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[Introductory note: In 1929, the “Famous Five” feminist activists (Henrietta Edwards, Nellie McClung, Louise McKinney, Emily Murphy,and Irene Parlby) argued in the Supreme Court of Canada that women were “persons,” as the Canadian
constitution puts it, qualified to sit in the country’s senate. The court disagreed, four judges to one, largely on the basis of what we now call an “originalist” view – that women would not have been viewed as qualified persons in 1867, when the constitution came into force. The Judicial Committee of the Privy Council reversed in favour of the Five. The Lord Chancellor, Viscount Sankey, famously held (Lords Darling, Merrivale, Tomlin, and Sir Lancelot Sanderson concurring): “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada. ‘Like all written constitutions it has been subject to development through usage and convention.’ (Canadian Constitutional Studies, Sir Robert Borden (1922), p. 55).’”]
“The Senate’s for Party patrons,”
reads the judgment of the Chief,
“and that excludes all matrons,
So what’s their stewing beef?
While the female might be ‘people,’ historically she’s feeble,
and the law it’s clearly anti-person Nell.”
So the Five packed up their briefs, and this insult of the chief’s,
’cause it Fired ’em up as hot as deepest Hell.
They appealed to that old Darling,
and to Sankey the Lord Chancellor,
The former known for snarling
the latter an ageing bachelor
whom the Five nonetheless seduced, or at least their empathy loosed,
sitting in the glorious Council Privy.
No, not the public loos there, where persons spend a penny fare,
I mean the high Judicial Com-mit-tee!
The Supremes looked to Confederation,
and the Fathers intent originally,
“But what about the mums, then?”
asked the P.C., more correct politically.
“Never mind that we’re five brothers, we’ve all got sisters and mothers –
Like Hen, Nell, Lou, Irene and Emily.
Lords, libbers, vegetarians, we’re each of us homo sapiens
Who understand the law’s a living tree.”
So The Five pitting five against five
proved that men supreme don’t alone survive
as a matter of natural selection.
For we wouldn’t be alive,
or on Senate perquisites thrive,
unless Mum’s the word that helps describe a person.
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De minimis non curat lex (“The law does not concern itself with trifles” – an old legal maxim that never goes out of style, even if what we call trivial keeps getting bigger and nastier.)
If it’s true that the law ignores trifles,
Does that include all combat rifles,
Extant throughout the U.S.,
Where de blunderbuss non curat lex,
And the crusty old second amendment,
Is now a religious commandment?
No, the law won’t pursue those with riches,
Not even the worst sons of bitches
Who never pay their tax.
’Cause da middle class non curat lex.
(For one thing, they just can’t afford it,
For two things, the law don’t ignore that.)
The law don’t consume any truffles,
For the partnership hates office scuffles
Over billables lost on long lunches,
’Cause da lex, it non curat fungus,
And it doesn’t drink coffee or tea:
It’s Non-non! to bill time when we wee.
But the lex, it welcomes all troubles,
Your tumbles, your fumbles, your real estate bumbles
Your tussles and grumbles, your bar-room kerfuffles,
All sorrows that might plaintiffs vex,
’Cause da tsuris,* it curat da lex.
*Yiddish for “troubles.”
**If you’d like to be notified of each new posting, let me know via the “contact” page and I’ll put you on my e-mail list.**
I recently completed a book – Justice as Nostalgia: A New Theory of Justice as Integral to Culture – promulgating a notion of justice based on an archetypal approach to the social contract, an approach incorporating the conscientious neighbour (a more demanding “reasonable person,” as described in a previous post) and what I call consensus morality from among the educated, engaged public. (See the Justice page.) One chapter offers practical applications of the theory, including the following regarding annual flooding in Manitoba. I would be very interested to hear from readers regarding what their own sense of justice suggests is “right” here.
Come spring and early summer in parts of Manitoba, flooding is an annual problem. In 2011, city council in Brandon decided to divert the Assiniboine River so that a less-populated farming region would be flooded instead of a more urbanized area. In 2014, the city considered taking similar measures (dredging the Whoop and Holler Bend so that part of the river-flow would divert into a southern basin), just after those living in the rural area felt they had recovered from the earlier deliberate flooding.
