Classifying Living Beings as Legal Persons: Humans Only Assignment | Online Assignment

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T Brettel Dawson, Persons and Property in Private Law, 3rd edition (2019)
PRE-PUBLICATION ADVANCE POSTING (Restricted to students registered Fall 2019 in Laws 2201A& T)
Contents
INTRODUCTION AND OVERVIEW ………………………………………………………………………………………………….. 1
PART 1: PERSONS, PROPERTY AND LEGAL ORDERING …………………………………………………………………….. 4
Chapter 1A. Starting Points ………………………………………………………………………………………………………. 4
a) Section Introduction …………………………………………………………………………………………………………. 4
b) Baker v Harmina 2018 NLCA 15 ………………………………………………………………………………………….. 5
c) Lee Holcombe, Wives & Property: Reform of the Married Women’s Property Law in Nineteenth-Century England …………………………………………………………………………………………………………………… 9
d). Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press, 1999), ch 7: ‘Bitterly Disappointed at the Spread of ‘Colour-Bar Tactics’: Viola Desmond’s Challenge to Racial Segregation, Nova Scotia 1946” ………………………. 9
e). Nakhuda v. Story Book Farm Primate Sanctuary ………………………………………………………….. 14
Chapter 1B: Legal Subject and Legal Object ……………………………………………………………………………… 17
f) Section Introduction ………………………………………………………………………………………………………… 17
g). Eve Darian-Smith, Laws and Societies in Global Contexts ……………………………………………… 18
h). Making the Law Work for Everyone, Report of The Commission on Legal Empowerment for the Poor…………………………………………………………………………………………………………………………….. 18
i) Margaret Davies, Property – Meanings, Histories ……………………………………………………………. 21
k) Roger Cotterrell, Sociology of Law: An Introduction, ……………………………………………………….. 26
INTRODUCTION AND OVERVIEW
These materials have been developed for the course, Persons and Property offered by the Department of Law and Legal Studies at Carleton University. The course description given in the Undergraduate Calendar sketches in the broad contours of the course: “origins and scope of the concept of person in law and how concepts of legal personality change over time. Origins and scope of the concept of property and how concepts of property change over time.”. This description offers considerable latitude for treatment of a subject which addresses the fundamental building blocks of private law: Who can be a legal person (capable of autonomous legal action and ownership)? What is property in legal terms (as resources or rights to resources that can be owned and transferred between legal persons)? The close connection in private law
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between the legal concepts of the person and of property are immediately apparent: Who can own what; what can be owned and by whom?
The division of private law into the law of Persons, Property and Obligations (the last being addressed in a companion course in the Department) has its roots in the organization of the common law undertaken by William Blackstone in his famous Commentaries published in 1765-69. Blackstone’s work was influenced by positions and theories advanced by the political philosophies of his times (Locke, Hobbes, Kant et al). These were in turn influenced by the milieu of their times – which sought to craft new social, political and legal rules and structures following the decline of absolute monarchy (and feudalism) in the United Kingdom and the rise of (and changes necessitated by) the Industrial Revolution(s). Blackstone’s Commentaries, in turn, actuated these philosophies by placing the individual, private property and the market economy at the centre of legal ordering in the new social contract. He aligned English private law with fundamental (natural) values of liberty, individual autonomy, self-determination, and security of person and property in relation to a circumscribed public (or state) sphere. This list amounts – on its own terms – to a statement of classic liberalism (and has been even more vigorously embraced by more contemporary neo-liberalism). This legality (still) divides the world into subject and object; who/what can be a legal subject and legal object.
We take up an important analytical point at the outset of our study: that the concepts of persons and property (as articulated by Blackstone and as implemented since) have deeply ideological dimensions. They do not describe the world (or people) so as much as they construct them through law. In the words of Roger Cotterrell in Chapter 1B:
The concept of the legal person or legal subject defines who or what the law will recognise as a being capable of having rights and duties…. This concept is the foundation, in a sense, of all legal ideology. It allows legal doctrine to spin intricate webs of interpretation of social relations since the law defines persons in ways that empower, or disable, distinguish and classify individuals for its special regulatory purposes.
In Part I (Introduction) we consider the idea of legal personhood as constituting the legal subject.
In Part II The Legal Person (and Property), we delve further into the definition and function of the concept of the legal person. Debates and litigation over the Atlantic slave trade and its abolition, whether women and children are legal persons, and how to organize capital intensive business activities (corporations) allow us to examine the boundaries and capacities of this legal subject. We also put a spotlight on the autonomy value underlying a legal person’s decision-making capacity in the case of sterilization of Indigenous women in Canada.
In Part III Property (and the Legal Person), we take up the idea of property as the legal object. And we note similar dynamic as with the legal person. Law does not describe property so much as it constructs it as a legal concept –closely tied to ownership rights and who has them. Private law (and society) becomes in MacPherson’s view “a lot of free individuals related to each other as proprietors of their own capacities and of what they have acquired (property) by their exercise.” (as cited by Davies and Naffine). One point will be made (and interrogated) at the outset: the insistence in Western law of seeing property as a ‘bundle of rights’ and not as the
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physical object at all. In Chapter 7 we examine the legal concept, rationales and definitions of property.
We trace the connection between property rights and privatized power: who can be an owner (with a case study looking at racist restrictive covenants) and what rights and owner may have in relation (to exclude) others. We also examine the idea of property as a form of private sovereignty. Of course, basic questions are addressed: What can be property? What kinds of property exist in the current legal taxonomy? What justifications have been advanced to support certain types of property (especially private property)? In Chapters 9 and 10 we explore the (dis)connection between private and public property and the natural world – and indeed between Western ideas of property and Indigenous world views and between old science and new with respect to life (and law) on our biosphere, Earth.
At this point in our study, we will take notice that the legal constructs of person and property (and the purpose and function of law) in the liberal legal tradition are profoundly anthropocentric (human-centred). Blackstone’s legality and the Enlightenment’s focus on political and economic society displaced (alienated) humans from natural world (viewed as property) just as it separated capital and labour (and alienated one from the other). Another profound alienation was also underway as Blackstone wrote his Commentaries: the process of subjugation and colonization of Indigenous life and land in places such as Canada.
