Frederick Clair Hayes:  A Pragmatic Progressive

Before and after snapshots of Fred Hayes’ Court could not be more different.  During his 18-year tenure as Chief Judge of the Provincial Court (Criminal Division) – now part of the Ontario Court of Justice – a process of modernization began.  The Court began its transformation from the “most neglected court in Ontario” to the respected face of justice for the people of the province it is today.

Frederick Clair Hayes was old school in an era of profound change – a stickler for protocol in a benighted court. This  proud and dignified man took the helm of the Provincial Court (Criminal Division) in 1972.  He used those traits and led by example to bring rigour and professionalism to the Criminal Court.  Hayes did not seek out the many reforms that characterized his years as leader of the Court, but he embraced them and worked tirelessly to implement them.

Hayes’ Background: “Never Lost a Yard of Ground”

For Hayes, the commitment to public service ran deep.

Born in Arden, Ontario in 1924, Hayes was an only child, son of a family that moved around small-town eastern Ontario, settling in Tweed, where his father served as a police officer.  “It wasn’t a wealthy family,” said his daughter, Joanne Hayes.  “And this was something he always remembered – he was able to move up in the world, not only due to his skill, but through opportunities given to him.”

In 1942, Hayes volunteered to serve in the Stormont, Dundas and Glengarry Highlanders, a regiment that was known for “never failing to take an objective and never losing a yard of ground.”  He served overseas with the regiment in Holland. Though he maintained a military bearing throughout his life, “he never talked about the war,” recalled Joanne Hayes. “But I believe that experience heightened his sense of public service and was one of the reasons he took the appointment to the Magistrates’ Court in 1961.”

Like many soldiers returning to Canada, Hayes benefitted from financial aid from the federal government to attend university, first at Queen’s University and, then, Osgoode Hall Law School.  “Both my parents were helped with their educations to attend university,” explained Joanne Hayes, “and both were great advocates of education.”

Upon Hayes’ graduation from law school in 1953, he found a job in a general practice firm in Toronto.  When he married Betty Monteith in 1954, the couple decided to settle in the city.

“He was never sure why or how he was appointed – he didn’t have any political connections.  But when he was asked to become a magistrate, he took a pay cut and deemed it an honour to serve,” said Joanne Hayes.  “He was always very concerned about ‘doing the right thing.’  He’d tell us to ‘never be in a position where someone would ask you for payback.’ He hated to compromise.  He was very hard working.  He arrived home every night with a briefcase in hand and there was always a stack of Ontario Reports beside his bed.”

Joanne Hayes laughed at one particular recollection.  Hayes used to give his wife a break on Saturdays.  He’d take their three children to court – where he’d be presiding – and sit them in the back of the courtroom, asking the court volunteers, often Salvation Army workers, to keep an eye on them.

In 1990 – following his tenure as Chief Judge – Hayes was appointed, by the federal government, to the Ontario Court, General Division.  He worked until the end of his life – presiding in an attempted murder trial until the day of his death.  He died in his sleep on October 24, 1994 at the age of 70.

The Court Hayes Inherited: “The Most Neglected Court in Ontario”

It is difficult to know where to begin when describing the Court back in the 1960s and early 1970s.  As former Associate Chief Justice Peter Griffiths explained, “it was straight out of England of the 1850s.”  This anachronistic situation was about to change, propelled by two key reports:  the Royal Commission Inquiry into Civil Rights (the “McRuer Report”) of 1968 and the subsequent Ontario Law Reform Commission Report on Administration of Ontario Courts of 1973.  The provincial government of the day took the recommendations contained in those reports and translated them into significant changes to the court system in Ontario.

Both reports detailed a court system, comprised of benches of approximately 100 provincial magistrates and more than 900 justices of the peace^[1], in crisis.

