Published online by Cambridge University Press: 20 July 2015
Justice Ivan Rand was perhaps the greatest exponent of the rule of law in the history of the Supreme Court of Canada. He was a great judge. He scorned as impractical the admonition that judges should “apply the law, not make it”. His judgements frequently broke new ground, but it should be understood that in “making the law” great judges like Ivan Rand respond to fundamental considerations of order and fairness and not to personal whim. It is sometimes necessary for judges to return to first principles to provide legislators with a framework within which to operate in unforeseen situations. The word “activism” is usually used by critics to imply that a judge is pushing the envelope beyond the proper boundaries of the law, but properly understood the term may equally indicate a judicial tightening of the boundaries to deny the bench a power seemingly conferred by the Constitution or legislation. Restraint, as much as expansion, is governed by the judges’ recognition of the limits of their institutional competence and their appreciation of their role in the constitutional scheme.
In the absence of statutory authority the courts have not yet addressed issues related to globalization and human rights with the sort of boldness and creativity we associate with great judges like Ivan Rand. Order and fairness have acquired a global dimension. Globalization offers a different kind of challenge, but is no less demanding of the rule of law. In the case of creating some form or forum of relief for Third World victims of globalization, we seem to have used restraint as an excuse for inertia. Judges need to be practical, but their greatness will rest on their capacity to see not only what the law is but what it should become. There is a time for boldness and a time for restraint and judges should be judged on their ability to tell the difference.
Coxford Lecture presented at the University of Western Ontario, February 16, 2012. The research assistance of my former clerk and Western Law graduate, Stéphanie Lafrance, is gratefully acknowledged.
1. See Thomas Bingham’s Sixth Sir Williams, David Lecture, “The Rule of Law” (2007) 66 Cambridge LJ 67 (2006).Google Scholar
4. Professor Grant Huscroft, for example, writing in the Queensland Law Journal, argues that “[c]onstitutional romantics assume the worst of elected legislators and the best of judges, invariably downplaying the problems inherent in constitutional judicial review if not ignoring them altogether” (37) to which he adds: “Convinced of the importance of rights, constitutional romantics naturally assume that there must be judicial power to enforce them. After all, they insist, rights are designed as a check on majoritarian excess; we cannot acknowledge the importance of rights whilst leaving them at the whim of the legislature”(47). Huscroft, Grant, “Romance, Realism, and the Legitimacy of Implied Rights” (2011) 30:1 U Queensland LJ 35 Google Scholar. While the particular focus of Professor Huscroft’s criticism is the theory of implied rights, he clearly prefers judicial deference and restraint to creativity and boldness. The latter virtues, it seems, are to be expected only of legislative bodies.
5. Jonas, George, “Canada Is a Country We No Longer Recognize”, National Post (11 February 2012)Google Scholar.
6. Reference re Resolution to amend the Constitution,  1 SCR 753.
7. Reference re Secession of Québec,  2 SCR 217.
8. Conversation with the author of uncertain date.
9. For example, he held in Smith & Rhuland Limited v The Queen, on the relation of Brice Andrews,  2 SCR 95, that the Nova Scotia Labour Board was wrong to refuse to certify a trade union because of its domination by Communist leadership. Unlike the situation today, he had no constitutional text in which to anchor his opinion. In Switzman v Elbing and AG of Québec,  SCR 285, he wrote to invalidate what was popularly known as the Padlock Act, [an Act to protect the Province Against Communistic Propaganda, 1 George VI, Ch. 11] a Québec statute which made illegal the promotion of Communism in the province and authorized the police to “padlock” any house where such propaganda was alleged to be found. See also Saumur v City of Québec,  2 SCR 299.
10. Roncarelli v Duplessis,  SCR 121.
11. Reference re Validity of Section 5 (a) of the Dairy Industry Act,  SCR 1.
12. See Reference re Deportation of Japanese,  SCR 248, aff’d  1 DLR 577 (PC). The Supreme Court of Canada nevertheless upheld the validity of the order, Justice Rand dissenting.
13. In the 1950s, the Jehovah’s Witnesses were dealt with harshly by the Duplessis government, backed by the Roman Catholic Church. The subject matter of Boucher v The King,  SCR 265, for example, was a highly provocative pamphlet distributed in Montreal and elsewhere by the Jehovah’s Witnesses entitled “Québec’s Burning Hate for God, Christ and Freedom is the Shame of All Canada”. After listing various grievances, the pamphlet concluded that, “the force behind Québec’s suicidal hate is priest domination”. This was too much for Duplessis. A number of Jehovah’s Witnesses were charged with sedition. Eventually, to its credit, the Supreme Court (at a rehearing) quashed the prosecution. Justice Rand declared the pamphlet should be seen as to be protected expression by a religious minority that had suffered unrelenting attacks by the provincial government. “That some of the expressions [in the brochure], divorced from their context, may be extravagant and may arouse resentment” should not distract attention from the underlying plea for reasonable accommodation, he wrote at page 291.
14. Even though the Supreme Court itself had dipped into originalism in the Reference re Bill 30, An Act to amend the Education Act (Ont),  1 SCR 1148.