Thus, when talking about (public) property in Canada, one must necessarily engage with (European-centric) Crown/indigenous claims of ownership, and question the very idea of “ownership” itself in law. As Blackstone was preparing his Commentaries, the process of subjugation and colonization of Indigenous life and land in places such as Canada was well underway. The creation and embedding of racism was part of this process. In a thoughtful article in Slate, Jamelle Bouie argues that “[r]ace as we understand it—a biological taxonomy that turns physical difference into relations of domination—is a product of the Enlightenment” and reflected “an attempt to resolve the fundamental contradiction between professing liberty and upholding slavery.” In his view, “This racial taxonomy encompassed indigenous peoples and provided a philosophical justification for their subjugation along with that of their lands and their governance processes. 1
Colonization and industrialization then, unfolded together nestled within an anthropocentric legal order over a breathtakingly short portion of human history – barely 250 years in the context of millennia. These forces have precipitated disasters for indigenous peoples and our planet. Climate change and reconciliation with indigenous peoples have become urgent imperatives – in policy, in law and in social action.
Ultimately, in Part IV, Conclusion, the legal taxonomies of private/public/person/property are all up for critique and reimagination. Nicole Graham (in Chapter 12) acknowledges that “the ‘aging’
1 Jamelle Bouie, “The Enlightenment’s Dark Side: How The Enlightenment Created Modern Race Thinking, And Why We Should Confront It, Slate, June 5, 2018. Online at <https://slate.com/news-and-politics/2018/06/taking-the-enlightenment-seriously-requires-talking-about-race.html>.
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of a legal taxonomy calls for its replacement,” noting this will require effort and imagination. “Society” she points out is invested in “the stability and certainty of its laws [giving] rise to [an] attachment to law’s [existing] categories. But, she concludes, “if we accept that law is structured according to the goals and values of society, and we accept also that those goals and values can change, then it becomes possible to question the durability …of current categories, and [to] call for their replacement.”
These (ongoing) developments in society, ecology, and the economy (re)make the study of persons and property as dynamic and relevant. Recognizing that Blackstone’s taxonomy of law is relatively recent – although enduring and deeply embedded in our legal order – allows us to shake off its inevitability. And thus, this book brings us along a narrative arc from Blackstone to (ecologists such as) Thomas Berry towards the Great Work of creating an earth-centred jurisprudence of life and place.
PART 1: PERSONS, PROPERTY AND LEGAL ORDERING
Chapter 1A. Starting Points
a) Section Introduction
The opening examples in Chapter 1 are meant to get you thinking about some of the concepts and themes we will be examining in the course. Read these examples and consider the following questions:
The dividing line in law between being a ‘person’ and being ‘property’ is starkly laid out in Baker v Harmina, a 2018 decision of the Newfoundland Court of Appeal. At the heart of the case was Mya – a Bernedoodle dog. The couple she lived with broke up and couldn’t agree on who would keep her. Was she any different than a piece of furniture owned by one person or the other?
Does being able to own property matter (and to whom)? While she was walking along a street in London England sometime during the 1870s, a young man stole her purse. What was Mrs Millicent Fawcett to think when she appeared to give testimony against this young man and heard that he was charged with ‘stealing from the person of Millicent Fawcett a purse containing £1 18s 6d, the property of Mr Henry Fawcett’?
Do all legal persons have the same rights to autonomy, liberty and security of the person? If not, what do we learn about how the concept of the legal person ‘operates’ in law?
Consider the following situation. Your car has broken down late in the day and you have to stay overnight for it to be fixed the next day. You go to see a movie, ask for a downstairs ticket and sit down, minding your own business. On what possible basis could you be dragged from your seat and end up spending the night in a jail cell and being convicted and fined the next day? This is what happened to Viola Desmond in New
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Glasgow in 1946. It is important to notice that Viola Desmond was a Black woman. Read the extract and identify the law that she was said to have broken.
Finally, what about Darwin, a pet monkey (in a tailored sheepskin coat) found wandering in the parking lot of a Toronto IKEA store in 2013 and collected by Animal Services? Did it make a difference in law, whether Darwin was a wild animal or domesticated animal? How does someone become a person or property anyway? What do we learn about the scope (inclusions, exclusions, origins) of persons and property in Nakhuda v Story Book Farm? Another Canadian case that may be of interest concerned the well-being of Lucy, a lone elephant, at the Edmonton Zoo.2 Suspended between wild and domestic, does Lucy have any best interests that the law needs to uphold?
b) Baker v Harmina 2018 NLCA 15
White J.A.. (for the majority)
[1] Mya is a cross between a Bernese mountain dog and a poodle. For nearly two years she was treated as a family member by David Baker and Kelsey Harmina. Now they have split up, and this case is about who gets to keep her.
[2] Mya came to Newfoundland in October 2014 from a kennel in Ontario. She was greeted at the airport by Ms. Harmina. Mr. Baker was in Alberta, where he worked 14 days out of every 21. When he was out of town Ms. Harmina kept the dog; when he was in town, he took it.
[3] In late 2014 Ms. Harmina and Mr. Baker moved into a house in Kenmount Terrace. She was in town all the time, studying part time, while he worked away, first in Alberta and then in Marystown. So she spent more time caring for Mya than he did.
[4] In August 2016 they broke up. Ms. Harmina kept Mya. They talked about sharing her, but the arrangements did not work out. In November 2016 they took out peace bonds against each other.
[5] Finally Mr. Baker sued Ms. Harmina in small claims court, seeking an order that she return Mya to him. He said he owned Mya outright: he’d made the arrangements with the breeder, he’s paid for her purchase and most of her expenses, and he’d never given Ms. Harmina a share of the dog.
