Today

Thursday Thinkpiece: When Canadian Courts Cite the Major Philosophers–Who Cites Whom in Canadian Caselaw

Periodically on Thursdays, we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

When Canadian Courts Cite the Major Philosophers: Who Cites Whom in Canadian Caselaw

Queen’s University Legal Research Paper No. 2017-090; CLLR 42:2

Nancy McCormack is an Associate Professor and Law Librarian at Queen’s University. She has authored and co-authored numerous books including the How to Understand Statutes and Regulations, Annotated Federal Interpretation Act, The Practical Guide to Canadian Legal Research, Introduction to the Law and Legal System of Canada, and Updating Statutes and Regulations for all Canadian Jurisdictions.

Excerpt: Abstract, Introduction, highlights from Discussion, and Conclusion

Abstract

This paper discusses the results of a search of Canadian case law from 1860 to 2016 to determine which major philosophers (born before 1900) were cited most and least often (or never), as well as which judges and courts cited them. The survey indicates that judges from every level of the Canadian courts have, over the years, made explicit references to major philosophic figures in their decisions. Many of the citations deal with eminently practical matters, but the courts have also thought it beneficial to call upon the philosophers for a variety of more strictly “philosophic” notions, for example, Thomas Aquinas on the doctrine of free will, and Bertrand Russell on logical constructions. Who cites whom and in what context and jurisdiction is set out in detail.

You can’t do without philosophy, since everything has its hidden meaning which we must know.
Maxim Gorky

There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals.
Benjamin N. Cardozo

Introduction

Professor of Jurisprudence, Brian Leiter,[1] argues that even though economics, psychology, and history play a large role in the study of law today, philosophy has been an integral part of the academic discipline for a much longer time. At the University of Chicago where Leiter works, for example, a course on “Jurisprudence” (the philosophy of law) was amongst the small group of courses offered in the year the university’s law school opened more than a century ago. Leiter also notes that, during the 1930s, the University of Chicago hired, as one of its new faculty members, a PhD in Philosophy even though he lacked a degree in law. Clearly, the implication was that someone well versed in Philosophy could, even without legal training, find his way in the discipline of law.

To anyone for whom the centrality of philosophy to law might seem puzzling, Leiter explains,

Law is, first and foremost, a discursive discipline: lawyers and judges live in the domain of reasons and meanings. We interpret statutes and cases, articulate rules to guide behavior, and then argue about their import in particular cases. Judges write opinions, in which they give reasons for their conclusions. Lawyers offer arguments to persuade judges. Even lawyers who never argue cases in court still deal continuously with rules, their meanings and entailments.[2]

Law’s key teaching method–“the Socratic method”–has, of course, its origins in philosophy. Leiter notes, too, that Jurisprudence is a mandatory course for law students at Oxford and certain other British law schools as well as for most students studying Law in Europe and South America. In the U.S., at the University of Chicago, 10% of the first year class in 2015 either majored in Philosophy or had an advanced degree in the discipline.[3] Law professors across the U.S. have discussed the idea of making the subject a mandatory course.[4] Also, a number of legal journals [5] are devoted exclusively to publishing scholarly articles on the subject of law and philosophy.

The affinities between the two, says Leiter, are deep. Both disciplines are about thinking (although some claim that philosophy involves thinking in slow motion while lawyering is thinking at top speed). Law has developed in large part due to philosophical inquiry, and the study of philosophy remains just as relevant today. As Leiter explains, his students, over decades of teaching have found jurisprudence to be “one of the most ‘practical’ of courses, not because it taught them legal rules, but because it helped them understand legal reasoning and how judges decide cases, as well as bringing out into the open the implicit jurisprudential premises of both jurists and scholars.”[6]

In Canada, this connection between philosophy and law is borne out by the biographies of certain adjudicators. Supreme Court Justice William R. McIntyre, for example, was said to have been profoundly influenced by a jurisprudence course he took while studying law at Saskatchewan. The course in question covered the history of Western legal thought and philosophers such as Plato, Aquinas, Hobbes, and Mill. It gave McIntyre a life-long interest in the subject in general and a particular fondness for Kant’s Critique of Pure Reason.[7]

Given this deep affinity between philosophy and law, one might expect to see explicit references to the major philosophers in the decisions written by judges.[8] This study discusses the extent to which this is true. It looks at which philosophers are cited by the courts, the specific judges who cite them most, and the context in which they are cited. The results of the study indicate that the ideas and language of many of the major philosophers appear in caselaw at every level in the Canadian courts. However, the philosophers referred to most frequently, and the contexts in which they arise may surprise some readers.

Discussion

Areas of Law in which Philosophers are Cited

In Law’s Empire, Ronald Dworkin writes that in “constitutional theory philosophy is closer to the surface of the argument, and, if the theory is good, explicit in it.” In Canada, Southin J. in the British Columbia Supreme Court noted in 1986 that “the proclamation of the Charter [of Rights and Freedoms] by a process worthy of an alchemist, has transformed judges from lawyers into philosopher kings…”[21] In light of these views, one might expect that the explicit mention of philosophers would occur most frequently in the context of constitutional law.

What this study indicates, however, is that judges cited philosophers most often in criminal cases,[22] and only secondly in constitutional law cases.[23] Quantitatively, the third largest category was in “Civil Practice and Procedure”.[24] To assess the area of law for each case, the main subject heading assigned to each case by Carswell was used.

Major Philosophers Most Often Cited

…it is not for the judiciary to permit the doctrine of utilitarianism to be used as a makeweight in the scales of justice…
Stephens v. Richmond Hill (Village), [1955] 4 D.L.R. 572, [1955] O.R. 806 (Ont. HCJ)

In Canadian case law, two Modern philosophers–specifically, two Utilitarians–John Stuart Mill and Jeremy Bentham, are overwhelmingly the most cited.

Major Philosophers rarely or never cited

Heraclitus, Parmenides, Empedocles, Anaxagoras, Protagoras, Epicurus, Zeno of Citium, Plotinus, Epictetus, Gregory the Great, John the Scot, Avicenna, Averroes, Roger Bacon, John Calvin, Baruch Spinoza, George Berkeley, Henri Bergson, Alfred North Whitehead and Søren Kierkegaard, all named in that earlier list of major philosophers, fill that bill. In the Canadian courts, they have neither been directly quoted nor had their ideas discussed even if mentioned by name.

Other important philosophic figures appear only once or twice in Canadian case law, giving their authority to specific matters facing the court, such as: imprecise language (Confucius); secular involvement in religious disputes (Maimonides); and the suitability of individuals to be called to the bar (Karl Marx).

Confucius, for example, is cited only once, for his views on language. Justice L’Heureux-Dubé invokes his name in the Supreme Court of Canada’s R. v. Nette.[67] The case involved the rephrasing of the standard of causation for culpable homicide set out in R. v. Smithers.[68] Dickson J. (as he then was) had described culpable homicide as “a contributing cause of death, outside the de minimis range.”[69] Lambert J.A., in the B.C. Court of Appeal’s ruling in R. v. Nette,[70] in an effort to avoid the Latin expression, described the Smithers standard as “a contributing cause that is not trivial or insignificant.”[71] Justice Arbour noted that, in explaining the standard to a jury, it might be preferable to re-word the standard of causation using positive terms, for example, a phrase such as a “‘significant contributing cause’ rather than using expressions phrased in the negative such as ‘not a trivial cause’ or ‘not insignificant’. Latin terms such as ‘de minimis’ are rarely helpful.”[72]

Justice L’Heureux-Dubé, however, did not agree that an expression stated in the positive (i.e., a “significant contributing cause”) meant the same thing as one stated in the negative (i.e., “not a trivial cause”). Language, she commented “is the outward sign of our legal reasoning. The words we use provide a filter through which we view and acknowledge legal concepts.” Citing a book on language and the law, she explained that Chinese philosopher Confucius: “When asked what he would do first if invited to administer a country…replied: ‘It would certainly be to correct language'” (p. 8). Confucius added: “If language be not in accordance with the truth of things, affairs cannot be carried on to success”.[73] The differences between the various phrasings were substantive, Justice L’Heureux-Dube concluded; they were not merely matters of semantics as the majority of the court believed.

