Reviews Bibliographie Invasion

Reviews Bibliographie

Invasion of.'Privacy: Police and Electronic Surveillance in Canada . By 'STANLEY A. COHEN. Toronto: The Carswell,Co . Ltd. , 1983 . Pp. xxii, 282 . ($39 .50) .

At firstglance, one may wonder.why Carswell would publish,another book on wiretapping when David Watt's Law of Electronic Surveillance in Canada has been,supplemented in 1981 However, Professor Cohen, while acknowledging his debt to Mr. Watt and others,- attempts to.do more than provide a mere summary ofthe present state of law. He seeks to.analyze the competing interests and goals of a criminal justice system concerned with privacy and to propose a means by which this system ran be improved. The . major emphasis is on wiretapping and electronic eavesdropping, but other areas of surveillance are scrutinized well : . . as The Protection of Privacy Art' attempted to create an, instrument capable of serving as a legislative bulwark to preserve the right to privacy while enabling law enforcement agencies under strict control to conduct surveillance. Professor Cohen regards it as a mere "sub-set of amore general power", namely the power to conduct surveillance .-Historically, police were restricted by their unauginented senses, but with the development, of technology, legislation was necessary. Legislation must reflect what Professor Cohen considers to be,the basic purpose-ofthe criminal law, namely, criminal law, should be carried out withno more intereference with . the freedom of individuals than is necessary.. In seeking .to achieve .this . goal ; due regard is ,afforded to the findings of the. McDonald Inquiry into the Royal Canadian Mounted Police -and the Krever inquiry into the confidentiality of health records . . The author considers the jurisprudence relating to the Protection of Privacy Act and queries* whether it achievds its goals, whether it is fashioned in a manner that is consistent with the- rule of law,whether the participants in the system, judges, lawyers'and police are able to function well, and finally, whether the public is protected and if the legislation. can be strengthened. .All areas of the,present legislation are reviewed and subjected to. an extensive critique with suggestions for reform .

1 S.C. 1973-74, c. 50.

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Professor Cohen suggests that the list of targetable offences for electronic eavesdropping is too extensive and requires significant paring . Only offences which reveal a significant danger to life, such as murder, kidnapping, extortion, arson, hijacking, armed robbery, and trafficking in poisonous, dangerous or adulterous substances, should be considered, and even in those instances, only where a high degree of certainty that the crime has been, is being, or will be committed, is manifest . The application process is found to be defective in that the judge has no guidance as to the burden to be discharged by the applicant. To remedy this situation, it is suggested that the onus be on the balance ofprobabilities without reference to the applicant's good faith, the court be empowered to order the furnishing of information, reasons are to be given concerning the disposition of an application, and the court is to be restricted to facts as set out in the documentary material. In addition, in order to ensure all facts and law are properly presented on the application, an element of the adversary system would be introduced in the form of an Amicits Curiae or Andcus Publicae. Secrecy would be preserved if counsel were affiliated with an ombudsman or privacy commissioner. Authorization orders are suspect as well because of the confidentiality surrounding them. Professor Cohen insists the tight clamps must be loosened so that review of the order may be sought in a motion to suppress on the basis that the communication was not lawfully intercepted, the order was insufficient or defective upon its face, or that the interception was not made in conformity with the authorization. It is also suggested that the notification under Criminal Code section 178 .3 be meaningful and not merely cosmetic so that the citizen will have sufficient details upon which to seek redress for unlawful, unwarranted invasions of privacy . In addition, before intercepted private communications would be admissible, the accused would be given discovery of all the tapes, either by transcripts or an opportunity to transcribe and record all conversations . Finally, there is a proposal for a National Wiretap Commission to review and study the operation ofthe legislation . Such a commission exists in the United States.- Invasion of Privacy is provocative and intellectually stimulating. These suggestions for reform illuminate a number of deficiencies in the Protection of Privacy Act, or as it now is known, Part IV .I of the Criminal Code . However, one wonders whether some of these proposals are steps forward or steps backward. Giving trial judges powers of review and requiring reasons to be given for the granting of an order, will return the

Z National Commission for the Review ofFederal and State Laws Relating to Wiretap- ping and Electronic Surveillance .

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criminal justice system to the pre-Parsons3 voir dire, where all things were in issue and the hearing on admissibility was often longer than the trial itself. Indeed, the reasons given for review, namely, to challenge legality ofthe order, a defect is apparent on the fact of the order, or the interception was not in accordance with the order, 4 are already factors which would render the evidence inadmissible. Additionally, one wonders why one judge should sit in review of his fellowjudge, or for example, a provincial court trial judge reviewing the order of a superior court. Surely, with all the present safeguards in the application. for an authorization and Professor Cohen's Proposed safeguards, there is no necessity to "re-litigate" the decision to grant an order. The combination of the practical and the academic makes this book an important supplement to the more conventional texts on electronic surveillance . For those lost in the maze created by a decade of jurisprudence on Section 178 of the Criminal Code, it is a healthy and welcome return to the fundamentals. It is the type ofreview which Parliament should do, but will be unable to, due to the politically sensitive. nature of privacy rights. AUDREY S . BRENT*

Droitsfondamentaux et libertés publiques. Par DENis LEMIEUX . Montréal: C.E .J . 1983 . Pp. feuillets mobiles . ($32.50)

Après plusieurs mois d'attente, les éditions C.E .J . viennent de publier leur recueil de lois concernant les droits fondamentaux et les libertés publiques . Ce répertoire est publié sous couverture à anneaux permettant une mise à jour rapide. Il comprend quatorze lois dont, bien entendu, la Charte canadienne des droits et libertés' et la Charte des droits et libertés de la personne du Québec . En outre, d'autres lois connexes, telles les lois

3 (1977), 40 C.R.N.S . 202, 37 C.C.C. (2d) 497, aff'd, [198011 . S .C.R. 785, 14 C.R. (3d) 191 (sub nom. Charette v. R .), at p. 208 (C. R .N. S.): "Once the statutory conditions have been met, what the Crown must show is that the intercepted private communications are those ofthe person against whom it is tendered and accurately reproduce his words. The Crown's proof as to the integrity of the tape, its accuracy, its continuity, and voice identification, and that there have been no tampering or alterations in any way all relate to the proof that the evidence tendered is an accurate reproduction of what it is alleged the person against whom it is tendered said . The weight to be given to that evidence is for the jury . , 4 InR. v. Niles (1978), 40 C.C.C. (2d) 512 (Ont. C. A.), it was held that in orderfor an interception to be lawful, the Crown had to prove it was in accordance with the terms of the authorization order; In R. v . Parsons, ibid ., it was held that it is for the trial judge to rule upon validity of an authorization . * Audrey S. Brent, of the Saskatchewan Bar, Regina . 1 Canada Act, 1982, c . 11, Annexe B (R.-U.) . 2 L.R .Q. 1977, c. C-12 .

