BOOK REVIEWS
LIVRES NOUVEAUX
Benjamin’s Sale of Goods, General Editor A.G. Guest, London: Sweet &
Maxwell Limited, 1974, Pp.i-ix, 1287 ($81.60).
Judah Philip Benjamin’s classic, A Treatise on the Law of Sale of
Personal Property with references to the French Code and Civil Law,
was first published over a century ago in 1868. The editorial policy
of the succeeding editions remained constant: change no more than
necessary so as to retain as much as possible of the original. But
legal masterpieces cannot survive indefinitely. Their shape and
design become obsolete; they become disfigured by the haphazard
accretions of case law. When this occurs it is time to begin again
and this is what the new editors of Benjamin have done. In the place
of an old fashioned craft, creaking at the joints with a cargo of old
cases, they have produced an entirely new vessel, designed to take
account of the developments that have occurred in sales law in the
course of this century. The result is a tour de force whose com-
prehensiveness, style and scholarship will ensure its prompt accept-
ance as a worthy successor to its venerable forebear.
The book is divided into eight Parts, the first six of which,
under the titles “Nature and Formation of the Contract of Sale”,
“Property and Risk”, “Performance of the Contract”, “Defective
Goods”, “Consumer Protection”, and “Remedies”, deal with the
law of sale generally. The remaining two Parts (which account for
530 pages out of a total of 1217) are concerned with the specialist
topics of “Overseas Sales” (including methods of payment) and the
“Conflict of Laws”. Despite the fact that each Part is contributed by
one of a team of seven editors, there is a fluency and uniformity of
presentation that allows the reader to pass smoothly from one section
to the next without noticing any grinding of stylistic gears. The very
full cross-indexing contributes much in achieving this sense of
continuity and integration.
One or two remarks might perhaps be made first with respect
to those Parts dealing with the general law. Since the publication
of the book, the cases of Lloyds Bank Ltd v. Bundy, A. Schroeder
1 [1974] 3 All E.R. 757 (C.A.). See also McKenzie v. Bank of Montreal (1975)
55 D.L.R. (3d) 641 (Ont.H.C.).
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BOOK REVIEWS – LIVRES NOUVEAUX
Music Publishing Co. Ltd v. Macaulay2 and Clifford Davis Manage-
ment Ltd v. W.E.A. Records Ltd3 appear to have established a
doctrine of unconscionability that will allow the courts to mitigate
the rigour of the theory of freedom and sanctity of contract and so
relieve a party from a contract which is unfair. Chapter 3 (Part One)
which discusses the “Application of General Contractual Principles”
will therefore have to be read accordingly. Indeed, even before these
recent decisions, there were indications in Canada that such a
doctrine was being bred out of Duress and Undue Influence and,
bearing in mind the generally commendable effort made by the
editors to note Commonwealth decisions, one might perhaps have
hoped for a reference to such cases as Morrison v. Coast Finance
Ltd,4 W.W. Distributors & Co. v. Thorsteinson and Knupp v.
Bell,” if not in this chapter then at least in that on consumer protec-
tion.
In the chapter on “Risk and. Frustration” (Part Two) the editors
have attempted to resolve the apparent conflict between Mash &
Murrell Ltd v. Joseph I. Emmanuel Ltd and section 33 of the Sale
of Goods Act 8 by adopting Dr Sassoon’s suggestion that the words
“risk of deterioration in the goods necessarily incident to the course
of transit” in section 33 should be taken to refer to that deterioration
to which all goods of the genre would be subject. It remains to be
seen whether Benjamin’s authoritative imprimatur will persuade the
courts to imply the obligation that the goods be capable of with-
standing a transit both where the seller undertakes merely to dispatch
them and where he is responsible for their arrival. A small point
might also be made with respect to the section on frustration where
it is said that generally a contract for the sale of goods will not be
frustrated if the property has previously passed to the buyer. Suppose
that specific goods perish after property has passed but before the
passing of risk so that section 7 will not apply. If delivery were to
2[1974] 3 All E.R. 616 (H.L.).
3 [1975] 1 All E.R. 237 (C.A.).
4 (1966) 55 D.L.R. (2d) 710 (B.C.CA.).
5 (1961) 26 D.L.R. (2d) 365 (Man. C.A.). Cf. Towers v. Aftleck [1974] 1 W.W.R.
714 (B.C. S.C.); Pridmore v. Calvert (1975) 54 D.L.R. (3d) 133 (B.C. S.C.); Paris v.
Machnik (1973) 32 D.L.R. (3d) 723 (N.S.S.C.).
6 (1966) 58 D.L.R. (2d) 466 (Sask.Q.B.); aff’d
(1968) 67 D.L.R. (2d) 256
(Sask.CA.).
7 [1961] 1 W.L.R. 862 (Q.B.).
8 Sale of Goods Act, 1893, 56-57 Vict., c.71 (U.K.).
9 See D.M. Sassoon, Deterioration of Goods in Transit (1962) J.B.L. 351 and
Damage Resulting from Natural Decay under Insurance, Carriage and Sale
of Goods Contracts (1965) 28 M.L.R. 180, 189-190.
1 150
McGILL LAW JOURNAL
[Vol. 22
have been at the seller’s place of business, then, since the passing of
property would constitute delivery, the object of the contract of sale
would have been achieved and there would be no frustration. But
suppose that in our hypothetical situation the point of delivery be
the buyer’s premises and the goods perish before the date set for
delivery (property having passed but not risk). Why should the
contract not be frustrated so as to relieve the seller from an action
in damages for non-delivery?