Maimonides, the influential medieval Jewish philosopher, is also cited only once in Canadian case law, a divorce case in 1973, Morris v. Morris,[74] which involved orthodox Jews. The wife had applied to the Manitoba Queen’s Bench for an order of mandamus requiring her husband, from whom she had been legally divorced, to deliver a “Get” (a bill of divorcement required by the Orthodox Jewish faith in order to spiritually recognize the dissolution of the marriage). The wife in this case wished to remarry according to traditional Jewish practices, but the ex-husband was uncooperative. A rabbinical court which examined the situation had concluded that there must be a religious divorce before she could remarry.

The problem, according to Wilson, J., of the Manitoba Court of Queen’s Bench, lay in the fact that secular Courts are generally unwilling to get involved in disputes among adherents of a specific faith regarding the observance of religious beliefs or rituals. If the nature of the dispute is one which goes beyond a religious community to result in consequences temporal in nature, the courts are, however, willing to intervene.

In this instance, a number of rabbis had indicated their support for an order of the Queen’s Bench compelling the husband to deliver a Bill of Divorcement. The Court, therefore, included a statement of Jewish law agreed to by both parties and cited Maimonides as an authority, under Jewish law, for rabbinical courts to turn to civil courts for enforcement of their orders when one party has refused to cooperate. Given that the court’s intervention was sanctioned by Jewish law, the Court issued the order sought.

A last example shows how the ideological leanings of society at a particular era can influence the courts. In this case, Karl Marx is cited by the BC Court of Appeal in Martin v. Law Society of British Columbia a case which began with a refusal by the BC Benchers to admit the appellant, Martin, an admitted Marxist, to the Bar. As the Court noted, “the Benchers came to the conclusion that the Marxist philosophy of law and government, in its essence, is so inimical in theory and practice to our constitutional system and free society, that a person professing them is eo ipso, not a fit and proper person to practise law in this Province, and hence cannot be of “good repute” within the meaning of the Legal Professions Act.”[75] Counsel for the appellate had argued that Martin had the right to freedom of expression and freedom of thought, but the Court was not persuaded:

For a Communist to talk about personal freedom of action, expression and thought is like the devil talking about the delights of Heaven. There is no such thing as personal freedom in Soviet Russia, where organized practices of inhumanity, lawlessness, and depersonalization continue to shock the conscience of the civilized world. Moreover, the existence of personal rights in the sense we know them is denied by the Communist philosophy, as their existence was denied by the Nazi doctrinaires who took their political philosophy from Hegel, who was also, in so many respects, the inspiration of Karl Marx. Hegel it was who taught the doctrine of progress by antagonism which Karl Marx took for his own as a metaphysical support to the deterministic outlook of material revolution, and made it the mainspring of his political philosophy. Karl Marx in his German Ideology (4 Marx, Sochineniya 65 (Moscow 1933)) had written: “Only in the collective can the individual find the means of giving him the opportunity to develop his inclinations in all directions; in consequence, personal freedom is possible only in the collective.[76]

The Court, perhaps not surprisingly in those anti-communist times, concluded that “a Marxist Communist cannot be a loyal Canadian citizen” [77] and upheld the decision by the Law Society of British Columbia to deny Martin admission to the Bar.

Judges Who Cite Major Philosophers

The 543 citations containing either the wording or ideas of the philosophers named above emanated from only 300 specific judges in their pertinent courts. Some of them may cite only one philosopher in a lifetime of decision writing, while a much smaller number cite philosophers several times (defined here as three or more times in their decisions.) For example while justices of the Supreme Court of Canada cite John Stuart Mill more than any other philosopher, Aristotle is the favourite of the Federal Court and Jeremy Bentham appears most often in Alberta judgments.

This section will begin with the Supreme Court of Canada, move on to the Federal and Tax Courts, then to provinces/territories in alphabetical order.

Supreme Court of Canada

Supreme Court of Canada justices are well represented amongst those who make more frequent use of philosophers in their opinions.[78] Particularly noteworthy amongst this group are Justices/Chief Justices Thibaudeau Rinfret,[79] Lyman Duff,[80] Brian Dickson, William Rogers McIntyre, Bertha Wilson, Gérard Vincent La Forest,[81] Claire L’Heureux-Dubé, John Sopinka, Charles Gonthier,[82] Beverly McLachlin,83 and Frank Iacobucci.

Not surprisingly, many of these judges happen to have a background in philosophy. Lyman Duff, for example, while enrolled at University of Toronto, switched from mathematics to philosophy, “in the belief that it would better prepare him for law.”[84] Brian Dickson excelled in jurisprudence at the Manitoba Law School.[85] William McIntyre developed his lifelong interest in philosophy after a jurisprudence course at the law school in Saskatchewan.[86] Bertha Wilson, during her undergraduate studies in Scotland, took courses in logic and moral philosophy at the general and advanced levels and recalled lectures by John Laird on David Hume which “had a greater influence on her than anyone else at Aberdeen.”[87] Finally, Canada’s current Chief Justice of the Supreme Court, Beverley McLachlin, is reported to have focused on philosophy as well as languages during her undergraduate program.[88]

If any distinctive pattern emerges in the judgments of some of these Supreme Court justices, it is the recurrent citing of John Stuart Mill who appears in thirty-five Supreme Court of Canada cases [89] (whereas, the second most cited philosopher, Aristotle, appears only nine times [90]).

Justice Brian Dickson, for example during the course of his career on the bench, does indeed cite Hegel (“…the entire premise expressed by such thinkers as Kant and Hegel that man is by nature a rational being, and that this rationality finds expression both in the human capacity to overcome the impulses of one’s own will and in the universal right to be free from the imposition of the impulses and will of others”)[91] John Locke,[92] Aristotle,[93] and Voltaire.[94] But his favourite is Mill,[95] on whom he calls for such matters as his distinction between direct and indirect taxes,[96] and on freedom of speech.[97] Most importantly, he invokes Mill’s name in the context of freedom of association. In Reference re Public Service Employee Relations Act (Alberta),[98] the majority holds that provincial legislation prohibiting strikes does not infringe on the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms. Justice Dickson, in his dissenting opinion, makes the case that in the context of labour relations, freedom of association must include the freedom to bargain collectively and to strike, and the fact that one is employed by government rather than another employer is not a sufficient reason for limiting that freedom. As support for an expansive reading of freedom of association, he cites Mill’s words:
“if public spirit, generous sentiments, or true justice and equality are desired, association, not isolation, of interests, is the school in which these excellences are nurtured.”[99]

Justice William Rogers McIntyre, in his decisions, cites Bacon [100] and Aristotle.[101] But it is to Mill he also most frequently refers, not only for his distinction between direct and indirect taxes [102] but also for his views on freedom of speech in the labour law case–Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580.[103] Here, the court considered whether secondary picketing by trade union members during a labour dispute was a protected activity under s. 2(b) of the Canadian Charter of Rights and Freedoms which guarantees the freedom of expression. The appellants defended the picketing activity under the provisions of s. 2(b) of the Charter, but McIntyre J., in his judgment, noted that freedom of expression was not a product of the Charter, but a notion much older and much more fundamental forming “the basis for the historical development of the political, social and educational institutions of western society.” He quotes Mill: “All silencing of discussion is an assumption of infallibility.” And, famously: “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” [104] McIntyre goes on to comment: “Nothing in the vast literature on this subject reduces the importance of Mill’s words.” By implication, therefore, any attempt to restrain the picketing by the appellants is also a restraint on the exercise of the right of freedom of expression.

