Some Aspects of My Profession

MR. STARK: From Winnipeg to open the winter season of The Empire Club of Canada, we welcome today Mr. Justice Samuel Freedman, a Judge of the Court of Appeal of that Province and Chancellor of the University of Manitoba. Our guest has long been regarded as one of Canada's most outstanding speakers. He has maintained his reputation ever since 1930, when he was Captain of his University's Debating Team and had as his partner, Dr. Andrew Stewart, now Chairman of Canada's Board of Broadcast Governors. The two young students entered the Imperial Debates and defeated a British Team on the subject, "Democracy versus Dictatorship". A number of years ago, he was asked to address a group of lawyers in Minnesota. On that occasion he chose as his topic, "Uncommon Law". Shortly before entering the Hall, he was told that, subject to his consent, there might be a second speaker. He readily agreed. The co-star was none other than the famous Sally Rand and her subject, "Juvenile Delinquency". History does not record who won that debate.

Mr. Justice Freedman, who has only just passed his fiftieth birthday, has had one distinction after another in his career at the Bar and on the Bench. His was the first Jewish appointment to the Manitoba Bench and the second such appointment in Canada. Born in Russia fifty-one years ago, he was only three when his parents came to Winnipeg in 1911. He was one of a family of seven, almost all of whom have distinguished themselves in one field of endeavour after another. His brother, Max Freedman, is distinguished in the field of journalism and has addressed this Club on more than one occasion.

Our guest was an Honour Arts Graduate from the University of Manitoba in 1928, when he was twenty-one years of age. Three years later, he received his Law Degree. Not long after that, he was assigned to the lecturing staff of the Manitoba Law School and continued until his recent appointment as Chancellor, in June 1959. There is time to mention only a few of his accomplishments. He has been President of the Manitoba Bar Association. He won five scholarships at the University. He was a Lecturer in the Manitoba Law School for eighteen years. He has been President of the Y.M.H.A. of Winnipeg and Chairman of the Winnipeg Canadian Institute of International Affairs. He has been President of the Medico-Legal Society of Manitoba, and he has been Chairman of the Rhodes Scholarship Selection Committee for Manitoba since 1956. Just this year, he received an Honorary LL.D. Degree from Assumption University of Windsor.

It has always seemed to me that there is nothing more thrilling or more fascinating than to hear a leader in his profession speak of his fondness for and his experiences in that profession. It is now my great pleasure to present to you The Honourable Mr. Justice Samuel Freedman, whose subject will be, "Some Aspects of My Profession".

MR. FREEDMAN: Mr. Chairman, Mr. Speaker, My Lords Chief Justices, My Lords, Ladies, and Gentlemen: Whatever disposition I might have to dissent from some of the delightful extravagances which the Chairman uttered concerning myself, I have no desire whatever to dissent from his gracious reference to my brother Max. I know that Max is well-known to the members of The Empire Club. Indeed, I rather suspect there must be many in this audience cherishing a silent hope that this were Max at the rostrum rather than Sam. To them I must say that they will miss many things today. They will miss his passionate eloquence, the wide range of his knowledge, the elevation and distinction of his opinions, and-not least of all the grace of his diction, so reminiscent of Tennyson's tribute to Virgil:

All the chosen coin of fancy, flashing out from many a golden phrase....
All the charm of all the Muses, often flowering in a lonely word.
Thinking of Max, I recall a family story-some of my Toronto friends know it-which occurred at the time I was appointed to the Court of Queen's Bench. I remember the sense of exaltation with which I telephoned my parents. Mother answered the phone, and I said, "Great News!"
She said, "What?" I said, "Guess."
She said, "Max is married."

My theme today concerns my profession; and with some aspects of it, I propose to deal. May I say at the very outset that I am using the phrase "my profession" not in its narrower sense as denoting the judiciary, but in its broader sense as embracing the law. Of law, then, and of lawyers and judges, I will speak. I do so, conscious of the fact that I am taking you for a while into my field, but heartened by the fact that it is not mine alone but yours, too for every man in society is concerned with the law.

