Remembering Canada's 'Premature Anti-Fascists' in the Spanish Civil War

     A recurrent theme in our law and politics is state concern about individual citizens going overseas to fight in foreign wars, see here.  Though present concerns focus on the radicalization of potential terrorists, even prior to Confederation, Canadians regularly participated in external conflicts.

     One of the best examples of Canadians fighting abroad was Calixa Lavallée, who penned 'O Canada' (with its own "Strange History" ), and who also fought and shed blood for the Union side in the American Civil War, see here. What to do about these individuals has presented an ongoing legal problem for the state, as discussed by Craig Forcese in his 2014 blog, here.

     While many Canadians have participated in foreign wars before and since, see here, one of the least remembered conflicts is the Spanish Civil War. The war started in 1936, after portions of that country's military, dubbed the 'Nationalists', rebelled against the election of a left-leaning government popularly known as the 'Republican' or 'Loyalist' side. As has often been the case, the conflict on the Iberian peninsula appealed to many who saw a chance to fight for a cause. 

      The Spanish Civil War was no different.

      Almost 40,000 volunteers formed an 'International Brigade' of soldiers from countries around the world, including the USA and Canada, who travelled to defend the elected government against the rising fascist menace.  However, suspicious of their political motivations (many were communists), Mackenzie King's Liberal government passed the Foreign Enlistment Act in 1937, designed to criminalize the involvement of Canadian "Renegades" who wanted to fight (a version of which remains on the books, see here).

     Despite this, the Spanish Civil War of 1936 - 1939 attracted more than 1600 Canadian recruits, mostly men, but a few women too - see "My God, Are They Sending Women?"  Canadians formed their own unit, the Mackenzie-Papinou Battalion, (the 'Mac-Paps'), named in commemoration of the leaders of the Rebellion of 1837, who had revolted a hundred years earlier. Almost half of the Mac-Paps ultimately lost their lives in the fight, more casualties than were experienced in the officially sanctioned conflict in Korea a few years later.

     Some combatants, like Canadian Dr. Norman Bethune, became famous around the world.  But many, like George Hill, remained relatively unknown, and until very recently, not well recognized for their time in combat.  Born in 1908, my Uncle George was my maternal grandmother's younger brother.

My great-Uncle George Hill, identified in his POW records as 'communist'

      I had the privilege of meeting him in person once in the 1970s, and have been lucky enough to find some records of his experience in Spain in the 1930's at an excellent site established with funding support from Canada's Social Sciences, Humanities and Research Council, see here.  Given the high mortality rates, my Uncle was lucky to survive, especially so since he was captured in 1938 (on the 1st, April Fool's Day) and held as a Prisoner of War for 10 months. 

      At some point he took the time to write a testimonial about his time in captivity.   In his own handwriting, he tells an extra-ordinary tale of survival at the hands of the Nationalists, who regularly beat the imprisoned men with sticks, in terrible conditions.  He notes, for example, eight of the international prisoners held by the Spanish died for lack of care in the "concentration camp" where they were kept, at San Pedro de Cardena. All were regularly subjected to interrogation by the Nazi German allies of the Spanish fascist regime.  At one point George writes, "yes! It was the Gestapo", as if to dispel any doubt as to the identity of the foe that would shortly menace the whole world.  His entire account is available online, see here.

     Released in a prisoner exchange in 1939, he ended his narrative with a cautionary warning that, within months, proved all too prescient, "they have left an impression on my mind & anything connected with fascism will always be my bitterest enemy."

Battallion poster for Canada's contribution to the Spanish 'International Brigade'

     2017 marks the 80th anniversary of the creation of the Mac-Paps, though I've seen little to mark this important date. As I've noted before, Canadian history unfortunately often seems subject to political sensibilities, see here.  In this case, when the soldiers returned from Europe in 1939, Spanish veterans were distrusted, and watched by the RCMP who deemed them, in language I'm sure George Orwell (who wrote his own account of the war - see here) would have appreciated, as "premature anti-fascists."

      Not much changed for over 60 years.

      Though the veterans of the Spanish War sought recognition for decades, see here, Canadian governments consistently refused to acknowledge these soldiers.  In 2001, Canadian veterans of the Spanish Civil War got a national monument in the nation's capital, though as reported in this CBC clip, it had to be paid for by private donations. One of the very last Canadian veterans of the war, Jules Paivio died in 2013,  see here.   Shortly before his death, the Canadian War Museum in Ottawa finally opened an exhibit that, for the first time, portrayed Canadian involvement in Spain in the 1930s, see here. 

      For his part, when George Hill made it back to Canada he moved to British Columbia, married and raised a family.  Though I don't recall much from my meeting with him in Vancouver the 1970's, I never forgot the story of how he had fought in Spain and was glad to recently find some of his war records online. Though criminalized by their own government, the men and women who went to fight in the 1930's responded, in many cases with their lives, to a danger that proved all too real with the start of World War II.  One can't help wondering how different things might have been if the world had heeded their warnings.

