The Supreme Cout of Canada: RIGHTEOUS BIAS GRATUITOUS REMARKS - Canada (Human Rights Commission) v. Canadian Airlines International

The reasons for judgment in Canada (Human Rights Commission) v. Canadian Airlines International Ltd. released by the Supreme Court of Canada on January 26 are questionable on three grounds.

The case concerned the reach of equal pay legislation. The Canadian Human Rights Act declares that the payment of different wages to male and female employees in the same "establishment" for work of equal value is a discriminatory practice. The broader the interpretation of "establishment" the broader the reach of the legislation. The court adopted a broad interpretation.

The Air Canada flight attendants union launched a complaint in November 1991 claiming that the airline discriminated in the wages it paid flight attendants. Air Canada argued that the flight attendants were not employed in the same "establishment" as the mechanics and pilots with whom the union sought to compare the value of their work and their pay and a Human Rights Tribunal agreed. The union asked the Federal Court to review the Tribunal's decision but that court would not overturn it. On appeal to the Federal Court of Appeal the Tribunal's decision was overturned and the matter sent back for a hearing into whether the flight attendants were paid less for work of equal value. Air Canada appealed that decision to the Supreme Court. The appeal was heard last October. The Supreme Court dismissed Air Canada's appeal.

The Canadian Human Rights Act does not define "establishment". Air Canada argued that as flight attendants, pilots and mechanics had had separate collective agreements governing their pay for 60 years they were not in the same establishment within the meaning of the Act. Finding that "flight attendants, mechanics and pilots all work in the core business of Air Canada, that personnel and compensation issues are under the direction of the central human resources division of Air Canada, that general corporate human resources policies apply to all three groups, and that a single committee within Air Canada is responsible for coordinating the process of negotiating collective agreements with all three bargaining units" the court rejected Air Canada's argument.

The court held that "establishment" could not be held to mean "collective bargaining unit" as Air Canada was implicitly arguing. As it would have been easy for the legislation to define "establishment" as "collective bargaining unit" and the breadth of collective bargaining units is to some degree under an employer's influence and could thus be used to circumvent the legislation the court was so far right. But the court's reasons practically identify "establishment" with employer and if that is what parliament meant it would have said it.

1. The case was decided on the principle, for which some precedent was found in earlier Supreme Court decisions, that human rights legislation should be interpreted so as to give it the broadest possible reach. This is plainly wrong. Only a blinkered court could fail to recognise that an interpretation supposed to strengthen human rights is in fact an interpretation that strengthens government power, which in all other contexts the courts will only do when plainly required by legislation. Human rights legislation, however justified it may be, subjects decisions that would otherwise be freely made to review and direction by government. Where legislatures think it is required the courts should strictly enforce it. They should not attempt to give it any broader reach than a strict reading requires.

2. In giving its reasons the court indulged in a bit of the gratuitous editorialising that courts are more and more prone to.  It expressed regret that Air Canada had resisted the definition of "establishment" that the court had just adopted "for almost 15 years, creating enormous expense for itself and the public, and intolerable delay in wage equity, should the flight attendants ultimately succeed."  Air Canada had a perfect right to raise the issue, twice successfully, and, if the 15 years it took to decide it is regrettable, the courts, who have complete control of their proceedings, should look to themselves.

3. The court's reasons were jointly written by Rosalie Abella and Louis Lebel. Abella, though famously appointed a judge at the age of 29, spent much of her time after that as variously Ontario Human Rights Commissioner, head of the Ontario Labour Relations Board and running a Royal Commission on Equality in Employment in Ontario. In the last capacity she modestly notes in her Who's Who entry that she "created the term and concept of employment equity". On the issue of pay equity there is no question of a reasonable apprehension of bias in Abella. There is a well know bias. Had Abella any past links with the parties she would have had to recuse herself because of a reasonable apprehension of a bias she might well have been able to overcome. On this issue there could never have been any question how she would decide the case. Air Canada never had a hope. Whether the decision was right or wrong, that is regrettable.

WHAT SECRET? WHAT WAR? - The Ghosts of the Medak Pocket

 March 1, 2005,  Books in Canada

The Ghosts of Medak Pocket
The Story of Canada's Secret War
by Carol Off
Random House Canada
ISBN: 0-678-31293-5

The flyleaf of The Ghosts of the Medak Pocket tantalises:
"Off introduces a group of Canadian soldiers who fought valiantly against the horrors of ethnic cleansing in the former Yugoslavia, and won.

...a unit of Canadian peacekeepers planted themselves between besieged Serbs and the advancing Croat army. The Canadians held their ground when attacked and engaged the Croats in the most intense combat Canadian forces had seen since the Korean War. After eighteen bloody hours, they stemmed the advance, saved the UN protected zone and rescued an embattled peacekeeping mission from irrelevance.."

In almost every detail these claims are untrue.

This is the story in a nutshell: In 1991, in the first phase of the Yugoslavian wars, Serbian forces took large areas of the newly independent Croatia where there were Serbian populations, expelling the Croats. In early 1992 former US Secretary of State Cyrus Vance brokered a ceasefire under which the Serb gains would become United Nations Protected Areas patrolled by a United Nations Protection Force, UNPROFOR. The Serbs were content with their gains, which were in effect frozen by the Vance Plan, and Croatia was too weak to do anything about them.

Canada contributed a battalion of about 900 soldiers to UNPROFOR. In the third rotation of Canadians in UNPROFOR, what was called the 2nd Battalion of the Princess Patricia's Canadian Light Infantry but made up of soldiers from several units, including reservists, arrived in Croatia in March 1993. In September Croatian forces took the Medak Pocket, a bump in the Serbian held South UN Protected Area. After a few days the Croatians agreed to withdraw. Soldiers from the PPCLI were to take over the Serbian lines, go across to the Croatians and follow them out of the Pocket. On September 15 and 16 one platoon was repeatedly fired at by Croatian soldiers in a neighbouring wood. The Canadians fired back. The Croatians went away. It seems likely that some were killed. There were no Canadian casualties.

This is billed as the first time Canadian soldiers were actually in battle since the Korean War. Off undertakes to set it in context and assess its implications. The actual fighting is described in a few pages two thirds of the way through the book. On the way there Off attempts a brief history of Yugoslavia, introduces us to many of the soldiers who served in the rotation and describes the rough and often harrowing time they had in Croatia. She also tells the stories of Canadian Croats who were involved in the most chauvinist tendencies of Croatia's politics. The rest of the book describes evidence of Croatian atrocities discovered by the soldiers after the Croatians withdrew from the Pocket, the mental and physical disabilities many of the soldiers suffered after they returned to Canada and the alleged neglect of the story until in 2002 a special Governor General's Commendation was invented for the soldiers and the engagement came to be talked of as a major victory in the line from Vimy and Ortona to Kap'Yong. The language of the Commendation is even more extravagant than that on the flyleaf:

"Under conditions of extreme peril and hazard, facing enemy artillery, small arms and heavy machine gun fire as well as anti-tank and anti-personnel mines, the members of the 2 PPCLI BG held their ground and drove the Croatian forces back. The exemplary actions of the 2 PPCLI BG caused the Croatian Army to cease their ongoing tactics of "ethnic cleansing" in the sector, without question saving many innocent civilian lives."