[6] Ms. Harmina’s position was that Mya was jointly owned. The decision to buy a dog was a joint one and depended on her availability. Mr. Baker did not pay for Mya alone. There were a number of e-transfers back and forth between them around the time of the purchase, for example in relation to a couch for the new apartment. She had spent more time with Mya, had acted more like a primary owner, and had also paid for some ongoing expenses.
[7] After fully considering and weighing all the evidence, the small claims judge concluded that Mr. Baker bought Mya alone and for himself. While Ms. Harmina advanced part of the purchase price, she did that on Mr. Baker’s behalf, as he was having difficulty with his on line account. She was fully reimbursed the funds she advanced.
2 See Reece v Edmonton (City), (2011), 46 Alta. L.R. (5th) 1.
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Later Ms. Harmina took care of Mya and became close to her but she never acquired a property interest in her by gift or purchase. Mr. Baker remained Mya’s sole owner.
[8] Ms. Harmina appealed to the Supreme Court Trial Division. The appeal judge found that the small claims judge had erred in deciding ownership without having regard to the full context of the parties’ relationship. She concluded that the parties owned Mya jointly and ordered that Mr. Baker should keep her while he was in town and Ms. Harmina the rest of the time.
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Analysis: Was Mya Jointly Owned in Law?
[12] In the eyes of the law a dog is an item of personal property. That doesn’t mean dogs aren’t important. It means that when two people disagree about who should get a dog, the question is not who has the most affection for the dog or treats it better (so long as both parties treat the dog humanely). The question is who owns it.
[13] The small claims and appeal decisions present two different models of how a court should determine pet ownership. The small claims judge’s approach focuses on the chain of ownership and looks for discrete transactions where ownership changed hands. Who bought Mya from the breeder? Mr. Baker alone, as he paid for her. Had Mr. Baker given or sold an interest in Mya to Ms. Harmina? No. So Mr. Baker remained the sole owner…
[15] The appeal judge’s approach takes a broader look at the relationship between the parties and the dog. Instead of looking for a chain of ownership with clear moments of transition, the appeal judge’s reasons emphasize that the parties “picked out the dog together while dating”, that they shared expenses, that Mya spent much of her time alone in Ms. Harmina’s care.
[17] At first glance, this case seems to pit traditional legal doctrine against social realities. The small claims judge’s approach reflects the traditional theory that property only changes hands through deliberate transactions, particularly gifts or purchases. The appeal judge’s approach seems more sensitive to the way in which, over the course of a romantic and domestic partnership, “my” dog can become “our” dog, without any explicit moment of gift or purchase.
[19] In this case, the appeal judge’s approach would make it significantly easier to show that a pet is jointly owned in law. It would expand the scope of joint ownership. And this would be unfortunate in many ways, because the legal system is not well equipped to deal with the problems raised by joint ownership of dogs.
[20] A dog is “indivisible” and cannot simply be divided between the parties… If a dog is jointly owned, the court will usually order one co-owner to buy the other out and pay compensation, as in Simmonds. It can also order the dog to be sold and the proceeds divided.
[26] While expanding the scope of joint ownership seems at first to be progressive and forward thinking, it is unlikely to be a kindness either for the parties or for the public. As Adjudicator Slone said at para. 6 of Gardiner-Simpson v. Cross, 2008 NSSM 78, “The worst result of all would be a conclusion that the dog is joint property.”
[27] The small claims judge was right to rely on the narrower traditional approach to determining ownership. I would uphold his conclusion that Mr. Baker is the sole owner of Mya.
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Reasons of Hoegg J.A. (Dissenting in Part):
[40] Mya, a female dog, lived with Mr. Baker and Ms. Harmina for about two years. Despite the affectionate and long-standing characterization of dogs as “man’s best friend”, dogs are considered to be property in law. I do not disagree. Accordingly, the trial Judge in this case had jurisdiction to determine whether Mya, as property, ought to be returned by Ms. Harmina, who had possession of Mya, to Mr. Baker, if Mr. Baker established on the evidence that Mya was his property.
[44] The SCTD Judge assessed the evidence at pages 45 to 46 of the transcript:
What was the evidence before Judge Flynn? Number one, it established that the bill of sale was in Mr. Baker’s name. Number two, it established joint payment of expenses, albeit in conflicting amounts. Number three, it established shared care and responsibility for the dog. Number four, there was evidence from Harmina that the parties had picked the dog out together and Mr. Baker did not contest this evidence after she testified. Finally, there was evidence the Ms. Harmina did not seek reimbursement of the expenses she incurred.
Against this evidence what did Judge Flynn decide? There are only two paragraphs in his decision dedicated to his conclusions. At paragraph 8, he says, â€oeMr. Baker paid for the dog and the bill of sale was in his name. In the same paragraph, he rejects the relevance of contribution to expenses by Ms. Harmina. In paragraph 9, he addressed a different issue; namely, whether there was evidence of a gift.
[46] The SCTD Judge went on to substitute her decision that Mya was jointly owned by Mr. Baker and Ms. Harmina…
[47] I agree with the SCTD Judge respecting the ownership of Mya. Let me explain why.
[48] Determining the ownership of family pets when families break apart can be challenging. Ownership of a dog is more complicated to decide than, say, a car, or a piece of furniture, for as my colleague observes, it is not as though animate property, like a dog, is a divisible asset. But dogs are more than just animate. People form strong emotional relationships with their dogs, and it cannot be seriously argued otherwise. Dogs are possessive of traits normally associated with people, like personality, affection, loyalty, intelligence, the ability to communicate and follow orders, and so on. As such, many people are bonded with their dogs and suffer great grief when they lose them. Accordingly, “who gets the dog?” can pose particular difficulty for separating family members and for courts who come to the assistance of family members when they cannot agree on “who gets the dog”.
[49] The issue in this case was simply whether Mr. Baker owned Mya or whether she was jointly owned. Ownership of Mya, as an item of personal property, passed through contract of purchase from the breeder to some combination of Mr. Baker and/or Ms. Harmina. Mr. Baker and Ms. Harmina were in a relationship, and had decided to get a dog and chose, together, Mya. People acquire personal property all the time, usually solely but sometimes jointly, with others, and in doing so, pay little attention to legal rules respecting exactly who is acquiring title to the property.