• Regional variations — The Provincial Courts were decentralized amongst various municipalities, counties and districts, meaning justice looked very different depending on where one lived in Ontario.
• Disorganized record keeping —  In 1968, for example, the record keeping of the Court was so disorganized that the number of justices of the peace in Ontario was unknown.  “The names of 925 appear on incomplete records but we are informed that there is in addition an unknown number whose names are not officially recorded anywhere…this situation makes a mockery of judicial office and is bound to depreciate respect for law and order in the community.” ^[2]
• Appointments as political rewards —  Appointments to both benches were frankly political.  In his report, McRuer condemned “without reservation and with all the emphasis at our command the appointment of justices of the peace as a political reward.”^[3]
• Part-time magistrates —  Despite hearing the vast majority of criminal cases (some 95% of indictable offences were tried by magistrates in 1965), magistrates often served part time, were often engaged in the practice of law or other business at the same time, and often had no legal training.
• Lack of training —  Once appointed, magistrates and justices of the peace received little, if any, training for their positions.  In fact, one justice of the peace reported to the McRuer Commission:  “I know of several (justices of the peace) who have no knowledge of the laws with which they have to deal and who cannot even draw an information or bail bond, and simply sign the various documents drawn by other persons such as police officers.” ^[4]
• Low salaries and fee for service —  Salaries for both benches were paltry.  Justices of the peace were paid on a “fee for service” basis – a method criticized as “subversive to the administration of justices.  The payment of judicial officers on a piece-work basis necessarily diminishes the public respect for law and order.” ^[5]Salaries for magistrates were deemed inadequate – of an amount that would attract “older men who may regard (the position) as a form of semi-retirement.” ^[6]
• “Police courts” —  The Courts appeared to be dominated by the police – who often appeared, in uniform, as court staff.  This had a significant impact on public confidence in the courts as a source of impartial adjudication.  To further complicate this apprehension of bias, court proceedings were often conducted in police stations and jails.  There were, simply, no other physical facilities to house the Court.

By the time Hayes took office as Chief Judge, some of the recommendations contained in the McRuer Commission Report had been implemented.  In 1968, the Magistrates’ Court’s had become the Provincial Courts.  Two new divisions were created – the Provincial Courts (Criminal Division) and the Provincial Courts (Family Division).  Magistrates became known as judges. During Hayes’ tenure as Chief, minimum professional qualifications were specified for the exercise of certain powers or duties under the Criminal Code.  A Judicial Council for provincial judges was created to advise the Attorney General with respect to new appointments, and to investigate complaints about the conduct of judges. Judges’ salaries began to increase to reflect responsibilities.^[7]

All were critically important changes but they took time to implement.

In 1973, the Ontario Law Reform Commission noted:  “Despite the changes effected in 1968, the status of the Provincial Courts (Criminal Division) in Ontario remains low.”^[8]

This is the situation Hayes inherited in 1972 – things had begun to turn around, slowly and steadily.

The Power of Moral Suasion: “We Call Him Chief”

An independent judiciary is what makes the Canadian justice system the envy of the world.  It does not, however, make a group of independent judicial officers easy to manage.  It has been said that judges do not have a boss.  That means the Chief Judge is simply the first among equals.

This management challenge was further complicated by the “somewhat loose structure” of the Court.  The absence of a clear statement of the function and duties of the Chief Judge in the legislation establishing the Courts was noted as a significant problem by the Ontario Law Reform Commission in 1973.  Apart from general supervision and direction over arranging the sittings of his Courts and assigning judges for hearings, back in 1973, the Chief did not have much in the way of management power, particularly when the majority of administrative functions were handled by the government.  The Chief was expected to develop and maintain a “special relationship” and work with a provincial Director of Court Administration who retained control in matters relating to funding, collection of statistical information, and all administrative systems. ^[9]  Judicial independence was one thing, administrative independence was something else.

This “loose” situation was compounded by the approach to the role of Chief taken by Hayes’ immediate predecessor in the role, Arthur O. Klein.  Klein served as Chief Judge of the Magistrates’ Court for four years, beginning in 1964.  Allen Edgar, who joined the Court as Research Counsel in 1980, recalled hearing stories about the differences between the two Chief Judges:  “With Klein, it was ‘where does it say I have the power to do this?’ and with Hayes, it was ‘where does it say I can’t do this?’”  In other words, Klein took a hands-off approach to the role.  Hayes, on the other hand, was a hands-on Chief.

Hayes’ challenge was to become the first among equals – with very few real tools at his disposal.

Hayes – with his rigorous sense of protocol and imposing military bearing – understood that he was the face of the Court and that everyone was looking to him to represent the Court.  It was his job to conduct himself – always – with honour and integrity.

Former Associate Chief Justice Peter Griffiths recalled his days as a Crown Attorney at Toronto’s Old City Hall when Hayes was Chief.  “He had a wonderful presence…At swearing-in ceremonies, there’d be a lot of chatter in a packed courtroom.  Hayes would walk in and just stand there.  He’d look around the room – no smile, no words – until the room calmed down and was completely quiet.  He carried himself in a judicious way, with great dignity.”

