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James Robinson Johnston (1876–1915): The Life of The Coloured Barrister Revisited

By: Justin Marcus Johnston, a Nova Scotian author, writer, and historian. Justin is the author of James Robinson Johnston: The Life, Death, and Legacy of Nova Scotia’s First Black Lawyer (Halifax, NS: Nimbus Pub, 2005).

 

In 2005 I wrote the biography of James Robinson Johnston (1876–1915), Nova Scotia’s first Black lawyer. I am also his collateral descendant—his youngest brother was my great-grandfather.

Since my initial research in the early 2000s, I am left with more questions than answers about the rise of the “colored barrister” from the working-class, North End of Halifax to the academic halls of Dalhousie University and the legal profession. His work with the Conservative Party as a stump speaker, his involvement in freemasonry, his support of the African Baptist Association churches, and even his links with the international Pan-Africanism movement show that Johnston was ahead of his time when few, if any, opportunities existed for African Nova Scotians.

I wish to avoid repeating the biographical details of Lawyer Johnston’s life. Numerous writers and historians have informed the public about his significance to Nova Scotian history. However, few have speculated on the reasons why he was murdered, or perhaps assassinated, and the forces inimical to his life. I believe I am best qualified to answer these questions being both his biographer and descendant.

The most plausible homicide theory, in my opinion, is that Johnston was the target of a murder-for-hire. This theory is based on the police reports, trial transcripts, and remission case file of his brother-in-law and killer Harry Allen, who was known as a ne’er-do-well and drunkard.  Allen shot Johnston five times at point-blank range in the family home. Family sources indicate that Johnston and Allen never got along. In court, Allen never disclosed his reasons for killing his brother-in-law except “drunkenness.” Johnston provided Allen with food, lodging, and employment at the request of his wife Janie, Allen’s sister. Allen was the brother-in-law of a successful lawyer, who lived in a nice house in a respectable neighbourhood well outside Halifax’s North End slums (including Black districts) where he had grown up. His life was far better than that of the average working-class black or white man at the time. Why Allen would have wanted to kill his only benefactor is a mystery.

On March 3, 1915, Johnston was ambushed and killed by Allen in his home before the family meal.  In the aftermath of the murder, Allen had two criminal trials and was twice convicted of murder. The first trial ended with jury nullification. In the second trial, he was sentenced to hang but was eventually given a life sentence and early ticket of leave (now known as parole). Automatic parole considerations did not apply, as they came many years later, in 1959.

It is possible that the tearful letters of Janie Johnston, a widow, pleading for mercy on behalf of her troubled brother to the Minister of Justice and the Head of Penitentiaries was enough to save his life.  However, I believe Allen escaped his death sentence and was eventually freed because there were powerful people working behind the scenes, who planned the killing and used Allen as the willing assassin. Allen’s daily access to Johnston provided the opportunity. The sequence of events before and after the murder suggests that Allen was being used.

I think that those responsible for planning Johnston’s murder were after more than just money:  They wanted to settle a score. They harboured a grudge that money could not settle. Johnston’s wealth was not extraordinary to those in the legal profession at that time.  Jealousy is a minor motive. To those close to Johnston, his wealth likely seemed enormous—but to his white competitors downtown, his wealth was average at best.  It is therefore naive to believe his enemies were only out to claim his assets. I believe that Johnston’s enemies wanted to destroy him and his reputation, erasing him from the annals of history because they took personal offense at his courtroom triumphs.  I believe Allen was a front for a larger conspiracy. He was manipulated by others, perhaps for a promise of personal gain. Perhaps, a black man killing another black man provided just the right cover to hide the true identity of all those involved.

This real-life story has elements of Shakespearean tragedy: We see a noble hero rising in the profession and in community circles, only to be ambushed in his own home.  However, his murder was likely made possible, in part, because of Johnston’s own tragic flaws. He did not appreciate how determined his enemies were, and how dangerous and resourceful Harry Allen was.  Allen had nothing to lose and very little to gain, but the allure of easy money and the death of his arch-nemesis may have been just enough to motivate him to carry out the murder.

