BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
Sandra Djwa. The Politics of the Imagination: A Life of ER. Scott. Toronto:
McClelland & Stewart, 1987. Pp. 528 [$39.95]. Reviewed by Kenneth
McNaught.*
“Two poets”, wrote Frank Scott to a publisher who was interested in
a biography in 1977, “have already been asked to take on the assignment;
one refused, the other lasted a year and then withdrew. Both could face the
poetry side, but were fearful of my law and politics. I don’t blame them.”‘
In the upshot Scott approved a literary historian for the job. Sandra Djwa
understood perfectly the implications of Scott’s remark. She knew that prob-
ably no one in twentieth-century Canada had come as close as did Scott to
being uomo universale: a Renaissance man who had in him not only the
humanist artist but also the unmistakable aura of Savonarola and, at the
end a strong whiff of the Prince.
Djwa has adopted, to some extent, Scott’s own formula for synthesis:
a constant endeavour to reconcile his insatiable thirst for creativity and to
understand why he must always “ride off in all directions.” He himself once
expressed the resolution of his many interests thus: “Politics is the art of
making artists. It is the art of developing in society the laws and institutions
which will best bring out the creative spirit which lives in greater or less
degree in everyone of us. The right politics sets as its aim the maximum
development of every individual. Free the artist in us and the beauty of
society will look after itself.’ 2 What a splendid emphasis from the man who
helped write the Regina Manifesto 3 and Social Planning for Canada.4 In
the end one wonders, why attempt to unify the astonishing Scott varieties?
except that he himself tried constantly to do just that; and in one moment
–
of self-doubt mused, “I’ve spread myself too thin.” 5 But that brief quaver
was more about missing goals than about inner unity.
* Professor of History, emeritus, University of Toronto.
IS. Djwa, The Politics ofthe Imagination: A Life ofER. Scott (Toronto: McLelland & Stewart,
1987) at 440.
2lbid. at 269.
3Reprinted in K. McNaught, A Prophet in Politics: A Biography ofJ.S. Woodsivorth (Toronto:
University of Toronto Press, 1959) at 321-30.
4(1935) (Toronto: reprinted by University of Toronto Press, 1975).
5Djwa, supra, note 1 at 286.
1988]
CHRONIQUE BIBLIOGRAPHIQUE
Sandra Djwa went about her ten-year project with the enthusiasm of
a skilled researcher. To the dozens of interviews with the Scotts and people
who knew them, she added a formidable mass of material from archival
collections and some diligent forays into Canadian history, law and politics.
The result is a long book which could –
and perhaps should – have been
longer. That Djwa has balanced her treatment of Scott meticulously means
that each of her readers will wish that more had been written about particular
aspects. Yet, while there remains room for more specialised studies, Scott
does emerge from this first biography a towering figure –
one who knew
what it means to be Canadian.
Perforce, a biographer proceeds from back to front. In the case of Scott,
his biographer must have been first attracted by what was very much up
front: the poet whose writing (and omniverous reading) helped introduce
Canadians to modernist poetry, whose restless imagination appropriated the
North for our collective understanding and who enshrined satire as a prime
Canadian art form while never underrating therapeutic doggerel; the polit-
ical thinker-doer who saw beyond the mere existence of Canada to what it
could and should be and who did more than anyone else to pillory pom-
posity, smug self-interest and indifference and to domesticate democratic
socialism; the reluctant lawyer who sloughed off trade-school wrappings,
taught his students to see the law as a supremely creative tool, and left them
tingling with such potent notions as “social engineering” and the “just so-
ciety”; the improbable courtroom advocate winning blockbuster victories
for civil liberty –
at least in part to prove the validity of his own telling
constitutional analyses. And all this encompassed in that elegant pinetree
of a man whose life articulated our solitudes, both collective and individual,
and whose work was an unremitting exercise in building bridges.
To explain the Scott phenomenon Sandra Djwa dug deep into the family
record and that of Scott’s formative years. Born into privileged Anglicanism
in the rectory of Quebec City’s St. Matthew’s Church, Scott grew up in an
ambience exuding Rudyard Kipling, G.A. Henty and the idea of service.
But if empire and duty loomed large in the family dominated by a very
Victorian father, that same father, Canon EG. Scott, tempered austerity with
a vibrant love of letters and of what can only be called the “common people”.
As a chaplain in the first world war (when he was in his mid-fifties) Canon
Scott was seldom far from the front with “his boys”. In 1919, the year that
his son graduated from Bishop’s College, the Canon went to Winnipeg during
the general strike to lend his support to veterans’ groups. There he an-
nounced that he would “dedicate the rest of his life to fighting labour’s
battles.”‘6
6lbid. at 206.
McGILL LAW JOURNAL
[Vol. 33
Djwa observes that Canon Scott’s “socialism, a social manifestation of
his religious faith, was always tied to “his boys”‘ –
(the returned soldiers)
and that Frank’s socialism was “undeniably different”. 7 I think she mini-
mizes here two important continuities. While Frank would abandon formal
religion and garnish his poetry with images from science and philosophy,
he found more than spiritual beauty in northern rocks and rivers and the
waters of the Eastern Townships. There was no non sequitur when, towards
the end of his life he sat beside Lake Massawippi humming “Praise God
from whom all blessings flow ….. 8 There was, of course, a difference from
his father (about whom he certainly had mixed feelings) in that the elder
Scott remained a military person, very much grata in Mount Royal estab-
lishment circles while the son became acerbically anti-militarist, anti-
imperialist and duly reviled in those same circles. But there was in common
a deep conviction of noblesse oblige. In religious terms this translates into
“stewardship”; in both contexts it meant a duty to place one’s privilege and
competence at the service of society –
especially of the underprivileged.
In the language of the 1960s both Scotts were “elitist” and it is this unbroken
thread which seems to puzzle Djwa who stresses the differences rather than
the similarities. It is the similarities which make sense of Scott’s life; sim-
ilarities which are made dissimilar by the son’s more intense awareness of
beauty and design. But even in his most rational poetry Frank sought the
force that lay behind the beauty, the regularities, the evolution.
The “flaming radical” who consorted with Norman Bethune and the
avant garde groups around the McGill Fortnightly Review, Preview, Cana-
dian Forum and the CCF, castigated the philistines who ran universities,
governments and business, not because those people were conservative but
because they were ignorant of the civilized legacy they should have defended
and enhanced. They were indifferent to the suffering they caused, unappre-
ciative of the precarious heritage of liberties and justice they should have
felt obliged to sustain. In short, Scott feared and fought them because they
were the new vandals. Such a man could never, and never did become a
Marxist –
as did so many of his counterparts in the United States. Yet, in
her careful treatment of the October Crisis (during which he supported
proclamation of the War Measures Act) Djwa writes that, like others of his
generation in the 1930s, Scott “tended to see social revolution as a necessary
liberation from oppression”9 and thus his 1970 stand for law and order
shocked many of his friends; while Louis Dudek wrote in a review that the
October Crisis revealed “the revolutionary turned anti-revolutionary.”‘ 10 It
7Ibid.
8National Film Board (ref. no. 106C0182098), (dir. D. Winkler’od. T. Daily & B. Howell,
1982).
9Djwa, supra, note I at 416.
‘0Louis Dudek, Book Review, The [Toronto] Globe & Mail (21 November 1987) C23.
1988]
BOOK REVIEWS
is the misconception of Scott as revolutionary rather than as castor rouge
or Tory democrat that makes plausible the “contradictions” in his last years.
His uneasy perception of Canada falling apart for lack of courageous de-
fenders, of an assault on historic anglophone rights in a democratic Quebec
under the rule of law, marked the continuities, not the contradictions in
him. It is a tribute to Djwa, nevertheless, that she presents enough raw
material to enable her readers to reach an understanding slightly at variance
from her own.
The best passages in this book are those which describe the various
milieux of Scott’s life –
especially his Oxford years, the Montreal poetry
circles and the Mackenzie River canoe trip with Pierre Trudeau. In his diary
Scott calls his time at Oxford “my great adventure”; Djwa depicts with skill
the young Rhodes scholar who arrived at Magdalen College in the autumn
of 1920 to read modem history.” Scott was one of the most distinguished
amongst several generations of Canadians who discovered at Oxford the
roots of British (and therefore Canadian) law, government and liberties.
Like Frank Underhill who had gone to Oxford in 1911 and David Lewis
who was to go there in 1932, and King Gordon, Graham Spry or Terry
MacDermot whose Oxford years overlapped with his, Scott perceived and
was captured by the evolution of democratic socialism out of nineteenth
century utilitarian-liberal thought. Like many of these young colonials he
became a Fabian socialist as well as a more thoughtful nationalist. Unlike
Underhill and Lewis, who would become his close political colleagues and
who hewed intellectual-political paths almost exclusively while at Oxford,
Scott exploited fully the social and aesthetic life of the university from
rowing and hockey to long evenings of music and discussions of poetry and
art. Also unlike the others, his closest friends at Oxford were Englishmen
with the exception of Raleigh Parkin, who was like himself the offspring of
a conservative-imperialist Canadian family.
