Law Times "That's History"

FirstWomen 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 among early women lawyers around the world?

At the centre of a trend, according to Mary Jane Mossman of Osgoode Hall Law School, who takes an international perspective in her new book, The First Women Lawyers.

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 kept women out longer.

Britain: No women formally became English barristers or solicitors until 1921-22. But Eliza Orme had all the credentials except the formal call and effectively practised law from 1875.

France: Jeanne Chauvin was fully qualified by 1890, but was prevented from taking the avocat's oath until 1900.

New Zealand: Ethel Benjamin was called to the bar in 1897 but was largely isolated by her colleagues despite her acknowledged skills.

Italy: Lydia Poet had the qualifications by 1883 and practised law from 1885. But Italian women were denied formal access to the profession until after the First World War.

India: Cornelia Sorabji, a Parsee, defended a murder charge in the Indian courts in 1896, but was denied full legal credentials on a variety of technicalities all her life.

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 in the developed world. A tide was turning.

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 with substantial numbers of women.

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 their prejudices against women lawyers.

Professor Mossman is cautious about simple interpretations of the emergence of the first women lawyers, preferring shifting "kaleidoscopes" of meaning. But she suggests two key themes.

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 ran in tandem.

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 to the ambitions of women.

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 distance before we understand all the nuances of how it ended.

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 of the CBA? 1992.)

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 Press (utpbooks@utpress.utoronto.ca).

©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

Summer Reading: The Heiress vs. The Establishment
(June 2004)

Just published, The Heiress vs. The Establishment: Mrs. Campbell's Campaign for Legal Justice by Constance and Nancy Backhouse should be high on Ontario lawyers' list for summer reading. It raises issues about your profession. You will be hearing about it anyway. And you will find it a very entertaining read.

Mrs. Campbell was the daughter of a leading 19th century Toronto lawyer, James Bethune. Her widowed mother entrusted the family fortune to a relative, William D. Hogg, eminent Ottawa lawyer, QC, Law Society bencher, and Ottawa head of the Toronto General Trust Corporation.

After the mother died in the 1920s, little of the money and less in the way of an accounting came back to the heirs from Hogg. Mrs. Campbell wondered why. The more she asked, the more she was told not to ask impertinent questions. Eventually she sued. And then it really got ugly.
Mrs. Campbell had a pretty good case, but she was stonewalled at every turn. Documents disappeared from the care of those entrusted with them. All the best lawyers decided not to represent her. Ontario's leading judges, many of whom were longtime friends of the family, were unable to say she was wrong, but even less able to rule against their dear friend and distinguished legal brother, Mr. Hogg.

Defeated in Ontario, Mrs. Campbell eventually took her case to the Privy Council in Britain, where she argued her own case without legal counsel, and she won. Then she wrote a book contrasting the cowardice and complicity of the Ontario bar to the paragons of justice she found at the Privy Council.

Her book, Where Angels Fear to Tread, self-published in 1940, was always scarce. In Ontario, a legend developed that it "there was some kind of interdict about it." Lawyers who should have known better believed the only surviving copy was locked away in the librarian's office at the Osgoode Hall Great Library.

Now law professor Constance Backhouse and her sister, Justice Nancy Backhouse, have republished Mrs. Campbell's secret book with a short introduction, a long epilogue, and a massive annotation of who was who in the case. Mrs. Campbell proves to be an engaging writer with a lot of allegations about the probity of lawyers and judges, and the Backhouse sisters mostly let her speak for herself. They are restrained and thoughtful in raising the issue Mrs. Campbell's case presents.

At heart, The Heiress vs. The Establishment is about the way the legal profession can become a privileged caste, more concerned with its own interests than those of its clients (let alone of justice). Hogg does not come off well, but the authors acknowledge that as an interested family member himself, he may have felt less than a full fiduciary responsibility in handling this particular estate. (Mrs. Campbell's siblings defended him and repudiated her.)

The real villain here is the profession: elite judges and lawyers, armoured in their monopoly, their wealth, their self-regard, and their camaraderie, who simply refused to uphold the law when it threatened to embarrass one of their own.

Today Mrs. Campbell's 1940 book has been republished by authors who between them include a law professor, a bencher, and a judge. It is published by the Osgoode Society and its board of eminent lawyers, and it carries approving comments from the Chief Justice of Canada and the Chief Justice of Ontario. Lawyers may be reassured that their profession is not so smug and self-protective in 2004 as it was in the 1930s.

