McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 27
Montreal
1981
No. 1
F.R. Scott and Legal Education*
The Hon. Mr Justice Gerald Le Dain**
Frank Scott taught law at McGill for some forty years. The profound
impression he made as a teacher remains with one for life. By his example as
a university man of law with a unique range of achievement he inspired his
fellow teachers and made a significant contribution to the recognition and
development of the academic branch of the legal profession.
I first encountered Frank Scott in his constitutional law class in 1946. We
were for the most part a class of returning veterans, glad to be back, looking
forward to careers in civilian life and eager for intellectual stimulation. He
made us
think, disturbed our complacencies, and enlarged our
understanding and perspective. He was then forty-seven, had been teaching
since 1928, and was at the height of his powers and creative activity, He
himself was engaged in a kind of combat, full of zest, interest and
commitment. His teaching had an energizing as well as an illuminating
effect. It was challenging. What he was talking about, bfoadly speaking, was
the nature of Canada and what it meant to be a Canadian, and the role of
constitutional law in relation to the supreme values, as he saw them, of
Canadian life. As veterans we had thought much about what it meant to be a
Canadian and what the shape of the post-war world should be like. His was
one view, and it was a stimulating one.
Perhaps the outstanding characteristic of Frank Scott as teacher and
legal scholar was his point of view or philosophic frame of reference. There
was no pretence of neutrality in his teaching and writing. He had strong
convictions on what should be the broad goals of government policy, and
these provided the framework within which he considered the implications
of the distribution and exercise of legal power. A consistent thread of social
*Paper delivered at the Conference on the Achievements of F.R. Scott, Simon Fraser
University, Vancouver, British Columbia, February 21, 1981.
**Of the Federal Court of Appeal
McGILL LAW JOURNAL
[Vol. 27
policy and purpose runs through his constitutional thought. The key ideas
are economic planning, social justice and the protection of human rights.
law was devoted
Frank Scott believed
in strong, central government capable of
stimulating and regulating economic activity and redistributing income in
order to maintain minimum standards of welfare. Much of his work in
constitutional
to demonstrating how the judicial
interpretation of the constitution by the Privy Council had changed its nature
as conceived by the Fathers of Confederation and had so weakened the
powers of the central government as to make it incapable of dealing
effectively with national problems. He often observed that the failure of
democratic government to act did not mean that there would be an absence
of effective government; the vacuum would be filled by the governmental
power of the large corporation. His perception of the corporation as a rival
to government had affinities with the main thesis of Galbraith’s The New
Industrial State.
In administrative law, Frank Scott sought to explain and justify the
growth of the modern administration –
the positive state, as he would call
it –
and he expressed concern about the use of judicial control to defeat the
policies that the administration was required to implement. “Judges”, he
said, “must not substitute their notions of social purpose for those of the
legislature; indeed, they are there to see that the policy of parliament is
carried out, not that it is altered or frustrated.”‘ At the same time, he valued
the role of the courts in maintaining the Rule of Law and the protection of
civil liberties, and by is own interventions in this field he helped to affirm that
role. One of his themes in administrative law was the importance of making
the state and its instrumentalities fully liable for the damage caused by their
wrongful acts. He urged the elimination of the immunity of the Crown and
public corporations enjoying the status of Crown agents. “If the state creates
risks of damage”, he said, “it should assume these risks as fully as any private
person.” 2
An important theme in his work as teacher and scholar was the
development of Canadian independence. His writing on this subject reveals
his deep love of country and his appreciation of the unique nature of
Canadian nationhood. Of
inspired
Confederation, he wrote: “Its principal aim was to achieve those democratic
ends which all true nationalism strives for –
the elevation of a whole people
to a new status in the community of nations. Canada was to be ‘redeemed
from provincialism’; her public men were to move into a larger world where
great duties and great opportunities would evoke great responses. ‘3 Some of
the political nationalism
that
I Scott, Administrative Law: 1923 –
2 lbid., 282.
