THE McGILL
LAW JOURNAL
VOLUME 3
AUTUMN 1956
NUMBE
1
REMINISCENCES FROM THE SUPREME COURT
OF CANADA
The Right Honourable Thibaudeau Rinfre
After my’thirty years on the Bench of the Supreme Court of Canada, I
have been struck by the tendency of those who speak of that Court to signalize
the differences between the two systems of law which the Court is called upon
to apply rather than to emphasize their similarities. To my mind, the latter
are much more striking.
‘On a not too remote visit to Australia, where I attended a congress which
brought together Jurists representing all countries of the British Common-
wealth, I was asked continually how the Supreme Court of Canada could
succeed in having to hear and decide appeals now under the Common Law
and then under the Civil Law – to which should be added what they supposed
to be a further difficulty that, while most of the appeals were, of course,
argued in the English language, some of them were presented in the French
language and, in those cases, the greater part of the Record and the Factums
was in the French language. I kept on trying to convince them that this
offered no handicap. In such a task I was helped by the Chief Justice of South
Africa, where a similar situation occurs, except that there the French language
is replaced by the Dutch language, and the French Civil law by the Roman
Dutch law.
Moreover, I pointed out to the Australians that, in the Judicial Com-
mittee of the Privy Council, the difficulties, if any, would seem to be much
greater, because their Lordships are called upon to interpret the laws of
countries spread over the entire world. Why, since I have had the honour
and the privilege of taking my place as a member of that august body, I
have been sitting on appeals coming from British Guiana and Bermuda, from
Malta and Ceylon, from Nigeria and East Africa, Singapore, Hong-Kong
and even Sarawak and, in each case, the decision was reached immediately
after the close of the arguments.
*The Right Honourable Thibaudeau Rinfret, P.C., Former Chief Justice of Canada.
McGILL LAW JOURNAL
[Vol. 3
.7otwithstanding
these examples and my earnest endeavour, during the
five weeks that i spent in Australia, I left feeling sure that I had not suc-
ceeded in convincing them. I still had a suspicion that our sister nation re-
mained under the impression that such an obligation constituted an inherent
source of weakness in our Court of last resort.
I do not feel that it is.
May I say sincerely that, to my mind, it is an element of strength. The
constant practice of delving into comparative law is apt to buttress one’s
knowledge of the fundamental principles of Justice as it has been envisaged
throughout the ages by the wisdom of the different countries of the world.
The solutions brought by them to the problems of human relationship illum-
inate and clarify the rules whereby it must be governed. And I say that
advisedly. Perhaps to one who has not had access to the conferences of the
Court, it might be hard to realize the unique service rendered, in the courae
of the discussions, by the Judges raised in one or the other system of law
endeavoring to secure from their brother Judges explanations on the meaniug
and purport of some articles of the Quebec Civil Code or, likewise, of som
precedents under the Common Law. When one has been accustomed to a
particular aspect of his Law, he is most apt to take for granted a particular
interpretation, which, very often he has ceased to take the trouble of analyz-
ing. But if he is asked to give some explanations for it, then he is compelled
to go deeper into the reason for his interpretation; and one cannot begin to
appreciate to what extent and how much more thorough becomes his grasp
of the intention of the legislator.
No one, I would think, could speak with more authority than my great
predecessor, the late Sir Lyman IDuff, who enjoyed the longest career in the
Supreme Court of Canada. At the annual dinner of the Ontario Bar. Associa-
tion, on the 22nd May 1925, he expressed himself as follows:
“Our experience has shown that there is no impassable chasm separating practitionrs
in these two systems. Counsel disciplined in the common law find themselves at home
in causes in which the principles of the civil law are to be applied . . . (In the
Supreme Court of Canada) judges trained in the common law sit together with
those trained in the civil law and these judges deliver judgment indifferently, now
in common law appeals, and now in civil appeals. Lawyers of this country are coming
to think in terms not of the civil law only or of the common law only, but in
terms as well of the broader principles upon which both structures are reared”.
Indeed, one may ask whether the original differences in the two systems
are not gradually disappearing.
Quebec now admits the rule of stare decisis. The other provinces accept
the doctrine of contributory negligence. The law of principal and agent as
expressed in the Civil Code is borrowed from the Common Law writers.
The harshness of the doctrine of common employment was first mitigated
by the Employers’ Liability Acts and, now we have the Workmen’s Com-
pensation Acts which, in all provinces, as well as in Quebec, are framed on
similar principles.
No. 1]
SUPREME COURT REMINISCENCES
As for the laws of real property,
the registration system under
the civil law has no resemblance with the intriguing Torrens system in force
mainly in our Western provinces –
a system borrowed from Australia
which protects the purchaser to the detriment of all others concerned and
notwithstanding all principles of law and equity. (Why go to Australia to
introduce such a system in Canada?) I refrain from writing here what Sir
Lyman Duff thought of it; and I have myself expressed my own views on
that subject in my reasons of Judgment in Torta v. The Canadian Pacific
Railway & Imperial Oil Co.,’ when that case came to the Supreme Court of
Canada.
