of developments there. (As dean, I successfully resisted this attempt.) 27 Of course, he did not save all trees. Some contemporary radical departures in legal education elsewhere in Canada were quickly suppressed or deradicalized. See Robert Bureau and Carol Jobin, “Les Sciences Juridiques à l’Université de Québec à Montréal: Fifteen Years Later,” Dalhousie Law Journal 11 (1987): 295.

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28 Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs, The Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs (Ottawa: Information Canada, 1972). 29 This debate was occasioned by the Report of the Long-Range Academic Policy Study Group (Toronto: Osgoode Hall Law School, York University, 1974). The Study Group was chaired by Peter Hogg, a future dean of Osgoode Hall Law School (1998–2003). 30 Kenneth Jarvis, secretary of the Law Society, acknowledged in 1984 that “there is no formal reference to the Law Society of Upper Canada by approved law schools when changes in their curriculum or teaching ­methods are made. It may be that no significant changes have taken place which bear upon the basis for the approval of the degree given by any particular school but it is not known for certain whether or not this is the case.” Letter from Kenneth Jarvis. 31 To make full disclosure, since the adoption of the National Standard in 2010, I have been offering a vigorous critique of the efforts by the Federation of Law Societies of Canada (FLSC ) and its affiliates to reassert control over legal education. See Harry Arthurs, “‘Valour Rather Than Prudence’: Hard Times and Hard Choices for Canada’s Legal Academy,” Saskatchewan Law Review 76 (2013): 73; and Arthurs, “The Future of Legal Education: Three Visions and a Prediction,” Alberta Law Review 51 (2014) 705. 32 F L S C , Task Force Final Report, 18. 33 Ibid., 19. 34 Ibid., 20. 35 Ibid., 21. 36 Ibid. The current version of the National Requirement is found at https:// flsc.ca/wp-content/uploads/2018/01/National-Requirement-Jan-2018FIN.pdf. 37 F L S C , Task Force on the Canadian Common Law Degree: Final Report (n.p.: F L SC, 2009), 2. 38 National Requirement, Part C Approved Canadian Law Degree, para 1.5. This recommendation is apparently designed to allow law faculties to continue to admit mature students, but as worded seems to require that they do so on a case-by-case basis, rather than pursuant to a general policy. 39 Ibid., Recommendations 4C 1.1–1.2. While the Task Force Final Report acknowledges the importance of interdisciplinary study and the importance of joint degrees (40), it also contemplates that “students will be involved in the study of law [emphasis added] for three years or its

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equivalent in course credits” (41). This formulation may conceivably prevent law schools from giving credit for courses deemed not to be “law” courses. National Requirement, Part C, Approved Canadian Law Degree para 1.1. 40 Ibid., Part C, Approved Canadian Law Degree paras 2.1–2.4. 41 Ibid., Part B, Competency Requirements paras 1.1–1.3. 42 Ibid., Part B, para 2. 43 Ibid., Part B, paras 3.1–3.3. This was revised in 2018, notably dropping “legal and fiduciary concepts in commercial relationships.” 44 Constance Backhouse, “The ‘Approved’ Common Law Degree,” Canadian Legal Education Annual Review 3 (2009): 145, points out that all law schools (except, apparently, the University of Manitoba) would be “offside” the proposed new requirements. 45 F L S C , Final Report, at 9–10. 46 The Task Force states that it “reviewed competency descriptions employed by regulators in other common law jurisdictions” and considered “extensive work on lawyering skills,” “analysis,” and “survey work” undertaken in Ontario, Alberta, Saskatchewan and Manitoba: FLSC , Task Force on the Canadian Common Law Degree: Consultation Paper (n.p.: FLSC , 2008), 19–20. Unfortunately, these documents are not in the public domain, nor are any of the actual data used by the Task Force displayed or even referenced in its Consultation Paper, Interim Report, or Final Report. 47 The leading American work on the diverse clienteles, function, and ­knowledge domains of the legal profession is John Heinz and Edward P. Lauman, Urban Lawyers: The New Social Structure of the Bar (Chicago: University of Chicago Press, 2005). For the best Canadian data on this subject, see Ronit Dinovitzer, Law and Beyond: A National Study of Canadian Law Graduates, http://individual.utoronto.ca/dinovitzer/ images/LABReport.pdf. 48 I have explored these issues in Harry Arthurs, “A Lot of Knowledge Is a Dangerous Thing: Will the Legal Profession Survive the Knowledge Explosion?,” Dalhousie Law Journal 18 (1995): 295; Arthurs, “The Dead Parrot: Does Professional Self-Regulation Exhibit Vital Signs?,” Alberta Law Review 33 (1995): 800; and Arthurs, “Will the Law Society of Alberta Celebrate Its Bicentenary?,” Alberta Law Review 45 (2008): 15. 49 National Requirement, Part B, para 3, “Substantive Legal Knowledge.” 50 The Law Society of Upper Canada acknowledges that some 35 per cent of its members are not engaged in private practice. LSUC , 2008 Annual Report Performance Highlights, 6, http://www.lsuc.on.ca/media/arep_ full_08.pdf.

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51 Letter from Jarvis to Jenkins. 52 L S UC , Task Force Final Report, Recommendations B1 and B3. 53 Ibid., Recommendation B3.1. 54 Ibid., Part B, para 3.3 b. 55 Ibid., Part B, para 1.2 c. 56 Ibid., Part B, para 3.2. 57 Ibid., Part B, para 1.2 c. 58 Ibid., Part B, para 1.3. 59 See “Navigating the Transsystemic,” special issue, McGill Law Journal 50 (2005): 701; and Harry Arthurs, “Law and Learning in an Age of Globalization,” German Law Journal 10 (2009): 629. 60 See Arthurs, “Navigating the Transsystemic.” 61 Task Force on the Canadian Common Law Degree, Consultation Paper, September 2008, http://www.ryerson.ca/law/CommonLawDegrees.pdf, para 53. 62 L S UC , Task Force Final Report, at 42. 63 Ibid., Recommendation 5. 64 One member of the Task Force, Vern Krishna, was a law professor, but he was appointed as a nominee of the Law Society of Upper Canada, of which he served as treasurer from 2001 to 2003. 65 It received briefs from two individual professors (including myself); three law faculties (several subsequently adopted resolutions rejecting the report); five deans (in their “personal capacity”); and five legal-­academic organizations (all of whose recommendations it spurned). LSUC , Task Force Final Report, appendix 1. 66 L S UC , Task Force Final Report. 67 Aside from the elaboration of a compliance mechanism, the Task Force Final Report adhered to the “preliminary view” set out in its Consultation Paper in virtually every substantive respect. 68 L S UC , Task Force Final Report, 43. 69 For example, the York University Act, S O 1965, c 143, states that its Senate is “responsible for the academic policy of the University … and has the power … to determine … the content and curricula of all courses of study” (s 12). The Law Society has no such power. Under its governing statute, it may “offer programs of pre-licensing training or education” (s 60), “grant degrees in law” (s 60), and ensure that practising lawyers and para-legals “meet standards of learning … appropriate for the … ­services they provide” (s 4.1): Law Society Act, R SO 1990, c L.8. But it lacks the power to define the content of degrees offered by other institutions, to approve or accredit law faculties, or (more contentiously) to

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deny admission to students who can demonstrate that they “meet the standards,” whether or not their law school conforms to the curriculum mandated by the Society. This perhaps explains why the Law Society’s brief to the Task Force opposed the introduction of both a mandatory course in legal ethics and the new compliance mechanism. The Federation of Law Societies of Canada possesses no powers under its charter that would permit it to establish or enforce a system of accreditation. See the federation’s website: https://flsc.ca/about-us/our-mission/. 70 F L S C Task Force, Consultation Paper, 31. 71 See appendix A. I proposed these principles in my own submission to the Task Force, and they were endorsed in slightly modified form by the Canadian Association of Law Teachers (C A LT) and the Canadian Law and Society Association (CLS A), though not by the Council of Canadian Law Deans (CCLD). For an account of other efforts by the academic ­community to secure reassurance from the FLSC , see Annie Rochette, “Introduction to the Special Issue on the Federation of Law Societies Task Force on the Approved Law Degree,” Canadian Legal Education Annual Review 3 (2009): 135; and CALT / CLS A, “Response to the Consultation Paper of the Task Force on the Canadian Common Law Degree of the Federation of Law Societies of Canada,” Canadian Legal Education Annual Review 3 (2009): 151. 72 The C C L D expressed polite concern about the compliance procedures but failed to take an aggressive stance against them. Its submissions to the F L S C Task Force are found at http://ccld-cdfdc.ca/index.php/reports-andpublications. By contrast, resolutions opposing implementation of the Task Force Final Report were adopted, inter alia, by the law faculty councils at York, Ottawa, British Columbia, Victoria, and Dalhousie, and a joint letter expressing serious objections was sent to the Law Society of Upper Canada by the presidents of Windsor, York, Ottawa, and Western Ontario Universities. The concerns expressed ranged from lack of consultation and evidence, to the absence of the profession’s legal authority to regulate law school curricula, to concern about a compulsory course in legal ethics. 73 A chronology of implementation is found at FLSC , “Yesterday and Today,” http://flsc.ca/about-us/yesterday-and-today/. 74 An extreme case: as a bencher of the Law Society of Upper Canada in the early 1980s, I participated in a debate over whether law schools that refused to reduce their enrolment, to remedy an alleged over-­supply of lawyers, should no longer be “approved” and their graduates denied admission to practice. When I threatened to report this initiative to the Competition Bureau, the matter was dropped.

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7 An Accidental Soldier in the War against the War on Drugs Melvyn Green

In t ro du cti on The mid- and late 1960s were notoriously turbulent. The seemingly interminable war in Viet Nam spawned anti-war campaigns in the United States and throughout much of the Western world. A civil rights crusade underscored the defining fissure in American society. The National Organization for Women ushered in second-wave feminism. Student and worker resistance paralyzed Paris and most of France. Paramilitary wings of populist movements in Central and Latin America responded with armed resistance to decades of imperial oppression. The Red Brigade was beginning to destabilize Italy. Students for a Democratic Society assumed an increasingly radical “New Left” posture in the United States and one faction, the Weather Underground, began to engage in domestic terrorism. The American Indian Movement occupied Alcatraz Island; armed confrontations with US federal agents soon followed. The Front de libération du Québec pursued independence through violence, including the bombing of the Montreal Stock Exchange in 1969 and, a year later, a political kidnapping and assassination that led to the “October Crisis.” Conspicuously “counterculture” rock and roll saturated the airways. “Hippies,” a collective repudiation of materialism, flourished while reducing their parents to incomprehension and tears. Black Panthers. Haight-Ashbury. The Levitation of the Pentagon. Woodstock. The Watts Riots. The Detroit Riots. The Stonewall Riots. The Chicago Democratic Convention. And, if but a year or few later, Attica Prison, Kent State, and Wounded Knee.

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Concurrent with this rending of the settled order was an explosion in the recreational, communal, and spiritual consumption of drugs. Marijuana and hashish – once exclusively associated with bohemian and criminal subcultures – became, almost overnight, commonplace among North American college-aged populations. The use of hallucinogens skyrocketed. More addictive drugs, such as cocaine and opiate narcotics, began to migrate from ghetto and ethnic to more privileged communities. And tens of thousands of young Canadians whose personal trajectories would, in the ordinary course, never intersect with the criminal law were being arrested, charged, burdened with criminal records, and, in many thousands of cases, imprisoned for their psychotropic indiscretions. What the heck was going on? Or as then posed by the later Nobel Prize–winning bard: “Something is happening here, but you don’t know what it is, do you Mr Jones?”1 Hard to say, even in retrospect, what indeed was going on. But in 1969 the Canadian government – “Mr Jones” writ large – was moved to try to figure it out, or at least postpone making any decisions that risked political capital. The federal authorities, as said elsewhere, “responded to the growing phenomenon of adolescent drug use in the only way they knew how: they appointed a royal commission.”2 Its chairman was Gerald E. Le Dain, then dean of Osgoode Hall Law School at York University in Toronto and, later, a justice of the Federal Court of Appeal and, ultimately, the Supreme Court of Canada. I was then a semi-pro sociologist, toiling over my dissertation for Columbia University while lecturing to all too demographically representative classes at Carleton University on all too popular subjects like deviant behaviour. I answered an advertisement in the Ottawa Citizen for a research position with the Commission of Inquiry into the NonMedical Use of Drugs and was promptly hired. The next several years of my life were intertwined with those of “Gerry” – as everyone called him – Le Dain. It was an exhilarating time.

C o m m is s io n s o f In q ui ry, i n General Government-appointed independent commissions of inquiry – sometimes styled royal commissions – are typically divided into two categories, distinguished chiefly by their purpose.3 As said by former Ontario associate chief justice Dennis O’Connor (who chaired two major public inquiries), there are “those that have a mandate to find and

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report on facts, and those with a mandate to make recommendations for the development of public policy.”4 Exemplars of the first variant – the fact-finding inquiry – are inspired by and focus on specific events. “Commonly,” Justice O’Connor noted, “they are established in the aftermath of a tragedy or scandal usually with political implications, where the public’s confidence or trust in public institutions or officials has been shaken.” Industrial and commercial catastrophes, security breaches, failings of public institutions, violations of public trust, abuse of political and police power, and notorious miscarriages of justice illustrate, if not exhaustively, the broad range of circumstances that give rise to the appointment of fact-finding inquiries. These commissions are typically charged with answering the questions of “what went wrong?” and its inevitable follow-up: “what can we do to make sure it never happens again?” There is, almost unavoidably, an element of fault-finding in the conduct of such inquiries, although statutory and Charter constraints limit personal liability determinations to that of “misconduct,” at worst. The Royal Commission of Inquiry into the Westray Mine Tragedy, the “Ipperwash Inquiry,” the “Gomery Inquiry,” the “Munsinger Inquiry,” and the more recent “Charbonneau Inquiry” into corruption in the construction industry in Quebec fall within this first category. The commissions appointed to look into the wrongful convictions of Donald Marshall Jr, Guy Paul Morin, and Robert Sophonow are but three examples of inquiries into the reasons for justice having factually and tragically miscarried in Canadian homicide prosecutions. In this simplified typology, the second mode of inquiry addresses matters of public policy in areas of controversy, change, emerging or recurring systemic difficulty, or ethical quandary that are not anchored in any specific incidents or events. The primary objective of such inquiries is to provide the government with independent policy advice while secondarily educating the public and stimulating debate. The “Emmett Hall Inquiry” (the Royal Commission on Health Services), the Royal Commission on Bilingualism and Biculturalism, the Royal Commission on the Status of Women, the “Berger Inquiry” (the Mackenzie Valley Pipeline Inquiry), the Royal Commission on Aboriginal Peoples (“R C A P ”), and the Royal Commission on New Reproductive Technologies are archetypal examples of this model of inquiry. The Commission of Inquiry into the Non-Medical Use of Drugs – or the “Le Dain Inquiry,” as it came to be called – is another.5

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T h e L e D a in C o mmi ssi on Perhaps because of their express fact- and implicit fault-finding mandate, public inquiries of the first order are usually chaired by a single judicial officer. Those charged with inquiring into and making recommendations in areas of controversial and evolving public debate are more frequently directed by a small group of men and women selected for their wisdom and, typically, familiarity with the matters at issue. The Le Dain Commission shared these latter features. While Gerry Le Dain was the chairman of the commission, four others served as co-commissioners or “members.” Three were based in Quebec.6 MarieAndrée Bertrand was a highly respected criminologist at the University of Montreal.7 A second, Ian Campbell, was the dean of Arts and Science at Sir George Williams University (now part of Concordia University) in Montreal at the time of his appointment and soon accepted a parallel position at Bishop’s University. Dr Heinz Lehmann was a director of the Douglas Hospital in Montreal, chairman of the Department of Psychiatry at McGill University, and a pioneer in the use of psycho-pharmaceuticals in the treatment of mental illness; he became Gerry Le Dain’s closest ally on the commission and, thereafter, a lifelong friend. The fourth, by far the youngest and sole surviving co-commissioner, was Peter Stein. He had worked with addict and criminal populations in Vancouver and was involved with youthfocused community development in BC when recruited. He became the executive director of the Montreal Council of Social Agencies during his commission tenure and later was appointed chair of the British Columbia Drug and Alcohol Commission. Professor Bertrand went on to earn a global reputation as a progressive, feminist scholar and much later assumed the presidency of the International Anti-Prohibitionist League. Her views on drug policy reform and those of Dean Campbell, the most conservative of her commission colleagues, increasingly diverged from each other and, although in opposite directions, from those advanced by the centrist majority led by Gerry Le Dain. In essence, and as reflected in the recommendations that accompanied each of the commission’s reports, the internal debate focused on the costs and benefits of employing the criminal law to address the harms associated with the use of drugs. Le Dain, as he made clear in the commission’s Final Report, was “not in favour of extending the application of the criminal law against the user but rather of making an orderly withdrawal from it.”8 Campbell

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recommended expanding the reach, if not necessarily the penal consequences, of the criminal law. And Bertrand, who had deep misgivings about the criminalization of morality, proposed both the commercial legalization of cannabis and, under clinical supervision, the distribution of narcotic drugs to opiates dependents. These were, by any measure, three very different models for the regulation or management of the non-medical use of drugs. Gerry Le Dain was a somewhat odd choice as chairman of the commission. He had been a formidable courtroom advocate and later a highly respected academic, constitutional legal scholar, popular law professor, and progressive university administrator. However, criminal law, substance abuse policy, and bio-ethics were not among his fields of acknowledged expertise, and neither his training nor practice encompassed any of the neurological, pharmaceutical, or psychological sciences.9 Nonetheless, his selection as chair proved both prudent and provident. Gerry’s keen native intellect was disciplined and inquiring. He strove to keep an open mind and sought the wisdom of others where his own experience proved wanting. He favoured reason over prejudice, no matter how venerable the latter. He was somewhat obsessive, which augured well for accuracy and consistency, and a little too tightly wound,10 but he was not afraid to delegate.11 He worked tirelessly to fulfill the commission’s mandate and, with only modest success, to build a consensus he hoped would add gravitas to the commission’s recommendations. Not incidentally, Gerry also had a fine sense of humour. Any discussion of the work of a public inquiry must be grounded in its terms of reference. They not only set out the positive mandate of a public inquiry but, as well, fix the boundaries beyond which the inquiry cannot lawfully stray. The Le Dain Commission’s “terms” were, generally, to inquire “into and concerning the factors underlying or relating to the non-medical use of drugs.” More particularly, they were to: •

•

•

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Marshal the information, “both in Canada and abroad” in regard to these drugs; Report on the “current state of medical knowledge respecting [their] effects” and the “motivation” for their use; Inquire into and report on “the social, economic, educational and philosophical factors” relating to the non-medical use of drugs and the demographic features of the phenomenon; and, finally,

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Make recommendations “with respect to the ways or means by which the Federal Government can act, alone or in its relations with Government at other levels, in the reduction of the dimension of the problems involved in such use.”

Conspicuously absent from the commission’s terms was any reference to the “law” or, more particularly, the “criminal law.” This silence was not lost on the commissioners. They recognized that meaningfully addressing the “problems involved in the [non-medical] use of drugs” could not be divorced from a critical survey of successive governments’ intransigent reliance on criminal penalties as the primary strategy to manage the risks associated with the recreational use of drugs.12 Accurate public information and government-financed intervention and treatment programs were clearly subordinate to campaigns of public hysteria and repression in the late 1960s. The commission understood that the “reduction of the dimension of the problems” required a multi-faceted approach that, in the end, focused on a rational assessment of harm rather than the indiscriminate assignment of moral fault that had defined and driven drug policy for many decades. The criminal law, and the severe penalties then in force,13 created more problems than it solved, magnified the health-related consequences of the phenomenon, and contributed to intergenerational alienation. The last was a recurring theme in the commission’s analysis of contemporary drug control policy. In short, what was soon enough to be called “the war on drugs” had, in practice, become a war on youth.14 The commission was hardly naive about the adverse consequences of drug use. Nonetheless, by the spring of 1970, barely a year into its tenure, it released an Interim Report in which it concluded, The harm caused by a conviction for simple possession appears to be out of all proportion to any good it is likely to achieve in relation to the phenomenon of nonmedical drug use. Because of the nature of the phenomenon involved, it is bound to impinge more heavily on the young than on other segments of the population. Moreover, it is bound to blight the life of some of the most promising of the country’s youth. Once again there is the accumulating social cost of a profound sense of injustice, not only at being the unlucky one whom the authorities have decided to prosecute, but at having to pay such an enormous price for conduct which does not seem to concern anyone but oneself.15

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The Le Dain Commission at work, courtesy of the Le Dain family

Accordingly, the commission then recommended, as an “interim measure,” that “no one should be liable for imprisonment for simple possession of a[ny] psychotropic drug for non-medical purposes.”16 Although not quite on historical par with the heresy for which Galileo was indicted, the commission’s Interim Report recommendations, and many of those that followed, represented a radical departure from official thinking on the subject of drug control. Measuring the distance requires some appreciation of the evolution of the criminal legislation that then governed the use, production, and distribution of non-prescribed drugs.

A B r ie f H is to ry of Canadi an D ru g C o n t ro l Poli cy The criminalization of non-medical drug use in Canada is barely a century old. It began with passage of the 1908 Act to Prohibit the

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Importation, Manufacture and Sale of Opium for Other Than Medicinal Purposes. Commenting on this initiative and early accretions to this legislation, the commission’s Interim Report frankly asserts, “There can be no doubt that Canada’s drug laws were for a long time primarily associated in the minds of its legislators and the public with general attitudes and policy towards persons of Asiatic origin.”17 Further amendments led to the Opium and Drug Act of 1911 and its inclusion of cocaine and morphine as prohibited substances, along with the extension of offence categories to transportation and simple possession. The Opium and Narcotic Drug Act of 1920 further expanded both the reach of the criminal law in this area and the severity of the penalties upon conviction. Chinese immigrant use of opium attracted little opprobrium outside of British Columbia. The general public’s faltering interest in the subject of drugs was soon revived by a series of sensationalist articles commissioned by Maclean’s magazine and written by “Janey Canuck” – the nom de plume of Emily Murphy, a popular writer, temperance advocate, early and ardent feminist, and, as of 1916, the first woman judge in the British Empire.18 Expanded to four times their cumulative original length, Murphy’s articles were published as a book, The Black Candle, in 1922.19 The articles and book drew widespread attention and proved highly influential, galvanizing a previously indifferent citizenry.20 A firm subscriber to the contagion theory of social pathology, Murphy urged stringent measures – including mandatory imprisonment, denaturalization and deportation, and whipping21 – to suppress the “evil” of drugs, as “a single drug user in a community should be considered a menace to the whole of it.”22 Public ignorance and apathy, which she was determined to correct, only compounded the problem. “Because Governments,” she wrote, “have failed to grasp the seriousness of the situation, the sums allotted to dealing with the drug traffic have been entirely inadequate – indeed pitifully so.”23 Murphy’s bigotry towards persons of colour was at least as strong and strident as her commitment to the cause of female equality. She saw drugs as one facet of an international conspiracy “to injure the bright-browed races of the world,”24 and “foreign” persons – most frequently Asian (“Chinamen”), sometimes black (“Negroes”), and, on rarer occasion, “Jews” – uniformly played the role of villain in her anecdotal accounts.25 To dismiss Murphy’s fulminations as little more than a remote if colourful backgrounder to the commission’s task would be a disservice

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to both the power of her rhetoric and her historical influence. Murphy’s writings capitalized on and justified puritanical and anti-immigrant sentiments. More than any other single source, they embedded the “dope fiend” mythology and rationalized the moral panic that informed drug legislation for decades. While other stakeholders – such as the R CMP , the federal Department of Health, and American antivice agencies – played their part, Murphy’s celebrity and inflammatory advocacy effectively set the table for the criminal law excesses that followed.26 As Brian Anthony and Robert Solomon begin their “Introduction” to the re-publication of her book in 1973,27 “The Black Candle which now may be dismissed as grim humour or ­condemned as outright propaganda was a landmark both in the life of its prominent crusading author and in the history of Canadian drug legislation.” Most importantly for the work of the commission, and the public debate that continues to this day, Murphy was the first public figure to draw attention to, as her heading for chapter 13 read, “Marahuana: The New Menace.” That the drug was virtually unknown in Canada was of no moment to Murphy, who pressed her case by favourably quoting the fevered language of Charles A. Jones, a Los Angeles police chief:28 “Persons using this narcotic, smoke the dried leaves of the plant, which has the effect of driving them completely insane. The addict loses all sense of moral responsibility. Addicts to this drug, while under its influence, are immune to pain … While in this condition they become raving maniacs and are liable to kill or indulge in any form of violence to other persons, using the most savage methods of cruelty.” Other cited sources were equally partisan, if not quite so inflammatory. Despite Murphy’s patent familiarity with the international literature, she somehow neglected to mention the pre-eminent cannabis study of the time, that of the Indian Hemp Drugs Commission.29 The British-Indian Commission’s very thorough 3,000-page final report, released in 1894, concluded that moderate use of cannabis “is attended by no evil results at all” and that, “for all practical purposes it may be laid down that there is little or no connection between the use of hemp drugs and crime.” Absent public debate, challenge from a cowed medical community, or consideration of the most reputable scientific research, it is perhaps not surprising that “cannabis” – marijuana and hashish – joined opium, morphine, and cocaine on the schedule of prohibited drugs in 1923, a year after The Black Candle was published.

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Although the controlling legislation had by then been retitled the Narcotic Control Act, cannabis was still scheduled with cocaine and pharmacologically true “narcotics,” such as morphine and heroin, throughout the commission’s mandate. This persistent misclassification was not without consequence. Between 1961 and 1977, opiate narcotics’ share of convictions under the Narcotic Control Act declined from 98.3 to 1.3 per cent, with cannabis by far attracting most of the findings of guilt from the mid- to late 1960s. In short, a draconian penal regime intended to deter the distribution and use of arguably pernicious substances was overwhelmingly visited on consumers of relatively benign drugs. Nor were the penalties for drug-related offences in 1969 significantly different from those in force in the immediate wake of The Black Candle. Simple possession of any of the scheduled “narcotics” could attract a sentence of imprisonment for as long as seven years. Trafficking-related offences carried maximum penalties of life imprisonment, as did the importation or exportation of any prohibited drug. The latter offences also bore a minimum sentence of seven years’ incarceration, irrespective of the amounts involved. The Food and Drugs Act then governed unauthorized conduct involving other psychotropic drugs, such as amphetamines (listed as “controlled drugs”) and “psychedelics” such as LSD (styled “restricted drugs”).30 Convictions for trafficking in these substances carried sentences of up to ten years’ incarceration. The application of the law was equally harsh. Nearly half of those convicted of simple possession received custodial dispositions in 1968, and penitentiary-length sentences for trafficking were not uncommon in the late 1960s and 1970s, even for offences involving non-addictive drugs like cannabis and hallucinogens. Further, in this pre-Charter era, persons convicted of importing even petty amounts of marijuana had no legal escape from the minimum penalty of seven years’ imprisonment – a far longer sentence than that imposed, then or now, in the vast majority of cases involving domestic violence, the use of firearms, the production of child pornography, or the sexual abuse of children.

T h e L e D a in C o mmi ssi on: P ro c e s s a n d O utcomes The commission’s Interim Report recommendations included expressly “preliminary” initiatives in the realms of drug law enforcement,

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education, research, crisis intervention, treatment, and corrections. These, along with the regulatory framework, were among the areas identified as requiring further study. The commission was, in large part, true to its ambition. The Le Dain Commission’s legacy may lie as much in its process as in its recommendations. Gerry and his colleagues realized that the legitimacy of their endeavour depended on fulfilling two undertakings. One was a thorough and impartial review of the entirety of the global knowledge base on the subject, supplemented by the commission’s own studies where lacunae were identified. A second was to ensure that those at the sharp end of prevailing drug control policy and most cynical about the integrity of the inquiry – in short, Canadian youth – had their voices heard. To this latter end the commission was the first to introduce the practice of consulting with the public by coast-to-coast community forums.31 The exchanges with “ordinary” citizens, particularly members of the drug-using generation, were conducted in a manner that encouraged trust, candour, and, not infrequently, highly animated discussions. Apart from the more predictable venues, the commission frequently held public hearings in more informal settings, including close to two dozen universities and several coffee houses that the Interim Report somewhat romantically described as the “centres of the new youth culture.”32 These exchanges had far more impact on the commissioners’ understanding of the human dimension of their task than could any number of academic treatises.33 In the language of the Interim Report, While pleasure, curiosity, the desire to experiment, and even the sense of adventure, are dominant motivations in drug use, there is no doubt that a search for self-knowledge and selfintegration and for spiritual meanings are strong motivations with many.34 … [W]e are convinced that the vast majority [of drug users] fall within the normal range of psychological functioning.35 As noted earlier, the commission urged the elimination of carceral penalties for all possessory offences. It also recommended the reduction of all other penal sanctions. In addition, it expressed grave doubts about the legal propriety of “writs of assistance,” unbridled entrapment

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techniques, and the use of reverse onus provisions in the prosecution of those charged with constructive trafficking.36 Predictably, the government’s response to the Interim Report was of an “under advisement” quality.37 The public response was equally predictable, divided between unqualified praise from those urging reform of Canada’s drug laws and strong condemnation by those who favoured maintaining the status quo.38 Far less predictably, the Interim Report became something of a bestseller. Public demand caused Information Canada to reprint the Report several times between 1970 and 1973. And Penguin Books purchased the international rights and published the Interim Report in a number of countries in 1971.39 The commission had already embarked on a far-ranging research program by the time the Interim Report was released. Dr Ralph D. Miller, the inquiry’s respected research director, oversaw scores of studies and projects performed by commission staff or on behalf of the commission by more than a hundred contract researchers in areas bearing on the effects of drugs, their chemistry and botany, their sources and distribution, the extent and patterns of use, causal and motivational factors, law and law enforcement, and treatment and education.40 By way of example, the commission’s research program included experiments at an abandoned airport on the impact of marijuana smoking on driving, clinical studies of the effects of drugs on avian populations, qualitative assessments of drug education programs, the portrayal of drugs in the popular media, ride-alongs with drug enforcement officers in Vancouver, participant observation work in prisons in British Columbia and among drug-using enclaves in every major Canadian city, close reviews of opiate and opiatesubstitute treatment programs in California and the United Kingdom, examination of street clinics, helplines and other innovative intervention initiatives in Canada and elsewhere, and statistical analyses of the demography of drug use, related hospitalizations, conviction and sentencing patterns, and changes in public attitudes towards the nonmedical use of drugs. The commission amassed and synthesized a vast collection of literature on drug use. In addition, the commissioners and inquiry staff privately consulted with representatives of the major research, clinical, and treatment facilities across North America, bar and medical associations, the major Canadian police forces, informed academics, and many hundreds of global experts from related fields, ranging from biochemistry to corrections to rehabilitation.41

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The commissioners and senior staff held frequent meetings to monitor the research program and organize the content and drafting of the commission’s reports. Gerry routinely chaired these meetings, but he was careful to solicit the opinions of all those who attended. He divided his time and energy between his reduced law school duties in Toronto and the demands of the Ottawa-based inquiry, where he was the only commissioner to maintain a permanent office. He had a small executive staff that handled logistics and communications – particularly challenging tasks, given the absence of faxing technology, let alone email or the internet. Gerry enlisted three of his Osgoode Hall student proteges to conduct research projects under his close tutelage.42 Although far from “hands-on,” he also nurtured face-to-face relationships with the ever-growing inquiry research staff, popping into their offices for updates during his Ottawa sojourns. Indeed, Gerry came to the personal defence of staff members on more than one occasion.43 Senior staff members were consulted on recommendations in each report, but the commissioners rightly reserved to themselves the final negotiations, inevitable horse-trading, and ultimate policy decisions. The Interim Report was followed by two further intermediate volumes: a relatively thin report on treatment options, and a second and highly anticipated report on cannabis. Sensing some urgency and recognizing that the public debate focused largely on marijuana and hashish, the commission, rather than wait for its final report, released a freestanding, 400-page report titled Cannabis in May 1972. 44 Cannabis was undoubtedly the most thorough review of the subject undertaken anywhere to that date. The final recommendations almost exclusively addressed the appropriate regulatory regime, and here the commissioners strongly divided. Three, led by Gerry Le Dain, concluded that the criminal law penalties “are out of all proportion to the harm which could possibly be caused by cannabis.” There remained, however, “serious grounds for social concern about its use.” This, in the majority’s view, called for a continuing policy of discouragement, albeit one that restricted availability to adolescents in a manner more “acceptable on a balance of benefits and costs” than what then prevailed.45 The majority approach to the control of cannabis was informed by the principle that an assessment of “harm is the most useful criterion for policy.”46 “Harm” cut both ways – not only those attributable to cannabis consumption but, as well, those personal and social harms

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properly credited to the application of the criminal law. The internal debate, reflected in the Cannabis report, centred on the proper reach of the criminal law47 and the comparative wisdom of criminal prohibition versus administrative regulation of distribution and consumption. As put by the majority, “Because of the profits to be made in trafficking there is no point in attempting to control availability by education, propaganda or moral suasion. The law must be used in a coercive or regulatory manner.”48 The majority ultimately reasoned that the application of the “harm” test must be a practical one; we must weigh the potential for harm, individual and social, of the conduct in question against the harm, individual and social, which is caused by the application of the criminal law and ask ourselves whether, on balance the intervention is justified. Put another way, the use of the criminal law in any particular case should be justified on an evaluation and weighing of its benefits and costs. Generally speaking, the adverse effects for the individual of the criminal law process are such that it must be justified in each case by rational and convincing reasons of necessity, in relation to other available means of achieving the desired purpose.49 The majority’s recommendations on the social control of cannabis reflected, in the end, a middle ground or soft prohibitionism. A balancing of identified benefits and costs associated with the use of the criminal law favoured discouragement of the use of marijuana and hashish. The dissenting commissioners – Dean Campbell and Professor Bertrand – did not object to the majority’s analytical model, but each assigned different weight and value to various factors on each side of the equation. Accordingly, the regulatory regimes proposed by Campbell and Bertrand differed significantly (particularly that ­proposed by Bertrand) from the recommendations advanced by the Le Dain–led majority. The majority identified four “major grounds of social concern” about the consumption of cannabis: the “probably harmful” effect on adolescent maturation; the dangers associated with driving while cannabis-impaired; the “possibility” that long-term, heavy use “may” result in mental deterioration; and the risk that cannabis could serve as a gateway drug to experimentation with more pernicious substances.50 These concerns, the majority concluded, “justify a social

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policy designed to discourage the use of cannabis as much as possible, particularly among adolescents.”51 However, a nuanced balancing dictated an approach to the control of availability different from that applied to control of demand: “Whereas we believe that the criminal law prohibition against trafficking can have a significant impact upon availability, at least in comparison with administrative regulation, we believe that the prohibition against simple possession has a much less significant impact upon demand.”52 Further, there were palpable costs in using the criminal law to control the distribution and use of cannabis. As itemized by the majority, these costs included:53 • •

•

•

• •

•

• • •

The effect of a criminal conviction upon young lives; Encouraging the development of illicit markets, and the inevitable attraction of organized crime; Obliging consumers to engage with criminal elements to supply themselves with the drug; Exposing consumers to more dangerous drugs through their dealings with traffickers who handle a variety of illicit substances; Encouraging the development of deviant subcultures; Undermining the credibility of drug education, particularly information on more dangerous drugs; Using “extraordinary methods of enforcement,” including search powers, informants, and entrapment that “tend to bring the law and the police into some disrepute”; Creating disrespect for law and law enforcement generally; Diverting police resources from more important tasks; and Adversely affecting the morale of law enforcement authorities.

In the final balancing, the majority concluded that it did “not think that the marginal effect which a prohibition against simple possession may have on demand justifies the costs of applying it against thousands of young people,”54 whereas “the marginal effect which a [criminal] prohibition against distribution can have on availability justifies the costs of continuing to apply it” to trafficking-related offences.55 Accordingly, the majority recommended the complete “repeal of the prohibition against the simple possession of cannabis” and on cultivation for personal consumption.56 Trafficking offences were to remain, but made hybrid with reduced maximum penalties fixed at five years’ imprisonment (rather than the penalty of life imprisonment that then

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obtained) where the Crown proceeded by indictment, and only eighteen months where the Crown elected to proceed by summary conviction.57 Importing and exporting were to be included in the definition of trafficking, and the minimum punishment (then seven years imprisonment) was to be abolished.58 Further, the “giving” of small amounts of cannabis “without exchange of value” was to be excluded from the definition of trafficking.59 Dean Campbell expressed himself in “full agreement” with the majority recommendations but for two. As a nominal deterrent, he urged maintaining offences for the simple possession of cannabis and its cultivation for personal use, with a maximum penalty of a fine of $25 for a first offence and $100 for any subsequent offence.60 Professor Bertrand’s dissenting opinion was far more radical than that advanced by any of her colleagues. Cannabis, she recommended, should no longer be subject to the criminal law. Instead, governmentcontrolled distribution regimes, akin to those governing alcohol, should obtain. In her words,61 The federal government should immediately initiate discussions with the provincial governments to have the sale and use of cannabis placed under controls similar to those governing the sale and use of alcohol, including legal prohibition of unauthorized distribution and analogous age restrictions. Furthermore, this government-distributed cannabis should be marketed at a quality and price that would make the “black market” sale of the drug an impractical enterprise … All stages of the production and marketing of cannabis should be conducted by the federal and / or provincial governments. The public response to the Cannabis report mirrored the division that earlier greeted the Interim Report. And the government again remained circumspectly silent. However, in mid-1972 – a few months after the release of Cannabis – the sentencing provisions of the Criminal Code were amended to permit courts to sentence persons found guilty of a broad range of offences to an “absolute” or “conditional” “discharge” in lieu of entering convictions before imposing sentence.62 The amendment was not expressly directed at drug offenders. Nonetheless, those prosecuted for the simple possession of drugs, particularly cannabis, have been among the greatest beneficiaries of this penal reform.63

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The commission’s massive Final Report – some 1,148 pages – was released at the end of 1973. As in the preceding reports, the commission anchored its legal conclusions and recommendations on detailed, evidence-driven assessments of the harms prevented and caused through the application of the criminal law. Again the commissioners’ recommendations were not unanimous, the divisions paralleling those in the Interim Report. The Le Dain–led majority recommended a harm-based reclassification or rescheduling of drugs subject to abuse. It also recommended that Canada “gradually withdraw from the use of the criminal law against the non-medical user of drugs rather than extend its application.” Accordingly, possession of amphetamines was not to be made an offence, nor was a general offence of “use” to be created. Nonetheless, the majority thought the “relative seriousness” of their use and need to signal the potential for harm rendered it “prudent … at this time” to maintain the possessory offence for strong hallucinogens and for drugs such as cocaine and the opiate narcotics and, in the latter case, “as a necessary device of catchment and referral for treatment or management.”64 This represented something of a retreat or, as the majority expressed it, “a change in the view we expressed in our Interim Report – that there should be no imprisonment for the simple possession of any psychotropic drug.”65 The “treatment and management” rationale for maintenance of the possessory offence for opiate narcotics was tied to a further recommendation favouring “compulsory confinement” of an opiate dependent “for a short time to oblige [the person] to confront his situation and to consider … whether he desires to pursue one of the treatment or management options open to him.”66 The commission had devoted substantial energy and resources to the study of compulsory treatment programs in several foreign jurisdictions. There was considerable external pressure on the coercive management of opiate dependents and heated internal debates about the use of lengthy civil commitment in therapeutic settings.67 The Le Dain–led majority ultimately rejected this approach:68 “We are not in favour of introducing long periods of civil commitment. We do not believe that the results obtained elsewhere with this approach justify the extended deprivation of liberty in cases in which there has not been a criminal conviction.” Instead, the majority envisaged provincial legislation authorizing civil committal for medical examination for up to seventy-two hours. A diagnosis of opiate drug dependence could then result in judicially authorized confinement in a residential treatment facility for between

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one and a maximum of three months, during which the detoxified patient would be afforded an opportunity to commence therapy or methadone stabilization. Heroin maintenance was to be considered on an experimental and “last resort” basis only.69 Dean Campbell primarily dissented from the majority on the appropriate response to the use of opiate narcotics.70 Reflecting his concerns about the addictive properties of this class of drugs and what he viewed as the inevitably rapid growth in their consumption, he recommended the creation of an offence of “use” of opiate narcotics, along with new powers authorizing the police (not unlike in the case of impaired driving investigations) to compel suspected users to submit a sample of their urine, blood, or other bodily fluid for analysis. Stiff sentences would then follow (beginning at one year for non-dependent users and three for opiate dependents), followed by parole terms that included random opiates testing and, in the case of dependents, compulsory treatment or, if unavailing, indefinite methadone maintenance. Professor Bertrand “hastened to stress” that she entirely agreed with her colleagues’ commitment to reducing hard drug use in Canada. She departed from them on two major points. First, she continued to favour repeal of all offences of simple possession – the enforcement of which she viewed as a “futility.” And second, she opposed the “illusion” of compulsory treatment. Moving beyond the position she advanced in Cannabis, Bertrand proposed to shrink illicit narcotics markets, closely monitor consumption, and provide incentives for gradual withdrawal through the controlled, legalized sale of opiates at provincial or regional clinics.71

T h e L e D a in C o m m is si on’s Legacy Gerry Le Dain returned to the relative obscurity of his day job running Osgoode Hall Law School upon submitting the Final Report. Other than as a judge, he participated no further in drug policy reform. He well appreciated, as explained by Justice O’Connor several decades later, that72 “an inquiry commissioner should play no role in the implementation of the recommendations contained in the inquiry report. Implementation of a commission report is a matter for the political process. [O]nce a commissioner delivers a report, that should be the end of his or her involvement.” It is understandable, then, that Gerry Le Dain did nothing to defend let alone promote his commission’s recommendations. Still, it is not

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uncommon for the responsible minister to advise the legislature or the media that a reporting inquiry has made a valuable contribution, that his or her department is carefully studying its recommendations, and that appropriate implementation measures will soon be announced. The Le Dain Commission received no official condonation and certainly no public promise to translate its recommendations into law. This was unfortunate but hardly unexpected. More unexpected, perhaps, was the turgid pace and substantive modesty of the subsequent advances (if such they were) in the direction of Gerry Le Dain’s vision of a national drug policy grounded on a rational assessment of harm and selective and restrained reliance on the criminal law. Gauged by this standard, there were no legislative amendments of material value for more than forty years. A bill to transfer control of cannabis from the Narcotic Control Act (N C A ) to the Food and Drugs Act (F D A ) was introduced in Parliament 1974, the year after the Final Report was released. In essence a cosmetic measure, it withered and died on the order paper. Health and Welfare Canada did undertake some internal assessments of the Le Dain reports and its recommendations and contemplated legislative reform.73 No new legislation emerged until 1993, when a bill that did little more than consolidate the NCA , and the FDA was introduced. After a change of government and some minor amendments, it finally passed into law in May 1997 as the Controlled Drugs and Substances Act (CDSA ). Despite an increasingly rich storehouse of research bearing on the subject, the drafting of the CDSA , as noted by Dr Patricia Erickson, was “virtually untouched by the [evidence generated] by this professional activity and scholarly output.” 74 Erickson was then a senior scientist at the highly respected Addiction Research Foundation of Ontario (now part of the Centre for Addiction and Mental Health) and Canada’s leading sociologist of drug policy and dependence. She scathingly dismissed the CDSA as a75 “throwback to the 1920s, a revamped Narcotic Control Act, based on myths and preconceptions about illicit drugs and their evil, addictive effects on users, reinforcing the traditional policy of criminalization.” A bipartisan Senate Special Committee on Illegal Drugs was struck in 2001 to examine cannabis. Chaired by Senator Pierre-Claude Nolin, the committee conducted a thorough analysis of the policy considerations and the substantial research conducted since the Le Dain Commission. Released in 2002, the “Nolin Report” strongly reaffirmed the commission’s findings:76 “The [Le Dain] Commission concluded

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that the criminalization of cannabis had no scientific basis. Thirty years later, we confirm this conclusion and add that continued criminalization of cannabis remains unjustified based on scientific data on the danger it poses.” The Nolin Committee found that subsequent scientific research had largely put to rest the Le Dain Commission’s reservations about potential adverse effects attributable to cannabis. In line with the Le Dain Commission’s initiative, the committee recommended that Canada “adopt an integrated policy on the risks and harmful effects of psychoactive substances” that covered the entire spectrum, including medication, alcohol, tobacco, and illegal drugs. As regards cannabis in particular, it urged the licensed production and sale of cannabis to persons over sixteen years of age77 and, further, that an amnesty be declared for anyone ever convicted of possession of the drug.78 As did the commission’s Le Dain–led majority, the committee also recommended that cultivation of cannabis for personal use be exempted from criminal liability under the CDSA .79 The Nolin Report was met with the same official radio silence as greeted the Le Dain Commission’s Final Report some thirty years earlier. The subsequent decade was no kinder to either, at least as measured by legislative reform.80 Nonetheless, there were developments that signalled an eventual ascendance of reason, at least in the area of cannabis control. Some of this progress is directly attributable to a moral transformation of marijuana. Once equated with iniquity and dissolution, cannabis is now frequently defined as benign or even beneficial. There is, for example, increasing public recognition of the therapeutic utility of cannabis.81 Everyday cannabis products, such as hemp-based breakfast cereals, cosmetics, and clothing, have penetrated both the marketplace and the vernacular. Canada’s professional medical associations declined to participate in an anti-cannabis campaign funded by Health Canada in 2014.82 Soon after, the venerable Ontario Centre for Addiction and Mental Health issued a policy statement commending the legalization of cannabis, within a state-monopoly distribution system, as the “healthiest and most sensible way forward.”83 Reputable politicians and law enforcement officials soon joined a growing chorus of voices decrying prohibitionist drug policies and urging the legislative reform of cannabis control.84 Throughout, public attitudes favouring the eradication of criminal consequences for personal possession of cannabis have outpaced those of professional and institutional

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stakeholders.85 Set against this background, the Liberal Party’s 2015 campaign promise to legalize cannabis once elected was neither radical nor politically risky. As is so often the case in matters of social and cultural policy, related developments in the United States have proven harbingers of drug control reform in Canada. Referenda in Washington and Colorado effectively authorized state-licensed commercial distribution of ­marijuana in these two states in November 2012.86 By early 2018, possession of cannabis was “legal” in nine states (including fortymillion-strong California) and the District of Columbia and “decriminalized” in a further thirteen states. An additional sixteen states permit prescriptions of varying amounts of cannabis for medical use.87 These legislative amendments are consistent with changing public attitudes towards cannabis. As tracked by the reputable Pew Research Center over the past half-century, the percentage of Americans favouring the legalization of marijuana increased from 12 per cent in 1969 (the year the Le Dain Commission was struck), to 31 per cent in 2000, to 61 per cent in 2018.88 The Cannabis Act (Bill C-45) was passed by the House of Commons in November 2017, with the federal government planning the legal marketing of cannabis under provincial government aegis in 2018. In essence, the federal government will assume responsibility for regulating cannabis production, while the provinces and territories will regulate the drug’s distribution and sale, subject to baseline federal conditions. The most significant boundaries of the regulatory regime (such as the minimum age of consumers, the authorized range of cannabis products, and the quantitative limits of lawful possession) are prescribed by the Act. Within these parameters, the implementation of the model has been left to the provinces’ latitude. Some, like Ontario, initially proposed to market cannabis under government monopoly.89 Others, such as British Columbia, Alberta, and Saskatchewan, envisage private retailers operating under government regulation or in hybrid arrangements with provincial authorities.90 The governments’ shared intention is to market cannabis products at a price point that eliminates both black and grey markets. Public health and safety considerations are part of the initiative, including extensive amendments to the Criminal Code to address the risks associated with an anticipated uptick in drug-impaired driving under a legal marketing regime.91 Were he alive, Gerry Le Dain would undoubtedly have a few droll words to say about the government’s dilatory response to the

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recommendations of his commission. He would, however, be unforgiving about the personal costs attendant on the delay. Several hundred thousand Canadians have been burdened with criminal records for simple possession of cannabis in the decades between his proposal to decriminalize the possessory offence and passage of the Cannabis Act. While a general amnesty or pardon, if realized, may afford a measure of relief, nothing will undo the personal and social damage wrought by the years of failure to heed Le Dain’s sage advice.

C o n c l u s ion The history of the criminalization of drugs in Canada unsettles conventional expectations respecting the relationship between law and morality. I first addressed this issue nearly forty years ago:92 “Canadian narcotics control is not the product of conflicting interests. Nor does it represent a translation of public morality into legal norms. It is rather those legal norms that fostered the public morality, that were largely responsible for the moral transformation of a private indulgence into a public crime. In time, through the efforts of zealous reformers and enforcers and the paucity of organized or influential opposition, the public came to share that drug ideology that motivated the initial anti-drug crusaders.” The work of the Le Dain Commission served as an authoritative corrective to conventional wisdom about psychoactive drugs. Gerry had no political agenda when he assumed the chair of the commission. He was, by professional leaning and personal disposition, fundamentally conservative. He was most certainly not a crusader for any radical cause. Nonetheless, and like the jurist he soon became, he was prepared to let the evidence, marinated in common sense, inform the results: his appreciation of the phenomenon and the recommendations that followed. I strongly suspect that the data collected by the commission did not conform to Gerry’s expectations going in. I have even less doubt that he suffered angst about releasing reports that challenged much of what Parliament, the government, the law, medical authority, the police establishment, and a half-century of settled wisdom collectively endorsed. And it is just possible he pulled his punches, striving to forge that consensus that would help legitimate the patently unorthodox nature of the commission majority’s proposals. Gerry understood that the war against drugs was really a war against people – many of them barely past childhood: not old enough to vote but

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old enough to go to jail. He could not silently condone this war or the collateral damage it caused. It’s been more than ninety years since marijuana and hashish were first subject to criminal prohibition. The Le Dain Commission’s Cannabis reports and recommendations dropped midway through the first century of Canadian drug prohibition. Gerry’s work, and that of his co-commissioners, contributed to the moral redefinition of drugs generally and cannabis in particular. It has taken close to another half-century for the moral centre to shift to the point where the criminalization of cannabis has been effectively de-legitimated. Well before the recent legislative initiatives, the laws prohibiting cannabis possession were met with widespread disobedience and a mix of derision and contempt. Gerry’s good sense respecting cannabis has been vindicated, as will, if over a longer horizon, his recognition that the very real problems associated with dependence on “hard” drugs are better approached as matters of health, rather than criminal, policy.93

P o s t s c r i pt Other than attending a seminar devoted to a historical appreciation of the Le Dain Commission’s work at the Learned Societies Congress at Brock University in 1996, Gerry almost never spoke in public of his inquiry days or the commission’s recommendations.94 However, some of the most significant opinions he authored in the Supreme Court echo the legal sensibilities and values he brought to his work as commissioner. The Court’s judgments in R v Therens95 (in which Gerry wrote the still-seminal judicial opinion on the meaning of “detention”) and Cardinal v Director of Kent Institution96 (which he authored for the Court) both vigorously protect the constitutionally enshrined value of personal “liberty” and circumscribe its restraint by the state. Both decisions also demonstrate a consistency of principle with the commission majority’s refusal to endorse the lengthy civil confinement of drug-dependent persons for therapeutic purposes. R v Smith97 is even more directly resonant of Gerry’s inquiry days. In Smith, Gerry authored one of the four opinions that, together, invalidated the mandatory minimum penalty of seven years’ imprisonment for importing or exporting any of the drugs prohibited by the Narcotic Control Act. Reflecting his inherent conservatism, Gerry struggled with the breadth and impact of this ruling. In the end, however, he joined all but one of his colleagues in reversing Parliament’s

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will. As he concluded his concurring reasons,98 “Imprisonment for seven years for the unauthorized importation or exportation of a small quantity of cannabis for personal use would be cruel and unusual punishment within the meaning of s. 12 of the Charter and for this reason the words ‘but not less than seven years’ in s. 5(2) of the Narcotic Control Act must be held to be of no force or effect.” Smith remained for twenty-eight years the high-water mark in Charter s 12 jurisprudence.99 At a more personal level, it afforded Gerry Le Dain a rare opportunity to help close at least one door left ajar by his commission of inquiry.

n otes   1 Bob Dylan, “Ballad of a Thin Man,” Highway 61 Revisited, Warner Bros, 1965.   2 Mezz Mezzrow, “Drug Busts,” in Farewell to the 70s, ed. Ann Porter and Marjorie Harris (Don Mills, ON : Thomas Nelson and Sons, 1979), 134–8. Commenting on the decision to institute a public inquiry on a controversial policy question, Gerald Le Dain, midway through his own inquiry, wryly observed, “A common explanation is that [the government] wishes to defer action.” He then presciently cautioned, “Public inquiry is not necessarily a safe instrument if the object is to tranquilize public opinion. It can precipitate issues and create public expectations”: Gerald Le Dain, “The Role of the Public Inquiry in Our Constitutional System,” in Law and Social Change, ed. Jacob S. Ziegel (Toronto: Osgoode Hall Law School, York University, 1973), 81.   3 My impressions of the conduct of public inquiries are informed by a fair degree of personal immersion. Many years, and a law degree, after rising to the lofty heights of “research associate” with the federally appointed Le Dain Commission of Inquiry, I served as senior co-counsel to Justice Horace Krever during his Commission of Inquiry into the Blood System in Canada, and later, as counsel for the Association in Defence of the Wrongly Convicted (AI DW YC) before three provincially constituted commissions: the Ontario “Morin Inquiry” (Commission on Proceedings Involving Guy Paul Morin), the Manitoba “Sophonow Inquiry” (Inquiry regarding Thomas Sophonow), and the Newfoundland and Labrador “Lamer Inquiry” (Commission of Inquiry into the Deaths of Catherine Carroll and Brenda Young and the Circumstances Surrounding the Resulting Criminal Proceedings Commenced against Gregory Parsons and Randy Druken and Ronald Dalton, and Any Related Systemic Issues).

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Later still, I represented the Canadian Arab Federation before the federally appointed Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the “Arar Inquiry”).   4 Dennis R. O’Connor and Freya Kristjanson, “Some Observations on Public Inquiries” (paper for the Canadian Institute for the Administration of Justice, 10 October 2007), http://www.ontariocourts.on.ca/coa/en/ps/ speeches/publicinquiries.htm. Gerald Le Dain’s own classification of public inquiries (Le Dain, “Role of the Public Inquiry,” 79) is fundamentally the same: there are “two broad classes of inquiry: the inquiry to recommend legislative policy, and the inquiry to investigate conduct.”   5 The distinction between fact-finding and policy-focused inquiries is not as tidy as this analysis might suggest. Commissions of inquiry into the reasons for public disasters or scandals inevitably address policy considerations arising from their inquiries, as well as identifying the causes of the misfortune and the persons or institutions, if warranted, whose conduct contributed to the tragic or politically embarrassing outcomes. The “Arar Inquiry,” the “Walkerton Inquiry” into the contamination of the drinking water supply in Walkerton, Ontario, and the Commission of Inquiry on the Blood System in Canada (the “Krever Inquiry”) are three relatively recent examples of a conspicuously hybrid agenda.   6 Gerald Le Dain too was born, raised, and educated primarily in Quebec, where he also practised and taught law before moving to Osgoode Hall Law School, Toronto, in 1967.   7 Professor Bertrand replaced Professor André Lussier, who resigned in late June 1969.  8 Final Report of the Commission of Inquiry into the Non-Medical Use of Drugs (Ottawa: Information Canada, 1973), 140.   9 Addressing the matter of his appointment, Le Dain later observed, “I may not have known anything about drugs, but I knew a little about the constitution.” Le Dain, “Role of the Public Inquiry,” 81. 10 I once made the mistake of describing as “tendentious” a portion of a ­policy draft Gerry had distributed to senior commission staff, including myself, for comment. “Tendentious,” I learned over the course of a stern half-hour lecture in his office, was not the best word to have used in critiquing the writing of a law school dean who rightly prided himself on his scrupulous neutrality and fairness. 11 In Le Dain’s own and characteristically balanced words, “There are, of course, dangers in insufficient delegation, but the dangers of over-­ delegation are also very great.” Le Dain, “Role of the Public Inquiry,” 85.

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12 As said in the Interim Report of the Commission of Inquiry into the NonMedical Use of Drugs (Ottawa: Information Canada, 1970), 234: “It would be idle to seek recommendations for governmental action if a consideration of law were to be excluded.” 13 As discussed in more detail below, punishment for offences involving the trafficking in any “narcotic,” including cannabis, extended to life imprisonment, and importation of any amount of these drugs carried a minimum penalty of seven years’ imprisonment. 14 The expression “war on drugs” dates to the rhetoric of the Richard Nixon era in the late 1960s. A formal “declaration’” of a “war on drugs” was first made by United States President Ronald Reagan in 1986. Not incidentally, the so-called war on drugs has proven, in practice if not design, a war on persons of colour, particularly in the United States. See, for example, Kenneth B. Nunn, “Race, Crime and the Pool of Surplus Criminality: Or Why the ‘War on Drugs’ was a ‘War on Blacks,’” Journal of Gender, Race, and Justice 6 (2002): 381; Marc Mauer, “The Changing Racial Dynamics of the War on Drugs,” Sentencing Project, Washington, DC , 2009, http://www.sentencingproject.org/doc/dp_raceanddrugs.pdf; Jamie Fellner, “Race, Drugs, and Law Enforcement in the United States,” Stanford Law and Policy Review 20 (2009): 257; American Civil Liberties Union, The War on Marijuana in Black and White (New York: A C LU, New York, 2013), https://www.aclu.org/report/report-war-marijuanablack-and-white. The Canadian experience has been much the same. As noted in the Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (Toronto: Queen’s Printer, 1995), 69, “Over the six-year period from 1986 / 87 to 1992 / 93 … Black admissions to prisons serving the Metro Toronto area for drug trafficking / importing charges increased by several thousand percent [while white admissions to the same prisons for drug trafficking / importing also increased] … but nowhere near as much as the growth in black admissions.” For a helpful discussion, see Scot Wortley and Julian Tanner, “Discrimination or ‘Good” Policing’? The Racial Profiling Debate in Canada,” Our Diverse Cities 1 (2004): 197. 15 Interim Report, 242. 16 Interim Report. In lieu thereof, the commission recommended a maximum fine of $100, recoverable only by civil proceedings – rather than incarceration – in the case of default. In a concise “Disagreement,” Professor Bertrand, at 258, dissented from this single Interim Report recommendation. With respect to cannabis alone, she urged, instead, that “the prohibition against [simple] possession … be removed altogether.”

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17 Interim Report, 173. By way of illustration, the commission noted that “in 1922 when the law was amended to provide for mandatory depor­ tation of ­convicted aliens, two members of the House of Commons expressed the hope that such deportation would help ‘to solve the oriental question in this country.’” See also Robert Solomon and Thomas Madison, “The Evolution of Non-Medical Opiate Use in Canada – Part I: 1870– 1929,” Drug Forum 5 (1976–7): 237. In reference to the early history of Canadian anti-drug legislation, the authors noted, at 247, “It is most ironic that this series of events was blessed with the justification of preserving Christian morality.” 18 “Police Magistrate and Judge of the Juvenile Court, Edmonton, Canada,” as she self-identified. Murphy was also one of the five women who, in 1927, launched the justly celebrated “Persons Case,” arguing that women were indeed “persons” under the British North America Act and, thereby, eligible to serve in the Canadian Senate. Initially rebuffed by the Supreme Court of Canada, the Privy Council (then Canada’s final court of appeal) granted the petition in 1929, famously holding “that the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word ‘person’ should include females, the obvious answer is, why should it not?”: Edwards et al v Canada (AG ), [1930] AC 124 (PC). 19 Emily F. Murphy, The Black Candle (Toronto: Coles, 1973), facsimile ed., with “Introduction” by Brian Anthony and Robert Solomon; originally published by Thomas Allen, 1922. 20 As Murphy wrote of her own motivation, “Indeed, it may be stated without fear of error that the lack of public sentiment is chief reason for the halting gait of the law on its way to enforcement.” Black Candle, 369. 21 Whipping was added to the range of penalties for trafficking to minors as part of a raft of denunciatory amendments introduced in 1922. This provision was later repealed. 22 Murphy, Black Candle, 65. 23 Ibid., 393. 24 Ibid., 188. 25 “There is a well-defined propaganda among the aliens of color to bring about the degeneration of the white race.” Murphy, Black Candle, 186. See generally, Robert Solomon and Melvyn Green, “The First Century: The History of Non-Medical Opiate Use and Control Policies in Canada, 1870–1970,” University of Western Ontario Law Review 20 (1982): 307; Melvyn Green, “A History of Canadian Narcotics Control: The Formative Years,” University of Toronto Faculty of Law Review 37

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(1979): 42, esp. 52–5; and Green, “The First Lady of Reefer Madness,” Walrus 14, no. 1 (2017): 36. Murphy’s patent racism is excused by some apologists as a “product of her times,” a characterization that is either naive or disingenuous. In fact, Murphy was much more author than artifact of her era. She did not just sign on to social reform issues; she often championed them, including eugenics and, more specifically, the coerced sterilization of “mental defectives” as realized in Alberta’s Sexual Sterilization Act of 1928. Nor can her racial prejudice be fairly described as culturally inevitable. Helen Gregory MacGill, for example, was Canada’s third female jurist and Murphy’s contemporary. Like Murphy, she was a popular national journalist and ardent feminist committed to protecting women from the risks of workplace exploitation. Unlike Murphy, MacGill expressly repudiated appeals to racial bigotry in pursuit of the campaign for women’s rights. See E.M. MacGill, My Mother the Judge: A Biography of Judge Helen Gregory MacGill (Toronto: Ryerson, 1955). 26 Murphy quoted the chief of the newly formed Narcotic Division of the Federal Health Department: “Unless the people of every municipality are prepared to demand strict enforcement of these [anti-drug] laws … we cannot hope to stamp out this very great evil in Canada, no matter how ready or willing the police are to accomplish these ends.” Black Candle, 370. 27 Ibid., 1. 28 Ibid., 332–3. Although not noted by Murphy, Jones’s tenure as chief of the Los Angeles police lasted less than six months. 29 Report of the Indian Hemp Drugs Commission, 1894–1895, NLS: National Library of Scotland, http://digital.nls.uk/indiapapers/browse/ pageturner.cfm?id=74908458. 30 In 1997, the Narcotic Control Act and the Food and Drugs Act were effectively amalgamated and replaced by the Controlled Drugs and Substances Act (CDSA ). But for the fate of cannabis products under Bill C-45 (the Cannabis Act, 2018), the CDSA still regulates the possession, manufacture, distribution, import, and export of all psychotropic drugs. 31 This approach was later emulated in the public information-gathering phases of the “Berger Inquiry,” the “Krever Inquiry,” and the Truth and Reconciliation Commission, and currently in the work of the National Inquiry into Missing and Murdered Indigenous Women and Girls. 32 Interim Report, 6. 33 In a lecture following the release of the Interim Report, Le Dain noted, “These hearings made a deep impression on us. At times they were very moving.” Le Dain, “Role of the Public Inquiry,” 84.

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34 Ibid., 157. 35 Ibid., 222. 36 Each of these statutory and investigatory prerogatives was found constitutionally wanting after the advent of the Charter: R v Noble (1984), 16 C C C (3d) 146 (Ont CA); Amato v R, [1982] SC R 418; and R v Mack, [1987] 2 S CR 903, esp. at paras 74ff; R v Oakes, [1986] 1 SC R 103. 37 Media reports spoke of a schism in Cabinet over the recommendations. See, for example, “Le Dain Report on Drugs Divides Cabinet,” C B C Digital Archives, 21 June 1970, www.cbc.ca/archives/entry/ ledain-report-on-drugs-divides-cabinet. 38 Adoption of the commission’s legal recommendations was then described as “tantamount to legalizing ignorance” by the Canadian Medical Association and as inviting “another thalidomide disaster” by the Council on Drug Abuse: Diana Zlomislic, “Up in Smoke,” Toronto Star, 7 April 2013, https://www.pressreader.com/canada/toronto-star/20130407/ 282213713290586. 39 Commercial publication of government-issued reports is a rare occurrence. One notorious example involves an unauthorized, graphically “illustrated” edition of the 1970 US Presidential Report of the Commission on Obscenity and Pornography. The publishers of this détournement – “replete with the sort of photographs the commission examined” – were later convicted of, and imprisoned for, obscenity offences arising from its distribution. See Gay Talese, Thy Neighbor’s Wife (New York: Doubleday, 1981), 459. 40 The commission’s terms of reference broadly referred to the “non-medical use of drugs.” Although not likely contemplated by those who drafted this language, Dr Miller persuaded the commissioners that a thorough survey of Canadian non-medical drug use could not exclude tobacco (which was canvassed in the Final Report) and alcohol (which was addressed in both the Interim and Final Reports). Objectively assessed, the personal and collective harms associated with alcohol and tobacco made patent the moral hypocrisy attending the approach taken to the social control of all other drugs and the cultural construction of recreational drug use generally. Citing an internationally respected authority, in its Final Report, 389, the commission concluded, “Alcoholism is a more significant problem than all other forms of drug abuse combined.” Dr Miller said much the same in a retrospective interview: “When you look at the alcohol and drug research, it makes everything else [look like] a bad joke.” “Marijuana Studies under Trudeau Shelved before Results Analyzed,” Toronto Star, 12 April 2013, https://www.thestar.com/news/canada/2013/04/08/­governments_research_ on_marijuanas_effects_done_long_ago.html.

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41 One of the more unusual consultations was with John Lennon and Yoko Ono on a private railway car in Montreal before their celebrated “Bed-In for Peace” at the Queen Elizabeth Hotel in 1969. Lennon and Ono’s take-away message was, in short: yes to marijuana, no to war. At one point, Lennon urged his visitors to recognize that the commission’s mandate “is the opportunity for Canada to lead the world.” A seventy-sixpage transcript of an audio recording of the interview was released in 2002: “The Private Testimony of John Lennon,” 22 December 1969, Health Canada, http://beatles.ncf.ca/ocrledain.html. Although not recorded, there were similar meetings with other rock celebrities, including Grace Slick of the Jefferson Airplane and members of the Grateful Dead and Led Zeppelin. 42 One, Robert Solomon, has been a distinguished member of the Faculty of Law at Western University for the past forty years. Reflective of his commission of inquiry experience, he is an internationally respected scholar on drug and, especially, alcohol policy. 43 Soon after the commission’s establishment, Gerry arranged a protocol with the Royal Canadian Mounted Police whereby he was to be promptly informed of any criminal inquiry implicating a member of his staff. His appropriate concern was the preservation of the integrity of the commission. There may be others, but I know of at least two incidents where criminal cannabis investigations involving inquiry personnel were brought to Gerry’s attention. He privately met the targeted staff member, cautioned each of the inevitable consequences of any indiscretion, and assured – as he did the RCM P – that he would honour the presumption of innocence unless and until it was overcome in a court of law. Both investigations ended without any adverse findings against the commission employee. 44 Cannabis: A Report of the Commission of Inquiry into the Non-Medical Use of Drugs (Ottawa: Information Canada, 1972). 45 Ibid., 301. 46 Ibid., 265. 47 Almost inevitably, the majority canvassed and endeavoured to reconcile the contributions of a number of leading legal philosophers, including John Stuart Mill, Lord Devlin, and H.L.A. Hart. Its focus on harm as the arbiter of social policy also anticipated a recurrent if intermittent judicial conversation on the role of harm in the criminalization of moral fault: see, for example, R v Malmo-Levine; R v Caine, [2003] 3 SC R 571; and R v Labaye, [2005] 3 S CR 728. 48 Cannabis, 274. 49 Ibid., 282–3.

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50 Ibid., 274. 51 Ibid. 52 Ibid., 288. 53 Ibid., 292–8. 54 Ibid., 299. 55 Ibid., 300. Left unreconciled in the majority’s scheme was the core contradiction between an anticipated rising demand for cannabis and the unavailability of any lawful sources of procurement. Professor Bertrand’s minority view, discussed below, avoided this internal incoherence. 56 Cannabis, 302. 57 Under the Controlled Drug and Substances Act, the maximum penalty for trafficking in three or more kilograms of cannabis remained life imprisonment (ss 5(3)(a) and (4)) until the legislative reforms of 2018. 58 The minimum penalty for importation was struck down by the Supreme Court of Canada in R v Smith, [1987] 1 SC R 1045, at para 97, in 1987. 59 The definition of “traffic” in the Controlled Drug and Substances Act includes “give” (s 2(1)), rendering the passing of a single joint between marijuana users a criminal offence subject to imprisonment for up to five years less a day under that Act: s 5(4). 60 Cannabis, 315. 61 Ibid., 310. Bertrand’s proposal for the regulation of cannabis closely resembles the model of commercial distribution set out in the federal government’s Cannabis Act (Bill C-45), as passed by the House of Commons on 27 November 2017. 62 There are two primary legal differences between the two dispositions. First, a conditional discharge includes a period of probation, with the risk of penal liability for any breaches of an accompanying condition. And second, the eligibility period for a pardon (styled a “record suspension” since 2012) does not commence until the completion of the probationary period. One significant practical difference is that a conditional discharge, by virtue of its attendant term of probation, sometimes proves an impediment to travel to the United States. Either disposition permits an offender without other criminal record to answer “no” to the question, “Have you ever been convicted of a criminal offence?” 63 More than three-quarters of the 55,000 persons prosecuted for cannabisrelated offences in Canada in 2016 were charged with simple possession of the drug: Department of Justice, “Cannabis Crime Statistics in Canada, 2016,” July 2017 (modified 27 September). See also, Adam Cotter, Jacob Greenland, and Maisie Karam, “Drug-Related Offences in Canada, 2013,” Juristat, Statistics Canada, catalogue no. 85-002-x (release date: 25 June

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2015); and Sylvain Tremblay, “Illicit Drugs and Crime in Canada,” Juristat, Statistics Canada – catalogue no. 85-002-XIE, vol. 19, no. 1. 64 Final Report, 129–33. 65 Ibid., 133; emphasis in original. 66 Ibid., 135–6. 67 In Schneider v R, [1982] 2 S CR 112, at 119, the Supreme Court of Canada relied, in part, on the Final Report’s analysis of the constitutional vires of provincial compulsory treatment programs to conclude, at 140, that British Columbia’s Heroin Treatment Act, SB C 1978, c 24, was “in pith and substance legislation in relation to health in the province and as such intra vires the provincial legislature in its entirety.” The majority opinion, rendered the same year as the Charter’s proclamation, immediately noted that “the Canadian Charter of Rights and Freedoms was not raised as an issue, nor argued in this Court or in the courts of British Columbia.” 68 Final Report, 135–6. 69 Ibid., 136 and 170. 70 Ibid., 254–73. 71 Ibid., 241–53. 72 O’Connor and Kristjanson, “Some Observations on Public Inquiries.” 73 Professor Robert Solomon and I were retained by the Health Protection Branch of the Department of National Health and Welfare to draft a “Cannabis Control Policy” discussion paper in 1978. We reported in 1979 and were later advised, if sotto voce, that at least one of our models for legislative reform was carried as far as the Privy Council, from whence it never emerged. Other proposals for drug control amendments may well have followed. If so, they remain buried in departmental archives. 74 Patricia G. Erickson, “Neglected and Rejected: A Case Study of the Impact of Social Research on Canadian Drug Policy,” Canadian Journal of Sociology 23 (1998): 263. 75 Erickson, “Neglected and Rejected.” See also Benedikt Fischer, Patricia Erickson, and Robert Smart, “The New Canadian Drug Law: One Step Forward, Two Steps Back,” International Journal of Drug Policy 7 (1996): 172. 76 Senate: Special Committee on Illegal Drugs, Cannabis: Summary Report, September 2002, 35. 77 Ibid., 46. The Nolin Committee’s recommendations were patently much closer to those advanced by Professor Bertrand than those of the rest of the Le Dain Commission. The committee also suggested that cigarette manufacturers be excluded from the licensed trade in cannabis products.

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78 Senate, Cannabis. 79 Ibid., 53. 80 Indeed, amendments to the Controlled Drug and Substances Act in 2012 eliminated the availability of conditional sentences (that is, sentences of imprisonment that are served in the community under strict conditions, typically including a period of house arrest) for certain classes of drug trafficking offenders. These amendments also introduced minimum sentences of imprisonment for persons convicted of cultivating six or more marijuana plants and for trafficking offenders who had been convicted of a related offence within the previous ten years or otherwise attracted any of an inventory of other aggravating factors. It is almost certain that the members of the Le Dain Commission and the Nolin Committee would view the cannabis control regime under the amended Controlled Drug and Substances Act as misguided, if not perverse. Numerous federally appointed courts have effectively come to the same conclusion, if for constitutional reasons. See, for example, R v Vu, 2015 ONSC 5834 (and see R v Vu, 2015 ON S C 7965); R v Boulton, 2016 ONSC 2979; R v Pham, 2016 ON S C 5312; R v Tran, 2017 ONSC 651; R v Elliott, 2017 B C CA 214; R v Serov, 2017 BCCA 456; R v McGee, 2017 B C C A 457; R v Duffus, 2017 ON S C 231; R v Williams, 2017 ONC J 666; R v Lloyd, [2016] 1 S CR 130. 81 As a result of constitutional challenges (see esp., R v Parker (2000), 146 C C C (3d) 193 (Ont. CA)), the regulations under the Controlled Drug and Substances Act were amended to permit prescriptions for and licensed cultivation of marijuana for medically appropriate conditions. See Marihuana Medical Access Regulations, S OR / 2001-227 and Marihuana for Medical Purposes Regulations, S OR / 2013-119. In 2001, when the first such regulations came into effect, approximately 250 persons held medical exemptions permitting them to possess marihuana. By the end of 2013, almost 40,000 Canadians were authorized to possess marihuana for medical purposes under the regulatory regime. See Robert Solomon and Michael Clarizio, “The Highs and Lows of Medical Marijuana Regulation in Canada,” Criminal Law Quarterly 62 (2015): 536. See also Nola M. Ries, “Prescribe with Caution: The Response of Canada’s Medical Regulatory Authorities to the Therapeutic Use of Cannabis,” McGill Journal of Law and Health 9, no. 2 (2016): 215. 82 “Doctors Decline to Join ‘Political Football’ in Heath Canada’s Anti-Drug Ads,” C TV News, 16 August 2014, https://www.ctvnews.ca/­politics/ doctors-decline-to-join-political-football-in-health-canada-s-anti-drugads-1.1962682.

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83 “Cannabis Policy Framework,” Centre for Addiction and Mental Health, 2014, 16, http://www.camh.ca/en/hospital/about_camh/influencing_ public_policy/Documents/CAMHCannabisPolicyFramework.pdf. 84 A “Stop the Violence BC” coalition has garnered uniform support from both former British Columbia provincial attorneys general and Vancouver mayors. Their shared rationale for a legalization strategy was a predicted eradication of the violence associated with the massive black market arising from the criminalization of cannabis. As was the case with alcohol “prohibition,” the legalization of cannabis, they argued, will eliminate the internecine or inter-gang criminal enterprise that generates the ancillary violence. See, for example, Sam Sullivan, Mike Harcourt, Larry Campbell, and Phillip Owen, “Stop the Violence BC,” 23 November 2011, http:// stoptheviolencebc.org/2012/02/07/­former-attorneys-general-endorse-stopthe-violence-bc/; http://­stoptheviolencebc.org/2011/11/22/ letter-from-former-mayors/. 85 Approximately two-thirds of the respondents polled by the Angus Reid Institute in April 2016 and 2017 favoured legalization of marijuana, as compared with 59 per cent in 2014, 47 per cent in 2001, and only 26 per cent in 1975: “Despite Majority Support to Legalize Pot, Nearly Half of Canadians Want to Delay July 1 Implementation Date,” Angus Reid Institute, http://angusreid.org/marijuana-timeline-provincial/. See also, “Two-Thirds of Canadians Support Legalizing Marijuana,” Ekos Politics, http://www.ekospolitics.com/index.php/2015/11/two-thirds-of-canadianssupport-legalizing-marijuana/. 86 Bob Giles, “Washington and Colorado as Precedent for Cannabis Legalization,” PRI , 29 December 2012, https://www.pri.org/­stories/2012-12-29/ washington-and-colorado-precedent-cannabis-legalization. 87 “Legality of Cannabis by U.S Jurisdiction,” Wikipedia, 23 January 2018, htts://en.wikipedia.org/wiki/Legality_of_cannabis_by_U.S._­jurisdiction. “Marijuana Legalized for Fun in 4 More States and Medicine in 4 Others,” Governing, 9 November 2016, http://www.governing.com/topics/ elections/gov-medical-recreational-marijuana-2016-state-ballot-measures. html. 88 Abigail Geiger, “About Six-in-Ten Americans Support Marijuana Legalization,” Pew Research Centre, 5 January 2018, http://www.pewresearch.org/ fact-tank/2018/01/05/americans-support-marijuana-legalization/. 89 See “Ontario Releases Safe and Sensible Framework to Manage Federal Legalization of Cannabis,” Ministry of the Attorney General, 8 September 2017, https://news.ontario.ca/mag/en/2017/09/ontario-releases-safe-andsensible-framework-to-manage-federal-legalization-of-cannabis.html;

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“Ontario’s Cannabis Retail and Distribution Model,” Ministry of Finance, 8 September 2017, https://news.ontario.ca/mof/en/2017/09/ontarioscannabis-retail-and-distribution-model.html. 90 See “How the Provinces Are Planning for Pot Legalization,” C B C news, 16 November 2017, http://www.cbc.ca/news/canada/ province-pot-marijuana-legal-1.4405084. 91 “Questions and Answers: Proposed Legislation to Amend the Criminal Code: Impaired Driving,” Department of Justice, 21 November 2017, http://www.justice.gc.ca/eng/csj-sjc/pl/sidl-rlcfa/qa-qr.html. 92 Green, “Formative Years,” 78. See also Troy Duster, The Legislation of Morality: Law, Drugs and Moral Judgment (New York: Free Press, 1970), at 5: “Clearly, if we want to understand the ongoing relationship between law and morality, we are misled by assuming one has some fixed relationship with the other.” 93 For one signal of judicial condonation of Le Dain’s recommended approach, see Canada (AG ) v PHS Community Services Society, [2011] 3 S C R 134, esp. at para 152. 94 Some of Le Dain’s Commission colleagues were less reticent. Two – Dr Lehmann and Professor Bertrand – testified for the defence in R v Clay (1997), 9 CR (5th) 349 (OCJ (G D)), in which the cannabis possession ­provisions of the Narcotic Control Act were challenged as violative of Charter s 7 protections. A majority of the Supreme Court ultimately concluded that Parliament’s prohibition of cannabis possession “complied with the [Charter s 7] principles of fundamental justice”: [2003] 3 SC R 735, para. 3. 95 [1985] 1 S CR 613. 96 [1985] 2 S CR 643. 97 [1987] 1 S CR 1045. 98 R v Smith, para 122. 99 Until R v Nur, [2015] 1 S CR 773, Smith was the only case in which the Supreme Court struck down a legislative provision for violating the Charter’s protection against cruel or unusual punishment.

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8 Pleading Public Law Issues in the Barfried Enterprises Case Gerald E. Le Dain

How I got into the practice of constitutional law is an illustration of the role that luck and the timely support of friends often play in one’s career. I remember Gérald Fauteux, who taught us criminal procedure, saying to us one day (it’s all I remember from his course), “Let circumstances play their role.” How wise that was. In other words, do not get too fixated on a specific career goal, but flow with the current and be alert to fortuitous opportunity. How I got into the practice of constitutional law was one of those pieces of pure luck and timely support. My first constitutional case in the Supreme Court of Canada was Attorney General for Ontario v Barfried Enterprises Ltd, which involved the constitutional validity of the Ontario Unconscionable Transactions Relief Act, under which a debtor could apply for judicial relief from an oppressive rate of interest on a loan. The effect of a favourable judicial decision under the Act would be to reduce the rate of interest. The Ontario Court of Appeal held that the Act was invalid as being in relation to the regulation of interest, a matter within exclusive federal legislative jurisdiction. Because the Lesage government had given first reading to a piece of similar legislation, Louis-Philippe Pigeon, who was then the legal advisor to the government, recommended to Georges Lapalme, then the attorney general of the province, that the province intervene in the appeal to the Supreme Court to support the validity of the Ontario legislation. Lapalme had got to know me because I was the partner of his close

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friend, Maurice Riel, and because I had written some political speeches in English for him during the 1962 provincial election campaign on the expropriation of the power companies that became Hydro Quebec. When Pigeon asked Lapalme whom he wished to retain as counsel for the province in the Supreme Court, Lapalme is reported to have said, “Why not try Gerry Le Dain?,” to which Pigeon is reported to have replied, “What does he know about constitutional law?” - a very pertinent and fair question. At this, Lapalme is supposed to have said, “Let’s give him a chance.” As luck would have it, we won the case, and Louis-Philippe Pigeon, who became for me a kind of postgraduate teacher in the strategy and tactics of constitutional law and a very good friend, was reconciled to entrusting the constitutional cases of the province in the Supreme Court to me over the next three or four years. That experience was undoubtedly a turning point in my career. I loved every minute of it. I enjoyed the advocate’s side of the Supreme Court bar in the 1960s much more than I did the judge’s side in the 1980s. As an advocate I did not have to choose between two nicely balanced sides of a case; I only had to try to make the best of the side that had been entrusted to me. Nor as an advocate did I have to concern myself with the responsibility for a clear, wise, farsighted, orderly, and reasonably predictable application and development of the law. As an advocate, I was required never to forget that I was an officer of the Court, as well as my client’s lawyer, and that I had a duty to be candid with the Court, such candour being in any event essential to an advocate’s credibility and effectiveness. But I was at the same time expected to assert everything in the way of authority and reasoning that I could responsibly put forward in favour of my client’s position, without too much concern for the long-term effects on the law if I succeeded in persuading the Court.

