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Friday, December 7, 2018

Kent Roach, Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case

New from McGill-Queen's University Press:

Kent Roach, Canadian Justice, Indigenous Injustice: The Gerald Stanley and Colten Boushie Case

Putting Gerald Stanley's acquittal for killing Colten Boushie in the context of Canada's colonial and systemic discrimination against Indigenous peoples.


In August 2016 Colten Boushie, a twenty-two-year-old Cree man from Red Pheasant First Nation, was fatally shot on a Saskatchewan farm by white farmer Gerald Stanley. In a trial that bitterly divided Canadians, Stanley was acquitted of both murder and manslaughter by a jury in Battleford with no visible Indigenous representation.

In Canadian Justice, Indigenous Injustice Kent Roach critically reconstructs the Gerald Stanley/Colten Boushie case to examine how it may be a miscarriage of justice. Roach provides historical, legal, political, and sociological background to the case including misunderstandings over crime when Treaty 6 was negotiated, the 1885 hanging of eight Indigenous men at Fort Battleford, the role of the RCMP, prior litigation over Indigenous underrepresentation on juries, and the racially charged debate about defence of property and rural crime. Drawing on both trial transcripts and research on miscarriages of justice, Roach looks at jury selection, the controversial “hang fire” defence, how the credibility and beliefs of Indigenous witnesses were challenged on the stand, and Gerald Stanley's implicit appeals to self-defence and defence of property, as well as the decision not to appeal the acquittal. Concluding his study, Roach asks whether Prime Minister Justin Trudeau's controversial call to “do better” is possible, given similar cases since Stanley's, the difficulty of reforming the jury or the RCMP, and the combination of Indigenous underrepresentation on juries and overrepresentation among those victimized and accused of crimes.

Informed and timely, Canadian Justice, Indigenous Injustice is a searing account of one case that provides valuable insight into criminal justice, racism, and the treatment of Indigenous peoples in Canada.
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Friday, November 30, 2018

Monday, November 26, 2018

Hutchison, "Corporate Law Federalism in Historical Context: Comparing Canada and the United States" on SSRN

Camden Hutchison of the Peter A. Allard School of Law, University of British Columbia, has posted "Corporate Law Federalism in Historical Context: Comparing Canada and the United States" on SSRN (forthcoming in the McGill Law Journal.)


Although American and Canadian corporate law share many similarities, they are also marked by important institutional differences. Among the most notable are the differing roles of federal versus state/provincial policymaking in the two countries: While American corporate law has been deeply influenced by jurisdictional competition among the states, Canadian law has instead been shaped by federal legislative activity, as seen today in the standardizing influence of the Canada Business Corporations Act. These different institutional histories have led to distinct evolutionary paths, with important substantive consequences for contemporary corporate law.

Despite considerable academic attention to the subject of corporate law federalism, these historical differences between Canada and the United States are not well understood. Drawing on historical evidence, this article explains why jurisdictional competition arose in the United States but not Canada by examining the "Great Merger Movement" of the late nineteenth and early twentieth centuries. Specifically, this article makes three related arguments: (1) In the United States, the rise of jurisdictional competition was driven not by corporate governance issues, as is often assumed, but rather by the desire to avoid state and federal antitrust restrictions; (2) For a variety of reasons, cartelization and price fixing were more viable in Canada than the United States, delaying the onset of consolidative mergers; and (3) When the Canadian merger movement finally arrived, Canadian federal company law readily facilitated industrial consolidation, reducing the incentives for individual provinces to compete to attract company charters.

Given the permissiveness of Canadian company law and the availability of a federal statute, there was little demand for provincial governments to liberalize their own companies acts. In this respect, the different experiences of Canada and the United States reveal an intriguing historical irony — while Canadian corporate law is sometimes criticized as lacking in competitive responsiveness, the roots of this complacency are closely tied to the turn-of-the-century merger movement, in which Canadian law was more permissive than its traditional American counterpart.

Wednesday, November 21, 2018

Spitz, "More or Less Human: Colonialism, Common Law, and the Social Construction of Humanity on Vancouver Island, 1849-1864" on SSRN


Laura Spitz, of the University of New Mexico School of Law, has posted 
"More or Less Human: Colonialism, Common Law, and the Social Construction of Humanity on Vancouver Island, 1849-1864" on SSRN.

Focusing on the colony of Vancouver Island in the mid-nineteenth century and the colonization efforts of James Douglas, this paper seeks to make three separate but related points about the meaning and relevance of being “human” in that place, at that time. First, practices of humanization and dehumanization were used in the construction of a consequential set of legal categories, including alien, Indian, corporation, white and citizen. In some sense, this period marked the beginning of colonial legal ‘sorting’ or ‘ordering’ in the region. Many of the most visible categorical contests surfaced through or in connection to contests about land and citizenship, but there was another story there, too: a much more basic story about who counted as fully human in the nascent colony. Second, notwithstanding colonial/settler practices of dehumanizing Indigenous people in the process of colonization, James Douglas believed that they were in fact human, and this was evident in his land policies and practices, including treaty-making. While Douglas is sometimes valorized for having recognized Aboriginal title in unceded land, however, the underlying assumption that Indigenous people were in fact human does not reveal a robust and nuanced view of humanity, nor was it especially progressive except in contrast to the even more discriminatory views of others. Rather, it was fundamentally liberal in the sense that it recognized that Indigenous people could be legal persons, capable of holding and exercising rights in property. Conceived thus, human being was a status which entitled the status-holder to something like membership in humankind; and humanity was essentially the totality of human beings. Finally, this conception of what it meant to be human would likely not have made sense in the context of Coast Salish justice systems and other traditions. Being human was not so much a status to which legal rights attached, as a largely relational way of being in the world, and even then, potentially transitional or temporary, and invariably subordinate to more powerful, nonhuman forces. In that view, humanity was not so much the totality of human beings, or at least not just that, but something one expressed towards others, both human and nonhuman. Ultimately, this disconnect between Douglas’s and Coast Salish understandings not only complicated treaty-making, it had lasting impact on the evolution of laws in the territory we now call British Columbia.