[Yes, there exists that dissimilarity in the Registration system between
Quebec and the Western provinces. I, for one, hope that it will persist, unless
those provinces abandon their system.
The unlimited right of disposing by will, which is the English rule, was
introduced in Quebec by the Act of 17741 Whether the testator does it by
notarial or holograph will, or by what is called in tie Civil Code “the form
derived from the laws of England”, in either case it is only a matter of form.
In Quebec, community as to property between consorts is the rule if they
have made no marriage contract; but all sorts of agreements may be lawfully
made in marriage contracts, and it is usual in those contracts to stipulate
separation as to property.
I will not pause to mention limitations or prescriptions. They in no wise
constitute fundamental differences. They are exclusively matters of delay, over
which our legislatures have complete control. There is nothing to prevent
any province from enacting to-morrow similar limitations as prevail to-day
under the Quebec Civil Code or vice versa.
there remains that the sale of expectant rights of inheritance is pro-
hibited under the Code, while it is not under the Common law. One may
venture the opinion that the former is preferable. But perhaps this question
may be summarily dismissed by recognizing the situation that before long,
under present conditions, nobody will have any inheritance to leave at his
death.
No! The more one thinks of it, the more he finds that the diversity of
legislation is more imaginary than real. Above all, in no way does it affect
the essential unity of Justice.
On that conclusion, I am glad to find myself in agreement with a former
Chief Justice of the United States Supreme Court. At the great meeting of
the United States Bar, the Canadian Bar, the English Bar and the French
Bar, in Paris, in 1924, referring to the respective conceptions of the Civil
and the Common laws, Chief Justice Hughes said: “Under our two systems
of law we render similar judgments in similar cases”.
‘Unreported.
McGILL LAW JOURNAL
f[Vol. 3
After my experience on the Bench of the Supreme Court of Canada, I
would say that the same legal problems, whether they stand to be solved under
the Civil Law or under the Common Law, almost always lead the Courts to
the same solution. The result might sometimes be reached by different roads;
but, in the end, to use an expression of Lord Dunedin, “it comes to the same
thing”. And, after all, the result in any litigation is the one practical thing.
When I was still in practice, my senior partner used to tell me: “You know,
our client does not care for the nice points of law or the important legal
questions; all that he wishes is to win his case”.
I repeat that in exploring the relations between the two great races which
go to make up our country we insist too much upon our so-called differences
and we do not stop sufficiently to consider our similarities. It stands as an
obstacle on the road leading to what is known among Canadians as the “bome
entente”.
Why persist in regarding “bonne entente” as meaning the assimilation of
the two races? Even individuals forming part of the same race are not
similar; they each have their own characteristics and peculiarities.
At a time when the civilized nations of the world strive to achieve unity,
it would be surprising indeed that the two races to which Providence has
entrusted the task of forming together our Canada should find difficulty in
living in harmony.
If it be true that the fundamental principles of law are the same and that
dissimilarities are found only in matters of form in order to reach the same
results, could it not be said that a similar situation exists with regard to
religion and to language. The essential principle of Religion is the worship of
the Supreme Being. That is the substance of the matter. This worship is
expressed in a different way. Yet, it is nevertheless religion with the same
object: the worship of the same Supreme Being. The difference exists in the
form of the Worship.
And so may it be said of language. The words are only the means of com-
municating our thoughts, and again, in whatever language, it resumes itself
into a question of form.
I have used that expression elsewhere and I wish to repeat it againI We
are all Canadians.
THE McGILL
LAW JOURNAL
EDITORIAL BOARD
HARoLD W. ASHENMIL
Editor-in-chief
IRVING I. FINKELBEEG
Managing Editor
BENJAMIN J. GREENBERG
Executive Editor
ROLLIN L. GALLAY
Co-Ordinate Editor.
DEEK A. HANSON
Advertising Editor
D. A. B. STEEL
Articles Editor
J. AECLEN BLAKELY
Advertising Editor
NCOLE B. VAILLANCOURT
.MORTIMER M. TEITELBAUM
Circulation Editor
Comment Editor
VILLIAM N. GAGNON
Circulation Editor
Editorial Assistants
RAYMOND T. BARAKETT, JEAN-LoUIS BAUDOUIN, B. ROBERT BENSON, YOINE
J. GOLDSTEIN, J. PHILIPPE GUAY,,DONALD J. JOHNSON, PIERRE LAMONTAGNE,
SYDNEY B. SEDEROFF, CLAUDE ARMAND SHEPPARD, MARY R. STAVERT. –
Faculty Adviser: Assoc. PROF. J. G. CASTEL
