Making Historical Sense of the Law: Ivan Rand at the Supreme Court of Canada, 1943-1959

Article excerpt

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. …