The diversion is characterized as utilitarian, doing the greatest good for the greatest number. When I have asked friends about it, they immediately see this and think it is a just solution, at least to the extent that governments will “compensate” rural dwellers who have the flooding imposed on them. When I say, “Well, assume that twenty percent of the rural families deliberately had moved to that side of the river to be out of the flood plain,” they generally hold to their position but start to become defensive. Then I ask them, “What if one of those families was yours, and it was your home and livelihood at risk?” Then they get annoyed with me (for snapping away the cloak of invisibility on the farmers’ suffering?), and feel that I am “moralizing,” perhaps suspecting (correctly) that I cannot agree that the diversion is necessarily a just measure, or even that it really works a greater good. Gamely, I press on, “Never mind the damage to the agricultural land and possibly the water table, what about the intangibles, such as the impression among the affected farmers, not to mention rural dwellers generally, that, yet again, the city slickers are pushing the dirty end of the stick on them?” This is the challenge of moral consensus, being able to put yourself in the shoes of the sufferer, staying objective but with a subjective understanding.
Naturally that is what a court would be obliged to do if the farming families brought a constitutional challenge, arguing, for instance, that the measures impose an unfair (unequal) burden on them compared to other communities, particularly those who suffer or do not suffer the flooding according to how nature behaves in the normal course (which of course includes longer-term influences caused by human settlement and exploitation). We can imagine that the court would agree that there had been differential and perhaps even arbitrary treatment, but it also might agree with my friends that the treatment is “demonstrably justified in a free and democratic society,” as the constitution puts it, in permitting authority to over-ride protections accorded by the Charter of Rights and Freedoms.
So do we have yet another hard case in the utilitarian-contractarian debates regarding moral philosophy. In a world of perfect justice, presumably the flood burden would be equally shared. Perhaps the community could agree that compensating the farm-dwellers – in the form of money, help in rebuilding, counselling, etc. – would be a fair exchange for the river diversion. Perhaps their restored properties would put them in a better position materially, and thus be more reasonably “compensatory.” You could say that the contractarian mitigates the utilitarian in this way, in a sort of compromise common in our societies. For example, while the inability of a couple to “get pregnant” in itself presents no compromise to one’s bodily security, and while it must remain a lower priority to serious disease and injury when we allocate health-care resources, we sometimes devote public money to funding in vitro fertilization, albeit for a limited number of trials. Most likely, the greater good, at least in terms of resource-allocation, is in not funding the trials at all. On the other hand, artificial insemination could produce another Einstein, not to mention provide a greater communal sense of sharing the burden of a disability.
In the Assiniboine River case it is hard to know what a moral consensus would be, should authority consult the wider populace. My friends seem to feel that, even if we agreed that it was “more moral” just to permit nature to take its course (and it is by no means clear that we could agree on this), such a decision would be destructively impractical, not to mention fundamentalist-extremist in the moral sphere. Given the weight of history, I remain extremely uncomfortable obliging a non-consenting minority to bear an unequal burden.
Lord Shaw of Dunfermline once remarked that if Res ipsa loquitur weren’t Latin, it would never have been elevated to the lofty heights of legal principle.* Eighty years later, the Supreme Court of Canada agreed, and the historic phrase has been banished from law practice in Canada. The federal Law Reform Commission expressed something of the same view about all Latin in the Criminal Code. In 1991 it encouraged deletion even of terms that had become everyday speech, such as in camera and ex parte. Since then, legal Latin – once the language entire of courts and statutes in the Anglo-Canadian world – has been pretty much ethnically cleansed from legislation and even judgments in many jurisdictions. In 2013, the British Columbia Court of Appeal issued a practice directive requiring lawyers appearing before it to “avoid overly formalistic language such as ‘this Honourable Court,’ ‘hereinafter,’ “heretofore,’ ‘aforesaid,’ or ‘learned.’ Use Latin phrases only when necessary.” Where the word learned is banned, can Latin phrases ever be seen as “necessary?” And “formalistic” is not, uh, formalistic?
Informality can be inclusive, sensible, and pro bono publico. But unilateral injunctions and private hearings will always sound more lopsided, secretive, and dumbed-down than advocacy heard ex parte and in camera. The Latin phrases carry historical and procedural nuance invisible in English. Ex parte motions are certainly unilateral, but generally we seek them in circumstances of great urgency and, occasionally, sharp (unfair) practice. No matter what you do to a technical language, it remains technical to some extent, and while wider access to justice is undoubtedly desirable, we will always require technicians to navigate the law. For better or worse, given its necessary complexity and comprehensiveness, the “people’s law” will always require specialist interpreters and analysts. Picking on Latin as a supposed barrier to justice is a little like calling someone Ms. but still denying her equal pay for equal work.