3 F.R. Scott, “Political Nationalism and Confederation”, Essays on the Constitution:
Aspects of Canadian Law and Politics (1977) [ hereinafter Essays ], 3,34; (1942) 8 Can. J. of
Econ. and Pol. Science 386.
1947 (1948) 26 Can. Bar Rev. 268, 277.
19811
F.R. SCOTT AND LEGAL EDUCATION
interesting writing discusses
his most
the nature of constitutional
relationships in the Commonwealth and the question of the patriation of the
Canadian constitution.
Finally, Frank Scott was profoundly concerned as teacher and scholar
with the problems of Canadian unity, particularly the position of French
Canada in Confederation. Here his constitutional philosophy encountered a
major problem: how to reconcile the emphasis on more power for the
federal government with the desire of French Canada for a stronger
constitutional basis for the development of its life as a distinct cultural
community. Scott was always sympathetic to the claims of French Canada
for a fairer opportunity to share in the advantages of Canadian life, but he
questioned
interests with the
provincial government of Qu6bec as the sole or principal defender of those
interests. He contended that “minority rights” should not be confused with
“provincial rights”. He argued that the larger opportunity French Canada
sought could only be opened up by federal action. A closely related theme in
his work was the relationship between minority or group rights and
individual rights, and how these two kinds of rights are to be reconciled in
practice and given adequate protection at the same time.
identification of French Canada’s
the
these
Scott approached
issues from an historical as well as a
contemporary perspective. The historical approach was an important
feature of his work as teacher and scholar. He had honoured in history at
Bishop’s and had continued his study of history while at Oxford on a Rhodes
Scholarship. He credited H.A. Smith, who taught him constitutional law
at McGill, with persuading him of the importance of the historical approach
to the constitution. “It was he”, Scott said, “who taught me to see the
problems which the Act of 1867 was intended to remedy, to look at the
conditions in the British North American colonies in the 1860s, and to seek
the intentions of the Fathers of Confederation not only in the words of the
statutes but also in all the material available to historians, including the
Confederation debates and other travaux priparatoires.”4 I have already
quoted from his essay on “Political Nationalism and Confederation”, which
is full of historical perspective. There is one very characteristic passage in it,
where, speaking of the commercial interests which saw advantages, and in
some cases salvation, in Confederation, Scott said: “A fact to which
Canadian historians have drawn far too little attention was the union in 1863
through the International Financial Society Limited, of the two largest
corporations with a stake in Canada, the Grand Trunk Railway and the
Hudson’s Bay Company.” 5
4F.R. Scott, “Our Changing Constitution”, Essays, 390, 390-1 ; (1961) 55 Series III
Transactions of the Royal Soc. of Can., 83.
5 Supra, note 3, 4.
REVUE DE DROIT DE McGILL
[Vol. 27
Frank Scott taught law in the liberal tradition. His courses in public law
could have been given to arts students as well as law students. They had the
broad foundation of learning, the perspective, the range and the connection
with other disciplines such as history and political science. It is significant, I
think, that his articles were published over the years in a variety of learned
journals and that, when finally brought together as a collection of essays’on
the constitution, with the sub-title “Aspects of Canadian Law and Politics”,
they were crowned with a Governor General’s Award. Scott shared the
conviction of Karl Llewellyn as to the value of the liberal approach to legal
education. In an address at the Chicago Law School in 1960, entitled “The
Study of Law as A Liberal Art”, Llewellyn said “The truth, the truth which
cries out, is that the good work, the most effective work, of the lawyer in
‘practice roots in and depends on vision, range, depth, balance, and rich
humanity –
those things which it is the function, and frequently the fortune,
of the liberal arts to introduce and indeed to induce.” Llewellyn concluded
that “the best practical training, along with the best human training” that a
university could give a lawyer was the “study of law, within the professional
school itself, as a liberal art.” 6
At the same time, Scott’s courses had professional rigour. They were
concerned with fundamentals, and they were comprehensive in their
treatment of their subject. Scott taught constitutional law in two parts: the
first part, given in first year, dealt with the general principles of the
constitution derived for the most part from the unitary system of Great
Britain, including such matters as the nature of the legislative, executive and
judicial branches of government, the distinction between constitutional law
and constitutional convention, the royal prerogative, the legal position of the
servant of the Crown, the nature and implications of legislative sovereignty,
and the meaning of the Rule of Law. These questions were examined in their
distinctively Canadian context. There was, for example, a very full analysis
of the precise effects of the Statute of Westminster.