The chapters on the “Passing of Property” and the “Transfer of
Title by Non-Owners” (Part Two) and “Acceptance and Payment”
(Part Three) are especially good. One might mention particularly the
passages on the passing of property in unascertained goods and the
problems posed by the concurrency of the obligations of delivery
and payment. The treatment here is superb, perhaps the best in the
book, with rigorous analysis and lucid exposition combining first
to reveal and then to explain the subtleties and refinements of these
two difficult and often perplexing topics. The exceptions to the
nemo dat rule, an imbroglio if ever there were one, are similarly
dealt with. One would only comment that the Kenyan case, Mubarak
Ali v. Wali Mohammed,10 the sole decision cited to support the view
that the words “consent of the seller” in section 25(2) of the Sale
of Goods Actioa are to no different effect than “consent of the owner”,
does not stand alone. The Canadian case of Brandon v. Leckie” and
a New Zealand authority, Elwin v. O’Reagan and Maxwell,12 also
decide this issue and discuss it at least as profoundly as does Thac-
ker J. in the Kenyan appeal.
The obligations of the seller with respect to the quality of the
goods are covered in Part Four, “Defective Goods”. The rather
elaborate classification of express statements as to quality is com-
prehensively canvassed and our understanding of the area greatly
assisted by the references to historical development. The passages on
implied terms are also admirably clear. However, the different
considerations that might affect the implications of the condition of
description depending on whether the goods be specific or un-
ascertained could perhaps have been more fully explored. In this
connection Salmond J.’s masterly judgment in Taylor v. Combined
Buyers Ltd 3 deserved more extensive recognition, despite the trend
10 (1938) 18 K.L.R. 231.
10a Supra, note 8.
11 [1972] 6 W.W.R. 113 (Alta S.C.).
12 [1971] N.Z.L.R. 1124 (N.Z.S.C.).
13 [1924] N.Z.L.R. 627 (N.Z.S.C.).
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BOOK REVIEWS – LIVRES NOUVEAUX
established by such recent decisions as Beale v. Taylor.14 More, too,
might have been said on the use by the House of Lords in Ashington
Piggeries15 of the damages remoteness test to establish liability
under section 14(3). The implications of the decision, particularly
for those who deal in commodities, are very far reaching indeed.
The possibility of an action based on the Hedley Byrne 6 doctrine
for a negligent misrepresentation made by the seller with respect to
the goods is briefly touched on in the chapter “Remedies in Respect
of Defects”. The point is, of course, that section 2 of the English
Misrepresentation Act’ 7 already occupies this vantage point and is
unlikely to be out-flanked by the common law, particularly in view
of the reluctance of English judges to apply the new doctrine. Un-
fortunately therefore, the book will be of little guidance on this topic
to common law Canada. In fact, in the long run, one may be better
off without such piecemeal statutory amendment for its absence
is already obliging Canadian judges to overcome the dogma of
Victorian legal classicism and finally recognise that the common
law should offer a remedy for what is really, au fond, a species of
injurious reliance. To date, advances in this direction have been made
in tort’ where, despite the initial set back of Nunes Diamonds,’
such cases as Walter Cabott Construction Ltd v. The Queen and
Porky Packers Ltd v. Town of The Pas2′ have allowed a Hedley
Byrne action despite the existence of a contract between the parties.
These developments suggest the beginnings of an evolution in the
common law in Canada similar to the one already noted by Pro-
fessor Gilmore in the U.S.2″ We may be witnessing the first tentative
to
steps towards a generalized law of civil obligation better -li1t-A
meet expansionist demands on legal liability, and if this is to proceed
with some inherent consistency it is probably better left not to the
mercy of bits and pieces of legislation, but in the hands of the judges,
provided, of course, they be not timorous souls.
14 [1967] 1 W.L.R. 1193 (CA.).
15 Ashington Piggeries Ltd v. Christopher Hill, Ltd [1971] 1 All E.R. 847
(H.L.).
1′ Hedley Byrne and Co. v. Heller & Partners, Ltd [1964] A.C. 465 (H.L.).
17 Misrepresentation Act 1967, 15-16 Eliz.II, c.7.
18Cf. Watson v. Canada Permanent Trust Co. (1972) 27 D.L.R. (3d) 735
QB.C.S.C.), where the effect of the decision seems to be that promissory
estoppel will support an action brought on an otherwise bare promise.
‘9 J. Nunes Diamonds Ltd v. Dominion Electric Protection Co. [1972] S.C.R.
769.
20 (1974) 44 D.L.R. (3d) 82 (Fed.Ct. Trial Div.).
21 (1974) 46 D.L.R. (3d) 83 (Man.C.A.).
22G. Gilmore, The Death of Contract (1974).
