The unexamined "conscience" of contemporary Canadian equity.

• Author: Klinck, Dennis R.

Reference to "conscience" is increasingly commonplace in Canadian courts exercising equitable jurisdiction. Yet it is a problematic concept because there is a lack of judicial exposition of what is meant by the term. Although "conscience" has existed as a legal concept for well over five hundred years, the continuity of the underlying concept cannot be assumed; "conscience" as a concept may be variable or even arbitrary. As the author argues, however, a clearer definition of "conscience" is critical because of its use by judges exercising equitable jurisdiction as a normative standard for evaluating conduct.

The first part of the article examines the development of equity from the fifteenth to the nineteenth centuries as juxtaposed with conscience's meaning. Next, current invocations of conscience by Canadian courts exercising equitable jurisdiction are considered. It is determined that these invocations, while frequent, are perfunctory, and neither acknowledge the problematics of the term, nor display historical consciousness. In particular, invocations of conscience at times suggest that the focus is on the state of the defendant's conscience, while other limes it appears that it is the adjudicator's conscience at play. Still other times, "conscience" appears to refer to some objective moral or ethical notion.

Given that its implications today are so nebulous, the author questions why conscience as a judicial concept is so persistent. The author suggests that it may be in some part due to "reflex repetition". Beyond this, however, the author suggests that the use of the judicial notion of conscience persists because of the continuing impetus to include moral criteria in the law, as well as the need for the law to accommodate particular cases within the framework of generality which is thought to make law.

Les references a la <> sont de plus en plus frequentes chez les tribunaux canadiens ayant une competence judiciaire d'equity. Il s'agit pourtant d'un concept problematique puisque l'interpretation qu'en font les juges n'est pas claire. Bien que la notion juridique de <> existe depuis plus de cinq siecles, il est difficile de presumer de la continuite du concept sous-jacent. L'auteur indique qu'une definition plus claire du terme est cruciale, etant donnee l'utilisation qu'en font les juges ayant la competence d'equity a titre de critere normatif servant a evaluer le comportement d'un individu.

La premiere partie de l'article etudie le developpement de l'equity du XVe au XIXe siecle, en analysant parallelement le sens donne a la <>. Les references actuelles a ce concept sont ensuite abordees. Ces references, pourtant frequentes, sont superficielles et presentent le desavantage de ne pas tenir compte de la problematique associee a ce terme et de ne pas faire preuve de conscience historique. Les references a la conscience semblent parfois mettre l'accent sur l'etat de la conscience du defendeur, sur celle de l'adjudicateur dans d'autres circonstances ou, d'autres fois encore, faire reference a une notion morale ou ethique objective.

Etant donne le caractere incertain du concept de conscience, l'auteur analyse les raisons qui justifient sa persistance a titre de concept juridique. Il explique que cette persistance pourrait etre en partie due a une <>. En concluant, l'auteur attribue toutefois cette continuite a la tendance a inclure des criteres moraux en droit ainsi qu'a la necessite a laquelle fait face le droit de placer les cas particuliers dans le cadre de generalite dont il est constitue.

Introduction I. Conscience and Early Equity II. Conscience in Current Canadian Equity A. Some Preliminaries 1. "Conscience" Judicially Defined? 2. Conscience and Unconscionability 3. Non-Chancery "Equity and Good Conscience" 4. "Conscience" Repeated B. Speaking of Conscience 1. Some Verbal Contexts 2. Whose Conscience? 3. Objectifying Conscience C. Soulos Again Conclusion Introduction

Recently, in Soulos v. Korkontzilas, (1) McLachlin J. cited A.J. McClean for the proposition that "the concept of 'good conscience' ... lies at 'the very foundation of equitable jurisdiction.'" (2) She then proceeded to invoke the notion of "[g]ood conscience as the unifying concept underlying constructive trust,'" (3) and concluded that such trusts are to be understood "under the broad umbrella of good conscience." (4) What is particularly interesting here is her repeated invocation of "conscience" as a--indeed, perhaps as the--touchstone of equity. She is not unique in this regard among those who have noticed the "recent rejuvenation" (5) or "renewed vigour" (6) of equity. In Australia, Sir Anthony Mason sees "the underlying values of equity" as "centred on good conscience"; (7) I.J. Hardingham has observed that "[p]erhaps the overriding aim of all equitable principle is the prevention of unconscionable behaviour"; (8) and Paul Finn has noted that "the unconscionability principle (as distinct merely from the specific unconscionable dealings doctrine) is becoming as imperialistic in equity as the neighbourhood principle is in tort law ..." (9) In England, Margaret Halliwell has advocated the (re-)recognition of conscience as integral to equity, (10) and J.D. Davies has noticed its "re-awakening". (11)

