Book Notes: Dodek, Heenan Blaikie: The Making and Unmaking of a Great Canadian Law Firm.

In his new book, Heenan Blaikie, Adam Dodek offers a detailed and lively account of a still uncommon historical topic: how a prominent law firm can dissolve into non-existence. Dodek, a law professor in Ottawa, delves into the collapse in 2014 of Heenan Blaikie, a law firm that grew from small beginnings in Montreal in 1973 to a five-hundred lawyer business with offices across the country, blue-chip corporate clients, and names like Jean Chretien, Pierre Trudeau, and hockey tycoon Marcel Aubut on the letterhead. Dodek interviewed scores of the talkative lawyers who were left to rebuild their careers while still burdened with the dead firm’s enormous debts, and he is able to enliven his story with first-person quotation throughout.

Heenan Blaikie was a law partnership that believed that having great “culture” and being a fun place to work would guarantee success. Its leaders recruited starry new partners -- hired mostly on instinct – with income guarantees that could not be renegotiated when the partner failed to bring in business. They considered management and administration to be work that smart guys like them could handle in their spare time without professional advice. The firm spent more time debating what street its new Toronto office should face than what lines of work it should focus on. It invested fortunes in vanity-project foreign offices and glossy consultants long after competing firms had proved that such sidelines were costly diversions. Talented and savvy lawyers at Heenan Blaikie continued to bring in enormous fees from well-heeled clients, and yet the firm managed to spiral into collapse. It was, in fact, the firm that did everything wrong.

It’s a great story. Dodek lavishes time and attention on all the ethical lapses and failures, all the nasty headlines that decorated its fall. and generally the decline of Heenan Blaikie’s vaunted “culture” into a toxic stew. I enjoyed reading it and learned lots.

If there’s a weakness, it is focussing too much on the toxic culture and the lurid misbehaviours. Dodek shows many things that Heenan Blaikie did badly. But the book doesn’t much reflect on what they should have been doing well: what kind of management had become essential for big law firms with the aspiration to greatness that Heenan Blaikie certainly had.

Heenan Blaikie emerged in the late 20^th century moment when leading law firms in Canada (and around the world) were suddenly changing from local enterprises of a few dozen lawyers at most, to become large, geographically-dispersed operations with multi-million dollar annual revenues. During the last fifty years, the victors in this fight for growth developed a consensus on how big law firms could and must organize themselves. They managed to turn legal practice, long idolized by many lawyers as single-combat warfare for heroic individuals, into a corporate enterprise, driven by empowered leadership, carefully strategized goals, targeted marketing, and a ruthless attention to overall profit and loss.

Dodek makes clear that Heenan Blaikie was clueless and dismissive about all the new ground rules of the corporate law business – which is why its competitors ate its lunch.

But Dodek is hardly more interested in law-business fundamentals that the firms leaders were. 

His book sometimes gives the impression that Heenan Blaikie failed because it did a lot of things badly. It did, and he describes them all. But the book would be stronger with some attention to all the things it never really considered doing – the things successful big-law firms learned to do in order to thrive and survive.

It is still a terrific book, but it occurred to me while reading that Adam Dodek is a law professor. University departments are among the few places that can still attempt to run by the kind of non-management management that doomed Heenan Blaikie to extinction.  But there is room for business historians (not that I am really one) in the history of law firms.

(Despite these quibbles, I should note gratefully that in the book Adam Dodek generously cites my writings on law-firm history and an interview we did during his research. Thanks also to UBC Press for an advance reading copy.) 

Book Notes: Mossman on Women Lawyers

I have at least dabbled in Canadian legal history, and I have from time to time been drawn into to what might be called the genealogy of law firms. Where law firms large and small come from, how they perpetuate themselves, what they inherit from their earlier incarnations, and how small ones grow big or vice versa: it's like a little secret field no one has ever heard of.

So I'm a sucker for Mary Jane Mossman's Quiet Rebels: A History of Ontario Women Lawyers -- even though what I'm describing above is not at all her focus. This is a group biography of almost two hundred women who became lawyers in Ontario from 1897 to 1957.  A group biography of almost two hundred people is really two hundred separate research projects, and I'm in awe of the immense amount of work involved in digging out pretty much everything about each of these lawyers, now matter how brief or uncelebrated their legal practices may have been. 

Gradually it all gels into a very detailed and convincing case about just what kept women out, what allowed them in, what circumstances they faced, and what changes and accommodations they faced. In the meantime, there are a couple of hundred quick sketches of all the ways individual women found their way into a mostly hostile profession and gradually made their changes in it.  You can read it for all the little histories -- or follow the big one.

I have to admit it's pleasant to see my own legal historical writing cited pretty regularly in this book. Moore, The Law Society of Upper Canada and Ontario's Lawyers (UTP, 1997) must be my most cited work, though it's probably not among my best known. It started a lot of new research into topics I barely alluded to, which is satisfying. Quiet Rebels might have that effect too.