It surrenders to intellectual laziness, and smacks of the condescension of noblesse oblige. You could argue that such censorship, as political correctness, is yet another symptom of the European guilt-reflex endemic these days, as though correcting historical injustice resides in our own self-effacement, even as we enthuse over multiculturalism – Canadians of European descent being notorious for “I’m sorry,” even regarding our most benign self-expression. On this view, because the colonial imperialism of some of our ancestors caused serious harm, we must be fatally flawed, as with original sin, as though those ancestors had not also built nations that have proved to be the world’s most admired expressions of civil society. It’s a paradoxical, negative, often sanctimonious iteration of elitism or exceptionalism, and shows Quebec to be undoubtedly distinct: Quebeckers generally reject this self-denial as a curative for historical wrongs done to others.
Defensively, bigots glom on to these conspicuous expressions of cultural guilt, turning them back on their subscribers. Rational and empathetic as such impulses of reconciliation might seem, could it be that, paradoxically, they help fuel the irrationality and defensiveness of Donald Trump’s supporters, and maybe even some Brexiters? Many of these folks feel “dissed” by the modern “liberal” ethos of extravagant “inclusiveness,” excluded from it and scorned as others are invited into the expanding tent. They lack the intellectual subtlety to respond more reasonably: if the latest thing is tribalist grievance collection and assertion, they want in.
True enough, the Roman empire fell 1500 years ago, and Latin has had a good run long past that, in our (sacred) Law and our law, never mind that it will always run rich, if mostly unnoticed, in the blood of English and French. Robert Megarry’s Miscellany-at-Law: A Diversion for Lawyers and Others went through seven printings between 1955 and 1981 with its Latin asides and maxims untranslated. Yet in his A Second Miscellany-at-Law, published in 1973, Megarry writes that he has “recognised the accelerating disappearance of the classics as staple of education by inserting in the footnotes translations of those Latin phrases which are not sufficiently well known or explained by the context.” It lately occurs to me that a perfect thumbnail characterization of Donald Trump would be compost mentis, but I’m not sure how widely I can share it: to really get the shit-for-brains aspect, you have to know that when someone was mentally fit, law and medicine used to call him compos mentis – again, shorthand for the more complex “The guy’s got his wits about him.”
So Latin itself refuses actually to die. Like dark chocolate versus the Snickers bar, it never quite gives in to populist whim and self-satisfied ignorance. “Foreignisms,” and especially Latin and Greek, can be pompous and obscurantist. But to cleanse them not only eradicates the patina of a history shared by millions of people – the comfort and also the wisdom of experience – but narrows discourse and restricts wit.
As for res ipsa loquitur, it simply suggests that when the dog escapes your fenced yard, somebody must have left the gate open – in the jargon, there’s “a presumption of negligence”: the thing speaks for itself. It makes you wonder if Lord Shaw and our high court would have picked on the maxim if we had translated it, more vulgarly, “Things are looking bad for Junior.”
* Ballard v. North British Railway Co., 1923 S.C. (H.L.), 43 at 56. Literally translated, the phrase reads, “The thing speaks for itself.”
No, it isn’t a poisson d’Avril, which is how they say “April Fool’s Joke” in Quebec. On April 1 the province’s court of appeal held that, in blowing “flutes” during a three-year labour dispute, picketers did not attempt to “intimidate, threaten, impede or otherwise harm or attempt to harm, directly or indirectly, the free movement and work of the applicants as well as their various clients, associates, suppliers and staff, or all other persons wishing to enter or leave the said establishments or to freely undertake their work or activities there.”*
The quoted bit is the meat of an injunction issued from a lower court, against unionized employees locked out by car dealers and automotive repair shops in Saguenay Lac-Saint-Jean. Before legislation ended the dispute, the employers had brought 90 contempt motions. This one, concerning unionist Alexandre Caron, actually stuck – at first.
Caron was fined $950 for (among other things) harming or attempting to harm employees, clients, and suppliers of Automobiles de Royaume, and their work there, by loudly blowing a trumpet and flutes (sometimes during client meetings), intimidating them by photographing them at his employer’s premises from an adjacent property, as well as calling the used-car sales manager a “little fatso” and telling him to get “back in the garage and eat your baloney.”
This sort of cacophony continued for another couple of months, it seems, at up to 100 decibels (apparently with the aid of speechifying over loud-hailers, perhaps as a response to complaints about the “music”), because the employers then managed to get another court order, limiting the noise to 60 decibels. Presumably this was loud enough to protect the unionists’ constitutional right to throw tantrums without unduly impeding business operations. But by then, Caron had been ordered to show cause why he should not be convicted of disobeying the injunction.
