The Unexamined “Conscience” of
Contemporary Canadian Equity
Dennis R. Klinck”
Reference to “conscience7 is increasingly commonplace
in Canadian courts exercising equitable jurisdiction. Yet it is a
problematic concept because there is a lack of judicial exposi-
tion of what is meant by the term. Although “conscience” has
existed as a legal concept for well over five hundred years, the
continuity of the underlying concept cannot be assumed; “con-
science” as a concept may be variable or even arbitrary. As the
author argues, however, a clearer definition of “consciene” is
critical because of its use by judges exercising equitable juris-
diction as a normative standard for evaluating conduct.
The first part of the article examines the development of
equity from the fifteenth to the nineteenth centuries as jutwa-
posed with conscience’s meaning. Next, current invocations of
conscience by Canadian courts exercising equitable jurisdiction
are considered. It is determined that these invocations, while
frequent, are perfunctory, and neither acknowledge the prob-
lematics of the term, nor display historical consciousness. In
particular, invocations of conscience at times suggest that the
focus is on the state of the defendant’s conscience, while other
times it appears that it is the adjudicator’s conscience at play.
Still other times, “conscience” appears to refer to some objec-
tive moral or ethical notion.
Given that its implications today are so nebulous, the
author questions why conscience as ajudicial concept is so per-
sistent The author suggests that it may be in some pat due to
“reflex repetition”. Beyond this, however, the author suggests
that the use of thejdicial notion of conscience persists beau of
the continuing impetus to include moral criteria in the law, as iell
as the need for the law to accommodate particular cases
ithin the
framework of generality vich is thought to make law.
Lea radrences a la