To be sure, equity has long been associated with conscience. Thus, Norman Doe reminds us that, in the medieval period, "conscience formed the basic authority for the chancellor's jurisdiction" (12) and D.E.C. Yale, discussing the early Chancery, notes that conscience was "recognized as a juristic principle (at least from the late fifteenth century) ..." (13) C.K. Allen sees the "philosophical and theological conception of conscience" as the "one general principle which more than any other influenced equity as it was developed by the Chancery." (14) Writing in the early sixteenth century, Christopher St. German, in Doctor and Student, expounded equity largely in terms of conscience. (15) Later, in the seventeenth century, the "father of modern equity", Lord Nottingham, was still regularly invoking conscience, (16) and referring to Chancery as a "court of conscience". (17) Although W.H.D. Winder tells us that "[b]efore the opening of the eighteenth century precedent was rapidly superseding conscience as the foundation of practical equity," (18) at least the discourse of conscience remained. Thus, Lord Camden, in 1769, could say that the jurisdiction of the Chancery was built upon "the everlasting maxims of equity and conscience," (19) and that "GOOD faith and conscience are the rules, by which every transaction is judged in this court ..." (20) Even Lord Eldon, quintessentiaily associated with the rigor aequitatis in the early nineteenth century, often referred to conscience when commenting on the equitable jurisdiction. (21) It is, apparently, not until 1878 that we find a judge saying, categorically, that the Chancery Division is "not ... a Court of Conscience, but a Court of Law." (22) This assertion, however unequivocal, appears hardly to have been, or at least remained, definitive.

Justice McLachlin's invocation of conscience as the (or, certainly, a) key to equity is, therefore, not without precedent and--Sir George Jessel's dictum notwithstanding--it is far from aberrant in the late twentieth century. Indeed lip service, at least, to "conscience" by judges exercising equitable jurisdiction is quite commonplace, and probably becoming more so. So sustained an example as McLachlin J.'s in Soulos can only give it impetus. (23) At the same time, it must be said that the concept, as a criterion of judicial practice, is far from unproblematic for a number of reasons. One is that, while frequently invoked, "conscience" is seldom defined. (24) Another, which follows from the first, is that--as critics at least as far back as the author of The Replication of a Serjeant at the Laws of England, early in the sixteenth century, have complained--"divers men, divers conscience". (25) That is to say, "conscience" as a concept may be viewed as being variable or even arbitrary. Thus, a recurrent difficulty is imparting to the notion of conscience the kind of objective character that might allow it to cohere with the desideratum of "stability" in the law--or, indeed, with the rule of law itself. (26)

Related to this point about variability is the question of whose conscience is in issue. A third broad problem, again related to the first two, is that of the semantic slippage that the concept may have experienced over, say, five hundred years. (27) That is, the word has remained the same, but can we assume continuity of the underlying concept? Lord Nottingham may have used the expression "good conscience"; (28) so may McLachlin J., but does it mean the same thing to these two judges? From this the following question might arise: Does the concept of "conscience", which, when it was originally worked out, might have had judicial cogency, still have that quality today? And, if it does, is it the same cogency, or must its cogency, as a judicial criterion, be understood in other ways?

My project in this article is to assess the status of "conscience" as a touchstone of equity in current Canadian judicial practice, with the above-mentioned problems or questions in mind, and at least implicitly querying what the concept adds to other notions conventionally associated with equity, such as "fairness", "justice", responsiveness to the particulars of the individual case, and so on. Because conscience came into equity so long ago (indeed, it may have preceded "equity"), and because some of my questions have to do with changed meanings, (29) I shall first try to convey some sense of how conscience, particularly in relation to equity, was conceived historically. I make no pretense to writing anything like a history of conscience; I shall simply look at a few fairly representative examples, mainly from the transitional--and seminal--period of the sixteenth...