McGILL LAW JOURNAL
(Vol. 22
The concluding chapter of Part Four is devoted to exemption
clauses. Here, too, there has been a major legislative initiative in
England, this time in the guise of the Supply of Goods (Implied
Terms) Act 19731- which, in the case of consumer sales, renders
void any clause excluding the terms implied by sections 13-15 of the
1893 Act,2 4 and in any other case subjects an exemption clause to
the test of being reasonable and fair. The statute is in addition to,
and not in substitution for, existing rules of law, but given the tech-
nique of the Act, the common law rules will generally only be
relevant to non-consumer sales. The tortuous learning of the doctrine
of fundamental breach and Suisse Atlantique25 therefore lives on and
I know of no finer analysis of this troubled area than that to be
found in this chapter of the new Benjamin. Harbutt’s PlasticineG is
rightly regarded as a confusing aberration and persuasive criticisms
are made of the suggestions in Suisse that upon a rescission for
breach the whole contract, including provisions in the nature of
liquidated damages clauses, comes to an end.
Since the appearance in 1950 of the last edition of Benjamin,
sales law has been forced to accept that it is no longer exclusively
concerned with merchants but must also meet the very different
demands made on it by the consumer. This fundamental shift in
axis is recognised in the new book by the inclusion of Part Five
which consists of a chapter entitled “Consumer Protection and
Manufacturers’ Guarantees”. The chapter proceeds by outlining
first the consumer’s remedies in contract and tort, then the special
problem posed by manufacturers’ guarantees, and finally the re-
medies and protection afforded by certain statutes. In the course of
describing the various private law remedies, mention is made of the
challenging emergence in the U.S. of the strict tort doctrine and
those other assaults on privity countenanced in America to enable
the consumer to hold manufacturers strictly liable for personal
injury or damage to property resulting from the use of defective
goods. It might be thought, particularly in North America, that a
major new work on sale should be more responsive to the burgeoning
movement of consumerism, but it must be remembered that the
book is intended primarily as a practitioner’s work and as such it is
2 3 Supply of Goods (Implied Terms) Act 1973, 21-22, Eliz.II, c.13 (U.K.).
24 Supra, note 8.
25 Suisse Atlantique Socidtg d’Armement Maritime S.A. v. N.V. Rotter-
damsche Kolen Centrale [1967] 1 A.C. 361 (H.L.).
26 Harbutt’s Plasticine, Ltd v. Wayne Tank and Pump Co. [1970] 1 Q.B. 447
(CA.).
19761
BOOK REVIEWS – LIVRES NOUVEAUX
not an appropriate vehicle for proclaiming a new legal order. Legal
evangelism belongs in the law journals, not practitioners’ treatises.
Remedies are dealt with in Part Six which is divided along tradi-
tional lines into three chapters, “The Seller’s Remedies Affecting
The Goods”, “Other Remedies Of The Seller” and “The Remedies Of
The Buyer”. In the first of these chapters considerable space is
devoted to the right of stoppage in transitu and yet this is a remedy
rendered all but obsolete by contemporary methods of financing,
noticeably documentary credits. Obviously, a major work on sale
must, ex abundante cautela, cover this topic in some detail, but
bearing in mind the remedy’s marked decline if not fall, the pre-
sentation here is overdone.
The treatment of the personal remedies, actions for the price
and damages, is also extremely detailed, in this case as it should be.
And here, in marked contrast to the corresponding sections in the
old Benjamin, the law is presented in a clear, systematic fashion
with care taken to keep specific considerations in touch with general
principles and modern learning.
Part Seven treats of the specialist topic of “Overseas Sales”.
Unlike most other practitioners’ works, whose treatment of overseas
sales rarely amounts to more than an enumeration of the duties of
the respective parties, the new Benjamin adopts a distinctly acade-
mic, almost didactic approach. Part Seven begins with an intro-
ductory chapter in which the function and legal significance of
documents of title are carefully explained, as are the special
considerations affecting the passing of risk and property. This intro-
duction is immensely valuable when one comes to the chapters that
discuss C.I.F. and F.O.B. contracts in detail. What might previously
have appeared as two forbiddingly esoteric creatures, particularly
to the student, turn out to be readily comprehensible after all –
a considerable achievement. A further chapter covers other special
terms such as F.a.s. and C. & f. and also deals with conventions on
international carriage of goods and the legal implications of con-
tainerization. Part Seven concludes with four chapters on payment.
Discussed in turn are negotiable instruments in overseas sales,
documentary credits and finance by mercantile houses, export credit
guarantees and exchange control. The last two topics are of little
relevance to Canada but the first two, particularly the second, are
very important.
The last Part (Part Eight), deals with the “Conflict of Laws”.
As one would expect, a good deal of space is given to the Proper
Law Doctrine. There is also a very full discussion of proprietary
matters, followed by sections on risk, performance of the contract
McGILL LAW JOURNAL
[Vol. 22
of sale, and remedies. It should be noted that since the book was
published, the House of Lords has decided in Miliangos v. George
Frank (Textiles) Ltd27 that an English court is now entitled to give
judgment for a sum of money expressed in a foreign currency where
the proper law of the contract is that of a foreign country, and the
money of account is of that country or possibly some other foreign
country? 8 In such a case the conversion date is when the court
authorises enforcement of the judgment in terms of sterling. The
old “breach date conversion” rule is therefore thankfully dead and
buried and paragraphs 2381-2382 should be read accordingly.
To conclude, Benjamin’s Sale of Goods is a splended achievement.
