2014 Volume 37, Special Issue A Judge of Valour: Chief Justice Samuel Freedman – In His Own Words Edited and with notations by Robert G. Clarke Editors-in-Chief DARCY L. MACPHERSON, LL.B., LL.M. ASSOCIATE PROFESSOR, FACULTY OF LAW, UNIVERSITY OF MANITOBA BRYAN P. SCHWARTZ, LL.B., LL.M., J.S.D. ASPER PROFESSOR OF INTERNATIONAL BUSINESS AND TRADE LAW, FACULTY OF LAW, UNIVERSITY OF MANITOBA Editorial Consultant on this Special Issue DELLOYD J. GUTH, PH.D. PROFESSOR OF LAW AND LEGAL HISTORY, FACULTY OF LAW, UNIVERSITY OF MANITOBA Senior Student Editor ERICA GRANT, B.A., J.D. (2014) Editorial Assistant JESSICA DAVENPORT, B.A. (HONS), J.D. (2015) Cover Image BRIAN SEED Cover Layout JENNIFER CHLOPECKI PUBLICATION INFORMATION Copyright © 2014 Manitoba Law Journal ISSN 0076-3861 Cite as (2014) 37:SI Man LJ Printed in Canada on recycled and acid-free paper. Published annually on behalf of the Faculty of Law, University of Manitoba. Annual Subscription Rate: Canada: $35.00 CDN; Foreign: $35.00 U.S. Back issues available from: Manitoba Law Journal 4th Floor Robson Hall, Faculty of Law University of Manitoba Winnipeg, Manitoba R3T 2N2 E-mail: [email protected] ACKNOWLEDGEMENTS The Manitoba Law Journal gratefully acknowledges the support (financial and otherwise) of the Faculty of Law and the Legal Research Institute of the University of Manitoba, and the Manitoba Law Foundation. The Manitoba Law Journal is equally grateful to its patrons in the legal community. Administratively, there are many people to thank, including our student editors, Erica Grant and Jessica Davenport. The MLJ would like to thank Maria Tepper and Monica Fedorchuk for their administrative assistance and the library support provided by head librarian John Eaton and reference librarian Donna Sikorsky. The Manitoba Law Journal is produced under the direction of the Law Faculty Council of the University of Manitoba and Dean Lorna Turnbull. THE LEGAL RESEARCH INSTITUTE OF THE UNIVERSITY OF MANITOBA promotes research and scholarship in diverse areas. INFORMATION FOR CONTRIBUTORS The editors invite submission of unsolicited articles, comments, and reviews. The submission cannot have been previously published. All multiple submissions should be clearly marked as such and an electronic copy in Microsoft Word should accompany the submission. All citations must conform to the Canadian Guide to Uniform Legal Citation, 7th Edition. Contributors should, prior to submission, ensure the correctness of all citations and quotations. Authors warrant that their submissions contain no material that is false, defamatory, or otherwise unlawful, or that is inconsistent with scholarly ethics. Initial acceptance of articles by the Editorial Board is always subject to advice from one or more external reviewers. The Editorial Board reserves the right to make such changes in manuscripts as are necessary to ensure correctness of grammar, spelling, punctuation, clarification of ambiguities, and conformity to the Manitoba Law Journal style guide. Authors whose articles are accepted agree that, at the discretion of the editor, they may be published not only in print form but posted on a website maintained by the journal or published in electronic versions maintained by services such as Quicklaw, Westlaw, LexisNexis, and HeinOnline. Authors will receive a complimentary copy of the Manitoba Law Journal in which their work appears. Manuscripts and communications should be directed to: Editors-in-Chief Manitoba Law Journal Phone: 204.474.6136 466 Robson Hall, Faculty of Law Fax: 204.480.1084 University of Manitoba E-mail: [email protected] Winnipeg, Manitoba R3T 2N2 SAMUEL FREEDMAN 1908-1993 2014 Volume 37 Special Issue Number 1 A Judge of Valour: Chief Justice Samuel Freedman – In His Own Words Edited and with notations by Robert G. Clarke CONTENTS i Issue Overview i DARCY L. MACPHERSON ii Justice Freedman’s Literary Style iii BRYAN P. SCHWARTZ iii Acknowledgements xiii ROBERT G. CLARKE iv Introduction to A Judge of Valour xv ROBERT G. CLARKE 1 The Early Years 1 2 Student Days at the University of Manitoba 19 3 The 1930s and 1940s: Law and Marriage 49 4 A Judge on the Court of Queen’s Bench (1952-60) 69 5 To the Court of Appeal: Judges and the Law (1960-62) 101 6 On Law and Lawyers: A Creed (1963-68) 115 7 Freedom of Expression and the Obscenity Cases (1963-74) 127 8 The ‘Book of Samuel’: The Railway Run-Through 143 Commission (1964-66) 9 The Politics of the 1960s: South Africa, Civil Rights, and 171 the Rule of Law 10 The 1970s: War Measures and the Chief Justice 201 11 On Law and Society in a Time of Change: Three Speeches 221 12 From the Balancing of Rights to an Illusory Retirement 251 Appendix I – Letter of Clemency written by Samuel Freedman 263 Appendix II – Reference re: Amendment of Constitution of Canada 277 Sources 303 List