| Reviews / Comptes Rendus | Labour/Le Travail, 58

Reviews / Comptes Rendus

Constance Backhouse and Nancy L. Backhouse, The Heiress Versus the Establishment: Mrs. Campbell's Campaign for Legal Justice (Vancouver: UBC Press 2004)

PROFESSOR CONSTANCE BACKHOUSE and Madame Justice L. Backhouse have republished Elizabeth Bethune Campbell's riveting book Where Angels Fear to Tread (Boston: St. John's Rectory 1940), an autobiographical recounting of Campbell's run-ins with the legal establishment in Ontario over the mishandling of her mother's estate by her uncle, William Drummond Hogg, a well-respected lawyer in Ontario and Chair of the Toronto Trust Company. Campbell vividly describes her numerous court actions and encounters with the lawyers, the trust company, and the judiciary between 1925 and 1930, in her efforts to right the wrongs done to her mother's estate. The Backhouses describe Campbell as "a woman of formidable intellect, wit, and sarcasm, with a determination of steel" (3) and her writing style as "effervescent." (xiv) As a result, every reader, including this reviewer, has a difficult time not reading Campbell's book in one sitting. It reads as well as the best 'whodunit' novel. The fact that she "almost married" William Lyon Mackenzie King (248 n.14) adds further intrigue to her story.

Although her book was dated 1935 and not published until 1940, Campbell ends on a high note — her success as a self-represented litigant before the Privy Council in England in 1930. Her success was quite an accomplishment as Campbell was not trained in law, and apparently it was unusual for the Privy Council to decide in favour of a litigant who had lost in all lower courts. As the first woman to appear before the Privy Council, Campbell recognized that her achievement might have "paved the way for more sensational victories by women better equipped" (190) than she was. Campbell left England thanking God with a "satisfied heart" and wondering what would happen "should politicians ever succeed in abolishing the right of Appeal to her Majesty's Judicial Committee." (164) Appeals to the Privy Council were abolished only nine years after she published her book.

The media followed Campbell's case with great interest, often referring to her as the "Privy Council Portia" or a "Canadian Portia" and making detailed references to her physical appearance and wardrobe. For many years to follow, the book's critical stance on the legal profession and the judiciary was sufficiently controversial that Osgoode Hall's library copy was "kept under lock and key in the Librarian's Desk." (xiii) It circulated in the legal profession as "an underground copy" that the legal establishment "couldn't do anything about" and seemingly "wanted to suppress." (xv) Given its attack on the legal establishment and the judiciary, "a ticking time bomb" (3) is an apt description.

In many respects, the Backhouses provide the reader with two extremely well-written, integrated books for the price of one. The Heiress Versus the Establishment consists of Campbell's book, and the Backhouses' fascinating Introduction and Epilogue along with 81 pages of footnotes to Campbell's book (that are as long as the book itself) to confirm and elaborate on Campbell's account, and to capture and analyse the social, political, and regulatory context within which Campbell was forced to seek justice. An Appendix lists the sequence of 23 legal proceedings arising out of the estate dispute between 1922 and 1935.

Although Campbell ends her book with her success at the Privy Council, the Backhouses in the Epilogue pick up on Campbell's continuing struggles to enforce the Privy Council's judgement. Over the next five years, Campbell fought a tough battle to collect costs and interest. In fact, the Backhouses list more motions and court actions after the Privy Council decision than before it.

At first, Campbell tried the "kind and lenient" approach, designed simply to collect what was owed to her. (169) Perhaps frustrated with her lack of progress on this front, in 1931 she brought a motion in the Supreme Court of Ontario to have Hogg removed from the Rolls of the Law Society because his actions of submitting false accounts, altering book entries, and refusing to pay monies held in trust were "unbecoming a Barrister and Solicitor." (167) She did this despite the fact that the discipline of lawyers had been delegated to the Law Society of Upper Canada in 1876. Hogg's response was to file an affidavit suggesting Campbell was "not of sound mind," to which she responded that she was not "of unsound mind, unless it be a mark of unsoundness of mind to want one's money paid one." (169) She thought she was rather generous for not pressing criminal charges. (169) Hogg remained on the Rolls. In 1932, Campbell brought her request to have Hogg disbarred to the Law Society, at which point it appears as though the Law Society sat on the complaint for two and one-half years. (169)

Campbell's generosity towards Hogg was exhausted in 1934. After unsuccessfully trying to move the Law Society to disbar Hogg, she laid a private information against Hogg in Ottawa police court alleging forgery, false pretences, theft, and perjury. (177) The information was initially refused, but she was successful the second time. However, charges against Hogg were dismissed because the magistrate found no proof of "any fraudulent intent." (297 n. 32) It appears as though Campbell prosecuted her own private information. Having exhausted all legal avenues, Campbell, "quite out of keeping with [her] stature and character," picketed the Trust Company. The Backhouses suggest that the "stress and pressure" may have caused her "to unravel to some degree." (177) However, this seemed to be a rather sensible reaction to her treatment by the company, following her efforts to seek justice through more formal means. Campbell "treasured her memories of her Privy Council victory" to her death in 1956. (226) Unfortunately, the detailed documentation of her case, which she also treasured, was not kept following her death.

The Backhouses raise a number of interesting questions. On the issue of self-representation and legal education, they ask: "What does it tell us about the efficacy of legal education, offered exclusively to the few admitted to the monopolistic, self-governing legal profession, that a woman without formal education and completely untrained in law could master the intricacies of legal procedure and substantive legal argument, to emerge victorious at the Privy Council?" (23) Although judges will write anonymous blogs and informally complain about dealing with unrepresented accused, anecdotal evidence indicates that many self-represented accused are successful. Campbell's encounter clearly illustrates why. She was sufficiently immersed in her case to interrupt her counsel on numerous occasion to correct them. The Backhouses describe such interruptions as "unseemly" and Campbell "at her most difficult." However, one "bright" lawyer Campbell was dealing with "despised preparation." (216) He was in obvious need of correction. In his later autobiography, the lawyer confessed to having explained to Campbell that he and Hogg were fellow-benchers and that she would be better off with another lawyer. (216) Madame Justice Backhouse suggests that Campbell's story and that of another self-represented litigant, who probably should have been successful before the Privy Council and was not, be a lesson to her as a newly appointed judge to resist "concluding too quickly" that self-represented litigants do not have a case even when other judges have decided against them. (xvii) Madame Justice Backhouse is being too modest in not suggesting that this is an excellent lesson for all judges.

In raising questions about the discipline of lawyers, Madame Justice Backhouse muses: "as a former bencher of the Law Society of Upper Canada, I wondered whether the Law Society today would show similar reticence in disciplining prominent members of the profession and benchers who had been proven guilty of grave breaches of trust." (xvii) Although there have been improvements through the use of more permanent professional staff by law societies, a number of contemporary reports by the Fifth Estate, the Toronto Star, and the Ottawa Citizen indicate that many of the problems of delay and reluctance continue today.

I would highly recommend these excellent books for anyone concerned with professional monopolies, self-regulation, and élitism in the legal profession and the judiciary. The three authors provide insightful commentaries on all of these contemporary issues.


Joan Brockman Simon Fraser University

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