The second part of the subject, given in second year, was concerned with
the nature of Canadian federalism and the distribution of legislative power.
What my lecture notes in constitutional law for the years 1946 and 1947
reflect is Scott’s emphasis on a good all-round grasp of, fundamental
principles. He covered aspects of constitutional law which other teachers and
scholars might not have considered deserving of the same priority. Current
events have proved them to be of supreme practical importance. There was
consideration, for example, of the various theories as to the essential nature
of Confederation and the extent to which there had been consultation of the
provinces, in connection with the amendments of the constitution. It is
striking how many of the fundamental questions he considered are still living
6 K. Llewellyn, Jurisprudence [, ] Realism in Theory and Practice (1962), 375, 376.
1981]
F. S. SCOTT AND LEGAL EDUCATION
issues today. Frank Scott said once that we had a rendez-vous with the BNA
Act, and although he said that with particular reference to the distribution of
legislative power, he taught constitutional law as if he wanted his students to
be prepared for that rendez-vous, whatever the agenda might be.
When speaking of professional rigour and comprehensiveness, I should
observe that, while Frank Scott came to specialize in public law, he had a
solid grounding in private law as well. He had taught Obligations at McGill.
And it showed in his work. He did not suffer from the limited view and range
resulting from premature and narrow specialization. Roncarelli v. Duplessis,
after all, was a case that involved the principles of the civil law of
responsibility, i.e., fault, damage and causal connection, as well as the
principles of public law governing the limits of ministerial authority and the
validity of administrative decisions. One of its interesting aspects from the
point of view of legal theory was the inter-relationship of private and public
law principles. It was a fitting focus for Scott’s kind of legal breadth.
In The Aims of Education, Alfred North Whitehead said that the essence
of university education was the imaginative consideration of learning.
Teachers, he said, must be filled with living thoughts: they must be able to
bring their subject to life. Frank Scott met this requirement pre-eminently.
In his case, it sprang not only from his intellectual gifts and general
cultivation, but from the nature of his interests and involvement. One of the
occupational hazards of teachers in basic courses is that they will grow stale
by repetition and lose their inspiration (or what may be as bad for the
students) seek to maintain their own interest by moving into increasingly
specialized and esoteric areas so that they are really substituting post-
graduate for undergraduate teaching. Scott never seemed to lose his
enthusiasm for teaching fundamentals. The secret, I believe, was that he
continually
to
contemporary conditions and events. He was what the students in the 1960s
used to refer to as “relevant”. He was not interested in constitutional
doctrines and principles as mere abstractions, but in their operating nature
and effects. His
teaching and scholarship were policy-oriented and
concerned with functional implications. This emphasis is reflected in his
statement, “[W]hile the law of the constitution went one way, the facts of
modem industrialism went the other.”7
interest by relating
renewed his
the
fundamentals
Playing over the whole field was his interpretative perspective, which
perceived the underlying significance of things and the connection between
them and was capable of throwing fresh light on issues. This was probably
the outstanding mark of his scholarship. One could cite many examples. A
typical observation was the suggestion in his Plaunt Memorial Lectures on
7 F.R. Scott, “Constitutional Adaptations to Changing Functions of Government”,
Essays, 142, 147; (1945) 11 Can. J. of Econ. and Pol. Science 330.
