BOOK REVIEWS
REVUE DE LIVRES
Law of Trusts In Canada, by D.W.M. Waters, Toronto: The Carswell
Company Limited, 1974. Pp.i-xcii, 1070 ($85.00).
Why are there so few treatises on Canadian legal subjects?
Partly, I suppose, because in the absence of a separate bar the
Canadian legal practitioner has tended to be as much a businessman
as a scholar; and partly because until recently there were not
many full-time law teachers in Canada. At least as far as the latter
are concerned, something more must be said. The output of academic
legal writing in Canada has been disproportionately low compared
with that in almost any other country in the Commonwealth. Of the
other factors which have contributed, one of the least unflattering
is the existence of a variety of more or less enticing alternatives to
the drudgery of library research, case analysis and composition.
Furthermore, and perhaps in consequence, this type of work has
become distinctly unfashionable.’
It is unquestionable that Canadian law has suffered from its lack
of systematic exposition. In the area covered by Professor Waters’s
work, it has become increasingly difficult to predict the approach
that Canadian courts will take to a number of questions. These
include the methods of constituting trusts, the principles governing
resulting and constructive trusts, the jurisdiction of the court to
interfere with the discretion of trustees, the law relating to certainty
of objects, the scope of legislation which permits trusts to be
varied and the rules which govern charitable trusts. While one can
applaud the growing pragmatism of the judiciary and their apparent
distaste for the kind of conceptualistic thinking which, in different
periods, has hindered the development of equitable principles, in-
consistency is not yet a judicial virtue.
The appearance of this book, the first major Canadian treatise
on the subject, is timely. The difficulties confronting the author were
considerable. There was, in the first place, the labour involved in
finding, collating, analyzing and evaluating a mass of decisions dating
“Consciousness II is the state of being aware that there is more to law
than rules. Once you have experienced the bittersweet taste of this forbidden
fruit, you cannot be content with the innocent games of Consciousness I”:
Arthurs, “Progress and Professionalism:
the Canadian Legal Profession
in Transition” in Ziegel (ed.), Law and Social Change (1971-1972). Apple or
lotus?
McGILL LAW JOURNAL
[Vol. 21
from the middle of the last century. Then there was the question of
whether to attempt to integrate the Canadian decisions and those
from other jurisdictions into a single coherent pattern. Finally –
and this must have been a particularly vexing problem –
there was
the difficulty of determining whether decisions which appear to
diverge from -the law in force elsewhere should be regarded as
aberrations or as authentic Canadian offshoots.
Professor Waters has surmounted these difficulties and produced
a major work. For his willingness to undertake the time-consuming
and boring task of digging for material, those of us who teach and
those who practice in the area must be particularly grateful.
Practically all of the relevant Canadian cases are now easily
accessible, the principles for which they stand are revealed in a
lucid and perceptive commentary and we have the benefit of the
author’s views on the directions which future developments of the
law are likely to take.
To say that the book is not quite the definitive work on the law
of trusts in Canada is not to suggest that the author has not ac-
complished his purpose. As one of his main objectives was to
disinter and to promote discussion of the Canadian material, Pro-
fessor Waters “followed the principle of employing English authori-
ties only where they are of leading importance in Canada or the
law in Canada is silent”. This approach will inevitably detract to
some extent from the work’s immediate utility. We have not reached
the stage when Canadian courts will look almost exclusively to
Canadian cases and it is still a rare occurrence for an English decision
to be subjected to critical scrutiny by a Canadian judge. For the
present, practitioners will need to read the book side by side with
one of the English texts. To criticize the author on this ground would
be unfair. His aim was worthy, the task was monumental and the
result is wholly admirable. The approach adopted in the book will
surely do much to promote the emergence of a distinctively Canadian
law of trusts.
The book is written in a narrative style. For this reason, and
because the author has taken pains to start from first principles
in his approach to each topic, it will be particularly helpful to
teachers and students.
The work is remarkably comprehensive. Business trusts, the
relevant rules of the conflict of laws, the trust in Quebec and the
use of the trust in tax planning are all discussed, as well as the
topics which are normally considered in books on the subject. The
chapter on taxation required such compression that it must have
been enormously difficult to compose. Professor Waters has suc-
19753
BOOK REVIEWS– REVUE DES LIVRES
ceeded where commentators on the law of other countries have
often failed: the effect that federal and provincial revenue statutes
have on trusts and the areas in which trusts may be useful in tax
planning are indicated without undue length, detail and complexity
on the one hand, and without misleading generality on the other.
