Law Times

Law Times • November 19, 2018 Page 7 www.lawtimesnews.com Legal insight into Canadian icon valuable BY PHILIP GIRARD L egal history can come up in the most unexpected places. I was re- minded of this when reading Mary Henley Rubio's biography of Lucy Maud Montgomery. It reveals Montgom- ery's engagement with the law in multiple, highly significant ways throughout her life. Not only does legal history shed light on the author's life, but her life sheds some light on legal history. The well-established firm L.C. Page & Co. of Boston published Montgom- ery's first novel, Anne of Green Gables, in 1908. Louis Coues Page was suave, rich and very welcoming to the young author, from whom he demanded her first five novels in return for publishing Anne. He also turned out to be a deceit- ful, arrogant bully. Anne was an unprec- edented bestseller, making Page very rich, but he constantly tried to cheat its author. Montgomery was obliged to sue Page in U.S. courts five times and won for the most part, but she did so at a heavy emo- tional and financial cost as he spun out proceedings and tried to wear her down. Montgomery's own lawyers were afraid of Page, but she always refused their advice to settle and ultimately won the day. Montgomery married Presbyterian minister Ewan Macdonald in 1911 and they moved to the small community of Leaskdale, Ontario, north of Toronto, where he served two parishes. The fa- mous author was already very wealthy from the royalties of her first three books and, un- usually for the time, kept her finances separate from those of her husband, who had only his meagre pastoral salary. This proved helpful when Mac- donald got in a car accident in 1922, but the ensuing lawsuit also provides insight into some important aspects of Ontario legal culture at the time. While driving the Cana- dian-made Gray-Dort touring car that Montgomery had bought for the family, Macdonald collided with a vehicle driven by Marshall Pickering, an elder of the nearby Methodist church. The accident was most likely the result of both parties' negligence, but Pickering took action. The case was heard before none other than William Renwick Riddell, the doyen of Canadian legal history. Montgomery summed him up pretty accurately in her diary as "a colossal egotist who thinks his judgment quite infallible." Nonetheless, the Macdonalds were confident of victory. Pickering had not suffered any serious injuries, but he al- leged that a subsequent prostate operation had been caused by the collision and de- manded very substantial damages. Many people in the community knew that Pickering's prostate problems were pre- existing and Macdonald also gathered medical testimony to support his side. Nonetheless, he lost. Like Montgomery and Macdon- ald, biographer Rubio was puzzled as to why Macdonald lost. Montgomery consulted the bench books and saw that Riddell, who was hard of hearing, had taken down much of the evidence wrongly and omitted taking notes of evidence favourable to the de- fendant. Moreover, the couple had noted Riddell's obvious favouring of the plain- tiff 's lawyer, a prominent Toronto counsel who had appeared often before him, over their own lawyer, who was unknown to the judge. Rubio's conclusions are similar to those of Constance Backhouse in her book The Heiress Vs the Establishment. Both portray a very clubby Ontario legal establishment in the interwar years, in which personal and professional connec- tions could inf luence the course of justice. Pickering never did collect on the judgment, however. Virtually all of the couple's assets were in Montgomery's name and paid for by her, while their home belonged to the parish. And Mac- donald 's salary was paid quarterly in ad- vance, which meant his wages could not be garnished. Montgomery could easily have paid the judgment, but she did not feel obliged to do so in light of the plain- tiff 's seeming dishonesty. Montgomery's life was plagued by her own mood swings, the mental illness of her husband and the near-psychopathic behaviour of their eldest son, who was a chronic thief and womanizer. She none- theless supported his legal career (it took him nine years to qualify). After her death, her son landed a job at the office of the Public Trustee, which required him to oversee the distribution of unclaimed estates. He embezzled more than $35,000, a very large sum in the 1950s, manufac- turing identities to pass himself off as the heir to such estates. Charged with fraud, he ultimately served a two-year sentence, but not before he persuaded his brother to lend him $10,000 (saved up by the latter to buy a house) in a vain attempt to pay the debt and hush up the matter. Nineteenth- century attitudes about debt and family honour were still alive and well in a rap- idly modernizing post-war Ontario. Rubio's work demonstrates how a fa- miliarity with legal records can enrich studies not overtly concerned with the law, as well as providing compelling examples of law in action for the legal historian. LT uPhilip Girard is a legal historian and professor at Osgoode Hall Law School. He is also associate editor at the Osgoode Society for Canadian Legal History. His email address is pgirard@osgoode.yorku.ca. Concerns over federal bill expressed BY SAYEH HASSAN For Law Times R ecently, jury composition has become an important issue on the public agenda. Ontario lawyers practising criminal law have expressed opinions on Bill C-75, as well as on a proposed amendment to the provincial Juries Act, Bill 52. Personally, I am concerned about Bill C-75's nega- tive impact on access to justice, as well as its limiting work opportunities for law students across Canada. The bill seeks