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9 The Federal Court Years, 1975–1984 John M. Evans In t ro du c t i on Unlike other contributors to this volume, I did not know Gerry Le Dain well. We met in the fall of 1974 when I was a young visiting professor at Osgoode Hall Law School, on leave from the Faculty of Law of the London School of Economics. Gerry was recently back in academic harness after serving as the first dean of Osgoode Hall Law School of York University, and chairing the Commission of Inquiry into the Non-Medical Use of Drugs. Gerry occupied the corner office down the hall from mine. We talked animatedly about administrative law, and I found his insistence that the judiciary has an indispensable role to play in upholding the rule of law by protecting citizens from governmental abuse of power more to my liking than the all-judicial-review-is-a-bad-thing school of thought that then occupied much of the intellectual space at Osgoode. For Gerry, administrative law was all about Roncarelli v Duplessis,1 not Port Arthur Shipbuilding Co v Arthurs.2 As a then rather tentative law teacher, I watched in awe as Gerry gave an administrative law class on his favourite case. He paced up and down the classroom aisles, grasping students by the shoulder and fixing them with those piercing eyes, as he related the story of the heroic role of the Supreme Court in protecting a religious minority from Premier Duplessis, a dangerous bully who was prepared to use whatever means were at his disposal to get his way.3 When Osgoode invited me to join the permanent faculty, I looked forward to working with the charismatic Le Dain. Unfortunately for me, Gerry was appointed a judge of the Federal Court – Appeal Division (as it then was), effective 1 September 1975.4

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That was the end of our relationship until we met at a Federal Courts function in the grand entry hall of the Supreme Court of Canada some time after 1998, the year that I became a judge of the Federal Court, and ten years after Gerry had retired from the Supreme Court. He was in fine form that day, treating me to a series of outrageously indiscrete but very funny stories, many about his former Supreme Court colleagues, each told in his stentorian voice, followed by an equally loud and infectious peal of laughter, and that characteristic sweeping back of his distinguished silver mane. Not once did he look around to see whether anyone else might be listening in! Reading Gerry’s opinions has given me an opportunity to resume an interrupted relationship by getting better acquainted with Le Dain as public lawyer and judge of the Federal Court of Appeal – an institution that we were both proud to serve – and to provide a token of my affection and respect for both. I have relied largely on Le Dain’s reasons for judgment published in the official reports, the Federal Court Reports.5 I have also had access to Le Dain’s papers for these years that are deposited in the Library and Archives Canada. I am very grateful to the Le Dain family for granting me permission to consult them.6

L e D a in at t h e F e d e r a l Court of Appeal: A n O v e rvi ew This chapter focuses on the most important administrative and constitutional law decisions that Le Dain wrote as a judge of the Federal Court of Appeal. In particular, I examine his decisions on the constitutional limits on federal jurisdiction, the justiciability requirement for Charter claims, adverse effect discrimination and the duty to accommodate in human rights law, and procedural fairness in administrative decision-making. In addition, I have given a more general and impressionistic assessment of his voluminous administrative law opinions. Arrival at the Federal Court of Appeal When Le Dain was named to the Court on 1 September 1975, he was the sixth member of the Court to be appointed since it opened for business on 1 June 1971, following the enactment of the Federal Court Act.7 He had already had distinguished public careers as advocate and academic in Montreal, inaugural dean of the “new” Osgoode

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Hall Law School, and chair of the Le Dain Commission. As a result, his appointment “had taken the Federal Court out of the shadows and had given it good publicity.”8 Le Dain’s appointment to the Court was indeed particularly apt. First, he brought a deep knowledge of administrative law that he had acquired from his careers as advocate9 and academic. This was very relevant to his new role as a judge of a relatively new court with a docket heavily weighted to public law.10 The most important innovation of the Federal Court Act had been to confer on the new Court exclusive jurisdiction over judicial review proceedings against federal statutory decision-makers.11 The Act also introduced a new procedure, the application for judicial review, for challenging administrative decisions by those agencies reviewable at first instance in the Federal Court of Appeal,12 and codified the grounds on which an application could be granted and the impugned decision set aside.13 By the mid- to late 1970s administrative law in Canada had become a legal growth industry. Parliament and provincial legislatures had for some time been expanding the scope of economic and social regulation, and creating individual benefit programs, as well as institutions with the decision and rule-making powers necessary to implement them. Spurred largely by legislative initiatives in Ontario14 and at the federal level, Canadian courts were beginning to shake off self-imposed historical shackles and to modernize the common law of judicial review to meet the challenges posed by the growth of the administrative state. Le Dain’s years on the Federal Court of Appeal coincided with the Supreme Court’s redesign of the architecture of much of the law of judicial review of administrative action in Canada.15 Second, Le Dain’s scholarly interests in public law and his career as a law professor at both McGill and Osgoode further strengthened the Court’s existing academic complement16 and helped to bridge the divide on the Court between francophones and anglophones, and civilians and common lawyers. For good or ill, former full-time academics have generally been well represented on the Federal Court of Appeal, particularly given its relatively small size.17 Le Dain as Judge Le Dain’s judicial work amply fulfilled the promise of his appointment. His important contributions to administrative law jurisprudence included a generous approach to the application of the duty

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of procedural fairness, both before and after the Supreme Court’s decision in Nicholson,18 which attached great weight to the seriousness of the impact on the individual of the impugned administrative decision. He downplayed the sterile conceptual distinction between judicial or quasi-judicial powers and those of a purely administrative nature, which had previously defined the scope of the application of the rules of natural justice. However, in order to avoid imposing unwarranted burdens on administrative decision-making. he was also careful to elaborate the content of the duty of fairness in light of the statutory and administrative contexts, as well as the particular facts of the case.19 He took a similarly robust view of the related question of the range of administrative action within the first instance judicial review jurisdiction of the Federal Court of Appeal under s 28 of the Federal Court Act.20 Another significant aspect of Le Dain’s judgments was his approach to statutory interpretation, which lies at the heart of much of administrative law. Long before the Supreme Court in Rizzo & Rizzo21 embraced Driedger’s encapsulation of the one, true approach to the interpretation of legislation,22 Le Dain regularly sought Parliament’s intended meaning by consulting the relevant statutory text, its context, and the underlying legislative objectives. Unlike many judges of that era, he made relatively little use of the presumptions of statutory interpretation couched in Latin maxims that tended to constrain administrative action.23 The more recent, much debated concept of judicial deference to administrative decision-makers’ interpretation of their enabling statutes is largely absent from Le Dain’s judgments. However, he regularly approached the interpretation of disputed provisions on a functional basis: that is, by considering not only the literal meaning of the text, but also the place of the provision in the larger statutory scheme, including its underlying objectives, and the interpretation that would best enable decision-makers to discharge their mandates effectively and efficiently. Like the doctrine of curial deference, this approach also tends to lead to the judicial validation of administrative decisions.24 Le Dain’s background as a legal academic is also evident in other aspects of his work. First, he regularly made use of English jurisprudence, which had had its administrative law renaissance some years earlier,25 and of which Le Dain clearly approved.26 Second, his reasons often located the particular issue to be decided in a case within a lucid

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exposition of the relevant legal doctrine and its underlying principles. Third, he was more willing than most to acknowledge in his reasons that he did not find the legal point at issue to be easy, and that he had struggled with the decision.27 In these respects, as well as in their fluid, accessible, literary style, Le Dain’s reasons often provided a strong contrast to the supremely self-confident, but often terse and dense reasons of his chief justice, Wilbur Jackett, who is said to have held a rather jaundiced view of legal academics.28 Le Dain was a judge of the Federal Court of Appeal for nearly nine years, before his appointment to the Supreme Court of Canada on 29 May 1984. In that time, the size of the Federal Court of Appeal had increased from six to ten judges, including the chief justice. This reflected its growing caseload, particularly in judicial review and especially immigration and refugee law, which became a large component of the Court’s docket during the Le Dain years. Le Dain was the first judge of the Federal Courts to be appointed to Canada’s highest court.29 He was, to my mind, the outstanding public law jurist then sitting on any intermediate appellate court in Canada. His judicial record fully justified his elevation.

F e de r a l J u r is d ic t io n a n d the Consti tuti on In the Federal Court’s early years, jurisdictional problems threatened its legitimacy as a superior court of record within Canada’s predominantly unitary court system.30 Within a year or so of the start of his judicial career, Le Dain became a major player in the most important constitutional battle of the turf war over the scope of Parliament’s authority under s 101 of the Constitution Act, 1867, to create and maintain “a General Court of Appeal for Canada” and provide for “the Establishment of any additional Courts for the better Administration of the Laws of Canada.”31 Parliament enacted the Federal Court Act under the words of s 101 that I have emphasized. “Laws of Canada” and s 23 The principal issue concerned the term “Laws of Canada” in s 101. Does it mean any laws within one of Parliament’s heads of legislative power under s 91 of the Constitution Act, 1867? Or only laws validly enacted by Parliament? The Federal Court of Appeal first addressed this question in Quebec North Shore Paper Co v CP Rail Ltd.32

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C P had commenced an action in the Federal Court under s 23 of the Federal Court Act claiming damages from the defendants for breach of a contract to construct a marine terminal in Quebec for the transportation of newsprint produced by Quebec North Shore to destinations in the United States. The defendants’ principal argument in the Federal Courts concerned the interpretation of s 23, which conferred concurrent jurisdiction on the Federal Court in all cases where relief is sought under an Act of Parliament “or otherwise” in relation to works and undertakings connecting a province with another or extending beyond the limits of the province. Le Dain held that the phrase “or otherwise” refers to any law relating to a matter over which Parliament has legislative competence, including provisions of provincial law relating to matters within federal legislative competence. Since the construction of the terminal was integral to a broader agreement for the transportation of goods to the United States, the dispute fell within Parliament’s competence over interprovincial undertakings conferred by s 92(10) of the Constitution Act, 1867. Le Dain also held that the dispute involved a law of Canada within the meaning of s 101. Writing for the majority of the Court. he stated that the expression “laws of Canada” in s 101 “includes not only existing federal statutes but also any law that Parliament can validly enact, amend or repeal.”33 He found that although CP ’s claim was made under the Quebec law of contract, that law also constituted a law of Canada because it could be the subject of federal legislation insofar as it related to an interprovincial undertaking under s 92(10) (a) of the Constitution Act, 1867. Counsel had not raised this constitutional issue before either the Federal Court or the Federal Court of Appeal. Le Dain later noted, somewhat ruefully, that he had dealt with it briefly in his reasons only “for the sake of completeness.” However, in the Supreme Court it was the primary focus of the appeal.34 The Supreme Court opted for a narrow interpretation of s 101, holding that a provincial law is not a part of the “laws of Canada” for constitutional purposes, simply because Parliament could replace or modify it by a federal statute insofar as it applied to a matter within Parliament’s legislative competence. Unlike the Federal Court of Appeal, the Supreme Court refused to equate the term “laws of Canada” in s 101 with the full extent of Parliament’s constitutional legislative competence, whether exercised or not. The expression “laws

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of Canada,” it has held, denotes for the most part existing federal legislation.35 Consequently, a claim is only made under an Act of Parliament “or otherwise” for the purpose of s 23 if it is based on a law falling within the phrase “laws of Canada” as interpreted by the Court (such as federal regulations). Parliament cannot confer a broader jurisdiction on the Federal Court than that permitted by s 101. The debate over the interpretation of s 23 was recently resumed in litigation arising from repair orders imposed under a municipal bylaw by the City of Windsor. The orders in question were imposed on properties purchased by Canadian Transit, which was incorporated under a special Act of Parliament to own, operate, and maintain the Canadian half of the Ambassador Bridge between Windsor and Detroit, which constitutes a federal work or undertaking and is thus within federal legislative competence. Reversing the Federal Court of Appeal,36 the Supreme Court held that the declarations sought by Canadian Transit with respect to the scope of its statutory powers and the constitutional applicability of the bylaw to its properties were not within s 23.37 There was thus no statutory grant of federal jurisdiction over the dispute. The Court held that Canadian Transit’s claim was essentially for a declaration that the bylaw did not apply to the properties it had acquired by virtue of the constitutional doctrines of paramountcy or interjurisdictional immunity. While some of the declarations sought related to the scope of Canadian Transit’s statutory powers and whether the purchased properties were necessary for the maintenance of an undertaking extending beyond a province for the purpose of s 23(c), the essence of the claim for relief, the Court held, was made under the Constitution Act, 1867, not Canadian Transit’s federal enabling statute. And, since the Constitution Acts, 1867–1982 are not “laws of Canada” within the meaning of s 101, Canadian Transit’s claim was not based on a cause of action created or recognized by a federal law.38 Consequently relief was not sought “under an Act of Parliament or otherwise” as required for it to fall within s 23.39 The restrictive view of the constitutionally permitted scope of federal jurisdiction underlying Quebec North Shore clearly cast its long shadow over the Court’s narrow approach to the interpretation of s 23.40 The upshot of Quebec North Shore and its companion case, McNamara Construction,41 in which the Crown brought an action in the Federal Court under s 17 for breach of contract, was to

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invalidate the Federal Court’s concurrent jurisdiction with the superior courts of the provinces over actions by the federal Crown and others for damages in tort and contract, and over actions against parties other than the federal Crown, in the absence of federal legislation relevant to the claim. The Supreme Court effectively eviscerated the Federal Court’s s 17 jurisdiction over damages claims involving the federal Crown.42 Le Dain’s more expansive view of the constitutional scope of federal jurisdiction under s 101 would have avoided the complexities and serious problems caused by the Supreme Court’s constricted approach, which seems to have been rooted in the notion that, unlike other federations (including the United States and Australia), Canada’s court system is essentially unitary, to which Parliament’s creation of the Federal Court represented an unwelcome challenge. Required Nexus between Federal Law and a Claim Having lost the big battle in Quebec North Shore over what constitutes a law of Canada for the purpose of s 101, Le Dain returned to the fray in Bensol Customs Brokers Ltd v Air Canada43 on a secondary aspect of the constitutionally permissible scope of federal jurisdiction: when the determination of parties’ rights involves both federal and non-federal law, how much federal law is required for the case to concern “the Better Administration of the Laws of Canada”? Bensol Customs, the consignees of goods, sued Air Canada under s 23 for the loss of the goods during transit. While there was a contractual relationship between the parties, the federal Carriage by Air Act44 imported statutory terms into the contract governing Bensol Customs’ rights and Air Canada’s liability. Writing for the majority in the Federal Court of Appeal, Justice Pratte held that the question was whether Bensol Customs’ claim was made “under an Act of Parliament or otherwise” so as to bring it within the concurrent jurisdiction that s 23 of the Federal Court Act conferred on the Federal Court in respect of certain classes of subject within federal legislative competence, including aeronautics. He concluded that it was. The Carriage by Air Act was the source of Bensol Customs’ rights and of Air Canada’s liability, and governed the contractual obligations of the carrier.45 Justice Pratte must implicitly have held that the test that he formulated for concluding that Bensol Customs’ claim fell within the Court’s

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statutory jurisdiction under s 23 also satisfied the constitutional requirement that it must be “founded” on a law of Canada for the purpose of s 101 of the Constitution Act, 1867.46 However, in a concurring judgment Le Dain addressed the constitutional issue head on. Referring to Chief Justice Laskin’s statement in McNamara Construction47 (which was not a s 23 case) that the Federal Court’s jurisdiction could constitutionally extend only to actions founded on some existing federal law, Le Dain stated that this did not mean that a claim must be based solely on federal law. He saw no reason why a stricter test should be applied to the statutory requirement of s 23 that the claim must be made or relief sought under an Act of Parliament or otherwise.48 In Le Dain’s view, it was not necessary for the purpose of either s 23 or s 101 that a party’s cause of action must be created by federal law. It was enough that the rights of the parties are governed “to a material extent” by federal law, or the plaintiff’s provincial cause of action was “affected” by federal law.49 Although Bensol Customs did not reach the Supreme Court, Le Dain’s liberal view of the nexus required to engage federal jurisdiction under s 23 and 101 when both federal and provincial law are relevant to the disposition of a claim has not fared well. For example, in I T O -Int’l Terminal Operators v Miida Electronics, the Supreme Court stated that for a claim to fall within the constitutionally permissible scope of federal jurisdiction, federal law must be “essential to the disposition of the case,” and the law on which the case is based must be federal law,50 although in resolving the issues, it may be necessary for the Federal Court to “apply provincial law incidentally.”51 The Court addressed Le Dain’s formulation directly in Roberts.52 Wilson J noted that his view on this issue in Bensol Customs had “found favour with several academic commentators.”53 However, she said, the fact that federal and provincial law are both “relevant” to a case is not sufficient to engage federal jurisdiction; echoing ITO , she held that federal law must be “essential to the disposition of the case”54 and “resolutive of the dispute.”55 The issue recently surfaced again in Canadian Transit, where Stratas J A canvassed the various terms used to describe the relationship required between federal law and the claim in order to support federal jurisdiction under s 101, including the “material extent” test in Bensol Customs.56 He concluded that federal law must play “an essential role” in the outcome of a case, and provincial law a merely “subsidiary or incidental” one, and that the necessary nexus was present in this case.57

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The Supreme Court of Canada reversed, but on the ground that the claim fell outside the jurisdiction granted by s 23(c), because it was not made under an Act of Parliament or otherwise. Writing for majority, Karakatsanis J held that, since there was no statutory grant of jurisdiction in this case, it was unnecessary to consider whether the other two elements of the ITO test were satisfied.58 Nonetheless, she warned that none of the terms considered by Stratas JA to describe the constitutionally required nexus between federal law and the determination of a claim in the Federal Court should be understood as lowering the “high threshold articulated in ITO .”59 That federal law is “a necessary component” of a claim, is not sufficient, she said: it must be “essential to the disposition of the case” and “nourish the grant of jurisdiction.”60 Le Dain’s view that it was sufficient for a claim to be governed by federal law to “some material extent” has not survived as a test of federal jurisdiction when parties’ rights depend on both federal and provincial law. If Le Dain was correct to say in Bensol Customs that s 23 should not be read as requiring a tighter nexus between federal law and a claim than s 101,61 then Canadian Transit suggests that the fact that a cause of action arising under provincial law is “affected” by federal law62 is not sufficient to satisfy s 101.63 If Karakatsanis J’s statement that for a case to fall within s 23 the cause of action must be created or recognized by federal law applies also to s 101, Le Dain’s view in Bensol Customs that s 101 does not require that the cause of action be created by federal law may well not have survived. On the other hand, the fact that the Crown was suing to enforce contractual agreements in Rhine did not preclude federal jurisdiction, because federal legislation created a detailed statutory framework and governed every aspect of the relationship, including prescribing the terms of the contracts in question.64

F e d e r a l J u r is d ic t io n and Mari ti me Law: A S e a C h a n g e in t h e S upreme Court The scope of the term “laws of Canada” also arose in maritime law cases, which formed a much larger part of the Federal Court of Appeal’s docket in the 1970s and 1980s than they do now. In this area, the Supreme Court took an approach very different from that in Quebec North Shore, holding that the Federal Court’s statutory jurisdiction over claims arising under “Canadian maritime law”65

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should be interpreted broadly so as to be coextensive with Parliament’s legislative power under s 91(10) of the Constitution Act, 1867, over “Navigation and Shipping.” Federal jurisdiction thus depends on whether a claim falls within either the specific situations described in s 22(2) of the Federal Courts Act or the broader definition of maritime law in s 2, provided only that it is also within Parliament’s legislative power over navigation and shipping.66 Le Dain had already held that the scope of federal jurisdiction over maritime cases under s 22 extended to the full reach of Parliament’s competence over navigation and shipping.67 This was, of course, much the same approach that he had taken in Quebec North Shore in respect of claims arising from a contract in connection with an interprovincial undertaking. Le Dain also played a role in defining when a claim is the subject of Canadian maritime law – and thus within federal jurisdiction – as opposed to a provincial law, such as tort or contract. Domestic Converters Corporation v Arctic Steamship Line68 concerned the liability of the operators of a terminal in the Port of Montreal, I T O – Terminals, for damage to goods which, after being shipped to Montreal, were stored in a shed occupied by ITO pending collection by consignees, including the plaintiffs. Federal jurisdiction over the claim depended on whether it was governed by Canadian maritime law. Upholding the trial judge,69 the Federal Court of Appeal unanimously held that it was not. Le Dain acknowledged in his reasons that he had reached this conclusion “not without difficulty or concern.”70 Finding that there was no contract between the plaintiffs and ITO, he held that any non-contractual basis for liability was delictual and that maritime law had historically been limited to torts committed on water. Accordingly, the matter should be heard in the superior court of Quebec under the Civil Code. When almost the same issue arose in Miida Electronics Ltd v Mitsui OSK Lines and ITO ,71 Le Dain acknowledged that he had made a mistake in Domestic Converters with respect to the Court’s jurisdiction over any non-contractual liability of ITO to the owners of goods stolen from the warehouse operated by I T O .72 The liability of I T O should not be determined, he said, on the basis of the Quebec law of delict, but on the law of bailment, since I T O were sub-bailees of the plaintiffs’ goods. Liability in bailment is not determined by reference to the location of the goods, and non-contractual bailment was unknown in civil law. He held that because of the “close practical

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relationship of the terminal operator to the performance of the contract of carriage”73 by sea, the law governing liability should be uniform across Canada and hence be regarded as part of Canadian maritime law and, as such, within federal jurisdiction.74 Substantially for the reasons given by Le Dain, the Supreme Court upheld the conclusion of the majority of the Federal Court of Appeal that it had jurisdiction over the non-contractual claim against I T O . However, ITO’s appeal was allowed, on the ground that it was entitled to the benefit of the “Himalaya clause” in its contract with the ship owner exempting it from liability for the loss of goods, even though the cargo owner was not a party to the contract.75 To conclude, despite a false step in Domestic Converters, which he had the intellectual honesty and courage to admit, Le Dain ended up on the right side of history by aligning federal jurisdiction in maritime cases with Parliament’s legislative competence over navigation and shipping.76 It is unfortunate, in my view, that the Supreme Court did not adopt Le Dain’s similar view in Quebec North Shore in other litigation contexts involving the scope of the term “laws of Canada.” This would have avoided the costly jurisdictional chaos that followed and given effect to the important role that Parliament intended the Federal Court to play in civil litigation in areas within Parliament’s constitutional ambit, particularly litigation involving the federal Crown.

C o n s t it u t io n a l Protecti ons a n d H u m a n Ri ghts Two of Le Dain’s decisions as a judge of the Federal Court of Appeal are important contributions to defining the scope of the protection afforded to individuals by the then new Canadian Charter of Rights and Freedoms, and by human rights legislation: The Queen v Operation Dismantle Inc77 and Canadian National Railway Company v Canadian Human Rights Commission.78 The Cabinet and the Charter: The Limits of Judicial Review Operation Dismantle arose from a decision of the federal Cabinet to permit the United States to test nuclear missiles in Canada under the terms of a Canada-US treaty. The bold claim made by the plaintiffs was that testing these missiles in Canada increased the risk of a

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military attack on Canada and thereby violated s 7 of the Charter because it deprived Canadians of their right to life and security of the person. The issue in the Federal Court of Appeal was whether the motions judge had erred by striking the plaintiffs’ statement of claim on the ground that it disclosed no reasonable cause of action.79 That the appeal was set down to be heard by a five-judge panel of the Court of Appeal, rather than the normal three, is an indication of its perceived importance.80 The problem with hopeless cases – and this was surely one – is that they can often be decided on multiple grounds; the judicial challenge is to find the appropriate one. Le Dain rejected the argument that the Charter could not apply to Cabinet decisions made in the exercise of the prerogative power over defence or international affairs. The question, he said, was whether the particular decision in question infringed a right protected by the Charter. However, the decision impugned must raise a justiciable issue, and the allegation that testing nuclear weapons in Canada exposes people to an enhanced risk of death or injury is “manifestly not justiciable” because “it involves factors, considerations, and imponderables, many of which are inaccessible to a court or are of a nature which a court is incapable of evaluating or weighing.”81 Justiciability in this context at least, he emphasized, was about issues that courts are competent to decide, and not whether the issue concerns a “political question,” a notoriously slippery concept.82 Le Dain’s reasons in Operation Dismantle display a judicial shrewdness. Having properly identified the key issue raised by the government, he focused on that and did not deal with others.83 Nonetheless, he did say that if he was wrong on justiciability, the plaintiffs still lost, because they had failed to allege a breach of the principles of fundamental justice, an essential element of a violation of s 7.84 He found it unnecessary to opine on the more difficult question of whether the principles of fundamental justice were limited to issues of procedural fairness.85 In contrast, other members of the Court decided the case on the basis of interpretations of the Charter that have not stood the test of time.86 Writing for the majority in the Supreme Court of Canada,87 Justice Dickson dismissed the appeal on the ground that the plaintiffs could not prove that the government’s decision increased the risk of war, and the resulting deaths and injuries. This depended on the likely responses of foreign governments to nuclear weapons testing in

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Canada, which were incapable of proof in court. The majority’s reasons were thus very close to those of Le Dain and Ryan. In a con­ curring judgment, however, Justice Wilson specifically disagreed with Le Dain and Ryan insofar as their decision depended on a notion of justiciability that was based on whether the relevant facts were capable of proof in court. In her view, on a motion to strike a court must assume all the facts pleaded to be true.88 To summarize, in this early important Charter case, Le Dain was not prepared to immunize either the Cabinet89 or the exercise of prerogative powers from Charter scrutiny: perhaps he had Premier Duplessis in mind here.90 On the other hand, he refused to use the Charter to take the Court into disputes involving factual questions that courts were not equipped to decide and was careful not to preempt future developments in the early days of Charter jurisprudence by expressing opinions on issues that did not have to be decided in order to dispose of the appeal. On each of these aspects of his decision, Le Dain was, in my view, exactly right. Human Rights: Adverse Effects and Bona Fide Occupational Requirements During Le Dain’s tenure as a judge of the Federal Court of Appeal, courts in Canada were grappling, often for the first time, with issues of fundamental importance to the efficacy of the statutory protection from discrimination on prohibited grounds, particularly in the area of employment. In two respects Le Dain’s dissenting judgment in one such case, Bhinder,91 stands out as one of the very best and most influential of his public law judgments on the Federal Court of Appeal. First, Le Dain was years ahead of the Supreme Court of Canada in interpreting human rights legislation as imposing on employers a duty to accommodate individuals adversely affected on a prohibited ground by a workplace policy that was neutral on its face.92 Second, he reset the relationship between reviewing courts and human rights tribunals by characterizing many of the issues decided by tribunals as questions of fact or human rights policy (not law) and thus reviewable on a reasonableness standard. Hitherto, courts had taken this deferential approach to decisions of labour arbitrators and labour relations boards, but not generally to human rights tribunals. Noting the body of jurisprudence being built up by human rights tribunals, Le Dain thought that, like labour tribunals, they were

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entitled to a measure of judicial deference on matters within their specialized expertise. The facts of the Bhinder case were relatively simple. Mr Bhinder had worked as an electrician for C N , which required employees engaged in this type of work to wear a hard hat for safety reasons. This was a problem for Mr Bhinder because, as a Sikh, he was obliged by his religion to wear a turban; his refusal to wear a hard hat effectively ended his employment by CN.93 He complained to the Canadian Human Rights Commission that the hard hat policy constituted unlawful discrimination under the Canadian Human Rights Act [chra ].94 The commission referred the complaint to the Canadian Human Rights Tribunal, which upheld the complaint.95 By a majority, the Federal Court of Appeal granted CN’s application for judicial review and set aside the tribunal’s decision.96 Justice Heald stated that if Parliament had intended to introduce the concept of indirect or adverse effect discrimination on a prohibited ground, it would have said so more clearly.97 Further, since wearing a hard hat prevented or reduced head injuries to workers and was statutorily required, it was a bona fide occupational requirement (BFOR)98 and thus not a discriminatory practice by virtue of s 14(a) of the CHRA .99 Concurring, Deputy Judge Kelly concluded that the tribunal had gone beyond interpreting the statute by reading into it a duty on the employer to accommodate employees adversely affected by the hard hat policy, and that the CHRA did not prevail over other legislation.100 In the notes that he wrote while considering the case, Le Dain identified three questions of law that he considered to be of “general significance”: (1) did s 10 of the CHRA include “adverse effect” discrimination? (2) must a BFOR be assessed in relation to the particular employees adversely affected on a prohibited ground by the workplace policy, or to the workforce as a whole? and (3) does the fact that the hard hat requirement was imposed pursuant to another statute prevent it from being an unlawful discriminatory practice? Le Dain’s notes reveal that he found the case to be “extraordinarily difficult and elusive.” He was concerned about the time that he was taking to finalize his opinion but also observed that this was the first time that the Court had had to deal with these difficult and important issues.101 His papers clearly show that right from the start of his thinking about the case Le Dain regarded the tribunal’s decision as sound as a matter of human rights policy. His difficulty was whether and how it could be supported in law.

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Noting the trend in decisions of human rights tribunals elsewhere in Canada to interpret statutory prohibitions to include indirect or adverse effect discrimination, and the words “tend to deprive” in s 10, Le Dain concluded that C N ’s hard hat policy was a discriminatory practice within the meaning of that section.102 He provided relatively little support in his reasons for his conclusion on this controversial issue of statutory interpretation, especially considering its importance and novelty, and the fact that his colleagues disagreed. In particular, he does not say what is now trite, namely that human rights legislation is quasi-constitutional in nature and must be interpreted broadly so as to achieve the overarching legislative objectives.103 Nor did he explain, as he might have done, that to exclude adverse effect or indirect discrimination from the CHRA would leave in place many of the most significant barriers to equality in the workplace, and elsewhere. The boldest aspect of Le Dain’s judgment in Bhinder was his conclusion that, in order to satisfy the BF O R defence to a prima facie discriminatory practice, an employer must demonstrate that it had made good faith efforts to accommodate to the point of undue hardship employees adversely affected on a prohibited ground by the policy or practice in question. It was not sufficient, he said, for the employer to prove that the hard hat requirement benefited the workforce as a whole by reducing the risk of injury: this would set the duty on the employer too low. Rather, the degree of the benefit to employees from wearing a hard hat had to be weighed against the extent of the infringement of the individual employee’s right to religious freedom. While the CHRA contained no mention of a duty to accommodate, Le Dain held that it was necessarily implicit in the prohibition of adverse effect discrimination. That prohibition would be largely ineffective if an employer could ignore the impact of the policy on the individuals adversely affected, and satisfy the BFOR merely by establishing that, because of its positive impact on the workforce as a whole, the policy had a reasonable business purpose.104 Finally, Le Dain addressed the argument that the hard hat policy could not be a discriminatory practice contrary to the CHRA , because it was imposed pursuant to the Canada Labour Code. The issue here was whether human rights legislation trumped other statutory provisions that were inconsistent with it. He held that it did, citing statements in the Supreme Court to the effect that human rights legislation is “fundamental law.”105

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In addition to these questions of law of general significance, Le Dain also noted that the tribunal’s decision rested on the more particular finding that the small increase in the amount of workers’ compensation payable by CN as a result of complying with the CHRA did not constitute “undue hardship.”106 He characterized this finding as essentially an issue of human rights policy best left to the tribunal.107 Further, he held, even if the finding constituted a question of law, it could not be regarded as “clearly erroneous in law” because of the “essentially policy nature of the judgment required.” As already noted, Le Dain was in effect extending the same kind of deference to the tribunal in its application of the law to the facts that courts had already been giving to labour relations boards and labour arbitrators, even though anti-discrimination statutes did not then contain a preclusive clause, and human rights tribunals dealt with individuals’ fundamental rights. In this respect, too, he was well ahead of his time. By a majority, the Supreme Court dismissed the appeal.108 While the Court agreed with Le Dain that the CHRA applied to indirect or adverse effect discrimination, it held that since the hard hat policy enhanced employees’ safety, it was a B F O R and thus precluded by s 14(a) from being a discriminatory practice, despite adversely affecting Mr Bhinder on a prohibited ground. A duty to accommodate arises only when there is no BFOR in the statute, they said.109 However, Chief Justice Dickson and Justice Lamer in dissent substantially adopted Le Dain’s reasoning,110 including his call for judicial restraint in reviewing human rights tribunals’ decisions. Ultimately, as already noted,111 the Supreme Court came around to Le Dain’s view that employers are obliged to accommodate employees adversely affected on a prohibited ground by a workplace policy, even though it is justifiable as a B F O R when considered from the perspective of the employees as a whole. The Court has also vindicated Le Dain’s plea for deference to specialized tribunals’ decisions on their judgment calls in making factual inferences and applying human rights legislation to the facts found.112

F air n e s s in t h e A d m in i s trati ve Proces s Le Dain’s judgments in the Federal Court of Appeal, and subsequently in the Supreme Court of Canada, indicate the great importance that he attached to fairness in public administration, and to the role of the courts in ensuring that those who may be adversely affected by

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administrative action are afforded an effective opportunity to participate in the decision-making process. The common law duty of fairness, known until the late 1970s as the rules of natural justice, defines the legal concept of procedural fairness.113 It requires that individuals must be given prior notice that a decision is about to be made that could prejudice them, and sufficient information to enable them to participate effectively in decisionmaking process by presenting evidence and making submissions to the decision-maker, and responding to the case against them.114 Fairness at Large Le Dain contributed significantly to the expansion of the application of the duty of procedural fairness to a widening range of administrative action. However, he also recognized that the notion of a fair administrative process extended beyond the procedural requirements of the common law duty of fairness.115 This is well illustrated by his decision in Jiminez-Perez,116 a case involving the administration of the Immigration Act.117 The applicant’s lawyer had written to the local office of Immigration Canada explaining why, in view of his client’s family circumstances,118 he should be permitted to apply for a permanent residence visa from within Canada. Applications for permanent residence visas must normally be made from outside Canada,119 but the Governor in Council could waive this statutory requirement on humanitarian and compassionate (H&C) grounds.120 The local office refused both to issue an H&C application form and to process the application for permanent residence status, on the ground that the applicant was in Canada and the Governor in Council had not yet granted an exemption from s 9. The Act did not prescribe how H&C applications were to be made, but the minister took the position that since H & C requests could be granted only by the Governor in Council, they had to be directed to Ottawa and not to a local Immigration Office. Le Dain rejected this argument. He found that the letter from the applicant’s lawyer was clearly a request for an H & C exemption from the requirement of s 9 that applications for permanent residence visas be made from outside Canada. Writing for the Court, Le Dain held that in the absence of any express statutory provision to the contrary, “administrative fairness” requires that applicants be able to make H & C applications directly

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to their local Immigration Office.121 As a practical matter, he wrote, local officials could be expected to send requests to Ottawa for exemption from s 9, together with a recommendation as to whether they should be granted. The Court issued a mandamus ordering the local office to consider the applicant’s request. Although not expressly couched in terms of fairness, Le Dain’s earlier decision in the somewhat similar case of Tsiafakis122 was also motivated by a concern for fairness, broadly conceived, in the administrative process. The issue in this case was whether an immigration officer had a duty to provide the applicant with the statutorily required form for sponsoring her parents’ admission to Canada as permanent residents. The Immigration Act was silent on this question, and the officer had refused to provide the form to the applicant, on the ground that her parents were ineligible to be sponsored because they had not attained the statutorily prescribed age and were still capable of working. The minister argued that a duty to provide the form arose only after the officer had decided the “jurisdictional” question, namely that the applicant was entitled to sponsor the family members in question. Writing for the Court, Le Dain rejected this argument and issued an order of mandamus requiring the issue of the form. He reasoned that whether the applicant had a right to sponsor particular individuals was not “a preliminary question or condition precedent to the right to make an application in the prescribed form.”123 Rather, he said, it was integral to the overall question to be decided by the officer, namely whether to issue a visa to the sponsor’s family members. He implied a duty to issue the prescribed form because, without it, a person could not exercise the right to apply to sponsor the admission of family members.124 In these decisions Le Dain dew on notions of fairness going beyond the common law duty of fairness to ensure that individuals’ rights under a statutory scheme were not thwarted by procedural barriers erected by officials.125 The vulnerability of the individuals concerned in these cases also made judicial intervention particularly appropriate.126 The Common Law Duty of Procedural Fairness In this section I have selected what seemed to me the most jurisprudentially important of the opinions on procedural fairness that

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Le Dain wrote as a judge of the Federal Court of Appeal. Of course, he wrote many other opinions on the duty of fairness in different administrative and statutory decision-making contexts, and factual situations.127 His work is characterized by a sense of the importance of ensuring that, despite statutory silence on procedure, individuals have an opportunity to participate effectively in administrative decisionmaking by presenting evidence and arguments to the decision-maker. But he was also always careful to shape the procedural content of the duty in a given context to take into account the public interest in effective and efficient public administration, and considerations of practicality.128 The importance that he attached to participatory rights is also seen in his reluctance to allow an administrative decision to stand because the breach of the duty of procedural fairness would have made no difference to the decision.129 The purpose of providing an opportunity to those affected to present evidence and make submissions is not only to ensure that the decision-maker is better informed, and thus to enhance the quality of public decisions. Individual participation is also an independent, democratic right that recognizes the worth of individuals and enhances the legitimacy, accountability, and transparency of government. The Supreme Court decisively established in Nicholson130 that the common law duty of procedural fairness applies to a broad range of administrative action and is not limited to the exercise of decisionmaking powers that could be characterized as judicial or quasi-judicial. The classification of a statutory power as either judicial or administrative had assumed a particular importance for the Federal Courts because it also determined whether an administrative law proceeding should be commenced in the Federal Court or in the Federal Court of Appeal.131 Le Dain favoured a broad approach to determining the applicability of common law procedural requirements.132 He drew doctrinal inspiration from the English decision of Ridge v Baldwin,133 where the House of Lords had held that whether a power was judicial in nature, and thus subject to the rules of natural justice, was to be inferred from the nature of the power itself, including its impact on individual interests, the kinds of question to be decided by the decision-maker, and the decision-making process. The limits on the scope of the duty of fairness after Nicholson were tested by a legal challenge by the plaintiffs, the Inuit Tapirisat

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of Canada, to a federal Cabinet decision dismissing their petition under s 64(1) of the National Transportation Act134 to reverse or vary an order of the C R T C approving an increase in telephone rates proposed by Bell Canada. The case reached the Federal Court of Appeal135 on an appeal from an order of the Federal Court striking the plaintiffs’ action for a declaration of invalidity on the ground that it disclosed no reasonable cause of action.136 The case raised two issues. First, did the duty of fairness apply to the Cabinet in exercising its statutory power to determine petitions by interveners who had participated at the hearing before the CRT C to oppose a rate increase?137 Second, if it did, was the Cabinet required to disclose to the petitioners for their comments Bell Canada’s reply to the petition and the material prepared for the Cabinet by the minister and his officials?138 Writing for the Court, Le Dain held that after Nicholson139 there was a strong argument that the duty of fairness applied when the Cabinet considered an appeal from the CRT C by a party,140 whether or not the Cabinet’s decision was judicial or quasi-judicial in nature.141 The applicability and content of the duty of fairness in any given context, he said, was a matter of statutory interpretation and was based on the nature of the decision-maker and of the power in question and on the seriousness of the consequences of an adverse decision for the individual concerned. He held that there was no reason in principle why the duty of fairness could not apply to the exercise of statutory powers vested in the Cabinet, although its content may be minimal. Despite the broad discretion exercisable by the Cabinet in disposing of the appeal, its decision must be based on facts related to communications policies. It was also relevant that the interveners had participated fully in the proceedings before the C R T C , which Le Dain was prepared to characterize as quasi-judicial. The real question in this case, he said, was not so much the applicability of the duty of fairness to the Cabinet as its procedural content, given the nature of the decision-maker and of the decision, and the consequences for the individual.142 He held that the confidentiality of Cabinet documents precluded an implied duty to disclose to the applicants the material prepared for it by the department.143 On the other hand, no such blanket exemption from disclosure applied to the submissions to the Cabinet by Bell in response to the plaintiffs’ petition. Whether fairness required disclosure depended on the facts of the particular case,

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including the decision-maker’s right to decide when it had enough material before it to make its decision. Hence, since it was not clear and obvious that the plaintiffs’ action must fail, the motions judge should have permitted the matter to proceed to trial for a determination of the relevant facts. On appeal, the Supreme Court reversed and granted Bell’s motion to strike, on the ground that the duty of fairness did not apply to Cabinet decisions made under s 64(1).144 This conclusion was based largely on the highly discretionary nature of Cabinet decisions under this provision, the large number of subscribers affected by the ordersin-council dismissing the petition, and the Cabinet’s power to review C R TC decisions on its own motion. These characteristics, the Court held, made the Cabinet’s decision legislative in nature and, as such, not subject to the duty of procedural fairness: Nicholson applied only to decisions of an administrative nature.145 Le Dain’s analysis seems clearly superior to that of the Supreme Court on the issue of principle, namely the applicability of the duty of fairness to Cabinet appeals by participants in proceedings before a regulatory agency. First, unlike Justice Estey writing for a unanimous Supreme Court, Le Dain did not base his decision on a conceptual classification of statutory powers into legislative and administrative. The courts had only recently put behind them the notion that individuals’ right to participate in the decision-making process could be implied only when the power in question was judicial rather than administrative in nature. Le Dain’s approach was more contextual and fact-specific.146 Second, while Le Dain regarded the application of the duty of fairness as one of statutory interpretation, he did not look for specific language in the Act indicating a right to be heard. Rather, he examined the statutory scheme to determine whether the duty could be inferred from the nature of the decision to be made by the Cabinet in a case where a party to the proceedings below had initiated the appeal.147 Third, Le Dain’s approach to the duty of fairness reflects a recognition of the importance of public interest participation in the regulatory process as a counterbalance to the influence of the regulated interests. To deny interveners a right to be heard on a Cabinet appeal undermines their participatory rights before the regulatory body and may confine administrative decision-makers to a limited perspective on the issues, thereby limiting their understanding and exposing them to the risk of “capture” by the regulated industry.148

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That Le Dain was on the right side of history in Inuit Tapirisat is indicated by the recent C N R case, where the Supreme Court held that the Cabinet’s appellate jurisdiction from a federal agency includes appeals alleging an error of law.149 The Court doubted whether its reasoning in Inuit Tapirisat was in tune with the contemporary approach to the role of the duty of fairness in administrative decision-making. Although this issue was not before the Court, and it chose not to rule on it,150 these comments indicate support for Le Dain’s reasoning in Inuit Tapirisat and his conclusion that the duty of fairness can apply to Cabinet appeals by participants in the making of regulatory decisions, even when they affect a large number of people. Le Dain returned to the applicability of the duty of fairness to Cabinet decisions and orders-in-council in Desjardins v Bouchard.151 The appellant in this case argued that an order-in-council revoking his pardon for misconduct was invalid because it was made in breach of the duty of fairness, since he had not had a fair opportunity to respond to the case against him. In concurring reasons in support of allowing the appeal, Le Dain noted the limitations necessarily placed by the practical realities of Cabinet decision-making on any right to prior notice of the case to be met and to the disclosure of Cabinet documents. However, he said, “It is better that in such a matter there should be an approximation to procedural fairness than no procedural fairness at all.”152 He distinguished Inuit Tapirisat on the ground that the decision impugned in Bouchard primarily affected an individual, not a section of the public.

C o n c l u s i ons Reading the opinions that Le Dain wrote on administrative and constitutional law while on the Federal Court of Appeal has confirmed for me that he was a superb judge. He wrote persuasively and clearly, conducted meticulous research and analysis of the authorities, and judiciously steered between saying too much and too little. The quality of his reasoning and decisions in the leading cases on which I have focused is underlined by the fact that they have stood the test of time, whether or not the Supreme Court of Canada of the day (or later) agreed with him. He was in tune with the modernizing trends in legal doctrine, most notably in his broad approach to fairness in administrative decision-making, and to the interpretation of

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anti-discrimination legislation and statutes creating regulatory programs. He negotiated skilfully between the articulation of general legal principles and their underlying rationales, and their application in particular statutory, administrative, and factual contexts. And while his federal jurisdiction jurisprudence, outside maritime law, has had no traction in the Supreme Court, it came closer to Parliament’s vision in creating the Federal Court of Canada and would have avoided the raft of practical problems that followed from the Supreme Court’s narrow interpretation of Parliament’s power under s 101 of the Constitution Act, 1867. During Le Dain’s tenure, the Federal Court of Appeal became a predominantly public law court, reviewing the legality of administrative action across the broadening fields of federal governmental activity that affected individuals’ rights and interests. Gerald Le Dain is entitled to a very large measure of the credit for the Court’s successful work in this aspect of its jurisdiction. It is difficult to guess what his reaction would have been to the broad scope of judicial deference to administrative tribunals’ interpretation of their enabling legislation that became the hallmark of much of the Supreme Court’s administrative law jurisprudence after Le Dain left.153 What is clear, however, is that his early departure from the Supreme Court was an enormous loss to the development of the legal framework governing public administration in Canada.

A c k n ow l e d gments Thanks to David Mullan for providing insightful comments on a draft of this chapter, and to Blaine Baker for the invitation to contribute to this volume and for the patience to wait for the result.

n otes  1 [1959] S CR 121.  2 [1969] S C R 85.   3 A colleague from Gerry’s McGill days described him as a brilliant but somewhat chaotic teacher, an assessment equally apt for the performance that I observed.   4 In order to avoid the awkward, “Federal Court – Appeal Division” and “Federal Court – Trial Division,” I shall refer to them as the Federal Court of Appeal and Federal Court respectively, and collectively as the Federal

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Courts, even though it was only in 2003 that the Courts Administration Service Act, SC 2002, c 8 [SC 2002, c 8], formally split the single Federal Court of Canada, with its Trial and Appellate Divisions, into two separate courts.   5 They were at that time cited as FC. Since 2004, following the creation of two separate courts in 2003 (see note 4) they have been called the Federal Courts Reports and cited as FCR.   I have not read cases in which Le Dain sat and concurred without writing reasons. Judges often make important but invisible contributions to the judgments that appear under another’s name. However, it is impossible for someone who was not a member of the Court at that time to assess this aspect of a judge’s work.   6 The materials are contained in six large bankers’ boxes, catalogued as Gerald Le Dain fonds, R923, volumes 32–7. They include notes that he made at the hearing; memoranda to himself identifying and analyzing the issues, and recording his views on the case law; and multiple drafts of opinions. They reinforce what is clear or may be inferred from his opinions: he was meticulous in his research and analysis of the issues and the case law; had many changes of mind in the process of reaching his ultimate decision; and went to great lengths to ensure that his final work product was as thorough, well-reasoned, and clearly expressed as he could make it.  7 R S C 1970 c 10 (2nd Supp). The other members of the Court were Chief Justice Jackett, and Justices Thurlow, Urie, Pratte, and Ryan. In order to reflect the Federal Court of Canada’s split into two separate courts, the enabling statute is now cited as the Federal Courts Act, R SC 1985, c F-7: S C 2002, c 8, s 14.   8 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 (Toronto: University of Toronto Press, 1997), 269.   9 The cases that he argued are listed in the first chapter of this volume. 10 His unpublished McGill University BCL thesis, “Judicial Review of Administrative Discretion,” was written in 1949. Between 1952 and 1957 he published four articles on aspects of administrative law in the McGill Law Journal and the Canadian Bar Review, as well as articles on banking and bills of exchange.   His stints as dean of Osgoode in its turbulent early years at York and as chair of a commission may also have given him insights into the challenges facing administrative decision-makers that can be relevant to judges’ consideration of applications for judicial review.

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11 S 18. The Federal Court of Canada also inherited the jurisdiction of its predecessor, the Exchequer Court, including actions by and against the federal Crown, income tax appeals, maritime law, and intellectual property. 12 S 28. This first level of judicial review jurisdiction under s 28 was in addition to the Court of Appeal’s appellate jurisdiction over decisions by the Federal Court, including its administrative law decisions. For reasons that were never apparent, the remedial and procedural reforms contained in s 28 were not applied to administrative law proceedings in the Federal Court, which had to soldier on with the common law remedies.   Matters were put right in 1990, however, by An Act to Amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and Other Acts in Consequence Thereof, S C 1990, c 8, ss 4 and 5 [SC 1990, c 8], which effectively extended to proceedings in the Federal Court the application for judicial review, its procedure, and grounds of review, previously available only in the Federal Court of Appeal when exercising its first instance judicial review jurisdiction under s 28(1). The Act also set out the forms of relief that the Court could grant to successful applicants. 13 S 28(1). The grounds largely tracked those on which the prerogative writ of certiorari issued at common law. In addition to removing the requirement that a decision could be set aside for error of law only if the error appeared on the face of the tribunal’s record, the Act was regarded as conferring on the Federal Court of Appeal a broader jurisdiction than that exercisable at common law on a writ of certiorari. S 28(1)(c) (now s 28(1) (d), as it will be referred to in this chapter) provided that, on an application for judicial review, the Federal Court of Appeal could set aside a decision on the ground that the tribunal had based it on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.   It is not clear that tribunals’ findings of fact were in reality reviewed with greater intensity in the Federal Court of Appeal under s 28(1)(d) than they were in provincial superior courts, where administrative tribunals’ findings of fact were supposedly beyond review unless based on “no evidence.” However, after Dunsmuir v New Brunswick, 2008 SC C 9, [2008] 1 S CR 190 at para 5, unreasonableness has become the standard of review applied generally to tribunals’ findings of fact, and judgments of the Federal Courts rarely refer to the particular words of s 28(1)(d).   While acknowledging that s 28(1)(d) both creates a ground of review (erroneous finding of fact) and prescribes a standard of review (findings made in an arbitrary or capricious manner or without regard to the

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material before the tribunal), the Supreme Court has stated that statutory provisions dealing with judicial review should be interpreted against the background of the common law standards of review: Canada (Citizenship and Immigration) v Khosa, 2009 S CC 12, [2009] 1 SC R 339 at para 19.   On the judicial review of administrative findings of fact generally, see Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, loose leaf (Toronto: Thomson Reuters Canada, 1998) chap. 14:3300-3530 (updated July 2017). 14 Two reforms that came into effect in Ontario in 1971 following the publication in 1968 of the Report of the Inquiry into Civil Rights (the McRuer Commission) proved particularly important in the modernization of administrative law throughout Canada.  The Judicial Review Procedure Act, S O 1971, c 48 (now R SO 1980, c J.1) [JRPA ] greatly simplified proceedings brought to challenge the validity of administrative action by creating a new summary proceeding, the application for judicial review. This enabled a litigant to request any of the forms of relief available through a prerogative writ (other than habeas corpus) or, when an exercise of a statutory power was challenged, a declaration or an injunction. While similar in many ways to the application for judicial review created by s 28 of the Federal Court Act, the JRPA did not codify the grounds of review, although it made some relatively minor modifications to them, including the abolition of the “on the face of the record” requirement for reviewable errors of law, and clarifying the court’s jurisdiction to set aside a decision on the ground that it was based on a finding of fact supported by no evidence.  The Statutory Powers Procedures Act, 1971, SO 1971, c 47 (now R SO 1980, c S.22) [SPPA ] created a code of procedure of general application to Ontario’s administrative tribunals. It was based largely on the common law duty of fairness as applied to statutory decision-makers operating at the more formal adjudicative end of the decision-making spectrum. However, the SPPA was ahead of its time by imposing a duty on decisionmakers to give reasons for their decisions. The common law did not expand the content of the duty of fairness to include reasons until Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SC R 817 at paras 35–43, nearly thirty years later. Unlike the JRPA , the SPPA has not been widely copied in other jurisdictions. For example, there is still no general code of administrative procedure applicable to federal agencies. 15 See in particular: Nicholson v Haldimand-Norfolk (Regional Municipality) Commissioners of Police, [1979] 1 S CR 31 (duty of procedural fairness applicable to decisions of an administrative nature); Canadian Union of

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Public Employees, Local 963 v New Brunswick Liquor Corporation, [1979] 2 S CR 227 (limiting jurisdictional issues and introducing curial deference to agencies’ interpretation of their enabling legislation); and Harelkin v University of Regina, [1979] 2 SC R 561 (litigants must normally exhaust their administrative remedies before making an application for judicial review). 16 Justice Ryan had been dean of the Faculty of Law of the University of New Brunswick, and Justice Pratte a member of the Faculty of Law of Laval University. 17 Notably, Chief Justice Frank Iacobucci, and Justices Louis Marceau, Mark MacGuigan, Alice Desjardins, Allen Linden, Gilles Létourneau, Joseph Robertson, Barry Strayer, John Evans, Yves de Montigny, and John B. Laskin, as well, of course as Ryan, Pratte, and Le Dain. However, not all had spent their entire pre-judicial career as a law p ­ rofessor. The complement of the Court is now the chief justice and eleven puisne judges. Justices de Montigny and Laskin are the only former full-time academics currently on the Court. 18 Nicholson v Haldimand-Norfolk (Regional Municipality) Commissioners of Police. Despite its influence on subsequent jurisprudence on the reasonableness standard of review of tribunals’ interpretation of their enabling statute, the other “blockbuster” of the Supreme Court of Canada’s decisions reported in 1979, Canadian Union of Public Employees, Local 963 v New Brunswick Liquor, f­ eatures hardly at all in Le Dain’s reasons. One exception is North Canada Air Ltd v Canada Labour Relations Board, [1981] 2 FC 407 at 409–10 (CA). 19 See, for example, his reasons in Seafarers International Union of Canada v Canadian National Railway Co., [1976] 2 FC 369 (CA) (scope of required disclosure to interveners of material relied on by regulator in making decision); Inuit Tapirisat v The Right Honourable Jules Léger, [1979] 1 FC 710 (CA) (limits on fairness inherent in the nature of Cabinet decision-making). 20 See further note 25. On the “quasi-judicial basis” requirement for the application of the rules of natural justice and for a decision to be reviewable in the Federal Court of Appeal under s 28, see, for example, Latif v Canadian Human Rights Commission, [1980] 1 FC 681 (C A ). And on what constitutes a “decision” for the purpose of s 28, see, for example, Croy v Atomic Energy Board, [1981] 1 FC 515 (C A ), and Mavour v Minister of Employment and Immigration, [1984] 2 FC 122 (C A ). 21 Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SC R 27 at 41. 22 Elmer A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974), 67: “Today there is only one principle or approach, namely, the

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words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”   The modern principle and Rizzo & Rizzo are discussed in the sixth edition of the book originally written by Driedger: see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, ON: LexisNexis Canada, 2014), chap. 2. 23 The maxims are described in Sullivan, Sullivan on the Construction of Statutes; see, for example, chap. 8. 24 Le Dain’s dissenting judgment in Francis v Canada Labour Relations Board, [1981] 1 FC 225 (CA), is a particularly telling example. The Board had certified a union as the bargaining agent for a band council. The majority of the Court set the decision aside because the unincorporated band council was not an employer for the purpose of the Canada Labour Code, as it was not a “person.” Le Dain said that, regardless of the strict legal status of the council, there was clearly an employment relationship with the band council for whom the potential members of the bargaining unit worked and from whom they received their pay. There was no reason to deny these workers the protection of the Code. 25 See, in particular, Ridge v Baldwin, [1964] A C 40 (Eng HL), which ­jettisoned the idea that the rules of natural justice applied only to the exercise of a statutory power to which a “super-added” duty to act judicially could be found in the enabling legislation.   Another consequence of the reformulation of the duty to act judicially was the expansion of the range of administrative action reviewable by the writ of certiorari. The Federal Court Act had inexplicably and undeservedly breathed new life into the moribund conceptual distinction between the judicial and quasi-judicial on the one hand, and the administrative on the other. The tortuously worded s 28 vested first instance judicial review jurisdiction in the Federal Court of Appeal over decisions of federal agencies, other than those “not required by law to be made on a judicial or quasi-judicial basis.”   In time, and thanks largely to the Supreme Court of Canada (see especially, Martineau v Matsqui Institution Disciplinary Board, [1980] 1 SC R 602), the Federal Court of Appeal’s first instance judicial review jurisdiction came to be aligned in large part with the scope of administrative action to which the post-Nicholson duty of fairness applied. This whole mess was decisively cleared up when Parliament amended the Federal Court Act by conferring first instance, exclusive jurisdiction on the Federal Court of Appeal over the federal tribunals specifically listed in s 28(1): see S C 1990, c 9, s 8.

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  Also important in English administrative law was Padfield v Minister of Agriculture, Fisheries and Food, [1968] AC 997 (Eng HL), which reaffirmed in the broadest terms the scope of the courts’ jurisdiction to review the exercise of statutory discretion, even when conferred on a minister in subjective language. Given Le Dain’s firmly held view that the rule of law required judicial oversight against the abuse of discretion, even at the highest political level (see above at 170 and 183), Padfield v Ministries of Agriculture, Fisheries, and Food must have won his wholehearted approval. See, for example, his approach in Maple Lodge Farms Ltd v Government of Canada, [1981] 1 FC 500 (C A ) to the review of the exercise of broad ministerial discretion. On appeal ([1982] 2 SC R 2), his decision and reasons were affirmed. Similarly, in Inuit Tapirisat v The Right Honourable Jules Léger, at 718–19, he relied on Roncarelli v Duplessis and Padfield v Ministries of Agriculture, Fisheries and Food for the proposition that despite the absence of statutory criteria governing the grounds on which the Cabinet could determine an appeal from the Canadian Radio-television and Telecommunications Commission, the Cabinet’s power was not legally unlimited. Any policy considerations it took into account had to be related to communications policy.   In more recent years, Canadian administrative law has largely charted its own path, especially as a result of obsessing over standards of review and of efforts to integrate the Canadian Charter of Rights and Freedoms into the review of administrative action. English authorities are consequently often regarded as of relatively little relevance in Canada. 26 Le Dain’s notes on his cases also reveal the care that he took to track down recent decisions by English and American courts (often probably on his own initiative) that he thought might shed some light on the issue under consideration. 27 See, for example, his reasons in Desjardins v Bouchard, [1983] 2 FC 641 at 652 (CA) (“while I have experienced considerable difficulty with this case”), and in Domestic Converters Corporation v Arctic Steamship Line, [1984] 1 FC 211 at 237 (CA) (conclusion reached “not without difficulty or concern”). In his notes he describes Canadian National Railway Company v Canadian Human Rights Commission [1983] 2 FC 531 (C A ) as “extraordinarily difficult and elusive.” 28 See Richard W. Pound, Chief Justice Jackett: By the Law of the Land (Toronto: Osgoode Society for Canadian Legal History, 1999), 230. However, Jackett himself took great pains to get to the bottom of a legal issue, as the idiosyncratic and distracting extensive footnotes and appendices to his reasons reveal. I recognize that I may be the last person who should draw attention to others’ liberal footnoting!

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29 He was followed by Frank Iacobucci and Marshall Rothstein. Marc Nadon’s appointment to one of the Quebec seats on the Court was nullified by the Supreme Court of Canada: Reference re Supreme Court Act, ss 5 and 6, 2014 S CC 23, [2014] 1 S CR 433. Despite his pre-Osgoode legal career in Montreal, Le Dain was appointed to an Ontario seat, ­perhaps presciently. 30 Judges of all superior courts in Canada are appointed by the federal Government (Constitution Act, 1867, s 96) and administer both provincial and federal law, except to the extent that Parliament has removed their jurisdiction over federal law. All courts (except those created under s 101) are established by provincial legislation (s 92(14)).   In addition to the constitutional issues described in this section, the interpretation of the Federal Court Act raised difficult questions about the scope of the Courts’ statutory jurisdiction. For example, s 18 provided that they had exclusive jurisdiction over judicial review proceedings against “a federal board, commission or other tribunal,” words further defined by s 2. Problems abounded in the interpretation of these words, making it difficult for litigants to know whether they had to commence proceedings in the Federal Courts or in the superior court of the relevant province.   Nor were litigants’ statutory jurisdictional problems necessarily over once it was clear that their matter belonged in the Federal Court. They were then faced with the dilemma of knowing in which Division of the Court to commence their proceeding, a question that turned on the poorly drafted s 28.   Le Dain made his main contribution to defining the scope of the Federal Court’s administrative law jurisdiction when he was a judge of the Supreme Court of Canada. Writing for the Court in R v Miller, [1985] 2 S C R 613, and Cardinal v Director of Kent Institution, at 643, he held that a federal penitentiary inmate could challenge the legality of his detention by seeking a writ of habeas corpus with certiorari in aid in a provincial superior court, even though the Federal Court had exclusive jurisdiction to issue certiorari to quash unlawful decisions of federal decision-makers, including that of the penitentiary authority in this case.   In protecting provincial superior courts’ habeas corpus jurisdiction in respect of federal officials, Le Dain’s primary concern was to ensure that access to speedy justice was not denied to those challenging the legality of their detention. Outside some very limited circumstances (see s 18(2)), the Federal Court has no jurisdiction to issue habeas corpus. For an endorsement and expansion of Le Dain’s reasoning in R v Miller, see Mission Institution v Khela, 2014 S CC 24, [2014] 1 SC R 562.

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  Under the so-called Peiroo exception (Peiroo v Canada (Minister of Employment and Immigration) (1989), 69 OR (2d) 353 (C A )), provincial superior courts normally deferred to the Federal Court and dismissed applications for habeas corpus in immigration matters. However, in Chaudhary v Canada (Public Safety and Emergency Preparedness), 2015 O NC A 700, 127 OR (2d) 401, the Court held that Peiroo v Minister of Employment and Immigration did not apply to the review of detention under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA ], and that habeas corpus may be granted when a detention has been long and its duration is uncertain. Habeas corpus is regarded as a more effective remedy than judicial review in the Federal Court, where leave is required to apply for judicial review of a decision under IRPA . See also Scotland v Canada (AG ), 2017 ON S C 4850; Ali v Canada (AG ), 2017 O NS C 2660.   In addition, the Supreme Court has held that the Federal Courts’ exclusive judicial review jurisdiction is defined by the nature of the proceeding, not of the substantive issues: see Canada (AG ) v Telezone Inc, 2010 S C C  62. [2010] 3 S CR 585 [Telezone]; Strickland v Canada (AG ), 2015 S C C 37, [2015] 2 S CR 713. 31 What is now the Constitution Act, 1867, was then known as the British North America Act, 1867.   For a more complete account of the constitutional battle over the scope of federal jurisdiction, especially the institutional and personal aspects of the controversy, see Bushnell, Federal Court, chaps 19–21. For an analysis of the cases, see also John B. Laskin and Robert J. Sharpe, “Constricting Federal Court Jurisdiction: A Comment on Fuller Construction,” University of Toronto Law Journal 30 (1980): 283; John M. Evans, “Federal Jurisdiction: A Lamentable Situation,” Canadian Bar Review 51 (1981): 124; John M. Evans and Brian Slattery, “Federal Jurisdiction – Pendent Parties – Aboriginal Title and Federal Common Law,” Canadian Bar Review 68 (1989): 818. 32 [1976] 1 FC 646 (CA). 33 Ibid., at 652. 34 Quebec North Shore Paper Co v Canadian Pacific Ltd, [1977] 2 SC R 1054. This case provides an object lesson in the dynamic nature of litigation as it proceeds up the judicial hierarchy, and of the dangers of judges opining on issues not argued by counsel. 35 Exceptions include the common law of Aboriginal title (Roberts v Canada, [1989] 1 S CR 322), and the liability of the Crown (McNamara Construction (Western) Ltd v R, [1977] 2 SC R 654 at 662). Federal jurisdiction also extends to disputes arising from contracts made within a

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federal statutory scheme (Rhine v R, [1980] 2 SC R 442), or are part and parcel of a matter within the Courts’ jurisdiction (Apotex Inc v Allergan Inc, 2016 F CA 155, at paras 11–15). 36 Canadian Transit Company v Windsor (City), 2015 FC A 88, reversing the Federal Court (2014 FC 461). 37 Windsor (City) v Canadian Transit Company, 2016 SC C 54. 38 Ibid., at paras 58–64. Writing for the majority, Karakatsanis J strongly disagreed with the Federal Court of Appeal’s “suggestion” that the Constitution is one of the “Laws of Canada” under s 101: “Constitutional law is neither federal nor provincial. The Constitution precedes the distinction: it is the Constitution itself that bifurcates Canadian law into ­federal and provincial matters”: at para 64. 39 Windsor (City) v Canadian Transit Company at para 41. The Federal Court of Appeal made no mention of the “made under an Act of Parliament or otherwise” requirement of s 23. 40 Ibid., at paras 31–3 emphasizing the pride of place occupied by the superior courts of the provinces recognized by s 96. In contrast the Federal Courts are mere creatures of statute and, despite the fact that ss 3 and 4 of the Federal Courts Act constitute them as “superior courts of record,” they are so only in the limited sense that their jurisdiction is supervisory: ibid. at para 33 at note 2. However, as the dissenters pointed out, a broader reading of the requirement of s 23 that a claim must be made “under” a federal law does not expand the constitutional limits on federal jurisdiction: at para 79.   For a more positive view of the place of the Federal Courts in Canada’s court system see the dissenting opinion of Moldaver and Brown J J (Côté J concurring), Windsor (City) v Canadian Transit Company, at paras 73–9. They held that when considered in their entirety, the declarations sought by Canadian Transit constituted claims “made under an Act of Parliament or otherwise” within the meaning of s 23, because they “related to a federal work or undertaking and the rights that the claimant seeks to enforce arise from an Act of Parliament.” And see Isen v Simms, 2006 SC C  41. They also held that determining the “essential nature” of a claim was relevant to whether the Federal Court should in its discretion exercise its jurisdiction, not to whether it has jurisdiction: at paras 81–2. 41 Canadian Transit Company v Windsor (City). 42 Since tort claims against the federal Crown are based on federal law (McNamara Construction (Western) v R), the Federal Court’s exclusive jurisdiction over them survived. However, the Court later held in R v Thomas Fuller Construction Co, [1980] 1 SC R 695, that a claim by the

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federal Crown for indemnity or contribution from a concurrent tortfeasor (whether made by way of a third party notice or an independent action) is outside federal jurisdiction because rights of contribution or indemnity are created by provincial law, even though the injured person’s cause of action and the Crown’s claim for contribution arose from the same facts and depended on its liability to the injured person, which is a question of federal law. Multiple lawsuits were thus necessary to determine liability arising from an essentially common set of facts: actions by the injured party against the federal Crown in the Federal Court, and against other defendants in the relevant provincial superior court, where the Crown would have to make any claim for contribution or indemnity.   The Supreme Court refused to adopt the ancillary or pendent jurisdiction concept that the Supreme Court of the United States had employed to expand federal jurisdiction in order to avoid similar problems: see Roberts v Canada, at 333–4. Parliament eventually cleared up the mess by amending the Federal Court Act so as to make the Federal Court’s formerly exclusive jurisdiction over actions for damages against the federal Crown concurrent with the courts of the provinces: see SC 1990, c 8, s 3(1).   As a result, few claims for damages against the federal Crown are commenced in the Federal Court when other parties might also be involved, in order to avoid potential problems arising from the constitutional limits on federal jurisdiction. Further, permitting actions against the federal Crown involving the legality of federal administrative action to be commenced in a provincial superior court has also eroded the Federal Courts’ exclusive judicial review jurisdiction over federal agencies: see Canada (AG ) v Telezone Inc. 43 [1979] 2 FC 575 (CA). 44 R S C 1970, c C -14. The Act incorporated into Canadian domestic law terms of the Warsaw Convention of 1929 as modified at The Hague in 1955. In particular, it provided that the carrier was liable for loss unless it proved that it was not at fault, liability was normally limited to specified amounts, and provisions tending to relieve the carrier of liability under the Convention are void. 45 Bensol Customs Brokers Ltd v Air Canada, at 579. He also held that the claim of the “real” plaintiff, the insurance company that was alleged to be subrogated to the rights of the owners of the goods that Air Canada had failed to deliver to the consignee, also fell within s 23 because it was governed by both the Carriage by Air Act and the provincial law of subrogation: at 580. I doubt whether this has survived the holding in R v Thomas Fuller Construction Co that a claim by the federal Crown for contribution

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or indemnity from a concurrent wrongdoer, a claim created by provincial law, is not founded on a law of Canada, even though it arises from the Crown’s liability to the injured person, which is based on federal law. 46 Quebec North Shore Paper Co v Canadian Pacific Ltd, at 1057–8, 1063 had held that a claim was only made under an Act of Parliament or otherwise for the purpose of s 23 if the action was founded on a law of Canada within the meaning of s 101. 47 McNamara Construction (Western) Ltd v R. 48 Bensol Customs Brokers v Air Canada, at 582–3. In his notes, Le Dain correctly observes that since McNamara Construction was not a case in which there was any federal law at all relevant to the parties’ rights, the Supreme Court in that case did not have to consider the issue that arose in Bensol Customs Brokers v Air Canada, that is, the relationship between federal law and a party’s rights that must be established to engage federal jurisdiction, when both federal and provincial law are relevant to the determination of the dispute. The same is true of Quebec North Shore Paper Co. v Canadian Pacific Ltd. 49 Bensol Customs Brokers v Air Canada, at 583. 50 [1986] 1 SCR 752 at 766, 777. 51 ITO – Int’l Terminal Operators v Miida Electronics, at 781. To similar effect, see Stratas JA in Canadian Transit Company v Windsor (City), at para 38, and Moldaver and Brown JJ dissenting in Windsor (City) v Canadian Transit Company in the Supreme Court, at para 106 (the Federal Court may apply provincial law incidentally when necessary to resolve a dispute, “when federal law provides an essential framework for the application of provincial law”). 52 Roberts v Canada. 53 Ibid., at 333. 54 Ibid., at 336. 55 Ibid., at 331. However, since both legal sources of the parties’ rights in Roberts – a federal statute and Aboriginal title – were federal law, the issue did not arise for decision. 56 Canadian Transit Company v Windsor (City), at paras 36–40. 57 Ibid., at paras 41–2. 58 Windsor (City) v Canadian Transit Company, at para 65. 59 Ibid., at para 69. 60 Ibid. The dissenting opinion of Moldaver and Brown J J floated several formulations of the required nexus: for example, federal law must play a “primary role” in the outcome” and be “essential to the disposition of the case” (at para 106) and be “central” to the claim (at para 111), and the claim must rely “primarily on federal law” (at para 115).

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  In concluding that federal law did play an “essential role” in Canadian Transit’s claim, Stratas JA included the constitutional doctrines of paramountcy and interjurisdictional immunity as laws of Canada: at para 42. Moldaver and Brown JJ agreed that since the Canadian Transit’s statutory powers were essential to the outcome, federal jurisdiction was engaged (Windsor (City) v Canadian Transit Company at paras 105 and 111). It can be inferred that, like the majority (at para 38), they did not regard the constitutional doctrines of paramountcy and interjurisdictional immunity as “laws of Canada” and thus not “an Act of Parliament or otherwise” for the purpose of s 23(c). They recognized that both constitutional and provincial law were also relevant to the claim but concluded that the case was within federal jurisdiction because of the centrality of Canadian Transit’s statutory powers to the outcome (at para 115). 61 Bensol Customs Brokers v Air Canada. 62 Ibid. 63 In Roberts, the Court had stated that when a claim “is resting on provincial law” the fact that it is “affected” by federal law does not bring it within federal jurisdiction: at 334. 64 Quebec North Shore Paper Co v Canadian Pacific Ltd, at 447 and 449. 65 See now Federal Courts Act, s 22, and the definition of “Canadian Maritime Law” in s 2. 66 See, in particular, ITO – Int’l Terminal Operators v Miida Electronics, at 766–74. 67 See, for example, Skaarup Shipping Corporation v Hawker Industries Ltd, [1980] 2 FC 746 (CA). However, he had taken a narrower view in Antares Shipping Corporation v The “Capricorn,” [1978] 2 FC 834 (C A ), but was reversed on appeal: see [1980] 1 S CR 553. 68 [1984] 1 FC 211 (CA). 69 Unreported judgment dated 17 January 1977, court file no. T-3081-72. 70 Skaarup Shipping Corporation v Hawker Industries Ltd, at 237. 71 [1982] 1 FC 406 (CA). Although not appearing in the official reports until 1984, Domestic Converters had actually been decided in 1980, five months before the Federal Court of Appeal decided Miida Electronics Ltd v Mitsui osk Lines and ito . 72 Miida Electronics Ltd v Mitsui osk Lines and ito , at 416. I am grateful to my friend and former Federal Court of Appeal colleague, Justice Marc Nadon, who was counsel for the cargo owners in ITO , for discussing these cases with me. He advised the Federal Court of Appeal at the hearing of ITO that it had been wrong in Domestic Converters to rely on older cases from the United States for the proposition that the locality of the tort was the test of federal maritime jurisdiction, because they had been reversed.

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Nadon said that Le Dain seemed taken aback by this and remained uncharacteristically silent throughout the rest of the hearing. In his notes for the ITO case Le Dain stated that he now agrees with counsel for the cargo owners that more recent decisions of the Supreme Court of the United States had been critical of the rule that the locality of the tort is determinative of whether it falls within maritime law. 73 Miida Electronics Ltd v Mitsui osk Lines and ito , at 417. 74 Contrast Isen v Simms, 2006 S CC 41, [2006] 2 SC R 349 (liability for injury caused while a pleasure craft was being readied for transportation by road after being removed from the water not governed by Canadian maritime law and thus not within federal jurisdiction).   The importance to maritime commerce of a uniform law dealing with maritime-related matters may well explain why the Supreme Court of Canada regarded maritime law as part of the laws of Canada within the meaning of s 101, subject only to the constitutional limits on Parliament’s legislative competence over navigation and shipping.   No similar considerations apply to claims by the Crown or to actions brought under s 23. But see the view of the dissenters in Windsor (City) v Canadian Transit Company, at para 78, that a broad interpretation of s 23(c) was necessary to achieve the legislative goal of providing a single and convenient forum for litigants in different parts of the country to enforce claims with national elements. 75 ito – Int’l Terminal Operators v Miida Electronics, at 782–800. 76 Le Dain also changed his mind on the relevance to standing in administrative law proceedings of the constitutional law cases that had introduced a more liberal standing requirement. In Rothmans of Pall Mall Canada Ltd v Minister of National Revenue, [1976] 2 F C 500 (C A ), he had held that Thorson v Canada (A G ), [1975] 1 S C R 138, and Nova Scotia Board of Censors v McNeil, [1976] 2 S C R 265, were not relevant to Rothman’s standing to challenge the minister’s interpretation of the statute. On the other hand, as a judge of the Supreme Court he held in Finlay v Canada (Minister of National Revenue), [1986] 2 S C R 607, that the liberalized view of standing in constitutional cases was applicable to an administrative law challenge to a decision. In fairness to Le Dain, he decided Finlay – a very influential decision in liberalizing standing in administrative law cases – after the Supreme Court had released its decision in Borowski v Minister of Justice of Canada, [1981] 2 S C R 575, a case brought under the quasi-constitutional Canadian Bill of Rights that became the leading authority on public interest standing. It can be assumed that the Court’s further relaxation

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of public interest standing in the constitutional case of Canada (A G ) v Downtown Eastside Sex Workers United against Violence Society, 2012 S C C 45, [2012] 2 S C R 524, will be equally applicable to administrative law litigation. 77 [1983] 1 FC 745 (CA). 78 [1983] 2 FC 531 (CA). Mr Bhinder was the complainant. 79 [1983] 1 FC 429 (TD). 80 The panel comprised Pratte, Ryan, Le Dain, Marceau, and Hugessen J J . While the Court was unanimous in dismissing the appeal, each judge wrote his own reasons, covering a variety of issues. Until very recently, the last time that the Court sat a panel of five was in Canada v Aqua-Gem Investments Ltd, [1993] 2 FC 425 (CA), where the Court split 3–2 on the standard of review to be applied on appeal to a discretionary order of a prothonotary. In light of this history, it is perhaps not surprising that, unlike other intermediate appellate courts in Canada, the Federal Court of Appeal has set its face rather firmly against convening five-judge panels, even when requested to reconsider a previous decision.   However, a five-judge panel was convened in Hospira Healthcare Corporation v The Kennedy Institute of Rheumatology, 2016 FC A 215. In this case, the Court unanimously agreed to reconsider Canada v AquaGem Investments Ltd, which it held had been wrongly decided, in that it did not apply to all discretionary decisions of prothonotaries the reasonableness standard of review prescribed by Housen v Nikolaisen, 2002 SC C 33, [2002] 2 S CR 235, for similar decisions by trial judges. 81 R v Operation Dismantle Inc, at 764–5. 82 Ibid., at 765. Contrast the statement by Pratte J (at 752) that the Charter does not empower courts to substitute their views for those of the executive on “purely political questions.” 83 The reasons of Ryan J (at 745–60) are similar to Le Dain’s: whether the testing of nuclear weapons in Canada made Canadians safer or exposed them to greater risks was a factual question but one that was not susceptible of proof in a court. 84 R v Operation Dismantle Inc, at 766. Le Dain concluded that an amendment to the pleadings could not cure the defect in the statement of claim, because in oral argument counsel was unable to articulate any principle of fundamental justice that the decision to permit missile testing had breached. 85 He also noted that, unlike some other courts, the British Columbia Court of Appeal in Reference re section 94(2) of the Motor Vehicle Act (1983), 147 D L R (3d) 539, had recently decided that the principles of

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fundamental justice also have a substantive content, a position subsequently endorsed by the Supreme Court on appeal: [1985] 2 SC R 486. 86 For example, drawing on Article 5(1) of the European Convention on Human Rights, Pratte J was of the view (R v Operation Dismantle Inc, at 752–3) that the words “liberty and security of the person” in s 7 refer only to freedom from arbitrary arrest and detention. In addition, he stated (at 753, and Justice Hugessen agreed (at 785)) that the threat to Canadians’ safety relied on by the plaintiffs emanated from foreign governments; s 32 provides that the Charter applies only to Canadian governments. The fact that the Government of Canada may have created a dangerous situation was not enough to engage the Charter’s protections. But see now Singh v Canada (Minister of Employment and Immigration), [1985] 1 SCR 177 (removal from Canada of those with a well-founded fear of persecution by others in their country of origin engages s 7 rights), United States v Burns, 2001 S CC 7, [2001] 1 SC R 283 (breach of s 7 for Canada to extradite an individual when conviction in a court of the requesting state may result in death penalty), and Canada (Prime Minister) v Khadr, 2010 S CC 3, [2010] 1 SC R 44 (s 7 breach established on the basis of Canadian officials’ contribution to prolonging a detention caused principally by the United States). 87 Operation Dismantle v R, [1985] 1 S CR 441. 88 Ibid., at 464. For Dickson J this assumption did not apply to facts incapable of proof in litigation (ibid. at 455). 89 Compare his earlier decision in Inuit Tapirisat of Canada v The Right Honourable Jules Léger that the duty of fairness applied to an exercise by the Cabinet of a statutory power to reverse or amend a decision of a federal regulatory agency: see further at 188–92. 90 See 209. 91 Canadian National Railway Company v Canadian Human Rights Commission. 92 A majority of the Supreme Court rejected Le Dain’s analysis when Bhinder was appealed, but substantially adopted it in Central Alberta Dairy Pool v Alberta (Human Rights Commission), [1990] 2 SC R 489. 93 C N’s policy was adopted pursuant to regulations under the Canada Labour Code. Following Mr Bhinder’s complaint, the Canadian Human Rights Commission asked Labour Canada to grant him an exemption from the policy on the ground that a turban provided adequate protection. The request was denied. 94 SC 1976-77, c 33, ss 7 and 10. For the current statute, see RSC 1985, c H-6.