On that contempt motion, the judge below found that not only had Caron exercised his collective bargaining rights by blowing a trumpet and flutes, but also a kazoo, whistles, and an “air pump.” (Maybe he attached it to some bagpipes?) “The frequency, duration, repetition and intensity of the noise,” the motion judge held, “reached intolerable levels, making it difficult, nay, impossible, for the applicant’s employees to work” – thereby constituting a contempt by disobedience of the injunction.
But the Court of Appeal has disagreed, two judges to one. “Regarding noise,” Justice Levesque ruled for the majority, the injunction “was ambiguous.” It “made no mention of the applicants’ management or their employees. It referred only to ‘the applicants’ work,’” which comprised “the sale, maintenance or repair of motor vehicles.”
Where the dissent thought the employers were perfectly entitled to get judicial assistance in turning the soundtrack down from fortissimo, the majority held this attempt to preserve their businesses against them, given that the employers had sought the noise-reduction order after Caron was cited for contempt: seeking that second order, the majority said, meant the employers admitted the ambiguity about noise in the original injunction …
Never mind the introduction of loud-hailers, which seem to have allowed the majority to imply that the noise could have increased between the time Caron was cited for contempt and the date when the court issued the noise injunction. The din probably did get louder, all right, though the court does not say what that has to do with whether the previous non-music impeded business unduly. In any event, the majority decided in Caron’s case, there seemed to be “no proof that the noise was meant to impede or limit work” or “proof beyond a reasonable doubt that it intimidated” those still working.
The emphasis is mine, because last year the Supreme Court of Canada made crystal clear that the test for contempt by violation of a court order (here, the injunction) is not whether the accused person intended to thumb his nose at the court. Contempt of a court order occurs when the accused intentionally performs an act the order forbids (or an act contrary to what it demands) – in this case, acting to disrupt the employers’ operations beyond conventional, lawful picketing. What else would Caron have meant to do with his “music”? Whether he thought he acted within the injunction’s terms is irrelevant.
As a society, we seem to have become terrified of peace – of being alone with our own thoughts, or perhaps of the poverty of our materialism, staring at phones instead of the flowers and trees, playing boom-boxes in SUVs instead of listening to the birds and wind, demanding Wi-Fi in wilderness areas instead of letting our minds wander. Fair enough, the contempt remedy is meant to be a last resort, and one can imagine how frustrated the unionists must have become during three years of lock-out. But it is hard to know where the majority judges imagine that distracting but lawful noise ends and intimidation, harm, or impediment begins.
For three years the unionists were already picketing, shouting, filming, slanging off those still working, using mirrors to reflect blinding light into the workplaces, and so on. Nobody was telling Caron that he couldn’t sing “Solidarity Forever” or chant “No justice, no peace or oil changes.” How do ear-splitting flute solos (one imagines screechy plastic recorders rather than silver Yamahas and boxwood Olwells) amount to legitimate collective bargaining, particularly in the face of a court order prohibiting workplace harassment, and more particularly when balanced against the rights and well-being of one’s fellow workers? As the decibel level of modern life increases, when will we pick up a loud-hailer and shout above the din that enough is too much – that, from the invention of the wheel forward, technology has brought us all this way, only to see us turn it into Frankenstein’s flute-playing monster?
*The judgment is in French. The quotations and paraphrasing are from my own translation.
It is such a compelling legal fiction that it has its own celebrated poem, as well as a Latin maxim: Cuius est solum, ejus est usque ad coelum et usque ad inferos, literally, “Whoever holds land holds it all the way to the heavens and all the way to Hell.” As William Empson puts it in “Legal Fiction,” his 1928 poem inspired by the principle, “the law makes long spokes of the short stakes of men.”
The maxim is often said to originate with the 13th-century scholar of Roman law, Accursius, although Yehuda Abramovitch traces it to pre-Christian times among Jews, in contracts for real property. He gives an example of a contract in England, in 1280, conveying lands between Jews “from the depth of the earth to the height of the sky.” Possibly racial prejudice has obscured this Jewish provenance in Anglo-Canadian law.
