BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
Louis B.Z. Davis, Canadian Constitutional Law Handbook Leading State-
ments, Principles and Precedents. Aurora, Ontario: Canada Law Book, 1985.
Pp. cxxvi, 1056 [195 $1. Comment6 par Raynold Langlois, c.r.*
Cette oeuvre monumentale se veut un outil destin6 particulirement
aux avocats praticiens confront6s A des problemes de droit constitutionnel.
Comme son titre le laisse entendre, ce < handbook ne pretend pas etre un
ouvrage de fond en droit constitutionnel. I1 cherche plut~t A nous donner
facilement acc~s aux principes qui ont W formulas par la Cour supreme
du Canada A 1'6gard des questions de droit constitutionnel dont elle a eu A
disposer. L'auteur tire ces principes des arrets rendus par la Cour depuis
1949. Pourquoi avoir choisi l'ann~e 1949 comme point de d6part? Me Davis
justifie son choix, d'abord par le d6sir de limiter la taille de son oeuvre et
on ne peut gure lui en faire reproche 6tant donne qu'il nous livre plus de
1000 pages. Ensuite, l'auteur veut nous livrer les fruits de la pens~e de la
Cour depuis qu'elle est devenue notre tribunal de dermier ressort. Enfin,
c'est avec raison que l'auteur mentionne l'abondante moisson de jugements
en matire constitutionnelle rendus par la Cour depuis 1949, ce qui lui a
fourni l'occasion de revoir tous les principes constitutionnels d'importance.
La m6thode suivie par l'auteur consiste A livrer, sur une question donn~e
de droit constitutionnel, la citation qui lui parait 6noncer le mieux le prin-
cipe applicable A cette question. Les citations sont donn6es dans la langue
d'origine du jugement de telle sorte que l'oeuvre comporte de nombreuses
citations en langue frangaise suivies d'une traduction en langue anglaise.
Lauteur a dispos6 ces principes par grands th6mes constitutionnels en sui-
vant, i la m6thode d'un r6pertoire, un agencement par ordre alphab6tique
de titres de ces themes. Par exemple la Partie I de l'ouvrage nous livre les
principes 6nonc6s au regard des <(Aboriginal and Treaty Rights > jusqu’A
(Constitution of Canada >. La Partie II traite des Constitution Acts > de
1867 A 1982, ainsi de suite jusqua la dernire partie, la Partie VIII, qui
couvre < Royal Proclamation of 1763 > jusqu’A
3Partie I de la Loi constitutionnelle de 1982, constituant I’annexe B de la Loi de 1982 sur le
Canada (R.-U.), 1982, c. 11 [ci-apr~s la Charte].
1986]
BOOK REVIEWS
de precedent a fait en sorte que la jurisprudence sur notre Charte se d~ve-
loppe tr~s lentement, la Cour d~montrant une prudence presqu’excessive,
un peu A la mani~re de quelqu’un qui a le vertige. Le livre de Me Davis a
‘avantage de nous fournir un outil de rep6rage rapide et pratique des prin-
cipes qui sont A la base de 1’6difice constitutionnel construit i la piece par
la Cour depuis 1949. Meme si la Charte est de droit nouveau, elle demeure
n~anmoins un texte constitutionnel r~pondant aux normes d’interpr~tation
applicables a la loi supreme de notre pays. I1 s’ensuit que ce livre s’av6rera
d’une grande utilit6 A 1’6gard de questions mettant en cause la Charte.
Par exemple, dans l’arrt R. c. Therens,4 Monsieur le juge Le Dain
reprend les propos du juge en chef Dickson dans l’affaire Hunter c. Southam
Inc.5 A 1’effet que la Charte, de par sa nature constitutionnelle, r6pond i des
r~gles d’interprtation tout A fait differentes de celles r~gissant l’interpr6-
tation d’une loi. En raison m~me de son caract~re constitutionnel, elle doit
8tre consid6r~e comme une nouvelle d6claration des droits et libert6s et du
pouvoir et de la responsabilit6 qu’ont les tribunaux de les prot~ger. Le savant
juge avait pr~alablement exprim6 la pr~misse de son raisonnement comme
suit:
In my opinion, the premise that the framers of the Charter must be pre-
sumed to have intended that the words used by it should be given the meaning
which had been given to them by judicial decisions at the time the Charter
was enacted is not a reliable guide to its interpretation and application. By its
very nature a constitutional charter of rights and freedoms must use general
language which is capable of development and adaptation by the courts.6
Une fois pr~venu des limites de l’ouvrage, le lecteur –
le praticien du
trouvera dans ce Iivre une mine presqu’inpuisable
droit, en particulier –
de rponses A des questions fort complexes auxquelles peu d’ouvrages de
droit constitutionnel publidsjusqua maintenant donnent facilement accs.
Que se soit au titre du fondement constitutionnel du pouvoir des tribunaux
de contr6ler la 16galit6 des lois, du r6le et des droits des procureurs g~n6raux
et du gouvernement, de la qualification des faits pertinents en mati~re cons-
titutionnelle ou des conventions constitutionnelles et de leur utilit6, cette
oeuvre contient tousles 6lments A la fois d’un trait6 de droit constitutionnel
et d’un trait6 de droit public fondamental. A la difference de la plupart des
ouvrages publics depuis quelques annes sur le sujet (et il y en a eu une
manne abondante), l’ouvrage de Me Davis n’est pas concentr6 sur les pro-
nonc6s judiciaires d6coulant des litiges au regard du partage des comp6-
tences. C’est sans doute le fruit de son experience personnelle au Ministre
4(1985), [1985] 1 R.C.S. 613, 18 D.L.R. (4th) 655 [ci-apr~s Therens cit6 aux R.C.S.].
5(1984), [1984] 2 R.C.S. 145 A la p. 155, 11 D.L.R. (4th) 641.
