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Thursday, May 25, 2017

Petition regarding secret Government of Canada Archives

Via Osgoode Society author Dennis Molinaro:

It has come to the attention of the public that the Canadian government over the course of decades has amassed large quantities of historical documents, numbering in the millions, and has kept this material in several different areas linked to institutions such as the Privy Council Office, Global Affairs, the Department of Justice and others. The holdings of the government have been kept secret. A petition has been created and is available to sign electronically on the e-petition government website. It is petition number e-1090. The petition calls on the government to transfer all historical material to Library and Archives Canada (LAC) as well as to reform the Access to Information Act to ensure historical material is regularly transferred to the archives, as well as enabling transparent citizen access to documents. The LAC Act anticipates the direct transfer of material from government departments, institutions and agencies to the National Archivist and, therefore, the practice of holding back such transfers thwarts the spirit and letter of the Act and undermines the role of LAC as a central repository for the documentary heritage of Canada.

Monday, May 8, 2017

U of T library online exhibit: Pierson v. Post judgment roll

The policy of this blog has been to post on Canadian legal history, rather than legal history written by Canadians. I have made a few exceptions, and here is an exceptionally worthy one. (Beside which, Pierson v. Post has been taught in Canadian as well as American classrooms, although it is very much an American case.)

fc4ab5a71c1423bea6189e30cc0670b1.jpgAngela Fernandez of the University of Toronto Faculty of Law, a notable Pierson v. Post scholar, has arranged an online library exhibit of the judgment roll.

The exhibit includes a short piece by Angela on the context of the judgment, and reproduces the twenty pages of the judgment roll in PDF format.

Here's the description of the exhibit:

Pierson v. Post has been made famous by its use in American property law classrooms since the 1950s. It is often the first case law students study in property as it provides an introduction to the concept of first possession and how one acquires possession in a wild animal, the fox, owned by no one. 

The case report reproduced in law school casebooks was created by New York’s first official law reporter George Caines after the case was argued by eminent counsel and reversed in Pierson’s favor at the New York Supreme Court. What law students generally read is a brief statement of the facts, followed the majority decision by Justice Daniel Tompkins and a dissent by Justice Brockholst Livingston. 

The Judgment Roll is a copy — probably made by the clerk of Pierson’s lawyer Nathan Sanford — of the documents Sanford filed in his writ of certiorari to the New York Supreme Court. This was a process in which the loser before a Justice of the Peace could appeal the decision by asking for the New York Supreme Court to command that the Justice of the Peace explain what had been done before him in the magistrate’s court, in this case a jury trial held at Post’s request on December 30, 1802, for their review. It was the job of the New York Supreme Court to check, yes, all the ‘i’s were dotted and ‘t’s were crossed in the magistrate’s proceedings and if they were not, Pierson (the “now plaintiff” before the New York Supreme Court) was justified in winning a reversal of the jury’s 75¢ award for Post and his $5 in costs. The Judgment Roll also includes the command to Justice of the Peace John N. Fordham to return the documentation, Sanford’s six specific grounds of appeal, as well as the words the New York Supreme Court used in order to hold the case over from year to year until it was ultimately decided in Pierson’s favor on September 10, 1805. Sanford then filed this copy of all of the documents (those provided by Fordham, his own, and the New York Supreme Court) as the “Record” in the case on the same day.
This judgment roll was found by University of Toronto law professor and legal historian Angela Fernandez at the Division of Old Records, New York County Clerk’s Office in New York City in May 2007.
Each page of the judgment roll is reproduced with an accompanying transcript prepared by Professor Fernandez.
It has subsequently disappeared but a dataset was created to preserve the images and make them publicly available. You can find it here. A transcript of the Judgment Roll is also available as an appendix in Angela Fernandez, Pierson v. Post, the Hunt for the Fox: Law and Professionalization in American Legal Culture (New York: Cambridge University Press, 2017).
Running Fox by Paul de Vos, courtesy of Museo Nacional del Prado.

See also related articles through the U of T Dataverse accessible here.

Tuesday, May 2, 2017

Thomas McMahon, 'We Must Teach the Indian What Laws Are': The Laws of Indian Residential Schools in Canada on SSRN

Thomas L. McMahon has posted 'We Must Teach the Indian What Law Is': The Laws of Indian Residential Schools in Canada (April 18, 2017) on SSRN. 

Here's the abstract:

This paper provides a chronological sequence of the laws that were used to create and enforce Indian Residential Schools in Canada. The paper provides extensive excerpts from the final report of the Truth and Reconciliation Commission of Canada. The excerpts are chosen based on how directly they are related to law, and the excerpts are re-organized to be presented in a chronological manner. The table of contents of the paper can serve as a time line of the laws that created and enforced and ended Indian Residential Schools. Other sources are also cited.

This paper is one of series written by the author in attempting to understand and explain why it was nearly impossible for indigenous peoples to use the legal system to protect themselves or obtain compensation for the abuses they suffered in the residential schools until well into the 1990s.