Book Notes: Phillips, Girard, Brown, History of Law in Canada II

By being a member of the Osgoode Society for Canadian Legal History, you help support the publication of legal history in Canada (and other activities) and in exchange you receive "the annual book," one from the three or four the society produces in a typical year.

Last November I attended the Society's annual gathering and the launch of the History of Law in Canada Volume II by Jim Phillips, Philip Girard, and Blake Brown. But recently I realized my copy was not just delayed in the mail. It evidently was not coming at all. So I inquired. Turns out I neglected to renew my membership last year, so I wasn't entitled. I had to pony up forty bucks to get one.

At the launch (at which I guess I was technically a gatecrasher), I was thanked as one of the anonymous pre-publication reviewers. The authors had managed to guess who we were, and both Douglas Harris and I had agreed to be outed. So after all the work involved in reviewing a book so authoritative about everything in its vast field of study, I feel I did a lot for a book I ended up having to buy. (On the other hand, I saved on the membership dues.)

Nevertheless. I now have got a copy of Volume II, and I am very happy to have it. In their printed acknowledgments, the authors thank the (then still-anonymous) reviewers for "just what authors want -- half a page of generous and enthusiastic praise and many further pages of corrections and perceptive suggestions." Reading it now in handsome hardcover rather than messy pages, I want to deliver some more of that enthusiastic praise. This is a very good book. And important far beyond the cloisters of legal history. 

Volume II covers the years 1867-1914, and an important theme is how much the founding of the Canadian state involved the imposing of Canadian law (or the making of new law and institutions) to replace previous ones throughout the "dominion." These innovations mostly remain in being, and no political historian and no general historian of Canada should be unaware of this history of law as state-making. The fifty-page summary of the constitutional history in Chapter Two is a remarkably clear, vivid, and thought-provoking overview. This and the succeeding chapters, which give the legal framework of practically any question you can imagine asking about Canadian history in that period, ought to make the volume an indispensable reference.

Volume II is also groundbreaking among survey histories and reference works for how completely it has integrated indigenous history and law into the narrative, not as some woke acknowledgment but as fundamental grounding. In a hundred and fifty pages, Part Two, "Indigenous Peoples and the New Dominion" focusses a legal lens on treaty-making, the prairie resistance, the Indian Act, the reserve system, the criminalization of culture, education and assimilation, and a host of conflicts between enduring indigenous law and the new system.

And much more.  There are many short summaries that will tell any historian what they need to know on, say, the legal background of corporate power, of labour rights, of property law, of family law, of civil rights....

Philips, Girard, and Brown have another big volume in the works to complete this history. And since the 800 pages of Volume II appear just four years after the 900 pages of Volume I, it probably won't be too long a wait for III. But II may prove to be the essential, and ground-breaking, one of the three, the one you keep on your short, close-at-hand shelf. Somebody should give this book a prize.   

History of the fall of a fence.

Osgoode Hall, fence, and trees, c1868

The grounds of Osgoode Hall have been under threat almost as long as they have existed.  And they have existed a long time. The hall was first built by the Law Society of Upper Canada in 1832, and its grounds were soon encircled by wooden fencing. A handsome wrought-iron fence replaced the wooden one in the 1860s, by which time the Hall also housed the superior courts of Ontario. Ever since, the grounds have been a rare green oasis in the concrete jungles of downtown Toronto. 

And pretty much ever since, someone or other has seen a need to encroach upon the green space with some urgent developmental need. 

In the nineteenth century the University of Toronto thought itself entitled to encroach on the space for University Avenue, the route to its new campus. 

During the Second World War, Osgoode Hall was a rare holdout when most of the wrought-iron fences around churches, gardens, and public and private buildings in Toronto were taken down to provide iron for the war effort. In almost every case, the lawns and gardens inside were gradually replaced with street widenings and parking spaces as soon as the fences were removed

In the 1950s the City of Toronto planned to expropriate a broad strip of the grounds in order to widen Queen Street. 

In the 1960s , the Ontario government proposed building an office tower on the grounds at the corner of Queen and University. 

In the 1970s the law society quailed at the cost of renovating the fence, and considered transferring it to the provincial government, and it was argued that the fence was a symbol of exclusion, exclusion, and barriers to justice -- a suggestion that was revived in the early 2000s.

It's fair to say that the survival of the fence, at considerable cost to the Law Society, was indeed assisted by the Law Society's -- and the Ontario legal profession's -- sense of noblesse oblige, "a positive obligation to preserve the legacy of 'a handful of barristers who built thsi marvellous building to our great joy today.'" The other factor was the very substantial clout that leading lawyers and judged always had in dealings with the provincial governments of all stripes at all times.

