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A NOVEL APPROACH TO THE LAW: THE CASE FOR AN EXPANDED STUDY OF CANADIAN LAW AND LITERATURE by David L. Steeves Submitted in partial fulfillment of the requirements for the degree of Master of Laws at Dalhousie University Halifax, Nova Scotia April 2009 © Copyright by David L. Steeves, 2009 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-50276-1 Our file Notre reference ISBN: 978-0-494-50276-1 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada DALHOUSIE UNIVERSITY To comply with the Canadian Privacy Act the National Library of Canada has requested that the following pages be removed from this copy of the thesis: Preliminary Pages Examiners Signature Page (pii) Dalhousie Library Copyright Agreement (piii) Appendices Copyright Releases (if applicable) DEDICATION To George Elliott Clarke: gentleman, scholar, champion of human rights, and valued friend for your keen understanding of literary advocacy. And to my family for everything else— literally. IV TABLE OF CONTENTS LIST OF TABLES viii ABSTRACT ix ACKNOWLEDGEMENTS x CHAPTER 1: INTRODUCTION 1 CHAPTER 2: LAW AND LITERATURE: A SURVEY OF SCHOLARSHIP 7 1. Law and Literature: An Historical Overview 7 2. The Law and Literature Movement 15 a. The Law In Literature 15 b. Criticism of Law in Literature 23 c. The Law as Literature 26 i. Narrative Scholarship 26 ii. Hermeneutic Scholarship 30 d. Criticism of Law as Literature 35 3. Conclusion 36 CHAPTER 3: LEGAL FICTIONS: CANADIAN LAW AND LITERATURE 38 1. Introduction 38 2. Literary Nationalism and a National Legal Literature 41 3. Literature, Law and Learning 68 4. Is There a Case for These Texts in a (Canadian) Class? 77 5. (De)Constructing the Canadian Legal Canon 85 CHAPTER 4: HOW A CANADIAN AUTHOR SPEAKS: SOME LESSONS ON RACE AND ERASED NARRATIVES IN GEORGE & RUE WITH AN APPLICATION TO RECENT CANADIAN JURISPRUDENCE ON RACE 92 1. Introduction 92 2. Blackening the Page: The Black Acadian Tragedy of George and Rue 95 3. George & Rue: A Literary Commentary on Contextual Adjudication 123 v 4. A Fictional Frame for Contextual Adjudication: An Analysis of the Ontario Court of Appeal's Decision in R. v. Hamilton Through the Lens of George Elliott Clarke's George & Rue 130 a. Introduction 130 b. Facts 131 c. Judicial storytelling 133 d. Restraint 138 e. Voicing 146 f. Sentencing Principles: Proportionality and Parity 151 g. Ramifications for Adjudication 156 CHAPTER 5: CONCLUSION 162 BIBLIOGRAPHY 171 APPENDIX A: SURVEY OF THE INSTRUCTION OF LAW AND LITERATURE WITHIN CANADIAN LAW SCHOOLS 191 University of Alberta 191 University of British Columbia 192 University of Calgary 192 Carleton University 192 Dalhousie University 192 Universite de Laval 193 University of Manitoba 193 McGill University 197 Universite de Moncton 219 Universite de Montreal 219 University of New Brunswick 219 University of Ottawa (Civil law section) 219 University of Ottawa (Common law section) 220 University de Quebec a Montreal 221 Queen's University 221 VI University of Saskatchewan 223 Universite de Sherbrooke 225 University of Toronto 225 University of Victoria 239 University of Western Ontario 242 York University- Osgoode Hall Law School 244 APPENDIX B: BIBLIOGRAPHY OF CANADIAN LAW AND LITERATURE SCHOLARSHIP 245 vn LIST OF TABLES Table 1 "Emerging canon" works taught in Canadian Law Schools 89 vm ABSTRACT Canadian literature has told a significantly different story about the law than that which emerged from its American literary counterpart. Legal subject matter was, for the most part, absent in early Canadian literature yet has seen a significant growth in the last couple of decades. Similarly, the study of Law and Literature, a highly popular area of academic inquiry in the United States, has only recently gained significant ground within Canadian law faculties. The reasons for both are multifaceted and reflect distinct social, cultural, and legal pedagogical differences between Canada and the United States. This thesis explores these differences and their inherent potential for future discovery by (1) surveying the larger study of Law and Literature including its historical genesis and major debates; (2) placing the late emergence of a Canadian legal literature and a Canadian Law and Literature scholarly practice in context as well as examining their manifestation in the work of artists and academics alike; and (3) demonstrating a practical application of Law and Literature scholarship by viewing a decision of the Ontario Court of Appeal through the critical lens of George Elliott Clarke's novel entitled George and Rue. It is hoped that such preliminary work may support a case for the expanded study of Law and Literature in a Canadian context. IX ACKNOWLEDGEMENTS This thesis has been a labour of love and a process of much discovery. During this time there have been many individuals without whom I would have been unable to profit so significantly from this experience and each deserving of mention. Firstly, I want to thank my parents, John and Sandra, as well as my brothers and sister, Mark, Mike, and Kate. As a constant source of support throughout this process, each of you has given a measure of yourselves to this project such that my achievement is more accurately a shared accomplishment. Secondly, I want to express my sincere gratitude to my supervisor Professor Philip Girard. Thanks are not sufficient as your guidance, mentoring, knowledge and understanding have made this experience one from which I have gained immeasurably. To my reader and examiner, Professors Richard Devlin and Vaughn Black, I wish to offer my appreciation for your understanding, valuable comments, suggestions, and critique. To the other professors who have shaped my program and development therein, R. Blake Brown, Jennifer Llewellyn and Sheila Wildeman I wish to extend my sincere appreciation for your assistance, encouragement, and good humour. My time in the LL.M. program would not have been as enriching had it not been for my classmates and friends who have both challenged and supported me (as well as provided exceptional "pot-luck"). To friends such as Kissi Agyebeng, Lisa Delong, Godwin Djokoto, Berhanykun Ghebremedhn, Greg Harnish, Cathy Haskett-Morrison, Jennifer Haskett, Selena Henderson, Antonio Herrera, Alisse Houweling, Lorraine Lafferty, Ian Laing, Thomas Morrison, Jonathan and Valerie Shapiro, Lisa Stam, Michael x Taylor, Tewelde Weldonhannes, and Matthew Williams I thank you all for being along for the ride. Additionally, to David Dzidzourneau I would like to extend my thanks for your assistance and positive outlook on the graduate program as a whole. My time at Dalhousie would not have been as productive and positive had it not been for the many members of the Law School and University who have extended their good will and unique expertise. To Professors David Blaikie, Ann Morrison, and Andrew Wainwright (Emeritus), law school staff Geordie Lounsbury, Sheila Wile, Tim Young, and, in particular, all members of the Sir James Dunn Law Library staff, your assistance and encouragement have been greatly appreciated. Although based at Dalhousie Law School, this thesis benefited greatly from the contributions of faculty from other institutions. Accordingly, I would like to thank Professors Mysty Clapton (University of Western Ontario), Dick Dunlop (University of Alberta [Emeritus]), Isobel Findlay (University of Saskatchewan), Kate Frego (University of New Brunswick at Saint John), Rebecca Johnson (University of Victoria), Elizabeth Judge (University of Ottawa), Dennis Klinck (McGill University), David Methven (University of New Brunswick at Saint John), Lynn Penrod (University of Alberta), Simon Stern (University of Toronto), Desmond Manderson (McGill University), Mark Weisberg (Queen's), and Nancy Wright (University of
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