Greig Henderson. 2015. Creating Legal Worlds: Story and Style in a Culture of Argument. Toronto: University of Toronto Press.
Judicial decision writing is supposed to be factual and impartial; a statement of the facts, the relevant case law leading to a logical conclusion. In Creating Legal Worlds, Henderson analyzes the written decisions of a number of significant cases over more than a century of judicial writing to show that the narrative and rhetoric of judicial writing may be factual, but it is certainly not impartial. This may be self-evident to some, but not for the majority of the public. This book gives theory to how a written decision impacts the reader in a particular way and, more particularly, how the choices judicial writers make when they write a decision – what they choose to include as fact and from which parties’ point of view they write – gives context to a legal argument. While judicial writing must necessarily be different from literature in that it be guided always by the rules of law and evidence, that doesn’t mean that judges cannot use literary techniques to strengthen their conclusions and put decisions into a certain context for the readers.
Creating Legal Worlds is a very dense and scholarly analysis of how writing style is used by the judiciary to lead readers to the conclusion the writer makes in the decision. The author considers how decisions use eloquence, analogy, and other rhetorical devices to inform, motivate and persuade an audience. It is written in a highly technical style, that would best be understood by academic readers who have a deep understanding in the theories of writing and language.
Henderson looks at the style of many well-known judges and points out the ways in which a judge’s particular style can influence the reader, produce empathy, anger or prejudice, to name of few of the emotions the style and narrative may evoke. He compares and contrasts the styles of decision writers in cases as they move through avenues of appeal and examines how differences in style and technique are used to bolster a dissenting or assenting conclusion, or how they are used to point to the flaws in the logic or points of law in the preceding decision.
Throughout the book Henderson often either critiques the style of, or expresses admiration for a particular passage of phrasing within a decision. My sense is that the critique is largely related to where Henderson believes the final decision is incorrect, or where the writer’s language is strongly prejudicial. He points to a number of well-known judges whose prosaic style often paints a vivid picture of not only the events leading to the case before the court but of the social or historical context in which they occurred. Judges like Lord Denning and Justice David Watt are but two examples of writers adept at using eloquence and highly descriptive narrative to paint such pictures for the readers.
Henderson considers a few common legal issues, in particular, causation and consent, and analyses dissenting decisions to again show how style is used to bolster a writer’s conclusions and point out the flaws of the earlier decision. His analysis of the issues and the techniques of the writers are very detailed and will endear them to the academic reader.
In the final chapter of the book, Henderson takes us back to the time of the great philosophers Plato and Socrates in order to compare the two philosophers’ views on rhetoric and how those views relate to the theme of his book and some of the cases analyzed. The heavy technical detail of this analysis however makes it difficult for those without a good foundational knowledge in philosophy to follow with an intimate understanding.
Overall, Creating Legal Worlds is an interesting read that is clear in both its scope and content. The following quotation sums up very well my impression and take away from this book: “Every time judges write decisions, they are faced with rhetorical choices, and by the stories they choose to tell and the styles in which they choose to tell them, they are creating legal worlds for others to live in as well as fashioning images of themselves as judges” (58).
However, the casual reader will undoubtedly find Creating Legal Worlds a difficult read because of the level of understanding of language and writing theory required to make sense of some of Henderson’s analysis. Fortunately, the cases he presents prove interesting in and of themselves. Given the complexity and technicality of the language and analysis, it is clearly written for more of an academic audience than the casual reader.
For those readers with a background and involvement in the analysis of decisions or in writing decisions themselves, this book might be a good tool. While I enjoyed some of the analysis of the cases presented by Henderson and will perhaps be more conscious in the future of the narrative and rhetoric of decisions I read in my work, I would not say that this book will have an impact on how I behave or write in the public service. Nor do I believe this book would be of any significant interest or value to readers not directly immersed in the kind or work that would require this level of or who are not interested in the technical aspects of how narrative influences us. ◉
Reviewed by Donna Allen, Executive Director of the Law Society of the Northwest Territories in Yellowknife. Please note that the views expressed herein are those of the author.