Allen spent less than two decades in prison and was known to be a model prisoner. His sister Janie, the person most affected by the ordeal, lived a long life into the late 1950s, with no surviving heirs and rendered penniless because of her brother’s actions. In her last known photos, her natural, light skin beauty has long faded, and she has become a wraith of ghostly white hair and wrinkles, due to the ordeal of losing her husband, fighting her in-laws in court, suffering poverty, and defending her deranged brother. She aged prematurely. She was no longer the wife of the “colored barrister,” but now just an ordinary Black woman, resigned to a hard existence doing domestic chores in the homes of white people, a stereotypical role in those years.  Totally subservient and loyal, she was completely dependent on white folks’ “charity.”  Who would have believed her former life? The places she visited, the people she met, and the luxuries she and her husband enjoyed.

In a twist of fate, Allen’s freedom was short-lived. Shortly after his parole in 1935, he moved to Montreal to be near family but was bitten by a rabid rat and succumbed to hydrophobia—a slow and painful death. He took the secret of who hired him to kill his brother-in-law to the grave. Allen left behind a widow and a stepson. Oral tradition in the family has it that Johnston returned from the grave in the form of a rat to avenge his death because justice was not served.

Elders, no longer with us, likely knew the real reasons why Allen killed his brother-in-law and also knew the identities of his co-conspirators. They choose silence over the truth.  Out of respect, I will not name them here. These elders were the guardians of our history, trusted with every story, rumour, and family secret.  Always dependable and reliable, their minds were a treasure trove of stored information spanning back generations, and capable of remembering—with precise detail—events and persons from long ago.  Nothing escaped their watchful eye. They passed their knowledge down to other trusted persons via the sacred oral tradition. Our tight kinship bonds and degrees of intermarriage mean that nothing is ever a secret among us African-Nova Scotians. We laugh, eat, sing, worship, and cry together. Collectivists in spirit, we share each other’s pain, fears, traumas and sorrows. One family’s loss is also another family’s loss. The loss of the paramount leader, a native son, a brother, and the circumstances surrounding his death were just too painful for all to bear.

Ultimately, Allen’s backers benefited from the Black community’s desire for self-preservation by maintaining a studious silence. Even now, it is often the community’s lack of cooperation and an overall distrust of authorities that allows actual killers to go free.

A worthy study is of the number of commutations and early releases granted during the 20th century in Canada for capital murder. Capital punishment was not abolished in Canada until 1976. I believe the record will show that the likelihood of any condemned individual, especially a person of color, escaping the death penalty and then receiving early release from prison is akin to an individual winning the jackpot lottery twice in a row.  Yet, this was Allen’s fate—or reward. It was an unlikely occurrence, and a statistical improbability at a time when most persons—Black, white, or Indigenous—hanged for murder, with convictions often based on little evidence. The racial otherness and destitution of criminal defendants charged with murder also almost certainly meant hanging. The only logical conclusion to be reached in the Johnston case is that Allen was more than lucky: He had help from powerful men who sought Johnston’s death.

I know of hopeless causes involving Black defendants, such as R v Farmer (1937). Everett Farmer was accused and convicted of killing his half-brother Zachari, who threatened to rape Farmer’s wife and kill his family.  Farmer acted in self-defence, surrendered himself to the authorities, and fully cooperated with them, but his efforts were in vain. His trial lasted one afternoon, and his death sentence was not commuted to life in prison.

Another case of great importance to Nova Scotian justice is Sampson’s case. In 1935, Daniel Perry Sampson, an unskilled labourer and World War One veteran, was convicted of the 1933 murders of two white boys. After two trials, Sampson was hanged behind the Halifax courthouse in March 1935.

There are many striking similarities between the Allen and Sampson cases. Both Allen and Sampson were Black men, twice convicted of murder and sentenced to death by all-white juries of that day. However, their interactions with the criminal justice system and the legal outcomes differed because of who their victims were.

Allen killed his brother-in-law, another Black man, a prominent leader in the community, but in the end was rewarded with his sentence reduced to life-in-prison and then with early release. In the other case, Sampson was accused and convicted of killing two white boys, allegedly because they provoked him with racial slurs and threw stones at him near the Rockingham railway tracks on the outskirts of Halifax.

In the Allen case, criminal responsibility was clear: Allen murdered Johnston and never hid the facts from the authorities. There were witnesses to his crime, including his sister Janie and a few neighbours. Moreover, the murder weapon was Allen’s firearm, which he kept in the family home.  Allen’s clothing was covered in blood following the murder. Allen even turned himself in.

