BOOK REVIEWS
COMPTES RENDUS
Consumers and the Regulators: Intervention in the Federal Regulatory Process. By T.
Gregory Kane. Montreal: The Institute for Research on Public Policy, 1980. Pp. xvii, 123.
The regulatory process promises to be fertile ground for re-evaluation
and reform during the next decade. The federal government,I the Economic
Council of Canada, 2 the Ontario Economic Council,3 the Law Reform
Commission of Canada, 4 the Institute for Research on Public Policy, 5 and
the Institute of Public Administration of Canada 6 have already published
major studies on the subject. The pages of learned journals are sprinkled with
articles by political scientists and lawyers and this activity seems ready to
bear fruit. 7
resources have hampered consumer
The role of the consumer in the regulatory process has been a recurring
analytical theme. A consensus has developed since the early 1970s that the
public has always suffered in regulatory decision-making. 8 Lack of notice,
intervention.
information and
Bureaucratic impediments and anti-consumer attitudes by decision-makers
have effectively excluded meaningful public participation. Ex parte
contacts, agency capture and monopolies on expertise lead tribunals to
favour the regulated industry itself. Most regulation is highly political in
nature and often involves cabinet appeals, so that even where effective
consumer representation before agencies is possible, it may be rendered
nugatory at a later stage in the decision-making process. Consumers and the
Regulators examines each of these issues in some detail, outlining the failings
I See Parliamentary’ Task Force on Regulatory Reform: Discussion Paper (1980).
2 Economic Council of Canada, Responsible Regulation (1979).
3Ontario Economic Council, Government Regulation (1978).
4 Law Reform Commission of Canada, Independent Administrative Agencies (1980).
5W. Stanbury, Studies on Regulation in Canada (1978); R. Schultz, Federalism and the
Regulatory Process (1979); D. Hartle, Public Policy Decision-Making and Regulation
(1979); W. Stanbury, Government Regulation: Scope, Growth, Process (1980).
6See, e.g., R. Schultz, Federalism, Bureaucrac, and Public Policy (1980).
7 It would be impossible to refer to all the literature which has appeared even in the past
five years. Nevertheless, the collection of essays edited by G. Doern, The Regulator)y Process
the work of H. Janisch, and the fine article by Breyer, Anal),sing
in Canada (1978),
Regulator)y Failure: Mismatches, Less Restrictive Alternatives, and Reform (1979) 92
Harv. L. Rev. 547, deserve special mention.
8 Perhaps the leading article in forming this new consensus was Trebilcock, Winners and
Losers in the Modern Regulatory System: Must the Consumer Always Lose ? (1975) 13
Osgoode Hall L.J. 619.
1981]
BOOK REVIEWS
of the current regulatory framework and elaborating proposals to overcome
these failings.
The thrust of the book is best explained by the author himself in his
conclusion. After noting the enormous range of regulation and its diverse
formats, he reminds the reader that only “public utility regulation” at the
federal level, i.e., CRTC, CTC, NEB, etc., has been covered by his book. He
continues :
The critical, underlying theme to this study has been as follows: before a regulatory
agency can engage in a process of balancing the variety of interests that relate to a
particular issue, those interests must be articulated before the tribunal. Furthermore, it
is absolutely fundamental that the regulatory tribunal facilitate this process by making
its proceedings as accessible as possible to the widest number of interests so that the
ultimate decision will have been based upon a variety of “inputs”. 9
Each of the first four chapters explores a different aspect of this
underlying theme. Mr Kane begins by elaborating a theory of public
participation in regulation based on the touchstone that “regulation is there
to serve the public, not to be the instrument of a selected few”. Problems of
standing, representatives, diffuseness, regulatory
interest articulation –
are given a cursory treatment in Chapter Two. The book’s third
capture –
chapter addresses the thorny problem of tribunal independence and
public policy: to what extent should agencies be free of political control ? To
what degree should courts make agency policy? How should policy be
communicated to agencies by government? Chapter Four questions the
current structure of cabinet appeals and raises the issue of accountability of
regulatory tribunals; the current framework of policy guidance and non-
judicial recourse is roundly criticized for being contrary to the Rule of Law.
The final two chapters contain Mr Kane’s prescriptions for a better
regulatory process: In Chapter Five, several “bloodless” (the word is the
author’s) procedural changes are proposed. These range from improving
notice requirements, permitting preparation time, better scheduling of
public hearings, making ex parte contacts a matter of record, improving
access to documents and rethinking the manner of appointment to agencies.
The book’s final substantive chapter deals with the financing of consumer
representation. Two proposals are mooted : the direct government subsidy
of groups and the awarding of costs for appearances before regulatory
tribunals.
Consumers and the Regulators is a very appealing book: well written,
carefully argued, thoroughly documented, neither shrill nor polemical in its
analysis, and moderate in its recommendations. 10 1 agree almost completely
9T. Kane, Consumers and the Regulators (1980), 121.