The gardens and the fence triumphed over all these challenges.  But it looks like they will succumb to the Doug Ford government and Metrolinx, its transit-building arm, which have expropriated a corner of the gardens and are about to level all the trees on it as part of planning for a new subway station. The law society has been resisting the erosion of its domain, but not very effectively or successfully.  Authoritarian, headstrong governments and their "arm's length" agency are no longer subject to the informal restraints that once prevailed, and are likely to get their way, even on stupid things.

(Much of the detail here is drawn from my own The Law Society of Upper Canada and Ontario's Lawyers 1797-1997, University of Toronto Press, 1997)

History of who divided the powers (wonkish, maybe?)

McGill-Queen's UP kindly sent me a review copy of a thick volume called Law, Life, and the Teaching of Legal History.  It's a festschrift -- Essays in Honour of G. Blaine Baker -- one of those volumes where it is usual to have a mix of contributions on various topics. In Quebec they call this sort of volume Mélanges. I want to come back to the book as a whole another day. 

But today: one of its essays in particular. This one makes a significant contribution to confederation and constitutional history and, as the only essay here on those topics, might be missed.  It's "The Colonial Origins of The Division of Powers in the British North America Act," by Jim Phillips and Tom Collins, at pp. 212-49.

Phillips and Collins, law professor and law student, were looking into what are called Consolidations.  Every so often, commissions of lawyers review all the laws recently passed in a given jurisdiction and "consolidate" them into one thick volume, in which all the repealed laws and sections of laws are jettisoned, and all the new ones are organized by topic and field of law  It's a sort of jurisprudential housekeeping, enabling courts and lawyers to keep up conveniently on current law, and the whole thing is given legislative sanction and published in a thick tome. 

There have been various refinements to the art of consolidation over time, and Phillips and Collins were reviewing how that history had worked out in the Province of Canada, 1841-67. The first thing they noticed was that the consolidators of the day had produced not one but three consolidations. There is one for the Province of Canada in general, and one each specifically for Canada West/Upper Canada/Ontario and for Canada East/Lower Canada/Quebec. The province of Canada was not a federation; it had one legislature and one legislature only. But during its quarter-century of existence, differing legal codes, family laws, property-holding systems, and such meant the two "sides" of the province still operated rather differently. So the ostensibly united province made some laws for the province as a whole, some for Upper Canada exclusively, and some for Lower Canada exclusively.

Turn away from these minutiae for a moment, and consider the division of powers, those long lists in Section 91 and 92 of the Canadian Constitution that put every power the constitution makers could think of into either the federal realm or the provincial realm.  Read confederation history, and it seems that between June and September 1864, the cabinet of the Province of Canada somehow sorted out that whole list and all its detailed distinctions of what would be federal and what provincial, in time to present the whole thing at the confederation conferences of Charlottetown and Quebec, pretty much as a fait accompli.

This has always been one of the magic boxes of confederation history. If you read the major histories (mine included) or the textbook surveys, the elaborate and highly political listings of powers may seem almost to have been pulled out of a hat, as if it just ... happened. 

What Phillips and Collins noticed in those old Consolidated Statutes is that the matters regarding which the unified Province of Canada was legislating separately for Upper and Lower Canada are close to identical to the list of provincial powers in the BNA Act. The matters for which it was legislating for the whole province are, you guessed it, very similar to the list of federal powers. In other words, the constitutional division of powers we still live with was not produced in some whirlwind of inspiration in mid-1864. Phillips and Collins want to tell us it had been developed by trial and error over twenty-five years of lived experience in the united, but really "quasi-federal," Province of Canada, ready to be adopted with some tweaks when the new federal Canadian state needed to allocate powers and responsibilities.

Apart from the thought that the Phillips and Collins conclusion is pretty much irrefutable, what really strikes me from all this is how fairly basic documentary research can still be done, and needs to be done, on a subject as fundamental as the shaping of the confederation settlement. Practically every history professor in Canada has to give a confederation lecture from time to time. Too often they seem content with some 'fifties historiography they picked up in high school, with some current ideological or political preferences stirred in. Who goes back to sources and comes back with new insights as Phillips and Collins have done? 

History-adjacent: Dorothy Eber 1925-2022 and Douglas Lambert 1930-2022

I have not been keeping up with historical obits here lately. Too many? Mostly scholars and scholarly work with which I have not been familiar? Summer doldrums? Bit of all three, maybe.

But I want to note the recent death of Dorothy Eber and the elegant obit by Judy Stoffman in the Globe. Eber was a Montreal-based journalist, but her historical contribution was oral histories of Inuit informants. She started with Inuit artists, and moved on to Inuit historical testimony in general. Perhaps most important, by the late stages of here career her Inuit translators, whom she credited lavishly, seemed to be launching an Inuit oral history program all of their own. I had the pleasure of profiling her for Canada's History in 2008, and you can read it here (scroll down a bit in the link).