Kristina R. Llewellyn, Alexander Freund, and Nolan Reilly. 2015. The Canadian Oral History Reader. Montreal: McGill-Queen’s University Press.
Most of us have listened to our parents or grandparents tell us stories of “when I was your age,” and in so doing, we have witnessed oral history firsthand.
In simple terms, oral history is where knowledge of the past is relayed by word of mouth from one generation to the next. According to the editors of The Canadian Oral History Reader, oral history is not that simple. They have structured this book as a guide to novice and expert oral historians alike, beginning with the history and methodology of oral history for relative newcomers to the topic, and moving on to discuss how to interpret oral narratives, and how to best present and preserve oral history interviews, all the while reflecting on the role of oral history in advocacy work.
Fortunately, this book is more than just a guide, since many of us do not aspire to become oral historians. The Canadian Oral History Reader is a fascinating compilation of 16 articles and essays by Canadian scholars reflecting on different facets of their respective oral history projects. The projects cover a broad spectrum of Canadian historical topics. One oral historian talks about the difficulties of getting people to participate in an oral history project in Sudbury’s Ukrainian community and how she had to elicit the help of her Baba (grandmother) to gain entrance to people’s homes. Another talks about interviewing Elders in an Aboriginal community, a culture steeped in oral tradition. Some articles get into the legislative and legal matters associated with oral history, which is important and necessary but not always easy to read. I particularly enjoyed an article on the differing perspective of one individual who challenged mainstream oral history accounts of the internment of Japanese Canadians during World War II (1941-1949). I was also quite touched by a more emotionally charged essay on the Holocaust project in Montreal where one survivor who experienced the Holocaust as a child, found it validated her childhood memories and played a central role in educational activism when she was able to tell her story to school children in Montreal. She would end her conversations with an important warning: “We must never remain silent when we hear bad things happening to other people.”
The writers of these articles raise a number of contentious issues, including the reliability and fallibility of memory, the power differentials between the interviewer and interviewees, and ethical questions and legal pitfalls surrounding privacy and confidentiality, making the potential oral historian more aware of the risks inherent in interviewing individuals. In spite of those risks, one comes away with a greater awareness of how oral history has become a powerful tool to educate people and raise awareness about past and present injustices and inequalities.
This book is of particular relevance to those of us who live and work in the North, where oral history has and continues to play a significant role in the political development of the North. We see the use of oral history at play in land claim negotiations and court decisions. We hear from Aboriginal people what their interpretation and understanding is of the treaties that were signed here in the North. Through oral history, we have witnessed the dark history of residential schools surface and become public, after being downplayed and hidden for decades.
Overall, this book is an invaluable resource for anyone seeking a greater appreciation and understanding of how the discipline and practice of recording, archiving, and analyzing eyewitness testimonies and life histories has become a global social movement for democratizing history. As in the case of residential schools, history books may tell only part of the story. The rest of the story may still be waiting to be told.
Those familiar with the field of oral history understand that Canada is steadily building its own community of oral history researchers and scholars. As a result, oral history is now a discipline recognized in Canadian universities. This book is a useful resource and a significant contribution from the selected Canadian oral historians who were willing to share and reflect on their own personal experiences in this field.
The Canadian Oral History Reader is both informative and inspirational. I think I will tell my grandchildren a story of “when I was your age” tonight and contribute in some small way to the preservation of our country’s history. ◉
Caroline Dennill is a long time Northerner and is currently an Implementation Negotiator with the Implementation Division of Aboriginal Affairs and Intergovernmental Relations with the Government of the Northwest Territories (GNWT). Please note that the views expressed herein are those of the author.
Jørgensen, Dolly and Sörlin, Sverker. 2013. Northscapes: History, Technology, and the Making of Northern Environments. Vancouver: UBC Press.