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  95 Professor Peter Cumming was chair of the Tribunal. Cumming was a very experienced human rights adjudicator at the federal level and in Ontario, and was a pioneer in Canada in interpreting anti-discrimination legislation to include indirect discrimination and a duty to accommodate. He had been a colleague of Le Dain’s at Osgoode and subsequently went on to be a well-regarded judge of Ontario’s Superior Court of Justice.  96 Canadian National Railway Company v Canadian Human Rights Commission. The Charter did not apply because the events giving rise to Mr Bhinder’s complaint occurred before s 15, the equality provision, came into effect.  97 Canadian National Railway Company v Canadian Human Rights Commission, at 534–7. He noted that, unlike the Canadian Human Rights Act, the United States’ Civil Rights Act defined a discriminatory practice as including one that “adversely affects” individuals because of their, race, colour, religion, etc. This difference, he said, reduced the value of Griggs v Duke Power Co, 401 US 424, in the interpretation of the Canadian Human Rights Act. He did not regard the definition of a discriminatory practice in s 10 as one that ”deprives or tends to deprive” individuals of employment opportunities, to be sufficiently explicit so as to include practices that were neutral on their face, but nonetheless had an unintentional adverse effect on individuals on a prohibited ground.  98 In Ontario Human Rights Commission v Borough of Etobicoke, [1982] 1 S C R 202 at 208, the Court had defined a bona fide occupational qualification as one that was imposed in good faith and not with a view to subverting the objectives of the legislation. It must also relate objectively to the performance of the employment concerned by promoting the efficient and economical performance of the job without endangering the employee in question, other employees, or the public at large. There is no difference for this purpose between a bona fide occupational requirement in the Canadian Human Rights Act and bona fide occupational qualification, the term used in other human rights statutes.  99 Canadian National Railway Company v Canadian Human Rights Commission, at 537–41. 100 Ibid., at 566–9. 101 The Court released its decision six and a half months after the hearing. To put Le Dain’s concern about delay into perspective, chief justices of the Federal Court of Appeal in my experience have generally expected panels to issue their reasons within six months of a hearing. However, they have also recognized that in some circumstances, including the complex nature

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of an appeal, the preparation of reasons may take longer. For these exceptional cases, delays of up to a year are currently not unknown. Le Dain need not have worried that he was being unduly slow with his reasons. 102 Canadian National Railway Company v Canadian Human Rights Commission, at 550–6. Curiously, he was not prepared to interpret s 7 of the Canadian Human Rights Act equally broadly, despite it reference to “directly or indirectly” refusing to continue a person’s employment. 103 As, for example, the Supreme Court did in Ontario Human Rights Commission v Simpson-Sears Ltd, [1985] 2 SC R 536 at 546–7. 104 The Ontario Court of Appeal had refused to apply the concept of adverse effect discrimination, in part because the legislation contained no bona fide occupational requirement respecting discrimination on the ground of religion: Simpson-Sears Ltd v Ontario Human Rights Commission (1982), 38 O R (2d) 423 (CA). The Supreme Court reversed on appeal: Ontario Human Rights Commission v Simpson-Sears Ltd. 105 Insurance Corp’n of British Columbia v Heerspink, [1983] 2 SC R 145 at 153–8 (per Lamer J). The notion that human rights legislation has a quasiconstitutional status quickly became the orthodoxy: see, for example, Ontario Human Rights Commission v Simpson-Sears Ltd. 106 The tribunal made other important findings of fact, such as that the additional risk of electrocution to which Mr Bhinder would be exposed by wearing a turban rather than a hard hat was slight, and that the risk to other workers was nil. Le Dain held that on the evidence these findings could not be set aside under the narrow scope of review of findings of fact under what is now s 28(1)(d) of the Federal Courts Act. 107 Canadian National Railway Company v Canadian Human Rights Commission, at 561–4. 108 Bhinder v Canadian National Railway Company, [1985] 2 SC R 561. 109 Ibid., at 580 (Wilson J; Beetz J concurring), and 583–90 (McIntyre J; Estey and Chouinard JJ concurring). 110 Bhinder v Canadian National Railway Company, at 567–73. Not surprisingly, however, they and the rest of the Court disagreed (at 566–7, 580, and 586) with Le Dain’s conclusion that s 7 of the Canadian Human Rights Act did not apply to adverse effect discrimination. 111 Central Alberta Dairy Pool v Alberta (Human Rights Commission). 112 See, for example, Council of Canadians with Disabilities v VIA Rail Canada Inc., 2007 S CC 15, [2007] 1 S CR 650 at paras 88, 97–100; Public Service Alliance of Canada v Canada Post Corporation, 2010 FC A 56, [2011] 2 F CR 221 (CA) at paras 301–2 (aff’d 2011 SC C 57, [2011] 3 SC R

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572); Canada (Human Rights Tribunal) v Canada (AG ), 2011 SC C 53, [2011] 3 S CR 471 at paras 25–7.   On the other hand, despite the deference normally given to administrative tribunals’ interpretation of their enabling legislation after Dunsmuir v New Brunswick, the Supreme Court seems to review on the correctness standard human rights tribunals’ interpretation of statutory provisions corresponding to an issue that might arise under s 15 of the Charter: see Brown and Evans, Judicial Review, VT2016 at 12–13 (“View from the Top: Administrative Law in the Supreme Court of Canada, 2015–2016”). 113 By virtue of s 7 of the Charter, the principles of fundamental justice provide a constitutional guarantee of, among other things, procedural fairness against the deprivation of the right to life, liberty, or security of the person. 114 The duty of fairness also includes a requirement that decision-makers be impartial and independent and, since the 1998 decision in Baker v Canada (Minister of Citizenship and Immigration), a duty to give reasons. 115 In addition to the cases discussed below, see Bambrough v Public Service Commission, [1976] 2 FC 109 (CA), where Le Dain regarded fairness as implicit in the merit principle applicable to appointments and promotions in the federal public service. 116 Jiminez-Perez v Minister of Employment and Immigration, [1983] 1 FC 163 (C A ). 117 S C 1976–77, c 52. See now Immigration and Refugee Protection Act, S C  2001, c 27. 118 The couple had recently had a baby and argued that it would be a hardship for them if the applicant was required to leave Canada before being able to apply for a visa. 119 Immigration Act, s 9; now Immigration and Refugee Protection Act, s 11(1). 120 Immigration Act, at s 115; now Immigration and Refugee Protection Act, s 25(1). In Kanthasamy v Canada (Citizenship and Immigration), 2015 S C C 61, [2015] 3 S CR 909, the Court adopted a significantly broader interpretation of this statutory discretion than it had previously generally received from officials. 121 Jiminez-Perez v Minister of Manpower and Immigration, at 171, 172. 122 Minister of Manpower and Immigration v Tsiafakis, [1977] 2 FC 216 (CA). 123 Ibid., at 223–7. In rejecting the futile exercise of dividing the questions to be decided by an administrative decision-maker into “preliminary” and “the merits,” Le Dain was in line with the rethinking of jurisdictional review that started with Canadian Union of Public Employees, Local 963

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v New Brunswick Liquor Corporation. The Supreme Court of Canada definitively disavowed the “preliminary question” approach in Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 S C C 10, [2012] 1 S CR 364, at para 34. S 79(2) of the Immigration Act gave a sponsor, whose application was refused, a right of appeal to the Immigration Appeal Board, but there was no right of appeal against a refusal to issue the application form. However, Le Dain found it unnecessary to decide the case on the ground that a duty to issue the form was necessary in order to prevent the subversion of the statutory right of appeal against the refusal of sponsorship applications. See also his dissenting opinion in Oloko v Employment and Immigration Commission, [1978] 2 FC 593 (CA), and Louhisdon v Employment and Immigration Commission, [1978] 2 FC 589, holding that a senior immigration officer erred in law by refusing to adjourn a deportation inquiry pending the determination of the applicant’s H&C application. Compare Le Dain’s decisions when a judge of the Supreme Court in insisting in Miller and Cardinal v Kent Institution on penitentiary inmates’ ­entitlement to procedural fairness before being confined to administrative segregation. In addition to the cases discussed in the text and already referred to in footnotes, see, for example, McCarthy v Minister of Manpower and Immigration, [1979] 1 FC 121 (CA) (failure to adjourn deportation inquiry to permit applicant to be represented by counsel); Faiva v Minister of Employment and Immigration, [1983] 2 FC 3 (C A ) (deportation order set aside on the ground that adjudicator had refused to adjourn the hearing so that applicant could have an interpreter). Evans v Public Service Commission Appeal Board, [1981] 2 FC 845 (C A ) is one of the few cases in which Le Dain held that an individual was not entitled to make submissions and present evidence. He likened the function of the board in determining the applicant’s suitability for appointment to a position in the public service to that of an examining body. For an example of his contextualizing the application of the rule against bias, see Caccamo v Minister of Manpower and Immigration, [1978] 1 F C 366 (C A ) (special inquiry officer also a member of the prosecuting department). See, in particular, Cardinal v Kent Institution, at 651. Compare Faiva v Minister of Employment and Immigration (difficulty in finding a needed interpreter did not justify proceeding with a deportation inquiry). However, Le Dain’s unqualified assertion that a breach of the duty of procedural

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fairness “always” renders a decision a nullity does not represent the current law: see Brown and Evans, Judicial Review, at chap 3:3300. 130 Nicholson v Haldimand-Norfolk (Regional Municipality). 131 Ridge v Baldwin. 132 This was perhaps most famously illustrated by his reasons as a Supreme Court justice in Cardinal v Director of Kent Institution, at 653, where he said, “As a general common law principle, a duty of procedural fairness … [lies] on every public authority making an administrative decision which is not of a legislative character and which affects the rights, privileges or interests of an individual.”  In Danch v Nadon, [1978] 2 FC 484 (C A ), a pre-Nicholson case, he had held that the dismissal of an RCM P officer for “unsuitability” should be set aside because relevant information had not been disclosed. However, his reasons do not contain a more general statement of principle on the scope of the implied right to be heard. 133 Ridge v Baldwin. 134 R S C 1970, c N-7; appeals to the Cabinet from decisions of the Canadian Radio-television and Telecommunications Commission are now governed by the Telecommunications Act, S C 1993, c 38, s 12. 135 Inuit Tapirisat v The Right Honourable Jules Léger. 136 [1979] 1 FC 213 (TD). 137 The Canadian Radio-television and Telecommunications Commission had conducted the “hearing” in writing in this case. 138 The applicants were also concerned that only a summary of their written submissions to the Canadian Radio-television and Telecommunications Commission had been put before the Cabinet. 139 Nicholson v Haldimand-Norfolk (Regional Municipality). 140 S 64(1) also authorized the Cabinet to vary or reverse a Canadian Radiotelevision and Telecommunications Commission decision on its own motion. 141 Le Dain played down the distinction between the rules of natural justice applicable to judicial and quasi-judicial decisions, and the duty of fairness applicable to administrative decisions. 142 Inuit Tapirisat v The Right Honourable Jules Léger, at 717. 143 He also concluded (at 721) that the nature of Cabinet decision-making precluded any right for the petitioners to make their submissions directly to the Cabinet, as opposed to through a summary of their position prepared by officials. He further noted with apparent approval that the statement of claim did not assert that the duty of fairness conferred on the petitioners a right to an oral hearing before the Cabinet.

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144 Canada (AG ) v Inuit Tapirisat. Writing for the Court, Estey J noted that the plaintiffs placed little weight on their lack of an opportunity to respond to Bell’s submissions, presumably because, having intervened before the Canadian Radio-television and Telecommunications Com­ mission, they were aware of Bell’s arguments and could deal with them in their petition. It also appeared that the applicants had received a copy of Bell’s reply, presumably from Bell itself. In the Supreme Court the plaintiffs relied principally on the lack of an opportunity to see and reply to the case against them as outlined in the material submitted to the Cabinet by departmental officials, the minister, and the Canadian Radio-television and Telecommunications Commission. 145 Canada (AG ) v Inuit Tapirisat, at 757–8. Estey J relied on an English case, Bates v Lord Hailsham, [1973] 1 W LR 1373 (Eng Ch D), a first instance decision holding that the duty of fairness did not apply to a power to make regulations because it was legislative in nature. Ironically, Le Dain also relied on this case, but for the proposition that the rules of natural justice applied to quasi-judicial decisions, and the duty of fairness to those of an administrative nature: Inuit Tapirisat v The Right Honourable Jules Léger, at 715. 146 For example, he limited the scope of his decision to situations where the Cabinet acted on a petition from a participant in the administrative ­proceeding below. Estey J in contrast reasoned (at 755–6) that since Parliament could not have intended the duty of fairness to apply to Cabinet decisions made on its own motion, it could not have had a different intention when the appeal was initiated by a petitioner in an inter ­partes appeal. For Le Dain, the fact that Cabinet could reverse or vary an order of the Canadian Radio-television and Telecommunications Com­ mission on its own motion or on petition simply indicated that Parliament did not intend to subject the Cabinet to the duty of fairness in all cases when it exercised its powers under s 64(1).   Similarly, Estey J rejected Le Dain’s conclusion that while Cabinet confidentiality applied to material emanating from within government, there was no objection to the disclosure of Bell’s submissions to the Cabinet (at 759–60).   See also Le Dain’s reasons in Seafarers International Union of Canada v Canadian National Railway Co for a similarly nuanced and contextual approach to the extent of disclosure required by the duty of fairness on particular facts. 147 Contrast Estey J’s view that a Cabinet decision was reviewable for failure to comply with any conditions precedent attached to the exercise of its

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power (Canada (AG ) v Inuit Tapirisat, at 748). Looking for an explicit indication in the statute of Parliament’s intention to impose a duty to act fairly is reminiscent of the search for a “super-added” duty to act judicially, which was discredited by Ridge v Baldwin. 148 Compare Le Dain’s reasons in Seafarers International Union of Canada v Canadian National Railway Co (right of objectors to a proposed corporate takeover to a full and fair hearing essential to ensuring that the regulator’s decision is fully informed). See also Canadian Broadcasting League v Canadian Radio-television and Telecommunications Commission, [1980] 1 FC 396 (CA) (public interest intervener has standing to make an application for judicial review of a Canadian Radio-television and Telecommunications Commission decision on the ground of breach of the duty of fairness). 149 Canadian National Railway Co v Canada (AG ), 2014 SC C 40, [2014] 2 S C R 135, at para 39. For further analysis, see Brown and Evans, Judicial Review, 2014VT at 25–6 (“View from the Top: Administrative Law in the Supreme Court of Canada, 2013–2014”). 150 Canadian Nation Railway Co v Canada (AG ). 151 Desjardins v Bouchard. 152 Ibid., at 654. 153 His embrace of judicial deference to decisions of specialist administrative tribunals is most evident in his reasons in Canadian National Railway Company v Canadian Human Rights Commission. In addition, his contextual and broad purposive approach to the interpretation of regulatory legislation often led him to uphold the administrative action impugned. On the other hand, he insisted that courts had a vital role to play in protecting basic human rights and ensuring that decision-makers act in a procedurally fair manner.

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10 Crown Zellerbach: Bringing Clarity to National Concern Peter W. Hogg

In R v Crown Zellerbach,1 the issue was whether a federal law prohibiting ships from dumping waste “at sea” was valid. This required a determination as to whether the federal Parliament could regulate “marine pollution,” which was pollution in sea water, not only in the waters outside the boundaries of the provinces (that was not in doubt), but also in the internal waters of the provinces. Crown Zellerbach was charged with dumping forestry waste in the internal waters of British Columbia. Le Dain J wrote the opinion for the majority of the Supreme Court of Canada, upholding the federal power under the national concern branch of peace, order, and good government. This was, and still is, only the third case since the abolition of Privy Council appeals in 1949 to apply the national concern branch as the sole basis for upholding a federal statute (the other two covered aeronautics and the national capital region). Le Dain J’s opinion, written in his usual felicitous style, provides clarity and principled coherence to what had been unclear and confused. After Crown Zellerbach it was established that the national concern branch was separate and apart from the emergency branch, and that it was subject to requirements of distinctness (“singleness, distinctiveness and indivisibility”) and provincial inability (which he defined). These limitations on the power gave it definition and provided safeguards against radical federal incursions into provincial jurisdiction.

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T h e P e ac e , Order, a n d G o o d G ov e r nment Power The opening words of s 91 of the Constitution Act, 1867, confer on the Parliament of Canada the power “to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces.” This language is followed “for greater certainty” by an enumerated list of twenty-nine specific heads of power within the legislative authority of the Parliament of Canada.

R e s idua ry N at u re of Power This power to make laws for the “peace, order, and good government of Canada” (the “P OGG” power)2 is residuary in its relationship to the provincial heads of power, because it is expressly confined to “matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces.” It is clear from this language that any matter that does not come within a provincial head of power must be within the power of the federal Parliament. By this means, the distribution of legislative powers was to be exhaustive. With only a few exceptions, of which the most important are the Charter of Rights and the amendment of the Constitution of Canada, the residuary nature of the federal power ensures that every possible subject of legislation belongs to one or other of the federal Parliament or the provincial legislatures. In practice, this residuary power has not proved as extensive as might have been – and probably was – expected in 1867. That is because the provincial heads of power, which are subtracted from the federal residue, include one of great extent and importance, namely, s 92(13), “property and civil rights in the province,” a power that is apt to include most of the private law of property, contracts, and torts, and their many regulatory and commercial derivatives. Indeed, at the hands of the Privy Council, s 92(13) became a kind of residuary power itself and one that is vastly more extensive and important than the federal P O G G power. A second potentially sweeping head of provincial power is s 92(16), “generally all matters of a merely local and private nature in the province.” This power has turned out to be

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relatively unimportant, because its work has been done for it by s 92(13); indeed, when it is mentioned at all it is often as a companion to s 92(13). The relationship between the P OGG language at the beginning of s 92 and the enumerated heads of federal legislative power that follow it has given rise to some controversy. One view, strongly suggested by the grammatical structure of s 91 and supported by the O’Connor Report3 and Bora Laskin,4 is that the P O G G power is not residuary at all in its relationship to the enumerated heads of federal power. On the contrary, according to this view, the P O G G power is the entire federal power, that is to say, all power not granted to the provincial legislatures. The enumerated heads of federal power are merely examples of the peace, order, and good government of Canada; they are not heads of power that exist independently of the opening words. This “general theory” of the P O GG power has never taken hold, and it suffers from the fatal objection that many of the enumerated heads of federal power are rather plainly not examples of the opening words. Topics such as “banking” (s 91(15)), “bills of exchange and promissory notes” (s 91(18)), “interest” (s 91(19)), “bankruptcy and insolvency” (s 91(21)), “patents of invention and discovery” (s 91(22)), “copyrights” (s 91(23)), and “marriage and divorce” (s 91(26)) would have been held to come within “property and civil rights in the province” (s 92(13)) if they had not been specifically enumerated in the federal list of s 91. The courts have consistently treated the topics enumerated in s 91 as free-standing heads of power, not as examples of some broader federal power. The P O G G power has been assumed to be residuary in its relationship to the federal as well as the provincial heads of power. Its office is to accommodate the matters that do not come within any of the enumerated heads of power, whether federal or provincial.

S c o p e o f Power The POGG power has been the trunk from which three branches have grown: the “national concern” branch, which is the primary subject of this chapter and is discussed more fully later; the “gap” branch, which fills gaps in the scheme of distribution of powers; and the “emergency” branch, which authorizes temporary laws to deal with emergencies. I will briefly describe the last two branches here before turning to a fuller treatment of the first branch (national concern).

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The second branch (gap) has not had a great deal of work to do. There are not many gaps in the scheme of distribution of powers, largely because of the expansive nature of property and civil rights in the province. But one of the enumerated provincial powers is “the incorporation of companies with provincial objects” (s 92(11)), which lacks any matching power in the federal list for companies with objects other than provincial. The Privy Council accordingly decided that the power to incorporate companies with objects other than provincial must fall within the federal P O G G power because of its residuary nature.5 Another example is the federal power over offshore minerals that are outside the boundaries of any province. Being outside the boundaries of any province, they must be outside the jurisdiction of any provincial legislature (the powers of which are territorially limited). They were therefore held to come within Parliament’s P O G G power “in its residual capacity.”6 The third branch (emergency) grants Parliament plenary legislative power on a temporary basis in the event of an emergency. Indeed, when Lord Haldane sat on the Privy Council (from 1911 until his death in 1928) and was accepted by his fellow law lords as the resident expert on the Constitution of Canada (a place he had never visited and knew little about), the Privy Council consistently expounded and applied the view that the emergency power was the only branch of the POGG power. That bizarre view was later abandoned and need not detain us now, but it is still true that the POGG power confers on Parliament an extraordinary but temporary power to legislate for emergencies. The War Measures Act, enacted in 1914 at the beginning of the First World War, came into force on the issue by the federal government of a proclamation “that war, invasion, or insurrection, real or apprehended, exist” and conferred on the federal government the power to make regulations on almost any conceivable subject. It was proclaimed in force for the First World War (1914–18) and the Second World War (1939–45) and was used during both wars to authorize national social and economic regulations that would have been unconstitutional in time of peace; the regulations were upheld in cases involving national price controls,7 national rent controls,8 and the deportation of Japanese Canadians.9 It was also proclaimed in force by the government of Prime Minister Trudeau at the time of the “October crisis” in 1970 (an “apprehended insurrection”) and used to authorize Public Order Regulations that outlawed the violent Quebec separatist group Front de libération du Québec (F L Q ) and

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gave the police new powers of arrest, search, seizure, and detention.10 The War Measures Act was repealed in 1988 and replaced by the Emergencies Act,11 which makes a more nuanced provision for various defined categories of emergencies. The emergency branch of POGG received an unexpected application in the Anti-Inflation Reference (1976),12 when the Supreme Court of Canada, by a majority of seven to two, upheld the federal AntiInflation Act as an emergency measure. The Act and its regulations imposed wage and price controls during a period of double-digit inflation. What was unexpected about this decision was that the Act itself contained a preamble that recited the reasons for the legislation but did not assert the existence of any emergency; for the two dissenting judges that was fatal to upholding the Act as an emergency measure. Moreover, the only economic evidence filed before the Court denied that the economic situation of the country was an emergency at the time of the enactment of the law: inflation was in fact on the wane; living standards had continued to rise during the period of inflation; other countries including the United States were experiencing similar inflation; and double-digit inflation was a phenomenon that recurred periodically in Canada. Nevertheless, the seven majority judges deferred to the federal government’s position that the Act did respond to an emergency and could be upheld under P O G G ’s emergency branch. I will come back to this decision later in the chapter, because Laskin C J for four judges left open the possibility that the national concern branch could also have supported the Act, while five judges thought otherwise. That became a backdrop to Le Dain J’s opinion in the Crown Zellerbach case, which is the destination of this chapter.

T h e “ N at io n a l C o n c ern” Branch Definition of National Concern The national concern branch of POGG has a long and chequered history, but for present purposes it is sufficient to start with the Canada Temperance case (1946)13 in which the Privy Council, now speaking through Viscount Simon, finally expressly repudiated Viscount Haldane’s theory that only an emergency could serve as the basis for an exercise of the POGG power. He proposed the following test, which has now become accepted as the definition of the national concern branch of

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POGG:14 “The true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole …, then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada, although it may in another aspect touch on matters specially reserved to the provincial legislatures.” This dictum has now become established as the definition of the national concern branch of P OGG. The test is whether the matter of the legislation “goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole.” The Supreme Court of Canada has decided three cases in which federal legislation was upheld on the sole ground of the national concern branch of P O GG. The first was Johannesson v West St Paul (1952),15 in which the Court held that aeronautics satisfied the national concern test. Of the five opinions written, four cited and relied on the Canada Temperance dictum,16 but only Locke J attempted to define the characteristics of aeronautics that he thought were relevant. He pointed to the rapid growth of passenger and freight travel by air, the use of aircraft for the carriage of the mail, especially to the northern parts of the country, and the necessity for the development of air services to be controlled by a national government responsive to the needs of the nation as a whole. The second case was Munro v National Capital Commission (1966),17 in which the Court held that federal legislation, establishing an area around Ottawa straddling Ontario and Quebec as a “national capital region” administered by a National Capital Commission, was valid under the national concern test. Cartwright J, for a unanimous Court, referred to the unsuccessful attempts by the federal government to persuade Ontario and Quebec to cooperate in the zoning of a national capital region. Then, later on, he said,18 “I find it difficult to suggest a subject-matter of legislation which more clearly goes beyond local or provincial interests and is the concern of Canada as a whole than the development, conservation and improvement of the National Capital Region in accordance with a coherent plan in order that the nature and character of the seat of the government of Canada may be in accordance with its national significance. Adopting the words of the learned trial judge, it is my view that the Act ‘deals with a single matter of national concern.’”

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Munro and Johannesson firmly established the national concern branch of P O G G , but both cases were decided at a time when the judges of the Court usually wrote result-oriented opinions with succinct reasons, often without articulating principles that would be useful in future cases. In both Munro and Johannesson, the judges were content to simply apply the vague Canada Temperance test without any attempt to unpack or analyze its elements. And the facts of Munro especially justified a fear that national concern had become an easy point of entry for federal intrusions into fields of traditional provincial jurisdiction. A related concern was the relationship between the national concern branch and the emergency branch of P O G G . Viscount Simon had made clear that he regarded the Canada Temperance test as encompassing the emergency cases as well as the non-emergency national concern cases, and of course four of the nine judges in the Anti-Inflation Reference had left open the possibility that the wage and price controls could have been upheld under the national concern branch. Did that mean that Parliament could take command of the economy whenever there was a problem (high unemployment, low productivity, for example) that could be characterized as a matter of national concern? These questions could not be put off indefinitely, because they had very serious consequences for the federal balance of legislative power. How fortunate it was that Gerald Le Dain – the subject of this volume – was on the Supreme Court in 198819 when the third national concern case arrived there. In R v Crown Zellerbach,20 the Court, by a majority, held that marine pollution satisfied the national concern test. The federal Ocean Dumping Control Act, which prohibited dumping “at sea,” was upheld in its application to the dumping of waste from logging operations in Beaver Cove, which was an area of sea (marine waters) that was wholly within the boundaries of British Columbia. Le Dain J, writing for the majority, held that “marine pollution, because of its predominantly extra-provincial as well as international character and implications, is clearly a matter of concern to Canada as a whole.”21 But he also reviewed the academic writing and previous decisions in order to suggest a synthesis of the national concern jurisprudence, which he summarized in four numbered propositions.22 This summary has now become settled law. It is so perceptive and important that I will set the four propositions in full, interpolating my comments after each one.

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National Concern and Emergency The first of Le Dain J’s propositions was the following: “The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order, and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature.” The emergency cases were not just extreme examples of national concern, as Viscount Simon had suggested in the Canada Temperance case, but were a different category (a separate branch) entirely. Whereas legislation in relation to aeronautics and the national capital region could be permanent (or at least indefinite in duration), legislation to control rents or prices in wartime (for example) was restricted to the duration of the emergency and would be unconstitutional once the emergency had ended. There was another distinction between the national concern branch and the emergency branch, which is reflected in Le Dain J’s third proposition, which I discuss below but I will anticipate briefly here. Aeronautics and the national capital region were each distinct subject matters that did not intrude deeply into matters otherwise within provincial jurisdiction. In effect, they could be enrolled as new heads of federal power with status similar to the express enumerated heads of s 91. But, as Beetz J had insisted in the Anti-Inflation Reference,23 inflation could not be accepted as a new head of federal power. It was “totally lacking in specificity”; it was “so pervasive that it knows no bounds”; the recognition of such a “diffuse” subject matter “would render most provincial powers nugatory” and “destroy the equilibrium of the Constitution.” In normal times, therefore, wage and price controls were outside the competence of the federal Parliament. In an emergency, however, the power of the federal Parliament has “no limit other than those that are dictated by the nature of the crisis. But one of those limits is the temporary nature of the crisis.”24 New Matters The second of Le Dain J’s propositions was the following: “The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern.”

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This repudiated a dictum in the Supreme Court of Canada25 that claimed that a matter had to be “new” in order to satisfy the national concern test. It does not. Distinct Matters The third of Le Dain J’s propositions was the following: “For a matter to qualify as a matter of national concern in either sense [whether new or old] it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution.” The requirement of distinctness (“singleness, distinctiveness and indivisibility”) is an essential safeguard against a radical expansion of the national concern branch that would intrude deeply into traditional provincial responsibilities and thereby alter the fundamental distribution of legislative power. It is also, as we have noticed, an important distinction between the national concern branch and the emergency branch. The emergency branch will extend to sweeping, diffuse matters that have a large impact on provincial jurisdiction – inflation being the obvious example – but only on a temporary basis while the emergency lasts. The national concern branch is not premised on the existence of an emergency and is not temporally limited in its exercise. On the contrary, once a sufficiently distinct matter is held to be of national concern (like aeronautics or the national capital region), it is equivalent to the creation of a new (implied) head of power to be added to the express heads of federal power enumerated in s 91. The matter in issue in Crown Zellerbach itself was marine pollution, and the Court divided on the distinctiveness issue. La Forest J, who dissented, took the view that marine pollution lacked the distinctiveness required of a matter of national concern. Marine waters intermingled with fresh waters and were affected by coastal activity and by deposits from the air. The power to regulate marine pollution thus intruded too deeply into industrial and municipal activity, resource development, construction, recreation, and other matters within provincial jurisdiction. Le Dain J for the majority, while careful not to assert federal authority over pollution in general (a diffuse subject matter like inflation), held that marine pollution, although obviously affected by coastal activity, deposits from the air, and fresh

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water flowing into the sea, did have “ascertainable and reasonable limits, in so far as its impact on provincial jurisdiction is concerned.”26 It followed that marine pollution was a matter coming within the national concern branch of P O G G . The federal Ocean Dumping Control Act was upheld in its application to those parts of the sea that (like Beaver Cove) were within the boundaries of a province.27 Provincial Inability The fourth of Le Dain J’s propositions was the following: “In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.” Le Dain J here suggests a “provincial inability” test as the final element of national concern. This was a new contribution to the jurisprudence, although it had been suggested in academic writing.28 Le Dain J treats provincial inability as part of the inquiry into distinctness, although it seems to me to be better to regard it as a freestanding requirement in addition to the requirement of distinctness, but nothing turns on this point. In Le Dain J’s words, the inquiry into provincial inability is an inquiry into “the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.” This makes clear that the desirability of a uniform national law is not enough to bring even a distinct matter into the national concern head of power. If uniformity on a matter within provincial jurisdiction is desirable, it can be accomplished by provincial cooperation, and the failure of one province to join in the cooperative scheme will still leave a substantial, albeit not perfect, achievement of uniformity by the provinces that do join in the scheme. But uniformity goes beyond mere desirability where the failure by one province to act would injure the residents of the other cooperating provinces. In that case, the matter is, in practical terms, beyond the capacity of the provinces to control: it is a matter of national concern. In the case of aeronautics (Johannesson), the failure by even a single province to enact uniform rules for the use of air space and ground facilities would endanger the residents of other provinces engaged in interprovincial air travel. A less clear example

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is the national capital region (Munro), but the failure of either Ontario or Quebec to cooperate in the development of a national capital region would have denied to the residents of other provinces the symbolic value of a suitable national capital. In the Crown Zellerbach case itself, Le Dain J for the majority relied on the provincial inability test as a reason for finding that marine pollution was a matter of national concern: “It is because of the interrelatedness of the intra-provincial and extra-provincial aspects of the matter that it requires a single or uniform legislative treatment.”29 The “interrelatedness of the intra-provincial and extra-provincial aspects” of marine pollution disabled the provinces from regulating the matter, even by cooperative action: this brought the (distinct) matter of marine pollution into the national concern branch of the POG G power.

C o n c l u s ion Le Dain J.’s opinion for the majority in Crown Zellerbach is a masterful synthesis of the decided cases and academic writing on the national concern branch of P OGG. The decision upheld the Ocean Dumping Control Act under the national concern branch. The result was a useful and necessary addition to federal power, enabling the national regulation of marine pollution. And the elegant reasons settled what was confused, and clarified what was unclear in the earlier cases and commentary. The debate about the relationship between the emergency branch of POGG and the national concern branch was settled, as was the debate about whether P O G G was limited to “new” matters. The worry that national concern was a massive court-created addition to the federal catalogue of powers, authorizing an indeterminate range of federal incursions into provincial jurisdictions, was met head on with the articulation of careful, principled safeguards: only matters that possessed a “singleness, distinctiveness and indivisibility” would qualify, and then only if they could not be managed provincially even with cooperative efforts. The opinion is a tour de force by a great judge. If there is a training manual for new appointees to the Supreme Court of Canada, this opinion should be in it! The clear reasons, with their respectful treatment of the prior (confusing) decisions and the (conflicting) views of academic writers are a model of the guidance that a final court is supposed to provide in its decisions.

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The Supreme Court of Canada, 1988, courtesy of the Supreme Court of Canada

n otes   1 [1988] 1 S CR 401.   2 For a fuller account of the POG G power, see P.W. Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007), chap 17.  3 Report of the Parliamentary Counsel Relating to the British North America Act, 1867 (Ottawa: Senate of Canada, 1939, Annex 1), 61–3.   4 Bora Laskin, “Peace, Order, and Good Government Re-examined,” Canadian Bar Review 25 (1947): 1054, 1057.  5 Citizens’ Insurance Co v Parsons (1881) 7 A C 96.  6 Re Newfoundland Continental Shelf [1984] SC R 86, 127 foll’d in Re Offshore Mineral Rights of British Columbia [1967] SC R 792, buttressing the residual reasoning with the national concern branch (p. 817).  7 Fort Frances Pulp and Power Co v Manitoba Free Press Co [1923] A C 695.  8 Wartime Leasehold Regulations Reference [1950] SC R 124.

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 9 Co-operative Committee on Japanese Canadians v Canada (AG ) [1947] A C 87. 10 There was some litigation in which lower courts refused to review the proclamation of apprehended insurrection: Herbert Marx, “The Apprehended Insurrection of October 1970 and the Judicial Function,” University of British Columbia Law Review 7 (1972): 55; J. Noel Lyon, “Constitutional Validity of Public Order Regulations,” McGill Law Journal 18 (1972): 136. This was before the Charter of Rights, of course, and the impact on personal liberty could not be directly addressed by the courts. 11 S C 1988, c 29. 12 [1976] 2 SCR 373. Laskin CJ, with Judson, Spence, and Dickson J J , wrote the plurality opinion; Ritchie J, with Martland and Pigeon J J , wrote a concurring opinion; Beetz J, with De Grandpré J, wrote a dissenting opinion. 13 Ontario (AG ) v Canada Temperance Federation [1946] A C 193. 14 Ibid., 205. 15 [1952] 1 SCR 292. The Court was unanimous in the result, but five opinions were written. 16 Rinfret C J was the exception, holding that the issue was concluded in a decision of the Privy Council based on the treaty power, Aeronautics Reference [1932] AC 54. 17 [1966] S C R 663. Cartwright J wrote the opinion of the unanimous bench. 18 Johannesson v West St Paul, 671. 19 He was only on the Court for four years, from 1984 to 1988. 20 [1988] 1 SCR 401. Le Dain J, with Dickson C J , McIntyre and Wilson J J , wrote the majority opinion. La Forest J, with Beetz and Lamer J J , wrote the dissenting opinion. 21 R v Crown Zellerbach, 436. 22 Ibid., 431–2. 23 Ontario (AG ) v Canada Temperance Federation, 452, 461. See also the quotation from Beetz J’s opinion by Le Dain J in R v Crown Zellerbach, 426–7. 24 Beetz J had dissented in the Anti-Inflation Reference, but his rejection of national concern as the basis for the legislation was agreed with by five judges – a majority. 25 R v Hauser [1979] 1 S CR 984, 1000–1 per Pigeon J. 26 Ibid., 438. 27 Federal power over water outside the boundaries of any province was undoubted under the “gap” branch of POGG: text accompanying note 8.

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28 R v Crown Zellerbach, 432–4, citing Dale Gibson, “Measuring National Dimensions,” Manitoba Law Journal 7 (1976): 15, 31, and the early editions of Hogg, Constitutional Law. 29 Hogg, Constitutional Law, para. 434.

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11 Constitutional Transitions: Le Dain’s Approach to Jurisdiction over the Environment Richard Janda

In t ro du c t i on Gerald Le Dain felt and bore the weight of rendering judgment. His judicial statecraft brought him into an extended dialogue with the implications of his words for the future. Those implications weighed heaviest of all in constitutional judgments. Such judgments, after all, appear to come closest in form to a categorical imperative: only those that can be rendered as universal law seem fitting. As stringent and burdensome as that standard might be, however, Le Dain J found for himself an even more stringent standard: since you will not succeed in formulating a universal law, only render judgments using words that could assist best in formulating judgments in the future. Such was the exercise that led him to fashion an approach to a vast uncharted territory in the Canadian Constitution: its relation to our natural environment. This chapter will explore how Gerald Le Dain sought to synthesize his prolonged reflection on the plan of the Constitution. Just as his contribution to the Court’s judgments on freedom of expression in Ford and Irwin Toy represented his effort to map out a future course for the Charter as it related to the supervening, exceptional power contained within the notwithstanding clause,1 so too his decision in Crown Zellerbach sought to map out the future course of Parliament’s general, exceptional power provided in the preamble to section 91.2

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The chapter is divided into three sections. The first introductory section considers the silence of the Canadian Constitution on jurisdiction over the environment and the nature of exceptions and derogations from the general scheme of the Constitution. The second and main section considers Gerald Le Dain’s approach to the emergence of new constitutional subject matter, contrasting it especially with the approach taken in the strong dissent by Gérard La Forest, whose own sustained reflections on jurisdiction over the environment have also provided much of our current juridical cartography. The third section takes stock of the subsequent implications of Gerald Le Dain’s Crown Zellerbach reasons, exploring how they help to give substance to the emergent principle of subsidiarity in the Canadian Constitution and concluding with a sketch of the implicit theory of public goods informing them.

P r e l im in a ry O bservati ons Constitutional Silence about the Environment The silence of the Constitution Act, 1867 about the environment says something of significance about the way in which jurisdiction was conceived in the late nineteenth century.3 Insofar as they touch upon any sort of relationship to the environment (e.g., beacons, buoys and lighthouses, navigation and shipping, sea coast and inland fisheries, management and sale of public lands belonging to the province and of the timber and wood thereon, agriculture, mines and minerals) the powers identified in ss 91, 92, 95, and 109 address only its demarcation, movement through it, or its use to extract resources. Even s 92A, added in 1982, does not purport to ensure protection of the environment. Its reference to the conservation of non-renewable natural and forestry resources and of sites for the generation and production of electrical energy is placed in the context of enabling the primary production of those resources and use of that energy. In short, the environment is the unnamed other into which the exercise of legislative power can be projected. It has no claim to make back upon that power and indeed is not named as an attribute or purpose or holder of power. The very term “distribution of legislative powers” suggests that what is at stake is the ability to assert will so as to produce collective impacts in the world through legal means. The notion that those

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collective impacts might themselves produce a countervailing distribution of legislative disabilities or a correlative distribution of governmental liabilities is beyond the conceptual apparatus of the scheme.4 At best, the possibility that collective impacts – such as those on the environment – could themselves be the source of mischief to which legislative response is needed, is left implicit. True, there is explicit reference to criminal law power. That is to say that certain behaviour in society can justify producing disabilities (prohibitions) and liabilities (sanctions). But the production of prohibitions and sanctions is itself conceived as a power rather than as any delimitation of the agency of government itself. But for the announcement that the powers are granted to make laws for the peace, order, and good government of Canada, there is no limit to the purpose for which the powers might be applied. There is only a division of authority between levels of government, and notionally, at least, plenary authority is to be found in the combination of those divided powers. How significant is it that the division of powers, with its silence about the environment, emerged in a Constitution that was itself enacted by another sovereign? Does it mean one thing to divide powers where this is understood to “promote the interests of the British Empire” by establishing a “dominion,” and another where it is understood to express the will of a people? There is to be sure silence about the environment as well in the Constitution of the United States. But among the powers explicitly attributed to Congress by s 8, it is in essence the power to regulate commerce that has been invoked to establish the constitutional validity of the main environmental statutes of the United States.5 US courts have concluded, in effect, that if a people has arisen and ordained a constitution, particularly in order to perfect a union that had not adequately been achieved under an earlier arrangement, power over commerce must have to do with enabling that people to enhance their union. Chief Justice Marshall famously asserted, “Commerce undoubtedly is traffic, but it is something more; it is intercourse.”6 If one can see in commerce not simply the movement of goods and services but also the production of relationships that build society, one can readily perceive why its regulation should include the regulation of the natural environment. The intercourse of commerce only produces relationships through common value attributed to what we extract from the environment. If each of our economic preferences were autarchic to the point that no one could furnish anything to

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satisfy the preferences of another, no relationships could be formed through commerce and no market could emerge. It is because X can use resources in such a way as to satisfy the preferences of Y that commercial relationships arise. Commercial relationships in turn require a prior relationship to the environment formed through the extraction of resources. Hence, regulation of commerce as intercourse involves regulation of our relationship to the environment. How striking, therefore, that although the language used in the Constitution Act, 1867, to allocate the power over trade and commerce was on its face less restricted in scope than that choice of words for the US Constitution, our Constitution has not disclosed any significant relationship between commerce and the environment.7 Nevertheless, in the legal conception of both constitutions, whether power was allocated so as to create a dominion or to unify a people, its deployment in relation to the environment involved mastery. In the case of the dominion, as its name suggests, mastery was the purpose of the powers themselves. In the case of the will of the people, mastery was the means through which union with others was to be achieved. Both constitutions were silent about any requirement of stewardship, and thus, in a sense that remains crucial for both up to the present day, neither can speak directly to the requisite role of government in the environmental domain. It seems astonishing now, in retrospect, that two parallel plans for the governance of a vast continent – indeed three, adding Australia to this grouping – detected no task of stewardship for the land being possessed. How telling it is that in all three cases the original peoples of those lands, for whom stewardship was essential to their constitutions, were themselves taken to be a subject matter of central power rather than a counterbalance to it.8 The inability to acknowledge that newcomers were sharing with those having a prior relationship to the land was intertwined with the silence of the constitutions about the environment.9 Since the constitutions affirmed a taking of possession and extension of authority over territory, they could not but remain silent about what was thereby being overcome and suppressed.10 Nevertheless, it could well have been imagined when those three constitutions were drafted that nothing of significance was left unstipulated and that the only foreseeable relationship to territory and the natural environment was one of growing dominion. If territory was in great abundance and continuously available to be appropriated,

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in what realistic sense could one conceive of a need to act as protector and steward of the land? Constitutional Exceptions and Derogations It was perhaps just a matter of time, as population grew and resources were consumed, before the constitutional silence about the environment would be broken. How could this new subject matter be received within Canada’s explicit distribution of powers? Would it simply be incorporated into the ongoing exercise of jurisdiction, or would it provide a new and separate orientation for government? Both approaches might commend themselves, but neither has proved to be fully satisfactory. On the one hand, if jurisdiction over the environment were understood to be part and parcel of all other subject matter – if there could always be an environmental dimension to any use of power – then making the new subject matter “appear” throughout the distribution of powers would break the silence of the Constitution. No new head of power would be needed.11 Assuming that environmental problems presented themselves relatively distinctly according to the division of powers (environmental dimensions of the fisheries, of navigation and shipping, of the management of public lands, of local works, and so on) and that they did not tend to concentrate in domains of one level of government, the relative balance of federal and provincial authority could be maintained. However, this approach would nevertheless derogate from the existing distribution of powers in the sense that it would in effect establish a new form of transversal concurrent jurisdiction and thereby render the compartments of ss 91 and 92 dramatically less watertight.12 Furthermore, precisely because of concurrent jurisdiction, it would likely lead to both levels of government eschewing responsibility for costly interventions lying partly in the domain of the other.13 On the other hand, if stewardship of the environment were understood to present a problem for government fundamentally different from what was originally foreseen under the division of powers, announcing a new exception to or derogation from that division would break the silence of the Constitution.14 However, a new head of power concerning the environment might not make sense for two reasons. The first, more conservative reason is related to what was just said about environmental dimensions to the exercise of existing powers. Control over environmental impacts could traverse so many

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other heads of power as to disrupt the balance between federal and provincial authority.15 The second, more radical reason is that if stewardship of the environment were itself a limitation on any exercise of governmental power, its emergence as a constitutional problem could not be addressed through the attribution of a new head of power at all. Something entirely different would be needed, such as a constitutional declaration of a prior constraint on both levels of government, which would fundamentally transform the Constitution. To make this clearer, consider the following example. Imagine that we understood the production of carbon emissions to be constitutionally delimited in that no exercise of governmental authority could enable the country to exceed a fixed cap. Such a constitutional limit would have more in common with the Charter of Rights than with the division of powers.16 If the limit were exceeded, the body charged with interpreting this aspect of the Constitution would have to invalidate measures permitting emissions and perhaps mandate measures to curb emissions. Such juridical authority, being vast in its administrative implications and requiring the deployment of considerable expertise, would likely entail the creation of a new institution functioning in parallel to the ordinary courts. On the basis of existing interpretations of the Constitution, it would be difficult to imagine any pathway to a judicial decision that placed such a limit on carbon emissions. Absent a constitutional amendment, the only line of interpretation available would be under the residual peace, order, and good government power, perhaps combined in some way with the right to life or to free expression. In the end, the new limit would be sui generis and would amount to a suspension of the powers granted by the Constitution for the sake of the environment. Under the Canadian Constitution, the federal peace, order, and good government power is indeed a key entry point to a state of exception.17 Through it the Constitution seeks to accomplish a kind of impossibility: to identify by its own terms the way in which its terms might be superseded. The notwithstanding clause of the Charter is a similar construction.18 The notion lying behind the inclusion of terms superseding the Constitution within the Constitution is that legal continuity might be maintained even in the face of its disruption. What is an “emergency” or “crisis,” from a constitutional point of view, if not a circumstance requiring the exercise of extraordinary, unenumerated powers derogating from the ordinary regime?19 That is, to put it perhaps too sharply, any enumerated head of power, even

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if it were “declaring war” or “combatting pestilence,” would not, once enumerated, be an emergency or crisis from a constitutional point of view. To invoke the power would simply give rise to the application of the constitutional order. By contrast, war or pestilence would give rise to a constitutional emergency if, for example, ordinarily guaranteed civil liberties, parliamentary privileges, or provincial powers were suspended. Steeped as it is in centuries of appropriation and dominion, it stretches the legal imagination toward its breaking point to consider that our relation to the environment could give rise to constitutional crisis. The choice of words in s 91 helps to shape this response. War and pestilence disrupt peace and order. Good government requires that they be confronted and overcome. Even the phenomenon of stagflation, combining high unemployment and inflation, can be made to meet this test.20 Yet we have trouble asserting the same with respect to our ongoing, incremental, but in aggregate devastating impacts on the environment. Consider Gérald Beaudoin’s words: “En matière de protection de l’environnement, une situation d’urgence, quoique toujours possible en temps de paix, nous apparaît peu probable. Elle n’existe certes pas à l’heure actuelle. On ne peut dire qu’on l’appréhende vraiment.”21 Beaudoin could not view pollution as disrupting peace or introducing disorder. After all, it can be characterized legally as a nuisance. Even where an environmental statute announces that it is confronting a situation of “urgent national concern,” he found it preposterous that this could be interpreted to mean an emergency in the constitutional sense.22 Though collectively we can produce a tragedy of the commons by over-using resources or “fouling our nest,” for Beaudoin apparently there was no specific moment at which the individually permissible acts leading to tragedy crystallized into an emergency.23 To summarize, therefore, breaking the silence of the Constitution concerning the environment appears to involve inadequate exceptions and derogations from the existing division of powers. Either the silence can be broken by announcing that the problem of the environment will be absorbed into the existing division of powers – producing much more concurrency of jurisdiction than originally envisaged and a danger that responsibilities will be shunted between levels of government. Or the constitutional order can be dramatically disrupted by the creation of a diffuse new head of power limiting all other powers and imposed in the name of an unrecognizable emergency.

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This was the conundrum facing Gerald Le Dain as he drafted his reasons in Crown Zellerbach.24

g e r a l d l e da in ’ s statecraft Gerald Le Dain’s solution to this conundrum was remarkable in its subtlety. He found a way to break the Constitution’s silence about the environment, acknowledge the need for new subject matter, construct that new subject matter as a constraint on power, and avoid transforming peace, order, and good government into the exception that would swallow provincial authority – no mean feat. So as to shed light on the strengths on his accomplishment, this section of the chapter is subdivided into the following parts. First, it will discuss how Gerald Le Dain had prepared for the task of drafting the Crown Zellerbach reasons through his study of the judicial decisions of Sir Lyman Duff. Second, it will analyze his economically drafted judgment with special emphasis upon the small but crucial innovations he introduced into the P O GG test and into the manner of characterizing constitutional subject matter. Third, it will contrast his approach with that taken by La Forest J, showing how his reasons withstand the critique posed in the dissent. Gerald Le Dain’s Preparation for the Task One day Canada’s national archive will reveal just how astonishingly painstaking Gerald Le Dain was in preparing his judgments. In his effort to ensure that each formulation he used was the most judicious one possible, he wrote memoranda to himself testing possible vocabulary against precedent and exploring potential implications for future contexts. In reading Crown Zellerbach, we are fortunate to have an insight into the kind of work that went into his choice of language, because, as a law professor, Gerald Le Dain had published a study of the judicial decisions of Sir Lyman Duff.25 His exhaustive review of Duff CJ’s reasoning notably concerning POGG, its relationship to the case law of the Judicial Committee as well as to subsequent decisions of the Supreme Court of Canada, interspersed with his own cautious expressions of opinion about certain incoherencies in the doctrine, was precisely the sort of rigorous investigation he imposed upon himself before signing a judgment. Indeed, it can be said that the Duff article was a large part of the background research necessary for

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Le Dain J’s Crown Zellerbach decision.26 One can only imagine the parallel blocks of research he imposed upon himself, for example, concerning the nature of marine pollution, the notion of “distinctiveness” as part of the test for national dimensions, and alternative ways of characterizing the power being exercised to enact the Ocean Dumping Control Act.27 How did the Duff article contribute to preparing the Crown Zellerbach decision?28 The article was devoted in large part to exploring how and why Duff J “must be ranked as one of the architects of the Canadian constitution, and in particular, of the inclination toward provincial jurisdiction that was gradually imparted to it.”29 Thus in it, Prof. Le Dain identified in the clearest and strongest possible terms precisely the sets of arguments and concerns to which he would have to give an account in drafting a decision that Sir Lyman Duff would not have signed. Indeed, when one aligns the article with the Crown Zellerbach reasons, one might conclude, as did La Forest J, that the opinion of Justice Le Dain was inconsistent with the views of Prof. Le Dain: It is easy but, I say it with respect, fallacious to … [take] a number of quite separate areas of activity, some under accepted constitutional values within federal, and some within provincial legislative capacity, [and] consider them to be a single indivisible matter of national interest and concern lying outside the specific heads of power assigned under the Constitution. By conceptualizing broad social, economic and political issues in that way, one can effectively invent new heads of federal power under the national dimensions doctrine, thereby incidentally removing them from provincial jurisdiction or at least abridging the provinces’ freedom of operation. This, as I see it, is the implication of the statement made by my colleague, then Professor Le Dain, in his article, “Sir Lyman Duff and the Constitution” (1974), 12 Osgoode Hall L J 261. He states, at p. 293: As reflected in the Munro case, the issue with respect to the general power, where reliance cannot be placed on the notion of emergency, is to determine what are to be considered to be single, indivisible matters of national interest and concern lying outside the specific heads of jurisdiction in sections 91 and 92. It is possible to invent such matters by applying new names to old legislative purposes. There is an increasing tendency to sum

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up a wide variety of legislative purposes in single, comprehensive designations. Control of inflation, environmental protection, and preservation of the national identity or independence are examples. Professor Le Dain was there merely posing the problem; he did not attempt to answer it. It seems to me, however, that some of the examples he gives, notably the control of inflation and environmental protection, are all-pervasive, and if accepted as items falling within the general power of Parliament, would radically alter the division of legislative power in Canada. The attempt to include them in the federal general power seems to me to involve fighting on another plane the war that was lost on the economic plane in the Canadian new deal cases.30 However, the problem being put by Prof. Le Dain is stated quite directly in the paragraph immediately following the one cited by La Forest J and is in fact exactly the problem Le Dain J had to confront in order to be persuaded that Ocean Dumping Control Act fell within federal jurisdiction, despite its application to provincial waters. Here is the subsequent paragraph from the Duff article: “Many matters within provincial jurisdiction can be transformed by being treated as part of a larger subject or concept for which no place can be found within that jurisdiction. This perspective has a close affinity to the notion that there must be a single, plenary power to deal effectively and completely with any problem. The future of the general power, in the absence of emergency, will depend very much on the approach that the courts adopt to this issue of characterization.”31 Prof. Le Dain was here synthesizing key elements of Duff C J ’s analysis and acknowledging that they would have to be addressed convincingly if the general power was to evolve in the absence of emergency. For example, in the Eastern Terminal case, one to which he devoted considerable attention, Duff J (as he then was) rejected a test for the use of the general power in the absence of an emergency, holding that it was a “fallacy” that the federal Parliament should be held to have the jurisdiction “because no single province, nor, indeed, all the provinces acting together, could put into effect such a sweeping scheme.”32 Prof. Le Dain’s summary of what lay behind Duff’s rejection of this “fallacy” put the critique of a plenary federal jurisdiction quite forcefully and articulated a persuasive conception of evolving federal-provincial relations:

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After the Board of Commerce, Snider and Eastern Terminal cases, Duff persisted in his rejection of the argument in favour of the general power based on the convenience of a single, plenary power to deal effectively with problems and legislative purposes that lay across the divisions of jurisdiction that in his opinion were the inevitable consequence and characteristic mark of the federal character of the Constitution. The maintenance of that character was essential to provincial acceptance of the Constitution. The denial of a single national power to deal uniformly with certain complex problems that transcended provincial boundaries was one of the prices that had to be paid for the other values of a federal constitution. Moreover, none of the problems were beyond effective legislative treatment through inter-governmental co-operation. Let the Dominion approach the provinces as co-ordinate levels of government but let it not be placed in the position by judicial doctrine to be able to expand its legislative jurisdiction indefinitely on the basis of its own essentially unreviewable judgment as to what national importance, national interest and national convenience might require.33 Prof. Le Dain certainly sympathized strongly with this argument, because he came back to the issue of convenient plenary power at the end of his discussion of P OGG. Thus, he had apparently concluded that more than the simple convenience of having a single plenary power was required for P O GG to be invoked validly outside a state of emergency. At the same time, however, Prof. Le Dain indicated clearly that there were circumstances in which P O G G could be so invoked. To begin with, a leitmotif of his discussion of P O G G was the failure of Duff C J and of certain judges of the Judicial Committee, especially Lord Haldane, to give a convincing account of the Russell case.34 The significance of this judicial blind spot to Russell was not so much that the case could itself give rise to a specific test for P O G G . According to Prof. Le Dain, the validity under P O G G of the federal prohibition of the sale of intoxicating liquor, which could scarcely be explained according to the emergency doctrine, was actually quite straightforward but also potentially destabilizing: The implication of Sir Montague Smith’s judgment in the Russell case was that the specific heads of jurisdiction in

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section 91 were to be seen as merely examples of the general grant of power in the introductory clause. This was an insight that would have made an enormous difference to the possible shape of federal power had it been applied in later decisions. Instead, the Judicial Committee recoiled from the implications of this view and set about separating the general power from the specific heads of jurisdiction and imposing very strict limits on the application of the former. The view of the general power implied in the Russell case would have permitted the federal Parliament to determine the extent of its legislative jurisdiction, much as the American Congress has determined the extent of its reach under the commerce power. Its application would have involved a gradual transfer of power from the provinces to the federal government, as one matter after another inevitably assumed, in the complexity and interdependent relationships of modem life, a national as opposed to a local interest and importance.35 For Prof. Le Dain, the problem with ignoring Russell was not that the Judicial Committee had been mistaken to recoil from setting the Canadian Constitution on a trajectory parallel to that of the US Constitution. Rather, as a marker of the road not taken, Russell required explanation and proper characterization. It could not simply be left unaccounted for. To Prof. Le Dain and indeed to Le Dain J, that amounted to an absence of rigour. In addition to Russell, coming out of the Montague Smith era of the Privy Council, there was the Local Prohibition case coming out of the Lord Watson era.36 Duff C J and the members of the Judicial Committee of the Haldane era were marked by Lord Watson’s abiding caution concerning the extent of the general power and its potential to disrupt the overall division of powers. However, they also showed lack of rigour in their recourse to cantonment of the general power within the emergency doctrine and failure to confront Lord Watson’s acknowledgement of the possible use of P O G G when the national dimensions of a matter affected the body politic of the dominion as a whole. Duff J’s reasons in the Board of Commerce case,37 failing as they did even to consider whether “post-war exploitation of scarcity in necessaries of life by hoarding and unfair profits” had a national dimension,38 gave rise to what was Prof. Le Dain’s most unabashed, though nonetheless measured, criticism. Duff J had found the federal

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scheme ultra vires because its effects fell within areas of provincial jurisdiction. Prof. Le Dain responded, Here there is a confusion between the dimensions of concern, flowing from the impact on the body politic as a whole – which is what is reflected in Lord Watson’s dictum in the Local Prohibition case – and the locus of the legislation’s effects. Legislation to deal with a matter of national concern is bound to have local effects. It is difficult to conceive of national legislation that does not express itself in local effects. Duff’s repeated insistence on the local effects was an apparent evasion of the central issue for purposes of the general power – whether the matter was one of national concern. But this apparent evasion reflected Duff’s essential insight that many matters of local concern, and suitable for provincial regulation, might also be reasonably considered – at least in their overall impact – matters of national importance or concern. In effect, as the foregoing passage suggests, Duff did not apparently consider the concept of national importance or concern a workable criterion for application of the general power.39 Le Dain’s exasperation with Duff J’s reasons reveals a great deal not only about what he felt had to be weighed in interpreting POGG, but also how he regarded the judicial function more generally. For a Supreme Court judge to evade weighing a difficult problem was to open up the process of judgment to the assertion of ideology. Indeed, Prof. Le Dain permitted himself to observe, despite the fact that he rankled at simplistic liberal-conservative, left-right tags for judges and judicial decisions, that in evading the central question and commenting explicitly on the dangerous prospect of nationalizing industry, Duff J gave “one of the strongest hints … of a distrust and dislike of government interference with business.”40 Had Duff J explained instead how and why he found it impossible to develop a workable criterion for the concept of national importance, at least he would have remained focused on his judicial function. It was the Supreme Court judge’s most important and most difficult role to identify, confront, and weigh powerful countervailing claims. It is for this reason that Prof. Le Dain was drawn to Viscount Simon’s reasons in the Canada Temperance case upholding the decision in the Russell case.41 He admired the fact that “Viscount Simon

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not only rejected the notion of national emergency as the ground for application of the general power in the Russell case, but he seemed to reject it generally as a limiting criterion for its application.”42 It was easier to cover over the Russell case, as Lord Haldane had done in Snider, and – insulting as it might be to Canadians to claim that they faced a national drinking crisis – pretend that it fit into the mould of the emergency doctrine so as to confine P O G G irrevocably.43 The Canada Temperance decision eschewed this approach and restored the original task of weighing national and provincial dimensions of new and emerging subject matter. It is the following formulation that became the touchstone for further doctrinal developments of the POGG power: “The true test must be found in the real subject matter of the legislation: if it is such that it goes beyond local or provincial concern or interests and must from its inherent nature be the concern of the Dominion as a whole (as, for example, in the Aeronautics case and the Radio case), then it will fall within the competence of the Dominion Parliament as a matter affecting the peace, order and good government of Canada, though it may in another aspect touch on matters specially reserved to the provincial legislatures.”44 Prof. Le Dain nevertheless indicated a quibble with the decision, because although it helped to disentangle POGG from the emergency doctrine, in so doing it failed properly to integrate that doctrine into its analysis. Viscount Simon had asserted that whereas emergency might give rise to federal legislation, the validity of that legislation turned on its inherent nature, not on the existence of the emergency.45 Prof. Le Dain’s rejoinder was, “But surely, where emergency exists, it is the emergency which gives the matter its dimension of national concern or interest.”46 Here Prof. Le Dain was reaching for what he would call in Crown Zellerbach “a unified theory of the peace, order and good government power … that … regarded the emergency doctrine as a particular application of the national concern doctrine.”47 That is to say that Viscount Simon had properly identified the central focus of analysis, namely what can allow the distinction to be drawn between matters of local and provincial concern on the one hand and matters of national concern on the other. But he had not pushed that analysis far enough yet, in two respects. First, he had in essence simply restated the problem by asserting that the test was to be found in the inherent nature of the subject matter. This almost amounted to an “I know it when I see it” test and was therefore not yet a unified theory.48 Second,

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the notion that the nature of the subject matter of legislation was distinct from the circumstances or social problem giving rise to it – if you will, the mischief it sought to overcome – was for Prof. Le Dain an inadequate approach to the problem of characterization. Further insight into this last point could be gained from the Radio reference in which “for technical reasons, it was difficult to find a plausible case for provincial jurisdiction.”49 The science of radio communications – the technical nature of infrastructure in issue – was a critical feature in the analysis of where to locate jurisdiction. In summary, therefore, the Duff article prepared the Crown Zeller­ bach decision by setting the agenda for what a unified theory of the general power would have to include. First, as a threshold matter, such a theory would have to give an account of all of the precedents, showing how each contributed to the overall conception. In par­ticular, it would have to acknowledge and respect Duff CJ’s insistence, as Prof. Le Dain put it, upon not allowing the general power to evolve so that “as matters inevitably grow to become subjects of national importance and concern, they may pass from provincial to federal jurisdiction until the distribution of power under the constitution is fundamentally altered.”50 That is, Duff had his strongest influence on Le Dain when he was anticipating and envisaging the future development of the Constitution and providing tools to give it a salutary shape. Second, it would have to give a compelling, more than impressionistic account of what constituted a subject matter of inherently national or provincial dimension. The Munro case had further characterized what was inherently national by seeking to identify “a single matter of national concern.”51 In Prof. Le Dain’s formulation, the problem was “to determine what are to be considered to be single, indivisible matters of national interest and concern lying outside the specific heads of jurisdiction in sections 91 and 92.”52 Yet, as if thinking out loud, he mused that a test of singleness and indivisibility could produce new comprehensive designations for disparate old legislative purposes. Tellingly, since he was writing in 1974 and anticipating the Anti-Inflation Act reference by two years, control of inflation was one of his examples. Environmental protection was another. Clearly he felt that singleness and indivisibility together did not do sufficient conceptual work to isolate and delimit the characterization of new subject matter. It is interesting to note, however, that without providing an explicit justification, Prof. Le Dain’s formulations of examples each contained implicit limits on the purposes for which jurisdiction

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was exercised. Thus, the imagined heads of power were “control of inflation,” “environmental protection,” and “preservation of the national identity or independence.”53 Third, it would be important to clarify the relationship between the emergency doctrine and the national dimensions test. On the one hand, emergencies could take on national dimensions and thereby give rise to an exercise of P O GG. On the other hand, it was characteristic of legislation combatting an emergency that it was designed to end the situation that had given rise to its justification. Thus, unlike a new head of power that could remain a feature of the overall constitutional map (e.g.. aeronautics, radio, the national capital) an emergency gave rise to a temporary feature that would in principle disappear from view. Finally, characterization of the subject matter – one is drawn to say, in language not used by Prof. Le Dain, the public goods being established and safeguarded – would often require a technical, scientific foundation. It was not that the Court had to become an expert agency capable of coming to sound scientific conclusions. Rather, it would have to be able to assimilate arguments based on scientific conclusions and give to them a constitutional appreciation.54 The Crown Zellerbach Analysis Each of the four tasks that the Duff article left to be performed was taken up directly in the Crown Zellerbach decision. However, before addressing the substance of the judgment, a few observations about its form are in order. A spec ts o f t he F or m o f t he J u d g m e n t In a sense, the decision was so focused upon performing those four tasks that it did not permit itself much scope for broader explicit commentary upon jurisdiction over environmental issues generally, or indeed about the evolution of the division of powers. But this should not be mistaken for absence of consideration of those matters. On the contrary, it was in the nature of Le Dain J’s judicial drafting that he sought to be as exhaustive as necessary in the consideration and reconciliation of precedent, but as laconic as possible in con­ veying the essence of his judgment.55 He sought to distill and purify the ratio decidendi so that his reasons could serve to orient future decisions. But he did not authorize himself to extend his own

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commentary beyond what was required to capture those reasons. For those drawn to grandiloquent judgments, his reasons in Crown Zellerbach might therefore read as somewhat abrupt. The structure of the decision says much about the method arrived at to resolve the issues being confronted. The bulk of it was devoted to the treatment of a selection of prior case law in order to synthesize a summary and test. The application of the test was by contrast quite expeditious, picking out the minimum necessary factual material in order to arrive at an unambiguous conclusion. The preliminary formal elements had some revealing features. After the usual two-paragraph summary statement concerning the matter before the Court, the reasons began with what might appear to be a somewhat pedantic recitation of the background to the Ocean Dumping Control Act, together with six pages of its dispositions. However, this pedantry played an important role by setting the scene for what followed. Indeed, the very first subject therefore touched upon was that the Act was part of a global regime. Without asserting that the Act was a straightforward implementation of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, since that was an issue before the Court, Le Dain J was able to orient its interpretation toward how it contributed toward Canada’s participation in the regime.56 Furthermore, the reproduction of a substantial portion of its provisions, including in their entirety three schedules that were not directly in issue, reinforced the relationship to the convention since the provisions cited were either identical to those of the convention or seeking to extend its application even further. However, Le Dain J was also at pains to convey the entirety of the legislative regime and not to allow the consideration of the constitutional issue to focus artificially on one piece of an interlocking whole. After all, what had been argued successfully at trial and on appeal was that there was nothing harmful to fishing or shipping about dumping wood into water, and that in any event the dumping had occurred within provincial territory. Little attention was paid to what the legislation was seeking to accomplish by prohibiting all dumping, even in provincial marine waters. Thus, Le Dain J began his reasons with an account of the regime and turned to the history of the action only subsequently. The inclusion of the schedules, with their explicit reference to scientific considerations, also buttressed

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assertions later in his reasons concerning the specific scientific properties of marine waters. As concerns the compact statement of facts, a few points stand out. Le Dain J was able to emphasize that the dumping in issue was not incidental but rather in the nature of the operation in question. That is, Crown Zellerbach had set up an operation connected to its forestproducts business the purpose of which was to dump wood waste into the ocean. When it was charged with violations of the Act, it was in the midst of dredging and dumping waste further out seaward so as to install a new structure to facilitate dumping. Although Le Dain J also noted that there was no evidence of any effect on navigation or marine life, he did emphasize that what was in issue was a substantial dumping facility, and not minor disposal of wood waste. Since, as he underscored, the only dumping permit Crown Zellerbach had was for a site at some considerable distance, the question immediately raised was how to account for the absence of a permit. As a practical matter, what was at stake in the litigation therefore was that Crown Zellerbach wanted to dump without authorization. This fact allowed Le Dain J to place some emphasis in his analysis upon the rationale behind the permit system. Le Dain J’s similarly compact restatement of the lower court decisions highlighted the absence of any significant consideration of the national dimension test. Indeed, Macdonald JA of the British Columbia Court of Appeal devoted but one paragraph of his judgment to the issue and there addressed only whether pollution of the sea, a matter unrecognized in 1867, could not be put within the class of matters of a merely local or private nature. He simply asserted that dumping of substances in British Columbia’s provincial waters fell within provincial jurisdiction.57 By contrast, Le Dain J’s treatment of the arguments presented before the Court, especially in oral pleadings, was quite elaborate. He began with a presentation of the respondent’s arguments, homing in on the sets of concessions made in pleadings. This allowed him to isolate the respondent’s contention that even if Parliament had jurisdiction to regulate the dumping of substances in provincial waters that cause pollution in federal waters, in this case no pollutant effect could be shown. Thus, the case in essence turned on whether the requirement of a permit so as to forestall any potential pollutant effect could adequately link the legislation to federal jurisdiction.

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A second point he emphasized from the respondent’s pleadings and those of the attorneys-general of British Columbia and Quebec was that the Act should be read down so as not to apply to dumping in provincial waters. This was to say that the case also turned on whether an otherwise valid federal regime for marine waters could be extended to provincial marine waters. As concerns the appellant’s pleadings, there were two main points that Le Dain J retained. The essence of the appellant’s case was that the prevention of ocean or marine pollution – which is how counsel for the appellant characterized the subject matter – was a single matter of national concern. Furthermore, a number of the enumerated federal heads of power under s 91 were of a maritime nature, suggesting that if a new single subject matter of a maritime nature had emerged, it was linked to federal, rather than provincial, jurisdiction. Plea dings a nd Sub j e c t Mat t er Counterpoising the characterizations of the subject matter by the respondent and the appellant allowed Le Dain J to begin addressing one of the four areas of substantive concern identified in the Duff article. It is worth observing that here the form of judgment connected intimately to its substance. Le Dain J was allowing his conclusions to emerge directly from the pleadings and testing them against the arguments raised. It was not for the judge to invent them out of whole cloth.58 The subject matter had to be identifiable to those applying the law and could not emerge as the exercise of the judge’s own legal imagination. Respect for and confinement to pleadings was here an important part of the exercise of judicial restraint. What, then, was the contribution of the pleadings to the characterization of subject matter? The elements had been suggested already in the foregoing summary of pleadings, but Le Dain J brought them together to use the adversarial method of reasoning. On the one side of pleadings was the characterization of the subject matter by the appellant, which is to say that the legislation was “directed to the control or regulation of marine pollution.” Le Dain J hastened to add that this was precisely the subject matter of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, thereby tying the federal Act to a global problem.59 It is important to note that this characterization was, of course, much narrower than “prevention of pollution” or “protection of the environment” but was somewhat larger in scope than the narrowest

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possible delimitation: “prevention of marine dumping pollution.” Because the characterization was offered in pleadings, Le Dain J was in a sense spared the task of justifying it. Later in his judgment, however, when it came to testing the legislation for constitutional validity, Le Dain J used a more confined definition of the subject matter: “control of pollution by the dumping of substances in marine waters, including provincial marine waters.”60 On the other side of pleadings was the characterization of the subject matter by the respondent, which is to say that the Act was directed to dumping that need not necessarily have a pollutant effect. The notion was that since the Act was directed at any and all dumping at sea, not only at harmful dumping at sea, its subject matter was inherently overbroad. Le Dain J readily picked apart this sophism by looking at the Act as a whole, something he had prepared by his initial framing of the reasons. The point of the permit scheme was to perform triage on all dumping so as to distinguish harmful from permissible instances. However, the presumption of the regime was that all dumping required oversight in order that this distinction could be drawn. As Le Dain J put it, “The chosen, and perhaps only effective, regulatory model makes it necessary, in order to prevent marine pollution, to prohibit the dumping of any substance without a permit. Its purpose is to require a permit so that the regulatory authority may determine before the proposed dumping has occurred whether it may be permitted upon certain terms and conditions, having regard to the factors or concerns specified in ss. 9 and 10 of the Act and Schedule III.”61 The provisions mentioned, which Le Dain J had reproduced, identified prohibited and restricted substances as well as a method for determining circumstances under which permits might be given. As regards substances not on the prohibited or restricted list, such as wood waste, there were nevertheless factors that the minister of the environment was to take into account in determining whether a permit should be granted. These fell into two categories: those specified under Schedule III, and the general requirements of s 10 of the Act. The former included an assessment of the dumping site and methods of deposit, even as concerns non-toxic substances. That is, in considering a permit application, the minister was to assess matters such as the location in relation to “amenity areas, spawning, nursery and fishing areas and exploitable resources,” the “dispersal characteristics (e.g., effects of currents, tides and wind on horizontal transport and vertical mixing),” the “bottom characteristics” including “biological

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productivity” and in general the existence of “an adequate scientific basis” for “assessing the consequences of such dumping.” In addition Schedule III directed the minister to take into account general ­considerations and conditions, such as possible effects on amenities of the “presence of floating or stranded material,” possible effects on other uses of the sea such as “interference with fishing or navi­ gation through deposit of waste or solid objects on the sea floor,” and the practical availability of land-based methods of disposal or elimination.62 All of these factors were relevant to Crown Zellerbach’s operation. The point was not the lack of evidence of deleterious effects, but rather the absence of an application for a permit so as to determine whether negative consequences could arise from the operation and be mitigated. Indeed, mitigation was a focus of the general s  10 requirements, since any permit was to contain terms and conditions that the minister considered necessary, including method and frequency of dumping, the site at which the dumping was to take place, and any special precautions to be taken. Since Crown Zellerbach had subtracted itself from this permit process, the assessment of the relevant factors to determine whether dumping was deleterious had not been made. It therefore could not now argue that the Act sought to ban non-deleterious dumping. As Le Dain J put it, with just a hint of irritation at the position being taken by the respondent, “The Minister and not the person proposing to do the dumping must be the judge of this, acting in accordance with the criteria or factors indicated in ss 9 and 10 and Schedule III of the Act. There is no suggestion that the Act purports to authorize the prohibition of dumping without regard to perceived adverse effect or the likelihood of such effect on the marine environment. The nature of the marine environment and its protection from adverse effect from dumping is a complex matter which must be left to expert judgment.”63 Thus, given that the respondent’s characterization of subject matter depended upon ignoring the operation of the permit process, Le Dain J readily adopted the appellant’s characterization over that of the respondent. Of course, as will be discussed below, La Forest J characterized the subject matter in the manner proposed by the respondent and thus came to his dissenting conclusions. Furthermore, as noted above, the subject-matter characterization that emerged from pleading

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still required some refinement as it encountered the test for national concern under P O GG. The R ev i e w o f P r e c e de nt s A d d re s s e d in the Duf f A rt i c l e If a unified theory for P O G G were to emerge, the Duff article had made clear that it would have to take account of all precedents and give particular weight to the concerns expressed in the case law concerning the potential of the doctrine fundamentally to alter the division of powers and to tilt it toward growing federal authority. The longest part of the judgment undertook this task. Le Dain J was selective in his use of the precedents he had reviewed in the Duff article and in effect updated it by placing more emphasis upon decisions that had been rendered subsequently. Nevertheless, he began his analysis with a consideration of the two Judicial Committee cases that had most retained his attention because they identified clearly the countervailing claims to be weighed: the Local Prohibition and Canada Temperance cases. He cited the same passages from those cases that he had cited in the Duff article, with one exception; he extended the citation from Canada Temperance to include the following sentence: “Nor is the validity of the ­legislation, when due to its inherent nature, affected because there may still be room for enactments by a provincial legislature dealing with an aspect of the same subject in so far as it specially affects that province.”64 It appears that this sentence weighed more heavily on him as he reflected on the provincial inability test formulated by Peter Hogg and Dale Gibson, about which more is said below.65 The problem to be confronted was the implication of finding a new head of power. Would the new head function in the same manner as the enumerated heads of power by providing a protected zone of jurisdiction, or would it rather be an attenuated head of power that operated only to fill gaps in the constitutional scheme subject to other aspects being taken up by the provinces? Of the post–Judicial Committee Supreme Court cases he had discussed in the Duff article, Le Dain J took pains to cite the phrase he had implicitly relied upon from Munro that the subject matter there in issue (development of the National Capital region) was “a single matter of national concern.”66 Identifying the singleness and

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indivisibility of the subject matter was a crucial part of delimiting the possible scope of the doctrine. The Anti-Inflation Act R e f e r e n ce The notion of singleness received much more elaborate treatment in the Anti-Inflation Act reference, in part thanks to Prof. Le Dain himself. This was so given that Beetz J’s opinion, which on this matter was that of the majority, drew upon the Duff article, where Prof. Le Dain had used the phrase “single and indivisible matter of national interest.”67 Le Dain J’s review of that decision occupied two and a half pages of his judgment, and later he would write that the test for the national concern doctrine he developed in Crown Zellerbach was “based on Jean Beetz’s opinion in the Anti-Inflation Act reference.”68 Although a majority of the Court arguably subscribed to what Beetz J wrote about the national concern doctrine, Beetz J dissented in the result of the Anti-Inflation Act reference, which turned on the conclusion that the legislation was a valid response to meet a “crisis” (Laskin CJ’s term) or “national emergency” (Ritchie J’s term). Despite the fact that in Crown Zellerbach itself no emergency argument was advanced, Le Dain J did not confine himself to a consideration of Beetz J’s judgment. The following points were retained from Laskin CJ and Ritchie J’s judgments. Laskin C J concluded that if federal legislation responded to an emergency, there was no need to consider whether it was otherwise justified by the “broader ground” of the national concern doctrine enunciated in Canada Temperance, preferring instead to leave that doctrine open-ended so as to allow the Constitution to remain “a resilient instrument capable of adaptation to changing circumstances.”69 He could take this approach because the Act in question with its system of wage and price controls was temporary and scheduled to expire in three years.70 Yet, recalling the query put by Prof. Le Dain in the Duff article, what was the relationship between the existence of a “crisis” and the presence of a “national concern”?71 Was not the former simply an instance of the latter, albeit an instance having only temporary duration? Le Dain J was drawn to a somewhat oblique reference in Laskin C J ’s reasons to that effect and proposed that this could entail a “unified” theory of P O G G .72 As concerns Ritchie J’s judgment, in which Martland and Pigeon JJ concurred, it introduced a certain degree of incoherence concerning the true nature of the P OGG test that Le Dain J sought to overcome.

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Although Ritchie J stated that he was “in full agreement with the reasons for judgment” of Beetz J as regards the incapacity of Parliament to invoke P O G G so as to legislate in respect of matters reserved to the provinces, it is less than clear that he had adopted Beetz J’s approach to characterizing national concern.73 In fact, Ritchie J adopted language suggesting that he was reverting to the Duff CJ approach to POGG, seeking to restrict it entirely to the emergency doctrine: I do not consider that the validity of the Act rests upon the constitutional doctrine exemplified in earlier decisions of the Privy Council, to all of which the Chief Justice has made reference, and generally known as the “national dimension” or “national concern” doctrine. It is not difficult to envisage many different circumstances which could give rise to national concern, but at least since the Japanese Canadians case, I take it to be established that unless such concern is made manifest by circumstances amounting to a national emergency, Parliament is not endowed under the cloak of the “peace, order and good government” clause with the authority to legislate in relation to matters reserved to the Provinces under s 92 of the British North America Act.74 Le Dain J elegantly glossed over the tension between the Ritchie J and Beetz J judgments by summarizing Ritchie J’s reasons as follows: “Ritchie J … held that the validity of the Act could rest only on the emergency doctrine of the peace, order and good government power and that the national concern doctrine, in the absence of national emergency, could not give Parliament jurisdiction with respect to matters which would otherwise fall within provincial legislative jurisdiction. He said that he was in agreement with what was said by Beetz J with reference to the national concern doctrine.” This approach to Ritchie J’s judgment allowed Le Dain J to focus on the reasons that were of most significance in developing a unified theory of P OGG, namely those of Beetz J. It was the way in which Beetz J analyzed the concept of singleness and indivisibility that most attracted Le Dain J. He chose to reproduce the following three paragraphs of those reasons – his lengthiest quotation – in which Beetz J sought to explain why federal authority over aeronautics, radio, and the National Capital Region could not by analogy ground authority to combat inflation:

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I fail to see how the authorities which so decide lend support to the first submission. They had the effect of adding by judicial process new matters or new classes of matters to the federal list of powers. However, this was done only in cases where a new matter was not an aggregate but had a degree of unity that made it indivisible, an identity which made it distinct from provincial matters and a sufficient consistence to retain the bounds of form. The scale upon which these new matters enabled Parliament to touch on provincial matters had also to be taken into consideration before they were recognized as federal matters: if an enumerated federal power designated in broad terms such as the trade and commerce power had to be construed so as not to embrace and smother provincial powers (Parson’s [sic] case) and destroy the equilibrium of the Constitution, the Courts must be all the more careful not to add hitherto unnamed powers of a diffuse nature to the list of federal powers. The “containment and reduction of inflation” does not pass muster as a new subject matter. It is an aggregate of several subjects some of which form a substantial part of provincial jurisdiction. It is totally lacking in specificity. It is so pervasive that it knows no bounds. Its recognition as a federal head of power would render most provincial powers nugatory. I should add that inflation is a very ancient phenomenon, ­several thousands years old, as old probably as the history of currency. The Fathers of Confederation were quite aware of it.75 It is revealing to note the elements of Beetz J’s analysis that Le Dain J retained explicitly for his formulation of the P O G G test and those that he chose to treat more as descriptive elements shedding light on the true test. One key element that Le Dain J retained was that of distinctiveness. The singleness and indivisibility of the proposed subject matter also had to meet a test of distinctiveness from provincial heads of power. This suggested an overall balance in the Constitution contemplating new areas of governmental activity that had singleness and indivisibility but also distinctiveness from federal heads of power. This search for balance was further underscored by a second element, Beetz J’s insistence that the scale of impact upon provincial jurisdiction be weighed. In his summary of the test, Le Dain J retained language almost identical to that of Beetz J on this point, if anything strengthening its insistence upon protecting the fundamental distribution of powers.76

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There were two essentially aesthetic elements that Le Dain J did not retain from Beetz J’s judgment. The first was the term “aggregate,” and the second, related notion was that of “consistence to retain the bounds of form” (which is somewhat more precise in French: “une consistance suffisante pour retenir les limites d’une forme”). In Beetz J’s reasons these elements played an important role in allowing him to determine that the containment and reduction of inflation was not a new federal subject matter. For Beetz J, an “aggregate” subject matter was simply the opposite of a single subject matter, and a subject matter lacking consistence allowing it to retain form was the opposite of an indivisible subject matter. One can see what Beetz J meant by these terms, bearing in mind the long list of enterprises in the provincial private sector to which the Act applied (see Beetz J’s reasons at 441) and the longer list of possible measures involving matters now in provincial control that would become under exclusive federal jurisdiction if the new subject matter were recognized (see Beetz J’s reasons at 443–4). In this sense, Beetz J’s judgment, taken as a whole, did direct itself to the functions performed using the power and not simply to what one might call the Platonic form of the subject matter. However, the use of the terms “aggregate” and “consistence” heightened the focus, as the test was performed, on the form of the subject matter rather than its function. Le Dain J remarked in his own reasons that a determination had to be performed as to “whether a matter has the requisite singleness or indivisibility from a functional as well as a conceptual point of view.”77 He was therefore seeking language that would establish a clearer balance between the conceptual and functional dimensions of the analysis. The Labatt C l assi f i c at i on C o n f u s i o n Le Dain J found a way to achieve this by examining three cases that had considered a provincial inability test: Labatt Breweries; Schneider; and Wetmore. Beetz J had concurred in the first two and his AntiInflation Act reasons had received extended attention in the third. This helped to underscore that the functional dimension of the analysis was consistent with the overall approach Beetz J had taken. At the same time two of these three cases introduced a certain confusion into the analysis that Le Dain J had to resolve if he was going to produce a unified theory of POGG. This confusion should be addressed briefly before pursuing an analysis of the provincial inability test.