Another history-adjacent death: that of Douglas Lambert. He was not a historian. He was a lawyer and then a judge: Mr Justice Douglas Lambert of the British Columbia Court of Appeal, 1978-2005. But his recent death notice makes a point of mentioning his particular contribution to judisprudential and national history:

He was perhaps best known for his significant contribution to the evolution of the law on Aboriginal Title and Rights. His ground-breaking judgments on Indigenous law, 23 in all, span a quarter of a century, and include Haida Nation v BC, which protected Haida Gwai forests and enshrined the province's duty to consult and accommodate Indigenous nations.

Lambert's decisions (and dissents too) on indigenous matters at the BC Court helped crack that province's once rock-solid denial of aboriginal rights, and his interpretation of title and treaty law had a profound influence at the Supreme Court of Canada as well. I'm not sure how well it is understood how far ahead of the political community the judicial community has come to be on these matters. It's fair to say Lambert was also ahead of most Canadian historians in grasping the fundamental change that would have to come to Canada's understanding of treaty rights and obligations, aboriginal title, and self-government.  

I did not know Lambert at all, but I got to know of him while researching The British Columbia Court of Appeal in the late 2000s. 

(Among some historical deaths I did not get to: that of Gordon Darroch, pioneer of quantitative history (I remember when that was a thing), recently remembered by York University.)  

Book Notes: Rough Justice

Flanker Press, Newfoundland's leading trade book press, recently sent me a copy of Keith Mercer's recent book Rough Justice: Policing, Crime, and the Origins of the Newfoundland Constabulary, 1929-1871.

Mercer's book is an institutional history commissioned and supported by the Royal Newfoundland Constabulary Historical Society (as the first of at least two volumes, no less). It's also a serious, from the ground-up, constable's-eye view of justice, authority, and the policing of early Newfoundland, with some serious comments to offer on Newfoundland historiography.

Take dog control. Mercer notes it has been argued that the frequency with which dog control legislation was brought down by Newfoundland authorities is evidence of the ineffectuality of law -- rule-making as a substitute for enforcement.

Mercer offers a table from a typical year,1865: 827 dogs shot by constables under the Sheep Act. 256 in St John's, 174 in Harbour Main/Brigus, 65 in Carbonear, 60 in Trinity, and so on. That's just part of one year, with not all districts reporting. The scale at which dogs were killed was astounding, Mercer writes. "In St John's Chief Magistrate Carter reported that constables shooting dogs with guns in the city was dangerous but happily no serious incidents had occurred." (Can we expect a dog's-eye view history of Newfoundland sometime?)

Mercer offers context for this unforgettable historical detail. In the 1860s efforts were being made to expand the Newfoundland economy beyond fishing to agriculture, and particularly to grazing.  An Agricultural Society reported in 1865 in the past five years no less than 4000 sheep had been killed by dogs, 1630 around Brigus alone.  Dog control in other words, was a prerequisite to development, and there was no one but the Constabulary's men to carry it out  - which they evidently did.

So Mercer makes the whole thing not a lurid anecdote (well, not only a lurid anecdote) but a window into the complications of law and policing when a handful of constables were practically the only agents of authority anyone saw.  And that kind of sharp eye for how Newfoundland society and government operated is evident all through the book.  It even explains why, in the early 19th century, anyone who was a publican, that is, held a license to sell liquor to the public, was also ex officio a constable responsible for keeping order in the neighbourhood.  The lovely strangeness of the past.

History of best and worst at the US Supreme Court -- updated

Scotusblog, the American blog about the Supreme Court of the United States [whence "SCOTUS"] has been running a March madness-type bracket competition to determine the champion justice of that court. 

Currently John Marshall, CJ 1801-35, the first great judge of the court and effectively the one who secured for it the authority to make constitutional rulings that could not be overturned by Congress or the president, is going up against Earl Warren, CJ 1953-69, leader of the Warren Court's "constitutional revolution" in civil rights jurisprudence. 

Warren had to beat out the renowned Louis Brandeis (SC judge 1916-39), so two heavyweights for sure.  But in the semis, Marshall was up against Antonin Scalia (SC judge 1986-2016) whose death led to the debacle when the Republican Senate refused to consider the replacement nomination from President Barack Obama. I thought Scalia was mostly famous for his anti-gay and anti-black rulings, and for his way of always produced the most reactionary interpretations possible of the US constititution and calling it a legal philosophy. His "originalism" has not been taken very seriously as a theory of jurisprudence outside the United States, but there it remains significant enough to carry Scalia to the semi-finals, I guess.

As a counter-weight, the podcast 5-4 Pod, with a more lefty/critical take on the court, is running its own contest to determine the worst Supreme Court justice. Looks like Roger Taney, whose Dred Scott decision helped launch the US Civil War, will run away with it. Scalia was not listed in the opening round of sixteen.

