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CHRONIQUE BIBLIOGRAPHIQUE
Law andLearning . By the Consultative Group on Research and Education in Law. [A report to
the Social Sciences and Humanities Research Council of Canada]. Ottawa: 1983. Pp. ix, 187.
Seventy-three years ago the Flexner Report on the reform of medical
education and research in the United States and Canada appeared.’ It revolu-
tionized medical teaching and research in North America, calling for the twin
missions of medical education and research to be performed in universities.
Moreover, it ushered in teaching hospitals affiliated with universities to
provide the clinical laboratory to test knowledge in application through
patient care, thereby enhancing learning and sharpening research. There are
many other factors which have contributed to the remarkable leadership of the
United States and Canada in medical education and research in the seven
decades since then, but this report, which provided the intellectual foundation
for North American medical education and research, was a major contributing
factor.
The report Law and Learning has the potential for a similar impact upon
legal education and research in Canada. Its origins can be traced back at least
ten years, to the Symons Report on Canadian Studies. 2 That report was critical
of our apparently low research productivity in law, of our habit of borrowing
from British and American legal literature and reform principles without
determining whether Canadian conditions required some local tailoring and
of the absence of a scholarly attack on indigenous Canadian problems. It
called for a comprehensive study of legal research and education. Such a
study has now appeared. In its general conclusions and fifty-six specific
recommendations, it provides a stimulating framework for appraisal and
reform initiatives in legal education and legal research in Canada.
The report is centred on law as a university discipline. It calls for a
“genuine pluralism” in the curricula of Canadian law schools, for a series of
alternative patterns to advance different objectives. More specifically, it
concludes that scholarly studies in law cannot flourish if they remain a
“peripheral concern of students and faculty members who are primarily
preoccupied with preparation for professional practice”. It concludes that if
the scholarly study of law does not have a specific focus and a secure base,
Carnegie Foundation for the Advancement of Teaching).
IA. Flexner, Medical Education in the United States and Canada (1910) (a report to the
2The Commission on Canadian Studies, To Know Ourselves (1975) 213 (a report to the
Association of Universities and Colleges of Canada).
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BOOK REVIEWS
1035
there will be no substantial changes in the quantity and quality of legal
scholarship. 3
In appraising legal scholarship today, the report concludes that the needs
of professional practice and the exigencies of targeted law reform research
have been dominant. It ventures further to suggest that this orientation has
stifled other research activities such as those directed to fundamental analysis
of the values, operations and effects of law.
In its prospectus for reform, the report identifies five strategic elements:
Improving the scholarly education of legal researchers;
1.
2. Clarifying and legitimating their role;
3.
Establishing optimum conditions for research, especially on
theoretical and fundamental questions;
4. Creating a constituency of sophisticated academic, professional
5.
and public “consumers” of research; and
Improving the dissemination of scholarly writing and of all types
of legal research within the academic community, amongst legal
professionals and to the public.
Its fifty-six specific recommendations flow from this strategy. They
address the three areas of legal education, promotion of research, and profes-
sional and public needs. The report points out that resources have been
lacking to accomplish these goals but it stresses that more money will not
provide any easy solution; in addition to resources, there must be a crusading
zeal. The final substantive paragraph emphasizes this concern and under-
scores two of the fundamental themes in the report: “We wish to end on a note
of candour. Adequate funding is a necessary but not a sufficient condition for
the development of Canadian legal scholarship. What is indispensible for the
cause is imagination, determination and passion.”‘ I
Those who read the report superficially may be disturbed at its critical
and sharp diagnosis. It is true that considerable progress has been made in
Canadian legal scholarship, bearing in mind that only in recent decades have
all Canadian provinces followed the medieval tradition of making law a
university discipline. However, one may fairly ask whether law is yet a
mainstream discipline in very many Canadian universities. Some may trem-
ble at the report’s prescription that legal education and research must put more
‘It is timely*and pleasant to note somewhat similar observations in the 1981-82 Harvard
University Annual Report by President Derek C. Bok, former Dean of the Harvard Law
School, who devotes the report to a critical analysis of law and legal education in the United
States.
4 Consultative Group on Research and Education in Law, Law and Learning (1983) 150 (a
report to the Social Sciences and Humanities Research Council of Canada).
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REVUE DE DROIT DE McGILL
[Vol. 28
distance between themselves and professional orientation. Indeed, some
readers may visibly cringe at its quoted cry that law faculties “make what
Robert Gordon calls a ‘reverse Faustian bargain’: give back the world, regain
one’s soul”. 5
But to view the report in this defensive way is to do it a grave injustice. It
does not suggest that legal education should cease to produce well trained
legal professionals. What it does suggest is that legal education must begin a
much more focused effort to establish a distinctive and penetrating tradition of
legal research with a broad spectrum of methodology and objectives in so
doing. And it quite properly proposes that the law schools in our universities
must share much more vigorously with other university disciplines, particu-
larly those in the social sciences, in a rigorous analysis of legal questions
confronting our society.
This report should become the intellectual framework for new efforts in
legal education and research. It should become the source of standards against
which resources, curriculum, and research productivity and orientation may
be measured. If so, it will have a substantial and beneficial invigorating
impact upon the discipline of law and will serve as a beacon for the universi-
ties which provide legal education.
If the people who are charged with implementing this report (and this
group goes well beyond the professors in Canada’s law schools) share its
imagination ana zeal, we may look forward to an improvement in the admin-
istration and the quality ofjustice in our society, not only through a process of
making better rules which are better studied and better understood, but of
shaping more cost-effective rules as well.
Those who have watched and welcomed the significant steps forward in
the scholarly enterprise of law over the past several decades will rejoice at the
appearance of this remarkable document. One hopes that it will serve both as a
rallying cry and as a talisman for the attainment of more commanding heights
for legal research and legal education in the remaining two decades of this
century.
David L. Johnston*
5Ibid., 98.
*Principal and Professor of Law, McGill University. I should declare a conflict of interest in
undertaking a review of this report. As Chairman of the Canadian Law Deans’ Committee from
1977-78, which Committee along with the Canadian Association of Law Teachers originally
proposed the study, and as a member of the Advisory Panel to the Consultative Group on the
report from 1980 to its completion, I have been one of its ardent supporters. Nevertheless, I
believe that there is some objectivity in the preceding appraisal.
Constitutional Fate [:] Theory of the Constitution. By Philip Bobbitt. New York: Oxford
University Press, 1982. Pp. xii, 285 [$32.25 U.S.].
The Constitution, The Courts, and Human Rights [:] An Inquiry into the Legitimacy of
Constitutional Policymaking by the Judiciary. By Michael J. Perry. New Haven: Yale
University Press. Pp. xi, 241 [$24.00 U.S.].
In Search of the Constitutional Grail
With the advent of the Canadian Charter of Rights and Freedoms’
Canada has entered a new age of constitutional adjudication. Entrusted with
the crucial task of establishing and controlling the relation between the State
and the individual, the enduring problem of constitutional theory has become
even more acute and pressing: “can judicial review be reconciled with the
fundamental presuppositions of democracy, with its emphasis on the ma-
joritarian political process?” 2 American scholars have wrestled with this
question for close to two centuries, yet they are no nearer to any agreement on
the most appropriate and persuasive answer. Indeed, in recent years, the
intensity of the debate has increased markedly and there seems to be greater
disagreement and lack of consensus than ever before.3 Reluctant to concede
that the question may defy solution and to yield to the illegitimacy of judicial
review, American jurists proffer ever-more imaginative and ingenious solu-
tions. The recent monographs of Philip Bobbitt4 and Michael J. Perry5
exemplify the contemporary genre of American constitutional theory and its
failings.
The primary objective of much jurisprudential writing is to legitimize the
judicial enterprise within a liberal democracy.6 Although the enactment of the
Charter ofRights implies immense confidence in the courts’ ability to resolve
disputes fairly, the transfer of such power to an unelected and unaccountable
institution which lacks any immediate democratic mandate is problematic.
The modem response to this apparent dilemma has been to distinguish legal
IPart I of Schedule B, Canada Act 1982, 1982, c. I1 (U.K.).
‘Monaghan, book review, (1980) 94 Harv. L. Rev. 296, 297.
3For a useful bibliographic guide to the contemporary American literature, see Thomson,
Principles and Theories of Constitutional Interpretation and Adjudication: Some Preliminary
Notes (1982) 13 Melb. U.L. Rev. 597.
4Constitutional Fate [:] Theory of the Constitution (1982).
5The Constutution, The Courts, and Human Rights [:] An Inquiry into the Legitimacy of
Constitutional Policymaking by the Judiciary (1982).
6 See Hutchinson & Monahan, Law, Politics and The Critical Legal Scholars: The Unfold-
ing Drama of American Legal Thought (1983) 35 Stan. L. Rev. (forthcoming).
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McGILL LAW JOURNAL
[Vol. 28
reasoning and decision-making from political reasoning and decision-
making. Each writer seeks to describe the institutional limits to the judicial
realm and to depict the judges as being engaged in a bounded and rational
activity.7 The most common response has been to argue that, whereas the
political world is characterized by its search for consensus and its willingness
to compromise competing interests, the judicial process is portrayed as being
one in which the judges arrive at rational and politically neutral results based
upon a given set of values. The exercise of choice is said to be for political and
not legal actors in the governmental drama. However, Americanjursits do not
rely upon any crude version of formalism which holds that constitutional
disputes can be arbitrated through “the impartial elaboration of a mechanical
legal analytic”. 8 Instead, they claim that, while resort must be had to some
extra-constitutional precepts, it is nonetheless possible to maintain a viable
distinction between legal and political reasoning. Accordingly, the main
focus of contemporary attention is centred on the source and legitimacy of
those extra-constitutional standards. It is in this search that Bobbitt and Perry
claim to make their major and original contribution. They maintain that they
have struck upon the solution to the enduring problem of constitutuional
theory which has previously eluded generations of judges and jurists.
Both books follow a familiar pattern. The greater part of each is devoted
to the discrediting and demolition of competing theories. With punishing
perspicacity, they root out the theoretical and practical inconsistencies and
failings of the different theories that presently populate the world of constitu-
tional adjudication. Bobbitt identifies and exposes five archetypal instances
of constitutional argument: the historical search for the original
understanding; 9 the textual analysis of constitutional provisions in the light of
contemporary meanings;’0 the derivation of principles from constitutional
doctrine and commentary;” the contextual application of constitutional
wisdom; 2 and the reliance on the structure of constitutional arrangements and
‘This idea is given its most persuasive and eloquent expression by Owen Fiss. See
8Note, ‘Round and ‘Round The Bramble Bush: From Legal Realism to Critical Legal
Objectivity and hterpretation (1982) 34 Stan. L. Rev. 739.
Scholarship (1982) 95 Harv. L. Rev. 1669, 1670, fn. 7.
9See Bobbitt, supra, note 4, 9-24. For an example of such an approach, see R. Berger,
Government by Judiciary (1977).
10 Bobbitt, ibid., 25-38. For an example of such an approach, see Black, comments, (1977) 9
Sw. L. Rev. 937 (transcript of a C.B.S. News Special, Justice Black and the Bill of Rights,
telecast 3 December 1968).
“Bobbitt, ibid., 39-58. For an example of such an approach, see H. Hart & A. Sacks, The
Legal Process, tentative ed. (1958).
Dangerous Branch (1962).
“Bobbitt, ibid., 59-73. For an example of such an approach, see A. Bickel, The Least
1983]
BOOK REVIEWS
1039
institutions. 3 Although reaching the same outcome, Perry takes a different
route. He assumes the legitimacy of interpretive review and concentrates on
the justifications offered for noninterpretivism, “the determination of consti-
tutionality by reference to a value judgment other than one consitutionalized
by the framers”. 4 However, he argues convincingly that interpretivism can-
not account for the actions of the courts in the protection of human rights.5
Proceeding to noninterpretivism, he rejects the justifications of “consensus”
or “principled interpretation” as being unequal to the task. 6 With some force
and conviction, he disposes of the inflated claims of the present kings of the
constitutional castle, John Hart Ely ‘” and Ronald Dworkin. 8 As critics, both
Bobbitt and Perry achieve their chosen objectives. They provide sufficiently
cogent arguments to clear the constitutional scene of contempory academic
debris. Existing scholarly edifices are razed to the ground, and the preparation
for a “new” structure of constitutional theory is completed.