Northscapes edited by Dolly Jørgensen and Sverker Sörlin goes about finding the answer to the question “Is there a history of the North?” by examining the intersections of technology that has shaped the Northern environment. The North has remained an empty space not just for environmental historians but also, more generally, for most historians. Furthermore, the general history of the North, or of the circumpolar regions, has yet to be found. The reason for this, as noted in Northscapes, is due to the fact that “the North” has until recently not been a region in its own right but has been divided due to national spheres of influence and colonial possession and has lacked unity in the conventional political and economic terms. The North has been perceived as not having one history but many histories and Northscapes attempts to take up the challenge of providing a common historical framework on a professional scholarly level.
Northscapes presents how unique northern environments have resulted from the relationship between humans, technology, and northern nature, and delves into the subject of the North being more than the Arctic – “The North is a place where challenges of geography and climate are typically related to cold and inaccessibility, especially as seen from the outside, or to home, hearth, and in certain periods (like the present) even warming” (4). Using environmental historical approaches, Northscapes examines a broad range of geographies, including those of Iceland and other islands in the Northern Atlantic, Sweden, Finland, Russia, the Pacific Northwest and Canada. It covers a wide time span, from AD 850 to 2000 and has further been divided into four themes: Exploring the North, Colonizing the North, Working the North and Imagining the North. This provides the reader with an overarching framework for the types of environment and technology happening in the North.
The chapters under each theme demonstrate that the northern environment is not a given, fixed condition but instead makes evident the many layered complexity of the North. It is a constantly changing phenomenon, moulded and shaped by societies, cultures, technology, and above all else, history. Like the North Magnetic Pole, the idea of the North shifts around, evading simple characterization and making it difficult to define the history of the North and how it has shaped the North as we see it today. Within each chapter the authors demonstrate that the North changes over time and between contexts, but by no means are the changes self-evident or absolute.
In reading the chapters one notes however that particular landscapes do not automatically lead to particular national and cultural traits, and similar environmental conditions do not necessarily create similar developments. This can be seen from reading the chapters under the theme “Working the North.” The chapter on sheep-raising in the Icelandic highlands (The Sheep, the Market and the Soil) discusses the history of sheep-raising that led to destruction of vegetation in the highlands, especially in the nineteenth century, while the chapter discussing the transfer of agricultural knowledge between peripheries in the North (Traversal Technology Transfer) notes that Finnish and Swedish farmers modified their agricultural technology to adapt and cope with the northern environment. This is also evident within the chapter on local reindeer herding (More Things on Heaven and Earth) which reminds us of the local differences within an environment and which took very different paths in two places that, though not spatially distant, were ideologically polar opposites.
Northscapes provides historical insight to policy makers, public servants, and other groups trying to navigate the ongoing changes observed in northern environments with both the advent of new technologies and the continuing productive use of many old technologies. It demonstrates that the North has a long technological history that has shaped its current environment and has provided a framework to better understand the changing northern environment. As noted by Bathsheba Demuth in the chapter titled More Things on Heaven and Earth: “…in the North there is no escape from timelessness into history simply through new technology. History in the North, like history anywhere, is deeply human and trans-human; the land itself has a past and is changing… (191)”
In reviewing Northscapes, it should be noted that none of the chapters discuss or acknowledge military activities and technologies in the North. This is of interest as enforcement of regional boundaries is in many cases related to environmental concerns and resources. Further development in this area may be of use to policy makers and public servants as military activities and technologies have influenced and shaped the current environment, especially with the development of the Distant Early Warning Line (DEW Line) in the 1960’s. Military activity and technology may continue to shape the northern environment with the North becoming of greater strategic importance with the possibility of decreasing ice coverage during the summer months, advances in technology, and increases in shipping through the Northwest Passage. ◉
Sophia Granchinho is a Senior Technical Advisor with the Nunavut Impact Review Board (NIRB) in Cambridge Bay, Nunavut. Please note the views and opinions expressed in this article are those of the author.
Charlie Angus. 2015. Children of the Broken Treaty: Canada’s Lost Promise and One Girl’s Dream. Regina: University of Regina Press.
This book is a story within a story. At its heart it is a story about a girl who simply wanted to go to school like other kids in Canada – in a functioning building with adequate supplies and enough teachers. Wrapped around this tale is the larger, darker history of Treaty 9, residential schools, and their legacy of neglect and abuse that dogs the Aboriginal people of Canada to this day.