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d'interprétation fédérales et provinciales, la Charte de la langue française' et la Loi sur les langues officielles font partie de ce volume . Ces lois sont réunies en cinq chapitres intitulés: Charte des droits de la personne, lois à l'information, lois linguistiques, lois d'interprétation et lois spéciales. Un avant-propos du professeur Denis Lemieux explique les raisons qui justi- fient le regroupement de ces lois . Il ne fait nul doute que ce recueil constituera un instrument précieux dont l'usage pourra être judicieusement combiné avec les articles d'émi- nents juristes québécois et canadiens publiés récemment en un volume par les professeurs Beaudoin et Tarnopolsky.s Nous pouvons toutefois regret- ter qu'il n'inclut pas des textes importants pour l'établissement des libertés en droit constitutionnel britannique qui sont difficiles à retracer comme la Magna Carta, le Bill of Rights et l'Act of Seulement. Par ailleurs, pour le praticien, la version anglaise de ces lois aurait dû être reproduite pour fins de comparaison et d'interprétation . Il est vrai que la maison C.E.J. se distingue par l'édition de textes compactes et facile ment accessibles, tous ses autres volumes ne sont aussi publiés qu'en langue française . Un tel document deviendra un spicilège de première nécessité pour tout juriste qui se préoccupe de la sauvegarde des droits et libertés de la personne. ALAIN CARDINAL""

.u g- d=

MacGillivray andParkington on Insurance LawRelating to All Risks other than Maritie. Seventh Edition . By MICHAEL PARKINGTON, ANTHONY O'DOWD, NICHOLAS LEGH-JONES and ANDREW LONGMORE. London . Sweet &Maxwell . 1981 . Pp . cxxiv, 1029 including appendix and index . ($178 .75)

This book is the best English practitioner's book on the market. It is, beyond doubt, superior to Ivamy or to Colinvaux . Yet the book has almost the look ofa nineteenth century practitioner's work. It is very heavily weighted in favour ofcase law . Astonishingly, the Policyholders Protection Act 1975,' perhaps the most important piece of insurance legislation passed in the United Kingdom this century, goes

s L.R.Q. 1977 . c. C-11 . 4 S .R.C . 1970, c . O-2. 5 Gérald A . Beaudoin et Walter S. Tarnopolsky (éds) . Charte canadienne des droits et libertés (1982) . Voir aussi le numéro special de la Revue du Barreau canadien ( 1983), 61 R . du B . can. 1 . * Alain Cardinal, Avocat au Barreau de Montréal . 1 1975, c. 75 .

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unmentioned. The Insurance Brokers (Registration) Act 1977' is given a bare mention and the provisions of the Insurance Companies Act 1981 3 are only outlined . A division of insurance law into contractual and statutory parts is nothing short of antediluvian. In the sixth edition, some reviewers had criticized MacGillivray for not dealing with the very important question of what is an insurance company . In this edition, four pages are devoted to this topic but the discussion is almost worthless . Some English cases are summarized but the tests they lay down are so broad that they would cover most contracts. Reference to Professor Hellner's classic article on the subject would have helped the authors.' The chapter on insurable interest in property is set out comprehensively and with a great deal of historical learning . What is not pointed out is that the rules for deciding who has an insurable interest are irrational. Thus, to give but two examples: (1) an unsecured creditor has no insurable interest in property;6 (2) a bonafide purchaser of a stolen good has no insurable interest in the stolen property. The authors cite the "useful" article by Harnett and Thornton on insurable interest in propertyx in a footnote9 but they fail to apply the central argument of that article, namely that the definition of insurable interest in property arbitrarily deprives many insureds of coverage . In the chapter on agency, the outrageous decision inNewsholme Bros. Ltd v. Road Transport and General Assurance lo is accepted without question . The very limited scope given to agents in terms of ostensible authority also passes without comment." Only the rule in Grover and Grover v . Matthews,'' which prevents a principal from ratifying after a loss is criticized.

' 1977, c. 46 . 3 1981, c. 31 . 4 See e.g., the review by Professor R.M . Goode (1977), 93 L.Q.Rev. 458 . s See this article, The Scope of Insurance Regulation : What is Insurance for the Purposes of Regulation? (1963), 12 Am. J. of Comp. L. 494. 6 See e .g., the decision in Aqua-Land Exploration Ltd v. Guarantee Co. of North America, [19661 S.C.R. 133, (1965), 54 D.L.R. (2d) 229. 7 See e .g, Chadwick v . Gibraltar Insurance (1981), 34 O .R. (2d) 488 . s Insurable Interest in Property: ASocio-Economic Re-evaluation of a Legal Concept, (1948), 48 Col . L. Rev. 1162. 9 P. 20, n. 14. 10 (192912 K.B. 356 (C.A.). 11 See e.g., Comerford v. Britannic Assurance Co. (1908), 24 T.L.R. 593 and the cases cited at p. 397, n. 41 . 12 [191012 K.B. 401 .

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There is some mild criticism of the scandalous state of the law with 3 regard to the duty of disclosure 1 but in the end the authors would retain the doctrine . They write in defence of the duty of disclosure:'` In the first place, cover is sometimes obtained over the telephone without the protection of the proposal form and its warranties . Secondly, there must be occasions when the risk is quite definitely affected by a circumstance which was outside the scope of the most thorough proposal form-the house next door was only recently on fire or is thatched, or for that matter, the life assured develops serious symptoms after the proposal form is sent off, but before the premium is paid.. It cannot be said, in our view, that the doctrine of non-disclosure is otiose . Once one requires an insured to disclose the fact that his neighbour's house has a thatched roof or that he has had a recent fire, then this leaves the law precisely where it is today . i s The authors do not find it strange that the insurer owes the insured no duties ofdisclosure . Thus, an insurer does not have to tell the beneficiary of the existence of a life insurance policy after the insured has died; I6 nor, does it have to tell the insured the price ofhis or her insurance . "This seems more than a little unfair. Finally, in their chapter on subrogation, the authors spend a consider- able amount of time on the history of subrogation but there is no mention of the fact that the doctrine has been criticised as being wasteful because it s shifts losses from one insurer to another at great expense . I The authors are a little troubled by the decision of the House of Lords (a decision which 19 they regard as "inescapable") in Lister v . Romford Ice . This, they say, should be a matter "for legislation in the context of industrial relations as a whole" . =° But legislation abolishing subrogation in the field of employers' liability insurance alone would still leave many employees in the same position as the defendant in the Lister case . The decision of the Supreme

1 ; See Hasson . The Doctrine of "Uberrima Fides" in Insurance Law (1969), 32 Mod. L. Rev. 615. 1; P. 288 . 15 To be fair. the authors state that the law should be changed in two respects . First, all proposal forms should carry a warning to the applicant that anything he knows relevant to the risk of loss should be communicated. Second, they propose that the test of materiality of undisclosed facts "should be the opinion of the reasonable assured as to its materiality, so that he is not put in the enviable position ofdisputing the evidence given by the insurers as to how the prudent insurer would like to run his business". See p. 289 . In my view, these changes are largely cosmetic and would do very little, indeed to change the law. " See the excellent note, The Insurer's Duty to Disclose the Existence of a Policy (1976), 76 Col. L. Rev . 825. 17 See e.g., Kimball and Rapaport, What Price "Price Disclosure?"-The Trend to Consumer Protection in Life Insurance, [ 1972] Wis. L. Rev. 1025. 1$ See e.g., Hasson, Blindfolding the Courts: A Further Comment on Photo Produc- tion v . Securicor (1981), 5 C.B.L.J . 498 (1981). 19 119571 A.C. 555 (H.L.). 20 P. 502.

1983] Bibliographie 897

Court ofCanadain GreenwoodShopping Plaza v . Beattie21 is confirmation of that fact. It might be argued that I am being unrealistic and unfair in requiring a practitioners' book to adopt a critical stance but it should be remembered that Corbin and Wigmore were (and are) legal classics precisely because they adopted a critical point of view . REUBEN HASSON*

Canadian Occupational Health and Safety Handbook. By MICHAEL IzUMI DASH. Ikon Mills, Ont. : CCH Canadian Ltd. 1983. Pp. 350. ($15.00)

Occupational health has been the subject of a handful of intensely upsetting and compelling Canadian books in recent years . Elliott Leyton's Dying Hard,' dramatized the appalling story of the fluorspar miners of New- foundland by letting them tell it in their own unforgettable words. Lloyd Tâtaryn's book Dying for a Living,2 exposed the carcinogenic consequences of uranium and asbestos mining in Elliott Lake and Thetford Mines by presenting the scientific data and the body counts collected in those communities . The single most comprehensive contribution to this grim literature is Reasons, ]floss and Paterson's book entitled Assault on the Worker,3 which, though written from a western Canada perspective, provides statistics and case profiles from across Canada to prove its thesis that ours is a "violent" country in which to work. But as Elliott Leyton noted in his epilogue, if such books do not result in practical improvements in Canadian working conditions, then they constitute "nothing more than some obscene pornography of death" . It is for this reason that everyone who has read and been moved by such books or is concerned about a safer working environment for Canadians, should now read a new and different kind of book on occupational health . Canadian Occupational Health and Safety Law Handbook by Michael Izumi Nash is the first book in Canada to take up the challenge of occupational health issues by squarely addressing the critical question left conspicuously unanswered by other books. That question is, what can Canadian workers do to protect themselves from occupational health hazards?