Again, the continuities in Scott’s life are impressive. Unlike Underhill,
for example, Scott brought to his socialism a religious warmth which re-
mained unimpaired after he shucked off liturgical piety. Thus, while Un-
derhill would see in J.S. Woodsworth primarily a dedicated prairie
progressive Scott found a preacher of the social gospel –
so compelling in
his passion for social justice that (as Djwa observes) Woodsworth became
almost a father figure replacing Scott’s own father as the two drifted apart
in the twenties and thirties. Moreover, Scott’s socialism remained heavily
influenced by the Anglican version of the social gospel which he imbibed
in study groups of the Oxford Student Christian Union. There he read the
fifth Lambeth Report, Christianity and Industrial Problems, and listened to
“Djwa, supra, note I at 44ff.
REVUE DE DROIT DE McGILL
[Vol. 33
R.H. Tawney, George Lansbury and G.D.H. Cole, whose concept of indus-
trial democracy would continue to temper Scott’s Fabianism –
to give it
a more humane quality than that of Underhill whose sympathy with David
Lewis’s unionists was rather quick to flag. Indeed, one might suspect that
the passion which Lewis brought to his Canadian socialism was very much
akin to the religiously tinged commitment of the young faculty members
of the McGill Labour Club in the late twenties and early thirties – Eugene
Forsey, King Gordon, Frank Scott. While Underhill deplored those who
“thought with their hearts instead of their heads”,’ 2 Scott held to “right
reason” which allowed his heart full play and gave to his poetry as it did
to his nationalism, politics and legal-historical writing a passion and con-
stancy quite different from the chillier, if sparkling astringency of the Toronto
Grit. Scott could never have said, as did Underhill to me on one occasion,
that he held “enthusiasm” suspect, whether in politics, religion or sex. Djwa
misses some of the nuances which, I’m inclined to think, explain quite a
bit about the history of the CCF-NDP, the League for Social Reconstruction
and the continuing close collaboration of Scott and Lewis. But then, so have
several others who have written about these matters.
The foundations for Scott’s analytical and practical contributions to the
evolution of constitutional Canadian law and poetry were securely laid at
Oxford, where constitutional law was still the backbone of historical study
– but only the backbone, well-fleshed with social, economic and literary
history as well as political theory. Not surprisingly, Scott paid as close at-
tention to Aristotle’s Poetics as to Anson and Dicey. When he returned to
Montreal in 1923 he saw the city and the country with freshly critical eyes.
“So many things about me”, he told his diary, “in our civic and national
life here simply make me angry – McGill, American influence blindly
copied, rotten press … dirty civic official life and very questionable politics
in Ottawa, C.PR. officials being directors of McGill and generally considered
to be worthy of authority in education because they have made money in
other lines, the whole acceptance of business as an end in itself –
all these
things weigh upon me, as though they were my own wrongs (as in a sense
they are) and I find it hard to be cheerful at heart.” Djwa describes well
Scott’s conscious selection of friends, his rejection of the Mount Royal Hotel
life of dances, jazz and gin, and his choice of “the little leaven of decent
people from the lump of money-seeking, pleasure-satiated babbits [sic].’ 13
That “little leaven” Scott put together in overlapping circles of poets,
academics and politicians. As with most social leavens an aura of elitism
(a word now curiously in disrepute) clung to the coteries of Scott’s choice.
12Personal interview, June 20, 1969.
13Djwa, supra, note 1 at 68 and 70.
1988]
CHRONIQUE BIBLIOGRAPHIQUE
As he moved from a disastrous year of teaching at Lower Canada College
to student and then teacher in the McGill law faculty (1928) he acquired
the “radical” reputation which, to some extent, bemuses Djwa. His radi-
calism was always, and essentially, a search for new ways of expressing and
exercising his conception of conservative (or deep-rooted) values; his most
vicious attacks were upon those who sought merely to protect privilege
rather than use it to advance the social good. That good included freedom
of expression, social security (total equality Scott always recognized as im-
possible) and encouragement of artistic perception. What brought down
upon him the thunderbolts of St. James Street was the accuracy with which
he pilloried its philistinism, its parochialism, its unthinking support of ir-
responsibility –
in short, its lethally flawed conservatism.
One aspect of an elitist conservative is sureness of one’s own values –
which normally will include the right to be eccentric and experimental. I
suspect that Djwa, when depicting Scott hacking away at bourgeois social
imperatives and promoting new approaches in poetry, art and politics,
misses some of what might be called “the Mitford factor” –
the “aristo-
cratic” knowing what’s “U” and what’s “non-U”. And nothing is more
infuriating to an establishment than being snubbed and sneered at. Sir Ar-
thur Currie tried to muzzle Scott, as well as A.J.M. Smith, Leon Edel and
the other youngsters of the McGill Fortnightly Review not because they
promoted Yeats, Joyce, T.S. Eliot, H.L. Mencken, D.H. Lawrence or Eugene
O’Neill, but because they belittled the colonial-minded capitalists of
McGill’s government. Again, Scott’s wonderful satire “The Canadian Au-
thors Meet” (1927) was similarly provoking to the romantic, self-serving
nationalists of the Canadian Authors’ Association. Yet Scott, drawing heav-
ily upon pre-Cambrian imagery, as well as upon modernist and older English
poetry, was himself indisputably a romantic nationalist. He was pronounced
an upstart literary radical largely because of his sophisticated appropriation
of traditional and experimental forms, and because he wrote of the CAA
meeting:
The air is heavy with Canadian topics
And Carman, Lampman, Roberts, Campbell, Scott,
Are measured for their faith and philanthropies,
Their zeal for God and King, their earnest thought. 14
Who would not bridle at being the butt of such dreadful superiority?
Djwa catches a good deal of this. She draws deft vignettes of Scott’s
expanding literary circles of the 1940s and later, and she records the generous
support he offered to young poets and the substantial contributions he made
‘4The Collected Poems ofER. Scott (Toronto: McClelland & Stewart, 1981) at 248 [hereinafter
Collected Poems].
McGILL LAW JOURNAL
[Vol. 33
towards the eventual establishment of the Canada Council. Her accounts
of the rambunctious relations amongst the groups around the little journals
Preview, First Statement and Northern Review provide a convincing frame-
work within which to assess Scott’s own role and those of poets such as
Klein, Dudek, RK. Page, Layton and others. So, too, her portrayal of the
frequent poetry-discussion evenings at the Laytons’ and the Scotts’ give a
vivid impression of a take-off point in Canadian letters. Surprisingly, how-
ever, in her special field of literary analysis, Djwa drops her otherwise fluent
style to mount the lecture podium. After each of the poetry quotations one
is drawn up short by a pedantic paragraph “explaining” what Scott has
written. After reading Scott’s marvellous “Lakeshore”, one is instructed,
superfluously, that “the need for air forces man back up through the water
to dry land –
the earth that is neither his first home nor his first love.
There, as Scott wittily remarks, he is forced into a new mould, that of a
‘landed gentry, circumspect’.” 15
In 1962 Scott replied to a student who had asked if poetry had been
the chief concern of his life: “It is certainly not the activity which takes up
most of my time; indeed, I’ve had very little time for it. It is, however, my
deepest concern in the sense that I believe it to be the activity that most
expresses what I feel and think and desire.”16 But, as the biography makes
clear, that word “most” is the key; one feels that he might equally have
declared that writing poetry was what he most liked doing. Certainly his
work in law and politics expressed his thoughts, feelings and desires as
unequivocally as did his poetry freedom tempered by order and equity;
nationalism linked to internationalism; reason warmed by faith and feeling.
As a law teacher Scott never stopped at asking questions; he suggested
answers and became that dreaded social danger, an “activist” academic.
Djwa weaves these legal-political threads into her story competently
and she recounts with verve Scott’s public defence of freedom of speech,
religion and assembly against the combined pressures of the Gazette, the
Montreal police, Principal Currie and, ultimately that lowering incubus him-
self, Maurice Duplessis. Disgusted by the paranoia of bishops, newspapers
and governments as the depression called forth radical criticism, Scott wrote
in April, 1938 of “Embryo Fascism in Quebec”, 17 and supported meetings
to aid the Spanish Loyalists. For lawyers and their students his benchmark
victories in the Roncarelli and “Padlock” cases’8 are familiar tales; set in
the context of the perils of his position at McGill and, indeed, in Quebec
‘5Djwa, supra, note 1 at 241-2; Collected Poems, supra, note 14 at 50-51.