6Therens, supra, note 4 A la p. 638. Cet extrait est 6galement reproduit dans Davis, supra,
note 1 aux pp. 881-82.
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[Vol. 31
de la justice du Canada qui lui a fait r6aliser la multitude des questions
complexes et rarement trait~es auxquelles le praticien est trop souvent confront6.
Me Davis 6tait au Minist~re A 1’6poque des grands tiraillements constitu-
tionnels de la p6riode 1980-82 et a 6t6 A meme de constater combien rares
6taient les textes canadiens oA 6taient analyses, par exemple, les principes
formulas par la Cour, voire simplement ses 6nonces sur le fondement consti-
tutionnel de notre fed6ration. Pourtant, A ‘analyse, ils 6taient nombreux,
mais caches dans des milliers de pages dans des rapports judiciaires pous-
si6reux peu ou insuffisamment r6pertori6s *et trait6s par nos auteurs.
Je ne peux terminer ce compte-rendu sans souligner l’extreme pr6cision
de la table des mati~res qui facilite l’acc~s A ‘ouvrage. Si la table des mati~res
ne suffisait pas, rindex A la fin couvre soixante pages et ne laisse place A
aucun pr6texte, pour celui qui cherche, de revenir bredouille. En somme,
il s’agit d’un ouvrage bien fait et d’un outil essentiel A placer dans toutes
les biblioth~ques de droit, m~me dans les cabinets qui font rarement du
droit constitutionnel. D’ailleurs avec l’av~nement de la Charte canadienne,
peu d’entre nous seront dor~navant exempt6s d’aborder cette branche du
droit.
David Phillip Jones & Anne S. de Villars, Principles of Administrative Law.
Toronto: Carswell, 1985. Pp. xlv, 489 [$68.00]. Reviewed by David J. Mullan.*
Many books have been written in recent years about judicial review of
administrative action. At least seven are Canadian,’ and the present editor2
of the monumental English work, de Smith’s Judicial Review of Adminis-
trative Action,3 teaches at a Canadian law school. It is therefore appropriate
to ask of any new text whether it adds to the existing literature in the field.
Does it have an approach or focus that is different from the others? Does
it draw upon cases or research lacking in the others?
When I ask these questions of the book under review, Jones and de
Villars’ Principles ofAdministrative Law,4 I come up with five features that
distinguish it from its rivals:
1. Much of the Canadian emphasis is upon Alberta cases, statutes and other
materials;
2. The most fully-developed chapter (Chapter 10: “Errors of Law on the
Face of the Record”) represents a brave and, I think, useful attempt to
reconcile the old law to the effect that, absent a privative clause, the courts
could review for any error of law on the face of the record with the new
judicial approach that there should be deference to tribunal rulings of law
even where there is no privative clause;
3. It is more current than all except one of the others;5
*Of the Faculty of Law, Queen’s University.
‘R. Dussault, Trait de droit administratif canadien et qu~b~cois (Quebec: Presses de l’Uni-
versit6 Laval, 1974), now beginning to appear in updated form in R. Dussault & L. Borgeat,
Administrative Law: A Treatise, vol. 1, 2d ed. (Toronto: Carswell, 1986); P. Garant, Droit
administratif (Montral: Yvon Blais, 1981); J.A. Kavanagh, A Guide to Judicial Review, 2d
ed. (Toronto: Carswell, 1984); D. Lemieux, Le contrOlejudiciaire de l’action gouvernementale
(Quebec: Centre d’ditions juridiques, 1981); G. P6pin & Y. Ouellette, Prcis de contentieux
administratif(Montral: Yvon Blais, 1979); R.E Reid & H. David, Administrative Law and
Practice, 2d ed. (Toronto: Butterworths, 1978); DJ. Mullan, Administrative Law, 2d ed. (Toronto:
Carswell, 1979), being also Title 3 of Volume I of the Canadian Encyclopedic Digest (Ontario),
3d ed. The teaching materials with which I am associated might also be included in this list:
J.M. Evans et al., Administrative Law: Cases, Text and Materials, 2d ed. (Toronto: Emond
Montgomery, 1984).
2Professor John M. Evans of Osgoode Hall Law School.
34th ed. (London: Stevens, 1980).
4D.P Jones & A.S. de Villars, Principles of Administrative Law (Toronto: Carswell, 1985)
[hereinafter Jones & de Villars, Principles].
5Dussault & Borgeat, supra, note 1 has appeared since the publication of the book under
review.
@McGill Law Journal 1986
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4. Of the Canadian works, it is by far the most explicitly influenced by
English cases and approaches; and
5. It is the one most unremittingly favourable to expansive judicial review
as an ideal.
Perhaps I should add to this list the ambition expressed in the preface to
be “useful to lawyer and layman alike” as another feature setting it apart
from its rivals.
But do these differences amount to a sufficient justification for its
publication?
First, if I were an Alberta lawyer or teacher, I would certainly want to
have a copy of this book. It is a fruitful source of relevant Alberta materials
and contains a number of interesting discussions of important recent deci-
sions emanating from the courts in that province. It also serves to bring
these Alberta developments to the attention of lawyers elsewhere and, as
such, may be a useful repository of ideas for both legislative change and
approaches to litigation.
Second, while the chapter about review for error of law has already
appeared elsewhere in slightly different form, 6 the argument it puts forward
deserves wider exposure than that generally afforded articles appearing in
most university law reviews. This feature, too, justifies the book’s appearance.
As for currency, the latest work out will always have this advantage.