Who might be candidates in a Supreme Court of Canada version of this?  Frankly, I fear there are too few justices of enough renown (or ill-repute) to make up a bracket, and too few scholars to vote on it.
I could see Bora Laskin going up against Beverley McLachlin in one semi-final, and Ivan Rand facing, hmm, Brian Dickson in the other. Dickson was the progenitor of the "living tree" doctrine of constitutional interpretation that has mostly prevented originalist notions in Canadian jurisprudence. Laskin the winner?

But those are about the only names I can come up with as possibilities in Canada. The competition hardly starts until 1950, when the court got out from under the Judicial Committee of the Privy Council in London, so the pool is not large.

Any nominations? 

Update, April 16:  Alan B. McCullough asks:

Was Brian Dickson the progenitor of the "living tree" doctrine of constitutional interpretation? Is the phrase, and the doctrine, not normally attributed to Viscount Sankey of the Judicial Committee of the Privy Council in the Persons Case of 1929? Sankey may have felt comfortable in adopting this position given the history of JCPC decisions which arguably strengthened provincial powers and undermined the idea of originalism in Canadian jurisprudence.

Yes, you are absolutely right in crediting Viscount Sankey.  

Definitely the phrase begins with Sankey and the Persons Case of 1929. To justify overthrowing a long string of judicial rulings that had declared that a piece of legislation that said "persons" obviously meant "men" and should be interpreted as such, Sankey wrote, "The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits." That is: since the status and public role of women had evolved since the words of the constitutional text were written, interpretation of its words must reflect that changed situation."

This is beautifully set out in Robert Sharpe and Patricia J. MacMahon's 2008 book The Persons Case.

But Sharpe and MacMahon go on in that book to show that the "living tree" argument presented by Sankey in 1929 had almost no influence upon interpretations of the Canadian constitution during the next fifty years -- either at the JCPC or, after 1950, at the Supreme Court of Canada. It was Chief Justice Dickson's court that breathed life into the living tree and made it the foundation of the Supreme Court's interpretions of the constitution and the brand-new Charter of Rights and Freedoms. Hence, I was speculating, Dickson's claim to be considered in a "best of" ranking.  

Sharpe, with Kent Roach this time, is also the author of a large 2003 biography of Dickson, Brian Dickson: A Judge's Journey 

 

  

More wiggy history

My recent request for information on the history of wig-wearing in the courts of Newfoundland went entirely unanswered. Readers, I'm disappointed. But the reason behind the ask is now revealed: this little piece just up at the Findings/Trouvailles part of the Champlain Society website. While there, you might browse the long list of other "Findings" documents and "Witness to Yesterday" podcasts, among much else.

For lack of a source, I had to cut a parenthetical reference to Newfoundland and Labrador from the Findings essay. On the other hand, there's a kind of satisfaction in stumping the internet.

Wigs in Newfoundland (a contender for top ten most insignificant historical queries, but still....)

Around the internet, I can find various statements (eg, Wikipedia here) that judges and lawyers in Newfoundland and Labrador ceased to wear legal wigs in court in 1949. Not impossible, but Newfoundland administered its own courts both before joining Canadian confederation and after, so there's no obvious causal relationship to be drawn from that date. Above all, I have seen no reliable source referenced for this or any other date. 

Can anyone come up with a source for the end of official wig-wearing in Newfoundland courts, in 1949 or some other date? An amendment to the Judicature Act? A resolution of the Law Society? A rule of court from the Chief Justice? Or (quite possibly) just evidence of a gradual shift in legal habits court by court.

All useful evidence gratefully received and acknowledged. 

Naming in law and naming in contemporary history

Yesterday Ontario judge Anne Molloy convicted the Toronto van murderer who ran down and killed ten pedestrians on a Toronto street, in a judgment that recommends that his name not be used. The judge referred to him throughout as  "John Doe." Molloy argues that since the murderer's motive was fame, it was appropriate not to reward him with more fame. 

Today his name has been widely published in the media. So there is pushback to her recommendation.

 It's not a new issue. Years ago I blogged an item on the anniversary of the murder of female engineering students at the Université de Montréal in 1989, partly because I happened to be administering an exam to a history class the morning after the shooting and retain a vivid memory of the collective sense of shock and horror felt in the class. I got an email in response, urging me not to give the convicted murderer the celebrity he wanted. It seemed persuasive then; it still does.  

Today I see criminal law practitioners argue in the media that the courts' role is to hold people accountable, and accountable requires naming. It is also suggested that Molloy's decision will create precedent for people convicted of crimes to avoid accountablility by demanding the same treatment the van killer got. But surely declining to name is a choice, not an obligation.

Not naming comes up in legal history, too. Some years ago, when I wrote a history of a British Columbia court, I included detailed accounts of ten cases that illustrated how the court had worked over the decades. One, a fairly recent divorce case, illustrated how courts have come to deal with family property and support questions. It was only after the book was published that I had second thoughts about having used the divorcing parties' full names (as, indeed, my source, the published case report, did.) The still living individuals' names were not important to my story. I was only using their case as an example of evolving legal practice in family law. I could have anonymized them and spared them perhaps unwanted scrutiny of their particular marriage. 