[52] Like the SCTD Judge, I am of the view that the ownership of Mya involved much more than a determination of who paid for her at the time of purchase. The ownership of a dog is a more complex and nuanced question than the ownership of, say, a bicycle. In
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this regard, I see the non-exhaustive list of principles to which the SCTD Judge referred, set out by Adjudicator Richardson, after a review of several cases, at paragraph 25 of MacDonald, as helpful and relevant to determining the ownership of a dog:
a) Animals (dogs included) are considered in law to be personal property;
b) Disputes between people claiming the right to possess an animal are determined on the basis of ownership (or agreements as to ownership), not on the basis of the best interests of the animal;
c) Ownership of – and hence the right to possess – an animal is a question of law determined on the facts;
d) Where two persons contest the ownership of an animal, the court will consider such factors as the following:
i. Whether the animal was owned or possessed by one of the people prior to the beginning of their relationship;
ii. Any express or implied agreement as to ownership, made either at the time the animal was acquired or after;
iii. The nature of the relationship between the people contesting ownership at the time the animal was first acquired;
iv. Who purchased or raised the animal;
v. Who exercised care and control of the animal;
vi. Who bore the burden of the care and comfort of the animal;
vii.Who paid for the expenses of the animal’s upkeep;
viii.Whether a gift of the animal was made at any time by the original owner to the other person;
ix What happened to the animal after the relationship between the contestants changed; and
x. Any other indicia of ownership, or evidence of any agreements, relevant to the issue of who has or should have ownership or both of the animal.
[53] In regard to these factors, I would emphasize that Mr. Baker and Ms. Harmina were in a relationship when they chose the dog together. In this regard, Mr. Baker testified that he resided with Ms. Harmina and Mya at Ms. Harmina’s apartment during his six-day leave periods in the month or so between when Mya was acquired and when they moved into the apartment they rented together. I would also emphasize that the parties did not have an agreement respecting the ownership of Mya. As well, the uncontroverted evidence established that Mr. Baker and Ms. Harmina both initially contributed to the cost of Mya (while the trial Judge found that Mr. Baker ultimately paid for Mya, the intermingling of his and Ms. Harmina’s finances shows that they were making financial decisions and expenditures in furtherance of their relationship), both shared expenses for her, and Ms. Harmina did not seek reimbursement for her contribution to Mya’s expenses. Moreover, Ms. Harmina signed for Mya as her owner and took possession of her when she arrived in Newfoundland by air, and Mya stayed with Ms. Harmina from that day forward with or without Mr. Baker, including after they split up, until attempts were made to share Mya after their separation.
[55] In my view [the trial judge] erred by misapprehending much uncontroverted evidence respecting the ownership of Mya….
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[56] Accordingly, in my view the SCTD Judge correctly decided that the trial Judge erred by failing to consider the evidence that supported Ms. Harmina’s ownership interest in Mya, which was acquired through contract by virtue of their joint purchase of Mya effected by their acting as agents for each other. The SCTD Judge had the jurisdiction to substitute her opinion that Mya was jointly owned and I would uphold her decision.
c) Lee Holcombe, Wives & Property: Reform of the Married Women’s Property Law in Nineteenth-Century England (Toronto: University of Toronto Press, 1983) at 3 and see https://utorontopress.com/ca/wives-property-2#
In the 1870s Millicent Garrett Fawcett had her purse snatched by a young thief in London. When he appeared in court to testify, she heard the young man charged with ‘stealing from the person of Millicent Fawcett a purse containing £1 18s 6d the property of Henry Fawcett.’ Long after the episode she recalled: ‘I felt as if I had been charged with theft myself.’ …[This story] illumate[s] the arguments used by [19th] century feminists in their demands for reform of the married women’s property law… on the one hand the law often inflicted grievous hardships upon women. On the other hand, the law, regarding a woman as her husband’s servant, even as his chattel, destroyed her independence, her identity and her self-respect…. It can be argued that reform of the married women’s property law was the most important of all legal reforms made by feminists in the nineteenth century. In the history of English law, property and personal status have been closely linked, and the fact that under the law married women controlled no [4] property, their husbands exercising control instead, necessarily reduced them to a subordinate and dependent legal status, deprived of the legal rights and responsibilities of men and unmarried women … the great majority of women in England did marry and lose their property and therefore did become legally subordinate to and dependent on their husbands. Legal deprived of property, married women were also deprived both of power and of the civil rights of other citizens… [R]eform of the married women’s property law was ‘the first point in the women’s charter’…
d). Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900-1950 (Toronto: University of Toronto Press, 1999), ch 7: ‘Bitterly Disappointed at the Spread of ‘Colour-Bar Tactics’: Viola Desmond’s Challenge to Racial Segregation, Nova Scotia 1946” at 226; 228-231; 245; 266-67; 271
[226] The contentious racial incident began on Friday, 8 November 1946, when Viola Irene Desmond’s 1940 Dodge four-door sedan broke down in New Glasgow, Nova Scotia. The thirty-two-year-old, Halifax-born Black woman was enroute to Sydney on a business trip. Forced to wait overnight for repairs, she decided to take in the seven o’clock movie at the Roseland Theatre… Outfitted with the latest modern equipment for sound in 1929… the Roseland came to be New Glasgow’s premier movie theatre…
Handing the Roseland cashier a dollar bill, Viola Desmond requested ‘one down please.’ Peggy Melanson, the white ticket-seller on duty that evening, passed her a balcony ticket and seventy cents in change. Entirely unaware of what would ensue from her actions, Viola Desmond proceeded into the theatre and headed towards the main-floor seating area. Then Prima Davis, the white ticket-taker inside the theatre, called out after her:
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‘This is an upstairs ticket, you will have to go upstairs.’ [228] Thinking there must have been some mistake, Viola Desmond returned to the wicket and asked the cashier to exchange the ticket for a downstairs one. The ticket-seller refused, and when Viola Desmond asked why, Peggy Melanson replied: Tm sorry but I’m not permitted to sell downstairs tickets to you people.’