     On Remembrance Day in 2017, I will give a moment of silence to think of all those who have fought and fallen, but this year I will also include a special prayer for the many Canadian veterans of the Spanish Civil War.  In my opinion, so should we all.

What's in a Name? - Facts & Fallacies in the LSUC Debate 2017*

"What's in a name? That which we call a rose
By any other name would smell as sweet."

- Romeo and Juliet (II, ii, 1-2)

Introduction

      The governing body of Ontario's Law Society recently decided to change its name to drop the historical moniker "Upper Canada".  The issue garnered significant media attention, see e.g., here, here and here. Personally I supported the move and anticipated an informed debate about the issue, which I watched by webcast on September 28, 2017.

     It turns out that the discussion was vigorous, but also punctuated by some disconcerting misinformation and rhetoric.  This blog lists and critically comments on some of these points, raised at Convocation.  Given the result, nothing turned on the false, misleading statements of fact and fallacies that I heard.  But many of the statements do highlight some of the myths and conflicting narratives that exist about lawyers and the role of law societies in Canada, which I've been thinking about for the last few years.

My shot from a visit to Osgoode Hall a few weeks ago, at the East Entrance.

1.  The Law Society of Upper Canada predated all other lawyer regulatory bodies (in the Commonwealth).

False:  The Law Society of Upper Canada established in 1797, see here, was one of the first lawyer professional bodies in the world (& well before the creation of the British Commonwealth).  By contrast, the traditional English Inns of the Court have existed for centuries, though they were never authorized by statute, and have always been exclusive bodies for barristers only.

     However, the Law Society, in what has been called Ontario since 1867, was not the first statutorily authorized professional body for lawyers in the British tradition. In England this claim is probably best made by the 'Society of Gentlemen Practisers in the Courts of Law and Equity '. As Philip Girard suggests in his excellent article,** this body was given statutory authority in the 1730's for regulating the solicitors branch of the profession, then went through several iterations to later become known as the Law Society in the 1900's, which still exists today, see here.

Some Society records are held and digitalized by the Cornell Library Archives,

including this image in the public domain.

2.  Law Society 'membership'.

Misleading:  'Membership' is the historic phrase predominantly employed to describe legal advocates subject to Law Society regulation.  To the chagrin of at least some of my colleagues in law, that wording fell into some disuse several years ago.  I suspect the shift in terminology had something to do with the possibility that the term 'membership' might be taken by some to imply a 'private club' kind of mentality, not in keeping with the modern public purposes of legal services regulation.  Though still used, the Law Society more generally now employs the term 'licensees' to describe those it regulates, see the definition in the professional Rules.

     Current 'licensees' in Ontario are arguably members of a broader legal professional group, which has been expanded in Ontario to include lawyers, all barristers and solicitors (and historically attorneys in ON), as well as paralegals, but elsewhere includes notaries (BC and Que). In some jurisdictions it has even been expanded to incorporate recognition of a wide body of additional legal service providers (e.g. England & Wales), see here.

3.  The obligation to consult the 'membership'.

Misleading:  The views of Law Society licensees (see above) are likely an important consideration in any prospective policy change to legal regulation in the province.   However, any such consultation should likely not be considered determinative, since the statutory obligation of Benchers is to act in the 'public interest', especially since the explicit incorporation of this objective in the Law Society Act in Ontario in 2006, see s.4.2 (3).

    On this point, some confusion about the general scope of obligations of law societies may arise from recent and arguably inconsistent jurisprudential characterizations of legal regulators, a point discussed in more detail in my recent paper, see here. Briefly though, one case suggested law societies have an "unqualified" role to manage the profession (see para 108), another that Courts have a complementary authority over lawyer discipline, yet another that Benchers act as elected officials analogous to municipal councillors (see para 21).   As I've described in another previous blog, I think this is all part of the evolution of  the principle of independence of the Bar in Canada, which has been dynamic, so some ambiguity on this point may be understandable given the ongoing changes.

     In any event, I admit to finding parts of this argument disingenuously exasperating.  For example, some asserted the proposed change was both unnecessary and unsubstantial.  This is possibly a fair point, that I discuss in further detail below (under 6).  However, it seemed unnecessarily clever and a little contradictory for some opposed to then later alternately suggest a name change was so consequential that it necessitated further, see here, consultation.

4.  The legal regulator is 'independent' of government.

Misleading:  It really depends on what one means by 'independent'.  I argued in my recent PhD the rule of law likely requires independence of the Bar.  Just as it is for the judiciary, see my recent IRRP comment, lawyer independence in Canada is also conditional and subject to various qualifications.

     Most importantly the institutional independence of lawyers is qualified by the fact that all legal regulators in this country derive legal authority from provincial and territorial statutes (unlike their putative models, the English Inns of the Court).  In a small bit of irony, there was also a contradictory argument posited by some opposed to the motion that, despite its ostensible independence, the Law Society did not actually have power to change its name, since it required provincial government approval to do so.