But it is an advantage that will quickly be surrendered with the appearance
of a revised edition of one of the other texts or now, as in the case of one
of the Canadian publications, 7 the next looseleaf update. Indeed, within a
few months of its publication, its statement of the law on at least two
important matters was undercut by judicial decision. First, the Supreme
Court of Canada decided, contrary to the position taken by the authors,
that certiorari is still available in aid of habeas corpus from the provincial
superior courts even where the detention being challenged is at the hands
of a federal authority.8 And second, in a strong judgment, the Ontario Court
of Appeal held that a “final and binding” form of privative clause is effective
to prevent the courts from reviewing for mere intrajurisdictional error of
6See D.. Jones & A. de Villars, “Certiorari and the Correction of Intra-Jurisdictional Errors
of Law” (1984) 22 Alta L. Rev. 362 [hereinafter Jones & de Villars, “Certiorari”].
7Lemieux, supra, note 1.
8As established by R. v. Miller (1985), 52 O.R. (2d) 585, 49 C.R. (3d) I (S.C.C.); Morin v.
National Special Handling Unit Review Committee (1985), 49 C.R. (3d) 26 (S.C.C.); Cardinal
v. Director of Kent Institution (1985), [1986] 1 W.W.R. 577, 49 C.R. (3d) 35 (S.C.C.).
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BOOK REVIEWS
law.9 Of course, the authors cannot be held responsible for such develop-
ments, though their position on the certiorari-in-aid issue could have been
framed somewhat less dogmatically.’ 0
While currency is therefore only a fleeting advantage, it is nevertheless
still an advantage. However, it is doubtful whether the final two differences
that I have discerned are of any benefit at all. It may well be true, as stated
in the preface, that “[a]s in so many areas of Canadian law, it is necessary
and desirable to refer to English authorities”.II Still, this approach can be
carried too far, as it is here in the form (most notably at pages 198-208) of
long excursions into relatively ancient English authority of dubious rele-
vance. These excursions lead to the virtual exclusion of American authority
(now, with the Charter, so much more pertinent) and even! of any textual
discussion of such key Supreme Court of Canada decisions as Canadian
Radio-Television and Telecommunications Commission v. CTV Television
Network Ltd (on the delegation of hearing functions and the expectations
of existing licence holders) 12 and Capital Cities Communications Inc. v.
Canadian Radio-Television Commission (on policy formulation and fetter-
ing of discretion). 13
As for the obvious merits ofjudicial review, my own writings have from
time to time revealed a disposition towards that position. Nevertheless, to
reduce the debate to a single rhetorical question 4 and to ignore the impres-
sive body of Canadian anti-judicial review literature is to downplay, quite
9Ontario Public Service Employees Union v. Forer (1985), 52 O.R. (2d) 705, 23 D.L.R. (4th)
97. See the authors’ formulation of the “better” view in Jones & de Villars, Principles, supra,
note 4 at 419-20.
10The authors’ assertion of the contrary position in Jones & de Villars, ibid. at 361 is par-
ticularly surprising in view of the fact that they actually cite the B.C. Court of Appeal decision
in Cardinal v. Director of Kent Institution (1982), [1982] 3 W.W.R. 593, 35 B.C.L.R. 201, one
page earlier. The latter decision, affirmed on appeal by the Supreme Court of Canada, supra,
note 8, rejected the interpretation ofMitchell v. R. (1975), [1976] 2 S.C.R. 570, 61 D.L.R. (3d)
77, cited as authority by the authors.
I Jones & de Villars, ibid. at viii.
12(1982), [1982] 1 S.C.R. 530, 134 D.L.R. (3d) 193. The Table of Cases of the book under
review does not reveal even a footnote reference to this decision.
13(1977), [1978] 2 S.C.R. 141, 81 D.L.R. (3d) 609. This case is footnoted without discussion
in Jones & de Villars, Principles, supra, note 4 at 140 n. 71. Also regrettable is the fact that,
by my count, the Selected Bibliographies at the end of most chapters in the book refer to a
total of only three works out of the entire body of important academic writing on the subject
emanating from Quebec academics in French.
‘4The authors write:
For more than twenty-five years, England has accepted the desirability of having
the courts determine almost all questions of law arising in the course of adminis-
trative action – whether intra-jurisdictional or jurisdictional in nature – with no
obvious impediment to the efficiency of government. Why do Canadian legislators
so fear judicial review that they insist –
on inserting privative
clauses in almost all important pieces of legislation?
often futilely –
Jones & de Villars, ibid. at 426; see also supra at 437.
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inappropriately, a very contentious issue. I am not, of course, questioning
the authors’ right to put the case for judicial review of administrative action
in the strongest terms possible. Their position, however, deserves fuller
articulation than is found in the philosophy that emerges throughout the
text but which is never explicitly justified, namely that Canadians need the
ordinary courts to protect their rights and interests from being trampled on
by government. Harry Arthurs, Paul Weiler, John Willis and Roderick Mac-
donald, to name but a few, merit far more attention than that.’ 5
Viewed on its own terms and not simply from the perspective of what
sets it apart from earlier efforts, the book under review has both strengths
and weaknesses. The strongest parts, notwithstanding the over-reliance on
English authority, are undoubtedly Chapters 8 through 10. These are well-
written and both thoughtful and careful in their analysis of the relevant
principles. They are, in short, somewhat more academic in their approach
and not as “digesty” as, for example, Chapters 13 and 14 on remedies. Not
coincidentally, Chapters 8 through 10 are based largely upon articles by both
David Phillip Jones and Anne de Villars 16 that have appeared previously
in Canadian law journals. This fact, coupled with some of my other concerns
about the balance of the text, suggests that the book might have benefited
from greater reflection about coverage, organization and structure as well
as the effective integration of new material with that already published.
