I am honoured to have been asked to participate in this tribute to Frank Scott, a colleague at McGill who I was privileged to know over five years, at the end of his career, and the beginning of mine.
Ce n’est pas tous les jours qu’on m’invite à parler de F.R. Scott en tant que juriste et activiste. Je vous remercie de l’invitation et j’espère que mes remarques démontreront les liens intimes entre la pensée juridique et la pensée poétique et littéraire de cet homme extraordinaire.
In 1982, the National Film Board released a documentary tribute to F.R. Scott entitled F.R. Scott: Rhyme and Reason. For those of us fortunate enough to have known Frank, the title has real resonance. Of course, you might think that, as a law professor, I would privilege the “reason” branch of the duality, but I do not. For Frank’s legal vision -- his intuition about law’s pathologies and possibilities -- was not constrained by mere rationality. He sought to understand not only the law as enacted, but the law in action. Not only the law as it is written in dusty, and not so dusty, documents but the law as reflected in the practices by which we attempt to express ideas of justice, fairness and equality in our everyday lives as citizens.
Sa carrière en droit a commencé au début des années 1920, à son inscription à la Faculté de droit de McGill. Après un séjour en Angleterre comme boursier Rhodes, il s’est joint à la Faculté comme professeur à plein temps, un poste qu’il a occupé jusqu’à sa retraite en 1966. Mais il a continué à fréquenter le Pavillon Chancellor Day pendant les 20 années qui suivirent– en fait, jusqu’à 1983. C’est entre 1979 et 1983 que j’ai fait la connaissance de Frank Scott.
Although a man of ideas, F.R. Scott was not of a particularly theoretical cast of mind. He was a man of action. While at Oxford he came under the influence of British progressives such as Bertrand Russell, R.H. Tawney and H.G. Wells. These thinkers animated his politics and liberated his poetry. But most of his understanding of the enterprise of law and the constitution was shaped somewhat earlier by his own constitutional law professor at McGill, Herbert A. Smith. From Smith, Scott derived a few central notions that were to ground his conception of law throughout his life.
First, the Rule of Law: his defence of the "Toronto Communists" in the 1930s, his opposition to the deportation orders issued against Canadians of Japanese origin in the mid-1940s, and his support of Quebec's Jehovah's Witnesses in the 1950s culminating in his vindication of Frank Roncarelli before the Supreme Court of Canada in the famous 1959 case Roncarelli v. Duplessis being the triumph of this vision.
Second, a strong central government to advance desirable social policies: his 1930s pamphlets published by the League for Social Reconstruction, "Social Planning for Canada", "Social Reconstruction and the B.N.A. Act" and "Canada - One or Nine?", his attacks on the decentralizing constitutional jurisprudence of the Judicial Committee of the Privy Council, and his work on section 94 of what is now the Constitution Act, 1867 being exemplars of his faith in national initiatives to promote social and economic equality.
Troisièmement, Frank entretenait une conception purement formelle du droit: pour lui, la Charte québécoise des droits et libertés, à laquelle il a collaboré, et la Charte canadienne étaient le fondement des libertés civiles et l’égalité des langues : elles prohibaient non seulement les lois qui limitaient la liberté d’expression (comme il a observé dans son article « Freedom of Speech in Canada » en 1933) mais elles encourageaient aussi les libertés relatives au logement, à l’emploi et au bien-être social (comme il a revendiqué dans son texte « Expanding Conceptions of Human Rights » en 1960).
Fourth, a commitment to cultural diversity and linguistic duality: Scott was never reluctant to take on the anglophilic aesthetic presumption of the English-speaking elites in Montreal, both in his poetry and in the courts. He challenged their morals with the law, their narrowness with his translations, and their presumptuousness with his wit. Let me quote a few lines from his retrospective on the Lady Chatterley’s Lover case:
A Lass In Wonderland
I went to bat for the Lady Chatte
Dressed in my bib and gown.
The judges three glared down at me
The priests patrolled the town.
My right hand shook as I reached for the book
And rose to play my part,
For out on the street were the marching feet
Of the League of the Sacred Heart.
The word "obscene" was supposed to mean
"Undue exploitation of sex".
This wording's fine for your needs and mine
But it's far too free for Quebec's.
. . .
Oh Letters and Law are found in the raw
And found on the heights sublime,
But D.H. Lawrence would view with abhorrence
This Jansenist pantomime.
If Professor Herbert Smith's teaching provided the antecedents of F.R. Scott's understanding of law, the legislative initiatives of his sometime collaborator, Pierre Trudeau, reflected its practice. Like Scott, with whom he shared some of the epic struggles of the 1940s and 1950s, Trudeau was a believer in the Rule of Law and was a Canadian constitutional patriot. He argued for cutting the colonial tie, and for an entrenched civil liberties guarantee. Like Scott, Trudeau came to believe in a strong central government, favouring the development and deployment of national symbols -- a flag, a national anthem, national social programmes -- to galvanize Jacobean assumptions about non-ethnic citizenship. As Prime Minister, he was committed to a policy of official bilingualism.