Indeed, that concern has sometimes been expressed rather critically. You remember George Bernard Shaw's comment that, "The theory of legal procedure is that when two liars seek to expose each other, the truth will emerge." Long before that, of course, Shakespeare in Henry VI makes Dick say to Jack Cade, "The first thing we do, let's kill all the lawyers." You will forgive me if I suggest that there is something too final and irrevocable about that. Admittedly, the lawyer is not always a popular figure. I recall the statement of the lady who said, "Lawyers! Don't talk to me about lawyers. I have had so much trouble with my husband's estate that sometimes I wish he hadn't died." Nor are judges immune from the general indictment. It has been said that the reason why one lawyer refers to another lawyer in Court as "My learned friend", is so that the judge will know they are not referring to him. Of a frontier judge on a day now happily past, it is related that he came into Court one morning and said, "Yesterday I received a letter in the mail from the plaintiff containing a cheque for $1,000. This morning I received a letter in the mail from the defendant containing a cheque for $1,500. I propose to return $500 to the defendant in order that I should be able to try this case on its merits."

Of course, everyone recalls the English judge of whom it was said, "He was often in error but never in doubt." That recalls the comment about the three stages through which a judge goes in the course of his judicial career. During the first five years on the Bench, he delivers every judgment with a lurking suspicion in the back of his mind that he is wrong. During the second five years on the Bench, he delivers every judgment absolutely convinced that he is right. Thereafter, he delivers his judgments with a growing indifference as to whether he is right or wrong; and when the indifference becomes habitual he should retire.

The topic before me is a vast one; and I propose to do no more than refer to two or three phases of it. I speak, of course, as one who has a deep and abiding affection for law, who believes that the judicial process is at once the instrument and the safeguard of liberty, and who regards the rule of law as the basis of a free society. At the same time I am, I hope, alive to the imperfections of the law and to the fact that its custodians are-all of us-fallible men. If then, in the course of my remarks, I should refer to the law's shortcomings, I do so in the spirit of Mr. Justice Holmes who said that, "One may criticize even what one reveres."

Let me start by a reference to the field of criminal law. So far as the members of the public are concerned, it is the field which they find the most interesting. For in criminal law, there are elements of emotion, of suspense, of drama. Will you allow me to suggest, however, that the public sometimes has a curious misconception about criminal law and about those who engage in it. Some of the more sensational paper-back novels and some of the older Hollywood films have tended to create a spurious image of the average criminal lawyer. They have portrayed him as cunning, slick, tough, professing the philosophy of the prize ring, expressed in the language of the poolroom. He speaks out of the side of his mouth and punctuates every sentence with a spit. Let me say that the image is a fantastically false one. Rarely, if ever, will its prototype be found in real life. Criminal law can be practised, and is generally being practised, on a high, ethical and responsible level.

My regret is that in Canada too few lawyers will practise criminal law at all. Many legal offices refuse to handle criminal cases-except possibly a combines case or a criminal negligence action arising from an automobile accident. What is the result? The impression may be cultivated in the public mind that because leading civil counsel refuse to handle criminal matters, criminal law must be something less than wholly respectable, and those who engage in it must be something less than wholly reputable. Against that view I take my stand. No part of a lawyer's function is greater than to safeguard individual freedom. Never is he engaged in a nobler task than when he exerts his talents in the cause of the liberty, and indeed the very life, of the subject. The tradition in England in quite different. There leading civil counsel can be engaged in murder cases most sordid and unsavoury in character--without the slightest impairment to their reputation. Indeed, they may even be knighted therefore.

May I refer to one or two of the basic principles of a criminal trial. Surely primacy must go to the "golden rule" of criminal law--the presumption of innocence. When the accused steps into the dock, he does so under the protection of that presumption. He does not have to prove his innocence, or demonstrate it, or establish it. The onus of proof does not rest upon the accused. It rests upon the Crown from the beginning to the end of the case.