The editors are to be congratulated for producing a practitoner’s
work which not only treats its subject in depth but does so with
impressive scholarship and in a graceful and lucid style. With the
Canadian law of sale entering an era of fundamental change, the
role Benjamin will play in Canada may not be as assured as it once
was. However, in the absence of a Canadian text remotely approach-
ing the standards set by Professor Guest and his co-editors, it is
probable that, for the time being at least, the new Benjamin will
enjoy a deserved pre-eminence here. In fact it is only likely to be
challenged by American works, as this branch of Canadian law seeks
its inspiration for reform from developments in the U.S. rather than
from traditional English sources.
Finally it must be remembered that as we welcome a new book
to the Canadian legal scene, we are witnessing the demise of a
work that over the course of a century assumed a dominating place
in the common law Commonwealth. And the reviewer in Quebec bids
adieu to the old Benjamin with a special affection. Gone is Benjamin’s
masterful survey of the Roman Law of Sale. Gone, too, are the
learned references to the Civil Law which invariably saw the Quebec
Civil Code cited in conjunction with the Code Napoleon. All this was
of course inevitable. We take consolation in the fact that even though
Pothier has been shown the door, the new work is every bit as
distinguished a piece of legal scholarship as was its celebrated
predecessor.
R. A. Field*
27 [1975] 3 W.L.R. 758 (H.L.). It had previously been held by the Court of
Appeal in Schorsch Meier G.m.b.H. v. Hennin [1975] Q.B. 416 (C.A.), that the
Treaty of Rome obliged English courts to adopt the new rule where both
parties derived from member states.
2sThe House left open the question of whether the new rule would apply
to an action in damages as opposed to one in debt.
* Of the Faculty of Law, McGill University.
1976]
BOOK REVIEWS – LIVRES NOUVEAUX
The Admissibility of Confessions in Criminal Matters (2d Edition), by
Fred Kaufman, Toronto: The Carswell Company Limited, 1974. Pp. xxvii, 282
($22.50).
In 1960 Fred Kaufman wrote The Admissibility of Confessions in
Criminal Matters. It was the first attempt by any author to present
a complete statement of the Canadian position in this vital area of
the law. The book was well received in the profession because of its
thoroughness and lucidity. Now Mr Kaufman, who in the interim has
become Mr Justice Kaufman of the Quebec Court of Appeal, has
enlarged and revised the 1960 edition.
The revisions and enlargement consist mainly in the addition of
four chapters, the discussion of selected new and important cases,
and from time to time a more complete and detailed treatment of
certain issues than was accomplished in the first edition.
The basic organizational pattern of the subject matter remains
the same. Mr Justice Kaufman takes the reader through the historical
development of the rule and its evolution in Canada, to the principles
of law that surround its application. Substantive chapters are devoted
to the paradigm of the rule itself and are entitled “Burden of Proof”,
“Persons in Authority”, “Free and Voluntary”, “Spiritual Induce-
ments”, “Temporal Inducements”, “Threats and Violence”, “Use
of Tricks”, “Declarations by Others”, “Judicial Confessions” and
“Appeals”.
The four new chapters added in the second edition discuss the
weight to be attributed to confessions, the confirmation by sub-
sequent act rule of Wray,’ the right to counsel rules of Brownridge
as they affect the admissibility of confessions, and the developing
line of cases recognizing that juvenile defendants may be entitled to
some special protections. There is no doubt, of course, that these
modern developments deserve such attention in any complete dis-
cussion of this increasingly complex area of our law.
The other changes in the second edition revolve around the effect
of new decisions on the rule regarding admissibility of confessions,
particularly decisions of the Supreme Court. Mr Justice Kaufman
is typically thorough in listing these new decisions. It is in con-
sidering them, however, that the book suffers its only serious flaw.
Unfortunately, the author’s clear, crisp and efficient writing style,
which typifies the remainder of the book, is not so apparent in his
discussion of new cases. He seems at times reticent to deal fully
I R. v. Wray [1971] S.C.R. 272, [1970] 4 C.C.C. 1, 11 C.R.N.S. 235.
2 Brownridge v. The Queen (1972) 28 D.L.R. (3d) 1, 7 C.C.C. (2d) 417, 18
C.R.N.S. 308 (S.C.C.).
McGILL LAW JOURNAL
[Vol. 22
with the implications of new decisions. This is especially evident in
his treatment of PicheO and Wray4 which ultimately leaves the reader
to her or his own devices to determine the compatibility, if any, of
these two decisions.
Although the author obviously made a conscious choice to focus
primarily on Supreme Court decisions, the book could be improved
by a more complete discussion of some provincial decisions – parti-
cularly those that cement the conceptual framework of our law
in this area. 5 It is understandable, of course, that an author who is
likely to face cases raising new questions in this area from the
Bench would be hesitant to predict future results. Nevertheless, the
book’s overall quality could be improved by the inclusion of more
of the author’s own ideas and insights on the future of the law in
this area. It would be interesting to know, for example, if Mr Justice
Kaufman believes that the cumulative effect of recent innovative
decisions permits one to say that our courts are slowly gravitating
toward a “totality of circumstances” test analogous to the American
position.
These criticisms, however, are only minor in the face of the
overall quality of this book. It is on the whole well-written and should
prove highly valuable to any person working or researching this
complex area of the law. Mr Justice Kaufman has once again made
a significant contribution to our understanding and appreciation of
the vicissitudes and complexities of the law of evidence.