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In Labatt Breweries, Estey J sought to summarize the cases respecting POG G by grouping them into three categories (at 944–5): The principal authorities dealing with the range of the federal jurisdiction under this heading are illustrated by: (1)  Fort Frances Pulp and Paper Co. v. Manitoba Free Press [1923] A.C. 695, basing the federal competence on the existence of a national emergency; (2) The Radio Reference [1932] A.C. 304 and the Aeronautics Reference [1932] A.C. 54 wherein the federal competence arose because the subject matter did not exist at the time of Confederation and clearly cannot be put into the class of matters of merely local or private nature; and, (3)  Where the subject matter “goes beyond local or provincial concern or interest and must, from its inherent nature, be the concern of the Dominion as a whole.” Attorney General of Ontario v. Canada Temperance Federation [1946] A.C. 193 per Viscount Simon, at p. 205. This threefold classification was repeated by Dickson J (as he then was) in his Wetmore dissent (at 295). The role and status of the Canada Temperance decision was thereby left in doubt. For Le Dain J, Canada Temperance was one key to a unified theory of P O G G . In Estey J’s reasons, Canada Temperance contributed to making P O G G itself into a kind of “aggregate,” to borrow Beetz J.’s term, made up of three disparate sources of authority. What Estey J had not done fully was to distinguish among three situations of “concern to the Dominion as a whole.” Two of them he had properly identified: a national emergency and a new subject matter that could not be classified as local or private. The third, attributed to Canada Temperance itself, he left diffuse, perhaps in deference to Laskin CJ ’s reluctance to over-define P O GG. Le Dain J sought to settle the confusion regarding the third situation as follows (at 428): “Thus Estey J saw the national concern doctrine enunciated in Canada Temperance Federation as covering the case, not of a new subject matter which did not exist at Confederation, but of one that may have begun as a matter of a local or provincial concern but had become one of national concern.” This re-characterization of Estey J’s dicta ultimately allowed Le Dain J to derive a coherent, unified classification of all the contexts

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for the application of the s 91 power “to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” To begin with, and left implicit in the analysis, there were of course the enumerated heads of power of s 91 themselves (“for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated”). Next was the situation of emergency, which was a special form of national concern and distinguishable from what had come to be known as the “national concern doctrine,” because it gave rise to a temporary power. Le Dain J called this branch of P O G G the “national emergency doctrine” (at 431). The powers that were not temporary, and thus properly gave rise to the “national concern doctrine” had two sub-branches: (1) those that did not exist at the time of Confederation; and (2) those that did exist, though were not explicitly enumerated, falling as they did under s 92(16) (“matters of a merely local or private nature in the Province”) but since had become matters of national concern.78 The Prov i nc i a l I na b i l i t y T e s t The last, in some ways most complex element of the analysis to emerge from a consideration of the prior case law was the incorporation of the provincial inability test. The Supreme Court had cited two versions of the test, both drawn from academic sources. The first, cited in Labatt and in Dickson J’s dissent in Wetmore, was drawn from Prof. Peter Hogg, who, upon reviewing the national concern cases, concluded, “These cases suggest that the most important element of national dimension or national concern is a need for one national law which cannot realistically be satisfied by cooperative provincial action because the failure of one province to cooperate would carry with it grave consequences for the residents of other provinces. A subject matter of legislation which has this characteristic has the necessary national dimension or concern to justify invocation of the p.o.g.g. power.”79 Prof. Dale Gibson, cited in Schneider, had articulated the provincial inability somewhat differently:

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By this approach, a national dimension would exist whenever a significant aspect of a problem is beyond provincial reach because it falls within the jurisdiction of another province or of the federal Parliament. It is important to emphasize however that the entire problem would not fall within federal competence in such circumstances. Only that aspect of the problem that is beyond provincial control would do so. Since the “P.O. & G.G.” clause bestows only residual powers, the existence of a national dimension justifies no more federal legislation than is necessary to fill the gap in provincial powers. For example, federal jurisdiction to legislate for pollution of interprovincial waterways or to control “pollution price-wars” would (in the absence of other independent sources of federal competence) extend only to measures to reduce the risk that citizens of one province would be harmed by the non-co-operation of another province or provinces. This might take the form for instance of a mechanism for resolving pollution disputes between the provinces or of prescribed pollution standards to apply until inter provincial agreement is reached. But if the provinces could demonstrate that they were in fact agreed on standards different than those imposed by the federal legislation (or that they had agreed on non-regulation) the national dimension would have disappeared. In that case the federal legislation could survive only on the basis of some source of federal jurisdiction other than the “P.O. & G.G.” power.80 He added further, “Having regard to the residual nature of the power, it is the writer’s thesis that ‘national dimensions’ are possessed by only those aspects of legislative problems which are beyond the ability of the provincial legislatures to deal because they involve either federal competence or that of another province. Where it would be possible to deal fully with the problem by co-operative action of two or more legislatures, the ‘national dimension’ concerns only the risk of non-co-operation, and justifies only federal legislation addressed to that risk.”81 Profs Hogg and Gibson both took up their analysis of national concern from what one might call a provincial default position – i.e., the assumption that un-enumerated matters would be treated as provincial unless a strong prudential argument could be made that they should be treated as federal. In this sense both were examples

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of “subsidiarity” arguments, although the degree to which new federal subject matter would become exclusive differed somewhat in their formulations, as did the ease with which federal jurisdiction might be triggered. As to the degree to which the new subject matter would become exclusive, Prof. Hogg appeared to take the ordinary doctrinal position that once it was found to come within federal jurisdiction, it was exclusively so, subject of course to the application of the aspect and necessarily incidental powers doctrines allowing the provinces to take up certain dimensions of the matter falling within their jurisdiction. Prof. Gibson, for his part, treated the P O G G power as different from enumerated federal powers and thus not giving rise to exclusivity.82 For him, the national concern doctrine essentially produced a form of concurrent jurisdiction that would wax or wane, depending upon the actual ability of the provinces to cooperate. On this point Le Dain J simply invoked Beetz J’s reasons in the Anti-Inflation Act reference, which had made clear that if control of inflation fell under P O G G , it would “become an area of exclusive federal jurisdiction.”83 Le Dain J thus wrote that “where a matter falls within the national concern doctrine of the peace, order and good government power, as distinct from the emergency doctrine, Parliament has an exclusive jurisdiction of a plenary nature to legislate in relation to that matter, including its intra-provincial aspects.”84 As to the trigger, Profs Hogg and Gibson both had in view the problem of collective action among the provinces. It should be recalled, however, that in his Duff article, Prof. Le Dain had commented favourably on Duff C J ’s persistent opposition to arguments of convenience based on the efficiency advantages of a single, national plenary power to address problems and purposes that traversed the division of powers.85 It would be very difficult to square this with any attempted judicial assessment of the risk or likelihood of provincial failure to cooperate so as to establish a basis for plenary federal power. Why should there not be a parallel judicial assessment of the likelihood of federal failure to act or of use of its authority in a race to the bottom with other nations – a hypothesis that is far from being speculative in the environmental domain? Indeed, in discussing Prof. Hogg’s approach, Le Dain J observed, “The ‘provincial inability’ test must not, however, go so far as to provide a rationale for the general notion, hitherto rejected in the cases, that there must be a plenary jurisdiction in one order of government or the other to deal with any legislative problem.”

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Furthermore, a close parsing of Prof. Hogg’s language suggested that even a purely hypothetical failure to cooperate could trigger the use of the provincial inability test. That is, where a matter – say the imposition of pollution standards, to use Prof. Gibson’s example – was in fact being addressed through cooperation among the provinces and the federal government, but absence of cooperation “would carry with it grave consequences for the residents of other provinces,” the conditions of the test were fulfilled merely by the hypothesis. Thus, the trigger was easily set off, although Prof. Hogg sought to place a safety mechanism on it by requiring that the consequences be adjudged as “grave.” In some contrast to Prof. Hogg’s formulation, Prof. Gibson’s proposed use of the failure to cooperate test involved an assessment of the actual risk of non-cooperation and justified only federal measures designed to address that risk. That is, using his example again, if cooperation on pollution standards carried a risk of non-cooperation or even of a race to the bottom, the federal government could determine a dispute settlement mechanism or prescribe an interim standard pending agreement.86 On the other hand, Prof. Gibson did not include a “grave consequences” rider on the assessment of risk, since he rejected any effort to bring a test of importance into the national concern doctrine.87 Le Dain J, for his part, did not accept incorporating a test for absence of provincial cooperation into the national concern doctrine. In an extremely careful formulation, he reframed use of a provincial inability test as follows: “In determining whether a matter has attained the required degree of singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter.”88 This should be broken down as follows. First, the provincial inability “test” is best viewed as only a factor in assessing singleness, distinctiveness, and indivisibility, which is the true test. Second, its purpose is to help distinguish the proposed subject matter from matters of provincial concern, which means that provincial ability to deal effectively with an intra-provincial matter excludes federal jurisdiction over the intra-provincial aspects of the matters. Third, when performing its assessment of the matter from the provincial perspective, the Court engages in a parallel assessment from the federal perspective.

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That is, one side of the analysis involves asking whether the purported national concern can be addressed with a scale of impact upon provincial jurisdiction reconcilable with the overall distribution of powers. The other side of the analysis involves asking whether the exercise of provincial jurisdiction over the matter would have a scale of impact on extra-provincial jurisdiction reconcilable with the overall distribution of powers. The practical way to pose this latter question is to ask about the impacts of ineffective regulatory control on extraprovincial interests were the matter to be dealt with at the provincial level, focusing, of course, on intra-provincial aspects. What Le Dain J. was seeking to assess was the degree to which spillover effects were intertwined with the subject matter itself.89 If provinces were inherently ineffective at intra-provincial regulation because the extra-provincial aspects of the subject matter proved to be too pervasive, the subject matter appeared to have singleness, distinctiveness, and indivisibility at the national level. The assessment of ineffectiveness was not to be a judicial guess as to how politically effective, cooperative, or uncooperative current provincial governments would prove to be. That was not a judicial function.90 Rather, the assessment was to be of the inherent effectiveness or ineffectiveness (relative to the scope of extra-provincial effects) of a provincial attempt to control or regulate the subject matter. In essence, as will be discussed in the last section of this chapter, Le Dain J was here reaching for a theory of public goods seeking to align the governance of their provision with the level of jurisdiction capable of addressing the highest concentration of interconnected externalities. The contrasting examples of marine and freshwater pollution help to clarify Le Dain J’s subtle reasoning here. Both have intra- and extra-provincial aspects. In the former case, the province would be inherently ineffective in seeking to regulate the intra-provincial aspects of the matter because the spillovers from extra-provincial aspects are pervasive. Absent the ability to control the extra-provincial aspects, it would be unable to take up effective responsibility for the regime. One can barely imagine what an effective inter fauces terrae marine pollution – or more narrowly marine dumping – regime could look like, given that pollution arising from one centimetre outside the territory could have a vastly larger impact on provincial waters than pollution arising within them. Nor could the local impacts be separated clearly from the extra-provincial impacts. It would be like seeking to regulate the movement of local grains of sand in the middle of

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the Sahara. At the same time, however, local ineffectiveness would have extra-provincial spillover effects if there were an artificial attempt the divide the subject matter. Pollution arising from one centimetre inside provincial waters and spreading out into extra-provincial waters could have significant effect on extra-provincial interests. By contrast, the control and regulation of freshwater pollution could be addressed much more effectively by maintaining the ­distinction drawn between intra- and extra-provincial aspects. Navigable rivers and rivers and watersheds have interprovincial and international dimensions that can be addressed federally. Wetlands can in essence receive provincial regulation subject to certain federal aspects (such as migratory birds impacts and federal lands).91 Although there are spillover effects, these are not such as to render the separation of jurisdiction ineffective. Here Duff CJ ’s admonition that there need not be single plenary jurisdiction, since negotiations and cooperation are a feature of federalism, would rule the analysis. The N ati o na l C o nc e r n T e st Since Le Dain J’s summary of the applicable POGG doctrine emerged directly from his consideration of the case law, the previous discussion has already touched each of the elements that he highlighted in his synthesis. Nevertheless, the four elements he distilled from the POGG analysis deserve to be reproduced for the sake of some final general observations (at 431–2): 1 The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order, and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature. 2 The national concern doctrine applies to both new matters that did not exist at Confederation and to matters that, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern. 3 For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness, and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is

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reconcilable with the fundamental distribution of legislative power under the Constitution. 4 In determining whether a matter has attained the required degree of singleness, distinctiveness, and indivisibility that clearly distinguishes it from matters of provincial concern, it is relevant to consider what would be the effect on extra-provincial interests of a provincial failure to deal effectively with the control or regulation of the intra-provincial aspects of the matter. As to the first point, it is worth observing a certain unavoidable infelicity in the phrase “necessarily legislation of a temporary nature” (in French “nécessairement une mesure législative provisoire”). Le Dain J’s formulation tracks the formulations Beetz J had employed in the Anti-Inflation Act reference (at 400), namely a contrast to “legislation not of a temporary character” – in French “qui n’était pas de nature temporaire” and (at 401), power to adopt “temporary legislation” – in French “lois provisoires.” The other opinions in AntiInflation Act had all emphasized the requirement that the legislation be temporary (see Laskin C J at 407 and Ritchie J at 437) and traced authority for this at least as far back as Canada Temperance (at 205–6), which was in turn summarizing earlier case law, including notably Fort Frances.92 Subsequently in Wetmore (at 295) Dickson J (as he then was) had himself summarized Beetz J’s reasons as relating to “temporary legislation” – in French “lois provisoires.” Indeed, as Prof. Le Dain had summarized the doctrine in the Duff article (at 288), “No legislation that related to matters ordinarily within provincial legislation and was to operate indefinitely could be supported on the general power.”93 In short, Le Dain J’s formulation was entirely orthodox. Yet what of emergency preparedness?94 Is it excluded from the emergency doctrine? That is, legislation such as the Emergencies Act95 and Emergency Management Act does not expire. The Emergencies Act is the legislation that superseded the War Measures Act.96 In the Japanese Canadians case the Privy Council upheld orders-in-council promulgated pursuant to the War Measures Act, and in the course of his reasons Lord Wright stated, The Parliament of the Dominion in a sufficiently great emergency, such as that arising out of war, has power to deal adequately with that emergency for the safety of the Dominion as a

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whole. The interests of the Dominion are to be protected and it rests with the Parliament of the Dominion to protect them. What those interests are the Parliament of the Dominion must be left with considerable freedom to judge. Again, if it be clear that an emergency has not arisen, or no longer exists, there can be no justification for the exercise or ­continued exercise of the exceptional powers. The rule of law as to the distribution of powers between the Parliaments of the Dominion and the Parliaments of the Provinces comes into play. But very clear evidence that an emergency has not arisen, or that the emergency no longer exists, is required to justify the judiciary, even though the question is one of ultra vires, in overruling the decision of the Parliament of the Dominion that exceptional measures were required or were still required … The validity of the War Measures Act was not attacked before their Lordships, and, consistently with the principles stated, was not open to attack.97 There was no reliance here upon the legislation itself being temporary. After all, legislation adopted in 1914 had been invoked in 1945.98 Rather, the emergency triggering the use of the legislation was temporary, and continued use of the legislation once the emergency no longer existed could encounter a judicial determination that Parliament was acting ultra vires.99 The Court’s current formulation of the emergency doctrine seems to have departed from Lord Wright’s reasons in Japanese Canadians. It is the effect of the legislation rather than the legislation itself that is to be temporary in an emergency. It would be ironic if courts had to resort to the national concern doctrine rather than the emergency doctrine in order to ground emergency planning and preparedness legislation. That would in the end confirm that that the emergency doctrine is simply an instance of the national concern doctrine. The second point in Le Dain J.’s summary of the P O G G power has been decried by Prof. Eugénie Brouillet: In complete contradiction to its position in Re Anti-Inflation Act, the Supreme Court stated that the doctrine could now apply “to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national

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emergency, become matters of national concern.” The Supreme Court’s new interpretation directly contradicted the introductory paragraph to section 91, which states clearly that the federal ­parliament could “make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”100 This is a very surprising assertion. To begin with, the origins of the two branches of the national concern test (new matters and matters that have become of national concern) were traced in detail in the Anti-Inflation Act reference. In his dissenting reasons, which on this point were nevertheless followed by the majority, Beetz J cited a number of cases, including the Aeronautics and Radio cases, in support of the first branch, which he emphasized explicitly,101 and also cited the passage from Local Prohibition, from which the formulation of the second branch is drawn.102 As concerns the purported contradiction with the introductory paragraph of s 91, careful attention must be paid to the formulation used by Le Dain J. He refers to “matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern.” Presumably Prof. Brouillet sees a contradiction between this statement and the allocation according to s 92(16) of jurisdiction to make laws in relation to “generally all matters of a merely local or private nature in the province.” However, Beetz J’s analysis is instructive on this point as well, since it points out that s 92(16) has a character different from that of other provincial enumerated heads of power: To characterize a law is but to give a name to its content or ­subject matter in order to classify it into one or the other of the classes of matters mentioned in s. 91 or s. 92 of the Constitution. These classes of matters are themselves so many labels bearing a more or less specific name, except the general power of Parliament to make laws in relation to matters not coming within the classes of matters exclusively assigned to the Provinces – a label specific only in a negative way – and except the power of the Provinces in relation to all matters of a merely local or private nature – a label unspecific except mainly with regard to dimensions. This leaves some forty-six specific labels,

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thirty-one of which are in the federal list and fifteen of which are in the provincial list.103 Here Beetz J was suggesting a certain parallel between the federal P O G G power and the s 92(16) provincial power. The absence of specificity of s 92(16) entails that what might at one time present itself as local and provincial might at another time have taken on a national dimension and thus no longer fall within the classes of subjects assigned exclusively to the legislatures of the provinces.104 Thus, there is no contradiction of the sort claimed by Prof. Brouillet. Had Le Dain J, or indeed prior Court dicta, sought to extend to application of the national concern doctrine to the fifteen specific labels on the provincial list, she would have had a point. But this was studiously avoided precisely because of the language of the Constitution. As to the third point in Le Dain J’s summary, which he himself took to be the core of the test,105 a final observation should be made concerning the “distinctiveness” element. It will be recalled that Prof. Le Dain had already identified the “singleness” and “indivisibility” elements in his Duff article but had also expressed misgivings about whether they would prove adequate to guard against the inclusion of overly broad subject matter under the national concern doctrine.106 The distinctiveness element allowed what might emerge as possible subject matter to be refined as it was tested against the existing distribution of powers. Take the example of the environment. Conceptually it can be viewed as single and indivisible insofar as all ecosystems are linked together within the biosphere.107 However, the conceptual integrity of a subject matter must be tested against the deployment of governmental functions. It is one thing to say that the environment is single and indivisible, while it is quite another to say that control of pollution is so. It is the distinctiveness of the subject matter as a domain of governmental authority that is of relevance, particularly as regards other domains of authority that are explicitly enumerated. This is why the subject-matter characterization included a verbal noun identifying the governmental activity (“control of marine pollution by the dumping of substances”) – which is explicitly true of some but not all of the enumerated heads – so as to be able to evaluate the distinctiveness of the governmental authority in issue.108 As we have already seen,109 the fourth point in Le Dain J’s summary probed further the method by which singleness, distinctiveness, and

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indivisibility can be discerned. The default position of the Constitution is to delimit un-enumerated subject matter territorially and to assign its local dimensions to the provinces. Local and provincial capacity (i.e., capacity in principle, not as regards existing political circumstance) to address the matter coherently without giving rise to significant unmanageable national spillovers would favour maintaining this provincial delimitation on subject matter. Where control of interprovincial and extra-provincial spillovers of the problem is closely interconnected with controlling the local dimensions of the problem, federal jurisdiction would be engaged with respect to the whole, which from a conceptual and functional standpoint is thus revealed to be single, distinct, and indivisible.110 The A pp l i c at i o n o f t he E nt ire T e s t The question Le Dain J put to himself regarding the application of the test was precise in its terms:111 “The question is whether the control of pollution by the dumping of substances in marine waters, including provincial marine waters, is a single, indivisible matter, distinct from the control of pollution by the dumping of substances in other provincial waters.” This can be reformulated slightly as focusing the analysis on whether federal control of ocean dumping pollution was sufficiently distinct from provincial control over dumping pollution in nonmarine waters so as to form two separate, indivisible subject matters. Thus, the first step in the analysis was to examine whether marine pollution by the dumping of substances was conceptually single and indivisible, in order then to examine whether the federal control of that phenomenon was functionally distinct from provincial control of the non-marine phenomenon. In order to establish conceptual singleness and indivisibility, Le Dain J drew principally on the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and asserted that it treated marine pollution by dumping of substances as a distinct and separate form of water pollution. This conclusion can be gathered from the recitals to the convention, not cited in the judgment, which state in part: THE C O NT R A C T I NG P A R T I E S T O T H I S CO N VE N T I O N , R EC OGNI Z I NG that the marine environment and the living organisms which it supports are of vital importance to humanity,

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and all people have an interest in assuring that it is so managed that its quality and resources are not impaired; R EC OGNI Z I NG that the capacity of the sea to assimilate wastes and render them harmless, and its ability to regenerate natural resources, is not unlimited; R EC OGNI Z I NG that States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction; … N OTI NG that marine pollution originates in many sources, such as dumping and discharges through the atmosphere, rivers, estuaries, outfalls and pipelines, and that it is important that States use the best practicable means to prevent such pollution and develop products and processes which will reduce the amount of harmful wastes to be disposed of; B EING C ONV I NC E D that international action to control the pollution of the sea by dumping can and must be taken without delay but that this action should not preclude discussion of measures to control other sources of marine pollution as soon as possible; … HA V E A GR E E D as follows: Therefore, the contracting parties themselves were able to distinguish the subject matter of marine pollution by dumping from other acknowledged sources of marine pollution and to design a regime addressing it in particular. This strong conclusion was reinforced by the Report of the Joint Group of Experts on the Scientific Aspects of Marine Pollution that had been filed before the Court.112 Although Le Dain J did not think it necessary to cite passages from that report, two are particularly telling. The first speaks to the particular characteristics of marine pollution by dumping: It is only when the dumped material accumulates that a measurable deterioration of the environment may occur. For example, in some sewage sludge disposal sites slow alterations are caused in the sediment, making the ground uninhabitable by commercial

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shellfish that were previously present. Also, the benthos may be changed to a community which is less acceptable as food for fish. Other types of dumped material can have comparable effects. Thus, the dumping of dredged spoils may result in both smothering and toxic effects, while even the most chemically inert material can blanket the ground, bury fauna, and change the character of the sediments. However, even where an effect can be clearly demonstrated on an isolated dumping ground, this effect will usually be restricted by the nature of the dumping operation to a relatively small area, so that only a small part of the commercial fish stock will be open to contamination. The most serious situations are those where several dumping grounds are close together, so that the pollution sources may then coalesce spreading the impact over a wider area.113 Thus ocean dumping, even of matter such as wood waste, could have the effect of blanketing and smothering fauna and changing ecosystem characteristics. Furthermore, localized coastal effects of marine dumping pollution could spread to become larger impacts. This latter point about the relation between local coastal impacts and broader impacts was emphasized in the summary to the report: The most damaging effects on the ecosystem have been recorded at “hot spots.” These may range in size from a few square metres round a discharge pipe to the full extent of a major estuary, and they may encompass specific habitats or ecosystems such as salt marshes, kelp beds, mangrove swamps and coral reefs. Most of these future threats, like the present problems discussed in this report, will have their main potential impact on the coastal zone. Thus the extent of the interchange between the most impacted seashore zones, the remainder of the continental shelf, and the open ocean is highly relevant. Although published work suggests that nearshore ecosystems export significant quantities of material, this view is now being re-examined, and further work on the topic is of major importance in assessing the spread of pollution. However, if a high proportion of a given habitat becomes affected, then the pollution could become global in the context of that habitat.114 There is a sense in which the expansion of scope of the subject matter from local “hot spots” to treatment of interconnected coastal

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ecosystems represented a precautionary approach, at least as of 1982 when G ESA MP published its report.115 Nevertheless, the report gave a basis for concluding that regulatory approaches to dumping in coastal water would have to address spillovers from local to global effects with respect to given habitats. Despite the clear expression of the interrelationship of all coastal water dumping pollution, the convention nevertheless gave rise to a conceptual problem as concerns the characterization of subject matter. By defining the “sea” as “all marine waters other than the internal waters of the States,” the convention seemed to imply that the subject matter dividing line was between internal waters and other territorial waters.116 Le Dain J dismissed this interpretation: “The limitation of the undertaking in the Convention, presumably for reasons of state policy, to the control of dumping in the territorial sea and the open sea cannot, in my opinion, obscure the obviously close relationship, which is emphasized in the U.N. Report, between pollution in coastal waters, including the internal marine waters of a state, and pollution in the territorial sea.”117 The relation between the convention regime and Canadian national regulation apparently presented parallel issues for the drafters of the convention to those involved in determining the relationship between federal and provincial regulation. The convention did not exclude extending its regime to the entirety of a country’s marine waters, but simply left it to the internal law of the country to determine how territorial waters were to be addressed. Since, as one of the recitals to the convention specified, pursuant to its provisions states were “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction,” internal waters were at the time deemed to fall outside its scope, because it was not yet clear whether the spillover effects of inadequate control over dumping in internal waters was great enough to cause damage beyond national jurisdiction.118 Perhaps anticipating the evolution of the international regime, Le Dain J emphasized that from a practical standpoint, regulatory authorities would have great difficulty ascertaining the boundary between internal and territorial waters in order to delimit where precisely to apply regulatory and penal provision of the Act.119 From the standpoint of the Canadian Constitution, however, the issue was not whether the spillover effects beyond national jurisdiction were sufficient to engage the national concern doctrine. Rather,

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the issue was whether the spillover effects from provincial to national waters were sufficient. In Canada, territorial waters fall partly in provincial jurisdiction (those that are inter fauces terrae), and the larger remainder fall in federal jurisdiction. As compared with the internal water-territorial water divide, if anything, both the scientific evidence available to the Court and the practical difficulties of establishing control over one side or the other of the boundary dividing provincial and federal coastal waters pointed much more strongly to the convergence of spillovers within federal jurisdiction.120 This left as a final consideration whether federal control of marine dumping was sufficiently demarcated from provincial control over dumping in fresh water. If the two proved to be too closely intertwined, that could raise the question of balancing whether on the contrary provincial jurisdiction should be extended to marine dumping, whether the absence of plenary jurisdiction over federal spillovers should be tolerated, and in general what the implications of intertwined federal and provincial spillovers were for the overall equilibrium of federal-provincial powers. Although Le  Dain J acknowledged that dumping pollution in fresh water could affect marine waters, nevertheless he relied on the G E S A M P report to conclude that dumping in fresh water produced relatively diffuse effects on marine water.121 Furthermore, the impacts of dumping on freshwater ecosystems – which are generally distinguishable from saltwater ecosystems – attracted discrete regulatory oversight. Even if the distinction between the two sets of subject matter left some residual interconnected issues over which neither level of government had plenary power, that consideration was insufficient to displace the general equilibrium of the division of powers. He was thus able to conclude that control of dumping in salt water was sufficiently distinct both conceptually and functionally from control of dumping in fresh water. Presumably he had in mind as well that there were separate sources of federal jurisdiction over aspects of freshwater dumping on navigable rivers, in relation to fisheries and where there were interprovincial effects. The Critique: Gérard La Forest, Criminal Law, and the Interconnectedness of the Environment Gérard La Forest’s vigorous dissent reveals certain fault lines that can appear as courts seek to make use of the national concern doctrine.

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If Le Dain J sought to apply a scalpel to the task of delimiting federal and provincial jurisdiction, La Forest J preferred heavier equipment. Compared with the delicate balancing tests Le Dain J had employed to gauge where to trace his incision, La Forest J looked for rougher, cruder delimitations on the basis that they would more readily guide courts, and indeed legislatures. In one sense La Forest J has been proven right, as we will see in the next section, since courts have rarely felt up to the task of deploying the national concern doctrine since Le Dain J’s decision. And it must be said that in his own subsequent judgments, La Forest J was a determined and effective proselytizer for the position he had taken in Crown Zellerbach.122 G ér a r d L a F or e st ’s A p p roac h to S u bj e ct M at t e r La Forest J’s approach was signalled in the very first sentence of his reasons: “The issue raised in this appeal involves the extent to which the federal Parliament may constitutionally prohibit the disposal of substances not shown to have a pollutant effect in marine waters beyond the coast but within the limits of a province.” 123 By contrast, Le Dain J had sought to explain why this characterization of the subject matter should not be retained. La Forest J simply affirmed the opposite. Indeed, throughout his reasons, he emphasized that “s. 4(1) of the Act extends beyond the control of ocean pollution to encompass the dumping of all substances, whether pollutants or not.”124 This was a crucial element in his reasons, because had he found that marine dumping controlled by s 4(1) was in fact itself an inherently harmful activity that required control, whether the material dumped was inert or toxic, his analysis would have prompted him to confront more directly the limits of justifying environmental legislation under the criminal law power. It is because he maintained a strict distinction between “innocuous marine dumping” and harmful marine dumping that his analysis moved irrevocably in the direction it did. Yet the affirmation that a dumping ban must not extend to innocuous dumping is perplexing. It is as if a prohibition against littering were analyzed for its over-breadth because it failed to distinguish between innocuous and harmful litter. The G E S A M P report, cited liberally by La Forest J, had made clear in a passage cited earlier that “even the most chemically inert material can blanket the ground, bury fauna, and change the character of the sediments.”125 The message from the scientists was that there was an urgent need to stop using

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the oceans as dumping grounds, particularly in coastal regions. Indeed, La Forest J’s approach to this question now appears rather antiquated, given that the contemporary marine dumping regime has moved even further in the direction of banning all forms of dumping. A clue as to why La Forest J was nevertheless so convinced in the face of the science that s 4(1) was over-broad is revealed in his dismissive approach to invoking criminal law jurisdiction as a basis for the legislation: I see no more merit in the submission, which appeared in the appellant’s written submission, that the prohibition in s. 4(1) is justifiable as criminal law, and it is significant that counsel rather ignored this submission in his oral argument. It may be true that some of the items listed in the schedules to the Act could be harmful to human health if dumped in water, and it is also true that a prohibition properly directed at the protection of health might be justifiable as an exercise of the criminal law power; see Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, at pp. 49–50. But it is difficult to see how the impugned provision preventing the dumping into marine waters of any substance, however innocuous, can be said to be aimed at the protection of health.126 Here, then, was the test La Forest J was applying to determine whether dumping was innocuous from a criminal law standpoint. Could the dumped substance affect human health? Was it toxic in that sense?127 As regards fisheries jurisdiction, the parallel question was whether it was likely to harm fisheries, which would constitute harm to human uses of the marine environment.128 As will be discussed further below, the idea that control of harm to the marine environment itself was cognizable as a new subject matter of jurisdiction remained unacknowledged in his reasons.129 That is, one can go so far as to say that because of the way the dissent characterized the subject matter, it never confronted the question in issue. The Ov e r r e ac h of S 4 ( 1 ) Indeed, there is an important sense in which La Forest J apparently concluded that the “overreach” of s 4(1) had to do with seeking to overcome an inherent feature of our relationship to the environment:

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All physical activities have some environmental impact … As I mentioned before, environment protection, of course, encompasses far more than environmental pollution, which is what we are principally concerned with here. To take an example from the present context, woodwaste in some circumstances undoubtedly pollutes the environment, but the very depletion of forests itself affects the ecological balance and, as such, constitutes an environmental problem. But environmental pollution alone is itself all-pervasive. It is a by-product of everything we do. In man’s relationship with his environment, waste is unavoidable. The problem is thus not new, although it is only recently that the vast amount of waste products emitted into the atmosphere or dumped in water has begun to exceed the ability of the atmosphere and water to absorb and assimilate it on a global scale. There is thus cause for concern and governments at every level have begun to deal with the many activities giving rise to problems of pollution.130 If waste is a by-product of everything we do, and if wood waste in particular is a product of authorized and indeed encouraged economic activity for which provincial licences are given, is it not simply part of the trade-off involved in controlling provincial public lands, managing local works and undertakings, establishing property and civil rights, and dealing generally with local or private matters in the province?131 The force of this argument is augmented by the nature of the claim that federal jurisdiction resides in P O G G . After all, no new subject matter ascribed to the federal government under the national concern doctrine is to trench upon the enumerated heads of provincial power. If dumping wood waste in provincial waters is a by-product of granting a provincial lease to a forest products company for access to a water lot in provincial waters132 in conjunction with its logging operations in the province, that is the way the world turns, constitutionally speaking. The federal government, with its jurisdiction over extra-provincial marine waters, has nothing to say about it. Industry generates waste, and the province must take that into account. The view expressed in this reasoning is that waste and pollution are necessary by-products of human activity implicitly contemplated by the Constitution, and that the jurisdiction centred on activity rather

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than its impacts forms the relevant constitutional subject matter, since the Constitution is silent on impacts. This does indeed reflect the original distribution of powers, and La Forest J insisted that he was taking a more “traditional approach” than was the majority.133 But as La Forest J himself also noted in the passage just cited, while the problem of pollution is not new, what is new is that its dimensions have now exceeded the ability of the atmosphere and the water to absorb and assimilate it. He acknowledged that POGG admits of new subject matter taking on national dimensions. If the new subject matter with which governments “have begun to deal” therefore centres on control of accumulating adverse pollution impacts rather than on enabling human activity, this new subject matter also necessarily represents a general constraint on the exercise of jurisdiction with respect to the old subject matter. For example, it would make provincial logging – and indeed all economic activity – subject to supervening controls over marine dumping pollution. However, the constraints would not themselves be the exercise of power over public lands, local works, or property and civil rights. British Columbia continues to exercise jurisdiction over leases of provincial waters, timber licences, the construction and placement of A-frame structures on barges, and all of the contractual and other arrangements enabling those activities. The lessee simply cannot use the leasehold to dump wood waste in marine waters without having a federal permit, because the impact of human activity now exceeds the capacity of the ocean to absorb it. The new subject matters of aeronautics and radio, with which La Forest J had no difficulty, were, it is true, more like the traditional subject matters, because they enabled activities rather than controlling their impacts. But at the same time it must be acknowledged that they were in some respects closer in nature to control of pollution, since a central concern to the regulatory regimes associated with both was the prevention of spillover effects that could harm the creation of a public good. In the case of aeronautics, the creation of an aviation transportation network depended on preventing accidents and ensuring that safe aircraft and air traffic control systems were being used. In the case of radio, the creation of a national broadcasting system depended on the allocation of spectrum being respected and interference being controlled. Collective action problems were at the centre of the powers in issue.

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Interestingly enough, La Forest J agreed that pollution impacts could indeed fall under the ambit of what he called the national dimensions test: In legislating under its general power for the control of pollution in areas of the ocean falling outside provincial jurisdiction, the federal Parliament is not confined to regulating activities taking place within those areas. It may take steps to prevent activities in a province, such as dumping substances in provincial waters that pollute or have the potential to pollute the sea outside the province. Indeed, the exercise of such jurisdiction, it would seem to me, is not limited to coastal and internal waters but extends to the control of deposits in fresh water that have the effect of polluting outside a province. Reference may be made here to Interprovincial Co‑operatives Ltd. v. The Queen, [1976] 1 S.C.R. 477, where a majority of this Court upheld the view that the federal Parliament had exclusive legislative jurisdiction to deal with a problem that resulted from the depositing of a pollutant in a river in one province that had injurious effects in another province. This is but an application of the doctrine of national dimensions triggering the operation of the peace, order and good government clause.134 Thus, the concern La Forest J expressed concerning the invasion of provincial heads of power was confined narrowly to the circumstance in which control of dumping had nothing to do with control of pollution. Yet in the view of GE SA M P and those who negotiated the convention, that was a null set, provided that the regime included narrow exceptions for permitted dumping. That is, only a regime that had outlawed all dumping without consideration being given to granting permission for innocuous (or extraordinarily necessary) dumping could have met La Forest J’s narrow criterion for exclusion from POG G . Such was not the case with the Act.135 Pr efer e nc e f or t h e C r i mi na l L aw Given what is revealed to be an extremely narrow line of division between the majority opinion and that of the dissent, how does one account for the vehemence with which La Forest J expressed himself, especially concerning the relationship between regulation of the environment and the enumerated heads of provincial jurisdiction? The

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answer would appear to lie in the strong preference La Forest J had for using the criminal law power as the locus of supervening federal control. It is as if for him the national concern doctrine presented too many interpretive quandaries and that a sounder direction for the evolution of federal authority lay in giving the criminal law power a capacious interpretation, because he saw it as containing inherent limits that were more readily reconciled with provincial authority: In fact, as I see it, the potential breadth of federal power to ­control pollution by use of its general power is so great that, even without resort to the specific argument made by the appellant, the constitutional challenge in the end may be the development of judicial strategies to confine its ambit. It must be remembered that the peace, order and good government clause may comprise not only prohibitions, like criminal law, but regulation. Regulation to control pollution, which is incidentally only part of the even larger global problem of managing the environment, could arguably include not only emission standards but the control of the substances used in manufacture, as well as the techniques of production generally, in so far as these may have an impact on pollution. This has profound implications for the federal‑­provincial balance mandated by the Constitution. The challenge for the courts, as in the past, will be to allow the federal Parliament sufficient scope to acquit itself of its duties to deal with national and international problems while respecting the scheme of federalism provided by the Constitution.136 Here it appeared that La Forest J was announcing a form of concurrent jurisdiction in which the federal government would identify through the criminal law the most egregious violations of a national public policy against pollution and then leave it to the provinces to regulate emissions standards, control the manufacture of substances, and specify production techniques – unless those matters fell within an enumerated head of federal authority. In that way, baseline control over pollution would become federal in its entirety, with provincial jurisdiction exercised so as to exceed the minimum baseline with standards, incentives, and general regulatory management.137 Federal exercise of criminal law jurisdiction would be delimited, because it would not extend into the domain of regulation. It would only involve prohibitions backed by sanctions.138

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However, the distinction between criminal law and regulation is extremely difficult to maintain systematically in the environmental domain.139 Indeed, in the subsequent Hydro-Québec case, La Forest J gave the following account of the types of regulatory activity that could be justified as part of a criminal law regime attaching prohibitions and sanctions to activities relating to toxic substances: Without attempting to regurgitate the whole of s. 34, I shall s­imply give some flavour of the nature of the prohibitions created by the regulations made thereunder. Generally, s. 34 includes regulations providing for or imposing requirements respecting the quantity or concentration of a substance listed in Schedule I that may be released into the environment either alone or in combination with others from any source, the places where such substances may be released, the manufacturing or processing activities in the course of which the substance may be released, the manner and conditions of release, and so on. In short, s. 34 precisely defines situations where the use of a substance in the List of Toxic Substances in Schedule I is prohibited, and these prohibitions are made subject to penal consequences … What Parliament is doing in s. 34 is making provision for carefully tailoring the prohibited action to specified substances used or dealt with in specific circumstances. This type of tailoring is obviously necessary in defining the scope of a criminal prohibition, and is, of course, within Parliament’s power. Contrasting these words with those cited above from Crown Zellerbach, one is left with a contradiction. On La Forest J’s Crown Zellerbach reasoning, the criminal law is to be preferred to the exercise of the general power for the control of pollution, because the latter comports not only prohibitions based on emissions standards but also regulation, including notably of substances used in manufacture and of production techniques. On La Forest J’s Hydro-Québec reasoning, the use of the criminal law involves the careful tailoring of the prohibition against pollution to the circumstances in which the pollutant is used or dealt with and thus extends to manufacturing and production processes in the course of which the substance may be released. Bonnet blanc, blanc bonnet.140 Thus the very challenge facing the application of the national concern doctrine, which La Forest J thought was better avoided by

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recourse to the criminal law power, had to be confronted in the interpretation of both: that is, the development of “judicial strategies” to confine the ambit of potential federal power to within limits consistent with the general distribution of powers. His reasons in Crown Zellerbach were silent as to any shortcomings of Le Dain J’s synthesis of “judicial strategies” in that regard. This allowed Gerald Le Dain himself to observe that his own formulation of the test for the national concern doctrine was uncontested by the dissent.141 It is only at the very end of his reasons that La Forest J sought to apply the national concern test to the subject matter in issue. Interestingly, this part of his reasons began with a re-characterization of the subject matter that tracked somewhat more closely that of Le Dain J: he called it a power “restricted to ocean pollution,” omitting nevertheless the verbal noun “control” and expanding its scope from “marine dumping pollution.”142 Furthermore, his analysis of the fourth element of Le Dain J’s summary, namely the effect on extra-provincial interests of provincial inability to deal effectively with the matter, turned once again on the purported federal prohibition of innocuous dumping, thus returning to his initial subject-matter characterization. Indeed, he acknowledged that he “had some difficulty following the implications” of the fourth element and in fact did not address it at all on Le Dain J’s terms.143 The main substantive critique offered by La Forest J in his effort to discern the singleness, distinctness, and indivisibility of the subject matter was that ocean pollution failed to meet the test.144 He offered a disquisition on the interconnectedness of the environment generally and of the marine environment with freshwater systems, and effects of the atmosphere in particular. If one could not disentangle the marine environment from other dimensions of the environment, so he argued, jurisdiction over the marine environment would have to extend to all-pervasive jurisdiction over the environment. That in turn would so traverse all areas of provincial jurisdiction as to fail the test of scale of impact reconcilable with the fundamental distribution of legislative power under the Constitution. If the subject matter in issue had been pollution of the ocean, it would have been difficult to resist the force of La Forest J’s argument.145 However, Le Dain J had fine-tuned his analysis to apply to the control of marine dumping pollution. The very effort to delimit as specifically as possible the environmental impact being addressed – an exercise that was far from artificial, since it had been engaged

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in by the drafters of the convention to which Canada was a party – allowed the majority decision to confront and overcome this critique.146 In the end, the main disjunction between the majority and the minority concerned whether it was prudent and practical to seek distinctions among discrete spheres of environmental regulation falling under national concern or local concern, as the case may be. La Forest J was dismissive of the effort, arguing as he did that environmental issues were too strongly intertwined to permit such distinctions and preferring instead what he believed to be the more straightforward application of the criminal law.147 Le Dain J, for his part, saw no rigorous way to avoid the challenge of drawing the distinctions, focusing as he did much more on the need to allow for the emergence of a range of administrative and regulatory processes matching the scientific dimensions of environmental problems. He was not prepared to affirm the necessity or priority of prohibitions and sanctions as the control mechanisms for environmental issues that had attained national dimensions. Whereas La Forest J was animated especially by a preoccupation with preserving the original 1867 list of enumerated powers, Le Dain J ventured on to the less stable terrain of constitutional transition. He sought to give us a map that could accompany us as we shaped our Constitution to fit a new world.

T a k in g S to c k o f Crown Zellerbach This last section of the chapter seeks to take stock of the Crown Zellerbach decision. First, it will consider how Le Dain J’s reasons for decision have fared subsequently, both in serving to underpin federal jurisdiction over ocean dumping and in helping to interpret the peace, order, and good government power. Second, it will discuss the contribution that his approach can make to the emerging principle of subsidiarity in Canadian constitutional law. Finally, it will propose a reconsideration of his reasons as grounded in an implicit constitutional theory of public goods. Subsequent Developments in Ocean Dumping and the Interpretation of POGG Canada has almost 250,000 kilometres of coastline, some four times as much as the country with the second-longest coastline, Indonesia,

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and astonishingly Canada has almost 60 per cent of the world’s total coastline.148 The country therefore has a very large burden of responsibility to protect against ocean dumping. The federal government has been able to use the scope given by the Crown Zellerbach decision not only to apply the extended framework of the 1996 London Protocol but also to set up a disposal site monitoring system, which extends the regulatory reach of the regime and does not depend upon a linked criminal prohibition or sanction.149 Ha ida Sa l mo n R e sto r at i o n C o rp o rat i o n A recent development that gained some international prominence helps to illustrate how Crown Zellerbach helped to place the evolution of Canada’s ocean-dumping regime on a sound footing. In July 2012, the Haida Salmon Restoration Corporation, which had been established by US entrepreneur Russ George with the investment backing of the Haida community of Old Massett, dumped 100 tonnes of iron sulphate–rich dust 300 kilometres off the coast of Haida Gwaii.150 The purpose of their dumping was to engage in a geoengineering technique called “ocean fertilization,” the aim of which is to increase plankton growth for the benefit of fisheries – in this case salmon – as well as to capture carbon from the atmosphere. Ocean fertilization had been addressed as a matter of policy concern under the auspices of the London Protocol, and the incident in Canada prompted a strongly worded unanimous resolution of the parties.151 Canada, for its part, had in March 2011 issued an information bulletin concerning ocean fertilization, making clear that the activity was not allowed pursuant to both the London Protocol and the domestic disposal at sea regime, except in the case of qualified and legitimate scientific research.152 Environment Canada has taken enforcement actions pursuant to the domestic ocean-dumping regime, and although there is some inevitable contestation as to the basis for its actions, it has a firm foundation in the successor to the very provision that was in issue in Crown Zellerbach.153 The narrow point worth emphasizing as regards Crown Zellerbach is that had the dissenters prevailed, the marine dumping regime would presumably have been placed on a somewhat different footing. It would appear that L. Alan Willis is right to ­envisage the following: “As we have seen, the dissenting opinion recognized that a comprehensive system of monitoring could be constitutionally justified. But it insisted on a clear link to a valid federal

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purpose. This requirement could have been satisfied by a stipulation that no application for a permit to dump in provincial waters would be denied unless the Minister were satisfied that the dumping would result in harm to fisheries, navigation, or to the quality of marine waters outside the province. It is doubtful that the drafters of the Act were concerned with anything more.”154 Compare Willis’s imagined regime with the actual regime. Let us presume for the sake of discussion that a uniform approach would be taken to dumping in provincial and non-provincial waters, so that the Haida Salmon Restoration Corporation case would be covered. Under the imagined regime, the minister would have to come to the affirmative finding that iron sulphate dust harms fisheries or has a deleterious effect on the quality of waters. Under the current regime, dumping is not allowed unless absence of harmful effect is determined. The current regime is precautionary, and this is particularly relevant to the case of geo-engineering. Russ George claimed that his technique would improve fisheries by improving the ability of marine waters to support biomass, thereby also arguably improving water “quality,” as well as reducing carbon in the atmosphere. But his assumptions are highly contested in the scientific community, which has concluded that more research is needed before determining that dumping of the sort conducted by Mr George will not lead to dead zones in the ocean. A regime according to which a permit would have to be granted unless the minister could make a positive finding that dumping would cause harm could have been used by Mr George with considerable effect to combat control over iron sulphate dumping and would be inconsistent with Canada’s international obligations. Nor would it make sense to rely on the province of British Columbia to take up the slack by adopting a blanket prohibition against dumping in provincial waters since, since dumping of iron sulphate dust will not respect those boundaries. By accepting the validity of the general dumping prohibition, the majority decision in Crown Zellerbach has enabled Canada to act forthrightly in controlling what have been termed wildcat geo-engineering experiments. Peac e, O r de r , a nd Go od Gov e rn m e n t Re du x If Crown Zellerbach has stood up well in the marine dumping context, how has it fared more broadly as a foundation for the national concern doctrine? If one restricts the analysis to the Supreme Court of Canada itself, it must be said that Court has been somewhat timid in applying the relatively intricate balancing test entailed.

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As concerns the environmental domain, there is a sense in which the Crown Zellerbach dissent has prevailed outside of the marine dumping context.155 Of the three cases that raised the issue of federal authority in the environmental domain, two (Friends of the Oldman River Society and Hydro-Québec) were rendered by La Forest J relying in considerable degree upon his dissenting judgment in Crown Zellerbach.156 The third most recent decision, Moses, touched only indirectly on the issue.157 Oldman did not bring Le Dain J’s reasons to bear, and in Hydro-Québec and Moses, it was only in the dissenting opinions that Le Dain J’s reasons were considered. In Hydro-Québec, the dissent applied Le Dain J’s analysis in Crown Zellerbach with some depth in an attempt to delimit federal authority over the regulation of toxic substances. Lamer CJ and Iacobucci J, writing jointly, rejected La Forest J’s application of the criminal law power, concluding that the prohibitions in question were “ancillary to the regulatory scheme” and that indeed since there was no offence “until an administrative agency ‘intervenes,’” the legislation was regulatory.158 Furthermore they noted that the legislation in question purported to attach sanctions to the release of any substance which, according to regulatory determination, “ha[s] or … may have an immediate or long-term harmful effect on the environment.”159 In their view this raised precisely the spectre of all-pervasive federal environmental regulation that La Forest J had been at pains to avoid in his Crown Zellerbach dissent. Since according to Lamer CJ and Iacobucci J the criminal law power was not available, an analysis of the national concern doctrine was required. There is some irony to the fact that they sought to use Le Dain J’s reasons to confine what they took to be La Forest J’s expansive use of the criminal law power. They began their application of the four elements of the doctrine with the interesting and important assertion: “The test for singleness, distinctiveness and indivisibility is a demanding one.”160 They took Le Dain J to be setting out a demanding test, because the implication of justifying the attribution of power under the national concern doctrine was plenary federal jurisdiction including over intra-provincial aspects of the subject matter. Thus, on their reading, there was an implicit presumption against granting the power, unless there was a high degree of clarity about the singleness, distinctiveness, and indivisibility of the subject matter. From there Lamer C J and Iacobucci J proceeded to focus on the object of the legislation, which counsel for the federal government

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had characterized as relating to the control of chemical substances whose effects are diffuse and persistent, as opposed to temporary and local. However, the dissenters were not persuaded that the legislation was, in fact, limited to chemical substances, given that the section defining toxic substances had broad reach. Similarly, they found nothing in the legislative scheme that singled out substances that have diffuse or pervasive effects. Furthermore, unlike Le Dain J, they asked themselves whether “the impugned legislation is limited to substances having interprovincial effects.”161 Applying the provincial inability test, they concluded that the possible application of the legislation to any substance that had an “immediate or long-term harmful effect on the environment” rendered the subject matter too broad and divisible between chemical substances like PCBs having “diffuse, persistent and serious” effects – which they suggested could form an adequately delimited subject matter – and “substances whose effects may only be temporary or local.”162 There was no provincial inability with respect to the latter substances. In sum, they concluded that the subject matter, which they characterized broadly as the regulation of harmful substances, lacked the necessary singleness, distinctiveness, and indivisibility to meet the national concern test. It is worth isolating one detail of their analysis, because arguably Le Dain J’s own approach in Crown Zellerbach would have shed different light upon it. The dissenters noted that the legislation contained an “equivalency provision”: 34 (6)  Where the Minister and the government of a province agree in writing that there are in force by or under the laws of the province (a)  provisions that are equivalent to the provisions of a regulation made under subsection (1), and (b)  provisions that are similar to sections 108 to 110 for the investigation of alleged offences under provincial environmental legislation, the Governor in Council may, on the recommendation of the Minister, make an order declaring that the provisions of the regulation do not apply in the province.163 According the Lamer C J and Iacobucci J, this provision illustrated that the provinces were indeed able to act in the domain of regulating toxic substances and that thus the domain was “inherently or potentially divisible.”164

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However, the question could be put differently, following the third element of the Crown Zellerbach summary of doctrine. Was the legislation itself seeking to limit its scale of impact upon provincial jurisdiction such that it could, on the one hand, produce a single national regime but, on the other hand, leave local administration and enforcement strategies in the hands of those provinces that had agreed to implement it? That is, if the subject matter in issue was indeed single, distinctive, and indivisible, s 34(6) was compatible with that conclusion.165 Furthermore, the dissenters’ analysis of this provision raises a broader question that was left unexplored by either the minority or the majority.166 Did the effort of the legislation to take account both of provincial capacity to administer and enforce the toxic substances regime and of provincial views as to which substances should be placed on a national List of Toxic Substances in fact isolate a single, distinctive, and indivisible subject matter? The argument would run as follows. While the legislation did indeed cast a wide net as to which substances might end up on the List of Toxic Substances, the process it established was designed to single out from among all substances that might be regulated (there were over 21,000 on the Domestic Substances List) those that should be placed on a Priority Substances List for detailed scientific assessment (forty-four were on that list) and then those that should be taken from that list and made subject to regulation on the List of Toxic Substances (twenty-five had made in on to that list).167 What the minority did not comment upon in this connection was that before any substance could be taken off the Priority Substances List and added to the List of Toxic Substances, s 34(1) required that the federal-provincial advisory committee established under s 6 be given an opportunity to provide advice.168 The one exception was s 35, which allowed for a substance requiring immediate action to be subject to an interim order because it posed “a significant danger to the environment or to human life or health” – indeed that was the situation presented in the case. Then-federal environment minister Lucien Bouchard, no partisan of running roughshod over provincial jurisdiction, had in 1989 issued an interim order governing PCBs.169 Yet even interim orders were subject to provincial scrutiny and a requirement to place them ultimately on the List of Toxic Substances subject to the recommendations of the federal-provincial advisory committee.170

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In sum, the method of arriving at the List of Toxic Substances, involving as it did scientific expertise and a formalized federal-­ provincial consultation built into the legislation, provided a procedural solution to the problem of dividing between those substances that required coordinated national treatment and those that could be handled locally. The federal scheme performed triage on substances of concern to be monitored – about which the federal government could gather national data – and those that through scientific assessment had been revealed to fall under one of three categories of toxicity identified in s 11: (a)  having or that may have an immediate or long‑term harmful effect on the environment; (b)  constituting or that may constitute a danger to the environment on which human life depends; or (c)  constituting or that may constitute a danger in Canada to human life or health. Unlike the majority, the Hydro-Québec minority did not accept the precautionary language of this provision (“may have,” “may constitute”). Nevertheless the provision established a high standard of scientific scrutiny for the placement of substances likely to cause harm or danger on the list. Nor did the minority consider that substances of concern left on the Domestic Substances List thereby fell within provincial jurisdiction for the development of local regulation.171 It might be objected that Cabinet was free to ignore the advice from the federal-provincial advisory committee and that the federal government could thereby extend its way into provincial jurisdiction relying on the general wording of the definition of a “toxic substance” under s 11 of the Act. Yet this objection is inapposite for two reasons. First, it hinges unsuccessfully on a determination that s 11 was over-broad in failing to isolate “diffuse, persistent and serious” effects, a test the minority would have accepted. Second, it fails to acknowledge the plenary federal power over a properly identified subject matter of national concern. As to the first point, the objection is reminiscent of the over-breadth critique faced by Le Dain J in Crown Zellerbach, which he brushed back with the laconic observation, “The nature of the marine environment and its protection from adverse effect from dumping is a complex matter which must be left to expert judgment.”172 Although it rested

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its analysis on the criminal law, the Hydro-Québec majority took a view similar to that of Le Dain J on the relationship between scientific expertise and possibly over-broad statutory discretion. On this point La Forest J quoted approvingly from Gonthier J’s reasons in the Canadian Pacific case: What is clear from this brief review of Canadian pollution prohibitions is that our legislators have preferred to take a broad and general approach, and have avoided an exhaustive codification of every circumstance in which pollution is prohibited. Such an approach is hardly surprising in the field of environmental protection, given that the nature of the environment (its complexity, and the wide range of activities which might cause harm to it) is not conducive to precise codification. Environmental protection legislation has, as a result, been framed in a manner capable of responding to a wide variety of environmentally harmful scenarios, including ones which might not have been foreseen by the drafters of the legislation.173 The general difficulty that Gonthier J had in view was that of codifying scientific assessments as legal tests when those themselves are subject to ongoing change as science improves. For example, the Ontario Ministry of Environment relies upon two separate scoring systems to help evaluate the toxicity risk under its provincial toxic substances program.174 One system, Risk-Screening Environmental Indicators (R S E I ) now used by the US Environmental Protection Agency, is a computer program that uses an algorithm to weigh large amounts of collected data to produce a numeric score measuring human health risks.175 A second system, the Scoring and Ranking Assessment Model (S C R A M ), was developed by a team for the Michigan Department of Environmental Quality and uses a limited data set to provide ranking of chemicals according to persistence and bioaccumulation potential, toxicity, and uncertainty.176 The Ontario Toxics Reduction Act, 2009 prescribes no test, simply defining a “substance of concern” as “a substance prescribed by the regulations as a substance of concern for the purposes of this Act,” and a “toxic substance” as “a substance prescribed by the regulations as a toxic substance for the purposes of this Act.”177 It leaves it to officials to choose and combine assessment tools to produce a strategy on substances of concern and toxic substances. The officials in turn rely

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upon the best available scientific means drawn from an evolving variety of computational analyses. The layers of administrative discretion involved here are acceptable as long as the orientation of the entire regime is toward distinguishing those substances giving rise to the highest levels of harm and danger that require a national approach, as opposed to those substances for which effects are less certain and dramatic. The line between the two is necessarily shifting and can be drawn conjointly only by both levels orders of government. But the singleness, distinctiveness, and indivisibility of the national concern lies precisely in the effort to discern scientifically what lies within the zone of greatest harm and danger. In this respect, it might be said, the national concern and national emergency doctrines are intertwined: the List of Toxic Substances is, after all, dare one say, a recipe for disaster. Apart from its mistaken attack on over-breadth, the objection that Cabinet is free to avoid advice also fails, because federal power over the most seriously harmful and dangerous toxic substances is plenary. That is, federal power must be exercised to have a scale of impact upon provincial jurisdiction consistent with the equilibrium of the division of powers, something that the legislation explicitly sought to respect through formal consultation and the possibility of equivalence agreements. Nonetheless once a substance was designated to be placed on the List of Toxic Substances, there was no provincial veto to be exercised. Indeed, a provincial veto would fail to respect the equilibrium of the distribution of powers. In short, Le Dain J’s analysis in Crown Zellerbach ought to have prompted an assessment of the interplay of the federal and provincial toxic substances regimes and would have revealed that there had been a sophisticated and careful effort to enable the complementarity and interoperability of the regimes administered by the two levels of jurisdiction. It can be said for toxic substances, to borrow a homeland security analogy, that federal jurisdiction in principle operates in the red zone, and provincial jurisdiction operates in the much wider orange and yellow zones. The line of demarcation, though fluid, is conceptually and functionally distinct. The application of this analysis in Hydro-Québec, unlike that of the majority, would have helped to guide federal and provincial governments through the evolution of their cooperation agreements. Instead, the case proclaimed the primacy of criminal law and left the constitutional significance of the federalprovincial framework lurking in the background.

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Subsidiarity under the Canadian Constitution? Perhaps because Crown Zellerbach was too boisterously celebrated by some commentators as heralding a new era of expansive federal authority, and too bruisingly castigated by others for the same reason, the decision has had unduly modest subsequent influence. Lost in the broad brushstroke interpretations has been Le Dain J’s effort to trace lines meticulously around subject matters of exclusive national concern, exclusive provincial concern, and those over which the distribution of powers provides no plenary jurisdiction.178 Since his decision, the intricate mapping exercise he undertook has been overshadowed by navigation according to larger, but less specific, constitutional signposts such as “overlapping jurisdiction,”179 “cooperative and flexible federalism,”180 and most recently “subsidiarity.”181 Yet his analysis, fully and carefully applied, would allow those signposts to give more detailed and precise guidance. Dickson C J ’s strong preference for allowing the free interplay and overlap of federal and provincial powers was couched in metaphorical language as being a strong tide against which there was nevertheless an undertow of exclusive jurisdiction.182 What remained to be invented was the analytical instrument to gauge those ebbs and flows. And the happy conceit of cooperative and flexible federalism is more an aspiration than a principle of constitutional interpretation. To be given interpretive purchase, “cooperative federalism” requires some method for identifying instances in which the attribution of legislative authority could inherently undermine the capacity of the constituent parts of the federation to cooperate. Those who are already prepared to cooperate can do so on the basis of any initial attribution of authority. However, an attribution of authority will establish decision-making rules in the case of inability to cooperate, as well as a framework for producing complementary zones of governmental action. In short, within the ss 91 and 92 scheme, something like the exercise to which Le Dain J submitted himself in Crown Zellerbach is needed to make sense of overlapping jurisdiction and cooperative federalism as interpretive tools, although a principle of cooperative federalism could, in addition, lead in the direction of rules governing how each order of government should act so as to respect the role of the other.183 By contrast to cooperative federalism, subsidiarity may at first blush suggest a stronger alternative analytical framework to that adopted by Le Dain J and the majority in Crown Zellerbach. The argument

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would run like this (and it appears to have its champions):184 the notion that “legislative action is to be taken by the government that is closest to the citizen and is thus considered to be in the best position to respond to the citizen’s concerns”185 could serve as a default rule for constitutional interpretation. After all, it has become a principle to determine the competence of the European Union to legislate, albeit in areas of shared jurisdiction.186 This default rule would take the form of a rebuttable presumption that authority should be maintained with the political association in greatest proximity to the citizen, absent evidence to the contrary.187 The higher level of authority would bear the burden of proof to establish that its role is required to achieve common outcomes that the lower levels of government cannot achieve themselves, alone or in combination. In the Canadian constitutional context, there are two difficulties with importing such an interpretive framework, one of which can be qualified as technical and the other of which is more substantive. The technical difficulty is this. On the assumption that such a framework would assist in drawing conclusions concerning the distribution of powers, the Reference re Assisted Human Reproduction Act has left an unresolved issue as to the scope of its applicability. Should the framework be applied only to allow a local jurisdiction such as a municipality to introduce complementary legislation accommodating local circumstances, or can it be applied more generally as an interpretive principle to delimit overbroad application of the national concern doctrine, the criminal law power, and the trade and commerce power? The former position was adopted by McLachlin CJ and three of her colleagues. The latter position was adopted by LeBel and Deschamps JJ, along with two of their colleagues. Cromwell J, whose tie-breaking judgment determined the outcome of the case, did not address the issue.188 The Court’s division over this issue illustrates the perils of transplanting a doctrine that has not developed seamlessly out of prior judicial decisions. Madam Justice L’Heureux-Dubé’s initial and limited invocation of subsidiarity in the Spraytech case was apt in light of the Constitution’s silence concerning what interpretation should be given to the interaction of valid federal law and supplementary municipal bylaws in the environmental domain. What might be called supplementary subsidiarity aligned reasonably well with the use to which the concept is put in the EU. However, in Canada, the characterization of a subject matter as falling within the national concern doctrine, or

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of a piece of legislation as being in pith and substance criminal law or law validly enacted under the trade and commerce power puts it within the exclusive jurisdiction of Parliament. In European terms, the relevant interpretive principle would be conferral, not subsidiarity. That is, one cannot import subsidiarity as an interpretive doctrine applicable to conferred areas of jurisdiction. One must instead find within the interpretation of those areas of jurisdiction a basis for ensuring general consistency with subsidiarity. In Canadian terms, subsidiarity cannot be an implicit transversal constitutional principle unless it is found to be inherent within the interpretive strategies already applicable to the distribution of powers. The task for those who seek to bolster the role of subsidiarity within Canadian constitutional law is therefore to link it to prior doctrine. Le Dain J’s judgment in Crown Zellerbach can provide assistance in this regard. The substantive difficulty facing the use of subsidiarity in Canadian constitutional interpretation is that, as a default rule giving rise to a rebuttable presumption and a burden of proof, it provides very little guidance. Arguably Lebel and Deschamps J J sought to use it in this fashion only to tilt jurisdiction toward the provinces in the case of any residual doubt. Subsidiarity became for them a suppletive principle in the sense that it confirmed the general orientation of conclusions reached on other grounds. They did not need it to do much work. Deployed in this way, however, it risks becoming a phantom principle, as Cromwell J’s ability to forego using it demonstrates. If subsidiarity is going to do substantive interpretive work, the basis upon which it can be used to resolve countervailing federal-provincial claims to jurisdiction requires considerable elaboration. Again, Le Dain J’s reasons in Crown Zellerbach are fit for this purpose. To begin with, the general orientation of the four elements Le Dain J synthesized from the P O G G cases is indeed toward safeguarding provincial jurisdiction against the tendency to centralize authority that will come from identifying new subject matter of national dimension. That is made clear in the third element, with its focus on ensuring that the subject matter in question in distinguishable from matters of provincial concern and has a scale of impact on provincial jurisdiction reconcilable with the fundamental distribution of legislative powers. It is also made clear in the fourth element, which, as we have seen, engages a reciprocal analysis of the scale of impact on extra-provincial jurisdiction of the attempted exercise of provincial jurisdiction over provincial subject matter. Elements three and four are both engaged

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at precisely the moment at which a claim is made that there is a new need to exercise federal jurisdiction. That is, they place upon the federal government a burden of proof to establish the singleness, distinctiveness, and indivisibility of the new subject matter as distinct from provincial subject matter. This last point should be emphasized, because it provides the locus of analysis that can render the concept of subsidiarity probative in Canadian constitutional law. In the E U setting, member states confer only specified and concurrent jurisdiction on the supra-national institutions while retaining all the rest, with the result that subsidiarity is restricted to concurrency. By contrast in Canada there is no conferral of power by the provinces, there are few explicit areas of concurrency, and residual power is allocated to the federal Parliament. Thus in the Canadian setting, if there is to remain some decentralizing dynamic in the evolution of federal-provincial jurisdiction, the main interpretive challenge has been and continues to be ensuring that the broadest of the enumerated heads of federal authority (trade and commerce and criminal law), together with the residual power, are adequately counterbalanced by the broadest of enumerated heads of provincial authority (property and civil rights and the quasi-residual power over matters of a local or private nature in the province). This nexus of issues gives rise to the Canadian version of the subsidiarity problem. The Canadian subsidiarity problem also arises from the interpretation of an 1867 document that was silent on crucial matters such as control over our collective effects on the environment. Subsidiarity does not entail that jurisdiction always remains local. Rather, it entails that when new subject matters of legislative and regulatory concern arise, they be assessed for the extent to which the collective action required can remain local, disaggregated, and polycentric, and the extent to which higher levels of national and transnational coordination are required. True to a burden of proof conception of subsidiarity, evidence should indeed be marshalled to demonstrate that the highest concentration of spillovers is national or transnational before a new subject matter can be attributed to the federal government. This is precisely what Le Dain J considered in Crown Zellerbach and indeed goes back to his emphasis upon the scientific and technical dimensions of the POGG analysis in his Duff article. Peace, order, and good government is the characterization of the national public good that was retained in the Constitution Act, 1867. It is meant to characterize all classes of subject over which Parliament

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has authority as well as the residuum of unattributed powers. Control of the effects of behaviour that interfere with the public good and thereby produce a social evil can be accomplished through prohibition and sanction, together with attendant regulation under the criminal law power. Insofar as we have come to express and measure social preferences through market exchange and have rendered the economy pervasive, there will always be a dimension of trade and commerce to any public good. Thus P O G G , the criminal law power, and the trade and commerce power can, and have, each become the setting for a Canadian version of subsidiarity analysis. Of the three, as we have seen in the discussion of the Hydro-Québec case, it is the criminal law that has the least finely grained “judicial strategies” to confine its scale of impact upon provincial jurisdiction, although the Reference re Assisted Human Reproduction Act begins to redress this. The Reference re Securities Act takes an approach to the trade and commerce power closely analogous to Le Dain J’s reasons in Crown Zellerbach.189 Perhaps the emergence of the principle of subsidiarity will allow the alignment of judicial strategies on these three sources of the Canadian subsidiarity problem to produce, finally, a unified theory of peace, order, and good government of the sort Gerald Le Dain had imagined. An Implicit Constitutional Theory of Public Goods Subsidiarity could be understood to be a largely prudential consideration. That is, in contexts where the gradual centralization of authority can produce heightening political and social tensions, something true of Europe and Canada, prudence might dictate proceeding with utmost caution before trenching upon the autonomy of local communities, especially where those communities identify themselves as nations.190 Yet if, as Madam Justice L’Heureux-Dubé put it, we are in “an era in which matters of governance are often examined through the lens of the principle of subsidiarity,”191 that is so presumably for more than prudential reasons: there is a more ambitious justice claim at work as well. That justice claim reflects the idea that the various forms of human association are differently suited to produce goods and to control harms. To attribute to an association a role and task for which it is not suited and indeed, through a process of centralization of authority in the state, to overburden one set of institutions with responsibilities

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that cannot be fulfilled, is to do an injustice.192 This justice claim has little to do with maintaining the authority of provinces or of any specific level of government. It has to do with each collective institution gauging its own fitness and capacity to contribute to public goods, to do so within its sphere of competence, and to assist others to do the same. One might call this an organic understanding of subsidiarity, and it is rooted in theology. How does such an understanding of subsidiarity contribute to contemporary constitutional interpretation in which the classical federal distribution of powers encounters polycentric governance networks? At the beginning of this chapter, the silence of the Canadian Constitution, and indeed of other colonial-era constitutions, about the environment was attributed in part to the mastery or dominion that they attempted to enable. These constitutions mapped out territories and identified how sovereign authority would be exercised over them. Stewardship and co-dependency with other political entities escaped their purview. Achieving, exercising, and maintaining autonomy was a good in itself and therefore one that would also be protected in the interpretation of the distribution of powers. With gathering pace, our Constitution has encountered an expanding set of collective action problems that were unforeseen by the colonial imagination – for example, ocean dumping and toxic waste, but also assisted human reproduction and even the contagion effects of global financial system risk. It is therefore unsurprising that courts have struggled to fit new subject matter into old categories. But in addition to finding the right compartment within which to place subject matter, there is also the problem of matching the original purpose of the distribution of powers with the contemporary challenge of co-dependent stewardship. Organic subsidiarity modulates the purpose of the traditional distribution of powers by focusing on interacting contributions to public goods. Elinor Ostrom’s work in particular has made it familiar to economists and social scientists generally that even global public goods – and public bads – can be produced in a polycentric fashion. She began her Nobel Prize lecture as follows: Contemporary research on the outcomes of diverse institutional arrangements for governing common-pool resources (CP Rs) and public goods at multiple scales builds on classical economic theory while developing new theory to explain phenomena that

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do not fit in a dichotomous world of “the market” and “the state.” Scholars are slowly shifting from positing simple systems to using more complex frameworks, theories, and models to understand the diversity of puzzles and problems facing humans interacting in contemporary societies. The humans we study have complex motivational structures and establish diverse privatefor-profit, governmental and community institutional arrangements that operate at multiple scales to generate productive and innovative as well as destructive and perverse outcomes.193 If one begins from a polycentric, pluralist standpoint according to which public goods are generated by and in networks of agents, the challenge of constitutional design and interpretation shifts significantly.194 The Constitution no longer seeks to map how authority is to be exercised over all of the possible domains of governance. Instead the Constitution seeks to map the domains within which authority can converge upon governments, allowing them to signal, orient, and hold accountable the production of public goods by the relevant networks of actors, but also those domains in which authority is exercised by others – notably outside national jurisdiction – with their role becoming to respond to the signals of, to receive orientation from, and to be held accountable by those other actors.195 Crown Zellerbach effected subtle shifts in doctrine that allow a careful remapping of the Constitution along these lines. By conceiving of a proposed new constitutional subject matter as itself containing a verbal noun orienting the exercise of authority (“control of marine pollution by the dumping of substances”), Le Dain J was pointing toward the possible division of functions around subject matter. As the interaction of governmental, transnational, local, and non-governmental actors becomes more differentiated, control might become distinguishable, say, from measurement or reporting or accounting. In short, more sustained interpretive attention might be paid the characterization of verbal nouns designating types of governmental activity. By focusing judicial attention on the singleness, distinctiveness, and indivisibility of subject matter, Le Dain J was orienting interpretive analysis toward discrete nodes of collective action that could contribute separately to the production of public goods. He was already highly sensitive to the fact that in many domains, including the control of marine dumping, what was single and indivisible as a matter of

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national concern was in fact the national contribution to the production of a global public good. That is, the criterion did not relate to whether the federal government acting alone could produce the public good in question, but rather whether its role in the control of behaviour impinging upon the public good could be singled out from that of the provinces, and indeed of other actors. Thus, for example, the control of marine dumping is only one role to be taken up in ensuring the health of the oceans. But the interaction of all of our impacts upon a broadly defined public good – a healthy ocean – still allows specific impacts to be singled out according to the relevant cluster of actors and regulatory mechanisms. In this sense the definition of the public good as an outcome is distinguishable from its definition as a governmental activity and responsibility. It is the latter that Le Dain J’s test for singleness, distinctiveness, and indivisibility seeks to identify. By ensuring that single, distinctive, and indivisible subject matter is distinguishable from matters of provincial concern and has a proportionate scale of impact on provincial authority, he was adding interpretative stringency to the test so as to determine whether the discrete public good required supervening control over its otherwise polycentric production. As we have seen, Le Dain J’s re-characterization of the provincial inability test entailed a reciprocal analysis of federal and provincial spillovers with a view to identifying where the highest concentration of spillovers was to be found. Through his approach, he was inviting even more detailed empirical evidence of spillovers than was filed in Crown Zellerbach. Indeed, his approach, focused as it was upon the inherent contours of subject matter, rather than the vicissitudes of existing policy or political capacity, sought increasingly careful and incremental analysis of the types of spillovers in issue. Does the “provincial inability” arise out of leakage, as in the case of ocean dumping, because the behaviour harming the public good can readily shift its locus? Does it arise out of crossed signals that need to be aligned in order to coordinate actors, as in the case of spectrum allocation? Does it arise out of problems of strategic behaviour that can game polycentric regulation through forum shopping, as is the case of financial market risk? Does it arise out of free riding that can occur if some jurisdictions contribute to producing the public good but thereby relieve pressure on others to do so, as in the case of greenhouse gas emissions. These and other spillover effects, alone or in combination, can become the “mischief” at which federal

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legislative and regulatory measures are aimed and can serve to delimit the subject matter in question. It would be a different form of over-breadth to attribute directly to Le Dain J’s reasons in Crown Zellerbach an organic understanding of subsidiarity underpinned by a theory of the polycentric provision of public goods. That is not the claim being made here. Rather, Le Dain J’s reasons were designed, carefully and cautiously, to permit and contribute to further developments like the emergence of the principle of subsidiarity. And his thought had indeed been keenly oriented, as evidenced by the Duff article, toward the relationship between the federal structure of the Constitution and the production of public goods. In the end, however, the constitutional order itself is a public good. Sustaining it within a polycentric process of interpretation entails that no articulation of its meaning can simply become controlling, however singular, distinctive, and indivisible its reasons may be.

C o n c l u s i on By the time reasons for decision have been formulated and an opinion issued, the burden of judgment itself has been overcome. The words of the opinion are now dead to the urgency of the task that produced them. It is in midst of confronting the force and weight of argument that guidance is drawn from formulations others used to characterize how they had arrived at their own measure of justice. When a judge sifts through past efforts to fulfill that responsibility, applying all acuity and accepting the need to find and account for incongruities, well-chosen words synthesizing ratio decidendi can serve as a map for others who will face the task. Appellate reasons, in any event, are more a gift to the future than the resolution of a problem that arose in the past. For the judge who ventures onto the terrain of exceptions to and derogations from the existing constitutional order, the absence of a map produces exposure to manifold hazards. Hic sunt dracones. Even if a map can be assembled and the safest possible routes iden­ tified, the skills of the cartographer in identifying landmarks on this treacherous landscape must be matched by the skills of subsequent navigators. It is possible that in Crown Zellerbach Gerald Le Dain provided us with a precise map that is too difficult to read. The misinterpretation

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to which his reasons have been subject and their all-too-casual dismissal in commentary so suggest. Yet because his constitutional cartography was absorbed with the future and deeply preoccupied by the mounting scale of environmental damage, it may be too soon to tell. There is symmetry between the silence of our Constitution about the environment and the need to re-map the distribution of powers. In 1867 we could not see our relationship to the earth in constitutional terms, and now we have to place ourselves in complete legal proximity to it. Putting ourselves into proximity with the earth has ever been the role of maps. Earlier they served to orient us toward where sovereignty might be asserted. Now they show us where perils are accumulating. We have growing reason to believe that those perils will overwhelm us if we are unable to produce a map of the necessary distribution not of powers but of coordinated collective responses. At the beginning and end of his article on Sir Lyman Duff, Prof. Gerald Le Dain asked what he acknowledged was a “highly speculative question,” namely whether the decisions of the Judicial Committee “might have been significantly different had Duff thrown the weight of his intellectual authority on the side of federal power in some of the important cases.”196 After his long review of Duff’s work, culminating with a consideration of two cases that offered a more balanced perspective on the tendency of that chief justice to lean always toward provincial authority, Prof. Le Dain drew the rather anticlimactic conclusion with which he ended his article: “Great as he was, it is doubtful if he could have changed the result by an essentially different emphasis in his own work.” This was as if to remain mindful in the end of the modest influence of even the most eminent jurist. One might speculate similarly about Gerald Le Dain himself. Instead, however, the final thought should be with the trajectory he sought to trace for the future of the Constitution. That story is not yet fully told.

A c k n ow l e d gments I am grateful to Blaine Baker, Hugo Cyr, Marie Deschamps, Evan Fox-Decent, Jean-François Gaudreault-Desbiens, Fabien Gélinas, Jean Leclair, Rod Macdonald, and Johanne Poirier for their comments and suggestions.

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n otes  1 Ford v Quebec (AG ), [1988] 2 S CR 712; and Irwin Toy Ltd v Quebec (AG ), [1989] 1 S CR 927. Although the Coram citation to the decisions states that Le Dain J took no part in either one, his resignation from the Court intervened before the conclusion of deliberations about his draft reasons.  2 R v Crown Zellerbach Canada Ltd, [1988] 1 SC R 401 [Crown Zellerbach].   3 Another federal constitution of the same period, Constitution fédérale de la Confédération suisse du 29 mai 1874 was also silent on the matter until an amendment of 1971 added jurisdiction over air and noise pollution (art 24septies), and another of 1975 added jurisdiction over surface and subsurface water pollution (art 24bis): Office fédérale de la justice, https:// www.bj.admin.ch/dam/data/bj/staat/gesetzgebung/archiv/bundesverfassung/ bv-alt-f.pdf. Section 4 of the current Swiss constitution of 1999 contains ten articles addressing the environment, including art 73 on sustainable development and art 74 on protection of the environment: Federal Authorities of the Swiss Confederation, http://www.admin.ch/opc/fr/ classified-compilation/19995395/index.html. The Commonwealth of Australia Constitution Act, 1900 63 & 64 Vic c 12 is also silent on the matter and so remains.   4 See Wesley Hohfeld, “Some Fundamental Legal Conceptions as Applied in Legal Reasoning,” Yale Law Journal 23 (1913): 16.  5 See Solid Waste Agency of Northern Cook County v United States Army Corps of Engineers 531 US 159 (2001). Note that since, unlike the Canadian Constitution, the US Constitution does not have explicit reference to navigable waters among the enumerated heads of power, commerce has been interpreted to include such waters. This also entails, however, that there must be a clear nexus to such waters if federal regulation of commerce is to be validly invoked in connection with clean water.  6 Gibbons v Ogden 9 Wheat 22 US 1 (1824).   7 Note, however, that in Interprovincial Co-operatives Ltd et al v R, [1976] 1 S C R 477 at 513, Pigeon J suggested the regulation of interprovincial water pollution should be treated constitutionally in a manner analogous to the regulation of interprovincial commerce.   8 See John Ralston Saul, A Fair Country: Telling Truths about Canada (Toronto: Penguin, 2008). Although Saul notes the missing features of Canada’s constitutional map, he nevertheless emphasizes the contribution of Aboriginal ideas and experience to the emergence of a Canadian polity. He also argues that the peace, order, and good government keystone to

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the division of powers had a kind of intru in the form of “order” taking the place of “welfare” from earlier formulations of the goals of governance. Nevertheless, “peace, order and good government” (hereinafter P O GG) was retained and for that reason requires continued interpretation, as the subsequent two sections of this chapter will discuss.   9 See John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010). 10 Walter Benjamin, “Critique of Violence,” in Selected Writings (Cambridge, MA : Belknap, 1999), 1:277–300. Benjamin analyzes the forms of violence underpinning affirmations of justice. In “Force de droit: Force of Law,” Cardozo Law Review 11 (1989–90): 920, Jacques Derrida interprets and develops Benjamin’s critique so as to discern the relationship between ­violence and new legal foundations. 11 In the 1970s, as environmental concerns took on more public policy significance, leading constitutional scholars took the view that no new head of power was needed. See Dale Gibson, “Constitutional Jurisdiction over Environmental Management in Canada,” University of Toronto Law Journal 23 (1973): 54; and Gérald Beaudoin, “La protection de l’environnement et ses implications en droit constitutionnel,” McGill Law Journal 23 (1977): 207. However Gibson (84–5), unlike Beaudoin, envisaged a role for the residual peace, order, and good government power especially to address “serious water and air pollution,” because “effective governmental action is clearly needed, and if it were left to the individual provinces there would be a substantial risk that fear of losing industry to less demanding provinces might cause some provinces to set lower standards than satisfactory” (85). Gibson developed this argument further in “Measuring ‘National Dimensions,’” Manitoba Law Journal 7 (1976): 15, an article cited at some length by Le Dain J in his Crown Zellerbach reasons at 432–3. 12 Thus, for example, the establishment of parallel federal and provincial environmental assessment regimes has as a practical matter often required that a single project be assessed under both regimes. The result is that a number of federal-provincial agreements have been negotiated to ensure cooperation on assessments: see Canadian Environmental Assessment Agency, http://www.ceaa-acee.gc.ca/default.asp?lang=En&n=CA03020B-1. 13 See Kathryn Harrison, Passing the Buck: Federalism and Canadian Environmental Policy (Vancouver: U BC Press, 1996). For a striking example of eschewed jurisdiction, see Commission on Environmental Cooperation, Factual Record: Montreal Technoparc, 23 June 2008, http:// www3.cec.org/islandora/en/item/11617-montreal-technoparc-factualrecord-north-american-environmental-law-and-policy-en.pdf.

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14 The very notion of a division of powers suggests that within a domain of competence a government acts with plenary authority. Jurisdiction over the environment would thus not be framed as concerning environmental stewardship. See, however, Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011). 15 This was the argument developed by La Forest J is his Crown Zellerbach dissent, as will be discussed in the next section. In making this argument he drew notably upon William Lederman, “Unity and Diversity in Canadian Federalism: Ideals and Methods of Moderation,” Canadian Bar Review 53 (1975): 597 at 610. 16 However, to characterize it either as a right of nature or as a right to nature would not do it justice entirely. It would not be a claim made on behalf of an existing person, although it has, of course, been argued that nature or aspects of nature can be personified so as to gain standing: see Christopher Stone, “Should Trees Have Standing? – Toward Legal Rights for Natural Objects,” Southern California Law Review 45 (1972): 450. See also Justice Douglas’s dissent in Sierra Club v Morton 405 US 727 (1972), in which he wrote (at 741, citing Stone), “The critical question of ‘standing’ would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.” Yet even if nature could be personified, natural processes include those that interact with our despoliation, and therefore it is difficult to attribute anything other than indifference to nature as a litigant. The constitutional limit respecting greenhouse gases envisaged here would come closer to being a natural contract of the sort described in Michel Serres, Le contrat naturel (Paris: Champs Flammarion, 1992). 17 The most famous – one must say infamous – discussion of the state of exception in constitutional law is Carl Schmitt’s 1922 opus, Political Theology: Four Chapters on the Concept of Sovereignty, trans. G. Schwab (Cambridge: M I T Press, 1985). Schmitt launches the book with a striking assertion: “Sovereign is he who decides on the exception” (5). Schmitt argues that any attempt to place legal constraints on the state of exception will prove illusory, since it is out of the state of exception that sovereign authority is exercised prior to the law. Prompted by the states of exception that have emerged with the war on terror, Giorgio Agamben engaged in a reconsideration and critique of Carl Schmitt in State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005).