On the other hand, the power of the profession is always rooted in its claim to expertise. The Backhouses point out that when the profession turned its back on Mrs. Campbell, she went on to argue and win her case herself, with no more legal expertise than a couple of law books and advice from some friendly court clerks.

The Heiress vs. The Establishment is a very entertaining piece of Ontario legal history. With some sting still left in its tail.

©Christopher Moore Editorial Ltd 2005

What Are Lawyers Worth: The view from 1885
(May 2005)

The American inclination to sign trade agreements and then resist being bound by them is longstanding. In 1871 Canada and the United States agreed to give each country open access to the other's fishing grounds. Since such access benefited Americans more than Canadians, an additional payment was due to Canada. The Americans took the fish but stalled on the payments. Finally an arbitration was held in Halifax in 1877.

Four Canadian lawyers spent seven months making the case to the arbitrator, a Belgian diplomat. His award, $5.5 million, delighted the Canadian government. (It was at least $5 million more than the Americans intended to pay.) Persuaded of the wisdom of using Canadian advocates rather than the complacent British diplomats who had previously represented Canada, the government offered the four lawyers $7000 each for their services.

One of the four lawyers, Joseph Doutre of Montreal, thought he was worth more.

There had been an election, and the new Tory government hated paying the four Grit lawyers to whom its predecessor had given this work, so the crown stuck to its offer. Doutre took the matter to court. Canada lost, appealed, and lost again, all the way to the Privy Council. In 1884 Doutre was awarded an additional $8000.

In 1885 the government put $24,000 in the estimates to give the other three lawyers the same increase Doutre had won. By then, one of the three had died and one had gone to the bench, but the third, Louis Henry Davies of Prince Edward Island (a future Chief Justice of Canada), was an MP and a prominent member of the opposition front bench (though he was absent the day the estimate came up). The debate that ensued suggests that the attitudes both lawyers and clients hold regarding appropriate pay for lawyers are timeless.

Thomas Farrow, a Conservative farmer MP from Huron County, launched the debate with an attack on Davies. $15,000 for seven months? It was "an extraordinary amount." Why, only weeks before, the honorable gentleman (Davies, that is), "his breast filled with righteous indignation," had been castigating the government for wasting public money. Now he was rolling in it, complained Farrow.

But the legal profession had friends and defenders in the House. Liberal member Charles Weldon of Saint John had been a partner of the dead lawyer, S.R. Thompson, "one of the most eloquent and able men who ever lived in the Dominion of Canada." Since he and Davies and the others had won the case, they had earned their fee, said Weldon. Other lawyer MPs agreed that these were "leading counsel," men "of the greatest eminence" in their profession.

Liberal MP Richard Cartwright had been a minister in the previous government, and the big arbitration win had been a proud moment. But he was a penny-pinching banker. "I have often thought myself, although a humble member of that [legal] profession, having been a student only, that the public at large were grossly abused by the immense amount of fees they were obliged to pay." Perhaps some control of lawyers' fees was needed.

Fisheries Minister Archibald McLelan weighed in, defending the payment as unavoidable, but also getting in a dig. The fault lay with the previous government, which "had not had the understanding with the legal gentleman more clearly defined." Donald McMaster, a prominent Montreal lawyer and Conservative MP for Glengarry, echoed his sentiments.

McMaster's contribution inspired the best shot of the exchange, from Strathroy merchant Donald Cameron, a Liberal backbencher. "If the hon. gentleman, who is a distinguished member of the bar, will explain how a client can make anything else than a loose bargain in a law case, he will give us some valuable information!"

A last word went to Mackenzie Bowell, a cabinet minister and future prime minister, and a printer by trade. He wished his own profession had the esprit de corps lawyers had. "When an unfortunate printer gets a few [government] dollars, every other printer pitches into him as if he was purchased and is the biggest rascal that ever lived. But you touch a lawyer and it makes not the slightest difference whether he is a political friend or opponent. They all stick together like wax."

The expenditure was approved (no one had doubted it would be), and the House moved on to the next item. Probably the Gomery lawyers will be spared this kind of scrutiny.

©Christopher Moore Editorial Ltd 2001

Who the hell is Anton Piller?
(June 2005)

Q. When I reported on an Anton Piller order our organization had sought, several board members woke up long enough to ask who the hell Anton Piller was. Who was Anton Piller, and why are we taking his orders?

A. He's a controversial guy, Anton Piller. The file-sharers, freecopiers, and IP pirates who find themselves being nailed for intellectual-property abuses because of Anton Piller orders have been trying to discredit him, calling Anton's orders "the nuclear weapon of the law." They have a point: even the judges who codified them emphasized the draconian power they give plaintiffs.

