From Volume III, Issue II of Amicus Curiae, Western Law’s Student Paper

Canada was a different place before Trudeaumania swept the nation, and the man we know as Ivan Rand, founding Dean of this law school and former Justice of the Supreme Court of Canada, was a product of his times.  It would be easy to dismiss Dean Rand as an intolerant bigot, but as William Kaplan explained to an audience at Western Law on Nov. 11, [2009,] Rand was complicated character.

“Canadian judicial biography has been, with a few exceptions, mostly uncritical and largely celebratory, written by unabashed admirers,” Kaplan writes in his new book, Canadian Maverick – The Life and Times of Ivan C. Rand. “To my great surprise, this book turned out to be different.”

Ivan Rand was born and raised in the Maritimes and graduated from Harvard Law in 1912. It was his exposure to the American Bill of Rights that, according to Kaplan, differentiated Rand from other Canadian lawyers. And it’s Justice Rand’s decisions as a Justice of the Supreme Court that make his legal legacy so difficult to reconcile with his private views, which have been largely hidden until now.

By 1951, the court in Noble v. Alley assessed a restrictive covenant against selling property in the Grand Bend area to Jews, blacks, or those with “coloured race or blood.” It was Justice Rand who interrupted oral submissions by the respondent saying,“If Albert Einstein and Arthur Rubinstein purchased cottages there, the property values would increase, and the association should be honoured to have them as neighbours.”

Despite his position on restrictive covenants in this case, he was a member of two restrictive clubs that excluded Jews. He defended the right of Communists to hold elected positions, and famously opposed the internment of Japanese citizens, all the while refusing to meet his sister’s Acadian husband for 30 years because of his background.

“It’s this hypocrisy – because he did know better – that ultimately leads me to conclude: first-rate mind, third rate temperament,” said Kaplan, noting that the most influential judges are rarely collegial consensus builders. “Not such a bad combination.”

What, if anything, changed during his lifetime?

Kaplan suggests that Rand’s exposure to Jews in the Palestine Mandate may have led him to develop a more favourable impression of Jews. Rand was impressed by the largely secular, often highly educated and industrious, and was sometimes even disdainful of the religious establishment of the Holy Land. He believed that rational law could resolve all human conflict, and was a social engineer at heart.

Robert Mackay, one of Rand’s colleagues at Western who would eventually succeed him as Dean, recalls Rand’s rants against Jews and people with ethnic names that ended with a vowel: “Rand would declare he had enough of them.”

Yet he continued to donate to Hebrew University in Jerusalem for the rest of his life. A forest in Israel was named after him, and he would tour the country receiving awards.

So what is Rand’s legacy for this school?

Kaplan tellingly notes, “Almost all of his great civil libertarian decisions reversed the actions of state authorities in Quebec.” Mackay explained, “Rand had to decide who he hated more – the French-Canadian Roman Catholics, or Jehovah’s Witnesses.”

Rand believed that ethics could not be taught – either you had them or you didn’t. Western is now known as a pioneer in legal ethics education.

The Ivan Rand window in the Moot Court Room looms menacingly above all those who dare try their hand at advocacy. Rand himself believed that mock trials courts were entertaining, but not educational. He preferred his old 1909 Harvard law texts for the students.

Rand felt that women were good as solicitors but did not have the fortitude for criminal law, a notion that would not bode well for our classes in which women outnumber men , the legal aid clinic, or our struggling criminal law program.

Dean Rand defied utilitarian economics by taking surplus budgets and returning them to the university, much to the chagrin of his staff. He abandoned the administration of the law school only months after its opening to attend to a coal crisis in Cape Breton.

Yet the students loved him.

The Rand formula, where workers pay union dues irrespective of membership, is still one of the hallmark characteristics of Canadian labour law. One of Rand’s recommendations (which was never adopted) was that unions be recognized as legal entities that could sue and be sued [directly, and not through agents]. Another was abolishing picketing altogether.

Overall, Kaplan describes Rand’s own hand at labour relations as nothing less than “disastrous,” with nearly every stakeholder and political party expressing strong criticism. “Reforming labour law,” Kaplan said, “is best done incrementally.”

As our own Dean Holloway acknowledges, “it’s difficult to write fairly about Ivan Rand… What emerges is a picture of a principled man, who thought deeply about the best way to enhance the standards of this profession.”

Kaplan suggests that what makes Rand impressive is his ability to draw bright lines between his public and private life, especially when on the Court. And for a man whose vision in many ways may have been ahead of his time, perhaps that is the most we can ask for.

Cross-posted from Slaw