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18 See Roderick Macdonald, “Meech Lake to the Contrary Notwithstanding” (Part I), Osgoode Hall Law Journal 29 (1991): 253 at 274ff; and Macdonald, “Meech Lake to the Contrary Notwithstanding” (Part II), Osgoode Hall Law Journal 29 (1991): 483 at 511ff. 19 Re Anti-Inflation Act, [1976] 2 S CR 373 (per Laskin C J at 407ff). 20 Ibid. at 425–7. 21 Beaudoin, “La protection de l’environnement” at 209–10. 22 Ibid. at 210, citing Beetz J in dissent, Re Anti-Inflation Act at 467. 23 Garett Hardin, “The Tragedy of the Commons,” Science 162 (1968): 1243. 24 As part of its logging activities, Crown Zellerbach dumped wood waste into Beaver Cove, an area within the provincial waters of British Columbia on the coast of Vancouver Island connected to the Pacific. It was charged with contravening s 4(1) of the Ocean Dumping Control Act, S C 1974‑75‑76, c 55. The federal legislation prohibits the dumping of any substance at sea except in accordance with the terms and conditions of a permit, and Crown Zellerbach had no applicable permit. The sea was defined for the purposes of the Act to include the internal waters of Canada other than fresh waters. There was no evidence brought of any effect on navigation or marine life caused by the dumping. 25 Gerald Le Dain, “Sir Lyman Duff and the Constitution,” Osgoode Hall Law Journal 12 (1974): 261. 26 This is all but acknowledged in Gerald Le Dain, “Jean Beetz as Judge and Colleague,” Revue juridique Thémis 28 (1994): 721 at 728, where he wrote, “I could hardly be unmindful, when I came to write my opinion in Crown Zellerbach, of what I had said concerning the issue of characterization in ‘Sir Lyman Duff and the Constitution.’” 27 Hardin, “Tragedy of the Commons.” 28 The article had already proven its use in Supreme Court of Canada deliberations. Beetz J cited it in Re: Anti-Inflation Act at 451–2 and had taken pains to indicate how much indebted he was to the article. In R v Hauser [1979] 1 S CR 984 at 1024–5, Dickson J (as he then was) also cited the “illuminating article” in his dissenting opinion. 29 Le Dain, “Sir Lyman Duff and the Constitution” at 264. 30 Crown Zellerbach at 452–3. 31 Le Dain, “Sir Lyman Duff and the Constitution” at 293. 32 R v Eastern Terminal Elevator Co [1925] SC R 434 at 448. Note that Profs Peter Hogg and Dale Gibson later and separately proposed a variation of this test, which, as is discussed below, Le Dain J further modified. 33 Le Dain, “Sir Lyman Duff and the Constitution” at 283.

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34 Russell v R, [1882] 7 AC 829. The case concerned the prohibition of liquor, and Sir Montague Smith’s judgment affirmed that the federal legislation rested upon the general POG G power. 35 See Le Dain, “Sir Lyman Duff and the Constitution” at 265. 36 Ontario (AG ) v Canada (AG ), [1896] AC 348, where Lord Watson famously stated (at 361), Their Lordships do not doubt that some matters, in their origin local and provincial, might attain such dimensions as to affect the body politic of the Dominion, and to justify the Canadian Parliament in passing laws for their regulation or abolition in the interests of the Dominion. But great caution must be observed in distinguishing between that which is local and provincial, and therefore within the jurisdiction of the provincial legislatures, and that which has ceased to be merely local or provincial, and has become a matter of national concern, in such sense as to bring it within the jurisdiction of the Parliament of Canada. 37 In re the Board of Commerce Act and the Combines and Fair Practices Act, [1920] 60 S CR 456, especially at 509–10. 38 Le Dain, “Sir Lyman Duff and the Constitution” at 278. 39 Ibid. at 279. 40 Ibid. at 278. 41 Ontario (AG ) v Canada Temperance Federation, [1946] A C 193. Already Lord Sankey’s decision In re the Regulation and Control of Aeronautics in Canada, [1932] AC 54, had begun to weigh the countervailing considerations around the national dimensions test more carefully, but it suffered from ambiguity as to whether it really amounted to an interpretation of s 132. Nevertheless, its albeit problematic deployment of the compact ­theory gave rise to a statement Prof. Le Dain considered to be balanced (at 70): “But while the Courts should be jealous in upholding the charter of the Provinces as enacted in s 92 it must no less be borne in mind that the real object of the Act was to give the central Government those high functions and almost sovereign powers by which uniformity of legislation might be secured on all questions which were of common concern to all the Provinces as members of a constituent whole.” 42 Le Dain, “Sir Lyman Duff and the Constitution” at 290. 43 See Viscount Haldane’s characterization of Russell in Toronto Electric Commissioners v Snider, [1925] AC 396 at 412, affirming “that the evil of intemperance at that time amounted in Canada to one so great and so general that at least for the period it was a menace to the national life of Canada so serious and pressing that the National Parliament was called on to intervene to protect the nation from disaster.” Prof. Le Dain called

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this an “embarrassing hypothesis”: Le Dain, “Sir Lyman Duff and the Constitution” at 281. For an amusing and insightful reflection on this embarrassing hypothesis, see Morris Fish, “The Effect of Alcohol on the Canadian Constitution … Seriously,” McGill Law Journal 57 (2011): 189. 44 Ontario (AG ) v Canada Temperance at 205. 45 Ibid. at 206. 46 Le Dain, “Sir Lyman Duff and the Constitution” at 291. 47 Crown Zellerbach at 425. I do not take it that by a unified theory of the P O GG power Le Dain J had in mind what Peter Hogg has called a “general theory” of s 91: see Peter Hogg, Constitutional Law of Canada, 5th ed. (Toronto: Carswell, 2007) at 504. Le Dain J did not purport to gather together all of the case law concerning how the ­enumerated heads of power related to the general, residual power. Nevertheless, in principle, a “unified theory” of POGG could form the basis for a unified theory of the division of powers as a whole if one could capture adequately the interaction and interrelationship between spheres of power and how they are deployed to produce public goods. 48 Jacobellis v Ohio, (1964) 378 US 184 at 197 per Potter Stewart J. 49 Le Dain, “Sir Lyman Duff and the Constitution” at 286, discussing Reference re Regulation and Control of Radio Communication, [1931] S C R 541. 50 Le Dain, “Sir Lyman Duff and the Constitution” at 293. 51 Munro v National Capital Commission, [1966] SC R 663 at 671. 52 Le Dain, “Sir Lyman Duff and the Constitution” at 293. 53 Ibid. (emphasis added). 54 This dimension of Le Dain’s thinking was surely strengthened and developed by the experience of chairing the Commission of Inquiry on the Non-Medical Use of Drugs, the report of which represented a masterful integration of scientific evidence and legal theory. See The Report of the Canadian Government Commission of Inquiry into the Non-Medical Use of Drugs (Ottawa: Information Canada, 1972). 55 See, for example, Reference re Public Service Employee Relations Act (Alta), [1987] 1 S CR 313 at 390, a two-page decision on the relationship between freedom of association and the right to strike, which attracted the plurality of the Court and became the basis for the plurality decisions in RWDSU v Saskatchewan, [1987] 1 SC R 460, and PSAC v Canada, [1987] 1 S CR 424. Gerald Le Dain was quite proud of this two-page trilogy.

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56 (1977) U N TS 138; signed by Canada on 29 December 1972; entered into force on 30 August 1975. 57 R v Crown Zellerbach Canada Ltd, (1984) 51 B C LR 32, [1984] 2 WWR 714 (B C C A) at para 19. 58 But for its departure from pleadings, Pigeon J’s plurality decision in Interprovincial Co-operatives Ltd might have served as strong precedent for Crown Zellerbach, since it was held that pollution of interprovincial rivers fell within the residuary jurisdiction of Parliament under POGG. However, the other member of the majority, Ritchie J, declined to adopt this conclusion, because he said that the point had not been argued. Le Dain J recounted all of this in his reasons, Crown Zellerbach at 435, and did not seek to apply Pigeon J’s judgment, showing his own keen respect for the role of pleadings. 59 Crown Zellerbach at 419. 60 Ibid. at 436. 61 Ibid. at 420. 62 Although interference with fisheries (as well as navigation and shipping) was a factor taken into account under Schedule III, the regime applied as well to interference with “amenities” – a rather aesthetic term used in the convention – and to what would we today call interference with ecosystems and a range of other consequences of pollution that might not have implications for fisheries. Thus, as Le Dain J acknowledged, the Act could not meet the test established in Fowler v R, [1980] 2 SC R 213, and Northwest Falling Contractors Ltd v R, [1980] 2 SC R 292, concerning regulation necessarily incidental to the protection and preservation of fisheries: Crown Zellerbach at 420–3. In this respect, La Forest J’s criticism that the legislation could not meet the test of Fowler (at 449–51) simply reinforces Le Dain J’s conclusions. 63 Ibid. 64 Crown Zellerbach at 424, citing Le Dain, “Sir Lyman Duff and the Constitution” at 206. 65 See Peter Hogg, Constitutional Law of Canada (Toronto: Carswell, 1977) at 261 (the edition and reference cited both by Estey J in Labatt Breweries of Canada Ltd v Canada (AG ), [1980] 1 SC R 914 at 945; and by Dickson J (as he then was) in R v Wetmore, [1983] 2 SC R 284 at 296; and reproduced by Le Dain J in his reasons Crown Zellerbach at 428 and 431. Le Dain J also referred to the 1985 second edition (at 433) and to Gibson, “Measuring ‘National Dimensions.’” 66 Munro v National Capital Commission.

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67 Gerald Le Dain shared personal reflections on this in “Jean Beetz as Judge and Colleague” at 727–8. 68 Ibid. at 728. It was thus bittersweet that Beetz J did not concur with Le Dain J’s reasons in Crown Zellerbach, although Le Dain consoled himself (at 729) that “the quarrel in Crown Zellerbach did not appear to be with [my] statement of the applicable test but with the conclusion I had come to in applying it to the particular facts of the case.” 69 Re Anti-Inflation Act at 412. It is worth noting that rather than quoting Laskin C J , Le Dain J chose to paraphrase him: “[Laskin C J ] indicated, however, that he did not think it wise to attempt to define the scope of the federal peace, order and good government power in such precise or fixed terms as to make it incapable of application to changing or unforeseen circumstances.” By not quoting Laskin CJ’s judgment, he avoided encountering the context from which they came, which were from dicta of Lord Atkin in the Labour Conventions case, Canada (AG ) v Ontario (AG ) [1937] A C 326 at 353, commenting on Lord Watson’s choice of words in the Local Prohibition reasons: “They laid down no principle of constitutional law, and were cautious words intended to safeguard possible eventualities which no one at the time had any interest or desire to define.” This suggested that “national concern” was not so much a legal doctrine as a marker for future exceptions and indeed suspension of the constitutional scheme. Laskin CJ took quite a bold approach to Lord Atkin’s dicta by adding (at 412), “Indeed, I do not see how this Court can, consistently with its supervisory function in respect of the distribution of legislative power, preclude in advance and irrespective of any supervening situations a resort to the general power or, for that matter, to any other head of ­legislative authority.” Thus, by rephrasing Laskin C J ’s words, Le Dain J confined them to setting parameters for the acceptable degree of fixity of the national concern doctrine. 70 Anti-Inflation Act, S C 1974-75-76, c 75 s 46. The Act was adopted on 15 December 1975, but with effect to a degree from 14 October 1975. It was ultimately repealed in 1979. The actual wording of s 46 was: This Act expires on December 31, 1978, or on such earlier date as may be fixed by proclamation or a motion taken up and considered by the House of Commons that is adopted by the House and concurred in by the Senate pursuant to subsections (8) and (9) unless, before December 31, 1978 or any earlier date fixed by proclamation or any such motion that is so adopted by the House and concurred in by the Senate, an Order in Council is made to the effect that this Act shall continue in force for such period of time as may be set out in the Order in Council.

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71 See note 46 and accompanying discussion. 72 Re Anti-Inflation Act at 407, discussed by Le Dain J, Crown Zellerbach at 425. The unified theory proposal is in some tension with Laskin C J ’s insistence that the national concern doctrine remain undefined, at 412. 73 Re Anti-Inflation Act at 437. 74 Ibid. Arguably this gloss was authorized by the reasons of Dickson J (as he then was) in Wetmore at 294, where there was a parallel characterization of Ritchie J’s judgment, as well as the other decisions subsequent to the Anti-Inflation Act reference discussed by Le Dain J in which the Court, including Ritchie, Martland, and Pigeon J J , acknowledged that the national concern doctrine was not restricted to the case of emergency. 75 Ibid. at 458. Quoted by Le Dain J, Crown Zellerbach at 426–7. 76 In this respect, two of Jean Leclair’s criticisms of Crown Zellerbach in his article “The Illusive Quest for the Quintessential ‘National Interest,’” University of British Columbia Law Review 38 (2005): 353, do not take account of Le Dain J’s retention of the very elements of Beetz J’s judgment that Prof. Leclair claims were lost. Prof. Leclair makes two assertions. First, he states that “by ignoring the parallel structure of complementary federal and provincial residua established by the constitutional text, Justice Le Dain failed to consider the delimitations of the central government’s residual power.” See also Jean Leclair, “The Supreme Court of Canada’s Understanding of Federalism: Efficiency at the Expense of Diversity,” Queen’s Law Journal 28 (2003): 411 at 429–30 and 446. Although Le Dain J did not explicitly refer to s 92(16) as a residual power – which is, in any event, an awkward formulation, since that provision is not structured to be residual to s 91 – in taking up the test of distinctiveness proposed by Beetz J he thereby accepted that some new matters were more of a local nature and therefore fell under s 92(16). Indeed, he gave an example of this in his reasons (Crown Zellerbach at 427–9) by underscoring the distinction between the illegal trade in narcotics – a matter of national concern that did not exist at the time of Confederation (see R v Hauser, [1979] 1 SC R 984) – and treatment of heroin addicts – a matter of provincial concern (see Schneider v R, [1982] 2 S CR 112). Prof. Leclair also claims that “by ignoring the parallel structure of complementary federal and provincial residua established by the constitutional text, Justice Le Dain failed to consider the delimitations of the central government’s residual power. More precisely, he did not address whether this power should be confined to truly national, as opposed to local, matters.” This does not correspond to Le Dain J’s explicit incorporation (at 432) of the test for “scale of impact on

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provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution.” 77 Crown Zellerbach at 434. Prof. Leclair was also critical of this aspect of Le Dain J’s reasons. Citing this passage, he claims (“Illusive Quest for the Quintessential ‘National Interest’” at 361) that “although Justice Le Dain asserts that a matter must be both functionally and conceptually indivisible to be of a national dimension, his own application of the test is limited to an examination of the first dimension of indivisibility.” Leclair goes on to assert (ibid.), “By emphasizing functional indivisibility, he seems to ­forget that the purpose of the national interest doctrine is not to confer Parliament a property right over a particular matter, but rather a power to regulate in relation to such a matter.” On the contrary, Le Dain J’s application of the test in Crown Zellerbach begins (at 436) with a consideration of marine pollution by the dumping of substances “as a distinct and separate form of water pollution having its own characteristics and scientific considerations.” Nowhere does Le Dain J ever explicitly or impliedly link the notion of functionality to property. Finally, it is both an exaggeration and reductionist for Prof. Leclair to refer throughout his article to Le Dain J’s approach to POG G as involving a “functional test” (Prof. Leclair uses the term “functional” or “functionally” eleven times in his article) when Le Dain J himself used the term only once, in the passage just cited.   Le Dain J did not make explicit use of the provincial inability test – the only context in which he alludes to the need for a functional approach – in his assessment of the Ocean Dumping Control Act, and so, if anything, contra Prof. Leclair, one might be tempted to criticize Le Dain J for failing to perform a sufficiently functional analysis. However, precisely because his use of the functional analysis was focused on the implications of “power to regulate in relation to” purported subject matter, the following sentence was all that Le Dain J felt was necessary to dispose of that issue (at 437): “Moreover, there is much force, in my opinion, in the appellant’s contention that the difficulty of ascertaining by visual observation the boundary between the territorial sea and the internal marine waters of a state creates an unacceptable degree of uncertainty for the application of regulatory and penal provisions.” Thus, for Le Dain J the functional analysis was in essence concerned with assessing the singleness and indivisibility of the subject matter operating as a regulatory regime.   It might be added here that in “The Crown Zellerbach Case on Marine Pollution: National and International Dimensions,” Canadian Yearbook of International Law 26 (1988): 235, L. Alan Willis makes the interesting observation that Le Dain J’s concern respecting the boundary between

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territorial waters and internal marine waters (the distinction drawn by the convention) could be felt even more acutely in attempting to divide between provincial and federal waters (at 242): “A regulatory system based on the dividing line between provincial and federal waters along the coast would indeed be difficult to administer or to respect with any degree of certainty.” 78 In Constitutional Law of Canada, Peter Hogg argues (at 507–9) that there is in fact another separate branch of POGG having to do with lacunae left in the division of powers. He gives as an example the power to incorporate companies with other than provincial objects: Citizens’ Insurance v Parsons (1881) 7 App. Cas. 96. He cites Prof. Le Dain’s Duff article (at 509) as an attempt to incorporate lacunae into the category of matter not falling within an enumerated head of power, but argues that this is unsuccessful in cases where the Constitution has been explicit in dealing with one part of an issue but not the whole. However, the multiplication of branches approach to POG G , envisaging a “branch” to solve drafting issues and perhaps even allowing new branches to develop (see 509 and the reference to a possible interprovincial branch) deprives it of coherence and takes the living tree metaphor too much toward a thicket. The subject matter not allocated to the province, not contained within the broad domain of property and civil rights, and not cognizable as a local or private matter in the province is not a “lacuna” in the Constitution but rather envisaged as coming within federal authority, since it is of national concern. There is no straightforward account that can be given of what was a drafting lacuna, as opposed to a matter falling within contemplated residual power. Another one of Prof. Hogg’s examples, treaty-making since the Statute of Westminster and the lapse in significance of s 132 of the Constitution Act, 1867, fits well into Le Dain J’s classification as matter that did not exist at the time of Confederation. 79 Hogg, Constitutional Law of Canada. 80 Gibson, “Measuring ‘National Dimensions’” at 34–5. By “pollution price wars” Gibson meant what is often called a “race to the bottom” – an expression derived from Louis Brandeis J’s reasons in Ligget Co v Lee, (1933) 288 US 517 at 559: “The race was one not of diligence but of l­axity.” Daniel Halberstram, in “Federal Powers and the Principle of Subsidiarity,” in Global Perspectives on Constitutional Law, eds Vikram Amar and Mark Tushnet (Oxford: Oxford University Press, 2009) 34 at 42, characterizes the use of the quotation from Gibson in Crown Zellerbach: “What does or should qualify as a matter of ‘national concern’ under the ‘provincial inability’ test? The court

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focuses principally on a category we might call ‘externalities and other collective action problems.’” 81 Gibson, “Measuring ‘National Dimensions’” at 36. 82 See ibid. at 17, where Prof. Gibson proposes that different sources of federal power produce different degrees of exclusivity. 83 Anti-Inflation Act at 444. 84 Crown Zellerbach at 433. On this point see Sujit Choudhry, “Recasting Social Canada: A Reconsideration of Federal Jurisdiction over Social Policy,” University of Toronto Law Journal 52 (2002): 163 at 230 at n212. Prof. Choudhry, citing Willis, “Crown Zellerbach Case on Marine Pollution” at 244 (where Willis does not directly claim that a contradiction exists) affirms that Le Dain J contradicted himself on this point, since on the one hand he made the statement here cited, and on the other hand he wrote (at 434), “The provincial inability test must not, however, go so far as to provide a rationale for the general notion, hitherto rejected in the cases, that there must be a plenary jurisdiction in one order of government or the other to deal with legislative problem.” There is no contradiction. Once a subject matter of jurisdiction has been identified as falling within the national concern doctrine, this entails plenary, exclusive jurisdiction on the part of the federal government. However, not every subject matter is to be allocated to one level of government or another in this way. Some matters fail to have the singleness, distinctiveness, and indivisibility to meet the test. General control over pollution does not meet the test. Thus, there is no plenary jurisdiction with respect to this subject matter, nor is there a constitutional presumption that one level of government or the other must have exclusive jurisdiction over every conceivable ­matter, many of which will necessarily cut across the existing distribution of powers.   In expressing a general preference for concurrent jurisdiction over matters of national concern, what Prof. Choudhry fails to address is the difficult question concerning when exclusive jurisdiction is required by the nature of the subject matter. Does he really imagine concurrent jurisdiction over aeronautics, radio, and the National Capital Region – the ­subjects that had uncontroversially been allocated under the national ­concern doctrine? 85 See note 33 and accompanying discussion. 86 It is far from obvious, using Prof. Gibson’s example, that even these circumstances would require the use of federal power. Federal-provincial agreements themselves could provide for dispute settlement or interim standards. See, for example, Canadian Free Trade Agreement,

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Consolidated Version 2017, https://www.cfta-alec.ca/wp-content/ uploads/2017/06/CFTA-Consolidated-Text-Final-Print-Text-English.pdf, which in chapter 10 provides a dispute settlement procedure. 87 Gibson, “Constitutional Jurisdiction over Environmental Management in Canada” at 31–2. 88 Crown Zellerbach at 432. It is interesting to note that in discussing the national concern doctrine, Peter Hogg has continued to insist in subsequent editions of his book, with reference to Crown Zellerbach (Constitutional Law at 516–17), “It seems, therefore, that the most important element of national concern is a need for one national law which cannot realistically be satisfied by cooperative action because the failure of one province to cooperate would carry with it adverse consequences for the residences of other provinces.” 89 See Richard Simeon, “Criteria for Choice in Federal Systems,” Queen’s Law Journal 8 (1983): 131. Simeon considers a possible “spillover” criterion for the division of powers under the Constitution, arguing (at 145), “The increasing interconnectedness of public policies, the importance of national and international economic linkages, and the existence of interest group coalitions crossing provincial boundaries, all imply that it is very hard to internalize the actions of government within a province.” While he offers this criterion as only one of “a wealth – indeed perhaps a surfeit – of alternative criteria for choice” (at 156), he emphasizes its centralizing tendency. However, despite citing the work of Vincent Ostrom, he did not consider circumstances in which nested, polycentric approaches can be used to address collective action problems: see Elinor Ostrom, “Polycentric Systems for Coping with Collective Action and Global Environmental Change,” Global Environmental Change 20 (2010): 550; and Amy Poteete, Marco. A. Janssen, and Elinor Ostrom, Working Together: Collective Action, the Commons, and Multiple Methods in Practice (Princeton, N J: Princeton University Press, 2010). 90 See Reference re Public Service Employee Relations Act (Alta). In this respect one must cast doubt on Prof. Katherine Swinton’s reading that in this aspect of the Crown Zellerbach reasons, the Court’s “concern is not just provincial legal incapacity to deal with a problem, but their lack of political will to do so”; see Katherine Swinton, “Federalism under Fire: The Role of the Supreme Court of Canada,” Law and Contemporary Problems 55 (1992): 121 at 127. The Court has underscored that ­efficaciousness of law or policy is not a relevant judicial consideration: Reference re Firearms Act (Can.), [2000] 1 SC R 783 at 797; and Reference re Securities Act, [2011] 3 S CR 837 at 87.

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91 In “Federal Wetlands Regulation in Canada and the United States: Suggestions for Canada in Light of Crown Zellerbach and the Peace, Order and Good Government Clause of the Canadian Constitution,” George Washington Journal of International Law and Economics 27 (1993): 139, Vincent Fiore seeks to use Crown Zellerbach as a basis for establishing a national wetlands policy grounded in the national concern doctrine. However, after canvassing a range of possible arguments, he acknowledges (at 168) that “none of these arguments taken alone convincingly raises the crisis of wetlands degradation to a level of national concern sufficient to satisfy the conceptual requirements articulated in Crown Zellerbach.” 92 Fort Frances Pulp & Power Co Ltd v Manitoba Free Press Co Ltd, [1923] A C 695 at 704–6 (per Viscount Haldane). 93 Le Dain, “Sir Lyman Duff and the Constitution.” 94 In “A Legal and Epidemiological Justification for Federal Authority in Public Health Emergencies,” McGill Law Journal 52 (2007): 381, Amir Attaran and Kumanan Wilson bemoaned the absence of adequate federal emergency planning for epidemics revealed by the 2002–3 SA R S crisis. They point to reluctance of the federal government to adopt emergency prevention and planning measures based on their uncertain constitutional footing – this despite the frequent use of the example of “pestilence” to illustrate possible use of the emergency doctrine. The authors demonstrate that lack of clarity as to federal and provincial roles in crisis management has hampered proper response. See also Canada, National Advisory Committee on S ARS and Public Health, Learning from SA R S: Renewal of Public Health in Canada (Ottawa: Health Canada, 2003) (chair: Dr David Naylor), http://www.phac-aspc.gc.ca/publicat/sars-sras/naylor/2-eng .php#Outbreak, emphasizing the lack of clear lines of responsibility in what had become a national and international crisis. Indeed, the Public Health Agency of Canada was established in the wake of the SA R S crisis to coordinate federal response. Attaran and Wilson comment (at 412–3), “Yet three years [after the S ARS crisis], though there has been some new legislation and a new agency (the Public Health Agency of Canada), nowhere has there been an actual increase in federal authority to intervene during an epidemic. If S ARS reappeared tomorrow and Ontario again refused to co-operate and share epidemiological information, the federal government still would not have the legislative authority, short of the Emergencies Act, to force Ontario’s hand. And if the direct effects of the epidemic were confined to Ontario, the federal government could not even use its Emergencies Act powers without Ontario’s permission.” Since they

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wrote, two additional pieces of legislation have been adopted: the Emergency Management Act, S C 2007, c 15; and the Human Pathogens and Toxins Act, S C 2009, c 24. Section 6(3) of the Emergency Management Act specifies that “government institution may not respond to a provincial emergency unless the government of the province requests assistance or there is an agreement with the province that requires or permits the assistance.” See also Sina Muscati, “POGG as a Basis for Federal Jurisdiction over Public Health Surveillance,” Constitutional Forum 16 (2007): 41.  95 R S C 1985, c 22 (4th Supp).  96 R S C 1927, c 206 (1914).  97 Co-operative Committee on Japanese Canadians v Canada (AG ) [1947] A C 87.   98 Another piece of legislation at issue in that case, the National Emergency Transitional Powers Act, 1945 9-10 George VI c 25, declared that for the purposes of the War Measures Act the conflict with Germany and Japan no longer existed but that certain transitional measures resulting from the emergency would be taken. That legislation was temporary.   99 Presumably to tie over-extension of the emergency back to Parliament, courts could review the orders-in-council invoking the emergency legislation – as in Japanese Canadians itself – and determine whether the failure to ensure their expiry was in conflict with the emergency doctrine. 100 See “Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora’s Box?,” Supreme Court Law Review (2d) 54 (2011): 601 at 619–20 (emphasis in original); as well as Eugénie Brouillet, “La dilution du principe fédératif et la jurisprudence de la Cour suprême du Canada,” Cahiers du droit 45 (2004): 7 at n79; and Henri Brun, Guy Tremblay, and Eugénie Brouillet, Droit constitutionnel, 5th ed. (Cowansville, QC: Les Éditions Yvon Blais, 2008) at 434 and 556 ff. See also Vilaysoun Lougnarath, “Le rôle du pouvoir judiciaire dans la structuration politico-juridique de la fédération canadienne,” Revue du barreau 57 (1997): 1003, at 1016; and Nicole Duplé, Droit constitutionnel: principes fondamentaux, 5th ed. (Montreal: Wilson & Lafleur, 2011) at 389–90. 101 Re Anti-Inflation Act at 457–8, citing the cases referred to in Canada Temperance Federation, and Regulation and Control of Radio Communication. 102 Re Anti-Inflation Act at 454, citing the passage cited at note 36 and discussed in the accompanying text.

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103 Re Anti-Inflation Act at 450–1. 104 Indeed, the final recital to s 91 is illuminating: “And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.” That is to say that matters within s 91 are, in effect for greater certainty, not to be deemed to come within s 92(16). This clause is discussed in Gibson, “Constitutional Jurisdiction over Environmental Management in Canada” at 16. 105 See Le Dain, “Jean Beetz as Judge and Colleague” at 729. 106 See Munro v National Capital Commission and accompanying discussion. 107 In “Ecological Unity and Political Fragmentation: The Implications of the Brundtland Report for the Canadian Constitutional Order,” Alberta Law Review 29 (1991): 420, Mark Walters emphasizes this point and asserts (at 444) that “the most recent Supreme Court of Canada decision in this area in Crown Zellerbach can be seen to support the proposition that, indeed, ‘unity’ in law equates to ‘unity’ in the scientific sense of interlocking ecosystems.” He does not address the issue of distinctiveness from other enumerated heads of power. 108 A subtle shift in analysis takes place when the task of characterization shifts from finding the “objects and scope” of legislation, as in Russell at 841 (para 25), to finding the subject matter and scale of impact of legislation. Thus in Russell the object and scope of the legislation was “to promote temperance by means of a uniform law throughout the Dominion.” Re-characterized using the methodology of Crown Zellerbach, it would become “to control the availability of liquor,” and the goal of uniformity would not be absorbed into the characterization but would be evaluated according to the nature of spillover effects. 109 See notes 79–90 and accompanying discussion. 110 Attaran and Wilson, “Legal and Epidemiological Justification,” express misgivings about the fourth element of the test (at 410): “The unhelpful paradox of the reasoning is obvious: a matter can be declared of national concern if a province lacks sufficient power to succeed at managing it on its own, but cannot be declared of national concern if a province would lose too much power from the federal government managing it instead.” The paradox to which the authors refer is in fact a process of weighing the concentration of spillover effects. The scale of impact upon the distribution of legislative power as a whole is minimal if indeed the matter in issue on analysis proves not to be local or private in the province.

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111 Crown Zellerbach at 436. 112 Joint Group of Experts on the Scientific Aspects of Marine Pollution, Reports and Studies no. 15, “The Review of the Health of the Oceans” (UNE S C O, 1982): U N EP, http://unesdoc.unesco.org/images/0005/000528/ 052858eb.pdf. G ES AM P, as it is known, has existed since 1969 as a global panel of experts sponsored by nine U N agencies to advise the UN system about the scientific dimensions of protecting the marine environment. 113 Ibid. at 61. The “benthos” is the flora and fauna found on the sea bottom. 114 Ibid. at 5. 115 With gathering information about the negative effects and scope of marine-dumping pollution, the parties agreed in 1996 to update the convention by adopting the London Protocol: EC OLEX , http://www.ecolex .org/ecolex/ledge/view/RecordDetails?id=TRE-001268&index=treaties. The protocol prohibits all dumping, except for a confined list of eight exceptions requiring permits for dumping. On that list is “organic material of natural origin” including, therefore, wood waste. Canada became a party to the London Protocol on 15 May 2000. The protocol entered into force on 24 March 2006. One recital to the protocol emphasizes the extent to which the problem had grown since 1972 and become more urgent: “BEI N G CON VI N CED that further international action to prevent, reduce and where practicable eliminate pollution of the sea caused by dumping can and must be taken without delay to protect and preserve the marine environment and to manage human activities in such a manner that the marine ecosystem will continue to sustain the legitimate uses of the sea and will continue to meet the needs of present and future generations.” 116 As Willis observes in “Crown Zellerbach Case on Marine Pollution” at 239, “By its terms the Convention does not apply to internal waters, and the incident that gave rise to this case took place in internal waters. Canada was under no treaty obligation to control dumping in Beaver Cove and the treaty implementation argument therefore had no basis. This was recognized in the Supreme Court of Canada, where the treaty argument was abandoned by the Crown except as a demonstration of the inherently national and international nature of the subject-matter.” As to why the convention is framed as it is, Willis speculates (at 238),  What is less clear is why the drafters of the Convention itself decided to exclude internal waters. So far as the subject-matter of this Convention is concerned, there is no real distinction between internal waters and the territorial sea. Both are fully subject to the sovereignty of the coastal State. The main difference between the two categories is the right of

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innocent passage through the territorial sea, which has little practical relevance to the subject of dumping. Unfortunately, the negotiating history provides no clear explanation of the exclusion. The draft under consideration at the diplomatic conference in 1972 covered “bays” in addition to the high seas and the territorial sea, but this formulation was challenged because it would have made the field of application unclear. A further implicit reason may be that internal waters are more closely associated with the land territory of a state, and that the accountability, consultative procedures, and dispute settlement provisions of the Convention would be regarded as intrusive in this context.   Article 7 of The 1996 London Protocol altered the approach taken to internal waters by requiring that states either apply its provisions to internal waters or establish “other effective permitting and regulatory measures” and in either case report to the International Maritime Organization on “legislation and institutional mechanisms regarding implementation, compliance and enforcement in marine internal waters.” 117 Crown Zellerbach at 437. 118 But see the subsequent change to the regime discussed in note 116. 119 Given the precision of contemporary G PS technology, one might suggest that this aspect of Le Dain J’s reasons was an artifact of his times. Indeed, Willis notes that as a relative matter, determining the boundary between internal and territorial waters is straightforward in comparison with determining the boundary between provincial waters and federal waters: “Crown Zellerbach Case on Marine Pollution” at 242. He argues that the real issue lying behind Le Dain J’s observations about the difficulty of delimiting waters is that a regime excluding coastal waters behind the baseline would be inherently ineffective. That observation aligns well with the general scheme of analysis followed by Le Dain J. 120 Willis, “Crown Zellerbach Case on Marine Pollution,” makes the interesting observation that rather than venturing into the national concern doctrine in order to resolve this point, Le Dain J might have confined himself to the conclusion that jurisdiction over provincial coastal waters was here “necessarily incidental” to federal jurisdiction over federal coastal waters. This point was not argued in Court: indeed, “the Attorney General of Canada made it plain that he was not relying in this Court on ancillary or necessarily incidental power. His contention was that the control of dumping in provincial marine waters was an integral part of a single matter of national concern” (Crown Zellerbach at 418–19). Prof. Le Dain had, of course, discussed the relationship between the sets of arguments in his Duff article.

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121 See GE S AM P, “Review of the Health of the Oceans” at 60–2. 122 See Morguard Investments Ltd v De Savoye, [1990] 3 SC R 1077 at 1099; Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 S CR 3 at 37 and 64; Hunt v T&N plc, [1993] 4 SC R 289 at 322; and R v Hydro-Québec, [1997] 3 S CR 213 at 288–9, 313–14. 123 Crown Zellerbach at 438. 124 Crown Zellerbach at 443. See also 440 (dumping of any substance, whether it is a pollutant or not), 441 (“no evidence of any such link”), 442 (“dumping into marine waters of any substance, however innocuous”), 443 (s 4(1) characterized as a “blanket prohibition”), 444 (“there is no evidence that the substance made subject to the prohibition in s 4(1) is either deleterious in any way or has any impact beyond the limits of the province”), 449 (“a blanket prohibition against depositing any substance in waters without regard to its nature or amount”), and 459 (“The prohibition applies to an inert substance regarding which there is no proof that it either moves or pollutes. The prohibition in fact would apply to the moving of a rock from one area of provincial property to another”). 125 GE S A MP, “Review of the Health of the Oceans” at 61. La Forest J entertained the question as to whether (ibid at 450) “it is necessary to monitor all deposits into the sea to develop an effective regime for the prevention of ocean pollution” and went so far as to assert that “system of monitoring that was necessarily incidental to an effective legislative scheme for the control of ocean pollution could constitutionally be justified.” Yet he concluded that no material was advanced establishing the need for such a system – this despite the G ES AM P statements about inert substances. 126 Crown Zellerbach at 442. 127 Note that in the Hydro-Québec decision, which is discussed further below, the dissent of Lamer CJ and Iacobucci J (at 246) concluded that although “the protection of the environment is a legitimate public purpose which could support the enactment of criminal legislation,” the purported grant of regulatory power under the Canadian Environmental Protection Act, R S C 1985, c 16 (4th Supp) over substances that did not necessarily pose a danger to human health meant that the Act was seeking to regulate pollution rather than to prohibit or proscribe it. Thus criminal law jurisdiction did not encompass the subject matter. For his part, La Forest J’s position seemed to have evolved (at 293): During the argument in the present case, however, one sensed, at times, a tendency, even by the appellant and the supporting interveners, to seek justification solely for the purpose of the protection of health specifically identified by Rand J. Now I have no doubt that that purpose

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obviously will support a considerable measure of environmental legislation, as ­perhaps also the ground of security. But I entertain no doubt that the protection of a clean environment is a public purpose within Rand J’s formulation in the Margarine Reference, cited supra, sufficient to support a criminal prohibition. It is surely an “interest threatened” which Parliament can legitimately “safeguard,” or to put it another way, pollution is an “evil” that Parliament can legitimately seek to suppress. Indeed, as I indicated at the outset of these reasons, it is a public purpose of superordinate importance; it constitutes one of the major challenges of our time. It would be surprising indeed if Parliament could not exercise its plenary power over criminal law to protect this interest and to suppress the evils associated with it by appropriate penal prohibitions. However, even this extension of the public policy objectives of criminal law was justified for La Forest J, because (at 294) “certain forms and degrees of environmental pollution can directly or indirectly, sooner or later, seriously harm or endanger human life and human health.” 128 Crown Zellerbach at 441–2. As a general matter, it can be said that La Forest J ultimately came to take a broad view of the issues at stake in protecting the environment, insisting, for example, on the interrelationship between environmental, social, and economic problems: see Friends of the Oldman River Society at 37. There was always, nevertheless, what could be called an anthropocentric view of environmental problems – they were significant basis for public policy to the degree that their impacts could be connected to human life and health. It can be said that the purpose of our stewardship of the biosphere is to enable our own lives and health and those of future generations. It can also be said that because the biosphere enables our lives and health, we have an obligation to maintain the health of the biosphere. The difference in emphasis has to do with whether, as a matter of public policy, protection of the biosphere could serve as an adequate justification for legislative action absent the ability the show a relationship to human life and health. One can answer affirmatively on the basis of a presumption that any measure seeking to protect the biosphere thereby seeks to protect our relationship to it. On this less anthropocentric view, harm to habitat and ecosystems by substances that might be innocuous to human life and health would nevertheless form an adequate basis for the application of criminal law. It must be said that La Forest J came very close to taking this view in Hydro-Québec at 300, where he posed himself a question that was ambiguously rhetorical:

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So if the protection of the environment does not amount to a valid public purpose to justify criminal sanctions, it would be simply a question of severing those portions of s 11 of the Act that deal solely with the environment to ensure the validity of the Interim Order and the rest of the enabling provisions. After all, the protection of the environment, as we earlier saw, is closely integrated, directly or indirectly, with the protection of health. But for my part, I find this exercise wholly unnecessary. The protection of the environment, through prohibitions against toxic substances, seems to me to constitute a wholly legitimate public objective in the exercise of the criminal law power. Humanity’s interest in the environment surely extends beyond its own life and health. Subsequently in Hydro-Québec at 288, La Forest J characterized the accepted subject matter as “marine pollution” and thus did not bring into the characterization the verbal noun “control.” Crown Zellerbach at 454–5. Ibid. at 444. La Forest J emphasized this fact is his reasons, ibid. at 439. It was also mentioned by Le Dain J. in his reasons at 414. Ibid. at 451. Ibid. at 445. It is all the more striking that in the Hydro-Québec case it was La Forest J who upheld part of the regulatory regime under the Canadian Environmental Protection Act that the dissenters found to have an insufficiently circumscribed definition of “toxic substance” extending the reach of the legislation beyond “a distinct form of pollution, namely chemical pollution” (at 261). La Forest J was at great pains to respond to this argument. He began his response as follows, almost as if the facts of Crown ­Zellerbach were ringing in his ears (at 298): I quite understand that a particular prohibition could be so broad or all-encompassing as to be found to be, in pith and substance, really aimed at regulating an area falling within the provincial domain and not exclusively at protecting the environment. A sweeping prohibition like this (and this would be equally true of one aimed generally at the protection of health) would, in any case, probably be unworkable. But the attack here ultimately is that the impugned provisions grant such a broad discretion to the Governor in Council as to permit orders that go beyond federal power. I can imagine very nice issues being raised concerning this matter under certain types of legislation, though in such a case one would tend to interpret the legislation narrowly if only to keep it within constitutional bounds. But one need not go so far here.

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For, it seems to me, as we shall see, when one carefully peruses the legislation, it becomes clear enough that Parliament has stayed well within its power.   What was it that kept Parliament within its power in the Hydro-Québec case, in contrast to what he had interpreted as brazen overbreadth in Crown Zellerbach? One is left to conclude that La Forest J changed his mind, perhaps under the influence of Gonthier J (who concurred in La Forest J’s Hydro-Québec reasons), since the following statement could have applied pari passu to the attack on s 4(1) of the Ocean Dumping Control Act (at 301): As I see it, the argument focusses too narrowly on a specific provision of the Act and for that matter only on certain aspects of it, and then applies that provision in a manner that I do not think is warranted by a consideration of the provisions of the Act as a whole and in light of its background and purpose. I shall deal with the latter first. Before doing so, however, I shall comment briefly on the concern expressed about the breadth of the phraseology of the Act. As Gonthier J observed in Ontario v Canadian Pacific, supra, this broad wording is unavoidable in environmental protection legislation because of the breadth and complexity of the subject and has to be kept in mind in interpreting the relevant legislation.   The only residual distinction that can be drawn to explain why these words did not apply to s 4(1) is that, unlike the List of Toxic Substances at issue in Hydro-Québec, it did not involve a process of adding to a narrow set of banned materials or activities. As concerns the List, La Forest J remarked (at 308–9), “It is precisely what one would expect of an environmental statute – a procedure to weed out from the vast number of substances potentially harmful to the environment or human life those only that pose significant risks of that type of harm.” Section 4(1) began with the opposite premise, namely that dumping was banned unless an exception could be justified. Surely, however, the appropriate approach to control environmental impacts has to do with scientific evidence about impacts rather than a judicial presumption in favour of maximizing freedom to make impacts. 136 Crown Zellerbach at 447–8. La Forest J was also anxious to set aside the application of the emergency doctrine in connection with marine pollution – something that Le Dain J had chosen not to touch upon directly (at 444–5): “While there can be no doubt that the control of ocean pollution poses a serious problem, no one has argued that it has reached such grave proportions as to require the displacement of the ordinary division of legislative power under the Constitution.” The dismissive approach to

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environmental emergency is nevertheless intriguing, given that GESA MP couched its report in the language of growing danger: see “Review of the Health of the Oceans” at 4. It was as if La Forest J felt he could take judicial notice of the generally held opinion that environmental issues do not yet rise to the proportions of gravity involved in war or pestilence. It will be interesting to see, as time goes by and environmental impacts accumulate, whether the emergency doctrine gains in saliency. 137 This approach to concurrency allowing wide latitude to federal environmental prohibitions is developed further in his Hydro-Québec judgment. See 312–14. 138 See ibid. at 297: In saying that Parliament may use its criminal law power in the interest of protecting the environment or preventing pollution, there again appears to have been confusion during the argument between the approach to the national concern doctrine and the criminal law power. The national concern doctrine operates by assigning full power to ­regulate an area to Parliament. Criminal law does not work that way. Rather it seeks by discrete prohibitions to prevent evils falling within a broad purpose, such as, for example, the protection of health. In the criminal law area, reference to such broad policy objectives is simply a means of ensuring that the prohibition is legitimately aimed at some public evil Parliament wishes to suppress and so is not a colourable attempt to deal with a matter falling exclusively within an area of provincial legislative jurisdiction. 139 See Jean Leclair, “Aperçu des virtualités de la compétence fédérale en matière de droit criminel dans le contexte de la protection de l’environnement,” Revue générale de droit 27 (1996): 137. 140 In Reference re Assisted Human Reproduction Act, [2010] 3 SC R 457, a divided Court scaled back the use of the criminal law for what was held to be the regulation of virtually all aspects of the research and clinical practice relating to assisted human reproduction. 141 Crown Zellerbach at 729. 142 Ibid. at 456. 143 Ibid. at 458. It must be acknowledged that this in itself raises a significant challenge for the applicability of Le Dain J’s carefully crafted synthesis of the doctrine, since even a jurist as remarkable as La Forest J found it difficult to assimilate and apply. 144 Ibid. at 456–8. 145 See, for example, Alistair Lucas, “Case Comment: R v Crown Zellerbach Canada Ltd,” University of British Columbia Law Review 23 (1988–9): 355 at 361–3.

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146 The closest La Forest J came to acknowledging this delimitation was when he wrote about the objectives of the convention (Crown Zellerbach at 443): “While there is a general obligation imposed on the contracting states under Article I of the Convention to promote the control of all sources of marine pollution, the practical steps to which these states pledge themselves in giving effect to this obligation are confined to ‘the dumping of waste or other matter that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.’” However, he then went on to assert that the same characterization could not apply to s 4(1) because of its overbreadth. Yet pursuant to the goal they had announced, the parties to the convention undertook the following (Convention on the Prevention of Marine Pollution), upon which s 4(1) was directly based: Article IV   1  In accordance with the provisions of this Convention Contracting Parties shall prohibit the dumping of any wastes or other matter in whatever form or condition except as otherwise specified below:  (a)  the dumping of wastes or other matter listed in Annex I is prohibited;  (b)  the dumping of wastes or other matter listed in Annex II requires a prior special permit;  (c)  the dumping of all other wastes or matter requires a prior general permit.   2  Any permit shall be issued only after careful consideration of all the factors set forth in Annex III, including prior studies of the characteristics of the dumping site, as set forth in sections B and C of that Annex.   3  No provision of this Convention is to be interpreted as preventing a Contracting Party from prohibiting, insofar as that Party is concerned, the dumping of wastes or other matter not mentioned in Annex I. That Party shall notify such measures to the Organization. 147 See Sven Deimann, “R v Hydro-Québec: Federal Environmental Regulation as Criminal Law,” McGill Law Journal 43 (1997–8): 923 at 944–5. 148 See Environment Canada, “Disposal at Sea: Program Information,” 2017, http://www.ec.gc.ca/iem-das/default.asp?lang=En&n=55A643AE-1; and CIA World Factbook, https://www.cia.gov/library/publications/the-worldfactbook/fields/2060.html. 149 Canadian Environmental Protection Act, 1999, SC 1999, c 33, s 132; and Canadian Report on Administrative and Legislative Measures Taken to

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Implement the London Protocol, 1999–2009, http://www.imo.org/blast/ blastData.asp?doc_id=14171&filename=CANADIAN%20REPORT% 20ON%20ADMINISTRATIVE%20AND%20LEGISLATIVE%20 MEASURES%20TAKEN%20TO%20IMPLEMENT%20THE% 20LONDON%20PROTOCOL.doc. For a report on the incident, see “BC Village’s Ocean Fertilization Experiment Probed,” CBC News, 28 March 2013, http://www.cbc.ca/ news/canada/british-columbia/b-c-village-s-ocean-fertilization-­experimentprobed-1.1396495. See also Ted Parson, “Canada’s Ocean Fertilization Flap, and Its Significance,” Legal Planet, 18 October 2012, http:// legalplanet.wordpress.com/2012/10/18/canadas-ocean-fertilization-flapand-its-significance/. International Maritime Organization, “International Concern over Ocean Fertilization Receives Unanimous Backing from Key Meeting in London,” 2 November 2012, http://www.imo.org/blast/blastData.asp?doc_id= 14525&filename=J-14%20Revdoc%20%20. See also Convention on Biodiversity, “Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its Eleventh Meeting,” UNEP /  C B D   /  C OP /  DEC /  XI  / 20, 5 December 2012 at 2, https://www.cbd.int/ doc/decisions/cop-11/cop-11-dec-20-en.pdf; and Statement by the Inter­ governmental Oceanographic Commission of UNESC O regarding Ocean Fertilization, U N ES CO, 19 October 2012, http://www.unesco.org/new/ fileadmin/MULTIMEDIA/HQ/SC/pdf/IOC_statement_Ocean_fertilization .pdf. For a discussion of the science behind ocean fertilization see, Quirks and Quarks, “Ironing the Ocean,” CBC.ca, 20 October 2012, http://www .cbc.ca/video/news/audioplayer.html?clipid=2293988796. Environment Canada, “Information Bulletin – Ocean Fertilization Activities Are Currently Not Allowed Except for Qualified Research,” March 2011, http://www.ec.gc.ca/iem-das/default.asp?lang=En&n=C53A7E26-1. See also Department of Fisheries and Oceans, “Ocean Fertilization: Mitigating Environmental Impacts of Future Scientific Research,” Science Advisory Report 2010 / 012, April 2010 (updated: June 2010), http:// www.dfo-mpo.gc.ca/CSAS/Csas/publications/sar-as/2010/2010_012_e.pdf. Canadian Environmental Protection Act, 1999, s 125. The contestation is based on the claim that the disposal in issue fell outside the definition of the prohibition, because it constituted “the placement of a substance for a purpose other than its mere disposal if the placement is not contrary to the purposes of this Division and the aims of the Convention or the Protocol” (s. 122(i)): see Legal Ocean, “Haida Salmon Project Files with Supreme Court, Proof of Illegal Search and Seizure,” news release,

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17 April 2013, http://russgeorge.net/2013/04/17/haida-salmon-projectfiles-proof-with-bc-supreme-court-proving-illegal-search-and-seizure/. However, since an information bulletin had been issued concerning ocean fertilization reflecting the views of the parties to the protocol (Department of Fisheries and Oceans, “Ocean Fertilization”), and since the disposal is generally subject to the permit requirement, the basis for the search warrants is strong. It is also argued that the for-profit activity was nonetheless research, but again the information bulletin draws a clear line with respect to qualified research. 154 Willis, “Crown Zellerbach Case on Marine Pollution,” 247–8. 155 Outside of the environmental domain, Le Dain J’s reasons in Crown Zellerbach have only been considered in Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 S CR 327; and R v Malmo‑Levine; R v Caine, [2003] 3 S CR 571. The Quebec Court of Appeal had relied upon them in both of the RJR-MacDonald cases, which was noted in passing but not discussed in the Court’s own judgments: RJR -MacDonald Inc v Canada (AG ), [1994] 1 S CR 311 at 325 (per Sopinka and Cory J J ); and RJR -MacDonald Inc. v Canada (AG ), [1995] 3 SC R 199 at 233 and 236 (per La Forest J dissenting). In Ontario Hydro the majority and minority traded assertions as to whether the national concern doctrine, which all agreed applied to atomic energy, included the regulation of labour relations within atomic power plants as part of its single, distinctive, and ­indivisible subject-matter. Neither Lamer CJ nor La Forest J in their concurring majority judgments sought to work through the four elements of Le Dain J’s summary of doctrine. Iacobucci J, in dissent, paid more heed to those elements but drew a problematic inference (at 424): “With regard to the last factor, the ‘provincial inability’ test, Le Dain J hastened to caution that the test ‘must not, however, go so far as to provide a rationale for the general notion, hitherto rejected in the cases, that there must be a plenary jurisdiction in one order of government or the other to deal with any legislative problem’ (p. 434). Therefore, that the federal government may have jurisdiction over atomic energy by reason of the national concern branch of the p.o.g.g. power does not give Parliament plenary power over all aspects of nuclear power.” That is, Iacobucci J derived the conclusion that federal jurisdiction was not plenary, rather than identifying the subject matter over which plenary jurisdiction indeed existed. The majority was persuaded, as Lamer C J put it (at 347), that “supervising employment … is an integral part of assuring the safety of nuclear facilities and materials” and thus was part of ­plenary jurisdiction.

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 In Malmo-Levine, Gonthier and Binnie J J , writing for the majority, observed (at 618), We do not exclude the possibility that the [Narcotics Control Act] might be justifiable under the “national concern” branch on the rationale adopted in R v Crown Zellerbach Canada Ltd, [1988] 1 SC R 401, at p 432, where we held that concerted action amongst provincial and federal entities, each acting within their respective spheres of legislative jurisdiction, was essential to deal with Canada’s international obligations regarding the environment. In our view, however, the Court should decline in this case to revisit Parliament’s residual authority to deal with drugs in general (or marihuana in particular) under the POGG power. If, as is presently one of the options under consideration, Parliament removes marihuana entirely from the criminal law framework, Parliament’s continuing legislative authority to deal with marihuana use on a purely regulatory basis might well be questioned. The Court would undoubtedly have more ample legislative facts and submissions in such a case than we have in this appeal. Our conclusion that the present prohibition against the use of marihuana can be supported under the criminal law power makes it unnecessary to deal with the Attorney General’s alternative position under the POGG power, and we leave this question open for another day.   This reinforced the preference expressed in Hydro-Québec not to resort to P O GG if a justification could be found under the criminal law power.  The Reference re Securities Act might have afforded a consideration of the reasons in Crown Zellerbach. The case was not considered, since the Court focused exclusively on the trade and commerce power, although its reasons were generally quite consistent with Le Dain J’s analysis of POGG. Without using Le Dain J’s language, the judgment sought to isolate subject matter that had the necessary singleness, distinctiveness, and indivisibility (in that case, the control of systemic market risk and attendant information gathering) and engage in an assessment of scale of impact upon provincial jurisdiction as well as provincial inability. It is worth observing nevertheless that the very diffusion and pervasiveness of the environment that excluded it as a subject matter of federal jurisdiction under POGG became, for the Court, a hallmark of what gave systemic risk (and competition) a national dimension under s 91(2) (at 876–7 and 892). Since the commerce clause of the US Constitution has been the central basis for federal environmental legislation there, one wonders how the Supreme Court of Canada will reconcile its opposing approaches to diffusion and pervasiveness. Perhaps what was meant was that the risk or danger in question

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was pervasive and that this in turn gave rise to the need for coordinated national, and indeed international, response. However, it is more accurate to say that financial market system risk or danger as a subject matter of legislation and regulation is singular and indivisible, and distinctive from the types of local and private regulatory controls characteristic, for example, of licensing securities dealers. 156 See Friends of the Oldman River Society and Hydro-Québec. 157 Quebec (AG ) v Moses, [2010] 1 S CR 557 at 621–2. In their dissent, LeBel and Deschamps JJ made passing reference to Crown Zellerbach in asking whether there was a federal aspect to an environmental assessment, noting simply that the national concern branch of POGG could be a basis of federal environmental jurisdiction. 158 Hydro-Québec at 253–4. Sopinka and Major JJ concurred in the dissent. 159 Ibid. at 256. 160 Ibid. at 259. It is worth noting that Lamer C J had been part of the Crown Zellerbach minority. Apart from La Forest J himself, he was the only other judge who sat on both cases. 161 Ibid. at 260. Prof. Le Dain had criticized such an approach in his Duff article: see note 39 and accompanying discussion. As was just mentioned, his own summary of the national concern doctrine in Crown Zellerbach had made clear that intra-provincial aspects of the subject matter would come under federal jurisdiction and hence that it could not be defined according to whether it was limited to interprovincial effects. 162 Ibid. at 263. 163 See note 137. There have been two equivalency agreements, one of which was in place at the time of the Hydro-Québec was heard and the other of which relates to greenhouse gas emissions rather than toxic substances. In 1994, the federal government entered into “An Agreement on the Equivalency of Federal and Alberta Regulations for the Control of Toxic Substances in Alberta”: Environment Canada, http://www.ec.gc.ca/ lcpe-cepa/default.asp?lang=En&n=A077A4E0-1. The agreement covers four sets of substances. Some of the recitals to that agreement were as follows: WH E R E AS the Canadian Council of Ministers of the Environment have endorsed the statement of Interjurisdictional Cooperation on Environmental Matters to provide an overall framework for effective intergovernmental cooperation on environmental matters;   A ND W HEREAS , the Canadian Council of Ministers of the Environment have endorsed the National Commitment to Pollution

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Prevention as a key component of environmental protection and sustainable development;   A ND W HEREAS , the presence of toxic substances in the environment is a matter of concern for Canada and Alberta;   A ND W HEREAS , Canada and Alberta wish to cooperate fully in protecting the environment from the release of toxic substances;   A ND W HEREAS , Canada and Alberta are committed to establish consistent levels of environmental protection and environmental quality for all citizens with respect to toxic substances;   A ND W HEREAS , Canada and Alberta have each taken regulatory action to control toxic substances;   A ND W HEREAS , Canada and Alberta wish, wherever possible, to avoid duplication of effort in controlling toxic substances.   These recitals underscore the extent to which the purpose of the agreement was to maintain a national regime with respect to the substances in question and to avoid duplication of oversight. It should be added that McLachlin CJ’s judgment in Reference re Assisted Human Reproduction Act (at 497, 509, 514–15, 519, and 524–5) paid significant attention to the role of the parallel equivalency provision in that Act. 164 Hydro-Québec at 264. 165 For a discussion of the evolution of Canadian federalism toward a more integrated implementation of framework legislative regimes, see Johanne Poirier, “Souveraineté parlementaire et armes à feu: le fédéralisme coopératif dans la ligne de mire?,” Revue de droit de l’Université de Sherbrooke 45 (2015): 47. 166 David Beatty also objected to the narrow approach to the interpretation of Crown Zellerbach but favoured a broader interpretation of the provincial inability test than Le Dain J had in fact adopted; see “Polluting the Law to Protect the Environment,” Constitutional Forum 9 (1997–8): 55 at 57. 167 The dissenters did indeed note these statistics, which had been raised by the intervenor Pollution Probe, but dismissed their significance (Hydro-Québec at 262): “The constitutional validity of a statute cannot depend on the ebb and flow of existing government practice or the ­manner in which discretionary powers appear thus far to be exercised. It is the boundaries to the exercise of that discretion and the scope of the regulatory power created by the impugned legislation that are at issue here. It is no answer to a charge that a law is unconstitutional to say that it is only used sparingly. If it is unconstitutional, it cannot be used at all.”

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168 In November 1988 a report had been prepared for the federal government by Kristen Douglas, David Johansen, and Monique Hébert, Law and Government Division, “Toxic Substances: Federal-Provincial Control” (revised 31 July 1997), http://publications.gc.ca/Collection-R/LoPBdP/ CIR/8811-e.htm#1. The report emphasized the role of the federal-provincial advisory committee (at s C.3): “FPAC works toward the establishment of nationally consistent levels of environmental quality through harmonizing standards, adopting life-cycle and preventative approaches, and minimizing duplication.” The Court did not cite this report. In January 1998, just after the decision in Hydro-Québec, the Canadian Council of Ministers of the Environment, a federal-provincial body, issued the “C C ME Policy Statement for the Management of Toxic Substances.” The ministers described the toxicity assessment regime as follows (at 2): Candidate substances are assessed as toxic under the Canadian Environmental Protection Act (CEPA-toxic) or equivalent using established risk-based assessment techniques and procedures, including exposure and the inherent toxicity of a substance. This assessment will determine the nature and extent of the risk to the environment and human health from a toxic substance and will identify and quantify sources of exposure. This information will be used to guide Canadawide control strategies where warranted. Substances screened out at this point (i.e. not CEPA-toxic or equivalent) could be targeted for specific action within any jurisdiction wishing to make it a priority.   For a summary of the state of the legislation at the time Hydro-Québec was rendered, see Amir Attaran, “Hazardous Waste? The Criminal Law Power, Federal Environmental Jurisdiction, and Ottawa’s Policy since R v Hydro-Quebec,” University of New Brunswick Law Journal 49 (2000): 97 at 101–4. The federal-provincial advisory committee has been expanded to become the National Advisory Committee and now includes representatives from territorial and aboriginal governments. 169 Chlorobiphenyls Interim Order, PC 1989-296, 23 February 1989. HydroQuébec had violated the interim order by dumping more than 1 gram per day of P C B s from its electrical equipment into the St Maurice River and also failed to report the spill. It should be recalled that on 23 August 1988, 500 barrels of PCB-laced oil went ablaze in the town of St-Basilele-Grand, the largest fire of its kind in Canadian history and a major ­environmental catastrophe. See “1988: Residents Flee PC B Fire Near Montreal”: CBC Digital Archives, http://www.cbc.ca/archives/entry/1988residents-flee-pcb-fire-near-montreal. The concern that gave rise to the interim order was that the Canadian Environmental Protection Act had

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superseded the Environmental Contaminants Act R SC , 1985, c E-12, and the minister wanted to resolve any doubts about the ongoing validity of prior regulations governing PCBs under the predecessor Act. Prof. Attaran, “Hazardous Waste?” at 106, vigorously denounced the fact that Quebec challenged the constitutional validity of the interim order when Lucien Bouchard was premier of the province. Subsection 35(4) of the Canadian Environmental Protection Act at the time provided, “The Governor in Council shall not approve an interim order unless (a) the Minister has, within twenty-four hours after making the order, offered to consult the governments of all the affected provinces to determine whether they are prepared to take sufficient action to deal with the significant danger.” Subsection 35(5) provided that a regulation having the same effect as the interim order was to be recommended to Cabinet within ninety days, thereby triggering the role of the federal-­ provincial advisory committee. In practice, this is indeed how the division of labour between federal and provincial controls over toxic substances works. The federal government’s National Pollutant Release Inventory now monitors substances that, inter alia, “have not been determined to be toxic under Part 5 because of the current extent of the environment’s exposure to them, but whose presence in the environment must be monitored if the Minister considers that to be appropriate,” Canadian Environmental Protection Act, s 46(1). For example, Ontario’s toxic substances policy has extended to all substances on the National Pollutant Release Inventory; see Ontario Ministry of the Environment, “Backgrounder: Development of Lists of Substances Proposed to Be Prescribed under the Toxics Reduction Act, 2009: Toxic Substances and Substances of Concern,” Ontario.ca, https://archive.org/ details/stdprod080013.ome. Crown Zellerbach at 420. Hydro-Québec at 301, quoting from Ontario v Canadian Pacific, [1995] 2 S C R 1031 at 1068. See Ontario Ministry of the Environment, “Backgrounder” at 3. For a description, see Environmental Protection Agency, “Risk-Screening Environmental Indicators (RS EI ): Basic Information,” http://www.epa .gov/opptintr/rsei/pubs/basic_information.html. See Rachel Mitchell, Cheryl Summer, Shari Blonde, Dennis Bush, Gary Hurlburt, Erin Snyder, and John Giesy, “SC R A M: A Scoring and Ranking System for Persistent, Bioaccumulative, and Toxic Substances for the North American Great Lakes – Resulting Chemical Scores and Rankings,” Human and Ecological Risk Assessment 8 (2002): 537.

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177 Toxics Reduction Act, 2009 S O 2009, c 19, s 2. The regulation adopted pursuant to the Act incorporates by reference the National Pollutant Release Inventory substances, defining them as toxic substances and adding only one other substance, namely acetone: see Ontario Regulation 455 / 09, s 3. The regulation does not attempt to define toxic substance any further. 178 Some of those heralding it included Robert Howse, “The Labour Conventions Doctrine in an Era of Global Interdependence: Rethinking the Constitutional Dimensions of Canada’s External Economic Relations,” Canadian Business Law Journal 16 (1989–90): 160; and Howse, Economic Union, Social Justice, and Constitutional Reform: Towards a High but Level Playing Field (North York, ON: York University Centre for Public Law and Public Policy, 1992) at 57–8; as well as Beatty, “Polluting the Law to Protect the Environment”; and Choudhry, “Recasting Social Canada.” Some of those castigating it include Leclair, “Illusive Quest for the Quintessential ‘National Interest’”; Brouillet, “La dilution du principe fédératif”; and Lougnarath, “Le rôle du pouvoir judiciaire.” Leclair makes the uncomfortably accurate point (at 371) that the case tended to be embraced by English-Canadian scholars and decried by Quebec scholars. 179 See OPSEU v Ontario (AG ), [1987] 2 S CR 2 at 18 (per Dickson C J ); and General Motors of Canada v City National Leasing, [1989] 1 SC R 641 at 669 (per Dickson CJ). 180 See Husky Oil Operations Ltd v MNR , [1995] 3 SC R 453 at 539 (per Iacobucci J); Fédération des producteurs de volailles du Québec v Pelland, [2005] 1 SCR 292 at 299 (per Abella J); Canadian Western Bank v Alberta, [2007] 2 S CR 3 at 26 (per Binnie and LeBel J J ); and Reference re Securities Act at 867–8 (per the Court). 181 See 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), [2001] 2 S CR 241 at 249 (per L’Heureux-Dubé J); Canadian Western Bank at 38 (per Binnie and LeBel J J ); Quebec (AG ) v Lacombe, [2010] 2 SCR 453 at 503, 506 (per Deschamps J. dissenting); and Reference re Assisted Human Reproduction Act at 496–7 (per McLachlin C J ) and at 537, 576 (per LeBel and Deschamps J J ). 182 OPSEU . 183 See Poirier, “Souveraineté parlementaire et armes à feu.” 184 First and foremost among them are LeBel and Deschamps J J , given their reasons in Reference re Assisted Human Reproduction Act. But see also the prescient articles by Peter Hogg, “Subsidiarity and the Division of Powers in Canada,” National Journal of Comparative Law 3 (1993): 341; and Robert Howse, “Subsidiarity in All but Name: Evolving Concepts of

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Federalism in Canadian Constitutional Law,” in Contemporary Law: Canadian Reports to the 1994 Congress of Comparative Law, ed. H.P. Glenn (Cowansville, QC: Éditions Yvon Blais, 1995), at 701; and more recently Dwight Newman, “Changing Division of Powers Doctrine and the Emergent Principle of Subsidiarity,” Saskatchewan Law Review 74 (2011): 21. In “Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora’s Box?” Eugénie Brouillet seemed to answer her own question in the affirmative, providing that the box could still be kept under lock and key. In “The ‘Principle of Federalism’ and the Legacy of the Patriation and Quebec Veto References,” Supreme Court Law Review (2d) 54 (2011): 77, Jean-François Gaudreault-DesBiens reviewed the use of the term “subsidiarity” in the Court’s judgments and concluded (at 111) that “lack of mutual understanding about the meaning, scope and consequences of subsidiarity as a principle deemed inherent to federalism only highlights the problems plaguing references to this broader principle.” He did, however, note that Crown Zellerbach, as well as General Motors, “reflect the main ideas underlying subsidiarity” (at 103) and went on to outline an approach to subsidiarity that is largely the basis for the discussion that follows. 185 Reference re Assisted Human Reproduction Act (per LeBel and Deschamps JJ). 186 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, 2010 / C 83 / 01, art 5(3): “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” The subsidiarity principle co-exists with the conferral principle (art 5(2)), according to which the union acts only within the limits of competences conferred upon it by member states, and the proportionality principle (art 5(4)), according to which the content and form of union action shall not exceed what is necessary to achieve the objectives of the two foundational treaties. Article 5 is supplemented by the protocol (no. 2) on the application of the principles of subsidiarity and proportionality, which sets out a number of procedural requirements. These include that (art 2) before proposing legislative acts, the commission shall engage in consultations that, where appropriate, take account of the regional and local dimension of the action; (art 4) draft legislative acts as well as amendments (broadly defined to include requests from the European

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Court of Justice and European Investment Bank, as well as recommendations from the European Central Bank) shall be forwarded to national Parliaments by the European Commission, European Parliament, and Council of Ministers; (art 5) draft legislative acts shall contain detailed statements of compliance with the principles of subsidiarity and proportionality; (art 6) any national Parliament may send to the presidents of the European Parliament, council and commission a reasoned opinion as to why a draft does not comply with the principle of subsidiarity, and this opinion triggers a process (art 7) under which the proposal can be reviewed or even blocked through the council; (art 8) legal proceedings against infringement of the principle of subsidiarity may be brought to the Court of Justice by member states or for failure to consult by the Committee of Regions; and (art 9) the commission is to prepare an annual report concerning the application of art 5 of the Consolidated Treaties. Using Jenna Bednar’s terminology, through these procedures the EU has deployed not only “policy subsidiarity” – decentralizing policy authority to the greatest extent feasible – but also ­“safeguard subsidiarity” – decentralizing the review of constitutionality to the greatest extent feasible. See Jenna Bednar, “Subsidiarity and Robustness: Building the Adaptive Efficiency of Federal Systems,” Nomos 55 (2014): 231. 187 It should be noticed that this way of formulating the subsidiarity principle contains no inherent presumption about there being only two levels of government. See Richard Janda, “Reviving Federalism: Canadian Reflections on an American Dream,” Yale Journal of International Law 19 (1994): 207 at 209; and Yishai Blank, “Federalism, Subsidiarity, and the Role of Local Governments in an Age of Global Multilevel Governance,” Fordham Urban Law Journal 37 (2010): 509 at 534 ff. Nor is it obvious, as Prof. Gaudreault-DesBiens points out, that the “lowest” level of government necessarily has the greatest proximity to citizens: “‘Principle of Federalism’” at 111. 188 Prof. Brouillet, “Canadian Federalism and the Principle of Subsidiarity,” weighs into this debate (at 631): Either the principle of subsidiarity must remain confined to the sphere of de facto concurrent jurisdiction and the idea of efficiency must cease being the determining criterion for constitutional doctrines connected with the question of validity and leading to a centralization of powers, or else it must continue to play a role in questions of validity, but while also benefiting the provincial level of government. To refuse, as the second group of judges does, to invoke the principle to support the legislative powers of the provinces, even though the notion of efficiency is

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already used to support the powers of the federal parliament, can only neutralize the rebalancing potential that the principle of subsidiarity could bring to Canadian federative law.   Putting to one side her characterization of the current doctrine as built on the idea of efficiency, there is an odd trade-off implied in importing the concept of subsidiary for the narrow purpose of expanding provincial concurrency on condition that the Court, especially the judges who signed McLachlin CJ’s reasons, jettison certain criteria for the interpretation of federal powers. This is like saying that the modest corrective can be chosen over the more ambitious one, on condition that it be made even more ambitious than the latter. 189 See note 155. 190 This is apparently why Prof. Gaudreault-DesBiens (“‘Principle of Federalism’” at 109) characterized subsidiarity as a “a rule of conflict whose role is to support the implementation of the principle of autonomy inherent to any federal regime.” 191 114957 Canada Ltée (Spraytech, Société d’arrosage) at 249. 192 Pope Pius XI, Encyclical Letter Quadragesimo Anno §§79–80 (1931), trans., in The Papal Encyclicals 1903–1939, ed. Claudia Carlen (Ann Arbor, MI : Pierian, 1990) at 3:415, 428: http://www.vatican.va/ holy_father/pius_xi/encyclicals/documents/hf_p-xi_enc_19310515_ quadragesimo-anno_en.html. See also Thomas Hueglin, “Two (or Three) Tales of Subsidiarity,” Canadian Political Science Association, http://www .cpsa-acsp.ca/papers-2013/Hueglin.pdf, where Prof. Hueglin documents the Catholic and Protestant roots of this idea. The Catholic dimension is explored further in John Montgomery, “Subsidiarity as a Jurisprudential and Canonical Theory,” Law & Justice Christian Law Review 148 (2002): 46. 193 Elinor Ostrom, “Beyond Markets and States: Polycentric Governance of Complex Economic Systems,” Prize Lecture, 8 December 2009 at 408: Nobel Prize, http://www.nobelprize.org/nobel_prizes/economic-sciences/ laureates/2009/ostrom_lecture.pdf. 194 See Roderick Macdonald, “The Political Economy of the Federal Spending Power,” Queen’s Law Journal 34 (2008–9): 249, notably at 255; and Macdonald, “Kaleidoscopic Federalism,” in The States and Moods of Federalism, ed. Jean-François Gaudreault-DesBiens and Fabien Gélinas (Montreal: Yvon Blais, 2005), 261. 195 See Bruno Latour, Reassembling the Social: An Introduction to ActorNetwork-Theory (Oxford: Oxford University Press, 2005); and Latour, Enquête sur les modes d’existence: Une anthropologie des Modernes

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(Paris: Découverte, 2005). Prof. Latour’s dazzling account of the map of and trajectory toward Mont Aiguille in the latter work (at 84 ff.) inspired many of the reflections here. 196 Le Dain, “Sir Lyman Duff and the Constitution,” at 338; see also 264.

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12 Gerald Le Dain : Sur la société libre et démocratique Andrée Lajoie et Louise Rolland

In t ro du cti on Le juge Le Dain siégeait à la Cour suprême au milieu des années quatre-vingts, comme membre des premiers bancs de ce tribunal appelés à décider de pourvois où l’article 1 de la Charte1 était invoqué. À ce titre, il allait participer aux premières tentatives de définition du concept de « société libre et démocratique », critère ultime de la validité des atteintes législatives aux droits constitutionnalisés. L’importance primordiale de cette notion dans notre droit et le caractère particulièrement flou de son libellé nous ont amenées à nous intéresser au sens que chacun des juges siégeant alors à la Cour2, et conséquemment investis par la Constitution du pouvoir de formuler les premiers cette notion, apportait à sa définition dans ses bagages intellectuels antérieurs. Il s’est agi de cerner les images de « société libre et démocratique » présentes dans leurs écrits juridiques antérieurs à la Charte pour les comparer à leurs interprétations ultérieures de cette même expression, une fois constitutionnalisée. Nous avons posé à cet égard des hypothèses dérivées de l’analyse rhétorique et relatives aux facteurs susceptibles d’expliquer les variations repérables entre ces images pré-Charte et ces interprétations post-Charte, ce dont nous rendrons compte dans un texte synthèse prévu pour·1993. Mais nous avons voulu livrer ici, dans la revue de droit de son alma mater, une monographie du juge Le Dain, dont les écrits ont été soumis à un type d’analyse plus poussée, peu usuelle en

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droit, et choisie pour ce type de comparaison, lui-même peu fréquent dans notre discipline. Certes, les méthodes de détermination du sens donné par les juges aux expressions dont le législateur ou le constituant leur délègue l’interprétation ne font pas défaut3, et nous étaient disponibles pour cerner la signification attribuée par chacun des juges de la Cour après 1982 à l’expression « société libre et démocratique », telle que cons­ titutionnalisée à l’article 1 de la Charte. Mais il n’en allait pas de même pour les mots « société », « liberté » et « démocratie » tels qu’utilisés dans les décisions ou les autres écrits juridiques antérieurs à la Charte, car les juges n’étaient pas alors chargés de les interpréter (sauf peut-être « liberté », notamment dans le contexte de la Déclaration canadienne des droits4), et les invoquaient pour ainsi dire « gratuitement » dans leur prose. Ce faisant, ils n’en livraient pourtant pas moins des images – susceptibles d’infuser leurs interprétations ultérieures des mêmes termes – chaque fois qu’ils invoquaient ces concepts. Les méthodes d’interprétation du droit, avec leur bagage de présomptions et de règles formelles, n’étant pas appropriées à ce type de démarche, nous avons choisi une approche linguistique pour déterminer d’abord le sens des mentions expresses de« société », « liberté » et « démocratie », sous forme de nom ou d’adjectif, dans le corpus antérieur à la Charte de tous les juges de la « Cour Dickson ». Cependant, nous ne pouvions pas nous limiter au sens des mentions expresses pour éclairer vraiment les images que les juges entretenaient de ces concepts, car le non-dit importe autant, sinon davantage, que les références explicites – en droit comme ailleurs et, dans une perspective rhétorique, sans doute plus qu’ailleurs. Il fallait donc chercher à induire, à partir des textes silencieux sur société, liberté, démocratie, le sens sous-jacent de ces termes qui ne pouvait pas manquer de s’y trouver entre les lignes, comme référence et même comme fondement implicite de la plupart des textes juridiques, même non contentieux. Pour y arriver, nous avons poussé plus loin une démarche d’analyse linguistique du droit amorcée antérieurement avec le concours de Régine Robin5 et proposé à la fois un cadre théorique et des méthodes spécialement conçues pour l’analyse de l’implicite juridique6. Cette démarche posait des contraintes particulières, non seulement à cause du temps requis par les analyses sur lesquelles elle se base, mais à cause de ses liens étroits avec la facture même du texte dans lequel on recherche l’implicite. Il fallait donc, faute de temps, renoncer à soumettre la prose de tous les juges à ce deuxième type d’analyse et

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choisir au surplus notre échantillon parmi ceux dont tous les textes n’étaient dus qu’à leur plume. Nous avons pu établir avec certitude que tel était le cas pour le juge Le Dain7 et c’est cette étude plus approfondie de sa pensée, basée à la fois sur ses mentions expresses de société, liberté et démocratie, et sur le sens implicite que ses textes attribuent à ces mots, dont nous livrons ici le fruit, après un bref exposé des méthodes utilisées. S’agissant d’abord de l’étude du sens que les juges donnent euxmêmes explicitement au concept de « société libre et démocratique », elle repose sur un décodage préalable des mentions de cette expression repérées dans leur corpus. Par une analyse des énonces, adaptée par Régine Robin de la méthode de Harris 8 pour les fins d’une recherche antérieure9 on vise à dégager, le long du texte, les positions syntaxiques des termes dont on cherche à cerner le contenu. Par une série de transformations, l’expression dont le sens est recherché – ici « société libre et démocratique » – se trouvera en position de sujet dans la phrase, ce qui permettra de dégager tous les éléments cons­ titutifs du prédicat ainsi recueillis pour chacune des notions, des lors susceptibles d’éclairer dans une certaine mesure le contenu et l’orientation donnée à l’expression à l’étude. Ainsi, à titre d’exemple, les phrases : At the same time it is a necessary aspect of this adulthood that we accept certain principles or rules of the game which are essential to the effective operation of our democratic political arrangements in a world of increasing interdependence. The first is that while we may establish our democratic institutions by an act of contract, we must entrust their operation to the democratic principle of majority decision, subject, of course, to such limitations upon the expression of majority rule as are necessary for the protection of the fundamental rights and interests of minorities, as well as individuals [Canadian Constitution10 aux pp. 407-8 ; nos italiques]11. seront reformulées : « notre démocratie est (ou repose sur) un aménagement politique » ; « la démocratie a des institutions : les nôtres sont établies sur une base contractuelle » ; « la démocratie a un principe : la décision majoritaire ». Nous obtenons, par ces transformations, un premier prédicat de démocratie : notre démocratie repose sur un aménagement politique

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(institutionnel) établi sur une base contractuelle qui répond à la règle de la majorité. Replacé dans son environnement, ce prédicat se renforce et se nuance. Renforce par la structure syntaxique des propositions (l’une performative « while we may establish » qui entraine, dans un rapport de finalité, deux propositions prescriptives « it is necessary that we accept » et « we must entrust » qui ont toutes deux pour objet des principes et pour finalité le bon fonctionnement de la démocratie), il est nuancé par l’introduction de présupposés idéologiques (la maturité et l’interdépendance) permettant d’atténuer l’effet de la règle majoritaire au nom de la protection des droits fondamentaux des minorités et des individus. Se jouxte donc un second prédicat : notre démocratie protège les droits fondamentaux des minorités et des individus visant, dans le contexte d’un article consacré au centenaire de la Constitution canadienne, à éclairer la thèse défendue par le juge Le Dain : le bilinguisme est essentiel à la sauvegarde de l’unité canadienne. Cette première opération, orientée vers le contenu de l’expression sous étude, permet ensuite de cerner la fonction du matériel ainsi décodé à travers une analyse argumentative inspirée surtout de Perelman12 – notamment quant aux hypothèses relatives aux auditoires – mais aussi dans un contexte d’analyse du discours redevable des travaux d’Anscombre et Ducrot13. À l’étape finale, il devient ainsi possible de mettre aussi bien le sens que la fonction de l’expression analysée en rapport avec les contextes normatif et factuel d’une part et les auditoires de l’autre. Cette seconde phase de l’analyse s’applique non seulement aux mentions expresses de « société libre et démocratique » traitées selon la technique harrissienne, mais également aux concepts de « société libre et démocratique » induits des textes où il n’en est pas fait mention. L’induction de ces concepts remplace alors, dans la première opération, l’application de la ­technique harrissienne. Pour réaliser cette induction, nous avions, dans un premier temps, procédé en repérant d’abord les formes du discours14 aussi bien argumentatives (syllogismes, syllogismes tronqués, réseaux des analogies et des comparaisons) qu’énonciatives (système de pronoms et de nominations figurant le degré de distance de l’énonciateur ; système de modalités marquant les atténuations, les certitudes, les hésitations ; sèmes mélioratifs ou dépréciatifs ; formes prescriptives, définitoires, présuppositionnelles ou tronquées, signalant la trace d’un non-dit). Ces formes ainsi repérées et analysées éclairent alors le fonctionnement

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des assertions, des inférences et des présupposés qui, mis en rapport avec la thématique du texte analysé, devraient permettre le repérage des images de « société libre et démocratique ». Cependant, nous avons dû constater qu’un tel repérage, lorsqu’il est effectué sur une base uniquement linguistique, débouche parfois sur des images parasites15, alors qu’il conduit à négliger des postulats implicites centraux à la pensée d’un juge16 : d’ou la nécessité de procéder dans le sens inverse, soit en allant des postulats obligés et des sens compatibles vers les formes privilégiées du discours dans lesquelles ils se matérialisent, faute de pouvoir toujours, comme dans la présente démarche exploratoire, mener les deux parallèlement pour ne les réconcilier que dans un deuxième temps. Cette induction ne s’est donc complètement matérialisée, pour le corpus du juge Le Dain, qu’en recherchant le sens de « société libre et démocratique » nécessairement postulé par – ou le cas échéant, les sens alternatifs compatibles avec – l’économie générale du texte analysé, en partant donc du concept pour aller vers les formes discursives, dans une seconde démarche qui s’est finalement imposée à nous. Ces postulats obligés et / ou ces sens compatibles se matérialisent, ou se trahissent parfois, à travers les caractéristiques argumentatives et discursives déjà mentionnées. Leur repérage sert alors d’appui à l’induction de l’implicite, qu’il ne suffit pourtant pas à faire affleurer: c’est dans le lien entre ces formes et les postulats obligés ou les sens compatibles, qu’il faut cerner l’implicite. À titre d’exemple, dans l’affaire des Gens de l’Air, le juge Le Dain est saisi d’un litige relatif à la politique linguistique canadienne. Deux lois sont en cause, la Loi sur les langues officielles17 et la Loi sur l’aéronautique18, en vertu desquelles sera analysée la validité de l’ordonnance ministérielle19 imposant l’usage exclusif de l’anglais dans les communications aériennes. La forme définitoire adoptée par le juge pour établir l’objet de la première loi mentionnée : est plus qu’une simple déclaration de principe ou l’expression d’un but ou d’un idéal général. […] [M]ais il est également l’affirmation du statut officiel des deux langues et du droit strict d’employer le français, tout comme l’anglais, dans les institutions du gouvernement fédéral [à la p. 379]. sera tronquée quand il s’agira de lever l’incompatibilité d’application simultanée des deux lois :

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En ce qui concerne les langues, ces deux textes législatifs traitent de deux objets différents. Leur but est aussi diffèrent. La Loi sur les langues officielles proclame la reconnaissance du français et de l’anglais comme langues officielles. La Loi sur l’aéronautique réglemente la langue employée dans les communications aéronautiques afin d’assurer la sécurité dans la navigation aérienne [à la p. 383]. Non seulement la définition déjà établie est-elle tronquée quant à l’objet de la Loi sur les langues officielles (par l’omission des mots « l’affirmation du statut », etc.), mais l’exercice proposé par le juge pour résoudre le conflit entre les deux lois est amputé de l’une de ses parties : le but de la première loi est passé sous silence, occulté par son objet. Cette technique argumentative, appelée par Perelman « l’attitude diplomatique », permet d’éviter de faire un choix qui mènerait, en cas d’incompatibilité, à sacrifier l’une des valeurs en présence. Il s’agirait là, selon le père de la nouvelle rhétorique, de l’attitude privilégiée par les juristes. Le juge Le Dain, ce faisant, sauvegarde un principe qui lui est cher, le bilinguisme canadien. Au terme de cet abrégé méthodologique, il nous reste, avant d’aborder le corpus du juge Le Dain, à indiquer ses éléments. Il comprend un ensemble représentatif20 de tous ses écrits juridiques publiés depuis la fin de ses études de droit jusqu’à présent : la liste et la justification des exclusions apparaissent en annexe21. Il s’agit d’abord des articles qu’il a publiés lorsqu’il était professeur de droit à l’Université McGill, puis premier doyen à Osgoode Hall, et des décisions qu’il a rendues ou auxquelles il a participé d’abord en Cour d’appel fédérale, puis en Cour suprême, avant et après la Charte (sous réserve des exceptions justifiées en annexe), mais aussi du Rapport sur l’usage non médical des drogues22, auquel son nom est attaché. En vue de la rédaction en français de cet article et de notre rapport de synthèse, nous avons travaillé dans les textes français officiels lorsqu’ils existaient (décisions et Rapport), mais en prenant soin de vérifier chaque fois la présence de contenus ou de formes identiques dans la version anglaise. Nous avons également tenu compte, mais différemment, du fait que les décisions d’appel et le Rapport étaient respectivement cosignés. Pour les décisions, nous avons procédé, en ce qui concerne l’analyse des mentions expresses, en donnant une importance plus grande à celles qu’il signe comme rédacteur qu’à celles auxquelles il donne simplement son accord, sans écarter ces dernières pour autant, compte tenu qu’en

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y souscrivant le juge endosse leur contenu, et cela du point de vue d’un juriste et donc à partir de la même discipline. S’agissant par ailleurs du repérage de l’implicite, il a cependant fallu – compte tenu de la dépendance de cette démarche à l’égard des formes du discours – écarter les décisions auxquelles le juge avait simplement donné son accord sans les rédiger. Pour le Rapport, signé par une majorité de commissaires, et dont certaines parties relevaient de disciplines autres que le droit, comme par exemple la pharmacologie, il était impossible de l’attribuer d’emblée dans son ensemble au seul Président de la Commission. Nous nous sommes donc adressées au juge Le Dain lui-même, qui – en l’absence, dans ce contexte, des contraintes qui se seraient imposées à lui à propos de décisions judiciaires – nous a aimablement indiqué qu’il avait rédigé l’ensemble du rapport majoritaire, à l’exception des annexes techniques. Le Rapport ainsi délimité a donc été inclus dans le corpus soumis à une analyse qui a présenté certaines particularités. En effet, bien que le Rapport contienne de nombreuses mentions expresses de « société » et « liberté » (mais aucune de « démocratie »), il était impossible de rendre justice à ce texte en nous limitant à l’analyse harrissienne de ces mentions sans tenir compte également de l’implicite, comme nous l’avons fait en présence de telles mentions dans les textes plus courts du corpus. Nous lui avons donc appliqué une synthèse des deux méthodes, en trois étapes : analyse des mentions expresses, des structures d’énonciation (qui dit quoi, à qui) et des structures argumentatives (but de l’énoncé). L’application à un corpus ainsi déterminé de la double analyse des mentions expresses et de l’implicite, selon les modalités exposées, nous a permis de dégager les images pré-Charte de « société libre et démocratique » chez le juge Le Dain. À travers la synthèse des résultats intégrés de cette double analyse, nous rendons compte ici de ces images (I), pour pouvoir les comparer à ses interprétations post-Charte de cette expression une fois constitutionnalisée (II) et discuter ensuite les hypothèses perelmaniennes sur l’influence des auditoires (III).