Anton Piller never knew anything about Anton Piller orders. He knew about industrial fans. Early in the early twentieth century, Anton Piller was a mechanical engineer in Hamburg, Germany, and in 1909 he patented a design for a fan. On the strength of it, he built a successful industrial fan company, Maschinenfabrik Anton Piller, later Anton Piller KG and Piller Industrieventilatoren.

The business still thrives, but Anton himself was dead long before he became a household name, at least in households that have an IP lawyer in them.

In the 1970s, Anton Piller KG suspected its agent in Britain, a company called Manufacturing Processes (MP), of selling its design secrets to competitors. The Piller company wanted to sue, but its counsel, English barrister Hugh Lassie QC, feared that the moment an action was launched, MP would shred all the evidence - and the proof would be gone.

Lassie persuaded a judge to issue an order that MP should invite the Piller company to search its premises for evidence - with the proviso that MP would be in contempt of court if it declined to issue the invitation upon presentation of the order.

Anton Piller KG was not even the very first company to get such an order. But its was the first such case reviewed by Britain's Court of Appeal, where in 1976 Lord Denning wrote the first set of rules to govern such orders. They were "at the extremity of the court's powers," the court said, and should only be used in exceptional circumstances. But soon plaintiff's lawyers throughout the Commonwealth were saying, "We need one of those orders Anton Piller got."

Law does not have a Linnaean system for naming new species of law. It seems to be a chancy process, how individual cases (Askov deadlines, the M'Naughten rule) turn into shorthand for specific judicial procedures. Back in the 1970s, the British court might have defined Anton Piller orders as "civil search warrants" or "evidence-protection orders." A century earlier, they might have applied some Latin tag. Then Anton Piller would only be a precedent to cite (and a ventilation company).

But "Anton Piller" was short and catchy, and it had prestige by association simply by being launched by the influential and quotable Lord Denning. It went around the world.

An Australian Anton Piller order sank the company behind the file-sharing software Kazaa. Anton Pillers have turned up from Nigeria to New Zealand.

The process and the name came to Canada around 1980, and they have thrived here, not without controversy. An Ontario court recently found the distinction between Anton Piller orders and search warrants was "tenuous" and ought to be abolished.

Unless that happens, Anton Piller looks like living forever. Indeed, the Piller company may have a whole new claim for IP infringement: against the judicial systems that have hijacked its brand name. Google "Anton Piller" and you will find a lot more about legal processes than about a certain brand of industrial fan.

©Christopher Moore Editorial Ltd 2001

Remembering John Arnup, lawyer
(October 2005)

John Arnup, one of the great Ontario lawyers of the twentieth century and one of the great leaders of his profession, too, died on October 5. He was ninety-four and he had been ill for some time, but I find myself thinking he died too soon. Certainly there were legal history projects that he never lost interest in, and that I would have been grateful to have heard more about.

Born in 1911, the son of a Methodist minister and moderator of the United Church of Canada, Arnup learned law in one of the great litigation firms, Mason Foulds (WeirFoulds today) and he joined that firm when he was called to the bar in September 1935 - just seventy years ago.
At Mason Foulds, Arnup got a rigorous apprenticeship with Gershom Mason, Roy Kellock, Bill Gale and others. He later said that it was seven years before he took a case to the Supreme Court of Canada -- but when he did he did it right, because of the Mason Foulds training. After war service in Ottawa, he emerged in the late 1940s as one of Toronto's most highly regarded litigators. "He had a developed sense of relevance," said Barry Pepper - an unusual but perceptive summation of legal talent.

Arnup did countless cases in many courtrooms. One of his great cases, fought between 1966 and 1968, was Leitch Gold Mines v Texas Gulf, a complicated commercial litigation that in its day was the longest trial ever heard in Ontario. Arnup represented the defendant and John Robinette was for the plaintiff. Arnup's old colleague Bill Gale presided, and Bertha Wilson, who also had a role in the case, called it, "Ontario's two most outstanding counsel facing off against each other under the keen and critical eye of its most outstanding judge." There were masses of technical evidence to assimilate, but a crucial factor was the credibility of the plaintiff's key witness. Arnup's successful demolition of that credibility gave him the win.

Popular and respected from early in his career, Arnup became a bencher at age forty when most benchers were a good deal older. He had an extraordinary impact at the Law Society. He was deeply involved in the remaking of legal education in the 1950s, in the moving of Osgoode Hall Law School to York University in the late 1960s, in the shaping of ethical and auditing standards, and particularly in the creation of paid legal aid in 1966, while he was treasurer.