Sampson’s guilt was in doubt from the very beginning. He had no clear motive and a “feeble” mental state (he suffered from PTSD). There was a police-written confession, which the illiterate man allegedly signed “with an X” in custody, but which disappeared before his first trial and was found again in time for the second. There was also a lack of corroborating witnesses. Sampson’s only mistake was that he was known to the police as a “retarded” Black man who walked the railway tracks where the boys were found dead. If he was guilty of murder, it could only have been on a charge of manslaughter, for there could have been no premeditation, especially if it is true that he killed the boys after they pelted him with stones and the “n-word.” (And even that “confessed” motivation seems unlikely.  In 1935, an adult Black male like Sampson could have been called the “n-word” frequently enough that it would have had the practical effect of being called “son” or “boy.”)

The thought of a maniacal Black man killing two white boys was too much for the public and the racially-biased, all-white male jury to bear. Lacking a fair trial, Sampson was destined to die for something he likely did not do.  The truth is that anyone could have dumped the bodies of the boys in the Rockingham scrub and brush, alongside railroad tracks travelled by Great-Depression drifters, creeps, derelicts, and other sketchy types. Even appeals for mercy from the father of the two boys were ignored by the courts. The system needed to blame someone, and Sampson was their unlucky target. The jury never got to learn the truth about Sampson—that he was a war veteran and a human being, not the monster presented in the media and the courts. He hanged in March 1935—nearly 20 years to the day of Lawyer Johnston’s murder in March 1915. And in the same year Allen suffered his dreadful fate. Sampson was the second-last man in Nova Scotia and the last in Halifax to be hanged. Everett Farmer, another unlucky Black man, became the very last condemned person to be hanged in the province.

The courts today would likely find Sampson not guilty. He did not receive a fair trial due to a biased and unrepresentative jury, police malfeasance, and/or reasons of insanity. In actuality, the case should never have made it to trial because of the lack of hard evidence.

Upon closer inspection, Allen unknowingly deprived two of his own kind to native counsel, and it cost them their lives. One wonders if Farmer or Sampson had been able to retain the legal services of Johnston whether their chances of winning their respective cases would have been higher. Johnston had a track record of successfully defending clients who were up against improbable odds due to his ability to sway juries with his oratory and sheer forensic brilliance—as seen in R v Murphy (1914). (Murphy was a white Irishman accused and acquitted of killing his grandmother-in-law.)

 

***

 

Over a century after Lawyer Johnston’s untimely death in 1915, at the age of 39, we are still left with questions. Why did Allen murder his brother-in-law? How did Allen benefit from his demise? Who else benefited? If Johnston had lived a few decades longer, how would our history be different?  Painful lessons are learned from this great tragedy. The aftermath of the murder permanently stigmatized Nova Scotia’s Black community. The death of a paramount leader set a community back many decades. One man represented the hopes, dreams, and aspirations of an entire community.  His absence, and the trauma of his death, caused Johnston to almost be completely forgotten by his people, and his accomplishments stolen by men inferior to him. With no one to replace him, he faded into oblivion and became the subject of ridicule and innuendo. Silly questions about his private life remained until recent decades and eclipsed his accomplishments.  It took 40 years before another native-born African Nova Scotian, George Webber Davis, was called to the Nova Scotia Bar. Davis hailed from the same North End Halifax slums where Johnston was raised. And it took even longer for a Black person to be called to the provincial bench.

Long overdue, a portrait of Johnston now hangs on the first floor of the Nova Scotia Supreme Court Building alongside other persons honoured for their contributions to the legal profession. The careful observer sees the enigma of Johnston’s portrait—a lone brown face in a sea of white lilies. He was a hero who challenged social convention, rising to the top of his profession only to become a hero slain before his time, and one who left behind an enormous legacy.

DLJ Podcast – Ep 13 – Can Institutions Claim 2(a) Protection in Refusing to Provide MAiD?

Join Julia and Daphne Gilbert, Associate Professor at the University of Ottawa’s Faculty of Law, as they discuss her recent paper in the DLJ, “Faith and/in Medicine: Religious and Conscientious Objections to MAiD”

Daphne explains why freedom of conscience and religion should not apply to faith-influenced hospitals that object to Medical Assistance in Dying.