5.  The Bar has led the emergence of Canada as a 'progressive' state.

Misleading:  This proposition significantly understates the involvement of lawyers, individually and as a group, in events and activities that have sometimes been regressive, illiberal and elitist. 

     Lawyers play an important democratic role, in Canada and elsewhere, see my comment on this in the recent American context here. A more balanced view though acknowledges the connection between what can be called the 'lawyers & liberalism' hypothesis in this country is more tenuous.  I talked about some examples of this lawyer (mis) behaviour, in the context of lawyer involvement in Canadian political scandals, in this previous post.

     Aside from these factual issues, I also heard some arguments that were based on a rhetorical device called the fallacy of reference.  These included:

6.  Changing the name won't solve the 'big' problems in legal services regulation.

Fallacy:  The problem with this proposition is that no one in favour of the motion actually appeared to make it.  This is sometimes referred to as a 'straw man' argument, where a false premise is raised in opposition and then forcefully argued down.   To be fair, I don't think anyone for or against the motion considered it particularly revolutionary.  My understanding is that most who argued in favour thought changing the name, in particular to delete reference to the territory called "Upper Canada" until 1841, was instead a symbolic change signalling the legal regulator's forward looking commitment to diversity and inclusion.

Our horses escaping for a run in the field last winter.

     Variations on this fallacy were that the legal regulator should not waste time with trivialities like a name change (also noted above under 3). Colloquially, this seems reminiscent of the expression about closing the barn door only after the horses have escaped.  To be clear, this is the third time since 1993 this issue has been raised for consideration before the governing body of the profession in the province, as noted in news reports linked above.  On this occasion, by the time Convocation met, resources has already been spent on consultations to study this issue last spring, see here.

7.  Other archaic names aren't troubling, so why should anyone object to "Upper Canada".

Fallacy:  False analogy bolstered by argument ad populum.  This involves deflecting debate on to a superficially related issue, other uses of historical names.  In this case keeping the old name was also justified by the largely anecdotal assertion that preservation of the status quo is either popularly supported, or was of little concern to most.

     First, it's worth noting it's that there is some evidence that other archaic names, terms and phrases do, in fact, bother people, see here.  As a specific example, maybe few are confused about the fact that 'British Columbia' is not British or in Columbia. But there are definitely some who think the name of the Canadian province is a misnomer that should be altered, see here and here. 

     However, the principal point is that considerations of other historic names are well beyond the authority of Ontario's Law Society.  The regulator had some scope though to address the specific and narrow question it did face.  That is, to what extent was changing the name of the Law Society justified within its statutory mandate to act now in the 'public interest'?

Conclusion

       As I noted at the start, I supported the 2017 motion.  I should also say that for a long time previously, I shared the views of those opposed to a name change.  I was in attendance at the 2012 AGM, for example, and voted to keep the old name for many of the reasons set out well by Ian Holloway, here.  However, in the intervening years my thoughts about this issue shifted. I now believe there is a better argument that the 'Law Society of Upper Canada' is inaccurate, outdated, and not in keeping with the modern purposes of the legal regulator. 

     In the end, the Benchers voted 38 to 11 to abandon "Upper Canada", with the final form of its name to be determined later in the Fall.  On one point at least I still agree with some of those opposed to the name change. Whereas Shakespeare's newly named flower might have smelled the same, the ultimate goal of Ontario's legal regulator is to improve on the original. Ultimately, it's time to turn from symbolic change, to meaningfully enhance access to justice and legal services for all Ontarians. In my opinion, this small name change might help.

*  Dr. Thomas S. Harrison is an Assistant Professor (Adjunct) at Queen's Faculty of Law and a Director of the Canadian Association of Legal Ethics
** See Phillip Girard, “The independence of the Bar in Historical Perspective” in In the Public Interest, The Report and Research Papers of the Law Society of Upper Canada’s Task Force on Rule of Law and Independence of the Bar, (Toronto: Irwin Law Inc, 2007). 

Law, Star Trek Lawyers, & How We Envision the Future

     Legal precedent has a temporal aspect that makes it inherently both historical and prospective. In the latter sense, while stare decisis relies on the past, it is also an attempt to establish principles that will serve as a future guide.  In this blog, I talk about the connection between law and the future, particularly in light of the recent celebration of Star Trek day on September 8^th, as portrayed in a couple of well-known episodes from the show.  

     The program’s treatment of legal issues has attracted scholarly attention in the past, see a 1993 paywalled article here, also described in this press report.  Star Trek provided some great examples of how Gene Rodenberry’s imagined future would still be dealing with basic legal issues.  In celebration of 51 years since the debut of the original series in 1966, the American Bar Association (ABA) also highlighted the connection in this recent humourous post:

In honor of #StarTrekDay, spare a thought for the tireless Starfleet attorneys who've saved numerous Starfleet officers from themselves. pic.twitter.com/WELYQF56oB

— American Bar (@ABAesq) September 8, 2017

     One of the best law episodes in the original series was Court Martial, in season 1.  The story involved an alleged dereliction of duty by Captain Kirk, threatening his Starfleet career.   This episode anticipated numerous legal issues, like the advent of electronic resources, as pointed out in this 2012 blog by Legal Geeks, see here.