Professor Bobbitt maintains that the whole range of historical, textual,
doctrinal, precedential, and structural arguments are employed in constitu-
tional adjudication. Yet they function more as rationalizations than reasons
for decisions. He identifies a pervasive and coherent additional form of
argument that motivates and dictates constitutional decision-making. He
labels this “ethical argument”. It is not to be confused with moral evaluations,
but refers instead to “argument whose force relies on a characterization of
American institutions and the role within them of the American people”. 9
Bobbitt explicates and substantiates the nature and use of ethical argument
through its application to various causes cdldbres, such as Roe v. Wade 21 and
Griswold v. Connecticut.2’ Yet, search as hard as this reviewer has, the
precise character of ethical argument remains a mystery. Cryptic clues are
offered here and there, but it is difficult to construct any skeleton of the
American constitutional ethos, let alone to flesh it out. Like an academic
maestro, Bobbitt seems to conjure up legal rabbits out of constitutional hats.22
He talks of “a legal sense of what is fitting”,” “legal grammar” 24 and “a
11 Bobbitt, ibid., 74-92. For an example of such an approach, see C. Black, Structure and
Relationship in Consitutional Law (1969).
14Perry, supra, note 5, 11.
‘$Ibid., 61-90.
16Ibid., 93-7.
“Democracy and Distrust [:] A Theory of Judicial Review (1980).
“The Forum of Principle (1981) 56 N.Y.U.L. Rev. 469.
19Bobbitt, supra, note 4, 94.
20410 U.S. 113 (1973).
21381 U.S. 479 (1965).
20For instance, in his discussion of Roe v. Wade, supra, note 20, Bobbitt seems to pull out of
mid-air a proposed rule that “”[glovemment may not coerce intimate acts”. Supra, note 4, 159.
lbid., 166.
2 Ibid., 169.
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constitutional motif’.2 At bottom, ethical argument seems to operate simply
as a reservoir for the “unarticulated values of a diverse nation”; 26 it is a
mish-mash of all the other forms of constitutional argument. As such, Bobbitt
argues that ethical argument needs no formal justification, for it represents
and embodies the evolving relationship between government and citizen. The
apparent formlessness of constitutional law is given truthful coherence
through the conventions of the ethical constitution:
Legal truths do exist within a convention. But the conventions themselves are only
possible because of the relationship between the constitutional object-
the document, its
history, the decisions construing it –
and the larger culture with whom the various
constututional functions serve to assure a fluid, two-way effect on the ongoing process of
constitutional meaning. We have, therefore, a participatory Constitution. 7
Perry finds his inspiration not in the ethos of the American polity, but in
the religious essence of American society. He maintains that the American
people view themselves as a chosen nation, charged with a special responsi-
bility to fulfil a moral prophecy. Judicial review is the institutionalization of
this prophetic evolution:
The American people still see themselves as a nation standing under transcendent
judgment: They understand-
even if from time to time some members of the intellectual
elite have not-
that morality is not arbitrary, that justice cannot be reduced to the sum of
the preferences of the collectivity. They persist in seeing themselves as a beacon to the
world, an American Israel, especially in regard to human rights (“with liberty and justice
for all”). And they still value, even as they resist, prophecy –
although now it might be
called, for example, “moral leadership.”23
For Perry, adjudication presents an opportunity for moral re-evaluation,
growth and development; a chance to transcend the imperfections of the
present and strive for moral perfection. Refusing to take moral skepticism
seriously in this “post-holocaustal age”, he argues for ultimate moral
answers. 29 In the slow but steady progress toward such values, he counsels the
appointment as judges of men of strong moral fibre and integrity. 0
The justification for this blatant resort to moral values in the resolution of
constitutional disputes is equally inventive and bizarre. Obsessed by the
desire for re-election, elected offficials are ill-suited to this mission. Howev-
er, the judges, by virtue of their very insulation from such political concerns,
-Ibid., 177.
26Ibid., 211.
2Ibid., 234-5. See also the discussion at 163.
2Perry, supra, note 5, 98 [emphasis in original].
-Ibid., 105.
3Ibid., 143.
1983]
CHRONIQUE BIBLIOGRAPHIQUE
1041
can engage in this process of moral regeneration and rejuvenation. Fur-
thermore, this moral leadership of judges is subject to effective political
control. By art. III, Congress can limit the courts’ jurisdiction and, therefore,
can retain ultimate power over the moral growth of the American nation. 3′
Like Bobbitt, Perry seeks to demonstrate the viability and particularity of his
theory in relation to various causes cilbres and the recent surge of institu-
tional reform litigation. 32 Predictably, the precise contours and direction of
the moral essence of America remain suitably clouded and ethereal. In short,
both theories are clearly void for vagueness. Yet there are more substantial
objections to the Bobbitt “ethos” and the Perry “religion”.
Both writers agree that the judges must reach beyond the extant materials
to draw upon a set of values that capture the true character of American
constitutional life. This exercise is held to be clothed with democratic legi-
timacy as the background theory has an objective existence. Each author
receives inspiration from a peculiar combination of consensus- and fun-
damental rights-based theories. They contend that, within the American
pluralistic way of life, there exists a coherent body of norms which contain an
agenda of rights that inhere within a liberal society. Although these rights are
anchored in the American lifestyle, they transcend any particular historical
context. Yet independently, and in combination, both these justifications are
suspect.33 Under a consensus model, any agenda is simply a reflection of
prevailing political preferences which are of an arbitrary and non-rational
character. Moreover, it is so manipulable as to be capable of supporting
almost any position. Also, the fundamental rights theorists are trapped in a
circle of arguments. Their search is undermined by their own insistence on the
ultimate subjectivity of human values. Rights are the product of choice, not its
determinants.
Stripped of such objective legitimacy, the Bobbitt “ethos” and the Perry
“religion” are revealed simply as political choices masquerading as legal
right. They are nothing more than ideologies. Although passed off as objec-
tive, universal and factual, their background theories are subjective, histori-
cal and value-laden. They provide an intelligible view of the chaos of social
life, but the image that they represent is biased and selective. They contain a
hidden political programme. Sectarian interests are translated into universal
claims. Most importantly, the status quo is presented as being natural,
necessary and just, rather than as an arbitrary and contingent state of affairs.
No matter how benign or well-intentioned their motives, Bobbitt and Perry
his noninterpretivist theory.
31Ibid., 128-33. It is ironic, to say the least, that Perry has to resort to interpretivism to justify
32Ibid., 146-62.
33See Hutchinson & Monahan, supra, note 6.
1042
McGILL LAW JOURNAL
[Vol. 28
contribute to the erection of formidable barriers to social change, and they
facilitate the transformation of an arbitrary world of social hierarchy into a
natural world of legal right.
Both authors’ visions of twenty-first century America are inescapably
conservative. They guarantee the preservation and perpetuation of the ex-
isting culture. Like Oliver Wendell Holmes Jr, they contribute to the danger-
ous and self-serving falsehood that “[t]he past gives us our vocabulary and
fixes the limits of our imagination; we cannot get away from it” .”‘ In short,
Bobbitt and Perry elevate the conditions of the status quo, slightly spruced up
and polished to allow room for slight revisionary manoeuvre, to a universal
theory of substantive fairness. Their monographs amount to much ado about
nothing. Under their regimes of constitutional adjudication, the continuing
force and grip of the past is ensured. With unintended perspicacity, Eugene
Rostow hit the true symbolic and ideological significance of adjudication:
“[T]he judicial opinion is a piece of rhetoric…, intended to educate and
persuade”.35
In American constitutional law, the emphasis is upon the abstract and the
procedural rather than the concrete and the substantive. While the legal
materials paint a picture of formal equality and justice, the social reality is
characterized by substantive inequality and injustice. Political and civil rights
dominate; social and economic rights have been largely ignored. 6 Indeed,
Perry goes so far as to suggest that the establishment of any socio-ecomonic
rights might “press [the judiciary’s] institutional capacity.., past the break-
ing point”.37 Yet, the formulation of a scheme of politico-civil rights, however
sophisticated, is meaningless and useless without the economic ability to take
equal advantage of them. The preoccupation with formal rights draws atten-
tion away from and, in a broad sense, legitimates the pervasive substantive
inequality in American life. If, like Joyce’s Stephen Dedalus,38 history is a
nightmare from which we are trying to awake, Bobbitt and Perry offer another
dose of soporific scholarship.
In the new age of Canadian constitutional adjudication, the lesson to be
drawn from the American experience is clear andprofound: “[T]he con-
troversy over the legitimacy of judicial review in a democratic polity –
the
historic obsession of normative constitutional scholarship –
is essentially
-“Leaming and Science” in Collected Legal Papers (1920) 138, 139.
‘The Court and Its Critics (1959) 4 S. Tex. L.J. 160, 163.
One of the few scholars to tackle this problem is Frank Michelman. See Welfare Rights in a
Constitutional Democracy [1979] Wash. U.L.Q. 659.
7Supra, note 5, 164.
,1J. Joyce, Ulysses (New York: Modem Library, Inc., 1934).
19831
BOOK REVIEWS
1043
incoherent and unresolvable”.39 Indeed, existing legal discourse over Cana-
dian federalism is in a similar state of indeterminacy, and amounts to nothing
more than stylised political decision-making. 40 In this light, the extension of
judicial review into the field of human rights and freedoms is a regressive and
not progressive step. Deprived of any sustainable background theory of
constitutional adjudication, the judges must engage in a blatant political
exercise. They are obliged to adjudicate their own value preferences.
Rather than persist in the search for some illusory constitutional grail like
our American counterparts, Cnadian scholars ought to devote their energies
and intellects to disseminating the vital message that constitutional law is
politics. Furthermore, in so far as constitutional adjudication is all about
political choices, the central challenge is to expose and criticise the nature of
the choices actually made.” The judicial community can either opt for
candour and come clean with their political preferences, or they can continue
to hide behind the discredited rhetoric of legal doctrine. Either way, the
judges cannot avoid making political decisions. As in Hans Christian Ander-
son’s fairy tale, the Emperor has no clothes on; the only choice is whether and
for how long we pretend that he is fully and appropriately clad.
Allan C. Hutchinson*
“Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative
Constitutional Scholarship (1981) 90 Yale L.J. 1063, 1063.
1 See P. Monahan, AtDoctrine’s Twilight: The Structure of Canadian Federalism (1983) 33
U.T.L.J. (forthcoming).
I’SeeH. Glasbeek & M. Mandel, The Legalization of PoliticalDiscourse and The Canadian
Charter of Rights and Freedoms (1983) (unpublished manuscript).
*Of the Faculty of Osgoode Hall Law School, York University.
Fragile Freedoms [:] Human Rights and Dissent in Canada. By Thomas R. Berger. Toronto:
Clarke, Irwin & Co., 1982. Pp. xviii, 298 [$9.50 softcover].
In Fragile Freedoms, Mr Justice Thomas Berger has made an important
contribution to the continuing public debate surrounding the Canadian Char-
ter of Rights and FreedomsI especially regarding the protection of minority
rights. The book is written in a language and style which make fundamental
human rights issues clear and understandable to a non-legal audience.
Moreover, his passionate and articulate defence of the right to dissent in a
multicultural society is compelling, and all too rare in the Canadian literature.
The author’s case is put most forcefully in the Introduction and in the
Epilogue entitled “Towards the Regime of Tolerance”. The intervening
chapters deal with eight episodes in Canadian history when minority rights
were abused: the Acadian expulsion, the loss of the Mftis homeland, the
French language school crises in Manitoba and Ontario, the internment of
Japanese Canadians in World War II, attempts to eliminate the Communist
Party and similar curbs on the freedoms of speech and association, the
persecution of the Jehovah’s Witnesses in Qudbec during the Duplessis era,
the October Crisis of 1970, and the current native rights and land claims
movement.
Although on occasion Mr Justice Berger’s description of these incidents
risks becoming an over-simplified historical travelogue, taken as a whole it
remains a successful device both to remind the reader of earlier injustices and
to support the author’s ultimate conclusion:
The confrontations between the institutions of the state and minorities and dissenters
reveal the true face of Canadian democracy. They have shown that we must establish
safeguards –
to protect minorities and
the rights of dissenters.2
stronger than those that have existed in the past –
Underlying this position is a clear belief that social and cultural diversity
is “the essence of the Canadian experience”. 3 The heir to concepts of self-
government acquired from Great Britain and France, “states that have tradi-
tionally been ethnically defined”, Canada is not such a nation-state. 4 For the
author, Canada has rejected the “melting pot” for the “social and cultural
mosaic”. As a consequence, this country has many active linguistic, racial,
cultural, and ethnic minorities. “Each of them will have a claim to collective
(softcover edition).