Resources mentioned:
– Daphne’s paper: https://digitalcommons.schulichlaw.dal.ca/dlj/vol43/iss2/2/

Also available on Spotify

 

Faith and/in Medicine: Religious and Conscientious Objections to MAiD

By: Daphne Gilbert, Associate Professor at the University of Ottawa Faculty of Law, and Portia Larlee, JD (anticipated 2021)

For more on this topic, see Daphne’s article in issue 43:2 of the Dalhousie Law Journal

No time to waste: Provinces should adopt an effective referral model

Canadians who meet legislated criteria are constitutionally entitled to access Medical Assistance in Dying (MAiD) within Canada’s publicly-funded health care system. More than 7000 Canadians have already received MaiD, and it is becoming a more socially acceptable end-of-life option with each passing month.

However, across Canada, publicly-funded faith-influenced institutions refuse to provide MAiD and some individual physicians profess strong religious and conscientious objections to providing the service. This means some patients who choose MaiD must adapt to a new non-objecting physician or move to a different institution that provides MAiD. Patients who are forced to move to another institution might end up further away from support systems and family members and some patients will find the transfer physically challenging or impossible.  Access to MAiD should be unimpeded by politics, professional regulatory regimes, and religion.

An effective referral requirement does not violate physicians’ section 2(a) Charter rights

To balance the rights of conscientious and religious objectors with the rights of Canadians wanting to access MAiD, all provincial regulatory bodies should require at least an “effective referral” model for individual objectors. This means that physicians who are unwilling to provide MAiD for reasons of conscience or religion must make a timely referral to a non-objecting, available, and accessible physician.

In Ontario, five physicians and several physician advocacy organizations unsuccessfully challenged that province’s effective referral requirement in Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario (CPSO). The CPSO sees an effective referral regime as the appropriate compromise between a patient’s right to MAiD and a physician’s religious or conscience objections to the service. The applicants argued that the policy violated section 2(a) of the Charter.

The Court agreed that some of the individual appellants are not free to practice medicine in accordance with their religious beliefs because of the effective referral requirement, but concluded that the infringement of section 2(a) was justified under section 1 of the Charter. An effective referral requirement is minimally impairing of physician rights.  The Court acknowledged two important contextual factors in its decision. The Court noted first that physicians are “gatekeepers” and a “key point of access” to medical services for most patients. It can be difficult to find a family physician in Canada, and for most patients, their family doctor is key to navigating a complex system of specialists and follow-up treatment. Effective referral policies protect patients who depend on their family doctor for coordination of care and initial counselling and information provision.

The second important contextual factor is the nature of the services to which the appellants objected. In addition to MAiD, the appellants objected to providing effective referrals for other services including abortion, contraception, infertility treatments, vasectomies, and gender reassignment surgery. The Court accepted that these issues are difficult for patients to raise and discuss, and noted that it “is impossible to conceive of more private, emotional or challenging issues for any patient.” The combination of stigma and the vulnerability of patients in need of these services heightens the importance of the family physician’s gatekeeper role. In that context, the effective referral policy was minimally impairing.

CPSO is a well-reasoned unanimous decision that may offer some leverage in achieving stronger protections for patients in other provinces. However, an effective referral model for individual objecting physicians is meaningless for hospitalized patients in faith-influenced institutions that refuse to allow MAiD to be performed by any physician on the premises.

Faith-influenced hospital protection under section 2(a) to be litigated

While it may be a fair compromise for a professional regulatory body to allow individual physicians to offer an effective referral for services they object to on a conscience or religious basis, this is an inadequate accommodation for an entire hospital. Faith-influenced institutions are dispersed throughout the country but in some provinces like Alberta, they dominate the health care scene.

The Supreme Court of Canada has yet to decide whether an institution can claim section 2(a) protection.  In Loyola High School v Quebec the four-person plurality decision declined to address the question. The minority decision, however, provides some guidance. It found Loyola High School, a Catholic high school, could claim 2(a) protection because its “primary mission” was to offer Catholic education.

The minority decision in Loyola sets out the test for institutional section 2(a) protection: “an organization meets the requirements for s. 2(a) protection if (1) it is constituted primarily for religious purposes, and (2) its operation accords with these religious purposes.” A publicly-funded faith-based institution would not likely meet this test. A hospital is not constituted “primarily for religious purposes.”

