Articles / Legal History / 2006 - 2007
Legal History
A Dictionary of Canadian Lawyers
(January 2006)
Each volume of the Dictionary of Canadian Biography is a collection of succinct lives of prominent or interesting Canadians. The recent publication of DCB, Volume XV, is worth the attention of any lawyer with an interest in history, not least because it is also in its way a dictionary of Canadian lawyers (in
Since DBC volumes are organized by date of death, everyone in this new Volume XV earned a place in it by dying between 1921 and 1930. There are sixty-seven lawyers in this volume, and the
Some were national figures. The Sifton brothers, Clifford and Arthur, grew up in Ontario but prospered as lawyers in the west. Sir Clifford, the Manitoban, became a powerful Ottawa cabinet minister in the Laurier era, then developed the Sifton business empire. Calgarian Arthur Sifton became Chief Justice of Alberta, then left the bench to become premier of Alberta - a career
Another Ontario-born lawyer, Sir James Aikens, founded the leading Winnipeg law firm that still bears his name and served as lieutenant governor of Manitoba. Aikens was also the moving spirit and founding president of the Canadian Bar Association, and he had a gloriously idealistic notion of lawyers' work. The hallmark of the profession, said this lawyer whose practice had earned him a fortune, was its "principled rejection "
Eugene Lafleur of Montreal was a top-flight litigation counsel, equally skilled in French or English, civil or common law, marital spats or constitutional questions. Lafleur died at Ottawa's Chateau Laurier in 1930 while preparing for a Supreme Court of Canada case. The firm he built survives as the Montreal étrault.
David Fasken (whose biography is one of several here written by current Fasken partner Ian C. Kyer) took over the old firm of Beatty & Blackstock, reoriented it to mining law as the Northern Ontario mineral boom began, and made a fortune. Fasken died in 1929, but his firm's recent growth probably means the Fasken name is better known now than then. One Faskens lawyer, George T. Blackstock, was a courtroom star for years but saw his career cut short by "hysterical hypochondria";
John Idington, a Stratford lawyer, was named to the Supreme Court of Canada in 1905. There's a suggestion he got the job because so few top lawyers were willing to move to Ottawa. Idington was a liberal jurist and a frequent dissenter, but his refusal to retire, well into his 80s and allegedly senile, was the spark for the law requiring judges to retire at 75. He died
Wallace Nesbitt is remembered for quitting the Supreme Court in 1905, after just two years on the bench. He returned to a stellar legal career in Toronto and died in 1930. The DCB does not quote his remark that he quit because he could not stand the obtuseness of Justice Idington. It does seem implausible;
This volume includes the dramatic life and career of Clara Brett Martin, Canada's first woman lawyer, who died in 1923, just 49. In the 1890s Martin forced the Law Society of Upper Canada to declare whether or not women should be admitted to the law; John Idington was one of the benchers who supported the
I've been a lifetime user and fan of the DCB, but for this volume I also wrote biographies of two lawyers. One was Newman "Daddy" Hoyles, a Newfoundlander turned Toronto lawyer and longtime head of Osgoode Hall Law School. Hoyles ran the school when Clara Martin was a law student, and he later declared the admission of women was the greatest achievement of his time
I also wrote about E. Douglas Armour, real estate lawyer, poet, law teacher, bencher, and legal publisher. In the legal tabloid he published, Armour was sarcastic and skeptical about the admission of women to legal practice. The name of his paper was The Law Times - no connection to this publication -- but
The volumes of the DCB make a handsome show on any bookshelf, but nowadays you can also find the DCB biographies at www. biographi.ca (except that lives from this latest volume are not yet fully online).
Volume XV of The Dictionary of Canadian Biography was published by University of Toronto Press in late 2005.