The short chapter devoted to the trust in Quebec vill have com-
parative value for students and might well be made required reading
for trusts courses in the other provinces. I came to it with no
background knowledge of the topic and found it fascinating. Pro-
fessor Waters outlines the main conceptual and theoretical obstacles
to the reception of the trust in a civil law system, discusses the
extent to which the main purposes served by the trust can be
accomplished by the use of civil law concepts and then focuses on
the provisions in the Civil Code which authorize the creation of
trusts. The provisions are brief and contain not even the skeleton
of the law of trusts as it exists in the other provinces. It has been
argued with some persuasiveness that, as the concept has its origins
in the common law, that system should be used as a source of
detailed rules and principles. Such an approach would conflict with
that normally applied to the interpretation of the Code, and it would
give rise to some not unreasonable apprehension as to the effects
on other parts of the civil law. The trust is fundamentally foreign
in principle as well as in source. Accordingly, the view has prevailed
that the trust provisions must be construed within their context in
the Code. In consequence, the concept of the trust in Quebec is
less flexible than in the other provinces and much more restricted
in scope. The author’s discussion of the trust in Quebec suggests,
nonetheless, that, even in its truncated form, it can have considerable
utility. He questions whether the limitations on its development
can be permitted to continue.
Inevitably there are points of substance on which a reader might
disagree with the author. For the most part, I would not do so with
any great confidence. There are some areas in which it is possible
to argue that English and Canadian decisions diverge to a greater
extent than Professor Waters indicates. For example, a case could
be made for the proposition that Canadian judges have been more
ready to apply the principle of benevolent construction to trusts
for mixed charitable and non-charitable purposes or that they have
been less reluctant to interfere with the discretion of trustees. To
establish such a case, however, one would be forced to rely almost
entirely upon what Canadian judges have done and to ignore what
they have said. If there has been a point of departure, it is rarely
expressed in judicial opinions.
McGILL LAW JOURNAL
[Vol. 21
The publication of this work was a notable event in the history
of Canadian legal publishing. In organization, in style and, above
all, in the quality of the scholarship it displays, it ranks with the
best writing on the subject in any country.
Maurice C. Cullity*
Private Law in Canada: A Comparative Study, vol.1, General Introductioni
Le Droit privd au Canada: Etudes comparatives, vol.1, Introduction gdndrale,
by J.A. Clarence Smith and J. Kerby, Ottawa: University of Ottawa Press, 1975.
Pp.xxviii, 460 ($12.00).
The extent of comparative legal study in Canada has not always
attracted favourable international comment. Perhaps the frankest
judgment has been that of Professor David, now given wide circu-
lation in the International Encyclopedia of Comparative Law, that
“Some are tempted to consider Canada as the promised land for
comparative law, but the pilgrims are still in the desert”.’ To be
sure, the statement was first formulated a decade ago,2 prior to
some current activity,3 and there have been more favourable com-
ments made recently,4 but it remain true that much of the wealth
to be found in the coexistence of Canada’s two great legal traditions
remains unexplored.
Warm applause is therefore to be accorded the authors of ti:is
first introductory volume of a project designed eventually to survey,
* Professor of Law, Osgoode Hall Law School of York University.
‘David,
“The International Unification of Private Law”, International
Encyclopedia of Comparative Law, vol.2, 208, para.5-567.
2 See David, “L’Unification du droit priv6”, Cours de droit privd com-
pard, 1965-1966, 396.
3 The comparative law centres of the University of Ottawa and McGill
University were created in 1962 and 1966 respectively. Both of these law
faculties, since 1960 and 1968, offer instruction in both legal systems, and in
both it is now possible to obtain combined civil and common law degrees in
four years of study by following an interlocking schedule of courses. Com-
parative law courses have now become standard offerings in most Canadian
law faculties. These individual efforts are now supplemented by a federally
financed summer programme, permitting students from each system to receive
instruction in the other.
4Professors Zweigert and Ktz, in their discussion of Quebec and Louisiana
as mixed jurisdictions, comment on the existence of developed, globally-known
centres of comparative law in both jurisdictions. Zweigert and Kbtz, Einfiih-
rung in die Rechtsvergleichung, vol.1 (1971), 128.