21 (1980), 111 D.L.R. (3d) 257. * Reuben Hasson, of Osgoode Hall Law School, York University, Toronto. (1975) 2 (1979) 3 (1981)

898 THE CANADIAN BAR REVIEW [Vol. 61

This is ultimately a question of law. The law, however, varies in important respects from jurisdiction tojurisdiction across Canada. The job of writing a book of national scope on occupational health law required an author who not only knew his subject but who was able to analyze and present the law, with its many shapes and contours, in a comprehensible way. This particular author had also to keep his promise to his readers that his was a "handbook for action", written primarily for working people and, therefore, readable by them without having lawyers at their elbows . Nash responded to these challenges through the use of tables showing rights and duties, jurisdiction by jurisdiction, and by making Part I of the book a concise explanation of the legal system and process as they pertain to occupational health law . His book is as accessible a book on this subject as non-lawyers are likely to ever have . The book acquires its immediate relevance from the fact that most Canadian jurisdictions enacted general occupational health and safety statutes during the 1970's . The statutes conferred important new rights on workers, like the right to obtain information about occupational health hazards, the right to refuse to do unsafe work and the right to demand health and safety committees . Using a question and answer format, Nash shows the strengths, weaknesses and ambiguities of these laws from jurisdiction to jurisdiction . But the analysis is essentially legal, not political. Take, for example, the question posed in Part III of the book: "how do health and safety committees work?" . The author observes that "the theory underlying the legislated committees and representatives is that a system which makes both labour and management internally responsible for health and safety is both more effective and less expensive than a system which relies solely on the external guardianship of government' .`~ There is no additional commentary about whether or not this is a viable theory which can truly advance the cause of occupational health and safety . On the other hand, the legal limitations of the committees themselves are carefully identified: they must have equal membership from labour and management; they have only advisory powers; they cannot order work stop- pages; they cannot prevent management from introducing new technologies or substances; employers who refuse to co-operate with them will be very difficult to prosecute, and so on. Some might find the absence of critical political commentary dis- appointing but it is clear that this is not intended to be a book about what the law ofoccupational health ought to be. It is a book about what the law is and about how the law can be best used by "front-line" people to solve their occupational health problems . This is, indeed, the book's main strength, however didactic its approach.

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Among those in the "front-lines", of course, are trade unionists and lawyers and the book is a must for either type who seeks to represent the interests of working people with respect to occupational health issues . Alawyer has only to skip Part I of this five part book to avoid having his or her professional pride insulted. Thereafter, the clarity of exposition and the ease of reference is outstanding . And the law expounded is not only that found in occupational health and safety and related statutes . Part IV on enforcement of occupational health laws contains chapters on the use of criminal prosecutions, judicial review, injunctions and peace bonds, none of which has yet been successfuly applied in the occupational health context but all of which deserve the serious analysis Nash gives them . Trade unionists will appreciate the appendix of sample collective bargaining clauses on health and safety . The book identifies those areas where collective agreement provisions can do much to produce safer working conditions for organized workers . This seems to be especially the case in connection with the issues covered in Part II of the book, entitled, "how do you find out what is going on at the workplace?" . Astute union negotiators will attempt to bargain provisions requiring employers to provide information about testing, monitoring and government inspections of the workplace, to train employees in the risks of their jobs, to post comprehensible warnings and labels, to give notice of new technologies and substances to be introduced into the workplace, and so on. Part V of the book contains the best short presentation of workers' compensation law and practice yet published. It will be,of great use to injured workers and their advocates, perhaps even after the current attempts to reform the law have run their course. The chapters on dealing with the Board and preparing for an appeal will certainly retain their relevance. DAVID LuiTcH*

Gatley on Libel and Slander. Eighth Edition . By PHILLIP LEWIS . London: Sweet & Maxwell. 1981 . Pp. cxxxvii, 751 . ($165 .75) There are few treatises that have received the accolade of a "classic" work in a specific field of law . Gatley on Libel and Slander' certainly deserves that description. In its eighth edition, now under the principal editorship of Phillip Lewis,' it is the last of the distinguished group of treatises that once

* David Leitch, of the Ontario Bar, Sudbury, Ont. (1981) 2 Robin McEwen to whom the book is dedicated, was co-editor of the seventh edition but he died in 1980 during the preparation of the latest revisions . 900 LA REVUE DU BARREAU CANADIEN [Vol . 61 graced the study of defamation such as Bower on Actionable Defamation, 3 Odgers on Libel andSlander, a Fraser on Libel andSlanders and Folkard's Law of Slander- and Libel. b This text and undoubtedly its subsequent editions will continue to be the leading authority for both scholars and practitioners in the law of libel and slander in England, Canada and other common law countries . 7 Gatley certainly has had an enormous influence in the development of the law of defamation in Canada. It would be fair to say that we owe a significant intellectual indebtedness to the authors of this work since there has scarcely been a leading decision that has not been expressly or implied- ly based on excerpts from this treatise. Occasionally, however, ajudge will be carried away with enthusiasm for the work and incorporate compen- dious amounts of the material into his judgment as occurred recently in the companion cases ofBurnett v. C.B .C . (No . 1)x and Burnett v. C.B.C. (No. 2)9 where over forty-two pages of textual quotes, principally referrable to Gatley, were included in the judgments . On the other hand, Canadian counsel who represent defamation clients would be seriously remiss if they did not consult its pages before commencing or defending an action in this area. The book is divided into three parts . Part One is entitled "The Defamatory Statement" and deals with the substantive law relating to the cause of action for defamation as well as one chapter devoted to "Mali cious Falsehood" and "Slander of Title and of Goods" . There are a few modest changes in the format of this part since the last edition. The Introductory Chapter has been substantially altered. The author has re- tained a brief overview of the substantive features of the tort of defamation and its defences and added one paragraph dealing with defamation in the context of negligence and strict liability and another paragraph dealing with a discussion of the role of the Press . One entirely new section discusses defamation in the overall context of the law of torts . The remaining chapters in Part One are virtually unchanged. The author makes no attempt to redefine a defamatory statement nor does he

(19ag) 4 (5th ed., 1912) 5 (7th ed., 1936) 6 (1877) 7 The text continues to be cited by various courts in the United States but its influence will undoubtedly decline in view ofthe constitutionalization ofthe law of defamation by the Supreme Court in New York Times Co . v. Sullivan (1964), 376 U.S . 254. The effect that the Charter of Rights may have on defamation in Canada is unknown as of this date but it is doubtful if our courts will emulate the American decisions. s (1981), 48 N.S.R . (2d) 221 . 9 (1981), 48 N.S.R . (2d) 181 .

