MARCH 7, 1974
Law Reform in a Changing Society
AN ADDRESS BY H. Allan Leal, Q.C., LL.M., LL D.,
CHAIRMAN, ONTARIO LAW REFORM COMMISSION
CHAIRMAN The President,
Robert L. Armstrong
My Lord Justice, distinguished head table guests, ladies and gentlemen: Our guest speaker today is a Director of The Empire Club of Canada, who but for the heavy demands of his office as Chairman of the Ontario Law Reform Commission could well have been President of our club before now. He has held the offices of First and Second Vice-President. We look forward to the year when Allan Leal will be in a position to assume the office of President.
Mr. Leal was born in Beloeil, Quebec and raised in Tweed, Ontario where he attended Public and High Schools. He later attended McMaster University, graduating with the degree of Bachelor of Arts. His entry to McMaster was by way of an Ontario Hockey Association scholarship and I am informed that Buck Leal, as he was familiarly known in sport circles, was not only a very good hockey player, but was later on a first-class coach. As a player he was recognized for his ability to shoot and pass the puck with great accuracy but he has never been known to pass the buck.
In 1939 he won both the A.G. Alexander scholarship for study and travel abroad and the Governor General's Medal. In 1940 he was selected as one of the two Rhodes Scholars from Ontario.
After serving with the Royal Canadian Artillery from which regiment he retired with the rank of Captain, he attended Osgoode Hall Law School, graduating in 1948, the year he was called to the Bar of Ontario. He practised law for only two years when the Halls of Academe beckoned him back and he served as Lecturer, Osgood Hall Law School 1950-56, Vice-Dean and Professor 1956-58 and Dean and Professor 1958-66. In 1964 Allan Leal became a member of the Ontario Law Reform Commission and its Chairman in 1966, a position which he still holds.
The Ontario Law Reform Commission was created by statute under the sponsorship of the Honourable John P. Robarts, another Director of our Club who at the time was Prime Minister of Ontario, and with the guidance and blessing of the then AttorneyGeneral, the Honourable Arthur Wishart. The Honourable J. C. McRuer was the first Chairman of the Commission and after two years he became Vice-Chairman and Mr. Leal, Chairman. The Commission consists of five members and is the first of its kind in the British Commonwealth.
I shall not attempt to enumerate the many professional activities and accomplishments of our guest of honour, except to say that he has chaired many committees, served on various councils and has written several legal articles. He serves on the Board of Governors of McMaster University.
A valued member of our head table committee informs me that the name, "Leal", means legal, loyal, and honest and so it was foreordained that our speaker would follow his chosen profession. We know he exemplifies the other characteristics.
It is with much pleasure that I introduce to this audience, H. Allan Leal, Q.C., LL.M., LL.D., Chairman, Ontario Law Reform Commission, who will address us on the subject: "Law Reform in a Changing Society"
Mr. Chairman, ladies and gentlemen: Today I wish to exchange a few thoughts with you on the need and nature of law reform in a changing society. We did not require Alvin Tofler's book Future Shock to remind us that perhaps the one constant factor in our society is that it is subject to continuous change. The new dimension of change that Tofler brings home to us is not the fact of change but rather its rate. Ever since the end of World War II and, I believe, largely because of that cataclysm the world, as we know it, has been caught in the vortex of ever accelerating and relentless change. These forces have buffeted and bruised our social, economic and legal institutions and fostered a climate of intense analysis and confrontation concerning the fundamental underpinnings of our social order. What must be done to maintain personal freedom while at the same time preserving public order is the major concern of our time. We need not, and perhaps should not, look beyond the geographic boundaries of our own country for evidence of the unhappy and sobering results of the current social revolution. But I admit to being shocked by the recent disclosure of the data concerning the mounting crime wave in the city of Detroit, an urban area close, perchance too close, to our borders, having a population of about one and a half millions, almost equally divided between black and white, where the number of murders exceeds 750 a year, more than two each day. The comparable figure for Metro Toronto is 40. And in Detroit the law enforcement officers estimate there are over two million guns for one and one-half million people. I am not so much concerned today to deal with the apparent breakdown of the criminal law processes and the inability of the imposition of the criminal sanction to control violence that appears to be running wild, as I am with the matrix and the root causes in which resort to violence is bred-lack of economic opportunity in an advanced democracy, sordid squalor and grinding poverty in the midst of plenty in an affluent society. Crimes of violence are but the symptoms. The disease is the sum total of the components of the society that bred them, a society that has prided itself since its very inception on the rule of law.
