HERE COMES THE JUDGE, THERE GOES THE STATUS QUO

JEANNINE LOCKE September 1 1968

HERE COMES THE JUDGE, THERE GOES THE STATUS QUO

JEANNINE LOCKE September 1 1968

HERE COMES THE JUDGE, THERE GOES THE STATUS QUO

JEANNINE LOCKE

YOU’D THINK THAT the status quo would be quite safe with a man like The Hon. Emmett M. Hall, DCL, D. Med., Justice of the Supreme Court of Canada. Seventy in November, a certified member of the Establishment and one with a hearty appetite for its perks — fancy office, obsequious staff, the best clubs, first-class travel, fresh Gaspé salmon, fine whisky—he sounds like an old Tory, and he is. The kind you’d expect decently to chair commissions and committees and then, having discommoded no one, serve out his time on the bench, heavy with honors and bourgeois and domestic virtues.

In fact, Mr. Justice Hall has turned out to be one of our most troublesome reformers and he’s entirely plausible in that role. He's

dangerous because he is a Tory, one of your beautiful, tough, old-fashioned Tories who believe in our institutions and their perfectibility and who embody the bourgeois and domestic virtues of reasonableness, regard for learning, love of order and logic and a horror of waste and sloppy work. He knows the difference between what’s right and what “bloody well shouldn’t be.”

He is not, moreover, a lonely Establishment troublemaker. Hall reports are in the fine new tradition to which Carter (on taxation), Glassco (on government organization) and McRuer (on civil rights) also belong. Instead of taking the heat off the governments that appointed them — a reasonable expectation of royal commissions and committees of enquiry in the past — they’ve come out for deep and disturbing change. What’s more, they’ve been willing to disturb some of our most sacred systems.

So the Canadian Medical Association was out of luck in 1961 when, having asked for a royal commission on health services in the hope of saving the nation from medicare, it got Emmett Hall as chairman. Characteristically, Commissioner Hall directed an exhaustive study of the whole field, was appalled by the waste and extravagant inefficiency he found, and recommended a national health scheme more comprehensive than the NDP had ever dreamed of; universal medicare he saw as merely a start. As for the cost, he pointed out that “the only thing more expensive than good health is inadequate or no health care; and second, the bulk of the expenditures to be made on health care will be made even if there are no programs.” Where the logic of his case wasn’t getting through, he did the outrageous for a royal commissioner: he went out and campaigned for his own report.

And in 1965 the Ontario government should have known better than to make him co-chairman of a committee empowered not only to define the aims of the province’s education system, but also to recommend means. The committee’s report, published in June, was a detailed blueprint for a revolution in the schools. As the Toronto Globe and Mail remarked: “Judge Emmett Hall and his crew have set education on its ear, exposed the failures of every education institution in the province, plunged eagerly and creatively into the future, and undoubtedly occasioned the eruption of fountains of cold sweat throughout the educational establishment.”

What they proposed was outright abolition of all grades, exams and rigid curricula, substituting a 12-year stream of schooling which children would navigate at their own pace and none would fail. An extra year of higher

education would be thrown in free: the beginning of free university. Health services, both physical and mental, would be part of the school experience; where necessary, breakfast would be provided. At every stage the curriculum would be loosely divided into three parts: environmental studies, communications (concentrating on languages, both French and English, in early grades) and the humanities. The teacher would be part of a team — electronic as well as human — whose central function would be to ensure the right of' every child, no matter his handicap, “to learn, to play, to laugh, to dream, to love, to dissent, to reach upward, and to be himself.” In that way, the school would “convince the young people who attend it that it has more to offer of interest and value to them than anything else they encounter, and certainly more than the alternative of quitting school for a job.”

As the Globe and Mail summed up the HallDennis report: “It may frighten and infuriate, but by degrees it will also force, by its sheer rightness, the changes we all know must be made.”

You'd think that by now Emmett Hall's revolutionary spirit would be spent, that after seven years of asssaulting Canadian society, he’d subside. But a week after publication of the Hall-Dennis report, he was shaking up the Canadian Welfare Council, proclaiming that better health and education aren’t enough to eliminate poverty; “the third factor is social justice,” which he defined as “the structuring of a society that willingly distributes its wealth equitably to its citizens.”

On the day I visited him in his Supreme Court office he had just finished delivering a judgment that, not surprisingly, dissented from the majority opinion of his brothers on the bench. He would have allowed an appeal on the ground that the trial judge had contravened the law by remarking to the jury on the failure of the accused to testify. “It doesn’t matter that his comment did no harm in this case,” he explained to me; “those who administer the law have bloody well got to obey it.”