1975]
BOOK REVIEWS – REVUE DES LIVRES
bilingually and on a comparative basis, the totality of Canadian
private law. Ensuing volumes are to deal successively with Personal
Rights (including liability for tortious or delictual violation), Proper-
ty Rights, General Principles of Contract, Particular Contracts,
Family Law, Civil Procedure and Private International Law. More-
over, in spite of the breadth of their enquiry, the authors will
not be contenting themselves with setting out each of the two
systems separately, nor even with the setting out of each in a form
intelligible to those trained in the other system (a monumental
enough accomplishment, as evidenced by Professor Ferid’s recent
recasting of the French Civil Code into the framework of the
German BGB),5 but propose rather to “… bring the two systems
face to face point by point.. .”, endeavouring “…. to marry the
manners of treatment prevalent in the two systems” (pp.345, 346).
It is a grand design indeed, though we are happily informed that
the volume on the General Principles of Contract is at present
well advanced, while that dealing with Personal Rights has been
begun.
The difficulties of such an approach are evident even from
the perspective of the formal or technical presentation of the
material. In this first volume the bilingual arrangement is not
that of the Canadian federal statutes, separate columns on each
page, but rather identical facing pages: to the right in English,
to the left in French. This requires some adjustment to normal
reading habits, easily done, though the result of the bilingual
policy is a much shorter book than its size would indicate. Other
problems have also required, as the authors have noted, a sharing
out of awkwardness (p.vii), but this has generally been judiciously
done. How does one effect a Canadian compromise between the
English habit of placing the table of contents at the beginning of
a book, and the French one of placing it at the end? The solution
adopted is to place it at the beginning, while relegating the table of
statutes and cases from its pre-eminent English position to its more
modest French one. Again, although the English-speaking author is
stated to be fully responsible for the English text and substantial
portions of the French (p.vii), the French doctrinal technique of
numbered, titled paragraphs is used throughout.’ The only minor
irritation encountered by this reader was a rather too frequent use
of renvois forward (see p.107, by way of example), leaving the
5 Ferid, Das Franzdsische Zivilrecht (1971).
6 Stylistic balance is perhaps more difficult to achieve, and the French text
has been sharply criticized as a literal translation from the English. See
Patenaude, (1975) 77 R.duN. 540.
McGILL LAW JOURNAL
[Vol. 21
occasional early impression that the substance of the volume would
forever be just 10 pages further along. Misprints and errors are
infrequent, although “bind” becomes “bird” at p.17; “G6ny” “G6ry”
at p.293; and “Rupert’s Land” “Rupertsland” throughout.
What have the authors chosen to present by way of general
introduction to a comparative survey of Canadian private law?
There are three main chapters in the volume, entitled The Building
of the Law, The Building of the Courts, and Who Lays Down the
Law? Rephrased more elaborately, the divisions represent the his-
torical evolution of the common and civil law (as affected by such
notions and institutions as the writ system, Equity, Roman law
and codification); the development of the Canadian judicial struc-
ture; and current sources of law. Attention is therefore directed quite
properly to those elements of legal history and of the legal system
which have importance for the structure and content of our private
law.
The volume thus does not purport to be an introduction to the
Canadian legal system as a whole, though the authors have per-
formed a valuable service in bringing together their chosen matter,
and have provided many insights in so doing. Is it not thus correct
from the civilian perspective that the common law has had less
time to smooth away the traces of historical accident
(p.25)?
Is it not also true that civilian academic writing can be less subtle
in its discussion of decided cases, because the civilian academic is
free to simply disapprove of judgments (pp.303, 305)? Again, may
it not have been the Quebec experience which established clearly in
English law –
since despite earlier pronouncements, the practice
was not consistent –
that the laws of a conquered jurisdiction
continue in force until they are altered by the conqueror (pp.133,
135)? On one highly controversial subject, however, that of the
reciprocal influence of the civil and common law in Canada, the
authors have wisely reserved judgment until the conclusion of their
studies (p.23).
Such a pioneering work is unlikely, however, to escape criticism
entirely, and it does appear appropriate to venture two reservations.
