Justice Russell Brown, Supreme Court of Canada

(2016) 2 CJCCL
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
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT