BOOK REVIEWS
CANADIAN JURISPRUDENCE
Edited by Edward McWhinney
University of Toronto Faculty of Comparative Law Series, Volume 4.
THE CARSWELL COMPANY LimITED, TORONTO 1958, Pp. xvi, 393.
This work is the most recent volume in the Comparative Law Series of
the University of Toronto Faculty of Law. Unlike the preceding three volumes,
however, it is concerned essentially with a comparative study of law within
Canada. Having as its object the “stimulation of legal curiosity, and the
promotion of a broader culture in this country of law generally and the two
systems within our federalism in particular”, this volume constitutes not only
a valuable addition to the Series but also a worthwhile asset to any legal
library. It attempts to present, for the first time, a survey of the two legal
systems within Canada amidst a background of the ethnic-cultural traditions
out of which they arose. While the scope of the survey is limited necessarily,
by its presentation in one volume, those areas which are covered are done
so with a high degree of scholarship and perception.
The book is composed of fifteen essays written by prominent legal practi-
tioners and professors of law in the common law and civil law jurisdictions
of Canada. In addition to presenting essays of a comparative law nature, there
are three articles of a more national character. These are a discussion of
criminal law in Canada by Robert S. Mackay, a brief outline of procedure
and judicial administration in Canada by David Kilgour, and a review of
international law and Canadian practice by Maxwell Cohen.
While the essays are essentially concerned with legal issues, they necessarily
go beyond this. For, as Mr. Justice Rand observes in the foreword, “the study
of different systems of law involves not only an acquaintance with positive rules
but, equally important, an understanding insight into the mores of the people,
the life out of which they have grown; the social organism, the traditional
forms of conduct, the philosophies and ideologies, all in a blind way, affected
by deep assumptions of the sub-conscious.” -Consider, for example, the social
implications which could arise from the subject matter of Louis-Phillippe
Pigeon’s essay on “French Canada’s Attitude to the Canadian Constitution.”
Expressing what he believes to be the majority view of the French Canadian
population, Me. Pigeon states that an ethnic group, when uniting in a federation
such as Canada’s, must necessarily relinquish certain powers to a central
government; but such a group usually desires an authority of its own; the
is the demand for provincial autonomy. The main
necessary consequence
McGILL LAW JOURNAL
[Vol. 5
difference between the viewpoints of English Canadians and French Canadians
is that the former group acquiesces to a considerably centralized government
while the latter demands the opposite. He then proceeds to look at the actual
interpretation of the British North America Act by the Privy Council and
the Supreme Court of Canada. Consider also the social aspects possible in
an essay like “Legal Theory and Philosophy of Law in Canada” by Edward
McWhinney. Here some of the problems surrounding the development of a
insight, Prof.
truly Canadian
McWhinney considers not only significant decisions of the Privy Council and
the Supreme Court of Canada but also the climate of legal education and the
judicial process in general.
jurisprudence are discussed. With keen
It should not be thought that this is a book devoted entirely to the social
and philosophical problems of law, however. The essays consider basic legal
principles of the common law and the civil law, not merely the underlying
philosophies. “The Devolution of Estates under the Quebec Civil Code” by
Eugene Rivard is a concise statement of Quebec law without philosophical
undertones. In a similar category is the essay by Wilbur F. B owker on the
common law of ‘succession to property.
In addition to those articles already mentioned, the book includes equally
fine contributions in the fields of contract, tort, and property.
This is a study of two systems of law. There are many difficulties present
in such a project. And, as the book notes at the beginning, it has not been
able to solve all of them. When many people are called upon to provide essays
so that both systems are equally represented it is inevitable that some contribu-
tions will not be ready in time for publication. Thus, certain gaps will occur
with the result that both sides of the law in a certain area are not presented.
Also, when different authors approach the same subject they do so in a
different manner, lessening to a certain extent the value of the comparison.
It is to the credit of those associated with this book that these faults have
been kept to a minimum. Besides presenting an excellent group of essays this
volume is also to be recommended for the inclusion of both French and English
contributions. Reading articles in both languages certainly does convey to the
reader the fact that this is a work on comparative law, not only in fact but
in spirit.
COf t V. ALLEN*
*Of the Board of Editors; third-year Law Student.