     For example, remember all the recent talk about the rise of the robot lawyer?  In fact, Star Trek dealt with the early implications of artificial intelligences more than half a century ago.  In Court Martial, the reliance on computers was significant theme in the plot, where the Enterprise’s captain faced certain conviction on the basis of seemingly incontrovertible electronic evidence.

     The script is also a case study in models of lawyering, and contrasting legal styles.  A highlight is the curmudgeonly character of Samuel P. Cogley played by the late great Elisha Cook Jr.  Though the director was apparently frustrated by Cook’s delivery, the Cogley lawyer has some of the most memorable lines, below, and also seen in this clip:

     “Books, young man, books. Thousands of them. If time wasn't so important, I'd show you something. My library. Thousands of books…. This is where the law is. Not in that homogenized, pasteurized synthesizer. Do you want to know the law? The ancient concepts in their own language? Learn the intent of the  men who wrote them, from Moses to the tribunal of Alpha III? Books.”

     Cook’s character contrasted with that of Lt. Areel Shaw, a senior Starfleet lawyer (pictured in the ABA tweet above). Consistent with the show’s conceit, that Kirk was a 'ladies man', Shaw was a former paramour of the Enterprise Captain.  But that didn’t stop her from bringing him, by the last act, to the brink of a military conviction.

   Most remember that Star Trek had the first televised interracial kiss (on American TV at least), between the characters of Captain Kirk and Lt. Uhura, see the clip here. The Court Martial episode was similarly ground-breaking.

     At the time less than 3 percent of attorneys in the United States were women.  By comparison, a woman would not be appointed as a federal prosecutor until the late 1970’s in Canada, see here.  The appearance of a woman in a position of authority, as a senior JAG lawyer, who comes close to victory, was consequently a daring bit of television for the time.

      The tradition of great Star Trek law episodes continued in the Next Generation with the season 2 episode Measure of a Man. The episode dealt with whether the android character Data had rights.  Its examination of issues both harkened back to the slavery debates provoked by the infamous American Dred Scott decision, and highlighted a growing appreciation in modern times of animal ethics, see e.g. here.  A very good blog about the episode, again by Legal Geeks, is here.

      One of my favourite footnotes to the ‘Data on Trial’ storyline is that it was written by then practicing attorney Melinda Snodgrass.  When her unsolicited script was accepted, she quit her lawyer job and for a time became the executive story consultant for the show.  She is now an accomplished writer, who has recently also collaborated with Game of Thrones author George R.R. Martin.

     There are plenty of other places in the greater Star Trek universe where law and justice have featured prominently as a plot device, see here.    Ultimately, the future orientation of science fiction often makes it a good vehicle for addressing basic legal questions, as others have observed, see e.g. here and here.  (On a Canadian note, Ontario Western University’s law professor Randal Graham has recently published his own creative foray into the genre, see here.) 

      I’ve previously written about the importance of history to legal culture in Canada, see here and here. As I suggested at the start of this blog though, law and the role of precedent are also closely connected to the ways in which we envision the future.  The links to Star Trek highlighted here, but also to science fiction more generally, are built on this connection.  Law is rooted in history, but it looks forward too, so it’s perhaps unsurprising that justice features so prominently in these speculative works.  Hope everyone had a happy #StarTrekDay

A Chief Justice’s Power to Assign and Schedule and the TWU ‘Intervention Affair’*

Introduction

     There was a lot of discussion about the Supreme Court of Canada's (SCC) recent decision to permit additional interveners in the upcoming Trinity Western University  (TWU) case, see e.g. here and here.  The ‘intervention affair’ is the latest in series of developments that have highlighted the independent scheduling and assignment powers of top judges in Canada.

     There remains an uncertainty about this important aspect of judicial independence.  In this context, this blog briefly highlights how this power relates to the 'inherent discretion' of Courts, and describes two other notable developments where this authority has also created controversy.  It concludes by describing the circumstances of the use of the Chief Justice's assignment and scheduling power in the recent TWU proceedings.

     In my view, this important part of judicial independence, central to rule of law, requires further clarification generally.  More specifically, the SCC should take some further action to appropriately acknowledge or recognize this authority in the context of its own recent actions, which may have created some unfortunate misperceptions about rule of law and judicial independence in the administration of justice.

1.     Judicial Scheduling and Assignment

     Judicial independence in Canada is usually viewed in the context of several ‘dimensions’ that include tenure and remuneration, see e.g. the case law in the line starting with Valente v The Queen.  Judicial authority for assignment and scheduling falls within the third administrative dimension, which has both an individual and an institutional aspect.