10 Without being unfair to Mr Kane it is important to note that almost all his suggestions
have previously been mooted in American periodical literature. See, e.g., Breyer, supra, note
7. Nevertheless, the author does a fine job of adapting this literature to Canadian problems.
REVUE DE DROIT DE McGILL
[Vol. 27
with Mr Kane’s views on the symptoms of the disease, but I am convinced
neither by his analysis of its causes nor by all his prescriptions for its cure. In
the following paragraphs a brief critique of the author’s thesis will be
attempted. My comments are grounded in what I see as three fundamental
defects in his theoretical perspective. First, he starts from an insufficiently
nuanced view of the phenomenon of regulation: its form, limits and
functions are not exhausted in direct legislative initiatives. Second, he brings
a rather naive perspective on the process of decision-making to his analysis:
adjudication is not the only model for dispute settlement in a modern
democracy. Finally, his views on interest formulation and articulation fail to
take into account important recent work in jurisprudence : the identification
of and justification for asserting the consumer interest presents difficult
challenges for democratic theory.
During the past decade public lawyers in the United States have devoted
a great deal of energy to analysing the systematic nature of administrative
law. Works by Professors Vining” and Freedman12 are essays on how
non-regulation may effectively amount to a form of regulation which totally
ignores the consumer interest and deprives citizens of input into important
social decisions. These authors point out that by their very existence, legal
structures enhance public participation, either through the identification of
problems, or through the transformation of economic issues –
over which
the citizen can exercise little control –
into legal issues of procedure, where
his concerns may be legitimated. One should also recall that visible
regulation operates against a matrix of socio-political forces which are rarely
visible and even more rarely understood. To assert the primacy for
consumers of traditional adversarial input into visible regulation misses the
point that invisible regulation thereby escapes scrutiny. It also implicitly
establishes economics as the standard against which regulatory effectiveness
is to be measured.
Rather than set out in detail the gaps in Mr Kane’s analysis which flow
from his focus on the adjudicative and quasi-adjudicative aspects of
regulation, 3 I shall make only one observation at this point. A denial of the
kind of consumer group representation advocated by the author may be a
result more of the unsuitability of this model of decision-making to such
input than of secretiveness, conspiracy or lassitude. For example, a
II J. Vining, Legal Identity: The Coming of Age of Public Law (1978).
12J. Freedman, Crisis and Legitimacy: The Administrative Process and American
Government (1978).
13 A lengthy and belaboured treatment of this point may be found in Macdonald, Judicial
Review and Procedural Fairness in Administrative Law (1980) 25 McGill L.J. 520 and
(1980) 26 McGill L.J. 1.
1981]
COMPTES RENDUS
comparison of the recent work of Professors Gilmore, 14 Macneil,15 Atiyahl6
and Fried’ 7 in the law of contracts with recent writings on natural justice in
administrative law clearly reveals the poverty of the latter’s contribution to
generating a general theory of procedural fairness. While writers on the law
of contract constantly seek to explain contracting as one of several social
institutions with its own symbolism and range of useful application,
administrative lawyers tend to see adjudication as the only means of creating
and enhancing social ordering. Until those who argue “the consumer
interest” develop a more plausible model of the regulatory process, little
progress towards effective participation is likely to occur. 18
Perhaps the reader should not expect Mr Kane to note that many of his
claims are grounded in social theory. But there is no reason the author
should not at least refer to the work of Professors Rawls, 19 Nosick, 20
Unger, 21 Ackerman 22 and Ely23 where these support the thesis he is arguing.
After all, those who assert the consumer interest are really arrogating a
neutral label to sustain their claim for special protection. Whose consumer
interest do consumer advocates really reflect ? The evolution of trade union
jurisprudence in matters of expulsion, the duty of fair representation and
secondary boycotts should serve as a reminder that simply because a group
holds itself out as representing a certain interest is no guarantee that it
actually does so. Mr Kane’s brief treatment of this issue in Chapter Two is
simply inadequate as a justification for the position he adopts.
It is, of course, impossible in a 123 page monograph to argue fully all the
issues canvassed in the last few paragraphs. As a reader who does not share
the assumptions of the Institute for Research on Public Policy and its
various authors, however, I am frustrated by the failure to address these
problems even superficially. If one is already a convert to shibboleths such as
14 G. Gilmore, The Ages of American Law (1977).
15 I. Macneil, The New Social Contract : An Inquiry into Modern Contractual Relations
(1980).
16 p. Atiyah, The Rise and Fall of Freedom of Contract (1979).
17 C. Fried, Contract as Promise: A Theory of Contractual Obligation (198 1).
18 It has always been a puzzle to me why administrative lawyers are not more receptive to
the work of political scientists in this regard. Compare the overt theorizing in Schultz, supra,
note 6, chap. 1, with the first chapter of Mr Kane’s monograph.
19J. Rawls, A Theory qf Justice (1971).
20 R. Nozick, Anarchy, State and Utopia (1974).
21 R. Unger, Law in Modern Society’: Towards a Criticism of Social Theory (1976).
22 B. Ackerman, Social Justice in the Liberal State (1980).
23J. Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
122
McGILL LAW JO URNAL
[Vol. 27
deregulation, agency capture, adversarial adjudication, independent and
non-political regulatory agencies, consumer advocacy, and so forth this
monograph will be enjoyable reading. If not, the sense of pique it generates
may contribute to a livelier debate on underlying themes. In either case the
book will have served its primary purpose. Would that most legal writing
were as successful!