Since the nineteenth century, at least, the fiction has never enjoyed this extensive application, such that sometimes it is more cautiously styled a presumption. Even in 1870, the English judge George Denman described it as a “technical rule,” albeit while finding a defendant liable in trespass because his horse bit and kicked his landlord’s mare (violated the landlord’s “air rights”) through a fence separating the two properties. Its scope has drastically been whittled down further by technological development – particularly communications infrastructure (utility poles and the like) and aviation.* At this writing, the widespread popularity of “drone” aircraft, now readily accessible to peeping Toms and break-and-enter specialists, has reinvigorated the debate as to “how low you can go” in the insistence on air and attendant privacy rights. Drones do not simply move briefly through air space like passenger jets or satellites (or bullets: see the next paragraph); they customarily hover like their namesake bees.
As early as 1815, Lord Ellenborough proved prescient about these developments in a case asking whether, in nailing a barber’s sign to the side of his premises, Rudd trespassed on Pickering’s land where the sign projected over it:
I once had occasion to rule upon the circuit that a man who, from the outside of a field, discharged a gun into it, so that the shot must have struck the soil, was guilty of breaking and entering it. . . . But I am by no means prepared to say that firing across a field in vacuo, no part of the contents touching it, amounts to a clausum fregit [i.e., a trespass]. Nay, if this board overhanging the plaintiff’s garden be a trespass, it would follow that an aeronaut is liable to an action of trespass at the suit of the occupier of every field over which the balloon passes in the course of his voyage.
Then, too, for some time there have been such considerations as occupier-owned apartments stacked atop one another in multi-storey buildings. How does Blackacre own everything above her when Whiteacre occupies 301, Greenacre 401, and so on?
As for drones, Sir Frederick Pollock proved visionary there, in his 1887 treatise on torts: “At Common Law it would clearly be a trespass to fly over another man’s land at a level within the height of ordinary buildings, and it might be a nuisance to hover over the land even at a greater height.”
Yet the maxim’s claim seems so extravagant – godlike – that Empson was moved to deflate it in his poem, concluding that such a “well fenced out real estate of mind” is, in the end, a mere candle’s shadow lit by human vanity – an arrogant pretext that we really own anything of nature’s empire, that we can just magic up our short stakes into long spokes.
* The statutory minimum cruising altitude generally for “aeroplanes [is] 1,000 feet above the highest obstacle located within a horizontal distance of 2,000 feet from the aeroplane.” Bemusingly, when Manitoba purported to tax airlines for liquor they sold while flying through the province’s airspace, the Supreme Court of Canada shot down the scheme: Manitoba v. Air Canada,  2 SCR 303.
Primary sources for this post (adapted from my forthcoming encyclopedia of legal fictions and presumptions, and constructive, deemed, and implied entities): Yehuda Abramovitch, “The Maxim ‘Cujus Est Solum Ejus Usque Ad Coelum’ as Applied in Aviation,” McGill L.J. 8:4 at 251; Stuart Ball, “The Vertical Extent of Ownership in Land” (1928), U. of Pennsylvania Law Rev., 76:6; Canadian Aviation Regulations; Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P. 214; Pickering v. Rudd (1815), 4 Camp. 219; Troy A. Rule, “Airspace in an Age of Drones,” Boston U. Law Rev. (2015), 95:155 at 155-208.
For more on the Empson poem, see my The Structures of Law and Literature.
As I write, it is May 19, feast day of the patron saint of lawyers, St. Ives, a.k.a. Yves, Yvo, Ivo, Ervoan, and Evona. He lived from 1253 to 1303, and was canonized by Pope Clement VI in 1347. Still, his fate at the hands of folk culture proves that, no matter what benefit lawyers have brought to human society, throughout history we remain the dog who’s acquired a bad name, tarred with the sticky brush of the shyster. On this day, then, I propose that we acknowledge the thousands of lawyers who have devoted their careers to public service and pro bono publico – legal aid, civil rights, social reform, conscientious government, children’s advocacy, the terminally ill and mentally dysfunctional, duty counsel (public defender) work, and, yes, ethical business, family, and criminal law, as well. They are all essential to the cultural fabric.
From Ives’s days as a law and theology student, and throughout his adult life as a lawyer and priest (simultaneously) in Brittany, he devoted himself to service and self-sacrifice. Giving up his clothing, food, and even his bed to the poor and compromised, he became known as “the pauper’s advocate.” Of the scant reporting of his law cases, the most celebrated (or legendary) is his defence of “the widow of Tours”:
Two travelling salesmen had lodged at the woman’s home, leaving with her a box of what they said were valuables, instructing her to return it only to both of them, together. One of the men, Smith, returned and, explaining that his colleague Jones was otherwise engaged, obtained the box from the landlady then fled with it. After Jones returned to discover the box was gone, he pursued the widow in the ecclesiastical court, claiming she had broken their agreement about safeguarding the box. Ives obtained judgment for the woman when he insisted that Smith also appear before the bishop’s court, presumably with the box. (If both men had a claim, he argued, they both should attend.) This called the con-men’s bluff, such that they admitted their scam and the box was shown to contain nothing of value. Some versions of the case say it was scrap iron; I base my account on that of the famous American legal scholar, John Wigmore, a champion of the saint’s, who gives his name as Ervoan Heloury Kermartin.
