Reading Harrison

• Context
• Reading Harrison

Reading Harrison #

The first case we’ll read in this course–the Supreme Court of Canada’s decision in Harrison v Carswell–is about a labour dispute at the Polo Park shopping mall in Winnipeg in the mid-1970s. That setting may not strike you as obviously important or exciting, but Harrison is arguably one of the Supreme Court’s most important decisions for what it reveals about the central problems and debates in property law, and–more important still–for what it shows us about how judges and lawyers engage in those debates using the patterns and practices of common law legal argument.

This week, I am only asking you to read a single case, and a reasonably short one at that. But I am asking you to read that case twice, with two different sets of questions in mind. These two sets of questions correspond to the two versions of Harrison v Carswell below.

To begin, read the first version of Harrison with the following questions in mind:

• What are the basic facts of the case? Do the two different judges in the case (Justices Dickson and Laskin) emphasize or describe different facts?

• What is the central issue in the case? Can you describe that issue both in formal legal jargon and in everyday terms?

• What is the procedural history of the case (i.e. the outcomes for the parties in the courts below)?

• What is the final result in the case? Who wins and who loses? Which judge sides with which party?

• What do the judges mean by “trespass”? What do they mean by “possession”? How are these two concepts related?

Note that, at this point, I am specifically not asking you to focus on the reasoning behind the two judges’ decisions, or about which set of reasons you agree or disagree with. We will address those important questions later.

Re-reading Harrison #

Now that you have a handle on the basic features of Harrison v Carswell, I would like you to read the case again. This time, try to focus on the reasons behind Justice Dickson’s and Chief Justice Laskin’s respective decisions.

To help you with this task, I have colour-coded the two main argumentive structures in the case as they appear in each judge’s decision. Try to think about the two judges as being engaged in a process of argumentation with one another. To that end, you can jump between one judge’s argument and the other’s corresponding counter-argument using the buttons provided in the text.

This structure of argument and counter-argument (or, symmetrical “argument pairs”) captures the basic form of common law vocabulary, i.e. the way that judges, lawyers and other jurists speak to one another in their attempts to resolve legal disputes.¹ This concept of “argument pairs” may seem like a fairly straightforward–even obvious–one. But the simple dynamic of argument and counter-argument carries with it two very important features. First is the reality that there are only so many different argument pairs available to jurists, meaning that the common law vocabulary–complex as it might seem–actually builds on a relatively small number of highly patterned arguments. Second is the deep assumption that legal problems are actually resolved through this type of argumentative dialogue. As we move through the course this year, we will test that fundamental assumption from various perspectives.

While you read Harrison v Carswell a second time keep the following questions in mind:

• Can you summarize, in your own words, the two main argument pairs in the case?

• Why is the Peters case significant?

• Why do the two judges differ in how they think the case should be resolved? Do they simply come to different conclusions based on their understandings of the facts and the law? What else might be going on?

• Which judge’s decision do you find more convincing, and why?

Harrison Revisited #

In our final week of the course, our aim is to revisit where we started by way of review, synopsis, and an attempt to gauge what we have learned.

Recall that, when we first read the Supreme Court’s decision in Harrison v Carswell in Weeks 1 and 2, we analyzed the case in terms of its “vocabulary”—that is, the structure of argument and counter-argument used explicitly by the judges to justify their legal conclusions on the facts. Left unanswered in that analysis was the question of how we know which judge’s decision, as a whole, is more persuasive from a legal perspective.

We can now return to that question and apply the tools for analyzing the “grammar” of common law thought that we have developed throughout the course.

In Unit 4, we have seen that a hallmark of the contemporary style of common law thought is for judges to draw on the assumptions and techniques of both classical and modern styles to arrive at a pragmatic resolution of the case. In several examples, we have seen these styles mixed and used together in course of a single decision.

Harrison v Carswell presents an alternative result born out of the tendency for contemporary courts to abandon any unified consensus around whether to foreground competition or control, whether to reinforce or collapse the distinction between public and private, or whether to embrace formalism versus functionalism. Instead, in Harrison, Justices Dickson and Laskin engage in a kind of direct clash between classical and modern styles. As you re-read the judgment, consider what this structure implies for answering the question: whose judgement is the correct one?