     Individually, this part of independence is perhaps best captured in the concept of the ‘inherent discretion’ of the Courts.[i]  This power can be described as the authority of judges to control proceedings over which they preside, but I would say also imbues the 3^rd branch of government with a broad authority in Courts' administration and is a source of a Chief Justice’s power to act to appoint judges to preside in locations and over cases.  ‘Inherent discretion’ has some likely limits, see e.g. here, but remains a poorly defined reserve of additional judicial powers. 

     The examples below illustrate challenges created by this ambiguity, focusing on the exercise of a Chief Justice’s power to assign and schedule.[ii]

2.     2017 New Brunswick Legislation

     Last spring, New Brunswick passed legislation that provides the provincial Attorney General (AG) with a veto power over the Chief Justice’s assignment of judges to geographical locations, see here.  This recent law likely touches on the recognized authority of judges for assignment and scheduling, see the SCC decision in MacKeigan v Hickman.

     Given provincial constitutional responsibility for the administration of justice, to provide things like a physical office space, human resources and administrative support, the involvement of the provincial executive in these decisions makes sense.  Media reports paint government involvement in assignment elsewhere as a facilitative process, where the executive and judicial branches work together, see the examples of Alberta and Saskatchewan highlighted in this article.  However, New Brunswick’s recent law faced judicial opposition when Chief Justice Smith of the provincial Court of the Queen’s Bench raised concerns that it impermissibly trenched on the recognized independent authority of judges to assign and schedule, see e.g. here.

      Since there few, if any absolute discretions in Canadian law, see e.g. the well-known case of Roncarelli v Duplessis, this legislation must respect judicial independence, but also be balanced against the public interest. If these New Brunswick amendments purport to vest in the provincial AG an absolute discretion to determine sitting locations, absent appropriate considerations of judicial independence and other public law principles, then they may well prove untenable within Canada’s constitutional framework. 

     In the end though, the question of whether or not this recent legislation inappropriately breaches judicial independence remains a live issue.  

3.     Alberta Court of Appeal 2017 Decision in R v Gashikanyi

     Recent obiter comments in the Alberta 2017 decision in R v Gashikanyi have also created controversy and focused attention on judicial assignment and scheduling.  In that case, Justice Berger asserted that the Court of Appeal Chief Justice’s assignment to judicial panels was not random.  Justice Berger’s comments raised the possibility that individual judges are being assigned on the basis of their approaches to law, which could influence the final outcomes of some decisions, as I discussed in a previous post.

     The SCC decision in Mackeigan, noted above, suggests that assignment and scheduling is within the exclusive purview of judges.  But some recent case law also supports the proposition that the assignment and scheduling power may also be reviewable in the context of determining sitting locations, see the 2000 Alberta case involving a provincial court judge in Wachowich v Reilly. 

     Ultimately, there appears to be little evidence advanced in Gashikanyi to support Justice Berger’s obiter comments (see para 114 of the decision).  As noted by the dissent there, such a proposition faces a high bar of proof as a potential breach of the presumption of judicial impartiality (at para 117 of the decision).  However, the decision does raise the question of the scope of a Chief Justice’s powers to schedule and assign, and whether they might also be subject to a measure of external scrutiny.  

4.     The TWU ‘Intervention Affair’

     In addition to the legislative and jurisprudential examples above, the recent Supreme Court orders in the TWU litigation, which is scheduled for hearing in the Fall of 2017, appears to present a procedural example of uncertainties in the exercise of this power.

     The proceeding involves the authority of provincial law societies to accredit a law school in British Columbia which imposes a ‘community covenant’ on its students not to engage in sexual relations outside of marriage, which is defined as between a man and a woman.  Leave to intervene in the case, out of matters arising in British Columbia and Ontario, see here and here, was initially denied by Justice Wagner for a number of parties. The first decision to exclude some parties was subject to the criticism on social media, that these groups had an interest in the litigation and their distinct perspective was being unjustly excluded, see e.g. below:

#LGBTQI2S folks deserved to have a voice on the @TrinityWestern & Brayden Volkenant v. @LawsocietyLSUC. case - none were granted access. pic.twitter.com/tOloK1wZob

— Egale Canada (@egalecanada) July 28, 2017

      A few days after Justice Wagner’s order, the Chief Justice issued a subsequent order, which added an additional day to the hearing and granted leave to 17 of these excluded groups to make submissions in the case, see here.    Whether or not the Chief Justice’s order ‘overruled’ the earlier decision, or simply ‘varied’ it, could also be a matter of dispute.  However, either characterization fails to address the lack of explicit authority for the Chief Justice to make a later change under the existing rules of the Court, see Rule 75, here. The change to the first decision by the Chief Justice also appears unprecedented, see here.