It is on the theme of freedom, order and the repudiation of revolution in this country and in this province that I wish to speak. I begin with a declaration of faith, one that I trust is shared with you, and it is simply that I have faith in the abilities of the human mind and spirit in the progression and possibility of events to meet and resolve the issues that lie before us-some observed and their dimensions known, but others still to manifest themselves. I begin in this vein because on occasion human affairs deteriorate to such a degree that there seems little about which to be sanguine.
I was born during World War I, served in World War 11 and, like all of you here, have lived in apprehension through the major "shoot-outs" in Korea, Viet Nam, and the Middle East lest they in their turn trigger a third, and last, world holocaust. All these disasters in human ordering have revealed undercurrents of madness, savagery and horror which tempt one to believe that unreason rather than reason is the dominant element in human affairs. We may even be justified in asking ourselves whether mankind has not become fundamentally ungovernable. I am not persuaded of that, however, but, on the contrary, I am convinced that passing generations, in the western world at least, have witnessed a steady continuum of advance to the better life. I believe simply, but basically and steadfastly, in the sanctity of the human body and the integrity of the human spirit with the right of both to grow and flourish in relative freedom. But because freedom is relative and not an absolute, there are choices to be made and it is with respect to some of these choices that I wish to speak. The fact that there exists any range of choice at all reinforces my belief that in a very real sense man remains master of his fate. This is the hope as well as the challenge in whatever lies ahead. The challenge is relevant to all men, but it has particular significance for the lawyer and those involved in the government of human relations.
Having suggested that something more than pride of profession has prompted this choice of subject matter, permit me to assert my main thesis, which, simply stated, is that credible laws, credibly administered, are the means by which man's relations with his fellow man are ordered and contained in a manner which enables us to live in a free, abundant, orderly and civilized society. The adequacy of our laws is a most critical factor because their adequacy is essentially what provides for an acceptable synthesis of freedom and order. This synthesis in any civilized society worthy of the name, is always in delicate balance and its achievement and maintenance is a perennially and notoriously difficult task.
There are those today, as in former times in other countries, who ascribe to the concept of freedom a higher value in the scheme of things than they do to order. This is their justification for resorting to violence and action in the streets to achieve both the nature and rate of change in our laws and institutions which they regard as being necessary for the fulfillment of their own desires and best interests. There surely must be limits on the demands which one can assert in the doing of one's thing without let or hindrance of the private feelings of others or public ordering generally. Is it legitimate to insist on freedom to satisfy one's desires whatever they may be and in spite of whomsoever may be affected by them? If the law of the land is inimical, then the law must be changed immediately so that it no longer stands in the way of achieving one's desires and if and so long as the law is not changed, then it is to be ignored. This surely is the ultimate absurdity of the permissive society because it leads directly and inexorably to chaos and the rule of the jungle!
It is, I hope, as freely admitted that neither is order the paramount value. Some politico-legal regimes have existed in the past, and exist even today, where order is bought at the deplorable price of total, or almost total, deprivation of individual liberty. Thus the highest degree of public order may simply reflect the lowest amount of individual freedom.
It is important, of course, to appreciate that limitations imposed through law on private ordering do not necessarily result in a net loss of freedom. There is an old saying that "In England, all is permitted that is not expressly prohibited. In Germany, all is prohibited that is not expressly permitted. In France, all is permitted that is expressly prohibited!" We do not maximize our freedom simply by minimizing our controls. We do not exalt freedom by giving ourselves unlimited freedom of choice. An example of freedom created by control is found in our election laws. The amount of legislation and subordinate legislation that we apply to achieve a free election is really quite formidable but necessary. If we are to be given some share in choosing our lawmakers, a freedom to choose those whom we would have govern us, an elaborate machinery of election is required. The machinery must have controls, for example, to prevent voting twice, in order for this to be freedom of election in any meaningful sense. Paradoxically, therefore, control makes freedom possible and control is achieved through law. Indeed, law has been defined generally and perceptively to be "those wise restraints which make men free!" On any proper analysis of freedom then, it will be seen that the quality and quantity of law is a decisive factor but the mere increasing volume of law, by statute and regulation, is not necessarily to be regarded as derogatory to our fundamental rights of freedom.