He had taken the same stand two years earlier, when the Supreme Court reviewed — and upheld — the 1959 murder conviction of Steven Truscott, the boy whose innocence had been argued in a book by Isabel LeBourdais. Hall was the only member of the nine-man court who voted to quash the conviction. The difficulties involved in a retrial so long after the crime, Hall held to be “relatively insignificant when compared to Truscott’s fundamental right to be tried according to law.” But unlike a lot of people who are aggressive in the defense of your and my rights or who are great at / continued on page 62

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If a case was unpopular, young Emmett Hall was your man

reorganizing society. Hall seems to have remarkably few hang-ups of his own. He obviously adores being a Justice of the Supreme Court of Canada and will give you “the 50-cent tour” of the building, including his own executive washroom and shower, with the pleased air of a man who’s still impressed by having made it from

Saskatchewan. On the afternoon that I had the tour, courts were recessed and Hall had to unlock the redcarpeted chambers, thereby disturbing civil servants who had crept in to rest. Their scurrying greatly amused Hall. A big man, tall, agreeably plump and with a black Irish face, he titters and tce-hees when he’s amused, which

makes him look very nice and common. I trust a judge who looks that way when he titters.

Mr. Justice Hall has other qualities that I associate with benignity. He owns a good digestion, which permits him to enjoy fine food with a whisky beforehand in the capital’s most exclusive clubs, the Rideau. Country and

Royal Ottawa Golf. He exhibits pride in his pretty wife Isabel, whom he calls Belle, his daughter Marian, who is married to a Saskatoon lawyer and has a law degree herself, and a son. Dr. John E. Hall, FRCS (C), Chief of Orthopedics at Toronto’s Sick Children’s Hospital. “Now there’s the one in the family who really does something,” says Hall, pulling out a newspaper picture of his son, the image of himself, holding a thalidomide child on his lap.

But what most impresses you about Hall Sr. are his appetite and capacity for learning. During the first 1 I years of his life, spent in the village of St. Col timban, Quebec, he acquired French; later, in Saskatchewan, he kept it up, choosing a French district to teach school in one summer and listening at home to Saskatoon’s French-language radio station. Now he has the asset, in a bilingual court that always includes three Quebec justices, of being able to understand, communicate and write judgments in French.

One of I I children in the family of James and Alice (Shea) Hall, who had to be supported on a Canadian National freight-department salary, Emmett worked his way through the University of Saskatchewan law school. One of his classmates was John George Diefenbaker and they stayed friends after graduation in 1919. Both quickly rose to prominence as trial lawyers, but Emmett was your man if the defense was difficult or unpopular.

One of his early clients, the editorpublisher of a Saskatoon scandal sheet (now defunct), had been imprudent enough to attack the Ku Klux Klan, which in the late 1920s rode in Saskatchewan (not against Negroes but against Catholics and the foreignborn, who for the Klan’s purposes were one and the same) and which became a political force, strong enough in 1929 to help topple the Liberal government that had held power for 24 years and welcomed waves of immigrants. For his assault in print on leaders of the Klan’s white. AngloSaxon supremacy movement, the Saskatoon editor was sued. Hall got him off the libel charge with a nominal fine, but for his effort, plus the fact that he himself was a Roman Catholic, Hall was burned in effigy by the Klan.

Although active in civic affairs as well as the law — he was for 20 years a separate-school-board trustee and a member of the lay advisory board of St. Paul’s Hospital in Saskatoon — he never graduated into politics. When he ran as a Tory in the provincial election of 1948, he was defeated. From then on he contented himself with helping John Diefenbaker in his campaigns.

It was in 1951 that the name of Emmett Hall first appeared in Maclean’s. He figured in an article concerning the case of Kaspar Beck, a Russo-German immigrant, who, during 40 years in Saskatchewan, had accumulated six and a quarter sections of wheatland. on which he supported a clan of 17 children, nine childrenin-law and 26 grandchildren and refused to pay federal income tax. Beck asked nothing of Canada — he'd refused relief during the Depression

and. later on, family allowances — and he acknowledged no debt to Canada. The income-tax department took a different view and sold his land to pay back taxes amounting to more than $28,000. Although he'd tried a dozen lawyers and suspiciously dropped them all, partly because he spoke almost no English, Beck was persuaded by his sons to employ Emmett Hall to sort out his mess. Hall promptly got the land back — he found that its sale hadn't been advertised properly — and on the morning of May 4. 1951 he received Beck’s power of attorney, plus $5,000, to begin negotiations for a settlement with the incometax department. That afternoon, as Hall dramatically tells it, two oilcompany representatives, obtaining drilling rights in the district, called on Beck who, suspecting they were really government men come to trick him out of his land, despairingly signed their documents and hanged himself.