The book is written in the style of "good magazine writing": our author will tell us all we need to know and what to think about it. People are introduced with thumbnail sketches and seem to come from central casting: "a sternfaced man with intense blue eyes", "a muscle-bound rock-jawed man". We get to follow the author's own footsteps as she visits the places where the Patricias served. She overwrites: "the unfathomable maw of Balkan history". She jumps back and forth from Croatia to Canada and from the 1990's to World War II. There are no pictures, only bits of conversation and one page of pretty well useless maps.

The book raises many questions, which Off seems not to want to answer.

Did Canadian soldiers win a victory? Some other soldiers fired on them and the Canadians, for once, fired back. The other soldiers went away. We have no Croatian account of the engagement. Officially it did not happen. So we do not know why the Croatians opened fire on the Canadians. Did they think they were Serbs? Did they, not unreasonably, think they were helping the Serbs? Did they just want to delay their withdrawal? The Croatians were certainly dragging their feet. We cannot say the Canadians won a victory for we cannot say what was at stake for either side.

We cannot even say for certain, if it matters, and it seems to, that our soldiers killed anyone. The men who were there believe they did. Off suggests it may have been as many as 27, because the Croatians admitted that that many of their troops died in the Pocket, but most of them must have been killed by Serbs. One of the odd things in Off's story is the number of times she describes Patricias being shelled and shot at, in whatever quarters they managed to find, without firing back and without any of them being killed or wounded. The combination of danger and impotence was grim for the soldiers. But why were they being shelled and how did they emerge unscathed, unless in their minds?

If the Canadians had won a victory, what would it have meant? As the flyleaf suggests, we should have been fighting for the Serbs. Situated as they were among Serbs and with the Croats eager to get back their land the Canadians tended to think they were on the Serb side. As Off writes: "The Serbs became the white hats." Why should Canadian soldiers have been fighting for the Serbs. Did anyone in Ottawa intend that? Did Canadians want it?

The Canadians did not stop ethnic cleansing. It doesn't take much time. In the few days the Croatians were in the Medak Pocket they did, as the Patricias discovered, a pretty thorough job. The most likely explanation for the Croatians firing on the Canadians is that they wanted a bit more time. They got it.

Nor did the Canadians "save the UN protected zone and rescue an embattled peacekeeping mission from irrelevance." The Patricias tried, as other UN contingents did not, to disarm the Serbs in their areas, but they had mixed success. None of the key elements in the Vance Plan were carried out. When they were ready the Croatians simply took the UN Protected Areas back from the Serbs. UN peacekeeping and all the international activity over Yugoslavia proved irrelevant. The only question is whether it prolonged the conflict.

Canadians are supposed to be experts at peacekeeping. Judging by Yugoslavia we haven't a clue. Far from our having invented peacekeeping, it would be truer to say that peacekeeping has yet to be invented. Extraordinarily, despite the neglect bordering on contempt that the army faces in Canada, the Patricias seem generally to have made of themselves pretty good soldiers. But once they were in Croatia no one seems to have had a clear idea what they should do.

It is insinuated that Lt. Col. Jim Calvin, the Patricias' commander, was spoiling for a fight and too keen to put his men in harm's way. He did not have to look hard to find it and there seems to have been  no responsible chain of command leading either to the UN or Ottawa to rein him in or unleash him.

Frequently Off sees military action as a kind of extreme sport, a route to an adrenaline rush: "After each successful encounter...they would run around...hugging each other, high on adrenaline. It was a kind of lethal sports match...". This suggests a military vocation cut loose from its purpose, the service of the country, cut loose by neglect and the peacekeeping conceit.

Then after the high there was the down. There were many stories of psychological and physical ailments in returning soldiers. Whether some were ill because of exposure to contaminants in Croatia and whether Warrant Officer Matt Stopford was poisoned by his men Off does not know. We can know that an army cannot defend us if its men come back from deployments psychologically and physically disabled by the experience itself and not from enemy fire. Exactly what our men suffer from remains a mystery. The explanation is not a bureaucratic cover up, still less the age old horror of war, but the false position Canadians put them in, pretending to recruit soldiers while insisting they will be peacekeepers.

In a statement before the Sharpe Inquiry into the Potential Exposure of Canadian Forces to a Contaminated Environment Sergeant Chris Byrne complained that they had been led into a war "when they had only signed on as peacekeepers.":

"If I sound bitter in this statement it is because I am.... We were not peacekeepers. We were not soldiers. We were nothing over there. We weren't there to establish peace because there was no peace to begin with."

In the typical Canadian peacekeeping assignment our role was better described as truce observers. We arrived, as in Suez, well after the fighting had stopped. Not because of our peacekeeping, but for military and political reasons, both sides no longer wanted to fight. In Yugoslavia there never was a peace to keep. There were only lulls in the fighting. In the end Croatia simply took back the UN Protected Areas in August 1995 committing its fair share of atrocities under the noses of the peacekeepers. It was a move that coinciding with NATO strikes against the Bosnian Serbs led directly to the Dayton Accords and at last a kind of peace.

Was the story of the fighting of September 15 and 16, 1993 suppressed or unfairly neglected? The Globe and Mail reported on September 17:

"When peacekeepers first entered the area on Wednesday, they came under sniper and anti-aircraft fire, and they returned fire."

That about sums it up. On the inflated view Off takes of the engagement is was not enough. But no Canadians were killed and Canadians had other things on their minds. The election that would bring Jean Chrétien to power was in full swing. Lewis Mackenzie was on his book tour. The main news from Yugoslavia was about Bosnia. Canadians have seldom paid much attention to what their soldiers were doing since the Korean war ended. It would have spoiled the conceit of the peacekeeping nation to look too closely at how pointless and questionable our activity had been. It took time for the uniqueness of the Medal Pocket fighting to sink in.

The story is partly an artifact of journalism. A highly dramatic account of the Patricias deployment in Croatia entitled "Canada's Secret Battle" by David Pugliese was published in the Ottawa Citizen in October 1996 and immediately taken up by newspapers and television across the country. The actual fighting of September 15 and 16 was conflated with the general difficulties and dangers the Patricias faced. Pugliese's secret battle has now become Off's secret war.

The story of the fighting in the Medak Pocket was not that a big thing happened and no one heard about it, but that an unusual thing happened because no one in Canada has given any thought for decades to what our soldiers are supposed to be doing and Canadians still do not know what to think about it. Off's book will not help them.