Peggy Melanson never mentioned the word ‘Black,’ or the other terms, ‘Negro’ or ‘coloured,’ which were more commonly used in the 1940s. But Viola Desmond recognized instantly that she was being denied seating on the basis of her race. She made a spontaneous decision to challenge this racial segregation, walked back inside, and took a seat in the partially filled downstairs portion of the theatre. As Prima Davis would later testify, ‘[When] she came back and passed into the theatre, I called to her. She never let on she heard me. She seated herself below.’
Prima Davis followed Viola Desmond to her main-floor row. Confronting the Black woman, who was now sitting quietly in her seat, she insisted, ‘I told you to go upstairs.’ When Viola Desmond refused to budge, Prima Davis left to report the matter to the white manager, Harry MacNeil. MacNeil was New Glasgow’s most prominent ‘showman,’ his family having constructed MacNeil’s Hall in the late 1870s to serve as the town’s first theatre… Harry MacNeil came down immediately and ‘demanded’ that Viola Desmond remove herself to the balcony. She had already ‘been told to go upstairs,’ MacNeil pointed out, and a notice on the back of the ticket stipulated that the theatre had ‘the right to refuse admission to any objectionable person.’ Viola Desmond replied that she had not been refused admission. The only problem was that her efforts to purchase a downstairs ticket had been unsuccessful. Politely but firmly, she requested the manager to obtain one for her. ‘I told him that I never sit upstairs because I can’t see very well from that distance,’ she later told the press. ‘He became angry and said that he could have me thrown out of the theatre. As I was behaving very quietly, I didn’t think he could.’ The agitated Harry MacNeil turned heel and marched off in pursuit of a police officer. [229]
THE ARREST AT THE ROSELAND THEATRE
In short order, Harry MacNeil returned with a white policeman, who advised Viola Desmond that he ‘had orders’ to throw her out of the theatre. ‘I told him that I was not doing anything and that I did not think he would do that,’ advised Viola Desmond. ‘He then took me by the shoulders and dragged me as far as the lobby. I had lost my purse and my shoe became disarranged in the scuffle.’ The police officer paused momentarily to allow Viola Desmond to adjust her shoe, while a bystander retrieved her purse. Then the forcible ejection resumed. As Viola Desmond recounted:
The policeman grasped my shoulders and the manager grabbed my legs, injuring my knee and hip. They carried me bodily from the theatre out into the street. he policeman put me into a waiting taxi and I was driven to the police station. Within a few minutes the manager appeared and the Chief of Police [Elmo C. Langille]. They left together and returned in an hour with a warrant for my arrest.
She was taken to the town lock-up, where she was held overnight. Adding further insult, she was jailed in a cell alongside male prisoners. Mustering every ounce of dignity, Viola Desmond deliberately put on her white gloves, and steeled herself to sit bolt upright all night long. She later described her experience in the lock-up as follows: ‘I was put m a cell which had a bunk and blankets. There were a number of men in the same block and
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they kept bringing in more during the night. The matron was very nice and she seemed to realize that I shouldn’t have been there. I was jailed for twelve hours … ‘
THE TRIAL
The next morning, 9 November 1946, Viola Desmond was brought before New Glasgow magistrate Roderick Geddes MacKay… The sixty-nine year old, white magistrate was the sole legal official in court that day. Viola Desmond had no lawyer; she had not been told of her right to seek bail or to request an adjournment, nor of her legal right to request [230] counsel. Indeed, there was no Crown attorney present either. Harry MacNeil, ‘the informant,’ was listed as the prosecutor. Viola Desmond was arraigned on a charge of violating the provincial Theatres, Cinematographs and Amusements Act. First enacted in 1915, the Statute contained no explicit provisions relating to racial segregation. A licensing statute to regulate the operations of theatres and movie houses, the act encompassed such matters as safety inspections and the censorship of public performances. It also stipulated that patrons were to pay an amusement tax on any tickets purchased in provincial theatres. Persons who entered a theatre without paying such tax were subject to summary conviction and a fine of ‘not less than twenty nor more than two hundred dollars.’ The statute authorized police officers to arrest violators without warrant, and to use ‘reasonable diligence’ in taking them before a stipendiary magistrate or justice of the peace ‘to be dealt with according to law.’
The statute based the rate of the amusement tax upon the price of the ticket. The Roseland Theatre’s ticket prices were forty cents for downstairs seats, and thirty cents for upstairs seats. These prices included a tax of three cents on the downstairs tickets, and two cents on the upstairs. The ticket issued to Viola Desmond cost thirty cents, of which two cents would be forwarded to the public coffers. Since she had insisted on sitting downstairs, she was one cent short on tax.
This was the argument put forth by Harry MacNeil, Peggy Melanson, and Prima Davis, all of whom gave sworn evidence against Viola Desmond that morning. The trial was short. The three white witnesses briefly testified that the accused woman had purchased an upstairs ticket, paying two cents in tax, and then insisted on seating herself downstairs. After each witness concluded, Magistrate MacKay asked the prisoner if she wanted to ask any questions. ‘I did not gather until almost the end of the case that he meant questions to be asked of the witnesses,’ Viola Desmond would later explain. ‘It was never explained to me of whom I was to ask the questions.’ So there was no cross-examination of the prosecution witnesses whatsoever. At the close of the Crown’s case, Viola Desmond took the stand herself. The minutes of evidence from the trial record contain a succinct report of her testimony: I am the accused. I offered to pay the difference in the price between the tickets. They would not accept it.’ Magistrate MacKay convicted the defendant and assessed the minimum fine of $20, with costs of $6 payable to the prosecuting informant, Harry MacNeil.