R.A. Macdonald
Faculty of Law
McGill University
19811
BOOK REVIEWS
Ontario Securities Law. By Victor P. Alboini. Toronto: Richard De Boo Ltd, 1980. Pp. 992.
This book gives cause for celebration among those who study and work
in the field of securities regulation. It is a narrow field of law which none the
less has a significant impact on the economic well-being of our society. The
fact that Canada and the United States have the two best-developed and
most efficient capital markets in the world is in no small measure due to the
legal framework in which they function. That framework provides a
individual and
reasonable measure of security for the
institutional alike. At the same time, it allows North American capital
markets to function with a high degree of efficiency and innovation.
investor –
Twenty years ago,
there was much cause for criticism of the
underdeveloped state of the Canadian law and academic literature in the
field of securities regulations.’ Professor J.P. Williamson’s book Securities
Regulation in Canada, published in 1960 and supplemented in 1966,2 was a
major step forward in filling the void. It was the first book to deal with the
subject since the publication in Canada in 1913 of Thomas Mulvey’s
Canadian Company Law. 3
The appearance of the Kimber Report4 and its product, the Ontario
Securities Act, 1966,5 were the major initiatives in modernizing the law. In
the twenty years since the appearance of Professor Williamson’s book, the
law has become modern and sophisticated without becoming unduly
cumbersome. During the same period of time, an impressive number of
studies, reform proposals, articles and legal treatises have appeared to
improve and explain that law.
This evolution is particularly welcome in Canada, which is a relatively
small country from the point of view of comparative jurisprudence.
Canadian securities law has been influenced substantially by treatises,
statutes and jurisprudence from other countries. It is therefore refreshing to
see the development of a Canadian body of law and accompanying literature
which borrows appropriately from these other jurisdictions but is tailored
uniquely to Canadian conditions.
The book serves three important purposes. First, it will improve the
understanding of the law by practitioners and the clients they serve. An
I See, e.g., Canada: Department of Finance, Report of the Royal Commission on
Banking and Finance (1964), 344-55 [commonly referred to as The Porter Report].
2 J. Williamson, Supplement to Securities Regulation in Canada (1966).
3T. Mulvey, Canadian Company Law: A Collection of Statutes of the Dominion of
Canada and the Various Provinces (1913).
4 Ontario: Attorney General, Report of the Attorney General’s Committee on Securities
Legislation in Ontario (1965).
5S.O. 1966, c. 142.
REVUE DE DROIT DE McGILL
[Vol. 27
improved understanding produces a higher quality of law and of commercial
transactions circumscribed by that law. Secondly, a book of this nature
augments the education of law students who in turn will be able to make a
more significant contribution to the profession when they enter it. Thirdly,
the book provides a helpful gloss for administrative practices and presents
constructive criticism so that successive generations of amendments,
regulations and policy statements can better satisfy the basic goals of
securities regulation.
The book is notable because it comes from the pen of a busy practitioner.
It reflects the best results of an efficient practitioner’s research combined
with a network of extensive legal memoranda available only in a large,
integrated law firm. It also demonstrates a sound grasp of the problems that
a specialist practitioner faces daily in this area. It is a mark of the
sophistication of the practising bar in this specialized field that Mr Alboini
has been able to produce this book with the support and active collaboration
of associates within his firm.
The book itself is almost 1,000 pages long. It analyzes each section and
clause of the Ontario Securities Act, 1978,6 with appropriate reference to
regulations, case law, administrative decisions and policy statements. It
draws sensibly from the six bills which preceded the Act as well as from
explanatory memoranda, records of hearings, and briefs to trace the
evolution of some of the new passages.
Some of the most significant provisions of the Ontario Securities Act are
new and untested and the book provides the extensive explanation needed to
make them work effectively. Several chapters provide thorough discussions
of industry practice, which will be particularly helpful to students. In
general, the book has been extensively researched and will provide a
reasonably complete list of primary sources for anyone attempting to give a
carefully considered opinion on a particular question.
About fifteen years ago, the late Manuel Cohen, former Chairman of the
United States Securities and Exchange Commission, advised a law reform
group from one of the British Commonwealth countries not to look to the
United States federal statute and practice for a model but rather to the
Ontario Securities Act, 1966. He suggested that Ontario had a statute and
administrative practice which gave the essential framework of a sound
securities regulation system and which at the same time was simpler and less
cumbersome in practice. The new statute of 1978, with the help of Mr
Alboini’s book, gives a ringing endorsement to that prophesy.
David Lloyd Johnston*
6 An Act to Revise The Securities Act, S.O. 1978 c. 47, as am.
* Principal and Professor of Law, McGill University.
1981]
COMPTES RENDUS
A Modern Legal History of Englandand Wales 1750-1950. By A.H. Manchester. London:
Butterworths, 1980. Pp. xxv, 419.
Students in need of a general history of English law and its institutions
between 1750 and 1950 will find this text to their liking, especially on the eve
of their examinations. The book is unlikely to win a place among established
texts by Potter,’ Plucknett, 2 Milsom 3 and Baker,4 and one assumes that it
was never intended to do so. However, anyone who by interest or
compulsion seeks quick knowledge about this period of the law will find
assistance in Mr Manchester’s work. The author should be complimented
for his success in producing a text that undergraduates in history, political
science, economics and other disciplines, as well as law, can use with profit to
gain an introduction to recent legal history.