I.  L e s im ag e s pré- Charte A. Société Le juge Le Dain invoque volontiers la société dans les textes qu’il a choisi d’écrire, comme la plupart de ses articles doctrinaux, où domine

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l’image de société vue comme un tout personnifié, et le Rapport sur l’usage non médical des drogues, où elle est présentée surtout en termes d’ensemble relationnel. Par contre, c’est un mot totalement absent de ses décisions de la Cour d’appel fédérale, où l’on ne repère aucune mention expresse du mot « société » : il a fallu en conséquence l’y induire de l’implicite de son discours. Mais une analyse détaillée de l’ensemble de son corpus révèle que ce terme présente une grande polysémie dont on peut proposer le regroupement sous quatre chefs : la société comme ensemble relationnel, comme tout personnifié, comme tout réifié et, finalement, comme lieu. 1 . La so c i é t é c omme e nse mb l e re l at i o n n e l La première image de société, dominante dans le corpus du juge Le Dain, la présente comme un ensemble intégré autour d’une activité collective et organisée (Rapport II), formée de groupes et d’individus. C’est une image dynamique, la plus ouverte de celles qu’il propose, connotant la justice sociale, le changement institutionnel, la réforme. Formée de groupes et de sous-groupes, de milieux, voire de classes, auxquels l’ordre social et économique assigne une position relative : munis et démunis ; défavorisés économiques et psychologiques ; minorités raciales et ethniques (Quest for Justice) ; Canadiens français et Canadiens anglais (Canadian Constitution), la société doit leur permettre de s’affirmer et veiller à leur épanouissement, par exemple par l’introduction de l’asymétrie dans la Constitution canadienne (Canadian Constitution). Ce premier élément d’une image de société perçue comme un ensemble relationnel, où Le Dain souligne la présence des groupes, exerce dans son discours une fonction d’invitation au changement, à la réforme des institutions. À d’autres égards, l’appartenance à certains groupes est connotée moins favorablement, comme l’une des causes de problèmes sociaux. L’auteur vise alors les groupes engendrant le conformisme (Rapport III) : la société abrite des milieux exerçant des influences plus durables que celle de l’information, et certains d’entre eux prédisposent alors à l’usage non médical des drogues (Rapport XIII), même si le milieu ne peut, à lui seul, expliquer cet usage et ne constitue qu’un facteur parmi d’autres, tels la personnalité, les traits psychiques, l’école, les camarades, le niveau de revenu (Rapport III). Mais c’est surtout comme formée d’individus que Le Dain se représente la société, et l’axe individu / société – où la société pour une part prend / pour une part donne – est central à sa pensée. Les

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individus sont donc en même temps et nécessairement membres de la société; ils ont une valeur et de l’influence dans des champs déterminés et leurs attitudes varient – suivant qu’ils agissent à un titre ou à l’autre, selon leurs expériences et leurs implications variées, dont la société a besoin (Rapport II; Quest for Justice). La société a des responsabilités à l’égard de ses membres, car ce sont entre autres les conditions sociales qui sont la cause de leurs problèmes (Quest for Justice). C’est elle qui leur attribue un statut; elle doit leur assigner leur juste place, leur permettre de s’affirmer, favoriser leur développement personnel (Quest for Justice); elle les protège notamment contre le chômage (Georgas ; Rondeau ; Pirotte ; Lodge ; Kang) car un emploi satisfaisant et des relations sociales saines sont nécessaires à leur épanouissement personnel, ce qui est particulièrement difficile pour les criminels victimes de stigmates (Rapport V) et les usagers de la drogue (Rapport IX). Elle les protège également contre la détérioration des conditions sociales (Quest for Justice), et contre la criminalité (Francis 1977). Une telle représentation de la société sert une fonction complexe : justifier à la fois le contrôle social et ses limites. Ce statut, attribué par la société à ses membres, est lié aux possibilités d’éducation qu’elle leur offre et ne doit pas dépendre des classes sociales. L’égalité des chances constitue pour le juge Le Dain le fondement peut-être le plus important de la justice sociale et sans doute le principe auquel il est le plus attaché : il en fera à la fois le thème central de « Quest for Justice », où les mentions de ce terme abondent, et la trame sous-jacente de plusieurs de ses décisions, notamment pour justifier ce qui apparait comme une méritocratie (Bullion* ; Khan* ; Greaves*). C’est également sur l’intégrité du système judiciaire et le principe de légalité que le juge Le Dain base sa notion de justice sociale, dont les fondements ne sont pour lui pas seulement moraux mais utilitaires, dans la mesure où l’intégrité et surtout la méritocratie évitent la perte de ressources humaines précieuses. Sa notion réfère en outre à son idéal des relations entre les êtres humains, matérialisé dans la juste application des lois et des ententes, dans l’exercice de l’autorité, dans les relations humaines, les conditions sociales en général (Transfer of Property ; Quest for Justice). C’est la responsabilité des juristes d’allier conscience sociale et compétence technique pour assurer la justice sociale (Quest for Justice). Cet élément central de la pensée de Le Dain révèle son côté progressiste et lui permet de valoriser tous les changements sociaux qu’il préconise.

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Lorsqu’il s’inscrit dans un contexte judiciaire, son discours se fait particulièrement réaliste – la description des faits a un effet directionnel, l’équité l’emporte sur la recherche pure de cohérence juridique – et les arguments sont présentés dans un rapport de finalité visant l’ancrage du principe de l’égalité des chances, par exemple, comme une fin en soi, dont le processus de sélection des candidats, prévu par la loi et les règlements, ne constitue qu’un moyen de réalisation. Cette technique discursive a pour effet de créer un phénomène d’ampleur, de dépassement, permettant d’induire l’importance que le juge y accorde. Ainsi, dans l’affaire Greaves, il écrira à la p. 811 : « Je crois que le principe du mérite a été conçu pour faire plus que simplement assurer la nomination de personnes qualifiées à des postes de la Fonction publique. Il a pour objet de trouver les personnes les mieux qualifiées parmi celles qui sont disponibles. » Mais en retour de ce statut et de cette protection, de cette égalité des chances, la société impose à ses membres non seulement des responsabilités, mais également des devoirs, et même l’obligation de partager certaines valeurs comme la loyauté envers l’employeur et la franchise absolue, même sur une question de détail (Quest for Justice* ; Vachon ; Francis 1977). Elle réclame le droit d’exiger de l’individu certains apports en le menaçant de sanctions juridiques, car autrement elle redouterait que ses forces vives ne soient minées (Rapport V): certains de ses membres craignent l’affaiblissement psychologique et moral lié à l’abus de stupéfiants (Rapport V) et la vie en société exige une adaptation de ses membres et une réadaptation des usagers de drogues (Rapport IX). Contrairement aux usagers des drogues licites, celui qui consomme des drogues illicites a déjà délaissé la société (Rapport III) avant que celle-ci ne l’exclue comme criminel (Rapport V). Néanmoins, le premier but de la réadaptation est la réintégration de l’individu dans le système social (Rapport XI), soit directement, soit parallèlement à des mesures d’inculpation et de châtiment (Rapport VII), et son succès dépendra ultimement de la stigmatisation d’une condamnation, de son influence sur l’attitude des autres personnes. On sent là le discours se refermer sur la justification de solutions spécifiques du contrôle social. Les positions changent sur l’axe individu / société : l’individu est infantilisé, la société devient père et juge. Dans les affaires judiciaires, l’axe se transforme dans un rapport de l’individu à la loi, de la loi au Parlement; le juge est absent. Ainsi, dans l’affaire Francis 1977, malgré ses convictions favorables à l’exercice du droit d’appel, le juge le refuse à un étranger sans statut qui avait

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commis un acte criminel. Il écrira à la page 72 : « Par conséquent l’appelant ne relevait pas du sous-alinéa (vi) de l’article 18(1)e) de la Loi sur l’ immigration ni d’un autre sous-alinéa […] ; il n’avait pas le droit de se faire inscrire en vertu dudit article 8 ni d’en tirer avantage […] ». On note les tournures particulièrement impersonnelles, le style formaliste, en recherche de cohérence juridique: l’équité semble inexistante ou plutôt elle est remplacée – et ce remplacement est justifié – par des arguments acte / personne, ou les personnes sont jugées à la valeur de leurs actes : ici, le manque de loyauté, le mensonge, la commission d’un acte criminel privent du bénéfice de la loi. Le discours est mené par des actants inanimés – la loi, le règlement, l’ordonnance répondent aux faits dans un raisonnement formel – et pourtant le raisonnement, en apparence syllogistique, camoufle à peine le degré d’interprétation que la règle de droit commande. Ainsi dans l’affaire Pirotte aux pages 316-17: « Le problème, tel que je le comprends, c’est de savoir s’il est raisonnable de penser, dans ce contexte législatif bien particulier, […] que le Parlement a pu vouloir […]. […] Ce que le Parlement a voulu dire, […] ». Du reste la notion de raisonnabilité est très présente, le juge s’alliant ainsi – par un jeu d’accord avec son auditoire, accord basé sur des présupposés d’évidence et de raisonnabilité – à la société tout entière par le biais de la loi. L’emploi du métadiscours permet une distanciation propice à des conclusions souvent très sévères : le juge en effet ne tient pas compte, du moins ouvertement, des conséquences de son jugement sur la vie des parties (expulsion du pays, refus d’accès, congédiement). En même temps, le métadiscours sert de facteur d’intégration: il permet d’amalgamer deux réalités potentiellement conflictuelles, révélant ici encore une attitude diplomatique à l’égard des incompatibilités. Se dégage donc globalement une première image de société comme un faisceau de relations réciproques entre un ensemble et des individus (Rapport II) : si la société a une influence profonde sur la formation du caractère des individus, en retour, ses propres réactions ne sont pas indépendantes ni dissociables de celles des individus et ses politiques ne seront efficaces que dans la mesure où leur mise en œuvre pourra compter sur une attitude de ·collaboration de la part des individus. Cette image de la société comme système d’interactions, d’interinfluences, est prédominante dans le Rapport mais discrète dans la jurisprudence de la Cour fédérale. Elle se manifeste d’abord par les formes de nominations de l’énonciateur: l’emploi du « nous » (de

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modestie ou de collégialité), dans le Rapport, donne, d’entrée de jeu, un effet communautaire qui débouche sur la forme prescriptive, propre à ce genre de texte, proposant ici des solutions de réintégration aux individus marginalisés. Le texte judiciaire, performatif en soi, est à cet égard plus ambigu: le juge s’inscrit parfois comme actant dans le discours par l’emploi du « je », jouant alors, comme en interaction avec la loi, un rôle de protection des individus, alors que, visant ailleurs à les exclure de cette protection, il se dissimulera derrière les textes législatifs par l’emploi de tournures impersonnelles et de formes définitoires. L’alternance entre le réalisme et le formalisme des jugements matérialisera également cette frontière: l’accueil bienfaisant de la communauté, par des procédés argumentatifs d’ampleur créant une ouverture, et l’exclusion, par des phénomènes de rupture – ou à un moindre degré de freinage – marqués par un métadiscours sévère, bien que toujours empreint de raison (de raisonnabilité). 2 . La so c i é t é c omme to ut p e rs o n n i f i é Une seconde image, déjà beaucoup plus … imagée, pose la société comme sujet de verbes appropriés à la description de l’activité d’une personne physique. Elle y apparait comme un ensemble structuré évoluant dans le temps, adhérant à des valeurs, entretenant des perceptions ; elle peut même subir des préjudices et des problèmes et dispose, pour leur solution, de moyens parfois insuffisants. La société se cristallise ici en un tout plus grand, différent de la somme de ses parties, indépendant donc de ses membres. Cette fiction permet d’ignorer les rapports de force, les intérêts divergents, la personnalité de ses composantes. Légitimation des organes publics, justification des politiques générales, souvent coercitives au nom de l’intérêt général, elle peut néanmoins être la cause de certains phénomènes parfois négatifs, mais restera toujours la finalité collective, le lieu privilégié de l’ordre et de l’harmonie. a. Un ensemble structuré  Dans cette seconde image, la société apparaît d’abord comme un système, un ensemble structuré, un ordre (Rapport XI) doté d’une tradition (Rapport), et ses institutions – famille, système d’éducation, droit – participent au contrôle social (Quest for Justice ; 1976 Convocation). Elle a aussi des buts, dont la réadaptation sociale, qui exige l’intégration de la vie des individus à l’intérieur de cet ensemble structure (Rapport XI). Pourtant, après une longue période de stabilité, ces institutions sociales et politiques se transforment (Quest for Justice) : en conséquence, le contenu de

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la tradition sociale ne peut servir de base à une propagande diffusée à travers l’information sur la drogue même si, par ailleurs, un nouvel ordre social ne saurait non plus être instauré par la drogue. Cette image de société de Le Dain oscille entre ces deux pôles, et cette bipolarité s’observe dans les fonctions de légitimation alternative du changement et du contrôle social assignées à cette image dans son discours : les juristes doivent être conscients des transformations sociales et y participer (Quest for Justice), mais aller trop loin en ce sens marginalise, et justifie les mesures de contrôle suscitées en réaction (Rapport). b.  Qui évolue dans le temps  Réapparaît ici le changement social, leitmotiv de la pensée de Le Dain, surtout dans le Rapport : la société évolue, change, se développe dans le temps (Canadian Constitution ; Quest for Justice ; Rapport XVI ; 1976 Convocation). Tantôt invitation aux changements structurels, tantôt constatation de changements réels, parfois prise dans un sens large où elle propose aux juristes – et aux familles pour lesquelles il est normal que cela ne soit pas facile (Rapport XVI) – de s’adapter aux changements (Quest for Justice), cette image est par ailleurs liée aux questions constitutionnelles. L’histoire et les origines de la société canadienne, héritage de deux grandes civilisations occidentales, justifient ainsi l’implantation d’un bilinguisme réel; c’est le destin du Canada et le défi très difficile à relever qui s’impose à lui (Canadian Constitution). L’évolution, le changement, le développement sont par ailleurs invoqués comme légitimation de modifications constitutionnelles proposées pour ­donner au Québec les pouvoirs nécessaires à son épanouissement (Canadian Constitution). En tout état de cause, les changements doivent, pour le juge Le Dain, s’inscrire dans la continuité: le passé est garant de l’avenir et doit l’orienter. L’invitation aux changements structurels (constitutionnels) est proposée dans une chaine d’épithètes – sèmes mélioratifs « truly bilingual », « rich », « great », « special », « enormously difficult » – qui sont entraînées par des substantifs inscrits dans le temps « development », « heritage », « destiny », « task » : « The development of a truly bilingual society drawing from the rich heritage of the two great civilizations of the western world is the special destiny and enormously difficult task which history has committed to Canada » [Canadian Constitution* à la p. 405 ; nos italiques]. Cette accumulation d’expressions émotives, apportée par les épithètes, agit comme un argument quantitatif rendant le changement

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incontournable, inévitable. Cependant, les changements en forme de rupture avec le passé, de révolution, sont présentés simplement comme un constat, à travers une structure dichotomique, disjonctive, allant de l’avoir vers la perte: « autrefois […] mais […] aujourd’hui ». Autrefois, on avait l’impression d’avoir le temps de tout faire avant de mourir ; aujourd’hui, on est moins disposé à attendre. […] Autrefois, on pouvait préparer son avenir, car on savait assez bien de quoi il serait fait et on avait lieu de croire que ce qu’on apprenait de ses parents et de ses maîtres serait utile dans la vie, mais les jeunes d’aujourd’hui n’ont plus cette assurance. (Rapport XVI à la p. 224) Ces changements bloquent l’avenir. Mais implicitement ils invitent moins au retour pur et simple au passé qu’au rétablissement du continuum. c.  Qui adhère à des valeurs  La société, pour Le Dain, a des valeurs, des aspirations, des fins – collectives et individuelles – qui peuvent être fondamentales et doivent se refléter dans le droit (Theory and Practice ; Security ; Alliance). Collectives, associées à un groupe particulier, en l’occurrence la société canadienne-française, elles pourraient, telles qu’exprimées dans le droit civil, justifier la dualité juridique canadienne matérialisée par la limitation de la portée du droit anglais sur le droit civil (Bills of Exchange) et même légitimer une chambre civile à la Cour suprême, si une telle structure ne compromettait la valeur, pour lui supérieure, de l’interaction entre les systèmes juridiques (Supreme Court). Associées, plus abstraitement, aux valeurs économiques et politiques, elles peuvent être enchâssées dans une Charte, et entraîner alors la spécialisation constitutionnelle de la Cour suprême, autrement injustifiable (Supreme Court). Les valeurs collectives pourraient donc avoir une fonction de légitimation de certaines structures judiciaires, mais seulement dans des circonstances très particulières. Rien d’étonnant dès lors si son discours conforte davantage les valeurs morales et les individus, dotés d’une place prépondérante dans la société (Quest for Justice). Pourtant, toutes les valeurs individuelles ne sont pas nécessairement morales pour lui, tel le matérialisme de la société de consommation, contesté par les jeunes au nom de fondements spirituels (Rapport XVI) : cette incompatibilité apparente sera levée par une hiérarchisation favorable aux valeurs spirituelles, remises en cause par la recherche du plaisir individuel (Rapport XVI).

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d.  Qui affiche des attitudes et des comportements  Pour Gerald Le Dain, la société a des perceptions et des attitudes, reflétées – notamment à l’égard de la drogue – dans la publicité, les médias et les comportements déviants des adultes, qui peuvent aussi bien prédisposer les autres à l’usage des drogues par la recherche du plaisir et ainsi se rendre impotents et inutiles (Rapport II, III) ou, au contraire, prôner le surmenage et la manie du travail, malgré tout utiles à la société (Rapport II). C’est surtout en regard de l’usage de la drogue que des attitudes et des comportements sont prêtés à la société: source d’aliénation provoquant l’usage des drogues (Rapport XV), de difficultés poussant à l’usage et contribuant par là à entretenir la toxicomanie, elle est l’un des facteurs de vulnérabilité aux drogues, qui ne serait jamais mise à l’épreuve sans l’offre illicite qui s’y déploie (Rapport III). Ce rôle causal est moins fréquemment attribué aux images de société dans le corpus que d’autres fonctions confortant plutôt les recommandations à venir du Rapport : la société comprend le bien-être procuré par les drogues, ce qui compense les dangers associés à leur usage (Rapport V), mais elle craint les stupéfiants pour des considérations indépendantes des altérations physiques et psychiques causées aux individus (Rapport V). Consciente du caractère déconcertant du phénomène, ses attentes n’en seront que plus réalistes (Rapport II) : elle voit certains délits comme de moins en moins graves (Rapport V), et doit avoir une attitude accueillante à l’égard du traitement et de la surveillance des drogues (Rapport IX). On sent affleurer à la surface du discours les fonctions prépondérantes assignées par l’auteur à ces images particulières de société : affirmer la responsabilité sociale, certes, mais surtout légitimer les solutions avancées par le Rapport et, par-delà, l’existence même des commissions d’enquête (Public Inquiry). Conçues pour retarder le processus d’adoption d’une politique sociale, les enquêtes publiques et les commissions qui les instituent permettent, selon Le Dain, l’évolution des perceptions, des attitudes et des comportements sociaux, influençables à travers les groupes constitutifs du tout structuré, mais composite, que forme la société (Public Inquiry). e.  Qui court des risques et peut subir des préjudices  Cette société personnifiée encourt des risques et a des problèmes complexes (Public Inquiry) ; elle a des tares, dont l’alcoolisme (Rapport IV); et des problèmes de santé publique, dont l’abus des drogues (Rapport VI). Elle peut en subir un préjudice, être troublée et alors devoir en payer le prix (Quest for Justice). Elle souffre des effets des comportements

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individuels, des actes antisociaux et de l’usage des drogues, même en l’absence de dommages individuels (Rapport V) : les effets des comportements suicidaires lui sont plus néfastes qu’aux individus (Rapport II) et elle fait les frais des habitudes de délinquance à travers le traitement et le soutien fournis aux toxicomanes et aux personnes à leur charge (Rapport IV, V). L’imputation de tels comportements à la société a pour fonction de légitimer une intervention, publique le plus souvent. Ainsi, des arguments de comparaison viendront appuyer la réforme du système judiciaire proposée dans « Quest for Justice » : « We all know the man who becomes absorbed in his case to the neglect of his business. A society so absorbed must inevitably pay a price in productive enterprise [a la p. 29] ». Des arguments d’amplification auront par ailleurs un effet directionnel vers une solution controversée : dans les chapitres préliminaires du Rapport, l’énonciateur sème des assertions comme « la société est lésée […] », « la société est menacée […] »23 par l’usage des drogues, ce qui lui permet, en bout de ligne, d’affirmer que le législateur doit intervenir. Et d’ajouter que dans les cas où la société n’est pas menacée, le législateur ne doit pas intervenir. Rien d’étonnant dans ces circonstances à ce que le dernier élément de cette image composite de société personnifiée connote précisément les solutions que peuvent matérialiser ces interventions. f. Pour lesquels elle dispose de solutions  Pour contrer ces risques et remédier à ces problèmes, la société, qui dispose d’expertise, de moyens, même s’ils sont parfois insuffisants, doit offrir des réponses, des traitements (Rapport IX). Elle a besoin pour cela d’une politique judicieuse, dont les objectifs sont difficiles à définir, et qui devront prendre en considération tous les facteurs susceptibles d’influencer un phénomène. C’est le gouvernement qui jugera de la prudence de ses initiatives (Rapport II), car la société emprunte une approche différente du processus politique et la faisabilité sociale se distingue de la faisabilité politique : il y a interaction entre le problème (social) et la réponse (politique). Mais au surplus, pour Le Dain, les politiques sociales ne sont pas nécessairement pertinentes ou réalistes quand elles ne sont pas conformes aux attitudes personnelles des individus : les décisions sur les problèmes sociaux doivent être prises par le public (Public Inquiry), qui ne tolèrerait pas un État policier pour combattre les problèmes sociaux créés par la drogue (Rapport V). Ces images de société en interaction avec l’État dans la difficile tâche de définition des solutions politiques disponibles et acceptables

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en matière de contrôle social visent avant tout à légitimer les solutions proposées dans les conclusions du Rapport, et par-delà ces propositions, la Commission et l’enquête elles-mêmes, qui ont mené à ces définitions. C’est d’ailleurs le rôle prépondérant qu’assigne Le Dain à l’ensemble de cette seconde image : invoquer la société comme une personne disposant de tous ces attributs et capable de tous ces comportements, c’est d’une certaine façon s’abriter derrière elle et lui imputer les solutions qu’on avance. Dans le discours judiciaire, ce n’est pas là une fonction exceptionnelle pour le concept de société. En effet, tous les juges dont nous avons analysé le corpus y ont eu recours à des fins globalement semblables : justifier leurs positions respectives. Si le contenu spécifique de ces images de société personnifiée varie, c’est selon les valeurs qu’ils lui prêtent et les comportements qu’ils lui imputent, eux-mêmes reliés aux contextes dans lesquels ces images sont formulées, mais c’est bien de légitimation qu’il s’agira dans tous les cas … La forme langagière prédominante de cette image est sans contredit l’emploi de la société comme qualificatif : l’ordre social, le contrôle social, les transformations sociales, les problèmes sociaux, les politiques sociales, les valeurs sociales, les aspirations sociales, les perceptions sociales, les attitudes sociales, les comportements sociaux. Le qualificatif permet ainsi, par le truchement d’un présupposé implicite, une transposition de tout ce qui est normalement attribué à la personne, bref : un changement d’ordre. Le procédé permet de rejoindre la collectivité, mais une collectivité indifférenciée, amalgamée … sans qu’il ne soit nécessaire de faire de distinction, sans qu’il ne soit nécessaire d’établir des proportions. Quand en effet le discours personnifie une société donnée, de qui parle-t-il ? De la majorité, simple ou absolue ? Du groupe dominant ? Ou du comportement idéal assigné par l’auteur à une majorité abstraite? 3 .  La s o c i é t é c omme un to u t ré i f i é Beaucoup moins fréquente et par ailleurs nettement plus réduite dans son envergure, l’image de société comme un tout réifié la désigne non pas comme un sujet agissant dont l’auteur doit tenir compte et derrière lequel il peut s’abriter, mais comme un objet: un cadre d’analyse pour les problèmes éthiques, juridiques, économiques, philosophiques et moraux (Rapport XII) ; une réalité que le droit doit refléter (Security) ; un objet de recherche à titre de facteur causal, parmi d’autres, de l’abus des drogues (Rapport I, II et III) et d’étude pour les étudiants

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en droit (Theory and Practice); un facteur d’interprétation du Code civil (Teaching Methods) et de définition des politiques de bilinguisme au Canada (Canadian Constitution). Certes, la fonction de causalité est présente, et proportionnellement plus importante pour cette image de société moins développée que la précédente, mais c’est encore la légitimation qui domine, surtout celle de l’étude des facteurs sociaux par la Commission sur l’usage non médical des drogues, à laquelle par ailleurs s’ajoute aussi l’importance des facteurs sociaux dans l’étude du droit et, implicitement, dans sa création. 4 .  La so c i é t é c o mme l i e u Cette dernière image de société, la moins fréquente du corpus de Le Dain et plus fermée encore, se présente comme la plus négative malgré certains contrepoids. Elle fait de la société un territoire « fermé » – littéralement – où l’immigration est un privilège (Laurent* ; Woldu* ; Alleyne*) – et symboliquement – où les usagers pourraient subir leur peine (Rapport V) ; pourtant, les jeunes qui ont déjà purgé leur sentence sont impatients de la réintégrer (Rapport X). C’est aussi un lieu ou l’habitude de boire est acceptée … parce qu’elle facilite les relations de travail (Rapport III) ; pourtant, c’est également un lieu ou il y a beaucoup à faire à part se droguer, comme exercer des activités bénévoles auprès des jeunes, des personnes âgées, des handicapés, des pauvres et des défavorisés (Rapport XVI). Moins cohérente que les autres, cette image éclatée se voit assigner des fonctions plus disparates : explicative à l’égard des comportements sociaux, amplificatrice quant aux possibilités de réhabilitation, elle est surtout justificative comme l’ensemble du discours du Rapport dont elle est surtout tirée. Pour cette image, lorsqu’elle s’inscrit dans le discours judiciaire, une structure de rédaction récurrente : l’auteur escamote la description des faits (le débat a lieu le plus souvent sur la compétence de l’organisme ou sur l’application des règles de justice naturelle) et établit un dialogue entre les arguments de l’appelant et ses propres motifs. D’une part, le silence sur les faits supprime le fondement éventuel de mesures d’équité; d’autre part, une structure dialogique, dans un appel, est toujours fatale pour l’appelant. Le discours énoncé au nom de la Cour dans les jugements rendus oralement, ou encore le « nous » collégial de l’écrit, créent une distanciation importante – sinon un déséquilibre – entre l’individu et l’institution. L’emploi répété de négations (voire de négations alourdies comme « l’exercice de ce pouvoir ne constitue

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aucunement ») combine à l’emploi de lieux comme « il est évident», « manifestement », « il convient de considérer », « il est raisonnable de déduire », ferment le discours et confirment la décision de l’administration, le plus souvent une ordonnance d’expulsion. B. Liberté Chez le juge Le Dain, le terme de liberté est beaucoup moins polysémique que celui de société: l’analyse des mentions expresses de ce mot, comme du sens implicite que lui confère l’ensemble de son discours, ne livre que deux images, celle de la liberté individuelle et celle des libertés juridiques fondamentales. 1 .  Les l i b e rt é s j ur i di que s fo n dam e n tal e s Dans cette période pré-Charte, aucun droit ni aucune liberté n’a encore été constitutionnalisée, sauf implicitement et notamment par un arrêt rendu au nom de la Cour suprême par le juge Duff24. Au départ, il ne semblerait donc pas indifférent que Le Dain ait choisi de consacrer une monographie à la pensée constitutionnelle de Sir Lyman Duff où il est beaucoup question des libertés démocratiques fondamentales. Cependant, le texte de Le Dain se présente dans un style très formaliste et descriptif où l’auteur n’assume jamais expressément le point de vue de celui dont il analyse la pensée. Or – sauf lorsque, à titre de juge, il sera involontairement saisi de l’interprétation des libertés mentionnées dans la Déclaration canadienne et rendra des décisions qui leur seront majoritairement défavorables – l’on ne retrouve dans le corpus pré-Charte de Le Dain que deux autres mentions expresses des libertés fondamentales. Sa première autre prise de position expressément favorable aux libertés fondamentales se trouve dans un autre article de doctrine (Public Inquiry) où il rejette, au nom de la liberté de conscience et d’expression, la légitimité des enquêtes publiques destinées à déterminer la culpabilité ou l’innocence d’une personne, comme contraire à la maxime de common law « nemo tenetur se ipsum accusare ». Là aussi, il faut le noter, il le fait, par l’entremise d’un mécanisme rhétorique valorisant, que Perelman désigne comme « l’argument de double hiérarchie », établissant une corrélation entre une hiérarchie déjà admise (ici la liberté de conscience et d’expression) et une hiérarchie discutée, la maxime de common law, pourtant abrogée, et qu’il tente de réhabiliter au détriment d’une règle de preuve codifiée en

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remplacement. Par ailleurs, c’est par un phénomène de retenue judiciaire qu’il reconnaîtra la prédominance de la liberté de religion sur les règles de sécurité au travail, en confinant la compétence spécialisée du tribunal canadien des droits de la personne, dans une opinion dissidente qu’il inscrit en 1983 (Bhinder*). Cependant, il faut prendre en compte le résultat de l’analyse de l’implicite de ses jugements de la Cour d’appel fédérale en matière de droit du travail : toutes les décisions qu’il y rendra relativement à la liberté d’association – dans la mesure du moins où il s’agit d’accréditation, dont il traite sans référer explicitement à la liberté – y seront favorables (North Canada Air* ; Syndicat Général Cinéma Télévision* ; Travailleurs unis du télégraphe* ; Francis 1981*). C’est au contraire à un procédé de dévalorisation à l’égard des libertés fondamentales qu’il a recours dans ses décisions en Cour d’appel fédérale où il mentionne les libertés reconnues par la Déclaration canadienne, dans le contexte de son application à des litiges survenus dans d’autres champs que celui du droit du travail (Zong ; Denis ; Stewart ; Vachon ; Rothmans). Elles y seront présentées comme l’argument de l’une des parties et contrées par le juge, faisant prévaloir tantôt l’intention du législateur, tantôt le renoncement consenti par la partie qui l’invoque. L’inscription des libertés fondamentales dans la Déclaration canadienne ne semble pas avoir, pour le juge Le Dain, modifié l’ordre juridique canadien: au contraire, cette loi (il ne lui accorde manifestement qu’un statut législatif sans aucun effet sur la hiérarchie des normes) apparaît comme une intruse dans son discours judiciaire. La notion de due process of law prendra toujours le pas sur cette proclamation des droits fondamentaux. Le Dain semble partager le courant majoritaire réticent dans l’application de la Déclaration canadienne : il avait pourtant exprimé une opinion différente sur l’effet éventuel de l’enchâssement des droits fondamentaux dans la Constitution canadienne, y voyant une raison suffisante à la réforme de la Cour suprême (Supreme Court). La fonction de l’expression « liberté », presque toujours amenée dans le sens figé des termes de la Déclaration canadienne, est en quelque sorte négative : elle vise à permettre le rejet d’un argument. 2 .  La lib e rt é i nd i v i due l l e Dans la pensée de Le Dain, la liberté individuelle a un statut plus vulnérable encore que celui des libertés juridiques, comme la liberté

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de parole, et ne jouit par conséquent pas des mêmes immunités (Rapport IV). Il la voit pourtant comme un attribut essentiel de la dignité humaine (Rapport VII) qui – n’étant cependant pas innée – ne constituerait pas un but en elle-même (Rapport II). Il la voit comme liée à l’adaptation, aux compromis ; elle doit être ordonnée (Quest for Justice). La liberté individuelle, abordée surtout à l’occasion de sujets plus sociaux que politiques ou juridiques, constitue ainsi une valeur à apprécier sur une échelle dont les coordonnées sont essentiellement morales et sociales (Quest for Justice ; Rapport). Il y à la bonne liberté : endiguée, elle favorise le plus grand épanouissement des individus (Quest for Justice); et la mauvaise, transgressant, à baliser chez l’individu pour sauvegarder la liberté de tous (Rapport V). La liberté, dans le contexte de cette image, n’est jamais vue comme une fin en soi, mais toujours comme un moyen. Or, on le sait, en rhétorique, donner à une notion ou une réalité le statut de moyen, c’est automatiquement la déprécier. D’où la bipolarité morale de bonne ou mauvaise liberté selon la fonction assignée : assurer l’ordre social ou participer au bien-être collectif. La liberté individuelle a donc, à certains égards, une fonction collective : dans la mesure où elle ne nuit pas à l’ordre social, elle sera épanouissante pour l’individu lui-même, mais elle ne justifiera jamais la marginalité. a. Une condition de l’ordre social  Pour Le Dain, là où existe un grand sens de la liberté, on peut espérer une vision plus juste de la famille, de même que la nécessité de compromis et d’adaptation requise par l’ordre social. Pour lui, la famille, élément essentiel au développement et à l’épanouissement de l’individu, est une condition préalable à l’application effective du principe d’égalité des chances, garant de la justice sociale. De même, la liberté individuelle se situe au fondement de l’intervention juridique dans le domaine de la moralité personnelle, dans la détermination et la sanction de ce qui est socialement nuisible (Rapport ; Security). Il y voit une limite de la portée du droit dans l’ordre social: son aspect purement régulateur ne doit pas entraver la poursuite des objectifs créatifs des individus. Comme pour certaines images de société, le concept de liberté individuelle proposé ici par Le Dain se voit assigner une double fonction : justifier à la fois le contrôle social et ses limites, dans un équilibre à définir en tenant compte de ses exigences. Identifiée, par formule définitoire, à un idéal, donc à un objectif à atteindre et qui ne le sera jamais vraiment, elle est alors présentée comme obéissance, obéissance à un processus inscrit dans des formes prescriptives par une description stéréotypée

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de conditions propices sinon essentielles : le juge se dispense ainsi de prendre en compte la réalité et tous ses aléas. Rien donc d’étonnant si son image de liberté en fait un objet d’apprentissage. b. Un objet d’apprentissage  La liberté est une aptitude à l’autonomie issue du sage exercice du libre choix (Rapport II). La « bonne » liberté obéit donc à une norme ; elle est relative à un certain nombre de valeurs en place, dans une société donnée (Rapport V). Cette aptitude s’acquiert dans la famille, par le développement de la personnalité des enfants. Dans la section du Rapport consacrée aux causes de la toxicomanie, les seules mentions de liberté sont du reste étroitement reliées à celles de la famille ; d’ailleurs, la liberté comme la famille sont expressément connotées moralement : comme il y a une « bonne » et une « mauvaise » liberté, il y a de bonnes et de mauvaises familles. Les rapports établis par Le Dain entre liberté et famille sont soulignés par un discours valorisant, idéalisé, parsemé des sèmes mélioratifs : les enfants doivent pouvoir développer leur personnalité dans un milieu ordonné et discipliné, où les liens familiaux sont forts, chaleureux et bien ordonnés, l’affection et la discipline bien équilibrées, et sereines les relations entre des parents dotés du sens de la responsabilité envers eux-mêmes et les autres. Les pères y sont autoritaires avec modération, fermeté et humour, les parents confiants envers leurs méthodes d’éducation et sûrs des principes à inculquer à leurs enfants : la foi en Dieu, le respect des parents, la maitrise de soi, la tolérance, le respect mutuel … La liberté pour un enfant, c’est jouir de grandes responsabilités personnelles, savoir ce que ses parents attendent de lui, résister à la pression de ses camarades. À l’inverse, un milieu familial où les relations entre parents n’inspirent pas confiance et sécurité, où la communication est insuffisante, où les émotions sont refoulées, où il manque de ferveur religieuse, où l’on est hostile à l’autorité ne favoriserait pas l’apprentissage de la bonne liberté et conduirait à l’usage des drogues (Rapport III). Un mauvais apprentissage mène à la mauvaise liberté, qui laisse transparaître les faiblesses des individus, frustre les espoirs investis en eux ; la bonne liberté au contraire s’exerce dans le cadre de nos institutions, évite tous les méfaits (Rapport V). En tout état de cause, le drogué est privé de la bonne liberté. Ou ne l’a jamais acquise. Ou l’a perdue en se droguant. L’absence de bonne liberté est la cause de son état, et sa privation, l’effet (Rapport). c.  Un objet de privation et de réapprentissage  La privation de liberté, vue comme une sanction, est le châtiment le plus sévère après la peine

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capitale ; elle peut viser deux objectifs : la protection des autres membres de la société et le traitement. Liée au traitement, elle donne généralement des résultats décevants. Surveillée, à travers une probation ou une libération conditionnelle, elle offre plus de chances de réhabilitation ou de réadaptation sociale, de réapprentissage de la bonne liberté (Rapport VII), par l’information, la motivation, la discipline, la sécurité (Rapport II). Quelle que soit l’approche préconisée, elle sera coercitive: la liberté de traitement n’est pas une valeur retenue par Le Dain. En somme, pour lui, la bonne liberté individuelle est encadrée, contrôlée. Dans le Rapport, il dira que la liberté de tous est à son maximum lorsque la liberté individuelle est limitée : elle doit donc être restreinte en faveur de l’ordre, de la protection et du bienêtre de la population. La fonction prédominante de cette image de liberté comme objet d’apprentissage, de privation et de réapprentissage, sera causale: l’irrespect des conditions du processus d’apprentissage de la liberté idéale mène à l’usage des drogues et à toutes ses conséquences. À travers des formules définitoires et prescriptives, ces images prennent la forme de vérités connues, comme s’il s’agissait de faits en soi incontestables: procédé rhétorique qui, selon Perelman, cherche l’accord de l’auditoire universel. Ces vérités s’appuient pourtant sur des valeurs nécessairement fluctuantes entre lesquelles les formules définitoires et prescriptives ont précisément pour effet de camoufler les conflits potentiels, de mettre les auditoires en présence d’une pensée monolithique confortant les valeurs traditionnelles. Que ces valeurs ne correspondent plus à la réalité de plusieurs devient un fait jugé moralement mauvais ; la société est partiellement délestée du poids de sa responsabilité. Il y a ici un glissement de la responsabilité sociale vers la responsabilité individuelle. C. Démocratie S’il fallait choisir un concept central à la pensée de Gerald Le Dain, indépendamment même de l’analyse livrée ici de l’expression «société libre et démocratique », celui de démocratie s’imposerait sûrement. Pourtant, dans tout son corpus pré-Charte, il n’a mentionné le mot que sept fois en tout et pour tout (Twilight ; Supervisory Jurisdiction ; Supreme Court ; Canadian Constitution). Il n’apparaît nulle part dans le Rapport et – si l’on excepte l’article sur Sir Lyman Duff en 1974 et une allocution qu’il prononce en 1976 (1976 Convocation)

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– disparait complètement de son vocabulaire après sa nomination à la présidence de la Commission sur l’usage non médical des drogues en 1969. Mais l’implicite de son discours, surtout judiciaire et doctrinal – tout à fait superposable d’ailleurs au contenu de ses rares mentions expresses – est entièrement axé sur une conception de démocratie cohérente, ouverte, exigeante, qui sous-tend l’essentiel de sa pensée juridique et politique. Contrairement à ce qui se passe pour société et liberté, le discours de Le Dain sur la démocratie n’est pas polysémique : il n’attribue qu’un seul sens à démocratie, construit, articulé. D’ailleurs, et bien que ce ne soit pas ici l’objet de notre analyse, on pourrait ajouter que non seulement son discours implicite mais toute sa pratique, au sens de praxis, témoigne de la centralité de son attachement à la forme de démocratie parlementaire qu’il a vécue aussi bien dans son enseignement du droit administratif et conséquemment du contrôle judiciaire, que dans sa pratique de ce même contrôle à la Cour fédérale. Pour Gerald Le Dain, la démocratie est à la fois un concept et un processus constitutionnel, inscrit dans un ordre juridique dont les fondements résident dans la souveraineté parlementaire et le contrôle judiciaire, incarnés institutionnellement dans les corps législatifs et les cours supérieures (Supervisory Jurisdiction ; Duff). Globalement, cette image sert à la valorisation du contrôle judiciaire des décisions administratives, tenu par l’auteur comme implicitement constitutionnalisé. 1 .  La dé moc r at i e c o mme c o n ce p t et proc e ssus c o nst i t ut i onne l C’est l’élément constitutionnel de cet amalgame qui lie les deux autres dans la pensée de Le Dain : la Constitution, cet acte contractuel à la base du fédéralisme, semble contenir le concept de démocratie et fonder son application aux régimes politiques. Une démocratie constitutionnelle et fédérale implique des principes et des présupposés relatifs aux limites apportées à la règle de la majorité par la protection des droits fondamentaux et des intérêts des minorités aussi bien que des individus (Canadian Constitution). Il lui attribue une fonction de légitimation de l’unité nationale canadienne (Canadian Constitution) et de rejet de modification des institutions judiciaires (Supreme Court). Cette dimension constitutionnelle de l’image de démocratie lui permet par ailleurs de dicter au pouvoir exécutif, à l’administration publique, le devoir d’agir parfois au-delà de la lettre de la loi, mais

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toujours selon son esprit, dans l’intérêt public plus qu’en faveur des intérêts privés, dans un esprit d’équité et d’impartialité, pour des motifs légaux et appropriés (Twilight ; Transfer of Property* ; Security*). Pour lui, la primauté du droit est élevée au rang de principe constitutionnalisé, destiné à guider strictement le juge dans son devoir d’agir en vertu de la loi. À cet égard, il dénonce l’appropriation judiciaire des règles de droit, leur manipulation par les procédés rhétoriques dans un but utilitariste (Gens de l’Air* ; Proulx*): le caractère souhaitable d’une décision administrative, l’efficacité de l’administration, l’effet possiblement désastreux d’une décision ne devront jamais prendre le pas sur l’objet et la finalité de la loi. Dans tous les cas, l’image de démocratie constitutionnelle intervient dans le discours du juge pour imposer, notamment à la population canadienne, francophone ou anglophone, des principes, des règles, des devoirs hiérarchiquement supérieurs et impératifs ou intangibles. C’est une image surdéterminante, imposant à la fois un code d’interprétation de la loi suprême et des règles capables de la matérialiser et susceptibles de sanction. 2 .  La souv e r a i ne t é pa r l e me n tai re e t l e co n t rô l e ju dic ia i r e c omme f ond e me n t s d e l a d é m o crat i e Affirmant implicitement la séparation des pouvoirs comme élément central de la démocratie, le juge Le Dain souligne surtout ses conséquences : la souveraineté parlementaire et le contrôle judiciaire, dans une démarche judiciaire marquée par son insistance sur l’adjudication des pouvoirs institutionnels plutôt que par la résolution du litige à travers l’interprétation de la règle applicable aux faits en cause. La souveraineté parlementaire et la révérence que les tribunaux doivent aux institutions législatives sont des principes cardinaux pour lui: il l’affirmera par sa recherche constante de l’intention du législateur, même quand il n’y a pas lieu de croire que son interprétation mènera au résultat équitablement souhaitable, même lorsqu’elle entre en conflit avec d’autres principes dont il a montré ailleurs qu’ils lui étaient chers, comme le droit d’être entendu – affirmé d’abord (Quest for Justice) et écarté ensuite au nom de la suprématie parlementaire (Yukon Conservation*) – et le bilinguisme au Canada, qui a subi la même évolution (Canadian Constitution ; Gens de l’Air*). Le juge s’incline devant la volonté législative : la ratio decidendi est exprimée à travers un syllogisme tronqué, symbole de retenue judiciaire. Les principes qui lui sont chers sont relégués dans de longs obiter dicta

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et appuyés d’éléments réalistes, agissant comme l’expression d’un souhait pour l’avenir. La révérence à l’égard du législateur découlant pour le juge Le Dain de la suprématie parlementaire s’arrête au seuil qui sépare l’administration des autorités législatives : bref, il tient la séparation des pouvoirs comme confortant les tribunaux dans leur indépendance (Canadian Constitution) et dans une fonction de contrôle judiciaire classique, dont on ne devinerait pas, à lire Le Dain, qu’il comprenait des avant la Charte le contrôle constitutionnel du législateur, du moins en matière de partage des compétences. Mais à l’égard de l’administration, sa vision de ce contrôle – élaborée dans sa doctrine des les années cinquante (Twilight ; Alliance* ; Supervisory Jurisdiction), vingt ans avant l’arrêt Nicholson25 – s’avère particulièrement interventionniste, à la fois par sa désapprobation et son interprétation étroite des clauses privatives (C R T F P * ; Twilight ; Supervisory Jurisdiction) et – au contraire – large, du caractère quasi judiciaire des décisions de l’administration (Shell*), allant jusqu’a refuser de reconnaitre un effet décisionnel à un acte plutôt que de le soustraire au contrôle judiciaire (Croy*). Matérialisée dans sa pratique en Cour fédérale par l’application des principes d’« équité administrative » plus large que l’équité procédurale traditionnelle, et de justice naturelle, sa conception du contrôle judiciaire révèle implicitement les ramifications les plus lointaines de son concept de démocratie. Sa position, très avancée pour l’époque, sur les exigences implicites de la démocratie en matière de rationalité et de rigueur de la part des autorités administratives exerçant des pouvoirs discrétionnaires, est énoncée en principe dans sa doctrine (Quest for Justice) et ensuite appliquée de façon croissante dans sa pratique judiciaire en matière d’immigration. A son arrivée au tribunal, dans ce qui apparaît d’abord comme une régression à cet égard par rapport à ses écrits doctrinaux antérieurs, il suit la Cour d’appel fédérale sur les voies où elle est déjà engagée, confirmant les décisions de l’administration à cause de leur « nature » administrative et discrétionnaire. Puis, il inscrit sa dissidence (Louhisdon* ; Oloko*), exigeant des ajournements d’enquête à partir de descriptions rhétoriques des faits et d’arguments fondés sur la structure du réel, par le truchement de techniques où les raisonnements par analogie et les illustrations hypothétiques lui permettent d’introduire, tout en reconnaissant le pouvoir discrétionnaire de l’exécutif, la notion d’équité administrative sans encore la nommer. Cinq ans plus tard, il aura

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rallié la Cour unanime à l’équité administrative (Jiminez-Perez*). La technique de rédaction est sensiblement la même : le récit des faits démontre que l’administration a eu une attitude deshumanisante à l’égard d’une situation qui commandait des considérations humanitaires. L’interprétation de la loi sera tortueuse et torturante, les règles de l’administration pressées tant qu’elles ne s’adapteront pas à la réalité de la cause. À deux reprises, le juge Le Dain lancera: « l’équité administrative exige …, » Certes, les décisions d’où émerge la notion d’équité administrative mettaient en scène l’immigration de familles avec de jeunes enfants et il s’agissait tout au plus de permettre l’accès au pouvoir exécutif (Desjardins*) et non d’évaluer son exercice (Inuit Tapirisat). Elles constituent néanmoins des indices d’une incursion du pouvoir judiciaire dans des décisions purement administratives, et Le Dain y révèle la profondeur de ce que l’on pourrait appeler son sentiment démocratique. Si la « justice naturelle » venait simplement compléter l’équité administrative comme instrument de matérialisation du contrôle judiciaire, la pensée de Le Dain ne se distinguerait pas de celle de la plupart de ses collègues à cet égard, mais l’éclat de ses formulations et la place si importante qu’elle tient dans son discours et sa pratique en font un concept central chez lui. Les principes de justice naturelle – droit d’être entendu et compris (droit à l’interprète), droit à l’avocat, à une décision – sont élevés au rang de principes démocratiques fondamentaux, à travers des formes argumentatives d’une grande efficacité et cela aussi bien dans la doctrine (Alliance*) que dans ses décisions judiciaires. Dans la jurisprudence, il laisse parler les faits d’eux-mêmes et, par le jeu de la narration, des citations et des témoignages, dirige l’auditoire, comme s’il s’agissait d’un jury, vers des conclusions pourtant juridiques, dont l’« évidence » est renforcée par des formes contraignantes : « nécessairement », « manifestement », « il s’ensuit donc » (Faiva* ; Tsiafakis* ; McCarthy*). Ces arguments de direction, dont l’énoncé fait en sorte que l’affaire est déjà jugée, sont basés sur la structure du réel et des liaisons de causalité [caractère abusif des agissements de l’enquêteur (McCarthy*)] ou encore sur des changements d’ordre [devoir statutaire élevé au rang de droit fondamental (Faiva*)]. Ailleurs, il aura recours à des formes langagières insistantes comme les doubles affirmations : l’obligation de motiver est « impérative et non facultative » (Proulx*) ou les formes définitoires : « il est exact que », « toutefois cela ne signifie pas » (Syndicat international des marins*).

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Ces principes, affirmés avec tant de force, ne peuvent souffrir d’exceptions: s’ils ne sont pas toujours appliqués strictement, c’est que le requérant aura commis lui-même une faute, ou encore que son intérêt dans l’affaire était précaire. Ainsi, celui qui invoque un déni de justice naturelle matérialisé par un délai excessif dans le déroulement de la justice doit avoir obéi à toutes les exigences de la loi (Woldu*) : Le Dain ne reniera pas le principe, mais manifestera sa distance à l’égard du requérant (« si je comprends bien»,« il est douteux », « aurait pu permettre, mais »), utilisera des formes négatives incontournables (« n’avait aucune base»,« on ne peut pas dire») et rassurera son auditoire sur le bien-fondé de sa décision (« je suis en tous cas convaincu »). Ou encore, il dévalorisera l’intérêt économique d’un requérant (Syndicat international des marins*) par des formes impersonnelles et minimisantes : « un cas particulier […] ne confère pas nécessairement ». Tout le non-dit, le présumé, le pris pour acquis qui sous-tend ce discours repose sur une conception de la démocratie ou toutes les institutions, chacune dans sa sphère respective, doivent respecter les valeurs et les fondements de la démocratie parlementaire, comme la séparation des pouvoirs, dont l’application rigoureuse des principes de justice naturelle est garante.

I I .  L e s in t e r p r é tat ions pos t-Charte Les interprétations post-Charte de l’expression « société libre et démocratique » par le juge Le Dain sont concentrées sur une très courte période : quand il a quitté la Cour en 1988, quatre ans seulement s’étaient écoulés depuis l’affaire Skapinker26, la première où l’un des bancs de ce tribunal, auquel ne participait cependant pas Le Dain, ait abordé l’article 1, sans d’ailleurs définir la « société libre et démocratique ». Si l’on s’en tient aux décisions rédigées personnellement par Le Dain, il n’a abordé l’expression entière directement qu’une seule fois et, indirectement, à deux reprises, à travers la définition de la liberté physique et celle de liberté d’association. En fait, il a rédigé huit décisions post-Charte 27 : Rahey, Smith, Stevens, Valente, Collins, Therens, Public Service et Thomsen. Cependant, les cinq premières ne peuvent être d’aucune utilité pour notre analyse : Rahey, Smith, Valente et Collins parce qu’elles ne contiennent aucune mention de société, liberté ou démocratie ni, à plus forte raison, aucune interprétation de l’expression globale, et Stevens parce que les motifs du juge Le Dain n’y portent que sur

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l’applicabilité de la Charte, ce qui laisse un corpus d’arrêts personnellement rédigés après la Charte par Le Dain formé des trois dernières décisions mentionnées. On n’y retrouve aucune divergence réelle avec ses images pré-Charte, si ce n’est peut-être dans le ton du discours et, malgré les apparences, on peut sans doute en dire autant des interprétations qu’il a faites siennes – au moins dans leurs contenu28 – en souscrivant29 aux opinions de ses collègues: c’est tout au plus d’une évolution qu’il s’agit. Dans Thomsen, où il rédige pour la première et la dernière fois une analyse complète de l’article I, il décrira la société libre et démocratique d’abord comme un ensemble relationnel où l’imposition de l’alcootest est raisonnable, compte tenu du droit dont elle est implicitement assortie d’avoir recours à l’avocat à l’étape de l’éthylométrie. En assignant explicitement à cette interprétation, tout à fait compatible avec le contenu de l’image de société repérée dans son corpus préCharte, la même fonction de justification d’une mesure dissuasive (accroitre les perceptions du danger de la conduite en état d’ébriété), il rejoint l’un des consensus les plus constants de la Cour, auquel il participera de nouveau dans Lyons, où le rôle protecteur du droit criminel à l’égard de la société est réaffirmé. La même vision de société comme ensemble relationnel se dégage de Public Service, où Le Dain qualifie d’« intérêts opposés» à d’autres les droits à la négociation et à la grève dont on réclame la constitutionnalisation, non « méritée » à son avis ; il les relèguera au niveau inférieur de politiques législatives, un statut encadré par la société : ici comme dans le Rapport, la société apparaît alors – par l’utilisation de formes qui donnent de l’ampleur au raisonnement « non seulement […] mais encore » – comme un tout personnifié que les individus mettent en danger et qui exerce un contrôle social pour conjurer ce danger. On notera au surplus sa référence aux règles de justice naturelle (droit a l’avocat), intrinsèque à sa définition de démocratie, restée presque inchangée malgré les modifications importantes qu’a introduites à cet égard la Loi constitutionnelle de 1982. Ainsi, si – par le truchement (notamment du test de proportionnalité) et d’arguments réalistes fondés sur des statistiques pour justifier la restriction de la liberté au nom du contrôle social – Le Dain présente la société libre et démocratique comme un lieu où la sécurité routière peut exiger l’alcootest, ailleurs il utilisera des formules définitoires entraînant d’autres définitions en chaîne, dans un processus globalement réducteur, pour définir l’alcootest comme une forme de détention et rejoindra le

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juge Lamer pour affirmer que la même raison ne saurait justifier la suppression de la présomption d’innocence (Motor Vehicle), confirmant là une conception tout à fait en harmonie avec celle du Rapport sur l’usage non médical des drogues. Si l’on note une évolution entre les conceptions pré- et post-Charte de « société libre et démocratique » chez Le Dain, il faut d’abord la lire dans son adhésion à la célèbre définition du juge Dickson dans Oakes, axée sur les cinq valeurs que l’on sait : respect de la dignité inhérente à la personne humaine, promotion de la justice et de l’égalité, pluralisme, tolérance et participation démocratique. Mais il s’agit plus d’une explicitation que d’une différence, car son image préCharte de société comme entité personnifiée adhérant à des valeurs qualifiait ces valeurs de collectives, individuelles, spirituelles, morales (réitérées dans Dolphin) ou même politiques ou économiques, mais ne les identifiait pas. Des lors l’énumération de Oakes, dont les trois derniers éléments sont d’ailleurs repris avec son accord dans Edwards Books, ne contredit pas sa conception antérieure et n’y ajoute même rien, dans la mesure où son contenu restait indéterminé : il a seulement été précisé. À d’autres égards aussi sa conception de société s’est également précisée, mais alors négativement en comparaison des images livrées par son corpus pré-Charte, et cela dans le domaine du droit du travail ou elle semblait la plus ouverte : de l’opinion du juge McIntyre dans Dolphin, qu’il a cosignée, émerge une image de société tolérant les conflits de travail comme corolaire des négociations collectives, mais dont l’intérêt exige la règlementation et la limitation du piquetage. Ses interprétations de liberté peuvent nous servir de fil conducteur à cet égard. Concédant avec réticence (« même s’il est évident que ») la constitutionnalisation des libertés, même lorsqu’elles ont conservé la formulation que leur donnait la Déclaration canadienne (Therens) et leur évolution, lorsqu’elles sont nouvellement formulées comme la liberté de circulation et d’établissement (Metropolitan Stores), il souligne l’obligation pour les tribunaux de les protéger (Metropolitan Stores ; Therens): mais pour lui les libertés fondamentales n’incluent pas le droit de négocier et de faire la grève (Public Service). Ce dernier énoncé est formulé au moyen d’arguments où la liberté d’association est connotée de sèmes mélioratifs : qualifiée de « concept » – une expression qu’il emploie ailleurs à l’égard de la démocratie, axe central de sa pensée juridique et politique – la liberté d’association, « particulièrement importante pour l’exercice d’autres libertés », doit

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être analysée « dans une perspective plus large ». Au contraire, c’est péjorativement qu’il qualifiera les activités visées par l’objet de la demande: en examinant « l’extension » des garanties constitutionnelles à la négociation et à la grève, il parlera des « prétendues exigences d’un syndicat » à propos de droits « contemporains » et, comme par voie de conséquence, « non fondamentaux ». Comme mécanisme complémentaire de justification de la retenue judiciaire, il fera appel à un syllogisme tronqué basé sur l’opposition occultée entre une inclusion (les libertés de conscience, de religion et d’expression participent de la liberté d’association) et une exclusion (la liberté de négociation et le droit de grève n’en font pas partie), dont les motifs, largement incompatibles, font conséquemment l’objet d’une suppression. Dans le même but, il supprimera également toute référence aux principes déjà établis d’interprétation de la Charte, ce qui lui permet de donner ici (Therens) un sens large au droit à l’avocat, et là (Public Service), un sens étroit à la liberté d’association. Formellement, il n’y a pas là de contradiction avec l’affirmation du droit d’accréditation, constante dans ses décisions de la Cour fédérale, mais on ne peut pas ne pas constater un changement d’attitude très perceptible dans ce long passage de Public Service, qu’il faut citer en entier : Ce qui est en cause en l’espèce est non pas l’importance de la ­liberté d’association en ce sens, qui est celui que je prête à l’al. 2d) de la Charte, mais la question de savoir si une activité particulière qu’exerce une association en poursuivant ses objectifs, doit être protégée par la Constitution ou faire l’objet d’une règlementation par voie de politiques législatives. Les droits au sujet desquels on réclame la protection de la Constitution, savoir les droits contemporains de négocier collectivement et de faire la grève, qui comportent pour l’employeur des responsabilités et obligations corrélatives, ne sont pas des droits ou libertés fondamentaux. Ce sont des créations de la loi qui mettent en jeu un équilibre entre des intérêts opposés dans un domaine qui, les tribunaux l’ont reconnu, exige une compétence spéciale [à la p. 391]. Pour comprendre cette conception de liberté, particulièrement restrictive en matière de droit du travail – et, en cela même, étonnante pour le lecteur attentif de la jurisprudence antérieure de Le Dain en Cour fédérale –, il faut s’arrêter au contexte de son énonciation, où

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sa portée est limitée par sa conception de démocratie, centrale à sa pensée et dont il concède la modification constitutionnelle avec une réticence tenant cette fois de la négation. Attaché à une démocratie conceptualisée par la séparation des pouvoirs et matérialisée par la suprématie parlementaire, il ne se rallie pas vraiment à la démocratie bipolaire instaurée par la Loi constitutionnelle de 1982, où les juges participent dorénavant beaucoup plus visiblement à la normativité30 et refuse toute interprétation large de la liberté d’association qui entraineraît le juge à s’immiscer trop profondément dans le processus législatif, comme le montre bien la suite du passage cité ci-haut : II est étonnant que, dans un domaine ou cette Cour a affirmé un principe de retenue judiciaire pour ce qui est de contrôler les mesures administratives, nous devions examiner la possibilité de substituer notre opinion à celle du législateur en constitution­ nalisant, en termes généraux et abstraits, des droits que le législateur a jugé nécessaire de définir et d’édulcorer de diverses façons selon le domaine particulier des relations de travail en cause. La nécessité qui résulte d’appliquer l’article premier de la Charte à l’examen d’une mesure législative particulière dans ce domaine démontre, à mon avis, jusqu’a quel point la Cour devient appelée à assumer une fonction de contrôle de politiques législatives qu’elle n’est vraiment pas faite pour assumer [aux pp. 391-2]. Quand, souscrivant aux opinions de ses collègues, Le Dain définit la liberté individuelle dans un autre contexte, lié au droit criminel ou pénal, sa vision est plus large, presque plus large, même, à certains égards que ses images pré-Charte : distincte, en tant que liberté physique, de la sécurité et de la vie protégée par l’article 7 de la Charte (Motor Vehicle), elle repose sur le respect de la dignité des droits inviolables de l’être humain (Edwards Books), et fonde la démocratie et le développement des institutions politiques, sociales et éducatives des sociétés occidentales (Dolphin). Elle ne saurait donc être atteinte par des lois injustes ou arbitraires (Jones), ni sacrifiée à la commodité administrative, si ce n’est très exceptionnellement-(Motor Vehicle), même si, sous certaines réserves, elle peut subir certaines restrictions au nom de valeurs que l’auteur du Rapport sur l’usage non médical des drogues lui assignait déjà comme limites: la sécurité, l’ordre, la santé (Edwards Books).

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III.  L e s e n s d e s vari ati ons La pensée juridique et politique du juge Le Dain est marquée d’une extrême cohérence. Axée dans le domaine public sur une notion très exigeante de démocratie et sur son corolaire juridique, le contrôle judiciaire de l’administration, elle est centrée dans le domaine privé sur l’égalité des chances et la méritocratie, enracinées dans des valeurs familiales très fortes. Ce noyau dur de sa pensée, très articulé, traverse tout son corpus : invariable, il provoque et explique même certaines des variations, au demeurant peu accentuées, que subissent, selon le contexte de leur énonciation, ses notions de société et de liberté – car celle de démocratie reste constante. Les variations les plus importantes dans le contenu de ces notions n’ont pas été, comme c’est le cas pour le juge Dickson, induites par l’introduction de la Charte dans la Constitution : entre les images pré-Charte et les interprétations post-Charte, comme on vient de le voir, on ne note qu’une légère évolution, qualifiable de changement – et encore – seulement à propos du concept de liberté. Les variations significatives se situent avant la Charte, surtout sur le plan de la notion de société et, à un degré moindre, de liberté. Confirmant les hypothèses perelmaniennes, elles sont d’abord reliées, quant à leur contenu, aux auditoires auxquels elles sont destinées et, secondairement, au contexte normatif dans lequel elles s’inscrivent, deux facteurs qui influent plus encore sur les fonctions attribuées par le discours à ces différentes images de société et liberté. A.  Une très grande cohérence pré / post-Charte Ce qui frappe au premier abord c’est donc davantage la cohérence et la constante univocité du sens de démocratie, à la fois concept et processus constitutionnel, inscrit dans un ordre juridique dont les fondements résident dans la souveraineté parlementaire et la séparation des pouvoirs et son corolaire, le contrôle judiciaire de l’administration. Le lien très serré entre ces éléments, ou domine la souveraineté parlementaire, débouche sur une conception du pouvoir judiciaire comme gardien de la légalité des actes de l’administration, cependant sans prise sur la constitutionnalité de l’activité législative, compte tenu par ailleurs de la séparation des pouvoirs et surtout de la suprématie du Parlement.

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C’est une conception à laquelle la modification du contexte normatif, résultant ici de l’avènement de la Charte, ne changera rien en pratique: si Le Dain admet que les tribunaux se sont vu attribuer et même imposer le contrôle constitutionnel de la légalité, il ne se résignera pas à l’exercer dans les faits, estimant que « la Cour devient appelée à assumer une fonction de contrôle de politiques législatives qu’elle n’est vraiment pas faite pour assumer » (Public Service à la p. 392). Cette conviction est si profonde qu’elle induira une variation dans le concept de liberté de l’auteur : plutôt que de maintenir une notion de liberté qui l’amènerait à intervenir dans ce qu’il considère comme le domaine du législateur, il la réduira de manière à justifier sa retenue judiciaire à l’égard des limites imposées par voie législative à ce droit garanti par la Constitution, maintenant ainsi l’intégrité de sa notion de démocratie parlementaire. Si l’on peut parler de changement dans sa pensée après la Charte, c’est donc à propos de son concept de liberté, d’ailleurs en référence au ton du discours, à la coloration qui s’en dégage, plus qu’à son contenu. Car si, en refusant de constitutionnaliser les droits de négociation et de grève comme éléments intrinsèques à la liberté d’association, Le Dain produit des effets sociaux différents de ceux qu’il valorisait dans son commentaire d’arrêt et dans ses décisions préCharte en matière de droit du travail, il ne se met pas pour autant en contradiction flagrante avec ses positions antérieures. Car on peut très bien, sur le plan de la logique formelle, refuser la constitutionnalisation d’un droit que l’on favorise par ailleurs : ce que fait Le Dain pour se justifier de ne pas exercer le contrôle constitutionnel, finalement incompatible, au moins en pratique, avec sa vision de la démocratie parlementaire. Sa notion de société aura encore moins varié avec l’adoption de la Charte : on retrouve en effet après la Charte toutes les images proposées pour la société dans son discours pré-Charte, et tout au plus peut-on qualifier d’évolution transitive les précisions – axées sur les valeurs de dignité, justice, égalité, pluralisme, tolérance et participation démocratique – dont elle sera l’objet, d’ailleurs à travers le discours d’autres juges aux décisions desquels Le Dain souscrira. Si le corpus post-Charte de Le Dain était plus abondant, on pourrait être tenté d’induire un certain nombre de conclusions de la faiblesse des variations enregistrées entre ses images pré-Charte et ses interprétations post-Charte. Par exemple, on pourrait poser l’hypothèse que les auditoires de la Cour d’appel fédérale et de la Cour suprême

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ne différent pas beaucoup ou, si au contraire on arrivait à la conclusion que, dans les faits, ils différent néanmoins, devoir chercher pourquoi cette différence n’a pas d’effet chez Le Dain, alors qu’elle en induit au contraire d’importants dans le corpus du juge Dickson31. La minceur de son corpus post-Charte ne permet pas d’exprimer de véritables conclusions à ce propos, mais la comparaison avec le corpus de Dickson suggère une explication. En effet, dans le cas du juge Dickson, déjà à la Cour suprême depuis longtemps avant l’avènement de la Charte, le changement de forum ne jouait forcement aucun rôle dans les variations repérées entre ses images pré-Charte et ses interprétations post-Charte, qui s’expliquaient dès lors à la fois par le changement du contexte normatif – l’avènement de la Charte – et surtout par le changement dans les attentes des auditoires qui avait accompagné l’avènement de la Charte. Comment expliquer que ce changement d’attentes auquel faisait aussi face Le Dain n’ait pas induit chez lui les mêmes variations dans sa conception de société libre et démocratique ? Il faut sans doute chercher la réponse dans son attachement exceptionnel à la suprématie parlementaire. B.  Des variations pré-Charte liées aux auditoires et aux contextes Au contraire, à l’intérieur de son corpus pré-Charte, le terme de société présente une grande richesse polysémique, dont les usages alternatifs varient d’abord selon les auditoires. La première image repérée, et la plus fréquente, celle de société comme ensemble relationnel, est la plus simplement descriptive, la plus réaliste : rien d’étonnant en conséquence à ce qu’elle n’apparaisse dans le Rapport que dans la doctrine et la jurisprudence, selon une incidence décroissante dans cet ordre. Ce n’est pas le cas de la société comme un tout personnifié ou réifié, totalement absente de la jurisprudence, ou de la société comme lieu, absente au contraire de la doctrine. Ces résultats seront d’autant plus significatifs qu’on les retrouve aussi dans le corpus du juge Lamer32 où l’on note la même différence entre sa jurisprudence et sa contribution à la Commission de réforme du droit. Qu’est-ce à dire, sinon que ces variations très perceptibles dans les images auxquelles réfère le mot « société» sont liées aux auditoires auxquels s’adressent les discours respectifs où l’expression est utilisée puisque, c’est évident, l’auditoire d’un juge n’est pas celui d’un président de commission ni celui d’un professeur de droit? Pour saisir la

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portée de cette affirmation, il faut se rapporter brièvement à la théorie de Perelman et à ses hypothèses explicatives du discours judiciaire. Dans La motivation des décisions de justice33, Perelman et Foriers posent que le juge s’adresse à deux auditoires. Le premier, l’auditoire universel, composé des parties, de leurs avocats, des médias et de la société en général, recherche avant tout l’équité. Le second, qualifié à l’opposé de particulier, comprend la communauté juridique : autres avocats, barreaux, autres tribunaux, magistrature, administration publique, professeurs et autres juristes ; ses attentes s’expriment en termes de cohérence du droit. Selon Perelman, le juge formule le droit et choisit les valeurs qu’il y inscrit en fonction des attentes de ces deux auditoires, qu’il a par ailleurs pour rôle de réconcilier. Le plus étonnant est encore que Le Dain, ignorant des travaux de Perelman à l’époque, décrive le rôle du juge presque dans les mêmes termes dans l’article qu’il consacre en 1974 à Sir Lyman Duff, où il s’objecte aux méthodes quantitatives d’analyse de la jurisprudence qui, dit-il, ne rendent pas justice « to the hard professional task of considering the implications for the shape of the law while attempting to do justice to the instant case » (Duff à la p. 262). Pour les fins de la présente étude, nous ne cherchions pas à déterminer les valeurs auxquelles les juges se réfèrent dans leurs images et leurs interprétations de société libre et démocratique, ni à cerner comment ils réconcilient les attentes de leurs différents auditoires, mais plus modestement à vérifier si ces images et ces interprétations variaient selon ces attentes. Dans ce but, nous avons appliqué le concept d’auditoire aux lieux d’énonciation du corpus du juge Le Dain. D’abord en cernant, à travers les influences du juge Lamer sur le juge Dickson notées lors de notre analyse du corpus de ce dernier34, pour les juges des tribunaux collégiaux : la Cour constitue alors son propre auditoire ou – pour exprimer les choses autrement – le tribunal constitue le premier auditoire auquel s’adresse, pour le convaincre, chacun des juges qui le composent, comme on peut l’observer dans les manœuvres discursives déployées par chacun d’entre eux pour rallier une majorité. Ensuite, en constatant que l’auditoire d’un auteur de doctrine, libéré du contexte contentieux, se résume à l’auditoire particulier constitué de la communauté juridique et ne l’oblige pas à réconcilier les intérêts variés présents dans la société globale à laquelle s’adresse un président de commission, tenu par ailleurs d’être attentif au moins aux attentes du gouvernement et de l’administration dont il détient son mandat, si ce n’est aussi à celles de la communauté

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juridique, également préoccupée par les résultats de ses travaux. C’est avec cet arrière-plan en tête qu’il convient d’examiner les images de société que recèlent les différentes parties du corpus de Le Dain. S’agissant en premier lieu du Rapport sur l’usage non médical des drogues, il s’adresse à un auditoire aussi vaste que celui des tribunaux, dont les attentes sont à la fois variées et conflictuelles, bien qu’elles se posent non pas en termes d’équité / cohérence du droit, mais de criminalisation / décriminalisation, punition / traitement, protection / contrôle social / liberté individuelle. Rien d’étonnant dans ces circonstances à ce qu’il fasse appel à toutes les images de société dont il dispose dans des fonctions caractéristiques de ce genre de document. D’abord, un ensemble relationnel où la société, les individus et les groupes interagissent et qui assume dans le discours une fonction causale, explicative des problèmes que la commission doit analyser et auxquels elle doit trouver des solutions. Un tout réifié aussi, image moins fréquente mais analogue dans sa fonction, celle d’un cadre d’analyse pour les problèmes éthiques, juridiques, économiques, philosophiques et moraux, un objet de recherche à titre de facteur causal, parmi d’autres, de l’abus des drogues. Ensuite – et c’est l’image dominante du Rapport même si elle n’est pas la plus fréquente –, un tout personnifié, structuré, évolutif, qui adhère à des valeurs, affiche des attitudes et des comportements, encourt des risques et des problèmes, pour lesquels il doit chercher des solutions. La fonction rhétorique de cette image réside surtout dans la justification des solutions proposées par la commission pour régler les problèmes analysés : à la fois invitation au changement et légitimation du contrôle social et de l’intervention de l’État aussi bien que de leurs limites. Enfin, visant le même but, l’image la plus fermée, celle de la société comme lieu : celui où les usagers pourraient subir leur peine, même si les jeunes qui ont déjà purgé leur sentence sont impatients de la réintégrer ; un lieu aussi où l’habitude de boire est acceptée, où il y a pourtant beaucoup à faire à part se droguer, comme exercer des activités bénévoles. La doctrine connote également les trois premières images, mais dans des fonctions différentes : l’ensemble relationnel cautionne l’invitation au changement, un changement encadré par la société vue comme un tout personnifié, alors que le tout réifie est proposé comme objet d’étude aux étudiants en droit et présenté comme un facteur d’interprétation du Code civil, de définition des politiques de bilinguisme au Canada, et plus généralement comme facteur de

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spécification du contenu du droit. L’image la plus négative, celle de la société comme lieu, est absente de la doctrine de Le Dain : elle n’aurait aucune utilité dans un contexte où l’auteur n’a pas à se justifier de propositions impopulaires. Compte tenu de la rareté de cette dernière image dans l’ensemble du corpus, elle est au contraire relativement plus présente dans la jurisprudence, ou l’incidence de toutes les images de société est par ailleurs peu fréquente. Elle y sert précisément de justification à l’égard de décisions défavorables aux parties, faisant de la société un territoire fermé où l’immigration est un privilège. Il n’y a pas que le terme société pour lequel on enregistre des variations dans le corpus pré-Charte de Le Dain ; c’est aussi le cas du mot liberté, dont les deux sens correspondent aussi à deux emplois différents. Les mentions du terme liberté au sens de « liberté juridique » sont rares dans la doctrine et même la jurisprudence, et complètement absentes du Rapport. Ce concept, dans sa formulation technique, ne s’adressant pas en principe à un auditoire universel, on comprendra que Le Dain – déjà réticent à y donner accès dans le contexte judiciaire – n’y ait pas eu recours dans le Rapport. C’est à l’auditoire particulier que constitue la communauté juridique qu’il s’adresse lorsqu’il l’utilise aussi bien dans la doctrine – où il assigne plus particulièrement à la liberté de conscience, de religion et d’expression une fonction de support de son concept de démocratie –, que dans la jurisprudence ou son emploi varie selon que les libertés y sont implicites, comme en droit du travail – la liberté d’association servant de fondement à l’accréditation – ou exprimées, et alors leur déni sera utilisé comme justification d’un rejet de pourvoi. Dans les deux cas, ces arguments techniques visent un auditoire de juristes. C’est au contraire à l’auditoire universel du Rapport qu’il réserve son discours sur la liberté individuelle, complètement absente de ses décisions pré-Charte et rares dans la doctrine. Pour Le Dain, la liberté individuelle n’est pas un droit absolu ; elle est soumise au bien commun : condition de l’ordre social et objet d’apprentissage ou de privation et réapprentissage, elle alimente alternativement des arguments de justification du contrôle social ou de légitimation de ses limites, arguments adressés au gouvernement et à la population, pour les convaincre respectivement d’appliquer et d’accepter les recommandations de la commission.

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C o n c l u s i on La partie des hypothèses perelmaniennes que nous nous étions donnée pour objectif de vérifier est donc largement confirmée dans le corpus du juge Le Dain : le sens attribué par son discours aux mots société et liberté varie selon les auditoires, mais aussi selon le contexte factuel et surtout normatif. Le contenu des images varie dans son corpus pré-Charte selon les auditoires auxquels il est destiné, et plus encore les fonctions attribuées à ces images respectives dans le discours argumentatif, car la même image sera utilisée à des fins différentes – si ce n’est tout à fait opposées – selon les auditoires et le lieu d’où Le Dain s’adresse à lui, un lieu défini non seulement de façon institutionnelle, mais également normative. Ce ne sont pourtant pas tant les changements dans le droit qui entraînent des modifications dans les images de société libre et démocratique chez Le Dain : ni la Déclaration canadienne ni la Charte n’ont cet effet sur son discours, mais plutôt le domaine du droit. Ses notions de libertés juridiques et surtout la fonction qu’il leur assigne ne sont pas les mêmes en droit du travail que dans les autres domaines, notamment en matière d’immigration. Mais tout comme la faible amplitude des variations pré / post Charte, l’invariance du concept de démocratie, même à l’égard d’auditoires différents dans la période pré-Charte, suggère de nuancer ces résultats en tenant compte de l’importance d’un concept dans la pensée d’un juge : on pourrait avancer que plus le concept y occupe une place centrale, axiologique, moins son contenu varierait au gré des auditoires. Bien sûr, cet énoncé devra être vérifié sur d’autres corpus avant d’être qualifié même d’hypothèse documentée. Ce n’est, pour l’instant, qu’une piste. Par ailleurs, l’une des pistes suggérées par notre analyse du corpus du juge Dickson, selon laquelle les tribunaux collégiaux constitueraient le premier auditoire de leurs membres, et donc un troisième auditoire venant s’ajouter à ceux qu’avait identifiés Perelman, tend à se confirmer aussi dans le corpus de Le Dain, et cela à partir de deux exemples. Le premier réfère à son comportement à la Cour d’appel fédérale lorsque, ayant souscrit momentanément à la majorité en matière de contrôle judiciaire à son arrivée à ce tribunal, il a fort habilement orienté progressivement par la suite son discours de façon à convaincre et rallier ses collègues au concept d’équité administrative. Le second s’exprime dans cette allusion ironique aux contradictions de ses

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collègues par laquelle il motive, dans Public Service, son rejet du contrôle judiciaire de la constitutionnalité des lois : II est étonnant que, dans un domaine où cette Cour a affirmé un principe de retenue judiciaire pour ce qui est de contrôler les mesures administratives, nous devions examiner la possibilité de substituer notre opinion à celle du législateur en constitutionnalisant, en termes généraux et abstraits, des droits que le législateur a jugé nécessaire de définir et d’édulcorer de diverses façons des relations de travail en cause [à la p. 391]. Enfin, à défaut de pouvoir induire les images à partir des formes argumentatives et langagières35, nous avons tenté de vérifier le rapport de ces formes dans le discours de Le Dain à ses images de société libre et démocratique et aux fonctions respectives qu’il leur assigne. En fait, il s’agissait de porter attention à certaines associations plus fréquentes, à certaines récurrences, pour alimenter une réflexion ultérieure sur ce sujet. Au terme de l’opération, on constate que l’éventail des formes langagières et discursives de Le Dain est fort large et présente à la fois certaines associations fréquentes avec certaines fonctions argumentatives et, dans deux cas au moins, une récurrence qui semble caractéristique probablement du style de l’auteur ou peutêtre même de situations argumentatives plus générales. Nous ne sommes en mesure de faire là-dessus aucune affirmation en l’absence de vérification éventuelle sur d’autres corpus36. D’abord, les récurrences très fréquentes. Il s’agit en premier lieu de la retenue judiciaire, presque toujours appuyée par des syllogismes tronqués. Sans qu’il nous soit possible d’affirmer en retour que les syllogismes tronqués débouchent toujours, chez Le Dain au moins, sur une expression de retenue judiciaire, la coïncidence des deux est assez fréquente pour nous alerter à la possibilité d’une telle retenue dès qu’apparaît un syllogisme tronqué, et nous inciter à vérifier chaque fois l’existence éventuelle d’une corrélation. On note ensuite l’association fréquente de cette forme, le syllogisme tronqué, avec d’autres formes de suppression dans le raisonnement et, ailleurs, la suppression récurrente des faits, et par conséquent du fondement d’équité, pour légitimer le contrôle social ou une décision judiciaire défavorable à un demandeur. Dans ce dernier cas, cette suppression des faits est souvent associée à une structure dialogique du jugement, où les motifs

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du juge sont opposés aux arguments de l’appelant, dont la demande ne survit jamais au procédé. Viennent ensuite, dans le discours de Le Dain, les formes définitoires, prescriptives, performatives dont l’effet directionnel vise l’inclusion ou l’exclusion de personnes ou de groupes à l’égard de protections sociales ou juridiques. C’est également d’effet directionnel qu’il faut parler à propos de formes amplificatrices, de doubles affirmations ou négations orientant vers – et justifiant d’avance – des solutions controversées. Des formes réalistes37, des arguments fondés sur la structure du réel, visent aussi, à travers des effets également directionnels, la justification, mais cette fois du changement social, alors que le contrôle social, lui, sera justifié par des arguments au contraire formalistes, des tournures impersonnelles dans un discours évoluant vers la fermeture. Enfin, une dernière forme, très caractéristique du style de Le Dain, mérite d’être soulignée : c’est l’usage, parfois l’accumulation, d’épithètes émotives, de qualificatifs favorables et défavorables que la linguistique désigne sous les termes de sèmes mélioratifs et péjoratifs. Ils véhiculent des jugements plus souvent moraux qu’esthétiques, et cherchent l’approbation de l’auditoire universel, surtout dans le Rapport, et surtout à propos des valeurs familiales ou canadiennes. Enfin, au-delà de ces résultats très concrets de notre démarche, en termes d’hypothèses confirmées et nuancées et de pistes de réflexion tracées, l’acquis le plus important pour nous se situe sur le plan de l’occasion qui nous a été donnée de pénétrer aussi profondément l’univers intellectuel d’un juriste exceptionnel, attaché à une forme de libéralisme très particulière où l’égalité et surtout la démocratie parlementaire priment sur la liberté individuelle, d’un juriste exceptionnellement fidèle à travers toute sa carrière, dans ses écrits comme dans sa pratique, aux valeurs d’égalité des chances et d’égalité devant la loi.