McGILL LAW JOURNAL
[Vol. 27
“Civil Liberties and Canadian Federalism” that we should celebrate October
1 st as our independence day because I October 1947, was the effective date of
the Letters Patent which transferred “all powers and authorities” of the
Crown in respect of Canada to the Governor General.
Perhaps in no other piece of writing is his imaginative perspective more
strikingly demonstrated than in his highly original article on s. 94 of the BNA
Act. This provision, which provided a means by ivhich the federal
Parliament, with the consent of the common law provinces, could assume
legislative jurisdiction with respect to matters of property and civil rights,
was generally thought to have become a dead letter. Scott’s purpose was to
draw attention to the original significance of the provision and to its future
possibilities for constitutional flexibility. To this end he raised the startling
hypothesis that the federal Industrial Disputes Investigation Act (the
“Lemieux Act”), as amended after the decision of the Privy Council in the
Snider case to provide for its provincial adoption for disputes within
provincial jurisdiction, had in fact been adopted by most of the provinces in
such a manner as to meet the requirements of s. 94 of the BNA Act: the
consequence, Scott argued, was that legislative jurisdiction with respect to
the subject matter of the Act had been irrevocably transferred by the
adopting provinces to the federal Parliament. Scott himself acknowledged
that this view was unlikely to be adopted by the courts, but it was typical of
the imaginative question that he was capable of raising in his analysis of a
legislative provision. This was undoubtedly one of the qualities that made his
advocacy, when he finally went to court, so impressive and compelling. His
mind ranged freely. He was not hidebound by an exaggerated concern for
what was “sound”. Frank Scott once said to me in a letter that he had “tried
to see the law in the round”, and that was reflected in his approach to
teaching. The image I retain of the effect of his teaching is of him holding a
precious stone in his fingers and turning it slowly so as to allow the light to
play on its many facets.
There was undoubtedly a relationship between Scott’s teaching and
scholarly vocation and his literary vocation. He perceived and exhibited the
aesthetic quality in the law. It is reflected in the title of one of his papers, “The
State As A Work of Art.” He was concerned with what Llewellyn referred to
in the address from which I have already quoted as “the quest and study of
beauty in and within the institution of law-government”. His care for form
was a valuable example in a profession that lives by the word. Scott spoke
and wrote as teacher and scholar with simple elegance, clarity and force. He
had, of course, the poetic power of going to the heart of the matter.
Enlivening his teaching and writing was his irrepressible sense of
humour, expressing itself in epigram and aphorism, delighting in irony and a
sense of the ridiculous. The title “Duplessis versus Jehovah” is only one of
many examples. Speaking of “the growing use of monetary policy, taxation
1981]
F.R. SCOTT AND LEGAL EDUCAUION
and planned government spending, as factors in maintaining economic
equilibrium”, he said, “Keynes became a kind of post-natal Father of
Confederation”. 8 Writing in “The Redistribution of Imperial Sovereignty”
on the form which patriation of the Canadian constitution should take, he
said :
To borrow another analogy from the well-known eastern myth, we may say that until
now all legal rules in Canada, from municipal bylaws to whole codes of law like the
Quebec Civil Code or the Criminal Code, have derived their validity from the elephant
of the BNA Act, which stood firmly upon the turtle of the sovereignty of the United
Kingdom Parliament. Beneath the turtle nothing further has existed to support a stable
universe. Now the various Dominions are getting their own turtles, and we are looking
for a Canadian turtle.9
Of the validity of the spending power he said, “generosity in Canada is not
unconstitutional” and “making a gift is not the same as making a law”. W My
constitutional law notes for 1946 and 1947 show that, speaking of the
contribution which Canada’s participation in the two world wars made to
the achievement of Canadian independence, he said, “Canada won her
independence fighting against Germans”.
Throughout his career, Frank Scott was passionately concerned about
the recognition and development of university legal education. It was a
subject that came up often in his discussions with fellow teachers, academic
administrators and other members of the legal profession. He knew long
periods of discouragement and frustration. For many years progress was
painfully slow. But before his teaching career came to a close he saw full-time
academic legal education established in Canada on solid foundations. He
had helped to keep the faith alive through the difficult years.