Hayes was known as a “one-man show.”  Edgar recalled him as a “reluctant delegator.”  Hayes worked tirelessly at centralizing the manner in which the Criminal Division and Provincial Offences Courts (created in 1979) operated.  He did this the old-fashioned way, visiting as many courthouses, judges, and justices of the peace as often as he could – driving and flying around the province, particularly its far northern reaches, bringing his message of improving the Court and its services.

As part of the centralization and professionalization of the Court, Hayes instituted a system of “senior” judges and actively pressed the government to eliminate all part-time judges.  During his tenure, legislative change made it mandatory for all judges to be lawyers with at least 10 years’ experience.  Despite this requirement, he found many judges in his bench to be difficult to manage.  Given the combination of principles of judicial independence and the limited tools at his disposal, Hayes ascribed to the philosophy of “keeping your friends close and your enemies closer.”  To keep an eye on his “problems,” he often moved judges whose abilities were in question to sit in Old City Hall – the courthouse in which Hayes had his office.  This had the unfortunate result of creating a bad reputation for Old City Hall.  Because of its central downtown location and large size, newspaper reporters were often in attendance for some of the less-than-impressive behaviour of certain judicial officers.  It made for lively press coverage.  Despite these tribulations, Hayes was able to improve the reputation of the Court in ways that made the governments of the day sit up and take notice – and slowly and steadily increase the jurisdiction of the Provincial Court (Criminal Division), by giving it more Criminal Code offences that true Provincial Court judges had jurisdiction to hear.^[10]

Some recall Hayes as “moving the Courts out of the jails and police stations,” an integral element of reinforcing the independence of the Court.  Hayes did this – but only in part.  He was also pushed along by his own justices of the peace and judges.  Even in the late 1980s, weekend show-cause and bail hearings were often conducted in jails and police stations as opposed to courtrooms.  The reason?  The cost of keeping courtrooms open and staffed.  The controversy?  Court proceedings were being  held in private, often without counsel, in places that were intimidating to the accused person and in rooms that Justice of the Peace Frank Devine described as “not conducive to conducting a proper court.” ^[11] To remedy this situation, a group of justices of the peace in Toronto began refusing to conduct bail hearings in police stations or jails, stating such practices infringed the accused person’s right to an open trial with the public present and legal representation.  After several such refusals, the decision was made to open weekend “WASH” (Weekends and Statutory Holidays) courts across the province – no more weekend bail hearings within jails or police stations.

It is interesting to talk to people, like Edgar, who worked with Hayes.  The discussion always veers back to Hayes’ presence and the fact that he was always the dignified and reliable face of his Courts – even in the early days, when the Court itself was pulling itself up from its trough of neglect.  That dignity engendered deep respect amongst his colleagues.  They didn’t always like him, but they respected him.

Justice Judythe Little wrote a tribute to Hayes soon after his death, which was included in the Court’s newsletter, Benchmark.  “I think each of ‘his’ judges felt that we had his special support…Soon after my appointment, I was talking with Fred about something when we were joined by several other judges.  In conversation, I referred to Fred by name.  One judge asked me querulously why I was calling the Chief Judge ‘Fred.’  I replied immediately that I called him that because Fred was his name.  Fred chuckled with delight.  Later, I found out that most of the judges called him ‘Chief.’”

Commitment to Education

Hayes was committed to elevating the professional level of the judges and the justices of the peace to ensure a fully competent Court.  He wanted to create a criminal court of the finest reputation for Ontario.

Education was his primary tool.  But he had a couple of big hurdles to overcome.  First, educational programming was new for the Court – neither judges nor justices of the peace had received any formal training for their positions before he became Chief.  Second, he had to beg the provincial government for the money to provide any educational programming.  The purse strings were held by the government and if Hayes wanted to deliver a program, he had to ask – and, many times, he was turned down.

But, Hayes was a “make-it-work” guy, according to Doug Ewart, who worked for the Ministry of the Attorney General as legal counsel and, then, as director of the Policy Development Division of that Ministry.

Through his own efforts, Hayes used a simple practice to educate the judges.  He would get copies of all of the reported Court of Appeal and Supreme Court of Canada cases.  He’d go through them, mark them up and then distribute, to the bench, the portions that he felt his judges needed to see.  He was always conversant with the leading cases.  Justice Gerry Michel recalled the “excellent example” Hayes set for all to follow.

Another approach was his “on-the-job” education method, which many of those who worked with Hayes recall.  Justice Michel remembered Hayes’ open-door policy and natural teaching abilities.  “He was the ‘go-to’ guy if you had any sort of legal question.  He never actually told you what to do, but he would always spend the time with you to ask you questions that would lead you to the answer, or at least get you thinking about the issues you needed to consider.”