For one thing, little attempt is made to incorporate the Charter into
the work. To raise just a few issues: what do “life, liberty and security of
the person” in section 7 mean for administrative law? From a procedural
perspective, how, if at all, do the “principles of fundamental justice” differ
151t is true that two of Harry Arthurs’ articles are listed in the Selected Bibliography at the
end of Chapter 16, but Paul Weiler’s writings in this area (e.g., In the Last Resort: A Critical
Study of the Supreme Court of Canada (Toronto: Carswell/ Methuen, 1974) c. 2 and c. 5; “The
‘Slippery Slope’ of Judicial Intervention” (1971) 9 Osgoode Hall L.J. 1; and “Judges and
Administrators: An Issue in Constitutional Policy” in Proceedings of the Administrative Law
Conference, 1979 (Vancouver. U.B.C. L. Rev., 1981) 379 are not referred to at all. Moreover,
while there are references to the works of Roderick Macdonald and John Willis scattered
throughout the footnotes, there are none that I could find to some of their more important
work in the area ofjudicial review, such as R.A. Macdonald, “Judicial Review and Procedural
Fairness in Administrative Law” (1980) 25 McGill L.J. 520, (1980) 26 McGill L.J. I; R.A.
Macdonald, “A Theory of Procedural Fairness” (1981) 1 Windsor YB. Access Just. 3; J. Willis,
” The McRuer Report: Lawyers’ Values and Civil Servants’ Values” (1968) 18 U.T.L.J. 351;
J. Willis, “Canadian Administrative Law in Retrospect” (1974) 24 U.T.L.J. 225.
16Most notably, Jones & de Villars, “Certiorari”, supra, note 6; D.P. Jones, “Administrative
Fairness in Alberta” (1980) 18 Alta L. Rev. 351; D.P Jones, “Natural Justice and Fairness in
the Administrative Process” (1983) 43 R. du B. 441; D.P. Jones, Case Comment (1977) 55
Can. Bar Rev. 718; D.P. Jones, “The National Energy Board Case and the Concept of Attitudinal
*Bias” (1977) 23 McGill L.J. 462; and D.P. Jones, “Institutional Bias: The Applicability of the
Nemo Judex Rule to Two-Tier Decisions” (1977) 23 McGill L.J. 605.
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CHRONIQUE BIBLIOGRAPHIQUE
from existing common law principles of “natural justice” and “procedural
fairness”? How will review for abuse of discretion be affected by the equality
provisions of section 15 of the Charter? Admittedly, the Charter is still new,
but even in the absence of cases, it is unfortunate that the authors chose
for the most part not to speculate on such issues, particularly when they
themselves acknowledge that the Charter will indeed have a significant impact.
Incidentally, on the one point on which the authors did speculate, namely
that section 7 would come to be interpreted as having substantive as well
as procedural aspects, 17 they have already been vindicated.’ 8
In the chapter on error of law, drawn from the authors’ Alberta Law
Review article,’ 9 there is considerable material on jurisdictional error. Here,
particularly, this incorporation of earlier work has caused an organizational
problem that really gets in the way of their analysis. Rather than examining
the closely-related issues of privative clauses and preliminary and collateral
error together with jurisidictional error, the three topics are treated sepa-
rately. Indeed, the study of privative clauses is isolated quite bizarrely in
the penultimate chapter of the book. Moreover, as opposed to the generally
careful delineation of issues in Chapters 8 through 10, the discussion of
preliminary and collateral error degenerates into a series of long extracts
from a handful of judgments (a weakness encountered in some other parts
of the book, as well), with no real attempt being made to identify the indi-
cators of a preliminary or collateral matter. This is not to imply that this
area of the law is straightforward, but some synthesis of the issues and
authorities is to be expected on such an important point. Instead, the phi-
losophy of the authors here, to quote from their conclusion on another issue,
seems to be a little too dismissive of the prospects for the development of
an appropriate theoretical approach: “Perhaps such a test could never be
devised, and one must rest content with the ability to canvass the matter
before the courts.”’20
There is evidence throughout the work of the absence of a sharp edi-
torial pencil. It is obviously vital in a textbook to re-emphasize certain
matters as they become relevant in different contexts. That does not justify,
however, the almost word-for-word repetition of pages 39-41 at pages 192-
93. Similarly, at page 423, the issue of the constitutionality of privative
clauses is said to have been discussed more fully in Chapter 2 when in fact
the later discussion simply parallels, again in virtually the same language,
17Jones & de Villars, Principles, supra, note 4 at 38-41.
‘8ReferenceRe Section 94(2) of the Motor Vehicle Act (B.C.) (1985), [1985] 2 S.C.R. 486, 48
C.R. (3d) 289.
‘9Jones & de Villars, “Certiorari”, supra, note 6.
2OJones & de Villars, Principles, supra, note 4 at 129, with respect to review for irrelevant
considerations and the discerning of a test for what is legally irrelevant.
McGILL LAW JOURNAL
[Vol. 31
the earlier treatment of that issue. 21 As a final example, Bell v. Ontario
Human Rights Commission22 and the House of Lords decision in Anisminic
v. Foreign Compensation Commission23 are discussed in tandem on three
different occasions to make essentially the same point,24 while the “Canadian
Anisminic”, the very troubling Metropolitan Life Insurance Co. v. Inter-
national Union of Operating Engineers, remains undiscussed.2 5
Lastly, the treatment of remedies, particularly in the contexts of stand-
ing and the Federal Court Act,26 is highly cursory. Apparently the authors
were either in a hurry to finish the book or they underestimated the impor-
tance of these issues.
In summary, despite some mildly useful distinguishing features and
occasional instances of strong analysis, Principles of Administrative Law
constitutes a rather uneven effort. Given the authors’ previous work, it is
to be regretted that the book did not live up to its potential to be something
more.
21Ibid. at 37-38.
22(1971), [1971] S.C.R. 756, 18 D.L.IL (3d) 1.
23(1969), [1969] 2 A.C 147, [1969] 2 W.L.R. 163.
24Jones & de Villars, Principles, supra, note 4 at 52-53, 111-12 and 194.
