Law Times

Law Times • February 23, 2015 Page 7 www.lawtimesnews.com COMMENT A look at Canada's history of indigenous slavery ust as slavery existed in Africa be- fore the arrival of Europeans, so it existed among many indigenous people in North America before European contact. Intertribal wars produced captives who were enslaved. Adult male cap- tives were tortured and degraded to deprive them of their identities, the better to integrate them into the host group. Female captives were taken as additional wives and might be treated very harshly. In the lower Great Lakes and the St. Lawrence valley, the native peoples assimilated their captives via a form of adoption and didn't exchange them. Around the upper Great Lakes and in the Midwest, however, slaves were given away to cement alliances be- tween tribes. As the French moved west in search of furs, they were drawn into this prac- tice. The French explorer Daniel Greys- olon DuLhut was given three slaves by the Sioux in 1675 to recognize their al- liance with the French, while the gov- ernor of New France accepted a small slave as compensation from the Sauk nation after some of their members had murdered a French trader. Fur traders began to turn such offerings into com- modities, and a market in indigenous slaves from the Midwest, known as Panis or Pawnees, developed in Mon- treal from the 1690s. Local indigenous people were not enslaved because that would have upset the alliances upon which the French depend- ed. But some 2,500 Panis have been enumerated in New France down to its fall in 1760. French law had long insisted on a distinction between the act of enslave- ment and the purchase of a slave. The former was a matter for the law of na- tions as part of the law of just war while the lat- ter could be regulated by national laws. French law forbade its nationals from enslaving others and in- deed executed French traders in the Ca- ribbean who had captured and enslaved indigenous inhabitants but it permit- ted the French to purchase or receive as gifts those whom others had enslaved. In New France, the intendant Jacques Raudot issued an ordinance in 1709 declaring: "All the Panis and Ne- groes who have been bought, and who shall be bought hereafter, shall be fully owned as property by those who have purchased them as their slaves." He jus- tified it by observing that "the people of the Panis nation are as necessary to the inhabitants of this country for agricul- ture and other enterprises that might be undertaken, as Negroes are in the [Ca- ribbean] Islands." Indeed, more than two-thirds of the slaves in Quebec prior to 1760 were aboriginal. Although usually referred to as Panis, Amerindian slaves weren't always members of the Pawnee nation who inhabited the area around the Missouri River. The term derived from the legal requirement that French slaves had to have been enslaved by someone else. Thus developed the legal fiction that all such slaves were members of the Pawnee nation who had been enslaved by neighbour- ing tribes and thus could be legally acquired from them by the French. Raudot's successors petitioned King Louis XV to promulgate a law that would give a firmer legal basis to Panis slavery, as the Code Noir of 1685 did for black slavery in the Caribbean, but he declined. The result was a custom- ary law of slavery that permitted a cer- tain degree of legal capacity to Panis slaves. They could be required to appear in court, could witness certain legal acts, and in criminal proceedings were generally accorded the same rights as French subjects. Panis slavery never played the cru- cial economic role that black slavery did in France's Caribbean colonies. Most Panis lived in the towns and worked as domestic servants or apprentices to tradesmen, although some also assisted the voyageurs in the fur trade. Mar- riage between Frenchmen and Paniss- es wasn't unknown. And some Panis served mainly as status symbols for the elite. One governor general of New France, for example, owned at least 25 in the 1730s. The only freedom suit known to have arisen in New France was that of a Panisse named Marie-Marguerite Duplessis Radisson in 1740. Repre- sented by a legal practitioner paid by a sympathetic priest, she was unsuccess- ful and probably transported to Marti- nique by her owner. But the mere fact of the lawsuit suggests that ideas about in- digenous slavery were being contested. Regime change in 1760 didn't alter the slaves' status. After the fall of Mon- treal, Gen. Jeffery Amherst agreed that "Negroes and Panis of both sexes shall remain in their quality of slaves in the possession of the French and Canadians to whom they belong." The main change under the British was the importation of significant numbers of black slaves and, by 1800, the judicial abolition of slavery in Lower Canada (long before its formal abolition in 1833). With that, Pa- nis slavery quietly disappeared as part of the history of Quebec and Canada to re-emerge only recently in scholarly works. LT Philip Girard is a legal historian and professor at Osgoode Hall Law School. He's also associate editor at the Osgoode Society for Canadian Legal History. His e-mail address is pgirard@osgoode. yorku.ca. In support of the Law Practice Program By darryl sinGer For Law Times n the Feb. 2 issue of Law Times in response to crit- ics of Ryerson University's Law Practice Program, editor Glenn Kauth suggested