Ivan Rand's ancient constitutionalism.

• Author: Penney, Jonathon W.

1. INTRODUCTION

   Few names loom larger in the history of Canadian law than Ivan Rand. The late Supreme Court of Canada Justice, law dean, lawyer, politician, and Royal Commissioner was, according to E. M. Pollock's 1979 biographical piece, "destined for greatness". (1) Even today, the judicial work of "one of the greatest--if not the greatest--jurists in Canadian history" (2) remains required reading in law schools; and many of his most important decisions retain a central place in the minds of judges and legal commentators. For example, his judgments in the so-called "Implied Bill of Rights" cases were called the Supreme Court of Canada's "most distinguished achievements," (3) "the 'golden' moments of the civil liberties decade" (4) and the theory of implied rights described as "valuable", (5) "one of the most original and provocative contributions ever made to Canadian constitutional law" (6) with Rand's Court "ahead of their time." (7) If anything, Justice Rand has retained his image as a courageous judge with deep "moral convictions", (8) willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities, like the Jehovah Witnesses under Quebec's nationalist and reactionary regime of Maurice Duplessis. (9)

   But Justice Rand's legal philosophy has not faired as well. Over the years, his theory of "implied rights" has received harsh criticism from prominent critics (10) and, in particular, his ideas about the role of the judiciary and rights adjudication have been called "muddled" (11), "difficult", (12) "contradictory", (13) even "abstruse" (14). How could this be? How could this "giant of a man intellectually" (15) known for the "brilliance of his record on the Bench" (16) offer such problematic, allegedly mediocre, (17) legal thought? Some explanations--that Justice Rand's personal philosophy was "hopelessly equivocal" (18) or that he tried, without success, to "combine and recite traditional doctrines of liberal thinking" (19)--leave much to be desired. Andree Lajoie, whose thoughtful account also tried to come to terms with these problems, first put Justice Rand as a proponent of the Harvard school of sociological jurisprudence (advanced by the likes of Roscoe Pound and others in the 1950s), only to accuse Rand of base "social engineering" while decrying the "lack of research" concerning ideas underlying implied rights. (20)

   The central aim of this article is to challenge such assumptions about Justice Rand's work. I want to resolve some of these lingering questions and puzzles by reconstructing an overlooked component of his legal thought: a form of customary, or "ancient" constitutionalism, derived from, and very much akin to, the kind of ideas advanced by early common lawyers like Sir Edward Coke. Rand's thinking was not mired in centuries past; but his knowledge of, and appeal to, these ideas, as important precursors to modern notions of fundamental law, can help explain some of the inconsistencies and controversies apparent in his work. Ultimately, my argument will serve to rehabilitate aspects of Justice Rand's legal thought, while providing a window into the minds of scholars and critics who have ignored this aspect of his writings.

   The first section describes an ongoing controversy and puzzle concerning the scope of Justice Rand's concept of implied rights: could they bind both provincial and federal legislatures? Many scholars have concluded that Justice Rand never meant implied rights to bind Parliament, only provincial legislatures, thus acting as a form of policing tool for the division of powers. I offer evidence that this conclusion is wrong. This raises a further nagging question: how could Justice Rand believe this? How could he think a system based on the British constitutional principle of parliamentary sovereignty could include implied rights that limit that sovereignty? The answer is that ideas associated with "ancient constitutionalism" underlay Justice Rand's notion of unwritten and implied rights, a school of thought based on the premise that certain liberties and customs were, by their original and ancient character, beyond the power of either the executive or, arguably, even Parliament to limit or control. After setting out some of the key tenets of ancient constitutionalism, I then attempt to identify those tenets in Justice Rand's writings, both judicial and academic. The final section revisits Justice Rand's legal thought and offers reasons why legal scholars and historians need to address his ancient constitutionalism.