ELECTIONS AND THOSE WHO TRY TO WIN THEM John Duffy and Preston Manning: Political Strategists

March 1, 2004,  Books in Canada

Fights of Our Lives
Elections, Leadership, and the Making of Canada
by John Duffy
HarperCollins Publishers Ltd.
ISBN: 00-00-2000089-X

Think Big
Adventures in Life and Democracy
by Preston Manning
McClelland & Stewart Ltd.
ISBN: 0-7710-5675-3


John Duffy's Fights of Our Lives are five general elections that he claims have shaped Canada. They are actually eight elections as he pairs the elections of 1925 and 1926, 1957 and 1958 and 1979 and 1980. The other two are the election of 1896 and the "Free Trade" election of 1988. Only the last looks like an election that decided a major issue. And perhaps it did not. Duffy reports that 40% of Canadians told pollsters that John Turner would sign the Free Trade Agreement if elected. They may have been right.

Reviewers have quibbled over Duffy's choice of elections. As he gives summary accounts of the thirty four elections since Confederation excepting Jean Chrétien's three victories, and sets the political context, it does not matter. Smartly produced, Fights of Our Lives is a kind of illustrated political history of Canada.

The emphasis is on the strategy and techniques of elections. Duffy is a lobbyist who is an occasional Liberal operative with a deep attachment to Paul Martin. He combines a worldly wise cynicism about the political game with a childish idealism. For Duffy, whatever the machinations and lies that decided elections, all is for the best in the best of all possible Canadas.

By Duffy's account, in the 19th century most voters were what would today be called "tribal" Tories or "tribal" Grits attached to parties by religious, racial or class interests and unlikely to change vote from one election to another. The swing vote was small. The millions of Canadians who voted for Mulroney's Tories in 1984 and anyone but in 1993 would have been unthinkable. The party machines existed simply to see that known Conservatives and Liberals got out and voted.

But perhaps Canadians just consistently found Sir John A.'s the best government on offer from 1867 to 1891, pausing to teach him a lesson in 1874 after the Canadian Pacific Scandal. Many of the same voters who returned 52 Tories out of 92 Ontario seats in the Dominion election of February 22, 1887 had returned 64 Liberals to only 26 Tories in the provincial election of December 28, 1886. They must have been equally content with Sir Oliver Mowat's Grits while he was Premier from 1872 to 1896. With governments smaller, less active and less intrusive in the 19th century, voters may not have seen any reason to switch votes between elections, while perfectly prepared to do so.

Duffy's first election is the Liberal win in 1896. Macdonald had died in 1891 after his last, comfortable, victory that year and the Tories had in Sir Charles Tupper their fourth leader in five years. The big issue of the day was the Manitoba Schools Question. The Manitoba Act, 1870, by which the Province of Manitoba had been created, had guaranteed the continuation of existing Catholic schools. The Liberal government of Manitoba had abolished them. Court proceedings that went all the way to the Judicial Committee of the Privy Council had held that it was up to Ottawa to override the provincial government. The Manitoba Premier, Frank Greenway, remained obdurate in the face of Ottawa's attempts to negotiate a compromise.  The Tories, by Duffy's account practically a branch of the Orange Order, had steeled themselves to pass remedial legislation to protect the Catholic schools in the face of an upsurge of anti-Catholic and anti-French agitation. Laurier would have none of it. He said he would solve the problem by taking the "sunny way", implying that a Liberal Prime Minister could do a deal with a Liberal Premier that had eluded the Tories. Laurier calculated he could count on the support of Quebec for a native son and safely woo the Protestant vote. He was right. Laurier won and was Prime Minister for 15 years. The Liberals have governed Canada for 76 of the last 107 years.

Duffy analyses each of his elections on the analogy of football plays with droll drawings to outline each play. For 1896 he has Laurier playing the "Quebec bridge", holding a divided country together, while Tupper is playing a "Double tribal whipsaw", stirring up hatred between English and French in the hope of undermining a moderate and statesmanlike Laurier. This is close to the exact opposite of the truth. Duffy greatly exaggerates the threat to Confederation presented by the Manitoba Schools Question and passes over the fact that Laurier made common cause with the anti-Catholic and anti-French tendencies championed by D'Alton McCarthy, whom he was ready to take into his cabinet when McCarthy died in 1898.

1896 was the year of the Liberals' original sin. The "sunny way" was tantamount to a lie. Laurier sold out Manitoba's Catholics for power. In doing so he did not bridge the sectarian divide that was at the root of the Manitoba Schools Question. He levered it. He played to Protestant fears of clerical rule by exaggerating the power of the clergy and the courage of his defiance of them. What Duffy sees as a brave liberal stand persuading English-Canadian Protestants that a French-Canadian Roman Catholic was not a tool of the bishops in fact played to Protestant paranoia, encouraging their suspicions that the Roman Catholic clergy were an interfering menace. As Laurier knew, the Catholic Ultramontane clergy were on the defensive. But they were useful bogeymen.

Duffy jumps forward almost thirty years from 1896 to the elections of 1925 and 1926 in a bizarre and reverently Liberal chapter. After World War I, agrarian and populist parties sprang up in Ontario and the West sending 65 Progressives to Ottawa in 1921, the second largest party after Mackenzie King's Liberals. As the PC's in the 1990's hoped Reform/Alliance would fade the Progressives did and in 1925 116 Tories, 99 Liberals and 24 Progressives were elected. King decided to cling to power and had scraped through for eight months when in late June his government faced censure in the House of Commons over a customs scandal. Rather than face defeat King asked the Governor General, Lord Byng, for a dissolution of Parliament and an election. Byng refused and called on Arthur Meighen, the Tory leader, to form a government. No serious constitutional scholar doubts that Byng was right to refuse King. Whether Meighen was wise to accept his invitation to form a government is another question, but, as he had won the most seats in the election only eight months before, it seemed a reasonable thing to do. Meighen formed a government but in less than a week was defeated on a specious Liberal procedural motion which divided the undisciplined Progressives and passed on the vote of one Progressive MP who breached a pairing arrangement by which two members on opposite sides agree not to vote to allow for their absence.

In the campaign that followed King ranted on about Byng's refusal of a dissolution and pretended that it reduced Canada to colonial status. His whole campaign was one long lie and Duffy admits as much. But he still claims that the election marked a turning point in Canada's relations with Britain and constitutional development, buying King's lie. In fact Canada's full independence was sealed by the Imperial Conference of 1926 and Byng was acting in accordance with its principles in refusing to refer his decision to London as King had urged him to do. King then alleged interference from Downing Street. As for the role of the Governor General, there is no reason to suppose he or she would act differently today, if a similar decision arose, and quite rightly. But King had upped the stakes in political mendacity from Laurier's effort in 1896 and succeeded and mendacity has been a first principle of Liberal politics ever since.