16Djwa, supra, note I at 286.
17(1938) 16 Foreign Affairs 454.
‘sRoncarelli v. Duplessis [1959] S.C.R. 121, 16 D.L.R. (2d) 689; Switzman v. Elbling [1957]
S.C.R. 285, 117 C.C.C. 129, 7 D.L.R. (2d) 337.
19881
BOOK REVIEWS
itself, they become moving stories of courage. They are also sui generis: the
controversial teacher became courtroom star. Djwa rightly stresses the
“larger social and historical perspectives” from which Scott argued these
cases.19 While, particularly in Switzman v. Elbling, the federal division of
powers was an important issue, the core in each case was the rule of law
and the cumulative structure of civil liberty and political responsibility.
What Scott really accomplished, one might suppose, was to demonstrate
the effectiveness of that structure of common law cum parliamentary cus-
tom. Yet he also asserted the desirability of an entrenched bill of rights in
a “patriated” BNA Act. In this complex matter Djwa notes the difficulty of
assessing Scott’s influence upon students and colleagues from Le Dain to
Trudeau; but she does not pursue the question very far and intimates an
identity of views between Trudeau and Scott which might not be endorsed
by a legal theorist. Certainly Scott and Trudeau saw the BNA Act as a flexible
instrument, and one which had been severely damaged by the Judicial Com-
mittee of the Privy Council; there is probably not much in Scott’s Essays
on the Constitution with which Trudeau would disagree. But on the question
of written constitutions and charters of rights future biographers are likely
to discern differences. Djwa does not record, for example, Scott’s reaction
to the Trudeau government’s Bill C-60 with its Gallic-republican flavour,
nor does she spend much time on the relative importance to the two men
of minority and individual rights in the Charter.
Djwa does relate well Scott’s legal-constitutional interests to his political
activities. One quotation from Scott’s diary illustrates why he could never
have become a quietist lawyer. Indeed the entry bears a striking resemblance
to J.S. Woodsworth’s reflections upon “the system”: “I was in a palatial
mansion this evening. All that wealth could purchase of beauty in pictures,
hangings, carpets, furniture, china –
all that was there. Not a chair but
would sell for enough to feed a slum family for a month: not a picture but
would provide a home for every beggar in Montreal. In the house was a
little, tired woman, with a magnificent gown and necklace of large pearls.
She had a cross pendant. And down in the Railway Shops men toiled half-
naked round roaring fires …. And whenever he wanted to do so, the husband
of the tired woman with the pendant cross would tell these men there was
no more work.” As Djwa writes: “Direct action would have to be taken,
the genuinely Christian action of the cross militant…. ’20 She does not ex-
aggerate. Throughout the dirty thirties Scott grew very close to Woodsworth
and threw himself into the political and propaganda work of the League for
Social Reconstruction and the CCE Scott’s role in the LSR and CCF is
19Djwa, supra, note 1 at 316.
20Djwa, supra, note 1 at 95.
REVUE DE DROIT DE McGILL
[Vol. 33
legendary to democratic socialists and has been put in context by Michiel
Horn2’ and Walter Young.22 Djwa’s biography adds much warmth and un-
derstanding. In the group of young intellectuals who committed their learn-
ing and consciences to the job of creating Canada’s version of the Fabian
Society and the Labour Party, Scott was primus inter pares. From Djwa one
gains a greater respect for the commitment and the extraordinary co-
operation of these sensitive, individualistic professionals. Without benefit
of union funds, travel grants or foundation support they kept meeting, plan-
ning, writing and lecturing –
the expenses coming largely out of their own
pockets. Scott drove to Regina for the 1933 CCF founding convention in
his air-cooled Franklin. And out of it all came the Regina Manifesto, Social
Planning for Canada, a host of pamphlets, radio broadcasts. In short, what
emerged was the legitimizing in Canada of democratic socialism and a dis-
tinctive multiparty system.
Scott was national chairman of the CCF from 1942 to 1950, but his
direct contribution to the party’s life and purpose was continuous from 1932
on. In addition to consulting with Woodsworth frequently and briefing the
CCF caucus on such matters as interpreting and “patriating” the BNA Act
(and, especially defending federal authority) Scott was highly effective as a
committee chairman, a job to which he brought a fine sense of fair play
and, when required, an intimidating hauteur. Through it all, as in his teach-
ing and poetry, runs the sense of excitement and even joy in the process
itself. Especially clear is Scott’s stress upon the person in politics –
the
counterpart, I think, of the relationship in his poetry of people to abstrac-
tions and forms. Writing a “post-Regina” letter (as Sarah Binks might say)
to King Gordon, he observed that “Old J.S.’s power in Canada has come
from his vision and there is no political cunning or tactic which is a sub-
stitute. The objective of a good society, which is all that socialism is, must
be clarified and stated simply to this baffled generation … It seems to me
that we have to express through the CCF the idea that our people came to
North America to build a fair society, so to speak, and that we have obviously
fallen down lamentably on the job. This sense of purpose, I am sure, is a
more cohesive force than any detailed program. It is latent in the Regina
Manifesto but buried under blueprints. ‘2 3
If there was something “unresolved” in Scott I suspect that it was not
the tension between poetry and politics (or law), or between revolution and
anti-revolution; rather, it was a conflict between two givens which was to
2 1 The League for Social Reconstruction: Intellectual Origins of the Democratic Left 1932-42
(Toronto: University of Toronto Press, 1980).
22The Anatomy of a Party: The National C.C.E, 1932-1961 (Toronto: University of Toronto
Press, 1969).
23Djwa, supra, note 1 at 141-2.
19881
CHRONIQUE BIBLIOGRAPHIQUE
culminate in his last years and which he was powerless to affect. This was
the apparently intractable conflict between those who would make his Que-
bec unilingual, even unicultural, and his own conception of a tolerant society
in which his own heritage could find a just regard. This ornament of bil-
ingualism could briefly blurt out: “I’m damned if I’ll speak French!”24 But
only after il avait gagn6 ses paulettes. The man who had tried hard to enlist
in the first world war to defend the empire, who had fiercely opposed Ca-
nada’s joining a second war which he believed was caused by vestigial im-
perialism, who most effectively promoted and engaged in the
interpenetration of French and English poetry, who had served with dis-
tinction on the “B and B” commission and had done more than anyone
else to secure basic freedoms for the people of Quebec, found himself reviled
for supporting the rule of law in 1970 and opposing the succeeding endea-
your to obliterate his province’s anglophone component. But he had not
suddenly become an “anti-revolutionary”; no more than had Eugene Forsey;
no more than had Pierre Trudeau who asked “Who will speak for Canada?”
I suspect that Djwa, like some of those who expressed surprise and
dismay in the 1970s, has missed the essential optimism of Scott’s underlying
conservatism. For it is the optimist who is most severely disappointed. Scott,
in fact, was in most respects a reluctant radical who sought always to dis-
cover and sustain the best –
in the British tradition, in Canada, in Quebec.
His most scathing criticisms, like his most vigorous crusades, were against
those who would debase the values, the goals he hallowed. It is no accident
that the single most important source of imagery in his poetry is the pre-
Cambrian shield.
But it would be wrong to end an essay on Scott’s biography with self-
conscious profundity. While, like many Quebec authors, Scott was fre-
quently preoccupied with death, he was more often ready to consider truth
through absurdity. After he had struck a blow for artistic freedom, by ar-
guing, without success, before the Quebec Court of Queen’s Bench, Appeal
Side (1961) that Lady Chatterley’ Lover was a work of art, and not “unduly”
suffused with sex, 25 he wrote:
I went to bat for the Lady Chatte
Dressed in my bib and gown.
The judges three glared down at me
The priests patrolled the town.
24Djwa, supra, note I at 427.
25Brodie v. R. [1961] B.R. 610, 36 C.R. 200, rev’d [1962] S.C.R. 681, 32 D.L.R. (2d) 507;
Djwa, supra, note 1 at 340-48. The appeal, argued by Scott and Manuel Shacter before the
Supreme Court of Canada, was allowed.
McGILL LAW JOURNAL
[Vol. 33
My right hand shook as I reached for that book
And rose to play my part.
For out on the street were the marching feet
Of the League of the Sacred Heart.
I tried my best, with unusual zest,
To drive my argument through.
But soon got stuck on what rhymes with “muck”
And that dubious word “undue.”
Then I plunged into love, the spell that it wove,
And its attributes big and bold
Till the legal elect all stood erect
As my rapturous tale was told.
The judges’ sighs and rolling eyes
Gave hope that my case was won,
Yet Mellors and Connie still looked pretty funny
Dancing about in the sun.26
Djwa’s book contains rather too many slips in usage and fact, most of
which should have been caught by the editor. Her study, nevertheless, is
immensely stimulating and puts us all in her debt.