‘Part 1 of Schedule B, Canada Act 1982, 1982, c.lI (U.K.).
2T. Berger, Fragile Freedoms [:] Human Rights and Dissent in Canada (1982) 255
31bid., xiii.
4Ibid.
19831
CHRONIQUE BIBLIOGRAPIQUE
1045
as well as to individual guarantees… and each of them has a claim on the
goodwill of the majority. For all these minorities the right to dissent is the
mainstay of their freedom.” 5
Mr Justice Berger views the new Constitution and the Charter favour-
ably, as extending important institutional guarantees for minority rights. He
is, however, strongly critical, and rightly so in my opinion, of the s. 33
“notwithstanding” clause and of the rights to “opt out” of the Charter. Based
upon his examination of our historical experience, he does not “believe
nor have they ever been, coextensive with
diversity is –
provincial rights. Too often, we have seen one province or another insisting
upon conformity to some prevailing orthodoxy” 6 belying our multicultural
nature, denying an essential element of the Canadian experience.
or dissent is –
Given this position, a question might be raised concerning Mr Justice
Berger’s conclusion that Qu6bec must have a special right of constitutional
veto. He defends this view on the grounds that “Quebec is not a province like
the others. A veto for Quebec is a means of protecting not merely provincial
rights, but minority rights. If there is no veto for Quebec, then there is no
assurance that French Canadians will have the power to forestall amendments
to the Constitution and Charter calculated to diminish the rights.., of French
Canadians both inside and outside Quebec.” 7 This view pre-supposes an
active willingness on the part of the government of Quebec to place the rights
of French Canadians nationally above its own provincial interests and objec-
tives. But apart from small-scale grants to French Canadian groups outside
Qudbec, there has been little evidence in recent years that any Quebec
government, of whatever political stripe, is seriously interested in the plight
of the francophone minorities in other provinces. The relative lack of interest
in Qudbec about the recently propQsed official bilingualism agreement bet-
ween the federal government and the Province of Manitoba is a good exam-
ple.
The Qudbec veto question does, however, underline a significant issue
in the current debate which has not been articulated fully. Mr Justice Berger
alludes to the problem, but only hints at his preferred solution. Some Cana-
dians clearly see the Canadian Charter ofRights and Freedoms as protecting
individual rights only. Others, and the author appears to be in this category,
with his focus upon “minority” rather than “individual” dissent, stress the
Charter protection of the collective rights of minorities. The Charter itself
5Ibid., xiv.
‘Ibid., 261.
71bid., 259. This quotation does not appear in the original hardcover edition published in
1981.
1046
McGILL LAW JOURNAL
[Vol. 28
certainly provides grounds for such debate, recognizing both certain indi-
vidual rights and at least the possibility of some collective rights, such as
those recognized for the aboriginal peoples of Canada in s. 25.
If collective rights are now constitutionally recognized, do they prevail
over the rights of individuals, or will it be the other way around? The answer
to this question will have a profound impact upon the shape of Canada’s future
and of its institutions. Rooted in the Anglo-American tradition of individual
rights, perhaps the Canadian majority, if such a thing still exists, sees the
newly-articulated constitutional rights somewhat differently than do various
minority interests. The extent to which these different and often conflicting
expectations are recognized or denied by the interpretation of the new Con-
stitution in general, and of the Charter in particular, will likely provide the
focal point for angry political debate for many years to come.
Mr Justice Berger is right when he says that, at the very least, “this
exercise in constitution-making has forced us to articulate our idea of
Canada”.8 It is probable, however, that the new Constitution represents but
one step, albeit a significant one, in an evolving process of reconciling the
many different ideas of Canada.
Somewhat paradoxically, given the well-publicized rebuke by Prime
Minister Trudeau of the public statements by Berger J. regarding the Con-
stitution Act, 1981,’ the author cites Professor Pierre Trudeau with favour on
several occasions. In particular, when discussing native land claims, Mr
Justice Berger agrees strongly with the earlier Trudeau opinion that the form
of federalism established in Canada, that is, how to govern “polyethnic
populations with proper regard for justice and liberty … is an experiment of
major proportions; it could become a brilliant prototype for the moulding of
tomorrow’s civilization”. 1
Law students at the University of British Columbia are to be envied their
new teacher. As is evident from this compelling book, the continuing consti-
tutional debate will be enriched by this unfettered, strong and thoughtful
voice.
David Powell*
‘Ibid., xiv.
9Schedule B, Canada Act 1982, 1982, c.II (U.K.).
1Quoted in Berger, supra, note 2, 253.
*Of the Bar of the Province of Quebec. The author is also Secretary of the Canadian Human
Rights Foundation.
Criminal Pleadings and Practice in Canada. By Eugene G. Ewaschuk. Toronto: Canada Law
Book Ltd, 1983. Pp. cl, 700. [$90.00].
This prodigious book is the measure of its maker. As Crown prosecutor,
professor of law, Director of Criminal Justice in Saskatchewan, federal
Director of Criminal Law Amendments, and currently, as General Counsel
for criminal law in the federal Department of Justice, where he remains active
in legislative reform and appellate litigation, Mr Ewaschuk has had a career of
remarkable variety. In these pursuits he has acquired an encyclopaedic know-
ledge of criminal jurisprudence that extends beyond the minutiae to the
scintillulae of the law. Some of this erudition has now been reduced to print,
and the result is a signal enrichment of the literature on criminal law in
Canada.
Mr Ewaschuk’s objective is to state the law on selected aspects of
criminal practice in the form of succinct propositions. These propositions are
delivered ex cathedra and are supported by citations to representative cases,
academic articles and other materials. The result resembles a factum of some
six hundred pages. Here, for example, is a specimen drawn from the chapter
on the form and content of indictments and informations:
9.70 Defect in form
A count which is double or multifarious constitutes, at most, a defect in
form.
R. v. McGloan, [1976] 2 S.C.R. 842, 25 C.C.C. (2d) 498, 62 D.L.R. (3d) 641
R. v. Cotroni:Papalia v. The Queen, [1979] 2S.C.R. 256,45 C.C.C. (2d) 1,7 C.R. (3d)
185
R. v. Edgar and Rea (1962), 132 C.C.C. 396, 38 C.R. 110 (B.C.C.A.)
R. v. Gosse (1973), 11 C.C.C. (2d) 541, [1973] 3 W.W.R. 176 sub nom. Gosse v. A.-G.
B.C. (B.C.C.A.)
R. v. Graham andHewitt (1977), 45 C.C.C. (2d) 245, [1977] 4 W.W.R. 84 (Alta. S.C.
App. Div.)
Contra. R. v. Toth (1959), 123 C.C.C. 292, 29 C.R. 371 (Ont. C.A.)
R. v. Brunet, [1968] 2 C.C.C. 74, 2 C.R.N.S. 264 (Sask. C.A.), revd on other grounds
[1968] S.C.R. 713, [1969] 1 C.C.C. 297, 4 C.R.N.S. 202
See Fred Arthur, “Duplicity: Terminal or Curable?” (1972), 16 C.R.N.S. 205
Michael Lipton, “Duplicitous informations charging offences under s. 222 or 223 of the
Criminal Code” (1968), 2 C.R.N.S. 274.
And another from the chapter on the arraignment and plea:
1048
REVUE DE DROIT DE McGILL
[Vol. 28
14.96 Perjury
Issue estoppel does not necessarily, but may, apply to subsequent proceed-
ings involving a perjury charge arising out of an acquittal at a previous
proceeding in respect of another offence.
Gushue v. The Queen, [1980] 1 S.C.R. 798, 50 C.C.C. (2d) 417, 16 C.R. (3d) 39
R. v. Bavn (1932), 59 C.C.C. 89, [1933] 1 D.L.R. 497 (Sask. C.A.)
R. v. Gordon, [1980] 3 W.W.R. 665 (Alta. Q.B.)
Contra. R. v. Linnen (1981), 61 C.C.C. (2d) 13, 9 Sask. R. 359 (Dist. Ct.)
D.P.P. v. Humphrys, [1976] 2 All E.R. 497 (H.L.)
See K.L. Chasse, “Issue Estoppel and Perjury by the Accused” (1974), 25 C.R.N.S. 164
But this is not merely a catalogue of lists and annotations; each proposition
demonstrates a distillation of the jurisprudence and thus is distinguished from
a headnote that describes the content of a particular case or an annotation that
recites authorities under chosen headings. Occasionally, however, proposi-
tions that cover only the issue and ratio of a particular decision are drafted in
such a way as to convey the impression that they may have wider application.’
Moreover, in the preface the author acknowledges that by the very nature of
stare decisis each proposition of law is in some measure bound to be approxi-
mate and provisional. He also notes that references marshalled in support are
not necessarily comprehensive or consistent authorities for the statement
advanced. 2 Accordingly, the reader is warned that this book is not a substitute
for primary research.
The scope of Mr Ewaschuk’s book is defined by its title. We are given
propositions on rules, practices and problems that arise in the course of the
prosecutorial process. As suggested by the word “pleadings”, much of the
text is devoted to a consideration of issues concerning the documents of
criminal process. As intended by Mr Ewaschuk, “pleadings and practice” is a
compendious phrase that describes the machinery of criminal procedure, and
though the book touches upon almost all aspects of the criminal process, it
excludes systematic analysis of the rules of evidence or principles of substan-
tive law. Specifically, the seven parts of the book extend from the commence-
ment of legal process to the final disposition of a criminal prosecution:
jurisdiction and venue; search and seizure, protection of privacy, arrest and
release from custody; classification of offences, election and re-election;
‘See, e.g., E. Ewaschuck, Criminal Pleadings and Practice in Canada (1983) 25-35:
Except on grounds of bias, it seems that prohibition will not lie prior to trial on the basis
that a preliminary issue, e.g., whether the Canadian Bill of Rights renders the offence
ultra vires, must be resolved only after a trial on the merits.
ReBaptiste andThe Queen (1982), 65 C.C.C. (2d) 510, 134 D.L.R. (3d)
382 (B.C.C.A.)
2lbid., x-xi.
19831
CHRONIQUE BIBLIOGRAPHIQUE
1049
indictments and informations; the trial process (prosecution to sentence); the
mentally-disordered offender; and, finally, appeals and extraordinary rem-
edies. At one end of the spectrum, therefore, Mr Ewaschuk has excluded
general discussion of criminal investigation, and at the other end he has
excluded the law on corrections.
The organization and presentation of the book emphasize ease of refer-
ence, and for this reason alone the book should prove immensely popular as a
practitioner’s manual. For students and scholars too, it will provide a useful
source of basic principles in criminal procedure, especially with regard to
insights that emerge from years of practice at the criminal bar. For none will
this book prove to be a comprehensive digest of criminal law, nor was it
intended as such, but all who consult it will save many hours of tiring, and
expensive, research.
Nevertheless, given that the book is so highly structured in chapters,
headings and sub-headings, and that propositions are numbered sequentially
within each chapter, there is no adequate scheme for cross-references. In-
deed, there are few references to apposite propositions elsewhere in the text.
Such references would be useful, for example, where one discrete proposition
invites consideration of a broader range of propositions, as in the relationship
between 13.103 and the subsequent consideration of extraordinary remedies
in Part 7. The index is simply insufficient for this purpose. For example, not
only does the index fail to include headings under “presumption”, “burden” or
“onus”, but it entirely omits “evidence” as a separate heading. Propositions
relating to general concepts that have multiple applications, such as “reason-
able and probable grounds”, are not brought together under a single heading.
Some entries are simply threadbare, such as “summary conviction”.
Despite the declaratory style of the text, the author does not claim
infallibility, and it cannot be said that all propositions in the book have been
purged of conjecture or opinion. The selection of supporting references is also
at times idiosyncratic, sometimes even incomplete. Having cited a particular
source once, Mr Ewaschuk usually declines to cite it again, even though
further reference would often be quite useful. For example, Mr Archibald’s
excellent essay on arrest,4 which is one of the best treatments of the subject in
3Ibid., 13.10 [references omitted]:
An extraordinary remedy is only available during a preliminary inquiry where the
justice either does not have or loses jurisdiction. A writ is not available where the justice
errs unless such error is jurisdictional.