However, in applying the test, the minority deviated somewhat from the strictness of its own language. In application, the minority asked if Loyola’s claimed belief that it must teach from the Catholic perspective is consistent with its organizational purpose and operation. This emphasis on “consistency” with purpose is not the same as requiring an organization to be “constituted primarily for the purpose”  to qualify for protection under section 2(a).

Faith-influenced hospitals may have an easier time arguing for an institutional right to deny MAiD, if a court focuses on how consistently an institution operates within its stated purpose. For example, faith-influenced hospitals may argue that the sanctity of life, a foundational spiritual belief, is an operating or guiding principle of how health care is organized and delivered in these institutions. Still, a publicly-funded faith influenced institution would not likely satisfy either step of the test. Unlike Loyola College, Catholic hospitals are not organized to give Catholics a community or collective opportunity to live out their spiritual needs, and they do not primarily fulfill that purpose as medical institutions. To resolve this issue, the Supreme Court of Canada will need to take a firm position on whether and when institutions can claim a section 2(a) right and whether a faith-influenced hospital is operating within a primarily religious purpose.

Whether faith-influenced hospitals should have the right to deny access to MAiD is much more than a constitutional quandary. The decision to end one’s life is arguably the most profound decision an individual can make. Individual physicians should not prioritize their own conscientious or religious beliefs over those of their patients.  Publicly-funded faith-influenced hospitals should not take a moral stance on this complex social issue, and they should not oppose the Charter-protected rights of patients. The dignity of some of the most vulnerable members of our society is at stake.

 

 

DLJ Podcast – Ep 12 – The Stakes in Steak

Join Charlotte and Angela Lee, Assistant Professor at Ryerson University’s Faculty of Law, as they discuss her paper in the DLJ, “The Stakes in Steak: Examining Barriers to and Opportunities for Alternatives to Animal Products in Canada”

Angela explains the broad importance of food and food law around the world, the links between food systems and the environment, and the regulatory barriers to alternative meat products in Canada.

Resources mentioned:
– Angela’s paper: https://digitalcommons.schulichlaw.dal.ca/dlj/vol41/iss1/9/
– Documentary on food waste: “Just Eat It”
– Heather McLeod-Kilmurray, Angela Lee, & Nathalie Chalifour, Food Law and Policy in Canada
– The Good Food Institute: https://www.gfi.org/

Also on Spotify

 

Committing to Justice: Will the Nova Scotia Court of Appeal Uphold Cultural-Based Sentencing for Black People?

By: Maria Dugas, Assistant Professor, Schulich School of Law

At a time when citizens are standing united to protest anti-Black racism, companies, celebrities and professional athletes are using their platforms to argue for change, and some politicians are waking up to the idea that systemic anti-Black racism exists, I wonder whether the criminal justice system, and more specifically, the judiciary in Nova Scotia, will exercise their authority to seek justice for Black people in this province.

Systemic anti-Black racism is deeply entrenched in all aspects of the criminal justice system. That’s been true from its earliest days.  It wasn’t until 1834 that legislators and the judiciary in Nova Scotia declared slavery illegal.  We know that the courts were used to affirm White people’s property rights in enslaved Black people.[1] We know that the courts were used to control where Black people were allowed to go.[2]

We have seen the Wortley Report and the Independent Legal Opinion by Chief Justice McDonald and Jennifer Taylor; we know that Black people are six times more likely to be street checked by police than White people in Nova Scotia, and we know that this practice is illegal. We know that 30% of Black males in Halifax have been arrested for a crime at some point in their lives, compared to 6.8% of the White male population. We know that this is a result of systemic racism and the association of Black skin with criminality, not that black people commit more crimes.[3] We know that Black people are disproportionately overrepresented in fatal encounters with police. We know that Black people are overrepresented in every aspect of the criminal justice system, incarceration in particular.

We know that in 2017–2018, African Nova Scotians represented 2% of Nova Scotia’s population, but 10% of the incarcerated population. Despite this overrepresentation, we know that Black people are underserved while incarcerated, without access to culturally relevant programming or services. We know that incarcerated Black people are more likely to be placed in maximum-security prisons despite being rated as low risk to reoffend; that Black people are overrepresented in disciplinary segregation; and that Black people are overrepresented in use of force incidents by prison staff, among many other issues.

We also know that Black people are underrepresented as judges, lawyers, and law professors.

We want to know whether the judiciary is going to use its authority to address the justice system’s complicity in perpetuating systemic anti-Black racism. The upcoming appeal in R v Anderson provides such an opportunity.

