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Wednesday, April 29, 2015

Boulianne, "Le rapatriement constitutionnel de 1982 Existait-il une coutume constitutionnelle nécessitant l’accord unanime des provinces pour modifier la Constitution?"

François Boulianne"Le rapatriement constitutionnel de 1982 Existait-il une coutume constitutionnelle nécessitant l’accord unanime des provinces pour modifier la Constitution?"  Les Cahiers de Droit, vol. 55 no. 2, Juin.


Avant le rapatriement constitutionnel de 1982, existait-il une coutume constitutionnelle nécessitant l’accord unanime des provinces pour modifier la Constitution ? Après avoir analysé les éléments constitutifs permettant la reconnaissance d’une coutume en tant que source de droit au niveau international et dans les États de common law, l’auteur établit, dans une perspective historique, politique et juridique, les caractéristiques qui permettent d’utiliser cette norme juridique dans le contexte canadien. Bien que la coutume constitutionnelle n’ait pas été plaidée devant les tribunaux canadiens au moment du rapatriement, l’analyse des modifications constitutionnelles depuis la Confédération, à la lumière des éléments constitutifs de cette règle de droit, permet de croire que l’accord unanime des provinces était nécessaire pour modifier la Constitution. Cette analyse s’avère encore plus crédible lorsqu’elle est confrontée à l’avis des juges majoritaires de la Cour suprême du Canada rendu à l’aube du rapatriement dans le Renvoi : Résolution pour modifier la Constitution. La reconnaissance de cette coutume aurait permis de préserver le caractère inclusif de la Constitution ainsi que le désir commun des provinces de contracter une union fédérale comme cela avait été établi en 1867.


Before the constitutional patriation in 1982, was there a constitutional custom requiring the unanimous assent of the provinces to amend the Constitution ? After analysing the constitutive elements that identify a custom as a source of law at the international level and in common law jurisdictions, this article establishes the features that allow this legal approach to be used in the Canadian context, from a historical, political and legal standpoint. Despite the fact that constitutional custom was not pleaded before the Canadian courts when the Constitution was patriated, an analysis of constitutional amendments since Confederation, in light of the constitutive elements of the legal rule, suggests that unanimous agreement from the provinces was necessary to amend the Constitution. This analysis gains even more credibility from the majority decision of the Supreme Court immediately prior to patriation in Re : Resolution to amend the Constitution. Recognition for this custom would have allowed the inclusive nature of the Constitution to be preserved along with the shared desire of the provinces to contract a federal union, as established in 1867.

Mimnagh, "A History of Preferential Share in Ontario: Intestacy Legislation and Conceptions of the Deserving or Undeserving Widow"

In the 2014 issue of the Dalhousie Journal of Legal Studies, Louise M. Mimnagh has an article, "A History of Preferential Share in Ontario:Intestacy Legislation and Conceptions of the Deserving or Undeserving Widow,"

Here's the abstract:

Ontario’s current method for trying to ensure the fair distribution of an intestate’s estate, or the estate of an individual without a valid Last Will and Testament, is outlined in the Succession Law Reform Act. Specifically, section 45(1) outlines the foundational concept of a “preferential share,” which entitles the surviving spouse to a prescribed financial interest in the estate which is prioritized above all other heirs.
The concept of a preferential share stands in sharp contrast with historical English common law methods of devolving intestate estates in which legal entitlements were heavily influenced by an individual’s gender and marital status. In light of the historical influence of gender and marital status on intestacy legislation, this paper investigates the origins and development of the preferential share provision. This paper uses an analytical framework emphasizing the historically gendered experiences of widows and widowers, and how their gender informed the nature of their legal interests under intestacy. In addition, this essay frames its analysis within historical commentary that demonstrates a sharp conceptual dichotomy between the “good wife and deserving widow” or the “bad wife and undeserving widow,” and how such categorization impacted perceptions of what a fair and reasonable devolution entailed. 

Thursday, April 23, 2015

Three recent articles in Ontario History

No online access or abstracts available, sadly, as Ontario History is still print only. But worthy of note are: A Danger and a Nuisance: Regulating the Automobile in Ontario, 1903-1912 by Christopher Los, and Not Guilty, but Guilty: Race, Rumour, and Respectability in the 1882 Abortion Trial of Letitia Munson by Rebecca Beausaert, in the Autumn 2014 issue and The Court and the Cataracts: The Creation of the Queen Victoria Niagara Falls Park and the Ontario Court of Appeal by Tyler Wentzell in the Spring 2014 issue. 

Côté, "The History of Factums" in Alberta Law Review

Mr. Justice J.E. Côté has an article "The History of Factums" in the Alberta Law Review 52:1.

Here's the abstract:

The history of the factum in Canada is little known but greatly significant in the development of written argument. Written argument grew alongside the oral legal tradition. The factum developed in Canada in an unorthodox way. Unlike most Canadian laws and procedures, which find their roots in common law England, the factum originated in Quebec’s civil jurisdiction before being adopted in the Northwest Territories. This article explores the evolution of written argument and the historical use of the factum in the United Kingdom and Canada and details the practice of factum use in Alberta particularly.

Friday, April 10, 2015

Nominations sought for Peter Oliver Prize for best published student work in Canadian Legal History

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 2015 Prize, to be awarded for work published in 2014, is April 30, 2015.
Please send nominations to Professor Jim Phillips, Editor-in-Chief, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto ON M5H 2N6, or by email to

Applications sought for R. Roy McMurtry Fellowship in Legal History

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, Attorney-General and Chief Justice of Ontario, founder of the Osgoode Society for Canadian Legal History and for many years (and currently) the Society's President.

The fellowship of $16,000 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 in 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 fellowship should apply by sending a full c.v. and a statement of the research they would conduct as a McMurtry fellow to Marilyn MacFarlane, McMurtry Fellowship Selection Committee, Osgoode Society for Canadian Legal History, Osgoode Hall, 130 Queen Street West, Toronto, M5H 2N6. The deadline for applications is April 30, 2015. For more information contact the Society.

Nominations sought for Saywell Prize for best book on Canadian constitutional legal history published in 2013 or 2014

John T. Saywell Prize for Canadian Constitutional Legal History

The Saywell Prize is made possible by the generosity of his family and friends, to recognise the outstanding contribution to Canadian political and legal history of Professor Saywell. Among his other work Professor Saywell is the author of The Law Makers: Judicial Power And The Shaping of Canadian Federalism, published by the Osgoode Society in 2002.

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.

The Saywell Prize will be awarded in June 2015, for a book published in 2013 or 2014. The deadline for nominations for 2015 is April 30, 2015. Please email nominations to