“The Law of Arrest” in V. Del Buono, ed., Criminal Procedure in Canada
l’arrestation” in V. Del Buono, ed., Procddure
4Archibald,
(1982) 125; Archibald, “Le droit relatif
pinale au Canada (E. Groffier-Atala, trans. 1983) 143.
1050
McGILL LAW JOURNAL
[Vol. 28
Canada, deserves much more frequent reference in Chapter 5. The practical
basis for this criticism is that, if the book is to be used as a manual,
practitioners seeking guidance on a specific point might miss useful and
important information if they do not take the time to canvass other citations in
the relevant chapter. Also, quite apart from the frequency of citations, more
references to secondary literature would enrich the text. It is perhaps most
surprising that the book suffers from a relative dearth of references to texts
and articles written in French. The chapter on invasion of privacy, for
example, lacks any mention of Daniel Bellemare’s many writings in the area.
Similarly, the recent text by B6liveau, Bellemare and Lussier I is not given the
attention it deserves. Particularly in recent years, there have been many
valuable and important French-language contributions to the study of crimi-
nal law in Canada, and one can only hope that future editions of this book will
include more extensive references to these materials. Despite this criticism, it
must be said that this remains a book of national importance that will be used
across the country. If such plans are not already under consideration, the
author and his publishers should study seriously the possibility of publishing a
French translation.
It is also to be hoped that in future editions the propositions advanced in
the text will be expanded to give some indication of the provenance or
evolution of doctrinal principles, especially where there is or has been some
division of opinion in the courts. Without such amplification, this book will
not become a comprehensive text on Canadian criminal jurisprudence, as
indeed it should. As it stands, it will serve the novice as an important guide to
other materials; for the master, it will be a reminder of what he knows, or
ought to know, already. But if the book is to become a text, it will require not
only greater exposition and elaboration; it will also have to include topics not
covered in this first edition. The author notes that he has already decided that
new chapters are needed on the Charter,6 and on contempt, possession,
extradition and defences to criminal charges.7 To this list one might add a
chapter on inchoate offences, another on young offenders, and another on
rules of evidence in criminal cases, especially if Bill S-33,8 now pending
before Parliament, is enacted.
The reader is informed in the preface that the publisher is committed to
the release of supplements. One assumes, of course, that the publisher is also
-P. Bdliveau, J. Bellemare & J.-P. Lussier, Trait6 de procddure pinale (1981), t. I; P.
Bdliveau, J. Bellemare & J.-P. Lussier, On Criminal Procedure (J. Muskatel, trans. 1982).
6Canadian Charter ofRights and Freedoms, Part I of Schedule B, Canada Act 1982, 1982,
7See supra, note 1, xi.
8lntroduced in the Senate 18 November 1982. As of 30 June 1983, the Bill remained in
c. II (U.K.).
Senate committee.
1983]
BOOK REVIEWS
1051
committed to the book as a continuing venture that will evolve through
successive editions. Though it might be asked whether a loose-leaf format
might serve these purposes more conveniently and economically, the differ-
ence between these two styles of presentation is largely cosmetic, although a
bound volume imposes natural constraints and a margin of perspective upon
what should be considered as significant trends or developments in the law.
Once again, such a constraint is one factor that will assist in distinguishing
this book from annotation services.
If only by its title, and larcenous price, Mr Ewaschuk’s book invites
comparison with Archbold, 9 which is now in its forty-first edition. Such a
comparison would be invidious if pursued at length, but it is to be hoped that
as it grows and matures with successive editions this book will become the
Canadian analogue to that great English text. Mr Ewaschuk has set a firm
foundation and we are indebted to him for it.
Patrick Healy*
9J. Archbold, Pleadings, Evidence and Practice in Criminal Cases, 41st ed. (S. Mitchell
1982).
*Of the Law Reform Commission of Canada.
Essays on Legal Education. Par Neil Gold, 6d. Toronto: Butterworths, 1982. Pp. xi, 136
[14,95$].
On serait port6 hL croire que les dissertations sur l’enseignement du droit
int6ressent seulement les professeurs de droit, mais le recueil d’essais
des sujets tout aussi pertinents pour les
compil6s par Neil Gold touche
praticiens que les enseignants. Ces essais traitent, entre autres, du r6le
traditionnel de l’avocat, tel que l’on nous le peint A l’Ecole de droit, et de celui
que, plus tard, l’on decouvre en tant que membre d’une association d’avocats.
Toutepersonne ayant entrepris la pratique du droit se demande, t6t ou
tard, si l’Ecole de droit lui a enseign6 les “bonnes choses”. En droit, la
transition de la th6orie h la pratique a toujours 6t6 des plus difficiles. Ces
essais nous invitent A r6fl6chir sur l’enseignement du droit et nous sugg~rent
des id6es qui pourraient am6liorer la pratique du droit telle que nous la
connaissons.
Dans son ouvrage, Gold nous pr6sente sept articles d’une vingtaine de
pages chacun, ce qui en fait un excellent livre de chevet pour le praticien ou
l’enseignant occup6. Chacun y trouvera des articles stimulants.
Le premier article, sign6 par Paul C. Weiler, titulaire de la Chaire
d’6tudes canadiennes MacKenzie King A la Facult6 de droit de Harvard, lance
un d6fi aux Ecoles de droit, soit celui de produire des dipl6m6s ayant une base
acad6mique solide et des connaissances techniques tr~s grandes. Monsieur
Weiler fait un bref r6sum6 des changements essentiels qui se sont produits
dans l’enseignement du droit depuis 1950, pour conclure que les facult6s de
droit constituent l’endroit id6al pour enseigner aux 6tudiants comment trouver
des r6ponses innovatrices aux probl~mes auxquels ils auront A faire face
quelques ann6es plus tard.
La position d6fendue par M. Weiler comprend deux volets: d’une part,
les facult6s de droit doivent pouvoir compter sur des professeurs comp6tents,
et, d’autre part, les cours d’admission aux barreaux et les stages doivent venir
compl6ter l’enseignement universitaire. Les professeurs de droit doivent,
pour leur part, rendre l’enseignement du droit int6ressant et agr6able pour les
6tudiants. L’6tudiant doit apprendre A s’instruire par lui-meme. Les associa-
tions d’avocats et les facult6s de droit doivent travailler en 6troite collabora-
tion pour donner aux 6tudiants une formation complete.
Francis A. Allen, professeur de droit A I’Universit6 du Michigan, parle
du manque d’humanisme dans l’enseignement du droit, et, j’en conclus, dans
la pratique du droit par la suite. II est temps qu’on questionne le r6le
traditionnel des avocats, sugg~re-t-il. Le droit est un instrument de r6forme
sociale qui doit servir l’int~r& public. On doit donc enseigner aux 6tudiants
non seulement ce qu’est la loi mais aussi ce qu’elle devrait 6tre. On doit se
19831
CHRONIQUE BIBLIOGRAPHIQUE
1053
joindre aux autres disciplines, telles la sociologie, la biologie et la psycholo-
gie, afin de trouver des solutions aux probl~mes plus complexes que nous
vivons aujourd’hui.
Monsieur Allen nous recommande de prrciser nos valeurs et de ne pas
oublier nos liens 6troits avec les autres sciences humaines dans la presentation
que nous faisons de la doctrine et de la throrie dans les cours de droit. L’on
doit souvent se poser les questions: “Pourquoi faisons-nous certaines
choses?” et “Devrions-nous les faire?” C’est ‘a l’tcole de droit que le futur
avocat doit apprendre critiquer la loi et la profession. Si l’on ne se critique
pas soi-m~me, d’autres le feront 6ventuellement ‘a notre place. Pour bien
comprendre la loi, il faut en connaitre les buts. De fait, comment peut-on
changer la loi si l’on ne sait pas si elle atteint ses objectifs et si ses objectifs
sont reprdsentatifs de la communaut?
C’est IA un drfi d’autant plus exigeant que l’on vit dans une socirt6 oil les
valeurs traditionnelles sont continuellement remises en question. Les facultrs
de droit doivent preparer des praticiens comp6tents: pour ce faire, il leur faut
savoir accorder l’importance voulue ‘a l’6tude des valeurs sociales, que tout
juriste doit 6tre en mesure de considrrer ‘A l’avenir.
Neil Gold, l’6diteur du recueil, nous fait voir comment l’6ducation
permanente peut rrpondre aux lacunes de l’enseignement universitaire. Mon-
sieur Gold est le directeur du cours d’admission au Barreau de la Colombie-
Britannique et professeur ‘a la Facult6 de droit de l’Universit6 de Victoria. Il
est convaincu que l’dducation permanente est absolument n6cessaire aux
praticiens et pense qu’il est impossible pour un avocat de maintenir un niveau
de competence appropri6 sans se mettre ‘ jour par l’entremise des cours
offerts h l’6ducation permanente. Nous devons rendre compte au public,
dit-il. Les associations d’avocats doivent rrpondre aux besoins de leurs
membres, et l’6ducation permanente est le moyen par lequel les membres des
barreaux pourront efficacement traiter, par exemple, des questions de publi-
cit6, d’emploi de cartes de cr6dit, d’autres sources de services juridiques,
d’assurance et de conduite professionnelle. En somme, c’est le moyen privi-
16gi6 pour permettre aux avocats de participer ‘a leur drveloppement profes-
sionnel. Le r6le des associations d’avocats est au coeur de la discussion. Les
associations ne peuvent se contenter de discipliner sans aussi offrir de la
“thrrapie”. L’on doit d’abord comprendre ce qu’est la comp6tence et l’on doit
am6liorer constamment la qualit6 du travail pour garder le respect du public.
Nous devons donc savoir d6crire le travail que font les avocats, leurs
aptitudes, leurs attitudes, leurs valeurs, leur savoir et leurs habiletrs pour
identifier les crit~res de comp6tence. Les associations d’avocats doivent
s’assurer de la comptence et de la supervision de leurs membres.
1054
McGILL LAW JOURNAL
[Vol. 28
L’article de William Twining, Taking Facts Seriously, m’a particuli~re-
ment int6ress6. Monsieur Twining traite de l’enseignement de la preuve et de
la recherche n6cessaire pour d6couvrir les faits d’une cause. Il nous d6montre
comment la loi et les faits sont entrem6ls et comment on peut faire erreur en
enseignant que certaines choses ne font pas partie du droit, mais constituent
de simples questions de fait. Nous ne devons pas oublier que la majorit6 du
temps d6vou6 A la pr6paration d’un dossier, en pratique, est consacr6 A la
recherche des faits. Or, nous n6gligeons dans 1’enseignement du droit de la
preuve, la recherche des faits. Nous ne pr6parons pas assez bien nos licenci6s
pour le travail devant les tribunaux de premiere instance. Monsieur Twining
fait notamment l’historique du d6veloppement d’une m6thode de recherche
des faits.
L’on doit trouver un juste milieu entre l’enseignement de la loi et
l’enseignement pratique. L’on doit enseigner non seulement le raisonnement,
la rh~torique et la logique, mais aussi l’art de plaider.
Monsieur Twining examine deux tentatives qui ont 6t6 faites dans
l’enseignement EPF (“evidence, proof and facts”); celle de Wigmore et celle
de Rutter. I1 discute ensuite la raison pour laquelle on ne met pas le temps
requis A prdparer l’6tudiant A savoir faire la recherche de faits complexes. On
n6glige aussi le r6le central de l’avocat. II faut 6tre r6aliste; le droit comprend
plus que l’6tude des lois. Lorsque l’on voit combien de praticiens s’empres-
sent A chaque ann6e A suivre des cours d’6ducation permanente sur l’art de
plaider, par exemple, l’on est forc6 de conclure que Twining a raison.
Andrew Petter examine deux theories de l’enseignement et nous d6-
montre leurs applications. A quel niveau doit-on enseigner le droit? Quels
sont les d6savantages de la mfthode socratique? Monsieur Petter discute aussi
de l’enseignement efficace de valeurs, d’attitudes et d’int6rts. La loi est un
syst~me de valeurs et l’enseignement des valeurs, pr6sentement n6glig6, lui
parait important.
David L. Johnston a exerc6 plusieurs professions: professeur, commis-
saire A la Commission des valeurs mobili~res et officier sup6rieur dans une
universit6. II ddmontre que le r6le qu’il a jou6 dans le contentieux d’une
soci6t6 commerciale est l’un des rfles les plus importants de sa propre
carri~re; il croit que c’est l& l’un des r6les les plus importants pour ]a societ6.