2. AN ONGOING CONTROVERSY

   1. The Implied Rights and Their Scope

   In the "Implied Bill of Rights" cases, handed down shortly before and after the Second World War, various members of the Supreme Court of Canada seemingly found within the British North America Act, 1867 certain implied rights analogous to a modern bill of rights. (21) Though Chief Justice Duff authored the first so-called "implied rights" case, it was Rand who "remains the father of the Implied Bill of Rights". (22) Among the implied interests recognized in Rand's decisions were "[l]iberty" in "thought", (23) "freedom of speech", "religion" and the "inviolability of the person". (24) Some have suggested these also included certain "economic rights" (25) and, based on Rand's judgment in Roncarelli V. Duplessis, (26) protection from governmental abuse of the rule of law.

   Commentators generally agree that these interests were not derived from the explicit text of the British North America Act, 1867, nor any other Canadian constitutional instrument. Rather, they were implicit or unwritten constitutional norms. They have thus been called an "implied bill of rights" (27), an "interstitial bill of rights", (28) and a set of "implied constitutional limitations". (29) Where there has been more disagreement is with the scope of these unwritten interests. As others have written, the "litmus test" for Rand's rights is "whether the restriction of certain fundamental liberties is beyond the powers of both federal and provincial governments". (30)

   Though scholars like Dale Gibson suggest implied rights could not be limited by any level of government, (31) the vast majority have concluded that Rand understood them to limit only the powers of provincial legislatures. This was the conclusion of both Andree Lajoie (32) and Bora Laskin (33) writing over forty years apart. Prominent scholars like William R. Lederman, (34) Walter Tamopolsky, (35) Edward McWhinney (36) and others, (37) concluded the same. This is not surprising. The traditional view in Canada during Rand's time was that "parliamentary sovereignty reigned supreme" and so, presumably, nothing was beyond the jurisdiction of both levels of government. (38) Rand's implied rights were no different.

   But this conclusion was wrong. Though Rand never acknowledged in a judgment that the unwritten and implied interests he defined could not be limited by either Parliament or provincial legislatures (he came close in Switzman), he did so explicitly in non-judicial writings. In fact, in a rarely cited personal correspondence with Jerome Barron in 1962 (after retiring from the Court), Rand was asked directly whether implied rights like freedom of speech and the press also placed "constitutional limitations on the legislative jurisdiction of the Federal Parliament". (39) His letter in response was informative:

   I should say it was clear that the provinces have no jurisdiction to regulate free speech as such for the reason that that subject matter is not within any head of Section 92. On the other hand, in view of the presence in the preamble of the reference to the constitutionalism of Great Britain, coupled with the legislative structure for both province and Dominion, that is, parliamentary government, and taking into account also the specific allocation to the Dominion Parliament of the exclusive jurisdiction over crime and the residual powers, although there is necessarily a restriction upon interference with free speech including the press, as with your constitutional provision, the problem is in the balancing considerations, the delimitation of that restriction.... But the restriction as a necessary corollary of parliamentary government will remain until that institution is abolished. (40) Rand here asserted unequivocally that there were limitations on interference with such freedoms by provincial legislatures and by the federal parliament. The unwritten and implied rights were a general limit on legislative powers.

   But what about other implied rights? Did they also apply to both levels of government? The answer must be yes. First, Rand's writings elsewhere suggested that implied rights and freedoms placed limits on governmental restrictions. Writing in 1954, he said freedom "must be taken to be an absolute in the sense that it is inseparable from our form of organization". (41) Similarly, in an article written in 1960, Rand contrasted freedom of religion from "civil rights", writing:

   [A] "civil right" ... is the creation of positive law, to be distinguished from those freedoms that remain within the residue of unregulated conduct, fundamental, even "natural" freedoms because they are not, so far, circumscribed by law. (42) Here, Rand implied that freedom of religion was not a creature of statute, but rather a "fundamental" freedom existing beyond the regulation of positive law, i.e., laws enacted by federal and provincial legislatures equally. Moreover, Rand often wrote of implied rights like freedom of speech, religion and "inviolability of the person" together. (43) It would be unusual for him to conclude that, of these implied interests, only freedom of speech could limit Parliament.

   Indeed, Barron himself immediately understood the "importance" of Rand's disclosure in the letter cited above, writing:

   The importance of Justice Rand's statement ... that the Federal Parliament operates under constitutional...