I have touched upon, but by no means exhausted, the analysis of freedom in contemporary society to demonstrate the critical position of law in this equation. But the law must change to accommodate itself to a changing society.
As I speak of change, perhaps some of you have not heard my favourite story of the different attitudes to change exhibited by an Englishman, an American and a Canadian. An Englishman says, "As it was in the beginning, is now and ever shall be, world without end. " An American, on the other hand, renders it "As it was in the beginning, is now, but that is no reason it should continue so until the end." But every red-blooded or blue-blooded Canadian knows it should be "As it was in the beginning, is now, and we'll appoint a Royal Commission to see how it should be in the end."
The fact of change, as I have already said, in our society is neither new nor compelling. Social and economic upheavals in the past have spawned extensive programmes of law reform-history teaches that where the spur existed, change took place. At no time was this more pronounced than in the period of the Industrial Revolution in England. Inspired by the individualism and laissez-faire principles of Jeremy Bentham and fostered by the gifted political genius of law reformers like Henry Brougham, whose law reform speech in 1828 in the House of Commons took six and one-half hours to deliver, a large part of the law of England, and derivatively that of the common law provinces of Canada, was transformed, and all this in a period of about 30 years from 1830 onwards. This applied to legal institutions as well and to the very heart of the law, the reform of Parliament itself, through the Reform Bill of 1832.
Again let me emphasize that it is the rate of change that assails our laws and legal institutions and challenges our energies and resources to meet the onslaught. In comparative terms the thirty years available to adjust to the significant socioeconomic changes of the Industrial Revolution, through the accelerated change of our generation, has been reduced with us to a period of less than three days.
This is precisely why the rate of change has bred a pervasive impatience, at best, and sordid violence at worst. We, in Canada, have had both and are no longer innocent. The period of gross savagery and acute peril of the October 1970 crisis in Quebec seems to have passed, although incredibly the legal trials of the principal accused are not yet terminated, and some of the root causes of discontent that bred such violence and the threat of insurrection remain.
By and large the people of this country who are by no means homogeneous in any social, religious or ethnic sense, have exhibited a remarkable disposition for public order and peaceful evolution. It is only in the last five years or so that confrontation and violence have appeared to dethrone reason and peaceful change. There can be no doubt that lack of action in the face of hardship and inadequate laws is a fertile ground for frustration and violence.
The credibility gap between our laws and the needs of society that they are meant to serve is a matter of critical and continuing concern. Despite the tremendous strides that have been made since World War II, it appears that we are to be even more responsive to society, and yet the record is impressive. We have unemployment insurance, universal pension schemes, medicare, hospital insurance, old age assistance, mothers' and children's allowances, more humane standards of work and conditions of work, human rights codes, national and provincial bills of rights, better housing, better food, greater facilities for education, better health, more leisure and longer life than we have ever experienced before. One may well ask whether a good case could be made for a pause or breathing space. This appears to be impossible. There remains too much to do to keep abreast of things. Indeed, one wonders what percentage of obsolescence is written into our laws due to the simple factor of time lag. Both the law and the legal profession are accused on occasion of being reactionary, and so they are in the proper sense. The law reacts in an effort to find legal solutions to social problems. The solution should not and cannot effectively predate the problem without running the substantial risk of false starts and bringing the law into disrepute. But neither can the law fail for too long to respond to felt needs without risk of serious disruption of the social fabric.
The accomplishments of the last thirty years should not breed complacency, but they do provide a convincing case against those who are disposed to take the view that improving change cannot be wrought, in time, by peaceful means, and therefore civil disobedience is justified. Let me say at once that not only am I not one of them, but I cannot condone civil disobedience on any ground. There may be situations in some countries in our time when conditions are so hopelessly cruel and unjust and change so interminably long in coming that those who are asked to endure these things can no longer submit. If such there be, this country surely is not one of them.