25(1970), [1970] S.C.R. 425, 11 D.L.R. (3d) 336. Admittedly, it is referenced on five occasions,
twice in the text itself.
26R.S.C. 1970 (2d Supp.), c. 10.
James G. Snell & Frederick Vaughan, The Supreme Court of Canada: His-
tory of the Institution. Toronto: University of Toronto Press, 1985. Pp. xv,
319 [$40.001. Reviewed by Louis B.Z. Davis.*
Given the relatively lengthy life of the Supreme Court of Canada and
given the emphasis of Canadian historians on political history and constitu-
tional development, it is surprising that no basic history of the Court has been
written.’
Thus begins the preface to this collaboration between an historian and
a political scientist. The explanation for this omission emerges gradually
from the authors’ chronological history of the institution. No one could be
expected, of course, to write a history of the institution when it was young.
Even some early Supreme Court judges lacked commitment to the new
tribunal on which they sat, and “[u]nfortunately for the Supreme Court, the
unfavourable image of the institution [became] entrenched by the end of
the 1870s”.2 At the turn of the century, “[t]he Court’s reputation remained
poor; the editor of the Canada Law Journal wrote privately that the Supreme
Court ‘is held in contempt by the profession.’ 3 Worse yet, the Court then
fell into a period of decline: “Rather than being seen as an institution apart,
enjoying special status at the peak of the national judicial structure, the
Court was shown to be what it really was in this period: a political body
subject to the partisan political manoeuvrings of the government.” 4
The Court’s appeal to historians and political scientists as a worthy
research subject could hardly have been encouraged by a continuing gov-
ernment attitude through much of the first part of this century that this
“vulnerable institution” should be sheltered by following “[t]he old adage
‘let sleeping dogs lie’ … by inhibiting discussion and change”. 5 Finally, it is
true, the stature and prestige of the Supreme Court began to rise. But is it
really surprising that no one was interested enough to research and write
the history of this institution when it was still only supreme in name? As
appropriately emphasized and elaborated on by the authors, it did not become
“Counsel, Constitutional and International Law, Department of Justice, Government of Canada,
and former law clerk with the Supreme Court of Canada. The views expressed in this review
are, of course, those of the reviewer and not necessarily those of the Government of Canada.
tJ.G. Snell & E Vaughan, The Supreme Court of Canada: History of the Institution (Toronto:
University of Toronto Press, 1985) at xi.
2lbid. at 28.
31bid. at 79.
4lbid at 88.
5lbid. at 127.
@McGill Law Journal 1986
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supreme in fact until the 1949 abolition of appeals to the Judicial Committee
of the Privy Council.
As late as 1960, it could still be said that most people were barely aware
of the Court’s existence.6 Only recently has the Court been in a position “to
make itself a truly significant participant in the Canadian polity”. 7 There-
fore, contrary to the authors’ assertion, it is perhaps not so surprising after
all that theirs is the first basic history of the Court.
The preface then goes on to state: “This volume is an attempt to fill
that gap.” 8 To fill such a gap in one volume is a very ambitious undertaking.
However, the authors have succeeded in providing a highly selective but
carefully documented and well-written historical review.
The book’s ten chapters divide the Court’s history into as many period
pieces, making it easy to follow the large lines of the Court’s historical
development. These chapters concisely but effectively capture the relevant
background of the times while focusing on the Court’s particular challenges
and problems. These challenges and problems, which have been on-going
throughout the Court’s history, have included the quality and sufficiency of
and relations among its personnel; its status in the judicial hierarchy and
in the national polity; its perception by the government, the legal community
and the public; its overly conservative, strict constructionist jurisprudence;
and, at least until 1946, its lack of an appropriate and functional residence.
The book is much more remarkable for what it does cover than dis-
appointing for what it does not, and it provides a satisfying basic history
of the Court. Anyone interested, however, in a deep discussion of the jur-
isprudence of the Court in its first 110 years, its influence as a law-maker,
its role as constitutional adjudicator or more detailed biographies of its
judges should look elsewhere. 9 Rather, this book touches on such aspects
of the Court’s existence as judicial salaries, workload, accommodation prob-
lems, constitutional status, method, criteria and quality of appointments
and extracurial activities of the judges such as speeches and service on
commissions of inquiry. The authors also discuss political use of the Court
through references, geographical isolation of the Court from Eastern and
Western Canada, weak judicial craftmanship in terms of style and clarity
of judgments and various difficulties hindering the achievement of consen-
sus in some cases.
61bid. at 214.
71bid. at 258. These are the closing words of the book.
8lbid. at xi.
9See, e.g., (1975) 53 Can. Bar Rev. 459-770.
1986]
CHRONIQUE BIBLIOGRAPHIQUE
One of the most interesting aspects of the book is the information it
contains about the individual judges who served on the Court. This usually
includes the background to their appointments, brief biographical sketches
and some insight, anecdotal or otherwise, into their personalities.
The authors found that nine or more Supreme Court judges were appointed
primarily on the basis of patronage considerations. At least seven of these
are said or very strongly implied to have been appointed on this basis despite
lack of obvious merit or competence for such a role. Political partisanship
is also put forward as an essential factor in many other appointments, although
tempered to varying extents by considerations of legal experience and intel-
lectual ability. Given these findings, it is strange that in their preface the
authors refrain from attributing the generally low regard “for the quality of
[the Court’s] judicial work”‘1 to partisan political considerations in the
appointment process.
Snell and Vaughan rely heavily on archival documents, government
and court records, private papers and related materials. The book is well-
documented with references to these sources throughout the text. The authors
also conducted a number of interviews with knowledgeable persons. How-
ever, in this regard it seems they did not direct sufficient energy to their
task. There are many other individuals whose anecdotes would have added
personal warmth and charm to the authors’ dry account. I can recall, for
example, John J. Robinette addressing the Federal Lawyers Club in Ottawa
a few years ago on his personal experiences as counsel in the Supreme Court.