Frank Scott had a true vocation for the life of the full-time law teacher,
and he remained faithful to it to the end. He tells how he was sitting as a
beginning lawyer in 1928 in the Montreal firm of Lafleur, McDougall,
Mcfarlane and Barclay, with whom his older brother was associated, when
he received a letter from McGill. He says that before opening it, and without
any prior intimation of what it contained, he knew intuitively what it was
about, and he knew what his answer would be. It was an invitation from the
dean of the McGill Law Faculty to accept appointment in succession to H.A.
Smith as Professor of Federal and Constitutional Law. He did not hesitate
and he never regretted his decision.
The condition of academic legal education in Canada when Frank Scott
joined the full-time faculty at McGill in 1928 was far from robust. Before
8 Supra, note 4, 397.
9 F.R. Scott, “The Redistribution of Imperial Sovereignty”, Essays, 244, 246; (1950) 44
Series III Transactions of the Royal Soc. of Can. 27.
I0F.R. Scott, “The Constitutional Background of Taxation Agreements”, Essays, 291,
297; (1955) 2 McGill L.J. 1.
REVUE DE DROIT DE McGILL
[Vol. 27
1900, legal training had been based essentially on a system of articling or law
office apprenticeship followed by bar examinations. It was not necessary to
obtain a law degree, and little credit was given for having one. The period of
articling varied from three to five years depending on the candidate’s
previous education. The educational requirements for admission to the
study of law were modest for a learned profession: in most cases, a senior
matriculation. A university degree in Arts or some other undergraduate
course was recognized by the reduction of one or two years in the period of
articles, and a law degree was at first given a similar recognition in some
jurisdictions. There were seven law schools in the country, all of them in the
east. They were staffed by a small nucleus of full-time teachers who were
heavily outnumbered by part-time instructors drawn from the bar and
bench. In some jurisdictions there was a system of concurrent law school and
law office training. This was still essentially the picture after World War I,
except that by 1921 there were law schools established in each of the prairie
provinces.
The under-developed state of legal education in Canada was brought
forcibly to the attention of the profession during the 1920s by a small but
distinguished and dedicated group of full-time teachers who sought through
the Legal Education Committee of the Canadian Bar Association to arouse
the profession to the need for greater support of full-time academic legal
education. In his report in 1923, the chairman of the committee, Dean D.A.
MacRae of Dalhousie, referred to the comparative sizes of the full-time
staffs of American and Canadian law schools as follows:
As compared with the better law schools of the United States Canadian Law Schools
are sadly deficient in the matter of staff. Harvard has fourteen full-time teachers,
Northwestern thirteen, Columbia thirteen, Yale thirteen, Cornell seven, to take only a
few instances at random. The maximum number of full-time teachers at any Canadian
Law School engaged in teaching common law subjects is at present only three.”
Commenting on the system whereby students attended lectures for part
of the day and worked in offices for the rest, H.A. Smith observed in the
spirited discussion which followed the presentation of the MacRae Report
that “the needs of the student are thought to be met by giving one lecture
after breakfast and another before supper, and he is expected to spend the
remainder of the day picking up what odds and ends of information he can in
an office”. 12 That was essentially the state of affairs when Frank Scott
became one of the three full-time members of the McGill Law Faculty.
Full-time academic legal education made relatively modest progress in
the 1930s and 1940s. Professor Maxwell Cohen, who was one of Scott’s
colleagues at McGill and who also made a distinguished contribution to the
“1 Committee of the Canadian Bar Association on Legal Education, Legal Education in
–
Canada (1923) 1 Can. Bar Rev. 671, 677.
12(1923) 8 Proceedings of the Can. Bar Assoc. 101.