Thinking about that, I learned about "anonymous citation," in which legal scholars writing about case law in legal journals and the like may refer to still-living parties as "A" and "B" or "John Doe" and "Jane Roe" to spare them unnecessary publicity. If I wrote another court history, I'd likely follow that trend wherever the circumstances seemed right. 

So lawyers are already exploring ways in which prudence and consideration can lead to withholding names -- not as censorship, not as a restriction of free speech, but as courtesy and sound judgment.  Writers of contemporary history, as well as journalists covering sensational crimes, may sometimes want to consider following that lead.

Book Notes: Savage and Radforth on Sex and Violence in Canadian History

Yesterday, zoomed in from hot, sunny, mostly plague-free Canberra, where she teaches at Australian National University, Carolyn Strange was telling the Osgoode Society for Canadian Legal History a little about her new book The Death Penalty and Sex Murder in Canadian History.

She noted that while judges have long been sympathetic to men accused of sexual assault, men convicted of sex murders have historically had a strong likelihood of receiving the death penalty and low chances of having their sentence commuted. 

She also reminded the audience that the death penalty is not really abolished. It's in abeyence -- and sex murders tend to bring the strongest calls for its return.

Next week, Ian Radforth, longtime Canadianist at the University of Toronto history department, is zoom-launching his book Jeannie's Demise: Abortion in Trial in Victorian Toronto: legal, social, and personal consequences of abortion, centred on the particular misfortunes of one Toronto woman. 

Two big books with blood-red covers.

 

What the other Christopher Moores are up to -- an occasional series

  

I love this one: 

Christopher Moore, for example, convicting of counterfeiting dollars at the Halifax Quarter Sessions in 1770, was sentenced "to stand in the pillory one hour with one of his ears nailed thereto." Moore escaped a worse fate because of uncertainty about whether the ear should be removed first; a statute of 1758 was ambiguous on the point, but one of 1774 made it clear that removal was indeed the prescribed punishment.

(From Philip Girard, Jim Phillips, R. Blake Brown, A History of Canadian Law: Volume One Beginnings to 1866, p 283.)

All three authors are friends, and I actually read a fair amount of this book in draft or when it appeared, but this paragraph had eluded me until now. A puzzle: which is worse, having the ear removed entirely or being attached to it while it spends an hour nailed to the pillory?

Here, from the back files: another Chris Moore doing cool things.   

History of legal history

Went down last night to a dinner celebrating the 40th anniversary of the Osgoode Society for Canadian Legal History and its inspirer/founder, former Ontario Attorney-General (and Chief Justice and much else) Roy McMurtry. Since the Society has access to the Law Society's stately Osgoode Hall and its dining room, the legal-tome-lined Convocation Hall, they do put on an elegant event. More impressive, even, was the mass of working lawyers the event attracted, men and women who understand (often having been persuaded by Roy McMurtry) that supporting a legal history society can be both a cultural pleasure and a kind of professional responsibility. Also in attendance: a few lively tables filled by us historians who have contributed to and benefited from the Society over the years.

Many examples were given at the dinner of the good work the society has done in forty years to stimulate legal-historical research and to create venues for publication,  (As the Society's editor-in-chief likes to say about the entwining of law and history, "There are two kinds of historians: those who do legal history and know they do, and those who do legal history but have not realized it yet."

Recently I have my own little testimonial to the good work the Society can do in that area. I agreed some time ago to write up Archer Martin, a past chief justice of British Columbia, for the Dictionary of Canadian Biography: the usual 1500 words or so for the usual hundred dollars or so. Well, I know his career pretty well.  Then I confirmed that the British Columbia Archives holds a large collection of Martin's personal and professional correspondence, and since Martin was famously cranky and combative they seemed to obligatory reading.

Except my spending a month or two researching in Victoria on the DCB's hundred bucks seemed... well, impractical.  Happily, some consulting in the legal history community (thanks, Hamar) and with BC Archives and Museum (thanks, Lorne and Sally) confirmed that it would be perfectly practical to hire someone there with a iPhone and some organizing skills to photograph a collection of the relevant materials and send it to me to research at home and at leisure.

Now I'm pretty sure SSHRC and the Canada Council and every other granting agency I could think of would take a year or two to say no to a request for a small subvention to assist that process. Enter the Osgoode Society, which administers the Theodor Kerzner Research Grants (endowed by another lawyer-member of the society) to provide smallish amounts in support of legal history projects.  Voila: in a very short time I had some funds. I hasten to say it doesn't feel like a subsidy to me: seems to me the real beneficiaries will be some student on the Island, and the Dictionary of Canadian Biography, and, you know, Canadian scholarship.  Nevertheless, I suddenly have new cause to appreciate the existence of the Osgoode Society. (And thank you, the late Theodor Kerzner -- whom I never met.) Do other professions have comparable organizations?

