Final Appeal: Decision-Making in Canadian Courts of Appeal

Abstract

Law, Crime, Punishment and SocietyGreg MarquisIan Greene et al. Toronto: James Lorimer and Company Ltd., 1998. 235 pp.Legal studies in Canada are experiencing a golden age as articles, anthologies and monographs produced by academics trained in the 1980s and 1990s continue to appear. Nine books, nearly 50 authors and more than 2,000 pages of text and notes later, this reviewer is suffering from intellectual fatigue, but the type that comes from a good workout.In terms of Canada's legal history, the Osgoode Society has been the leading force for publication for two decades. As of 1999 it had produced more than three dozen monographs or collections of essays. Its most recent anthology is edited by G. Blaine Baker and Jim Phillips, law professors who are also noted legal historians. Essays in the History of Canadian Law VIII evolved out of a 1998 conference dedicated to pioneering legal scholar R.C.B. Risk. In the 1970s the American-trained Risk published on the relationship between law and the economy in nineteenth-century Ontario. Significantly, these essays did not appear in history publications, but in law journals. His work is largely unknown to most Canadian historians, but Risk has exerted an important influence on legal history scholars associated with law faculties. His stature is acknowledged by two scholars of international repute, Robert Gordon and David Sugarman, and his body of work and its effect are assessed in an insightful chapter by G. Blaine Baker.Most of the contributors to the Risk festschrift are involved with law schools, and the tone of most chapters tends towards classic legal history. Many of the contributions will challenge undergraduate students of history or criminal justice. Exceptions include Constance Backhouse's study of a racially motivated murder of a member of the Onyota'a:ka (Oneida) First Nation in 1902, a case study that underscores the lack of research on race and law in Canadian history. Hamar Foster's examination of Indian title in British Columbia and John McLaren's article on Chinese criminality in British Columbia from 1890 to 1920 also have broader appeal than mainstream legal history. White society racialized the Chinese not only through stereotypes, but through criminal law and law enforcement, especially in the areas of gambling, prostitution and opium smoking. McLaren indicates that although the Chinese in British Columbia were subjected to legal and bureaucratic racism, police harassment and informal discrimination, as a despised minority they also appealed to the rule of law and the courts for protection. On a more mundane level they utilized the civil courts for disputed commercial transactions. Because most criminal convictions against the Chinese were summary offences, it was rare for them to surface in appeal courts. Yet according to McLaren, appellate judges in British Columbia were guided by law, not racial prejudice, in many of their rulings involving the Chinese.Peter Oliver's chapter on the judiciary in the historiography of Upper Canada offers a counter-revisionist critique of recent interpretations that condemn the colonial elite's manipulation of the legal system under the constitution of 1791. For much of the twentieth century, conservative and consensus historians of Upper Canada regarded judges and other members of the legal elite in a positive manner and dismissed radical reformers such as William Lyon Mackenzie as demagogues. Early nineteenth-century reformers had complained loudly over the administration of justice, particularly when it was abused by Tory magistrates and judges for political ends. In recent years, scholars examining treason, sedition, libel and a number of celebrated murder trials have portrayed the Tory elite as subverting the rule of law. According to Oliver, it was the appointed judges, not popular politicians, who pressed for law reform prior to the 1840s - reforms such as the notable diminution of capital offences in 1833, jail reform and prisoners' rights. …

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