A n n e x e : C o r p u s d e Gerald Le Dai n Notre analyse a d’abord porté sur la totalité des écrits juridiques pré- et post-Charte de Gerald Le Dain. Cependant, au terme d’une première lecture, nous avons écarté un certain nombre de décisions où n’apparaissait, à notre connaissance, aucune mention expresse de « société», « liberté » ou « démocratie » et où l’analyse de l’implicite ne s’annonçait pas non plus prometteuse. Le groupe de décisions

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retenues au terme de cette opération a été qualifié, par le juge Le Dain lui-même, de représentatif de son œuvre. D’autre part, dans la période post-Charte, ou il s’agit d’analyser spécifiquement les interprétations de l’expression constitutionnalisée «société libre et démocratique », nous nous sommes limitées aux décisions relatives à la Charte qui abordaient cet élément de l’article premier. Les titres, dans chaque catégorie, apparaissent en ordre chronologique. Les mentions en caractères gras désignent les abrégés utilisés comme références dans le texte qui précède. I – Rapport Rapport final de la Commission d’enquête sur l’usage non médical des drogues, Ottawa, Information Canada, 1973. II – Doctrine a) Articles « The Twilight of Judicial Control in the Province of Quebec? » Revue de droit de McGill 1 (1952) : 1. « The Transfer of Property and Risk in the Sale of Fungibles. » Revue de droit de McGill 1 (1954-55) : 237. « Security upon Moveable Property in the Province of Quebec. » Revue de droit de McGill 2 (1956) : 77. « The Supervisory Jurisdiction in Quebec. » La Revue du Barreau canadien 35 (1957) : 788. « Teaching Methods in the Civil-Law Schools. » La Revue du Barreau 17 (1957) : 499. « The Real Estate Broker. » Revue de droit de McGill 4 (1958) : 219. « The Theory and Practice of Legal Education. » Revue de droit de McGill 7 (1961) : 192. « Concerning the Proposed Constitutional and Civil Law Specialization at the Supreme Court Level. » Revue juridique Thémis 2 (1967) : 107. « Reflections on the Canadian Constitution after the First Century. » La Revue du Barreau canadien 45 (1967) : 402. « The Quest for Justice: The Role of the Profession. » University of New Brunswick Law Journal 19 (1969) : 18. « Sir Lyman Duff and the Constitution. » Osgoode Hall Law Journal 12 (1974) : 261.

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« The Role of the Public Inquiry in Our Constitutional System. » Dans Jacob Ziegel, dir., Law and Social Change, 79. Toronto : Osgoode Hall Law School, 1973. « 1976 Convocation of Osgoode Hall Law School of York University. » Law Society of Upper Canada Gazette 10 :3 (1976) : 221. « F.R. Scott and Legal Education. » Revue de droit de McGill 27 (1981) : 1. b)  Critiques de livres Compte rendu : Banking and Bills of Exchange par John D. Falconbridge. Revue de droit de McGill 3 (1956) : 113. Compte rendu : Executive Discretion and Judicial Control : An Aspect of the Conseil d’État par Charles J. Hamson et French Administration Law and the Common Law World par Bernard Schwartz. La Revue du Barreau canadien 33 (1955) : 742. Compte rendu : The History of Negotiable Instruments in English Law par James M. Holden. La Revue du Barreau canadien 34 (1956) : 495. Compte rendu : The Law of Banking and the Canadian Bank Act par Ian F.G. Baxter. La Revue du Barreau canadien 34 (1956) : 1083. c)  Commentaire d’arrêt Chronique de jurisprudence : Alliance des professeurs catholiques de Montréal c Québec (Commission de relations ouvrières). La Revue du Barreau canadien 31 (1953) : 821. III – Jurisprudence a) Pré-Charte Denis c R, [1976] 1 C F 499 (C A ). Zong c Canada (Commissaire des pénitenciers), [1976] 1 CF 657 (CA). Bambrough c Canada (Commission de la Fonction publique), [1976] 2 C F 109 (C A ). Rothman de Pall Mall Canada Ltée c MRN [N° I], [1976] 2 CF 500 (C A ). Rothman de Pall Mall Canada Ltée c MRN [N° 2], [1976] 2 CF 512 (C A ). Syndicat international des marins canadiens c CN , [1976] 2 CF 369 (C A ). MRN c Canadian Glassine Co, [1976] 2 CF 517 (CA). Francis c Canada (Ministre de la main d’œuvre et de l’immigration), [1977] 1 C F 66 (C A ).

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Pirotte c Canada (Commission d’assurance-chômage), [1977] 1 CF 314 (C A). Rondeau c Simard, [1977] 1 C F 519 (CA). Chalikiopoulos c Ministre de la Main d’œuvre et de l’Immigration, [1977] 1 C F 575 (C A ). Canada (Ministre de la main d’œuvre et de l’immigration) c Tsiafakis, [1977] 2 C F 216 (C A ). Saskatchewan Power Corp c TransCanada Pipelines Ltd, [1977] 2 CF 324 (C A). Canada (Directeur nommé en vertu de la Loi anti-inflation) c Syndicat canadien de la Fonction publique, section locale 1369, [1977] 2 CF 594 (C A). Alleyne c Canada (Ministre de la main d’œuvre et de l’immigration), [1977] 2 C F 615 (C A ). Canada (PG ) c Canada (Commission des relations de travail dans la Fonction publique), [1977] 2 C F 663 (CA). Stewart c Canada (Commission des relations de travail dans la Fonction publique), [1978] C F 133 (CA). Royal American Shows Inc c MRN , [1978] 1 CF 72 (CA). Re CP et un service de barges porte-wagons (Lac Kootenay), [1978] 1 C F 785 (C A ). Syndicat Général du Cinéma et de la Télévision c R, [1978] 1 CF 346 (C A ). Interprovincial Pipe Line Ltd c Canada (Office national de l’énergie), [1978] 1 C F 601 (C A ). Caccamo c Canada (Ministre de la main-d’œuvre et de l’immigration), [1978] 1 C F 366 (C A ). Canada (Institut professionnel de la Fonction publique) c Canada (Directeur en vertu de la Loi anti-inflation), [1978] 2 CF 30 (CA). Proulx c Canada (Commission des relations de travail dans la Fonction publique), [1978] 2 C F 133 (C A ). Duplessis c Canada (Comité d’appel de la Commission de la Fonction publique), [1978] 2 C F 355 (C A ). Woldu c Canada (Ministre de la main-d’œuvre et de l’immigration), [1978] 2 C F 216 (C A ). Association des Gens de l’air du Québec Inc c Lang, [1978] 2 C F 371 (C A). Laurent c Perron, [1978] 2 C F 450 (CA). Danch c Nadon, [1978] 2 C F 484 (C A ). Oloko c Canada (Emploi et immigration), [1978] 2 CF 593 (CA).

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Louhisdon c Canada (Emploi et immigration), [1978] 2 C F 589 (C A ). Lignes aériennes Canadien Pacifique Ltée c R, [1979] 1 CF 39 (CA). McCarthy c Canada (Ministre de l’emploi et de l’immigration), [1979] 1 C F 121 (C A ). Perrault c R, [1979] 1 C F 155 (C A ). Alvarez c Canada (Ministre de la main-d’œuvre et de l’immigration), [1979] 1 C F 149 (C A ). Georgas c Canada (Ministre de l’emploi et de l’immigration), [1979] 1 C F 349 (C A ). Inuit Tapirisat of Canada c Le très honorable Jules Léger, [1979] 1 C F 710 (C A ). Lodge c Canada (Ministre de l’emploi et de l’immigration), [1979] 1 C F 775 (C A ). Yukon Conservation Society c Canada (Office national de l’énergie), [1979] 2 C F 14 (C A ). Shell Canada Ltd c Canada (Ministre de l’énergie, des mines et des ressources), [1979] 2 C F 367 (C A ). Bullion c Canada (Comite d’appel de la Commission de la Fonction publique), [1980] 2 C F 110 (C A ). Association canadienne des employés du transport aérien c Eastern Provincial Airways (1963) Ltd, [1980] 2 CF 512 (CA). Administration de pilotage du Pacifique c Alaska Trainship Corp, [1980] 2 C F 54 (C A ). Francis c Canada (Conseil canadien des relations de travail), [1981] 1 C F 225 (C A ). Croy c Canada (Commission de contrôle de l’énergie atomique), [1981] 1 C F 515 (C A ). Canada (PG ) c Murby, [1981] 1 C F 713 (CA). North Canada Air Ltd c Canada (Conseil canadien des relations de travail), [1981] 2 C F 399 (C A ). North Canada Air Ltd c Canada (Conseil canadien des relations de travail), [1981] 2 C F . 407 (C A ). R c Khan, [1981] 2 C F 454 (C A ). Kang c Canada (Ministre de l’emploi et de l’immigration), [1981] 2 C F 807 (C A ). Evans c Canada (Comite d’appel de la Commission de la Fonction publique), [1981] 2 C F 845 (C A ). Renvoi relatif aux employés de Northern Telecom Canada Ltd, [1982] 1 C F 191 (C A ).

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Travailleurs unis du télégraphe c Fraternité canadienne des cheminots, [1982] 1 C F 603 (C A ). Canada (PG) c Greaves, [1982] 1 C F 806 (CA). R c. Association canadienne du contrôle du trafic aérien, [1982] 2 CF 80 (C A ). Vachon c R, [1982] 2 C F 455 (C A ). Jiminez-Perez c Canada (Ministre de l’emploi et de l’immigration), [1983] 1 C F 163 (C A ). Dalvut c Canada (PG ), [1983] 1 C F 398 (CA). Faiva c Canada (Ministre de l’emploi et de l’immigration), [1983] 2 C F 3 (CA ). C N c Canada (Commission des droits de la personne) et Bhinder, [1983] 2 C F 531 (C A ). Desjardins c Bouchard, [1983] 2 C F 641 (CA). b) Post-Charte R c Therens, [1985] 1 R C S 613. Renvoi relatif au paragraphe 94(2) de la Motor Vehicle Act, R S B C 1979, [1985] 2 R C S 486. Valente c R, [1985] 2 R C S 673. R c Oakes, [1986] 1 R C S 103. Jones c R, [1986] 2 R C S 284. SDGMR c Dolphin Delivery Ltd, [1986] 2 RCS 573. R c Edwards Books, [1986] 2 R C S 713. R c Collins, [1987] 1 R C S 265. Re Public Service Employee Relations Act (Alta), [1987] 1 RCS 313. R c Smith, [1987] 1 R C S 1045. R c Rahey, [1987] 1 R C S 588. Manitoba (PG) c Metropolitan Stores Ltd, [1987] 1 RCS 110. R c Lyons, [1987] 2 R C S 309. R c Vaillancourt, [1987] 2 R C S 636. R c Thomsen, [1988] 1 R C S 640. R c Holmes, [1988] 1 R C S 914. R c Stevens, [1988] 1 R C S 1153.

R e m e rc ie ments La recherche dont cet article rend partiellement compte a été menée grâce à des subventions du Conseil canadien de recherche en sciences humaines et sociales, de la Fondation du Barreau du Québec et de la Fondation Marcel Faribault, que les auteures et l’équipe entière

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remercient pour leur soutien. Armelle Chitrit, la linguiste de l’équipe, qui a fait un immense travail de dépouillement, et d’analyse, a notamment participe aux travaux concernant le corpus du juge Le Dain qui ont servi de base à cet article. La nature de sa contribution est spécifiée à la note 14, infra. En ce qui concerne l’analyse du Rapport sur l’usage non médical des drogues, elle a collaboré avec Charles Côté. Par ailleurs, l’analyse des mentions expresses de la doctrine est due à Maude Payette et celle des décisions post-Charte, à Henry Quillinan.

N otes   1 Charte canadienne des droits et libertés, Partie I de la Loi constitutionnelle de 1982, constituant l’annexe B de la Loi de 1982 sur le Canada (R.-U.), 1982, c. 11 [ci-après Charte].   2 Dickson, Lamer, Wilson, LaForest, Beetz, McIntyre, Estey, Le Dain et L’Heureux-Dubé (le juge Chouinard étant décédé trop tôt pour laisser un corpus d’interprétations post-Charte suffisant pour l’analyse).   3 Pierre-André Côté, Interprétation des lois, 2e éd. (Cowansville : Yvon Blais, 1990).   4 L.C. 1960, c. 44, reproduite dans L.R.C. 1985, app. III [ci-après Déclaration canadienne].   5 Voir Andrée Lajoie et al., Pour une approche critique du droit de la santé (Montréal : Presses de l’Université de Montréal, 1987), 50.   6 Pour un exposé plus détaillé du cadre théorique et de ces méthodes dans leur version de départ, voir Andrée Lajoie, Régine Robin et Armelle Chitrit, « L’apport de la rhétorique et de la linguistique à l’interprétation des concepts flous, » dans Danièle Bourcier et Pierre Mackay, dir., Lire le droit: Langue, texte, cognition (Paris : L.G.D.J., 1992), 155.   7 Et aussi pour le juge Beetz ; pour une étude analogue de son corpus, voir Andrée Lajoie et al., « Jean Beetz : Sur la société libre et démocratique, » dans Mélanges Jean Beetz (Montréal : Thémis, 1995), 509.   8 Zellig Harris, Discourse Analysis Reprints (LaHaye : Mouton, 1963). On notera qu’il s’agit ici d’une adaptation de la technique de Harris dans un contexte où ses postulats syntaxiques ne sont pas assumés.   9 Lajoie et al., Pour une approche critique. 10 Pour éviter une multiplicité de notes répétitives, nous adoptons dans la suite de ce texte un mode de citation diffèrent de celui qui prévaut en général dans les publications juridiques. Chaque image ou interprétation citée est suivie de la mention abrégée du texte ou des textes d’où elle est tirée. Ces mentions, toujours inscrites entre parenthèses, apparaissent

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sans astérisque dans le cas des mentions expresses, et en avec astérisque dans le cas d’images implicites induites. Ces citations abrégées réfèrent à la liste ci-annexée (voir ci-dessous aux pp. 934-8) du corpus du juge Le Dain, où ces abrégés apparaissent en caractères gras dans les citations complètes de chacun des textes doctrinaux ou judiciaires constitutifs de ce corpus. Ainsi: (Quest for Justice) réfère à une mention expresse dans l’article intitule « The Quest for Justice : the Role of the Profession » alors que : (Quest for Justice*) désignerait l’image à laquelle elle est accolée comme induite de l’implicite du même article. La méthode synthétique que nous avons appliquée au Rapport sur l’usage non médical des drogues (voir ci-dessous à la p. 906) a pour effet de supprimer ces distinctions : toutes les références qui y sont faites apparaissent donc sans astérisque. Les chiffres romains mentionnés dans les renvois au Rapport réfèrent aux sections du Rapport. 11 Contrairement aux décisions et au Rapport final de la Commission d’enquête sur l’usage non médical des drogues, Ottawa, Information Canada, 1973 [ci-après Rapport sur l’usage non médical des drogues ou Rapport], les articles publiés en anglais par le professeur – ou, plus tard, le juge – Le Dain n’ont pas fait l’objet de traductions reconnues. Nous n’y avons pas substitué les nôtres et nous citons l’original. 12 Chaïm Perelman et Lucie Olbrechts-Tyteca, Traité de l’Argumentation, 2° éd. (Bruxelles : Éditions de l’Institut de Sociologie, 1970) ; Chaïm Perelman, Logique juridique, Nouvelle rhétorique (Paris : Dalloz, 1976) et, Chaïm Perelman et Paul Foriers, La motivation des décisions de justice (Bruxelles : Établissements Émile Bruylant, 1978). Au Canada, voir Marc Gold, « La rhétorique des droits constitutionnels, » Revue juridique Thémis 22 (1988) : 1. 13 Jean-Claude Anscombre et Oswald Ducrot, L’argumentation dans la langue (Bruxelles : Mardaga, 1983). Voir également Algirdas Julien Greimas, Introduction à l’analyse du discours en sciences sociales (Paris : Hachette, 1979), ainsi que Christian Plantin, Essais sur l’argumentation (Paris : Kine, 1990). 14 Armelle Chitrit, linguiste, a appliqué cette première version de la méthode élaborée avec le concours de Régine Robin, d’abord au corpus du juge Le Dain, puis du juge Beetz. La démarche, très complexe, s’est révélée éclairante et a permis ensuite de mettre en rapport les formes repérées du discours avec les postulats implicites dégagés par les juristes, de même que la détermination des formes dominantes dans le discours de chaque juge. Elle a rendu compte de cette approche complémentaire dans « Implicite et discours judiciaire : Une société libre et démocratique, » Discours

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social / Analyse du discours et sociocritique des textes IV : 3 et 4 (1992) :97. 15 À titre d’exemple, nous avons pu déterminer que la fréquence de l’usage du terme « compétence » dans le discours du juge Le Dain était liée non pas à un surinvestissement de sa part de la compétence au sens large, mais au cadre institutionnel dans lequel il œuvrait (exercice par la Cour d’appel fédérale du contrôle judiciaire de la compétence des tribunaux inférieurs et des organes administratifs). 16 Ainsi le principe de la séparation des pouvoirs, qui informe toute la pensée de Le Dain sur la démocratie, s’est révélé comme un postulat obligé de l’importance du contrôle judiciaire central à sa notion de société idéale, alors que l’analyse des seules formes du discours ne l’avait pas fait affleurer. 17 L.R.C. 1985, c. 0-3. 18 L.R.C. 1985, c. A-2. 19 Ordonnance sur les normes et méthodes des communications aéronautiques, DORS  / 76-551. 20 De l’avis même du juge Le Dain. 21 Voir annexe, ci-dessous. 22 Rapport sur l’usage non médical des drogues. 23 Ces propositions entre guillemets réfèrent à des images de société inférées à partir de la méthode harrissienne mentionnée à la note 8, supra. Ainsi, « le tort causé à la société » (à la p. 12) devient « la société est lésée », et « conséquences nocives […] pour la société» (à la p. 18) devient « la société est menacée ». 24 Renvoi relatif aux lois de l’Alberta, [1938] R C S 100, [1938] 2 D.L.R. 81. 25 Nicholson c Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 RCS 311, 88 D.L.R. (3) 671. 26 Law Society of Upper Canada c Skapinker, [1984] 1 R C S 357, 9 D.L.R. (4)161. 27 L’analyse des décisions post-Charte portant sur les interprétations de « société libre et démocratique » et de « liberté » au sens de la Charte, il ne s’agit plus d’images véhiculées par des mentions expresses ou induites de l’implicite. n n’y a donc plus lieu de souligner cette distinction, désormais inexistante, par l’usage de caractères ordinaires ou helvetica. 28 Nous avions cru au départ qu’un juge faisait aussi implicitement siennes les formes de raisonnement employées par ses collègues aux opinions desquels il souscrit. La très grande divergence de ces formes argumentatives des différents juges auxquels s’est rallié le juge Le Dain nous empêche, au moins provisoirement jusqu’au terme d’une analyse plus poussée du corpus de ces autres juges, de maintenir cette hypothèse assez fermement

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pour justifier l’inclusion dans notre analyse de ces formes argumentatives que le juge Le Dain n’a pas rédigées lui-même. 29 Certaines décisions auxquelles il souscrit et qui contiennent des mentions expresses de liberté ou de société libre et démocratique n’ont pu être retenues à cause du caractère obligé et rituel des mentions de liberté incluses dans l’expression « la Charte des droits et libertés », et du caractère incantatoire que revêt l’expression « société libre et démocratique » lorsqu’elle est utilisée dans la citation de l’article 1 de la Charte, ce qui les rendait inutiles et sans signification pour les fins de notre analyse. 30 Sur ce sujet, voir Andrée Lajoie, « Schachter ou la retenue judiciaire comme antithèse de la neutralité, » dans Actes des Journées Strasbourgeoises, Droits de la personne: l’émergence de droits nouveaux (Cowansville : Yvon Blais, 1992), 525. 31 Voir Andrée Lajoie, « Dickson’s Images and Interpretation of a ‘Free and Democratic Society’, » dans DeLloyd Guth, dir., Brian Dickson at the Supreme Court of Canada, 1973 to 1990 (Winnipeg : Canadian Legal History Project and Supreme Court of Canada Historical Society, 1998), 105. 32 Et peut-être aussi dans celui d’autres juges, ce que nous ne pourrons vérifier qu’au terme de nos travaux. 33 Perelman et Foriers, La motivation des décisions de justice. 34 Lajoie, « Dickson’s Images and Interpretation. » 35 Voir sur ce sujet notre introduction, ci-dessus. 36 Notre étude sur le corpus du juge Beetz sera sans doute utile pour documenter ces pistes, mais ne saurait suffire, même en cas de concordance, à appuyer adéquatement l’affirmation. 37 L’école réaliste américaine et celle des Critical Legal Studies, sans faire une véritable analyse du discours, ont distingué entre les décisions basées sur un syllogisme (arguments formalistes) et celles qui se fondent sur leurs propres conséquences prévisibles (arguments réalistes). Nous avons cru utile d’intégrer ici ces concepts à une analyse plus classique du discours.

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13 Judicial Opinion Writing Gerald E. Le Dain Among the qualities to which appellate court writing should aspire are clarity, precision, and coherence. These are closely related, and indeed overlapping, qualities. They are also, of course, qualities or attributes of thought, as well as expression. Without clear thought there cannot be clear expression. I always considered clarity a judicial duty. From the number of persons who have praised the clarity of my work I would judge that it is a quality much appreciated by other members of the profession, who have to try to understand, at their peril, precisely what has been decided. Precision is an important quality of judicial craftsmanship, as it is of all legal craftsmanship, such as the drafting of legislation and contracts; it involves accuracy and exactness in the statement of the facts, the issues, and the applicable law. By coherence I mean the ability of an appellate court to speak with an intelligible majority voice, despite dissenting and concurring opinions. This becomes more difficult with the increasing length, prolixity, and proliferation of judgments, which seems to be the trend of the present Supreme Court of Canada. It is easy enough to discern the immediate practical effect of the judgment for the parties; it is sometimes more difficult to discern the guiding principles for the future, which is the matter of concern to others in the profession. Clarity, coherence, and precision are often sacrificed, I suspect, to a striving for profundity, or the appearance of profundity, and literary effect. Economy and restraint are two other qualities of judicial craftsmanship that I would rank as important. By economy I have in mind trying to write no more than is necessary for the adequate disposition of the issues. Economy is the expression of the answer to the question,

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“Is this necessary?” It is the “pithiness” that Marcel Joyal was kind enough to attribute to my work and is synonymous with concision or succinctness. The restraint I have in mind is more a matter of style than of substance. It avoids rhetoric, overstatement, exaggeration, and extravagant imagery. It gives a piece of writing its tone and may be said to be good taste in writing. At its best, it gives writing an air of authority, detachment, gravity (the Roman gravitas), and distinction. It is the appropriate expression of reason rather than emotional preference or passion. It permits the force of reason or logic to speak for itself by clothing it in simple, clear, dignified expression that does not distract the reader’s attention from the substance. To be an effective judge you have to have a lot of confidence in the correctness and value of your opinions, and a natural desire to give expression to them. A judge is a writer, with the usual strong literary impulse to write. I recall Ruggero Aldisert’s remark at the beginning of the course on judicial writing at the New York appellate judges seminar in 1981: “The first thing to remember is that you are professional writers.” Sometimes judges in a case – I am really only discussing writing in an appellate court – appear to be determined to write regardless of what their colleagues may do. They appear to write without reference to what others may have written. The result is that you have several overlapping statements of the facts, the issues, the relevant authorities, and the reasoning to support the conclusion, and it is sometimes very difficult to discern the common ground of decision. That was very much the case with the 1950s Supreme Court of Canada. Sometimes, almost every member of the Court would write, as if he was sitting as a judge alone. There was a reaction from that in the 1960s, where an effort was obviously made to achieve unanimity as often as possible and to express the Court’s conclusions in shorter judgments, but then a trend set in under Laskin and Dickson towards longer judgments – what I have called “the law review style” – and a multiplicity of judgments again. The long, treatise-like judgment, with its expansive dicta going beyond the requirements of the case, so favoured by the academics because it provides good teaching materials, invites concurring and sometimes, of course, dissenting opinions, precisely because it generally flies in the face of the well-known caution of judicial prudence: say no more than is absolutely necessary for the disposition of the instant case. It was this caution, often stated by the Privy Council, and generally followed by it, that made their single judgment

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tradition feasible, although the concealment of dissent was not a good feature of that tradition. The ostensible reason for writing a concurring opinion is that you are not prepared to concur in, or appear to be concurring in, everything that is said in the majority opinion, and you desire to indicate the precise extent of, or reasons for, your concurrence. By indicating the precise reasons for your concurrence, you indicate by implication what you are not prepared to agree with in the majority opinion, at least at this time. This is often necessary where the majority opinion appears to go farther than is necessary for the disposition of the case and contains dicta which are not necessary for the disposition of the issues, and with which you cannot agree, or with which you are not prepared to agree at this time. A concurring opinion is an attempt to control the reasoning or ratio decidendi – the statement of the law for which the case will stand. Sometimes a strong concurring opinion will, for this reason, attract a majority from among members who share similar reservations about what might have been the majority opinion. I used to find it much easier to write a concurring opinion than a full-length opinion, and I could write them quite quickly, because I could adopt or rely on the statement of the background of the case – the facts, the issues, and the relevant authority – in the full-length opinions of my colleagues and take off from there. The result is that my concurring opinions were some of my best judicial work. They had a focus, an economy, and a succinctness which my full-length opinions could not have. The short concurring or dissenting opinion was the one best adapted to my judicial skills. The essay was the form that I found most congenial. It was the kind of writing to which I could do justice within a reasonable period of time and often quite rapidly. I could achieve the unity, compression, and economy that can be achieved by swift strokes.

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14 Engaged Professionalism Rosemary Cairns Way There is increasing evidence of a healing of the divided self in law: ­expertise and social conscience are beginning to find each other. Le Dain, “Quest for Justice”

In t ro du c t i on I met Justice Le Dain for the first time in late March of 1985. He was one of five judges to interview me for a clerkship at the Supreme Court of Canada. My son was then six weeks old, my daughter almost three. I was both overawed and intimidated by the experience of meeting five justices of the Supreme Court in the space of approximately four hours. The combination of awe, anxiety, and chronic exhaustion could have resulted in disaster, but I remember the day as an impressionistic blur of courteous questions, polite detachment, and perfect timing. There was one exception: Gerald Le Dain. Unlike a number of his colleagues, Justice Le Dain had no apparent interest in how I was going to manage the demands of a clerkship as a young mother. He was far more interested in hearing my views on the current state of Canadian legal education. The interview turned into a conversation, and then a debate, continuing well past the allotted time. In fact, it took a gentle knock on the door from Justice Le Dain’s secretary to bring our animated dialogue to an abrupt conclusion. When Justice Le Dain phoned some weeks later to offer me articles of clerkship under his supervision, my delight was tempered somewhat by my recollection of our “interview.” The engagement and intensity of our discussion, and the obvious relish with which this senior statesman

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of the Canadian legal system threw himself into conversation with a legal neophyte was incompatible with my nascent conception of legal professionalism, a professionalism characterized by hierarchy, neutrality, and certainty. In the end, my year as Justice Le Dain’s law clerk taught me more about legal professionalism than I could possibly have anticipated. I carry the experience with me still, in the classroom, in my scholarship, and in my aspirations for my students. I continue to reflect on the question of what it means to be a legal professional, both generally and in the particular context of my own career as a legal educator, and I consider this reflection to be, in itself, an aspect of my own professional identity. I am acutely aware of and grateful for the role that Gerald Le Dain played in my professional formation: he was mentor, teacher, role model, and friend. In this short chapter, I hope to examine the continuing contemporary significance of Justice Le Dain’s personal model of legal professionalism. I have drawn the outlines of that model primarily from three extrajudicial texts written between 1960 and 1981, as well as from my personal experiences with him during and after my clerkship. In “The Theory and Practice of Legal Education” Le Dain, then a youthful part-time law professor with significant practice experience, reflects on the objectives of legal education and on how those objectives can be furthered by the law teacher.1 The article was published at a critical time in legal education, a time when relationships between the profession and university legal education were evolving.2 The Law Society of Upper Canada surrendered its monopoly of legal education in 1957.3 This permitted what Le Dain called the “great development[s]” of the sixties, “the full recognition and development of university faculties of law.”4 Gerald Le Dain’s involvement in that evolution culminated in his appointment as dean of Osgoode Hall Law School at York University. The second text was prepared as a speech to be delivered at the official opening of the new law building at the University of New Brunswick. Le Dain had been asked to consider taking on the presidency of the university, an honour he had declined because of his commitment to Osgoode Hall.5 His remarks, entitled “The Quest for Justice: The Role of the Profession,” provide remarkable insight into his theory of justice, his vision of what it means to be a legal professional, and his commitment to university legal education.6 The third article was written after his appointment to the Federal Court in 1975. It was prepared for a conference on the achievements of F.R. Scott and was published in the McGill Law Journal as part of

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the Governor General’s award-winning collection On F.R. Scott: Essays on His Contributions to Law, Literature and Politics.7 Le Dain offers a grateful assessment of Scott’s unique contributions to legal education, discussing those contributions from the perspective of friend, colleague, and mentee. His analysis makes obvious the important intellectual and legal links between these two great Canadians and their shared vision of lawyering. Le Dain’s concluding paragraph on Scott could easily have been written twenty-five years later as a commentary on his own legacy. “[He] was a model of excellence for his students and his fellow teachers. He inspired them both. He stimulated the love of law and the professional aspiration of his students, and he stimulated the sense of professional identity and purpose of his fellow teachers.”8

C u r r e n t A p p roaches to L e g a l P ro f e ssi onali sm What do I mean by legal professionalism? In my view, theories of professionalism are theories about how to create a meaningful life in and with the law. Rosalie Abella, in “Professionalism Revisited,” suggested, “There are three basic values which merge in being a good lawyer: a commitment to competence, which is about skills; a commitment to ethics, which is about decency; and a commitment to professionalism, which transfuses the public interest into the other two values.”9 In other words, professionalism, or professional responsibility, is about the obligations that individual lawyers owe their clients, and the public at large. Professionalism is a theory or an approach to practise that ultimately justifies the privilege of self-regulation, a privilege that both ethical codes and statutory instruments link to the “public interest.”10 My focus in this discussion is on “macro-ethical questions,”11 which relate to the larger public obligations of legal professionals. It is these systemic or institutional issues that Le Dain discusses in his work. There has been a dramatic reinvigoration of interest in professionalism over the last two decades. The reasons are complex12 but, at least arguably, reflect increasing concern with the public image of the profession.13 Debates and discussion about the normative contours of legal professionalism are taking place in law schools, in the regulatory environment, in practice, and in the judiciary. The scholarly

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literature on professionalism has grown exponentially. In Ontario, the discussion was enormously enriched by the creation of the Chief Justice’s Advisory Committee on Professionalism.14 The advisory committee, the brainchild of former chief justice McMurtry, undertook three projects: (1) drafting a definition of professionalism based on “building blocks” that were intended to assist members of the bar; (2) organizing more than a dozen conferences and colloquia on professionalism that have generated a substantial and serious literature; and (3) investigating and promoting the teaching of legal ethics and professionalism in law schools, and more recently as part of continuing legal education initiatives mandated by provincial law societies.15 The “building blocks” identified by the advisory committee include scholarship, integrity, honour, leadership, independence, pride, spirit, collegiality, service, and balanced commercialism, with integrity implying a shared responsibility for protecting the public interest.16 In his thorough and extremely helpful discussion, Professor Trevor Farrow identifies two primary models of professionalism that offer differing responses to what Farrow characterizes as “the fundamental question.” “Should a professional always do all that the law allows, or should the professional recognize other constraints, particularly concerns for the welfare of third parties?”17 Farrow’s first model, the dominant model, is captured by the idea of “zealous advocacy / resolute representation.”18 Lawyers are neutral, amoral agents for their clients. Farrow argues that this “traditional narrative has run its course” and is no longer sustainable.19 The second model, which Farrow characterizes as a response to the first, conceives of lawyers’ obligations more holistically and obliges lawyers to take account of a range of interests in their professional actions.20 Professor David Tanovich offers an example of this second approach in “Law’s Ambition and the Reconstruction of Role Morality in Canada.”21 Tanovich argues that “an ethic of client-centred zealous advocacy has slowly begun to be replaced with a justice-seeking ethic that strives to give effect to law’s ambition.”22 In a similar vein, I have argued elsewhere that notions of professional responsibility need to be both attentive to and constitutive of constitutionalized equality norms.23 Alternative models of professionalism, which Farrow argues are more consistent with the “modern realities of lawyering,”24 tend to require the identification of shared moral values, a requirement that fundamentally challenges the neutral, amoral, role morality of the dominant model. Farrow proposes a third model, which he calls “sustainable

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professionalism.” He posits a new discourse that seeks to “become personally, politically, ethically, economically, and professionally sustainable,” a discourse that “seeks to make good on what has largely only amounted to aspirational promises of equality, access to justice, and the protection of the public interest” while taking seriously the obligation to “address the culturally complicated makeup of the bar and our general pluralistic and globalized civil societies.”25 In the end, the differing conceptions share a common feature, “a shared recognition that being a lawyer means something more than having a job … it entails duties to others, and ways of acting in living one’s professional life.”26 What differentiates the different approaches is the way in which the other-regarding duties are understood. Are they narrowly client-based? Or are they more systemic and multidimensional? I agree with Farrow that recent scholarship tends towards an increasingly substantive and contextualized assessment of the nature of the profession’s public obligations, and away from the more technical, negative, and rule-driven versions. This trend is consistent with broader trends in legal scholarship that pay critical attention to law’s potential to either sustain or challenge the status quo. Most interesting for the purposes of this chapter is the fact that many of the key concepts are foreshadowed in Gerald Le Dain’s work.

G e r a l d L e D a in ’ s P ro fes si onali sm Any concept of professionalism must rest on assumptions about what lawyers do. Le Dain’s legal career was characterized by variety and change, and his different experiences clearly played a significant role in his professional identity. He was an associate in a large Montreal firm, partner in a smaller firm, corporate counsel, and constitutional counsel for the Province of Quebec. He was a law professor, law dean, advisor to government, and chair of an intensely public and political inquiry before ending his career as a justice at the ultimate appellate level. He was, in other words, an accomplished legal generalist, with interest and expertise in civil law, private law, administrative law, and constitutional law. He was, by temperament, and of necessity, continuously educating and re-educating himself. Indeed, the opportunity for lifelong learning was, in his view, both the gift and the obligation of a life in the law. His homage to Scott makes clear how much Le Dain valued breadth of perspective. Scott, he wrote, “did not suffer from the limited view and range resulting from premature and narrow

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specialization.”27 The capacity to identify connections and to see interrelationships was important to Le Dain professionally and intellectually.28 His professional experiences required him to look outside subject-area silos and to use his imagination to see connections. He referred with admiration to Frank Scott’s willingness to look beyond what might be “legally sound,” and to “see the law in the round.”29 Indeed one of his favourite stories concerned a case he litigated at the Supreme Court for the Attorney General of Quebec. The name of the case (which I cannot recall) is less important than how Le Dain used the experience to educate his law clerks. The story, stripped of colourful detail, involved a young advocate who, in oral argument, was successful in challenging the way in which a case was conceptualized and whose risk-taking advocacy eventually persuaded the Court. The essential point, which was made with eloquence, energy, and delight, was about avoiding intellectual complacency. For his clerks, the message was clear: think creatively, be prepared to challenge received assumptions, and be willing to take intellectual risks.30 Although Gerald Le Dain’s professional career was characterized by diversity, it was apparent to anyone who met him that he had an overarching perspective on what it meant to be a legal professional. His perspective reflected his convictions about the important role lawyers play in society as advisors, policy-makers, decision-makers, and change agents. The University of New Brunswick speech begins with the following exhortation: “Our corporate responsibility for justice is a reflection of the scope and relative importance of our role in society … We cannot escape responsibility for the quality of what I propose to refer to here as social justice.”31 This notion of an aspirational and collective responsibility for justice is the animating idea of the speech. Le Dain distinguishes between “judicial justice” – the justice dispensed in adjudicative processes – and “social justice” – which he describes as the substantive standards of justice reflected in “our laws, our agreements, our exercise of authority, and our human relations and social conditions generally.”32 Le Dain’s concept of social justice is linked to “equality of opportunity.” He argues that social justice is intimately connected to public confidence in judicial justice, concluding that “it is impossible to erect a satisfactory system of judicial justice … upon a foundation of widespread social injustice.”33 Law in an unequal system will simply reflect and exacerbate those inequalities, and, in doing so, lose its claim on public confidence.34 For Le Dain, a primary justification for professional attentiveness to

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inequality is ensuring the profession’s capacity to sustain itself and its ability to “discharge its very heavy responsibility of public service and leadership.”35 The existence of inequality means that valuable human resources are wasted rather than nurtured. In his view, there is a “moral imperative” for the legal profession to take advantage of ability, which coincides with “enlightened self-interest.”36 Le Dain’s focus is on education, which he characterizes as the single most important factor bearing on equality of opportunity, and is of particular importance to the legal profession. Access to professional education means access to power, leadership, and the opportunity to use law for change. It should not depend on “the accidents of heredity, wealth, privilege or nepotism.”37 Le Dain expresses concern about the burdens of legal education, its cost and length, and worries that the profession may be “drawing too heavily from a relatively small group in the population with a particular social perspective and bias.”38 Representativeness is, in other words, an essential characteristic of a profession with the ability to respond to rapid social change. Le Dain’s words, sadly, seem as apposite today as they did forty years ago. He worries about expecting young people to “carry too great a burden of debt into the beginning of their careers”39 and muses about the possibility of free university education, suggesting that the claim that the costs may be prohibitive reflects a “radically wrong” ordering of priorities. Here, one senses the influence of Le Dain’s own biography. He came of age, intellectually, at the beginning of the Second World War and served with the Canadian Army between 1943 and 1946. His return to complete his legal studies at McGill was supported by the veterans’ program. He writes, “I cannot help reflecting on what might have happened in my own case if I had not benefitted from the veterans’ program … It is too bad that we only seem to be able to justify some of these more imaginative measures when we fight a war.”40 Apart from financial inequality, the main obstacle to equality of opportunity is, in his view, “the amount of discrimination that is still practised against ethnic and racial minorities of all kinds.”41 The profession has an obligation to “support public and private efforts to eliminate discrimination” and to ensure that prejudice does not “cut us off” as individuals and professionals from “access to ability.”42 These ideas about diversity, equality, and opportunity reflect the intellectual environment of the late 1960s. Le Dain describes the times as revolutionary: “This revolution has been a long time in the making, and it is important for lawyers to realize that it carries with it a search

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for intellectual honesty as well as a great deal of impatience with the authority of tradition. The law is going to have to modernize its idiom, purify its thought processes and enlarge the range of its relevant concerns. For the law is one of the voices of authority and will increasingly come to be the object of critical evaluation by a generation that is emancipating itself from awe.”43 What is most remarkable about this passage is Le Dain’s constructive response to the protest against authority. It is the law that needs to change, and not young “revolutionaries” who need to be quashed. He predicts that “an increasing proportion” of professional time will be spent “guiding change,” as opposed to “perform[ing] technical tasks within a framework of familiar institutions, relationships and assumptions,”44 and recognizes that this professional work will require a new set of skills. The competent legal professional will need a “vivid and intimate understanding of the dynamics of political and social institutions and of how law operates in relation to other methods of social control.”45 Some years later, in a convocation address on the occasion of his honorary doctorate at Osgoode Hall Law School, Le Dain specifically acknowledges the personal and systemic impact of a generation of students who understand law as “an intellectual discipline and as an instrument of social control and change.”46 Of course, anyone who has listened to a number of convocation addresses knows that the temptation to fill them with comforting bromides is almost impossible to resist. For me, what distinguishes Le Dain’s text is my knowledge that he was truly eager and delighted to learn from younger lawyers. My interview at the Court was not an anomaly. Justice Le Dain was sincerely interested in what I thought about legal education. He demonstrated that sincere interest whenever we discussed a case in his chambers, when the law professor took over from the judge, and he pushed me hard to keep up with him as he prepared himself for a hearing or for writing a judgment. I see the judicial mentor he became in how he described the task of the law professor: “The teacher is the stage manager of an intellectual performance – patient, encouraging, tough, provocative by turn … He must question, prod, challenge, keep the discussion progressing along relevant and constructive lines, [and] must at all times be an intellectual irritant.”47 Harry Arthurs, friend and colleague, recognized Le Dain’s “special quality of empathy” and his willingness to engage with “young people on their own terms.”48 Neither age nor retirement diminished his genuine enthusiasm for new ideas about law and society. In my eulogy,

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I described our regular clerk reunions: “Justice Le Dain was consumed with making them perfect and with ensuring that everyone be included and appreciated. The evenings were fantastic – we talked about the law, about the country, about politics, about books, and about ideas – in effect, they were seminars with food and drink – characterized by shared understandings and experiences – and flavoured with affection and respect.”49 Eight of Le Dain’s ten clerks went on to become law professors, surely a testament to the quality of his ongoing mentorship and his keen commitment to the academic discipline of law. Le Dain’s attention to how law is situated in the larger social and political context is evident in his writing about legal education. Just as the New Brunswick speech is about professional “corporate” responsibility, so the article on education is about the responsibilities of legal educators. For Le Dain, “no university can be satisfied unless it is turning out graduates capable of bearing their share of the profession’s responsibility for law reform.”50 Here we see Le Dain articulate some of the qualities that he sees as essential to the evolved legal mind. In addition to qualities such as thoroughness, intellectual selfreliance, and a critical faculty,51 Le Dain suggests that law schools need to accept responsibility for the graduate who “thinks of the courts as the only places in which law and legal reasoning operate to influence decisions, and as a result misses many opportunities to resolve difficulties before they reach the pathological state of litigation; is naïve about the relationship of law to policy …; fails to realize that too much law can be as fatal as too little, and in a well-meaning attempt to serve a client, strains at a gnat and swallow a camel, fashioning for the parties a straight-jacket instead of something they can live, breath and move around in.”52 For Le Dain the student of law was, of necessity, a student of society. He shared F.R. Scott’s view that law should be taught “in the liberal tradition.”53 He insisted on what would now be labelled as interdisciplinarity and argued that the fundamental objective of legal education is to develop “perspective, realism and sophistication about the role of law, its relationship to life, the great and varied range of its impact, and its limitations.”54 Always a realist, he questioned the efficacy of high “conceptualism” and suggested that a sophisticated approach to law would not “mistake the conceptual apparatus of the law for the end of law” but would rather use the law as a “flexible instrument for the pursuit of rational and just results.”55 Justice Le Dain carried this concern for what I would describe as reification

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with him to the Supreme Court. Again, a memory of him that I included in my eulogy suffices: He is pacing – restless, physically engaged in the challenge of reasoning through a case involving the Charter of Rights and Freedoms. He is thinking aloud about the application of the atthe-time novel balancing test set out in Oakes. Le Dain is anticipating the implications of the test’s structure. ‘I’m worried” – he says – ‘the test is becoming formalistic – simply recite the steps – and reach a conclusion – we aren’t thinking about the implications – we’re just performing an Oakes two-step.’” And before my somewhat astonished eyes he spun into a stylized dance – his lanky frame silhouetted in the late afternoon light shining in the window, with the Peace Tower as backdrop. This deep and continuing concern with the implications of his professional work was, in my view, the enduring characteristic of Le Dain’s professionalism. It was consistent with the high aspirations he insisted on for himself and his students and that he held for the profession.

T h e Im p l ic ati ons o f L e D a in ’ s P ro fes si onali sm The key qualities of Justice Le Dain’s professional identity are as relevant today as they were during his distinguished career. Four normative ideals animated his lived example of professionalism: (1) commitment to lifelong learning as part of a recognition of the social power of legal training; (2) understanding professional responsibility as collective, aspirational, and linked to social justice; (3) concern about equality and representativeness (particularly within the profession); and (4) belief in the importance of a broad liberal education in law with concomitant professional responsibilities inhering in the role of law professor. Let me conclude by briefly relocating Le Dain’s professionalism into the present context. A commitment to lifelong learning and continuous professional development is the animating idea behind a range of professionalism initiatives undertaken by law societies across the country.56 The need for continuous learning in the face of change has led many law societies to implement mandatory continuing education requirements. Long

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anathema to lawyers steeped in a thin concept of independence, mandatory continuing education is now viewed as a dimension of the public accountability that justifies self-regulation.57 The most important professional skill, therefore, is the capacity to deal with change in a manner consistent with the public interest. Le Dain’s reflections on connections, interdisciplinarity, and the capacity to think creatively are entirely commensurate with these developments. Ironically, both the pace of change and the accompanying explosion of information58 have led to a changed practice environment and increasing specialization within ever-larger and more complicated legal businesses. Stephen Goudge has wondered whether the growth of specialization, which he sees as “the inevitable result of the growing complexity of the law,”59 will threaten the existence of shared professional values. I suspect that Justice Le Dain would have shared this concern, primarily because of its incompatibility with the notion of “seeing law in the round.” As I suggested above, much contemporary professionalism scholarship is wrestling with questions of a “corporate responsibility for justice.” Current discussions of collective responsibility focus on the fact that justice in Canada is increasingly inaccessible to all but the very rich and the very poor. Dodek and others argue that an inaccessible justice system is, by definition, incapable of serving the public interest. A legal system that “has become a service industry to a new aristocracy composed of corporations, governments and wealthy individuals”60 is more about power than justice. Interestingly, while Le Dain did not address access issues directly, he did speak carefully about corporate power in his New Brunswick speech. He argued that a “sophisticated” quest for justice depended on a recognition of the governmental nature of “modern corporate power,” which needed to be regulated in the public interest and with a view to protecting individual rights.61 Similarly, Le Dain’s commitment to the professional value of representativeness and his concern with inequality is as relevant today as it was forty years ago. Although there have been significant professional gains for women and members of racialized communities, the law schools, the academy, the profession, and the bench cannot claim to be truly representative. Both Dodek and Farrow argue that the obligation to promote, protect, and celebrate diversity must be part of professional identity.62 Farrow’s model of sustainable professionalism requires the rejection of “homogenous” narratives of professionalism.63 Such narratives are exclusionary64 and inconsistent

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with the fundamental legal norm of equality.65 He writes, “A greater understanding and openness to diversity in our notions of professionalism will provide a more welcome and meaningful home for more lawyers. It will also push the profession’s understanding of and participation in a public interest that truly reflects the reality of our general pluralistic and globalized civil societies.”66 Finally, Le Dain’s vision of a university-based, liberal education in the law is as politically relevant today as it was in the sixties. In his piece on F.R. Scott, Le Dain described the revolution in legal education that occurred in the late fifties, and the tension that existed between the academy and the bar at that time: It took a good deal of time to reach a satisfactory accommodation. In the process there was a good deal of misunderstanding and recrimination, and, I suppose one would have to say, mutual distrust. The practising profession was concerned about the adequacy of academic legal education as a preparation for the practice of law. It was also concerned about its own capacity to provide an adequate system of practical training. For their part, the full-time teachers of law resented the practising profession’s lack of confidence and support and felt frustrated by its efforts to control the content of the academic program.67 One may be forgiven for experiencing a profound sense of déjà vu while reading this passage in light of the recent sustained and ultimately successful effort by the profession to re-enter the field of university legal education. The Federation of Canadian Law Societies Task Force on the Canadian Common Law Degree submitted its final report to the Federation in October 200968 following what deans and legal academics have characterized as an entirely inadequate consultation.69 The Final Report of the Task Force, which was adopted by the federation and subsequently by every law society in the country, identifies a list of “required competencies” that must be taught in any law school that offers a degree intended to allow its graduates to be called to the bar. In other words, university law schools are now required to ensure that their curriculum fulfills requirements imposed by the profession. The motivation for this unprecedented development was provincial fair access legislation aimed at regularizing the admission and call requirements imposed on lawyers with extra-Canadian legal qualifications. It is not the purpose of this chapter to engage in

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a lengthy discussion and critique of this initiative; others have done so and will certainly continue. Rather it is to note that this initiative has taken Canadian law schools back to a model similar to the one that was abandoned in 1969. Then Dean Le Dain, in a presentation at the Annual Meeting of the Canadian Association of Law Teachers entitled “The Future of Canadian Legal Education” said, “During the past year discussions took place between the Ontario Committee of Law Deans and the Law Society with a view to the liberalization of the curriculum requirements. An agreement was reached which offers the law schools substantial scope for curriculum reform and developments, and for all practical purposes, puts an end to the Law Society’s regulations as a seriously inhibiting factor in legal education … In effect, the new regulations permit the complete optionalization of the post first-year programme.”70 Le Dain was quite clearly pleased with this development, which he characterized as a necessary “revolution” in legal education characterized by “a purposeful energy, a new confidence and spirit of adventure, and the emergence of resources which give grounds for optimism about the future.” Contrast these hopeful words with the emphatic critique of the federation initiative offered by Professor Constance Backhouse: Canadian law schools have excelled and flourished over the last forty years without detailed regulatory review from professional bodies … The regulatory approach set out in the Draft Discussion Paper attempts to freeze a “one solution fits all” model into a fluid, rapidly changing, diversifying set of conditions that Canadian law schools have been evolving to meet … What is clear is that in the first decade of the 21st century, the change that has always been the hallmark of legal practice continues, but the pace of change has never been faster. Globalization, the technological revolution, and an increasingly diverse society based on cultural, ethnic, linguistic and gendered transformations have combined to shift the very ground we walk on faster than we can take stock of the changes.71 Similarly, the response by the Canadian Association of Law Teachers focuses on the role of law schools in educating future leaders: A reconfiguration of law school curricula that places a predominant emphasis on professional competencies at the expense of

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creativity, innovation, and the study of the broader role in society would be a serious loss … to society and the public interest … [A] law school curriculum that emphasizes professional competencies at the expense of a liberal, legal education would ill-equip [students] for their chosen vocation … Law schools must continue to cultivate and cherish societal perspectives on law as well as pedagogies that enhance the ability to re-educate oneself and to think critically and imaginatively in response to social change.72 More than fifty years ago a young Professor Le Dain offered an assessment of the curricular sophistication of the bar: One can understand the concern that the students should at least be made aware of the existence of the various subject-matters which make up the contemporary body of law, but the notion that one must somehow distribute the available time for instruction over this vast area is inconsistent with serious educational purpose … It may be presumed that the Bar knows the kind of intellectual product it wants – that it is capable of judging results – but its approach to the regulation of curriculum does not suggest that it understands how that product is produced. And why should it be expected to? Education is not its specialty but that of the universities.73 I try to imagine how Dean or Justice Le Dain might respond to these changes. Perhaps the “brilliance of his argument … the acuity of his analysis,” or quite simply “the sheer force of his personality”74 might have made a difference. I am quite sure they would have had an impact. I am also reasonably sure that the dean and law professor in him would have been especially incensed by the anti-intellectualism of the “competencies” approach, by the lack of rigour demonstrated in the absence of evidence-based analysis, and by the apparent failure (or refusal) to grapple with the significant implications of this regulatory initiative. Perhaps most importantly, I imagine that this openminded man would have been displeased with the conservatism of the bar’s refusal to put its faith in a relatively young, increasingly diverse, fully engaged, and idealistic cadre of legal academics prepared to embrace the reality of change in the way he modelled throughout his professional life.

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N otes   1 Gerald E. Le Dain, “The Theory and Practice of Legal Education,” McGill Law Journal 7 (1960–61): 192.   2 See Harry W. Arthurs, “The Tree of Knowledge, the Axe of Power: Gerald Le Dain and the Transformation of Canadian Legal Education” in this volume.   3 Gerald E. Le Dain, “F.R. Scott and Legal Education,” McGill Law Journal 27 (1981): 1 at 12; and Le Dain, “Notes for an Address on ‘The Future of Canadian Legal Education,’ Annual Meeting of the Canadian Association of Law Teachers, June 1969,” unpublished archival material on file with the author. See generally John P.S. McLaren, “The History of Legal Education in Common Law Canada,” in Legal Education in Common Law Canada: Reports and Background Papers, ed. R.J. Matas and D.J. Macauley (Montreal: Federation of Law Societies of Canada, 1987), 111.   4 Le Dain, “F.R. Scott,” 12.   5 Gerald E. Le Dain, “Correspondence regarding the University of New Brunswick,” archival material on file with the author.   6 Gerald E. Le Dain, “The Quest for Justice: The Role of the Profession,” University of New Brunswick Law Journal 19 (1969): 18.   7 Le Dain, “F.R. Scott,” 1; and in Sandra Djwa and Ronald St J. Macdonald, On F.R. Scott: Essays on His Contributions to Law, Literature and Politics (Montreal and Kingston: McGill-Queen’s University Press, 1983), 103. Le Dain also figures in Sandra Djwa, A Life of F.R. Scott: The Politics of the Imagination (Vancouver: Douglas & McIntyre, 1987).   8 Le Dain, “F.R. Scott,” 13.   9 Rosalie Silberman Abella, “Professionalism Revisited,” Law Society of Upper Canada Gazette (2002): 16. 10 For a comprehensive discussion of modern theories of professionalism and their statutory and regulatory expressions, see Trevor Farrow, “Sustainable Professionalism,” Osgoode Hall Law Journal 46 (2008): 51 at 74–5. The Law Society Act also recognizes a professional duty to “protect the public interest.” Law Society Act, R SO 1990, c L 8, s 4.2. 11 Adam Dodek, “Canadian Legal Ethics: Ready for the Twenty-First Century at Last,” Osgoode Hall Law Journal 46 (2008): 1 at 7. For Dodek, macro-ethical inquiries “address systemic issues within the legal system and the legal profession” while micro-ethical questions concern the ethical choices made by individuals within that system. 12 Ibid., 9–20. 13 Perhaps the low point of the legal profession’s public esteem was reached in the summer of 2007 when the cover of Maclean’s magazine featured the headline “Lawyers Are Rats.” Maclean’s, 6 August 2007.

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14 “Chief Justice of Ontario’s Advisory Committee on Professionalism,” Law Society of Ontario, http://www.lsuc.on.ca/advisory-committeeprofessionalism/. 15 See the discussion of the committee in Stephen Pitel and Trevor Farrow, “Symposium Special Feature: Lifelong Learning in Professionalism – An Introduction,” Canadian Legal Education Annual Review 4 (2010): 3. This volume of the review contains a useful collection of articles that were presented at a symposium on continuing education and “lifelong learning” as a key aspect of professional identity. The symposium was held in February 2009. 16 Farrow, “Sustainable Professionalism,” 74. See also Stephen Goudge, “Looking Back and Looking Forward on Learning in Professionalism,” Canadian Legal Education Annual Review 4 (2010): 109 at 111. Justice Goudge’s article is the text of the annual Goodman Lecture. 17 Farrow, “Sustainable Professionalism,” 62. 18 For a discussion of the difference between the American model of zealous advocacy and the Canadian model of resolute representation, see Alice Wooley, “Integrity in Zealousness: Comparing the Standard Conceptions of the Canadian and American Lawyer,” Canadian Journal of Law and Jurisprudence 9 (1996): 61. 19 Farrow, “Sustainable Professionalism,” 63–70. 20 Ibid., 71–82. 21 David Tanovich, “Law’s Ambition and the Reconstruction of Role Morality in Canada,” Dalhousie Law Journal 28 (2005): 267. 22 Ibid., 273. 23 Rosemary Cairns Way, “Reconceptualizing Professional Responsibility: Incorporating Equality,” Dalhousie Law Journal 25 (2002): 28. 24 Farrow, “Sustainable Professionalism,” 79. 25 Ibid., 55. 26 Goudge, “Looking Back,” 111. 27 Le Dain, “F.R. Scott,” 5. 28 Le Dain, “Theory and Practice,” 195–7. 29 Le Dain, “F.R. Scott,” 6. 30 As a young lawyer and law professor, Le Dain cheerfully acknowledged the impossibility of completing a “legal education.” He wrote, “We are all at particular stages of growth. The fact that at any particular stage a man must talk and act as if he knows what he is doing cannot conceal from him the awareness that he is still learning and growing.” Le Dain, “Theory and Practice,” 195. 31 Le Dain, “Quest for Justice,” 18. 32 Ibid., 18–19.

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33 Ibid., 19. 34 Ibid. 35 Ibid., 20. 36 Ibid., 19. 37 Ibid., 20. 38 Ibid., 21. 39 Ibid. 40 Ibid., 21. 41 Ibid., 22. 42 Ibid., 22–3. 43 Ibid., 24. 44 Ibid. 45 Ibid. 46 Gerald Le Dain, “1976 Convocation of Osgoode Hall Law School of York University,” Law Society of Upper Canada Gazette (1976): 10. 47 Le Dain, “Theory and Practice,” 200. 48 Harry W. Arthurs, “A Locomotive of a Man,” Osgoode Hall Law Journal 45 (2007): 657 at 658. 49 Notes on file with the author. 50 Le Dain, “Theory and Practice,” 194. 51 Ibid. 52 Ibid.,” 193. 53 Le Dain, “F.R. Scott,” 4. 54 Le Dain, “Theory and Practice,” 193. 55 Le Dain, “Quest for Justice,” 28. 56 These are described in the symposium on lifelong learning in professionalism in Canadian Legal Education Annual Review 4 (2009). See, particularly, Richard Devlin and Jocelyne Downie, “… and the learners shall inherit the earth” at 9–26; and Alice Wooley, “The Character of Continuing Education in Legal Ethics” at 27–44. 57 See, for example, the Law Society of Upper Canada, Continuing Professional Development, described at https://www.lsuc.on.ca/CPDRequirement/. The CPD requirement is described as follows: “Lawyers and paralegals who are practising law or providing legal services must complete in each calendar year at least 12 C PD Hours in Eligible Educational Activities consisting of a minimum of 3 Professionalism Hours on topics related to professional responsibility, ethics and / or ­practice management and up to 9 Substantive Hours per year. Effective January 1, 2018, lawyers and paralegals must complete the C PD Equality, Diversity and Inclusion (EDI ) Requirement.” The purpose of the requirement is explained as follows:

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Continuing Professional Development (“CPD”) is defined as the maintenance and enhancement of a lawyer’s or paralegal’s professional knowledge, skills, attitudes and professionalism throughout the individual’s career. It is a positive tool that benefits lawyers and paralegals and is an essential component of the commitment they make to the public to practise law or provide legal services competently and ethically. The Law Society has an important role to play in supporting the efforts of lawyers and paralegals to maintain and enhance that competence. It also has a duty to ensure that all persons who practise law or provide legal services in Ontario meet standards of learning, professional competence and conduct that are appropriate for the legal services they provide. 58 Devlin and Downie, “… and the learners,” 15–16. 59 Goudge, “Looking Back,” 114. 60 Dodek, Canadian Legal Ethics, 40. 61 Le Dain, “Quest for Justice,” 25. 62 Dodek, Canadian Legal Ethics, 41–3. Farrow, “Sustainable Professionalism,” 90. 63 Farrow, “Sustainable Professionalism,” 90. 64 See Constance Backhouse’s classic critique of the idea of professionalism, “Gender and Race in the Construction of ‘Legal Professionalism’: Historical Perspectives,” Law Society of Upper Canada, http://www.lsuc .on.ca/media/constance_backhouse_gender_and_race.pdf. 65 Farrow, “Sustainable Professionalism,” 91. See also Cairns Way, “Reconceptualizing Professionalism,” 28. 66 Farrow, “Sustainable Professionalism,” 91. 67 Le Dain, “F.R. Scott,” 9. 68 Federation of Law Societies of Canada, Task Force on the Canadian Law Degree: Final Report, 2009, http://flsc.ca/wp-content/uploads/2014/10/ admission8.pdf. 69 For a thorough review and discussion of the federation initiative, see “Dialogue on Legal Education in Common Law Canada,” Canadian Legal Education Annual Review 3 (2009): 135–68. See in particular the submission of the Canadian Association of Law Teachers 151 at 156. 70 Le Dain, “Future of Canadian Legal Education,” 12–13. 71 Constance Backhouse, “The ‘Approved’ Common Law Degree,” Canadian Legal Education Annual Review 3 (2009): 143–4. 72 Canadian Association of Law Teachers, “The Approved Degree,” Canadian Legal Education Annual Review 3 (2009): 153. 73 Le Dain, “Theory and Practice,” 196. 74 Arthurs, “Locomotive of a Man,” 657.

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The Sunday Edition, C B C Radio One 14 January 2018 Produced by Bonnie Brown R i c h a r d J a n da : He was always the beacon in the room, the person one gravitated to. And he had such an intense look to him and such a kind of elegance of bearing that people couldn’t really resist paying attention. Dav id B ut t : Just the level of insight, the level of rigour, and the level of humanity that he brought to every judgment that he wrote or participated in, to me are timeless virtues, and it’s that combination, too. So yes, I think he is a judge for the ages. And I see it in terms of Greek tragedy, because it was just so much promise, and so much not done. Ha r ry A rt hurs: I think perhaps people don’t talk about him very much these days for a couple of reasons. One of them, a desire to avoid talking about the end of his career. We all know the end of Gerry’s career was a sad ending, not one that he would have wanted, or his friends and admirers would have wanted. C a roli ne B ur ge ss: I remember going up to see my dad in the hospital and being completely shocked at how he had changed in such a short time, from this vibrant, strong, strong man to this … somebody who was so frail. And I remember him saying to me, “I’ve let you all down.” And I remember saying to him, “You have not let us down. Never. You have been let down.” I’m Caroline Burgess. Gerald Le Dain was my father. He grew up in Montreal. He grew up in the Depression, my father, and when he

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was first starting elementary school they were living in Sainte Famille, which is sort of the Mordecai Richler area of Montreal. So he was kind of a scrappy guy, they played a lot of sports – kick the can, you know, generally got into not too much trouble, but he had that reputation of being a bit of a tough kid. But he was a great student. So after high school, my father briefly attended McGill University before volunteering at age eighteen to serve with the Canadian Army in World War II. At the end of the war he came back to McGill to begin his law degree, and when he graduated, he was the gold medallist of his year. He won every single prize except the prize for criminal law. He used to remind us of that (laughs). In 1969, my dad was asked to become the chair of the Commission of Inquiry into the Non-Medical Use of Drugs, and that really became the thing that he was, and still is, probably best known for. Melvyn Green: I met Gerry Le Dain when I was living in Ottawa. I was writing a PhD dissertation as a sociologist. I needed a job. He needed a sociologist. There was an ad in the Ottawa Citizen. I answered and I got hired. It happened all within the process of a week. The time with Gerry at the commission was exhilarating. The PhD dissertation never got finished. I’m Justice Melvyn Green, Ontario Court of Justice. Gerry was a very curious man. He was a conservative coming into the exercise. He’d been a very successful lawyer and a successful university administrator at Osgoode Hall Law School in Toronto when he was recruited for this job. He knew frankly nothing about the phenomenon of drugs or virtually nothing, but he was open to the empirical evidence about it. We were into medicine, law, sociology, pharmacology, and we established a rather ambitious research program of over one hundred projects, including our own experiments on the effect of cannabis in humans. Gerald Le Dain, C B C Archives, 27 January 1972

Melv y n Gr e e n: He took – literally – his show on the road. This was pioneering. He moved from college stage to coffee house to small forum in little towns and big cities across the country. And it was a remarkable two-way, reciprocal process of education. Caroline Burgess: In 1969, I would have been eleven, but my older sister, Jacqueline, was eighteen, and my sister Catherine would have been sixteen. So definitely he was, in terms of where his children

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were, he could absolutely empathize with the young people, but also with their parents. And so he took on that enormous task, and I don’t know that anybody realized what an enormous task it really was. It was so thorough, and it was so thoughtful, and also making sure to hear from everybody. That really made such a deep impression on me: this idea that you don’t just listen to people because it makes them feel better to be heard, but you listen to people because you have something to learn from them. Melvyn Green: Within the commission itself, there were moments certainly when he appeared to me to be challenged, but he never appeared, frankly, flappable. What Gerry did recommend ultimately, or what the majority recommended, in effect, was that the penalties for cannabis be eliminated for cannabis possession, and that there be a concern to create treatment programs that dealt with persons who clearly were addicted to drugs. Michael Callaghan: Mr Le Dain, let me ask you whether it’s possible to take this kind of a practical approach in a society that is steamily emotional about the moral issue of taking drugs.   Gerald Le Dain: Well, of course it’s been a highly controversial matter … c b c Archives, 27 January 1972

Melvyn Green: Most of the newspapers, most of the media, most of the public health agencies, like the Canadian Medical Association, publicly criticized it. Perhaps even more painfully, in the case of the government itself, which had commissioned the reports, of course, effectively met it with radio silence. I don’t even know if there was a thank you of any kind of formal nature. That must have hurt. Of course, it’s not as though Gerry had nothing better to do than to sit at home and nurse his wounds. Ha r ry A rt h urs: Gerry was dean of Osgoode at the same time as he took on this huge job with the commission. He was so enthusiastic and so willing to engage and to listen and challenge that even in that exciting moment of history of the sixties, he stood out as someone you would want to work with and have as your dean. My name is Harry Arthurs. I was a law professor at Osgoode Hall Law School at York University. I was Gerry Le Dain’s associate dean and subsequently I became president of the university. We were going through a serious revolution at Osgoode at the time. For example, we wanted to deliver legal aid to poor people as

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part of our clinical teaching program. In many ways it was groundbreaking. We thought, at the time, and I would still love to be persuaded of this – we thought at the time that changing the way people learned about the law and what they conceived law to be would mean that more people would have access to justice, that lawyers would care more about interests that had been neglected previously. And so this was really a project of social change that we thought we were engaged in. I have to say, we were maybe a little bit too ambitious, maybe things didn’t work out quite as dramatically as we imagined they would. But our heart was in the project, and Gerry was definitely the advocate for us – a very effective, plausible, ­persuasive advocate. Caroline Burgess: We took it for granted. You know, we took it for granted that here was this man with six kids and he was a superengaged father. So he was always really busy. I can remember waking up in the morning to the sound of his clickety-clack on the typewriter because he would get up at 5:00 a.m. and he would be working, but then he was always coming to breakfast. And you know, especially if we were at the cottage, he would just be hanging out with us. So he would be doing his work oftentimes in the living room with all the chaos going on. Ha r ry A rt h urs: He was very committed to his kids. He was very committed to Cynthia. I think they provided balance and good cheer in his life. He lived the professional side of it so intensely that, had he not had the family there to anchor his life, I think he would have suffered burnout. I don’t know if that’s what ultimately happened to him. But certainly, no one could lead life so intensely without a quiet harbour to come home to. C a rol i ne B ur ge ss: We really felt that we were so fortunate. We just had this magical, you know, magical childhood. We spent so much time together, and we just had this sense that somehow we were blessed. And then tragedy struck. My older sister was killed in a car accident on New Year’s Day 1975. Jackie had only been married for six months and she had gone out to B C as a speech pathologist with her new husband. They were driving back from Williams Lake, where they were living, to Vancouver. And they hit a patch of black ice. She was only twenty-three. I remember my father coming to each of us, and I remember him saying, “The circle is broken.” And so, it was … how did we get through that? It was so difficult. That summer, my father got a call. He was asked to be a judge on the

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Federal Court of Appeal. Definitely my parents were aware that this was, on top of the stress of losing a daughter and a sister, this was going to be a big thing. And it was definitely an adjustment. But that court turned out to be such a great place for him. I think the fact that they sat across the country. It was super interesting. He met lots of people. But I think the people on that court were so collegial, he just really liked it. In 1984, my father got the call asking him to be a justice on the Supreme Court of Canada. Knowlton Nash: Good evening. A new judge in the Supreme Court. Gerald Le Dain takes the seat left vacant by the death of Chief Justice Bora Laskin, in March. Le Dain was sworn in by Laskin’s successor, Chief Justice Brian Dickson. David Halton reports.   David Halton: Justice Le Dain returned to Ottawa this evening, suddenly one of the nine most powerful lawyers in Canada …   Gerald Le Dain: Let me say this. I’ve had more than my share of good fortune and opportunity from this country, and I hope that I can make a contribution on the court, and in some ways repay some of what I owe. c b c Archives, 23 January 1984

C a rolin e B ur ge ss:  It was a really exciting time for our whole family. We were so pleased for him, because it seemed like this was kind of the culmination of everything he’d worked towards. And he was definitely ready. He was up for it. In my years on the Federal Court of Appeal, I have thought, with some comfort, of the Supreme Court of Canada as a place where my errors could be corrected. Although I did not always agree with the extent to which that was considered to be necessary. (laughter)​ Gerald Le Dain, c b c Archives, Gerald Le Dain swearing-in ceremony, 6 June 1984

David Butt: I would say that he was one of the most intellectually engaged people I’ve ever encountered, and he had an intensity and a passion for his work that you thought, boy, this is a person who’s in their element. My name is David Butt and I’m a criminal lawyer in Toronto. From 1987 to 1988, I clerked for Mr Justice Le Dain at the Supreme Court of Canada in Ottawa.

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Our meetings were rigorous, and he would push hard. And one of his favourite words to me was, “Is it sound? Is it sound? Is it right?” And I’m a twenty-six-year-old kid, just wet behind the … “Yes?” (laughs) What else was I going to say? It was a funny combination of both endearing and terrifying all at the same time. He was difficult. I would say difficult in the best sense, in terms of being demanding. R ic ha r d J a nda : Gerald Le Dain wrote what is still a leading case on environmental law in Canada called the Crown Zellerbach case, which came down in 1988, and it bore upon dumping of materials from ships into the ocean. That may seem like a rather straightforward matter, but it isn’t, because the question is – as is typical in Canada – is it a provincial matter? Is it a federal matter? Gerald Le Dain was a scholar as well as a jurist, and he spent a great deal of his career contemplating the Constitution and how the constitutional arrangements of Canada should work. My name is Richard Janda. I am a professor at the Faculty of Law at McGill University and also an associate member of the McGill School of Environment. I got to know Gerald Le Dain because I was his clerk in 1988, and I got to know him a little better even afterwards. And I think I became his friend. I hope I can say that. He remains for me a kind of standard of intellectual effort, because I had the occasion to work with his documents. I saw his mode of writing – the way he tested his ideas for himself. It was utterly astonishing. I had never seen anybody who worked with that kind of intensity. He grappled intensely with every expression he used. This is really what we hope the judicial decision involves – that it involves an independent mind weighing and pondering difficult questions. C la ir e L ’H e ur e ux - D ub é : I had a very good idea of who he was, and I was so happy when I came to the court and he was there. We kind of connected immediately. That was a great mind. My name is Claire L’Heureux-Dubé. I’m a former justice of the Supreme Court of Canada. I was appointed in 1987. May four was my first day, and Gerry Le Dain was there. He was interested in everything. He was present, he was warm, and his door was open. He was very friendly, easy to discuss with, which is not always the case at the court. Everybody’s busy. So it’s a bit of a severe environment.

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Dav id B ut t : There was so much to be done. The stakes were so high. And there was so little guidance. The Charter of Rights, of course, came into force in 1982. And this was 1988. So it takes awhile for cases to get up to the Supreme Court. So there wasn’t much precedent. There wasn’t much of a template for how to handle Charter cases. So the pressure was intense. There was also an ­administrative decision made. The court decided to go from hearing one case a day to hearing two cases a day – in effect, doubling the workload. Claire L’Heureux-Dubé: Everyone was struggling at the time. The chief justice, of course, always important for the chief justice – numbers. So the chief justice was trying to accelerate the pace. The court was overburdened. It was late in delivering its judgments. I said at the time it was doom and gloom. So the atmosphere wasn’t quite good for Gerry who was … I wouldn’t say anxious, but was always full of ideas and very much a thinker. C a rol i ne B ur ge ss: It was definitely challenging. There were some really important cases. And I think he always put up his hand for the hardest​ones​, the most difficult ones, the most challenging ones, certainly, within his area – he had certain areas of expertise. Dav id B ut t : It was very evident that he felt a deep and abiding connection to the province of Quebec, not just because he had done so much stellar legal work there, but also because he spoke French fluently. He was very socially and politically connected to Quebec society, and of course the time that we were there was when the Bill 101 cases came. R i c h a r d J a n da : He was in the midst of writing on a matter that was of great political significance at the time. He was involved in deliberations concerning what came to be known as the Ford case, but people would know it as the Bill 101 matter. The issue as to whether Quebec’s Charter of the French Language in a number of significant dimensions was unconstitutional. And it was in the midst of the Meech Lake crisis. It was, I’m sure he knew, a decision that was going to have political consequence and perhaps a lasting impact for the country. And for him, and he confirmed this to me in subsequent conversation, the burden was enormous. C la ir e L ’He ur e ux - D ub é : There are so many ideas that you have to toss around. I remember Gerry having a folder full of papers on one issue. So many notes. Perhaps too much, but it’s the fate of great minds.

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David Butt: The nature of the Charter cases that he was working on at the time appeared to me to create a palpable sense of tension that was not there on earlier cases that we worked on together. So to see him doing two things: one, not thriving in that environment, but two, because of his approach, not producing the way other people were producing – both of those were difficult for me to watch. C a ro l i n e B u r g e s s : So during the summer of 1988, my dad was working really hard, which wasn’t unusual, because he always worked hard. But what was different this time was that it was affecting his sleep. He wasn’t able to sleep as much as he clearly needed to. It was obvious he needed a break. And I know my mother urged him again and again to take a break. But he was so caught up with this idea that he couldn’t afford the time, that there was too much to do before court began sitting again in the fall, ​that t​ here was no way he could take any time off. So it was what he was thinking about 24 / 7. And it was clear that he was heading for a breakdown. C l a i r e L ’ H e u r e u x - D u b é : Well, he was very depressed. The thing I remember the most is when he asked me into his office, and he asked me if he should resign. I said to him “No! Gerry, you don’t have to leave. Just take a bit of a rest and then come back. We need you.” I had the greatest respect for Gerry. You have no idea how important he was at the court. C a rol i ne B ur ge ss: September seventh, 1988, was the day my dad was diagnosed with a clinical depression. And so my mother went to the chief justice to say, “Gerald is ill. He needs some time.” And that’s when the chief justice began to speak about my father in the past tense. In particular, his mind. It was – he had a brilliant mind. As if somehow mental illness is associated with some kind of brain damage. In other words, there was no question, from the reception my mother got from the chief justice, that there was going to be any support. There wasn’t an enlightened kind of sense of … this is ­treatable. He will recover. He can come back. There was just that sense of … it’s done. And then very shortly after, I think it was within two weeks, he was pressured to resign from the Supreme Court. I don’t think he had any choice. He didn’t have any choice. What could he have done? Get a lawyer? Could he have fought it? He was ill. This was something that clearly, they didn’t want it to be public. They didn’t want him back. ​ Then what do you do at that point? That was a devastating time for him, for the whole family.

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C la ir e L ’H e ur e ux - D ub é : Well, Bertha Wilson and I, we were shocked. We all felt it was unfair. The problem of the chief justice not being able to hand out judgments – that is a consideration. But to me, that consideration is secondary. Justice Le Dain, being an exceptional mind and very great for the court, should have been given the time to get back healthy. And we thought i​​​t wouldn’t be that long. Being forced to resign in such a position, it must have been terrible. C a rol i ne B ur ge ss: Things just very rapidly went almost critical, and then he was hospitalized, and it was just basically because he was just so, so, so ill. But I felt protective of my father, and I don’t mind saying it, it’s kind of a crazy thing that I did, but, because Pierre Trudeau had appointed my father, I just thought, I’ll call him. You know, again this idea of the secrecy – my dad would have hated that I called him. But you know, I remember saying to Trudeau, I said, “This is not right. This is just not right.” And I said, “You appointed him.” And I think I also must have told him what the chief justice had said. And he said to me, Trudeau said to me, “I also appointed Brian Dickson.” So why did I even call him? I just didn’t know. I didn’t know what to do. I had a sense that this was a train wreck, ​but​ somehow, could we turn it around somehow? And no, it wasn’t possible to turn it around. There was nobody to go to. R i c h a r d J a n da : I had an unusual experience, because I was interacting with him while he was in a hospital bed. So I knew that he was very much capable of not only understanding what was going on, but formulating pretty sharp opinions about what was going on. It wasn’t as if he was hands off. He cared about ensuring that what he was working on would be properly managed. I took it upon myself to go and speak to the chief justice, because part of the story that I found difficult to accept was that his name would not even appear as having participated in a judgment – the Ford decision – when I saw that basically the materials that we were using were his materials. Justice Dickson heard me out, but he was quite firm with me in taking the view that this was the only outcome that was possible for the court. And so for him, it was a polite but firm no. It seemed to be that it was felt to be inconsistent with or incompatible with continued presence on the court that somebody would be hospitalized for depression. Dav id B ut t : I have no hesitation saying I think he was treated appallingly. It was an historic and historically unique pressure cooker.

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Everybody understood the need to meet the needs of the country by providing guidance on these crucial Charter cases. Despite that, you know, one can ask oneself, How long can a court continue to function one judge down? Well, you just sit with seven judges for a little longer. You hire more clerks. I mean, there were certainly alternatives, and they weren’t taken. There’s no humanity in that. There’s no empathy in that. The appointments made today were to replace Justice Gerald Le Dain from Ontario … Vicki Russell, c b c Archives, 23 January 1989

C a ro l i n e B u r g e s s :   He was only sixty-three. What happened when he recovered was that there was a huge hole to fill. His job, his life, in a sense, had been taken away from him. But uppermost in my dad’s mind was his responsibility to protect the reputation of both his colleagues and the court. And that was the reason he never spoke publicly about the circumstances surrounding his resignation. It was that sense of integrity. H a r ry A r t h u rs : Gerry had very firm ideas about how one should behave. Words like “honourable” frequently came into the conversation. “Reasonable.” Virtuous words. It’s what he expected of people. It’s a standard he held himself to. We all know the end of Gerry’s career was a sad ending, not one that he would have wanted, or his friends and admirers would have wanted. Claire L’Heureux-Dubé: It has always upset me that this was done to him. It’s still a problem to accept what happened​. And what else we could have done​, I​ am not sure. We have to cope with the mentality of the time. You know, I’m ninety years old now, so my memory is not as good as it was. But my memory gives me the impression that he was the ideal colleague, who had served the country already so much. Melvyn Green: I think Gerry was a man ahead of his time. Over the years, I think there is a sense that ​Gerry​ has not been sufficiently respected for his work, for his contribution. I don’t know how that will be rectified, except in the doing. Richard Janda: For myself, if I’m wondering, Why do I care? Why do I want to preserve a memory of Gerald Le Dain? You know, I feel a kind of passed-down burden of this cloud hanging over someone. When I first met him, and in all of my encounters with

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him, I thought I had discovered among the most remarkable people I’d ever encountered. And I got to watch, also, as that career came to an end. That was poignant for me. And it was sad, at the same time as it was inspiring. I mean, we’re not talking about someone of absolute perfection. We’re talking about somebody who had … I think he would have acknowledged himself, significant fragility. But people with significant fragility can be absolutely remarkable contributors. C a rol i ne B ur ge ss: There was never an apology, and the way things were left just doesn’t sit right with me, and it doesn’t sit right with my siblings. Because he was such a strong man, and I would have liked for him to fight back, in some sense, to push back, because he did push back when he thought something was wrong, especially when he thought someone else was being wronged. Is that difficult for me? In some ways yes, and in some ways no. My dad has been a role model for me my entire life. And that has not changed since his death. So could I ever fault my dad for the way he reacted, to what was cruel, to what was unconscionable, to what should have never happened, and hopefully would never happen today? No, I can’t. Because I completely understand where he was coming from. And I am so proud of him. And I love him so much, for those values. I wish it hadn’t happened. I wish it would happen to nobody.