En effet, les soci6t6s commerciales disposent d’un pouvoir aussi important
que celui des gouvernements, et il nous rappelle leur extreme importance dans
notre syst~me. C’est A nous, avocats, d’all6ger la tension qui existe entre les
soci6tds commerciales et les gouvernements, pense-t-il. Celles-ci doivent etre
conscientes de leur influence sur la soci6t6 et sur l’6conomie. L’auteur discute
du r6le de l’avocat du contentieux, de l’avocat dans un bureau priv6 et de
1’avocat qui travaille pour une soci6t6 commerciale sans toutefois y jouer le
19831
BOOK REVIEWS
1055
r6le traditionnellement d6volu A celui-ci. A cette 6poque, nous sommes de
plus en plus conscients de notre responsabilit6 professionnelle; il ne faut pas
oublier d’en voir le r6le dans le monde des affaires. Nous avons des reponsa-
bilit6s importantes relativement A la question de la divulgation de l’informa-
tions et de la protection des int~r&s des actionnaires; nous avons aussi une
certaine influence sur la fagon dont les directeurs exercent leurs r6les.
La derni~re contribution porte sur la politique d’admission A la nouvelle
Facult6 de droit de Calgary. Les buts de l’Ecole de droit sont de pr6parer des
avocats qui pourrontjouer de nombreux r6les dans la soci6t6, sauront prendre
des d6cisions et feront appel A une approche multidisciplinaire. Avec ces
objectifs en tate et une politique d’admission innovatrice, ce fut un d6fi de
choisir soixante 6tudiants parmi un groupe de quelques mille postulants.
I1 est encourageant de prendre connaissance d’une partie des r6flexions
ce ceux qui s’int6ressent A l’enseignement du droit. Dans le pass6, on s’est
content6 de r6aliser qu’il existe un probl~me dans l’enseignement tradition-
nel, tout en s’arr~tant IA. II faut commencer par cerner le probl~me; pour
ensuite suggdrer des alternatives. Cette collection de dissertations n’est qu’un
d6but. L’on ne peut qu’esp6rer que le recueil invitera d’autres juristes A traiter
d’une mani~re plus approfondie de questions particuli~res, comme par
exemple l’enseignement de l’6thique professionnelle, l’enseignement effi-
cace et la pratique du droit. Le tout, bien qu’il soul~ve des probl~mes, reste
g~n6ral et superficiel. Les enseignants ont besoil d’un meilleur outil. I1 n’est
pas suffisant de constater l’id~al, il faut tre capable de proposer des mesures
concretes pour l’atteindre. La comp6tence voulue ne sera acquise que si tous
participent: membres d’associations professionnelles, enseignants et 6tu-
diants.
Yvette Michaud*
*Avocate-superviseur, Services juridiques communautaires, Dieppe, Nouveau-Brunswick.
To be a Trial Lawyer. By F. Lee Bailey. Marshfield, Mass.: Telshare Publishing Co., 1982.
Pp. xvi, 215. [$14.95 U.S. softcover].
The front cover of this book is inscribed “To be a trial Lawyer by F. Lee
Bailey”. It is a well chosen title, for its mildly ambiguous wording indicates
much of what the book is about. It is not entirely an instruction manual for
would-be trial lawyers, so the “how” is properly absent from the title.
Missing, too, is the second half of Hamlet’s most famous line suggested by
the first two words of the title. The author does, however, take up its echo in
his introduction, so the value of this book for those who are not to be trial
lawyers is declared early:
Among [the young men and women who are considering advocacy] there are those who
simply do not possess the innate characteristics of personality, philosophy, endurance,
drive, speed, and wit to be comfortable in this line of work, and this book will serve them
best by persuading them to seek their fortunes elsewhere. Not everyone is suited to the
demands of this calling, any more than everyone is suited to become a jet aircraft test
pilot.,
This sort of naked enthusiasm for the positive characteristics of a trial lawyer
is so pervasive that the title might be interpreted simply as a sigh of compla-
cence from a happy practitioner. Furthermore, the inclusion of the “by”
between the title and the author’s famous name leads to a small suspicion or
hope that the compliant reader will be formed into a particular mould of ability
and success.
There can be little doubt that Mr Bailey is an able and successful defence
lawyer. His two previous autobiographical works 2 tell of his indefatigable
investigative and court-room work in the cases of Albert DeSalvo (The
Boston Strangler), Dr Sam Sheppard, Carl Coppolino, Capt. Ernest Medina,
and Sonny Carson. His diligent efforts on the behalf of Patty Hearst are well
known. He is the author of several other books including one novel, and he
spends a fair proportion of his time delivering lectures to various interested
groups, among them students at universities and law schools. He says that he
is almost always asked during these sessions about the best way for an
aspiring trial lawyer to prepare himself for his future profession and that this
particular book is intended as his response to such queries. There are no other
texts available to provide answers to the depth that he feels these questions
demand, given the inexperience and eagerness of those that ask. Harvard
professor Alan Dershowitz, in his foreword to the book, sees this work as “a
‘F. Bailey, To be a Trial Lawyer (1982) xv.
2 F. Bailey with H. Aronson, The DefenseNeverRests (1971); and F. Bailey withJ.Greenya,
For the Defense (1975).
1983]
CHRONIQUE BIBLIOGRAPHIQUE
1057
giant step toward filling… [a] vacuum in legal education”. 3 He regards Mr
Bailey as an outstanding advocate who is able to communicate the practical
skills of his trade in a way that law professors are rarely able to do because
they have neither the experience nor the court-room knowledge to pass on to
their students.
To be a Trial Lawyer, then, is directed primarily at the pre-law or law
student who needs to know how to train himself to acquire the skills he will
later use in the court-room (in spite of Professor Dershowitz’s recommenda-
tion of the book to all lawyers needing improvement in their trial techniques
and Mr Bailey’s assertion that it is helpful to parents, educational counsellors
and even to clients facing important trials 4 ). The distinct patronising tone and
occasional platitudes about the law and personal integrity would be somewhat
irritating without an understanding that ‘the book is really aimed at the
youngest and most inexperienced members of the legal community. For sure,
a young person ready to begin his training in advocacy will welcome the
fatherly advice “to think and breathe evidence every day from now un-
til… [his] first case in court, and then forevermore” 5 as well as exhortations
“never [to] settle for less than the truth from his client, even when the truth
hurts” 6 or to understand that “[hie is the last resort, the last hope for justice”.7
In his “few moments of straight talk” at the very end of the book, the author
impresses upon his reader not to be swayed by power or money and always to
speak the truth: “Lying should be restricted to telling infants about Santa
Claus and elderly people in poor health that they are looking ‘better.”‘ I There
is a stem warning to develop what he calls “rock-solid personal integrity”.9
The book is clearly and logically structured. The first part is devoted to
the way that a student can early train himself in the skills that he will need to
bring to the court-room. Mr Bailey concentrates first upon the general qual-
ities required of a trial lawyer: resourcefulness, initiative and imagination. He
suggests a scheme of liberal arts undergraduate study that would help a
student develop these qualities. He even throws in the notion that a student air
pilot course is a good way for a person to become confident and shine with
accomplishment. Into this preliminary section he weaves stories of his own
flying career in the United States Navy and Marine Corps as well as extended
analogies to chess, warfare and football, all designed to get his message
3Supra, note 1, x.
4Ibid., xi and xv.
‘Ibid., 75.
61bid., 11.
7Ibid., 13.
$lbid., 213.
Ibid.
1058
McGILL LAW JOURNAL
[Vol. 28
across as emphaticallly as possible. It is precisely this ability to present
snippets of anecdotes, hints, formulae, and inside information bound together
into a far-ranging but coherent whole that makes his writing easy to read and
understand. For the particular admirers of Mr Bailey, it will be a delight.
Using the same technique, he moves rapidly on to the ways of gaining and
maintaining a command of the language, both written and spoken, and then
concentrates an entire chapter on the development of the memory. Mr Bailey
believes strongly that a good memory is the key to an efficient court-room
performance, so he carefully explains some tricks of memory training. Were
they evidently not so effective for him, his elaborate mnemonic devices
would be comical even in the context of this book.
The second part of the book, however, enables Mr Bailey to command
where he is used to commanding. The account moves the reader logically
forward from the general preparatory aspect of advocacy to the action within
the court-room itself. There is an amazingly compact chapter serving as a
swift introduction to the law of evidence and some useful materials on dealing
with judges and working with a jury –
all peppered with tales from the
author’s own considerable experience. At last he gets to his favourite subject
and one that is always held up as the mysterious key to a trial lawyer’s success:
witness examination, expecially cross-examination.
What is cross-examination? It is many things. It has been described as an engine of truth,
and a bulwark of liberty. Some say it is the most devastating weapon man has discovered,
including things nuclear. It is a nonviolent substitute for the gun and the sword. 0
Here Mr Bailey is at his magnificent best as an instructor. The methods and
techniques that he has been laboriously teaching in the previous pages are
brought together and summarized in list form. He gives a couple of golden
rules to the art of cross-examination with reasons, examples and old law
school jokes. To illustrate some of his points, he sets up an extended court-
room examination with a commentary in which he plays the part of the
impeaching examiner so that the reader is able dramatically to appreciate the
exemplary hard work and talent of the master advocate. It is a fast-moving,
solid section and the following chapter about the final argument before the
judge and jury serves similarly as a model of the good trial lawyer’s skill in
legal persuasion. These latter portions are fine enough to let the author be
forgiven for his return to the mundane mode of “Going to Law School” and
“Growing After Law School” into which he chooses to sink with his closing
paternal admonitions.
All in all, this book is entertaining and readable. It certainly illuminates
the techniques employed by one of the best known defence lawyers in the
1Ibid., 135.
1983]
BOOK REVIEWS
1059
United States. It may well be a source of useful information for a would-be
trial lawyer, a lasting source according to its author:
It is not meant to be digested at one sitting, or even two. Much of what it contains is subtle,
and needs to be examined repeatedly as you mature, grow, and progress if you are to
benefit most from the ideas, suggestions, rules, and principles herein.”
Most of all, though, it is a lively show of a supremely confident man, one who
enjoys and believes in what he does and one who manages to communicate
that for him, to be a trial lawyer is the best of all possible lines of work.
Ann Scholberg*
“Ibid., xvi.
*M.A. (Concordia); LL.B. (McGill).
Competition Versus Monopoly [:] Combines Policy in Perspective. By Donald Armstrong.
Vancouver: The Fraser Institute, 1982. Pp. xxxii, 263 [$15.95].
The author is an economist and a professor of management at McGill
University. He has acted as an economic consultant to industry and as an
expert witness for various firms sued under the Combines Investigation Act. ‘
This text is not, therefore, couched in legal terms. It is by way of response to
the Framework for Discussion 2 released by Consumer and Corporate Affairs
Canada in April 1981, which introduced proposals to amend the Combines
Investigation Act.
There can be little doubt that the proposed Stage II amendments will
have a notable impact upon the structure of the Canadian economy., An
analysis of the policy considerations underlying the proposed changes –
from an economist’s perspective –
is therefore highly relevant. The author
limits himself to a discussion of the suggested monopoly, merger and con-
spiracy provisions. Nevertheless, he raises some basic questions that should
be considered before an intelligent attempt can be made to exact legislative
changes. For example, if we wish to protect competitive forces within an
industry, what do we mean by “competition”? What is meant by the term
“industry”?
Professor Armstrong concludes that the legislation and the proposals
reflect the structuralist school’s definition of competition. The structuralist
(or classical) view of competition in a market system 4 continues to be taught
in basic economics texts. It measures competition by the number of firms in
an industry. The classical view, as first developed by Adam Smith, revolves
around the notion that the individual producer will always exact excess profits
from the consumer unless the market for the product is perfectly competitive.
A perfectly competitive market, in turn, requires a large number of producers
of an homogeneous product all of whom must sell the product at an identical
price. That price is determined at the point where the marginal cost of
producing an additional unit equals the marginal revenue earned by that unit.
As every student of introductory economics knows, the only basis upon
which a producer can compete in such a market is price. In a perfectly
competitive market, however, any price adjustment will eventually be fol-
lowed by the other producers. Thus, nothing would be gained by such a move.
Ironically, the perfectly competitive market in equilibrium will experience no
‘Combines Investigation Act, R.S.C. 1970, c. C-23, as am.
2Consumer and Corporate Affairs Canada, Framework for Discussion (1981).
