Moore on Section 121 at SSRN

I was an expert witness last winter. There was a case out west in which section 121 of the British North America Act 1867 was at issue, and one side decided that some historical context might be useful to the court, or at least to the case it was making to the court. 

It was pleasant to learn that I had been approached because the constitutional law expert on the case had read my 1867: How the Fathers Made a Deal in his book group.  But I found the idea of the expert witness was, well, thought-provoking. When a historian say A, there is a legion of other historians ready to cry, No, B!  But if you convince a judge of A, he or she brings down the gavel, and A ain't just history, it's law.

Still and all, it was a simulating little research assignment, applying views I've argued elsewhere to a specific set of facts. For those saying, "... and s.121 is about what particularly?" it reads:

All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

and it is usually understood to be about beer and wine, though I suggest the real issue is federalism. It has been newsworthy recently because a New Brunswick beer-and-wine case that turns on s.121 is headed to the Supreme Court of Canada later this year. Anyway, for those interested in constitutional arcana, I've recently posted my report at SSRN.

Comments and criticisms welcome. There may be revisions.

Historians as expert witnesses

Speaking of the Supreme Court:  historian William Wicken reports at Active History on his experience as an expert witness on the case defining whether Inuit, Métis, and non-status people come under the constitutional heading of "Indians" -- the case determined at the Supreme Court of Canada last week.

He advised:

‘In sum, at Confederation, Aboriginals formed a diverse and heterogeneous group. Some were more settled than others, some more nomadic. Some were more integrated into the Hudson’s Bay company trading or post networks than others. Some had intermarried with white traders; some were the descendants of white traders and Indian women. The important point is that the framers believed that the central government, as opposed to the provinces, needed to exercise control over all Aboriginal peoples to ensure that they did not interfere with the government’s broader plans in building a railroad, settling the west and the north, and in expanding the economy from the Atlantic to the Pacific.’

Seems to me he's right to conclude that "Indians" was used to indicate all indigenous peoples within what might be Canada, not just some, though I might have said "to exercise control over all relations with Aboriginal peoples."  I'm not sure the constitution anywhere grants Canada a claim to actual control. That's another litigation, however.

Timely scholarship: on using crises to undermine the law

The perk of being a member of the Osgoode Society for Canadian Legal History is you get a handsome book in the mail once in a year.  This year's 'members' book' arrived the other day: Canadian State Trials Volume IV: Security, Dissent, and the Limits of Toleration in War and Peace, 1914-1939, edited by Barry Wright, Eric Tucker and Susan Binnie.

I admit, I was thinking it might be one for the bookshelf more than the night table.  A valuable series, glad it is being done, a bit remote from most of my historical preoccupations, probably.  But I started browsing in it.  For all its scholarly distance, it is remarkably timely reading

Patricia McMahon has a chapter on "Conscription and the Courts: The Case of George Edwin Gray, 1918."  In a nutshell: the government had passed legislation introducing conscription, and the legislation included a detailed appeals process by which conscripts could seek exemption. But there were a lot of appeals and a serious manpower crisis. Instead of amending the legislation, the government simply abolished all appeals by order in council. A court in Alberta found that the order in council was ultra vires; a government cannot simply cancel its own legislation.

Enter George Gray, a conscript,

History of the jury trial

It's reassuring that the Toronto jury in the trial of the alleged terrorists who are accused of planning to blow up CN tracks and trains is taking a long time to deliberate.

One suspects the Harper government would happily put the accused up against the wall and shoot them if it goosed the polls a little. But twelve random Canadian citizens seem to wonder if the whole thing was mostly concocted by the FBI guy who was central in the plot, whether some participants had a serious intent beyond getting some of the FBI's money, and how much reasonable doubt there is here.

The jury is into its eighth day on these issues. How much time did Parliament put in on Bill C-51?

Jason Kenney: About 128 years too late this time

Jason Kenney's nasty attempt to intimidate a lawyer who criticized him by registering a complaint with the law society seems to be backfiring.  Scores of other lawyers are repeating the criticism of him, and daring Kenney to report them too.  Actually this tactic of Kenney's is one with some history.

In 1884 Conservative activists in Toronto brought rather analogous complaints against the Liberal Blake brothers (Edward Blake then being leader of the opposition in Ottawa). In those days the Law Society of Upper Canada's discipline committee was a relatively open forum.  Simply by lodging the complaint, the Tories got several days during which the Blakes seemed to be facing serious ethical charges -- even though the complaint was found to be groundless once a hearing was held.