Duffy's perspective on each election is that of the political strategist, a strange breed, who often pop up in the media, as Duffy himself does, but do their work in the backrooms. For the political strategist the winning of elections is something largely detached from the character of candidates, the merits of their policies or the honesty of their advocacy. It is a question of polls and positioning, image and message. The strategist thinks he knows what makes people vote and can tell the politician what to do and say and where to go to make people vote for him. There are no hard standards by which political strategists are judged. For them defeat is the fault of politicians who fail to take their advice. Thus, according to Duffy, Trudeau lost the election of 1979 because he insisted on preaching about national unity and a new constitution against the advice of his strategists, who wanted him to show concern for bread and butter issues. But Trudeau was never interested in bread and butter issues and after 10 years the voters knew that. Joe Clark demonstrated his incompetence in nine months in power and and Trudeau would have won the 1980 election whatever he had said.

Duffy rates Clark an astute political strategist suggesting he would have gone down as one of the greats if he had stayed in the backrooms. Nothing in Canadian politics could be more patent than Clark's stupidity. He is at it again opposing the Alliance/PC merger. But if in Hollywood you are only as good as your last movie the political strategist is always as good as his one victory. So Clark won the Tory leadership in 1976, by astuteness according to Duffy. In reality the fractious party could not settle on any of the candidates with more character and history and had to settle on Joe Who.

Duffy's strategist's perspective leads to overanalysis of elections. Debates and ads and speeches and posters that most people never paid any attention to are carefully assessed for their impact. He knows his stuff. The story of recent campaigns may awake nostalgia in some readers and earlier campaigns have antiquarian interest. But elections were won and lost on the character of candidates as demonstrated before campaigns began, on what they had done and what people believed they would do based on much more than campaign promises. Campaigns rather reflect than shape public opinion, which is founded on everything from elementary school indoctrination to Hollywood movies.

Where political strategist become really dangerous is if they get to shape government policy between elections. This happened with the Ontario Tories in recent years and they and the province suffered from it.

Duffy's third featured electoral battle is Diefenbaker's two stage triumph of 1957 and 1958.  It was what he calls a "populist rush", which amounts to no more than saying that Dief was more popular than the elderly and arrogant Liberals who had been in power for 22 years. Dief's campaigns did make a difference. Even as a widespread figure of fun in the 1960's he was able to keep Pearson from a majority. But Dief's melodramatic oratory was about the farthest thing imaginable from the strategy and image that Duffy and his colleagues set so much store by.

The 1979 and 1980 elections do not seem particularly interesting. Perhaps for Duffy just the idea that the legendary Trudeau could be defeated seems extraordinary. But after the Trudeaumania election of 1968, another "populist rush", Trudeau was never a particularly popular politician. The Tories beat him in English Canada in every election. Quebec kept him in power, giving him 74 of its 75 seats, more than half his caucus, in 1980.

Quebec is a black hole in Duffy's analysis. It sends squadrons of Liberals to Ottawa in most elections and then surprises with 50 Tories in 1958, explained as simply backing a winner. Mulroney's Quebec strength it is darkly suggested grew from wooing separatists. The same separatists who voted overwhelmingly for Trudeau in 1980 presumably.

The 1988 election was the most dramatic in living memory but it is doubtful whether election strategy and tactics made much difference to the result. Free trade was simply a good policy whose time had come. It was bound to provoke emotional opposition but it drew support across party lines.

Preston Manning's Think Big is a political memoir, the first half of which covers familiar terrain in the history of the Reform Party and Manning's personal history. The second half of the book is what is new, and, to a degree, interesting. It covers the united alternative initiative, the formation of the Canadian Alliance, the leadership race that ended in Manning's defeat by Stockwell Day, the general election of November 2000 and Stockwell Day's downfall.

Manning is not shy about presenting himself as a model politician whose avowed Christianity threatens no policy commitments but stands as a warrant of his probity and selfless concern. In fact he was a consummate political strategist in politics whose success and failure demonstrate the limitations of that role. Far from being a right wing conviction politician Manning seems to have had no political beliefs at all beyond a belief in his own unique capacity to manage what issues might arise. In Waiting for the Wave Tom Flanagan has lucidly described the process by which Manning caught successive waves of Western resentment, tax fatigue and deficit anxiety to carry Reform to 52 seats in the 1993 election. To do this he had to join in and exploit the Liberals' demonisation of Mulroney's Tories. It was a remarkable achievement for a party founded barely six years before.

But in the ten years that have followed the movement that Manning founded and for over ten years led and was identified with has not been able to build on that success. The election of 1997 brought eight more seats in a larger house and official opposition status but the Tories had made an important comeback. Manning moved to finish off the Tories on the day Jean Charest announced his resignation as leader announcing the united alternative (never "unite the right") initiative. Unwilling to merge with the Tories, whose demonisation had been essential to his success, Manning hoped to peel off enough to weaken the party fatally. But the united alternative, leading to the founding of the Canadian Alliance was a failure. For the most part the Tories recruited were fervent neo-cons who tended to push the new party to the right when Manning would rather have moved stealthily to the centre. And then the new party, which was little more than new in name only, would need a new leader. Manning could not understand this.

Manning seems genuinely to have believed in 2000 that he was on his way to becoming Prime Minister. He called his campaign for the Alliance leadership PM4PM. As Manning tells the story he was fearful of defeat from the outset of the leadership campaign. News reports at the time had him shocked when the results of the voting were announced. One difficulty he faced was the need openly to sell himself. He had always been selling himself. He is at it again in Think Big. But always before he could hide behind the movement or the cause, the Reform Party or the United Alternative or a Triple E Senate and he faced no serious rival in the political terrain he had taken for himself.

He says he and his supporters were exhausted from the general election, the United Alternative initiative and the founding of the Alliance. He complains that the media paid more attention to the pronouncements of Stockwell Day and Tom Long, the new faces, than they did to him. He seemed at the time to keep a deliberately low profile and his low key campaign gave every sign that while he welcomed other candidates as giving legitimacy to the new party he assumed the leadership was his. He could not credit that both old Reform members and new members who believed that the Alliance would be a real alternative to the Liberals wanted a new leader and found in Stockwell Day a credible one.

Manning complains that Day won the leadership by aggressively recruiting Christian social conservatives. As if Manning had not appealed to them, if not so aggressively, having had no competition; or the Manning brand in Canadian politics did not go back to Bible Bill Aberhart's radio ministry, continued by Ernest Manning until 1989. In any event, Christian support for Day was a secondary factor. Tom Long, the Ontario Tory and political strategist who placed third on the first ballot gave his energetic support to Manning for the second. But Manning's vote did no grow and practically all of Long's support went to Day. Not a fundamentalist Christian among them.