1981]
F.R. SCOTT AND LEGAL EDUCATION
development of legal education in Canada, reported on its condition in
1949.13 His article drew some comfort from a perceptible improvement in
conditions relative to the 1920s, but it revealed that full-time faculties were
still very small, library resources, with few exceptions, insignificant, and
physical accommodation in many cases inadequate. The number of full-time
staff in the eleven law schools of Canada ranged from one to a maximum of
seven. There were four at McGill, one more than when Frank Scott had
joined the faculty twenty years earlier.
As every report on the condition of legal education observed, the
university priorities were a reflection of the relative lack of professional
interest and support. Recognition by the profession of the necessity and
value of full-time academic legal education was required. For many years
there was uncertainty in the profession as to the best approach to legal
education and training. The proper distribution of responsibility among the
universities and the practising profession was being worked out. It took a
long time to reach a satisfactory accommodation. In the process, there was a
good deal of misunderstanding and recrimination, and, I suppose one
would have to say, mutual distrust. The practising profession was concerned
about the adequacy of academic legal education as a preparation for the
practice of law. It was also concerned about its own capacity to provide and
adequate system of practical training. For their part, the full-time teachers of
law resented the practising profession’s lack of confidence and support and
felt frustrated by its efforts to control the content of the academic program.
Both sides thought they knew what was required. Neither could do it alone.
It required an adjustment of responsibility and a renewed dedication on the
part of each to do what they could do best. The system that was ultimately
worked out was the full-time degree program followed by a period of
organized practical training, including systematic instruction as well as law
office experience.
Academic legal education can be effectively imparted by part-time
teachers. There have been some outstanding part-time teachers, and there
will always be a certain number on the staff of a well-organized and well-
balanced law school. But the profession requires a corps of men and women
who have the ability and the time for research into and deep reflection upon
the nature and development of the law in its various fields, and for providing
critical perspective. This is well understood by the judicial branch, which
depends heavily on the quality of the materials that are put before it. The
full-time teacher has the independence and the detachment for critical
evaluation of the law and the legal process. This is a supremely important
function and almost a justification in itself for a distinct branch of the
profession. Moreover, the development of suitable teaching materials and an
13 Cohen, The Condition of Legal Education in Canada (1950) 28 Can. Bar Rev. 267.
McGILL LA W JOURNAL
[Vol. 27
effective educational process in each field is a difficult task that requires the
leadership of persons devoting their full time to this objective.
The quality of the academic branch of the legal profession and the
respect which it enjoys in the rest of the profession depend, of course, on the
quality of its individual members. It has always been difficult to recruit and
hold outstanding persdns with a true vocation for teaching and scholarship.
There are many competing attractions and opportunities for the exercise of
legal ability. There is a certain ambivalence about the respective pulls of the
life of action and the life of contemplation. Underlying the career decision
must be a strong belief in the validity and worth of what one is doing. Frank
Scott had that strong belief, and he projected it to a remarkable degree. It
was a source of encouragement and inspiration for his colleagues in the
academic branch of the profession.
to strengthen
In the late 1940s Scott initiated the discussions which led to the
formation of the Association of Canadian Law Teachers (ACLT), now
known as the Canadian Association of Law Teachers. He was elected its
first president. The Association helped
the sense of
professional identity and purpose among law teachers. It afforded an annual
opportunity for contact and exchange on matters of mutual interest –
so
important as a means of overcoming the sense of isolation of the individual
scholar in this vast country. The report of his committee on legal research, to
which I shall refer shortly, alluded to thespecial problem of getting together
in Canada, where, in speaking of the early years of the Association, it said:
“Its chief difficulties at the moment are the usual Canadian ones –
too little
money and too much geography”. 14 The founding of the ACLT was one of
several such university initiatives in which Frank Scott participated during
his academic career. He believed in the association and co-operation of
teachers for the pursuit of common interests. He was first and foremost a
man of the university. He had the respect of his colleagues in the other
faculties, and he enjoyed intellectual exchange with them. I can see him now
in what we used to refer to as the “circle” in the McGill Faculty Club, holding
forth at lunch. The spirit of the university was in his blood.