Justice of the Peace Brian Hudson had a similar story to that recounted by Michel.  Hudson began his career as a court clerk and met Hayes then.  “He treated everybody with the same respect.  He expected the same intellectual engagement from his clerks as he did from himself – and he spent time ensuring it.”  Hayes worked with his clerks to teach them the criminal law they needed to know in the courtroom.  “He relied on you – as a clerk – to know the Criminal Code.  And if you weren’t up to snuff, you didn’t work with him.  We all respected him for his command of criminal law and his ability to work – he did the work of four people…And, he made you feel that working for him was like going to law school.”

When Hayes could get funding, he provided formal programming for both judges and justices of the peace.  He worked with the University of Western Ontario to create the “University Program” for the judges – a week-long intensive program  in which a group of judges would return to law school, and a set of lectures by law professors.   He also instituted the “Sentencing Seminars,” in which judges would gather and consider cases and discuss what sentence they might hand down.  Again, Hayes knew his crowd and had carefully considered his motives.

Judging is, by its nature, a lonely occupation.  These Sentencing Seminars not only encouraged a collegial attitude amongst the judges but they also served as a way of making decisions more consistent, without treading on the judicial independence of the judges.  This, in turn, built public confidence in the Court.  The governments of the day took notice.

By continuously strengthening the professionalism of his Criminal Division bench, Hayes built, day by day, issue by issue, the confidence that led defence counsel and Crown Attorneys to increasingly opt to have matters heard in his Court whenever the law gave them the choice.  That, in turn, led legislators to regularly change legislation to increase the availability of that choice and increase the jurisdiction of Provincial Court judges.  In the result, the face of criminal justice in Ontario was changed forever, and today the Ontario Court of Justice is known as the specialist court in criminal matters.

Women on the Bench

In 2015, women account for approximately 33 per cent of the judges and approximately 47 per cent of justices of the peace in Ontario.  Back in the early 1970s, women were a rarity on both benches.  It was during Hayes’ tenure that women began to be named to the Court.  Judge June Bernhard, the first female judge, was appointed to the Criminal Division of the Provincial Court in 1979.

“Fred was one of the old guard,” recalled Justice Mary Hogan, appointed to the Criminal Division of the Provincial Court in 1987.  “He knew he was hamstrung by his old school ways and he worked at trying to move with the times.”  Hogan’s early days on the bench speak volumes about Hayes’ internal dilemma.  Unbeknownst to Hayes, Hogan was pregnant with her third child when she was appointed to the bench.

She approached him soon after she became a judge.  “I have something to tell you – I’m pregnant.  You could see Fred thinking:  ‘What am I going to do now?’  He sat quietly for a while, then he asked me when I was due.  And that was that, we just carried on…Fred was nervous as I got bigger and bigger.  He’d hang around my courtroom.  And I’m sure he thought I’d breastfeed on the bench!”  As it was, Hogan delivered her baby on Friday and was back in court on Monday.  These were the days before maternity leave for judges.  Hogan brought her daughter to work in a portable crib.  Nobody commented. Shortly after Hogan’s daughter was born, the judges’ association, while negotiating salaries with the Attorney General, added maternity leave provisions to the list of items negotiated.

In the 1980s, women began to feel they might have a chance to become a judge or a justice of the peace.  Hayes, in his way, encouraged that.  Judythe  Little, who sat in Kenora from 1986 until 2011,  recalled Hayes telling her – before she was appointed – that he was looking forward to having more women appointed to the provincial bench and that there would soon be a number of women with the necessary 10 years’ experience as a lawyer. “That day we began a relationship from which I drew a lot of strength in my work as a judge,” she stated.

Both Hogan and Little told stories of the support they received from Hayes – but the support was not overt – again perhaps reflecting Hayes’ conflicted approach.  Little recalled an educational seminar in the 1980s, where “the ‘guys’ were busy testing the new ‘lady judge’s’ approach to sentencing.  I like to think that I held my own nicely.  I remember Fred watching the exchanges with a great gleam in his eyes and a small smile on his face, as he sat back with his arms crossed.”

Hogan recalled the “days she was finally accepted by the judges at Old City Hall.” “I didn’t believe in sending traffickers who were addicts to jail and I was being constantly overturned.”  The police weren’t pleased with Hogan’s approach and the media was carefully scrutinizing her sentencing decisions.  Hayes’ approach was to take Hogan out of Drug Court and reassign her.  Hogan remembered it all came to a head in the lunch room where she and Hayes had a serious shouting match.  “He wanted me out of Drug Court and I refused.  He wasn’t mean about it – and I held my ground.  He respected that and so did the other judges.”