What I have referred to is a great common law rule. But I would be giving an incomplete picture if I did not call attention to the fact that from time to time, statutory inroads have been made upon that presumption. That is to say, by statute the onus of proof of certain matters has been placed upon the accused. Justification for this departure from a basic principle enshrined by honourable tradition has been sought on various grounds. One ground is that proof of a particular type of defence may be relatively easy for an accused, whereas proof of guilt on that point might be exceedingly difficult for the Crown. I am prepared to admit that there are instances in which the departure may well be defended on that ground. The danger, however, is that in the interests of expediency and departmental convenience, a basic human right may more and more be diluted and impaired.

I would have liked to address myself to this theme in somewhat greater detail. But it happens that in my Province, a committee of the legislature has been considering this precise question of the onus sections in statutes relating to so-called provincial offences. I understand that its report will soon be submitted, and it may well be the occasion of political debate. Hence, it would be inappropriate for me to say more than I have already said. So you will not have the benefit of my extended views on this theme. I am sure that's a disappointment which, if you cannot accept with equanimity, you will at least try to bear with fortitude.

I will now touch upon certain principles relating to evidence in criminal matters. Here we come face to face with the fact that law is often an accommodation or a compromise between contending principles. Why, for example, do we say that a wife's evidence (with certain exceptions) should not be used against her husband? Is it because the Courts do not seek the truth? By no means. It is eminently desirable that the Court should have before it all the available evidence. That is one principle. But there are other principles as well, one of which is assuredly the sanctity of the marriage relationship. There is something shocking to our moral sense that a wife be required to testify against her husband. So the law says, rather than this should happen, it's better to close the case without all the available evidence being put on the record. As someone said, we place a ceiling price on truth. It is glorious to possess, but not at an unlimited cost.

Take the matter of a confession by an accused person. Its admissibility is conditioned by certain requirements and protected by certain safeguards. These have their origin in two things--the one, the possibility of an abuse of police power; the other, the privilege of every person against self-incrimination. In this country, the third degree is, I trust, unknown. A confession obtained thereby would be instantly rejected by the Court. But it is well to remind ourselves that in the development of English law, even this victory was not easily won. For until Felton's case in 1628, torture was accepted as a legitimate method of extracting confessions. Felton had murdered the Duke of Buckingham. Who had incited him? To procure the answer to this question, the Council brought Felton before them. Dr. Laud, Bishop of London, said that if he would not confess, he would have to go to the rack. Felton thereupon replied that,

If it must be so he could not tell whom he might nominate in the extremity of torture, and if what he should say then must go for truth, he could not tell which of their Lordships he might name, for torture might draw unexpected things from him.

This reply somewhat disturbed the Council, and they sought the advice of the judges. The judges were unanimous that Felton ought not to be tortured by the rack, "for no such punishment is known or allowed by our law."

Today, a statement made by an accused person to the police, will not be admitted against him unless the Crown establishes that such statement was voluntary-that is to say, that it was not induced either by fear of prejudice or hope of advantage. Nor is the Court blind to the fact that pressure need not be physical. It recognizes that coercion may be psychological. An atmosphere of pressure and coercion may in some cases be enough to cause the rejection of a statement.

A feature of criminal trials-and indeed of civil cases as well--is that they are held in open Court. It is amazing how often lawyers will be asked whether a certain trial will be open to the public. With very limited exceptions, all trials are open to the public. Publicity is the authentic hallmark of judicial procedure.

Back in the '30's in Alberta, a divorce case brought by a Minister of the Crown against his wife, was heard by the Judge in the Judge's library during the lunch hour. No member of the public was present. Indeed, access to the Judge's library could be had only through a door off the main corridor, and on this door was the word "Private". The attack on the divorce decree granted in that case went all the way to the Privy Council, which took the view that here was a denial of the fundamental principle of trial in open Court. The Judge had placed himself where the public could not find him, and if they did find him, they would be deterred from entering by reason of the word "Private" on the door. The Privy Council said that a divorce decree so obtained was voidable and could be set aside.

