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LAWmazing #8 - Canada

Pillory for Blasphemy

It is a little-known fact that in Canadian legal history, the pillory has a place d'honneur. According to Volume 1 of William Kingsford's History of Canada, Quebec, then a colony of France and known as le Nouveau France (later, Lower Canada), was given a new governor with a very long name, Charles Huault de Montmagny.

De Montmagny arrived in 1636 and one of the first "improvements" he brought to the small town of Québec (now Québec City), was to install a pillory. The pillory was well used to punish to specific crimes: drunkenness and blasphemy. It was used on more than one occasion.

Nellie McClung, Phenomenal Feminist

"Amazing" is the least of words one ought to use in describing Nellie Mooney McClung (1873-1851) of Winnipeg. She came of age in an era where women, even in North America, were still not considered persons in the eyes of the law and most especially, they were not given the right to vote (aka women's suffrage).

McClung became the Manitoba spokeswoman of what was known at the time as "women's liberation". Discussions, meetings, begging, legal arguments, ... nothing worked so in January, 1914 she that a delegation of women and confronted the Premier of Manitoba, Rodmon Roblin.

Roblin kept his cool and politely listened but ultimately rejected what Nellie McClung was demanding. unfazed,McClung took to the streets and organize the extraordinary publicity campaign in which small billboards and posters plastered and prominent public places across the province asking for signatures on a petition to force the government to give them the right to vote. That petition received 44,000 signatures enough to win them the vote and to run for public office, in 1916.

The two other Canadian prairie provinces, Alberta and Saskatchewan were watching carefully and rather than alienate a large body of imminent voters, wisely conceded the right to vote and to hold public office to women in that same year, followed by the federal government of Canada in 1917 and gradually all other Canadian provinces ending with Québec in 1940.

McClung had not done it alone but her spirit was often the guiding light of a David v Goliath movement.

The Fire & Chicken Oath

On October 26, 1902, at Westminster, British Columbia, British Columbia Supreme Court justice Martin had before him a number of Chinese witnesses in The King v Ah Wooey. We let the official law report speak to the record:

On a Chinese witness, Chong Fon Fi, not a Christian, being called for the Crown, it was proposed to swear him through the interpreter in the manner generally adopted in the Courts of this Province, i.e., by writing his name on a piece of paper and burning it, at the same time declaring that he would tell the truth: the consumption of the paper by fire signifying the fate of his soul if he should fail to do so.

Wilson (lawyer): I object to this form of oath and am instructed that there is another form of greater solemnity and which will be more binding on the witness' conscience; it is commonly called in this Province the Chicken oath, and I ask in a case of this gravity that it be administered.

Whereupon His Lordship interrogated the local interpreter, Charlie Loo Fook, and also the official interpreter from Victoria, Yip Wing, who was present in Court assisting the Crown, and instructed them to examine the witness on the point, which being done, they informed the Court that the oath which is known to the Chinese in British Columbia (almost all of whom come from the Province of Canton) as the King's oath, or, as the white people call it, the Chicken oath, was the more binding....

A discussion arising on the form of said oath, it was finally settled by the interpreters, and written on yellow Chinese paper as follows:

Being a true witness, I shall enjoy happiness and my sons and grandsons will prosper forever. If I falsely accuse (prisoner) I shall die on the street, Heaven will punish me, earth will destroy me, I shall forever suffer adversity and all my offspring be exterminated. In burning this oath I humbly submit myself to the will of Heaven which has brilliant eyes to see. The 27th year of the reign of Kwang Su, the 16th day, the 9th Moon.

The witness having signed his name twice, and a cock having been procured, the Court and jury adjourned to a convenient place outside the building where the full ceremony of administering the oath was performed, as follows: by a block of wood, punk sticks, not less than three, and a pair of Chinese candles were stuck in the ground and lighted. The oath was then read out loud by the witness, after which he wrapped it in Joss-paper as used in religious ceremonies, then laid the cock on the block and chopped its head off, and then set fire to the oath from the candles and held it until it was consumed.

That is not the end of it. In the official law report, the editor added a footnote explaining that a saucer can be used too whereupon breaking the saucer, the witness is told, in grave tone:

"You shall tell the truth.... The saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer."