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include the one-suggested by the Faulks Commission'° but instead defers to the numerous definitions provided by judges in a variety of decisions . This is as it should be since the law of defamation cannot easily be fitted into a single definition, and the.Faulks Commisgion's effort is no more likely to be successful than the countless other attempts at shorthand rules. The standard ofopinion by which a,remark'is to bejudged is said to be that of the "right-thinking man" and while the author cites numerous authorities where this proposition has been laid down, it would have been useful if he had provided us with instances where in fact ]English and Canadian cases have been decided by reference to what American authorities have referred to. as a "respectable class" of the community . For example, in the Canadian case ofAxelrod v . Beth Jacob the comment held to be defamatory could have adversely affected the plaintiff only in the Jewish community. The balance of the chapter provides us with numerous examples of statements held to be defamatory in a variety of contexts and involving a broad range of persons . While such examples are of little value as precedent, they are extremely helpful to practitioners who are attempting to fit their client's case within a particular defamatory context. Chapter 3 deals with "The Form of the Defamatory, Statement" . There are no -limits -except the human imagination to the way in which a defamatory comment can be conveyed as section 1 of this chapter illus- . trates . However conveyed, it must be reasonably understood in a defamatory sense. to be actionable. Yet, I would disagree' with the authorities cited by the author who suggest that this is true even in instances where- the . author ineptly but successfully conveys a defamatory meaning to someone who unreasonably understands it in the defamatory sense intended. No valid social purpose is served in exonerating a defendant from liability for achieving what he intentionally set out to do, even though otherwise the intention of the author generally is not relevant to the question of reasonable understanding . In that same chapter12 the author could find no direct authority for the proposition that even-if the only'person to whom the words were spoken did not understand them in a defamatory sense, the words would be held to be defamatory if reasonable men would have understood them, in that sense . In fact, there is authority in Canada for this view in Faryna v. Chorny. t;3 The author uncritically reports the rule relating to imputations of crime" to the effect that areport of a rumour that someone has committed a crime is defamatory but a report that he is suspected of a crime is not. Of

io Report of the Committee on Defamation (1975) : The commission is popularly known by the name of its chairman, the Honourable Mr. Justice Faulks . ii [1943] O.W.N: 708, [1944] 1 D .L.R. 255 (Ont. C.A.). 'z Para. 92, p .. 48, at n. 66 . 13 [1951], 4 W.W.R. 171'(B.C.C.A.) . 14 Para. 100, p. 54. 902 THE CANADIAN BAR REVIEW [vol . 61 course it would make a difference whether the tale bearer is reporting another's suspicion or reporting his own and surely the latter is defamatory. In either case, however, the distinction is a semantical one if the impression left on the hearers is that the plaintiff is guilty of the crime and liability should flow in either case . After embracing the general rule that the form of the defamatory words is immaterial, the author cites, without comment, Lang v. Gilbert1s for the proposition that a charge made in a hypothetical form is not defamatory . 16 There is betterreasoned Canadian authority to the contrary 17 and there is no reason why a court could not conclude that such a hypothetical statement is defamatory if the defendant knows beforehand that the hypothesis is, in fact, true . i s Chapter 4 deals with words which are actionable per se without proof of special damages . This is true of all actions for libel and four categories of actions for slander involving words imputing a crime, contagious disease, unchastity to a woman and words calculated to disparage someone in an office, profession, calling, trade or business . It would have been helpful if the author had given the readers an historical background into this anoma- lous distinction between libel and slander. This and the following chapter on "Slander Actionable Only On Proof of Special Damage" are substantially unchanged from the previous edition . There can be no liability for defamation unless there is a publication to someone other than the person defamed. Chapter 6 deals with this require- ment and has been substantially rearranged while Chapter 7 dealing with "Republication and Repetition" remains unchanged. The words must also be spoken of the plaintiff and the problems associated with what is sometimes referred to as "colloquium" are discussed in Chapter 8, "Identity of Person Defamed" . With the exception of a paragraph devoted to problems ofpersons having "special knowledge" the chapter is the same as before. For Canadian practitioners the recent case of Thomas v. C.B .C .'" is instructive in this area. The defences to an action for defamation are discussed in Part Two. Chapter 11 is devoted to Justification or Truth as a defence and the other absolute privileges are discussed in Chapter 12 including statements made in judicial, quasi-judicial and parliamentary proceedings. The decision of

Is (1$60), 9 N.B .R. (4 Allen) 445. 16 Para. 103 . 17 Stelzer v . Domm, 119321 2 W.W .R . 139 (Sask. C .A.). Is Forexample, ifknowing that A has sworn that B stole $10.00 from C, B were to say, "IfA has sworn that I have stolen $10.00 from C, he is an infamous liar", B has defamed A. See American Life Ins. Co. v. Shell (1956), 265 Ala 306, 90 So . 2d719 and Restatement (Second) of Torts (1977), section 563, comment c. '" (1951), 16 C.C.L .T. 113 (N.W.T. S .C.) .

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the House of Lords in Trapp v . Makie '20 which the authors discuss fully, has greatly enhanced our understanding of when'a tribunal is exercising a "judicial function" .,.The editor continues to insist that Halls v. Mitchell2' was wrongly decided,? à conclusion which is highly debatable. Unques- tionably a recent decision of an Alberta court extending an. absolute privilege to a complaint lodged with a police chief would receive the disapprobation of the authors of the treatise.24 Chapter 13 on qualified privileges has been substantially overhauled and an entirely new format has been adopted in discussing the great variety of cases in which, a qualified privilege has been recognized where a defendant is making a statement in the pursuit of an interest or in the fulfillment of a duty. This has led the author to eliminate a number of Canadian cases used to illustrate privileged occasions. The text .reports, without comment, the prevailing view that for a privilege to attach to àpublication it must in fact be made on a privileged occasion and published to a person who. is entitled to receive it. This is true even if the defendant honestly and reasonably believes both that the occasion is privileged or thatthe person to whom he published the information was entitled-to receive it. This. rule may create serious inequities and, while supported by several" English and Canadian authorities, the prefer- able rule . is the holding of the Nova Scotia Court of Appeal in Kerr v. Davison .25 This chapter and the- following one dealing with qualified . privilege, relating to reports and .broadcasts of various proceedings . are excellent summaries of â complicated area of law.. - . Chapter 15 deals with the defence of fair comment and a respectable portion of it deals with the problems raised in the unfortunate decision of - the Supreme Court of Canada in Cherneskey v. Armadale Publishers. 26 A qualified privilege, and fair comment can be-defeated by evidence of malice and Chapter-16 explores this elusive term . There are no significant changes in either, this or the preceding chapter. Anew .chapter was added -on the "Rehabilitation of Offenders Act 1974'° 27 while Chapter 19 was revised to include the defence of consent. This section was added almost as an afterthought and should have been included in the chapter on absolute defences,2x or left where it is also

20J19791 1 W.L.R.,377, [19791.1 All E.R. 489 (H.L.j. zi [l9291 S .C.R. 125, [192812 D.L.R. 97.(S .C .C.). 22 Para. 408, p. 173,, n. 24. 23 However the text is undoubtedly correct that Nixon v.'O'Ca11aghan, [19271 1 D.L.R. 1152 (Ont. C.A.) is bad law. 24 Boyachyk v . Dukes (1982), 136 D.L.R. (3d) 28 (Alta Q.B .). 2s (1873), 9 N.S.R. 354 (C .A.)-. 26 [19791 1 &C.R. 1067, 90 D .L.R . (3d) 321'.. '7 Chapter 17 . '-$ For a recent application of the doctrine in Canada, see Hanly v . Pisces Productions Inc., [1981] 1 W. W.R. _369 (B .C.).