Tuesday, November 20, 2018

Legal History Workshop schedule Winter 2019



OSGOODE SOCIETY LEGAL HISTORY WORKSHOP, 2018-2019
WINTER TERM SCHEDULE TO DATE

Wednesday January 16: Nicholas Rogers, York University: 'Murder on the Middle Passage: The trial of Captain Kimber 1792.'

Wednesday January 30: AVAILABLE

Wednesday February 13: Jackson Tait, Osgoode Hall Law School: 'In Search of the Lex Mercatoria:  Canadian Legal Interpretation of Atlantic Marine Insurance Contracts, 1860 - 1924'

Wednesday February 27: Eric Reiter, Concordia University: ‘Robinson v. CPR (1882-92):  Law, Society and Wrongful Death in Quebec’  [tentative title]

Wednesday March 13: Mark Walters, McGill Law School: TBA

Wednesday March 27: Colin Grittner, University of British Columbia: ‘Elective Legislative Councils and the Privileges of Property across Mid-Nineteenth-Century British North America’

Wednesday April 3: Patricia McMahon, Torys: TBA

Monday, November 19, 2018

Berger, "Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom" on SSRN

Benjamin Berger of Osgoode Hall Law School has posted "Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom" on SSRN. The article is forthcoming in the National Journal of Constitutional Law. 

Abstract: This article approaches Adler v Ontario as a distinctively useful perch from which to survey the history and future of the constitutional interaction of law and religion. The case is positioned at a provocative place in the arc of the development of this interaction and the article uses the reasons in Adler to expose and explore some themes that shape not only our religion jurisprudence, but Canadian constitutionalism more generally. The article begins by examining what the majority’s heavy reliance on religion’s place in constitutional history suggests about the competing logics at work in Canadian constitutional life. That discussion leads to a reflection on the central role that religion has played in Canadian nation-building and federalism, a role that is abiding, not just historical. The article then looks forward from Adler, exploring the central place of issues surrounding the education of children in the development of law and religion jurisprudence in the years after Adler, before turning to consider the question of the group or community aspect of religion — a point that was exposed in Adler, but that, after a period of relative abeyance, has reemerged as a central question for the future of law and religion in Canada. The article concludes by suggesting that, in addition to serving as an entry point into understanding key elements of the history and development of law and religion in Canada, reassessing the holding in Adler might itself be part of our constitutional future.


Thursday, November 8, 2018

Gilding, "The Silent Framers of British North American Union: the Colonial Office and Canadian Confederation, 1851-67"

Note: currently open access

Ben Gilding of Cambridge University has published "The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67" in the Canadian Historical Review.

Abstract:

One hundred and fifty years after the creation of the “Dominion” of Canada, it is notable that historians have often downplayed the role of the British Colonial Office in initiating and guiding the process that brought about the union of the colonies of British North America. In the traditional narrative, the British government and Colonial Office were forced to accept the Quebec Resolutions drafted by North American representatives as a fait accompli. This view tends to exaggerate the importance of Confederation as a singular constitutional event, and it does not take into account the active pursuit, by numerous colonial administrators over the course of the years prior to Confederation, to organize some form of union of the British North American colonies and the considerable influence they exercised over the nature of the union created in 1867. This article examines the intentions of the various British colonial administrators and their visions for a federal or legislative model for the governance of the new Dominion. It argues that while the Colonial Office heavily favoured a strong legislative union, the British North America Act of 1867 was ultimately a product of compromise resulting in the strong ambiguities that gave rise to the later notion of a “compact theory.” These ambiguities were further reflected in the innovative designation of “Dominion” to the newly united provinces; however, this article warns that it is crucial that scholars are wary of anachronistically imposing Canada's eventual quasi-independent Dominion status upon the circumstances of 1867.


Cent cinquante ans après la création du « dominion » du Canada, on remarque que les historiens ont souvent minimisé le rôle du Colonial Office britannique dans l'enclenchement et l'orientation du processus qui a mené à l'union des colonies de l'Amérique du Nord britannique. Selon le récit traditionnel, le gouvernement britannique et le Colonial Office ont été forcés d'accepter comme un fait accompli les résolutions de Québec rédigées par des représentants nord-américains. Cette interprétation tend à exagérer l'importance de la Confédération en tant qu'événement constitutionnel singulier et elle ne tient pas compte du long travail en amont effectué par de nombreux administrateurs coloniaux, durant les années précédant la Confédération, pour trouver une forme quelconque d'union des colonies britanniques d'Amérique du Nord ni de l'influence considérable qu'ils ont exercée sur la nature de l'union créée en 1867. Le présent article traite des intentions des divers administrateurs coloniaux britanniques et de leurs visions du modèle de gouvernance fédéral ou législatif du nouveau dominion. L'auteur soutient que bien que le Colonial Office ait été hautement favorable à une solide union législative, l'Acte de l'Amérique du Nord britannique de 1867 a finalement été un compromis qui s'est soldé par d'importantes ambiguïtés qui ont plus tard donné naissance à la notion de « théorie du pacte fédératif ». Ces ambiguïtés se reflètent en outre dans l'appellation novatrice de « dominion » utilisée pour désigner les nouvelles provinces unies; l'auteur met toutefois en garde les chercheurs contre accoler au Canada de 1867 le statut de dominion quasi-indépendant, car ce serait un anachronisme.