McGILL LAW JOURNAL
Volume 17
Montreal
1971
Number 1
Law for the Seventies: A Manifesto for Law Reform *
Honourable John N. Turner **
It has been said that the greatest achievement of the Sixties
is that we survived them. Things that were thought impossible not
only happened but have been already forgotten. A decade which
dawned with such hope, which spawned such expectation, and which
had been heralded as the Age of Achievement, culminated in the
Age of Confrontation.
Assassination became a fact of political life. President Kennedy
proclaimed “that the torch has been passed to a new generation of
Americans”; but some of that flame died with him. Martin Luther
King had a bold vision for black and white together; but some of
that dream died with him. Robert Kennedy held forth a promise
of a newYer world; but some of that promise died with him. Tom
Mboya was charting a new hope for Africans; but some of that
hope died with him.
The full impact of these assassinations is yet to be appreciated.
The shock waves are still reverberating internationally. But it is
clear that those most cruelly disinherited or orphaned were the
young. The politics of hope became the politics of despair. The
promise of values became the crisis in values.
It is not surprising, then, that some have even called the Sixties
the Age of the Apocalypse. Nations stockpiled weapons in the name
of peace. Political leaders yawned the rhetoric of brotherhood while
waging war. Governments destroyed cities in order to save them.
* This address was delivered as the Inaugural Lecture in the George M.
Duck Lecture Series at the University of Windsor in 1970. This address is
printed here with the hope that the points discussed therein will suggest to
our readers, much more effectively and successfully than an editorial could
have, the directions which legal thought and action should be taking at present
and in the immediate future.
** Minister of Justice and Attorney-General of Canada.
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[Vol. 17
Economies accumulated wealth and distributed poverty. Technology
controlled man rather than released him. Corporate bureaucracies
denied individuality while proclaiming it. The gross national product
became Marcuse’s One Dimensional Man.
And so the paradigm model for the relationship between man
and society became the conflict between freedom and authority.
Freud referred to this once as the major “discontent” of civilization.
Indeed, authority and freedom seem now to be on a collision course
everywhere. This conflict has become the brooding concern of the
political commonweal. The law is caught in the crunch. For, on the
one hand, the law represents itself as the symbol of authority. On
the other hand, it holds out the promise of freedom. And so this
discontent, haunting our civilization, disturbs the roots of the law.
We are witnessing today what has been called a “crisis of
legitimacy”, or as some would have it, a “crisis of authority”. All
our institutions –
the state, the university, the family, and, of
particular concern to us tonight, the law –
are being challenged.
The challenge reaches not only the laws but those who make the
laws. It strikes at the very legitimacy of the legal order itself. In
a revolutionary climate, the law is considered the antithesis of
revolution. In a mood of alienation, the law is regarded as a false
consciousness. In an impatient world, the law is perceived as the
curator of reaction.
I believe, however, that the law is still relevant –
and can be
made more relevant in contemporary terms; that authority and
freedom are not contradictory but complementary; that they need
not be opposed but juxtaposed; that law is not the enemy of
revolution, but that “revolution” can be made possible through
law. Indeed, in an age of confrontation our social problems become
our legal problems. The problems of the Sixties are now the legal
challenges of the Seventies. Society itself has become the lawyer’s
client, and society will hold the law to account.
I – Objectives for the Seventies:
The faith that must move us, then, is the creative and even
revolutionary role that law can play in the building and restructur-
ing of a new society. For law is not just a “technical body of rules”;
it is the organizing principle for the reconfiguration of society. Law
is not just an agency of social control; it articulates the values by
which men seek to live. The business of government, then, is the
making of laws, and the process of law reform goes to the core
of defining the kind of society we will have as a Canadian people
and the kinds of rights which we will enjoy as individuals.
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Here is the philosophic thrust and conceptual framework which
I shall try to apply to what I understand to be the challenges and
opportunities for the Seventies. As I see it, our objectives at the
federal source of law must be four-fold:
1) The Administrative Process –
The Individual and the State
First, we must redress the imbalance in the relationship between
the individual and the state. The bigness and remoteness of govern-
ment must not be allowed further to obscure or dwarf individual
rights.
This is the rationale of the present Expropriation Bill now before
Parliament. The Bill strikes a blow for individual rights against
the arbitrariness of state power. It declares that the Canadian
citizen will have the right to participate in the process by which
he has been too often victimized. It provides that the expropriating
authority must be a legal adversary rather than a clandestine
arbiter. The Bill, with its guarantees of prior notice, of right to
hearing, negotiation, appeal and fair compensation, enhances the
scope of the individual. It is a citizen’s bill.
But the administrative process still remains largely an unexplor-
ed labyrinth. We are concerned, for example, about the difficulty
of challenging regulations that may well have gone beyond stat-
utory limits or the scrutiny of Parliament; and we are concerned
with controlling the breadth of the enabling powers that authorize
these regulations.