904 LA REVUE DU BARREAU CANADIEN [Vol. 611

discussed under qualified privileges .29 Part Three deals with "The Action" . A new introductory chapter has been added" to provide an overview of some general considerations in bringing an action for defamation. The balance of this part deals with matters of practice, procedure, evidence, remedies and appeals . The various chapters have minor rearrangements which facilitate the use of the materials. The final chapter reviews the law of criminal libel . The Appendix has an excellent collection of forms and precedents together with some explanatory notes and a compilation of relevant English statutes . This reviewer has some major reservations with respect to this treatise, some of which are carryovers from previous editions . First of all, while several footnotes are devoted to various historical anomalies, there is not a separate chapter or even section dealing with the history of defamation. Libel and slander are not identical twins in the tort of defamation and to understand all the artificial distinctions that have been drawn between the two it is necessary to understand the history of both . Secondly, the authors, presumably in an attempt to maintain an even handed and detached treatment ofthe subject, have neglected to provide the reader with any serious perspective on the law of defamation. In an area of law so dominated with policy implications, we are rarely given an insight into any critical policy analysis by the editors' themselves . We know from the preface that Mr. Lewis is "depressed" by the lack ofimplementation of reform based on the various commission reports but we are seldom sup- plied with reasons in the treatise why such reforms should be implemented, and what other reforms may be needed . Thirdly, the book contains too many paragraphs which are merely the collection of quotes from various leading decisions rather than the refined and elegant language of the author. The presence of so many quotes tended to make the text repetitious and the sentences disjointed. Finally, the book needs a general overhaul at least with respect to Canadian decisions . While a substantial majority of Canadian cases are included, there are too many instances where the cases footnoted do not stand for the proposition for which they are cited. Undoubtedly a number of these errors are purely mechanical ones which will occur when footnotes are renumbered after several editions . On the other hand, the errors are serious and numerous enough to require a careful review on the part of the editors in anticipation of the next edition. RAYMOND E. BROWN

'-y See paras 473 and 479. 30 Chapter 20. 'k Raymond E. Brown, of the Faculty of Law, University of Windsor, Windsor, Ont.

19831 Bibliographie 905

Legislation . By DAVID R. 1IExs and ALAN C. PAGE. London: Sweet & Maxwell. 1982 . Pp:, xiii, 266. (No Price. Given)

As stated in the preface, the authors' purpose is to provide a systematic and comprehensive account of United Kingdom legislation from its inception to its implementation . , The authors embark on their task by an examination of two preliminary questions. First, what is legislation? This question is discussed by contrasting legislative lawmaking with judicial lawmaking. Second, who legislates? To answer this question, the authors guide us through the history of the evolution ofparliamentary sovereignty in the seventeenth century to the present day practice by Parliament of extensive delegation of its lawmaking functions. The authors acknowledge that although, in theory, the Queen in,Parliamentlegislates, in reality legislation is the product ofthe government and notthe Parliament. A majority in the.House of Commons, initiative in financial measures and the control of the parliamentary timet- able ensure this reality. Because legislation is a function of government rather than parliament it follows that Parliament's role is As legitimator rather than as legislator. The analysis of these questions provides the book's conceptual framework. While these issues are examined with reference to the mother -of Parliaments, the discussion is pertinent also to federal and provincial legislatures in Canada. The authors then examine British institutional arrangements for the legislative process . Canadian readers will find information both relevant through similarity and informative through contrast . The authors acknow ledge that although the formal: elements of legislation .have remained the same for three centuries there has, in the last century, been an expansion in the number of bodies (all created by. government) which have some role in the process . They attribute this to the government's assumption of respon- sibility for initiating legislation . The authors provide a good discussion of the role and emergence of the Office of Parliamentary Counsel, law commissions, revision and consolidation . bodies. The next topic discussed is the pre-parliamentary phases of legislation. Here the authors examine the role,of departments and outside groups in identifying issues, investigating, the need for action and evaluating the legislative options. The authors analyze and comment on the continuous interplay between the government, departments, groups and individuals. While this chapter is descriptive of the system in the United Kingdom, it provides material to enable. the reader to compare and contrast the stages of the legislative process in Britain with that in Canada. The next chapter examines the preparation of bills. An interesting contrast is drawn between - the English and the North Ameriçan,practices where- ','the draftsman is frequently consulted at the policymaking stage as

906 THE CANADIAN BAR REVIEW [Vol . 61

to what is legally necessary and possible ."' The English authors are surprised by the North American practice, which permits a limited role to parliamentary counsel in policy making . The chapter on subordinate legislation is one ofthe most informative . The authors stress the importance and legitimacy of delegated legislation and trace its belated recognition as a legitimate form of lawmaking. They note that the more delegated legislation produced, the more significant is the derogation from Parliament's own lawmaking powers . Thus the more delegated legislation, the lesser Parliament's role in the legislative process . The chapter on judicial interpretation is innovative and thought pro- voking. The authors suggest that the significance ofjudicial interpretation far outweighs its quantity. Judicial interpretation has a qualitative rather than quantitative impact on both the drafting and the use of legislation . As the authors state, judicial interpretation "casts a long shadow over the interpretation of statutes generally" . 2 The authors outline opportunities for reform in interpretation of legislation . They also suggest that the detailed drafting of some modern legislation is a direct consequence ofjudicial adherence to pedantic canons and presumptions of interpretation . The final chapter addresses the impact of legislation . In a broad sociological context, the authors examine the ways in which the impact and efficacy of legislation can be evaluated. They suggest that impact requires analysis of the consequences of legislation whether anticipated or not, whereas efficacy is judged by whether or not the intended results are achieved . Perhaps an analysis of the impact of legislation deserves more in depth treatment than one chapter in a small volume can achieve . Any reader will find this an interesting book and will not regret the time required for thoughtful reading. Although the subject matter deals with the English legislative process, and although some reference is made to the impact of the European Economic Community on English legislation and interpretation, the Canadian reader will learn much which is relevant to Canada's legislative process. Our legislative system is modelled on the English system and our processes share common features with those in the United Kingdom . The dearth of Canadian literature in this field and the gradual recognition of the growing importance of this subject are sufficient reason to commend the book to Canadian readers . The authors have written for law students but inasmuch as we all remain students of the law, its audience should not be restricted to those in law schools . In their preface the authors lament the fact that available literature generally presents a fragmentary and in some instances mislead-

' P. 86. 2 P. 1 80.

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ing treatrrient oflegislation. The authors are to be congratulatedthat for the first time the legislative process is dealt with as.a whole, systematically and comprehensively . SANDRA K. MCCALLUM*

Organized Advocacy. By RONALD D. MANES. Toronto: .The Carswell Company Ltd . 1983 . Pp . 137, 2,39 forms. ($72.00) Continuing education for lawyers has become an essential feature of the practice of law. Recently there has been increasing emphasis on "how to do it" . It was the logical, next step that books would be written containing nothing'else but advice, on "how to do it" . OrganizedAdvocacy is one of the first of such books . Ronald Manes is a busy and able Toronto lawyer who was called to the bar in 1974. He has confined his practice to civil and criminal litigation. At a relatively early stage of his career he recognized that efficiency in operation improves the profitability even of "the learned profession" (the quotation marks are mine). He personally found efficiency could best be achieved, by systematic use of forms, each designed to fill a specific function, and he put the theory into practice..Nowhe has written 4 book in which he tells other lawyers how to achieve efficiency through organization, and how the intelligent use of forms can ensure that the process is successful. Besides 137 pages of lucidly written text,. some 239 forms have been devised by the author; the most commonly used ones have been set up by the technical staff ofthe publisher in legal size' intended to be photo-copied in bulk by the purchaser of the book, which has -a loose-'leaf format. This book will be valuable to at least two kinds of lawyers . The new graduate, practising alone or with two or three associates, and anxious to develop a career in the courts, will find a ready-made systemthat is bound to make his work easier and more productive. While no one has proved there is any better method than Ontario's present Par Admission Course as . a means of imparting skills to 1,000 -LL,,B. graduates, each entitled on call to the bar to practise any type o£ law he or.she chooses, not even those who run the course would suggest it can teach the whole class all they need to know about how to -practise law. The novice practitioner in litigation, with no one' to ask .for practical advice, will be immeasurably better off by reading and constantly resorting to this book and using many of the forms , suggested.

* Sandra K. McCallum, of'the Faculty of Law University of Victoria; Victoria, B .C .