As Hogan told it, this was a Court where you had to make it on your own merits. It was not always an easy line to walk but Hayes ensured that the climate at the Court was welcoming to all.

Embracing Social Change: Northern Justice

Many times, Hayes was pushed – willingly – into adopting a progressive approach.  Many times, he pulled the Court into new directions.

Joanne Hayes recalled that her father respected and understood Aboriginal traditions.  “He always said that there might be different ways of delivering justice.”  His commitment to the northern regions of the province was legendary.  He travelled north often, bundled in parkas and boots.  According to his daughter, “he felt responsible to the people there and the judges.  They needed to see him.”

Hayes personally led an enormously important initiative: Ontario’s Native Justice of the Peace Program. At a time of widespread discrimination, and well before many Aboriginal people succeeded at law school and joined the legal profession, this program provided the first sustained and supportive program to bring Aboriginal people into presiding positions in Ontario’s courts.

Remarkable in its grass-roots foundation and its audacity, the program worked with and within Aboriginal communities to identify people who, though lacking formal qualifications, clearly had the intelligence, integrity and judgment to become fine judicial officers.  The program did not allow the lack of justice system knowledge or other formal qualifications to bar their accession to such positions.  Rather, the program provided intensive, in-person pre-appointment training so that those gaps could be filled, and that fully qualified individuals could be considered for appointment as justices of the peace.

The personal commitment of Hayes to this initiative, long before others were doing anything like it, shows his understated and too-often unacknowledged dedication to the highest principles of justice.  While Aboriginal people make up nearly three per cent of the Canadian population, more than seven per cent of the justices of the peace in Ontario in 2015 are Aboriginal. In keeping with his “one-man operation” approach, when Hayes sent a judicial officer to the northern reaches of the province in winter, he’d personally approach the government and ask for funding to provide the requisite parka, insulated boots and sleeping bag.

Keeping Ahead of the Torrent

“Hayes’ office was where he was,” explained Griffiths.  In the 1980s, Griffiths was a Crown Attorney in charge of scheduling all the Crowns in Toronto and assigning cases to them.  In those days, he was watching the trial lists grow longer and longer (due in part to the introduction of the Charter of Rights and Freedoms in 1982).  “I’d meet up with Hayes in the hallways of the courthouse.  If it was the beginning of a month, he’d always take me aside and tell me he had ‘good news,’ despite his ever-growing number of cases.   Then he’d pull a handwritten list out of his jacket pocket where he’d hand counted every case – thousands of them – in every court house in Ontario.  It was right out of the 1800s.  But he was always positive – he was always trying to reduce the backlogs.”  Hayes was stymied in this by the Court’s lack of control over funding and, therefore, the ability to keep statistics and modernize record-keeping processes – and keep ahead of the growing backlog.

In so many ways, Hayes was the victim of the success of his Criminal Court.   As its jurisdiction increased and criminal cases flooded in, the administrative structure simply wasn’t there to process them effectively.  Some of those necessary administrative changes would come later, with the Chiefs who followed Hayes.

By the time Hayes left office, the Criminal Division of the Provincial Court and the Provincial Offences Court were unrecognizable from the ones he had inherited.  The judges were appointed through what is still the most neutral and independent process in the country.  They had the jurisdiction to, and did, preside over almost all of the most serious criminal cases in the province. The justices of the peace had been brought under the wing of the Court and were on the road to professionalism and independence.

