Notes For Remarks By The Honourable Ian Scott Attorney General To The Canadian Bar Association President's Dinner
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Friday, February 7, 1986
It is a delight for me to have been invited to speak to the Annual Dinner of the Ontario Section of the Canadian Bar Association. When my classmates were called to the Bar of Ontario at Osgoode Hall more that twenty-five years ago, the Canadian Bar Association was, of course, a venerable national institution. Its principle events in those days were the annual meeting and the mid-winter meeting. Each was accompanied by a program in which speeches were given and learned panels provided. While I have no doubt that even then the Canadian Bar Association did much useful work in presenting the views of the profession to government and the public, its primary focus, at least when its members met on these two annual occasions, was social. I remember those meetings shortly after my call to the Bar with a great deal of pleasure. At them I met many colleagues who have since become close personal friends of long standing.
I say these things not to be patronizing about an earlier generation's conduct of the Association's affairs, but rather to highlight the growth, strength and influence of the Canadian Bar Association which has occurred over the last twenty-five years and which continues unabated and vigorous today.
Nothing so typifies the spirit and character of that growth as the Bar Association's continuing education programs. Continuing education was virtually unknown in Canadian legal circles until the return of the soldiers, seamen and airmen following the second world war. Many of these young men and some women were law students whose careers had been abruptly broken off by hostilities. Others were very young lawyers who because of war had been out of practice for half a decade.
The Law Society of Upper Canada to its great credit, took the initiative by sponsoring a series of lectures designed to introduce these young men and women to the professional demands of the law. The Law Society lecture series became an annual event. Within a few years the Canadian Bar Association took up the challenge in a dedicated and zealous way and this year we celebrate the 10th anniversary of the Bar's continuing education program. From the beginning, all parts of the profession and all generations within it participated both as lecturers and students.
There can be no doubt that these programs have not only heightened the professionalism of our Bar but have deepened its sense of learning and fine-tuned a wide variety of skills which are the armoury of the barrister and solicitor. The demands on the profession have grown twenty-fold over the intervening years. In the last few sessions, topics unimagined when I graduated from law school are now canvassed with depth and understanding. This was in order to permit the Bar to develop a cadre of specialists who can provide highly qualified legal assistance in these new spheres.
The transcribed record of the Continuing Education programs of the Canadian Bar Association over the last thirty years present a mountain of spoken and printed words. That fact leads me to invite your permission to say something about law and language.
There is no doubt that the fine scholarship of the Bench and Bar of England is traditional and is a shared inheritance of the Canadian and American Bars. English, Canadian and American judges are distinguished by the highest qualities of literary craftsmanship designed to illuminate the doctrines of the Law. But for the lawyer and the judge literary craftsmanship is not justified merely for its own sake. It has a utilitarian side as well. Words, the spoken and the written word, are the raw material of our trade. The acquisition of a good literary style enables us to make effective use of that material is a valuable professional asset. While in some such a style is a natural gift, it can nonetheless be learned. We can all aspire to the style we are told characterize the judgments of a well known American judge: "clear, compact and complete, carrying no immaterial discussions and losing no weight through grammatical leaks or rhetorical cracks."
But the critics of lawyers in the use of language have been many. It was Shakespeare's Prince Hal who must have had lawyers rather than Falstaff in mind when he said "how now, my sweet creature of bombast".
- Charles Dickens took the symbolism of fog to characterize lawyers, judges and their use of words. "Fog everywhere, fog up the river, fog down the river, fog in diverse streets…. Never can there come a fog too thick as some score of members of the High Court of Chancery are mistily engaged in one of the ten thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee deep in technicalities and making a pretence of equity with serious faces as players might."
And there is a grain of truth in all that: there is a superficial incongruity between law and good writing or plain speaking. The American critic, John Mason Brown, put it best when he said that legal writing has no more relation to literature than ordering meals has to do with conversation. Certainly, drawing up a contract or a will is not an act of creative authorship. But it is a libel to assume, as some do, that lawyers and jurists always employ English as if they were drawing up wills. Preparing a brief, writing a decision and indeed writing an opinion offers a superb and muscular exercise in the ordering of facts, the integration of ideas and the application of logic. True, the object of the legal exercise is different than the provision of literature. Mr. Justice Frankfurter has pointed out that the pens of even gifted judges are constrained. "Caution enlists reticence in writing", he said, "makes for qualifications and on certain occasions stifles spontaneity, slows the rhythm of speech, checks the play of imagination…law as literature is restricted by its responsibility.
Thus there are differences but also similarities between the language of the law and the language of literature. They have to do with the means, the goals and the obligations of good writing in both fields. But writers in both law and in literature belong to one genus…articulate man. To say that a judge or a government official cannot write articulately with style is to overlook the contribution of John Cartwright in this country or Winston Churchill, undoubtedly a government official, in the United Kingdom.
Indeed, there is no reason why legal argument or judicial judgment should not be expressed stylishly and in good English. There is every reason why they should. While exotic or florid oratory is now quite unsuited to the Bar, there is no reason at all why submissions to the court should not be both persuasive and attractive: they may be more effective on that account alone. And of course there is every reason why our judges should use language with ease and freedom to convey their decisions. There can be few higher intellectual pleasures for the Bar or the Bench than the task of expressing an argument or a conclusion in just precisely the right language so that the thought is caught and poised exactly as we would have it. As Lord MacMillan has said, "clear thinking always means clear writing and clear writing is always good writing".