908 LA REVUE DU BARREAU CANADIEN [Vol . 61

The established practitioner, who is often so busy that he neglects a step in the court process or a necessary link with the administrative side of his office, will find this book provides its own brand of continuing educa tion. He may well find it simpler to buy and use one of Manes' forms than to make up one ofhis own (usually in longhand) as he goes along. He is quite likely to find ideas that will lead to improvements in forms he is already using . It would be a mistake to buy or borrow this book and simply riffle it . Such a cursory reading might well give the impression: "This man is hipped on forms!" A lot of litigation lawyers dislike filling out forms or making check lists . They neglect even such fundamentals as writing out a summary of what they have to prove, and sidenotes of how they expect to prove it. Above all, they are careless about the methodical making of docket entries . There is nothing new about this. There have been many superb advocates who simply would not keep dockets. It is just possible- but barely-that the use of Manes' forms could have at least lessened the frustrations of the "systems side" . The organization of the book is itself systematic . The headings of the parts and chapters tell the story: Structuring a Litigation Practice; Estab- lishing the Solicitor-Client Relationship; The Proceedings; The Super structure . The most extensive is "The Proceedings", subdivided into eleven chapters, covering every step from the preliminary investigations and searches to the conduct of the trial, and the taxation of costs . The index is excellent, and there is a separate index of forms, which happily are placed immediately after the text that introduces them. Some warnings are necessary. The first is that the Manes system will not work unless you have a top notch secretary . Some of the glue that holds the case together she has to provide, and she needs a high degree of intelligence and initiative to do what the system expects of her. The second is that this or any other system is like the latest fashionable diet; the ultimate test is not how many copies of the book were sold, but how many people are still on the diet. I suspect that a lot of lawyers will start off enthusiastically, checking off boxes on forms when they are supposed to, and making the pre-discovery or pre-trial review and memor- andum earlier than midnight the night before-until they come back from a vacation, and decide that using forms is a species of drudgery they have been trying to forget . The third warning is that an inexperienced practitioner may think that faithful use ofthe right form at the right time, and the doing ofthe tasks they and the book describe, are a sure road to success . The author makes no such claim. Innovation, creativeness, and the ability to adjust rapidly to fluid situations are still hallmarks of the successful advocate. The book leaves a few lingering misgivings in my mind . While I always stressed to my colleagues the importance of keeping the client

19831 Bibliographie 909

informed .of what was happening, the kinds of things that the author recommends be communicated to the client,,the frequency with which he suggests this should occur, and the subtle flavour I thought I detected in.the language ofthe recommendation, all combinedto convey to me: "If you do this, the client can't complain--and you won't over be .sued .." Perhaps in today's climate, when professionals are -fair game for malpractice suits, there is nothing suspect about this ancillary motive . I also found a degree of over-emphasis on the importance of doing certain things with the object, in part at least, ,of improving your position if you later have a dispute with your client over fees, or (heaven forbid!) are forced to tax your account. Perhaps this is only a revelation of how long I have been away from the bar. Undoubtedly too many lawyers are reluctant to talk about fees at the outset of a case. The author gives some excellent advice on how to cope with a client's questions about how much this case is going to cost, and how to. explain why .it is not possible to be more precise at that time. Used the right way, this is a fine book. JOHN D.. ARNUP*

Historical Introduction to Legal Studies . By AH. OGILVIE ., Toronto: The Carswell. Co : Ltd. 1982. Pp . xi, 399 .', ($38.00 bound, $18 .75 paper- - back)

Amid much hand-wringing. . over curriculum, including the current "Arthurs Report", legal history continues to expand, produce, and pros- per.. Job-conscious undergraduates, like heat-seeking missiles, increasing- ly target it as a core for an otherwise tepid, at best, set of pre-law offerings . Once safely inside a law school, students find it both practical, especially when primary research and writing are required, and essential, adding substantive understanding to mere knowledge of rules and arguments . It naturally bridges- the law-as-object, for arts and humanities, to the.law-as- subject, for academic lawyers and practitioners. Legal historians thus offer the best of both worlds, a balancing synthesis, to law students whose knowledge can otherwise fragment and narrow with each second and third year option. Such legal history is not the more narrow "history of law" (à la I=loldsworth, Fifoot, Potter), a search for correct roots that is "tyrannized by doctrine, " to use Professor Graham Parker's phrase.' Legal- history * John D.'Arnup, ajudge of the Courtof Appeal ofOntario since 1970, and formerly a. counsel in Toronto . (1974), 24U . of T. L.J . 279, at p. 296 . 910 THE CANADIAN BAR REVIEW [Vol. 61 presumes broader bases in evidence and deeper contextual explanations beyond statutes, reported cases, and courtrooms . It has also virtually replaced constitutional history, which enshrined later Victorian assump- tions about the organic, the heroic, centralist, abstract, and essentially unchanging character of the English legal system and its common law clones around the world. It is strange, then, to meet Professor Margaret H. Ogilvie's attempt to revive such constitutional history, almost at the expense of so much legal history produced in recent decades . Significant work from the journals, even occasional law review articles, makes virtually no impact on the book's highly conventional narrative . The result is a curiously dated synthetic survey, based both on other synthetic surveys and some noticeably non-legal, general monographs. It also means that there is a ton of history presented for every pound of law. This is not a work of original research but it honestly never pretends to be. Dr. Ogilvie leaves no doubt that this book deliberately services her own pedagogy: it "is essentially an old-fashioned institutional history of the evolution of our constitutional and legal structure [which] must seem like madness in the late twentieth century" . 2 The book's proving grounds are in Carleton University's unique undergraduate Department of Law . By all reports that programme is substantive, sane, and uniquely serving the broadest, best interests of Carleton students and the Canadian Bar. The lawyer looking for an Historical Inti-oduction to Legal Studies may not find it here . What he will get is clear chronological evolution from Anglo-Saxon "Foundations" and Norman "Continuity and Innovation" through "Canada and the British Inheritance" . That final chapter is a most original and useful summary, an all-too-brief synopsis (thirty-two pages) for Canada's constitution, judicial institutions, and legal profession . The preceding nine chapters cover the full, familiar range of "great" English events . personalities, themes, statutes, and crises. Dr. Ogilvie scorns history written as "one damned fact after another",3 then proceeds to cram in one encyclopedic, explanatory detail after another. Her book's greatest utility probably will be its orderly weaving of legal topics into standard historical narrative, from folkland to universal freehold, from trespass to Donoghue v . Stevenson.' In accomplishing all this, Margaret Ogilvie still manages to re-tell the good and bad tales well: William conquered, John chartered, Henry re- formed. Elizabeth "awed her adoring peoples", Charles "would yield to no man" (until the axe-man?), and Victoria mothered an empire . Some character sketches go wider of the mark, noticeably on the Tudors : " . . . the very name Tudor conjures up arrogance, autocracy and unres-

- P . V . z Ibid . 4 1. 19321 A . C . 562 .

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trained bestiality: Henry.. VIII's undisciplined, lusts . . . "; contrast with Elizabeth as "cool, calculating and-self-controlled . . . despite her deceits and whims" .5 Dr . Ogilvie's description of Edward 11's savage murder extends a metaphor that ought to be elided. 6 And to keep track of all this anecdotal data, she should. give genealogical lists, procedural and institutional flow-charts, a,map or two,. even a few illustrations: the author's prose has vitality but she might have had help from her publisher. Each chapter is neatly structured to build the same topics, into the various chronological stages: first, in each chapter, we get a narrative of events and personalities, second comes one or more sections on royal institutions, and finally the focus shifts to the common law courts;.the legal profession, local jurisdictions, and the substantive law . Dr. Ogilvie admir- ably tries to balance attention for all topics but we mainly get the lively narrative and centralist viewpoint. In particular she devotes much space to the arcana of royal Chancery, Chamber, and Exchequer processes at every stage, butit is never clear how such administrative minutiae help.introduce readers to _ "legal studies" . These are bureaucratic territories that have been carefully charted by three generations of medieval and early-modern legal historians, so it is annoying to find Dr . Ogilvie repeatedly,misinforined on technical matters. Chancery's Fine Rolls record a vast variety of actual oblata, not mere. "promises of payments to the King" .- The Liberate (not Libertate)' Rolls record only expenditures under the Great Seal, not all financial matters. Both letters close and letters patent are addressed to individuals, notjust the former, and they are letters, not writs . Dr . Ogilvie's description of common law plea rolls also sows confusion . x She assumes that Exchequer litigation is found only on what are actually called the Exchequer of Pleas rolls (PRO, E%13), ignoring the more significant KR (E/159) and LTR (E/368) Memoranda Rolls . She correctly says that Common Pleas and King's Bench plea rolls are distinct after 1234 but should add that their combined root in the curia regis rolls survives from Trinity 1194 (and that vital extracts from 1217 to 1239 make up Bracton's Note Book!) . Further, the old segregation between civil pleadings in the Court ofCommon Pleas and the King's Bench for criminal pleas surfaces again,' despite what dozens of plea roll readers have said for decades . Any book of this-breadth is bound to contain oversights of fact but this one has more than its share. Henry Bolingbroke was banished.in 1398 and before John of Gaunt's death, which changes the thrust of Dr . Ogilvie's