On 7 April 1988 the ER. Scott Chair in Public and Constitutional Law
was inaugurated at the Faculty of Law of McGill University as the result of
an initiative sponsored by the 1934 graduating class. The Chair, which was
established “to ensure that his concept of university life and scholarship is
continued, ” has received contributions from former students and colleagues
throughout Canada, the United States and Europe. Those interested are
invited to contact the office of the Dean for further information.
Le 7 avril 1988, la Chaire ER. Scott en droit public et constitutionnel
&ait inaugurte d la Facult6 de droit de l’Universit McGill, aboutissement
d’une initiative des dipl6m~s de la promotion de 1934. La Chaire, qui a W
6tablie [traduction] ( dans le but d’assurer la continuit6 de sa conception de
la vie et des 6tudes universitaires ), a bn~fici de dons de la part d’anciens
6tudiants et de colltgues d travers le Canada, les Etats-Unis et l’Europe.
Toute personne intresse est invite ci communiquer avec le bureau du doyen
de la Facult pour le plus amples renseignements.
26Collected Poems, supra, note 14 at 264.
1988]
BOOK REVIEWS
A. Lajoie et PA. Molinari, 6d., Pour une approche critique du droit de la
santg. Montr6al, Presses de l’Universit6 de Montr6al, 1987. Pp. xviii, 331
[$32.00]. Comment6 par H616ne Guay*.
Pour une approche critique du droit de la sante est un ouvrage ponctu6
de tableaux, de schemas et d’annexes, qui invite le juriste et toute personne
qui s’int~resse au domaine de la sant6 et des services sociaux A constater
les <( 6carts >) entre les politiques 6nonc6es aux termes du mandat de la
Commission d’enqute sur la sant6 et le bien-&re social (Castonguay-Nep-
veu) et le droit adoptS, d’une part, et le droit tel qu’adopt6 et le droit appliqu6
en cette mati~re, d’autre part.
Coordonn6 par le Centre de recherche en droit public, dans le cadre
d’un projet subventionn6 et r~alis par une 6quipe multidisciplinaire, le
travail qui a permis la publication de cet ouvrage d~montre que la recherche
en droit peut conduire A la mise en lumi~re des forces qui ont contribu6 A
crier le droit. Contrairement A son caract~re traditionnel de remorque, il
ressort de cette &ude que le droit peut se transformer en << v~hicule d'un
certain changement social, comme un instrument de reamenagement des
rapports sociaux'.> Uouvrage se divise en deux parties.
I. Emergence des normes juridiques
Le choix des themes de la premiere partie prend appui sur les carac-
t6ristiques de la r~forme de 1971, dont le lecteur aura pris connaissance par
le biais du Trait de droit de la sante et des services sociaux2. L’cart entre
les politiques 6nonc~es et le droit adopt6 est d~fini dans un premier chapitre
qui examine le droit aux services3.
Lanalyse d~montre d’abord un 6cart reel entre les propositions for-
mul~es par les commissaires et le droit exprim6 a l’article 4 de la Loi sur
les services de sant6 et les services sociaux4. Pourtant cet 6cart s’av~re fictif,
souligne l’auteure de ce chapitre, puisque le droit aux services preexistait A
la r~forme de 1971. ULcart se resume ainsi & la transformation d’un droit
existant en un droit exigible, par l’adoption d’articles subs~quents de la Loi
*B. Sc. inf. (Montreal), B.C.L. (McGill).
‘A. Lajoie et PA. Molinari, Ed., Pour une approche critique du droit de la sant, Montreal,
Presses de l’Universit6 de MontreaI, 1987 5, la p. 11.
2A. Lajoie, PA. Molinari et J.-M. Auby, Trait de droit de la sant et des services sociaux,
Montrbal, Presses de l’Universit6 de Montreal, 1981. La Commission Castonguay-Nepveu
recommandait, de mani~re g~n~rale, la r~organisation du syst~me de sant6 au Quebec A partir
des trois principes suivants, A savoir, la determination de niveaux de soins, l’tablissement de
centres de sant6 et la r6gionalisation des soins.
3A. Lajoie, < LU1mergence d'un droit social: Le droit aux services >> dans Lajoie et Molinari,
4L.R.Q. c. S-5, art. 4.
supra, note 1, 21.
REVUE DE DROIT DE McGILL
[Vol. 33
qui octroient l’efficacit6 au droit aux services5 . L’importance. des interve-
nants sociaux est soulign~e dans cette analyse qui rapporte par ailleurs les
propos des ministres en place lors des auditions.
Dans le deuxi~me chapitre6, l’6cart entre le droit professionnel propos6
et celui adopt6 s’exprime difttremment. L’auteure souligne la resistance des
intervenants gouvernementaux A accorder aux milieux professionnels les
pouvoirs revendiqu6s lors de la commission parlementaire A l’6tude sur le
projet de Code des professions. D’une part, les pouvoirs des milieux pro-
fessionnels, dont ‘Office des professions du Qu6bec, s’accroissent grace A
un assouplissement de la r6glementation des corporations professionnelles
et A la participation du public au sein des corporations. Ces 6carts par rapport
aux propositions gouvernementales en mati~re de l6gislation professionnelle
sont analys6s, d’autre part, en fonction des d6bats en commission parle-
mentaire et en chambre.
L’auteure procde d’abord i l’analyse des interventions des groupes
repr6sent~s et des partis politiques qu’elle regroupe en fonction de leur
option quant au degr6 d’implication de ‘Ittat. Elle fait de meme quant aux
modules de participation du public en examinant la position respective des
parties. Elle conclut que les pressions des intervenants quant A la d~centra-
lisation du pouvoir 6tatique ont conduit A l’6cart entre le droit propos6 et
le droit adopt6. C’est ainsi que l’intervention de l’opposition parlementaire
permettra ‘adoption d’une participation du public au sein des organisations
professionnelles plus grande que celle formulae dans les recommandations
de la Commission Castonguay-Nepveu.
L’6volution du droit relatif aux services de sant6 et services sociaux,
de I’Etat-providence jusqu’A l’adoption de la r6forme de 1971, sert d’intro-
duction au troisi~me chapitre 7. Suit une interpr6tation des modifications
apport~es au r6gime par le biais de la Loi sur les services de sant et les
services sociaux8. Les 6carts entre les propositions gouvernementales et le
texte de loi adopt6 se manifestent par autant de concessions et de reculs du
16gislateur.
Recul dans le maintien des anciennes corporations propri6taires, dans
‘exclusivit6 des activit6s b6n6voles, dans l’61argissement des modes de fi-
5Sur
‘exigibilit6 du droit aux services, voir ‘article de A. Lajoie, PA. Molinari et J.-L.
Baudouin, <(Le droit aux services de sant6: IUgal ou contractuel ?> (1983) 43 R. du B. 675;
et la r~ponse de S. Nootens, (( La remise en cause du contrat hospitalier > (1984) 44 R. du B.
625.
supra, note 1, 57.
6P Mulazzi, <((L'mergence d'un nouveau regime professionnel ) dans Lajoie et Molinari, 7J.-M. Fecteau, << 16mergence d'un r~seau public d'tablissements: R6gulation monopoliste et contraintes locales >> dans Lajoie et Molinari, supra, note 1, 102.
sSupra, note 4.
1988]
CHRONIQUE BIBLIOGRAPHIQUE
nancement du secteur priv6, dans la procedure discrtionnaire d’attribution
des permis, chacun 6tant mis en lumire par les dispositions lgales telles
qu’adopt~es. Recul 6galement dans la centralisation 6tatique, le pouvoir de
contr6le de l’administration des institutions: normes budg6taires, partici-
pation aux conseils d’administration. Les concessions se traduisent par au-
tant d’amendements au projet de loi que l’auteur attribue A ola force des
pressions auxquelles l’Etat a dfi faire face 9 >>, telles qu’exemplifiees par des
extraits des representations faites en commission parlementaire.
L’auteur va plus loin. I1 examine les modifications apport~es A. la Loi
au cours des cinq annes qui suivent son adoption. En dernier lieu, il fait
ressortir les repercussions de la crise financi~re des annes 1979-1982 sur
l’accroissement des pouvoirs 6tatiques dans le r~seau des 6tablissements.