Emmett Hall continued to go onward and upward in the law, becoming a Bencher, then president of the Law Society and lecturing part-time at his old school until 1957 when he was appointed Chief Justice of the Court of Queen’s Bench for Saskatchewan. In 1961 he'd been elevated to Chief Justice of Saskatchewan when his old friend. Prime Minister John Diefenbaker, appointed him chairman of a Royal Commission on Health Services.

Seven years later, it still amuses Hall to reflect on the indignant reaction to the commission by Liberals and CCFers, both in and out of the Commons — they figured it was a cunning way to stall medicare. After all, the Canadian Medical Association had asked for a commission and was pleased to have two doctors, a dentist and a nurse on the six-man panel Linder Judge Hall. “It was generally assumed in Regina,” says Hall, whose

home was there at the time, "that we were doing a hatchet job for the medical profession.”

Hall upset that idea in a hurry. In a speech made that same year to the Canadian Pharmaceutical Association he announced: “A new idea is abroad which holds that the opportunity for good health is a right possessed by all and not a privilege to be enjoyed by those who can pay.” He and his commission set off across the country to hold 74 days of public hearings, initi-

ate 26 major studies (most of them textbooks now) and pore over 385 briefs.

In June 1964 the Hall Commission issued the first and principal volume of its report, which was hailed by the Toronto Daily Star, an old fan of medicare, as "a landmark in the history of Canadian welfare programs; if carried into effect it would give Canada one of the most advanced systems of medical care in the world.” Dr. W. W. Wigle, President of the CM A. said

he doubted the Canadian government would accept the report’s recommendations.

What the Hall Commission recommended was a health-insurance scheme far more comprehensive than the one in Saskatchewan that had caused a doctors' strike two years earlier. In addition to medical care, physical and psychiatric, it would have covered dental services for all children under 18. as well as expectant mothers and welfare cases, provided free prescrip-

lion glasses and drugs (the drugs to be one-dollar-deductible, except in cases of chronic illness) and established a crash training program, financed by federal funds, to increase the supply of health personnel.

To Hall’s regret the report was looked at "piecemeal” and the national health scheme that grew out of it stopped at a medicare plan similar to Saskatchewan’s. Moreover, only two provinces -— British Columbia, along with Saskatchewan —had joined the federal scheme by the time it went into effect in July.

Still, Hall is satisfied that both of his inquiries — the recent one to define aims and means in Ontario education, as well as the Royal Commission on Health Services — have tilready had important side effects. “There were results that flowed from the very fact of those investigations,” he says. “For example, it wasn’t long after we asked insurance companies in the health field to produce their contracts that the number of restrictive clauses and riders was reduced. Similarly, our prowling around and digging into schools uncovered a lot of things that bloody well shouldn’t he. For example, in Smiths Falls [Ont.] at the school for retarded children we got all the teachers together and asked them. ‘Have you got children here who shouldn't be here?’ and everyone thought and said, ‘Yes.’ ”

A side effect of his inquiries which Hall doesn’t mention is the vast amount of information that he has stored now in his own head. He can tell you where one of the best schools for the deaf is located (on the outskirts of Dublin); what’s wrong with the training of optometrists (most Canadian universities won’t associate with colleges of optometry or lend their staffs for the teaching of physiology or anatomy) and what is the perfect profession for a woman (dentistry: it allows her to set her own hours — she can work part-time if she wants — but the main thing is that she’ll join a group which, Hall figures, will always be in short supply). He still broods about the extravagant wastefulness of hospital operating rooms being in use only a few hours each day. five days a week. The reason is that doctors practise medicine in one-horse offices isolated from hospitals and the answer, according to Hall, is group practice, which would allow the sharing of equipment and skills, in offices that would be part and parcel of a health complex, including a hospital

Nowadays, most of his learning and experience go into Supreme Court judgments. The fact that they're often minority judgments doesn't fret Mr. Justice Hall. But he does feel a human as well as a legal involvement with some of the cases, as with the murder conviction of Steven Truscott. which the Supreme Court upheld. Fie would have given Truscott a new trial, not only because he believed that it was his fundamental right but because he couldn't believe that a 14-year-old boy committed that particular crime: an adult, more likely. But it wasn't for the court to consider guilt or innocence in the Truscott case, as Mr. Justice Hall would be quick to point out. “I’m not a reformer.” he keeps insisting. “I’m a full-time lawyer.” ★