3M. Flavell, Canadian Competition Law [:] A Business Guide (1979) 13.
ID. Armstrong, Competition Versus Monopoly [:] Combines Policy in Perspective (1982)
9-32.
1983]
CHRONIQUE BIBLIOGRAPHIQUE
1061
competition. Furthermore, the structuralist school maintains that each firm
will strive to maximize its profits and will reach the market’s equilibrium
point while ignoring the potential reactions of rival producers. It is this model,
the author concludes, which provides the rationale for s. 32 of the Combines
Investigation Act. The structuralist contention that a large number of firms is
necessary for effective competition, in turn, motivates the prohibition in s. 33
against the formation of a merger or monopoly.
There are serious flaws in this structuralist analysis. First of all, the view
of competition that emerges is far removed from what the individual experi-
ences each day in the marketplace. As the author points out, if a boxer were to
endeavour to be more competitive in the ring by minding his own business and
ignoring his rival, he would meet with little success.5 Secondly, Armstrong
notes that aside from agriculture (in which farmers –
through co-operatives
– behave in a decidedly uncompetitive manner), no industry seems to exist in
which an undifferentiated product is manufactured. In response to buyers’
multidimensional needs, the products churned out in a given sector will vary.
In fact, if we define an industry in terms of the undifferentiated products
made, an argument can be fashioned that each firm is a monopoly.6 Finally,
Armstrong argues that the proposed amendments reflect an economic theory
that is now being supplanted in economic circles by the behavioural theory of
the Schumpeterian model.7 It is that school, according to the
competition –
author, which is more realistic and which reflects more accurately the com-
petitive behaviour that actually occurs in business.
The Schumpeterian school recognizes that few perfectly competitive
markets exist and that, generally speaking, price is not the sole ,factor which
differentiates competing offers. The process of innovation and imitation
ensures that each offer is a multi-variable package that strives to meet the
multi-dimensional needs of consumers. Furthermore, even if price is the sole
differentiating factor, the behaviouralists recognize that no single price may
emerge in the marketplace. For example, two firms producing an identical
widget may start off with identical pro forma prices. However, one of the
firms may vary the terms of payment so that they are more advantageous to the
buyer. If the other firm does not respond, it will lose its clientele to the
innovator. In contrast to the classical view, successful competitive behaviour
under this model (not anti-competitive actions) will result in fewer firms.
Businesses that had used the now-obsolete technology or terms of contract
will lose their market share and close. Furthermore, behaviouralists recognize
that, in order to compete successfully, the firm must be aware of and respond
to its rivals.
5Ibid., 78.
61bid., 92.
7j. Schumpeter, Capitalism, Socialism, and Democracy, 3d ed. (1950) 59-142.
1062
McGILL LAW JOURNAL
[Vol. 28
In so far as the number of rivals necessary for effective competition is
concerned, the Schumpeterian analysis –
because it defines competition in
terms of innovative behaviour –
suggests that the existence of only one firm
may be sufficient for a “competitive” market. The reason for this conclusion
is that the innovating firm competes against past firms and products that it has
supplanted, as well as against future innovators who, attracted by the higher
profits the firm commands because of its initial innovation, will try to usurp
this surplus by imitation and new innovation. The only way the first innovator
can prevent its own downfall is by continuing to innovate. Therefore, the
behaviouralists contend that the key to competition is free entry into the
marketplace (that is, free of constraints other than natural barriers such as
capital requirements).
The adoption of the Schumpeterian theory over the structuralist school
would have far-reaching effects upon anti-combines policy. First of all,
because an offer is seen as multi-variate and not differentiated solely on the
basis of price, it would be more difficult for two rivals to reach a consensus or
agreement on all the elements of an offer;’ even if competitors were to agree
on price, other factors would remain different and the businesses would
continue to compete. The behaviouralist, therefore, would be less concerned
about the possibility that rival firms might enter into a conspiracy. The notion
of conscious parallelism would certainly not disturb a behaviouralist. 9
Secondly, the number of firms is not central to competition in the
behaviouralist model, and consequently, mergers, monopolies and market
concentration are not necessarily to be feared. What is regarded as important
is the quality of the total offer to the consumer. Indeed, Professor Armstrong
points out that many of the strategies designed to produce superior perform-
ance and better competing offers will, if successful, also lead to increased
competition. 1o
Professor Armstrong accepts this analysis wholeheartedly, and even
glosses over the one requirement that the behaviouralist moddl indicates is
necessary for effective competition: free entry into the marketplace. One
would expect a firm to use the economic clout it gains through innovation to
sArmstrong, supra, note 4, 209-10.
9The term “conscious parallelism” describes the phenomenon of parallel conduct in a
few-firm industry or oligopoly. Typically, it is exemplified by price leadership on the part of
one firm that is followed by its rivals. For a fuller discussion of conscious parallelism, see
Flavell, supra, note 3, 169-71. In the past, the phenomenon has caused quite a bit of
controversy before the courts. See, e.g., R. v. Armco Canada Ltd (1976) 13 O.R. (2d) 32,
(1976) 30 C.C.C. (2d) 183 (C.A.); and R. v. Atlantic Sugar (1976) 26 C.P.R. (2d) 14 (Qu6
S.C.). A rdsum6 of the judgment may be found at [1976] C.S. 421.
10Armstrong, supra, note 4, 203.
1983]
BOOK REVIEWS
1063
block entry into the market by new innovators. Furthermore, it seems reason-
able to question whether a firm with a large bureaucracy and a substantial
capital investment in a given technology would itself seek new innovations
rather than merely attempt to secure its current position. Armstrong’s argu-
ments in this regard lack credibility. He concedes that the firm must maintain
a highly-motivated labour force to remain competitive. Using the psycholog-
ical theories promoted by Maslow and Herzberg, “1 the author concludes that
if a freeze is imposed upon innovation, a freeze is also set upon the total offer
made to workers to ensure their productivity.
[T]here are higher needs in the human need hierarchy that lead one to expect managers to
struggle to improve through rivalry, rather than to be the same as everyone else through
conspiracy. Self-esteem, the need for self-respect, autonomy, status, reputation, self-
actualization and so on, all suggest a quest for better performance and achievement. These
higher goals are difficult to reconcile with a cartel that prevents or even slows down the
rate of offer-improvement, or that freezes a company’s position vis-a-vis its
competitors. 12
Unfortunately, Professor Armstrong confuses the typical manager’s
quest for better performance and achievement with what the behaviouralist
would see as better performance by the firm. The two are not logically related.
Many major innovations would involve capital expenditure. As the innova-
ting firm expands, the analysis of competing projects vying for fixed capital
expenditure dollars and the allocative decision lies, typically, with employees
other than the manager proposing the innovation. Factors such as the compati-
bility of the innovation with current machinery, the amount of capital expend-
iture necessary, the degree of risk the innovation would involve, and the lack
of security of the manager’s own position should he recommend adoption of a
change that is not met favourably by consumers, all would appear to play a
major role.
Ironically, Schumpeter himself concluded that the evolution of big
business as we know it would ultimately result in the death of capitalism. He
reasoned that big business is conservative and that it lacks daring because it
operates through managers (and bureaucracies) who prefer the security of the
known entity. 13 This conclusion suggests that an innovative business should
not be structured so as to remove control from the individual risk-taking
capitalist –
a condition that is found rarely in modem-day oligopolies.
“See, e.g., Maslow, A Theory ofHuman Motivation (1943) 50 Psychological Rev. 370; and
Herzberg, One more time: How do you motivate employees? (1968) 46 Harv. Bus. Rev. 53.
12Armstrong, supra, note 4, 174.
“R. Heilbroner, The Worldly Philosophers, 3d ed. (1967) 288-91; and Schumpeter, supra,
note 7, 61 and 131-4.
1064
REVUE DE DROIT DE McGILL
[Vol. 28
Despite Professor Armstrong’s enthusiastic endorsement, basic weak-
nesses exist in the behaviouralist model which make it an unsuitable founda-
tion upon which to build a competition policy. For example, not all markets
experience innovation at the same pace. Clearly, the Schumpeterian model is
relevant to the “high-tech” industries in which products are developed rapid-
ly, and just as rapidly become obsolete. However, is it realistic to assume,
given the products’ short life span, that government agencies would be
tempted to invest time and effort in the enforcement of anti-combines provi-
sions against such firms? The behaviouralist approach is even less appropriate
in markets which experience a slower pace of innovation. Furthermore, even
if one recognizes, as Schumpeter teaches, that rival producers do not compete
solely on the basis of price, it is clear that for many products, price remains the
most relevant factor. One has only to spend an evening watching television to
recognize the truth of this statement. In a market where price is a dominant
factor in consumer choice, at least several firms, acting independently, are
necessary for there to be effective competition. One cannot disregard totally
the themes proposed by the structuralist school which suggest that some
government intervention is necessary, at least in markets where price com-
petition remains a major factor and innovation occurs at a slower pace.
The changes to the Combines Investigation Act recommended by Profes-
sor Armstrong are of some interest. Contrary to what one might expect as a
result of his analysis, he does not advocate abolition of most of the Act.
Instead, he would leave much of it unchanged. The reason given for this
position is that the author feels that the courts have adopted an intelligent
interpretation of the Act. He notes that at the time the Canadian Breweries 14
case went before the Ontario Supreme Court, the accused had bought out
thirty-seven competitors and had gained sixty-six per cent of the Ontario
market. Despite the apparently commanding position of Canadian Breweries
at the time of its acquittal under the merger provisions of the Combines
Investigation Act, it lost approximately one half of its market share over the
next decade. 15 Armstrong maintains that the merger programme of the ac-
cused was “but an incident in the evolution of an industry from a structure of
local oligopolies of small firms to a national oligopoly of large firms”. 16 Such
ex post facto reasoning is comforting, but there is nothing in the judgment
itself to indicate that McRuer C.J. had considered the developmental impact
of his decision on the beer industry. It is generally agreed, however, that the
decision helped cripple the merger provisions, so that a merger must either
result in or approach a monopoly before it can be prosecuted. 1′
1
4 R. v. Canadian Breweries Ltd [1960] O.R. 601, (1960) 126 C.C.C. 133 (H.C.).
‘5Armstrong, supra, note 4, 223.
16 Ibid.
‘7Flavell, supra, note 3, 195.
19831
CHRONIQUE BIBLIOGRAPHIQUE
1065
Armstrong suggests that the merger prohibitions in the Act should no
longer constitute criminal offences but should be subject to civil remedies.
Such a step, taken alone, would probably result in a greater number of
successful anti-merger actions, because the Crown currently must prove
detriment to the public “beyond a reasonable doubt”. “8 The civil burden of
proof would, of course, be lighter. However, the author would also retain the
word “unduly”, and require that, to be challenged successfully, a merger must
“unduly” lessen competition. ‘9 It seems that Professor Armstrong would
maintain the same weak provisions that are found currently in the Act and
would temper the sanction. The author would also introduce the word “undu-
ly” into the provisions regarding price agreements between firms. 10 The test
would therefore be whether the agreement unduly restricts competition.
The problem with these suggestions is that they do nothing to clarify the
law. The term “unduly” does not help the average businessman determine
whether a proposed merger or agreement will be considered illegal. Indeed,
one of the major difficulties with the current law is the great uncertainty under
which parties must operate.”‘ The point of legislative change must surely be to
ameliorate, not worsen, that condition.
On balance, it is apparent that this book is largely a piece of advocacy. It
does little to present both sides of the issue. However, it is well worth reading
for anyone interested in anti-combines legislation, for it challenges many
pre-conceived notions that are assumed by, but undefined in, the Act. More
significantly, the book raises practical policy questions and is an important
step toward promoting a public debate over an issue of great importance for
the Canadian economy. Professor Armstrong has a lucid, entertaining writing
style; his book can be read easily by those with no training in economics
whatsoever.
Theresa M. Siok*
‘”Ibid., 194.
“9Armstrong, supra, note 4, 224.
10Ibid., 228.
21 Canadian Bar Association, Special Committee on the Combines Investigation Act, Com-
ments on an Act to Amend the C.I.A.: Bill C-13 (1978). The comments were contained in a
submission made by the Canadian Bar Association which was presented to the Standing
Committee on Banking, Trade and Commerce on 13 June 1978 in Ottawa. Bill C-13, which
concerned proposed Combines Investigation Act Stage II amendments, was not passed.
*LL.B. IV, Faculty of Law, McGill University.
