How Justice Rand Devised His Famous Formula and Forever Changed the Landscape of Canadian Labour Law
Kaplan, William, University of New Brunswick Law Journal
It is a great pleasure to be back at the Faculty of Law of the University of New Brunswick. I spent part of my first sabbatical as a law professor here--the fall of 1992. I had an office in the law library and had an excellent time working at the provincial archives, getting to know some of the truly wonderful faculty members at this great law school and exploring New Brunswick. When former Dean La Forest invited me to be this year's Rand lecturer, I could not have been more pleased. This lecture is dedicated to a giant of a man, a great Canadian and New Brunswicker, and Ivan Rand's chief aide when he was settling the Ford Dispute: Horace Pettigrove.
Ivan Rand was my hero in law school. As a puisne judge of the Supreme Court of Canada (1943-1959) he expanded federal authority, strengthening the centre and preserving the union. But it was his great civil liberties judgments that really attracted my attention: the Japanese deportation case, Boucher, Saumur, and, of course, that truly great contribution to the common law, Roncarelli v Duplessis. (1) Together, with at least two generations of law students, I sat in the law library and read in awe as Rand acknowledged the legitimate rights of Japanese Canadians, brutalized and robbed by their government during the Second World War and threatened, at war's end, with removal to a country most of them did not even know. It was Rand who stood up for the Jehovah's Witnesses during the dark days of Maurice Duplessis's authoritarian rule in Quebec in the 1940s and 1950s when witnesses were beaten and imprisoned by Quebec authorities acting with the blessings of the Roman Catholic hierarchy for the crime of going door to door and peacefully spreading their version of the word of God. It was Rand who upheld the rule of law by calling Premier Duplessis to account for his gross abuse of power. And it was Rand, at the height of the Red Scare, who defended communists and their right to free speech. "Who is this guy?" I used to ask myself, and I resolved to find out.
He was born on 27 April 1884 in Moncton, with a caul. For hundreds of years, the birth of a veiled child--his head covered by a thin membrane, was believed to be an omen. "This boy," the attending physician prophesied, "will have a great and worthwhile life." From very modest beginnings, Ivan Cleveland Rand would build a remarkable career of professional accomplishment and success. He was valedictorian at Mount Allison. He studied law at Harvard. He participated in the opening of the Canadian west before returning to his Moncton home where he served as a reformist Attorney-General. He was Regional Counsel of Canadian National Railways before getting the top legal job, Commission Counsel, in what was, in its day, one of the most important companies in Canada. In 1943, when the Maritime seat on the Supreme Court became vacant, Rand was the choice even though it was not New Brunswick's turn.
Rand had a great and worthwhile life. At the Supreme Court of Canada, Rand, improbably perhaps, became Canada's greatest civil libertarian judge. Where other judges saw a division of powers, and then went about mechanistically attempting to define and compartmentalize it, Rand saw something special in our Constitution. Some freedoms, he wrote, are fundamental to society and are beyond the scope of legislative power. While a judge of the Supreme Court of Canada, Rand took time away from his judicial duties to serve as Canada's representative on the United Nations Special Committee on Palestine and was one of the key drafters of the majority report that led directly to the creation of the state of Israel. When he retired from the Court at age 75 in 1959, he became founding Dean of the University of Western Ontario law school, but also took time off from that assignment to study the Cape Breton coal problem. The fate of the entire population of the island, it seemed, was at stake as the coal-mining industry, propped up for years by government subventions, was in decline, if not already dead. …