The first chapter is designed to prime the reader by setting out the most
conspicuous trends in England’s social and economic development between
1750 and 1950. To meet such a challenge in less than twenty pages is indeed
an ambitious task, and the author concedes the futility of the enterprise. 5 It
was a regrettable editorial decision to publish this first chapter in its present
form. Its shallowness is such that, barring a complete redrafting with
substantial amplification, it would better have been scotched entirely or cut
into pieces which could have been tucked into appropriate passages
is any sustained
elsewhere
commentary on the profound influence of philosophy, morality and religion
on law, especially in the nineteenth century. This omission is notice that the
entire book discusses only positive law and its manifestations in the courts,
the legal profession and law reform.
in the book. Omitted from the chapter
Marked improvement is evident in Chapter Two, where the author gives
a brief exposition of the sources of law and miscellaneous efforts at statutory
reform, consolidation and codification. This improvement continues in
Chapter Three with a good overview of the structure and organization of the
Bench and Bar.
Among the best chapters in the book are the five (Chapters Four to
Eight) dealing with the courts, which provide a sound introduction to the
structure of English courts. They include a clear synopsis of the function of
the jury in English law during the last three hundred years and a brief
account of court administration, 6 including ample citation of reports by
various commissioners or committees. Though the survey is cursory, Mr
I H. Potter, Historical Introduction to English Law and its Institutions, 4th ed. (1958).
2T. Plucknett, A Concise History of the Common Law, 5th ed. (1956).
3 S. Milsom, Historical Foundations of the Common Law, 2nd ed. (1980).
4 J. Baker, An Introduction to English Legal History, 2d ed. (1979).
5A.H. Manchester, A Modern Legal History of Englandand Wales 1750-1950(1980), 10.
6 1bid., 102-10.
McGILL LA W JOURNAL
[Vol. 27
Manchester annotates these pages with enough information to guide readers
unfamiliar with this area of legal history to other sources, many of them
primary sources, for more detailed discussion of the matter. His review of the
jurisdiction of superior courts is adequate but the preceding chapter on
inferior courts is threadbare, which is unfortunate because this is a matter
that legal historians have frequently neglected in general works of this kind.
In particular, the author could have overstepped his date of departure and
attempted to describe the characteristics of inferior courts as they had
evolved through the sixteenth and seventeenth centuries, and even earlier.
At the end of his chapter on superior courts, Mr Manchester discusses
what he calls “alternatives to the courts”, touching briefly on arbitration and
tribunals. 7 In view of the explosion in
fleetingly on administrative
administrative law in Britain and elsewhere in the common-law world, this
momentary consideration of administrative matters is strikingly deficient.
The ebb and flow of administrative law in the past century is one of the great
tidal movements in the history of law over the past two hundred years. Not
only does it pose vast theoretical challenges, but it raises questions that go to
the very nature of the English legal system. It surely deserves an entire
chapter of detailed study.
Chapter Eight, entitled “Review and Appeal”, also draws much of its
strength from the author’s extensive reference to contemporary reports
concerning reform of appellate courts of both civil and criminal jurisdiction.
Mr Manchester’s three chapters on criminal law and its administration
(Chapters Nine to Eleven) have a strong sociological aspect, with respect to
both substantive law and its enforcement, and this point of view is
undoubtedly helpful to the general reader. However, the weakness of these
chapters is their concentration, virtually to the exclusion of all else, on the
major formative changes in the criminal law during the late eighteenth and
nineteenth centuries. More discussion of defences to criminal charges would
be desirable, and in an introductory text of this kind one would especially
appreciate a thorough account of the origins of the intellectual bog of
drunkenness, automatism and insanity.
Two hundred eventful years of contract, tort and property law flash past
the reader in slightly more than sixty pages. The discussion of them is little
more than one text-writer’s headnote to a proper historical text on each of
these areas of law, but once again it should be said that a reader with little
history and less law will find these chapters informative. One should perhaps
admire the author for facing the task at all. However, there are also notable
omissions from these chapters, and the consideration of contract law might
be singled out for brief criticism. Mr Manchester properly informs us that in
the twentieth century “the sanctity of the contract” is an embattled notion,
71bid., 150.
1981]
BOOK REVIEWS
indeed an idea that is keenly attacked by some as an idol of false piety, and
one regrets that the author was unable to consider Professor Atiyah’s new
book on the subject, which, despite its provocative partisan argument,
illustrates nicely the terms of a great debate. 8 Nonetheless, a thorough
bibliography of secondary literature is imperative in this field of legal
controversy, and the references provided are quite inadequate. In discussing
“the erosion of the classic theory of contract”, 9 Mr Manchester mentions
illegality, misrepresentation and mistake, but he neglects to explore the rich
folds of the much broader doctrine of unconscionability or even to cite
literature on the topic, such as the excellent essay by Professor Waddams,
“Unconscionability in Contracts”, which appeared in the Modern Law
Review several years ago.’ 0 Surely this growing doctrine, which has a long
history in the period of English law studied by Mr Manchester and which has
led to the enactment of important modem legislation, is at the heart of the
erosion of the classical theory of contract. Not only is it an important issue in
modem contract law, but it provides revealing evidence of changes in public
opinion, the distribution of wealth and the exercise of economic power.