©Christopher Moore Editorial Ltd 2001
First Women Lawyers Around the World
(November 2006)
Okay, Clara Brett Martin, called to the Ontario bar in 1897, was the first woman lawyer in Canada. But where does she stand
At the centre of a trend, according to Mary Jane Mossman of Osgoode Hall Law School, who takes an international perspective in
United States: Arabella Babb Mansfield was admitted to the Iowa bar in 1869. The western states of the U.S. accepted some of the very earliest women lawyers, often with little formal record-keeping, while bar associations and law schools of the eastern states
Britain: No women formally became English barristers or solicitors until 1921-22. But Eliza Orme had all the credentials except
France: Jeanne Chauvin was fully qualified by 1890, but was prevented
New Zealand: Ethel Benjamin was called to the bar in 1897 but was largely isolated by her colleagues despite her acknowledged
Italy: Lydia Poet had the qualifications by 1883 and practised law from 1885. But Italian women were denied formal access to
India: Cornelia Sorabji, a Parsee, defended a murder charge in the Indian courts in 1896, but was denied full legal credentials
Looking back from the early 21st century, it's striking how closely clustered these dates for the pioneer women lawyers now seem. The half-century from 1870 to1920, less than one lifetime, saw women's first access to legal careers practically everywhere
Yet almost everywhere, the successes of the first women lawyers proved to be a false dawn. The women lawyers of the late 19th and early 20th century, frequently isolated and denied scope to practise, could not open the way for substantial numbers of women or spark a redefinition of gender roles in law. It was the late 20th century before the law became a profession
Mossman's investigations underline the hazards of personality, class, and jurisdiction that determined precise dates at which particular women broke through the barriers in each of these countries. She also demonstrates strikingly the ability of judges and other authorities to cherry-pick among precedents to suit
Professor Mossman is cautious about simple interpretations of the emergence of the first women lawyers, preferring shifting "kaleidoscopes"
First, women's access to the legal profession bore a tangled but undoubted relationship to the campaign for woman suffrage and citizenship. Some saw gaining the vote as a prelude to opening the professions. Some believed opening up the professions would lead to woman suffrage. Some favoured a strategy of demanding one but not the other. But the two movements clearly
Second, the cause of women lawyers was not only about women. In the 19th century, the nature of professions was in flux. Professions had long been defined as the exclusive prerogative of gentlemen. Their slow reinvention into something determined by learned skills, objective testing, and certified credentials affected men as much as women - but the redefinition helped create small spaces that the first women lawyers claimed for themselves. By the late 19th century, universities, judges, legislatures, and lawyers were all taking a hand in defining who should be lawyers-and all could become either pathways or barriers
The mid-20th century now seems the truly anomalous time: a brief era in which women became accepted as lawyers in theory but were largely kept out in practice. Mary Jane Mossman explores the beginning of that era. We may still need a little more
PS. Fifty years ago, the outgoing president of the Canadian Bar Association said in a speech printed in the Canadian Bar Review in 1956: "Some of you present today will undoubtedly attend the annual meeting of the CBA fifty years hence. What will you find? Certainly you will find the wives and sweethearts of the members of the Association as charming and well dressed as those present at this meeting." (First woman president
The First Women Lawyers: A Comparative Study of Gender, Law and the Legal Professions by Mary Jane Mossman is published by Hart Publishing (www.hartpub.co.uk) and distributed in Canada by Codasat, c/o University of Toronto utpbooks@utpress.utoronto.ca).
©Christopher Moore Editorial Ltd 2006
When the Courts Undermine the Rule of Law
(August 2006)
In February Mr. Justice David Marshall gave an injunction against Six Nations protesters occupying certain disputed lands near Caledonia. Since then, the parties have preferred to seek a negotiated settlement. In August Judge Marshall declared these negotiations must cease. He found the negotiations undermined his injunction and were a threat to the rule of law.
It's hard to fault the rule of law. It's a pillar of our civilization. Disputes among contending parties in Canada should never be settled by force. That is what the courts are there for.
But the principle of the rule of law makes its own demands on those who invoke it. If we insist on the rule of law, even at the point of a bayonet, it is essential that we commit to the rule of all the laws and to the rule of law for all.
It should be impossible for any fair-minded person to contemplate the history of the Six Nations of the Grand River without recognizing that the Six Nations have been shockingly plundered of both lands and entitlements. Canada has always ignored most of the treaty obligations we accepted. Six Nations lands in vast quantities have been appropriated on the flimsiest pretexts. Six Nations monies have been squandered by those who appointed themselves its trustees.
The
Crown once acknowledged Six Nations' control of some 385,000
hectares, "which them and their posterity are to enjoy
forever." Today the Six Nations' lands cover barely 19,000
hectares and it takes a strong stomach to examine the history
of what happened to the other 366,000.
In the 1840s, the Crown actually invested funds it held for
the Six Nations in bonds the Law Society of Upper Canada was
floating to pay for the building of Osgoode Hall. When the
Law Society repaid the money, it went into general crown revenues.