I’auteur conclut que la r~forme de 1971 n’aurait fait que mettre en lumi~re
les contradictions inh~rentes dans la gestion des institutions du r~seau des
services de sant6 et de services sociaux.
k titre de postface a la premiere partie, un texte d’une linguiste analyse
6troitement les propos 6changds au cours des d6bats en commission par-
lementaire et d~crit dans un langage color6 l’ambiance qui r6gnait i cette
6poque’ O. L’auteure nous fait revivre des d~bats qui n’6taient pas t6ldiffus6s
A cette 6poque.
illocutoire intentionnel –
En d~pit de quelques rdp~titions”, l’auteure illustre abondamment
comment la lutte pour le temps de parole, le fonctionnement de la deference
–
incidents,
gaffes, scandales –
conduisent a une opposition entre les interlocuteurs qui
ont un capital politique important, d’une part, et ceux qui sont moins re-
pr~sent6s A 1P6poque comme les groupes 6conomiquement d6ficients et les
femmes, d’autre part.
et les perturbations au code –
A la question de savoir si la commission parlementaire a tenu compte
de ces aspects du debat dans la preparation de son projet de r6forme, l’au-
teure r~pond tout d’abord que les intervenants qui auront le plus influenc6
le processus d’interaction verbale en commission auront 6t6 les < milieux
issus du travail social >>. Elle conclut que la commission parlementaire cons-
titue un th6atre, une tribune, un lieu public ofi officiels et groupes de pression
jouent <( la et le politique au vu et au su de tous 12. >>
9Fecteau, supra, note 7 A la p. 129.
‘OR. Robin, ( L’6mergence du droit en commission parlementaire : La circulation de la parole
publique et ses risques > dans Lajoie et Molinari, supra, note 1, 154.
“Ibid. A lap. 164.
12lbid, aux pp. 192-93.
McGILL LAW JOURNAL
[Vol. 33
II. Application des normes juridiques
La seconde partie de l’ouvrage vise la mesure de l’6cart entre le droit
adopt6 par la r6forme en matiere de services de sant6 et de services sociaux
et le droit appliqu6, tel qu’observ6 dans la pratique. Dans son introduction,
l’auteir analyse la notion de normejuridique, selon qu’elle produit des effets
avec ou sans l’intervention des personnes et selon sa finalit613. L’ecart
concern6, soit la marge entre les deux faisceaux de normes que sont le droit
adopt6 et le droit appliqu6, est 6valu6 au moyen de trois 6tudes qui rendent
compte de faits survenus A une 6poque donnee.
Le premier chapitre se fonde sur un sondage realis6 aupres de 1 100
repondants environ et porte sur l’utilisation des recours disponibles aux
ben6ficiaires, qui reconnaissent avoir eu des problemes A l’occasion de ser-
vices fournis ou refuss 1 4. I’auteure procede A une analyse des r6sultats du
sondage en fonction tout d’abord des caract6ristiques personnelles des r6-
pondants. Cette premiere analyse d6montre une nette surrepresentation en
faveur des femmes que l’auteure explique par << le degr6 'd'exposition' plus
6lev6 des femmes 5. >> Iexamen comparatif des. problemes subis tient lieu
de deuxieme analyse. La qualit6 des soins et l’attente constituent A ce titre
les deux grandes cat6gories de problemes, lesquels surviennent plus souvent
lorsque des professionnels de la sant6 sont mis en cause.
Face A ces probl6mes, les comportements varient. La plupart des b6-
n6ficiaires cherchent solution en changeant d’6tablissement ou en utilisant
la voie de la n6gociation, plut6t qu’en se pr6valant des recours judiciaires
et administratifs mis i leur disposition. Qui plus est, plus les b6n6ficiaires
ont un revenu familial important, plus ils adoptent une attitude revendi-
cative. Au-delA des comportements, l’auteure cherche A d6gager les com-
posantes des problemes auxquels font face les b6n6ficiaires afin d’expliquer
leur comportement. L’application de << l'analyse nominale hi6rarchique >
permet A l’auteure de mettre en relation la s6verit6 des consequences du
probleme, l’antfriorit6 du probleme et l’agent design6 comme responsable
du probleme avec les comportements adopt6s par les b6n6ficiaires. Les r6-
sultats rev6lent que l’intervention active, soit une d6marche de consultation,
une tentative de n6gociation ou le dep6t d’une plainte, du ben6ficiaire dans
la solution de son probleme est liee A la gravit6 du pr6judice, au sexe feminin,
au haut niveau de scolarit6 et A un revenu sup6rieur A la moyenne.
Le deuxieme chapitre est le fruit d’une 6tude << sur le terrain> du droit
de recours des usagers aupres des centres regionaux de services de sant6 et
‘3P.A. Molinari, << Pr6sentation) dans Lajoie et Molinari, supra, note 1, 203. 14C. Gosselin, o L'exercice du droit aux services: Uutilisation des recours administratifs et judiciaires)> dans Lajoie et Molinari, supra, note 1, 216 A lap. 218.
15Ibid. A la p. 220.
19881
BOOK REVIEWS
de services sociaux (C.R.S.S.S.) 16. k partir de l’analyse des 2 326 dossiers
disponibles, pour les annes 1980 et 1981, l’auteur mesure 1’6cart entre le
droit 6nonc6 par la loi et le r6le de m6diateur des C.R.S.S.S. dans l’appli-
cation des normes.
Apr~s une breve description de la structure interne de traitement des
plaintes, l’auteur aborde les 6l6ments attributifs de juridiction des C.R.S.S.S.
Six conditions sont minutieusement analys~es : (1) lajuridiction personnelle
des tablissements, (2) la juridiction territoriale ou l’origine de la plainte et
la juridiction mat6rielle qui rassemble quatre conditions, soient (3) les ser-
vices, (4) qui n’ont pas 6t6 fournis, (5) A une personne, (6) que la loi lui
donne le droit de recevoir. De mani~re g~n6rale, les C.R.S.S.S. interpr~tent
largement le crit~re attributif de juridiction, au b6n~fice des usagers.
L’Mtude du traitement des plaintes indique que le mandat du C.R.S.S.S.,
qui couvre des int~rts autres que purement priv~s, se traduit par une ap-
plication qui risque de mettre en danger l’exercice des droits des
b~n~ficiaires 17. Les chiffres d~montrent des pratiques contraires au mandat
requ, telles l’incitation de l’usager A s’adresser d’abord i l’6tablissement
avant de porter plainte au C.R.S.S.S., le refus des plaintes lorsque des pro-
cdures judiciaires sont entam~es et le renvoi des plaintes aux corporations
professionnelles lorsqu’elles concernent leurs membres.
Quant A l’exercice du pouvoir administratif des C.R.S.S.S. d’entendre
les plaintes, confer6 dans la loi habilitante, il ressort de l’6tude trois grandes
conclusions. D’abord, il n’existe pas de traitement formel de la plainte qui
se r~gle souvent par un simple coup de tlphone. Ensuite, les cas d’inter-
ruption de plaintes concernent le plus souvent celles adress6es i des pro-
fessionnels. Et enfin, dans le traitement des plaintes fond~es, 1’6tablissement
cherche g6n~ralement A r6gler la situation. En pratique, et en d6pit des
pouvoirs qui leur sont confer6s, les C.R.S.S.S. formulent rarement des re-
tablissements. Et les recommandations au ministre
commandations aux
se font exceptionnelles.
A la question de savoir comment les C.R.S.S.S. contribuent A satisfaire
les besoins des usagers par leur interpretation et l’excution de leurs fonc-
tions, l’auteur r~pond que le traitement des plaintes demeure une pr6oc-
cupation secondaire des C.R.S.S.S. et se traduit le plus souvent par le refus
de traitement de la plainte ou l’exclusion des plaignants. I2 cart assez im-
portant entre la pratique adopt~e par les C.R.S.S.S. dans le traitement des
,6J..p M~nard, <(Lapplication du droit aux services: La port~e juridique et sociale du recours devant le C.R.S.S.S. > dans Lajoie et Molinari, supra, note 1, 241.
17Ibid. A la p. 266.
REVUE DE DROIT DE McGILL
[Vol. 33
plaintes et leur r6le vritable tel que conf6r6 par la legislature se trouve ainsi
confirm6 par cette 6tude 18.
Le troisi~me chapitre analyse la participation des b6n6ficiaires au sein
de la gestion des 6tablissements de sant6 et de services sociaux19. Profitant
des r~sultats d’une enquete sociologique r~alis~e au printemps 1982 aupr~s
de 340 personnes, l’auteure relive dans un premier temps la representation
du public A la gestion des 6tablissements. La comparaison s’effectue de
mani~re rigoureuse et des conclusions sont tirfes A partir des pourcentages,
qu’il faut toutefois temperer en raison du faible 6chantillonnage.
II ressort notamment que les m6nages A revenus 6lev~s sont surrepr6-
sent~s au sein des conseils d’administration, que les repr6sentants adherent
A un poste principalement par motivation professionnelle et qu’une con-
naissance du cadre lgislatif constitue un d6nominateur commun aux re-
pr~sentants. L’auteure souligne de plus que les caract6ristiques personnelles
des repr6sentants, telles l’Age, le sexe et l’tat civil, different largement selon
que les repr6sentants sont nomm6s ou 6lus.