To Manning the small advance made by the Alliance under Day in the 2000 election bears out his contention that something went wrong with the Alliance leadership race. But would Manning's fourth appearance as party leader have carried the Alliance to a better result? Almost certainly not. Manning is harshly critical of Day's every step. His defence against the charge that he undermined Day's leadership is basically that Day's leadership was indefensible.

But Day was not an unprecedentedly untalented politician. He is no worse than Joe Clark. He had a fair reputation at Alberta Treasurer and has been an effective foreign affairs critic since Stephen Harper became leader of the Alliance. Wary lest the Alliance should be accepted as an alternative government the Liberals subjected Day to unprecedented fire in 2000. Manning never faced anything like it.

Manning's political career is over. He has become not so much an ideas man as a topics man. He ends the books outlining a wide range of topics from the ethical implications of a genetic revolution to the future of the Canadian dollar about which he has nothing to say.

Manning devotes a whole chapter and several passages elsewhere to an attack on Liberal ethics, Shawinigate etc. This is well enough done but rather stale. It should have been material for vigorous attacks on the Liberals in the House of Commons and election campaigns. But Manning was always thinking too big and too busy plotting the demise of the Tories to be effective at day to day politics. The Tory rump, pretending nothing much had changed, were often a more effective opposition than their more numerous Reform or Alliance colleagues.

For all his electoral success Manning was never able to form a party that was more than his instrument. When he tried to do so it got out of his hands and began to fall apart. As Stephen Harper has managed to pull it together he has come around to seeing that Manning's most successful strategy, the attack on the Tories must be abandoned.

Even if Harper leads the Conservative Party it will be something more than his instrument. Manning's strategy of catching waves could never build the long term base of support that the Tories have relied on to keep going through ten years in the wilderness. It is the revival of that base of support, the return of demoralised Tories, reinvigorated by the merger and the burying of the Reform hatchet that is the Conservative Party's hope for the future rather than Manning's effort to catch waves. Before the Martin juggernaut the Conservative Party may not even match the success of Stockwell Day's Alliance in 2000. But they will be an effective opposition and some day a new Tory government. Canadian politics will recover from the damage Manning did. It will continue to suffer from the mendacity of the Liberals and the distractions of political strategy.

BY-PRODUCTS OF THE LAW Stikeman Elliott, Tom Berger, Scott Turow

March 1, 2003,  Books in Canada

Stikeman Elliott
The First Fifty Years
by Richard W. Pound
McGill-Queen's University Press
ISBN: 0773524118

One Man's Justice
A Life in the Law
by Thomas R. Berger
Douglas & MacIntyr
ISBN: 1550549197

Reversible Errors
by Scott Turow
HarperCollins Publishers Ltd.
ISBN: 0002005301


Aspiring lawyers used to be told that the practice of law was no way to become rich. Lawyers have generally vied with doctors for the honour of having the best paid occupation, but, though many lawyers have made a very good living, lawyers who grew rich generally did so from business interests outside the practice of law itself.

Yet in 1952, the first year of his partnership with Fraser Elliott, Heward Stikeman, not yet 40, made about one million dollars from their practice. Later Stikeman and Elliott became very rich indeed from business interests outside the practice of law, particularly from CAE, which dominates the market for aircraft simulators for pilot training. But the interest of Stikeman Elliott is in the first few chapters, which describe how Stikeman and Elliott managed to build their extraordinarily lucrative practice.

Stikeman, born in in Montreal in 1913, worked as a lawyer for the Department of National Revenue from 1939 to 1946. From 1943 he was Assistant Deputy Minister of National Revenue. The Commissioner of Income Tax, from 1943 Deputy Minister of National Revenue, was Colin Fraser Elliott, the father of Roy Fraser Elliott, Stikeman's future partner. In the small society of Ottawa Stikeman became a friend of the father and the son.

Roy Fraser Elliott, born in Ottawa in 1921, graduated from Queen's in 1943 and Osgoode Hall Law School in 1946. After a year at Harvard he joined, at Stikeman's bidding, the firm Stikeman had gone to on returning to Montreal in 1946 after his war service at the Department of National Revenue.

War-time demands and post-war hopes had greatly increased the level and complexity of taxation. Stikeman had gained unparalleled knowledge of the legislation, some of which he helped to draft, and of its administration. Stikeman Elliott started out as a tax law boutique with only four lawyers. Good advice or successful representation could save clients lots of money and Stikeman and Elliott were paid accordingly. There were few other tax lawyers and none who could claim the knowledge and connections of Stikeman and Elliott.

Left wing critics would see in this something crooked: high priced talent helping corporations avoid paying their fair share. In fact the opposite is true. Overreaching governments risked stifling the economy with high taxes and were forced to try to mitigate the economic damages through   complicated legislation. These produced their own economic distortions and a lucrative but finally unproductive service industry of tax advice. Getting in on the beginning of this industry allowed Stikeman and Elliott to become rich through the practice of law.

Stikeman Elliott's advantage in tax law could not last forever and the firm gradually expanded into general business law and has now become a big full service firm much like all the others, whatever Stikeman Elliott may say about its special values. But as late as the early seventies Stikeman and Elliott were the only partners, doling out salaries and bonuses to their hard working and talented associates as they saw fit.

In the 1950's the old law schools did not produce lawyers fast enough to keep pace with the growth of the country, its economy and the complications of the law. There was work to be had for the asking and Stikeman and Elliott were never shy about asking. Even today the market for legal services is not so efficient that getting work does not count as much as doing it well, to say nothing of pricing it competitively. But the corporations that sustain the big firms are not so tied to old connections and will shop around. Careers such as Stikeman and Elliott enjoyed are now impossible.

Richard Pound is known to Canadians as a member of the International Olympic Committee. Like a good sport he has compiled the book his firm wanted though no one will want to read it through. It is surely no a coincidence that it is published by McGill-Queen's University Press and Pound is Chancellor of McGill. They have published duller and less worthy books. Hundreds of people who have worked at the firm are kindly mentioned. Big deals and big cases are briefly recognised. The opening of new offices in Toronto, Ottawa, London and beyond is chronicled. Those who left the firm early, unless like John Turner and Donald Johnston they went on to distinguished careers in politics, are sometimes curtly dismissed. There is nothing on the firms finances after 1970.

Tom Berger has not grown rich from the practice of law. Its attraction for him has been influence rather than money. Berger is best known to Canadians for the Mackenzie Valley Pipeline Inquiry and for resigning from the British Columbia Supreme Court in 1983 after public statements he made urging the inclusion of native rights in the constitution lead to an investigation by the Canadian Judicial Council. British Columbians may remember him as the leader of the provincial NDP for a brief period before he lost his seat and retired from electoral politics in 1969.

One Man's Justice is a memoir of Berger's favorite cases. Only incidentally does it recount his life beyond the cases. Berger had a commendable distaste for the phony side of politics:

...the proclamation of slogans....the constant meetings, speeches, the time spent in "working the room," meeting people you'd never met before and ("Nice to see you again") and would never meet again."