At least some of his enlightening and often amusing reminiscences and
reflections would have provided material worthy of inclusion in this book.
Since the authors seem to lack any personal experience with the Court as
an institution, those with such experience and with personal feelings about
the Court could have sharpened their understanding of their subject.
The book’s treatment of the history of the Court over the last ten to
fifteen years is not as even or complete as that of earlier periods. To some
extent, it is impossible for this to be otherwise. With respect to recent
appointments, for example, only a few people know who was on the short
list for appointment, what criteria were employed, what the views of the
Cabinet were or whether any offers of a position were rejected. This knowl-
edge is, of course, confidential. Similarly, the authors would have been forced
to resort to gossip or methods unbecoming their scholarly exposition to
inform themselves of any recent friction on the bench, government initia-
tives underway to improve the Court, discussions of constitutional change
or the current relationship on a personal level between the judges and the
executive.
‘oSnell & Vaughan, supra, note 1 at xii.
McGILL LAW JOURNAL
[Vol. 31
Even so, there are omissions that are disappointing. It has been cus-
tomary for some time now for the Chief Justice, the Attorney General of
Canada and representatives of the Bar and the relevant province to address
the Court at special ceremonies to mark the occasion of a judge’s retirement.
These speeches are usually based on careful research and include biograph-
ical and jurisprudential information, anecdotes, humour and tributes to the
best qualities and contributions of the retiring judge. For instance, when
Mr Justice Ritchie retired in 1984, the Attorney General had occasion to
note the many areas of law in which he had made major contributions and
pointed out that he had rendered the unanimous judgment of the Court in
more than 130 cases. It is unfortunate that the authors did not appear to
know about or did not have access to any of these speeches. They might
have been available from persons who could also have provided the authors
with more of the stories which help to humanize the judges and the legal
profession. For example, when Mr Justice Spence retired in 1978, then-
Attorney General Marc Lalonde throughout his speech mistakenly directed
his gaze towards Mr Justice Ritchie. One Court observer joked: “Do you
think Ritchie got the hint?”
In the book, long-serving judges such as Judson, Spence, Martland and
Ritchie are simply replaced at the end of their tenures, with little if any
tribute to or assessment of their contributions to the Court and the law. It
is at moments like these that knowledgeable Court followers will discern a
certain incompleteness about the book. On the other hand, the book did
recently provide accurate and quotable material for the Attorney General
of Canada’s tribute to the late Mr Justice Pigeon at a special ceremony in
the Court and for the Pigeon obituaries which appeared in the press.
Another shortcoming is the book’s failure to convey sufficiently the
detail surrounding such historic cases as the Reference Re Resolution to
Amend the Constitution.Il This was the first case in which any party (the
federal government, in this instance) submitted equally official factums to
the Court simultaneously in both English and French. It also marked the
first time the Court found it necessary to ease overcrowding by issuing tickets
for admission. Special arrangements had to be made to accommodate the
press, all the lawyers, various persons with particular interests or status and
the general public. Those able to secure one of the seventy passes available
11(1981), [1981] 1 S.C.R. 753, 125 D.L.R. (3d) 1 [hereinafter the Patriation Reference].
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BOOK REVIEWS
each day could sense the tension in the courtroom. 12 There was a sense of
history unfolding which left a deep imprint on the memories of all those
involved. The absence of such details, combined with their unbalanced
criticism of the judgment, detracts significantly from the authors’ account
of the case.13
The book touches on but does not delve too profoundly into philo-
sophical considerations of the judicial role. As a general summation of and
comment on the Court’s jurisprudential history, this work can be described
as generally fair and accurate, if occasionally harsh and necessarily super-
ficial and incomplete. Bearing in mind the context and point of the juris-
prudential analysis provided, it is sufficiently developed, clearly presented
and neatly integrated into the major themes of the book.
It is possible to detect a certain lack of appreciation by the authors of
the difficulties inherent in sitting as a judge on questions of major public
importance. Judical weighing of major public and private interests involves
many factors and can be a personally trying experience. The authors often
give the impression, perhaps unintentionally, that this decision-making pro-
cess really involves no more than a choice between strict legal conservatism,
generally favoured by the Court, and judicial innovation, with the latter
being more commendable. They would have been well-advised to consider
the following observations of Chief Justice Laskin, imparted on the occasion
of the Supreme Court’s centenary in 1975:
It is part of our philosophy of adjudication … that each judge may put his own
questions and supply his own answers. Nonetheless, he does so as a member
of a collegium, independent of the other members but sharing responsibility
with them for the integrity of the institution. Judgment is involved; judgment
not only in the disposition of a particular case but also in the method of
disposition, in the character, length or brevity of written reasons, in the use of
authorities or other sources of reference, in the decision to concur and whether
20n the day of judgment, 28 September 1981, television broadcast live for the first time
1
the rendering of a decision by the Court. Chief Justice Laskin had agreed to this coverage
despite his aversion to television cameras in the courtroom. At the federal Department of
Justice, many lawyers were crowded into the office of the Assistant Deputy Minister (Public
Law), watching the television and listening intently. Immediately afterwards the Minister of
Justice would have to be briefed on the result and its implications. We leaned forward as Chief
Justice Laskin began to render judgment, but at the critical moment we could not make out
a word he was saying! Desperately we tried to decipher the garbled audio or read his lips as
he pronounced this historic judgment. We turned to other channels, but to no avail. Later we
would discover that one of the other judges had inadvertently turned on another microphone
or unplugged a wire, thus causing the static that garbled the broadcast.
31t is also disappointing that the authors chose not to discuss the follow-up case, Re A.G.