L’exercice du droit de participation fait preuve d’un acc6s in~galitaire.
Les repr~sentants ont plus de chance d’acc~der aux postes s’ils sont nomm~s
plut6t qu’61us – ou s’ils font partie de categories sociales sup6rieures.
–
Cette derni6re caract6ristique se r6v~le 6galement d6terminante dans l’ana-
lyse du taux de satisfaction des repr6sentants. La conclusion appert in6-
vitable A l’auteure: il n’existe pas de repr6sentants du public, mais plutot
des groupes sociaux qui oeuvrent h differents degr6s d’efficacit6 au chapitre
de la participation.
III. Une approche critique
U<< approche critique >> du Centre de recherche en droit public a pour
objet un des volets du droit de la sant6, A savoir l’organisation administrative
des services de sant6 et des services sociaux. Or, le domaine du droit de la
sant6 d6borde, A notre avis, le volet administratif et couvre 6galement ceux
de la responsabilit6 des professionnels de la sant6 et de la protection de la
sant6, pour ne nommer que ceux-lA. Le lecteur comprendra que cette pr6-
cision vise simplement A mettre en lumi~re l’cart entre le titre adopt6 et
le contenu du volume tel que publi6.
18lbid. A la p. 293: < Tout se passe comme si, pour acqu~rir le niveau de crdibilit6 essentiel A leur action, les C.R.S.S.S devaient respecter la distribution des rapports de force et conceder aux corporations professionnels [sic] ou aux 6tablissements une partie du pouvoir que le l~gislateur leur avait confi6. )>
19p. Mulazzi, o L’exercice du droit de participation dans les 6tablissements )> dans Lajoie et
Molinari, supra, note 1, 294.
1988]
CHRONIQUE BIBLIOGRAPHIQUE
Signalons 6galement des 16ments de pr6sentation mat6rielle. En vain,
le lecteur cherchera un repertoire analytique permettant un rep6rage rapide
des sujets trait~s ou des intervenants cites. Cette omission volontaire pour-
rait &re justifi~e par des questions d’ordre financier. Par ailleurs, l’ouvrage
est sous forme dactylographi~e. Ce choix de presentation, moins agr~able
au lecteur, aura permis de couper les cofits de photocomposition dans l’ou-
vrage dont le nombre de pages est important, mais dont le public serait
insuffisant pour les amortir.
On pourrait par ailleurs reprocher A 1’6tude l’absence de conclusion
g~n6rale ou de synth~se globale portant par exemple sur le poids des pro-
positions de r~forme sociale, ou sur le pouvoir des individus au sein de
groupes sociaux, devant une commission parlementaire ou par leur parti-
cipation au sein de conseils d’administration. Le lecteur devra s’attarder a
chacune des parties afin d’y lire les conclusions des recherches menses dans
l’analyse des textes de la commission parlementaire ou sur le terrain des
services de sant6 et des services sociaux.
On esp~rait depuis 1981 la publication d’un ouvrage qui donnerait suite
au Trait de droit de la sant6 et des services sociaux2. Au lendemain du
d~p6t du Rapport de la Commission Rochon 21, A l’aube d’une restructu-
ration possible de l’administration du rrseau de la sant6 et des services
sociaux, Pour une approche critique du droit de la sant6 apporte un 6clairage
sur les forces en presence lors des commissions parlementaires et m~rite
une attention des personnes int~ress~es au domaine des services de sant6
et de services sociaux en raison de la qualit6 des recherches qui ont conduit
A sa publication.
Par son approche multidisciplinaire, l’ouvrage d6montre que la critique
du droit b~n~ficie du recours aux sciences humaines22 .I1 rehausse du m~me
coup la qualit6 de la recherche juridique d~nonc~e il y a cinq ans par le
Rapport Arthurs23. Cette critique de la mise en oeuvre de normes, adopt~es
et appliqu~es, contribue de fagon significative i la litt~rature juridique et
sociologique. Elle pourrait &re prise en compte A 1’6tape de la r6forme dans
ce domaine du droit.
20Supra, note 2.
2 Rapport de la Commission d’enqute sur les services de santj et les services sociaux: Com-
mission Rochon, Qu6bec, tditeur officiel, 1988 (Pr6sident: J. Rochon).
2Voir les commentaires sur le recours aux autres disciplines dans la critique du droit positif
de G. Trudeau, <( Le refus d'ex~cuter un travail dangereux : Aux confins du droit et des sciences
sociales >> (1986) 18:2 Sociologie et soci6t6s 87 aux pp. 88-89.
23Groupe consultatif sur la recherche et les 6tudes en droit. Le droit et le savoir: Rapport
au Conseil de recherches en sciences humaines du Canada, Ottawa, Conseil de recherches en
sciences humaines du Canada, 1983.
McGILL LAW JOURNAL
[Vol. 33
William I. Innes, Tax Evasion in Canada. Toronto: Carswell, 1987. Pp.
xviii, 326 [$60.00]. Reviewed by Wilfrid Lefebvre.*
In the preface to his book, Tax Evasion in Canada,’ Mr Innes candidly
concedes that “a fit of exasperation” rather than a spirit of scholarly re-
flection was the driving force behind his endeavour.2 His impatience is quite
understandable by anyone who has been confronted with the task of pre-
paring a trial brief in a tax prosecution case: no basic reference work exists,
or rather existed until the publication of Innes’ work. His book will thus
be a welcome addition to the library of any counsel interested in tax
prosecutions.
Tax evasion is, of course, a matter of great concern to any government
not only for the lost revenues it represents but also with respect to the
public’s easily developed perception that the tax burden is not shared fairly
by all citizens. As a result, one which many would argue is quite under-
standable, Revenue Canada has adopted an aggressive attitude, in terms of
both the investigative powers it wishes enacted as well as the exercise of
these powers.
However, that is not to say that the breadth of these measures is not
or ought not be closely scrutinized and curtailed. For example, the audit
provisions,3 and the right given to Revenue officials to request, for any
purpose related to the administration or enforcement of the Income Tax
Act, any information or any document 4 and, of course, the search powers5
constitute important and direct intrusions into the lives and affairs of tax-
payers. Thus it is imperative that an equilibrium be struck between the
private and fundamental rights of these citizens, and the need, in a self-
assessing system, for the administrating body to possess wide powers.
Tax Evasion in Canada is divided into nine chapters and three ap-
pendices. A concise index introduces each chapter and, as a result, easy
access to all subjects is insured.
In chapters 1 and 2, the author reviews the history of the audit and
search and seizure provisions and, more particularly, he discusses the leg-
islative changes that were introduced in 1986 to what was then subsection
231(4) of the Act. 6 I must confess that I was most curious to see how Mr
Innes would approach this subject since I was intimately involved in im-
*Of Ogilvy, Renault.
‘W.I. Innes, Tax Evasion in Canada (Toronto: Carswell, 1987).
2lbid. at v.
3%ncome Tax Act, R.S.C. 1952, c. 148, as amended by S.C. 1970-71-72, c.63, s. 231.1.
4 bid., s. 231.2.
5lbid., s. 231.3.
6lbid.
1988]
BOOK REVIEWS
plementing these changes, in my former capacity as a lawyer with the De-
partment of Justice. On 30 August 1984, the Federal Court of Appeal
rendered its decision in Kruger Inc. v. M.N.R., 7 in which the court ruled
that former subsection 231(4) was unconstitutional as against section 8 of
the Charter.8 Interestingly enough, it will be recalled that a new government
was elected on 4 September 1984, and Perrin Beatty who, for the previous
two years, had vigorously attacked the sweeping search and seizure powers
contained in the income tax legislation at that time, was appointed Minister
of National Revenue. One of his first major decisions involved whether to
seek leave to appeal to the Supreme Court of Canada in the Kruger matter.
To his credit, the new Minister rejected that idea and decided instead to
promote the legislative amendments which now have the force of law.
However, these changes did not solve all of the problems. In chapter
9 (entitled “The Charter”), the author expresses the view that the new section
231.3 of the Act does not, on its face, offend section 8 of the Charter (which
guarantees “the right to be secure against unreasonable search or seizure”).
In my view, although this represents the correct legal position, it does leave
open a number of possible attacks, such as:
(a) The Breadth of the Authorization
In many instances, the Revenue Department obtains a search warrant on
the basis of allegations of specific violations (for example, that there has
been an appropriation of funds by a shareholder). However, the warrant
authorizes the search for, and the seizure of, documents which are supposed
to assist in the reconciliation of taxable income for a given taxation year.
