Oliver on Canadian Legal Federalism since 1982

Peter Oliver (not the one Canadian legal historians are most familiar with!) has published an article, "Canadian legal federalism since 1982" in Canadian Issues/Themes Canadiens (Federalism and Identies Issue.)

Here's the abstract:

This article considers the evolution of legal federalism over the past 30 years. It observes that since 1982 we have seen: considerable stability in the interpretation of heads of power; a judicial policy of cooperative federalism whereby both federal and provincial legislatures are afforded considerable room to legislate; an enduring interjurisdictional immunity rule that is weaker and narrower in its application; and a conflict rule that grants federal paramountcy under narrowly construed terms. By way of counterpoint to enduring federal paramountcy we have seen: broad federal powers such as Criminal Law and General Regulation of Trade and Commerce interpreted less expansively; the ancillary doctrine applied more rigorously; and the Charter of Rights and Freedoms used to limit federal paramountcy where other rules of legal federalism do not necessarily avail.

Legal History Group Fall Schedule 2013

Here is the schedule for the for the fall 2013 term for the Osgoode Legal History Group (formerly the Toronto Legal History Group) for those who aren't on the distribution list (you can get on the list by emailing j.phillips@utoronto.ca) or for those who don't want to search their old emails during the term. Just use the search box at the top of the blog with "schedule" or "Legal History Group" or similar keywords.)
Note that we have an open slot this term, November 6th. Jim advises that there are two open slots next term, January 8th and February 26th. If you have a paper you would like to workshop, please email Jim. The group is very flexible about who and what qualifies: either you are from southern Ontario or will be passing through, and the subject is academic legal history. Any jurisdiction or time period is eligible. Faculty members, graduate students and independent scholars are all welcome as presenters. And anyone who is interested in the subject or in a particular paper or author can attend. Again, email Jim or just show up.
All sessions are from 6:30 pm to about 8:30 pm, on the first floor of Flavelle House, University of Toronto Faculty of Law, unless otherwise advised (by email and on this blog.) The book launch is held at Osgoode Hall--there will be details forthcoming on the society website.

Wednesday September 11 - Ian Kyer, Fasken Martineau: "The Thirty Years War: The Legal Battles that Created the TTC 1891-1921"

Wednesday September 25 - Jordan Birenbaum, University of Toronto: "TBA"

Wednesday October 9 - Nick Rogers, York Universdity: "Parricide in Mid-Eighteenth Century England: The cases of Mary Blandy and Elizabeth Jefferies."

Wednesday October 23 - Jeremy Milloy, Simon Fraser University: "Windsor is 'A Very, Very Bad Place to Live if You Are Black': Workplace Violence, Race, and Radical Law in the Aftermath of Charlie Brooks's Murder"

Wednesday October 30 - Osgoode Society Book launch

Wednesday November 6 -  AVAILABLE

Wednesday November 20 - Mary Stokes, Osgoode Hall Law School: "Municipal Corporations in Court, 1850-1880."

December 4 - Lori Chambers, Lakehead University: "TBA"

Hoffman on Anti Combine Act of 1889 on SSRN

Charles Paul Hoffman has posted another article on SSRN. This one is with the accepted paper series.

"A Re-appraisal of the Canadian Anti-Combines Act of 1889" will appear in The Queen's Law Journal.

Abstract:

In 1889, in response to growing concern about the role of cartels and other "combines" in the economy, the Canadian parliament passed the Anti-Combines Act, the world’s first modern competition statute. A tentative first step, the Act made it a misdemeanour to enter into agreements that were previously unenforceable under the contract law restraint of trade doctrine. The Act, however, was not a success, with only a single prosecution (which resulted in acquittal) brought under it prior to its amendment in 1900. Since that time, it has been broadly criticized in the academic literature, with critics alleging three reasons for its failure: that it extended only to conduct already "unlawful" under the restraint of trade doctrine; that it criminalized only conduct already indictable under the crime of conspiracy; and that it was an intentional failure, a "political sham". Each of these critiques, however, is built on a flawed understanding of the restraint of trade doctrine, reading back into the law in 1889 two House of Lords’ decisions from the 1890s, Mogul Steamship v McGregor, Gow (1892) and Nordenfelt v Maxim Nordenfelt Guns & Ammunition (1894), which made it substantially more difficult to prove agreements were unreasonable vis-a-vis the public interest. Though the Act would not have been the panacea intended by its chief sponsor, Nathaniel Clarke Wallace, it would have been a useful tool against the most pernicious of combine agreements, had the law remained as it was at the time of enactment. The Anti-Combines Act should thus be remembered not for its failure, but as a Canadian legislative innovation hampered by judicial decisions rendered in Westminster.

Cavanagh on comparative Aboriginal Land Rights on SSRN

Ed Cavanagh, one of the current Osgoode Society McMurtry Fellows, has posted a working paper

Land Rights that Come with Cut-Off Dates: A Comparative Reflection on Restitution, Aboriginal Title, and Historical Injustice 

on SSRN.

Here's the abstract:

The doctrine of aboriginal title allows for a distinct form of redress, empowering communities to use the judiciary to take action against the state for foundational acts of historical dispossession. It has not taken root in South Africa, yet in other former settler colonies of the British Empire, it remains important to this day. This article interrogates history and law to explain why this is the case. Such an approach allows for a critical reflection on the system of land restitution that developed in South Africa instead of aboriginal title. by exploring the past and present realities of ‘dispossession’ in South Africa, this article discredits the inclusion of cut-off dates in the Restitution of Land Rights Act. These dates have discriminated between claimant communities irrationally and insensitively – even racially. History should not be mobilised in statute law to obstruct the pathway to redress. It should, instead, be used positively to restore the rights of those formerly dispossessed, and to preserve the rights of those facing dispossessions pending, in South Africa.