Jim Ortego *
3 Piche v. The Queen [1971] S.C.R. 23, [1970] 4 C.C.C. 27, 12 C.R.N.S. 222.
4 Supra, note 1.
5 See, e.g., R. v. Hodd [1970] 12 C.R.N.S. 200 (B.C.) and R. v. Dietrich [1970]
3 O.R. 725, 1 C.C.C. (2d) 49; leave to appeal refused [1970] 3 O.R. 744, 1 C.C.C.
(2d) 68 (S.C.C.).
* Of the Faculty of Law, Dalhousie University.
19761
BOOK REVIEWS – LIVRES NOUVEAUX
Cases and Materials on Criminal Law and Procedure (4th Edition), by
M. L. Friedland, Toronto: University of Toronto Press, 1974. Pp. xiv, 1021
($40.00).
The arrival of the fourth edition of Friedland’s Cases and
Materials on Criminal Law and Procedure in October 1974 was an
opportune and most welcome event. Four years had passed since the
third edition appeared in September 1970. Since that time there
has been considerable development in the criminal law. Heralding
the onslaught of change was the Bail Reform Act1 formulated in
1970 and 1971 and coming into force in January 1972. The amend-
ments in that Act relative to detention and release would without
more have justified a fourth edition. However, the changes were
followed by provisions relating to vagrancy’ and capital punishment,3
others terminating corporal punishment4 and still others introducing
air hijacking5 and wiretapping,6 to mention only a few. Such a
substantial number of changes made a fourth edition not only
welcome but necessary.
Friedland’s book, like almost everything else, was hard struck
by inflation in the past four years. The third edition had 701 pages
and cost $15.00. The new edition has 1021 pages and costs $40.00.
It was clearly necessary to add new materials in view of the legislative
changes and judicial pronouncements. However, I am not convinced
that more ruthless editing could not have kept the volume to about
700 pages, although the cost may still have risen to its present level.
It seems to me the book has reached, if not surpassed, its maximum
size. The next edition, in order to add new materials, will have to
drop some of the existing references, a process which probably
could have been started with the fourth edition.
The new edition has changed little in form and retains the un-
mistakable mark of scholarly excellence which characterized pre-
ceding editions, and which readers of M. L. Friedland’s work have
come to expect. The book continues to consist of nineteen chapters
and some supplementary material. For those unfamiliar with the
previous editions, these chapters deal with an introduction
to
procedure, pretrial procedures, -codification of offences at common
law, morality and criminal law, attempts, quantum and burden of
1 S.C. 1970-71-72, c.37.
2 Criminal Law Amendment Act, 1972, S.C. 1972, c.13, s.12.
3 Criminal Law Amendment (Capital Punishment) Act, S.C. 1973-74, c.38.
4 Criminal Law Amendment Act, 1972, supra, note 2, s.70.
5
19 Protection of Privacy Act, S.C. 1973-74, c.50.
tIbid., s.6.
McGILL LAW JOURNAL
[Vol. 22
proof, the mental state, strict liability, mistake, ignorance, vicarious
and corporate liability, drunkenness, insanity, automatism, excusable
conduct, necessity, duress and self-defence, trial process, double
jeopardy and sentencing. The supplementary material deals with
some constitutional matters and the Canadian Bill of Rights.’
Within this familiar structure Friedland has made changes,
some necessary, some interesting and thought-provoking. In Chapter
Two dealing with pretrial procedures, it was necessary to insert
material resulting from the new bail reform provisions8 and the
wiretapping legislation.9 This Chapter has increased by some 50
pages, part of which is of questionable value, other than as a teaching
tool, an aspect on which I will comment later. For example, the first
draft of the wiretapping bill (Invasion of Privacy) is set out in full
at pages 73-80; it does have some value for comparison with the final
provisions as passed. Similarly, at pages 129-137 there are found
several schedules of fees relevant to The Legal Aid Act’ in Ontario.
Other noticeable changes are found in Chapters Thirteen, Fifteen
and Sixteen. Chapter Thirteen includes a new Section IV on the
“Effect of Drugs on Mental Capacity”. Although the section contains
only one page it is a handy reference for a more and more often
asked question, namely how do the courts distinguish between drugs
and drink relative to mental capacity? The answer is that they don’t.
An interesting change was moving the Section on provocation from
Chapter Sixteen on excusable conduct to Chapter Fifteen on auto-
matism. While the move was unnecessary in the sense that the topic
will fit into either Chapter, it is certainly thought-provoking. Other
changes are found in Chapter Nineteen on sentencing, particularly
the inclusion of a separate Section on conditional and unconditional
discharges and fines. Those Sections improve the Chapter, with few
additional pages.
Friedland’s book is primarily a teaching tool and must be
assessed as such. From this point of view it is without reservation
the best of its kind in Canada, although not without fault. As in-
dicated, it is getting too large and expensive and could be reduced
by hard editing. It contains too much material to cover in a basic
criminal law course, but on the other hand does not deal with nearly
the whole field of criminal law; substantive offences are not included.
But then no one volume could span this amount of material. How-
ever, it is not exorbitantly expensive by today’s standards, and an
7 S.C. 1960, c.44 (see R.S.C. 1970, Appendix III).
8 Supra, note 1.
9 Supra, note 6.
11oR.S.O. 1970, c.239.
19761
BOOK REVIEWS – LIVRES NOUVEAUX
instructor or student can choose particular parts to study, using
the other materials for reference only. The book is clearly structured
to facilitate its use in this way.