We are concerned as well about the judicial powers exercised
by administrative tribunals. We have introduced a Federal Court
Bill to broaden the scope of judicial review of these powers by
the courts, while making federal tribunals, boards and commissions
more responsive to citizen’s rights. This Bill is the beginning –
and only the beginning –
of the “civilizing” of the administrative
process in the service of the individual. We will have to inquire
into the complete workings of the public administrative law process,
including the organization, administration, operation and procedure
of these federal tribunals, boards and commissions. Also, we will
have to probe the vast area of administrative discretion, or “discre-
tionary justice” as Professor Kenneth Culp Davis has called it –
that amorphous minefield of administrative decision-making which
falls neither under the head of regulation-making nor within the
scope of judicial review.
The federal Department of Justice will continue to define and
create new remedies and new processes of review for the average
Canadian against the state.
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2) Towards a Humanistic Criminal Law
Secondly, Canada needs a more contemporary criminal law –
credible, enforceable, flexible and compassionate. If we are to have
a just society, we must begin with just laws; and nowhere is this
more important than in the realm of criminal law; for it is here
that the most fundamental values of life, liberty, property and
dignity are to be protected and sanctioned, and it is here that the
measure of our commitment to these values will be tested.
It is with this in mind that the Department of Justice will be
submitting legislation in the form of a Right to Privacy Bill (to be
part of the Criminal Code) to restrict electronic eavesdropping and
wiretapping. The right to privacy, as Louis Brandeis once observed,
is the most comprehensive of all the human freedoms, and the right
most valued by civilized men.
We intend to introduce a Bail Reform Bill (also to be part of
the Criminal Code) which will eliminate the criterion of money as
the prerequisite for release. The practical result of the present
system is that persons with money, or access to money, are often
able to obtain release on bail, while poor people, who often cannot
even meet the bondsman’s fee, remain incarcerated. Empirical
studies have demonstrated that persons released on bail are less
likely to be convicted, and if convicted, are more likely to receive
shorter or suspended sentences than are those who are preventively
detained.
The Criminal Code amendments last year were predicated on
the principle that private morality is the concern of the individual
and not the province of a country’s criminal law. Not everything
that is immoral will be made illegal, just as not everything that
is illegal is immoral. The circles may at times intersect, but they
need not inevitably be entwined.
We must also recognize that the criminal law sanction is the
paradigm case of the controlled use of power in society. As Professor
Herbert Packer of the Stanford Law School has remarked, it is
both uniquely coercive as well as uniquely hazardous. There are
limits to the use of the criminal sanction.
Accordingly, if we are to have any appreciation of the impact
on society of the criminal law and the administration of criminal
justice, we must begin by disabusing ourselves of some of the time-
wora mythology that has served as a kind of self-protective mech-
anism for the perpetuation of the myths themselves:
(i) We must disabuse ourselves of the myth that the criminal
law process can be understood within the contours of the
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LAW FOR THE SEVENTIES
adversary system; for the criminal law process can only be
understood by threading its impact from the initial phase of
the “low visibility” discretionary decisions to invoke the
criminal law process to the final disposition at time of sen-
tencing.
(ii) We must disabuse ourselves of the myth that there is indeed
an adversary system of criminal justice at all; for the criminal
justice system is more administrative than adversarial; and
at times more non-system than system.
(iii) We must disabuse ourselves of the myth that the criminal law
sanction falls with equal impact on all segments of society.
Indeed, it may well be –
as some studies have pointed out –
that our laws, such as vagrancy and public drunkenness –
and our courts that administer them – have made it virtually
a crime to be poor in public. And so it is that the condition
of poverty may become the rationale for criminalization.
(iv) As a corollary, it may well be necessary for us to begin to
question our self-appointed role as “moral entrepreneurs” of
criminality, particularly where the decision to criminalize may
be one of aesthetics –
rather than actual criminality.
i.e., “the unattractive public poor” –
(v) Finally, it may well be that our decision-making about the
orbit and impact of the criminal sanction is predicated on
certain assumptions about man and the social order which
may not be demonstrable empirically or even valid scien-
tifically.
3) Law and Poverty: Justice for the Poor
Third, we must promote equality of access and equality of
treatment before the law for rich and poor, young and old, alike.
The adversary process before the courts must become a more
meaningful, and less of a mythical, operation, particularly as it
relates to the young, the dispossessed, the disenchanted, and the
urban poor.
