Graduation Address

"The Bench: Some of its Trials and Tribulations in a Changing World" (21 October 1971). (UA Case 69, Box 1)

Votre Honneur, Mr. Chancellor, Mr. President, fellow graduates, Mesdames, Mesdemoiselles, messieurs. It is quite impossible for me adequately to express my innermost reaction to the great honour bestowed upon me by the University of New Brunswick. I am sure that my fellow honorary graduates share my feelings, although, perhaps, I may have additional reasons for being even prouder of the occasion.

Forty-one years ago, I was called to the Bar of the Province of Quebec without first having obtained a law degree. I had attended lectures on a part-time basis and successfully passed semestral examinations at Laval University, Quebec. But, because I was unable to follow the regular three year law course, formal academic recognition was not available. Those were the days when strict attendance at lectures was an essential requirement.

Modern students, a minority of whom seem unhappy just about practically everything, and would rather agitate than acquire an education, while relying on help from home or the State to pursue their favorite pastime, cannot visualize the true meaning of privation. In 1928, there were very few scholarships, no student allowances, no Youth opportunity programmes, and one was expected to "work one’s way through college," performing all sorts of jobs – if one could find any – mostly for a pittance.

However, I was fortunate enough to indenture successfully with two prominent lawyers, one of whom remunerated quite liberally my services as a bookkeeper, notwithstanding my somewhat hazy knowledge of accounting…Thanks to the indulgence, understanding and patience of this great man, who was to become Prime Minister of Canada, I managed to acquire a valuable insight into the practical side of the profession, while getting acquainted with civil and criminal law and procedure with the help of the Faculty.

Reçu au Barreau peu de mois après le "krach" de 1929, à l’aube d’une série d’années noires, au cours desquelles rien ne pouvait faire prévoir le revirement économique qui devait s’opérer lentement d’abord, puis avec une rapidité presque fulgurante dès avant la deuxième guerre mondiale, je n’osais pas croire qu’il serait jamais possible à ceux de ma génération de faire autre chose que de vivoter. En effet, la concurrence était très grande, les clients peu nombreux et très peu fortunes, au point qu’il nous arrivait souvent de poursuivre des insolvables au nom d’autres insolvable…

Cependant, grâce à ma connaissance de l‘anglais (à Montréal qu’on appelait alors "la deuxième ville français" du monde!), les rentrées se firent de plus en plus intéressantes; les ouvertures se décuplèrent; et finalement, comme d’autres, je fus emporté par le tourbillon de cette course effrénée que constitue l’exercice de la profession d’avocat dans un grand centre métropolitain.

Favourable circumstances, such as my appointment as a Crown Attorney, permitted me to start going to court at an early age and to plead cases often with a modicum of preparation against prominent barristers. This helped me to "think on my feet" and to develop a fighting spirit which I may not have completely lost…

Mais, fatigue du quotidian écrasant, sans rémission; désireux de mieux connaitre ma famille et mes enfants; et espérant accéder à un palier où la tranquillité succéderait à la fièvre du prétoire, je ne fus pas peu fier lorsque le gouvernement de mon pays m’appela à la magistrature.

I considered my appointment to a judgeship as an opening to a new career in a hallowed environment giving me the opportunity to render justice while applying the law.

But, when the euphoria of the first few months had dissipated, and some of the implications of my accession to the Bench started to sink in, I came to an early conclusion, namely that, although it is perhaps more tiring to practice law, yet it not quite as difficult as to hear cases, take them under advisement and render judgement sometimes after agonizing appraisals and reappraisals. A judge’s onerous task rarely does end at the close of the trial.

"We call him His Honour to remind us of our own," wrote an anonymous American author, who adds these profound thoughts to a forceful introduction:

At home he’s a man much like the rest of us. He plays with his children, frowns over his bills, reads his newspapers, discusses the weather with the neighbours.

But in the morning, when he goes to work, he puts on a plain black robe and becomes something bigger than himself.

Now his difficult work begins. People talk to him – arguers all; attackers and defenders, each believing that he alone is right. Feelings run high, voices are raised, tempers are lost, manners are forgotten but not by the Judge. He is a soother of tempers, a referee among fighters, a cool guardian of the rules. He is the protector of both sides and the partisan of neither. Both sides hope to sway him, and hope even more that he cannot be swayed.

What does he think about, sitting high and lonely at the Bench? Is it only the law, or is there something else? Maybe he remembers, within some deeper part of his mind, that all the laws written in his big books are different ways of saying one simple thing: We, the people, want fair play for every man. Maybe that is what keeps him strong and clear and calm while the angry argument swirls around him.

Confined in a sort of an ivory tower, which precludes any prolonged or sustained social contact with former learned friends, a member of the judiciary is deprived of the right to vote; cannot be heard on radio or television; may not express any opinion in the newspapers; and, at all times is required to steer clear of any involvement. Although, in former years, he could expect that his judgments might be reviewed solely by an Appeal Court, he may not any more (at least in my province) hope for immunity against unwarranted attacks by litigants, activists, and even politicians. Yet, he must never yield to public or private pressure, never lose sight of the importance of preserving the Court’s independence, which has been enshrined in the Constitution, but which is now being subjected to a conspiracy of destructive forces.