Mr. Anderson was convicted of multiple weapons-related offences after he was stopped by police while driving and found to be in possession of a loaded revolver. Chief Judge Williams, after addressing the overincarceration of Black people in Canada, and the unique experiences of Black people living in Nova Scotia, opted for a more responsive approach and sentenced Mr. Anderson to a conditional sentence of 2 years less a day and 2 years’ probation.

CJ Williams had the benefit of an Impact of Race and Culture Assessment (“IRCA”), which helped her to understand the historical and ongoing anti-Black racism in Nova Scotia, and the effect of this racism on Mr. Anderson’s lived experiences. This is important because judges are required to consider a person’s circumstances when determining what sentence is appropriate. Where the person being sentenced is Black, their race and experience of racism are necessarily part of the circumstances that the court should consider.

The Crown appealed CJ Williams’ decision on March 11, 2020. It raised five grounds of appeal: (1) that she erred in law by considering inadmissible opinion evidence; (2) that she erred in principle in her considerations of denunciation and deterrence; (3) that she underemphasized denunciation and deterrence; (4) that she ordered a sentence that was demonstrably unfit; and, as in common on appeal, (5) such other grounds of appeal as may appear from a review of the record.

On July 7, 2020, the Justice Working Group of the African Nova Scotian Decade for People of African Descent Coalition (“ANSDPAD”) filed a Notice of Motion for Leave to Intervene in the appeal. In its simplest form, their position is that the African Nova Scotian community should have a voice at the table when the Nova Scotia Court of Appeal (“NSCA”) is being called on to address whether and how anti-Black racism and the lived experiences of African Nova Scotians are taken into account in sentencing. The Ontario Criminal Lawyers Association (“CLA”) also filed a Notice of Motion for Leave to Intervene on July 7, 2020. They will provide insight on how IRCAs are being used in Ontario and make submission on how the sentencing principles should be applied to Black people. The Crown consented to both Motions and the Court granted leave to both the ANSDPAD and the CLA on October 14, 2020.

The NSCA will hear the appeal in March 2021. It will be the first time that the appellate court will address the use of IRCAs in sentencing Black people in this province. If the case is heard before R v Morris, a similar decision on appeal to the Court of Appeal for Ontario, it will be the first time that any appellate court in the country hears the issue. As such, the NSCA has an opportunity to set the foundation for IRCAs going forward. At the very least, they should hold that this type of evidence is admissible. They should also establish the framework for how courts can acquire and meaningfully consider systemic evidence in sentencing. Ideally, they will also declare these types of reports mandatory, such that it would be an error of law to not consider systemic, race-based factors when sentencing a Black person.

These reports will not eliminate the existence of anti-Black racism in this province, but they will help to remedy its effects in the criminal justice system and address the overincarceration of Black people in this country.

 

[1] See e.g. Delancey v Woodin, 1880.

[2] For example, Viola Desmond was fined, jailed, and convicted for refusing to leave the “whites only” section of the Roseland Theatre in New Glasgow.

[3] See e.g. Akwasi Owusu-Bempah, & Scot Wortley, “Race, Crime, and Criminal Justice in Canada” in Sandra Bucerius & Michael Tonry, eds, The Oxford Handbook of Ethnicity, Crime, and Immigration (London: Oxford University Press, 2014) at 297. See also, David M Tanovish, “Using the Charter to Stop Racial Profiling: The Development of an Equality-based Conception of Arbitrary Detention” (2002) 40 Osgoode Hall LJ 145 at paras 33–34.

You can hear more from Maria Dugas on the DLJ Podcast: https://soundcloud.com/user-653954800/ep-10-maria-dugas-impact-of-race-and-culture-assessments-1 

DLJ Podcast – Ep 11 – Re-thinking Oaths and Affirmations

Join Charlotte and Colton Fehr, Assistant Professor at Simon Fraser University, as they discuss his recent paper in the DLJ: “Re-thinking the Process for Administering Oaths and Affirmations”

Colton explains the potential for judges and juries to be biased against witnesses based on how they choose to swear to tell the truth. He offers an alternative procedure that reduces the potential for bias but maintains the truth-seeking function of the oath and affirmation process.