Wigmore, the secular patron saint of evidence law, accepts at face value the tales of miracles Ives is said to have performed from his tomb and that led to his canonization – supplying the names of thieves, curing a growth on a young woman’s eye… . The professor concludes:
Even a brief perusal of his recorded career makes one realize that here we have a character who may well represent the ideal for a profession. He was made a calendar-saint … because from his adult youth for thirty-five years he lived consistently an ideal life of service and sacrifice in the cause of Justice. … And he had pursued this career as an ordinary man, amidst the very same everyday conditions that surround any lawyer and any judge at any time in any country. Well may he be enshrined in our aspirations as an ensample of the ideal of Justice attainable in real life by a member of our profession!”
As I’ve suggested, whether through envy or reflexive cynicism about a profession with ready access to great power and material comfort, a demonic inversion of St. Ives’s story grew up. It was reported as early as 1688 by William Carr, who says he learned it in Rome from a man showing him “a Chapell dedicated to one St. Evona a Lawyer of Brittanie.” Carr writes that Evona went to the pope to complain that lawyers had no patron saint. (There is of course Thomas Becket, but lawyers seem to be only a sideline in his patronage, as he devotes himself primarily to the greater need of politicians, many of whom are, indeed, lawyers with an even worse dog’s name.) The pope instructed Evona to go to the Church of St. John de Latera and while blindfolded pick a candidate for patronage from the statues there. Evona blindly fumbled about until he selected the statue of Satan being ground under St. Michael’s feet. This, Carr claims, instigated a terminal depression in Evona. Upon learning he was a lawyer, St. Peter turned him away from Heaven’s gate, but relented when Evona recounted his pious life as advocatus pauperum. Carr says that this inspired “a witty Poet” to inscribe on Evona’s tomb: St. Evona un Briton, Advocat non Larron, Haeleluiah – “St. Evona, a Breton, lawyer who isn’t a crook, hallelujah!”
This “inscription” seems to be more folk adaptation, a version of what Wigmore tells us is “the saying which has fixed forever [Ives’s] place in the annals of literature, ‘Advocatus sed non latro, res miranda populo,’” “A lawyer yet not a bandit, a thing wondrous to the people” – in other words, a miracle in itself. (Some contend that this Latin “saying” was affixed to Rogier van der Veyden’s portrait “A Man Reading (St. Ivo?),” circa 1450 and now at London’s National Gallery.* See the illustration to the right.) So even in the hagiographic (nice) version of the story, there is a sarcastic dig at lawyers. As I’ve suggested, this is not exactly surprising, given that in the Christian bible, no less, it is “a certain lawyer” who asks a smart-alecky question about duty that prompts Christ’s “Parable of the Good Samaritan.”** Luke 10:25 says the lawyer baits Jesus, “tempting” him on cross-examination with, “What shall I do to inherit eternal life?” On St. Ives’ day, the answer is made graphic.
*In his Lives of the Saints, Baring-Gould says that the “popular conscience protests” against Ives’s sainthood by singing these words. Baring-Gould adds that Ives’s “emblem” was a cat, and that the feline symbolizes the lawyer, who lies in wait for prey, “darts on it, … and when he has got his victim, delights to play with him, but never lets him escape from his clutches.” So not only the dog gets a bad name…
**Thus Lord Atkin’s use of the story in our leading case on duty at private law, Donoghue v. Stevenson. See my The Structures of Law and Literature for a detailed discussion of this as central to our cultural discourse.
Primary sources for this post:
William E.A. Axon, “Ivo, Saint and Lawyer,” in The Lawyer in History, Literature, and Humour, William Andrews, ed. (London: William Andrews, 1896), 28.
William Carr, Remarks of the Government of Several Parts of Germanie, Denmark, Sweedland, Hamburg, Lubeck, and Hansiatique Townes (Amsterdam, 1688), 80.
Marc Galanter, Lowering the Bar: Lawyer Jokes & Legal Culture (Madison: U. of Wisconsin Press, 2005), 97-98.