Growing out of the requirement of trial in open Court, is the right of the press and other agencies of public communication to have access to the Courts and to report its proceedings fairly and accurately. An independent judiciary and a free press are both indispensable to a free society. But, as has been said, they do not always pull in the same direction. Hence, certain restrictions on the press arise.

If, for example, a newspaper comment on a pending case, may tend to influence a jury or is calculated to prejudice the fair hearing of a trial, contempt may arise. I think I can say that Courts exercise with reserve and caution their right to punish for contempts of this kind, except in flagrant cases. Nor is every comment to be regarded as objectionable. Lord Atkin said: "Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, though outspoken, comments of ordinary men."

One type of comment is now expressly forbidden. In 1959, our Criminal Code was amended to forbid the publication, by broadcast or in a newspaper, of any confession tendered in evidence at a preliminary enquiry. You will understand, I know, that the admissibility of such a confession has to be determined later by the trial Judge. Only if he rules it to be voluntary will he allow the jury to hear it. But what if the confession has already been published in the press in connection with the report of the preliminary enquiry? Is there not a real danger that one or more jurymen may have read it, and having read it be influenced thereby? It was to guard against that kind of mischief that the 1959 amendment was introduced, and although newspaper men may possibly regret the restraint this places on their activities, I for one applaud the amendment. It is in keeping with the best traditions of criminal jurisprudence. I feel that I should add that trial by newspaper-a phenomenon not unknown elsewhere-is not a feature of the Canadian judicial scene. In their relations with the Courts, our media of public information tend to discharge their function with fairness and with a sense of responsibility.

I move on to a different aspect of my profession. It concerns the relationship of Courts to administrative tribunals--such as Labour Boards, Workmen's Compensation Boards, Milk Control Boards, and the like. I do not have to remind you that these tribunals from time to time make decisions which affect the rights of individuals and of groups. On matters of administration or of policy, the tribunal is sovereign. But whenever it exercises a quasi-judicial function, it must act judicially--that is to say, it must hear both sides fairly; it must adhere to the principles of natural justice; and it must keep strictly within the confines of its statutory jurisdiction. If there is a failure to observe these requirements, the decision of the Board may be quashed by the Court, which in such circumstances exercises a power of supervision and review. I am aware that judicial intervention is often resented by Boards and tribunals. I am aware, too, of the charge that sometimes Courts have intervened when there were no substantial or proper grounds for intervention; and I am prepared to concede that isolated instances of such cases may be found. But surely, on balance, the case for some form of judicial review, as a check upon power usurped or power abused, is unassailable. The rule of law under an impartial and independent judiciary is still the badge of a free people.

In these days when the executive area of government is so large, the Courts have a vital role to play in protecting the individual against the abuse of administrative discretion. I think in this connection of the great dissenting judgment of Lord Atkin in the case of Liversidge vs. Anderson. That was a wartime case in England. Under the English Defence Regulations, the Secretary of State, if he had reasonable cause to believe that a person was of hostile associations, could order him to be detained. This was in May, 1940. We remember that period, and some of the panic reactions that occurred at that time. Liversidge was so detained, and by reason of his detention, he brought action against Sir John Anderson, the Secretary of State. The issue before the Court was simply this: was it enough for the Secretary of State to say that he had reasonable grounds to believe? Or did reasonable grounds in fact have to exist? Was a subjective test sufficient, or did objective facts have to be present to warrant the belief? The majority of the Court said that the subjective test was enough, and that if the Secretary of State said he had reasonable grounds, that ended the matter and the Court could not intervene. Hear now Lord Atkin:

It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the Judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive act is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles 1.