Monday, April 24, 2017

Hot Docs honours 35th anniversary of the Charter with free event, April 29th

Hot Docs is honouring the 35th anniversary of Canada’s Charter of Rights and Freedoms with a very special event.

The Charter at 35
On Saturday, April 29, we invite you to join former justice of the Supreme Court of Canada Mr. Ian Binnie and Maclean’s Ottawa Bureau Chief John Geddes for an invigorating conversation about Canada’s Charter and how it impacts pressing issues facing Canadians today.  The discussion will be followed by an exclusive sneak peek of In the Name of All Canadians, Hot Docs’ feature compilation of short films about the Charter, funded in part by the Government of Canada and the Government of Ontario.

Tickets: FREE
Date: Sat, Apr 29, 1:00 PM

Deadline extended for Osgoode Society awards to May 7

The Osgoode Society for Canadian Legal History administers three awards: John T. Saywell Prize for Canadian Constitutional Legal History, R. Roy McMurtry Fellowship in Canadian Legal History, and the Peter Oliver Prize for Published Student writing in Canadian Legal History . We invite nominations and applications for each of these. The original deadline for each was April 30, 2017, but we have extended that to May 7, 2017.
John T. Saywell Prize for Canadian Constitutional Legal History
The Saywell Prize is given bi-annually to the best new book in Canadian legal history, broadly defined, that makes an important contribution to an understanding of the constitution and/or federalism. In exceptional circumstances, the jury could also consider a seminal article or series of articles, some of the latter not written in the two-year period, to satisfy the objectives of the award.
Jack Saywell died in April 2011, still working on the history of federalism. His family has requested that any donations be made to the Saywell Prize or another charity of the donor’s choice. Those wishing to donate to the prize may do by sending a cheque to The Osgoode Society, Osgoode Hall, 130 Queen Street West, Toronto M5H 2N6. Cheques should be made payable to the Society and marked as contributions to the Saywell Prize. For further information please contact the Society at
The Saywell Prize will next be awarded in 2017, for a book published in 2015 or 2016. Publishers or others who wish to nominate a book for the Saywell Prize in 2017 should send three copies of the book to: The Osgoode Society, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline for nominations for 2017 is May 7, 2017.
R. Roy McMurtry Fellowship in Legal History
The R. Roy McMurtry Fellowship in Legal History was created in 2007, on the occasion of the retirement as Chief Justice of Ontario of the Hon. R. Roy McMurtry. It honours the contribution to Canadian legal history of Roy McMurtry, formerly both Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years the Society’s President.
The fellowship was established by Chief Justice McMurtry’s friends and colleagues, and endowed by private donations and the Law Foundation of Ontario.
The fellowship is to support graduate (preferably doctoral) students or those with a recently completed doctorate, to conduct research in Canadian legal history, for one year. Scholars working on any topic in the field of Canadian legal history are eligible. Applicants should be in a graduate programme at an Ontario University or, if they have a completed doctorate, be affiliated with an Ontario University.
The fellowship may be held concurrently with other awards for graduate study. Eligibility is not limited to history and law programmes; persons in cognate disciplines such as criminology or political science may apply, provided the subject of the research they will conduct as a McMurtry fellow is Canadian legal history. The selection committee may take financial need into consideration. Applications will be assessed by a committee appointed by the Osgoode Society for Canadian Legal History.
Those interested in the 2017 fellowship should apply by sending a full c.v. and a statement of the research they would conduct as a McMurtry fellow to Amanda Campbell, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6, The deadline for applications is May 7, 2017.

Peter Oliver Prize in Canadian Legal History
The Peter Oliver Prize in Canadian Legal History was established by the Society in 2006 in honour of Professor Peter Oliver, the Society’s founding editor-in-chief. The prize is awarded annually for published work (journal article, book chapter, book) in Canadian legal history written by a student.
Students in any discipline at any stage of their careers are eligible. The Society takes a broad view of legal history, one that includes work in socio-legal history, legal culture, etc., as well as work on the history of legal institutions, legal personnel, and substantive law.
Students may self-nominate their published work, and faculty members are also encouraged to nominate student work of which they are aware. Those nominating their own work should send a copy of it to the Society.
The deadline for nominations for the 2017 Prize, to be awarded for work published in 2016, is May 7, 2017.
Please send nominations to Amanda Campbell, Oliver Prize Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6, or

Professor Jim Phillips
Faculty of Law & Dept of History
University of Toronto
Editor-in-Chief, Osgoode Society for Canadian Legal History

Thursday, April 20, 2017

The Persons Case by Sharpe and McMahon in UTP Canada150 collection

The Persons Case: The Origins and Legacy of the Fight for Legal PersonhoodThe University of Toronto Press is promoting a "Canada 150" collection, in celebration of the 150th anniversary of confederation. One of the thirty books so honoured is The Persons Case: The Origins and Legacy of the Fight for Legal Personhood by Mr. Justice Robert Sharpe and Patricia McMahon.