[231] Viola Desmond was quite properly angry that she was offered no opportunity to speak about the real issues underlying the taxation charges. ‘The Magistrate immediately convicted and sentenced me without asking me if I had any submissions to make to the Court on the evidence adduced and without informing me that I had the right to make such submissions,’ she later explained. Even a casual observer can see that many arguments might have been raised to preclude a conviction. It was far from clear that
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Viola Desmond had actually transgressed the statute. According to her testimony, she tendered the difference in the ticket prices (including the extra cent in tax), but the manager and ticket-seller refused to accept her money. It is difficult to find the legally required actus reus (criminal act) in Viola Desmond’s behaviour here. Indeed, if anyone had violated the statute, it was the theatre owner, who was in dereliction of his statutory duty to collect the tendered taxes and forward them to the designated government board.
Furthermore, the price differential between upstairs and downstairs seats was not prescribed by statute. It was simply a discretionary business policy devised by the management of the theatre. The manager could have decided to collapse the two admission prices and ask one single fee at whim. In this instance, Harry MacNeil chose to charge Viola Desmond a mere thirty cents for her ticket, and on this amount she had paid the full tax owing. She was not charged forty cents, so she did not owe the extra cent in tax. The court might have construed the rules regarding alternate seating arrangements as internal business regulations having nothing whatsoever to do with the revenue provisions in the legislation.
Even more problematic was the prosecution’s questionable attempt to utilize provincial legislation to buttress community practices of racial discrimination. The propriety of calling upon a licensing and revenue statute to enforce racial segregation in public theatres was never addressed. Did the legislators who enacted the statute design the taxing sections for this purpose? Were racially disparate ticket-selling practices contemplated when the statutory tax rates were set? Were the penalty sections intended to attach alike to theatre-goers deliberately evading admission charges and Blacks protesting racial segregation? As the press would later attest, Viola Desmond ‘was being tried for being a negress and not for any felony.’…
[THE COMMUNITY RESPONDS TO THE CONVICTION]
[245]… Viola Desmond [gave an interview the Halifax Chronicle shortly afterward in which she commented]
I can’t understand why such measures should have been taken. I have travelled a great deal throughout Canada and parts of the United States and nothing like this ever happened to me before. I was born in Halifax and have lived here most of my life and I’ve found relations between negroes and whites very pleasant. I didn’t realize a thing like this could happen in Nova Scotia – or in any other part of Canada.
The shock that underlies this statement clearly communicates the magnitude of the insult that Viola Desmond experienced in the Roseland arrest. She must have been no stranger to racial segregation. She taught in segregated schools, was denied occupational training on the basis of race, and was keenly aware of segregated facilities in her own business. But unexpectedly to encounter segregated seating in a Nova Scotian theatre seems to have struck Viola Desmond as a startling injustice. The unforeseen discrimination was magnified by the heinous actions of the theatre manager and various officials of the state, who responded to her measured resistance with armed force and criminal prosecution. To see the forces of law so unanimously and spontaneously arrayed against her quiet protest must have struck Viola Desmond as outrageous. Couching her complaint in the most careful of terms, with polite reference to the ‘very pleasant’ relations that normally ensued
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between the races, she challenged Canadians to respond to this unconscionable treatment, to side with her against the legal authorities who pursued her conviction.
[Backhouse then discusses responses by members of the Black community in Halifax. A fund was raised to contribute to legal fees for the decision to be challenged. Four days after the conviction, Viola Desmond retained a lawyer. Unfortunately, as detailed by Backhouse, he made a series of poor litigation decisions including missing the deadline for an appeal. More significantly he chose not to build a challenge based on previous court decisions that questioned the legality of race-based exclusion from public commercial venues. The case ultimately brought by Desmond’s lawyer was for judicial review of the magistrate’s decision arguing that it should be set aside because there was ‘no evidence to support’ the conviction. He did not raise or ground his case on aspects of race or racial discrimination in service. The judge who heard this application rejected the argument. Desmond’s lawyer then unsuccessfully appealed that decision to the Nova Scotia Supreme Court. That court determined that the claim to set aside the original decision of Magistrate MacKay was ‘not procedurally available to overturn the conviction’ (at 266). Backhouse continues]:
[266] Three of the judges, however, felt inclined to make some comment about the sufficiency of evidence at trial. Judge Graham’s view was that the charge had been substantiated: ‘[Viola Desmond] knew that the ticket she purchased was not for downstairs and so that she had ‘not paid the full tax.’ Judge Carroll disagreed: ‘the accused did actually pay the tax required by one purchasing such a ticket as she was sold.’ Judge Hall, the only judge to make even passing reference to the racial issues, was most explicit:
Had the matter reached the Court by some method other than certiorari, there might have been opportunity to right the wrong done this unfortunate woman. One wonders if the manager of the theatre who laid the complaint was so zealous because of a bona fide belief there had been an attempt to defraud the Province of Nova Scotia of the sum of one cent, or was it a surreptitious endeavour to enforce a Jim Crow rule by misuse of a public statute.
Despite their differing opinions, all four judges took the position that Viola Desmond’s efforts to overturn Magistrate MacKay’ s original ruling should be denied. Her conviction would stand….
[267] THE AFTERMATH
What must Viola Desmond have thought of the ruling? Although she left no letters or diaries reflecting her views, her sisters recall something of her feelings at the time. Wanda Robson, Viola’s younger sister, explains:
The day she came back from the court, knowing she had lost the case, she was very disappointed. A person like my sister never liked to lose. A person like my sister, who was such a hard worker, had always been told if you do hard work, you’re going to win. If you’re Black or Negro or whatever, you’re going to work hard, get that scholarship and win. We forgot about our colour and educated
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ourselves. She felt that she should have won the case, and she was bitterly disappointed. 118
Viola Desmond must have been appalled, not only by the ruling, but by the way her attempt to seek legal protection from racial discrimination was turned into a purely technical debate over the intricacies of criminal procedure. None of the judges even noted on the record that she was Black. The intersection of ‘white male chivalry’ with ‘Black womanhood’ lay completely unexamined. Nor was there any direct reference to the Roseland Theatre’s policy of racially segregated seating. Judge Hall was the only one to advert to the ‘Jim Crow rule,’ a reference to the practices of racial segregation spawned in the United States after the abolition of slavery. Even Judge Hall’s professed concern did not dissuade him from reaching the same conclusion as his brothers on the bench: that the court was powerless to intervene.