Throughout the book the author poses problems and questions
for his readers, which is excellent for both student and teacher. The
practitioner, however, already has a problem in mind when he
turns to reference material. Nevertheless the problems posed can be
helpful to him as well. My greatest regret about the book is the lack
of comment by Friedland himself. His knowledge of criminal law
and his experience would make his comments of the greatest value
and add considerably to the stature of the book. Unfortunately
such comments would also add to its length. However, the reduction
of some lengthy material to a comment by Friedland might have
the salutory effect of condensing the book and allowing the reader
to hear from the author himself at the same time.
Once again M, L. Friedland is owed a debt of gratitude –
by
teachers and students of criminal law for an excellent teaching tool,
by the practicing bar for a handy and reliable reference and by the
whole legal fraternity for his continued contribution to criminal
jurisprudence in Canada.
D. M. Hurley*
In The Last Resort: A Critical Study of the Supreme Court of Canada,
by Paul Weiler, Toronto: The Carswell Company Limited, 1974. Pp.xv, 246
($12.95).
In The Last Resort is devoted to a study of the Supreme Court of
Canada in the period 1950 to 1974. Beyond doubt the book is a
distinguished and important contribution to the literature on the
law and constitution of Canada. Professor Weiler is concerned with
the nature and quality of decision-making in Canada’s final court of
appeal, as revealed in the reported reasons for decisions of the
Supreme Court justices of the period. The genesis of the book is
best described in the words of the author himself, taken from the
preface:
In 1969, along with two of my colleagues at the Osgoode Hall Law School, I
received a grant from the Canada Council to study the Supreme Court of
* Of the Faculty of Law, University of New Brunswick.
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Canada. Since then I have written and published several articles on the
contribution of the Court to the evolution of selected fields of Canadian
law since 1949 (when it succeeded the Privy Council as our final court
of appeal). Each piece involved a detailed examination of every decision
of the Court in the area in question, in order to discern the extent of the
influence of its judges on the growth of Canadian law and to evaluate
the quality of this product.
For each of these studies, I had to develop a thesis about the proper
scope of the judicial function which would serve as a vantage point for
my selection and analysis of the decisions. Because of the lengthy detail
in which the various articles described what the Supreme Court was
actually doing, these views of what it should have been doing tended to
recede into the background. In this book I have tried to draw them
together into a more or less systematic theory of how the judicial function
should be carried on in Canada. Since the Supreme Court, from its position
at the top of our judicial hierarchy, sets the tone for our judicial process
as a whole, it was natural to focus my illustrations on the structure and
work of that Court alone. The theory is used to appraise some examples
of the Supreme Court’s performance while these same illustrations put
flesh on the abstract propositions of the overall scheme. (pp.vii-viii)
In accordance with this plan, Professor Weiler appraises the
performance of the Supreme Court, as illustrated by selected recent
decisions, under the following five headings:
The Architect of the Common Law
The Oracle of the Criminal Code
The Supervisor of the Admnistrative Process
The Umpire of Canadian Federalism
The Defender of our Civil Liberties
Clearly, in making such evaluations, the author is attempting a task
that is both difficult and important. As I will indicate later, I disagree
deeply with some of his conclusions. First, however, I should say
that I welcome this book for its thorough scholarship and straight-
forward style. The author has raised issues that should be raised
–
in the main he has identified the right problems and asked the
right questions. This means he has succeeded, in these respects,
with the exacting task he set himself.
His language is lucid, straightforward and generally free of
special or mysterious legal terminology. For the most part he accom-
plishes this without oversimplifying the issues he is confronting.
While the finished text flows easily, the subjects are difficult, and
one suspects that the process of composition was a painstaking one.
While in some respects Professor Weiler is rather sharp with adverse
criticism of the Supreme Court, at other times he strongly praises
certain of the Court’s -decisions. Perhaps he might have been more
diplomatic with the expression of adverse criticism, but nevertheless,
the Court is very much in the public domain, so that frank and res-
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ponsible criticism is desirable. The Court inevitably deals with many
issues of public importance and high sensitivity, and this will be
increasingly true now that it has gained substantial control of the
selection of the cases to be given full hearing by it. The appeals as
of right involving $10,000 or more, of which Professor Weiler
properly complains, were finally abolished in January, 1975.1
It is not the function of a reviewer to rehearse in detail the whole
of the book in question. Nevertheless, when the book is important,
as this one is, the main thrust of the author’s position should be
given, with critical comment. In general, Professor Weiler takes the
view that, all too frequently, members of the Supreme Court of
Canada do not seem to have been aware of the creative role which
they inevitably play in the development of the law when deciding the
cases that come before them. Whether or not this is so, the author is
right to insist that on difficult cases of public importance, the
leadership properly expected of our final Court requires that it
should be innovative when the pre-existing law is somehow in-
complete or unsatisfactory for the case in hand, and needs further
definition and improvement in fulfillment of the underlying purposes
of the branch of law concerned.
While the point is of general application, the author emphasizes
that in particular, this spirit and approach should inform the
decisions of the Court in its functions as “Architect of the Common
Law” and “Oracle of the Criminal Code”. He gives examples from
decided cases that he finds both encouraging and discouraging in
this regard, but he has no doubt that these areas of the law should
be (as they are) primarily in the hands of the courts both as a
matter of original and appellate jurisdiction, with the Supreme Court
of Canada at the apex of the system. But what of the administrative
process, the federal distribution of legislative powers in the B.N.A.