1
Quebec andA.G. Canada (1982), [1982] 2 S.C.R. 793, 134 D.L.R. (3d) 719, the so-called Quebec
veto case.
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[Vol. 31
to do so without additional or supplementary reasons, and in the decision to
dissent and whether to limit the grounds of the dissent.
All of this is part of the anxiety that is constantly, if sometimes also uncon-
sciously, with a judge of a final appellate court. Judges of courts lower in the
hierarchy may look over their shoulders, and find some comfort perhaps in
knowing that there is someone there, some back-up of a higher court. The judge
of a final appellate court like the Supreme Court of Canada who looks over
his shoulder for any comfort will find no one there, unless it be his law clerk
who, in my experience, cannot always be relied on to be comforting. There is
something of the loneliness of the long distance runner in every judge of a
final appellate court as he reflects on his work and makes decisions in particular
cases, decisions which either expressly or implicitly tell the reader how the
judge views the functions and role of the court of which he is a member.’ 4
They might then have offered less one-sided comments about, say, Mr Jus-
tice Beetz, whose “reputation for indecisiveness” 15 is counterbalanced by
his diligence in preparing thoroughly-researched, thoughtful and well-writ-
ten judgments.
Similarly, in discussing Chief Justice Cartwright’s decision in R. v. Dry-
bones, the authors say:
In the most astonishing and most open reversal in the history of the
Supreme Court, the chiefjustice repudiated his dissent in Robertson and Rose-
tanni with the confession that he had erred in his reasoning in that case ….
The judgment said little for a judge of Cartwright’s stature. His dissent in
Drybones was an open admission that he had not thought through his judgment
in Robertson and Rosetanni in 1963.16
While in some respects the judgment did “say little” for Chief Justice Cart-
wright, in other respects it spoke volumes for him. Only a courageous judge
with an open mind, a strong sense of humility and intellectual and moral
honesty could render such a judgment. More than a few of the judges described
in the book were clearly not of such stock and would never have dared
reverse themselves so forthrightly.
In closing, as a lawyer reviewing a book written by non-lawyers, it is
probably incumbent upon me to quibble over a few technical legal points,
if only out of a sense of “ma profession m’oblige”. The authors refer to “the
historic adoption in 1982 of a new constitution in which the Court was
virtually entrenched and given a vital new mandate”.1 7 Contrary to popular
usage, the constitutional changes brought about in 1982 did not truly amount
‘ 4B. Laskin, “The Role and Functions of Final Appellate Courts: The Supreme Court of
Canada” (Address to the Supreme Court Centennial Symposium, Ottawa, 27 September 1975)
(1975) 53 Can. Bar Rev. 469 at 469.
15Snell & Vaughan, supra, note I at 226.
161bid at 220-21.
171bid. at 233.
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CHRONIQUE BIBLIOGRAPHIQUE
to the adoption of a “new constitution”. More importantly, despite what to
the lay person (and some lawyers) appear to be clear words to the contrary,
it is not at all certain that the Court has been constitutionally entrenched.’ 8
And in a statement that will not seem objectionable to the general public,
the authors note that in Hunter v. Southam Inc.,19 “Chief Justice Dickson
seemed to serve notice that the Court was assigning the Charter a major
place in the law of the land”. 20 Given the Charter’s status as part of the
Constitution, lawyers may well find this assertion superfluous, to say the
least.
The publisher has produced a volume that is pleasing to the eye and
contains few typographical errors. The book contains a useful appendix
listing all of the judges who have served on the Court and an index which,
while certainly helpful, could have been more detailed. For example, it is
impossible to find the section dealing with the Patriation Reference except
by checking all the pages under the entry “References”. Overall, as a basic
history of the Court the book is both enlightening and enjoyable. It does
not fully fill the gap in our national history identified by the authors but,
even with all its own shortcomings, it is an ambitious and admirable effort
in that direction.
‘8See, e.g., L.B.Z. Davis, Canadian ConstitutionalLaw Handbook Leading Statements, Prin-
ciples and Precedents (Aurora, Ont.: Canada Law Book, 1985) at 651-52.
19(1984), [1984] 2 S.C.R. 145, 11 D.L.R. (4th) 641.
2OSnell & Vaughan, supra, note I at 256.
I.C.E Spry, The Principles of Equitable Remedies: Specific Performance,
Injunctions, Rectification and Equitable Damages, 3d ed. Toronto: Carswell,
1984. Pp. lix, 668 [$69.50]. Reviewed by William Pentney.*
Spry’s Equitable Remedies is an excellent book for a student, practi-
tioner or judge to consult in order to learn about the principles relevant to
injunctions, specific performance, rectification and equitable damages. Dr
Spry has written a careful, accurate and thorough text which will amply
repay close scrutiny.
As explained in the preface, the third edition was necessitated primarily
by the recent developments in the law relating to Mareva injunctions and
Anton Piller orders.’ In the second edition, which was published in 1980,
the Mareva injunction was dealt with in only six lines, 2 while the Anton
Piller order was relegated to a footnote.3 In this edition, twelve pages are
devoted to the Mareva injunction and three pages to the Anton Piller order.
The analysis of these developments, like the rest of the text, is concise and
reasonably thorough. As well, references to recent cases are incorporated
into the new edition and an entirely new chapter on rectification has been
added.
Dr Spry has produced a meticulous examination of the principles which
guide the exercise of equitable discretion in relation to the principal equi-
table remedies. The book is very well written and is an impressive work of
scholarship. One measure of this is the 43-page Table of Cases, another is
the careful attention paid to the historical origins of the principles, as well
as the painstaking analysis of the major decisions. Yet another unique mea-
sure of the quality of Dr Spry’s scholarship can be found in the frequent
references in the text to judgments which have cited previous editions with
approval.