But he was as keen as any politician to make his mark on the life of the country; he simply wanted to do it in the courts rather than in a legislature. He would not have to persuade the people to support him, just a few judges.

Berger says nothing about his work as a judge. He is a strict believer in the rule that judges have their say in their reasons from the bench and should say no more than that. He breaches no client confidentiality describing his cases off the bench. But he whinges that others did it and got away with it in defending himself against the allegation that by urging the inclusion of native rights in the constitution he had breached the rule that judges should not speak out on political issues. It is a longstanding and sound rule made only more important by the increased political importance of the courts since the Charter. The Canadian Judicial Council did not recommend his removal from the bench. But Berger was fed up with the controversy. He had always been uncertain about wanting to be a judge, and finally he saw his hopes of sitting on the Court of Appeal or Supreme Court of Canada—where he fancied he could make law rather than just decide individual cases—fading. He flatters himself that his intervention helped get native rights in the constitution.

Berger likes to believe that in the cases he recounts he was "engaged in the pursuit of justice". Such a belief may give an advocate the confidence and energy to carry through a case to a successful conclusion. But it can also blind an advocate to the messiness of life, which the law exists to sort out. Berger's accounts of his cases are recapitulations of his advocacy. His clients were always right and if they did not win they should have. The only criminals Berger knew in an extensive criminal practice were pitiful or innocuous fellow who simply had their own subculture. Though he goes on too long about some of his cases one never feels one gets the full story.

On native rights Berger is a true believer. Fellow true believers will be grateful for his advocacy. Those unsure what to make of it all will learn nothing from him.

Scott Turow has grown rich from writing mystery novels about the law. The money he has made from novels like Presumed Innocent, turned into a successful movie starring Harrison Ford, has allowed him to do pro bono work that has extended his experience of criminal law and provided raw material for further novels. He has acted for prisoners on death row and prosecuted corrupt judges, both themes in his latest novel.

In Reversible Errors Rommy Gandolph, a dim witted petty criminal, is, in 2001, awaiting execution for a triple murder that took place on July 4, 1991. Arthur Raven, a former prosecutor now settled into a comfortable civil litigation practice, is conscripted by the Federal Court of Appeals to make one last attempt to save Gandolph. Rommy gave a full and videotaped confession. It looks like a simple open and shut case. But not for long. The pace and complication of the story,  which never loses plausibility, is impressive. The original investigating policeman, prosecutor and judge become involved. Divergent perspectives and interests are developed. One grows impatient for the next twist as Turow recounts the dreary amours of his principal characters at unnecessary length. The dialogue can be disconcerting. Turow seems to be trying to update the hard boiled idioms of film noir. Either that or cops and  criminals and lawyers in Chicago, where Turow practices, learned to talk at the movies.

Reversible Errors is not a novel about capital punishment. Turow set out his reasoned pragmatic opposition to capital punishment in a New Yorker article in January. In Reversible Errors it is simply a background fact. For the crime novelist the end of capital punishment would be a loss, draining some of the life and death drama from the genre.

The practice of law is not about winning or losing or changing the law without bothering with politics. It is the hard and generally well paid work of resolving people's conflicts according to settled rules so that they will not fight in the streets. Drama, wealth and power are occasional by-products of the resulting exposure to all aspects of human life.

IN TROUBLE WITH THE LAW J. L. Cohen

November 1, 2002, Books in Canada

Renegade Lawyer:
The Life of J. L. Cohen
The Osgoode Society for Canadian Legal History
University of Toronto Press
ISBN: 0802035132

J. L. Cohen was one of the most prominent labour lawyers in Canada before the present regime of collective bargaining was established in the middle of the last century. He played an important role in establishing that regime, working with both the Ontario and Dominion governments. He also acted for a number of Communists in trouble with the law. The eminent career he built on exceptional hard work and intelligence ended with his conviction for the assault of his 22 year old occasional lover and secretary in 1945 and subsequent disbarment. He died in 1950 only a few months after his reinstatement. Laurel Sefton MacDowell speculates he committed suicide.

Cohen’s is a poignant story and a significant public life. The personal sources for his life are limited until the crisis at the end, for which MacDowell gives us more than we need from the transcripts of the proceedings against him. A workaholic, Cohen had for years relied on a combination of poorly understood prescription drugs and alcohol to keep him going.

We cannot now know Cohen. The death of his father when he was 13, leaving him to support his mother and five other children, no doubt shaped him. But invoking feminist theories of masculinity, a presumption of general Anti-Semitism and political prejudice is no help in understanding the man or his career.

It is Cohen’s public life that must be of lasting interest. Today labour law is a specialty sharply divided between union work and management work. Lawyers choose to go into it on one side or the other as they start out. Cohen seems simply to have taken what work he could get. Actually born in England in 1897 to immigrants from Lithuania, Cohen grew up in the garment district of Toronto. He found himself acting for both employers and employees in the garment industry. Some union activists were Communists whose demonstrations had them in continual conflict with the police. Cohen acted for them. MacDowell wonders why he never joined the Communist Party of Canada. Perhaps the answer is simply that he was never a communist. No doubt he was sincerely sympathetic to the CCF. He hoped to run for parliament as a CCF candidate in Windsor in 1945. His candidacy foundered on the reluctance of the CCF to accept a candidate with Communist support when the Party, under its latest directives from Moscow, was making common cause with the Liberals in the face of the rising CCF.

And no doubt Cohen sincerely believed in the collective bargaining regime modelled on the American Wagner Act that he advocated on behalf of unions. But what came first for Cohen was the work, for which he seems almost always to have been fully paid. He made for himself and his family a good life. He had little time for politics or society except as it related to his work.

Until 1934 Cohen acted for both employers and employees and was a director and shareholder of several companies. He arranged police protection for strikebreakers with Police Chief Draper, who had led the long running battle with Cohen’s Communist clients.

MacDowell speaks of Cohen bringing “his practice into line with his social outlook” and an “inherent conflict of interest in acting for both management and employees...”. But there is no inherent conflict. Paradoxically, while labour management relations have become more pragmatic and even businesslike under the regime that Cohen pioneered, labour has felt it necessary to construct a moral divide across which no bosses’ lawyer could be trusted to represent workers and any union lawyer who represented a boss would be a traitor.

Renegade Lawyer is published by the Osgoode Society for Canadian Legal History, but there is little law in it. Cohen had mixed success for his Communist clients, partly because they rather wanted to go to gaol for propaganda purposes. He declined to act for Tim Buck when the Communist Party of Canada was outlawed fearing Buck “wanted a show trial to propagandise the Communist Party of Canada’s aims, not a simple legal defence to gain the release of the accused.” MacDowell seems not to have read the reasons for judgment in a single case in which Cohen appeared, preferring to insinuate judicial bias rather than to analyse legal reasoning. If Cohen’s civil liberties work had any effect on the law it does not appear from this book. Cohen’s dedicated advocacy bespeaks a faith in the law and the courts his biographer obscures.

