Justice Russell Brown, Supreme Court of Canada

• Pages: 1-5

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(2016) 2 CJCCL

Foreword

Justice Russell Brown

Supreme Court of Canada

After last year’s successful inaugural issue of the Canadian Journal of

Comparative and Contemporary Law (CJCCL) dedicated to “Health Law

and Human Rights”, I am honoured to provide this brief foreword to the

CJCCL’s second issue, containing papers exploring the theme of “Equity

in the 21st Century: Problems and Perspectives”.

As a theme, “equity in the 21st century” is intriguing. At rst glance,

one might suppose that “equity” and “21st century” are as suitably

juxtaposed as “omas Aquinas” and “emoji”. While its origins are

murky, we know that equity emerged long ago from the administrative

power of the mediaeval Chancellor, to whom the King had delegated

the task of hearing pleas from his subjects concerning injustices at the

common law courts. As most law students also know, the Chancellor, as

an ecclesiastic, was concerned with conscience (wherein lay the path to

the immortal soul). It was therefore on the basis of “conscience” that he

exercised this delegated remedial power by ordering respondents to act

according to good conscience, notwithstanding their legal rights to do

otherwise.

is account — while accurate — risks, however, descending into

caricature in several respects. First, common law courts were not amoral

wastelands. Still, their limited forms of action could work injustice. Clear

rules were preferred over avoiding hardship. John H Baker’s famous

example of the paid debt that must be paid a second time (owing to

the debtor’s failure to ensure the debt was cancelled after it was paid the

rst time) illustrates the sort of problem that typically arose.1 Secondly,

while the Chancellor’s jurisdiction ultimately widened from the “wide

1. John H Baker, An Introduction to Legal History, 3d (London:

Butterworths, 1990) at 118.