Author and NDP Member of Parliament for Timmins-James Bay, Charlie Angus, is a passionate chronicler of the ongoing struggle for equal education on First Nation reserves in Ontario. Here he focusses on the Attawapiskat First Nation and the story of teenager Shannen Koostachin’s remarkable crusade to improve conditions for education in her community.
Mr. Angus begins by exploring the roots of the problems that led to Shannen’s campaign. He relates the history of schooling in the James Bay region after the signing of Treaty 9 in 1905. One of the rights afforded in the Treaty was provision of teachers, buildings and equipment to the schools of Treaty 9 children. Historical documents reveal a deliberate campaign on the part of the federal government of the day to solve “the Indian Problem” through an education system that would “kill the Indian in the child” using tactics of cultural isolation, spartan living, hard work, and corporal punishment. Thus began the residential school system in Northern Ontario.
The system was the brainchild of Duncan Campbell Scott, then the head of Canada’s Department of Indian Affairs and the federal representative at the signing of Treaty 9. Two residential schools were built near James Bay. Both were run by religious organizations that were massively underfunded by the federal government. One of these, St. Anne’s, became infamous for its particularly poor treatment of children that were resident there. In the James Bay residential schools, death rates of children ranged from 40 to 70 percent. Many who survived the schools returned home unable to speak their own language and without the skills needed to live in the bush.
The residential schools did not have the intended effect of assimilating Indians into the larger Canadian society. Angus asserts that by the 1960s the federal government pursued another method of erasing Indian identity – fostering out Indian children into white households. As the residential schools closed, many children were apprehended by Children’s Aid Societies, and instead of being sent home they were sent south to foster families.
The day school system in James Bay communities began in the 1970s. These, too, were underfunded and continued to be neglected right into the 1990s, when Shannen Koostachin started school in Attawapiskat. The original school building was condemned in 2000, and thereafter the school was comprised of “temporary” portables that were falling apart. There were not enough textbooks; the heating was faulty (the book shows a photo of kids and teachers wearing coats and hats during lessons); and it was infested with mice. Most seriously, it was situated on a site contaminated by spilled fuel that smelled so strongly that teachers and students routinely suffered from headaches and neurological disorders. A new school building that had been promised to the community for years was finally scheduled to be built in 2007. However, weeks before construction was to begin, the project was abruptly cancelled and the funds were diverted to other issues. At this point Shannen, now in Grade 8, began her campaign.
Shannen Koostachin emerged as a youth leader of a grassroots campaign for the right of the children of James Bay to get a quality education. She was part of the Students Helping Students campaign, which opened the eyes of Southern Canadians to the gross inequalities faced by students on reserves. Children, teachers, parents and labour unions across Canada mounted pressure on the government to improve education conditions for reserve children. The campaign climaxed with a delegation of James Bay youth and Elders presenting a petition at the Assembly of the United Nations and the effects of the campaign carried forward into the culmination of other Aboriginal protest movements. For instance, the Idle No More campaign was in part fuelled by the frustrations surrounding decaying, dangerous, and in some cases, non-existent infrastructure on reserves, and even more so by the frustrations of dealing with a government bureaucracy that was evasive and even mean-spirited.
In 2014, 15 years after the original school was condemned, Attawapiskat got a brand new school, complete with lots of natural light, a gymnasium, and a small library. Tragically, Shannen did not live to see this. She left the community in 2009 to attend high school in New Liskeard. In 2010 she was killed in a car accident on the highway to North Bay.
This easy-to-read and well-researched book affected me deeply and I highly recommend it. The attitudes of the day are chilling. The detailed documentation of recent events is hard to dispute. I also reflect that we are fortunate in the Northwest Territories to live within comprehensive land claims rather than the reserve system. We can only hope that the current government’s emphasis on respectful relationships with Aboriginal Peoples can begin to repair some of the damage. ◉
Vicky Johnston is a Senior Policy Analyst with the Government of Canada in Yellowknife. Please note the views and opinions expressed in this article are those of the author.