In executing the said warrant, the tax authorities take the position that they
are entitled to seize all documents pertaining to that taxation year rather
than limiting themselves to those documents that may afford evidence of
the alleged, specific violation. There are strong and convincing arguments
that such an approach goes beyond the intended scope of the search warrant
which has been issued and, if not, amounts, in most cases, 9 to an unrea-
sonable search and seizure.
(b) The Necessity of the Search
For example, subsection 231.5(1) of the Act authorizes officials of the De-
partment of National Revenue to make copies of any document that is
being examined. The legislation then provides that such copy is “evidence
7[1984] 2 EC. 535, [19841 C.T.C. 506, 84 D.T.C. 6478.
8Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K), 1982, c. 11.
9One notable exception, perhaps, is the case of an alleged violation based on a net worth
approach.
REVUE DE DROIT DE McGILL
[Vol. 33
of the nature and content of the original document and has the same pro-
bative force as the original document ….
10 A powerful argument can be
made that before issuing a search warrant, a judge should satisfy himself
that, in the given circumstances, this is the only remedy available to the
Department.
Chapters 3 to 6 review, respectively, procedural matters, the nature of
the parties involved, the elements comprising the various offences and the
question of evidence. For those firm in their belief that the Crown is always
correct and that errors in judgment do not occur, the tales involving Mr
Simons,” Mr Trudeau 12 and the Acme Slide Fastener Company 13 supply
interesting and worthwhile reading. The Trudeau’4 case is particularly en-
lightening. The facts, as recited by Mr Innes, were as follows:
R. v. Trudeau was a very early prosecution under section 80 of the Income
War Tax Act for the alleged making of false statements in a return of income.
Mr. Trudeau had sold shares of a corporation known as Automobile Owners’
Association Ltd. in 1932 for $1,150,000. He received that amount as well as
two additional cheques totalling $25,000 which, on the evidence, he regarded
as part of the purchase price of his shares. He did not report the $25,000 item
when he filed his 1932 income tax return in May of 1933. Some months later,
he realized his omission and discussed the matter with an Income Tax official.
Later he wrote to the Inspector of Income Tax in Montreal, explaining the
matter and his belief that the $25,000 was part of the proceeds from the sale
of his shares. He had no further communication with the Tax Department until
this information was laid in September of 1934.15
What is most telling about the case is not that Mr Trudeau was acquitted,
but rather the very fact that a prosecution was allowed to proceed.
Chapter 7, while making ample reference to the relevant jurisprudence,
reviews the defences most frequently invoked in tax evasion cases. Although
I hasten to point out that this was not among the author’s objectives, it
would have been most interesting if the subjects of negotiations and trial
tactics had been more fully discussed. For example, should Revenue Canada
be approached in an attempt to settle these types of cases and, if so, at what
time and costs should these negotiations be conducted? Is a more aggressive
approach, such as attempting to quash the search warrant, or cross-
examining Revenue Officials at the time a report is made,’ 6 ever warranted,
and in what circumstances?
10Supra, note 3, s. 231.5(1).
‘1 R. v. Simons, [1977] C.T.C. 371, 77 D.T.C. 5232 (B.C. Prov. Ct).
12R. v. Trudeau (1934), [1928-34] C.T.C. 310 (Que. Sess. Ct).
13Acme Slide Fastener Co. v. Knott [1962] C.T.C. 320, 62 D.T.C. 1261 (Que. Sup. Ct).
14Supra, note 12.
1’5 nnes, supra, note I at 102.
16Pursuant to subsection 231.3(7) of the Act.
19881
CHRONIQUE BIBLIOGRAPHIQUE
Appendices B and C17 will be of great assistance to any student or
practitioner. In a very simple and convenient manner, these appendices set
out the vast majority of penal and related provisions found in federal stat-
utes, as well as the more significant offences (and related provisions) under
provincial and territorial jurisdiction.
In summary, Tax Evasion in Canada is a reference book well done and
worth reading.
17lnnes, supra, note 1 at 263-319.
McGILL LAW JOURNAL
[Vol. 33
Hugh M. Kindred, Jean-Gabriel Castel, Donald J. Fleming, William C.
Graham, Armand L.C. de Mestral, Ivan A. Vlasic, Sharon Williams, eds,
International Law: Chiefly as Interpreted and Applied in Canada, 4th ed.
Toronto: Emond Montgomery, 1987. Pp. xlix, 958 [$96.00]. Reviewed by
Maxwell Cohen.*
When Castel’s first edition’ emerged as a pioneer effort in 1965, it was
the first major volume in “cases and materials” style, to be published in
Canada covering public international law issues, as classically taught, since
Mackenzie and Laing had produced their earlier effort in 1938.2 But Castel,
a Francophone-European trained scholar and a steadily rising success in
Canada, did not catch the full flavour of the case book as a largely self-
contained teaching instrument. Castel’s volume should perhaps be related
also to his editorial methods more generally, to be found in his publications
on Civil Law and Private International Law. But it does remain obvious to
anyone who tried to use that first edition that it was much more documen-
tary vade mecum, an invaluable source book for Canadians, than it was a
usable classroom tool.
Of course, this was perhaps even more true of Mackenzie and Laing,
whose virtues also were their concentration on available Canadian materials.
But its usability, in the North American case book tradition, proved to be
conceptually less effective than its authors had doubtlessly hoped –
even
though it, too, was a valuable Canadian source book for its day.
This fourth edition 3 amounts to a virtual revision of Castel’s publica-
tions. There are such substantial pedagogical differences between the first
three editions and this fourth one that it must be assumed the role of the
other six editors became, in fact, extremely influential, although they could
not ignore the broad lessons of editorship arising from those first three
editions. But the co-operation of the six reflects their wider experiences in
a variety of pedagogical settings including Dalhousie University, McGill
University, the University of New Brunswick, the University of Toronto
and Osgoode Hall; and to that extent, the fourth edition is the culmination
of an evolutionary process that is perhaps unique among Canadian public
international law case book exercises at this time. Of course, this is not to
minimize individual efforts at the University of British Columbia by L.G.
“Emeritus Professor of Law, McGill University; Scholar-in-Residence, University of Ottawa;
Judge ad hoc, International Court of Justice.
1J.-G. Castel, International Law: Chiefly as Interpreted and Applied in Canada (Toronto:
University of Toronto Press, 1965).
2N. Mackenzie & L.H. Laing, Canada and the Law of Nations (Toronto: Ryerson Press,
1938).3H.M. Kindred et al., eds, International Law Chiefly as Interpreted and Applied in Canada,
4th ed. (Toronto: Emond Montgomery, 1987).
1988]
BOOK REVIEWS
Jahnke and Charles Bourne;4 at the University of Alberta by the prolific
Leslie Green whose own case book is now in the fourth edition;5 by George
Alexandrovich and his traditional/experimental approaches at Queen’s Uni-
versity; and by Anne Bayefsky whose mimeographed materials at the Uni-
versity of Ottawa may one day be a temptation to print, should there be a
wider audience for her particular approach. Bayefsky’s methodology reflects
technical skills in the human rights field at both the national and interna-
tional levels as well as her general constitutional law capabilities and several
years of growing competence in the jurisprudence/legal theory areas. Other
faculties may also have quietly “published” teaching materials for public
international law courses; hence it must be stressed at once that the op-
portunities and choices for teaching materials have become much richer
and more dynamic in a subject now coming into its own as an almost
indispensable sector of serious legal education.
When this writer began to teach from a case book in 1946, it is unlikely
that he had many competitors in the use of Manley Hudson’s early and
classical efforts, since his second edition had appeared in 1936, just before
World War 11.6 The “risk” was taken at McGill to employ case book meth-
odology in a first-year class of anxious and often skeptical, returned serv-
icemen all recently demobilized and determined to leap rapidly from the
war years into the inviting world of private law practice. Here, the cares of
clients would be primary; but international law was also a matter of intro-
ducing a teaching process where heavy pre-class reading, leading to a teacher-
student technical dialogue, was not paralleled in most other McGill class-
rooms at the time. Hence, in 1946 there was the double burden of teaching
while employing a heavy, time-consuming pre-class homework method, as
well as dealing with the anxieties of students about day-to-day performance
in the class. All were contrasted with other teaching methods more closely
related to the classical lecture hall rather than to variations of a Socratic
forum. Moreover, the combination of an international law case book with
a heavy United States orientation, and a teaching process largely unrelated
to the demand of most other courses at McGill in those years, complicated
the life of both students and teachers. Even the move from its position as
a first-year course (where it didn’t belong) to a place in second or third year,
where it was obviously more appropriate, did not in those post-war years
resolve the double dilemma of a course that included everything from pro-
cedure to substance to jurisprudential challenges as well as a classroom-
4C.B. Bourne & L.G. Jahnke, eds, Cases and Materials on Public International Law, rev’d
ed. (Vancouver University of British Columbia, 1972).