Should any of this history justify extra-legal action? Not in itself. The rule of law remains vital. We have the courts precisely to settle this kind of dispute.
Except for more than a century the Six Nations have been among the most litigious peoples in the country. They have taken their case repeatedly to the local courts, the federal courts, the Privy Council in England, the League of Nations, the United Nations, to any conceivable court and tribunal.
And there has never been a Canadian court or a Canadian judge willing to invoke the rule of law when the rule of law would have served the cause of the Six Nations. Canadian courts have consistently ignored, justified, and given sanction to the abuses of law under which the Six Nations have lived for generations.
In the case of Sero v Gault, back in 1921, the Six Nations presented the treaties in which the Crown guaranteed them unlimited rights to hunt and fish. Mr. Justice Riddell responded by declaring that game laws applied to Indians as to anyone else. "There are no troublesome uncertainties in Canadian law," he wrote.
In Logan v Attorney General, in 1959, the Six Nations traced their self-government rights back to their alliance with the British Crown in the American Revolution, an autonomy handsomely acknowledged in writing in 1784. No, said Mr. Justice King, merely by settling they had become subjects of the Crown, subject to the same rules as everyone else.
We are told there is a land-claims process going on and a self-governance one too. It is suggested there are venues for these disputes to be heard and settled.
But should we expect any conclusions before, say, the twenty-third century? Meanwhile, the exploitation of the disputed lands goes on apace. Why does it always take the courts barely 24 hours to grant the injunctions that will send in the Tactical Squads? When they NEVER over generations seem able to take judicial notice of how complicit our courts have been in the very injustices that have caused the confrontation in the first place?
Lawyers and judges, perhaps more than anyone, must stand for the rule of law. But they need to defend the rule of all the laws, all the time and for everyone, not just some of them sometimes for some of us.
©Christopher Moore Editorial Ltd 2006
How Eddie Goodman Changed Legal Practice
(September 2006)
The
life and career of Eddie Goodman, who died at 87 in August
2006, marked some significant changes in the Canadian legal
profession.
Eddie Goodman was probably most prominent as a Conservative
Party organizer, a pillar of the Big Blue Machine in its heyday.
He was also renowned for his community service, as a leader
of many boards and a patron of many artistic and cultural
institutions around Toronto.
Among lawyers, he probably became most familiar as the builder, leader, and symbol of his law firm: Goodmans has always been acknowledged as Eddie's firm and Eddie's creation. A two-person firm when Eddie joined his father in 1947, it has long been one of the majors. It is now distinctive among the large firms as one of the few not to have gone national or international, and seems to have done just fine by running against that tide.
One achievement of Eddie Goodman now seems so antique it probably didn't get much notice among younger lawyers at the time of his death. Eddie Goodman was the representative figure in the historic transition that brought down the huge wall between the lawyers who were not Jewish and those who were.
I don't mean Goodman's Jewishness was the key to his career; more that he helped usher in the era when you could be a Jewish lawyer without that being the defining characteristic of your career.
Eddie Goodman was much less an outsider than most Jewish lawyers of the 1940s and 1950s. His father was a successful and prosperous business lawyer with notable Conservative party connections, and even before being called to the bar in 1947 Eddie was already a decorated war veteran and a provincial Conservative candidate.
Much of the early success of Goodman's law practice grew from his gift for finding small clients who rapidly became big ones and big clients who became huge. He was closely associated with Cadillac Fairview, Labatts, the Baton/Bassett media empires, and many other leading lights of corporate Canada during their periods of explosive growth.
Friends and colleagues say that was no accident. He was a very skilled lawyer, they argue, but even more skilled at getting right into the business of his clients, contributing both legal and business judgment.
He was also, they insist, extraordinary for his insistence on "pushing work down" and bringing young lawyers up. When I helped Goodmans assemble some material about its history a couple of years ago, one lawyer after another said their careers really took off after Eddie Goodman dumped a major responsibility on them and convinced both the client and the untested young lawyer that his choice was the perfect one.
Still, during the first half of Eddie Goodman's six decades of legal practice, Goodmans could not help but be a "Jewish" law firm. Well into the 1970s and '80s, establishment law firms were slow, staggeringly slow, to accept Jewish lawyers; most of them had none. Many members of the Canadian judiciary, the bar, and academe who are today acknowledged as twentieth-century giants had nowhere to practice except in Jewish firms. With talented young Jewish lawyers having no outside opportunities gravitating to Goodmans and other firms like it, a de facto segregation prevailed.