In the first place, given the space limitations of bilingual
presentation, and conceding that successful comparison requires
a willingness to sacrifice detail, it can perhaps still be argued that
more introduction could have been useful. This reaction is inspired
both by the sentiment that existing Canadian doctrinal sources
have perhaps not been fully exploited, and also by a fear that some
complex problems may have been too simplified in their pre-
sentation. By way of examples, this writer can find no reference
1975]
BOOK REVIEWS – REVUE DES LIVRES
to the small volume of Mr Justice Laskin (as he then was) on
The British Tradition in Canadian Law,” though this is perhaps the
only other partial survey of the Canadian legal system. Nor is
Professor Russell’s work on the Supreme Court acknowledged, 8
nor such important and widely known articles as those of Professor
Lederman on the independence of the judiciary,9 Dean Wright on
legal education,’ Mr Justice Jackett on the foundations of Canadian
law,'” Dean Brierley (as he now is) on codification in Quebec,”
Professor Read on the judicial process in common law Canada,” or
Professor Morel on the period 1764-1774 in Quebec.’ 4 Authors may of
course read and cite whomever they choose, but is the choice so rich
in this country that these works can be ignored? Again, some
discussion of the organization of professional Bars would have been
appropriate, as well as fuller discussion of the ability of the Supreme
Court to overrule itself (p.301).15 The discussion of the judicial
appointing power is brief to the point of being misleading (p.255),
and surely in an introductory work the following sentence should
not be allowed to stand alone: “It needs to be emphasized that
in theory case-law no more creates than does academic opinion:
at the most it discovers” (p.133). 6
Secondly, and here one’s sympathy is fully with the authors,
the detailed, painstaking reconstruction of the growth of the Cana-
dian court system, amounting to almost 40% of the book, is very
difficult reading indeed. There are obvious reasons for this –
the
felt need to delineate specific changes in so many jurisdictions,
the absence of major conceptual differences as to the role of the
courts in the different provinces and territories, the recurrence of
7 Laskin, The British Tradition in Canadian Law (1969).
8 Russell, The Supreme Court of Canada as a Bilingual and Bicultural
Institution (1969).
9 Lederman, The Independence of the Judiciary (1956) 34 Can.Bar. Rev.
10 Wright, Should the Profession Control Legal Education? (1950) 3 J. Legal
769, 1139.
Ed.1.
265.
11 Jackett, “Foundations of Canadian Law in History and Theory” in Lang
(ed.), Contemporary Problems of Public Law in Canada (1968).
12 Brierley, Quebec’s Civil Law Codification (1968) 14 McGill L.J. 521.
13 Read, The Judicial Process in Common Law Canada (1959) 37 Can.Bar Rev.
14 Morel, La rdaction des Canadiens devant l’administration de la justice
de 1764 a 1774 (1960) 20 R.duB. 53.
15 Cf. Laskin, supra, f.n.7, 66.
16 Cf. anotner recent Ontario dictum: “We no longer believe that judges do
not make law.” Friedland, Prospective and Retrospective Judicial Law Making
(1974) 24 U.ofT. LJ. 170, 171.
McGILL LAW JOURNAL
[Vol. 21
monetary limits of jurisdiction difficult to relate to contemporary
values, and the strict chronological plan which the authors adopt
(though with the occasional sign of impatience with it, e.g., at p.247).
Nevertheless, we now have (and its compilation was no small task)
a precise account of the formal growth of the Canadian judiciary,
and the authors have well initiated themselves to the problems of
describing the law of a federal state with a duality of legal traditions.
Their remaining volumes will be awaited with great interest.
H. Patrick Glenn *
Problhmes de droit contemporain: M9langes Louis Baudouin, ed. by Adrian
‘Universitd de Montrdal, 1974. Pp.xvi,
Popovici, Montrdal: Les Presses de
529 ($15.50).
Twenty-six friends, associates or former students of the late
Louis Baudouin (1902-1969) have contributed a series of substrntial
articles to this volume dedicated to his memory. The aim of the
editor has evidently been to reflect in these pages the wide range
of Professor Baudouin’s interests and scholarly activities – he wrote
six major works and over thirty articles on the law of Quebec, as the
bibliography included as a frontispiece reveals. The twenty-eight
contributions have been grouped as follows: eleven on private law
subjects, seven on administrative or constitutional law, six on com-
parative law or jurisprudential themes and four on public and
private international law.
A number of eminent foreign jurists have supplied contributions
(Professors Rend David. Rend Savatier, Jean Carbonnier, John
Hazard, B. Blagojevic and Victor Knapp). Five pieces are in English.
