What is Oral History?
Historians have traditionally relied on documents of various kinds while conducting their research. But documents are often insufficient for fully reconstructing the past, and this is as true of legal history as of any other field of history. Court and other legal records from the past have been lost, damaged or destroyed over time, or are so sparse in detail as to be virtually useless; solicitor/client privilege prevents historians from accessing or using potentially rich client files; and many historically important cases have gone unreported and the archival records about them are cursory. Thus the documentary record must be supplemented by other means.
Oral histories not only fill in gaps in the written records, they also add important information to supplement what we can learn from such records. They add colour, detail, and texture to characterizations of individuals, discussions of cases, and analyses of legal organizations and developments. Oral history involves interviewers asking subjects questions about their lives and careers, community involvement, colleagues and judges, and major cases or causes in which the subject has been associated, and historians use the transcripts of these interviews while researching biographies, studies of courts and particular cases, legal issues and organizations, and groups in the legal profession which have not left extensive records. Oral history transcripts of legal professionals can also be used for historians focussing on aspects of social and political history which have a legal angle.
The inadequacy of written records is especially a problem when trying to reconstruct the experiences of particular groups of people, such as racialized communities or early women lawyers. As Professor Constance Backhouse has noted, many such legal records have been jettisoned as unworthy of retention and so have been forever lost to researchers; or, as in the case of Viola Desmond, about whom Prof. Backhouse has written, the trial records did not mention that she was black and so left no record of the real significance of her case. See Colour-Coded: A Legal History of Racism in Canada, 1900-1950, pp. 14, 232 and footnote 14.
Oral histories can also be used to flesh out personal profiles of early women lawyers and highlight the difficulties they faced. For example, in a recent paper on Bertha Wilson and others, Mary Jane Mossman mentions that male lawyers often made deals in the men’s robing room, thus excluding women. She cites an interview with Hon. Mabel Van Camp, who recalled that in trying to overcome this problem when she appeared in cases in Toronto, Judy LaMarsh insisted on robing in the men’s robing room, causing “great furor.” (“‘Contexualizing’ Bertha Wilson: Wilson as a Woman in Law in Mid-20th Century Canada,” The Supreme Court Law Review, 2nd Series, Vol. 41 (2008), p. 22.)
Few lawyers or judges have written memoirs or been the subjects of biographies, a gap that oral histories help to fill. Sometimes too, the “official” record of a person or a case misses important details or presents contradictory information that must be added to or reconciled in other ways. For example, Bora Laskin never mentioned that he articled with Samuel Gotfrid, a fact that Laskin’s biographer, Philip Girard, discovered in the transcript of Mr. Gotfrid’s oral history interview. See Bora Laskin: Bringing Law to Life, pp. 61, 63-65 and footnote 9.
Another example appears in a recent Osgoode Society volume, Property on Trial, which included an article on the famous case of Manitoba Fisheries v The Queen, by Jim Phillips and Jeremy Martin. Their oral interview of Manitoba Fisheries lawyer, Kenneth Arenson, provided much useful information, including the fact that at the leave to appeal hearing Justice Pigeon’s first comment to the crown’s lawyer was ‘If a private citizen had done this, we would have called it theft.”