Justice Bertha Wilson, in her judgments, cites both Aristotle [105] and Jeremy Bentham,[106] but John Stuart Mill is, for her too, a favourite appearing in multiple decisions.[107] Unsurprisingly, his distinction between direct and indirect taxes appears in one of these decisions: Air Can. v. B.C.[108] He is also called upon more than once by Justice Wilson for his views on liberty:

I believe that the framers of the Constitution in guaranteeing “liberty” as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be nonconformist, idiosyncratic and even eccentric — to be, in today’s parlance, “his own person” and accountable as such. John Stuart Mill described it as “pursuing our own good in our own way.”109

In Andrews v. Law Society (British Columbia),[110] Justice Wilson also refers to Mill in the context of the vulnerability of non-citizens in society, concluding that non-citizens fall into an analogous category to those specifically enumerated in s. 15 of the Charter of Rights and Freedoms.

Justice John Sopinka is one of the exceptions in that he does not employ John Stuart Mill in any of his decisions. Plato and Aristotle, however, are cited for their opposition to suicide (“an offence against the gods or the state”) in the 1993 case Rodriguez v. British Columbia (Attorney General)[111]. In that instance, Sue Rodriguez, a woman with a terminal disease, had asked the Supreme Court for the right to a physician-assisted death. Justice Sopinka also discusses Francis Bacon’s views on physician-assisted suicide.

Justice Frank Iacobucci does invoke the name of Mill, not only for his views on taxes, [112] but also for his opinions on freedom of expression.[113] As for Mill’s contention that pursuing one’s own ends necessitates allowing others the freedom to pursue theirs: that view is cited approvingly not only by Justice Iacobucci,[114] but also by several of his colleagues in other Supreme Court decisions.[115]

Justice Iacobucci also cites Bentham [116] in support of the open court principle.[117] He also calls upon Voltaire in Little Sisters Book & Art Emporium v. Canada (Minister of Justice), [118] a case involving a Vancouver bookstore which sold gay and lesbian books, magazines and other literature. Customs legislation in effect at the time required that the importer of material from outside the country (where the bookstore got most of its materials) prove that the material was not obscene. In his dissenting (in part) decision, Justice Iacobucci cites Voltaire’s statement–“Liberty of thought is the life of the soul”–to make the case that the application of Customs legislation to expressive materials, and specifically, to books cannot be the same as other goods which cross borders. While the majority held that the onus regarding obscenity should be shifted from the importer to the government, Justice Iacobucci went one step further asserting that there were “‘grave systemic’ flaws in the enforcement of the Customs legislation.”

Finally, amongst those justices who resort to the philosophers on several occasions, comes Justice L’Heureux-Dubé. She cites Voltaire twice—once on the limits of rights (“A right taken too far becomes an injustice”), and again, on the matter of freedom of expression (“”I do not believe a word that you say, but I will defend with my life your right to say it”).[119] Aristotle [120] is called upon on the subject of statutory interpretation and Confucius, as noted earlier, on the necessity to ensure that language is precise in its usage.[121] Like Justice Sopinka, she does not cite John Stuart Mill in any of her decisions.

Federal Court / Tax Court of Canada

Whereas the Supreme Court calls upon John Stuart Mill most frequently, the Federal and Tax courts prefer Aristotle, and they cite him in a variety of contexts.[122] They call upon him, for instance, in justification of the notion that equality consists of treating equals equally and unequals unequally,[123] for his theories on four kinds of causes (“the material cause, the matter from which something came; the formal cause, the substantial form or essence of a change; the efficient cause, the agent by which a change was brought about; and the final cause, the purpose or end of the change”[124]), for his contention that the degree of precision attainable depends on the subject matter,[125] and for his striking image on natural law—that it has the same force everywhere, just as fire burns in the same way both in Athens and in Persia.[126]

It is noteworthy that former Chief Justice of the Tax Court, Donald Bowman has commented, outside the court, on the importance of philosophy to law. With respect to the widely-held belief that that one must have a background in economics and accounting in order to practice tax law, he has taken a contrary position. Tax law “covers many other disciplines, trusts, contracts, family law, corporate. Its basis lies not in economics or accounting. Its roots lie in philosophy, arts, literature and the humanities.”[127]

Consequently, Justice Bowman found room for philosophy in his decisions. Over the years, in addition to citing Aristotle, [128] he turns to Bertrand Russell (“every advance in civilisation has been denounced as unnatural while it was recent “),[129] and John Stuart Mill [130] for his views on direct versus indirect tax. He calls memorably on Rene Descartes in Radage v. R,[131] a case in which “Parliament has thrown the court a philosophically loaded package, which it cannot duck.” [132] In Radage, Bowman deals with appeals from assessments in which the appellant’s dependent son was denied a disability tax credit under section 118.3 of the Income Tax Act. The question before the court was whether the son suffered from a severe and prolonged mental impairment (defined in part by the inability, all or substantially all of the time, to perform the activity of “perceiving, thinking and remembering”) within the meaning of sections 118.3 and 118.4.

In his reasoning, Justice Bowman addresses a vital question:

What does “perceiving, thinking and remembering” mean within the context of section 118.4? We use these words every day yet they are not susceptible of easy definition. Thinkers have struggled with the nature of thought since the days of Plato, and indeed before then. Descartes built an elaborate philosophical system, including the proof of the existence of God and of self, on his intuitively certain premise that he thinks: cogito ergo sum. Yet he gives us little assistance concerning what he thinks he is doing when he says cogito.[133]

He then goes on to cite, among other sources, the Oxford Companion to Philosophy for its entry on “Thinking” and “Memory.” Taking these definitions and descriptions into account, Bowman reaches the conclusion that although the provision could be construed narrowly, thereby shutting out certain individuals who do not squarely fit the language set out in the Act, if the purpose of Parliament was to provide relief to disabled persons, the provisions must be interpreted “liberally, humanely and compassionately.”

In addition to Justice Bowman, other Judges in the Federal Court who are noteworthy in their citing of the major philosophers include Justices James K. Hugessen,[134] Barbara Reed,[135] Francis Creighton Muldoon,[136] and Sean J. Harrington.[137]

Justice Sean J. Harrington rivals Bowman in the number of philosophers appearing in his decisions. He not only employs Thomas Hobbes (for his view of life as “nasty, brutish and short”) [138] but Voltaire (“An award of solicitor-client costs on a lump sum basis, goes as Voltaire would put it, “pour encourager les autres”),[139] and St. Augustine [140] in the context of the right to be heard as being at the heart of one’s sense of justice and fairness. Justice Harrington also cites Thomas Aquinas, Aristotle and John Locke [141] for their views on “virtue as a mean” between two vices, one involving excess, the other deficiency.

One of his most interesting citations involves Francis Bacon in several cases, including Canada (Attorney General) v. Amnesty International Canada.[142] This latter case had to do with reports filed with the Military Police Complaints Commission on the conduct of Military Police (MP) in respect of the transfer of detainees in Afghanistan who risked being tortured. The Commission had sought production of documents on policy decisions for the Canadian forces (and therefore Military Police) in Afghanistan. This would have involved government officials not involved in carrying out policing. But such policy decisions, according to Justice Harrington, were

beyond the reach of the Commission and of this Court. To quote Francis Bacon: “It were infinite for the law to judge the cause of causes, and their impulsions one of another; therefore it contenteth itselfe with the immediate cause, and judgeth of acts by that, without looking to any further degree.”[143]

Harrington noted that Bacon points to a danger inherent in a search for causation in law, in that causation can become a chain with endless links. At some point, some limit in responsibility is necessary and that limit must be the natural, direct or proximate result of an act.[144] In this case, to the extent that the Commission had investigated matters beyond what the Military Police who were subjects of the complaint knew, or had the means of knowing, Harrington J. holds, it had travelled too far along the chain with endless links, i.e., it had acted beyond its jurisdiction. That same problem also appears in Cameco Corp. v. “MCP Altona” (The),[145] a case involving a shipping accident in which Bacon is again cited by Harrington J., using the same principle (“the law does not judge the cause of causes”).