Resources:
– Colton’s paper: https://digitalcommons.schulichlaw.dal.ca/dlj/vol43/iss2/4/
– Colton’s SSRN page: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2637599
– Brian Bornstein & Monica Miller, God in the Courtroom: Religion’s Role at Trial (New York: Oxford University Press, 2009)
-David Tanovich, “J.(T.R.): Time to Remove Religion from the Oath” (2014) 6 CR (7th) 211.

Also available on Spotify

 

DLJ Podcast – Ep 10 – Impact of Race and Culture Assessments

Join Charlotte and Maria Dugas, Assistant Professor at the Schulich School of Law, as they discuss her recent paper in the DLJ, “Committing to Justice: The Case for Impact of Race and Culture Assessments in Sentencing African Canadian Offenders”

Maria explains the factors that can be included in Impact of Race and Culture Assessments and why these reports should be considered by judges when making sentencing decisions for African Canadian offenders.

Resources mentioned:
– Maria’s paper: https://digitalcommons.schulichlaw.dal.ca/dlj/vol43/iss1/12/  
– African Nova Scotian Decade for People of African Descent Coalition: https://www.ansdpad.ca/justice-working-group/
– ON Sentencing and Parole Project: https://sentencingproject.ca/
– Robyn Maynard, Policing Black Lives: State Violence in Canada from Slavery to the Present
– Black Cultural Centre: http://web1.bccnsweb.com/
– Wortley Report: https://humanrights.novascotia.ca/sites/default/files/editor-uploads/halifax_street_checks_report_march_2019_0.pdf
– J Michael MacDonald & Jennifer Taylor, “Independent Legal Opinion on Street Checks” (October 2019), online (pdf): https://humanrights.novascotia.ca/sites/default/files/editor-uploads/independent_legal_opinion_on_street_checks.pdf

Also available on Spotify: https://open.spotify.com/episode/4YLOTUpclUmeyELqkF6fwA

DLJ Podcast – Ep 09 – Government Lawyers and Legal Ethics

Join Jon and Jennifer Leitch, visiting Professor at Osgoode Hall Law School as they discuss her recent paper, “A Less Private Practice: Government Lawyers and Legal Ethics”

Jennifer discusses some of the ethical issues that arise for government lawyers, the ethical problems that came up in the St. Anne’s Residential School adjudication, and how we could develop an ethical approach that better suits the responsibilities and challenges of government lawyers.

Resources:
Jennifer’s Paper: https://digitalcommons.schulichlaw.dal.ca/dlj/vol43/iss1/10/

Also available on Spotify

Searching for a Summary Judgment Equivalent in Quebec Procedural Law

By: Katie Hammond, Assistant Professor, Ryerson Faculty of Law

The Summary Judgment

Access to justice is a major problem in Canada. Improving access to justice has been cited as the primary goal of recent civil procedure reform efforts in provinces across the country. One procedural tool that is thought to play an important role in helping this problem is the summary judgment, which allows a judgment to be delivered in a summary way without the cost and time associated with a full trial.

Reforms to the Summary Judgment Rule in Ontario

In the last two decades, considerable changes around summary judgment occurred in Ontario. The impetus for these changes began in 2006 when the Honourable Coulter A. Osborne was tasked with assessing the Ontario civil justice system and identifying areas in need of reform. Osborne’s final report suggested that summary judgments were an important tool to increase proportionality and reduce delays and costs. However, the report revealed that the existing summary judgment rule, which involved determining whether the claim or defence raised a “genuine issue for trial,” made it too difficult to succeed on a summary judgment claim, among other problems.

After the release of this report, the language of the summary judgment rule was changed as part of a wider civil procedural reform in Ontario. The initial interpretation of the new rule was relatively conservative. However, in 2014 in Hryniak v Mauldin, Justice Karakatsanis wrote for a unanimous Supreme Court, who called for a shift in the legal culture and said that judges need to manage the legal process in line with the principle of proportionality. The Court gave a much broader interpretation to the summary judgment rule, and Karakatsanis wrote that the changes to the rule demonstrate that a trial is not the default procedure, hence why the rule now asks whether there is “a genuine issue requiring trial.” These changes have led to a greater reliance on summary judgment motions in Ontario. This trend is also apparent in other Canadian provinces, many of which have also liberalized their summary judgment rules in the past few decades.

Are There Procedural Tools in Quebec that Approximate the Summary Judgment?