Howling dervishes keep growling behind his back with the benevolent help of the mass media, knowing full well that he cannot answer their aspersions and their lies, nor repulse their libelous and slanderous assertions.

Rapid developments, since the end of Word War II, have materially altered the relationship between litigants, lawyers and the Bench.

Whether or not this was due to a creeping influence from below the border, the functions of the judiciary, for the past six or seven years, have suffered a radical change of pace and environment.

On the civil side, of course, trials still take place with little fanfare and the audience is generally rather meager and meek except, perhaps, in the practice division of our Court, when writs of prerogative or injunctions are being sought.

In labour matters especially, we are now frequently taken to task for issuing injunctions when not other remedy applies, with a view to trying to induce peaceful picketing or the fulfillment of a genuine collective labour agreement on the part of union members, who, sometimes, feel a little too "enthusiastic" and are prone to desecrate private or even public property, in order to press their demands or pursue illegal strikes, which they call “study sessions”! Moreover, Court orders are often laughed at in spite of the threat of legal sanctions.

Lately, well known labour organizers have even had the audacity to contend, in the course of press and TV conferences, that judges were conspiring with the "bosses" to stamp out unionism in Canada!

Horrendous as this falsehood may be, it has gone unchallenged because we can’t take up the cudgels, and because of the increasing erosion of the only real effective weapon in the hands of the court, namely, holding a person in contempt. The main reason for the frustration which we are presently experiencing in this sphere; for the mounting heap of abuse which we are being subjected to (and which Appeal Courts do not often appreciate because such "happenings" hardly ever mar hearings in High Places) is the tragic misunderstanding on the part of the public of what "contempt" stands for.

Mr. Justice Bora Laskin, of the Supreme Court of Canada, clearly outlined the pith and substance of the matter in MCKEOWN v. THE QUEEN, at pages 456 and following of the 1971 Reports. I quote:

"Contempt of Court" is well known in the vocabulary of the law. It is also well known that it is not a phrase to be taken literally in any sense of being concerned with protection of the personal dignity of the judge or the honour of the Court. It is rather a sanction to serve the administration of justice in the public interest."

And he continues, referring to Blackstone’s Commentaries:

Contempt in the face of the Court is, in my view, distinguished from contempt not in its face on the footing that all the circumstances of the alleged contempt are in the personal knowledge of the Court. The presiding judge can then deal summarily with the matter without embarrassment of having to be a witness to issues of fact which may be in dispute because of events occurring outside…

Whoever feels, ladies and gentlemen, that a judge is a "party" in such proceedings is therefore sadly mistaken. It is only to ensure the absolute protection of litigant and the unfettered administration of justice that this proceeding must be resorted to, always sparingly and with great caution.

In the criminal courts of the United States, we have witnessed such infamous trials are that of Charles Manson and his so-called "family" or of the Chicago Seven wherein repeatedly, systematically and with malice aforethought, abuse and insults, couched in obscene or scatological language, were hurled at the presiding judge, as an avowedly tactical harassment by defendants and attorneys bent on annihilating society by first destroying the courts.

Even in Canada, not only activist lawyers but some elected representatives of the people did cast aspersions on defenseless judges. "We must realize," said Mr. Frank Howard, in a recent House of Commons debate, "that we do not necessarily get justice or truth from a court. The court is not primarily seeking the truth in cases before it, but seeking to accept that which might be credible. Credibility of witnesses and credibility of cases do not always marry completely with truth and justice. With that attitude towards our court system and criminal law, people do not always obtain justice in the courts of this land."

And he continued:

The matter of money is also involved. It has been mentioned in this House by gentlemen who are learned in the law and have appeared before the courts that a rich person appearing before the court receives on type of consideration. A poor person will likely receive another type of justice. In other words, the amount of money which the individual has bears directly on the action that the court is likely to take on a particular case.

If ever there was an unjust and unjustified statement, this is it!

No doubt some persons may have suffered slight disadvantage on the ground of poverty. No doubt "a high percentage of the people who appear in the criminal courts for the first time are 'poor, frightened and bewildered'." But every judge, worthy of the name and the calling, is aware of this and will normally, instinctively provide every possible assistance. Undefended accused, who are getting fewer every day now that legal aid fortunately is increasing everywhere by leaps and bounds, will see the Bench leaning over backward to provide them with very valuable help. I have witnessed persons whose guilt, in my opinion, could hardly stand the test of a reasonable doubt, being acquitted by juries over which I or some of my brother judges presided because we may have been too effective in indirectly assuming the case for the Defence!

"I believe we in Canada have one of the finest judiciaries of the world," exclaimed parliamentarian Eldon Woolliams in the course of the same debate. And I hasten, without shame, compunction or apology, to confirm and corroborate this statement.

During my twenty-five years of practice as a lawyer, whether in the criminal or the civil courts, I have always regarded the Bench as a sort of priesthood or ministry.

I am not alone of the opinion that the incorruptibility, the unapproachability, whence stem the independence of the judiciary, are the pillars of our democratic institutions.