Modern Canadian constitutional law, especially as now taught and learned in law faculties and political science departments, is true to F.R. Scott's expressed conception of its province, celebrating progress and privileging constitutional Reason. But Frank Scott himself actually lived a much more nuanced constitutional practice. He believed that the key challenges facing Canada could not be addressed without the rediscovery of Rhyme and the celebration of both Rhyme and Reason in Canadian law.
En tant que socialiste, Frank Scott fut préoccupé par les questions telles que la propriété foncière, les sociétés d’État, les taxes, les emprunts, la péréquation entre provinces et les transferts aux individus. Il concevait l’acquisition et la distribution des biens publics et le pouvoir de taxer et de dépenser comme les instruments cruciaux de l’état moderne.
More fundamentally, Scott was obsessed with the question of the legitimacy of governmental action. In his cosmology the House of Commons, as an elected body, was legitimate; the Senate, unelected, was not. The Supreme Court of Canada, as a Canadian court to which Canadians were appointed, was legitimate; the Privy Council, a vestige of remote Imperialism, was not. Parliament, as an institution of representative democratic governance, was legitimate; new-fangled processes of "direct democracy" such as initiative and recall, plebiscite, and referendum, were not. For Frank Scott the fundamental key issues in governance were the Rule of Law, the subordination of the executive to Parliament, and the power of the federal government to manage the national economy.
A constitution that would achieve these objectives was a life-long crusade for F.R. Scott. Throughout the 1930s, 1940s and 1950s, notwithstanding his successful deployment in the Supreme Court of Canada of arguments based on the idea of an "implied" Bill of Rights already residing in the constitution, he promoted the idea of imposing counter-majoritarian constraints on legislative and governmental activity under the guise of entrenched, or partially entrenched, "civil liberties" guarantees.
By the time of his death in 1985 most of F.R. Scott’s legal vision for Canada had been achieved. If anything, one might conclude that Frank Scott succeeded all too well in his endeavour to promote the constitution as a symbol of Canadian nationhood. Constitutionalism has become the talisman of contemporary Canadian politics. And yet the promised, and hoped for, nirvana is not at hand. Today, no part of Canada seems immune from a mood of disaffect. When social policy regarding health, education and welfare is debated today, the relevant battery of experts is more likely to be lawyers than it is doctors, educators and social workers, and the privileged language is more likely to be equality rights and discrimination than it is fairness, justice and social responsibility. In this light, our question must be: How should governments act so as to reinvigorate democratic politics in the face of excessive legalization of everyday life? Scott’s worry about the power of legal discourse to disempower citizens was never better expressed than in his poem:
This Is A Law
Who says Go … When the Green says Go?
And who says no … When the Red says No?
Asked I
I, said the Law,
I say Go … When the Green says Go
And don’t you Go … When the Red says No,
Said the Law.
Who are you … To tell me so
To tell me Go … When the Green says Go
And tell me No … When the Red says No?
Asked I.
I am you … Said the Law.
Are you me … As I want to be?
I don’t even know … Who you are.
I speak for you … Said the Law.
You speak for me?
Who told you you should? … Who told you you could?
How can this thing be … When I’m not the same as before?
I was made for you … I am made by you
I am human too, ... So change me if you will
Change the Green to Red … Shoot the ruling class
Stand me on my head … I will not be dead
I’ll be telling you Go … I’ll be telling you No
For this is a Law … Said the Law.
I should like to close by recalling that Frank Scott spent his entire career as a professor at the Faculty of Law of McGill University. Unlike some other leading constitutionalists of his era, he spurned the siren song of both elective politics and the Supreme Court bench. He was, passionately, and above all else, a "universitaire". Frank was fond of repeating that the primary mission of the University was to “speak truth to power."
Et ce n’est pas difficile de deviner qui, alors qu’il était professeur, Frank voyait comme des puissants, ayant besoin d’une dose de « vérité ». Politiquement, il y avait surtout Maurice Duplessis et Mackenzie King. Mais Frank visait également des élites sociaux et économiques – notamment le Président du Conseil des gouverneurs de McGill, J.W. McConnell.
The University of Frank’s time was one of the few places where dissent from orthodoxy was possible. But even in its sacred precincts there were costs to truth-telling; and as we all now know, these costs Frank Scott paid, and paid willingly.
Under F.R. Scott's vision of law, what, then, is today's truth? And who are the powerful to whom it must be told? I have no doubt as to what Frank Scott's response would be, were he here this evening. So, as the incumbent of the F.R. Scott Chair in Constitutional and Public Law, I shall conclude by expressing his absent voice.
The truth is our capacity to imagine a Canada in which we recognize the advantages we have derived from our membership in such a richly diverse, open, tolerant political community; a Canada in which we are dedicated to a just, equitable and environmentally sustainable sharing of those advantages with others – both fellow citizens of Canada and fellow citizens of the world. The powerful to whom this truth must be told are not the so-called élites; they are none other than ourselves. Such is the faith that grounded F.R. Scott's legal philosophy.