But the author says, and rightly so, that “[w]e have no more vivid
illustration of the relationship between law and opinion than is provided by a
study of the law regarding labour… and.., the law regarding capital”.”I The
chapter given to these matters, Chapter Fourteen, is quite the best single
effort in the book, and for law students and general readers alike it is an
excellent precis of the chief milestones in the history of labour law and
company law. As regards the latter, however, the author completes his
account with the principle of limited liability and the doctrine of ultra vires,
and thus fails to bring company law into the twentieth century, missing fully
fifty years of his chosen period of discussion.
The penultimate chapter concerns family law, and while one might
expect this chapter to concentrate on developments in the twentieth century,
the author is here again bogged down in the nineteenth and thereby unable to
consider much of the fascinating history of family law in this century.
Nevertheless, what he has provided is a flat, but adequate, recitation of the
salient points, leavened only by an allusion to the astonishing practice of
wife-selling as an “extra-legal remedy” for matrimonial distress in the
nineteenth century.
Mr Manchester then concludes with a general and familiar excursus on
the nature of law reform and the many means of its accomplishment.
8 P. Atiyah, The Rise and Fall qf Freedom of Contract (1979).
9Supra, note 5, 274-6.
10(1976) 39 M.L.R. 369.
1 Supra, note 5, 327.
REVUE DE DROIT DE McGILL
[Vol. 27
While the generality of the entire book may be its selling virtue for many
readers, generality is also its chief vice when it deteriorates to a superficial
veneer, as it does in several spots. One feels throughout that the author’s
general approach implies a correlative obligation to annotate extensively for
the benefit of readers who wish to pursue a subject in greater detail.
Although one must be quick to praise Mr Manchester for his thorough
reference to reports prepared by parliamentary committees, law-reform
committees, and commissions of inquiry, he would have done well to have at
least cited more of the abundant periodical literature of an historical and
legal nature that bears on his topic. The vertebrae of his book remain the
standard texts and articles in each field of law, and for a truly successful
publication of this kind one would like less of a digest and more of an
argument, which is one of the signal virtues of Plucknett, Milsom and Baker
with respect to their work about an earlier era. One abiding criticism of Mr
Manchester’s book is that for all its concern with law reform it fails to
identify adequately areas of controversy in the law to 1950 that have
continuing and pressing ramifications.
Three cosmetic blemishes deserve the attention of Butterworths, the
publisher. First, in a book that includes only a brief subject index, it is
irritating not to be provided with a complete bibliography of all works cited
in the text. Second, the purchaser of this book is entitled to better
proofreading. Third, any reader is entitled to orthodox punctuation,
standard abbreviations and consistent annotation.
Professor J.H. Baker remarked recently that legal historians have been
reluctant to write at length about the period after 1750, partly because so
much of what there is to write about is still in daily use and partly because of
the enormity of the resources.1 2 Mr Manchester seems to have overcome that
reluctance and, with this introductory text for the general reader, he shows
that he has done so with justified confidence. The author has succeeded in
his attempt to link the law between 1750 and 1950 with basic trends in
contemporary public opinion. While he has not evaded legal controversy in
this general approach, he has done well to help us see recent legal
developments as history.
Patrick Healy*
12 Baker, Book Review [ The Rise and Fall of Freedom of Contract] (1980) 43 M.L.R.
467.
* Of the Law Reform Commission of Canada.
1981]
COMPTES RENDUS
Canadian Prison Law. By John Conroy. Vancouver: Butterworths, 1980. Loose-leaf, two
volumes.
John Conroy’s Canadian Prison Law will be a valuable reference guide
for lawyers who have clients confined in federal penitentiaries. This two-
volume loose-leaf service provides a lengthy discursive introduction and
annotations to the Penitentiary Act I (including subordinate legislation and
orders thereunder), the Parole Act, 2 and those portions of approximately
thirty-five other federal statutes which apply to prisoners. Conroy is well
qualified for this task. As legal counsel for the Abbotsford Community Legal
Services Project, he has been involved in leading prison-law cases, including
McCann v. The Queen & Cernetic3 and the two Martineau4 decisions. The
service
is replete with annotations of unreported cases in which he
participated, or of which he is aware.
Canadian Prison Law is unique and thorough. Aside from the rare
appearance of an article in a journal,5 correctional law in Canada receives
scant attention, although the Queen “s Law Journal has published two
special issues on the subject 6 and the Queen’s University Correctional Law
Project has also recently established the Correctional Law Newsletter.
Among government publications, the Report to Parliament of the Sub-
Committee on the Penitentiary System in Canada (1977) stands out for its
objectivity and searching analysis. At the moment, however, interest in
prison law is manifested almost exclusively by academic groups such as the
Queen’s Project, the newly formed Corrections Practicum at McGill,
community-action groups such as the one in Abbotsford, and the Qffice des
droits des ditenus in Quebec. Legal-aid finances almost every prison-law
case in the country, and in British Columbia the educational costs and
salaries of para-legals working in the area are also paid by the government.