     The Supreme Court does not usually issue reasons for its leave decisions. The lack of reasons in the intervention affair left some questioning the legal basis for the change, see here.  Further compounding the unprecedented nature of the Chief Justice’s decision, the Court subsequently issued a rare press notice, that appeared to provide some supplemental explanation for the Chief Justice’s decision to change the initial order.  The unusual nature of these developments was further complicated by Justice Wagner's subsequent media interview discussing the case, in which additional details of the Court’s internal deliberations seemed to be revealed, suggesting that the change was made in part because of the negative reaction to the initial decision by some on social media, see here.

     The press notice and subsequent media interview appear to fly in the face of the longstanding practice of the Court and its judges to only comment on litigation in open proceedings or in judgments, see discussion of this point here.  In this case the matter is still pending and therefore also subject to the sub judice rule, see a good scholarly treatment of the principle here, which stands for the proposition that all public officials should avoid comment that could adversely impact the perception of impartiality of the administration of justice.   Possible misperceptions in this case include that the Chief Justice acted without legal authority to overrule another judge, or that one or more judges had their independence and decision-making in an ongoing matter influenced by public criticism. 

     For now, these perceptions remain largely unaddressed.

Conclusion

     The indeterminacy I’ve identified in the judicial scheduling and assignment power is one that has created challenges.  Given the centrality of judicial independence to rule of law, this lack of clarity is particularly disconcerting, especially when it manifests at the highest Court.  I think there is little doubt, based on the discussion above, that there exists some legal basis for the Chief Justice’s intervention in the TWU litigation, given the broad reserve of powers available to the Court as a matter its inherent jurisdiction.

     But all of these cases highlighted also suggest that some clarification of the scope and limits of a Chief Justice’s authority in this area may be needed.  At a minimum in the intervention affair, the fact that SCC leave decisions can be re-visited in some fashion should be recognized, and, if necessary, acknowledged in the rules governing proceedings before the Court.  At a time when democratic rule of law is being challenged around the world, see e.g. here and here, it is important that Canadian Courts and judges continue to be as open and transparent as possible in the exercise of their independent powers. 

   hhttps://twitter.com/egalecanada/status/891029002852413440ttps://twitter.com/egalecanada/statu  

* The views and opinions expressed in this work are my own.  From 2003 to 2011 I served as judicial counsel, in several capacities, in the Office of the Chief Justice of the Superior Court of Justice of Ontario. My recent  2016 PHD in law examined the principle of ‘independence’ for lawyers and judges in the Canadian justice system, see "Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System".

---

[i] The seminal article is I.H. Jacob, “The Inherent Jurisdiction of the Court” in Current Legal Problems (1970).

[ii] See e.g., discussion of ‘inherent jurisdiction’ by Canadian Judicial Council document "Alternative Models of Court Administration", at pp 42 – 47.

Harry's 'Call to Arms' Comes With a Canadian Caveat

Harry Leslie Smith is a hero from another age with a cautionary tale about politics today.

The 94 year old has written books, like Harry’s Last Stand, and is a well-known contributor to numerous publications, including The Guardian and The New Statesman.  Together with a popular podcast, Facebook presence, and almost 100,000 Twitter followers, Smith has become a world-wide social media phenom.  His message, that forgetting our shared past risks the future, has also brought him national attention in Canada, as described recently in the Globe and Mail.

It was a pleasure to hear Smith speak recently.  A World War II veteran, Smith told the story of his early days of extreme poverty, to a small gathering at the public library in Prince Edward County’s Picton branch in late July.  He warned that the benefits won in hard fought past battles, in both war and social policy, are being threatened by today’s events.

Harry Leslie Smith, his son John, and me.

“I have seen all this before.  In the 1930s people gave fascism a chance because they felt betrayed by politicians who promised a better life, but only delivered material wealth to the one percent of the day.”  Smith’s described his early days as filled with hunger, cold and deprivation.  “I lived in a neighbourhood where no one could afford sentimentality,” he told us. 

“Workhouses existed just like in the novels of Dickens.  They were places for people whose only crime was being poor.”

His own father dug coal six days a week, 10 hours a day, but the family always lived on the edge of extreme poverty. “There is no dignity in labour exploited for extreme profit,” he said.  “It is evil.”

 Children at Crumpsell Workhouse in England, 1895 - 1897

There were few basic social services in the working class northern English town of his youth. “People screamed their way to death” he said and he recalled “walking down the street at 6 or 7 and from behind the windows hearing screams of people in pain from illness, who could not afford to go to the doctor.” Smith’s own sister contracted tuberculosis, died, and had to be buried in a pauper’s grave.

At age 18 in 1941 Smith joined the Royal Air Force. “Before we could fix the tyranny of unmitigated capitalism at home, we would have to stop the tyranny of Nazism,” he said. At the end of the conflict, grateful to have survived and mourning those lost in battle, he celebrated victory.  But he also foresaw the “genuine possibility” that people could build a better and fairer society.

But, Smith noted, the political will to improve social conditions did not last.  He described how governments in the 1970s slowly began instead to favour corporate over public interests, in a trend leading to the present day.