of Illustrations 305 Issue Overview DARCY L. MACPHERSON hen the current Editors-in-Chief of the Manitoba Law Journal took over stewardship of the publication in 2010, we decided to W profile legal luminaries of the past and the present from Manitoba. When we chose The Honourable Chief Justice Richard J. Scott as an early interviewee, this led us to consider whether there were other former Chief Justices of the province whose recollections should be committed to paper for both present and future generations. That simple question led us to make an entire special issue of the MLJ entitled “Five Decades of Chief Justices of Manitoba”.1 The volume focused on the last three individuals to occupy the highest judicial office in the province at the time – The Honourable Chief Justice Richard J. Scott (Chief Justice of Manitoba from 1990-2012), The Honourable Chief Justice Alfred M. Monnin (Chief Justice of Manitoba from 1983-1990), and The Honourable Chief Justice Samuel Freedman (Chief Justice of Manitoba from 1971-1983). As we examined the Manitoba Archives of Legal History as part of our preparation of the Five Decades volume, Dr. Bryan Schwartz recalled that there was a series of speeches, including some by the man himself, given about Chief Justice Freedman several years ago, at an exhibit hosted by the Jewish Heritage Centre in Winnipeg, Manitoba. The speakers agreed to allow us to publish their words, which had not previously been done.2 As noted in Dr. Schwartz’s introductory comments in the current volume, his remarks included a reflection that Sam Freedman’s life and story merited being told in full, in the form of a full-length biography. He was unaware that such an effort was already underway. Several years later Dr. Schwartz told our colleague, Dr. DeLloyd J. Guth, of our plans with respect to profiling Chief Justice Freedman as part of the Five Decades volume. Dr. Associate Professor, Faculty of Law, University of Manitoba; Co-Editor-in-Chief, Manitoba Law Journal. 1 (2012) 36:SI Man LJ. 2 Jack London, Bryan Schwartz, Arnold Naimark & The Honourable Martin Freedman, “Stories of Samuel Freedman: Speeches from the Exhibition” (2012) 36:SI Man LJ 141. ii MANITOBA LAW JOURNAL|VOLUME 37 SPECIAL ISSUE Guth indicated that there was in fact a full-length autobiographical manuscript about Chief Justice Freedman (weaving together various interviews and speeches) that had been worked on years earlier by another historian, Robert Clarke. Without this casual conversation, the manuscript might never have seen the light of day. We are grateful to Dr. Guth for his advice and assistance in ensuring that the manuscript has not only been rescued, but is now finalized and made widely available. When the Editors-in-Chief saw the manuscript, we made the decision that this deserved to be published under the umbrella of the MLJ, as a Special Issue. Dr. Schwartz begins with a comment on Chief Justice Freedman’s extraordinary literary style. Following this, Mr. Clarke introduces the content of the volume. Mr. Clarke was the original compiler of the manuscript, and through his commentary, gives context to explain that content. While we at the MLJ are proud to have played a role in the publication that follows, the reality is that Mr. Clarke was the driving force behind the volume, along with those whom he credits, including members of the Freedman family. One small word is offered here about the content. There is some degree of overlap between some the speeches reproduced in the Five Decades volume with respect to Chief Justice Freedman, and the speeches selected for reproduction in this volume. We decided to leave the original intention of Mr. Clarke and Chief Justice Freedman intact, even if the same words or thoughts may find expression in the two different volumes. Chief Justice Freedman was deeply connected to Manitoba’s legal community. He wrote some of the most important and original judgments of the Manitoba Court of Appeal. He was a leader in philanthropy in Winnipeg. He was the Chancellor of the University of Manitoba. He was a sought-after speaker on a variety of topics, with a unique perspective to be shared. Through this publication, the Editors-in-Chief sincerely hope that the next generations of any and all of these communities will be reminded of, and learn from, the remarkable personal story and public achievements of this outstanding public servant. We at the MLJ agree that The Honourable Chief Justice Samuel Freedman was indeed, and remains, a judge of valour, and we are pleased to be able to help to preserve his legacy. Justice Freedman’s Literary Style BRYAN P. SCHWARTZ ight years ago I spoke at a symposium about Sam Freedman’s E contribution to the law. In the course of concluding I stated: Sam Freedman’s potential legacy in fact remains to be fully realized.