Few problems are more menacing than the presence of pervasive,
life-long, grinding poverty. That we should have poverty in Canada
is, as the Economic Council has reported, a disgrace. You don’t
have to tell the poor what poverty is; they know. They feel –
very painfully –
the sense of hopelessness and helplessness. They
understand the deprivation of denial. They know what it is like to
live in decrepit housing, to have the cracked pavements of the
streets as their only parks, and to share their space with rodents
McGILL LAW JOURNAL
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the only wildlife they see. The poor know what it means to
–
live lives blighted by poor health, broken families, interrupted
schooling, and frequent joblessness. They know what it means to
be prey to debt, despair, dependence and crime.
And it is the poor who suffer most from society masked in
the trappings of the law. For it is they who are victimized when
urban renewal arbitrarily disrupts a neighbourhood; it is the poor
who are hurt when creditors garnishee wages or repossess furniture;
it is the poor who are deprived when welfare agencies deny, reduce
or terminate welfare benefits on vague, unarticulated or clearly
illegal grounds; it is the poor who are penalized when Draconian
clauses permit landlords to withhold repairs or capriciously evict
them into the street; it is the poor who are hit by bail procedures
linked to financial means; it is the poor whose privacy is invaded
and whose dignity is denied.
The poor do not use lawyers. They are often thought of as
having no need of lawyers. Too many of us think of lawyers as
counsellors to corporations, drafters of estate plans or wills, advisors
on creditors’ rights. But if the poor are rarely plaintiffs they are
often defendants. They are bewildered and bemused by legalities
they face daily as parents, consumers, tenants, recipients of public
assistance and accused offenders. Too often the poor see the law
not as a friend but as an enemy, not as an aid but as an adversary,
not as a remedy but as an obstacle.
Justice in a society such as ours, a society marked by wide
differences in wealth and power, demands a legal system that
compensates for these differences. The law is above all a means of
creating and protecting rights. What is so necessary is an enlarged
conception of the rights of the poor and a changing conception
of the role of law in establishing, protecting and implementing
these rights. We must disabuse ourselves of the myth that poverty
is somehow caused by the poor. We must recognize that the law
itself often contributes to poverty. We must understand that, where-
as the law for most of us is a source of rights, for the poor the
law appears always to be taking something away. That we have
to change.
And in this connection, I have been exploring for some time
now the availability of the right to counsel and the alternative
mechanisms for guaranteeing it in our law. As you know, one of
the proposals has been to entrench it in a constitutional Charter
of Human Rights. It is clear to me that the fundamental principle
of due process must somehow be recognized in our law and before
our courts. Those of us who have been given the temporary custody
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LAW FOR THE SEVENTIES
of our laws by the people must ensure that those laws and our
courts treat all equally –
rich and poor alike.
4) Technology and Environment: Ecology and the Law
We will have to harness technology in the service of the law
rather than leave law at the mercy of technology. It will be necessary,
then, to explore initiatives in the whole area of environmental
control and probe the questions of interactive dynamics between
science, technology and the law. For while technology races, the
law lags; and once again the scientists are beating the lawyers.
Pollution is a good example of this. Rachel Carson’s “Fable for
Tomorrow” in The Silent Spring has now become today’s painful
reality. The Fifth Horseman of the Apocalypse –
is
riding towards us. We are choking our environment and being
choked in return.
pollution –
Water, as you know, is our greatest national resource; yet one
hundred yards from the House of Commons the Ottawa River –
one of the largest in the world –
is dying. The Quebec Water
Board has described this stretch of the river from the Rideau
Rapids near Ottawa to Lake of Two Mountains fifty miles down-
stream as “nothing but a vast bubbling swamp”. A few years ago
–
nobody was paying close enough attention to know exactly
when – Lake Erie died. Acidic wastes have strained its water of
virtually every form of life except a mutant of the carp that has
adjusted to living off poison.
Clean air is a precious, indispensable, life-giving nutriment;
but it has all but disappeared. Recent air pollution readings in
our major cities have approached critical health hazard. Scientists
at the “Atmospheric Sciences Research Centre” in Scotia, New
York, have predicted that in ten to fifteen years from now every
man, woman and child in the Northern Hemisphere will have to
wear a breathing helmet to survive outdoors. Streets for the most
part will be deserted, and most animals and plant life already dead.
Unspoiled land ought to abound in Canada; but it is becoming
an increasingly rare resource; and land, unlike air or water, has
no “antibodies” to dillute pollutants. Soil once polluted stays
polluted. Canadian women will carry in their breasts –
and may
already be carrying – milk that has anywhere from three to ten
times more of the pesticide DDT than the government allows in
dairy milk meant for human consumption.
The threshold of noise safety is 85 decibels. Yet the level is
regularly exceeded in all major cities in Canada. Nor is deafness
McGILL LAW JOURNAL
[Vol. 17
the only danger. Empirical studies have already shown noise to
cause physiological changes of a cardiovascular, glandular and
respiratory nature.