The 1950s were difficult and crucial years for legal education in Canada.
They were also years of outstanding achievement for Frank Scott. Unlike his
great contemporary “Caesar” Wright at Toronto, it was not given to him to
have a position of administrative responsibility and leadership during those
years. As is well known, Frank Scott had been repeatedly passed over for
dean of the McGill Law Faculty, when he was the obvious choice, because of
his political opinions and activities. When he was finally offered the deanship
in 1961, he accepted it, with some misgiving, as much to set matters right, if
somewhat belatedly, as because of what he felt he could accomplish in the
14 Report of the Committee on Legal Research (1956) 34 Can. Bar Rev. 999.
1981]
F.R. SCOTT AND LEGAL EDUCATION
very few years remaining to him before the age of retirement. But the fact
that he was not dean during the 1940s and 1950s, when one was appointed
dean for life, in no way lessened his personal authority and influence in the
academic community. And he was, as a result, freer to pursue his wide range
of individual and independent activity. In 1952, for example, he spent a year
in Burma as resident technical representative of the United Nations. This was
a reflection of his devotion to the goal and responsibility of world
community, another important aspect of the idealism and conviction that
inspired his endeavours.
In 1954,
the recognition of the profession was reflected
in his
appointment as chairman of the special committee established by the
Canadian Bar Association to inquire into and report on the state of legal
research in Canada. It was a strong and representative committee that
included Dean Wright among its members. Its report, on which Scott spent
many hours of careful labour, is an impressive document and a forceful
statement on legal education as the necessary foundation of good legal
research. “The first requisite for better legal research in Canada,” it said, “is
better law schools. On this point your committee is unanimous. It is in the
law schools that the young men and women entering the profession learn the
habit and techniques of research. There they will acquire a respect for legal
scholarship if they are ever going to, and will meet the instructors who can
inspire them with a desire to make their own contribution to the legal
thought of their country.” 15
The report emphasized the great disparity in the comparative support for
legal education and medical education –
a point that had been referred to
in the MacRae Report of 1923 and Cohen’s survey of 1949. It was
something Frank Scott felt particularly strongly about because he had seen
at first hand the striking difference in the support which medicine and law
had received at McGill. Medicine was the jewel in the McGill crown. It must
be said that it had earned its position by outstanding achievement that had
brought it an international reputation. But behind the high level of
professional, and therefore university, support for medical education was the
individual concern for personal health and survival, which could always be
relied on to stimulate the flow of financial support. The individual did not
think as much of what he or she owed to the blessing of personal security and
freedom under law. As Scott’s report put it, “Is the health of the individual
body of more concern than the health of the body politic ?”16
The report called for a new status for the law schools, and there was
reference to the central issue in legal education in the 1950s : the struggle in
Ontario for the full recognition of academic legal education by the Law
15Ibid., 1020.
16 Ibid., 1004.
REVUE DE DROIT DE McGILL
[Vol. 27
Society of Upper Canada. That struggle began with the departure of Wright,
Willis and Laskin from the Osgoode Hall Law School in 1949 and ended
with the settlement of 1957, in which John Arnup and Alex Corry played
leading roles. The report of the Committee on Legal Research was written
when the controversy was at its height. The bitterness engendered by it was
reflected in the observations of Dean Wright, who dissented from the
majority recommendation for the establishment of a legal research
foundation by the Canadian Bar Association on the ground that it would
detract from the support that should be given to the law schools. He spoke of
the future in pessimistic terms: “After nearly thirty years spent in legal
education in this country, I regret having to state that the prospects for
improvement in educational standards in law are far from bright. Schools
that have struggled to preserve and to improve standards have met and are
still meeting with opposition from the organized profession.” 7
As it turned out, Dean Wright’s remarks were made when legal
education was on the threshold of the important break-through that was to
open the way to the great development of the 1960s. In 1957, the Law Society
of Upper Canada surrendered its monopoly of legal education to permit the
full recognition and development of university faculties of law. The Society
established the present system of legal education and training by which a full-
time three-year degree course is followed by a period of practical training
called the Bar Admission Course, which consists of twelve months’ articling
followed by six months of systematic instruction of a practical nature at
Osgoode Hall. Although Frank Scott could not play a direct role in the
resolution of this conflict, of such far-reaching consequence for legal
education in Canada, it may be assumed that the report of his Committee on
Legal Research, because of its strong affirmation of the importance of
academic legal education and the need for increased support for the law
schools, contributed to the climate of professional opinion that furthered its
resolution.