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16 Cases Argued, Cases Decided, and Scholarly Writing of Gerald Le Dain G. Blaine Baker

s u p r e m e c o u rt C ases Argued Ontario (AG ) v Anti-Dumping Tribunal, [1963] S CR 570–83. Prince v R, [1964] SC R 81–5. Batary v Saskatchewan (AG ), [1965] S CR 465–89. British Columbia (AG ) v McKenzie, [1965] S CR 490–502. Cour de Magistrat de Quebec, Procurer General de Quebec v Barreau de la Province de Quebec, [1965] S CR 772–83. Mann v R, [1966] SC R 238–54. Munro v National Capital Commission, [1966] S CR 663–72. Commission du Salaire Minimum v Bell Telephone Company of Canada, [1966] SC R 766–77. Protestant School Board of Greater Montreal v Jenkins, [1967] S CR 739–46. Coughlin v Ontario Highway Transport Board, [1968] S C R 569–88.

Ju di c ia l D e c is io n s ( C o ncurri ng Judgments E n t er e d b y J u s t ic e L e D a i n wi thout Wri tten R e as o n s H av e N o t Been Ci ted) Culler Laboratories v Anti-Dumping Tribunal, [1976] 1 F C R 446, 458 (majority concurrence). Denis v R, [1976] 1 F C R 499, 500–2 (majority).

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Quebec North Shore Paper Company v Canadian Pacific Ltd, [1976] 1 FC R 646, 648–56 (majority). Zang v The Commissioner of Penitentiaries, [1976] 1 FCR 657, 658– 80 (majority). The “Continental Shipper” v Nissan Automobile Co, [1976] 2 F CR 39, 40–5 (majority). Bambrough v Public Service Commission, [1976] 2 FCR 109, 110–22 (majority). Seafarers International Union of Canada v Canadian National Railway Company, [1976] 2 F C R 369, 376–82 (majority concurrence). Champlain Cemetery Limited v R, [1976] 2 FCR 481, 496–9 (majority concurrence). Rothmans of Pall Mall Canada Ltd v MNR , [1976] 2 FCR 512, 513–16 (majority). M N R v Canadian Glassine Co Ltd, [1976] 2 F C R 517, 520–37 (dissent). Francis v Minister of Manpower and Immigration, [1977] 1 F CR 66, 67–72 (majority). Pirotte v Unemployment Insurance Commission, [1977] 1 F CR 314, 315–18 (majority). Canada (AG ) v Public Service Staff Relations Board, [1977] 1 F CR 427, 427–8 (majority). Rondeau v Simard, [1977] 1 F C R 519, 533–6 (majority concurrence). Chalikiopoulos v Minister of Manpower and Immigration, [1977] 1 FC R 575, 575–6 (majority). Canada (AG ) v Papillon, [1977] 1 F C R 653, 653–4 (majority). R v Hawker Siddeley Canada Ltd, [1977] 2 F C R 162, 163–9 (majority). Minister of Manpower and Immigration v Tsiafallis, [1977] 2 F C R 216, 217–24 (majority). Antares Shipping Corporation v The “Capricom,” (1977] 2 FCR 274, 274–9 (majority). Cooper v MNR , (1977] 2 F C R 280, 281–93 (majority). Antares Shipping Corporation v The “Capricorn,” (1977] 2 FCR 320, 321–3 (majority). Saskatchewan Power Corp v TransCanada Pipelines Ltd, [1977] 2 FC R 324, 329 (majority concurrence). Administrator, Anti-Inflation Act v CUPE Local 1369, [1977] 2 F CR 594, 595–601 (majority).

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Cases Argued, Cases Decided, and Scholarly Writing 419

Alleyne v Minister of Manpower and Immigration, [1977] 2 FCR 615, 615–17 (majority). Canada (AG ) v Public Service Staff Relations Board, [1977] 2 F CR 663, 670–2 (majority concurrence). Royal American Shows Inc v M N R , [1978] 1 F C R 72, 76–84 (majority). SGCT v R, (1978] 1 F C R 346, 347–55 (majority). Caccamo v Minister of Manpower and Immigration, (1978] 1 F CR 366, 374–8 (majority concurrence). Canadian Cablesystems (Ontario) Ltd v CRTC , (1978] 1 F CR 511, 511–12 (majority). R (Canada) v R (P E I ), [1978] 1 F C R 533, 578–90 (majority concurrence). Interprovincial Pipe Line Ltd v National Energy Board, [1978] 1 FCR 601, 602–8 (majority). In Re Canadian Pacific and In Re Rail Barge Service 011 Kootenay Lake, [1978] 1 F C R 785, 786–97 (majority). The Professional Institute of the Public Service of Canada v Administrator, Anti-Inflation Act, [1978] 2 F C R 30, 31–8 (majority). R v The Great Atlantic and Pacific Tea Company Limited, [1978] 2 FC R 90, 100 (majority concurrence). Proulx v Public Service Staff Relations Board, [1978] 2 F C R 133, 142–6 (dissent). Woldu v Minister of Manpower and Immigration, [1978] 2 FCR 216, 219–21 (majority concurrence). Duplessis v Public Service Commission Appeal Board, [1978] 2 F CR 355, 359–60 (dissent). Association des Gens de I’Air du Quebec Inc v Lang, [1978] 2 F CR 371, 379–84 (majority concurrence). Laurent v Peron, [1978] 2 F C R 450, 502–6 (majority concurrence). Daunch v Nadon, [1978] 2 F C R 484, 502–6 (majority concurrence). Holmes Transportation (Quebec) Ltd v Transport Drivers, Warehousemen, and General Workers Local 106, [1978] 2 F C R 520, 523 (majority concurrence). Louhisdon v Canadian Employment and Immigration, [1978] 2 FCR 589, 591–2 (dissent). Oloka v Canadian Employment and Immigration, [1978] 2 FCR 593, 594–602 (dissent).

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The “Capricom” v Antares Shipping Corp, [1978] 2 FCR 834, 835–48 (majority). Canadian Pacific Airlines Ltd v R, [1979] 1 FCR 39, 46–53 (majority concurrence). McCarthy v Minister of Manpower and Immigration, [1979] 1 F CR 121, 122–7 (majority). Alvarez v Minister of Manpower and Immigration, [1979] 1 FCR 149, 150–3 (majority). Perrault v R, [1979] 1 F C R 155, 156–66 (majority). AG lPSPA v Atomic Energy Control Board, [1979] 1 FCR 223, 230–1 (majority). Georgas v Canada (Minister of Employment and Immigration), [1979] 1 FC R 349, 349–51 (majority). Sabb Inc v Shipping Ltd, [1979] 1 F C R 461, 466–9 (majority concurrence). Inuit Tapirisat of Canada v Léger, [1979] 1 F C R 710, 711–22 (majority). Garba v Lajeunesse, [1979] 1 FCR 723, 729 (majority concurrence). Lodge v Minister of Employment and Immigration, [1979] 1 F C R 775, 776–86 (majority) Yukon Conservation Society v National Energy Board, [1979] 2 FCR 14, 15–22 (majority). CSP Foods Ltd v Canada Labour Relations Board, [1979] 2 FCR 23, 32–3 (majority concurrence). Hijos de Romulo Torrents Albert SA v The Ship “Star Blackford,” [1979] 2 F C R 109, 110–14 (majority). Re Decision of Norman, Adjudicator, and In Re Grant, [1979] 2 FCR 258, 273–8 (majority). Shell Canada Limited v Minister of Energy, Mines, and Resources, [1979] 2 F C R 367, 380–6 (majority concurrence). Inkster v Radey, [1979] 2 F C R 457, 457–60 (majority). United Nations v Atlantic Seaways Corp, [1979] 2 FCR 541, 542–57 (majority). Commissioner of Patents v Goodyear Tire and Rubber Co, [1979] 2 FC R 558, 564–7 (majority concurrence). Bensol Customs Brokers Ltd v Air Canada, [1979] 2 FCR 575, 581–94 (majority concurrence). Campbell v R, [1979] 2 F C R 786, 804–8 (majority). Canadian Pacific Ltd v Canada Transport Commission, [1979] 2 FCR 809, 813–24 (majority).

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Quebec and Ontario Transportation Co v The “Encan St-Laurent,” [1979] 2 F C R 834, 835–9 (majority). Canadian Broadcasting League v CRTC , [1980] 1 F CR 393, 394–5 (majority). Canadian Broadcasting League v CRTC , [1980] 1 FCR 396, 397–406 (majority). Kelso v R, [1980] 1 F C R 659, 668 (majority concurrence). Latif v Canadian Human Rights Commission, (1980] 1 F C R 687, 688–705 (majority). Carota v Jamieson, [1980] 1 F C R 790, 791–800 (majority). Calder v Minister of Employment and Immigration, [1980] 1 F C R 842, 843–55 (majority). Pacific Pilot Age Authority v Alaska Trainship Corp, [1980] 2 F CR 54, 56–88 (majority). Ballion v Public Service Commission Appeal Board, [1980] 2 F C R 110, 113–14 (dissent). Canadian Industries Limited v R, [1980] 2 F C R 463, 464–87 (majority). Canadian Airlines Employees’ Association v Eastern Provincial Airways (1963) Ltd, [1980] 2 F C R 512, 516–22 (dissent). Skaarup Shipping Corp v Hawker Industries Ltd, [1980] 2 FCR 746, 747–53 (majority). Francis v Canadian Labour Relations Board, [1981] 1 F C R 225, 247–8 (dissent). R v Smith, [1981] 1 F C R 346, 349–419 (majority). Maple Lodge Farms Ltd v Government of Canada, [1981] 1 F C R 500, 502–14 (majority). Croy v Atomic Energy Control Board, [1981] 1 F C R 515, 519–23 (majority concurrence). Canada (A G ) v Murby, [1981] 1 F C R 713, 728–30 (majority concurrence). Pacific Pilotage Authority v Amison, [1980] 2 F C R 206, 206–11 (majority). North Canada Air Ltd v Canada Labour Relations Board, [1981] 2 FC R 399, 400–6 (majority). R v Khan, [1981] 2 F C R 454, 455–60 (majority). Kang v Minister of Employment and Immigration, [1981] 2 FCR 807, 810–12 (dissent). Evans v Public Service Commission Appeal Board, [1981] 2 FCR 845, 846–60 (majority).

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Communications Workers of Canada v Northern Telecom Canada Ltd, [1982] 1 F C R 191, 202–4 (majority concurrence). Schavernoch v Foreign Claims Commission, [1982] 1 FCR 233, 234– 40 (majority). Kiist v Canadian Pacific Railway Company, [1982] 1 FCR 361, 363–85 (majority). Miida Electronics Inc v Mitsui OSK Lines Ltd, [1982] 1 F CR 406, 415–31 (dissent). United Telegraph Workers v Canadian Brotherhood of Railway Workers, [1982] 1 F C R 603, 611–15 (majority concurrence). Canada (A G ) v Greaves, (1982] 1 F C R 806, 811–12 (majority concurrence). R v Cranswick, [1982] 1 F C R 813, 814–20 (majority). R v Canadian Air Traffic Control Association, [1982] 2 FCR 80, 91–2 (majority concurrence). Deputy M N R (Customs and Excise) v Trane Company of Canada Ltd, [1982] 2 F C R 194, 196–207 (majority). Noury Chemical Corp v Pennwalt of Canada Ltd, [1982] 2 FCR 283, 283–8 (majority). Vachon v R, [1982] 2 F C R 455, 465–72 (majority). Seafarers International Union v Crosbie Offshore Services Ltd, [1982] 2 FC R 855, 873–874 (majority concurrence). Ziminez-Perez v Minister of Employment and Immigration, [1983] 1 FC R 163, 164–71 (majority). Canadian Broadcasting League v CRTC , [1983] 1 F CR 182, 184–93 (majority). James Richardson & Sons Ltd v MNR , [1983] 1 F CR 257, 260–73 (majority). Davlut v Canada (AG ), [1983] 1 F C R 398, 405–6 (majority). Becker v R, [1983] 2 F C R 495, 460–6 (majority). R v Operation Dismantle Inc, [1983] 1 F CR 745, 760–7 (majority concurrence). Faiva v Minister of Employment and Immigration, [1983] 2 F CR 3, 4–10 (majority). Goguen v Gibson, [1983] 2 F C R 463, 466–74 (majority). Canadian National Railway v Canadian Human Rights Commission, [1983] 2 F C R 531, 541–66 (dissent). Desjardins v Bouchard, [1983] 2 F C R 641, 652–5 (majority concurrence).

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R v Guerin, [1983] 2 F C R 656, 661–722 (majority). Domestic Converters v Arctic Steamship Line, [1984] 1 F C R 211, 236–44 (majority concurrence). R v Imperial General Properties Limited, [1984] 1 FCR 402, 404–10 (majority). H.B. Nickerson & Sons Ltd v Insurance Company of North America, [1984] 1 F C R 575, 580 (majority concurrence). R v Marsh & McLennan Limited, [1984] 1 F CR 609, 621 (majority concurrence). Enterprises Kato Inc v Deputy MNR , [1984] 1 FCR 827, 828 (majority concurrence). Mavour v Minister of Employment and Immigration, [1984] 2 F CR 122, 124–30 (majority). Baird v R, [1984] 2 F C R 160, 166–89 (majority). Marlex Petroleum, Inc v The Har Rei, [1984] 2 F C R 345, 348–56 (majority). Ziegler v Hunter, [1984] 2 FCR 608, 613–18 (majority concurrence). Quebec (AG ) v Greater Hull School Board, [1984] 2 S CR 575, 598– 602 (majority concurrence). R v Therens, [1985] 1 SC R 613, 626–54 (dissent). Dedman v R, [1985] 2 SC R 2, 23–37 (majority). Cluett v R, [1985] 2 SC R 216, 218–32 (majority). R v Miller, [1985] 2 SC R 613, 617–42 (majority). Morin v SHU Review Committee, [1985] 2 S C R 662, 663–72 (majority). Cardinal v Director of Kent Institution, [1985] 2 S CR 643, 647–61 (majority). Valente v R, [1985] 2 SC R 673, 678–713 (majority). Hillis Oil & Sales v Wynn’s Canada, [1986] 1 S C R 57, 60–9 (majority). H.W. Liebig and Company Ltd v Leading Investments Ltd, [1986] 1 SC R 70, 99–102 (majority concurrence). R v Landry, [1986] 1 SC R 145, 167 (majority concurrence). Bell Canada v Consumers’ Assoc of Canada, [1986] 1 SCR 190, 192–8 (majority). R v Hill, [1986] 1 SC R 313, 353–5 (dissent). Deutsch v R, [1986] 2 SC R 2, 6–28 (majority). Central Trust Company v Rafuse, [1986] 2 S C R 147, 155–225 (majority).

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Finlay v Canada (Minister of Finance), [1986] 2 S CR 607, 610–36 (majority). Bank of Nova Scotia v Angelica-Whitewear Ltd, [1987] 1 S CR 59, 65–109 (majority) R v Collins, [1987] l SC R 265, 293–4 (majority concurrence). Re Public Service Employee Relations Act (Alta), [1987] 1 S CR 313, 390–2 (majority concurrence). R v Rahey, [1987] 1 SC R 588, 616–18 (majority concurrence). Canadian Pacific Hotels Ltd v Bank of Montreal, [1987] 1 S CR 711, 716–78 (majority). R v Smith, [1987] 1 SC R 1045, 1111–12 (majority concurrence). N.V. Bocimar SA v Century Insurance Company, [1987] 1 SCR 1247, 1249–50 (majority). Robichaud v Canada (Treasury Board), [1987] 2 SCR 84, 97 (majority concurrence). Canada v Newfoundland Telephone, [1987] 2 S C R 466, 469–502 (majority). Canada v New Brunswick Telephone, [1987] 2 S C R 485, 486–8 (majority). Canada (AG ) v Brault, [1987] 2 SC R 489, 491–502 (majority). Dore v Canada, [1987] 2 SC R 503, 505–11 (majority). Washington v Johnson, [1988] 1 SC R 327, 330–4 (dissent). R v Crown Zellerbach Canada Ltd, [1988] 1 S C R 401, 407–38 (majority). R v Cornell, [1988] 1 SC R 461, 464–79 (majority). R v Hufsky, [1988] 1 SC R 621, 625–39 (majority). R v Thomsen, [1988] 1 SC R 640, 643–56 (majority). R v Stevens, [1988] 1 SC R 1153, 1157–59 (majority). Canada Employment and Immigration Commission v Gagnon, [1988] 2 SC R 29, 32–4 (majority concurrence). Jove v Canada (Unemployment Insurance), [1988] 2 S C R 53, 54 (majority concurrence).

S c h o l a r ly Wri ti ng “The Judicial Review of Administrative Discretion” (unpublished McGill University B C L thesis, 1949). “Twilight of Judicial Control in the Province of Quebec.” McGill Law Journal 1 (1952): 1–21.

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“Decertification Order of Quebec Labour Relations Board – Judicial Control – Prohibition – Declaration of Nullity – Direct Action.” Canadian Bar Review 31 (1953): 821–30. “Transfer of Property and Risk in the Sale of Fungibles.” McGill Law Journal 1 (1954): 237–57. “Review [of Bernard Schwarz, French Administrative Law and the Common Law World, and Charles John Hamson, Executive Discretion and Judicial Control: An Aspect of the French Conseil d’État.” Canadian Bar Review 33 (1955): 742–6. “Security upon Moveable Property in the Province of Quebec.” McGill Law Journal 2 (1956): 77–113. “Review [of Ian F.G. Baxter, The Law of Banking and the Canadian Bank Act].” Canadian Bar Review 34 (1956): 1083–7. “Review [of John Delatre Falconbridge, Banking and Bills of Exchange].” McGill Law Journal 3 (1956): 113–27. “Review [of James Milnes Holden, History of Negotiable Instruments in English Law].” Canadian Bar Review 34 (1956): 495–8. “Teaching Methods in the Civil-Law Schools.” Revue du Barreau 17 (1957): 499–515. “The Supervisory Jurisdiction in Quebec.” Canadian Bar Review 35 (1957): 788–829. “The Real Estate Broker.” McGill Law Journal 4 (1958): 219–44. “Legal Education and Training: A Report of the Quebec Committee.” Canadian Bar Journal 1 (1958): 33–9. “Practical Training of Law Students in the Province of Quebec.” Canadian Bar Journal 3 (1960): 242–7. “The Theory and Practice of Legal Education.” McGill Law Journal 7 (1961): 192–202. Bills and Notes: A Casebook (Montreal: McGill University Faculty of Law, 1962). Essay on the Canadian Constitution: Essay Prepared for the Royal Commission on Bilingualism and Biculturalism (Ottawa: Royal Commission on Bilingualism and Biculturalism, 1966). “Concerning the Proposed Constitutional and Civil Law Specialization at the Supreme Court Level.” Revue juridique Thémis 2 (1967): 107–25. “Reflections on the Canadian Constitution after the First Century.” Saskatchewan Law Review 32 (1967): 166–72. Reproduced in Canadian Bar Review 45 (1967): 402–8.

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Constitutional Law: Supplemental Materials (Toronto: Osgoode Hall Law School, 1969). “The Quest for Justice: The Role of the Profession.” University of New Brunswick Law Journal 19 (1969): 18–29. Canada. Commission of Inquiry into the Non-Medical Use of Drugs. Interim Report of the Commission of Inquiry into the Non-Medical Use of Drugs (Ottawa: Queen’s Printer, 1970). Briefs Presented to the Le Dain Commission by Organizations and Individuals (Toronto: Micro Media, 1972). Constitutional Law (Toronto: Osgoode Hall Law School, 1973). Food and Drug Regulations (Toronto: Osgoode Hall Law School, 1973). Negotiable Instruments and Banking (Toronto: Osgoode Hall Law School, 1973). Canada. Commission of Inquiry into the Non-Medical Use of Drugs. Final Report of the Commission of lnquiry into the Non-Medical Use of Drugs (Ottawa: Information Canada, 1973). “The Role of the Public Inquiry in Our Constitution.” Law and Society [1973] 79–101. Food and Drug Regulation. 2 vols (Toronto: Osgoode Hall Law School, 1974). “Rehabilitating Our Continental Neighbourhood: The Problem of Drugs.” American Sociology International Legal – Proceedings 68 (1974): 169–89. Canada. Commission of Inquiry into the Non-Medical Use of Drugs. Research Projects. 125 vols. (Ottawa: Commission of Inquiry into the Non-Medical Use of Drugs, 1974). “Sir Lyman Duff and the Constitution.” Osgoode Hall Law Journal 12 (1974): 261–338. “1976 Convocation of Osgoode Hall Law School of York University.” Law Society of Upper Canada Gazette 10 (1976): 221–28. “F.R. Scott and Legal Education.” McGill Law Journal 27 (1981): 1–13. Reproduced in On F.R. Scott: Essays on His Contributions to Law, Literature, and Politics, ed. Sandra Djwa and Ronald St J Macdonald, 103–16 (Montreal and Kingston: McGill-Queen’s University Press, 1983). Convocation Address by Mr Justice Gerald Eric Le Dain to McGill University’s Faculties of Management and Law (Montreal: McGill University, 1985).

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“Jean Beetz as Judge and Colleague.” Revue juridique Thémis 28 (1994): 721–9. Reproduced in Mélanges Jean Beetz, ed. Jean-Louis Beaudouin, 673–81 (Montreal: Thémis, 1995). “Response to the Chief Justice.” Osgoode Hall Law Journal 35 (1997): 439–40.

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Postface Allen M. Linden Although I was aware of his legendary career for many years, I first met Gerald Le Dain, QC , in June 1967, upon my return to Toronto from the University of California at Berkeley, my alma mater, where I had served as visiting professor in 1966–67. As the new dean of the Osgoode Hall Law School of York University, he captivated me by his exuberance, enthusiasm, intelligence, and warmth. I was being pursued at the time by Dean Maxwell Cohen of McGill University Law School, who had just lost Professor Le Dain to Osgoode and wanted to persuade me to leave Osgoode, move to McGill, and take Le Dain’s place. Dean Cohen invited me to visit McGill with my family, to stay at the new Queen Elizabeth Hotel, and visit Expo 67 at his expense, which we did. It was a magical time in Canada’s history and an exciting moment for law and law teachers. As attractive as Dean Cohen’s offer was and as alluring as Montreal was then, I was enchanted by Gerry and his noble vision for the renewal of the Osgoode Hall Law School, and by his apparent appreciation of my potential role in that journey. I informed Dean Cohen that I was staying at Osgoode with Le Dain. That was a sound decision, involving me and my colleagues – Arthurs, Hefferon, Weiler, Castel, Gray, and others – in the adventure of remaking Osgoode Hall Law School under Le Dain’s inspirational and charismatic leadership. The Osgoode Hall Law School in 1967 was emerging from some tumultuous years. The Law Society of Upper Canada had just agreed to affiliate the law school with York University, which had promised to erect a new building and embrace all of the faculty, staff, and students as the new Faculty of Law of York University. While many of us felt this was a great opportunity, some of our colleagues chose to

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leave us for the University of Toronto and elsewhere. Dean Le Dain led us joyfully in raising a spectacular new building, devising a modern, relevant curriculum, assembling a superb library, and attracting many new stellar faculty members from Canada, the United States, and around the world. Le Dain was the ideal leader for the time: visionary, enthusiastic, practical, and affable, encouraging us all to spread our wings and “fly,” which we did during his years with us, creating what some of us rather immodestly believed to be “the best law school in the Commonwealth.” When Pierre Trudeau was elected prime minister, Canada committed itself to building a “Just Society.” Canadian law teachers were invited to participate along with others in the monumental enterprise. Many of us were asked to serve as advisers on the Constitution – Beetz, Le Dain, Strayer, MacGuigan, Tarnopolsky, and others. This project eventually culminated in the Constitution Act, 1982, containing the Canadian Charter of Rights and Freedoms, which has since become a model for many other lands. The government also decided to establish a royal commission to study the emerging problem of illegal drugs. Len Shifrin, Health Minister John Munro’s executive assistant at the time, asked me if l would be interested in chairing the commission, but I recommended instead Dean Le Dain, who was bilingual, better known, and better versed in public law. He was appointed, and in the ensuing years he engaged in a dynamic and unprecedented dialogue on drugs with young Canadians in coffee houses, schools, churches, and universities. His landmark report, containing an insightful description of the problem and suggesting some practical solutions, transformed the debate, led to better understanding of the issue and some practical reforms. The unprecedented undertaking engaged the nation and involved many of our faculty and students, who contributed to the research and preparation of the report. The new Osgoode Hall Law School under Le Dain was the place to be in those years, at the centre of two significant, national, legal endeavours: providing solutions to our constitutional woes and solving our drug problems. Shortly after that time, Gerry tragically lost one of his beloved daughters in an automobile accident. It became time for him to move on, and he was appointed to the new Federal Court of Appeal, where he served with great distinction. A few years later, Pierre Trudeau appointed Le Dain to the Supreme Court of Canada, where he produced some superb decisions, always after his characteristically

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430

Allen M. Linden

thorough deliberations. The Quebec language case troubled him so much that he fell ill and had to leave the Court to undergo the treatment he needed to recover. Although Le Dain was deeply distressed about having to leave the Court so soon, it was clear that it would take time for him to recover. When Gerry finally conquered his illness, his friends persuaded him to write a memoir, which he undertook with great gusto, meeting with us occasionally at the Rideau Club and calling us periodically to refresh his memory about various events. He had kept a detailed diary about his professional activities over the years and his thoughts about them; he amazed us when he called to ask about particular events and detailed conversations with us, which he had recorded in writing years before. His manuscript, which would be a true treasure, has not yet been published, something I wish we could achieve. Gerry was reluctant to publish it because he worried about harming individuals he had worked with by disclosing potentially negative facts about them. Some time later, Gerry lost his beloved wife, Cynthia, and soon after, another of his daughters. These cruel losses overwhelmed him and caused him to withdraw. Tragically, he spent his last years mainly alone in his New Edinburgh apartment, seeing only his family. I telephoned Gerry occasionally to speak to him and to try to lure him out to lunch, but sadly he always politely declined, preferring to remain solitary in his grief until the end of his life. The Honourable Gerald Le Dain, Q C, was a great Canadian. He was a caring teacher, a brilliant scholar, an effective counsel, an innovative dean, a courageous royal commissioner, a great justice of the Federal Court of Appeal and the Supreme Court of Canada, a loving husband, father, grandfather, and friend. This commemorative volume is a fitting project to memorialize his many contributions to his beloved country. His work lives on. He is fondly remembered. He is sorely missed by all of us who loved him so.

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Contributors

H.W. A rt hurs is York University professor emeritus, former dean of Osgoode Hall Law School, and former president of York University. He has published widely on topics in legal education and the professions, legal history and theory, constitutionalism, and globalization. Professor Arthurs is an associate of the Canadian Institute for Advanced Research, a fellow of the Royal Society of Canada, and a corresponding fellow of the British Academy. He has been awarded the Canada Council’s Killam Prize, the Bora Laskin Prize, and the Labour Law Research Network Prize for work in labour law doctrine and reform, and the International Labour Organization’s Decent Work Research Prize. Professor Arthurs is also the recipient of honorary doctoral degrees from ten Canadian universities. G . B l a i n e B a k e r was professor of law emeritus at McGill University, where he had taught since 1980, and visiting professor of law at the University of Toronto, where he had visited periodically since 1990. He was a graduate of the Western Ontario and Columbia law schools and was a Bigelow Fellow in Law at the University of Chicago. Professor Baker was the author or editor of half a dozen books, including Essays in the History of Canadian Law: Quebec and the Canadas (2013) and about three dozen articles, most recently “Musings and Silences of Chief Justice William Osgoode” (2017), mainly on Canadian legal and cultural history. He won publishing prizes from the Canadian Law and Society Association, the American Society for Legal History, the Canadian Association of Law Libraries, and the Canadian Historical Association. Professor Baker was also a four-time recipient of university teaching awards. Blaine Baker passed away in July 2018.

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432 Contributors

B o n n i e B row n is a news and documentary producer for C B C Radio and Television. Over her twenty-year career in journalism, she has worked at The Sunday Edition, The World at Six, The National, The Magazine, Undercurrents, and Sports Journal. She has covered a wide range of news and current affairs stories, from the 9 / 11 attacks in New York City, to federal budgets and original investigations. Her documentary for The National, “Truth, Lies and Confessions,” investigated how police interrogation techniques can coerce false confessions from innocent people and led to the exoneration of one of former Ontario pathologist Charles Smith’s victims, Brenda Waudby, who was wrongfully convicted in the death of her child. It was awarded the Canadian Bar Association Stephen Hanson Award for Excellence in Journalism. She has also won numerous national news awards as part of The World at Six production team. Since 2014, she has served on the jury of the New York–based Sidney Hillman Foundation’s Canadian Hillman Prize, which honours investigative reporting that advances democracy and social justice. She has an L L B from McGill University, and a bachelor of arts in French (Gold Medal) from the University of Winnipeg. R o s e m a ry C a i r n s W ay is a professor at the Faculty of Law, Common Law Section, University of Ottawa. After graduating with the gold medal from the Faculty of Law at the University of Western Ontario, Professor Cairns Way clerked for Justice Le Dain in 1987–88. She has been at the University of Ottawa since 1989. Professor Cairns Way teaches criminal law, constitutional law, and legal theory. She has worked extensively with the Canadian judiciary. First, between 1997 and 2000, as the full-time project coordinator of the National Judicial Institute’s Social Context Education Program, a national education program for the Canadian judiciary on equality, diversity, and the judicial role, and more recently, as a regular pedagogy and context expert for national judicial education programs. Professor Cairns Way is a classical singer in her spare time, performing regularly at the National Arts Centre in Ottawa. Her primary research interests centre on equality, and in particular, on the infusion of equality values into judicial education, law school pedagogy, professional responsibility, and the substantive criminal law. J o h n M . E va n s was a judge of the Federal Court from 1998 to 1999, and of the Federal Court of Appeal from 1999 to 2013. Before his judicial appointment he had been a professor at Osgoode Hall

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Contributors 433

Law School, where he taught courses in administrative law, federal administrative law, refugee and immigration law, trusts, and restitution. After graduating from Oxford University, he started his academic career as a teaching fellow at the University of Chicago Law and continued it as a lecturer in the Department of Law at the London School of Economics. He has been an academic visitor at universities in Australia, New Zealand, and South Africa. His publications, mainly on public law, include eight books authored, co-authored, or edited, twelve chapters in books, and more than forty refereed journal articles. A member of the Ontario Bar since 1979, he is currently public law counsel, Goldblatt Partners L L P in Toronto, and a regularly invited speaker at legal conferences and seminars. Melvyn Green has been a judge of Ontario’s Court of Justice since 2004, dealing primarily with criminal matters. Prior to that appointment, he was a research associate at the “Le Dain Commission,” attended Osgoode Hall Law School, and practised criminal law in Toronto for almost twenty-five years. Justice Green was also cocounsel to Canada’s “Krever Inquiry,” and he appeared as counsel before Ontario’s “Guy-Paul Morin Inquiry,” Manitoba’s “Thomas Sophonow Inquiry,” Newfoundland and Labrador’s “Antonio Lamer Inquiry,” and Canada’s “Mahar Inquiry.” He continues to lecture and write in the field of drug regulation. B er n a r d Hi b b i t t s is a professor at the University of Pittsburgh School of Law, where he has taught since 1988. Born and raised in Halifax, he is a graduate of Dalhousie University and Carleton University; he studied law at Oxford University as a Rhodes Scholar before continuing his legal education at Dalhousie Law School, the University of Toronto, and Harvard Law School. Originally hired by Chief Justice Bora Laskin as one of his law clerks for the 1984–85 Supreme Court of Canada term, he was assigned to the chambers of incoming Justice Gerald Le Dain after Laskin’s death in office. His scholarship on the history of law and the legal profession has appeared in leading American and Canadian law journals as well as in two volumes published by the Osgoode Society for Canadian Legal History. He is currently writing a book for the University of Chicago Press on the history of legal education by correspondence. Peter W. Hogg is the scholar in residence at the law firm of Blake, Cassels & Graydon L L P , where he provides counsel to the firm on

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434 Contributors

issues of constitutional law and government liability. He is a professor emeritus of the Osgoode Hall Law School of York University, where he taught from 1970 to 2003 and served as dean from 1998 to 2003. He is the author of Constitutional Law of Canada, 5th ed., 2 vols (Thomson Reuters, 2007) and Liability of the Crown, 4th ed. (Carswell, 2011) with Patrick J. Monahan and Wade K. Wright, as well as other books and articles. His writings have been frequently cited by the Supreme Court of Canada. He also appears as counsel in constitutional cases. R ic ha r d J a nda was a clerk to Justice Gerald Le Dain and subsequently to Justice Peter Cory of the Supreme Court of Canada. His research has involved corporate social responsibility, public goods, and critical theory. He is currently leading the Myko project, an interdisciplinary inter-university research group seeking to establish a real-time sustainability impact platform. He is an associate member of the McGill School of Environment and was a member of the Quebec Human Rights Commission. C . Ia n Ky e r , a Toronto lawyer, historian, and author, is a graduate of the Universities of Waterloo and Toronto who practises information technology law at R P M Technologies. He is the author or coauthor of The Fiercest Debate, Lawyers, Families and Businesses, The Thirty Years War, Outsourcing Transactions, and Computer-Related Agreements. Dr Kyer is currently working on a book-length study of an Ontario bond scandal of the early 1920s. A n d r é e L ajo i e , diplômée en droit et en sciences politiques des universités de Montréal et d’Oxford, a été, de 1968 à 2006, professeure à la Faculté de droit de l’Université de Montréal, où elle a poursuivi, au Centre de recherche en droit public dont elle a été la directrice de 1976 à 1980, une carrière de recherche. Axés d’abord sur le droit constitutionnel et administratif appliqués à des champs variés traversant le domaine urbain et celui de la santé et de l’enseignement supérieur, ses travaux ont porté sur la théorie du droit (pluralisme, herméneutique), induite notamment à partir de corpus de droit constitutionnel reliés au rôle du pouvoir judiciaire dans la production du droit et aux droits des minorités, et sur les droits ancestraux des Autochtones au Canada. Parmi ses publications se trouve Conceptions autochtones des droits ancestraux (Montréal : LGDJ / Éditions Thémis,

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2008); Quand les minorités font la loi (Paris : P U F , 2002); Théories et émergence du droit: pluralisme, surdétermination et effectivité (Montréal : Éditions Thémis / Bruylant, 1998); Jugement de valeurs (Paris : P UF , 1997) et Le statut juridique des peuples autochtones au Québec et le pluralisme (Cowansville, QC : Éditions Yvon Blais, 1996). Gerald E. Le Dain was a judge on the Supreme Court of Canada and, prior to that, on the Federal Court of Appeal. Educated at McGill University and l’Université l’Lyon, he taught law at McGill for most of the 1950s and 1960s, sometimes combining that academic vocation with law practice at Montreal firms Walker, Martineau, and Riel, Le Dain. Professor Le Dain was designated founding dean of York University’s Osgoode Hall Law School in 1967, chairman of Canada’s Commission of Inquiry into the Non-Medical Use of Drugs in 1969, and justice of the Federal Court of Appeal in 1975. He was appointed to the Supreme Court in 1984, where he sat four years. Gerald Le Dain passed away in December 2007. Allen M. Linden was a judge of Canada’s Federal Court of Appeal and, prior to that, Ontario’s Superior Court. Educated at the University of Toronto, Osgoode Hall Law School, and the University of California at Berkeley, Dr Linden taught at Osgoode Hall for most of the 1960s and 1970s and was president of the Law Reform Commission of Canada from 1983 to 1990. The draftsman of Ontario’s hybrid, nofault automobile insurance regime and that province’s socialized criminal injuries compensation scheme, he was probably best-known for Canadian Tort Law (now in its tenth edition) and Cases on Canadian Tort Law (now in its fifteenth edition). Allen Linden passed away in August 2017. R oder ic k A . Mac dona l d taught and published in the areas of civil law, commercial law, administrative law, constitutional law, jurisprudence, and access to justice at McGill University. He was dean of the Faculty of Law from 1984 to 1989. He chaired a Task Force on Access to Justice of the Ministère de la justice du Québec (1989–91) and had been a consultant to the Bouchard-Taylor Commission (2007–08), the Royal Commission on Aboriginal Peoples (1991–92), the Ontario Civil Justice Review, and the Federal Department of Justice on the interaction of federal law and the Civil Code of Quebec. From 1989 to 1995, he was director of the Law in Society program

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436 Contributors

of the Canadian Institute for Advanced Research, and from 1997 to 2000, he was the founding president of the Law Commission of Canada. He passed away in June 2014. Louise Rolland a pris sa retraite de la faculté de droit, Université de Montréal, le 31 mai 2012. Spécialiste du droit civil, elle a dirigé d’importantes recherches sur les théories du contrat et sur le droit de l’eau. Vice-doyenne aux études supérieures et à la recherche de 2000 à 2004, on lui doit de nombreuses prestations dans le cadre d’évènements nationaux et internationaux. Stephen Sc o t t is professor of law emeritus at McGill University. He is a graduate of McGill and Queen’s College–Oxford, who taught banking and constitutional law at McGill for thirty-five years. As he did during much of his academic career, Professor Scott continues to represent clients in public law matters in Canadian federal and provincial courts.

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Index

114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson, 290, 330n181, 330n190 Abella, Rosalie, 330n180, 390, 402n9 academic life. See university access to justice, 200, 350, 368, 391– 4, 398, 409 Adams, Eric, 5, 26n8 administrative law, 10, 12, 13, 19, 63, 71, 73, 81, 82, 115, 118, 146, 147, 170–3, 186–93, 194n10, 195n12, 195–6n13, 196n14, 196–7n15, 198–9n25, 200–1n30, 202–3n42, 206–7n76, 210–11n112, 211– 12n123, 212n126, 213n132, 213n141, 214n145, 214n146, 215n153, 235, 280, 283, 288, 358–61, 366, 373, 374, 392 advocate, 68–70, 79, 80, 85, 109–10, 112, 113, 122, 137, 140–1, 169, 171–2, 391, 393, 409 Aeronautics Act. See Loi sur l’aéronautique Aeronautics Reference. See In re the Regulation and Control of Aeronautics in Canada affability, 15, 429

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alcohol, 13, 136, 148, 152, 161n40, 162n42, 166n84, 303–4n43, 349, 363 Aldisert, Ruggero, 386 Alleyne c Canada (Ministre de la main d’œuvre et de l’immigration), 352 Allison, George A., 62 Anscombre, Jean-Claude, 338, 382n13 Antares Shipping Corporation v The “Capricorn,” 205n67 Anthony, Brian, 141 Anti-Inflation Act, 220, 244, 306n70 Anti-Inflation Act Reference. See Re Anti-Inflation Act Arbour, Louise, 6 armed forces, vii, 10, 15–16, 49–59, 394, 407; basic training, 49–50; officer training, 50–1; demobilization, 59. See also World War II Arthurs, Harry, 13, 33n21, 34n21, 35n23, 40n35, 42n42, 44n53, 44n54, 95, 96, 395, 406, 408–9, 415, 428 articles: “1976 Convocation of Osgoode Hall Law School of York University,” 92–3, 98n16, 102n78, 103n81, 103n89, 104n92, 346–7,

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438 Index 357, 395, 404n36; “Case comment: Alliance des professeurs catholiques de Montréal c Québec (Commission de relations ouvrières),” 348, 360, 361; “Concerning the Proposed Constitutional and Civil Law Specialization at the Supreme Court Level,” 98n15, 103–4n90, 348, 354, 357–8; “F.R. Scott and Legal Education,” 92–4, 97n5, 103n80, 103n86, 104nn90–1, 389–90, 392–4, 399, 402nn3–4, 401nn7–8, 403n27, 403n29, 404n53, 405n67; “Jean Beetz as Judge and Colleague,” 45n62, 45n66, 92–3, 99n37, 103n79, 103n83, 103n89, 306n67, 314n105; “The Quest for Justice: The Role of the Profession,” 87, 89, 101n47, 102n60, 342–4, 346– 50, 355, 359–60, 381–2n10, 388– 9, 393, 396, 398, 402n6, 403n31, 404n55, 405n61; “Reflections on the Canadian Constitution,” 98n15, 103–5n90, 337, 342, 347, 352, 357–60; “Review of John Delatre Falconbridge, Banking and Bills of Exchange,” 348, 97n9, 194n10; “The Role of the Public Inquiry in Our Constitutional System,” 92, 102n70, 103n88, 104n95, 156n2, 157n4, 157n9, 157n11, 160n33, 349–50, 353; “Security on Moveable Property in the Province of Quebec,” 81, 103n85, 103–4n90, 348, 351, 355, 359; “Sir Lyman Duff and the Constitution,” 237–45, 298, 302nn25–6, 302n28, 353, 357–8, 370; “The Supervisory Jurisdiction in Quebec,” 97n6,

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103n85; “Teaching Methods in the Civil-Law Schools,” 82–3, 98n11, 98nn17–18, 103n87, 104n97, 126n16, 352; “The Theory and Practice of Legal Education,” 81, 99n30, 103n87, 104nn91–2, 104nn96–7, 126n16, 348, 352, 389, 402n1, 403n28, 403n30, 404n46, 404n50, 404n54, 405n73; “The Transfer of Property and Risk in the Sale of Fungibles,” 81, 103n90, 343, 359; “The Twilight of Judicial Control in the Province of Quebec?,” 42n45, 63, 81, 103n90, 357, 359, 360 aspiration, 4, 21, 84, 94, 289, 348, 351, 389–90, 392–3, 397 Association des Gens de l’air du Québec Inc c Lang, 339, 359 Attaran, Amir, 312n94, 314n110 Attorney General for Ontario v Barfried Enterprises Ltd, 19, 68–9, 168–9 Augustine of Hippo, 80 Backhouse, Constance, 23n3, 32n20, 130n44, 400, 405n64, 405n71 Baker, G. Blaine, 24–5n5, 33–4n21, 35n23, 41n39, 43nn48–9, 96, 124, 193, 298 Baker, George Harold, 60–1 Balzac, Honoré, 59 banking and negotiable instruments, 10, 12, 73, 81, 218 Barber, John, 88 Bastarache, Michel, 6 Batten, Jack, vii Beaulieu, Roger L., 62, 64 Beetz, Jean, 13, 33n20, 45n62, 45n66, 77, 78, 92–3, 99n37, 103n79, 103n83, 103n89,

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Index 439

210n109, 223, 228n12, 228n20, 228nn23–4, 252–6, 259, 263, 265–6, 302n22, 302n26, 302n28, 306nn67–8, 307n76, 314n105, 381n2, 381n7, 382n14, 384n36, 429 Bensol Customs Brokers Ltd v Air Canada, 177–9, 203n45, 204n48 Berger Inquiry. See Mackenzie Valley Pipeline Inquiry Bertrand, Marie-Andrée, 136–7, 146, 148, 150, 158n16, 163n55, 163n61, 164n77, 167n94 Beveridge, Albert, 8, 37n30 Bhinder case. See Canadian National Railway Company v Canadian Human Rights Commission biographies, 3–9, 22, 76–7, 394 Bishop’s University, 136 Blaikie, Peter, 75–6 Board of Commerce case. See In re the Board of Commerce Act and the Combines and Fair Practices Act Bouchard, Lucien, 285, 328–9n169 Brierley, John E.C., 34n21, 35n23, 43n47, 43n49, 99n23, 100n41 British North America Act. See Constitution Act, 1867 Brock University, 155 Brouillet, Eugénie, 264–6, 313n100, 330–1n184, 332–3n188 Brownstone, Lisa, 14 Bullion c Canada (Comite d’appel de la Commission de la Fonction publique), 343 Burgess, Caroline, 11, 406–7, 409– 10, 412–16 Butt, David, 14, 406, 410–13, 415 Cabinet decisions, 161n36, 181–3, 190–2, 197n17, 198–9n25, 208n89, 213n134, 213n138,

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213n140, 213n143, 214n144, 214nn146–7, 286, 288, 329n170 Caccamo v Minister of Manpower and Immigration, 212n128 Cairns Way, Rosemary, 14 Callaghan, Michael, 408 Campbell, Ian, 136, 146, 148, 150 Canada (AG ) v Ontario (AG ), 306n69, 330n178 Canada Labour Code, 185, 198n24, 208n93 Canada (PG ) c Canada (Com­mission des relations de travail dans la Fonction publique), 360 Canada (PG ) c Greaves, 343–4 Canada Temperance case. See Ontario (AG ) v Canada Temperance Federation Canadian Association of Law Teachers, 76, 88, 95, 400 Canadian Bar Association, 65, 83 Canadian Bar Review, 103n85 Canadian Bill of Rights. See Décla­ ration canadienne des droits Canadian Charter of Rights and Freedoms, viii–x, 6, 9, 13, 15, 19, 20, 21, 115, 135, 142, 156, 171, 181–3, 217, 230, 235, 341, 348, 353, 357, 360, 362–9, 372–4, 376, 381nn1–2, 383n27, 384n29, 397, 412–13, 429 Canadian Human Rights Com­ mission, 184, 197n20, 199n27, 208n93 Canadian International Paper Company, 10 Canadian National Railway Company v Canadian Human Rights Com­ mission, 181, 183–6, 199n27, 208nn92–3, 209nn96–7, 210n102, 210n106, 210n110, 215n153, 354 Canadian Pacific Hotels Ltd v Bank of Montreal, 73

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440 Index Canadian Radio-television and Telecommunications Commission, 190, 191, 198–99n25, 213n134, 213nn137–8, 213n140, 214n144, 214n146, 215n148 Canadian Transit Company v Windsor (City) 176, 178–9, 202nn36–7, 202nn39–40, 204n51, 204–5n60, 206n74 cannabis, vii, 134, 137, 141–2, 144– 6, 151–6, 158n13, 158n16, 160n30, 162n41, 162n43, 163n55, 163n57, 163n61, 163n63, 164n77, 165nn80–1, 166nn84–5, 167n94, 325, 407, 408 Cannabis Act, 153–4, 160n30, 163n61 Cardinal v Director of Kent Institution, 44n59, 155, 200–1n30, 212n126, 212–13n129, 213n132 Carriage by Air Act, 177, 203n45 Caron, François, 61 Cartwright, Richard, 31n17, 221, 228n17 Castel, Jean-Gabriel, 12, 43n49, 44n54, 428 Channel Islands, 10 Charbonneau Inquiry, 135 charisma, 15, 170, 428 Charter of the French Language, 412 Chateau Laurier Hotel, 69 Chauvin, Frank, 61 Chauvin, Henry Noel, 60, 62 Chekhov, Anton, 59 Citizens’ Insurance v Parsons, 227n5, 254, 309n78 civil law, 73, 80, 82, 86, 180, 392 clarity, 20, 21, 173, 216, 283, 312n94, 385 clerks, vii–x, 14, 15, 21, 73, 76, 78, 80, 388–9, 393, 396, 410–11, 415 cocaine, 134, 140–2, 149

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Cohen, Maxwell, 17, 34n21, 43n47, 43n49, 85–7, 89, 428 coherence, 21, 163n55, 216, 252, 309n78, 344–5, 367, 370–1, 385 Coleridge, Samuel, 71 Collèges d’enseignement général et professionnel (CEGEPs), 86 collegiality, 17, 89, 93, 145, 346, 352, 391, 410 commerce, 232–3 Commission du Salaire minimum v Bell Telephone Co of Canada, 69 Commission of Inquiry into the NonMedical Use of Drugs, vii, 11, 18, 88, 91–2, 95, 133–56, 170, 172, 341, 349, 351, 352, 358, 369, 370, 371, 372, 407, 408, 429, 430; context, 133–4; Final Report, 18, 136, 141, 145, 149, 150–2, 157n8, 161n40, 164n67, 340–52, 355–7, 360, 363–4, 366, 369, 371–2, 375, 381, 381–2nn10–11, 383n22; Interim Report, 18, 138–49, 142– 5, 148–9, 158n12, 158n16; legacy, 150–4; process, 142–5, 150, 160n31, 160n33; terms of reference, 137–8, 161n40 commissions of inquiry: role of. See royal commissions: role of common law, 10, 80, 82, 85, 86, 100n45, 106, 112, 114–15, 118, 124, 125n12, 130n46, 172, 187–9, 195n12, 195–6n13, 196n14, 201n35, 213n132, 353, 399, 402n3 communications law, 190, 199n25, 244 concision, 21, 386–7 Concordia University. See Sir George Williams University Constitution Act, 1867, 20, 174–6, 178, 180, 193, 200n30, 201n31, 217, 231, 233, 292, 309n78; s 91,

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Index 441

174, 180, 180, 217–18, 223–4, 231, 234, 236, 238, 244, 248, 257, 261, 265, 289, 304n47, 307n76, 314n104, 324–6n155; s 92, 175, 200n30, 217–19, 231, 234, 238, 244, 253, 257, 265–6, 289, 303n41, 307n76, 314n104; s 96, 200n30, 202n40; s 101, 174–9, 193, 200n30, 202n38, 204n46, 206n74. See also laws of Canada; peace, order, and good government Constitution Act, 1982, 176, 231, 363, 366, 381n1, 429 constitutional law, 12, 20, 72, 81, 82, 85, 95, 115, 117, 157n9, 168, 169, 171, 175, 192, 202n38, 280, 291, 292, 392 Controlled Drugs and Substances Act, 150n30, 151–2 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, 246, 248, 267–8, 270, 276, 279–80, 305n62, 308–9n77, 315n115, 315–16n116, 322n146, 323n153 Co-operative Committee on Japanese Canadians v Canada (AG ), 219, 228n9, 253, 263–4, 313n97, 313n99 counsel. See legal practice courage, 15, 89, 430 craftsmanship, 20, 385 Crépeau, Paul-André, 34n21, 35n23, 100n41 criminal law and justice, 18, 88, 115, 116, 134, 136–8, 140, 141, 145–7, 148, 149, 151, 232, 271– 3, 276–9, 283, 287, 288–93, 407, 410 Cromwell, Thomas Albert, 290–1 Croy v Atomic Energy Board, 197n20, 360

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C R TC. See Canadian Radiotelevision and Telecommunications Commission Cyr, Hugo, 298 Danch v Nadon, 213n132 deanship. See Osgoode Hall Law School Déclaration canadienne des droits, 206–7n76, 353–4, 364, 373 deference, 173, 184, 186, 193, 197n15, 211n112, 215n153, 256 de Maupassant, Guy, 59 de Mestral, Armand, 68, 96 democracy, 21, 61, 93, 189, 336–8, 341, 353, 357–62, 364, 366–8, 372–3, 375, 383n16 de Montigny, Yves, 197n17 Denis c R, 354 depression. See mental illness Deschamps, Marie, 290–1, 298, 326n157, 330n181, 330–1n184, 331n185 Desjardins, Alice, 197n17 Desjardins v Bouchard, 192, 199n27, 361 Devlin, Lord Patrick, 162n47 diaries. See memoirs Dickson, Brian, viii, 5, 13, 23n3, 24n5, 32–3n20, 36n24, 42n41, 46n70, 72, 76–7, 78, 182, 186, 208n88, 228n12, 228n20, 256–7, 263, 289, 302n28, 305n65, 307n74, 330n179, 336, 364, 367, 369–70, 373, 381n2, 384n31, 384n34, 410, 412–14 Dictionary of Canadian Biography, 5, 27–8n9, 28n10 Djwa, Sandra, 5 doctrine, 19, 118, 173–4, 176, 192, 204–5n60, 223, 237–8, 240–1, 243, 245, 251–3, 256–67, 259–60, 262–4, 266, 270–2, 274, 276–9,

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442 Index 282–3, 285, 288, 290–1, 295, 306n69, 307n72, 306n74, 308– 9n77, 310n84, 311n88, 312n91, 312n94, 313n99, 316n120, 320– 1n136, 321n138, 321n143, 324– 6n155, 326n161, 350n178, 332–3n188, 353, 360–1, 369–72, 381 Dodek, Adam, 32n20, 44n55, 398, 402n11, 405n60,n62 Dolphin Delivery case. See SDGMR c Dolphin Delivery Ltd Domestic Converters Corporation v Arctic Steamship Line, 180–1, 199n27, 205n71, 205–6n72 dominion, 221, 232–3, 236, 240, 241, 243, 256, 263–4, 294, 303n36, 314n108 Douglas Hospital, 136 Driedger, Elmer A., 173, 197–8n22 drugs. See alcohol; cannabis; cocaine; Commission of Inquiry into Non-Medical Use of Drugs; hallucinogens; heroin; morphine; opiate narcotics; war on drugs drug trafficking, 18, 142, 144, 146–8, 158nn13–14, 159n21, 163n57, 163n59, 165n80 Ducrot, Oswald, 338, 382n13 Duff, Lyman Poore, 23n3, 25n5, 92–3, 237–42, 244, 245, 248, 251– 3, 259, 262–3, 266, 292, 297–8, 253, 257, 270 Duplessis, Maurice. See Roncarelli v Duplessis Durnford, John, 96, 99n39, 100n41 Dylan, Bob, 134 Eastern Terminal case. See R v Eastern Terminal Elevator Co Emergencies Act, 220, 263, 312n94 Emergency Management Act, 313n94

30277_Baker.indd 442

Emmett Hall Inquiry. See Royal Commission on Health Services enthusiasm, viii, 15, 76, 408, 429 environmental law, 20, 119, 230–7, 239, 244–5, 248, 259, 266, 270, 272, 273–4, 276–81, 283–7, 290, 292, 294, 298, 299n3, 300nn11– 13, 301n14, 301n16, 311n87, 311n89, 314n104, 315n112, 315n115, 317–18n127, 318–19, 319n128, 319–20n135, 320– 1n136, 321n137, 321n138, 322nn147–9, 323nn152–3, 324n154, 324–6n155, 326n157, 326–7n163, 327n166, 328n168, 328–9n169, 329nn170–1, 329n175. See also pollution equality, 19, 21, 140, 185, 209n96, 391–4, 397, 399, 403n23, 404n57. See also inequality equity, 115, 119, 344–5, 352, 359– 61, 370–1, 373, 374 Estey, Willard, 13, 191, 210n109, 214nn144–6, 214–15n147, 256, 305n65, 381n2 European Court of Justice, 331–2 Evans, John, 19, 197n17 Evans v Public Service Commission Appeal Board, 212n127 fairness, 18–19, 157n10, 171, 173, 182, 186–92, 196n14, 208n89, 211nn113–15, 212n126, 212– 13n129, 213n132, 213n141, 213n143, 214nn145–6, 215n148 faith, 104–5n105, 356 Faiva v Minister of Employment and Immigration, 212n127, 212n129, 361 Farrow, Trevor, 391–2, 398 father, 22, 406, 409, 414, 416, 430 Fauteux, Gérald, 168

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Index 443

Federal Court Act, 171–5, 177, 195n12, 196n14, 198n25, 200n30, 202–3n42 Federal Court of Appeal, 5, 12, 13, 19, 76, 92, 134, 170–93, 345, 358, 360, 365, 389, 410, 430; appointment to, 12, 92, 410, 429 Federation of Canadian Law Societies, 17–18, 399; Task Force on the Canadian Common Law Degree, 114, 116–23, 399 Festschrifts, 7, 9 Finlay v Canada (Minister of National Revenue), 44n59, 206n76 First World War. See World War I Food and Drugs Act, 142, 151, 160n30 Ford v Quebec, 20, 22, 77, 230, 412, 414, 430 Foriers, Paul, 370, 382n12, 384n33 formalism, 89, 345–6, 353, 375, 384n37, 397. See realism Fort Frances Pulp & Power Co Ltd v Manitoba Free Press Co Ltd, 227n7, 256, 263, 312n92 Fox-Decent, Evan, 298, 301n14 Francis v Canada Labour Relations Board, 198n24, 354 Francis c Canada (Ministre de la main d’œuvre et de l’immigration), 343, 344 Fraser, Robert, 5, 28n10 free and democratic society, 9, 21, 335–6, 338–9, 341, 362–4, 369– 70, 373–4, 376, 382n14, 383n27, 384n29. See also democracy fundamental justice. See natural justice Gaudreault-Desbiens, Jean-François, 298 Gélinas, Fabien, 298

30277_Baker.indd 443

Gens de l’Air case. See Association des Gens de l’air du Québec Inc c Lang Georgas c Canada (Ministre de l’emploi et de l’immigration), 343 George, Russ, 281–2 Gibson, Dale, 27n8, 35n22, 229n28, 251, 257–60, 300n11, 302n32, 309–10n80, 310nn81–2, 310– 11n86, 311n87, 314n104 Gomery Inquiry, 135 Gonthier, Charles, 32n20, 287, 319– 20n135, 325–6n155 Gorki, Maxim, 59 Goudge, Stephen, 398, 403n16, 403n26, 405n69 Gow, J.J., 100n41 graduate legal education, 10, 86, 88, 95. See also legal education gravitas, 137, 386 Gray, Robert, 428 Greaves case. See Canada (PG ) c Greaves Green, Melvin, 22 Grivakis, Tass, 76 Haldane, Richard Burdon, 219–20, 240–1, 243, 303–4n43, 312n92 Hall, Emmett, 5, 23n3, 135 hallucinogens, 134, 142, 149 Halton, David, 410 hashish. See cannabis Harbrecht, Paul, 88 Harris, Zelig, 337–8, 341, 381n8, 383n23 Hart, H.L.A., 162n47 Heald, Darrel Verner, 184 Hefferon, Dennis, 428 heroin, 142, 150, 164n67, 307 Hibbitts, Bernard, 14 Hobbins, John, 96

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444 Index Hogg, Peter, 129n29, 251, 257–60, 302n32, 304n47, 305n65, 309n78, 311n88, 330n184 honorary doctorate, 12, 395 Hugo, Victor, 59 Huguenot, 10 human rights law, 19, 171, 181–6 Hurst, Willard, 8, 37nn3–2 Hydro-Québec, 64, 169, 328n168 Hydro-Québec case. See R v HydroQuébec Iacobucci, Frank, 13, 32n20, 197n17, 200n29, 283–4, 317n127, 324n155 immigration and refugee law, 174, 187–8, 211n117, 211n119–20, 212nn124–5, 212n127, 345, 360– 1, 372–3 inequality, 394, 398. See also equality In re the Board of Commerce Act and the Combines and Fair Practices Act, 240–1, 303n37 In re the Regulation and Control of Aeronautics in Canada, 216, 221, 223–5, 228n16, 243, 245, 253, 265, 275, 303n41, 310n84 inspiration, 15, 62, 88, 95, 189, 428 Interprovincial Co-operatives Ltd v The Queen, 276, 299n7, 305n58 Inuit Tapirisat v The Right Honourable Jules Léger, 189–92, 197n19, 208n89, 214nn144–5, 214–15n147, 361 Ipperwash Inquiry, 135 Irwin Toy v Quebec, 20, 22, 230 ITO-Int’l Terminal Operators v Miida Electronics, 178–81, 204n51, 205–6n72 Jackett, Wilbur, 23n4, 24n5, 42n41, 174, 194n7, 199n28 Jacobellis v Ohio, 304n48

30277_Baker.indd 444

James, Henry, 59 Janda, Richard, 14, 35n23, 69–78, 96, 406, 411–12, 414–16 Japanese Canadians case. See Co-operative Committee on Japanese Canadians v Canada (AG ) Jiminez-Perez v Minister of Employment and Immigration, 187–8, 361 Johannesson v West St Paul, 221–2, 225, 228n18 Jones c R, 366 Joyal, Marcel, 386 Judicial Committee of the Privy Council, 159n18, 164n73, 216–17, 219–20, 228n16, 237, 240–1, 251, 253, 263, 298 judicial justice, 368, 393 judicial opinion writing, 19–21, 73, 77, 83, 93, 155, 171–4, 183, 184, 192, 216, 222, 226, 237, 297, 366, 370, 385–7 judicial review of administrative action. See administrative law justice. See access to justice; natural justice; social justice Kang c Canada (Ministre de l’emploi et de l’immigration), 343 Karakatsanis, Andromache, 179, 208n38 Kasirer, Nicholas, 34n21, 35n26, 78 Kelleher, Leslie, 14 Khaki University, 10 Kipling, Rudyard, 59 Kostal, Rande, 22, 36n25, 39–40n35, 46n70 Labatt Breweries of Canada Ltd v Canada (AG ), 255–6, 305n65 Labour Conventions case. See Canada (AG ) v Ontario (AG )

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Index 445

labour law, 183, 185–6, 354, 365, 372 La Forest, Gérard, 44n55, 224, 228n20, 231, 237–9, 250, 271–80, 283, 287, 301n15, 305n62, 317n125, 317–18n127, 318– 19n128, 319n129, 319n132, 319– 20n135, 320–1n136, 321n143, 322n146, 324n155, 326n160 Lamer, Antonio, 24n5, 32n20, 44n55, 101n55, 156n3, 186, 210n105, 228n20, 283–4, 317n127, 324n155, 326n160, 364, 369–70 Langlois, Albert, 61 Lapalme, Georges-Émile, 169 Laskin, Bora, viii–ix, 5, 12, 23n3, 25n6, 32–3n10, 43n49, 45n67, 101n49, 106, 126n15, 178, 218, 220, 252, 256, 263, 306n69, 307n72, 410 Laskin, John, 197n17 Laskin, Peggy, 12 Latif v Canadian Human Rights Commission, 197n20 Laurendeau-Dunton Commission. See Royal Commission on Bilingualism and Biculturalism Laurent c Perron, 352 law and society studies, 88, 395 law reform, 4, 15, 18, 21–2, 88, 94, 116, 396 Lawrence, D.H., 59 law school accreditation, 87–8, 114 law school curriculum, 17, 82–3, 86–8, 106–12, 118–20, 399–401, 429. See also curriculum; McGill University: National Program in Legal Education; Osgoode Hall Law School Law Society of Upper Canada, 12, 86–7, 106–13, 121, 124, 131– 2n69, 389, 400, 428 Law Society of Upper Canada c Skapinker, 362, 383n26

30277_Baker.indd 445

laws of Canada, 174–9, 181, 202n38, 204–5n60, 206n74. See also Constitution Act, 1867: s 101 lawyer. See legal practice Leal, H. Allan, 90, 101n49 Learned Societies Congress, 155 LeBel, Louis, 32n20, 290–1, 326n157, 330nn180–1, 330– 1n184, 331n185 Leclair, Jean, 298, 307–8n76, 308– 9n77, 321n139, 330n178 Le Dain, Bruce, 10 Le Dain, Caroline. See Burgess, Caroline Le Dain, Catherine, 11, 14, 407, 430 Le Dain, Cynthia, 10, 14, 59, 409, 413 Le Dain, Eric, 11 Le Dain, Eric George Bryant, 10, 49 Le Dain, Gerald Eric: audio transcript, 407, 408, 410 Le Dain, Jacqueline, 11, 13, 407, 409, 429 Le Dain Commission. See Commission of Inquiry into the Non-Medical Use of Drugs Le Dain Symmonds, Jennifer, 11 Lederman, William, 34n21, 76, 301n15 Lee, Robert Warden, 85 legal education, 15–18, 21, 80–91, 93–6, 106–24, 125n12, 388–91, 394–6, 399–401. See also graduate legal education; law school curriculum legal generalist, 16, 21, 392 legal practice, vii, 10, 16–17, 43n51, 62–3, 65, 69–71, 73, 80–4, 89, 93–4, 107–11, 115–17, 119–21, 168, 390, 398–400 legal scholarship, 4, 5, 7–10, 21, 23n1, 35n23, 36n24, 37n29, 48n90, 48n93, 73–4, 78, 79–82,

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446 Index 88, 94–5, 99n39, 108, 112, 116, 119–20, 124, 128n26, 137, 172, 295, 300n11, 330n178, 389–92, 398, 411, 430 Lehmann, Heinz, 136, 167n94 Lennon, John, 18, 162n41 Létourneau, Gilles, 197n17 L’Heureux-Dubé, Claire, 5, 23n3, 32n20, 72, 290, 293, 330n181, 381n2, 411–15 liberal education, 17, 21, 94, 108, 120, 397, 399 liberty, 21, 149, 155, 208n86, 211n113, 228n10, 236, 336–7, 341, 353–8, 362–8, 371–3, 375, 383n27, 384n29 lifelong learning, 21, 85, 392, 397, 403n30, 404n56 Linden, Allen, 48n97, 197n17 litigation. See legal practice Local Prohibition case. See Ontario (AG ) v Canada (AG ) Lodge c Canada (Ministre de l’emploi et de l’immigration), 343 Loi constitutionnelle de 1982. See Constitution Act, 1982 Loi sur l’aéronautique, 339–40 Loi sur les langues officielles, 339–40 Louhisdon v Employment and Immigration Commission, 212n125, 360 Macdonald, Roderick, 27n8, 33–4n21, 35n23, 43n47, 298, 302n18, 333n193 Macdonald, James, 247 MacGuigan, Mark, 12, 197n17, 429 Mackenzie Valley Pipeline Inquiry, 135 Major, John, 6 Manitoba (PG ) c Metropolitan Stores Ltd, 364 Mann, Thomas, 59

30277_Baker.indd 446

Mann v R, 69, 98 Marceau, Louis, 197n17, 207n80 marijuana. See cannabis maritime law, 12, 63, 65, 67n20, 179–81, 193, 195n11, 205n65, 205–6n72, 206n74 Marshall, Donald, 135 Marshall, John, 8, 232 Martineau, Jean, 61–2, 65 Martland, Ronald, 68, 228n12, 252, 307n74 Mavour v Minister of Employment and Immigration, 197n20 McCarthy v Minister of Manpower and Immigration, 212n127, 361 McCruer Commission, 196n14 McGill Law Journal, 16, 21, 63, 73, 81, 82, 84, 103n85, 389 McGill-Queen’s University Press, 22 McGill University, 10, 12, 63, 64, 65, 80–7, 136, 340, 407, 411, 428; Institute of Comparative Law, 86; National Program of Legal Education, 17, 81, 86, 89, 94; Resources Committee, 17, 81–2, 85–6, 89, 95, 100n41; transsystemic curriculum, 119 McIntyre, William, 5, 23n3, 210n109, 228n20, 364, 381n2 McLachlin, Beverley, 290, 326– 7n163, 330n181, 332–3n188 McMorrow, Tom, 96 McMurtry, Roy, 391 McNamara Construction (Western) Ltd v R, 176, 178, 201n35, 202n42, 204n48 McWhinney, Edward, 100n41 memoirs, 14, 47n75, 430 mental illness, viii–x, 13, 72, 136, 413, 414 mercantile law, 81, 82 Meredith, William, 17, 89 Mewett, Alan, 101n49

18-11-15 11:45



Index 447

Miida Electronics Ltd v Mitsui OSK Lines and ITO . See ITO -Int’l Terminal Operators v Miida Electronics Mill, John Stuart, 162n47 Miller, Ralph D., 144, 161n40 Minister of Manpower and Immigration v Tsiafakis, 188, 361 Mohr, Hans, 87 morality, 137, 154, 159n17, 167n92, 348, 355, 391 Morin, Guy Paul, 135 Morissette, Yves-Marie, 34n21, 78 morphine, 140–2 Muir, Barbara, 11 Mullan, David, 34n21, 47n83, 193 Munro, John, 429 Munro v National Capital Commission, 97–8n10, 221–2, 226, 238, 244, 251, 304n51 Munsinger Inquiry, 135 Murphy, Emily, 140–1, 158n18, 158n20, 164–5nn25–6, 165n28 Narcotic Control Act, 142, 151, 155–6, 160n30, 167n94 Nash, Knowlton, 410 natural justice, 173, 182, 187, 189, 197n20, 198n25, 207n84, 207– 8n85, 211n113, 213n141, 214n145, 352, 359–63, 368 navigation and shipping power, 180–1, 206n74, 282, 302n24, 305n62. See also Constitution Act, 1867: s 91 Nicholson v Haldimand-Norfolk (Regional Municipality) Com­ missioners of Police, 173, 189–91, 196n15, 197n18, 198n25, 360 Nolin Report, 151–2, 164n77, 165n80 North Canada Air Ltd c Canada (Conseil canadien des relations de travail), [1981] 2 C F , 399, 354

30277_Baker.indd 447

North Canada Air Ltd v Canada Labour Relations Board, [1981] 2 FC, 407, 197n18 Oakes case. See R v Oakes Ocean Dumping Control Act, 222, 225–6, 238–9, 246, 249–50, 302n24, 308–9n77, 319–20n135 O’Connor, Dennis, 134–5, 150 O’Connor Report, 218 October crisis, 133, 219, 228n10 Official Languages Act. See Loi sur les langues officielles Oloko v Employment and Immi­ gration Commission, 212n125, 360 Ono, Yoko, 18, 162n41 Ontario (AG ) v Barfried Enterprises, 19, 68–9, 168–9 Ontario (AG ) v Canada (AG ), 241–2, 251, 265, 306n69 Ontario (AG ) v Canada Temperance Federation, 220–3, 228n13,n23, 242–3, 251–2, 256, 263, 303n41 Operation Dismantle. See The Queen v Operation Dismantle Inc, 181 opiate narcotics, 134, 137, 142, 144, 149, 150 Order of Canada, xi, 12, 65 Osgoode Hall Law School, vii, 12, 15, 17–18, 72, 79, 81, 82, 83, 86–91, 94, 95–6, 106–13, 134, 145, 150, 170, 340, 389, 395, 407, 408, 428–9; affiliation with York University, 12, 86–7, 90, 108–9, 126n15, 428; curriculum, 17, 101n49, 107, 109–11, 428–9; deanship, vii, 17, 72, 81, 83, 87, 89, 90–2, 96, 104n96, 106, 109– 12, 134, 170, 389, 400, 428; Parkdale legal clinic, 87, 94, 111– 12, 128n24; student representation, 90

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448 Index Osgoode Society for Legal History, 5, 22 Ostrom, Elinor, 294, 311n89, 333n192 Parent Commission on PostSecondary Education, 86 Parsons case. See Citizens’ Insurance v Parsons peace, order, and good government, 20, 216–26, 227n2, 232, 235, 237–45, 251–71, 275–6, 279–80, 282–6, 291–3, 295, 299–300n8, 300n11, 303n34, 304n47, 305n58, 306n69, 308–9n77, 309n78, 324–6n155, 327n157. See also Constitution Act, 1867 Perelman, Chaïm, 338, 340–1, 353, 357, 367, 370, 373, 382n12, 384n33 personality, 8, 62, 95, 109, 401 personal space, 71 Phelan, Charles Alexander, 63, 65 photos, ix, 11, 52, 110, 139, 227 Pigeon, Louis Philippe, 168, 169, 228n12, 228n25, 252, 299n7, 305n58, 307n74 Pirotte c Canada (Commission d’assurance-chômage), 343, 345 pogg. See peace, order, and good government Poirier, Johanne, 298, 327n167, 327n183 pollution, 216, 222, 224–6, 236, 238, 247–9, 258, 260–2, 266–72, 274– 9, 287, 295, 297, 299n3, 299n7, 300n11, 305n58, 305n62, 308– 9n77, 309–10n80, 310n84, 312n112, 312nn115–16, 312nn119–20, 317n125, 317– 18n127, 319n129, 319–20n135, 320–1n136, 321n138, 322n146,

30277_Baker.indd 448

324n154, 326–7n163. See also environmental law Pratte, Louis, 177, 194n7, 197nn16– 17, 207n80, 207n82, 208n86 precision, 21, 316n119, 368, 385 private law, 13, 55, 77, 217, 392 Privy Council. See Judicial Com­ mittee of the Privy Council procedural fairness. See fairness professionalism, 21, 69, 108, 113, 115, 118, 121, 388–401 property law, 73 prosopographies, 5–6, 23n2 Proulx c Canada (Commission des relations de travail dans la Fonction publique), 359, 361 public goods, 231, 245, 261, 275, 280, 292–7, 304n47 public service, 80, 117, 211n115, 212n127, 394 Quebec Bar, 60, 61, 72, 81, 83, 86 Quebec North Shore Paper Co v CP Rail Ltd, 174–7, 178, 180–1, 201n34, 204n46 Radio Reference. See Reference re Regulation and Control of Radio Communication Rand, Ivan, 5, 23n3, 32–3n20 R c Khan, 343 R c Rahey, 362 realism, 49, 89, 257, 311n88, 344, 346, 349–50, 360, 363, 369, 375, 385n37, 396. See formalism Re Anti-Inflation Act, 220, 222, 223, 228n24, 252–5, 259, 263–5, 302n19, 306n69 recruitment of law professors, 87–8, 90, 95, 104n102, 109, 428 Re Rizzo & Rizzo Shoes Ltd, 173, 197n21, 198n22

18-11-15 11:45



Index 449

reasons for judgment. See judicial opinion writing Redbrooke Estates v City of Montreal, 74–5 Reference re Assisted Human Reproduction Act, 290, 293–4, 321n140, 326–7n163, 330n181, 330–1n184, 331n185 Reference re Public Service Employee Relations Act (Alta), 362–5, 304n55, 311n90, 368, 374 Reference re Regulation and Control of Radio Communication, 243–5, 253, 256, 265, 275, 304n49, 310n84, 313n101 Reference re section 94(2) of the Motor Vehicle Act, 207–8n85, 364, 366 Reference re Securities Act, 293, 311n90, 324–6n155, 330n180 religiosity. See faith revolution, 80, 88, 100n43, 348, 394–5, 399–400, 408 Rhine v R, 179, 201–2n35 Richler, Mordecai, 407 Ridge v Baldwin, 189, 198n25, 214–15n147 Riel, Le Dain, Bissonnette, Vermette, and Ryan, 10, 68 Riel, Maurice, 11, 81, 169 Ritchie, Roland, 68, 69, 228n12, 252–3, 263, 305n58, 307n74 Roach, Kent, 23n3, 24n5, 42n41, 46n70, 76 Robertson, Joseph, 197n17 Roberts v Canada, 178, 201n35, 202–3n42, 204n55, 205n63 Robin, Régine, 336–7, 381n6, 382n14 Roncarelli v Duplessis, 43n50, 170, 183, 199n25 Rondeau c Simard, 343

30277_Baker.indd 449

Rothmans of Pall Mall Canada Ltd v MNR, 206n76, 354 Rothstein, Marshall, 13 Royal Canadian Mounted Police, 141, 162n43, 213 Royal Commission of Inquiry into the Westray Mine Tragedy, 135 Royal Commission on Aboriginal Peoples, 135 Royal Commission on Bilingualism and Biculturalism, 11, 82, 85, 91, 135 Royal Commission on Health Services, 135 Royal Commission on New Reproductive Technologies, 135 Royal Commission on the Status of Women, 135 royal commissions: role of, 18, 92, 94, 135, 156n2, 157n4,n11, 349 Russell, Vicki, 415 Russell v R, 240–3, 303n34, 303– 4n43, 314n108 R v Collins, 362 R v Crown Zellerbach, 20, 216–26, 230–98, 411 R v Eastern Terminal Elevator Co., 239–40, 302n32 R v Edwards Books, 364, 366 R v Hydro-Québec, 278, 283, 287–8, 293, 317–18n127, 318–19n128, 319n129, 319–20n135, 321n137, 324–5n155, 326n163, 327n167, 328n168 R v Miller, 200–1n30, 212n126 R v Oakes, 161n36, 364, 397 R v Smith, 155–6, 163n58, 167n98, 362 R v Therens, 13, 155, 362, 364–5 R v Thomsen, 362–3 R v Wetmore, 255–7, 263, 305n65, 307n74

18-11-15 11:45

450 Index Ryan, William F., 183, 194n7, 197nn16–17, 207n80, 207n83 Ryder, Bruce, vii, 14, 95, 96 Saul, John Ralston, 299–300n8 Saunders, Edward, 51 Scambler, Scott, 96 Schneider v R, 255, 257, 307–8n76, 164n67 Scott, Frank, 5, 17, 26n6, 26–7n8, 29n12, 35n21, 43nn49–50, 76, 80, 85, 89, 92, 93–4, 97n5, 100n45, 102n62, 103n80, 103n86, 104nn90–1, 389–90, 392–3, 396, 399, 402nn3–4, 402nn7–8, 403n27, 403n29, 404n53, 405n67. See also articles: “F.R. Scott and Legal Education” Scott, Marianne, 22, 100n41 Scott, Stephen, 95, 96, 99n39 SDGMR c Dolphin Delivery Ltd, 364, 366 Seafarers International Union of Canada v Canadian National Railway Co., 197n19, 214n146, 215n148, 361–2 Second World War. See World War II secured transactions, 73, 81, 103n85 self-doubt, 13, 68–9, 85, 154 Sharpe, Robert, 23n3, 24n5, 42n41, 46n70, 76, 201n31 Shell Canada Ltd c Canada (Ministre de l’énergie, des mines et des ressources), 360 Shifrin, Len, 429 Sierra Club v Morton, 301n16 Simon, Viscount John, 220, 222–3, 242–3, 256 Sir George Williams University, 136 Skaarup Shipping Corporation v Hawker Industries Ltd, 205n67, 205n70

30277_Baker.indd 450

Smith, Sir Montague, 240–1, 303n34 Snider case. See Toronto Electric Commissioners v Snider social justice, 17, 21, 87, 89, 100n45, 342–4, 346–7, 355, 364, 368, 389, 393, 397 social transformation, 154, 347, 351, 400 Solomon, Robert, 14, 47n80, 141, 162n42, 164n73 Sophonow, Robert, 135 Spraytech case. See 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson Stein, Peter, 136 Stewart c Canada (Commission des relations de travail dans la Fonction publique), 354 Stokes, Mary, 22 Strayer, Barry, 197n17, 429 struggle, 59, 155, 174, 199nn27–8, 294 style, 16, 73, 89, 103n85, 174, 216, 345, 353, 374–5, 386 subsidiarity, 178, 231, 259, 280, 289–94, 297 Supreme Court of Canada, 11, 168, 171, 183, 186, 192, 226, 227, 385, 388, 410; appointment to, 12–13, 174, 410, 429; departure from, ix–x, 13, 72–3, 413–16, 430 Syndicat Général du Cinéma et de la Télévision c R, 354 Syndicat international des marins canadiens c CN. See Seafarers International Union of Canada v Canadian National Railway Co. Tanovich, David, 391, 403n21 Tarnopolsky, Walter, 429 teacher, 16, 63, 70–2, 73, 75–6, 78, 79, 81, 84–5, 92, 93, 94–6, 113,

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Index 451

169–70, 340, 369–70, 382n11, 389–90, 395, 399, 428–9, 430 Tetley, William, 63–5 The Queen v Operation Dismantle Inc, 181–2, 207n84, 208n86 Thurlow, Arthur L., 194n7 Tolstoy, Leo, 59 Toronto Electric Commissioners v Snider, 240, 243, 303n43 toxic substances, 249, 269, 272–3, 278, 283–8, 294, 318–19n128, 319–20n135, 326–7n163, 328n168, 329n171, 329n176, 330n177; List of Toxic Substances, 278, 285–6, 288, 319–20n135; Toxics Reduction Act, 2009, 287, 329n171, 330n177 trade and commerce power, 232–3, 241, 254, 290–9, 299n5, 299n7, 324–5n155. See also Constitution Act, 1867; s 91 trafficking. See drug trafficking Travailleurs unis du télégraphe c Fraternité canadienne des cheminots, 354 Triquet, Paul, 49 Trudeau, Justin, 18 Trudeau, Pierre, vii, 12, 18, 66n16, 161n40, 219, 414, 429–30 Université de Lyon, vii, 10, 42n45, 81 university, 17, 76, 80, 81, 84, 85, 88, 90, 91, 94, 99n39, 106, 107, 110– 11, 122, 124, 143, 389, 394, 396, 399, 401, 429; university administration, 15, 18, 21, 79, 86, 89, 101n65, 137, 407 University of California at Berkeley, 428 University of Montreal, 136 University of New Brunswick, 393

30277_Baker.indd 451

University of Toronto Faculty of Law, 106, 107, 429 Urie, John J., 194n7 Vachon c R, 344, 354 Valente c R, 362 values, 15, 21, 84, 94, 111, 113, 155, 238, 240, 320, 340, 344, 346, 348, 351, 356–7, 362, 364, 366–8, 370– 1, 375, 390–1, 398, 416 Vlasic, Ivan, 11 Walker, Harold E., 61 Walker, Martineau, Chauvin, Walker and Allison, 10, 16, 60–5 Walker, Robert, 61–2, 64 War Measures Act, 219–20, 263–4, 313n98 war on drugs, 18, 138, 158n14 Watson, Lord William, 241–2, 303n36, 306n69 Weiler, Paul, 33n21, 428 Westhill High School, 10 Westray Mine Inquiry. See Royal Commission of Inquiry into the Westray Mine Tragedy Wetmore case. See R v Wetmore Whitehead, Alfred North, 94 Whithard, Antoinette Louise, 10 Willis, John, 26n6, 34n21, 35n23, 43n49, 106 Willis, L. Allan, 281–2, 308–9n77, 315n116, 316nn119–20 Wilson, Bertha, 5, 23n3, 24n5, 32–3n20, 42n41, 44n55, 46n70, 178, 183, 210n109, 228n20, 381n2, 414 Wilson, Kumanan, 312n94, 314n110 Windsor case. See Canadian Transit Company v Windsor (City) Woldu c Canada (Ministre de la main-d’œuvre et de l’immigration), 352, 362

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452 Index World War I, 61, 219 World War II, vii, 10, 14–16, 20, 42n45, 51–9, 62, 80, 219, 394, 407; Army of Occupation, 59; Belgium, 51–2; Germany, 56–9; Holland, 55–6; “Le Dain luck,” 56, 58, 59; Rhine crossing, 16, 53–5. See also armed forces Wren, Sir Christopher, 78 Wright, Cecil “Caesar” Augustus, 45–6n67, 100n44, 106, 125n2

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Wright, Lord Robert Alderson, 263–4 York University, 6, 95, 113, 124, 131n69. See also Osgoode Hall Law School: affiliation with York University Zong c Canada (Commissaire des pénitenciers), 354

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