Act,’ and general civil liberties of the type specified in the Canadian
Bill of Rights? Respecting these areas of the law and the constitution,
Professor Weiler takes the position that the lower superior courts
and the Supreme Court of Canada either should not be in the act at
all, or else should be practicing considerable restraint about the parts
they do play,
Many statutory schemes are now entrusted to specialized ad-
ministrative tribunals as a matter of original jurisdiction, labour
relations boards being a principal example. There are usually
‘ An Act to amend the Supreme Court Act and to make related amendments
to the Federal Court Act, S.C. 1974-75, c.18, s.3.
2The British North America Act, 1867, 30-31 Vict., c.3 (U.K.)
3 S.C. 1964, c.44, (now R.S.C. 1970, Appendix III).
McGILL LAW JOURNAL
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privative clauses in the relevant labour relations statutes, to the
effect that the decisions of the labour relations boards are final and
not subject to review in any way by the superior courts. If such
privative clauses were constitutionally valid, they would keep this
area of the law out of the court system altogether, and thus out of
reach of the Supreme Court. But the courts have treated privative
clauses as unconstitutional, and have insisted on reviewing the boards
for excess of jurisdiction and for breach of natural justice in pro-
cedure. Professor Weiler concedes that the courts have succeeded
in maintaining this position and that judicial review of administra-
tive tribunals will probably continue in spite of privative clauses.
He thinks this is desirable for breach of natural justice in procedure,
but regrets that it is so as far as excess of jurisdiction is concerned.
He points out that in the latter case, if a superior court treats as
jurisdictional error any interpretation of the statutory terms of the
labour code by the labour board with which the judges disagree,
then the courts are assuming a total appellate or revising power over
the labour boards. He quotes with approval Mr Justice Rand who has
held that any reasonable interpretation of a labour relations code,
by the labour board entrusted with original jurisdistion to apply it,
should be accepted by a reviewing court even though it is not the
interpretation the judges of that court would have favoured had they
been the original decision-makers. 4 Professor Weiler is able to point
to some cases where the Supreme Court has not acted with appro-
priate restraint under this test.
I agree with the author that judicial review for excess of juris-
diction should be exercised with all the restraint Mr Justice Rand
spelled out, but with this qualification: I regard judicial review of
administrative tribunals in this respect to be essential to maintaining
the rule of law. The appropriate judicial restraint concedes and
respects proper scope for the experts on specialized boards, but it
does not leave them entirely unchecked, as they would be if privative
clauses were valid. If this last situation is what Professor Weiler
wants, then we are indeed far apart. The countervailing considera-
tions which he overlooks are these: There are many and various
administrative tribunals made up of many types of specialists.
Autonomous and impartial generalists are necessary, having the
power to survey the whole scene and to put proper limits on the
natural imperialism of these many groups of experts, in accordance
with wide-ranging views of where the overall public interest lies.
Our whole constitutional history is to the effect that this vital need
4 Toronto Newspaper Guild v. Globe Printing [1953] 2 S.C.R. 18, 30.
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for autonomous generalists who have the last word is best met by
the high courts, following the model of the English Superior Courts
established after the Act of Settlement, 1701.1 It is strange that
Professor Weiler should overlook this in connection with judicial
review of administrative tribunals, because later, in his discussion
of civil liberties, he clearly recognizes the virtues of our autonomous
superior courts of general jurisdiction. He says:
At this very point many of the institutional characteristics of courts which
were the source of concern earlier now appear in a different light. The
structure of adjudication is designed to preserve as high a level of
impartiality as is possible. Because judges are tenured, they are not
beholden to the majority for re-election. Because judges are generalists,
they are not committed to any one administrative goal, such as crime
control. They operate within the framework of the adversary process
which provides access to the “one man lobby” to complain about political
injustice done to a minority. Within this forum, each side, government
and individual, is represented only by counsel whose function is to
provide arguments for the resolution of the dispute on the merits. The
criterion for decision is not the number of voters represented by each
party, a standard under which the individual would almost invariably be
the loser. (p212)
The same historic virtues of the superior courts make the
Supreme Court of Canada the logical institution to have the last
word in the interpretation of our distribution of primary legislative
powers in Canada, as expressed in the B.N.A. Act.6 The Court should
be the “Umpire of Canadian Federalism”. But Professor Weiler has
a very different conception of the distribution of powers system
itself and of the proper place of the Supreme Court. He believes
that the words and phrases by which our federal constitution dis-
tributes legislative powers were relevant to society and full of
meaning when the constitution was first drawn up in 1867, but
that as society in our country changed over the years, these words
and phrases became increasingly unreal and irrelevant to prevailing
social conditions. Hence he tells us that a hundred years later, the
Supreme Court justices can really get no guidance from the original
text of the B.N.A. Act, no guidance from the concepts denoted by the
original words and phrases. He alleges that in making interpretative
decisions today, the Supreme Court is really making up a new
constitution piecemeal as it goes along, and not doing it very well.
Now 1 would agree that a final judicial interpretative tribunal
has important degrees of discretion here, as in other parts of the
law, but Professor Weiler goes much too far in what he has said.
5 12-13 W
6Supra, note 2.
.III, c27.
