Does Conscience subvert the Law in the context of Constructive Trusts?

This thesis sought to address the question, “Does conscience subvert the rule of law?” in cases involving constructive trusts in Canada. It was prompted, in part, by the Canadian Supreme Court’s recent decision in Moore v Sweet which brings to the fore the many issues that exist related to use of conscience and constructive trusts in the law. The thesis first identified differences between constructive trusts in jurisdictions with a British Commonwealth legal heritage. It also broadly examined the historical evolution of conscience as well as theoretical concerns related to its use in legal doctrine. The thesis found three categories of cases where conscience interacted meaningfully, for better or worse, with the law. In the first category judges referenced the needs of conscience explicitly in a way to reflect their bare moral opinion while lacking doctrinal support for their decision. The second involved use of conscience substantively in doctrine but arguably not in a way that was offensive to the rule of law. In the third category concerns of conscience seem to have motivated a court towards a particular result. Instead of relying substantively on those concerns they stretched, distorted, or ignored available legal principles to effect justice. This practice can perpetuate confusion in the law making it difficult to apply evenly in the future and can be argued to be no better than the approach in category one. It can be further argued that Moore v Sweet is an example of category three where the Supreme Court’s decision distorted principles to achieve justice. Moreover, it also raises issues that will likely be problematic for future application outside of the family dynamic. The thesis further explored the lower court’s alternative solution in Moore, namely, an equitable assignment, which can be rooted in conscience. Lastly, if that solution is too radical or otherwise insufficient, there may not be a ‘good way’ of addressing this problem. We may be then left with a resolution that is not all that different from where Equity has been forced to stretch and reshape the law to do justice throughout its history.

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