A few, either before or since, have appeared elsewhere (those of J.-L.
Baudouin, J.-G. Castel and Jacques Brossard).
The collection is, then, rich in its diversity and scope. Among the
contributions which particularly aitract the attention of the Quebec
community are those devoted to current matters in Quebec private
law. Jean Charles Bonenfant, in a brief but timely study, traces
Quebec’s curious history on the right of married women to act as
surety for their husbands (the celebrated former article 1301 of the
* Of the Faculty of Law, McGill University.
19751
BOOK REVIEWS – REVUE DES LIVRES
Civil Code); Francois H6leine explores the contemporary matter of
the contract of employment between husband and wife; and Ren6
Savatier provides a comparative franco-Qu~bec study on a subject
to which relatively little attention has been paid in Quebec literature,
r~compenses in the regime of community of property. There are three
major examinations of a matter central to the law of contract –
the
principle of freedom of contract in contemporary society – by P.-A.
Cr6peau, Judge G. Trudel and A. Popovici. Judge Albert Mayrand
has provided an important synthesis of a number of questions in the
law relating to funerals and burials.
It is regrettable that within this wide range of studies more
attention was not paid to legal education in Quebec and Canada
(Professors Cohen and McWhinney do, however, touch upon the
subject, at pp.487 and 504). The matter was long a preoccupation
of the late Professor Baudouin, who taught for over twenty years in
the Faculty of Law of McGill University, for two years at the
Universit6 de Montr6al and, on a visiting basis, in a number of other
institutions. The span of years covering his association with legal
education, from the time when Quebec and other Canadian universi-
ties first became sensitive to the need for greater emphasis in this
area to the critical point at which we have now arrived, would have
afforded an occasion to measure the progress in a field of endeavour
to which he devoted so much of his own creative energies.
The volume is attractively printed and bound, with the usual high
quality one has come to expect of the publications of the Presses de
l’Universit6 de Montreal. However, it would have been further en-
hanced by an alphabetical subject index and a series of biographical
notes on the contributors who, from many quarters of the legal
community, have rendered homage to a distinguished scholar and
fine gentleman.
John E. C. Brierley*
* Of the Faculty of Law, McGill University.
McGILL LAW JOURNAL
(Vol. 21
(1) Legal Foundations of Land Use Planning: Cases and materials on planning
law;
(2) Legal Foundations of Environmental Planning: Cases and materials on
environmental law,
par Jerome G. Rose, New Jersey: Center for Urban Policy Research, Rut-
gers University, 1974. Pp.319(1), 318(2)
($10.00 each).
Les deux ouvrages pr6cit6s s’inscrivent dans une s6rie de sept
6tudes sur les affaires urbaines publi6es en 1974 par le ((Center for
Urban Policy Research>> de l’Universit6 Rutgers.’ Evidemment congus
comme manuels de base pour 1’6tude du droit urbain am6ricain, les
ouvrages du professeur Rose sont compos6s d’extraits de jurispru-
dence, de doctrine et de textes lgislatifs.
Tr~s bien structur6es, les deux 6tudes 6tablissent d’abord les
principes fondamentaux de (common law>, de droit constitutionnel
et de droit administratif sur lesquels repose le droit urbain am6ri-
cain. Ainsi y retrouve-t-on des documents et des arr6ts ofi sont
ddtaill6s les concepts de ,nuisance>,, de ndgligence, de o(trespass)), etc.,
un expos6 des fondements du pouvoir l6gislatif et rdglementaire des
municipalitds et des gouvernements sup6rieurs, ainsi que des re-
cours des citoyens qui se croient 16s6s par l’action de ces organismes.
Suivent ensuite des exemples de l’application de ces principes aux
diffdrents problmes de droit urbain: la pollution sous toutes ses
formes, la planification et l’amdnagement du territoire, etc.
Le problme essentiel auquel s’est arr6t6 le professeur Rose est
celui typiquement nord-am.ricain de l’opposition entre la notion
de profit et la n6cessit6 de planification urbaine. En effet, la plani-
fication urbaine et la protection de l’environnement sont trop sou-
vent ignor6es au profit des entrepreneurs offrant des projets gran-
dioses de ddveloppement non-planifids, mais rentables pdcuniaire-
ment pour les municipalitds prises dans un’ 6tau fiscal.