5 P. 169. 6 P. 117 . 7 P. 63 . 8 P . 104. . Pp. 104-105.

912 LA REVUE DU BARREAU CANADIEN [Vol. 61

narrative."' The Princes in the Tower? "Mysteriously, they were found murdered . . . . " 11 Had they been found, five centuries would have missed the blame-game played by supporters of Richard III and Henry VII . Henry did not land "in England" but near his Welsh birthplace, near Milford Haven, Pembrokeshire. George III was the grandson, not the son ofGeorge 11. 12 Cambridge's Regius Professor, Dr. G.R . Elton, has not (yet) been knighted or ennobled, and Dr. Ogilvie should not make a historian" out of the present Lord Elton (who is Mrs . Thatcher's Under Secretary of State, Home Office). Repeated carelessness gets reinforced by often imprecise, even erroneous, use of terminology . Dr. Ogilvie consistently refers to Anglo- Saxon "law codes" without even a pause to reflect on what constitutes a code. Similarly that slippery word "crime" never gets defined or examined, nor do we get a clear sense of felony's flexibility. If we consult Littleton's Tenures (1431?), petit seJeanty required small objects of war but no personal service (contra Ogilvie) and its certainty set it apart from the non-specific services owed the King in grand seijeantv; socage origin- ated as service by sake = plough, owed to the lord's agricultural needs, not "the lowliest tenure" akin to rents ; and frank-ahnoign could not be a "lesser feudal tenure" because it did not involve an oath of fealty. All this gets muddled ." Similarly, citations to crucial statutes on real property are misleadingly incomplete ; IS the assertion that Anglo-Saxons had an "absence of a concept of property -16 is untrue and disproved in Fr. M.M . 17 Sheehan's work on The Will; and the basic background for England's uniqueness is missing: that is, why do rules, not wills, govern real succes- sion and inheritance, at least until 1540? And so it goes, with mistakes about Chancery's business," as well as about an Exchequer and King's Bench "attack" on Common Pleas, ending with an account of how the Bill of Middlesex operated that is simply wrong. Despite all that has been exemplified here, the book retains a boldness of scale and style that many may find stimulating. It is a hefty reference work that can be profitably used, with care and double-checking ; but teachers may not want to assign it for student purchase unless it absolutely fits their own syllabus . As for courses specifically in legal history, as

'° P. 120. P. 126. 1-' P. 273. I l P . iv . ' 4 P. 31 . Is P. 109. 16 P. 20. " (1963) s 1 P. 149.

19831 Bibliographie ' 913

distinct from 'llegal studies", perhaps it is best for teachers to compile their own surveys and. to rely more on primary evidence . DELLOYD J . GuTH*

John Austin. By W.L. MoxrsON. Stanford University Press: Stanford, . California. 1982 . Pp . 239. ($20.00)

Poor John Austin! His military career was undistinguished; at a time when England was engaged upon tremendous military activity and great reputa- tions were being made . He could not make a living as an equity draftsman once he was called to the Bar. His marriage could hardly be described as happy, or satisfactory . His term of office as a Professor of Jurisprudence was cut short by his resignation after three or four years . His lectures were not well attended once the initial bloom had faded ., His major work was never properly completed (and its publication in any, form owed much to the drive, initiative, and fixity of purpose of his wife once Austin himself had died) . His various forms of employment following upon the resignation from the Chair of Jurisprudence in London all came to naught, and were prematurely terminated. His work has been misunderstood. And now ; to crown everything, there appears this study, which, while purport- ing to reinterpret, revive and support Austin (whom the learned author describes as a "naive empiricist"), may not be sufficiently stimulating or clearly written to encourage its readers to go back to one . of the most strikingly originaljurisprudential works ever to emanate from England, or to find in the thinking of John Austin a source of inspiration, insight, guidance or understanding . Not that the book is without interest or utility . One learns much about the life of Austin: about the influential, intellectual company he kept, the Mills (father and son) ; Bentham, and other earlier or contemporary utilita rian thinkers: about the effects of Austin's sojourn in Germany.where he went to prepare himself for the awesome task of teaching jurisprudence in the newly- born University of London., A long .chapter is devoted to the exposition and analysis of Austin's most famous work. The Province of Jurisprudence Determined, which was in fact the course of lectures he began to give in London (in the first instance to a very distinguished and intellectually high-powered audience). Another chapter looks at his shorter works, which were more concerned with politics than with the analysis of law. There is a further chapter which deals with the subsequent intellectual history of Austin's work, its interpretation by such later writers as Maine, olland, Salmond, John Chipman Gray, and its effect upon Hohfeld and * DeLloyd J . Guth, ofthe Faculty of Law, University of British Columbia, Vancouv- er, B.C. 914 THE CANADIAN BAR REVIEW Vol . 61

Kocourek. Last of all, comes a chapter in which Professor Morison develops his own empirical theory of law, which owes much to the writings and teachings of Lasswell and McDougal at Yale, and contrasts his form of empiricism, which he states is culled from Austin, with the very different empiricism of the new linguistic philosophers, notably Hart. While recog- nizing the latter's debt to the pioneer writing of Austin, Professor Morison is at pains to point out where Hart went wrong, and why Hart's version of the Austinian approach, as it were, has strayed far away from the true path, to which, seemingly, Lasswell and McDougal have adhered . All of which, as I have said, has its value. However, certain passages are more successful than others, for example, the discussion ofthe scholar- ly reception of Austin . Other parts, such as the consideration ofthe work of Lasswell and McDougal and the relationship between their writings and those of Austin and Hart, are less clear, more confusing, not as informative or convincing. These matters, however, whatever Professor Morison may think, do not appear to this reviewer to be the important aspects ofthe book. The true core of this work consists of the chapters which deal with the intellectual and literary sources of, and influences upon, Austin's thought and writing, and the critical analysis of The Province . Almost half the book is devoted to these topics, and rightly so . It is crucial for the reader to appreciate not only what Austin actually said or wrote about law, but how it came about that he formulated the views that he ultimately expressed . In this regard, it is most enlightening to discover the nature of the background to Austin's writings . We live at a time when, more and more, it is argued that law cannot be understood, described, analysed, taught, even practised, without placing it within the appropriate framework of economics, logic, philosophy, sociology, political theory, ethics, even science . "Legal positivism", with which the name of Austin is so often linked (although it derives from the later theorising of Auguste Comte), is de- rided, despised, criticised, discarded, anathemised, because it purports to divorce law from these extraneous matters. Austin and the "English" school of jurists, together with Kelsen and his disciples, acolytes, or devotees, attract antipathy for this very reason. Yet, as Professor Morison shows, in his discussion of Summers' discussion of "legal positivism", that expression has been used in many ways, and not all of them relate to the thought or writing of Austin. As he says: "In sum, of the views taken to be distinctive of the school of which Austin is perhaps the most famous representative, perhaps one in ten is applicable to Austin himself without reservations ."' In truth, as Professor Morison reveals, Austin was heavily affected by ideas on economics and economic theory, logic, political science, morality, which he derived from his study of, and acquaintance with Bentham, James Mill and John Stuart Mill. Perhaps, as Professor Morison argues, Austin diverged from some the ideas ofBentham, and had