1. Prior to 1968, the provincial government appointed three different types of judicial officers: justices of the peace, magistrates and family judges. At the time of the McRuer Commission, justices of the peace could exercise powers in taking informations, issuing warrants, granting bail and when presiding at the trial of summary offences.  Magistrates had the jurisdiction to try, with the consent of the accused, all indictable offences, save only those few extremely serious offences which were tried in the Supreme Court of Ontario.  Magistrates also presided at the trial of summary offences, including breaches of the Highway Traffic Act, the Liquor Control Act, and municipal by-laws. In 1968, when the Provincial Courts (Criminal Division) was created, three Provincial Courts (Family Division) was also created. Its Chief Judge was Ted Andrews.↩
2. McRuer Report (Report No. 1, Vol. 2, 1968), p. 516, p. 518.↩
3. McRuer Report (Report No. 1, Vol. 2, 1968), p. 519.↩
4. McRuer Report (Report No. 1, Vol. 2, 1968), p. 520.↩
5. McRuer Report (Report No. 1, Vol. 2, 1968), p. 523.↩
6. McRuer Report (Report No. 1, Vol 2, 1968), p. 529.↩
7. Provincial Courts Act, 1968, S.O. 1968, c. 103; Ontario Law Reform Commission, Report on Administration of Ontario Courts, (Part II, 1973), p. 3.↩
8. Ontario Law Reform Commission, Report on Administration of Ontario Courts, (Part II, 1973), p. 3↩
9. Ontario Law Reform Commission, Report on Administration of Ontario Courts, (Part II, 1973), p. 20-21↩
10. In the years since the McRuer Report, numerous legislative and policy decisions have been made by the federal and provincial governments which have systematically increased the criminal jurisdiction of the Court, reduced the exclusive jurisdiction and workload of the Superior Court in respect of criminal matters and made the Ontario Court of Justice, for all intents and purposes, the major and dominant criminal trial court for the province.  Approximately 98% of the criminal case load in Ontario is finally disposed of in the Ontario Court of Justice.↩
11. All quotes of various individuals including J. Hayes, P. Griffiths, A. Edgar, F. Devine, B. Hudson, D. Ewart, M. Hogan, G. Michel, were from interviews conducted with them for the OCJ History Project in 2013-15.↩

 

Robert James Kerfoot Walmsley: Long and Fondly Remembered

Robert James Kerfoot Walmsley was born on November 25, 1927 in Picton, Ontario, the county town for Prince Edward County. His mother, Helen Kerfoot, was a teacher and his father, Gordon T. Walmsley, was a lawyer. The Walmsley law firm had deep roots in Prince Edward County having been founded by Robert Walmsley’s grandfather in 1889.

Robert Walmsley received his initial secondary school education at the University of Toronto Schools and then at Kingston Collegiate and Vocational School and the Picton Collegiate and Vocational Institute, graduating from Grade 13 with first-class honours. Robert Walmsley attended Trinity College at the University of Toronto from 1946 to 1950 and Osgoode Hall Law School from 1950 to 1954, after which he joined the Walmsley law firm. He practised in Picton with his father upon his call to the bar and was later joined in the firm by his younger brother Douglas in 1963.^[1]

Robert Walmsley married Ruth Linell in 1952, whom he had met at the University of Toronto.  Together they had four children: Ann, John, Peter and Benjamin.

As a local lawyer, Walmsley was actively involved in community life, sitting on Picton’s town council as well as serving as a school trustee and on the library board.  He also sang in community productions, much as he had done at university.

Walmsley was first appointed to the bench in 1965 as an acting family court judge.  In 1967 and 1968, he served in the same capacity on a part-time basis for Prince Edward County. In 1968, he became the full-time magistrate and family court judge for Hastings, Lennox and Addington Counties and Prince Edward County, and then, in keeping with the changes in the structure of the courts, was appointed in 1968 as a full-time judge in the Provincial Court (Family Division).

In June 1977, he was named Senior Judge for the eastern region of Ontario and, in September 1978, he became the Associate Chief Judge of the Family Court, a position he held until 1992, when he retired as a full-time judge. Thereafter, he sat as a per diem judge until he reached the age of 75.
During his career on the bench, Walmsley served in many different capacities. He was president of the Provincial Judges’ Association (Family Division) from 1974 to 1975 and was a member of the board of that association from 1969 to 1978. He was also a member of the Canadian Council of Juvenile and Family Court Judges and participated in and contributed to many legal and community conferences, including lectures to students at Queen’s University Law School, Loyalist College and Trent University.

Throughout his legal career, Robert Walmsley was a member of the International Commission of Jurists, having first joined in 1955. He was also a member, from time to time, of the Canadian Institute for the Administration of Justice and the Canadian Bar Association (where he served both as a member of the Council of the Ontario Branch and on the National Council).^[2]

In the course of a judicial career that spanned over 37 years, Robert Walmsley wrote and delivered many judgments, 66 of which are still available on LexisNexis. He was a “judge’s judge and a lawyer’s judge,” observed his long-time colleague and friend Justice James Felstiner. “His judgments were very well written, logical and sensible.”^[3]

However, it was as an administrative judge that Associate Chief Judge Walmsley made his most lasting contribution. The Chief Judge of the Family Court, H. Tedford G. Andrews, asked him to oversee some of the most important developments in that Court. Those tasks included convincing the Attorney General of the day that appointees to the Court had to be legally trained, relocating family courts out of the basements of Ontario, figuratively and literally, and establishing continuing education programs for the judges.^[4]

Robert Walmsley served as a special advisor on family law to the Chief Judge and provided substantial input into new legislation, including the Young Offenders Act, the Family Law Reform Act and the Child and Family Services Act. He was involved in the development of continuing education programs for Family Court judges and acted as a mentor and support for judges.