Legal Research Handbook. By Douglass T. MacEllven. Toronto: Butterworths, 1983. Pp.
xxii, 294 [$30.00].
Legal research, methology is an uncomfortable topic for many. Rare is
the legal researcher, be he student, practitioner or academic, who would not
confess to a gnawing concern that somewhere “out there” there might be a
case, statute or article critical to his research that he has not found. This is
probably the lowest end of the worry scale in the realm of legal research. At
the midpoint of the scale is the inefficient researcher who will find most of the
relevant law eventually, but only after an excessive amount of time and
possibly clients’ money has been expended. At the upper extreme is the
researcher who feels helpless, who simply does not know where to turn to find
the answer to a legal question in a field that is new to him, or, more seriously,
who is ineffectual in almost any area of law. Unfortunately it is not solely
incoming first year law students who find themselves in this position. Many
others can identify with the sense of frustration revealed in the analysis of the
etymology of “research” provided by a character in Kurt Vonnegut’s Cat’s
Cradle: “Re-search means look again, doesn’t it? Means they’re looking for
something they found once and it got away somehow, and now they got to
re-search for it?”I
Quite properly then, Douglass T. MacEllven’s Legal Research
Handbook’ is addressed to practitioners and law students –
not only to
students in their first year of law school. 3 It has been hailed by the publisher,
in advance promotional material, as “the best and the only truly comprehen-
sive legal handbook for Canadian lawyers”. Given such lofty praise, I think
one is justified in examining the book closely and critically. In my opinion the
Legal Research Handbook does not live up to its description. I found that
certain key material was presented poorly, the treatment of Quebec law was
completely unacceptable, the discussion of citation rules was superficial, and
that, overall, the depth of analysis of many topics was not what I had been led
to expect. The fact that this book may, however, be the “best” of such
handbooks published to date, as claimed by the publisher, is unfortunately
more a sorry comment on the competition than an objective measure of
MacEllven’s manual. Regrettably, MacEllven does not provide a bibliogra-
phy of these other Canadian legal research and writing books. The most
notable are: Legal Writing and Research Manual by Yogis and Christie,4
Using a Law Library by Banks,’ Mithode de recherche en droit qu6b6cois et
IK. Vonnegut Jr, Cat’s Cradle (New York: Dell, 1963) 47 [emphasis in original].
2D. MacEllven, Legal Research Handbook (1983).
-‘Cf. J. Yogis & I. Christie, Legal Writing and Research Manual, 2d ed. (1974) v and 1.
4Ibid.
5M. Banks, Using a Law Library, 3d ed. (1980).
1983]
BOOK REVIEWS
1067
canadien by Le May,6 An Outline of Basic Research Materials for Canadian
Law Students by Craig,7 Sources et mithodologie du droit quib~cois et
canadien [:] Notes et documents by Turp and Leavy,8 Bibliographical Guide
to Canadian Legal Materials by Brierley,9 andLa documentation juridique by
Caparros and Goulet. 0 There are also numerous American legal research
manuals occasionally useful to researchers in Canada. I would certainly be
remiss if I neglected to mention the outstanding Harvard “Blue Book”, 2
which, though not designed to be a research manual per se, is packed full of
authoritative information indispensable to American and Canadian research-
ers.
At first glance, this Legal Research Handbook appears very promising.
Douglass T. MacEllven has a doctoral level law degree and a masters degree
in law librarianship (both from U.S. universities). He is now the Director of
Libraries for the Law Society of Saskatchewan, where he oversees the manual
and computerized research services offered to practitioners, and has directed
the rebuilding of the courthouse library system in the Province. He also
teaches at the University of Regina and for the Saskatchewan Bar Admission
course. MacEllven authored the chapter on “Canadian Law” in Jacobstein and
Mersky’s Fundamentals of Legal Research. 3 He seems ideally equipped to
produce a legal research manual to serve Canadian researchers.
Also at first glance, the contents of the Legal Research Handbook seems
to hold promise. MacEllven begins with an introductory chapter on “Legal
Research Concepts”. He then presents two long chapters covering Canadian
law reports and their digests and indices. The next two chapters contain
discussions of federal and provincial statutes and subordinate legislation.
MacEllven devotes a chapter each to statute and case citators, legal ency-
clopedias, legal periodicals and their indices, and other secondary resources
such as textbooks, directories and dictionaries. The book includes a lengthy
documents (1981).
9J. Brierley, Bibliographical Guide to Canadian Legal Materials (1968) (unpublished
manuscript; Faculty of Law, McGill University).
6D. Le May, Mithode de recherche en droit qugbjcois et canadien (1974).
7B. Craig, An Outline of Basic Research Materials for Canadian Law Students (1971).
ID. Turp & J. Leavy, Sources et mithodologie du droit quibicois et canadien [:] Notes et
‘0E. Caparros & J. Goulet, La documentation juridique (1973).
“See, e.g., M. Price, H. Bitner & S. Bysiewicz, Effective Legal Research, 4th ed. (1979);
M. Cohen, Legal Research in a Nutshell, 3d ed. (1978); and J. Jacobstein & R. Mersky,
Fundamentals of Legal Research, 2d ed. (1981).
‘The Columbia Law Review, The Harvard Law Review Association, The University of
Pennsylvania Law Review, and The Yale Law Journal, A Uniform System of Citation, 13th ed.
(1981) [hereinafter the Blue Book].
“Supra, note 11.
1068
REVUE DE DROIT DE McGILL
[Vol. 28
chapter on computerized legal research as well as separate chapters on
researching Qu6bec, English, American, and Australian and New Zealand
law. There is a chapter entitled “Subject-Area Research Checklists”, one on
law firm libraries and one on legal citation. Appendices provide a list of the
addresses of Canadian and American legal publishers, preferred abbrevia-
tions for reports and digests, and MacEllven’s “Master Legal Research
Checklist” –
a basic form for carrying out legal research cross-referenced to
concepts discussed in the book. The handbook contains a six page index.
There are many attributes that one might hope to find in a legal research
manual, but I would suggest that there are five which are crucial:
(a) Absolute accuracy. Even a few mistakes will cause a reader to lose
faith in the rest of the book. It is this quality of supreme trustworthiness
that has enabled the Harvard Blue Book 4 to attain its place as the bible
of American legal citation and writing.
(b) Up-to-date information. Legal publishing is a fast-changing field.
MacEllven notes that over half the Canadian indices and digests he
cites have appeared since 1970.” Relying on research manuals that are
out of date will cause a researcher to be inefficient at best; at worst, to
overlook relevant law. Research manuals that are used widely will be
revised and re-issued by the publisher to avoid this problem. 6
(c) Ease of use. Very few legal research manuals will ever be read
cover-to-cover. They must be designed to be “used” as opposed to
being “read”. This means that they must have good indices, present all
information relevant to a topic with the discussion of that topic (at the
expense of duplicating information throughout the book) or be well
cross-referenced, have a clear, straightforward style of presentation
that doesn’t require “getting into”, provide examples, and strike that
fine balance between providing adequate detail without being over-
whelming or wordy.
(d) Comprehensiveness. Only a legal research manual that consistent-
ly provides answers to a researcher’s questions will attain that un-
doubted indicium of success – being habitually carried around by the
researcher. In contrast, after only a few successive unrewarding ex-
periences with a manual, a researcher is likely to relegate it to a back
4Supra, note 12.
“Supra, note 2, 23.
“6Outdatedness is a serious shortcoming of most of the other Canadian legal research
manuals on the market today. See supra, notes 3 to 10 for the dates of publication of their most
recent editions. Banks, supra, note 5 and Turp & Leavy, supra, note 8 are possible exceptions.
1983]
CHRONIQUE BIBLIOGRAPHIQUE
1069
shelf. Thus, a wide scope of coverage is of the essence. Depth of
coverage is also important.
(e) Critical analysis. There are at least three reasons why people find
legal research difficult: (1) they are untrained in proper research
techniques, (2) Canadian legal materials are often inadequate 7 (to
(3) law libraries may be poorly designed
say nothing of illogical) and
or maintained. Improvements in this latter field must be made on an
individual basis but a good legal research manual should, without
doubt, address the first problem, and also, I feel, the second. The
author of such a manual is probably the person most competent to
criticize our existing legal resources –
to point out deficiencies in the
system and to make recommendations for change that publishers may
heed. Thus, a legal research manual should go deeper than a mere
descriptive presentation of how to find the law; it should also analyse
critically the existing structure of Canada’s system of legal publishing.
It was with this checklist of five essential attributes in mind that I approached
MacEllven’s Legal Research Handbook.
MacEllven devotes over sixty pages to a presentation of Canadian ” law
reports and their digests and indices.19 Hence, he is able to cover considerably
more ground than other research manuals that allot fewer pages to this area.20
MacEllven is able to consider aspects often overlooked in other manuals, such
as duplication between report series, and timeliness of reporting. His survey
is up-to-date –
publications as recent as the Canadian Rights Reporter,
dating only from 1982, are listed. Somewhat disconcerting, however, is the
fact that the listing of law reports in chapter 2 is not exhaustive –
indeed is not
intended to be. Many other reports are presented at various places throughout
the book, for example in chapter 3 (“Digests and Indexes for Law Reports”)
and chapter 11 (“Subject-Area Research Checklists”) without adequate cross-
referencing.
At over fifty pages long, chapter 3 on “Digests and Indexes for Law
Reports” is by far the longest sub-division of the book. And, to be fair, it does
contain much valuable and detailed information that will be useful to practi-
tioners and academic researchers. However, its presentation is often confus-
ing and unnecessarily drawn-out. MacEllven has designed the chapter around
innumerable charts listing features of the various digests or reports grouped
‘”E.g., there is no simple and comprehensive way to “Shepardize” cases and statutes in
Canada as there is in- the United States.
“8Excluding Qudbec. See infra, text preceding notes 37 to 42.
‘9MacEllven, supra, note 2, chs 2 and 3.
10E.g., only fourteen pages in Yogis & Christie, supra, note 3, 26-34 and 84-8.
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by publisher. This grouping by publisher is not the most desirable scheme
from most users’ points of view –
a geographic or subject-area classification
would make more sense. Still, it enables MacEllven to deal in depth with a
single “representative title” from a publisher’s collection. The reader must
then extrapolate the information presented (which includes details on instruc-
tions for use and features like case citators, statute citators, secondary litera-
ture citators, and words and phrases noted) to other digests by the same
publisher. If this description is not clear, perhaps an example will help.2
Consider MacEllven’s heading “Example A: Alberta Reports”. 22 Under it are
found descriptions of the digesting system contained in other Maritime Law
Book reports –
the National Reporter, Atlantic Provinces Reports and six
others. Often the ensuing description ends up dealing necessarily in specifics
–
the National Reporter clearly has a different digesting scope than does the
Atlantic Provinces Reports; similarly, the Atlantic Provinces Reports differ in
frequency (bound volume issuance only) from the National Reporter (weekly
or biweekly loose paper issuance). The frequent need for such individual
treatment defeats the purpose of the already cumbersome grouping by pub-
lisher system. Even more serious, however, is the fact that some desirable
individual details are simply excluded. For example, despite the much briefer
treatment accorded to reports and digests in the Yogis and Christie manual,2 it
is able to present complete information on the five series of the Western
Weekly Reports published to date 24 –
no attempt to provide such detail is
made in the Legal Research Handbook. I feel that any researcher who
attempts to use chapter 3 to answer quickly a specific question, without
having initially read the chapter, will be in store for a very frustrating
experience.
Furthermore, many of the charts that MacEllven presents separately
could have been consolidated easily. There is no reason, for instance, why
one chart could not have served to show (using four columns) which reports
and digests have statute citators, case citators, words and phrases citators, and
secondary literature citators, rather than spreading this material out over four
separate charts I each requiring the relisting of the over seventy reports and
digests considered.
Another complaint that I have with this part of MacEllven’s handbook is
that, whereas the scope of coverage may be satisfactory, the level of critical
analysis is deficient. After surveying so broadly the field of Canadian law
211f even the example does not make this approach clear to you, then I submit that you are in
confused.
the same position that many researchers who will refer to MacEllven will be –
2Supra, note 2, 31.
2See supra, note 20.
24Yogis & Christie, supra, note 3, 87.
2’MacEllven, supra, note 2, 67-73 (Research Charts E to H).