Prison law comprises three general topics: civil matters, such as
marriage, divorce and finances; substantive rights as provided in the
Penitentiar, Act, the Parole Act, and the Canadian Bill of Rights ;7 and
procedural rights to be dealt with fairly or in accordance with natural justice
by administrators deciding matters that affect a prisoner’s interests,
I R.S.C. 1970, c. P-6.
2 R.S.C. 1970, c. P-2.
3[ 1976] I F.C. 570 (T.D.).
4 Martineau & Butters v. Matsqui Institution Inmate Disciplinary Board [ 1978 ] 1 S.C. R.
118 [hereinafter Martineau (No. 1)]; and Martineau v. Matsqui Institution Disciplinar’
Board [ 1980] I S.C. R. 602 [hereinafter Martineau (A’o. 2)].
5 E.g., Jackson, Justice Behind the Walls; A Stud, of the Disciplinary Process in a
Canadian Penitentiari (1974) 12 Osgood Hall L.J. 1.
6 See (1971-72) 1 Queen’s L.J. 127-310; (1977) 2-3 Queen’s L.J. 211-495.
7 S.C. 1960, c. 44, (R.S.C. 1970, App. III)
McGILL LAW JOURNAL
[Vol. 27
privileges, status, etc. In his introduction, which unfortunately lacks a table
of contents, Conroy concentrates on the third of these topics –
the Rule of
Law and remedies available to force adherence thereto. This discussion
affirms that prison-law cases are based largely on administrative law
principles.
residual
retain certain
The introduction begins with a consideration of the applicability of the
Rule of Law to prisons and prison officials. Conroy argues that prisoners are
not stripped of all civil and proprietary rights upon sentencing and thus that
they
rights, albeit rights circumscribed by
incarceration. Conroy heralds Martineau (No. 2) as conclusively holding
that a “prisoner continues to enjoy all of his rights and freedoms, save to the
extent that they are expressly or by necessary implication taken away by the
governing legislation”. 8 The Rule of Law comes into play in prison matters
to the extent that these residual rights are affected by administrative action.
Conroy then describes the legal regime applicable to prisoners as set out
in the Penitential’ Act, the Regulations made thereunder, the controversial
Commissioner’s Directives, and other rules and orders including divisional
staff instructions, standing and routine orders, and lawful orders –
the
latter being orders which every penitentiary officer is authorized to give. The
discussion of the Commissioner’s Directives should assist any lawyer seeking
to reargue the merits of Martineau (No. 1).
Conroy’s discussion of judicial remedies provides a mini-treatise on
administrative law in fifty pages. Much of what is said may be found in any
administrative law textbook, but the many references to cases provide an
opportunity to consider in detail the efficacy of the remedies available for
various problems such as transfer, parole, lack of procedural fairness, and
breach of the Canadian Bill of Rights. The remedies of the Federal Court
and the provincial remedy of habeas corpus are discussed, and the utility of
pressing criminal charges against penitentiary officials and possible defences
to charges arising out of penitentiary incidents are examined.
the recently-instituted
In his treatment of the recourses available for ensuring the lawful exercise
of delegated powers, Conroy praises
Inmate
Grievance Procedure. This praise seems premature and should be tempered
by considering the realities of the prisoner-jailer relationship. Over the years,
prisoners have complained that they expose themselves to harrassment by
guards and administrators by
informal
complaints. When marked as reputed troublemakers, there is a greater
likelihood that they will be transferred to higher security prisons, or
segregated by order of the institutional head. The courts have treated these
measures as administrative decisions within the absolute discretion of the
formal or even
instituting
8 Conroy, Canadian Prison Law (1980), vol. I, 7.
1981]
BOOK REVIEWS
authorized officials and hence not open to judicial review on procedural
grounds.
in prison
,The major question
law today is whether the broad
implications of Martineau (No. 2) will be pursued, leading the Canadian
judiciary to abandon its deferential attitude. The answer may well depend on
whether administrative decisions, such as those regarding transfer and
parole, are seen as causing “serious injustice”, as suggested by Pigeon J.,9 or
as affecting rights, interests, property, privilege or liberty, as suggested by
Dickson J. 10 in his concurring opinion. It might be argued that the criterion
of “serious injustice” would vary with the degree of empathy felt by a court
for the prisoner who is, for example, transferred arbitrarily from British
Columbia to Qu6bec. By contrast, the question whether “interests” or
“privileges” in the broad sense are affected involves a determination of fact
and not the weighing of justice and injustice.
Some recent cases show that the lower courts feel free to adopt either
standard. In Culhane v. A.- G. British Columbia & Harrison, I Taggart J.A.
of the British Columbia Court of Appeal applied the “serious injustice” test,
effectively expanding the ambit of Pigeon J.’s remarks to decisions taken by
an institutional head which affect the visiting privileges of the general public.