Clear language, plain language can be compelling language. One has only to recall the simple statement of Lord Esher in Ex Parte Simonds that the court will not suffer its own officer "to do a shabby thing". There is no doubt that if the word "shabby" had been left out and "dishonourable" substituted the sense might have been the same but the impact of the statement would have been less. As Mr. Justice Brandeis said reading Lord Esher's words: "We feel a tingle of the hot blood of resentment mounting to our cheeks". In another place Lord Bowen's famous dictum that "the state of a man's mind is as much a fact as the state of his digestion" illustrates how a homely illustration can give thrust and reality to conclusion.
In his essay, "The Judicial Temperment", Lord Tweedsmuir, a Governor General of Canada and a distinguished man of letters, gave the example of Lord Robinson in support of the proposition that the appropriate use of language and the perfection of style required both wit and humour on occasion. Humour because it illustrates the sense of preposterous contrast and wit because it depends on sharp antithesis. He cited the case of the Edinburgh Street Tramway Company and the Lord Provost and Magistrates of Edinburgh where Lord Robinson wrote:
- "The argument of the defenders was that 'past and future profits' is merely 'profits' writ large--for the reason that time is exhaustively divided into past and future and that present is merely an imaginary line between the two. That is of course a profound and impressive truth but there are times and places for everything and I should hardly have thought a Tramway Act exactly the occasion which Parliament would choose for teaching businessmen metaphysics unawares--more especially as this statute applies to England as well as to Scotland."
It must be that the greatest single inducement to clear thinking and clear writing and speaking is a wide knowledge of literature. I am not talking primarily of legal literature and I do not commend to you the example of Baron Pales who is said to have taken Fearne on Contingent Remainders with him for reading on his honeymoon. Nor do I think it likely that the young men and women of the present generation will be inspired to follow the example of Daniel Webster (and we are told) of Sir Winston Churchill who made it a practice to read the bible through once a year not merely as a moral or ethical treatise but as a literary guide. In any event, the current crop of contemporary translations would no doubt make that exercise less than useful today. What I have in mind is that you only have to read the biographies of our great judges and lawyers of the past to realize how versed in letters and literature most of them were and what effective tools their own use of language thus became. In his novel Guy Mannering, Sir Walter Scott, a great writer but also a practising advocate in Scotland and later the clerk of the Court of Session in the Scottish Supreme Court, describes a visit which Colonel Mannering pays to the study of his Counsel in the high street of Edinburgh. We read that "the (advocate's) library into which he was shown was a well proportioned room hung with a portrait or two of Scottish characters of eminence, Jamieson, the Caledonian Van Dyke and surrounded with books, the best editions of the best authors and in particular an admirable collection of classics. These (he said) are my tools of trade. A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these he may venture to call himself an architect". And indeed the literary tradition in our own Bar is substantial. I think of Chief Justice John Cartwright, Joseph Sedgewick, the Hamilton criminal lawyer of an earlier generation, Charles Bell and in our own time, Brendan O'Brien, each made of their lives a passage through literature. It was for each of them no idle hobby but rather the avenue through which precision and style led to the development of persuasiveness in the application of words. I do not hesitate to assert that a working knowledge of the literature of our great language coupled with the Oxford English Dictionary and Fowler's small volume entitled Modern English Usage can effectively reform any contract, vitalize any letter or bring any submission to full-bodied vigour.
It is in our own day that Lord Denning has shown us that it is easier to get a clear sense in a short sentence than in a long one. Arthur Martin has shown us in those of his cross-examinations which are recorded, that words of one or two syllables are easier to speak and usually more precisely define a thought than the multi-syllabic choices now much in fashion. It was Professor Laskin who once told me that he had never seen a sentence in which the expression "he said" improved or clarified the thought or the sense. For twenty years I have unsuccessfully sought an example to prove him wrong. The use of Latin now discarded by the Rules Committee, and I am happy to say by the judges, was never in our own time more than an opportunity for confusion at best and the image of a false scholarship at worst. It is thus for a more accurate and scholarly use by the practicing lawyer of our ordinary vocabulary in his daily work that I plead. It is this use of language which will in the end justify our proud distinction that we are a learned profession.
Thus to advance in some small way the effective use by our profession of our great language gift and to celebrate the success of the Continuing Education Program of the Bar Association that as Attorney General, I propose to establish an annual prize to be given to that Ontario writer on legal or professional matters who has by publication in the preceding year or over a period of years made a distinguished contribution to law and letters. It is intended to be a kind of Pulitzer Prize for legal writing and I announce it to honour the memory of the late David W. Mundell, a distinguished member of our Bar and for many years a pre-eminent counsel in the province on the staff of the Department of the Attorney General of Ontario. I knew David Mundell from the earliest days of my professional life and there were few if any occasions at the Bar or by his pen that he did not speak trenchantly with clarity, imagination and grace. The Chief Justice of Ontario has kindly acceded to my request to be Chairman of the Committee that will recommend the prize. With the kind permission of your officers I hope that the presentation may become a feature of this Association's annual meeting in Ontario.