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a different purpose in mind when he wrote The Province from that which drove the older man on to write (but never complete) his own thinking about censorial, as contrasted with expository, jurisprudence. Both of them, however, were influenced by the same ethical, if not political theory-that of utilitarianism, which, while having suffered many viscissi- tudes in the ensuing almost two centuries, has survived, in new avatars, to provide the underlying basis for much of modern Anglo-American (and Canadian?) writing on the philosophy of law. Thus Austin, so far from being the exponent, perhaps one, might say the, progenitor, of Reinerechtslehr, is really an early expositor of philosophies of law which owe much to ethics, political theory, sociological thinking, and economics . In the world ofjurisprudence, this might be considered the supreme irony! Professor Morison's detailed analysis of the contents of The Province (in Chapter 3) brings out not only the content of Austin's thought and reasoning, but its flavour . While obviously a devotee of Austin, Professor Morison is not -uncritical. He points to inconsistencies, and incomplete- ness, in Austin's arguments and exposition. He adverts to the divergencies between Austin and his mentor Bentham . But he also reveals the clarity of Austin's approach, . and the importance of Austin's work in the general development of legal.ideas . .Whatever one might say about.the failure of Austin to perform his allotted, task fully and satisfactorily, it must at the very least be said of him that he made a start in the work.of explaining not merelythe contents of any given legal system but the very nature or essence of the idea of law .. Austin was perhaps, the .first English-writer- on law to appreciate the importance and value of what he called "general jurisprudence". in .Professor, Morison's paraphrase: "A student of English law, by studying general jurisprudence, might perceive the various relations of its various parts, the dependence of its minuter rules on its. general principles, and the subordination of such of these principles as are less general and extensive to such of them as are more general and run through the whole of. its structure. This study would in no waydisqualify the student for practice, it would qualify for practice by enabling the student to see the rationale of Practice,,"' The same could be said today. Alas the lesson which Austin attempted to inculcate has not been absorbed in Canada. There is still much reluctance on the part of students (and maybe on the part of their teachers) to accept that without some. study of jurisprudence, that is, in Austinian terms, general jurisprudence, knowledge of the law is incomplete. It may be valid, even fashionable, to criticize Austin for being too simplistic; too narrow, perhaps even. misguided in his endeavours to prepare a map- of a legal system, and in his -definitions of law and the relationship between law and society. Of course, we can look back on Austin's work so critically, after more than a century and a half of

916 LA REVUE DU BARREAU CANADIEN [Vol. 61

subsequent development, greater sophistication, deeper analysis, more significant treatment of the problems . If one looks at Austin's work in the light of the intellectual situation in England, namely in the common law world, in the first quarter of the nineteenth century, one should be more appreciative of the efforts Austin made, and the pathways which he illuminated by his pioneering study . Crude, unsophisticated and sometimes inept he may have been: but John Austin at least merits our praise and appreciation for the fact that he did make a start. G.H .L . FRIDMAN *

41, Life and 6Vot*: A Happy Partnership . By J .A. CORRY . Kingston, Ont . : Queen's University . 1981 . Pp. xvi, 238 . ($18 .50)

The life of J . Alex Corry, former Principal of Queen's University, law professor and public servant (in the best sense of that phrase) can be described as a "happy medium" . He is a temperate and reasonable person who has achieved much in his long life because those qualities of modera- tion have given a tempo and a meaning to his life . He describes his childhood in rural Ontario when the practical application of community and co-operation was still an everyday occurrence, when taxes and Ottawa did not intrude on his family and their neighbours and "Jeffersonian democrats were everywhere in the North American rural countryside in the nineteenth century" .' He described his township of Millbank as "almost a tiny independent republic'2 whose inhabitants "were free of the present day corroding resentment about decisions that affect us intimately and deeply being made by distant authorities whom we do not know, have no direct effective control over, and no power to warn off,, . 3 Corry has interesting things to say about the early days of Saskatch- ewan's law schoo' which was a full-time institution when Upper Canadian legal education was still floundering with a glorified apprentice system. He also worked for the Rowell-Sirois Commission and shows the great contribution made to that report by prairie scholars. For ten years he was a member ofthe Board of Governors of the Canadian Broadcasting Corpora- tion and it is refreshing to hear him describe a broadcasting licence as "not

* G.H.L. Fridman, of the Faculty of Law, The University of Western Ontario, London, Ont. ' P. 25. 2 P. 23. Ibid.

1983] Bibliographie . 917

but a property a privilege'.' .4 He spent many years working on behalf ofthe Canada Council and his comments on some research applications show a healthy intolerance of academic humbug: "Some I thought worthless, because'they were on trivial topics and whatever the findings, would merely enlarge the stock of useless knowledge : Others proposed to use highly sophisticated techniques - to' provide pompous elaboration of the obvious ; there was no need to, go through the exercise . "5 In describing the establishment ofQueen's Law School, he provides some revisionisthistory of the Law Society of Upper Canada's attitudes toward reform of legal education which shows that the Benchers were not quite so intransigent as we had previously supposed..For instance, Corry describes "Caesar" Wright as "a blunt, somewhat angular, person who was never_inhibited in speaking his mind by considerations, of diplomacy" .7 Much of the latter half of the book is taken up with the history of Queen's University in the last two decades . This is perfectly understand- able because Corry played a very important role in expanding that institu tion and in fostering the distinct co-operative and happy spirit which-seems to ,pervade- the place . Nevertheless, I found the description* of university administration as unexciting as it is to endure on an everyday basis . I would like to conclude this review by quoting some ofthe sayings of Principal,Corry because I think they are profound and deserve wide circulation: .. I have always thought Narcissus : : . was underemployed.$ In describing his maternal grandfather and perhaps prefiguring Alex Cor- ry's own career: Grandfather Neilson was for many years thè official fence-viewer for the area, a conciliator called in on line-fence disputes which were common and often bitter. Often it was easy enough to determine where the boundary lines lay, but sometimes- the conflict arose out of other, more rancorous ; matters. So, much depended on his reputation for fair-mindedness and on his diplomacy. He was known in the district as "-the peace-maker. "9. Corry gives us some of his own philosophy : t° In isolation, man cannotraise himself up to the level of the animals . There is a unique potential in everyindividual, butmany ofhis constituent qualities bearthe impress of the community which shaped him.

4 P. 113 . 5 P. 123 . 6 See., for corroboration, Arnup, The 1957 Breakthrough (1982),. 16 L. Soc. ilpp . Can. Gaz. 180. 7 P. 153. 8 P. 2. 9 'P. 15. 10 P. 131 .

918 THE CANADIAN BAR REVIEW [Vol . 61

And: The only certain cure is for us all to become more civilised. And who will venture to deny that civilisation has been nurtured within the letter of the laws?' 1 . . . the larger the clusters of power, the more the power-hungry are attracted there to feed on it . So at some point the shift of power to the centre is carried still further-in part by its own momentum . Continuing heavy centralisation . . . leads to apoplexy at the centre and anaemia at the extremities .' And in echoing Reinhold Neibuhr (whom he obviously admires), Corry says: 13 . . . this excessively self-righteous self-centredness is the corroding canker or virus which threatens to corrupt all human enterprises, because the demand for stability, permanence and meaning wells up from the deep recesses of human nature and seeks inordinate expression . And finally, The perfect is forever the enemy of the good . 14

GRAHAM PARKER

11 P. 137. 12 P . 158. 13 P. 161 . 14 P. 163 . '` Graham Parker, of Osgoode Hall Law School, York University, Toronto.