Superior and Provincial Courts

In every jurisdiction but Nunavut, courts of appeal, superior and provincial court judges do cite philosophers as and when they feel the need. In the Maritimes and Quebec (i.e. in decisions written or available in English) however, no specific adjudicators stand out as having cited philosophers in multiple decisions. Mill is cited most often in New Brunswick [146] and Newfoundland,[147] Bentham most often in Nova Scotia, and Prince Edward Island. Both Mill and Bentham are cited in decisions in English available in Quebec. In the Yukon, only Aristotle appears in the case law.[148]

In the rest of Canada, a handful of judges in the Superior Courts have referred to the major philosophers in several decisions during the course of their careers. This section looks at those judges and their jurisdictions–Alberta, British Columbia, Manitoba, Ontario, the Northwest Territories, Prince Edward Island and Saskatchewan. It also notes which philosophers are cited most often.

Conclusion

As this survey indicates, judges from every level of the Canadian courts have, over the years, made explicit references to major philosophic figures in their decisions. Many of the citations deal with eminently practical matters, as in the recurring use of Mill for his distinction between direct and indirect taxes, or Bentham on the open court principle. But the courts have also thought it beneficial to call upon the philosophers in a variety of more strictly “philosophic” notions, for example: Thomas Aquinas on the doctrine of free will,[226] Bertrand Russell on theoretical terms as “logical constructions,”[227] Grotius’ theory of international law,[228] William James on religion,[229] Immanuel Kant on self-preservation,[230] Rousseau on the social contract,[231] and Socrates on judicial impartiality.[232]

Yet not all legal experts have noticed any influence of philosophy in the courts’ decisions. Vaughan Black, professor of Law at Dalhousie University in Halifax, went so far as to suggest: “Canadian decision-making, for the most part, remains resolutely unphilosophical.”[233] And it is, indeed, true that the courts’ relationship with philosophy has not been an easy one. Justice Joyal of the Federal Court, for instance, says that judges have “traditionally been called upon to decide issues on the basis of hard facts — the kind of rummage room in which trial judges find their judicial role.” In other words, rather than clarifying, philosophy can only, for some judges, muddy the waters with “what might otherwise be called soft data, i.e. assertions which are not the product of objective inquiry, but are intellectualized observations expressed in esoteric language and reflecting in most instances conflicting ideologies.”[234] Indeed, some judges have openly wondered to what extent they are competent “to decide between the conflicting views of theologians and philosophers”[235]—especially since professional theologians and philosophers are themselves often at odds.

Therefore, the view that facts, not philosophy, must be a judge’s primary focus, has been stated on numerous occasions.[236] Justice Anderson of the Ontario High Court of Justice, for example, has noted: “A moralist or a philosopher might find subject for comment: as a Judge, all that is open to me is to find the facts and apply the law.”[237] Justice Scollin of the Manitoba Court of Queen’s Bench agrees: “The ideal which is conceived by the philosopher may be sought by the legislator, but must not be imposed by the judge.”[238] Master Funduk, of the Alberta Court of Queen’s Bench, is impatient with the very notion: court judgments “are not some long dead Greek philosopher’s ethereal debate about whether a road runs in only one direction. Court judgments are decisions on disputes between real people, with real facts and real issues.”[239]

Nonetheless, the results of this study indicate that philosophy has indeed had its place the Canadian courts. That thirty-six percent of the citations noted here [240] have appeared in cases decided in or since the year 2000 suggests that the trend is perhaps more alive today than it was in the earliest days of our jurisprudence. It is important to point out that this paper has dealt only with explicit citations of various major philosophers. Doubtless, a host of judges today are quite aware of the history of philosophy and are well acquainted with its present-day formulations. Their judgments may be imbued with a philosophic understanding, though they make no explicit reference to any particular philosopher, which was surely what was meant by Brian Leiter’s assertion that philosophy is central to the study and practice of law.

Footnotes:
1 Karl N. Llewellyn Professor of Jurisprudence and Director of the Center for Law, Philosophy and Human Values at the University of Chicago.
2 Brian Leiter, “Why Philosophy Has Been Central to Legal Education for More Than a Century” (20 Jan 2014) Huff Post College, online: <http://www.huffingtonpost.com/brian-leiter/why-philosophy-of-law-has_b_4606305 html >.
3 Brian Leiter, “Philosophy students thinking about law school?” (21 October 2015) Leiter Reports: A Philosophy Blog, online: <http://leiterreports.typepad.com/blog/law_school_updates/ >.
4 See Patrick Luff, “Should Jurisprudence Be a Required Law School Course?” (20 May 2011) PrawfsBlawg online: <http://prawfsblawg.blogs.com/prawfsblawg/2011/05/should-jurisprudence-be-a-required-law-school-course.html >.
5 For example, American Journal of Jurisprudence; Australian Journal of Legal Philosophy; The Canadian Journal of Law And Jurisprudence; Critical Analysis Of Law: An International & Interdisciplinary Law Review; Droits: Revue Française De Théorie Juridique; International Journal For The Semiotics Of Law; International Theory: A Journal Of International Politics, Law And Philosophy; Journal Of Law, Philosophy And Culture; Jurisprudence; Legal Theory; Theoretical Inquiries In Law; Law And Philosophy; UCL Journal of Law and Jurisprudence.
6 Brian Leiter, “Why Philosophy Has Been Central to Legal Education for More Than a Century” (20 Jan 2014) Huff Post College, online: http://www huffingtonpost.com/brian-leiter/why-philosophy-of-law-has_b_4606305.html
7 W.H. McConnell, William R. McIntrye: Paladin of the Common Law (Montreal: McGill-Queen’s University Press, 2000) at 10.
8 Some scholars have explicitly asked whether judges themselves are philosophers in addition to exploring the extent to which arguments from philosophy enter into their reasoning in certain types of case. See G. Grant Amyot, “A Matter of Philosophical Preference? Political Philosophy and Judicial Reasoning in the Sauvé Case” (July 2011) 29 National Journal of Constitutional Law 1.

21 Elgaard v. Elgaard (1986), 1 RFL (3d) 256; 2 BCLR (2d) 200 (BCSC).
22 One hundred and fifty-one citations (27.8%) appeared in cases which had Criminal Law as their main subject heading.
23 One hundred and nine (20%) of philosophers cited were in cases which had “Constitutional Law” as their main subject heading.
24 Sixty-six citations (12%) were in cases which had “Civil Practice and Procedure” as their main subject heading