Les documents collig6s illustrent ces questions et, de plus, d-
montrent que les outils juridiques utilisds afin d’assurer le d6velop-
pement urbain int6gr6 et planifi6 sont, h quelques exceptions pros,
ddpassds ou trop proc6duraux.
‘Les autres volumes de cette sdrie sont:
Franklin J. James, Models of Employment and Residence Location;
James W. Hughes, Suburbanization Dynamics and the Future of the City;
David Listokin, Land Use Controls: Present Problems and Future Reform;
Michael R. Greenberg, Readings in Urban Economics and Spacial Patterns;
W. Patrick Beaton, Municipal Needs, Services and Financing: Readings
on Municipal Expenditures.
19751
BOOK REVIEWS – REVUE DES LIVRES
Attendu les notions juridiques am6ricaines expos6es dans ces
deux ouvrages, l’intdrft pratique demeure fort limits pour les juris-
tes qudb~cois. Par ailleurs, de tels ouvrages constituent une excellen-
te source d’inspiration pour l’introduction de nouvelles notions dans
notre droit. Le meilleur exemple est sans doute celui de la th~orie
du “Eminent Domain”, laquelle, malgr6 la souplesse de nos lois
d’expropriation, n’existe pas en droit qudb~cois. Selon cette thnorie,
la planification urbaine doit primer h l’encontre des aldas du d6ve-
loppement assur6 par une politique de laisser-faire; on permet ainsi
aux municipalit~s de prendre immdiatement possession de terrains
pour des fins d’utilisation publique planifi~es d’avance, mais qui ne
se r6aliseront que dans quelques ann~es.
Somme toute, quiconque s’int6resse h la chose urbaine se doit
de consulter les deux ouvrages du professeur Rose afin de compren-
dre comment nos voisins am~ricains r6pondent au ph6nom6ne de
l’urbanisation.
Charles R. Schmidt*
The Law of Evidence in Civil Cases, by John Sopinka and Sidney N.
Lederman, Toronto: Butterworth, 1974. Pp.637 ($50.00).
A lawyer unacquainted with the “adversary system” of justice
would find it difficult to understand the complexity of the common
law rules of evidence. To him, evidence would be a rather arid
subject, akin to procedure, with few rules of any serious interest and
indeed with very few rules at all. The “adversary system”, by turning
the trial into a contest, has necessitated the creation of rules limiting
the way in which men may show the truth of their assertions. As
a result, the law of evidence has become not only one of the more
difficult areas of law from a technical standpoint, but also a major
source of philosophical and social disputes. The nature of “truth”
and the proper course of action when “truth” and “justice” seem to
conflict are among the issues that can properly arise in a debate
on evidence.
The writer of a textbook on evidence faces a double task. In
order to write a competent work he must present the technical pro-
blems in a reasonably clear manner and he must illustrate as many
rules as he can with cases judiciously selected from the copious
* B.C.L. (McGiU).
McGILL LAW JOURNAL
[Vol. 21
supply. In order to write a very good work, he must point out
and face the theoretical issues and he must explain and defend
his own ideas. Despite a number of minor shortcomings which will
be discussed a little further on, Sopinka and Lederman’s The Law
of Evidence in Civil Cases is both a competent and a good book.
Those interested in the technical aspects of evidence will be
pleased by the clarity of the writing. The pace of exposition is
brisk without becoming cursory; the classification of the different
rules is simple and logical. The writers first deal with the general
principles of admissibility and then with the celebrated exclusionary
rules that render common law evidence so different from other
systems. Next follows a chapter on the “production of evidence”,
which embraces judicial notice, burdens and presumptions, and
corroboration. Finally, we come to the more procedural problems
of the presentation of evidence before courts. One might dispute the
relatively minor place given to similar fact evidence: while this may
not be a major issue in civil matters, it is nonetheless a very difficult
and interesting area which merits insertion among the “exclusionary
rules” instead of treatment as a subsection of “relevance”. On the
whole, however, one cannot fault the authors’ classification of
topics.
The treatment of cases is particularly praiseworthy. Enough of
the facts is usually provided for the reader to understand the issue,
but no rambling or irrelevance is permitted. The treatment of Wright
v. Doe d. Tatham’ at pp.46-48 and R. v. Snider2 at pp.244-246 are two
of many excellent lessons of how to discuss cases in a textbook.
Philosophically, Sopinka and Lederman are clearly reformers.