Yet non-Jewish businesses were notably prominent among Goodmans' clients. Clients of law firm clients, it seems, were a lot faster than non-Jewish lawyers to stop segregating their legal work. As the walls of segregation broke down, the existence of a large, successful, and prosperous firm like Goodmans was among the factors that helped convince the profession to put aside its hidebound ways.
Eddie Goodman's public persona as political insider, cultural benefactor, business confidant -- as well as highly successful lawyer, bencher, and firm builder -- helped demonstrate that ethnic or religious origins need no longer be an insuperable bar to success and prominence in Canadian public life. Not to someone like Eddie, at least. Goodmans, more than any other firm, perhaps, became the Canadian prototype of the modern law firm unconstrained by ethnic backgrounds and unworthy prejudices.
I only knew Eddie Goodman very slightly, and only when his illness was already robbing him of his lively tongue and story-telling gifts. But I was persuaded by someone who said that anyone who had more power and influence than Eddie had in his heyday probably wasn't the nice guy he was, and anyone nicer probably hadn't got his power and influence.
©Christopher Moore Editorial Ltd 2006
Eats Shoots and Lawyers
(February 2007)
They are calling it the telecomma case. A million-dollar spat over comma placement in a contract has again focussed attention on the crucial importance of clarity in the drafting of laws and contracts.
In 2002 telcos Rogers and Aliant signed a contract, part of which read:
"This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party."
So could Aliant give notice to terminate during the first five-year period? Rogers says it could not. Aliant said it could, and it did. It all hangs on the significance of the comma before the last phrase. Now they are in litigation.
Legal scholars and aficionados of usage around the world are weighing in. Lynne Truss, author of Eats Shoots and Leaves and perhaps the world's only celebrity grammarian, thinks Aliant's reading has merit. She suggests Rogers should have held out for a semi-colon.
It's not hard to imagine the satisfied harrumphing this spat must be inspiring among lawyers of a certain age. "Could not have happened in my day! We assumed a lawyer would know some grammar. Law schools today, what do they teach, anyway?"
Actually, an identical uncertainty about comma usage occurred as long ago as 1822. In that year, Upper Canada's new Law Society Act authorized the Law Society to call to the bar "any person having being duly called to practice at the Bar of any of His Majesty's Superior Courts ... in England, Scotland, or Ireland, or in any of His Majesty's Provinces in North America, in which the same privilege would be extended to Barristers from this province."
Was Upper Canada intending this reciprocity requirement to apply to the Inns of Court of England - or only to the bars of His Majesty's provinces in North America? Just as in the Rogers-Aliant affair, the meaning depended on whether the last phrase modified the whole sentence or only the nearest part of it.
No one knew for sure. But some Ontario lawyers went to London and tried to get themselves admitted to the Inns of Court on the strength of this statute and their Ontario call. The Inns rebuffed them. But the issue was never litigated, so Ontario's line of jurisprudence on comma interpretation is sadly foreshortened.
An arbitrary end to this problem was imposed in 1859, when Ontario published the Consolidated Statutes of Upper Canada. The editors silently interpreted the law simply by reparagraphing it. The republished law said the reciprocity rule applied to persons called to practice:
"…at the Bar of any of His Majesty's Superior Courts ... in England, Scotland, or Ireland, [paragraph break!] or in any of His Majesty's Provinces in North America, in which the same privilege would be extended to Barristers from this province."
The new paragraphing made the law certain. Only in 1885 did an Ontario law establish (or re-establish) the Law Society's right to insist on reciprocity from the English bar as well as from those of other Canadian provinces.
Fowler's English Usage declares the hallmark of proper usage is that "the words used must… actually yield on scrutiny the desired sense." I would have thought lawyers would have this same aspiration for contracts and statutes: that the words should say what they mean, clearly and plainly.
But it need not always be the case. A recent proposal suggests that lawyers may at times have a certain interest in ambiguity, at least when it comes to legislation. Some lawyers and copyright scholars have been lobbying Ottawa to put even more vagueness into the arcana of copyright law. Ottawa practitioner Howard Knopf recently published a call for copyright-law amendments that would confirm that fair-dealing exceptions in copyright law "are examples only and are not an exclusive list."