67 2001 SCC 78, [2001] 3 SCR 488 [Nette].
68 (1977), [1978] 1 SCR 506.
69 Ibid at 519.
70 1999 BCCA 743, 131 B.C.AC 104 (BCCA).
71 Ibid at para 29.
72 Nette, supra note 67 at para 71.
73 Cited in Dennis R. Klinck, The Word of the Law (Ottawa: Carlton University Press, 1992).
74 [1973] 3 WWR 526, 36 DLR (3d) 447 (MBQB).
75 Martin v. Law Society of British Columbia, 1950 CarswellBC 168, [1950] 3 DLR 173 (BCCA) (Sloan C.J.B.C.) at 175-176.
76 Ibid at 179 (O’Halloran J.A.).
77 Ibid at 190 (BCCA) (O’Halloran J.A.)
78 Of the 543 citations, 74 appeared in Supreme Court of Canada cases or 13.6% of the entire group.
79 Citing Adam Smith in Reference re Validity of s. 5(a) of Dairy Industry Act (Canada), (Margarine Case), [1949] SCR 1, [1949] 1 DLR 433, and John Stuart Mill in Canadian Pacific Railway v. Saskatchewan (Attorney General), [1952] 2 SCR 231; [1952] 4 DLR 11 and Atlantic Smoke Shops Ltd. v. Conlon, [1941] SCR 670, [1941] 4 DLR 129.
80 Citing Grotius in Powers of Ottawa & Rockcliffe Park to Levy Rates on Foreign Legations & High Commissioners’ Residences, Re, [1943] SCR 208, [1943] 2 DLR 481 and John Stuart Mill in Hetherington v. Security Export Co., [1923] SCR 539, [1923] 3 DLR 519 and McLeod v. Windsor (City), [1923] SCR 696, [1923] 3 DLR 550.
81 La Forest J. cites Grotius in R. v. Finta, [1994] 1 SCR 701, 112 DLR (4th) 513, Jeremy Bentham in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 SCR 480, 139 DLR (4th) 385, Sir Thomas More in M. (K.) v. M. (H.), [1992] 3 SCR 6, 96 DLR (4th) 289, and John Stuart Mill in Committee for the Commonwealth of Canada v. Canada, [1991] 1 SCR 139, 77 DLR (4th) 385 and in B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, 122 DLR (4th) 1.
82 Citing John Stuart Mill (on taxes) in Reference re Quebec Sales Tax, [1994] 2 SCR 715, 115 DLR (4th) 449 and on freedom of expression in Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 SCR 877, 159 DLR (4th) 385. Gonthier J. also cites Immanuel Kant in Lakeside Colony of Hutterian Brethren v. Hofer, [1992] 3 SCR 165, 97 DLR (4th) 17.
83 McLachlin has cited Plato in R. v. Sharpe, 2001 SCC 2, [2001] 1 SCR 45, 194 DLR (4th) 1; Hegel in R. v. Creighton, [1993] 3 SCR 346, 105 DLR (4th) 632; and Aristotle in R. v. Chaulk, [1990] 3 SCR 1303, 69 Man R (2d) 161.
84 David Ricardo Williams, Duff: A Life in the Law (Vancouver: University of British Columbia Press, 1984) at 18.
85 Robert J. Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey (Toronto: University of Toronto Press, 2003) at 43.
86 W.H. McConnell, William R. McIntrye: Paladin of the Common Law (Montreal: McGill-Queen’s University Press, 2000) at 10.
87 Ellen Anderson, Judging Bertha Wilson: Law as Large as Life (Toronto: University of Toronto Press, 2001) at 15.
88 Joseph Brean, “‘Conscious objectivity’: That’s how the chief justice defines the top court’s role. Harper might beg to differ” (23 May 2015) National Post, online: <http://news.nationalpost.com/news/canada/conscious-objectivity-thats-how-the-chief-justicedefines-the-top-courts-role-harper-might-beg-to-differ.>
89 Muir Estate v. Manitoba (Provincial Treasurer) (1915), 51 SCR 428; 8 WWR 1226; Alleyn v. Barthe, [1920] 1 WWR 952; Hetherington v. Security Export Co., [1923] 3 DLR 519; [1923] SCR 539; McLeod v. Windsor (City), [1923] 3 DLR 550; [1923] SCR 696; Manitoba (Attorney General) v. Canada (Attorney General), [1924] 3 DLR 203; [1924] SCR 317; Halifax (City) v. Fairbanks
Estate, [1926] 1 DLR 1106, [1926] SCR 349; Rattenbury v. British Columbia (Land Settlement Board), [1929] 1 DLR 242, [1929] SCR 52; Royal Bank v. Nova Scotia (Workmen’s Compensation Board), [1936] SCR 560; Esquimalt & Nanaimo Railway v. British Columbia (Attorney General), [1948] SCR 403, [1949] 3 DLR 343; Canadian Industrial Gas & Oil Ltd. v. Saskatchewan, [1977] 6 WWR 607; [1978] 2 SCR 545; Canada Trust Co. v. British Columbia (Attorney General), [1980] 2 SCR 466, [1980] 5 WWR 591; Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, 38 DLR (4th) 161; Edmonton Journal (The) v. Alberta (Attorney General), [1989] 2 SCR 1326, 64 DLR (4th) 577; Allard Contractors Ltd. v. Coquitlam (District), [1993] 4 SCR 371, 109 DLR (4th) 46; Little Sisters Book & Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 SCR 1120; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 SCR 571; Syndicat Northcrest c. Amselem, [2004] 2 SCR 551, 241 DLR (4th) 1; R. v. Keegstra, [1990] 3 SCR 697, 77 Alta LR (2d) 193; Reference re Quebec Sales Tax, [1994] 2 SCR 715, 115 DLR (4th) 449; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 SCR 877, 159 DLR (4th) 385; Ontario Home Builders’ Assn. v. York Region Board of Education, [1996] 2 SCR 929, 137 DLR (4th) 449; Committee for the Commonwealth of Canada v. Canada, [1991] 1 SCR 139, 77 DLR (4th) 385; B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, 122 DLR (4th) 1; Reference re ss. 193 & 195.1(1)(c) of Criminal Code (Canada), [1990] 1 SCR 1123, [1990] 4 WWR 481; Eurig Estate, Re, [1998] 2 SCR 565, 165 DLR (4th) 1; Mining and Mineral Rights Tax Act, Re, [1982] 2 SCR 260, 138 DLR (3d) 577; Cairns Construction Ltd. v. Saskatchewan, [1960] SCR 619; 24 DLR (2d) 1; Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, [1986] 2 SCR 573, 33 DLR (4th) 174; Canadian Pacific Railway v. Saskatchewan (Attorney General), [1952] 2 SCR 231, [1952] 4 DLR 11; Atlantic Smoke Shops Ltd. v. Conlon, [1941] 4 DLR 129, [1941] SCR 670; Charlottetown (City) v. Foundation Maritime Ltd., [1932] 3 DLR 353; [1932] SCR 589; Andrews v. Law Society (British Columbia), [1989] 1 SCR 143, 56 DLR (4th) 1; Air Can. v. B.C., [1989] 1 SCR 1161, 59 DLR (4th) 161; R. v. Jones, [1986] 2 SCR 284, 31 DLR (4th) 569; R. v. Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.
90 R. v. Hibbert, [1995] 2 SCR 973, 84 OAC 161; 2747-3174 Québec Inc. c. Québec (Régie des permis d’alcool), [1996] 3 SCR 919, 140 DLR (4th) 577; Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, 38 DLR (4th) 161; R. v. Chaulk, [1990] 3 SCR 1303, 69 Man R (2d) 161; Fraser v. Ontario (Attorney General), 2011 SCC 20, [2011] 2 SCR 3; Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519; 107 DLR (4th) 342; Lavigne v. O.P.S.E.U., [1991] 2 SCR 211, 81 DLR (4th) 545; Perka v. R., [1984] 2 SCR 232, 13 DLR (4th) 1; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 SCR 1016.
91 “Hegel’s theory of needs and reciprocal obligations as the constituent elements of a civil society”: MacDonald v. Montreal (City), [1986] 1 SCR 460, 27 DLR (4th) 321; “…the entire premise expressed by such thinkers as Kant and Hegel that man is by nature a rational being, and that this rationality finds expression both in the human capacity to overcome the impulses of one’s own will and in the universal right to be free from the imposition of the impulses and will of others”: Perka v. R., [1984] 2 SCR 232, 13 DLR (4th) 1.
92 “As John Locke once said, “A government without laws is, I suppose, a mystery in politics, inconceivable to human capacity and inconsistent with human society”: Reference re Language Rights Under s. 23 of Manitoba Act, 1870 and s. 133 of Constitution Act, 1867, [1985] 1 SCR 721, 19 DLR (4th) 1.
93 “Aristotle, Ethics (Book III, 1110 a), discusses the jettisoning of cargo from a ship in distress and remarks that ‘any sensible man does so’ to secure the safety of himself and his crew”: Perka v. R., [1984] 2 SCR 232, 13 DLR (4th) 1.
94 “…the Judge said “Why not? Didn’t Voltaire? He disagreed but he would give his life to protect them, let them say it”: R. v. Prairie Schooner News Ltd. (1970), 1 CCC (2d) 251, 75 WWR 585 (MBCA).
95 Canadian Industrial Gas & Oil Ltd. v. Saskatchewan, [1978] 2 SCR 545, 80 DLR (3d) 449; Canada Trust Co. v. British Columbia (Attorney General), [1980] 2 SCR 466, 112 DLR (3d) 592.
96 See Bank of Toronto v. Lambe (1887), 12 App. Cas. 575, 4 Cart. 7, 56 L.J.P.C. 87.
97 “Invoking John Stuart Mill’s “marketplace of ideas,” Kerans J.A. decided in the affirmative, stating that “s. 2(b) should be understood as protecting both innocent error and imprudent speech” (p. 164). As s. 319(2) did neither, he held that it infringes s. 2(b) of the Charter”: R. v. Keegstra, [1990] 3 SCR 697, 77 Alta LR (2d) 193.
98 Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, 38 DLR (4th) 161.
99 Ibid at para 90.