Dictators the world over, whether from the right or from the left, have understood this so well that their first move, after taking power by force, has always been to establish puppet tribunals whose only real function is to implement commands received from the Head of State. Any judgment which might be susceptible of diminishing the power of the dictator would immediately be branded as a treasonable act and its author punished accordingly.

Je n’oublierai jamais l’émotion que j’ai ressentie lorsque, vers la fin de la guerre, à la séance d’ouverture de la Cour Supérieure, à Montréal, Me Henri Torrès, délégué du Barreau de Paris, héros de la Résistance, vint nous dire, avec des sanglots dans la voix, combine nous étions chanceux, nous, de participer à la belle tradition britannique selon laquelle "the British Navy was built chiefly to protect the integrity of the Court of Queen’s Bench."

It may be difficult for some to believe that judges can be as independent and as untainted as they all are, especially in Canada.

Recent surveys in my own province have shown that a not insignificant number of people seem convinced that judges can be bribed or at least "influenced." Well, a certain class of people will never believe in the honesty of their fellowmen. The doubting Thomases are precisely those who might not remain straight under similar strains and circumstances. In this day and age, where practically everything that is noble, high principled, dispassionate, is laughed at by many as unattainable; when innocent people are kidnapped and held as hostages; when blackmail is systematically organized and practiced on a large scale by so-called pressure groups, who will not comply with anything but their own instincts, and react as if they thought they were always right; the genuineness, the efficiency and the purity of the rule of law are often decried and challenged. Yet, as William Pitt said: "Where law ends, tyranny begins."

Il est triste de constater que, depuis quelques années, l’on s’éloigne progressivement, en certains milieux soi-disant intellectuels surtout, du concept de la justice, de ‘léquité et du droit, conquis et établi de haute lutte par no pères. La raison du plus fort, le mépris du droit des gens, s’érigent en principe aux mains d’activistes anarchisants. Et si cette progression continue de s’accentuer, nous retournerons fatalement à la loi de la jungle: la force, la violence et l’injustice primeront le droit.

It is quite remarkable that many of those who proudly proclaim that they are "libertarians," often times are the most ardent partisans of
"power at any price" for their totalitarian political friends. They will come to Court merely to insult judges and disrupt proceedings. Their lawyer friends (who could be classified as accomplices rather than attorneys of the accused) and who specialize in press and TV conferences to prolong their attacks against the Bench, conduct themselves as uncouth rogues. But those who bear the brunt of such unspeakable deportment are expected to remain silent and to render justice notwithstanding.

Let me assure you, Sir, ladies and gentlemen, that his is the most trying test that I, for one, have ever had to meet face to face!

The Chief Justice of the United States recently said at the opening session of the American Law Institute:

Today more and more new and vexing problems reach the courts, and they call for the highest order of thoughtful exploration and careful study. Yet all too often, overzealous advocates seem to think that zeal and effectiveness of a lawyer depends on how thoroughly he can disrupt the proceedings or how loud he can shout or how close he can come to insulting all those he encounters – including the judges.

This seems to mean in today’s contest – at least to some – that rules of evidence, canons of ethics and codes to professional conduct – the necessity for civility – all become irrelevant.

With all deference, I submit that lawyers, who know how to think but have not learned how to behave, are a menace and a liability, not an asset, to the administration of justice.

And finally,

Lawyers, judges and law professors must see that an undisciplined and unregulated profession will destroy itself, will fail in its mission, and will not restore public confidence in the profession.

The irony of it all is that those who wish to exercise violence against what they call the "establishment" or the "system"; those how crave wantonly to destroy, without ever thinking of building something as an alternative, insist on claiming that violence does not originate with them, but that it is imposed by a society with which they are at odds.

If such an individual or collective twisting of the mind can be erected as a barricade against law and order, what are we heading for?

En septembre 1970, le Juge en Chef du Canada, dans une remarquable allocution lors de l’ouverture de la Cour Supérieure à Montréal, disait ceci:

Depuis une dizaine d’années, de nouveaux événements, et ceux-là d’un autre ordre, sont venus assombrir le panorama d’un monde qu’on voudrait meilleur. C’est qu’un groupe de la société, peu nombreux peut-être, mais agissant, met en question, sans rien offrir de constructif, les institutions les plus indispensables au maintien de l’ordre, de la paix et de la justice. On confond la licence pour la liberté, la force pour le droit, et pour satisfaire à des griefs parfois obscurs, on cherche la justice de la rue et non celle du Palais. Le destruction des biens, et parfois de vies humaines, est devenue le moyen de choix pour attiendre un objectif souvent inavouable. En certains coins du monde, la violence prend meme le visage d’un culte.

The trials and tribulations of the Bench in this Twentieth Century, which, according to overenthusiastic prophets, was meant to be the century of enlightenment, are probably the hardest, the most harrowing and frustrating ever experience in the long history of the administration of justice.

Nevertheless, we shall not falter! In spite of all the disconcerting happenings of recent dates; in spite of lawlessness on the part of what I would term the lunatic fringe of our society, the rule of law, protected by the firmness of an independent judiciary, will eventually prevail because nothing of value has ever been found to replace it in a truly civilized world.