Free 2010 CHR article on deportation in the thirties by Dennis Molinaro

The extraordinary remedy of deportation is the subject of one of this week's UTP Journals focus free articles. 

‘A Species of Treason?’: Deportation and Nation-Building in the Case of Tomo Čačić, 1931–1934, by Dennis G. Molinaro, appeared in Volume 91, Number 1 / Febuary 2010 of the Canadian Historical Review. For those without a subscription or university library access, the article is available online until July 30.

Here's the abstract:

Deportation was used to remove political radicals from Canada during the early 1930s, as well as immigrants receiving poverty or unemployment relief. Studies of deportation in North America are limited and have rarely focused on ideas of ‘the nation’ as a primary focus of debates over deportation; and they have seldom dwelt upon the local efforts of those resisting deportation. Arguably the most influential works in this area are Barbara Roberts’s Whence They Came: Deportation in Canada 1900–1935 and Anthony Rasporich’s ‘Tomo Čačić: Rebel without a Country.’ This paper builds on the work of both authors by explaining not only the mechanisms, but also the ideological moorings, of Depression-era deportation policies, through the revealing case study of Tomo Čačić, a transnational radical who thought globally and acted locally. The power to deport provided the state with a powerful nation-shaping tool. Deportation of political radicals served a dual purpose: it both isolated and removed those identified as political enemies of the political order and, conversely, demonstrated by implication the qualities of those who were qualified to figure as citizens within the emerging Canadian nation.

Cameron, Gruben and Chaisson on Irene Murdoch case on SSRN

Angela Cameron, Vanessa Gruben and Angela Chaisson have posted The Courts Have Turned Women into Slaves for the Men of this World: Irene Murdoch's Quest for Justice on SSRN. This essay is published in James Muir, Eric Tucker and Bruce Ziff, Property on Trial: Cases in Context, a 2012 publication of the Osgoode Society in conjunction with Irwin Law. 

Here's the abstract:

In 1973 the Supreme Court of Canada issued a ruling in Murdoch v Murdoch, denying Irene “Ginger” Murdoch an interest in the cattle ranch that she and her husband, James Alexander “Alex” Murdoch, had built together over many years. Irene performed extensive manual labour on the farm, including driving, branding, vaccinating and de-horning cattle, haying, raking, and mowing. She often did this work alone due to long, off-ranch, work-related absences by Alex. When their marriage began to break down, Irene sought to receive her ownership interest in the ranch property. However, the certificate of title to the property showed that the land belonged solely to Alex Murdoch. For Irene to receive an interest in the property it would be necessary for a court to declare that a portion of the title to the ranch was held by Alex Murdoch in trust for his wife. The principal basis for finding such a trust, her lawyer argued, was her contribution through labour to the ranch operations. That argument was rejected at trial and ultimately also by the Supreme Court of Canada, which held that under existing Canadian law no property claim was available to Irene Murdoch in the circumstances of her case. 

In one sense, the case was unremarkable. Irene Murdoch’s circumstances reflected the socio-economic reality of many Albertan farm wives, in fact most married women in Canada, during the 1960s and 70s. Cultural and legal perceptions of farms had been profoundly shaped by the traditional belief that “men farm, women help” and remained an omnipresent example of the invisibility of women’s work. While husbands no longer subsumed their wives’ legal and financial identities (as was the law in Alberta until 1915), anachronistic matrimonial law, as well as hierarchical farming and family structures subjugated wives, forced them into positions of dependency, and often trapped them in relationships. Those who left their husbands often found themselves invisible under the law, and left their marriages with nothing. The case reports were replete with decisions similar to that in Murdoch, almost all unsuccessful. In these and other cases, women worked on family farms and in households held in their husbands’ names and were left without proprietary interests at the relationship’s dissolution. Behind these, there are likely unreported judgments to the same effect, as well as many instances in which no claim was advanced owing to the perceived futility of such a tack, the absence of the needed resources to take legal action, or myriad other personal factors. 

What is exceptional is that the Murdoch case prompted outrage in Canada and undoubtedly contributed to law reform that sought to ameliorate the plight of women in the position of Irene Murdoch. Her circumstances provided an important narrative tool to feminists and other advocates for law reform. Canadian women identified with Irene, and became conscious of how easily they could find themselves in a similar situation. Women’s groups mobilized around her experience, stood up to say “I am an Irene Murdoch,” and successfully secured reforms to Canadian marital property law regimes. 

None of that would have been possible had it not been for Irene Murdoch’s personal determination — and that of her lawyer, Ernest Shymka — to bring her case to court in the face of formidable obstacles. Irene suffered extreme violence at the hands of her husband, had little money and even less desire for public fanfare, and faced an uphill legal battle. Yet she and Shymka pursued the case to the Supreme Court of Canada. 

Much has been written about the political and legislative consequences of this decision. This chapter looks at the Murdoch case through two lenses. The first is through the personal account of Ernest Shymka. The second is by framing the case as part of a larger feminist movement for law reform, including reform to matrimonial property regimes. Murdoch was not only the product of personal struggle by Irene and her lawyer; it was also a pivotal event within the Canadian women’s movement.

Ceric encyclopedia entry on history of law and protest in Canada available online

Irina Ceric has uploaded her entry in the International Encylopedia of Revolution and Protest on the history of law and protest in Canada to her Academia.edu page. You can access the pdf version here.