There are few among us who have not been exposed to noxious
doses of chemicals, wastes, fumes, noise, sewage and heat. In the
words of Tom Lehrer:
“Just go out for a breath of air,
And you will be ready for medicare.
Fish gotta swim and birds gotta fly,
But they won’t last long if they try.
Pollution! Pollution! You can use the latest toothpaste,
And then rinse your mouth with industrial waste.”
Pollution, then, haunts us everywhere; and suddenly in this
cause-conscious world everyone is against pollution. But as Mark
Twain used to complain, everyone talked about the weather but
nobody did anything about it; and so it is with pollution. Rhetoric
is a blind alley. Indeed, we could do without a smog of words.
And there is where the law comes in. For if the War on Pollution
is to be won –
a com-
prehensive national and international legal regime will have to be
developed and applied. For what is needed is a hybrid “prevention-
control” strategy. It would reflect the following imperatives:
(a) We must create new regulatory institutions with alternative
i.e., penal, taxing, injunctive, etc. The
indeed, if it is to be fought at all –
regulatory controls,
Canada Water Bill is but a beginning.
(b) We must deal with vested economic and community interests
and the pressures they generate.
(c) We may have to re-analyze the legal notion of the right of a
person to use his own property as he sees fit.
(d) We must translate our strategy for the War On Pollution into
recognition of the individual and collective rights of ordinary
citizens to a clean environment. These rights should be made
actionable against polluters before the courts.
(e) We must co-operate in developing an international legal regime
to deal with pollution on a global scale.
Also, if the War on Pollution is to be won, we must abandon
our “vandal ideology” which has permitted us to ravage our
environment:
(a) We must recognize that man is not the source of all value.
(b) We must recognize that the universe does not exist for ex-
ploitation solely by man.
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LAW FOR THE SEVENTIES
(c) We must recognize that finite earth does not have infinite
resources.
(d) We must recognize that we cannot always remake the natural
environment to suit a special interest.
(e) Man must realize that his actions on the environment result
in ecological reactions. He cannot punish the environment
without being punished in return.
Ecology is the relationship between man and his environment;
and law is the ordering of the relationships between man and his
environment –
the organizing principle of society. Pollution, then,
is not only a problem of ecology; it is a problem for the law.
Environment cannot only be the concern of ecologists; it must
be the concern of lawyers and legislators and of ordinary citizens
everywhere.
Give earth a chance. If we do, we may find that the environment
will give us a chance.
II -Implementation of Objectives:
1) National Law Reform Commission
It is somewhat commonplace to say that legislatures are con-
tinually engaged in law reform; indeed, the very business of govern-
ment is the making of laws. However, such law-making tends to
be organized around reports of Parliamentary Committees, Task
Forces or Royal Commission reports, and Bills which have come
forward as a result of work in government departments. What is
needed, however, is an institution uniquely dedicated to the process
of law reform. In the words of Judge Cardozo, one of the early
prime movers for the creation of a law reform commission in
the United States:
“The inn that shelters for the night is not the journey’s end. The law,
like the traveller, must be ready for the morrow. It must have the
principle of growth.”
Accordingly, with this in mind, we have introduced a Bill
establishing a federal Law Reform Commission, to give us a con-
tinuous, rather than episodic, review and reform of the law and
the administration of justice in our country. This review will
embrace the removal of anachronisms and anomalies in the law;
relate and reconcile in our federal statutes the distinctive concepts
and institutions of our civil and common law systems; eliminate
obsolete laws; and develop and explore new approaches to, and
new concepts of, the law to keep it alive and moving in a changing
society. The law must never stand still again.
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2) Research Planning Section in the Department of Justice:
The creation of a Law Reform Commission for Canada in no way
implies that the Department of Justice is abdicating its role in
legal reform. There are changes that cannot await the critical and
reasoned judgments of a Law Reform Commission. The federal
Department of Justice has recently established a Research Planning
Section. This section will serve as an investigative mechanism
for short and long-run planning to ensure that the necessary data
is gathered for the development of new legislation and the appraisal
of present legislation. Hopefully, too, it will allow the Department
of Justice to function more from the “justice” side as well as from
the law enforcement or “attorney general” side. We want to act
as counsel to the people, not just as lawyer to the Government.
Conclusion:
This, then, is our manifesto for the law as we enter the Seventies.
This is the nature of the advocacy we shall attempt to exercise to
meet the challenges of the decade ahead.
For we are witnessing what has been described as a “new
relationships between
that have meaning in
search for human values and relationships –
man, and between men and government –
the technological and psychological context of our age”.
“What this search and the accompanying changes demand is
not a law and order that freezes man into predetermined patterns,
but a law and order of change, of movement, of options. Yesterday’s
order, if it is unresponsive, becomes tomorrow’s oppression.” We
want a law in motion –
a law that will never stand still again.