John Henry Wigmore, “St. Ives, Patron Saint of Lawyers,” Fordham Law Review (1936), Vol. 5, No. 3, 401-07.
My daily work includes writing a book on judicial notice, the doctrine whereby courts and administrative tribunals accept certain matters as “factual” (because they’re notorious or subject to ready verification) although they are not put forward according to the rules of evidence. Courts have noticed, for example, that the floors in banks can be slippery when it snows, and that older people generally have a harder time finding work. While the book is only about a third completed and the doctrine dates from the middle ages, I’m certain that a case decided just last month provides the most remarkable example: The Gospel of the Flying Spaghetti Monster.
Stephen Cavanaugh has argued before the United States District Court that officials at the Nebraska State Penitentiary, where he is an inmate,* violate his constitutional right to religious expression: the prison has refused to let him practise Pastafarianism, more formally known as FSMism and the Church of the Flying Spaghetti Monster.
The Abraham and Moses of Pastafarianism is Bobby Henderson, who founded the church in 2005, when he was 25, in an open letter to the Kansas Board of Education. As a sort of rear-guard assault on the teaching of “intelligent design” in Kansas schools, the letter proposes that the curriculum should include Pastafarianism as well. Given that intelligent design purports to be scientific despite the absence of verifiable evidence to support it (as opposed, say, to the Darwinian theory of evolution or Newtonian theory of gravity), the argument goes that one such theory is as good as another, and therefore deserves equal time.
Pastafarianism, Henderson explains, is “today’s fastest-growing carbohydrate-based religion,” and he notes that it serves to dispel “such malicious myths as Evolution (only a theory), science (only a lot of theories), and whether we’re really descended from apes (fact: Humans share 95 percent of their DNA with chimpanzees, but they share 99.9 percent with Pirates!).” Its creed holds that the universe is ruled by the Flying Spaghetti Monster (the FSM of FSMism), whose sovereignty is acknowledged by believers who, inter alia, “pirate-speak” while wearing Long John Silver costumes, eat a great deal of spaghetti (also styled as taking communion), and celebrate noodlecentric holidays such as Pastover and Ramen Dan.
So much for ritual. As for the science validating the doctrine (in the vein of intelligent design), apparently it is more than an article of faith that gravity is caused by the Monster’s pushing down on us with His Noodly Appendages, and that global warming is caused by the “decreasing number of pirates on the high seas.”
District Court Judge John M. Gerrard has proved to be the Doubting Thomas in all this, ruling that Pastafarianism is not a religion “within the meaning of the relevant federal statutes and constitutional jurisprudence.” Rather, it constitutes “a parody, intended to advance an argument about science, the evolution of life, and the place of religion in public education.” Nor does the penitentiary “substantially burden” Cavanaugh in the “exercise” of Pastafarianism, the purported encumbrance apparently being denial of his right to wear religious costume, said pirate gear.
Over the years, courts have taken judicial notice that beer is “not necessarily hurtful, any more than the use of lemonade or ice-cream” (Beebe v. The State, 6 Ind. 501, 519 (1855)), and that “it has never been said” that tobacco’s “preparation and manufacture into cigars were dangerous to the public health” (Jacobs’s Case, 98, N.Y. 98, 113 (1885). As well, there was a time when judges would have noticed without supporting evidence, accurately and soberly, that racial discrimination was lawful, extending even to human slavery. So perhaps applying the doctrine here is not as strange as it first appears. Explicitly stating that he does not pass judgment on the sincerity of Cavanaugh’s belief, Judge Gerrard takes judicial notice of its foundational document, The Gospel of the Flying Spaghetti Monster, which was not entered formally into evidence:
The Court has considered whether it is appropriate to consider this text, given the procedural posture of this case. But the Court finds that it is judicially noticeable – the contents of the book are capable of certain verification, … and Cavanaugh’s complaint expressly refers to the text as a basis for his claims. … Given Cavanaugh’s reliance on the book, the Court views judicial notice of it as effectively the same as taking judicial notice of the Bible. …
… and, presumably, of Charles Darwin’s On the Origin of Species.
* Cavanaugh is serving two to four years for attempted first-degree assault with a hatchet, and one to two years, consecutive, on a weapons conviction related to the hatchet.
“It is therefore with a great deal of trepidation that I find that the Gold Seal case was wrongly decided.”