16. The right to self-determination had a lengthy gestation period in public international law. It was identified as a “principle” in Article 1, para 2, and Article 55 of the United Nations Charter as well as in other resolutions. However, it became an “obligation” on member states (in certain contexts) via the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly in 1960 (Resol 1514 (XV)). “The Declaration regards the principle of self-determination as a part of the obligations stemming from the Charter, and is not a “recommendation”, but is in the form of an authoritative interpretation of the Charter.” (Ian Brownlie, Principles of Public International Law, 7th ed (Oxford: Oxford University Press, 2008) 581.) The right to self-determination was identified as jus cogens by Judge Ammoun, Sep Op, Barcelona Traction (Belgium v Spain) (Second Phase), ICJ Reports (1970), p. 304 and is also considered today to be erga omnes (see East Timor (Portugal v Australia), Judgment, ICJ Reports 1995, 102, para 29).
17. Canada (Auditor General) v Canada (Minister of energy, mines and resources),  2 SCR 49 at p. 91. In that case, it may be remembered, the Auditor General went to court to enforce what appeared to be his statutory right of access to government information relevant to his audit. He sought documents concerning the Petro-Canada takeover of Petrofna. Despite the statutory language, the Supreme Court ruled that the Auditor General’s remedy for non-disclosure would only lie with the House of Commons, not the Courts.
18. Streng et al v Township of Winchester (1986), 56 OR (2d) 649, 31 DLR (4th) 734 (HC).
19. In holding that there was a prima facie breach of s 15(1), Smith J commented, at 741:
The class created here is that of persons suffering personal injuries as a result of the negligence of others. The class may be further narrowed by including only those suffering injuries in car accidents. All members of such a class are entitled to expect, in the normal course, to be treated alike.
20. Jones v Ontario (Attorney General) (1988), 65 OR (2d) 737 (H.C.).
21. Piercey Estate v General Bakeries Ltd (1986), 31 DLR (4th) 373 (Nfd SC).
22. Railway Ex Press Agency Inc v New York, 336 US 106, 112 (1949) [emphasis added].
23. Andrews v Law Society of British Columbia,  1 SCR 143.
24. Auditor General’s case, supra note 17 at 91.
25. Instead of being directed to one of the human rights tribunals.
26. Noble and Wolf v Alley,  SCR 64.
27. RWDSU v Dolphin Delivery Ltd,  2 SCR 573.
28. At para 36 of Dolphin Delivery, the Court said:
While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute. To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation. All cases must end, if carried to completion, with an enforcement order and if the Charter precludes the making of the order, where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter. In my view, this approach will not provide the answer to the question. A more direct and a more precisely-defined connection between the element of government action and the claim advanced must be present before the Charter applies.
29. This argument is based on the fact that some senior civil servants gave an opinion to the Joint Parliamentary Committee that fundamental justice was just another name for procedural justice, and that the only reason for not using the expression procedural justice was the fear of importing into Canada all of the United States “due process” jurisprudence. Chief Justice Lamer used to parody this argument by likening it to a situation where somebody comes up and hands you an apple and says “here my friend is a banana.” When you protest that it is not in fact a banana but an apple, the response is that for heaven’s sake, we must treat it as a banana because we have assured the politicians it is a banana.
30. Supra note 1 at 77.
31. The Court of Appeals breakthrough case, Filártiga v Peña-Irala, 630 F 2d 876 (2d Cir 1980) is said to be to global human rights litigants what Brown v Board of Education of Topeka (No 1), 347 US 483 (1954) was for advocates of racial integration within the United States.
32. See Doe v Unocal, 395 F 3d 932 (9th Cir 2002), opinion vacated and reh’g en banc granted, 395 F 3d 978 (9th Cir 2003).
33. Sarei et al v Rio Tinto, PLC, 671 F 3d 736 (9th Cir 2011).
34. See “Zijin unit settles case over Peru torture claims” Reuters (20 July 2011).
35. The Kiobel case has an interesting history: The Court of Appeals for the Second Circuit sitting in New York blew a significant hole in the ATCA by holding that customary international law did not recognize any form of corporate liability (621 F 3d 111 (2nd Cir 2010)). It cited the trials at Nuremburg where corporations that ran slave labour camps were not prosecuted even though individuals responsible for the atrocities were held personally responsible. Several other appellate courts in the United States have taken a different view of the issue. If the position of the Second Circuit is upheld, and if Rio Tinto’s more generalized attack on the scope of the statute based on extraterritoriality succeeds, the efforts to date by various U.S. courts to bring about a certain measure of corporate responsibility in the Third World will be severely diminished.
36. See recent developments in the law of forum non conveniens in the House of Lords in Connelly v RTZ,  UKHL 30 and Lubbe v Cape plc,  1 WLR 1545,  UKHL 41.
In Connelly v RTZ, a Scotsman had moved to Namibia, where he worked in mining for a local subsidiary of a parent company that was incorporated and doing business in England. The Scotsman developed throat cancer and sued the head office in England. The company obtained a stay of the proceedings by the lower courts based on forum non conveniens because the events and injury had occurred in Namibia. The House of Lords allowed the case to proceed in England in light of the complexity of the case (and the necessity to have recourse to medical expert witnesses). The lack of legal aid as well as the lack of ability to proceed on a contingency fee basis in Namibia meant that the plaintiff could not obtain justice abroad because of the financial strain that would result.