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BOOK REVIEWS
reports and their digests, he goes no deeper into a critical analysis of the
system than his comment that “researchers do not have the luxury of turning to
one particular publication in order to conduct thorough research. Researchers
must be aware of all potential sources, in order either to investigate them or to
make an informed decision not to investigate”. 26 The author refuses to point
out specific problems with particular publications,27 and he does not address
such issues as where the responsibility for ease or completeness of research
lies – with the report publisher or the digest publisher. I do not believe that
such issues are beyond the scope of a legal research manual. As noted above, 28
the author of such a manual is probably best equipped to discuss such issues
and make recommendations for change.
This lack of critical analysis is far more objectionable in another part of
the book: the description of legal dictionaries. All that MacEllven says about
the recently published The Canadian Law Dictionary 29 is reproduced below:
This is the first legal dictionary published specifically for the Canadian legal profession.
The June 1980 issue of the Canadian Law Information Council’s Legal Materials Letter is
devoted almost entirely to an analysis of this new publication. The Canadian market now
has the choice of purchasing a Canadian legal dictionary, and prospective purchasers may
want to ask the publisher for citations to additional book reviews on this work?0
What is a reader to make of this? If he were to track down and read the CLIC’s
review (not a very likely prospect) he would find that a committee of four
Canadian law librarians 3′ blasted the dictionary in no uncertain terms, recom-
mending that “any library that keeps it on its shelves should include in a
prominent place on the volume a statement of its limitations”.3 2 MacEllven’s
treatment amounts, in my opinion, to nothing short of an abdication of his
responsibility as the author of a legal research handbook. One wonders
whether he thinks that he is not entitled to have an opinion on the legal
materials he describes. Nothing should be further from the truth.
Returning to MacEllven’s treatment of law reports, one final point bears
mentioning. There is insufficient consideration whether a report is official
(published by the court), semi-official (sanctioned by the bar) or unofficial
(private publisher and unsanctioned). The distinction is important and might
-Ibid., 25.
2″Ibid., 24.
“See supra, text accompanying note 17.
“The Canadian Law Dictionary (1980).
-“MacEllven, supra, note 2, 138.
31 MacEllven was not among them.
“Banks, book review, in Canadian Law Information Council (1980) 3 Legal Materials
Letter 1 (No. 10).
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affect the choice of subscription of smaller law firm libraries 33 and the legal
researcher’s preferred citation. 3M
The second major area covered in the Legal Research Handbook is
statutory research. MacEllven’s treatment of federal and provincial (exclud-
ing Qu6bec) statutes, and techniques for up-to-date statutory research is good.
He includes a useful section on constitutional documents, particularly rel-
evant in light of recent changes, but perhaps he could have been even more
explicit. For example, MacEllven says that “the new name of The British
North America Act, 1867, 30-31 Vict., c. 3 (U.K.) is Constitution Act,
1867″ 3 but he could have added that it is still cited to 30 & 31 Vict., c. 3
(U.K.). In the same vein, even though all the components of a correct citation
for the new Canadian Charter of Rights and Freedoms” are provided, a full
cite would have been convenient for many readers.
As the reader of this review may have guessed by now, in light of the
several “excluding Qu6bec” qualifications already noted, MacEllven deals
with Qu6bec legal research in a separate chapter. A scant three pages are
offered without explanation or apology. This is less than half the space the
author devotes to Australian law. The chapter is, quite simply, an insult to all
researchers of Qu6bec law. One hardly knows where to begin in listing its
faults –
a representative few will have to suffice.
The French version of the Revised Statutes of Quebec 1977 is identified
incorrectly as “Statuts Refondus du Quebec, L.R.Q.”.37 The correct name is
Lois refondues du Quebec – hence the “L.R.Q.” abbreviation. The last time
“Statuts refondus” was used was in the 1964 revision. Also note MacEllven’s
carelessness with accents and capital letters. In fact, there is not a single
accent in evidence anywhere in the chapter, despite the many times that
accents were required in the titles of books 31 and report series cited. This goes
beyond carelessness –
it is a sign of inattention coupled with a lack of
respect. Yet fluency in French seems, in fact, to be a major issue with
MacEllven. Consider these two statements:
33The distinction is not discussed in MacEllven’s chapter on “Law Firm Libraries” either.
Small firm libraries are more likely to subscribe to a general purpose unofficial report series like
the Dominion Law Reports if they cannot afford more than one.
“This issue is referred to only in passing in the “Legal Citation” chapter. See MacEllven,
supra, note 2, 239.
35Ibid., 88.
3Part I of Schedule B, Canada Act 1982, 1982, c. 11 (U.K.).
37MacEllven, supra, note 2, 175.
3″One author who likely has no cause for complaint concerning this omission is Denis
Le May whose Mithode de recherche en droit qugbecois et canadien, supra, note 6, falls
victim to the accent purging. Le May has the rather dubious distinction of being acknowledged
(albeit under the name “Denny Lemay”) as a reader of a draft version of the chapter.
1983]
CHRONIQUE BIBLIOGRAPHIQUE
1073
Researchersfluent in French may contact law librarians at law schools, court houses, or
law firms in Quebec for bibliographies of current recommended texts and other secondary
literature. 9
This selected listing [of Quebec legal publishers] gathers Quebec publishers to facilitate
browsing by researchers not fluent in French.’
Are we to assume that MacEllven believes that there is no one left in Quebec
who can or will speak English? In his mention of law schools, he seems to
forget that McGill University has had, since 1848, a distinguished history of
teaching the civil law in English.4
There are sweeping omissions in the chapter, a fact which will come as
no surprise given its exaggerated brevity. For instance, MacEllven provides
the names of two looseleaf versions of the Civil Code, but neglects to mention
a single bound volume. He notes the existence of the Index Gagnon, but not
the fact that it has not been published since 1978. The importance of doctrine
in the civil law system is not discussed. There are no examples of Qu6bec case
citation provided (here or in the citation chapter). French law is never
mentioned. I could go on, but instead will only state that this chapter should
never have been written.42
Not as flawed as the Quebec chapter, but still problematic, is MacEll-
ven’s chapter on “Legal Citation”. The majority of persons doing legal
research will also be doing legal writing; it makes sense to include a guide to
legal citation and style in a legal research handbook. Even if they are not
going to turn out a written product, the starting point for most researchers is a
case, article or statute citation. Unless they understand the components of the
citation, they will be unable to use it to locate the material cited. For these
reasons, despite the existence of several separate citation or style guides,43 I
believe that it is essential to cover these areas in a research manual. 4 The
problem with the coverage provided in MacEllven’s book is that it is superfi-
cial. The chapter on “Legal Citation” was not, in fact, written by MacEllven
“MacEllven, supra, note 2, 177 [emphasis added].
4″Ibid., 245 [emphasis added].
4
1 See Frost& Johnston, Law atMcGill: Past, Present andFuture (1981) 27 McGill L.J. 31,
32.
41The manual could then have served as a guide to common law Canadian legal research, as
is for instance the Banks book, supra, note 5, which is described as “A Guide for Students and
Lawyers in the Common Law Provinces of Canada”. Alternatively, MacEllven could have
farmed out the writing of the chapter as he did for the “Legal Citation” chapter.
“E.g., Caparros & Goulet, supra, note 10; J. Samuels, Legal Citation for Canadian
Lawyers (1968); and Blue Book, supra, note 12. Most of these works are not devoted
exclusively to matters of citation and style –
some fundamental research areas are covered as
well.
“Some other such manuals do. See, e.g., Yogis & Christie, supra, note 3, 12-8.
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but by the librarian of the Regina Court House. I do not feel that it is well
integrated into the rest of the book and it lacks vital information, for example,
how to deal with repeated references, how to cite unreported cases and
guidelines concerning the use of signals to indicate support, contradiction or
comparison with a proposition.
The chapter opens with the words: “Legal citation form has one main
objective –
to provide the researcher with sufficient information to find
references easily.” 45 This may, in fact, be the main objective, but a secondary
one is undoubtably to economize on what must be printed to identify a source,
for example, by using consistent abbreviations, an especially important
consideration in journals and texts with extensive footnoting. It comes as
some surprise, therefore, to see the recommendation that “[i]f the name of the
periodical is cited in full, it should appear in italics”.46 It is a convention in
legal writing to abbreviate periodical titles. The Legal Research Handbook
goes on to say that “if it is abbreviated, it appears in roman type”.47 The
example shown is of the Saskatchewan Law Review abbreviated to “Sask.
Law Rev.” Generally “Law” would also be abbreviated to “L.” Although it is
true that there is no single form of “correct style”, the rules set down by this
manual are at odds with general usage frequently enough that more extensive
explanation is warranted.
It should be mentioned at this point that there are several areas that
MacEllven deals with in a very satisfactory manner. His treatment of English,
American, Australian, and New Zealand law is complete, accurate, well
presented, and entirely sufficient for the purposes of a Canadian legal re-
search manual. The chapter on “Computerized Legal Research” is also good,
and it is a feature not found in many of the other Canadian manuals. 48 There is
even a glossary of computer terminology in this chapter in which such basic
terms as “printer” are defined. 9 The problem with any published discussion of
computerized research today is, of course, the speed with which it will
become outdated. Thus, this chapter is likely to be of the least enduring value
of any in the book, despite its initial merit and relevance. 0
4’MacEllven, supra, note 2, 235.
“Ibid., 243.
47 Ibid.
41 Of the sources cited supra, notes 3 to 10, only Banks undertakes a comparable discussion.
49 MacEllven, supra, note 2, 142. Unfortunately, MacEllven did not see fit to include a more
general glossary to the book as a whole which might,have been especially useful to first year
law students unfamiliar with such terms as “citators”.
0 In fact, problems are already evident. For example, the McGill University Faculty of Law
Library is listed as a centre with computer research facilities (and MacEllven claims that his
listing was accurate to June 1982) even though such services have not been offered there for at
least two years.
5
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BOOK REVIEWS
1075
It seems fitting to conclude this review of MacEllven’s book with a
comment on its final pages –
the index. The book itself (including appen-
dices) is 287 pages long. The index is a mere six pages. 51 Yet a comprehensive
index is crucial to a legal research manual; generally it will be the researcher’s
first contact with the book, and, if the topic in which he is interested is not
indexed, it might be his last contact as well. None of the following topics are
included in MacEllven’s index: family law (or any other subject area of law),
regnal years, rules of practice or rules of court (the indexing is merely
inadequate here –
the topic is listed exclusively under “Court Rules”),
Shepard’s Citations, private acts or public acts, nominate reports (except
under the broader heading of “English Law”), or Criminal Codes.
The arrival of a new Canadian book on legal research was an event
anticipated eagerly by many. Now that Douglass T. MacEllven’s Legal
Research Handbook has arrived, much of this eager anticipation will prob-
ably fade into disappointment, and Canadian legal researchers will go on with
their work without an adequate research manual. Far from being a “truly
comprehensive legal handbook for Canadian lawyers”, as claimed by the
publishers, MacEllven’s book is another in a series of mediocre Canadian
legal research manuals which are content to confine themselves to a cursory
descriptive presentation of how to find the law, without providing any deeper
discussion of integrally linked issues (such as the status of various primary
sources, and the considerations involved in choosing which to cite), and
without analyzing critically any particular publications or the system for
finding the law as a whole. Some may argue that such considerations are
beyond the ambit of a book like the Legal Research Handbook. But where
else are such discussions to be found? Even if a limited ambit were justified, I
still could not recommend the purchase of MacEllven’s manual to anyone
who already owns a Canadian legal research handbook. It could be argued, of
course, that MacEllven is more up-to-date and that he covers more ground –
for example, his treatment of law reports and their digests and indices goes
beyond what other manuals offer. But, as described above, his presentation of
this area is confusing; it detracts greatly from the usefulness of the informa-
tion presented. Other deficiencies such as the totally inadequate treatment of
Qu6bec law and the serious omissions in the citation chapter would prevent
me from giving up a copy of, say, Yogis and Christie despite its own
deficiencies, for MacEllven’s book. On the other hand, for a first-time legal
manual purchaser, the Legal Research Handbook is roughly on par with other
Canadian manuals available today. One can only hope that someday someone
will tackle the job of producing a truly good one.
Barbara Ursel*
‘Compare, for instance, Yogis & Christie, supra, note 3, which is only 126 pages long, yet
has a ten page index. But the Yogis & Christie index is by no means model. It is probably
quicker to find the list of signals set out on page fifteen by leafing through the book than by
discovering the index heading –
“Introductory signals”.
*B.C.L. IV, Faculty of Law, McGill University.
