Essays in the History of Canadian Law Volume VI

Essays in the History of Canadian Law Volume VI: The Legal History of British Columbia and the Yukon

HAMAR FOSTER
JOHN McLAREN
Volume: 6
Copyright Date: 1995
Pages: 604
https://www.jstor.org/stable/10.3138/j.ctt1287vkb
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  • Book Info
    Essays in the History of Canadian Law Volume VI
    Book Description:

    These essays look at key social, economic, and political issues of the times and show how they influenced the developing legal system.

    eISBN: 978-1-4426-5702-1
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Foreword THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. xi-xii)
    R. Roy McMurtry and Peter Oliver

    The purpose of The Osgoode Society for Canadian Legal History is to encourage research and writing in the history of Canadian law. The Society, which was incorporated in 1979 and is registered as a charity, was founded at the initiative of the Honourable R. Roy McMurtry, former attorney general for Ontario, and officials of the Law Society of Upper Canada. Its efforts to stimulate the study of legal history in Canada include a research support program, a graduate student research assistance program, and work in the fields of oral history and legal archives. The Society publishes (at the rate of...

  4. Acknowledgments
    (pp. xiii-xiv)
    Hamar Foster and John McLaren
  5. Contributors
    (pp. xv-xvi)
  6. [Illustration]
    (pp. xvii-2)
  7. INTRODUCTION

    • 1 Hard Choices and Sharp Edges: The Legal History of British Columbia and the Yukon
      (pp. 3-27)
      JOHN McLAREN and HAMAR FOSTER

      The recent growth of interest in Canadian legal history has been remarkable, and so has the volume of research, much of which has focused upon the various provinces and regions.¹ Although very little has been done on the Yukon, there is a developing literature on the legal history of British Columbia, a topic that only a decade ago remained largely unexplored.² The point has not yet been reached, however, where general, comprehensive legal histories of either jurisdiction are possible.³

      We do not, therefore, lay claim to providing an exhaustive analysis of the legal history of British Columbia and the Yukon....

  8. PART I: ABORIGINAL PEOPLE AND THE LAW

    • 2 Letting Go the Bone: The Idea of Indian Title in British Columbia, 1849–1927
      (pp. 28-86)
      HAMAR FOSTER

      Between 22 March and 11 April 1927, a joint committee of the Canadian Senate and House of Commons inquired into the claim of the Allied Tribes of British Columbia that their title to the soil of the province had never been extinguished. The Allied Tribes were a coalition, chaired by Peter Kelly, that was formed in 1916 in response to the report of the McKenna-McBride Commission on Indian reserves.¹ Kelly was a Haida and an ordained minister of the Methodist Church. Andrew Paull, a Squamish who had been an interpreter for the McKenna-McBride Commission, was the coalition’s secretary. At the...

    • 3 ‘Where Is the Justice, Mr Mills?’: A Case Study of R. v. Nantuck
      (pp. 87-127)
      ALAN GROVE

      The study of law in Canada must go beyond a simple analysis of the language and logic contained in the pertinent statutes and decisions. A logical corollary of this fundamental premise is that the study of judicial decision making, either in general or in a particular case, is incomplete without an analysis of certain non-legal factors.

      Nowhere in Canada is there a greater need for scrutiny of judicial decision making than in the Yukon. Presently, there are no casebooks that adequately explain why or how cases came before the courts in the Yukon. The neglect of the North reflects the...

    • 4 Tonto’s Due: Law, Culture, and Colonization in British Columbia
      (pp. 128-170)
      TINA LOO

      A fiery horse with the speed of light, a cloud of dust and a hearty hi-ho Silver! The Lone Ranger!

      Western history, like the films, is full of Lone Rangers, the white-hatted good guys who always triumphed over the forces of evil, single-handedly ensuring that justice prevailed in the ‘olde weste.’ Despite the much commented upon differences between the settlement experiences of Canada and the United States, it appears Canada also had its share of these men. If popular histories are any indication, the Canadian West was largely won by the likes of Matthew Baillie Begbie and Sam Steele, lone...

  9. PART II: VICE, CRIME, AND POLICING

    • 5 Swift Justice and the Decline of the Criminal Trial Jury: The Dynamics of Law and Authority in Victoria, BC, 1858–1905
      (pp. 171-203)
      NANCY PARKER

      Scholars who have attempted to define Canada’s political and legal culture have often referred to a general deference to authority and a profound attachment to the rule of law. Although it may be fashionable to castigate such ‘quasi-national’ myths, the connection between traditional images of British justice and the authority of the Canadian state remains clear.¹ It is equally obvious that aspects of those ideals, and the views of how they might best be expressed in the judicial system, did not remain static. Over the course of the nineteenth century, the coincidence between an increasingly professional criminal justice system and...

    • 6 A Distant Edge of Authority: Capital Punishment and the Prerogative of Mercy in British Columbia, 1872–1880
      (pp. 204-241)
      JONATHAN SWAINGER

      Determining George Bell’s fate should not have been a complicated matter. He had been tried before Chief Justice Matthew Baillie Begbie and jury in June 1872 for the murder of Thomas Datson and, in due course, been found guilty. In accordance with practice in colonial British Columbia prior to 1871, no date of execution had been affixed to the sentence of death, allowing ample time for the transmission of papers between the Supreme Court and the Queen’s representative who, in council, would review the judge’s report along with any petitions and then determine whether Bell deserved merciful treatment under the...