The reliability of the author’s scholarship has been further confirmed
by decisions rendered since the preparation of the third edition. For example,
the discussion of the doctrine of undue influence or unfairness, as it relates
*Of the Faculty of Law, Common Law Section, University of Ottawa.
‘I.C.E Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rec-
tification and Equitable Damages, 3d ed. (Toronto: Carswell, 1984) at ix.
21.C.E Spry, The Principles of Equitable Remedies: Injunctions, Specific Performance and
Equitable Damages, 2d ed. (London: Sweet & Maxwell, 1980) at 321.
‘Ibid at 472 n. 94.
@McGill Law Journal 1986
Revue de droit de McGill
1986]
BOOK REVIEWS
to the grant or refusal of specific performance of a contract which was
procured by such measures, includes the following assertion:
[T]he mere existence of poverty, lack of education, drunkenness, or any other
such matter is not itself enough to lead to a refusal of specific performance …
As has been shown in relation to the effects of alcohol, it is necessary that the
plaintiff should in some way have taken advantage of the position of inequality
or that some similar consideration should have arisen, before a court of equity
considers the transaction unfair so that specific enforcement is refused on that
ground.4
This view of the doctrine of undue influence was confirmed last year by the
House of Lords, albeit without reference to the book under review, in National
Westminster Bank v. Morgan.5
Impressive as it may be in quantity and quality, the scholarship is
nonetheless of the “black letter” variety. This is not a book for those who
wish to explore new frontiers in the law of remedies. There is virtually no
explicit theorizing,6 and the author’s criticism of decisions and statements
of rules is best described as gentle.
The book is curious in several respects. The absence of a chapter on
the history of equity seems odd in view of the author’s obvious belief that
historical analysis is vital to a proper understanding of equitable principles.
The treatment of equitable maxims throughout the book is somewhat repet-
itive; Dr Spry might have been wise to devote a single chapter or sub-chapter
to an analysis of the maxims, so that their application in particular areas
could be understood in the light of a general discussion of their purpose
and significance.
Even more startling, at least to this reader, is the lengthy recitation of
judges whose knowledge and understanding of the principles and “tech-
nique” of equity command the approval of Dr Spry.7 It is difficult to see
the relevance of comments on the general reputations of individual judges
without reference to specific judgments or extra-judicial pronouncements.
I do not doubt that Lord Eldon is properly described as “one of the greatest
equity judges who at any time sat in the Court of Chancery”, 8 but I am
unable to fathom what we are to take from this statement in a book which
is neither a biography nor a history of the subject matter. Lord Eldon’s
decisions, like those of any other judge, must stand or fall on their merits,
and the quality of reasoning and fidelity to principles and precedents in a
4Spry, supra, note 1 at 189-90.
5(1985), [1985] A.C. 686, [1985] 1 All E.R. 821.
6 1n contrast to the hidden (yet discernible) theorizing which underlies the choice of subject
matter and approach.
7Spry, supra, note 1 at 2-3.
Ibid. at 3.
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[Vol. 31
judgment can, it is submitted, easily be measured without reference to the
reputation of the judge. These passages hearken back to a different age and
reveal a view of the law not commonly encountered in Canada today.
Another stylistic irritant is the author’s failure to use or acknowledge
the significance of gender-neutral language. Women are never plaintiffs or
judges in Dr Spry’s equity. Admittedly, though, this comment might seem
heretical given the rigidly “traditional” legal analysis undertaken by the
author. After all, how could one expect something so “radical” as gender-
neutral language from an author who does not even refer to any modern
authors or commentaries? (I found only one reference to a recent law journal
article in the 668 pages of text. That reference is to an article by Dr Spry
himself.9)
For Canadian readers, this book has much to offer, particularly the
aforementioned examination of the principles relating to equitable remedies.
The author’s careful analysis of these principles serves as a useful corrective
to the tendency to cling to strict rules unsupported by reason or to the
precedents. 10 The book is not a “quick” read, but it is worth studying (at
least on a given topic or topics) with some care. One obvious disadvantage
of the book for a Canadian reader is the omission of any reference to Canadian
cases. While some might see this exclusion as an oblique commentary on
the quality of Canadian judgments in the area, a more likely explanation
is simple exhaustion. Having undertaken such a thorough analysis of the
English and Australian jurisprudence, which was the original purpose he
established for the book, Dr Spry can quite justifiably shrug off this last
criticism as pure impudence.
Because of the absence of any reference to Canadian authority, the price
of the book, the inadequacies outlined earlier in this review and the avail-
ability of an excellent current Canadian text,” I1 would not assign this book
supra, note I at 449 n. 23.
91.C.E Spry, “The Myth of the Prima Facie Case” (1981) 55 Aust. L.J. 784, cited in Spry,
,0 Many of the most significant recent cases in this area are based on just such an analysis
of “supposed” rules. See, e.g., C.H. Giles & Co. v. Morris (1972), [1972] 1 W.L.R. 307 (Ch.
D.); American Cyanimid Co. v. Ethicon Ltd (1975), [1975] A.C. 396, [1975] 1 All E.R. 504
(H.L.) and the Mareva and Anton Piller lines of cases (although these are properly viewed as
extensions of existing principles).
I ‘R.J. Sharpe, Injunctions and Specific Performance (Aurora, Ont.: Canada Law Book, 1983).
In contrast to Dr Spry, Professor Sharpe has made ample reference to the current literature on
the subject. The exhaustive citation of Canadian jurisprudence and thorough discussion of
issues of current concern in this country give Sharpe’s text an undeniable added advantage
over the book under review.
1986]
CHRONIQUE BIBLIOGRAPHIQUE
571
for use in my Remedies course. But the depth and quality of scholarship
and the author’s clarity of expression have convinced me to keep the book
on my shelf and to recommend it strongly as a resource for students, prac-
titioners and judges who are involved in analyzing or applying equitable
remedies.