We, in Ontario, have moved in a significant way to provide the necessary agency to take, and keep, our laws and legal institutions under constant review and to make recommendations, from time to time, to the executive and legislative branches of government for remedial legislation. The Ontario Law Reform Commission was established for this purpose, on a full-time, permanent basis, in 1964 and since then similar agencies have been instituted in all the other provincial common law jurisdictions in Canada and at the federal level; in England, Scotland, Ireland and Northern Ireland; in the state and federal jurisdictions of Australia; in New Zealand and in many of the states of the United States; the West Indies and Africa. The production of these agencies, with whom we maintain the closest links, is impressive and their purposes the same-to review the laws, not only as they exist in the books but how they are working in practice, and to make recommendations as to how they may be altered to serve better the societal needs of our times.
Without attempting to be exhaustive one would list among the basic objectives of law reform the following:
1. To crystallize the principles and simplify the expression of the law in contemporary language to make it the more readily understandable by laymen as well as lawyers and legislators.
2. To up-date the law and render it more effective in meeting existing and changing social conditions and in the process to discard the obsolete, the archaic and the anomalous.
3. To achieve more equitable treatment among conflicting interests and to redress the imbalance in the claims of the powerful and the weak.
4. To assure genuine equality before the law for all groups and segments in our modern heterogeneous society, irrespective of financial resources.
5. To expedite the administration of justice by our courts and tribunals, for "justice delayed is justice denied" is not an idle cliche but an observable fact.
It will be for historians and not for us to judge and say how well the task has been performed. I will content myself with saying that as a result of the effort of the past ten years large blocks of new and reformed material have been woven into the fabric of our law. Hardly any area of the law has remained untouched but emphasis has been placed on the law of property, both in general terms and particularly in the field of landlord and tenant and family property law; civil rights; consumerism; the rights of women, etc. The work continues. I need hardly add that the burden of assimilating these legislative changes falls heavily on the legal profession and the officers of governmental administration and we have been accused of legislating them into ignorance.
It is my hope that what has been said here you will not dismiss out of hand as merely another "law and order" speech. What I have tried rather to present, in brief compass, is an acceptable analysis of the concepts of freedom and order in our contemporary society and the central position which the law plays in the total process of adjusting human behaviour so that men can live together in relative freedom. But, as Allport has pointed out, because we and everything about us never is but is always becoming something else, we must accommodate to change. To resist change is to invite disaster. At the same time, however, I hope in planning for where we are going we do not ignore completely where we have been.
We know now that we cannot stand still. The body of our laws and the legal, social and economic institutions that are required for the rational control of a complex, densely populated, urbanized, industrial community on the threshold of the last quarter of the 20th century is strikingly different in nature and number than that which was adequate for a relatively simple, sparsely populated, rural, agricultural community in the last quarter of the 19th century.
As society changes so must our laws and institutions change to keep us within civilized bounds in dealing one with another. It has been expressed for us on the legal side by Benjamin Cardozo, one of the greatest of American jurists in these words:
Existing rules and principles can give us our present location, our bearings, our latitude and longitude.
The inn that shelters for the night is not the journey's end. The law, like the traveler, must be ready for the morrow. It must have the principle of growth.
But in groping for and moving into the sunlit plateaus of a better society we must ever bear in mind the necessity for adherence to one of those principles which are the underpinnings of society, a more ample and readily available justice.
In an address to the American Law Institute in Philadelphia in 1966 Lord Gardiner, the Lord Chancellor of England, said:
That so much of my time has been devoted to law reform is not a matter on which I have any regrets. My motive has not been that of a lawyer interested in the law as such, although I am. My motive has been a hatred of injustice, I can't bear seeing anomalies in our law cause injustice. I have wanted to see them put right.
Most of us, I think, hate injustice and we do not hate it the less because it is efficiently administered, as it frequently is. We cannot, because we must not, return to the good old days, when some people were far more equal than a lot of other people. We all have a responsibility for putting things right but in doing so must not lose sight of those enduring basic principles by which alone civilized societies can be built if they are to endure.
The appreciation of the audience was expressed by Mr. Joseph H. Potts, C.D., Q.C.