5L.C. Green, International Law Through the Cases, 4th ed. (Toronto: Carswell, 1978).
6See e.g. M.O. Hudson, International Legislation: A Collection of the Texts of Multipartite
International Instruments of General Interest, Beginning With the Covenant of the League of
Nations (Washington: Carnegie Endowment for International Peace, 1931).
REVUE DE DROIT DE McGILL
[Vol. 33
experience that seemed neither related to “bread and butter” on the one
hand nor to the often less demanding lecture method classically used in
most courses, on the other.
Forty years later, how changed is the status of public international law
as a course worth taking –
and
how extensive are the classroom offerings to satisfy the mounting richness
of the field and the pedagogical materials provided today to meet that rich-
ness and its professional relevance!
it was “always” compulsory at McGill –
This fourth edition should be viewed, therefore, in that Canadian ev-
olutionary context. Indeed, the general editor, Professor H.M. Kindred, in
his modest preface, indicates the double use to which the volume can be
put, namely, that it is ” primarily designed for our students … who ex-
perience the world from a Canadian perspective” and that “[a]n additional
purpose of this book is to provide a reference of first resort for anyone who
has need of international legal sources.”‘ 7
The principal chapters reflect for the most part the basic structure of
the subject as it has evolved since the great texts were written and became
the “classics”, from Grotius’ day onward. However, the nuances dealing
with old topics as well as quite significant new fields disclose at once that
a modernity has begun to reshape the statics of the older headings. And so
“International Legal Persons’ 8 does not confine itself to debates over the
definition of “subjects” in international law and related matters, but plunges
into the principles of non-intervention and self-defence in explaining the
“Rights and Duties of States”. 9 While the breadth of “Legal Personality”
reaches out now to include self-determination, international organizations,
corporations and, of course, the individual. Here, both the laws of war on
the one hand, and modem human rights, customary and conventional rules
on the other, have finally made it impossible to persist with the fiction that
states “only and exclusively” (as Oppenheim and Lauterpacht would have
it until the fifth edition), 10 were the subjects of international law. The elusive
“subject/object” debate is now mostly history.
The volume spends much effort on the Canadian component under
each of the principal headings and for this reason, it uses, as Castel already
had done, not only Canadian cases and treaties et al. but parliamentary and
ministerial statements, as well as extracts from academic analyses in pub-
7Supra, note 3 at iii.
8lbid., c. 2 at 10-108.
91bid. at 15-54.
10L. Oppenheim, International Law: A Treatise, 5th ed. (edited by H. Lauterpacht) (London:
Longmans, Green & Co., 1935).
1988]
CHRONIQUE BIBLIOGRAPHIQUE
lished articles that clarify and stimulate and indicate the scholarly creativity
at work throughout the many topics of the volume.
Finally, the editors raise useful questions at the end of each chapter
and the linkage between this editorial activity and the valuable volume in
textbook form produced by two of the editors, Professors Williams and de
Mestral,” give the case book a dimension of practioner-usable materials
that adds to its dual function as both teaching instrument and practitioner
reference text. Ironically, the contrast between Castel’s first edition and this
fourth is that it was the documentation as reference that made Castel val-
uable, but its structure and detail rendered it less manageable as a teaching
device.
What is interesting, of course, is to consider the new areas that demand
fresh perspectives on the entire field of public international law. It may be
argued that the immediate post-war years stimulated teachers to examine
the Charter of the United Nations and the jurisdiction of the specialized
agencies, all in relation to public international law more generally. The study
of these relationships and their effects created perhaps the most important
immediate post-war dimension to the teaching and delineation of the sub-
ject. A number of areas, however, began to intrude by the 1950s and 1960s
so as to alter existing proportions and perceptions: human rights, and its
international protection and municipal responses; air and space law where
the latter, the law of outer space, virtually introduced an essentially new
area of study; the immensely enlarged area of international economic ac-
tivity and organization with the General Agreement on Tariffs and Trade,’ 2
the rules governing the operations of the World Bank and the International
Monetary Fund, and the later roles of UNCTAD and UNCITRAL all added
to the enlarged institutional structure governing the burgeoning interna-
tional private sector activity; the new international humanitarian law of
armed conflict and the interaction of the nuclear weapons and warfare issues
with the older classical laws of warfare and weaponry; and finally, the im-
mense concern with the seas and the environment leading to the 1972 Stock-
holm Declaration on the Human Environment 3 and to the 1982 United
Nations Convention on the Law of the Sea.14 All this has resulted in a fresh
approach to international environmental standards and resource manage-
ment which is so much on the minds of those who today worry about the
planet and its future.
“S.A. Williams & A.L.C. de Mestral, An Introduction to International Law: Chiefly as In-
terpreted and Applied in Canada, 2d ed. (Toronto: Butterworths, 1987).
1230 October 1947, 55 U.N.T.S. 187.
13U.N. Doe. A/CONE 48/14 (1972), 11 Int. Leg. Mat. 1416.
14UN. Conference on the Law of the Sea, Official Records, vol. I-XVII, (1973-84) at vol.
XVII, 151-221, 21 Int. Leg. Mat. 1261.
McGILL LAW JOURNAL
[Vol. 33
It is also arguable that these new areas too often raise the level of
traditional student skepticism that surrounded so much of public interna-
tional law, particularly with respect to compliance. The psychological centre-
piece of every classroom debate generally turns on the ability of the teaching
process to have the student accept the nature of the international legal order
and its rules as essentially similar, professionally and technically, to the
principal domestic legal regimes that occupied the great majority of his
training hours throughout a three-year law school program. It was not only
the sometimes exotic subject matter, but also the sense that this increasing
volume of rules, matched by an increasing number of headlines about in-
ternational disputes from sub-nuclear warfare (Iraq-Iran) to complex trade
disputes, often presented compliance (and its avoidance) as a deliberate
policy, thus challenging the credibility of the system as a whole. Notwith-
standing the quite obvious – when properly explained –
fact that thou-
sands of transnational transactions as well as the great majority of applicable
rules were following the governing procedures and substantive law, day in
and day out, both as public and private sector phenomena, dubiety too often
remained a primary student reaction. To the student, the areas of property,
contracts, torts, taxation and company law, along with the major public law
areas of constitutional, administrative and criminal law, seemed to present
much less onerous insecurities of compliance when compared with public
international law. At the same time, however, those same students were
daily witnesses to major and minor domestic disobedience, particularly in
labour disputes where illegal strikes, walkouts and lockouts challenged the
very basis of judicial or administrative orders, leading to contempt pro-
ceedings to fines and, ultimately, to jail.
Certainly, international law has had a weaker formal compliance record
in its institutions of enforcement. But given the extraordinary advantages
of national legal orders, and given also the conspicuous headline status of
international disorders, these comparisons, juridically, were often quite su-
perficial, for the student generally relied upon the simplistics of discrete
disobedience to replace a more sober judgment of the whole.
What does this seven-editor, five university volume do for Canadian
law students that its rivals or predecessors have not done? Probably, it is
fair to say that because there is a somewhat unique multi-university ap-
proach, the combination of Dalhousie, New Brunswick, McGill, Toronto
and Osgoode provides the basis for a truly national case book because of
the “reach” of those involved. This does not in any way diminish the quality
of the competition. It is, however, to suggest that the seven co-authors from
five law schools, and their correlation with a new Canadian textbook, (de
Mestral and Williams), 15 however “introductory” it may be, all add to the
IsSupra, note 11.
1988]
BOOK REVIEWS
level of intrinsic sophistication in materials, approach and practical class-
room utility for whatever variation of Socratic models may satisfy a par-
ticular teacher and student body.
Ironically, instruction by “cases and materials” method has been the
subject of controversy in Canada over many years. However, the high pro-
portion of Canadians obtaining post-graduate degrees from American law
schools, for the past thirty years or more, has now intensified the temptation
to use such materials in almost every course – public or private law –
however different the actual day-to-day utilization may be in the hands of
over 600 Canadian law teachers in 21 law schools or departments of law.
Almost everyone stands on his predecessor’s shoulders. Each scholar
has his debts that can never be fully repaid to the long line of labourers in
the same vineyard of the footnotes. A radical shift in a whole analytical and
teaching process such as Dean Langdell was able to undertake at Harvard
a century ago may not be experienced too often in a profession such as the
law with its extraordinary inputs of substance and method from the highest
abstractions of “justice” to the daily demands of courtrooms, negotiators
and teachers alike. This new volume, therefore, inaugurates no revolution,
but it is a finely constructed Canadian instrument, the heir of artisans who
have shaped with their peers elsewhere the format within a system of world
law that can be taught from the vantage point of a national experience. It
is no small ambition to embrace a planetary perception within a national
memory to the enrichment of both the global and the particular and, finally,
to the enrichment of teacher and student alike.