12-Year Old Daughter 2, Father 0

Justice Suzanne Tessier is a rookie judge, appointed in June 2007, but one who takes her parens patriae responsibilities to heart.

IHow I Think You Should Raise Your Childn a family law case before her in 2008, the judge heard evidence that a 12-year old daughter had defied her father's house rules and his express order to stay off the Internet. In the result, it was his wise decision to ground his daughter and cancel her participation in a three-day school trip.

But this child had a secret weapon.

She had been appointed a child advocate as part of her parent's custody dispute and she got her lawyer excited about her rights.

The child became plaintiff and asked the Court to review her punishment.

That's when just plain silly became outright asinine when the judge empowered the girl's defiance of parental authority, and canceled the father's punishment, ruling that it was excessive.

Beaudoin's client appealed the decision to the Quebec Court of Appeal which, dismissed the appeal on April 6, 2009.

[Editor's note: The formal name of the case, to preserve anonymity in Quebec family law files, is Droit de la Famille 081485, 2008 QCCS 2709. The Quebec Court of Appeal decision is Droit de la Famille 09746, 2009 BCCA 623. Both are available online but in the French language only.]

Fender Will

In the Canadian prairies, near Rosetown, Saskatchewan, Canada, on June 8, 1948, farmer Cecil Harris wrote his will while fatally injured, pinned down under a tractor.

Holograph will of Cecil HarrisHe etched his holograph will onto the fender of his overturned tractor, using a pocket knife:

"In case I die in this mess I leave all to the wife. Cecil Geo Harris."

He was only found at 10 PM and was taken to hospital but died of his injuries.

The Canadian court noted that Saskatchewan recognized holograph wills and since his handwriting was not in issue, allowed probate of the will etched on a tractor fender, showing the length to which the court's will go to see that a testator's last written wishes are respected.

The Wannabe Jock Lawyer

Every lawyer ... well, almost every lawyer seems to have hidden in his professional or personal c.v. some kooky, nutty amazing achievement. We don't know that many that well but we do know one. Canadian attorney Lloyd Duhaime (hmm ... his name sounds familiar ...) ran from Quebec City to Baie-Comeau to raise $5,000 for a charity (United Way) in 1989, completing the 250 miles (400km) in eleven days.

Big deal you say?

Jock LawyerWell .... in 1992, this same lawyer was the goaltender for a team that set the world record for the longest ever ice hockey game, even collecting an assist and a penalty in the 52-hour marathon on ice recognized by the official Guinness Book of World Records along with his teammates for the achievement.

And then, on Monday, November 16, 1985, he successfully argued an unemployment insurance case before Justices Jean Beetz, W. R. Macintrye and Bertha Wilson of the Supreme Court of Canada only 2 days after being called to the bar (Canada v Gagnon).

Crease Does It All

Henry Pering Pellew Crease (1823-1905) did just about all there was to do in keeping law and order in the then-British colony of British Columbia in the 1860s.

He was born in England, went to university there including law school and was admitted to the bar through the Middle Temple in 1849. He decided on joing in on the great family adventure with his parents and sailed to the new colony of Upper Canada. But he went back and forth between Canada and England until he made what would be a more permanent move to Vancouver Island in 1858.

He was the first lawyer to practice law in British Columbia when he was given his credentials in 1858. In 1861, he held the most senior politocal post for a lawyer, that of Attorney-General (not that there could have been a plethora of qualified candidates). Then, in 1870, he was appointed a judge of the British Columbia Supreme Court.

His name lives on in the much renamed and much amalgamated law firm still operating in Victoria, British Columbia but which now goes, circa 2014, by the name of Crease Harman. It was previously Crease and Company. The law firm says that it is the "oldest law firm in British Columbia, extending back to 1879".

REFERENCES:

The Editors wish to thank Dr. H. Kope of Victoria, British Columbia for providing both suggestions and some preliminary information on the articles on the pillory, Mrs. McClung and H. Crease. Dr. Kope is in no way associated with the content of this article including the views or opinions expressed. In the unlikely event that there are any errors or omissions, all are those of the author Mr. Lloyd Duhaime.