The daughter of a distinguished union organiser and official and former wife of an Ontario Labour Relations Board chairman and affiliated with the Centre for Industrial Relations at the University of Toronto. MacDowell is steeped in labour history and industrial relations ideology. She does not feel it necessary to explain the significance of the struggles in which Cohen represented unions. Unions had a long history in Canada before Cohen came on the scene. The procedures of labour relations boards, certification, collective agreements, grievance and arbitration, the sidelining of courts, in the establishment of which Cohen played an important role, were major breakthroughs for unions but not the only possible outcome. It remains basically a North American model classically entrenched in Canada and more fragile in the United States. A large constituency of industrial relations academics, labour lawyers, law professors, arbitrators, human resources professionals and union officials have decided it is for the best and argue only over details, either pleasing to unions or not.

Stepping back in an epilogue to assess the importance of Cohen’s public life MacDowell sees nothing to consider but the arguments of Marxist academics for whom collective bargaining is a detour from the path of revolution. Their worst offence is to sound some times like right wing critics of unions.

MacDowell entertains suspicions of a political conspiracy behind Cohen’s conviction for assault and prejudice in the benchers of the Law Society in his disbarment. But her account makes the simplest explanation the most likely. He was guilty of assault causing bodily harm and his reformatory sentence and disbarment followed inevitably from that.

Cohen was by all accounts an abrasive personality. Many eminent lawyers have been difficult, flawed personalities. He did important work. But his work was finished. He would have been out of place in the conformist world of labour relations he helped establish.

CHEERING BERTHA WILSON The First Woman on the Supreme Court of Canada

October 11, 2002,  Books in Canada

Judging Bertha Wilson:
Law as Large as Life
Ellen Anderson
The Osgoode Society for Canadian Legal History
University of Toronto Press
ISBN: 0802036481

In 1976 Bertha Wilson became the first woman on a provincial court of appeal, Ontario's, and in 1982 the first woman on the Supreme Court of Canada. The coming of the Charter has drawn public attention to the judges of the Supreme Court of Canada. Judging Bertha Wilson is the first biography of a Supreme Court judge of the Charter era. Ellen Anderson is a fan of Bertha Wilson. She neither judges her nor pleads a case for her. She cheers her on through a full life.

Wilson was born in Kirkcaldy in Scotland in 1923. She received an excellent Scottish education and developed a lifelong interest in philosophy growing from the Scottish Enlightenment tradition including Hume and Adam Smith. Both her brothers became philosophy professors. She married an equally bright Presbyterian minister, John Wilson, and began the life of a Scottish minister's wife. In 1949 John Wilson was called the the United Church in Renfrew Ontario. A stint as a navy chaplain brought the Wilsons to Halifax where, in 1954, Bertha enrolled at the Dalhousie Law School. John's job in church fundraising brought the Wilsons to Toronto and in 1958 Bertha was hired as an articling student by the old and respected firm of Osler, Hoskin & Harcourt.

Hard work, intelligence and and an appetite for reading that extended to the dustiest law books enabled Wilson to build from the routine legal research of an articling student a unique research practice at Osler's. She never went to court and had practically no clients of her own but she proved herself invaluable and was esteemed and rewarded accordingly. When Ottawa was looking for a woman to appoint to the Ontario Court of Appeal she seemed eminently qualified.

Anderson's account of Wilson's life is straightforward and agreeable. But the bulk of this book is a review of Wilson's judgments. Even for lawyers, trying to discern a pattern in the judgments in the hundreds of cases which circumstances bring before a long serving appellate judge is a daunting task. Anderson thinks she has found a 'Canadian Philosophy of Judicial Analysis' in Wilson's judgments. Her summaries of Wilson's judgments are superficial and uncritical. Only once does she tentatively suggest that Wilson fell short of her ideal. As one struggles to make sense of the flow of cases it may seem that Wilson was surrounded by fools, so obviously right Anderson always thinks she was. But few cases reach the appellate courts if there is not something to be said for both sides.

Judging Bertha Wilson is the culmination of years of work. It is based on Anderson's doctoral thesis 'Bertha Wilson: Postmodern Judge in a Postmodern Time'. She also wrote an MA thesis on the Scottish common-sense philosophers and their importance to Canadian law and culture and an LLB study on Wilson's jurisprudence. Anderson is the victim of too much postmodern education. Her theoretical apparatus only obscures her story. Her reading in fashionable theory has not been digested and she seems not have have managed the one thing educators at all levels say they aim at, critical thinking.

Anderson says Wilson is a postmodern judge with a distinctively contextual approach to the law. "Postmodern" or "contextual" occur hundreds of times in the book but could be deleted from the text with little damage to the syntax and no loss of meaning. Both are simply pretentious ways of excusing lax thinking. The judge who disregards context is a straw man.

Wilson's fondness for reading philosophy - she and her husband would spend days mulling over a passage from Heidegger - has encouraged Anderson to sprinkle references to Aristotle and Hume through her commentary on Wilson's judgments. Those who have not read philosophy will find these largely meaningless. Those who have will be sceptical. Anderson seems to think, and Wilson, who read the manuscript, may agree, that Hume's position on causation has some application to deciding cases. Thus "Her recognition that self-defence and provocation could co-exist and be co-determinative of the appellant's behaviour suggest a much more Humean notion of causation than is customary in our law courts". But Hart and Honoré's classic Causation in the Law, not in a bibliography that includes Aristotle, Derrida, Hume, Lyotard, Rorty and Adam Smith, firmly and rightly says that Hume's treatment of causation "is on a level of generality which is au dessus de la melée of the lawyer and the historian."

Wilson was a clear writer, an essential qualification, not by any means always met, for an appellate judge. She was fond of writing and wrote too much. On the bench she was courteous but firm, attentive, gently witty and well prepared. On the court of appeal and in commercial cases in the Supreme Court of Canada she stood generally for clarity and certainty. In family law cases, where feminists looked for a partisan, she was most concerned to see that legislative reforms, driven by the women's movement, worked as the legislatures intended. All this was neither exceptional nor exceptionable and well done.

Wilson's arrival on the Supreme Court of Canada coincided with the coming into force of the Charter. Judges knew well the dramatic implications of the Charter. They were faced with a choice between an restrained approach consistent with received jurisprudence and respectful of parliament and the legislatures and seizing on the Charter as an instrument of untrammelled power. With the slightest of hesitation they went for it. Wilson's account of the keenness of the judges to deal with Charter cases as they began to come before them, leaving aside, often to her, the traditional common law and statutory interpretation they had been used to, gives the lie to her claim "We didn't volunteer" set out in a 1999 contribution to Policy Options.