In 1970, Chief Justice Gale of the Ontario Court of Appeal told Arnup, "If I can get you, I can get anybody," and Arnup, soon joined by luminaries such as Charles Dubin, Bud Estey, Arthur Martin, and Bertha Wilson, helped build the Court into one of the strongest in Canada.

Retirement in 1985 allowed him to expand his other career as chronicler of his profession. He wrote many essays, some on substantial issues, some simply colourful stories, for The Law Society Gazette. He wrote a biography of a personal hero, Justice Middleton. He struggled for years to bring into being a history of the Court of Appeal.

A decade ago, I was writing the bicentennial Law Society of Upper Canada and Ontario's Lawyers. Told that Arnup, the great lawyer, the distinguished judge, the past treasurer, wanted to review my manuscript, I was alarmed. I prepared to defend myself against some crusty octogenarian eminence who would issue dicta about what was to go in and come out.

Instead he insisted I call him John and said very firmly the book was my responsibility and he was merely interested and eager to help. Then he proceeded to give my rough draft an extraordinarily vigorous, careful, useful critique. If this law thing had not worked out, he could have been a very fine editor.

But he read the chapters in chronological order, and I grew nervous again as we approached the era he knew from personal experience. When Arnup told me he thought I'd got the feel of those times just about right, it seemed as fine a professional compliment as I'd ever received.

I only knew John Arnup in his eighties and nineties, and he seemed the nicest man you could imagine. Considering his career, I realized that in his day he must have been able to be tough, to put work ahead of all else, to be ruthless in court or convocation.

Doubtless he did. But to prepare this piece I looked over many years' worth of recollections of John Arnup. Seems just about everybody has emphasized what a nice guy he was.

©Christopher Moore Editorial Ltd 2005

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 some cases by Canadian lawyers).

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 dead lawyers of the 1920s prove to be an intriguing bunch.

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 move you don't see so often these days.

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 of the profit motive."

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 contingent of McCarthy Tétrault.

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"; he gave up practice to seek cures for his imaginary ailments.

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 in 1928, a few months into his forced retirement.

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; they only sat together for a few months.

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 motion.

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 there.

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 I'll save the story of the first Law Times for a future column.

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

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

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

The Poet Lawyers
(February 2008)

Looking into the origins of the words carved over the entrance to the Parliament Building in Ottawa – “The wholesome sea is at her gates/ Her gates both east and west” – the Globe & Mail reported recently that they were written about 1920 by one J.A. Ritchie, who was described by anthologist John Robert Colombo as “an Ottawa barrister and poetaster.”

“Poetaster,” by the way, is an old word meaning “a petty or paltry poet.” Historiaster, its equivalent for history writers, is mercifully extinct. There seems to be no equivalent for lawyer.

What is it, I wondered, with all the lawyer poets? And who was this J.A. Ritchie, barrister, who got his verses on the doors of parliament? With some help from Paul Leatherdale at the Law Society archives, Ritchie proved easy to trace.

John Almon Ritchie, K.C. (1863-1935) was no petty or paltry lawyer, it turns out. He practised in Ottawa from 1890, was crown attorney for Carleton and then a Carleton County judge. He was the son of Sir William J. Ritchie, Chief Justice of Canada 1879-92, and therefore part of the vast clan of Ritchie lawyers and judges that ran from John Ritchie, 18th century judge at Annapolis Royal, N.S., to Roland Ritchie, justice of the Supreme Court of Canada 1959-84. Altogether an embarras de Ritchies, as Roland’s brother, the diplomat and diarist Charles Ritchie, once said in another context.

In his day John Almon Ritchie seems to have been better known as playwright and poet than as lawyer. A Who’s Who of the time credits him with “some meritorious verse” and several plays produced on the American stage. But a quick run-through in Google and Abebooks suggests none of it survives. His literary immortality depends entirely on the stone carver who put him over the doors of parliament.

Something similar happened to another lawyer-judge, Robert Stanley Weir (1859-1926) of Montreal. Weir was a prolific author of verse, but his name survives only because one hundred years ago this year he wrote the English lyrics to O Canada. The French lyrics, written in 1880, were by another judge, Quebec’s A-B Routhier.