100 R. v. Ancio, [1984] 1 SCR 225, 6 DLR (4th) 577 considered the mental element required for proof of the crime of attempted murder. McIntyre J. explains that some of the confusion surrounding the mental element necessary to found a conviction for attempted murder is due to the fact that it is assumed to be the same mental element required to found a conviction for murder. The history of those two crimes, however, are quite distinct in that mental elements for murder first appear in 13th and 14th century statutes, while
attempted offences were, up to and during the start of the 17th century, generally not viewed as crimes. It was Bacon who, as Attorney General at the time, argued in Case of Duels (1615), 2 State Tr. 1033 that they should be treated as such: “For the Capacity of this Court, I take this to be a ground infallible: that wheresoever an offence is capital, or matter of felony, though it be not acted, there the combination or practice tending to that offence is punishable in this court as a high misdemeanor. So practice to impoison, though it took no effect; waylaying to murder, though it took no effect; and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon’s Case.” While the Court in that case agreed with Bacon, more time would pass before the existence of the offence of attempted murder would be firmly established. Nonetheless, the history of criminal attempt which begins, in part, with Bacon, is that both in the common law and in statute, the offence is separate and distinct from the crime alleged to be attempted.
101 McIntyre J. in the context of freedom of association cites Aristotle’s views of man as a “social animal, formed by nature for living with others.” See Reference re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313, 38 DLR (4th) 161.
102 R. v. Churchill, 1972 CarswellBC 993 (BCSC)
103 [1986] 2 SCR 573, 33 DLR (4th) 174.
104 Dolphin Delivery Ltd. v. R.W.D.S.U., Local 580, [1986] 2 SCR 573, 33 DLR (4th) 174.
105 Aristotle appears in the context of freedom of association in Lavigne v. O.P.S.E.U., [1991] 2 SCR 211, 81 DLR (4th) 545.
106 Bentham is cited on the open court principle: “The advantages of publicity are neither inconsiderable nor unobvious. In the character of a security, it operates in the first place upon the deponent, and, in a way not less important … upon the judge.” Edmonton Journal (The) v. Alberta (Attorney General), [1989] 2 SCR 1326, 64 DLR (4th) 577 at para. 16.
107 Air Can. v. B.C., [1989] 1 SCR 1161, 59 DLR (4th) 161; Andrews v. Law Society (British Columbia), [1989] 1 SCR 143, 56 DLR (4th) 1; R. v. Jones, [1986] 2 SCR 284, 31 DLR (4th) 569; R. v. Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.
108 Air Can. v. B.C., [1989] 1 SCR 1161, 59 DLR (4th) 161.
109 R. v. Jones, [1986] 2 SCR 284, 31 DLR (4th) 569 at para. 26. See also R. v. Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.
110 [1989] 1 SCR 143, 56 DLR (4th) 1.
111 Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519, 107 DLR (4th) 342.
112 “John Stuart Mill himself, following Adam Smith, Ricardo and James Mill, said that a tax on rents falls wholly on the landlord and cannot be transferred to any one else. “It merely takes so much from the landlord and transfers it to the State” (Political Economy, vol. ii., p. 416)”: Ontario Home Builders’ Assn. v. York Region Board of Education, [1996] 2 SCR 929, 137 DLR (4th) 449, 35 MPLR (2d) 1, 4 R.P.R. (3d) 1 at para. 45; “Taxes are either direct or indirect. A direct tax is one which is demanded from the very persons who it is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another”: Allard Contractors Ltd. v. Coquitlam (District), [1993] 4 SCR 371, 109 DLR (4th) 46 at para. 47.
113 Allard Contractors Ltd. v. Coquitlam (District), [1993] 4 SCR 371, 109 DLR (4th) 46; Little Sisters Book & Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 SCR 1120, 193 DLR (4th) 193 at para. 272: “Cory J. [in Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 (S.C.C.)] went on to cite the following passage from John Stuart Mill, “On Liberty” in On Liberty and Considerations on Representative Government (1946), at p. 14: If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” .
114 “…we live in a society of individuals in which we must always take the rights of others into account. In the words of John Stuart Mill: “The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it”: J. S. Mill, On Liberty and Considerations on Representative Government (1946), at p. 11. In the real world, oftentimes the fundamental rights of individuals will conflict or compete with one another”: Syndicat Northcrest c. Amselem, 2004 SCC 47, [2004] 2 SCR 551, 241 DLR (4th) 1 at para. 61.
115 B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, 122 DLR (4th) 1; Lavigne v. O.P.S.E.U., [1991] 2 SCR 211, 81 DLR (4th) 545; R. v. Morgentaler, [1988] 1 SCR 30, 44 DLR (4th) 385.
116 Vancouver Sun, Re, 2004 SCC 43, [2004] 2 SCR 332, 240 DLR (4th) 147 involved the Air India Flight 182 bombing and an in camera judicial investigative hearing at the BC Supreme Court hearing which followed. A Vancouver Sun editor, alerted to the fact that proceedings were taking place attempted to enter the courtroom but was denied access. The question, on appeal, was the level of secrecy required to merit a successful application for and conduct of a judicial investigative hearing pursuant to s. 83.28 of the Criminal Code which allowed for an in camera gathering of information in relation to a terrorism offence. Iacobucci and Arbour JJ. cite Bentham’s lines in favour of open court proceedings: “”[P]ublicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity” on their way to concluding that the level of secrecy imposed on the proceedings in this case was unnecessary.
117 Bentham’s words not only appear in Vancouver Sun, Re but are also cited in several additional Supreme Court of Canada cases: MacIntyre v. Nova Scotia (Attorney General), [1982] 1 SCR 175, 132 DLR (3d) 385; Canadian Broadcasting Corp. v. New Brunswick (Attorney General, [1996] 3 SCR 480, 139 DLR (4th) 385; Application to proceed in camera, Re, 2007 SCC 43, [2007] 3 SCR 253, 285 DLR (4th) 193; Société Radio-Canada c. Québec (Procureur general, 2011 SCC 2, [2011] 1 SCR 19, 328 DLR (4th) 34.
118 “Books are different from other goods crossing the border. As Voltaire noted, “Liberty of thought is the life of the soul”: Essay on Epic Poetry (1727)”: Little Sisters Book & Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 SCR 1120, 150 CCC (3d) 1, 193 DLR (4th) 193 at para. 272.
119 “Voltaire, paraphrasing the Latin maxim Summum jus summa injuria, is quoted as saying…A right taken too far becomes an injustice”: Banque nationale du Canada c. Houle, [1990] 3 SCR 122, 74 DLR (4th) 577 at para. 35; “Freedom of expression and the press is considered to be the foundation of individual liberty in Western democratic theory. It has been characterized as ‘… the matrix, the indispensable condition of nearly every other form of freedom’. It is a freedom that has evoked passionate statements for centuries such as Milton’s Areopagitica to Voltaire’s famous cry: ‘I do not believe a word that you say, but I will defend with my life your right to say it’”: Lortie c. R., [1985] C.A. 451, 21 CCC (3d) 436, 46 C.R. (3d) 322 at para. 37 (Qc C).
120 “Eskridge has stated the following, supra, at p. 50: Aristotle urged that application of general statutes to unanticipated cases requires the interpreter to “correct the omission” — to say what the legislator would have said had he been present, and would have put into law if he had known”: 2747-3174 Québec Inc. c. Québec (Régie des permis d’alcool), [1996] 3 SCR 919, 140 DLR (4th) 577, 205 NR 1, 42 Admin. LR (2d) 1 at para. 173.
121 R. v. Nette, 2001 SCC 78, [2001] 3 SCR 488.
122 Manning Timber Products Ltd. v. Minister of National Revenue, [1951] Ex. C.R. 338, [1951] CTC 274 (Exchequer Ct); Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), [1987] 2 FC 359, 34 DLR (4th) 584 (FCA); Canada (Director of Investigation & Research) v. Air Canada, [1994] 1 FC 154, 104 DLR (4th) 129 (FCA); Lim v. R., [2000] GSTC 1, 2000 GTC 709 (TCC [Informal Procedure]); Merck Frosst Canada & Co. v. Canada (Minister of Health), 2004 FC 959, [2005] 1 FCR 587 (FC); Watts v. R., 2004 TCC 535, [2005] 2 CTC 2384, 2004 DTC 3111 (TCC [Informal Procedure]); Ewert v. Canada (Attorney General), 2007 FC 13, 306 FTR 234 (Eng.) (FC); Reynolds Consumer Products Inc. v. P.R.S. Mediterranean Ltd., 2012 FC 824, 414 FTR 301 (Eng.) (FC); Taleb v. Canada (Minister of Citizenship & Immigration), 2012 FC 384, 407 FTR 185 (Eng.) (FC); Bazaid v. Canada (Minister of Citizenship and Immigration), 2013 FC 17, [2013] FCJ No. 39 (FC).