Even though there was a major reform to the Quebec Code of Civil Procedure and a new Code came into effect on January 1, 2016, the summary judgment was not introduced in the Quebec reform. Justice Karakatsanis, however, in Hryniak, points to two articles of the Quebec Code that have been likened to summary judgment. My paper explores the accuracy of the claim that Quebec has procedural devices that could be likened to summary judgment. I argue that there is not a Quebec procedural tool that approximates the summary judgment.

The first indicator that there are no functional equivalents to summary judgment in Quebec is that there is no historical record of summary judgment in the province. While summary judgment is a long-standing tool in the common law, there appears to be no equivalent in the civil law legal tradition. Second, the Quebec legislature did not consider summary judgment in drafting the new Code. There is no mention of it in any of the draft bills or in the transcripts from the sittings and public consultations.

Third, there are four articles in the Quebec Code of Civil Procedure (articles 209, 51 et seq. (previously 54.1), 168 (previously 165) and 154) that on the surface look like they might function like the summary judgment. Two of these are the articles identified by Justice Karakatsanis in Hryniak. In the paper, I look at each of these articles in turn. When they are examined more closely, in terms of how they operate in practice, it becomes evident that these are not functional equivalents of the summary judgment.

Finally, two post Hryniak cases—Ordres des Dominicains c CIBC Wood Gundy 2014 and Struthers c Régie des marches agricoles et alimentaires du Quebec 2015—have further explored the question of whether summary judgment exists in Quebec. Ultimately, both cases seem to posit that Quebec does not have functional equivalents to the summary judgment, and that Quebec approaches the issue in a different way.

Quebec’s Unique Procedural Tools to Engage in the Post-Hryniak Cultural Shift

This leads to a second, and perhaps more important, takeaway of the paper, which is that even though Quebec does not have a functional equivalent to the summary judgment, it has its own unique tools to engage in the post-Hryniak cultural shift towards greater access to justice. Many of Quebec’s tools either do not have an equivalent in Ontario, or the Ontario version is slightly different. Some examples of Quebec tools that give judges more control over the case and streamline the process are: (1) the case protocol, (2) case management powers, and (3) encouragement of joint experts.

In the case protocol, parties have to set out their agreements and undertakings, the issues in dispute, and the steps they plan to take to ensure the proceedings operate smoothly. They have to submit this within 45 days from service of the summons. Ontario’s only similar mechanism is the discovery plan. However, unlike the case protocol which deals with the entire case, the discovery plan only deals with when discovery will take place and its form.

The court in Quebec also has case management powers. The court, on its own initiative or on request of the parties, can convene a case management conference. During the case management conference, the court acquaints itself with the issues and takes appropriate case management measures. The court, however, is not limited to issuing case management orders at the conference—it can do so at any time to simplify or expedite proceedings so that a case progresses adequately and in conformity with the principle of proportionality. Under its case management powers, the court has the power to impose joint expert evidence.

Ontario also has a case management system that gives courts an expansive set of powers over cases in this track; however, unlike in Quebec where all cases are managed by the court, in Ontario the case management system only applies to civil actions commenced in certain regions and only if certain conditions are met.

Conclusion

An analysis of Ontario’s and Quebec’s tools for improving access to justice illustrates the unique ways that these provinces are embracing this cultural shift. What I hope readers take from the article is that there is much to be learned from looking at best practices in civil procedure in other jurisdictions and legal traditions and thinking about how these may be implanted into our respective jurisdictions. These kinds of trans-systemic analyses will be key to tackling the issue of access to justice, which remains a problem in Canada and around the world.

 

 

 

 

DLJ Podcast – Ep 08 – Regulating Federal Government Lawyers

Join Moira and Andrew Martin, Assistant Professor at the Schulich School of Law, as they discuss his recent paper in the DLJ: “The Implications of Federalism for the Regulation of Federal Government Lawyers”

Andrew discusses the potential for either a law society for federal government lawyers or a requirement that federal government lawyers be licensed in at least one province. Andrew also explains some of the nuances around restricting activism for government lawyers.

Resources:
– Andrew’s SSRN Page: papers.ssrn.com/sol3/cf_dev/AbsBy…fm?per_id=1946987
– Andrew’s paper: digitalcommons.schulichlaw.dal.ca/dlj/vol4…/iss1/6/

Also available on Spotify: https://open.spotify.com/episode/428DghU2DPMK9RUqpf4p2O