Ivan Rand's Ancient Constitutionalism
Penney, Jonathon W., University of New Brunswick Law Journal
Few names loom larger in the history of Canadian law than Ivan Rand. The late Supreme Court of Canada Justice, law dean, lawyer, politician, and Royal Commissioner was, according to E. M. Pollock's 1979 biographical piece, "destined for greatness". (1) Even today, the judicial work of "one of the greatest--if not the greatest--jurists in Canadian history" (2) remains required reading in law schools; and many of his most important decisions retain a central place in the minds of judges and legal commentators. For example, his judgments in the so-called "Implied Bill of Rights" cases were called the Supreme Court of Canada's "most distinguished achievements," (3) "the 'golden' moments of the civil liberties decade" (4) and the theory of implied rights described as "valuable", (5) "one of the most original and provocative contributions ever made to Canadian constitutional law" (6) with Rand's Court "ahead of their time." (7) If anything, Justice Rand has retained his image as a courageous judge with deep "moral convictions", (8) willing to bend the law in creative ways to seek justice and protect the rights of oppressed minorities, like the Jehovah Witnesses under Quebec's nationalist and reactionary regime of Maurice Duplessis. (9)
But Justice Rand's legal philosophy has not faired as well. Over the years, his theory of "implied rights" has received harsh criticism from prominent critics (10) and, in particular, his ideas about the role of the judiciary and rights adjudication have been called "muddled" (11), "difficult", (12) "contradictory", (13) even "abstruse" (14). How could this be? How could this "giant of a man intellectually" (15) known for the "brilliance of his record on the Bench" (16) offer such problematic, allegedly mediocre, (17) legal thought? Some explanations--that Justice Rand's personal philosophy was "hopelessly equivocal" (18) or that he tried, without success, to "combine and recite traditional doctrines of liberal thinking" (19)--leave much to be desired. Andree Lajoie, whose thoughtful account also tried to come to terms with these problems, first put Justice Rand as a proponent of the Harvard school of sociological jurisprudence (advanced by the likes of Roscoe Pound and others in the 1950s), only to accuse Rand of base "social engineering" while decrying the "lack of research" concerning ideas underlying implied rights. (20)
The central aim of this article is to challenge such assumptions about Justice Rand's work. I want to resolve some of these lingering questions and puzzles by reconstructing an overlooked component of his legal thought: a form of customary, or "ancient" constitutionalism, derived from, and very much akin to, the kind of ideas advanced by early common lawyers like Sir Edward Coke. Rand's thinking was not mired in centuries past; but his knowledge of, and appeal to, these ideas, as important precursors to modern notions of fundamental law, can help explain some of the inconsistencies and controversies apparent in his work. Ultimately, my argument will serve to rehabilitate aspects of Justice Rand's legal thought, while providing a window into the minds of scholars and critics who have ignored this aspect of his writings.
The first section describes an ongoing controversy and puzzle concerning the scope of Justice Rand's concept of implied rights: could they bind both provincial and federal legislatures? Many scholars have concluded that Justice Rand never meant implied rights to bind Parliament, only provincial legislatures, thus acting as a form of policing tool for the division of powers. I offer evidence that this conclusion is wrong. This raises a further nagging question: how could Justice Rand believe this? How could he think a system based on the British constitutional principle of parliamentary sovereignty could include implied rights that limit that sovereignty? The answer is that ideas associated with "ancient constitutionalism" underlay Justice Rand's notion of unwritten and implied rights, a school of thought based on the premise that certain liberties and customs were, by their original and ancient character, beyond the power of either the executive or, arguably, even Parliament to limit or control. …