Given that Pigeon J.’s remark on the “serious injustice” test arose in
conjunction with a decision on internal prison discipline, its expansion by
Taggart J.A. is unwarranted ; this appraisal is supported by Lambert J.A.’s
dissenting judgment. 12
In Dubeau v. National Parole Board, 3 however, Smith D.J. quoted
extensively from Dickson J.’s judgment in Martineau (No. 2), and
characterized the condition of remaining at liberty on parole, as opposed to
having parole revoked, as “an ‘interest’ as well as a ‘privilege’ of the
applicant”.’ 4 He held that members of a parole board should not have
questioned a parolee about forthcoming criminal charges and that legal
representation should have been allowed at the hearing. An application for
certiorari was therefore granted and the decision to revoke parole quashed.
It appears that until the next authoritative pronouncement of the
Supreme Court on a prison matter, the duty of fairness will be amenable to at
least two different approaches. The prison lawyer, when presenting an
9 Supra note 4, 637.
10Supra, note 4, 618-9, 628.
“(1980) 108 D.L.R. (3d) 648 (B.C. C.A.).
I2 Ibid., 659.
13[ 1980] 6 W.W.R. 271 (F.C., T.D.).
14 Ibid., 284.
REVUE DE DROIT DE McGILL
[Vol. 27
argument regarding the duty of fairness, must assert that the decision being
challenged both affected interests and involved serious injustice. Canadian
Prison Law, with
thorough
compilation of statute and case law, provides the guidelines with which to
approach issues of this nature.
introduction and
its useful
theoretical
John N. Buchanan*
*LL.B., McGill University.
1981]
COMPTES RENDUS
In Defence of Fundamental Rights. By William E. Conklin. Germantown, Maryland:
Sijthoff & Noordhoff, 1979. Pp. xix, 307.
Professor Conklin wants to defend fundamental rights and he begins by
stating a fact. In Canada, Great Britain and the United States, unlike most
other countries, constitutional framers, legislators and jurists (who include
judges, lawyers and legal scholars) claim that fundamental rights do exist.
But in practice, the author contends, such rights are not consistently and
fully realized.’ The failure is not due to bad faith ; it lies in the use of defective
arguments. The problem therefore is to find a new type of argument that will
provide principled
rights. The author
contends that such an argument must have the character of “normative
political judgments” which are drawn from moral-political philosophy.2
That philosophy, so the author finds, provides principled consistency by
making one value supreme over all other values, and that supreme value is
“recognition respect” for the person. 3
interpretation of fundamental
The validity of the author’s thesis depends on three issues. Are the
traditional juristic arguments in fact defective ? Are their defects remedied by
the new type of argument of making “normative political judgments” ? Does
the supreme value of “recognition respect” really ensure the full and
consistent realization of fundamental rights ?
The critical analysis of the traditional juristic arguments in the first part
of the book is persuasive. The author divides such arguments into three
types. The first type, called “the backward-looking approach”, wrongly
limits its scope to history or precedents and thus neglects emergent
fundamental rights such as political participation and religious conscience. 4
The second type relates to contemporary values of society and takes three
forms. Arguments based on “shocking the conscience” depend on whose
conscience is shocked and are thus highly subjective, culturally ad hoc and
insensitive to minority groups. 5 Arguments based on the “majority will” are
unworkable in determining who is the majority and logically contradictory
of the very idea of fundamental rights as protective of minority rights. 6 And
arguments based on the “supremacy of the legislature” suffer all the defects
of the “majority will” arguments while lacking their commitment to
democratic political participation.7 Arguments based on an “entrenched Bill
of Rights” are a third type; while they overcome most defects of the other
I W. Conklin, In Defence of Fundamental Rights (1979), 1-2.
2 Ibid., 116, 125.
3 Ibid., 196 et seq.
4 Ibid., 23 et seq.
5Ibid., 61-3.
6 Ibid., 66-70.
7 Ibid., 75-85.
McGILL LAW JOURNAL
[Vol. 27
types, they remain crucially deficient in two respects. They fail to provide
criteria for determining in principled fashion the identity, scope and meaning
of fundamental rights, and a standard of judicial scrutiny appropriate to
their existence or realization. 8
These defects can seemingly be remedied by “normative political
judgments” provided such judgments are given logical unity by a supreme
value which overrides all contradictions. In practice, this means that political
majorities must give up their interests when they conflict with the supreme
value. Political majorities might do that if they had the exclusive right to
interpret fundamental values, but Professor Conklin appears to agree with
the tradition that no one should judge his own case and that the effective
implementation of fundamental rights depends on an independent judiciary.
The problem therefore is whether one value can be philosophically seen by
everyone, particularly legislators and judges, as so clearly superior to all
other values that arguments based on it for denying power to political
majorities are sure to convince even those majorities.
It would not be fair to say that Professor Conklin has done no more than
add another “top value” to the list of fifteen compiled by Arnold Brecht in
1959. 9 For the author presents an interesting analysis of the ideas of Jeremy
Bentham, J.S. Mill, T.H. Green, Isaiah Berlin and John Rawls, especially
Mills’ theory of “self-regarding conduct” and Rawls’ concept of “self-
respect”. Conklin distinguishes between two types of respect. The traditional
concept he calls “appraisal respect for a person”, and he rejects it as ad hoc
because it is dependent on variable judgments of ability, worth, merit
or achievement which are temporary and unequal values. In contrast,
“recognition respect” for the person as “an open-ended potentiality always
in the process of becoming” yields rights which are truly fundamental and
permanent. Such rights are rooted in an individual’s membership in the
human species and are essential to the fulfillment of human nature as we
have conceived of it. 10
But it is fair to ask whether it is sufficient merely to establish a
“philosophic perspective”, even though that perspective may “consistently
support the existence of fundamental rights in general and the absolute
inviolability of the inner sphere of life in particular”.”I A value or perspective
cannot be supreme unless it invalidates all other values or perspectives, and
without a supreme value “normative political judgments” cannot have the
unity needed for fully realizing fundamental rights. But what makes
“recognition respect” so fundamental that it is entitled always to override
8lbid., 96-7, 103-5.