[In concluding, Backhouse includes commentary on the significance of the case by William Pearly Oliver, a leader in Nova Scotia’s Black community, some 15 years after the case]:
[271] Dr William Pearly Oliver tried to explain the enormous symbolic significance of the case. His appreciation for her effort transcends the failures of the legal system, and puts Viola Desmond’s contribution in clearer perspective: ‘ … this meant something to our people. Neither before or since has there been such an aggressive effort to obtain rights. The people arose as one and with one voice. This positive stand enhanced the prestige of the Negro community throughout the Province. It is my conviction that much of the positive action that has since taken place stemmed from this … ‘
Note: in 2019 Canada’s $10.00 bill was released bearing Viola Desmond’s picture. The Government of Nova Scotia issued a free, posthumous apology to Ms Desmond on April 14, 2010. As noted in the National Post, “The free pardon recognizes Ms. Desmond’s innocence at the Roseland Theatre that night, and it recognizes the error of the four white Supreme Court judges who turned down her appeal. But although the pardon is hailed as an overdue gesture, some members of Ms. Desmond’s family say if she were alive today, the former teacher and entrepreneur would want nothing of the sort. “She would have laughed and said, ‘Pardon me for what? I didn’t do anything wrong,’” said Sharon Oliver, Ms. Desmond’s niece. See http://www.nationalpost.com/story.html?id=2907492
e). Nakhuda v. Story Book Farm Primate Sanctuary 2013 ONSC 5761
Background: Ms Nakhuda bought a young Japanese snow macaque (monkey) as a pet. She knew it was illegal to keep a monkey in Toronto but obtained the monkey – which she named Darwin – from a black market source who dealt in “exotic pets”. Nakhuda took Darwin with her on a trip by car to IKEA. She left him “in a double-locked crate insider her locked car.” (Case, para 1). Darwin freed himself from the car and was found wandering in the IKEA parking lot – in a sheepskin coat that had been tailored for him. Toronto Animal Services (TAS) was called and took Darwin into custody. He was transferred to a shelter and ultimately to the Story Book Farm Primate Sanctuary. Ms Nakhuda brought a legal action against the Sanctuary to recover Darwin. The case raised a number of legal issues: was the monkey a wild animal (and if so, what legal
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conclusion followed); had Nakhuda’s immediate efforts to recover Darwin given her legal rights to get him back even if he was wild? Did the Toronto City bylaw which made owning a wild monkey illegal in the city over-ride any common law rights? Did signing over Darwin to the protective care of TAS end any claim to ownership of Darwin by Nakhuda? The extracts included below focus only on the legal status of Darwin, or as the judge consistently referred to him as “the monkey’.
4 The parties agree that the court does not have jurisdiction to determine what is in the best interests of the monkey. For example, is it best for him to live with Ms. Nakhuda or in the Sanctuary? The monkey is not a child. Callous as it may seem, the monkey is a chattel, that is to say, a piece of property. The court may apply only property law principles when considering the issues in this case.
(a) Is the monkey ferae naturae (a wild animal)?
16 It is important first to determine whether the monkey is ferae naturae (a wild animal) or mansuate naturae (a domestic animal) because different property rights apply to those two categories of animals. The parties could find only one case that deals with the ownership of a wild animal that has escaped: Campbell v. Hedley (1917), 37 D.L.R. 289 (C.A.). The case was decided by the Ontario Court of Appeal 96 years ago. In this case, Campbell was a commercial fox breeder. One of his foxes escaped from its pen. This fox was one of a third generation of breeding stock. It ran away from Campbell’s property and was shot by Campbell’s neighbour, Hedley. Campbell was not immediately aware that it had run away. Campbell sued Hedley for the value of the pelt. In considering the matter, the court had to determine whether the fox was a wild or domestic animal. It considered the qualities of wild animals and stated that they are “wild by nature because of habit, mode of life or natural instinct, are incapable of being completely domesticated and require the exercise of art, force or skill to keep them in subjection.” (Campbell, p. 293) It concluded that wild animals are owned only while they are possessed. If they are no longer possessed by a person, that person no longer owns them.
17 In quoting Lord Halsbury in his Laws of England, the court in Campbell stated that the common law classifies animals in two divisions, domestic/tame and wild. The wild class includes, “not only lions, tigers, eagles, and other animals of an undoubtedly savage nature but also deer, foxes, hares, rabbits, game of all kinds, rooks, pigeons, wild fowl and the like and all fishes, reptiles and insects.” (Campbell, p. 291) …
18 When asked whether the monkey can be considered a domestic animal if it is not a wild animal, counsel for Ms. Nakhuda stated that he was uncertain. The court in Campbell notes that domestic animals have certain characteristics. Generally, they have been “domestic from time immemorial [and] have been accustomed to the association of man or by his industry have been subjected to his will and have no disposition to escape his dominion.” (Campbell, p. 293) In exchange, they receive food and care. If they get out of their enclosures, they generally do not run away. If they do leave, they may return. Aside from circus performers, monkeys have been of service to humans by performing labour or as a livelihood though their breeding and sale for consumption. They are not farm animals such as horses, cows, pigs and sheep. They are not domesticated as pets similar to dogs and cats that live in their owners’ homes. Only in rare circumstances do
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the efforts of a monkey provide a livelihood for its owner. I have no hesitation in finding that this monkey is not a domestic animal.
19 Campbell states that the nature of an animal, rather than how it is treated, determines whether it is wild. The monkey lived in Ms. Nakhuda’s house. He wore clothing. For a time, he slept in Ms. Nakhuda’s bed. These attempts at domestication were imposed on him. He bit people – Ms. Nakhuda’s husband received the worst of it. Ms. Nakhuda was concerned that as the monkey grew older and his adult canine teeth came in, the damage from his bites would become more serious. She thought about having some of his teeth removed to address this and to reduce the chance he would draw unwanted attention to himself. …Monkeys cannot be house trained like other animals kept in homes as pets. They have to wear diapers. The monkey wore a harness most of the time so that he could not run away. Sometimes he did not wear a harness while he was in Ms. Nakhuda’s back yard; however, he was closely watched.