A physically unimposing five feet or so in height, the bespectacled nonagenarian spoke sitting down, with a quiet Yorkshire accent, his reading hampered by poor eyesight and low light.  Yet his conclusion, borne of his own experience, was a forceful warning about recent events: “Brexit and Donald Trump are what happens when nations deprive their citizens of social security & good paying jobs.  In the twilight of my life, I am watching the tide of civilization creep out to sea, like the tide in the Bay of Fundy.”

Smith’s son John accompanied him, and helped to flip through the many pages of his speech, prompting when he lost his place.  There was something very familiar about Harry Leslie Smith, and I felt a little déjà vu, when we met at the library.  Turns out there is a Canadian connection to this story.

John said his father liked to think “his life began” when he immigrated to Canada in 1953.  Following the war, Smith moved to Scarborough, Ontario.  In fact, the family were my neighbours. 

Of a similar age, Harry’s son even graduated from one of my rival high schools, in the Toronto suburb that we both called home.  I mentioned to him that I had also worked as a teenager as a sales clerk at the Canadian Tire store near to where we lived, and he said he had visited there “many times” in the past. 

It’s a small world indeed.

Canadians have been getting attention, and praise, for how well our democratic institutions seem to be holding up in the face of a perception that democracy is failing in other places, see e.g. here.  But Smith had a further warning for us too, suggesting that similar democratic challenges to social policy could soon be faced by this country.

“Canada is no different”, he said.   It is “in as bad a shape as the rest of the western world.” 

He noted multiple public crises here including in housing, personal debt, health care, lack of wage rises and a shrinking middle class, and suggested the seriousness of these issues remains obscured only now by Canada’s large geography and small population. 

Neither did Smith spare current political leaders from scrutiny in his remarks.  “Never believe the good intentions of a provincial premier who raises the minimum wage while gutting ordinary services,” he said.About federal politics he observed critically that, “a PM who takes selfies and talks of the politics of inclusion, while reneging on promises to make Canada more democratic and selling our infrastructure off to the private sector, will not protect the country from demagogues."

In another bit of synchronicity, Smith is both a former and current neighbour of mine, who lives part-time at his Belleville home in Ontario’s Quinte region.  Reached there for further comment he said,“the suffering I endured coming from a working class family was no different for working class people in Canada during the dirty thirties.  The erosion of the Welfare State in Canada is almost identical to what occurred in Britain.” 

He also mentioned his new book, “Don’t Let My Past Be Your Future: A Call to Arms”, which he said, “is universal in its condemnation of neo-liberalism or the bogus ‘middle of the road’ of politics of Justin Trudeau.”

Despite his relative fame, and local connections, his son said that they get surprisingly very few speaking requests here.  It may be that in the face of Canada’s apparent exceptionality to the decline of democracy elsewhere, Smith’s message doesn’t get much traction here. 

A Black Swan   -  "Fir0002/Flagstaffotos"

And I hope his fears for this country are wrong.  But agree or disagree, I think it wise for Canadians to take note of his warnings to be on guard against these dangers.  As everyone has witnessed south of the border, there seem to be some once-in-a-generation, ‘Black Swan’ type changes occurring in politics now, which are both rare and unexpected, see e.g. Donald Trump: The Black Swan President. There is little reason to think that Canada could not be similarly at risk.

In the end, Harry Leslie Smith’s remarks were a provocative message from the past that has caught the ear of some important people elsewhere.  His new book, due out this September, has been endorsed by British Labour Party Leader Jeremy Corbyn.   

Why Not Schrödinger's Judge? The Process of Legal Decision-Making

1.      Introduction

     I've been having a little fun over the holidays thinking about different ways in which judicial decision-making is conceived.  This blog briefly examines external influences on decision-making implicit in some traditional conceptions and suggests representations of the legal judgment process could use an updated model. 

     One alternative considered below is Schrödinger's Cat, a well-known analogy in physics that has achieved a kind of pop culture status, see here.   I suggest that adapting a version of this comparative model to law provides a modern conceptual framework that better describes how judges function to preserve indeterminacy, to enable their impartiality in decision-making.

Erwin Schrödinger

2.      Historical Divine Influences?

     There is a long historical connection with the belief that judging in law involves divine intervention.  For example, compurgation involved the recitation of a long passage by a potential witness, typically religious text from the Bible.  If someone misspoke, it was evidence that God had interceded to trip the tongue of the prospective witness, so that everyone would know they were lying. 

     Compurgation has long been abandoned, but the belief that a person's verbal missteps or assuredness can reveal something about the truth of their testimony remains a potential powerful influence in all assessments of human behaviour.  In legal proceedings, elements of using behaviour to judge the quality of testimony is, in my opinion, related to the modern discussion in law about 'demeanour evidence', which has vexed Canadian courts, see e.g. here. 