From the outset, they need to defend their rather novel decision to
separate criminal from civil evidence, even though they must
constantly refer to criminal cases. In justification, they invoke the
fact that criminal and civil evidence are being reformed separately,
the disappearance of civil juries, and the lesser degree of solemnity
attending civil cases. Despite these arguments, one can wonder if a
textbook encompassing all evidence along the lines of Cross 3 is not
desirable. However, Sopinka and Lederman have clearly given a
thoughtful explanation of their position. Their decision, whether
one agrees or not, is a perfectly reasonable one.
In many areas of law, Sopinka and Lederman propose specific
reforms. They sensibly call for the elimination of the remnants of
1 (1837) 7 Ad. & El. 313, 112 E.R. 488.
2 [1954] S.C.R. 472.
3 Cross, Evidence 3d ed. (1967).
19751
BOOK REVIEWS – REVUE DES LIVRES
the rule in Hollington v. Hewthorne4 (pp.26-29). They join forces with
those calling for the admission of first-hand hearsay into evidence,
underlining that this would not necessarily be wise in criminal law
(pp.150-155). They-advocate a “more moderate” policy with respect
to illegally obtained evidence and in particular, advocate the exclu-
sion of evidence obtained in violation of the Bill of Rights5 (pp.343-
347). These opinions are perhaps not particularly startling or new,
but they provide much food for thought for interested students.
Roses have thorns and good books have faults. This book is no
exception. The absence of an index of statutes is a minor but at
times annoying defect. The authors could perhaps insert one in
future reprints.
A more serious shortcoming is the omission of a formal conclu-
sion. The many ideas and theoretical positions which the authors
present to their readers are thus left inchoate and somewhat un-
derstated. A final chapter tying together the various threads would
have provided the type of finish this work deserves.
In conclusion, it must be reiterated how much the qualities of
this work overshadow its faults. It is pleasing indeed to greet the
appearance of a first-rate Canadian textbook on a subject which
sorely needed such attention.
Julius H. Grey*
4 [1943] 1 K.B. 587.
5 Canadian Bill of Rights, S.C. 1960, c.44.
* Faculty of Law, McGill University; member of the Bar of the Province
of Quebec; member, Senior Board of Editors, 17 McGill L..
McGILL LAW JOURNAL
Volume 21
Montreal
1975
Number 4
WOMEN AND THE LAW / LA FEMME ET LE DROIT
SPECIAL ISSUE
EDITION SPICIALE
PREFACE
PREFACE
The Board of Editors
is
pleased to publish this Special
Issue on Women and the Law.
This multi-faceted subject has
in
not been widely
Canadian scholarly journals, but
is one which we believe merits
serious study.
treated
In our attempt to explore a
broad selection of topics we un-
fortunately have been unable to
the in-
afford certain issues
depth consideration which they
deserve, and have been pre-
cluded by limited space from
treating other relevant topics at
all. It is, however, our hope that
further discussion of the law as
it affects women and of the per-
ceptions behind the law, will be
stimulated by our efforts.
We wish to thank the authors
who have contributed to the
issue for their interest and pa-
tience, and the federal Depart-
mient of Justice for the generous
grant which helped make possi-
ble the realization of this pro-
ject.
Le comit6 de redaction est
heureux de presenter cette 6di-
tion spdciale intitul~e “La Fern-
me et le Droit”. A notre connais-
sance les revues juridiques ca-
nadiennes ont rarement trait6
ce sujet qui m~rite une 6tude
s~rieuse.
Nous sommes conscients du
fait que cette 6tude consacr~e b
la femme n’est pas exhaustive.
Le sujet 6tant tris vaste et
6tant donn6 l’espace limit6 de
notre revue, nous avons dat 6li-
miner certains aspects et d’au-
tres n’ont pas pu 6tre appro-
fondis comme ils auraient pu
l’6tre. Nous esp~rons, toutefois,
que cette vue d’ensemble a sou-
lev6 plusieurs questions et que
de futures recherches concer-
nant la situation juridique de la
femme seront ainsi stimuhies
par nos efforts.
Nous tenons 6. remercier pour
leur collaboration assidue tous
les auteurs qui ont particip6 h
cette 6dition sp~ciale ainsi que
le Minist~re de la Justice f~d6-
ral qui a contribu6 au finance-
ment de ce projet.