One might think that clarity about such exemptions would be useful to both users and rightsholders. But the Supreme Court has endorsed "large and liberal" interpretation of the statute as written, and Knopf, a users' rights advocate, presumably sees legislative vagueness in the wording of the law encouraging further widening of this defence.
That's
not to suggest the Aliant people actually wanted a trapdoor
in their contract. But much of what judges do, after all,
is determine the meaning of agreements and statutes. Too much
clarity in the laws, and lawyers and judges might have less
to do.
Think about where you place those commas.
©Christopher Moore Editorial Ltd 2007
The Persons Case
(October 2007)
Robert Sharpe is a former University of Toronto law dean, a constitutional scholar, and since 1999 a judge of the Ontario Court of Appeal. In his spare time (he has spare time?), he writes histories. “Just a bad habit from my academic days, I guess,” he says.
This fall Sharpe has a new book, The Persons Case: Origins and Legacy of the Fight for Legal Personhood, which he wrote with Patricia J. McMahon, an associate at Osler Hoskin (she has spare time?). It was published by the Osgoode Society and the University of Toronto Press just in time for Persons Day, October 18.
Based on wide research, a sound grasp of the historical context, a careful setting-out of the legal and political technicalities, and vivid assessments of all the personalities involved, this must be the authoritative telling of the Persons Case.
The gist of the case may be familiar; there’s the statue on Parliament Hill and the picture on the fifty-dollar bill. In 1929 women were not accepted as “qualified persons” eligible for appointment to the Canadian Senate. After a fruitless political campaign, five women from Alberta, “the Famous Five,” persuaded the prime minister to refer this question to the Supreme Court of Canada.
No, women are not qualified persons, said the Supreme Court, citing an unbroken string of precedents. But an appeal to the Judicial Committee of the Privy Council (JCPC) produced Lord Sankey’s radical decision that the exclusion of women was ‘a relic of days more barbarous than ours” and could not continue.
Sharpe and McMahon flesh out this story enthusiastically. For Emily Murphy, eligibility for the Senate was no abstract principle. She really wanted the job, but she never got it. Some of the other Five fought for the principle but said that a Senate appointment was the last thing they wanted themselves.
Lord Sankey had become a JCPC judge as part of Ramsay MacDonald’s new Labor government in Britain just months before the Persons Case came up. Had the JCPC heard the case a few months earlier, more conservative judges would probably have rejected the women’s claim.
Sharpe and McMahon portray Canadian politicians, most notably Mackenzie King, as extremely timorous on the whole question. Had a prime minister simply acted, it seems likely that the courts would have deferred. Indeed, the courts seemed to be crying out for governmental action. But Sharpe and McMahon have unearthed something that helped inhibit prime ministers Borden, Meighen and King. The Department of Justice had given the government a firm opinion that without a constitutional amendment it had no authority to appoint women to the Senate of Canada.
Canadian courts, when asked, hewed to the view that if women had not been qualified persons in the past, they could not be now. Lawyers were divided. Eugene Lafleur supported the women’s cause politically but was so sure they would lose that he took the other side’s case. Newton Rowell both supported the women’s cause and thought he might win for them. He also collected a very handsome fee from the government for his Persons Case work.
Beside “all the interesting people” in the story, Sharpe says he and McMahon found two important and lasting themes in the Persons Case. First, they argue that “the affirmation of universal personhood” was an important, and early, human rights decision. But they find just as much importance in the principle of constitutional interpretation established by Sankey’s decision.
It was in the Persons Case that the JCPC declared that the British North America Act was a constitution, not an ordinary statute, and had to be given a “large and liberal” interpretation “as a living tree capable of growth and expansion within its natural limits.” It took about fifty years, but the authors argue that the living tree approach is now fundamental to how the Supreme Court of Canada approaches constitutional cases.
That, the authors point out, is in “stark contrast” to the doctrine of original intent vigorously promoted in recent years as a principle for American constitutional jurisprudence.
But in Canada, too, there has been criticism of activist judges who are said to be too large and liberal in their constitutional interpretations. Could Mr. Justices Sharpe be wading into controversy here?
“This is what the Supreme Court has said is the fundamental principle of constitutional interpretation,” says Sharpe. “If I denied that, I’d be controversial. I hope it is not controversial. Maybe in another country, one to the south of us, it might be.”
©Christopher Moore Editorial Ltd 2007