     Other divine involvement in past legal procedures were thought to occur in trial by combat, made popular in recent times by its depiction on television in the Game of Thrones.  There two disputing parties were set directly against one another in a physical confrontation.  The winner was the champion whose cause was just and victory showed them to be 'favoured by God'.

A Famous Trial By Combat From 1409

     The only weapons used in today's court battles are words, legal reasoning and persuasion based on evidence (though invoking the right to trial by combat in modern times has been attempted, see here). But adversarial advocacy, rooted in past tradition remains an integral part of the modern legal system.  Perhaps most importantly, the adversarial approach to law lets judges maintain impartiality to receive and assess opposing arguments, the relative merit of which remains finally undetermined until judgment is rendered (1).

3.     External Influences in Other Legal Theories

     The above examples all focus on past instances from the Natural Law tradition.  However, other legal theories also include descriptions of judicial decision-making that incorporate significant external considerations.  For example, Formalism took legal rules derived from precedent to be knowable, universal principles, that could be determined and applied in subsequent cases.

     Even here though, the Formal model was not legal, but rather sought to mimic the scientific method and process.  By comparison, the core criticism of legal Realism was that judges manipulated legal principles to do, outside of the law, what they instead intuitively or subconsciously felt was 'right' in the circumstances (2).

4.     Inherent Indeterminacy in Law

     While relying on things outside of law, many theories also tend to diminish the role of indeterminacy in the course of decision-making.  In proceedings, ideally arguments advanced by independent advocates are held in suspension until judgment, as an aspect of the adjudicator's impartiality.

     In this characterization of judicial decision-making, the ambiguous outcome of a legal dispute is an uncertainty that is necessary for a judge to maintain an independent mindset.  I would say that the inherent indeterminacy identified here also lies at the heart of law and legal systems and forms part of what Jeremy Waldron has identified as the "essentially contested" nature of some law, or what Neil McCormack described as its "arguable character"(3).

     More specifically, only at the conclusion of a particular legal dispute do parties know the outcome of their proceeding.  In this way, rather than divine intervention in a trial, or scientific methods, or something else, a better comparison for adjudicative decision-making is the modern physics metaphor of Schrödinger's Cat, which describes quantum uncertainty, but can be adapted to describe the judicial function.

5.  Why Not 'Schrödinger's Judge'?

     Schrödinger's physics experiment attempted to explain the seemingly bizarre operation of quantum mechanics.  Imagine a cat placed in a box with a device that could, completely randomly, cause its death.  As an imaginary exercise this experiment was of course not real.  As I understand it, the cat was in fact a symbol for the uncertain behaviour of an elementary physical particle.

     The point about opening the box was that the act of observation might itself have a determinative effect on the outcome of what the particle, as symbolized by the cat, would do.  Until observation the particle was theoretically in two possible states - ie, the cat was both dead and alive at the same time.

My barn cats

     Adapted to law, a similar thought experiment could also be used to illustrate the process of judicial decision-making in a legal proceeding.   Here, I imagine the judge's mind is like the box in Schrödinger's metaphor.  The state of the cat is like the final determination or judgment, which remains necessarily indeterminate while the adjudicator hears both sides of an argument. 

     That is, the final state of the legal argument before the Court remains unknown, and is possibly both meritorious and unsuccessful at the same time.  Only when the box, or here the mind of the decision-maker is opened to crafting a judgment, are the determinations of the judge revealed.

6.     Conclusion

     As a representation of judicial decision-making, my proposed metaphor of 'Schrödinger's judge' does not rely external factors or interventions.  As a symbol of the judicial reasoning process, the metaphor also better respects the ideal and necessary indeterminacy that exists in adjudicative decisions, described above. 

     Despite the emphasis in modern legal writing on law's predictability, see eg Waldron's paper on this here, at 9, there always remains some potential ambiguity about the application of legal principles to factual circumstances.  But more importantly, the uncertainty of law in proceedings being heard by a judge is an essential part of the way that decision-makers maintain their judicial independence. 

     Instead of relying traditional approaches to judgment that seem subject to outside influences, and don't acknowledge the role of legal indeterminacy, we should update the model.  Not sure how far this analogy might be taken, but its been an entertaining summer diversion to think about these comparisons. If we want to modernize our justice system, maybe we should start with updating our descriptions of legal processes like decision-making.  In other words, in law, why not Schrödinger's judge?


1.  As Lon Fuller asserted in his well-known article on "The Forms and Limits of Adjudication" (1978) 92 Harv L R 353, esp at 357.
2.  On these two approaches and other concepts of law generally a good background is available online at the Stanford Encyclopedia of Philosophy.
3.  See Rhetoric and Rule of Law: A Theory of Legal Reasoning, (Oxford: Oxford U P, 2005).  In my PHD dissertation I looked at both of these as part of what I identified as a primary constitutive tension in law, of  'inherent indeterminacy', see Between Principle and Practicality: A Dynamic Realist Examination of Independence in the Canadian Justice System, at Chapter 2.