123 Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), [1987] 2 FC 359, 34 DLR (4th) 584 (FCA)
124 Canada (Director of Investigation & Research) v. Air Canada, [1994] 1 FC 154, 104 DLR (4th) 129 (FCA))
125 Lim v. R., [2000] GSTC 1, 2000 GTC 709 (TCC [Informal Procedure]); Watts v. R., 2004 TCC 535, [2005] 2 CTC 2384, 2004 DTC 3111 (TCC [Informal Procedure])
126 Bazaid v. Canada (Minister of Citizenship and Immigration), 2013 FC 17, [2013] FCJ No. 39 (FC)
127 In 2011, at the start of the Bowman Cup (a tax litigation moot court competition), Bowman spoke to students on this matter. “Law is a learned profession,” he noted, “It requires knowledge of the arts, humanities, classics, literature.” He continued: “Words, after all, are our only tools. We don’t have stethoscopes, we don’t have shovels, we don’t have slide rules.” See Drew Hasselback, “Donald Bowman, former top tax judge, holds court with students” (15 March 2011) Financial Post online: <http://business financialpost.com/legal-post/donald-bowman-former-top-tax-judge-holds-court-with-students.>
128 Aristotle long ago pointed out that the degree of precision that is attainable depends on the subject matter”: Watts v. R., 2004 TCC 535, [2005] 2 CTC 2384, 2004 DTC 3111 (TCC [Informal Procedure]); See also Lim v. R., [2000] GSTC 1, 2000 GTC 709 (TCC [Informal Procedure]).
129 “At the risk of intruding a jarring note into the response to the appeal (and the critics) I am obliged by my opinion to offer a dissenting view from that reached by the majority of this Court. I can derive a measure of comfort from Bertrand Russell’s assurance that every advance in civilisation has been denounced as unnatural while it was recent”: Gifford v. R., [2001] 2 CTC 2162, 2001 DTC 168 (TCC [Informal Procedure] citing Steele v. Deputy Commissioner of Taxation, 161 ALR 201, [1999] HCA 7 (Australia H.C.).
130 J.A. Porter Holdings (Lucknow) Ltd. v. Canada, [1996] GSTC 25; 4 GTC 3060 (TCC [Informal Procedure])
131 [1996] 3 CTC 2510, [1996] T.C.J. No. 730, 96 DTC 1615 (TCC)
132 Ibid at para. 24.
133 Ibid.
134 Appointed to the Superior Court of Quebec in 1972, and serving on the Federal Court of Appeal from 1983 – 2008. Hugessen JA cites Aristotle in Canada (Director of Investigation & Research) v. Air Canada, [1994] 1 FC 154, 104 DLR (4th) 129 (FCA) and Smith, Kline & French Laboratories Ltd. v. Canada (Attorney General), [1987] 2 FC 359, 34 DLR (4th) 584 (FCA). Voltaire is cited in Belczowski v. R., [1992] 2 FC 440, 90 DLR (4th) 330 (FCA)
135 Justice of the Federal Court, Trial Division, from 1983 to 2000. St. Augustine is cited in Gough v. Canada (National Parole Board), [1991] 2 FC 117, 40 FTR 91; 45 Admin. LR 304 (FC); Hegel, Rene Descartes, John Locke and Plato appear in Apple Computer Inc. v. Mackintosh Computers Ltd., [1987] 1 FC 173, 28 DLR (4th) 178 (F TD); John Stuart Mill is cited in Saugeen Indian Band v. R., [1989] 1 CTC 86, [1989] 3 FC 186, 24 FTR 1 (FCTD)
136 Justice of the Federal Court, Trial Division, from 1983 to 2001. Plato is cited in Drescher v. R., 1985 CarswellNat 1553; 30 ACWS (2d) 247 (FCTD) and in Fibreco Pulp Inc. v. R., [1994] 2 CTC 114, 78 FTR 161 (FCTD). Voltaire appears in Vanguard Coatings & Chemicals Ltd. v. Minister of National Revenue, [1986] 2 CTC 431, [1987], 1 FC 367 (FCTD).
137 Appointed Judge of the Federal Court and ex officio member of the Federal Court of Appeal, 16th September, 2003.
138 Merck Frosst Canada & Co. v. Canada (Minister of Health), 2004 FC 959, [2005] 1 FCR 587 (FC)
139 “An award of lump sum costs would deprive the defendants of the opportunity of testing the amounts claimed. However, the draft bill of costs accompanying the motion is extremely well detailed and what happened, including examinations for discovery, objections, rulings and the trial, is already in the record. Microsoft argues that it is the principle which is important here. It wants a clear message that the Court will not sanction cavalier disregard of intellectual property rights. An award of solicitor-client costs on a lump sum basis, goes as Voltaire would put it, “pour encourager les autres”: Microsoft Corp. v. 9038-3746 Quebec Inc., 2007 FC 659, 315 FTR 217 (Eng.), 59 CPR (4th) 155 (FC) at para. 30; “Apparently Voltaire never said: Je ne suis pas d’accord avec ce que vous dites, mais je me battrai pour que vous ayez le droit de le dire. It may be that the phrase was invented by his English biographer, Evelyn Beatrice Hall, who wrote: I disapprove of what you say, but I will defend to the death your right to say it”: Sloan v. Canada (Commissioner of Canada Elections), 2009 FC 1264, 3 Admin. LR (5th) 230 (FC) at para. 1.
140 “Perhaps there are those who have to be reminded that the right to be heard is at the heart of our sense of justice and fairness….That no man is to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’s Medea, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice, and traced by an eighteenth-century judge to the events in the Garden of Eden. [Footnotes omitted] de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed) (London: Sweet & Maxwell, 1995), pp. 378-379”: Matondo v. Canada (Minister of Citizenship & Immigration), 2005 FC 416; 44 Imm. L.R. (3d) 225 (FC) at para. 18.
141 “These cases warn us that a balance must be struck taking into account the consumer who may be interested in the wares in question, and the quality of the wares themselves. The balance to be struck is akin to the “virtue is a mean” philosophy of Aristotle, Thomas Aquinas and John Locke or, if you prefer, Goldilocks’ porridge which was neither too hot nor too cold.”: Reynolds Consumer Products Inc. v. P.R.S. Mediterranean Ltd,. 2012 FC 824; 104 CPR (4th) 172, 414 FTR 301 (Eng.) (FC). See also Merck Frosst Canada & Co. v. Canada (Minister of Health), 2004 FC 959, [2005] 1 FCR 587 (FC): “All this talk of striking a balance brings back thoughts of Philosophy 101 and Aristotle’s “virtue is a mean”. Perhaps more thought should be given to Thomas Hobbes who said that life was “nasty, brutish and short”. Life is not as nasty, not as brutish and not as short for countless Canadians and people worldwide thanks to modern wonder-drugs.”
142 2009 FC 918, [2010] 4 FCR 182 (FC). See also Société Telus Communications v. Peracomo Inc., 2011 2011 FC 494, 389 FTR 196 (FC) and Cameco Corp. v. “MCP Altona” (The), 2013 FC 23, 425 FTR 80 (FC).
143 Canada (Attorney General) v. Amnesty International Canada, 2009 FC 918, [2010] 4 FCR 182 (FC) at para. 62; Société Telus Communications v. Peracomo Inc., 2011 FC 494, 389 FTR 196 (Eng.) (FC) at para. 46.
144 Discussed in Pegram v. Stortz, 1888 So. 485 (Supreme Court West Virginia).
145 Cameco Corp. v. “MCP Altona” (The), 2013 FC 23, 425 FTR 80 (FC).
146 New Brunswick (Workmen’s Compensation Board) v. Bathurst Co., [1923] 4 DLR 84, (1923) 50 NBR 246 (NBSC); Simpsons-Sears Ltd. v. New Brunswick (Provincial Secretary) (1975), 14 NBR (2d) 289, 1975 CarswellNB 302 (NBSC); Simpsons-Sears Ltd. v. New Brunswick (Provincial Secretary) (1976), 14 NBR (2d) 631; 71 DLR (3d) 717 (NBCA); W.H. Violette Ltd. v. New Brunswick (Provincial Secretary) (1978), 23 NBR (2d) 384, 44 APR 384 (NB QB); New Brunswick (Minister of Finance) v. Simpsons-Sears Ltd. (1979), 27 NBR (2d) 652; 60 APR 652 (NBQB); R. c. Breault, 2001 NBCA 16, 198 DLR (4th) 669 (NBCA); Kingstreet Investments Ltd. v. New Brunswick (Department of Finance), 2004 NBQB 84, 236 DLR (4th) 733 (NBQB);
147 Newfoundland (Attorney General) v. Avalon Telephone Co. (1961), 33 DLR (2d) 402; 47 MPR 165 (NL SC); Mining & Mineral Rights Tax Act, Re (1980), 115 DLR (3d) 482; 28 Nfld & PEIR 361 (NLSC); Canadian National Railway v. Newfoundland (1982), 101 APR 155; 36 Nfld & PEIR 155 (NL District Court); A.J. Candow Ltd. v. Corner Brook (City) (1982), 104 APR 405, 138 DLR
(3d) 324 (NLSC); A.J. Candow Ltd. v. Corner Brook (City) (1983), 122 APR 259; 147 DLR (3d) 165 (NLCA); Harbour Grace (Town) v. Community Cable Ltd. (1989), 246 APR 201; 79 Nfld & PEIR 201 (NL SC); ACE-Atlantic Container Express Inc., Re (1992), 100 Nfld & PEIR 271, 92 DLR (4th) 581 (NLCA); Harbour Grace (Town) v. Community Cable Ltd. (1993), 103 Nfld & PEIR
1, 37 ACWS (3d) 1196 (NLCA).
148 R. v. Hunziker, 2000 YTTC 511, 3 MVR (4th) 89, 47 WCB (2d) 553.

