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Bencher's Diary: Revolutionaries within Osgoode’s hallowed halls

A lawyer . . . always has to remember he’s a part of the machinery by which justice is dispensed. When it comes to a matter of justice or injustice there isn’t such a thing as big or little. Injustice is a social malignancy.

- Erle Stanley Gardner

As part of the 175th anniversary celebration of Osgoode Hall, the law society’s heritage committee, chaired by bencher Constance Backhouse, sponsored a symposium on the history of the Canadian legal profession. On the evening before, as vice chair of the committee, I had the pleasure of attending a dinner in Benchers’ Quarters for those who would be presenting papers at the symposium the next day.

The presenters made amiable dinner companions. Their academic and other credentials, as well as their mode of dress and manners, were impeccable. They did not look like revolutionaries, but as the symposium was to show, sometimes the facts they unearth in their legal history research are nothing short of astounding.

It is no wonder totalitarian governments often persecute scholars, burn books, and massage historical facts. Historians are an anathema to the status quo. Remembering the injustices of the past is a stimulus to rectify injustices in the present.

Prof. Hamar Foster of the University of Victoria law school is the author of We are not O’Meara’s children: Law, lawyers and the first campaign for aboriginal title in British Columbia, 1908-1928. It will shortly be published by the UBC Press in Let right be done: Aboriginal title, the Calder case and the future of indigenous rights.

Foster gave a capsule summary of the life of Arthur Eugene O’Meara and noted that lawyers whose careers become the tireless pursuit of a cause can pay a high price for their dedication.

O’Meara may have been influenced by the earlier career of another single-minded lawyer by the name of Allan Macdonnell. Macdonnell became an anathema to the Canadian government. To deal with him,

An Act to Make Better Provision for the Administration of Justice in the Unorganized Tracts of Country in Upper Canada was enacted. It provided that “any person inciting Indians or half-breeds frequenting or residing in such tracts of country . . . to the disturbance of the public peace . . . shall be guilty of a felony” punishable by no more than five years’ imprisonment and no less than two.

Foster noted that 74 years later, when Parliament amended the Indian Act to make it an offence for lawyers to pursue aboriginal claims against the government without government consent, the minister of the interior made it clear that O’Meara was a target.

Apart from the vilification he suffered during his lifetime, it appears that O’Meara’s relentless pursuit of a cause also cost him the love and respect of his family. He died basically impoverished.

Jumping ahead to the 1970’s, Backhouse, a professor of law at the University of Ottawa and president-elect of the American Society for Legal History, talked about the impact of Ontario women lawyers on second wave feminism. We now live in a time when over 50 per cent of the calls to the bar are women, but in 1970 it was only 4.3 per cent.

Backhouse described the phalanx of women lawyers who were in the bar admission course in 1977 and objected to sexist course materials. A prominent practitioner and instructor in the course on law office administration was lecturing on legal secretaries.

His written teaching text advised new lawyers to post help wanted ads “[Seeking] a beautiful young and confidential secretary . . . . Unless very beautiful you should be able to take shorthand on machine dictation . . . . You should be a whiz at making good coffee . . . .”

A group of female students objected to the sexist and manipulative course content. When one of them stood up and strode down to the instructor’s podium, ripped the offending pages out of the loose-leaf text and threw them into the garbage as she left the room, the instructor bellowed that she could send the pages back along with her brassieres.

It is anticipated that the papers presented at the legal history symposium will be published in a volume. I urge you to purchase it. The papers are eye-opening.

I look forward to the day when legal historians will focus their periscopes on the sole practitioner and small firm bar. Why is it that the brunt of the law society’s regulatory focus is on sole practitioners and small firms and that discipline proceedings almost invariably involve sole practitioners?

Is there a systemic bias against us within Osgoode’s hallowed halls? And what are its historical antecedents? This topic would likely deserve another symposium all by itself.

Gary Lloyd Gottlieb, a Toronto lawyer, is a Law Society of Upper Canada bencher and a Toronto sole practitioner. His e-mail address is

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