Provincial Court Judge Ronald LeBlanc might well feel trepidatious. His honour sits on the lowest law court in New Brunswick, and Gold Seal is a Supreme Court of Canada decision that has stood as settled law since 1921.
In R. v. Comeau, LeBlanc J. boldly goes where no provincial court judge has gone before, at least not in active memory. On April 29, Comeau struck down the subsection in New Brunswick’s Liquor Control Act (LCA) that prohibited anyone to “have or keep liquor, not purchased” from the province’s Liquor Corporation. LeBlanc J. reasons there that the prohibition violates section 121 of the Constitution Act, 1867: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” And sure enough, as purported constitutional violations go, the LCA prohibition walks like a lame duck. The trouble is, higher authority, which is to say Gold Seal, says it doesn’t talk like one.
It all started when Gerard Comeau made a booze run to La neighbouring belle province, then motored home to Campbellton, N.B., with 15 cases of beer, 1500 ml. of whiskey (two bottles) and 1.5 litres of liqueur, all of it apparently much dearer if you buy it locally through “the Corporation.” The LCA provision permitted “liquor not in excess of one bottle or beer not in excess of twelve pints purchased” in another province or territory, even if you received it as a gift. Then again, apparently the N.B. police look the other way for trafficking (across staid lines, you might say) in four cases of Quebec beer or less. So, for New Brunswick drinkers, Gold Seal was already overturned, more or less, de facto if not de jure.
It must be said, too, that Justice LeBlanc’s decision is remarkable for more than its hierarchical chutzpah, however trepidatious. It is well written (which sadly is not a given in these documents, and excepting the judge’s multiple mistakings of “regards” for “regard,” although probably that settled rule has been overturned de facto, as well), and it provides a thoroughgoing, highly readable history of Canadian constitutional history. It would serve well in high school history and first-year law classes.*
As both the press and LeBlanc J. note, his decision, if it stands, could have far-reaching consequences regarding interprovincial trade. In Comeau, the judge points out that Gold Seal is the foundation of “marketing boards such as for wheat, eggs, milk and poultry, provincial liquor,” as well as federal trade barriers and other regulation of every sort of interprovincial trade. But of course there’s the rub.
His honour puts the dilemma plainly, himself: “ The current state of the law in Canada on the meaning and effect of section 121 of the Constitution Act, 1867 is clear and unambiguous: section 121 prohibits the establishment of customs duties affecting inter-provincial trade in the products of any province in Canada. The principle of vertical stare decisis [that is, the rule that courts generally must follow legal precedent, and especially decisions of courts above them in rank] mandates that I follow that law and not deviate from it unless an exception is warranted.”
The exception that Justice LeBlanc says permits him to “overturn” the current state of law is new evidence: “if the evidence that was presented before me at this trial had been brought to the attention of the justices of the Supreme Court of Canada in their deliberations on the meaning of section 121, particularly when the Gold Seal case was decided in 1921, the result would have been different.”
Gold Seal does seem to torture the syntax of s. 121 and its context in the nation’s foundational document, designed to establish a commonwealth of mutually supportive regions. It holds that in specifying that goods should “be admitted free” province to province, the fathers of Confederation meant “free of duties and other charges,” not free trade. And through the testimony of experts on Canadian constitutional history, albeit nearly a century after Gold Seal, Mr. Comeau (represented by the Canadian Constitution Foundation) argued convincingly that this is too narrow an interpretation, biased toward provincial self-interest.
Another notable quality of Judge LeBlanc’s decision is that, while it seems to be extravagantly revisionist and activist, in fact it is an unusual Canadian example of judicial originalism – of closely reading the text and historical setting of the constitution to determine what its writers intended. Generally Canadian constitutional law adheres to Lord Sankey’s dictum – in the famous case holding that “persons” entitled to sit in the Senate includes women – that the constitution is “a living tree capable of growth and expansion within its natural limits.” But that was on an appeal from the Supreme Court of Canada to the Judicial Committee of the British Privy Council – from the country’s highest appellate court to the Commonwealth’s highest. Provincial Court Judge LeBlanc quotes Lord Sankey, yet bases his decision to “overturn” Gold Seal on what defence experts in 2016 tell him the Fathers must have intended 149 years ago: a confederation in which each part of the country contributes its resources to the good, and coherence, of the federated whole. So it would appear that, legally speaking, “trepidation” means setting the cat among the pigeons.
*For further perspective on this case, from an historian, see Chris Moore’s blog. Chris has me coming down harder than I think I did here on LeBlanc J., but he adds welcome expertise on the historical evidence.