That was a dissenting judgment. It has been said that the dissenter, knowing that the present cause is lost, speaks to the future. I am glad to say that in 1950 the Privy Council, dealing with a statute which used the phrase, "Where the controller has reasonable grounds to believe", applied Lord Atkin's objective test and said that reasonable grounds must, in fact, exist to limit the exercise of an otherwise arbitrary power. So, at least in peacetime, the sovereignty of the Courts over an arbitrary executive was asserted.

Allow me to say that in the field of human rights and civil liberty, the recent record of our Supreme Court of Canada stands out in shining splendour. I don't know if it is altogether realized that in the last decade or so, there have been a succession of significant decisions in these fields. Curiously enough, some of these relate to the Jehovah's Witnesses. You know, it's an easy thing to grant the traditional personal freedoms to those who think as the majority do. The test of a nation is to be found in its attitude toward the dissenter, toward those whose views-political, religious or economic-challenge the accepted ways of thought. That's why Saumur vs. the City of Quebec, with its emphasis on religious freedom, is so important. That's why Switzman vs. Eibling which declared the Quebec Padlock Law to be unconstitutional, is a landmark. That's why Roncarelli vs. Duplessis must not be forgotten. Let's pause on that for a moment. Roncarelli goes bail for Jehovah's Witnesses. The then Premier of Quebec directs the Liquor Commission to cancel his tavern license. Roncarelli sues, and the Supreme Court of Canada says the Premier must be held accountable for this abuse of power.

Long years ago in 1612, to King James I, who was asserting the divine right of kings, Chief Justice Coke said that "The King ought not to be under any man, but the king was under God and the law." Kings and premiers--and all who sit in the seats of the mighty are indeed under the law. Whenever the despot, be he king claiming divine right or state asserting arbitrary powers, makes attack on liberty, it is the judicial process which stands forth as the shield and the safeguard of the freedom of the individual. In a free society, the courtroom, no less than Parliament itself, remains the citadel and the sanctuary of our democratic faith.

I must bring my remarks to a close. This has been a testament of faith by one who has a reverence for his profession, who esteems the role that can be played by Bench and Bar.

"Four things," said Socrates, "belong to a Judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially." No ideal can be higher for any man who occupies judicial office.

Nor do I underestimate the role of the lawyer and the function of advocacy. There is a belief that every judge, from the moment he is appointed to the Bench, moves steadily to the conviction that the practice of law has greatly deteriorated from the time when he practised at the Bar. That is not a point of view that I share. Whenever I think of advocacy at its best, I am reminded of an ancient legend concerning a stern, just king who was known for the rigidity and impartiality with which he administered the law of the land. One day this king's son became technically guilty of an offence for which the punishment was death-death by having a huge rock thrown upon one's head. Everyone wondered whether the king would apply the law in this case, particularly because the son's offence was entirely technical in its nature. As the day of execution approached, the king's soul was torn with anguish, and he came to one of his wise councellors and placed the problem before him. Thereupon the wise man said to the king, "Grind the rock into dust of finest powder and let it fall gently upon his head."

Sometimes when one is in Court, a case is presented in such a dull, heavy, ponderous manner, that the effect indeed is like the rock descending upon the head. What a delight it is then to hear the advocate who says only what should be said, who omits what should not be said, and who without sacrificing any of the solid substance of his case, presents it so that it is received in that welcome and agreeable way which is the mark of the great men of my profession.

If any young man should ask me whether I would recommend law as a profession, I would tell him that if he sought rewards of great wealth, the law was not its best source; that if he expected an easy life, unmarked by study and toil, the law was not for him; that if he expected complete mastery of his field, it could not be accomplished in law for there, perhaps more than anywhere else, what one knows is always so measurably less than what needs to be known, performance lags behind aspiration, and man's portion is the road and not the goal. But to travel that road, on which great men of a great profession have travelled before him -Mansfield and Story and Jessel, Marshall and Holmes and Cardozo, Erskine and Marshall Hall and Clarence Darrow--can be a stimulation, an enrichment, and a high and satisfying adventure.

THANKS OF THE MEETING were expressed by Mr. H. Allan Leal, Q.C.