The most dramatic, and predictable, illustration of this was the Morgentaler decision. Positions on abortion are so vehemently held that on both sides ends seem to justify means. Politicians gave assurances when the Charter was being passed that, despite Roe v. Wade in the United States Supreme Court, it should not mean an end to the law on abortion. This was both true and disingenuous. Nothing in the Charter implies a right to an abortion. If you can find that in it you can find anything. But that is exactly the point. Finding whatever you like in the Charter was the predictable outcome.

Other judges tried to cover their decision in Morgentaler on procedural rights grounds. Wilson would have none of that and became the pro-choice hero as a result. She was pro-choice when she went on the court and no amount of legal analysis can get around the fact that she used the power given her by the Charter to enforce her personal convictions. Nor again, pace Anderson, does Hume have anything to do with it.

Wilson was both a card carrying New Democrat and a socialist. She seems never to have been politically active except on the bench. She showed her colours most freely in dissents that would have extended the Charter's guarantee of freedom of association to collective bargaining and a right to strike. The principal cases in which she did this concerned the public sector, the most doubtful field for union activity. The point of such a fanciful reading of "freedom of association" is not that it would stop governments from passing back to work legislation or wage controls but that it would subject them and finally the minutiae of labour legislation to the arbitration of the Supreme Court of Canada, which, under Section 1 of the Charter will allow or disallow whatever it likes.

In McKinney, a case concerning compulsory retirement at universities, Wilson sets out her understanding of Canadian's political beliefs as an aid to interpreting the Charter:
 
"The vast majority of citizens nowadays want their government to be continuously active. Few people still subscribe to the doctrine that the less government does the better will be the result. The main controversies are centred not on whether government should act, but on how and when it should act.
....
...it seems generally accepted by our historians that the political philosophy of laissez-faire has not been embraced to any substantial degree in Canada.
....
I believe that this historical review demonstrates that Canadians have a somewhat different attitude towards government and its role from our U. S. neighbours. Canadians recognize that government has traditionally had and continues to have an important role to play in the creation and preservation of a just Canadian society. The state has been looked to and has responded to demands that Canadians be guaranteed adequate health care, access to education and a minimum level of financial security to name but a few examples."
 
Apparently the Charter has nothing to offer the substantial minority of right-wing Canadians. They are one minority not to be protected.

As Anderson explains it, Wilson believes the Charter is to be interpreted in the context of a kind of Canadian political consensus. Neither she nor Wilson seems able to contemplate the possibility that the consensus could change. If the longstanding Liberal hegemony were to end and be replaced by an Alliance/Conservative hegemony would the Charter be there to accommodate it or to thwart it?

Wilson was keen on intervenors. These she felt would help the court with "'legislative' facts illuminating the socio-political environment". In other words they would encourage a free ranging political debate before the court. An unnamed judge wrote in an internal memorandum that the court "now takes on the appearance of an ancient jousting contest with each side gathering up as many spear bearers as they can". The piling up of material from all interested lobbies before the court has coincided with a reduction of actual oral argument to a perfunctory ritual. Despite denials by Chief Justice Beverley McLachlin and others, the influence of the law schools' star ideologues serving as clerks to the justices must have expanded.

Anderson seems never to have read a judgment of Wilson's she does not like. But Wilson wrote not only too long but too often. She not only dissented often but often wrote "divergent concurrences". For Anderson this is sowing fruitful seeds for the future of the law. In fact, Wilson with her colleagues, was simply sowing confusion by the inability to settle collegially on reasons for judgment. Wilson's bright and curious mind and wide reading seems to have given her an exaggerated confidence in her opinions. Like a tiresome student in a seminar she always had to have her say. And keen on philosophy, history and sociology the facts and the law of particular cases became lost under generalities and her natural clarity became diffused.

When this book was published there was some comment in the press about Wilson's objection to what she called lobbying amongst the judges, from which she felt excluded.  Retired Chief Justice Antonio Lamer was quoted in The Globe and Mail as saying:
 
"Bertha was very often out in left field - you know, way out there. There was no point in going to Bertha's office and saying 'Bertha, if you were going to change this or that, I could go along with it.' Because she was as stubborn as a mule."
 
This is, perhaps, somewhat exaggerated and "left field" need not be understood in a political sense. But, if Wilson could often not bring other judges to her position or find her way to agreeing with them it was not because of some fault in the way the judges worked with each other on cases that requires procedural regulation. Wilson's free associating jurisprudence and garrulity is not distinctive but typical of the judges of the Charter era. Precisely because the judges have set themselves free from any strict or restrained construction of the Charter they will be in some difficulty settling on common reasons for judgment. What distinguished Wilson was her special confidence in her own point of view. And Wilson may never have developed a capacity for argument never having argued in court or public controversies.

Despite complaints from REAL Women to the Canadian Judicial Council that she had shown feminist bias in speeches while she was a judge, incidents which only confirm the unwisdom of judicial speechifying, Wilson says she is not a feminist. Perhaps this is postmodern irony. Her first work after she left the bench was heading a Task Force on Gender Equality for the Canadian Bar Association. This produced a predictably feminist report. The most contentious recommendations were for affirmative action to bring women along to law partnerships and the bench and compulsory sensitivity training for judges. Apparently, if this woman judge was not a feminist, male judges were presumptively chauvinist.

As the Task Force was winding down Wilson took on the most arduous task of her life as one of three non-native commissioners on the seven strong Royal Commission on Aboriginal Peoples. The commissioners travelled in the bitterest winter to isolated communities. There was the full panoply of sweat lodges, sweet grass smudges, healing circles and feather holding. The largely aboriginal staffed commission produced a vast report advancing the usual aboriginal wish list of self-government, land claims, more money and affirmative action of various kinds. Wilson thinks this is the most important work she ever did. But it is now over five years since the report was published. Most Canadians have forgotten about it, if they ever noticed it in the first place. What little has been done to implement its recommendations would likely have been done without it.

The ghastly emiseration of Canadian native peoples will not be ended by the repetition and endorsement of pie in the sky demands. Not just Canadian politicians, as Anderson seems to think, but non-native Canadians generally remain miles apart from native leaders and their advocates in their understanding of the proper place of natives in Canadian society. A largely native Royal Commission that listened almost entirely to native people could do nothing to bring them together. Wilson and her fellow commissioners made themselves part of the problem rather than part of the solution. This was predictable. Wilson gave her heart and not her mind to the work and neither she nor Anderson seems to get it.

Biography is not the best way to come to terms with the politics of the law and the Charter. Even without a heavy burden of theory it tends too much to hero worship, or, perhaps, for some, demonisation. It is pleasant to read how Bertha Wilson lived, but in its treatment of the important issues she dealt with this book is a failure. It is another case of heart over mind.