21 I find that the monkey is a wild animal by virtue of his behaviour and qualities. Although Campbell is an old case, its principles are still applicable now. Some people do keep exotic animals as pets. A high onus regarding provision of secure housing for wild animals is appropriate to place on their owners. Wild animals, particularly exotic ones, can be dangerous to the public. If they are native to a warm country, they cannot survive in the Canadian climate. A witness from TAS explained that monkeys can carry diseases, some of which are fatal to humans. Owners of wild animals must take extraordinary measures to ensure that these animals are securely contained for the safety of the public and for the well-being of the animals. The City of Toronto determined that it did not want some types of wild animals to be kept within the City. It passed Bylaw 349 which prohibits keeping certain animals in the City, including monkeys.
(a)(iii) Does an animal have to regain its natural liberty before it is considered a wild animal with the consequence that its owner loses possession?
27 Counsel for Ms. Nakhuda argued that a wild animal has to regain its natural liberty before the owner’s property rights are lost. He referred the court to an American case, Wiley v. Baker, 597 S.W. (2d) 3 (1980). This case concerned an elk that was shot and killed a month after it had escaped from a game farm. The court found that the elk had regained its natural liberty and therefore its status as a wild animal. Accordingly, it was no longer the property of the owner. In Mullet v. Bradley, 53 N.Y.S. 781(1898), another American case, a sea lion was captured by a person who then claimed to own it. The owner left it on an island and it escaped. At some time considerably later, the defendant in the matter bought the sea lion from a fisherman who had captured it. The court held that the sea lion was a wild animal. The owner had lost his qualified property right in the sea lion once it had regained its natural liberty.
28 Both Wiley and Mullet are distinguishable from this case because those animals were more or less in their natural habitat after they escaped. The court was able to conclude that they had regained their natural liberty. Furthermore, they are American cases which are not binding on Canadian courts. Monkeys are not native to Canada. In this case, the monkey could not regain his natural liberty unless it was taken back to the country where its species exists in the wild. Accordingly, a requirement for a wild animal to regain its natural liberty before ownership is lost is not applicable to the facts of this matter.
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Conclusion
53 Based on the evidence before me and the applicable law as I have determined it to be, I am satisfied on a balance of probabilities of the following:
(a) The monkey is a wild animal. The concepts of a habit of returning home and immediate pursuit do not apply. Ms. Nakhuda lost ownership of the monkey when she lost possession.
(b) Ms. Nakhuda understood that by signing the TAS form, she transferred ownership of the monkey to the City of Toronto. She was upset but was not unduly influenced when she signed the form. There were other options available to her. She was not required to sign the form.
(c) TAS did not unlawfully detain the monkey. It was entitled to do so in its discretion pursuant to the protective custody provisions of the bylaw. Concerns about an illegally imported monkey disease were good reasons to detain the monkey.
54 Accordingly, the action is dismissed.
Chapter 1B: Legal Subject and Legal Object
f) Section Introduction
The readings in Chapter 1.2 introduce some ideas about the categories of person and property. The first – and foundational – idea is that these categories are ‘legal constructions’ that have particular purposes and operate in particular ways. As you read these extracts, think about the case examples in section 1.
Other key ideas (that will recur throughout our study) include the following:
• The legal person is a way in which the law designates the “legitimate subjects to which it applies and against which it can be enforced.” (Darian Smith). Who counts as a person in law, is to a large extent conventional. At the same time, such legal determinations rely on deep philosophical underpinnings of the arrangements of positive law. (Pietrzkowsi)
• Legal identity is a cornerstone for access to justice and property rights provide a sense of

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PART B (SHORT ESSAY)
10 marks
INSTRUCTIONS
NO MORE THAN 1000 words (approx four pages).
Provide a short heading for each section as follows: a. Introduction; b. Science and Dogs; c. Legal
Personhood Proposals; d. Conclusion.
Marks are allocated as follows:
Q a) b) c) d) TOT
Marks 1.5 3 4 1.5 10
TOPIC: Classifying Living Beings as Legal Persons: Humans Only?
Read the 2019 Opinion article by Alexandra Horowitz, “When it comes to dogs, we shouldn’t call
ourselves ‘owners’” (posted with the Assignment Instructions). In it she writes:
Is it accurate any longer to speak of us as dogs’ “owners,” in the same way that we own chairs,
cars and butter knives? Are they only our ‘things? …In the past 50 years, the question of animal
pain (they feel it), rationality and self-awareness (some show it) has been posed and answered
scientifically. The law does not reflect most of what we now know. It is time for a change…
Write a short essay in which you set out and assess the argument(s) that dogs should have a form of
legal personhood as addressed in material we have studied (do NOT do additional research).
Use material we have studied to inform your opinion (conclusions) and ground the arguments
by citing to sources! In particular, you should read and use Horowitz, Baker v Harmina
(Casebook at 4) and Tomas Pietrzykowski (Casebook at 17) and Horowitz (cuLearn). Nakhuda
can also be used as relevant, but note that it was about wild animals not domesticated animals
such as dogs.
USE ONLY COURSE MATERIALS.
You should briefly:
a. Introduce subject and the legal status (as person or property) of dogs (using Prof Horowitz and
Baker v Harmina at least). Note: Do not dwell on animal (dog) protection laws as this is not the
point of the essay. (125-150 words approx)
b. Set out the argument(s) that scientific understandings of dogs have changed and the rationale they
provide for considering changes to the scope of legal personhood. (300-325 words approx)
c. Discuss TWO proposals in favour of expanding a form of legal personhood to dogs other than
granting the same legal personhood of humans.(325-350 words approx)
d. Conclude: How should the law change, if at all, to recognize a form of legal personhood to dogs?
(125-150 words approx).