giving it more time before rushing to judgment. He referred to concerns about unpaid internships; the potential to reduce paid articling positions; the high proportion of racialized stu- dents more likely to turn to the Law Practice Program; and the issue of student loans. However, both Kauth's editorial and public pronouncements by those for and against the program fail to mention the most significant element: the quality legal skills training gained by the participants. Having had the distinct pleasure of being both a firm mentor and an assessor for the recently completed inaugural session of the Law Practice Program, I had a first-hand opportunity to assess it. When one considers that this was a pilot project run independently through Ryerson in the most capable hands of Chris Bentley and Gina Alexandris, anyone involved with the program can conclude nothing other than its success. As a lawyer old enough to remember my articling pe- riod preceding a mandatory four-month bar admission course covering eight distinct subjects and who articled at a time when true mentoring still existed, I am not alone in witnessing a decline in the educational, practical, and professional standards of many newly called lawyers. This is not to suggest the sky is falling but that the Law Society of Upper Canada used to have more stringent quality control over new calls. This current situation is a failing on the part of the law society in disbanding the old bar admission course. It is also the failing of a legal industry driven by billable hours and greater economic pressures than ever before with the result that it is more likely to view an articling student as a profit centre rather than as a mentor's contribution to the future of our profession. To those unfamiliar with the Law Practice Program, it grouped students into virtual firms with each assigned a senior lawyer to act as a mentor who played the role of senior partner. The students worked through a series of real-life experiences ranging from client intake in- terviews, setting up files, corresponding with opposing counsel, client management, negotiation, preparation of pleadings, and drafting motions. The practical skills training in litigation culminated with cases argued in an actual courtroom at 361 University Ave. The litiga- tion files covered several distinct practice areas. They included family and criminal law, the two areas in our current system that are arguably most in need of fresh, prepared, and competent counsel in order to ensure ac- cess to justice. In addition, there was a solicitor component that dealt with share-purchase agreements and real estate closings along with the attendant file work. This component con- cluded with the students completing a closing. The students carried numerous files in different areas of law simultaneously. Built into the program were very real time constraints and law firm demands. With all of the students in the same program, it was easy to assess them comparatively, unlike with articling. It was a reward- ing experience to see students in September who were shy and unsure with varied legal and life educational back- grounds develop by December into cohesive teams with similar experiences and feeling confident and certain. As for those concerned about graduates having to pay back student loans and the lack of paid student-at-law positions, the reality is what it is. Further, high student debt load combined with a dearth of well-paying jobs is certainly not unique to law students. The Law Practice Program's existence does nothing to exacerbate the situ- ation. In fact, it provides an opportunity for those stu- dents who do not obtain articling positions to still meet their intended year of call precisely so they can start to practise and attempt to earn a living. It gives those stu- dents a practical experience equal to or better than many well-paid articling positions. Scrapping the program is not the answer, nor is forcing employers to pay a mini- mum wage over and above the current provincial em- ployment law. This would simply result in many small- er firms and sole practitioners that would otherwise happily participate declining to do so simply because they cannot bear the financial burden. Moreover, graduation from law school does not and should not entitle one to a particular level of income or even a job. The important aspect is that those who gradu- ate law school should have an equal opportunity to ac- cess practical skills training culminating in a call to the bar within a year of their law school graduation. The in- troduction of the Law Practice Program only enhances this laudable goal. One could go a step further and advocate that the Law Practice Program should become mandatory in the manner of the old bar admission course. We could then reduce articling to the four-month work placement cur- rently tacked onto the end of the Law Practice Program. If we want to maintain self-governance and public con- fidence in our profession, we need to ensure more than just a passing standard of uniform skills training. In that regard, the Law Practice Program is a positive step in that direction. LT Darryl Singer is a litigation lawyer with more than 20 years at the bar and more than 15 years of teaching and mentoring experience. u SPEAKER'S CORNER J That's History Philip Girard I

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