Another contemporary of Ritchie and Weir was E. Douglas Armour, Toronto lawyer and bencher, who made a specialty of converting complex legal documents into iambic verse. “Poetaster” might just apply here, but there’s some weird kind of achievement in lines like these, published as Law Lyrics by Canada Law Book in 1918:

The said Smith and his heirs also make this concession/
That Brown and his heirs shall have quiet possession/
Of all that the herein before described land/
And that free and clear of all claim and demand,/
Gift, grant, bargain, sale, jointure, dower and rent/
Entail, statute, trust, execution, extent….

And so on, for hundreds of lines.

There is also at least one great poet among the lawyers. Frank Scott, longtime professor of law at McGill and distinguished civil libertarian, was also F.R. Scott, pioneer of the modernist movement in Canadian poetry and one of the major Canadian poets of the twentieth century.

Scott generally kept his legal scholarship separate from his poetry, but in 1959, after defending D.H. Lawrence’s Canadian publisher on a prosecution for obscenity in the Quebec Court of Appeal, he did dash off:

I went to bat for the Lady Chatte,/
Dressed in my bib and gown./
The judges three glared down at me/
The priests patrolled the town.

The old Law Society Gazette – not the communications vehicle the Law Society now puts out, but the small volumes edited from the 1960s to the 1990s by John Honsberger and illustrated by Kenneth Jarvis – used to publish lawyers’ poetry.

What do lawyer poets do nowadays? Maybe they have no time.

©Christopher Moore Editorial Ltd 2008

Blackstone, the man behind the tome
(April 2009)

Do lawyers still read Blackstone’s famous Commentaries? Not much.

In fact, you might say they never did. That’s not what his influence depended on, judging by a new biography of William Blackstone.

Its author, Wilfrid Prest, is one of the great historians of English law and English lawyers, despite spending his academic career in Australia, on the other side of the world from his subject and his sources. He has built this biography on intricate research and stays close to the man, not the book. He admires Blackstone, but doesn’t disguise what a curious figure the author of Commentaries on the Laws of England was.

Blackstone (1723-1770) was a lawyer who hardly practised. A law professor when there were no law professors. And an orphan boy from a London shop who became a knight, a judge, and a wealthy country gentleman, mostly on the strength of that one book.

Blackstone might have become a poet, an architect, or even a university administrator. He dabbled successfully in them all. As a scholarship boy at Oxford, he managed the finances of his college and put the university press on its feet as an academic publishing house. Neither achievement made him very popular among his colleagues – academic politics were vicious even then.

Blackstone got himself called to the bar, but he wasn’t good in court or at getting and keeping clients. It was the law as an object of study that really interested Blackstone. So he went back to Oxford and more or less invented the role of the law professor.

In the 18th century and long after, the English idea of the common law was that it had grown up strong without ever having any basic rules or principles. The common law was celebrated as a vast accretion of statutes and precedents and procedures that defied all systems. English lawyers agreed you could only learn it by doing it – by articling.

That being the case, there was no curriculum to base a law school on. And no law professors. So Blackstone began offering unofficial lectures in law. He did quite nicely charging fees for them.

Blackstone’s feat of genius was in managing to make a system out of the unsystematic common law. Look, he said in effect, law isn’t that complicated, I can give you the gist of it. The lectures in which he did that became the basis of the Commentaries on the Laws of England. Blackstone and his book became famous because they did a really good job of explaining the gist of the English common law.

It was not lawyers who needed this elaborate Common Law for Dummies version of the law. Lawyers still learned on the job, working through all kinds of complexities not covered in Blackstone’s Commentaries.

The Englishmen who really appreciated the Commentaries were non-lawyers: the property owners, justices of the peace, politicians, “men of business.” They got just enough law, simply explained, out of Blackstone to suffice for their needs, and they made Blackstone synonymous with the law of the land.

Blackstone even prospered in the American colonies and states despite his conservative views and reverence for monarchy. Frontier Americans who did not have lawyers to give them the fundamentals of common law got them from Blackstone’s book instead. Even in the 1830s, Abraham Lincoln was thinking he would be a blacksmith -- until someone gave him the Commentaries. He read them, said, “I can do this,” and went on to the tougher stuff.

Blackstone, meanwhile, seemed for a while at risk of falling into the awkward situation law schools have sometimes faced. What he taught wasn’t practical for working lawyers, but might be seen as too practical to get respect as true scholarship.

In the end he overcame that. Even lawyers came to agree than no one knew the whole legal territory better than Blackstone did. Like Bora Laskin and a few other law professors since, he successfully parlayed that reputation into a judgeship and the knighthood that went with it.

©Christopher Moore Editorial Ltd 2009