I’ve been distracted today by a book that arrived in the morning mail: Frederick Vaughan, Viscount Haldane: ‘The Wicked Step-father of the Canadian Constitution’ (Toronto: Osgoode Society for Canadian Legal History / University of Toronto Press, 2010)(LAC Amicus no. 38031823)(UTP pid no. 2758). For those not familiar with the name, this is from pages xv and xvi of the introduction:
It is fair to say that no jurist in our history has received so much learned abuse as Viscount Haldane of Cloan. Twenty years after his death, he received a scholarly tongue-lashing from the late chief justice Bora Laskin, who, at the time of his writing, was Canada’s leading constitutional scholar. Laskin criticized Haldane for confining the ‘Peace, Order and good Government’ clause of the constitution of 1867 to times of national emergency. The criticisms of Haldane’s work on the Judicial Committee have continued to run deep throughout the literature and lingered for decades. When Laskin was appointed to the Supreme Court of Canada in March 1970, Frank Scott, an old friend of many years and at the time dean of law at McGill, wrote to the new judge and said that his appointment was the ‘best news since [he learned of] the death of Lord Haldane.’ Since Haldane had died in 1928, forty-two years before Laskin’s appointment, Scott, clearly, had waited a long time for good news. In his response to Scott’s congratulatory note, Laskin reminded him that ‘Haldane’s legacy need not imprison Canadians forever.’
I suppose we should wait and see how Canada turns out before we jump to any conclusions. Meanwhile, it would be an interesting exercise to try to compile a list of the most polarizing figures in Canadian constitutional history. Lord Durham, Pierre Trudeau, Pitt the Elder. Haldane would surely find a place in most such lists.
This won’t be a full book review but, for what it’s worth, my first impression is that this is a well-researched, well-documented contribution to the literature on Haldane. The work that Vaughan has done on Hegel’s influence on Haldane’s thought is particularly original and enlightening. No, my task today is just to give Vaughan one of those inconsequential, but annoying, Damn.-How-did-I-miss-that? moments. On pages 56 to 58, Vaughan tells the story, taken from some of Haldane’s manuscript ‘Memories’ of 1917, of one of the first cases in which Haldane assisted Horace Davey. This was Reed v. Quebec (Attorney General) (1884), 10 App.Cas. 141 (Justis),  J.C.J. No. 1, 1884 CarswellQue 11. On page 58, Vaughan writes:
As he was enjoying the afterglow of his first major court victory in the privacy of his garret, who should climb the narrow staircase leading to his chambers but the venerable Freshfields solicitor Mr John Wiseman himself. ‘He said that the partners had read the shorthand note of the brief argument at the Privy Council and now sent me a brief for the Province of Ontario in a great case … This particular brief was marked 150 guineas, and it introduced me to many Canadian cases over here.’ Unfortunately, there is no record in the law reports of Richard Haldane conducting an Ontario case before the Judicial Committee during these early years at the bar.
The case Haldane was thinking of can’t be found in the law reports, but it was a big case all the same. It was the Ontario-Manitoba boundary reference. A verbatim transcript of the proceedings in the Privy Council (argued July 15-24, 1884) was published by the Ontario Legislature in the Sessional Papers, 1889, 6th Legislature, 3rd Session, Vol. 21, Pt. 6, No. 60 (archives.org), and later reprinted in John P. MacDonell, ed., The Ontario Boundary Controversy: Legal and Constitutional, Political and Historical (Toronto: Carswell, 1896)(archives.org). We see here that the Ontario team consisted of Mowat, Scoble (obituary in The Times, Wednesday, Jan 19, 1916, page 4), Mills, and Haldane. The only other reference in the proceedings to Haldane, found here, was in the following exchange:
Mr. MOWAT–As the case is a very important one, I wish to ask whether your Lordships would allow Mr. Haldane, who is with me, to make a few observations upon this point?
The LORD CHANCELLOR–Three counsel?
Mr. MOWAT–Of course it would be a matter of grace and favour if he is heard.
The LORD CHANCELLOR–We cannot make a precedent of hearing three counsel. I have no doubt Mr. Haldane would give us useful and great assistance, but it would be a dangerous precedent.
Nothing very important in this, really, but it answers the question whether Haldane had just imagined being involved in such a case.