As a result the Law Society took more firm control of discipline process. Henceforth only the Law Society could launch a formal hearing into a lawyer's conduct. Frivolous or tactical accusations, like those of 1884, were screened out in advance. Now it has happened to Kenney's effort.

The meanness and viciousness of this government, and its intolerance of criticism or opposition, really are something extraordinary. But Kenney's attempt to punish a lawyer who disagreed with him through a frivolous complaint is about 128 years too late.  

(Source:  this book, with the relevant example readable at Google Books here at page 150.)

History of the Law of Torture

The United States Supreme Court, in declining to permit Meher Arar to seek redress from the American agents who sent him to Syria to be tortured, has declared that since the United States does not torture, the court has no jurisdiction over American state torturers.

Some Americans, to their credit, find this appalling, as here and here. At Slate, Dalia Lithwick compares the American reaction to the Canadian one and ponders what the international judicial consequences might be for the United States.

Supreme Court: scholarship is inappropriate

Just yesterday I happened to be noting Donald Songer's impressive new study of the Supreme Court of Canada. Meanwhile the Supreme Court was moving to stifle a similar study by another academic. "Speak to this guy, you are out of the tribe."

In the last few decades, law clerks have been a valuable source of new information that has revitalized court studies (see Bob Woodward, see Jeffrey Toobin, see Donald Songer -- who interviewed Canadian law clerks for the book I noted yesterday). Their journalism and scholarship has been much to the benefit of the justice system overall.

One would think lawyers would support freedom of information and vigorous scrutiny of institution like courts. So it's discouraging to see the anti-intellectual anti-Americanism of Toronto lawyer and SCC loyalist David Stratas:

This academic in a foreign land, armed with Canadian money, is mass mailing all of us, trying to get us to disclose details about what our judges asked us to do when we worked for them,” Mr. Stratas said.

“What assignments Justice Bertha Wilson gave me to do 25 years ago is trivia of no scholarly value.... It's dubious information of little value and questionable ethics.”

I don't mean there is any obligation on law clerks to disgorge confidential information to any scholar who asks for it. Surely these law clerks, the smartest young lawyers in the country, can figure out for themselves where their ethical obligations lie, without these fatwas being issued.

Should be interesting to see how legal history scholars, many of whom are also lawyers, will respond to this one.

Update, June 22: Jeez, the Globe editorialists agree with me on something.

New Legal History Essays

Speaking of legal history, Irwin Law has out a new title, The Promise and Perils of Law, a collections of essays in legal history edited by Wesley Pue and Constance Backhouse with contributions from all the names and coming names in the field, plus me too. Content summaries here.

Both this book and the Songer one are grist for forthcoming contributions in my legal history column in the lawyers' paper Law Times.

Do Women Judges Made a Difference?

Donald Songer, an American political scientist, recently published The Transformation of the Supreme Court of Canada: An Empirical Examination with U of T Press. He's not kidding about the "empirical" part; whatever the question, he has compiled and analysed masses of quantifiable data. So, do women judges make a difference to courts?

In the pre-Charter era, conflict on the court was structured by political party, region, and religion. In the post-Charter era, while divisions are still somewhat related to the party of the appointing prime minister, conflict is more often structured by gender. These results appear to confirm the early prediction of Justice Wilson that the appointing of female justices would make a difference. Moreover, the finding of substantial gender differences in the voting patterns of the justices highlights the political significance of the long strides made in Canada compared to much of the common law world regarding the gender diversification of the bench. (page 245)

In other words, yes.

Not that he stresses the conflicts. He also finds "for the past thirty-four years the Supreme Court of Canada has been characterized by very high levels of agreement."

Today in History: sounds like California

In 1967 a Canadian was jailed indefinitely for admitting to police he was gay, and the Supreme Court upheld the conviction.

Do lawyers need legal history?

Lively comment and discussion at slaw, a blog about law and technology.

How do you spell Kitchenuhmaykoosib Inninuwug?

The Algonkian language family includes most First Nations languages in the boreal forest region of Canada, from the Atlantic Coast pretty much to the Rockies. Speakers of these languages build compound words (like German does, say) as a basic part of their syntax.

So all those syllables in the heading above? They are just the combining of what we English-speakers would consider several words into one compound word. I understand "Kitchenuhmaykoosib Inninuwug" means "the people who live at the big lake with the trout in it." And Ontario maps would locate these people's community at "Big Trout Lake," about 650 k north of Thunder Bay, in the James Bay lowlands. Still, you can see why they get "KI" a lot.

Anyway, that's by way of introduction to my column about the KI-Platinex controversy in Law Times. You can read it in the digital edition at http://www.lawtimesnews.com/ now.