 

Legal historian Wes Pue (1954-2019) RIP

Wes Pue, professor of law and chair in legal history at UBC, died April 3. A gap may exist between legal historians and historians tout court -- partly because law schools are more serious than most professional schools about doing history on an ongoing basis .Wes Pue was a serious historian. His scholarship on changing ideas of legal ethics and the nature of the practice of law, in Britain and in Canada, was groundbreaking.

He was attentive to public ethics as well. After the police riot and pepper spraying of demonstrators at the Asia-Pacific Economic Conference in Vancouver in 1997, Pue edited the collection Pepper in Our Eyes, about the accountability of police for their political actions.  He also ran the Law and Society publication series for UBC Press.

History of the independence of Attorneys-General

Oliver Mowat is looking down

Adam Dodek, academic and constitutional scholar, observes in today's Globe & Mail that the Trudeau/Wilson-Raybould clash has arisen because in Canada the Minister of Justice, who had a large government department to run and important parts of a government's legislative agenda to direct, is also the attorney-general, in effect the cabinet's legal counsel, bound to give the government independent legal advice.  He declares the offices create unavoidable conflicts and must be split:

The answer for why the two offices are combined is simple, if unsatisfying: That’s the way it has always been in Canada. But governments do combine and divide departments from time to time. [...]  The Justice Department and this combined role, however, has remained largely unchanged since the department’s creation in 1868, with the biggest change coming in 2006, when its prosecutorial arm was spun off into a separate office, the Public Prosecution Service of Canada (PPSC). Of course, it is this relationship that’s at the heart of the current controversy involving the PPSC, the attorney-general, the Prime Minister’s Office and SNC-Lavalin.

There is no deeper historical reason that the two jobs are fused in Canada, either. In the British parliamentary system, from which Canada inherited its governance structure, the attorney-general and the Minister of Justice (Lord Chancellor and Secretary of State for Justice) have always been two separate positions. The British minister of justice is a member of cabinet, while the attorney-general is not, although the latter does attend cabinet meetings.

I know that as a historian I have to say this, but there is a deeper historical reason. And since governance in Canada goes back before 1867, it's way back there.  Indeed, the question of splitting or uniting the two roles was extensively debated, with much legal advice sought, back to the 1840s and 1850s.  I was able to confirm this in very satisfying fashion by grabbing my copy of Paul Romney's 1986 classic Mr Attorney.

Before confederation (and after), many elected representatives of the people in British North America were men who would not have even had a vote in Britain at the time: farmers, merchants, journalists, etc. Legislative and administrative expertise was often at a premium in early legislatures. Lawyers tended to have those skills, and frequently rose to positions of leadership and responsibility.  Oddly, attorneys-general were among the few politicians with a substantial income from their political office, since their job then included actually going to court to represent the crown (and being paid for their time). As a result, AGs were able to devote more time to politics (particularly by delegating their courtroom chores to other lawyers) than most barely-paid legislators and ministers. As a result, the pre-confederation attorneys-general tended to be, not merely in cabinet, but to be premiers and prime ministers.  Such grubby details would be incomprehensible to most British statesmen of the day, of course. British North American politicians were well aware of the British example of non-cabinet AGs, but also understood the different circumstances of North American politics.

After confederation, there was another deep historical reason for the fused role of AGs: federalism. One of the vital jobs of a provincial attorney general in Canada is to determine where the province's authority ends and where that of federal government begins. As a result, right from confederation, attorneys general were deeply involved in both the policy-making and the litigation of federal-provincial relations, and the legal and political aspects were so enmeshed as to require the AG to be in cabinet, if not actually leading it.  Again, this was not a situation British politicians had to consider.

Really, none of this history need affect the question of principle that Adam Dodek addresses. In fact, mid-19th century Canadian politicians and jurists debated the question at great length and no small sophistication, all of which I could follow in some detail in Romney's book. When Canada diverges from British parliamentary norms, there are generally reasons worth exploring -- sometimes way back. And it's nice to see a case when the history book that demonstrates that is already written and in print. (I have massively under-reported here the subtlety of Romney's presentation!)

On a 21st century note: Dodek argues the attorney general should be an MP, not a cabinet minister.  But would that provide the independence required?  It is understood that cabinet ministers are bound by cabinet solidarity, but today MPs in Canada are equally bound by party solidarity. Since it is now Canadian political custom that any MP who dissents from party orthodoxy can be summarily dismissed from caucus (and probably denied renomination) by the party leader, could Canadians confidently believe an MP was a more independent AG than a cabinet minister could be?

Canadian particularities still influence abstract Westminster principles. 