9A. Brecht, Political Theory’ (1959), 303-4.
10Supra, note 1, 196-200, 209-11.
” Ibid., 211.
1981]
BOOK REVIEWS
justice, liberty, equality, nationalism, humanism and even the personal
security an individual needs before he can enjoy “recognition respect”?
What principle or type of argument is relevant to proving that one value or
perspective
is more fundamental than another value or perspective?
Professor Conklin explicitly states at the outset of his book that he is not
going to consider the key problem of fundamental rights, i.e., “why
fundamental rights ought to be valued over other goods such as, say, virtue
or happiness”.’ 2 But, in result, his analysis only leads him back to the
problem he has disavowed. He implicity concludes that fundamental rights
are preferable to other values or goods because they are consistent with that
value which is superior to all other values, namely, “recognition respect”
without which one is denied his humanity. But why is only the value of
“recognition respect” rooted in an individual’s membership in the human
species and not also any of the fifteen values listed by Brecht ? The author
fails to address this critical question.
In discussing homosexual activity, obscenity, racial discrimination,
contracts into slavery, suicide, the wearing of motorcycle helmets and
seat belts, and the involuntary detention of mental patients, Professor
Conklin makes a good case that “recognition respect” usually carries great
weight for arriving at judgments concerning fundamental rights. But his
claim goes further than this. It is that “recognition respect” is itself the
standard for determining its weight against competing values. That he has
not made good his claim may be seen in the following three cases.
Surely the right to speak the only language one knows is fundamental to
membership in the human species. But Professor Conklin states that
“language rights are not owed to each person as a member of the human
species”. 13 Such rights are only owed depending on social circumstances. In
Canada such circumstances create the constitutional obligation to protect the
right to speak French in a variety of institutional settings, 14 while in other
societies, “recognition respect” may not require any constititional protection
for minority languages. This is a baffling conclusion. It makes sense only if
there is some higher value or principle which justifies sacrificing “recognition
respect” depending on contingent circumstances. For surely if a person
speaks only French, or Cree, or German, to insist that he speak the language
of the majority in order to live, work and exercise his legal and political rights
is to disrespect him as a person. “Recognition respect” for the person, if it is a
supreme value, should not depend on numbers, political power, national
origin or any other contingent circumstance. And thus, as a supreme value, it
12 Ibid., 2.
13 Ibid., 225.
14 Ibid., 225-6.
REVUE DE DROIT DE McGILL
[Vol. 27
must be invoked, contrary to what Mr Justice O.W. Holmes believed, 15 to
deny the state the power to require its citizens to learn to speak a common
language for the sake of the unity of the nation. But perhaps this is carrying a
supreme value too far.
The second case relates to immigration. If “recognition respect” is rooted
in membership in the human species, then it follows that denying anyone the
right to enter Canada to live honestly and productively disrespects that
person. Professor Conklin does not appear to consider this case at all, even
though immigration is frequently a matter for litigation in Canada on the
basis of fundamental rights. Could it be that “recognition respect” is really
rooted not in the human species but in cultural groups, and that respect for
members within each such group ultimately depends on treating outsiders as
not having any fundamental rights? This is surely a problem that merits
serious attention in any defence of fundamental rights as permanent and
universal.
The third case is abortion. It would follow from “recognition respect” for
the person that both the mother and the foetus should be equally respected.
This is particularly so since Professor Conklin defines the person as “an
open-ended potentiality always in the process of becoming” which clearly
appears to include the foetus. Again, “recognition respect” fails as a supreme
value. Not only does it have to be balanced against competing values which
at some point can hold their own, but it has to be balanced against itself.
Who is more entitled to “recognition respect” –
the mother or the foetus ?
It may be that the value of “recognition respect” as one of several values
which must be balanced in the process of determining fundamental rights
depends precisely on how it is used to resolve the abortion problem. Yet the
author appears to say nothing on the issue.
While the author has not convincingly shown that jurists can solve hard
cases by becoming moral philosophers, his effort is useful and stimulating.
He has made a good case that “recognition respect” is an important value
and that critical awareness of its weight is relevant for determining issues of
the meaning and scope of fundamental rights. But what its weight ought to
be in concrete cases depends on a calculation more complex than simply
postulating the duty of consistency with a supreme value.
Eugene E. Dais*
15 Bartels v. Iowa 262 U.S. 404 (1922). Holmes J., in dissent, would have upheld the
constitutional validity of a state law punishing private school teachers who taught young
students in the German language only.
* Professor, Faculty of Law, University of Calgary.
