[Making Good: Law & Moral Regulation in Canada, 1867-1939]

Article excerpt

These fine books on aspects of law and criminality support the platitude that crime does not pay -- except for lawyers, criminologists and insurance companies. Canadian criminals put in more time in jail per dollar stolen in other countries, although these statistics predate the conviction of Alan Eagleson. Another statistic, even less likely to stir patriotic pride, is that Canadian youth, as Bernard Schissel points out, have the highest per capita rate of incarceration of any country in the world.

If crime rates in Canada have dropped off in recent years, corresponding to the diminishing ratio of youth in the Canadian population, we still have a lot more lawyers. Prior to the Charter of Rights and Freedoms, Canadians had less than half as many lawyers per capita as the Americans but now we approach two-thirds of the American ratio (Law and Markets 77-81) creating "the danger of supply-driven and socially harmful increases in litigation" (85). Virtually, all of the contributors to Law and Markets bemoan Canada's increasing litigiousness; none defend the very quality that brought one of Canada's most honoured citizens to jail. The Fraser Institute has brought together an interesting volume that seems to bear the message of Adam Egoyan's movie The Sweet Hereafter; namely, that lawyers as ambulance-chasers are bad news. Law and Markets is concerned not with corporate criminality but with the prospect that enterprising lawyers, instigating class action suits on contingency fees, will be able to dupe civil juries, and cut into profit margins. Indeed, Richard Hazelton, the CEO of Dow Corning which filed for bankruptcy because of the silicone breast implant suit, tells a cautionary tale for Canadian businesspeople.

Contributors point out that jurors lack competence to assess the scientific and technical evidence about toxic emissions, risks to health, the relationship of causality and legal accountability; prejudices about dioxin spills may skew assessment of the personal injury caused by the spillage. The one exception to the anti-litigation view of the 17 contributors to Law and Markets is Mark Mattson, an environmental litigator, who argues convincingly that the Canadian Environmental Protection Act needs radical revision or abolition. Mattson argues that the federal government should either enforce environmental standards or leave private litigators like himself to engage in civil ligation against environmental polluters. Mattson recommends that public interest groups and their lawyers split the fine levied on the offending corporations or municipalities (135). While Mattson may conform to the Fraser Institute's policy on deregulation -- "It is government intervention that stands in the way of a public right to protect community resources" (136) -- his proposals would encourage litigation, diminish shareholder profits and raise citizens' taxes. If the aim of Canadian economic regulation is, as Konrad von Finckenstein puts it, "user-friendly regulation," we are led to conclude that deregulation and user-friendly regulation are not the same thing. If the conflicting interests of Richard Hazelton and Mark Mattson reveal the current contradictions of capitalism, we might also note that the provinces geographically and ideologically closest to the Fraser Institute (British Columbia and Alberta) are the most litigious, while New Brunswick are Newfoundland are least litigious (158-9).

An exciting challenge for the Fraser Institute would be to take on the human rights legislation that emerged after the Second World War, arising from a combination of anti-Nazi principle, Keynesian welfarism and acceptance of wartime control of goods and services in the public interest. Since human rights codes abridge several common law rights, of property and contract, specifically the right of business to discriminate in favour of preferred employees, buyers, tenants and customers, the Institute's views on James Walker's compelling account of the role of human rights legislation in limiting racism in the Canadian marketplace would be illuminating. …