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I consider the true history of the development of the B.N.A. Act
by judicial interpretation to be almost the complete reverse of what
Professor Weiler says it is. The greatest uncertainty about the
meaning of the power-conferring words and phrases of the consti-
tution in relation to one another occurred at the beginning. As time
went on and precedents accumulated, many years of judicial inter-
pretation greatly reduced this uncertainty and made the distribution-
of-powers system much more meaningful. In other words, after a
hundred years of judicial interpretation, the B.N.A. Act has become
more, not less, meaningful than it was in 1867, and of course it was
by no means devoid of meaning then. We are talking of matters of
degree and of the main trends, positive or negative, in the develop-
ment of the meaning and utility of the constitution. Moreover, judi-
cial interpretation over the years has shaped the original power-
conferring words and phrases in relation to one another, so that
they have been capable of affording guidelines for new problems
of legislative power-distribution arising from social change. This
parallels the function and operation of judicial precedent in other
branches of the law, so there should be nothing surprising about it.
Now in saying this, I do not mean that the B.N.A. Act is complete
and all-sufficient in the sense that it contains in its text detailed
principles and concepts that automatically embody easy solutions
for every problem in the division of legislative powers that may arise.
If this were so, reading the Act would be all that was involved in
constitutional interpretation. While this extremely simplistic view of
interpretation and meaning is not valid, Professor Weiler has gone
to the opposite extreme. He feels that the federal constitution has
become virtually meaningless, so that the Supreme Court is really
making up new constitutional rules as it goes along under the guise
of interpreting the text of the B.N.A. Act. This extreme is just as
invalid as the other; it too does not properly describe our true
operating federal jurisprudence. As always, the truth lies at some
middle position between these opposed extremes. Professor Weiler
has gravely oversimplified the nature of constitutions and consti-
tutional history.
Logically enough as a result of his views, however, Professor
Weiler considers that we would be better off if the courts in general,
and the Supreme Court of Canada in particular, were out of the
business of judicial review of the federal constitution altogether.
He would look instead to the model afforded by collective bargaining
in labour relations for the operational jurisprudence of our federal
system – he would put the main issues of the federal constitution
into constant negotiation at federal-provincial conferences of
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the elected political leaders of government. For my part, I think
these ladies and gentlemen already have quite enough to do operating
within the basic guidelines afforded by judicial review of the
constitution.
Professor Weiler does concede a marginal role for the courts in
this area. If some unfortunate citizen is caught by actual conflict
of federal and provincial statutes applicable to him, Professor
Weiler would allow him to go to court. But this qualification simply
makes his main position less credible than ever. Conflict or in-
consistency is a complex and flexible concept. There are thousands
of pages in the federal statute books, and tens of thousands of
pages in the provincial statute books, to say nothing of subordinate
legislation; a good counsel could nearly always find enough conflict
or inconsistency of some kind to get into court, and we would be
back to full-fledged judicial review.
In any event, I do not find the model afforded by labour relations
jurisprudence in Canada to be satisfactory as a type of system for
control of the operating fundamentals of our federal constitution.
The labour relations model is no substitute for sophisticated judicial
review at the highest levels in these fundamental matters. It is to
the latter that we must look for a satisfactory operating jurispru-
dence of Canadian federalism.
Concerning the position of the final Court as the umpire of our
federal system, I prefer the views of Professor Cairns to those of
Professor Weiler. Cairns says:
A strong and effective court requires a variety of supporters. It must be
part of a larger system which includes first class law schools, quality legal
journals, and an able and sensitive legal fraternity – both teaching and
practicing. These are the minimum necessary conditions for a sophisti-
cated jurisprudence without which a distinguished judicial performance is
impossible. Unless judges can be made aware of the complexities of their
role as judicial policy-makers, and sensitively cognizant of the societal
effects of their decisions, a first-rate judicial performance will only occur
intermittently and fortuitously 7
Suffice it to say here that I consider the record of the Supreme
Court of Canada in constitutional interpretation to be much-better
than Professor Weiler would have us believe.
Finally, we come to the concept of the court as the defender of
civil liberties. Here the author is much more sympathetic towards a
major role for the courts, under the Supreme Court’s leadership. But
he is uneasy about the wide-ranging power conferred on the courts
7A.C. Cairns, The Judicial Committee and Its Critics (1971) 4 Canadian
Journal of Political Science, 331.
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by such phrases as “freedom of speech” and “equality before the
law” in the Canadian Bill of Rights.8 He perceives the delicate
balancing of competing interests that is involved, and also the issue
of the extent to which appointed judges should be striking down
the statutes of elected parliamentarians for offence to criteria of
“freedom” or “equality”. He seems equivocal in the end about the
part that the courts should play here. The difficulties concerning
the proper terms of partnership between courts and legislatures in
these matters are indeed very great. Uncertainty is understandable
and caution is called for. Personally, I think it is desirable that the
courts should endeavour to apply these general standards, provided
they confine themselves to striking down obnoxious and obvious
inequalities or very clear denials of essential freedoms. But I do
agree with Professor Weiler that, in the end, elected parliamentarians
have supremacy over appointed judges.
Obviously, I have found much to agree with and much to disagree
with in this book. It has pleased me and discouraged me; it has
angered me and enlightened me; it has even moved me to rethink
the basis of some of my own opinions. This means that, in my view,
In The Last Resort is a very good book indeed and deserves to be
widely read.
W. R. Lederman*
8 Supra, note 3, s.1(b) and (d).
* Of the Faculty of Law, Queen’s University.