History of Courts, history of Saskatchewan

After writing a history of the British Columbia Court of Appeal and then the Ontario Court of Appeal in quick succession a few years ago, I was starting to think of myself as the go-to guy for histories of judicial institutions. Nice work, too -- interesting questions to research, influence on further research, a dedicated (though very small) audience, publishing options, and solid funding support.

Turns out it's an active market. For its centenary history, the Court of Appeal for Saskatchewan has turned to a (semi-) local source. Calgary historian David Mittelstadt, already the author of an Alberta judicial study, has produced The Court of Appeal for Saskatchewan: The First Hundred Years, recently published very handsomely by University of Regina Press.

It's good too.  I haven't got through its 600 pages yet, but it looks solid, comprehensive and readable.  For the handful of us who actually follow this subject, it's striking how each provincial court actually mirrors and reflects its province. There are definitely more Eastern European names in the Saskatchewan history than in either the B.C. or the Ontario ones.

Book Notes: History of Law in Canada

Down last night to the Osgoode Society launch of A History of Law in Canada, Volume 1, Beginnings to 1866 by Philip Girard, Jim Phillips, and R. Blake Brown. It's 900 closely written pages and I don't claim to have read many of  'em yet, but I can offer a few notes:

• What is the scope of their inquiry? Well, the cover image is of Akitsiraqvik, a place on Baffin Island where Inuit trials and public gatherings were held until the early 20th century. And their attention to indigenous law does not end at the cover.
• What is the depth?  Well, I know a bit about a few corners of legal history (courts of appeal, law societies...) so naturally I checked those sections early on. In each case either they added something I didn't cover, or made broad inter-provincial comparisons and judgments that were beyond my remit.  
• What's the detail?  Well, their 900 pages have only got them to the mid-19th century. Come back in 2021, 20th centuryists, they say.

Historians, you are going to be consulting and citing this book for quite a while, no matter what your specialty. And if you are an aspiring legal historian, there must be ten thousands matters raised here that are worth fleshing out in a thesis or article.

The other book launched last night is The Class Actions Controversy by lawyer/scholar Suzanne Chiodo, which actually sounded quite interesting too.  But then I'm biased.  Chatting with a couple of the inventors of class actions in Ontario (it's not that old), I was able to tell them I myself once cashed a handsome little cheque from a class actions victory: Heather Robertson v. Thomson Newspapers of sweet memory.  Wish we could do the same to the universities for all their copying. 

Blaine Baker 1952-2018 RIP

The Globe and Mail today has the death notice for McGill law professor and legal historian Blaine Baker, who died last month.

I first encountered Blaine Baker's work through a lively "exchange" he and Paul Romney had in the 1980s, in Ontario History and other journals, The subject was the Upper Canadian "types riot" of 1836, and broadly the whole subject of legal and constitutional ideologies in Upper Canada during the early 19th century.  I was working on early 19th century lawyers at the time, a new field for me then, and found the whole debate pretty impressive about a whole field I'd never before contemplated.

I got the impression from the articles that Blaine Baker (well, Romney too) was a fierce combattant in historical debates; it read like a rather personal exchange. Then I met him, indeed met him many times, mostly under the auspices of the Osgoode Society for Legal History, and was struck mostly by his courtesy, his supportive mentoring personality, and his very collaborative attitude to historical work.  I still kinda take Romney's side in that old debate, but I developed a great admiration for Blaine Baker. Both he and his work were very helpful me to me in many of my legal history projects.  Baker's major works were in the elucidation of legal ideas and legal historiography, perhaps, but as pure historical research I liked his close detailed study of Montreal legal firms and how they functioned in the 19th century, "Ordering the Urban Canadian Law Office and its Entrepreneurial Hinterland, 1825 to 1875," in University of Toronto Law Journal 48 (1998), pp 175-251.

Legal history: SCC embargoes the documents

Thinking about writing a history of the Supreme Court of Canada? Or any of its judges?  Particularly about the recent decades when it became truly "supreme," began to control the docket of cases that came to it, and was empowered by the 1982 constitutional amendments to wield power as never before?

You might have to wait. The Supreme Court recently put a fifty year embargo on the internal court documents and judges' communications that provide the kind of sources judicial historians require. Biographers and legal historians are pushing back, with the support of many retired judges:

Jim Phillips, editor-in-chief of the Osgoode Society for Canadian Legal History, which has overseen the publication of several biographies of Supreme Court judges, also said he did not understand why the embargo had to be nearly so long.

“I could see a rule that said ‘nothing that referred to a sitting judge.’ But nothing like 50 years.”

John English, a historian and author of a biography of Pierre Trudeau, said that, decades ago, 50-year embargoes on access to government files gave way to 30 years and then 20. He said the documents disclosing Supreme Court deliberations is critical to understanding how the country’s most powerful judges dealt with major issues since the 1982 Charter of Rights and Freedoms took effect.