Similarly, in Lubbe v Cape, the House of Lords agreed to hear claims originating in South Africa, brought by a majority of South African plaintiffs. Lord Bingham reiterated that where forum non conveniens is argued by defendants in order to obtain a stay of proceedings, the burden is on the party seeking the stay to show that there is another suitable forum where the claims can be brought. Despite the House of Lords finding that the natural forum was South Africa, this was outweighed by the interests of justice. The availability of contingency fee arrangements in England, the lack of financial legal aid in South Africa, as well as the complexity of the case were said to weigh in favour of English courts.
While these cases dealt with arguments based on forum non conveniens, the underlying reasoning of the court is based on principles of fairness and access to justice. This is similar to the principles of order and fairness which underlie private international law in Canada (see Morguard Investments Ltd v De Savoye,  3 SCR 1077).
The forum of necessity doctrine already exists in other European countries—most importantly in Switzerland. Article 3 of the RS 291 Loi fédérale sur le droit international privé (18 December 1987), RO 1988 1776 states:
II. For de nécessité
Lorsque la présente loi ne prévoit aucun for en Suisse et qu’une procédure à l’étranger se révèle impossible ou qu’on ne peut raisonnablement exiger qu’elle y soit introduite, les autorités judiciaires ou administratives suisses du lieu avec lequel la cause présente un lien suffsant sont compétentes.
Québec has based its own art 3136 of the Civil Code of Québec on the Swiss provision on forum of necessity. The Minister of Justice of Québec explained the adoption of art 3136 as follows:
Cet article, de droit nouveau, s’inspire de la Loi fédérale sur le droit international privé suisse de 1987.
Les dispositions du Titre troisième visant à prévoir de manière exhaustive la compétence internationale des autorités québécoises, il convenait d’établir une nouvelle compétence pour les autorités québécoises afin de prévoir le cas où une procédure à l’étranger se révélerait impossible ou le cas où on ne pourrait raisonnablement exiger qu’elle y soit introduite. Il faut cependant que le litige présente un lien suffsant avec le Québec. (Québec, Ministère de la Justice, Commentaires du ministre de la Justice: le Code civil du Québec, t 2, Québec, Publication du Québec, 1993, page 2000.)
37. Under the Brussels I Regulation, a member state has jurisdiction to hear a case if the corporate defendant is domiciled in the member state—domicile is defined as the corporation’s statu tory seat, its central administration or its principal place of business (Article 60). Moreover, a plaintiff who brings a case in the UK against a corporate defendant (based on the defendant’s domicile) can then decide to join other corporate defendants from other member states who are non-residents in the UK so long as the plaintiff shows that the claims against these other defendants are “so closely connected that it is expedient to hear and determine them together.” (Article 6, Brussels I).
The European Commission has proposed to make reforms to the Brussels I Regulation regime. These do not seem to affect the state of the law in regards to “mandatory” jurisdiction over corporate defendants. See http://arbitration.practicallaw.com/0-504-5668.
38. In Owusu v Jackson Case C-281/02,  E.C.R. I-1383, the European Court of Justice effectively prevented EU member state courts from entertaining arguments of forum non conveniens where one of the parties to the proceedings is a resident of a member state. An EU court no longer has the discretion to decide not to hear a case brought by non-EU residents against a corporate defendant that is domiciled in its jurisdiction. Domicile is defined and interpreted broadly. In practice, this means that jurisdiction can be founded on a very limited connection to the EU member state so long as its court has jurisdiction pursuant to the Brussels I Regulation.
39. Art 3136 of the Civil Code of Québec states:
Even though a Québec authority has no jurisdiction to hear a dispute, it may hear it, if the dispute has a sufficient connection with Québec, where proceedings cannot possibly be instituted outside Québec or where the institution of such proceedings outside Québec cannot reasonably be required.
40. The judgment was released subsequent to the lecture—see 2012 SCC 17—but the Court found it unnecessary to deal with the “jurisdiction of necessity” argument.
41. On 1 November 2012, the Supreme Court of Canada dismissed the application for leave to appeal the Anvil decision, thereby denying itself the opportunity to consider arguments on the doctrine of “forum of necessity”.
42. However the debate in that country is not over, see Troutman, TL, “Jurisdiction by Necessity: Examining One Proposal for Unbarring the doors of our Courts” (1988) Vand J Transnat’l Law 401.Google Scholar
43. See, e.g., Criddle, EJ & Fox-Decent, E, “A Fiduciary Theory of Jus Cogens” 34 Yale LJ of Int’l Law 331.Google Scholar
44. Universal jurisdiction to enforce jus cogens has most famously been used by Judge Baltasar Garzón of Spain to issue an arrest warrant that led to the arrest of Augusto Pinochet. Garzón was eventually indicted for abuse of power for allegedly politicizing the judiciary by initiating investigations into Franco-era crimes and, in an unrelated case, was disbarred for 11 years.