No. 4]
BOOK REVIEWS
SUPPLEMENT AU NOUVEAU CODE CRIMINEL ANNOTE
Irin~e Lagarde, J.S.P.,
WILSON & LAFLEUR, MONTREAL, 1958, PP_ 356.
In the preface to his Nouveau code crintnel annot4 Judge Irin~e Lagarde,
who is also professor of law at the University of Montreal, explained that it
was his aim “… de fournir un outil de travail a la fois rapide et complet.”
The success which this work has enjoyed since it was published two years
ago is ample proof that Judge Lagarde has succeeded in his task, although
it must be a matter of regret that more students and practitioners, particularly
in the common law provinces, are not able to use the Code to full advantage
owing to limitations of language. To this, however, it should be added that
. de ‘latiniser’ l’tude d’un droit typiquement
Judge Lagarde’s attempt “. .
anglo-saxon” may leave some common lawyers in that state of temporary
bewilderment which a civillian is likely to encounter when he looks at his
first case book. But this does not in any way detract from the value of the
new Code and, indeed, there will be many who will welcome this change as
a refreshing innovation.
almost a quarter of the original work –
Judge Lagarde has now published a supplement to his Code and it shows
the same scholarly, yet practical approach to the problems of criminal law.
It is a big volume –
and it covers
not only those cases which were reported (and some which were not) since
1957, but it also adds to the original annotations. The Supplement is, therefore,
an indispensable companion to the original Code, rather than just an up-dater.
If there is one thing which has struck this reviewer in reading this work,
it is evidence of the ever-growing divergence between the English juris-
prudence and our own. This is not to suggest, of course, that decisions of
the English courts are no longer entitled to respect, but one must underline
the inherent danger of paying indiscriminate attention to the law of England;
be it
neither system of law has been static, and with every amendment –
to the Canadian Code or to the English law –
the provisions grow further apart.
Perhaps the best example can be found in the case of murder. Most Canadian
practitioners will recall the confusion which existed for some years with
respect to “accidental” killing in the course of a crime, and one need but cite
the two leading (and contradictory) judgments of Canadian court of appeal:
R. v. Elnick,’ a Manitoba case which held that such an act amounts to murder,
and R. v. Hughes,2 a British Columbia judgment, which ruled that it does not.
1(1920), 33 C.C.C. 174.
2(1942), 78 C.C.C. 1.
McGILL LAW JOURNAL
[Vol. 5
The law of Canada was subsequently changed3 and, quite recently, the
English law on homicide underwent even more radical surgery. 4 One may
therefore question the wisdom of devoting a great deal of space to cases, both
English and Canadian, which are no longer good authority. This is one of
the major faults of the new Crankshaw, and it is refreshing to see that Judge
Lagarde does not fall into the same error. Indeed, he takes the bull by the
horns and states clearly that, in view of the amendment, the Hughes case has
is followed
become inoperative. And, in the Supplement, this observation
by a detailed discussion of Cathro v. the Queen,5 which has now become one
of the leading cases on the subject.
There are a good many other instances where the same might be said, among
them the sections dealing with confessions, mischief, lotteries and the like.
In short, wherever the law of Canada -has departed in some material particular
from the law of England, caution is needed and, if an annotated code is to
then it should be the
provide quick answers (insofar as that is possible),
editor’s task to make this possible.
Since the coming into force of the new criminal code in 1955, we have seen
at least five annotated volumes. There is, of course, Snow’s Criminal Code of
Canada, an indispensable little volume which should be every barrister’s
there have been two supple-
constant companion. Martin’s Criminal Code –
is a good code and it is particularly useful
ments since the original work –
in comparing the new law with the old. But one cannot help but feel that,
as we grow out of the transitional period, this volume will lose some of
its usefulness despite the yearly supplement. This reviewer’s opinion of the
Kingsland code has already been published elsewhere. 6 More recently, there is
the new Cranksbaw, and we are told that a new Tremeear is also under
preparation.
Yet, despite
this apparent embarrassment of riches,
the choice is not
really great, and Lagarde is among the best.
FRED KAUFMAN*
$Stat. Can. 1947, c. 55, s. 7.
4The Homicide Act, 1957.
5(1956), 113 C.C.C. 225, 22 C.R. 231.
635 Can. Bar Rev. 581.
*Of The Montreal Bar.