226 R. v. T. (B.H.), 1998 ABPC 13, 37 WCB (2d) 452 (ABPC).
227 Petro-Canada v. Canada-Newfoundland Offshore Petroleum Board (1995), 133 Nfld & PEIR 91, 127 DLR (4th) 483 (NLSC (TD).
228 R. v. Finta, [1994] 1 SCR 701, 112 DLR (4th) 513.
229 R. v. Kharaghani , 2011 ONSC 836, 268 CCC (3d) 51 (Ont. SC).
230 Perka v. R. (1984), [1984] 2 SCR 232, 13 DLR (4th) 1.
231 Frank v. Canada (Attorney General), 2015 ONCA 536, 126 OR (3d) 321 (Ont. CA).
232 Robinson v. Lepage,; 2015 ONSC 3128, 2015 CarswellOnt 7100 ( Ont.Div. Ct).
233 Donalee Moulton, “Lawyers reduced to stage managers of expert witnesses: law prof” (October 15, 1999)19:22 The Lawyers
Weekly citing Vaughan Black, professor of Law at Dalhousie University in Halifax.
234 Canada v. Heritage Front, [1994] 1 FC 203, 68 FTR 161 (FCTD)
235 McKay v. Essex Area Health Authority, [1982] Q.B. 1166, [1982] 2 All E.R. 771 (Eng. C.A.) cited by Jones (Guardian ad litem of) v. Rostvig (1999), 44 C.C.L.T. (2d) 313, 7 B.CTC 188 (BC SC) and Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, 202 DLR (4th) 121 (MBCA).
236 As Douglas J. of the Supreme Court of the United States once noted “We are judges, not literary experts or historians or philosophers.” See concurring judgment in the United States “Fanny Hill” case, Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts (1966), 86 S.Ct. 975 at 981 cited in R. v. Cameron, [1966] 2 OR 777, 58 DLR (2d) 486 (Ont. CA). See also,
R. v. Hadwen, 2003 SKPC 66, [2003] 8 WWR 122 (Sask. Prov. Ct.) in which Orr Prov. J. of the Saskatchewan Provincial Court comments, “Judges must not pretend to be legislators, or social philosopher-kings…”.
237 Lilles v. Lilles, 1979 CarswellOnt 146, 2 F.L.R.AC 132 (Ont. HCJ) at para. 19. See also Little Sisters Book & Art Emporium v. Canada (Minister of Justice) (1996), 131 DLR (4th) 486, 18 BCLR (3d) 241 (BCSC) at para. 1: “The Court’s function, though, is not to attempt to resolve that tension as a philosopher or political scientist might, not to decide whether censorship by the state is a good thing or bad. Rather, the Court must determine the legal and factual issues presented by the parties to this action, which questions the constitutional validity of the customs legislation by which Parliament prohibits the importation of obscene material into Canada.”.
238 Thwaites v. Health Sciences Centre Psychiatric Facility, [1987] 1 WWR 468, 27 CRR 325, 33 DLR (4th) 549 (MBQB) at para. 18.
239 Fulton v. Globe & Mail (The), [1997] 3 WWR 200, 194 AR 254 (AB QB).
240 197 out of 543 citations.

Start the discussion!

Leave a Reply

(Your email address will not be published or distributed)