Making historical sense of the law: Ivan Rand at the Supreme Court of Canada, 1943-1959.

AuthorGuth, DeLloyd J.

A brilliant legal mind: that is the unanimous judgment in print about Ivan Cleveland Rand. This should make all judges and lawyers eager to emulate him and all legal historians skeptical. What could Rand possibly have written, said and done that so impressed contemporaries and more recent commentators? Both histories of The Supreme Court of Canada, by Professors Snell and Vaughan (1) and by Ian Bushnell, (2) wax ecstatic about him; at the same time, both books also put down most of the other appointees because their jurisprudential talents rarely rose above the ordinary.

Rand remains above this. And if there is something for judges, lawyers and the rest of us to emulate, then we need to ask what that something still is. More of his judgments remain alive and quoted today than those of all of his thirty-four predecessors at the Court combined. This includes those of his friend and admirer, Chief Justice Lyman Poore Duff, whose record-setting thirty-eight years at the Court now leaves no dust for modern judges to disturb, despite the late David Ricardo Williams's superb, lively biography of him. (3)

My method in this article is to look for that something to emulate in Rand within his practice as lawyer and judge. He had, I have found, a mind and method that naturally impelled him to make historical sense of the law. There was a discomfort with 'presentism' in his judgments, a refusal to impose the present-day, often ephemeral, values and priorities around him on past actions and actors. Especially in his off-the-bench scholarly writings, Rand illustrated all of the best instincts of the best legal historians. He went straight to the original source, its words and intentions, showing the utmost respect for reconstructing any statute or judgment, or the facts in any case before him, in their own realities and circumstances. He put the primary text under his microscope and located that evidentiary text in its historical context. And he was never afraid to draw conclusions based on universal, legally transcendant principles. The lawyer in Rand clearly believed in a justice that must exist beyond the law. The legal historian in him provided the intellectual stimulus for identifying and implementing that just result. My title, making historical sense of the law, therefore locates Rand's methodology as well as my reading of him.

This is not to claim that Rand substituted legal history for the conventional appellate court approaches to statutory interpretation, legal reasoning and supplementary authorities. He neither evaded the legal issue, by getting himself lost in the narrative inside the case, as could Lord Denning, nor indulged himself in the law's origins for its own sake, as did Sir Edward Coke. His Supreme Court of Canada judgments consistently, but never slavishly, followed the pattern found in most appellate law judgments: with the issue clearly defined, he looked first to the statutes for jurisdiction and application, then to lines of authority in case law on point for reasoning, and finally to other relevant social facts, arguments and authorities for context. One example can suffice. In the 1949 constitutional reference, Re: Validity of the Dairy Industry Act (1927), (4) better known as the "Margarine Case," Rand's separate reasons presented a careful order: he read the Act in the context of the Customs Duties Act of 1886, to find the original import ban on margarine, alongside subsequent Butter Acts since 1903, and then examined four appellate judgments on federal-provincial distribution of powers. In so doing, Rand also defined for posterity, meaning for us, the nature of the federal government's criminal law powers vis-a-vis the provinces. Along the way he could not resist, however, adding citations to Adam Smith's Wealth of Nations (5) on free trade and similarly to the Act of Union (1840) (6) on taxation used for trade regulation.

These last two historical notes exemplify how comfortable Rand was in effortlessly reminding readers that every legal issue had its own history and, more importantly, that this was both relevant and necessarily instructive to the case under consideration. His use of legal history was always purposive to the point at issue in the case. He seemed to relish real property issues for this reason. Land, and all rights associated with it, formed the raison d'etre for the English common law. In a series of judgments written between 1944 and 1959, Rand reconstructed historical events, citing the archival documents, which focused on the disputed transactions. In Coulombe v. Societe cooperative agricole de Montmorency (1950), (7) the issue was to define an obligation to repair a 250 year old dam on the Laval River. Was it a personal obligation for the current owner or a real servitude to the land? Rand narrated the story of the property's various owners over the two and a half centuries, finding for rights and duties attached to the land. A year later, in Alberta v. Huggard (1951), (8) he had a field day, literally, with the history of prairie land grants, as rooted in medieval, nonfeudal, socage tenure, and the Hudson's Bay Company charter of 1670, all of which he related forward to whether or not surface rights to oil and gas came with grants in fee simple. In numerous other land cases he revealed his mastery over nineteenth century case law, quoting extensive passages and analysing texts from English, Irish and Canadian sources. His reconstruction of Victorian case law, dealing with whether or not the owner of the equity of redemption in mortgaged lands could lawfully redeem after foreclosure and sale by the sheriff, remains the only textbook we have on the topic: Pew v. Zink (1954). (9) In the end, Rand borrowed the rule from Irish land law experience.

There are strong hints here that we are not dealing with any run-of-the-mill appellate judge. In these matters, the bottom line for a legal historian must come from the question: how does that judge judge?

There are a multitude of criteria, and most judges mix and match according to their desired result. In the Supreme Court of the United States, Justice Antonin Scalia has focused on original meaning as a judge's strait-jacket. Similarly, some have found comfort in literalism, narrowing the law to strict construction of its wording in order to exclude anything not explicitly declared. Lord Mansfield often sought a moral imperative within the formal law to explain why certain acts were lawful or unlawful; and such morality jurisprudence continued with John Stuart Mill (10) and, more recently, Patrick, Lord Devlin. (11) The legal positivism of H. L. A. Hart argued against judges imposing what they thought the law ought to be, urging them to apply the law as they found it. (12) That sort of legal formalism has been countered, of course, by natural law proponents, with their findings of a legal authority above positive laws, in sources often supernatural or located in eighteenth century enlightenment notions of natural reason.

How, then, did Rand judge? His method offered a unique blend, which we may choose to emulate in its parts, in total or not at all. Rand's judgments revealed and combined four criteria: first was his textualism, second his historicism, third his intellectualism, and fourth, his transcendentalism. And linkage was the key: words mattered, history mattered, ideas mattered, and the universals in the sum total of these elements mattered. Rand's textualism showed an acute care for words, a healthy pause for etymology. In General Motors v. Bellows (1949), (13) a trade-mark dispute, he went straight to the original Latin meaning of 'frigidarium', as the cooling room adjacent to the hot Roman bath, and then tracked the same word and concept through English usage, proving that the marketing label was not an...

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