    • 7 Vancouver Vice: The Police and the Negotiation of Morality, 1904–1935
      (pp. 242-273)
      GREG MARQUIS

      Organized vice was one of the great issues of Progressive-era reform. The moral purity movement, tied to quests for ‘good government,’ made and unmade political regimes, sold newspapers, and embarrassed and frustrated police departments across North America. The rhetoric of early-twentieth-century anti-vice campaigns, with their citizens’ committees, muckraking reporters, social activist clergy, and crime commissions, is familiar to most students of the period. Reform movements were interested in two interrelated problems. The first was how to keep the city clean; the second, how to keep the police clean.² These questions have particular relevance for Vancouver from 1904 to 1935, when...

    • 8 The Making of Criminal Insanity in British Columbia: Granby Farrant and the Provincial Mental Home, Colquitz, 1919–1933
      (pp. 274-312)
      ROBERT MENZIES

      On March 25 1919, nine male patients, arriving by steamship from the Public Hospital for the Insane (PHI) in New Westminster, were admitted to British Columbia’s first institution for the criminally insane in Saanich, ten kilometres northwest of downtown Victoria.² The Provincial Mental Home, Colquitz was located on a gently rolling twenty-five-acre tract of land originally purchased by the BC government in 1912. Its main building, a double-winged, red-brick, castle-like structure, designed by Colonel W. Ridgeway Wilson³ and erected in 1913 at a cost of $100,000, had served first for two years as a provincial jail known as the Saanich...

  10. PART III: RELIGION AND EDUCATION

    • 9 Judgments of Solomon: Law, Doctrine, and the Cridge Controversy of 1872–1874
      (pp. 313-351)
      RUSS BROWN

      Bishop Cridge of the Reformed Episcopal Church had once been Dean of the Cathedral, but, long before I can remember, he and Bishop Hills had had a bitter clash of conscience – ‘High’ and ‘Low,’ that same old controversy that will never be settled while people are people.¹

      The ecclesiastical dispute known as the ‘Cridge controversy,’ which pitted Victoria’s dean of Christ Church against his bishop, was born of a melodramatic twist to the otherwise auspicious occasion of the consecration of Victoria’s new cathedral. On the evening of 5 December 1872, Anglicans in British Columbia’s capital gathered in the new...

    • 10 Creating ‘Slaves of Satan’ or ‘New Canadians’?: The Law, Education, and the Socialization of Doukhobor Children, 1911–1935
      (pp. 352-385)
      JOHN McLAREN

      It is not difficult to find in the historiography of Canadian education instances of the invocation of law to support policies that have had as their objective the compliance of deviant populations or ethnic or religious minorities with mainline ‘Canadian values.’ The deployment of law to produce social or cultural homogeneity is evident in the establishment of Upper Canada’s public school system in the 1840s;¹ progressive denial or erosion of French-language education in Manitoba, Ontario, and New Brunswick;² the Indian residential school system;³ attempts to force public education on communalist Christians, such as the Strict Mennonites and Hutterites;⁴ and coercion...

  11. PART IV: LABOUR AND SOCIAL WELFARE

    • 11 After Union Colliery: Law, Race, and Class in the Coalmines of British Columbia
      (pp. 386-422)
      ROSS LAMBERTSON

      In July 1899 the Judicial Committee of the Privy Council declared unconstitutional an amendment to the British Columbia Coal Mines Regulation Act (CMRA) prohibiting the employment of Chinese as underground mineworkers. The decision, known asUnion Colliery v. Bryden, promised to end many years of political struggle between British Columbia’s white coalminers and James Dunsmuir, the Vancouver Island coal magnate and politician.¹ In order to control both sides of the litigation, Dunsmuir had persuaded John Bryden, a shareholder as well as a major political supporter and a brother-in-law, to challenge the law in court. With the Privy Council decision, Dunsmuir...

    • 12 For God, Country, and the Public Purse: ‘Liberal’ Politics and the Campaign for Family Courts in British Columbia, 1939–1945
      (pp. 423-456)
      DOROTHY E. CHUNN

      The family is the primary agency for producing and training citizens. Little constructive work is possible unless the Law directs its attention to the removal as far as possible, of the causes which break up families.²

      During recent decades, revisionist scholars have generated a substantial literature on the origins of the welfare state in Western liberal democracies which refutes the conventional wisdom that it was an inevitable development, the consequence of a linear movement of society and civilization in a more enlightened direction.³ On the contrary, the revisionists concur that, despite differences between and within countries, the transformation of laissez-faire...

  12. PART V: THE LEGAL PROFESSION

    • 13 Fighting Spirits: The Yukon Legal Profession, 1898–1912
      (pp. 457-507)
      BURT HARRIS

      Lawyers have generally not been given a prominent place in the written history of the Yukon. Although they were clearly visible on the territorial landscape during the Klondike gold rush and the years immediately following, their profiles are, as of yet, barely discernible. From the anecdotal accounts and academic surveys offered so far, the reader receives only a few scattered glimpses of lawyers and legal practice in the Yukon Territory.¹ Writers have tended to cater to the romantic appeal of the Klondike, and to review the more sensational figures of Dawson society – the miners and traders, the Mounted Police...

    • 14 Exclusionary Tactics: The History of Women and Visible Minorities in the Legal Profession in British Columbia
      (pp. 508-562)
      JOAN BROCKMAN

      I do not want to urge any special claim to favour or privilege that is not open to any other woman. I don’t want to be admitted by favour but by right.¹

      The above words were spoken by thirty-year-old Mabel Penery French at her law office in late 1911 or early 1912. They were uttered before the British Columbia Court of Appeal ruled in her case, on 9 January 1912, that women could not be called to the bar in British Columbia, and before legislation was enacted on 27 February 1912 to ‘Remove the Disability of Women so far as...

  13. Index
    (pp. 563-584)
  14. PUBLICATIONS OF THE OSGOODE SOCIETY FOR CANADIAN LEGAL HISTORY
    (pp. 585-586)