Far-Cited
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J.E. COTI
Grammatici certant et adhuc sub iudice ls est.2
Long long ago in Ottawa, our Top Court heard a Very Important Case.3 Ten lawyers,
seven of them Leading Counsel, argued for four days.4 One of the lawyers' tried to cite
an Article6 by a Learned Academic, published in a Very Respectable Law Review. But
the Old Chief Justice stopped the lawyer, saying that the Learned Articles were Not
Authorities.
Another Very Learned Scholar7 then selflessly published another Article in a Very
Copyright © J.E. C6td 2001. J.E. C6td, of the Courts of Appeal of Alberta, the NWT and Nunavut.
The editors of this Law Review for 2001-02 asked me to write this article. As a writer on advocacy
once observed, even more interesting than a talk on fishing by an experienced fisherman, is one by
a fish. I hope that the editors will forgive some of my footnotes; cf K. Lasson, Scholarship Amok
(1990) 103 Harv. L. Rev. 926 at 949. Narrowing the gap between the Academy and the Bar has
always been close to my heart. Trevor Anderson, Tim Hay, Robert Chambers, and Mr. Justice
Watson kindly supplied a great many copies or cites of articles, but are wholly innocent of complicity
in the opinions in this article. Beth Millard kindly supplied copies of dozens of articles, and several
books, amazingly quickly. She also used considerable ingenuity to verify a citation and provided
useful information on electronic article databases and indexes. A number of friends gave me useful
comments on a draft of this article, and much as I owe them, I had better suppress their names to
protect the innocent.
2 Horace, Epistle to the Pisones (Ars Poetica) ed. by N. Rudd, (Cambridge, UK.: Cambridge
University Press, 1989) at 61, line 78 (unofficial translation). Professors do battle, and the dispute
is still before the courts.
3 Reference Re the Validity of the Wartime Leasehold Regulations, P.C. 9029, [1950] S.C.R. 124,
[1950] 2 D.L.R. 1.
4 Ibid
Professor Bale tells us that it was Maurice W. Wright: G. Bale, W.R. Lederman and the Citation
of Legal Periodicals by the Supreme Court of Canada (1994) 19 Queen's L.J. 36 at 49-50. The
Montreal Gazette ran lengthy daily stories about the Supreme Court argument, including some of Mr.
Wright's argument, but they do not mention the interchange about citing articles. Maybe it was brief
and not noticeable. Or maybe the Gazette was not as sympathetic to Mr. Wright's views, or to his
client, as was the Toronto Star.
Dean Bowker says that the article in question was V.C. MacDonald, Constitutional Interpretation
and Extrinsic Evidence (1939) 17 Can. Bar Rev. 77; see W.F. Bowker, Extra-Judicial Writing
(1980) 18 Alta. L. Rev. 458 at 467.
George Van Veldt Nicholls, Q.C., a highly respected Quebec lawyer and later a professor at
Dalhousie, who published many articles on many legal topics, including the Civil Code of Lower
Canada. He enjoyed a reputation as an excellent editor. I have been unable to read any published
biography or obituary of him, though Dean Bowker (ibid.) gives a few general comments. Apparently
Professor Nicholls died in 1990 and the Canadian Bar Review ran an obituary on him, but it was
printed in the introductory pages, which binders are instructed to discard. The bound copies in
libraries here omit it, and I have been unable to find it in my own unbound copies. The 194(0
Canadian Law List showed him as one of several house lawyers with the Canadian Manufacturers'
Association in Toronto, and the 1947 issue as a house lawyer with the Canadian Chambers of
Commerce. In 1950 he had his own office in Montreal as editor of the Canadian Bar Review. I have
ALBERTA LAW REVIEW
VOL. 39(3) 2001](ViewImageLocal?handle=hein.journals/alblr39&div=29&collection=&method=preview&ext=.png&size=3)
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