to create a more efficient justice system and to speed up court proceedings; however, one of the unintended consequences of the bill is the negative im- pact it will have on marginalized groups in our society. Currently, the federal bill has not passed its second reading and has been referred to the Standing Com- mittee on Justice and Human Rights for further study. In the meantime, it's important to point out the f laws of the bill. In my opinion, there are two major ways that Bill C-75 will harm marginalized groups. These groups include people from racialized groups and Indigenous persons, people with mental health or addiction issues and those with little economic means who are not in a position to retain a lawyer. Given that the charter statement for Bill C-75 clearly says this bill seeks to address the over-representation of particular groups within the justice system, it is ironic that the bill seeks to eliminate the preliminary hear- ing for the majority of indictable offences, which will severely and negatively impact the groups that the bill seeks to protect. One area that would negatively impact marginal- ized groups — especially those with little or no eco- nomic means — is the inevitable wider use of private investigators by the defence. Currently, as part of the preliminary hearing, the defence has the opportunity to explore the background of the complainant or wit- nesses, something that is generally not part of the dis- closure. Elimination of the preliminary hearing will mean the defence will have to resort to using a private in- vestigator to obtain that information. While this will not be an issue for accused individuals who have the economic means to retain lawyers and private inves- tigators, this will negatively impact those in our com- munity who don't have the economic means to retain a lawyer or a private investigator, putting them at a great disadvantage during trial. Under the bill proposed, disclosure will be another area that will have terrible repercussions for the poor in our community. While it is true that the Crown has a disclosure obligation, that does not mean and certainly does not amount to organized disclosure. It is not un- usual for the defence to receive a number of electronic discs as disclosure, having to review and print the contents of the disc, and then go through every piece of paper to organize the disclosure, figure out what is relevant, what is peripheral and what, if anything, is missing. This is well and good for a defence counsel who is trained to carry out this task. However, it is a lot to ask of an unrepresented accused who doesn't have a legal education, most often may not have a formal education and, to top it off, may be suffering from either addiction or mental health issues, making it even more difficult to function. The preliminary hearing provides the benefit of compelling the Crown to organize and present its case with a logical and methodical f low. The unrepresented accused has the opportunity to hear the witnesses and evidence against them before they are committed for trial and will know the case they have to meet. The preliminary hearing also provides the accused with the opportunity to be in a real courtroom, see how the court functions and have the opportunity to cross- examine witnesses before having their trial in the Su- perior Court. All of the above are invaluable procedural protec- tions for all accused but especially for those who are marginalized and don't have the means to retain legal representation. Bill C-75 proposes to raise the maximum sen- tence for summary conviction offences to two years less a day from the current six months. This will mean that law students working at Legal Aid clin- ics will no longer be able to represent low-income in- dividuals who are charged with summary conviction offences. This is unfortunate because many vulnerable and marginalized individuals in our society do not qualify for Legal Aid if they make more than the bare mini- mum limit set by Legal Aid or if they are "not likely" to receive a jail sentence. For these individuals, the only option for legal representation is students at the Legal Aid clinics, but, unfortunately, Bill C-75 will take that option away from the most vulnerable and those who need it most. Those who depend on the services of students working at Legal Aid clinics are the least equipped to navigate the criminal justice system, often with little or no resources and most often with no formal educa- tion or even a rudimentary understanding of our jus- tice system. Having legal representation for anyone, but espe- cially for those with mental disabilities, those with ad- diction issues and those with little economic means could mean the difference between an acquittal and a conviction. A conviction will negatively impact the life of an in- dividual for many years to come, affecting their future job prospects, their ability to cross the border (which may also have an impact on employment) and other opportunities including volunteering. While efficiency within our criminal justice system is important and in fact protected under the Charter, it is not more important than procedural protections and having a fair justice system. We Canadians have the privilege of living under a constitutional democracy, and our elected govern- ment must ensure that an accused has a fair fighting chance within the criminal justice system, when de- fending themselves against the state with its infinite resources. LT uSayeh Hassan is a criminal defence lawyer with Walter Fox & Associates in Toronto. u SPEAKER'S CORNER COMMENT That's History Philip Girard

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