It was during the 1950s that Frank Scott took his long-standing
advocacy of civil liberties into the courts with striking success. What his
participation as counsel in the Switzman and Roncarelli cases reflected was
not just his professional ability but his independence and moral courage. It is
difficult for someone who did not live in Quebec at that time to appreciate
the atmosphere of psychological intimidation that was created by the
Duplessis regime, and the determination that it took to challenge Duplessis
in such a direct manner. Prominent counsel felt obliged to decline the
Roncarelli brief. In my opinion, it is as much for his independence and moral
courage, reflected over the years in the strong stands he took on contentious
issues, as for his unusual gifts and intellectual achievements, that Frank
17Ibid., 1059.
1981]
F.R. SCOTI AND LEGAL EDUCATION
Scott is so respected in this country. As we may say of someone that he is
worth his salt, so we say of Frank Scott that he was worth his tenure. Bora
Laskin, who was then a distinguished professor of law at the University of
Toronto, expressed one perception of what Scott’s example meant to the
academic branch of the profession, when, in his review of Scott’s Plaunt
Memorial Lectures in 1959, he said:
Professor Scott, by any measure, is already a heroic figure in Canadian public life. Both
contemplative and active, he has combined careers as law teacher and lawyer, political
theorist and party strategist, poet and man of letters, speaker and author. His
contribution to Canadian public law has come as significantly from his advocacy before
the Supreme Court of Canada as from his law review writings. The debt of the full-time
law teacher to Professor Scott is a lasting one. This most academic of lawyers has, once
and for all, I hope, laid the ghost of the inadequacy of the law teacher to perform in the
practical arena of the court room. His arguments in Switzman v. Elbling on the validity
of the Quebec Padlock Act and in Roncarelli v. Duplessis on the delictual responsibility
of a minister of the Crown (even if he be a premier or prime minister) were delivered as
much on behalf of the full-time law teachers of Canada as on behalf of Scott, himself.’8
I end as I began. Frank Scott was a model of excellence for his students
and his fellow teachers. He inspired them both. He stimulated the love of law
and the professional aspiration of his students, and he stimulated the sense of
professional identity and purpose of his fellow teachers. By his example, he
enhanced the image of the academic branch of the profession, helped to
attract others to full-time teaching and scholarship and strengthened the
claim of the academic branch to recognition and support.
18 Laskin, Book Review, (1959-60) 13 U.T.L.J. 288-9.
[Editor’s Note. For those readers who are unfamiliar with F.R. Scott’s career, the following
citations may be helpful: The British North America Act, 1867, 30 & 31 Vict., c. 3, (U.K.),
(R.S.C. 1970, App. II, No.5). The Statute of Westminster, 1931, 22 Geo. V, c. 4, (U.K.),
(R.S.C. 1970, App. II, No.26). The Industrial Disputes Investigation Act S.C. 1907, c. 20,
am. S.C. 1925, c. 14, Toronto Electric Commissioners v. Snider [ 1925 ] A.C. 396, Switzman
v. Elbling[ 1957 ] S.C.R. 285, Roncarelli v. Duplessis [ 1959 ] S.C.R. 121. F.R. Scott’s essay
on s. 94 of the B.N.A. Act can be found in Essays, 112; (1942) 20 Can. Bar Rev. 525.]