The U of T press has this to say about the collection:

In honour of Canada’s sesquicentennial, University of Toronto Press is proud to introduce the Canada 150 Collection, a special selection of outstanding books published over the years that bear witness to the depth and breadth of the nation’s history and the diversity of its peoples. These books showcase remarkable achievements as well as uncomfortable truths in Canada’s history, from pre-Confederation to the present. This carefully curated collection includes classic works of cultural, historical, legal, and literary scholarship that have informed and shaped Canada as a nation. A testament to University of Toronto Press’s longstanding commitment to authoritative and boundary-pushing scholarship, the Canada 150 Collection presents works that are essential reading for students, scholars, and anyone with an interest in Canada’s past and future.

The Persons Case was published by the University of Toronto Press in conjunction with the Osgoode Society in 2007.  This is what the society has to say:

The Persons’ Case is one of the best known Canadian constitutional cases, both for the fact that it declared women to be ‘persons’ for the purposes of eligibility for Senate appointment, and for Lord Sankey’s invocation of the living tree metaphor in interpreting the constitution. Robert Sharpe and Patricia McMahon add enormously to our understanding of the case by a detailed exploration of its context. They analyse the campaign for the recognition of women as senators in both political and legal circles, and they examine the background and personalities of the major players in the litigation, in particular Lord Sankey, Prime Minister Mackenzie King, and Emily Murphy. Murphy, one of the ‘famous five’ litigants, was the driving force behind the demand for legal recognition, and she is shown here to be a fascinating and complex individual.

Reviewers say: 
One of the most compelling reasons to read The Persons Case is to find out what drove the women known as the Famous Five to fight to open the Senate's doors. Readers also discover why the verdict remains one of the most important constitutional decisions in Canadian history..... [A] gripping drama in which the fitness of women's appointment to the Senate is merely the backdrop.... Reading history should always be this much fun. Penni Mitchell, The Beaver, June-July 2008
There is much that is engaging in this account of the Persons case, particularly in relation to the five women who requested the constitutional reference, and the behind the scenes political manoeuvres of Prime Minister Mackenzie King and his advisors... In addition the study situates the case within the ongoing tensions with respect to constitutional interpretation between judges in the Supreme Court of Canada on one hand and in the Privy Council on the other. Mary Jane Mossman, Ottawa Law Review, vol 40, 2009
Working closely from the archival record, Robert J. Sharpe and Patricia I. McMahon place the [Persons] case in its political, constitutional and personal context .... [A] valuable contribution to Canadian constitutional history. Lyndsay Campbell, Law and History Review, vol 27, 2009.


  • Alison J. Fingas, Saskatchewan Law Review, Vol. 71, 2008, pp. 424-425.
  • Jennifer Koshan, Canadian Journal of Women and Law, Vol. 20, 2008, pp. 343-351.
  • Francis C. Muldoon, Journal of Parliamentary and Political Law, Vol. 3, 2010, pp. 545-552.
  • Colleen Sheppard, McGill Law Journal, Vol. 53, 2008, pp. 367-373.
  • Janneke Lewis, Advocate, Vol. 66, 2008, pp. 814-815.
  • Christopher Moore, ‘New book authoritative telling of Persons Case,’ Law Times, November 12, 2007.
  • Tracey Tyler, ‘The mothers of Canadian equality,’ The Toronto Star, October 20, 2007, Sec ID, p. 4.

Tuesday, April 18, 2017

Forthcoming from UTP: Dodek, The Charter Debates: The Special Joint Committee on The Constitution, 1980-81 and the Making of the Canadian Charter Of Rights And Freedoms

Forthcoming from UTP (available for pre-order) The Charter Debates: The Special Joint Committee on The Constitution, 1980-81 and the Making of the Canadian Charter Of Rights And Freedoms by Adam Dodek:

The Charter Debates: The Special Joint Committee on the Constitution, 1980-81 and the Making of the Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms may only be thirty-five years old but it is an important document for all Canadians. Few today, however, are aware of the extensive work and tumultuous debates that occurred behind the scenes.
In The Charter Debates, Adam Dodek tells the story of the Special Joint Committee of the Senate and the House of Commons on the Constitution, whose members were instrumental in drafting the Charter. Dodek places the work of the Joint Committee against the backdrop of the decades-long process of patriation and takes the reader inside the committee room, giving them access to Cabinet discussions about constitutional reform. The volume offers a textual exploration of the edited proceedings concerning major Charter subjects such as fundamental freedoms, democratic rights, equality rights, language rights, and the limitations clause.
Presenting key moments from the transcripts, carefully selected and contextualized, The Charter Debates is a one-of-a-kind resource for scholars, students, and general readers interested in the Charter and its impact on constitutional politics in Canada.