He also lobbied for an increased number of judges to deal with delays in the administration of justice on the family side. Walmsley, alongside Andrews, took what was then an unusual step for judges by publicly expressing their concern in the media about delays in the family courts. He told The Globe and Mail that “a young child’s interest could very well be to stay where [the child] is, because [the child] becomes psychologically attached. So you have decisions dictated to you by the passage of time. It is unfortunate to the parents, the foster parents and everyone involved.”^[5] This public relations effort made the case for a greater investment of resources into family law. Andrews maintained that Robert Walmsley’s contribution to the evolution of family justice in Ontario cannot be overstated.^[6]

Later in his career, Walmsley became involved in the process for appointing judges to the Provincial Courts. In 1988, he was asked to join a judicial appointments committee established for a three-year project by Attorney General Ian Scott. This committee was charged with seeking out qualified candidates from the legal profession, but particularly those from groups not then ordinarily represented on the bench – women, visible minorities and aboriginals. This eventually led to the establishment of the Judicial Appointments Advisory Committee (JAAC). In 1991, within a year of the merger of the Provincial Court (Criminal Division) and the Provincial Court (Family Division) into the Ontario Court of Justice (Provincial Division), Walmsley was asked to act as the chair of that committee.

The work on the JAAC committee was the highlight of Walmsley’s career in that it allowed him to play a major role in the direction of the Court. He worked tirelessly to develop the process and procedures by which the committee functioned. Dozens of judges were interviewed by the committee as judicial applicants during his time as chair, and they universally remember him as a soft-spoken, kind and understanding man whose words of encouragement before and after their interviews helped ease the stress of the experience.^[7]

A surprising issue that arose out of that role was the question of whether committee members were able to keep their notes and records private. This became an issue in the case of Walmsley v. Ontario (Attorney General).^[8]Robert Walmsley was the named respondent in an application brought for discovery of those records. The Ontario Court of Appeal decided that the members of the committee were not employees or agents of the province and their records were not discoverable. This decision enhanced the independence of the committee from the executive branch of government and thus supported judicial independence. Aside from the principle that was upheld, this decision was of considerable relief to Walmsley because of his habit of drawing portraits of people appearing in front of him – he used the sketches to help him in reviewing cases – and because he had a penchant for composing rhyming verses in his notebook. He certainly would not have wanted his sketches and poetry to meet the public eye in the glare of a lawsuit.

Not lost on Walmsley was the importance that attention to detail played in the JAAC committee process.  Along with its efforts to attract well-qualified candidates from all parts of the society it served, the reformed appointment process was vastly different from that which was in place when Robert Walmsley was a young lawyer. He often remarked that the new and better appointment protocols would have made his own appointment to the bench far less certain.

Walmsley brought to the Judicial Appointments Advisory Committee the good humour and empathy that was his trademark characteristic. Justice Rosalie Abella of the Supreme Court of Canada, who met Walmsley in 1976 when she was appointed a Family Court judge in Ontario, said: “Bob was an extraordinarily warm, compassionate and wise man.” She added that “he took care of all of us on the Court – intellectually, collegially and institutionally. … He was one of the most literate people I knew, his exceptional cerebral talents were matched by a fantastic sense of humour. He was funny, laughed easily and often, and never failed to find the right deflationary retort to any whiff of pomposity.”^[9]

Chief Judge Andrews remarked upon the personal adaptability of Walmsley, who had reinvented himself from a rural Family Court judge in a single-judge location, to one of the most popular and beloved management judges in the history of the Court. As remembered by Andrews, “Bob” – as he was known to his colleagues – was everyone’s “grandfather, compassionate, understanding, incredibly supportive and always ready to soothe everyone’s woes with a kind smile and a word of encouragement.” Andrews found him to be “a dear friend and colleague, an exemplary judge, a wonderful husband and father, and a model citizen.” ^[10]

Justice Felstiner remembered aspects of Walmsley’s retirement that illustrate his personality. They often met for lunch and he noted:

Bob had an insatiable curiosity about new places, food (were the olives Greek or Italian?), waitresses’ careers, city happenings, new neighbourhoods, old neighbourhoods – especially old Toronto neighbourhoods with their remaining substantial homes from the 19^th century. We always drove slowly – peeking here, going down that alley, stopping to watch cranes lift things high onto new condos. A typical scene: at the end of lunch I would go get my car, park it illegally, smack dab in front of the restaurant to make it easier for Bob [as a youngster a severe infection in his hip left him with a pronounced limp for the rest of his life], and I’d go in to get him. Rarely was he alone; it was hard to pull him away from his conversations with the cashier or waiter, and then he always, always stopped to read the brochures available as we went out the door. Then on the street he would say, “Oh there’s a Korean bookstore, I’ll just look in the window.”^[11]

In his retirement, Walmsley mentored elementary school students and read to young children in the school library. This love of reading was not unusual for him because he was “enamoured of words (he memorized poetry and did cryptic crosswords from the Manchester Guardian for years) and so friendly to the whole world around him.”^[12]

He also loved spending time at the family cottage in Prince Edward County where he had spent so much of his life enjoying the opportunity to sail and canoe. “He had an absolutely flawless J-stroke with the paddle”, his daughter Ann Walmsley reported.^[13]

Robert James Kerfoot Walmsley died November 18, 2008, in his sleep at his Toronto home. He was 80 years old. He was survived by his wife, his children and 12 grandchildren.

In 2002, Chief Justice Brian Lennox wrote these words in a letter to Walmsley on the occasion of his 75^th birthday:

The judges of the Ontario Court of Justice owe an immense debt to you in the various capacities which you have occupied in the course of the evolution of our Court. You have not only witnessed, but you have been a leading actor in the entire modern history of the provincial courts of Ontario. You have done so with dignity, grace, wisdom, humour, energy and enthusiasm. It is given to very few people in the course of their lives to have made such a significant contribution … When the history of the provincial courts of Ontario is written, you will be long and fondly remembered and will have a place of honour.^[14]

1. Indeed, the firm continued into the 21st century under the guidance of Justice Walmsley’s brother, Douglas, who practiced law for 40 years and who died in 2007 at the age of 71.↩
2. February 1982 Curriculum Vitae, Archives of the Chief Justice.↩
3. The Globe and Mail, December 29, 2008.↩
4. Benchmark, Vol.17, No.4 – Winter 2008, p. 2.↩
5. The Globe and Mail, op. cit.↩
6. Benchmark, op. cit. p 2.↩
7. Letter dated August 11, 1993 from Chief Judge Sidney B. Linden to Associate Chief Judge R.J.K. Walmsley.↩
8. 34 O.R. (3d) 611, [1997] O.J. No. 2485.↩
9. The Globe and Mail, op. cit.↩
10. Benchmark, op. cit., p. 2.↩
11. Benchmark, op. cit.,  p. 2-3.↩
12. Benchmark, op.cit., p. 2-3.↩
13. The Globe and Mail, op. cit.↩
14. Letter dated November 25, 2002  from Chief Justice Brian W. Lennox to R.J.K. Walmsley.↩

 

Joe Addison and Robert Dnieper

Introduction

In 1986, Canadian author, Jack Batten published Judges – a collection of profiles which the author described as being “about Canadian judges at work.”^[1] He took several Provincial Court judges as subjects and concluded that Provincial Court was where the “scrappy, visceral stuff takes place.”  Batten observed that on any given day in court: “a judge is routinely called on to exhibit the tact of a diplomat, the wisdom of Solomon, the patience of a peace negotiator.” He interviewed numerous judges who were presiding in Toronto’s Old City Hall – a building Batten characterized as “everybody’s blithe and eccentric aunt. It just misses dowdiness, but for quirkiness it’s right on target.”^[2]

Several of the Old City Hall judges profiled were quirky in their own rights. In particular, Judge Robert Dnieper was possessed of a significant reputation when Batten chose to write about him. A judge for 25 years by 1986, Dnieper was routinely identified by the media, lawyers and others as one of “the worst” in the Provincial Court system.^[3]

Batten also interviewed judges whom he unabashedly admired for being “courteous, bright, determined and industrious.” “Gentleman Joe” Addison was placed squarely in that category by the author.

Jack Batten’s profiles of Addison and Dnieper are excerpted in the following paragraphs.

 Judge Joe Addison

As an introduction to the excerpt from Judges, Jack Batten has penned this postscript to his profile of Joe Addison:

“At Joe Addison’s funeral on Sunday afternoon, September 6, 1986, the rabbi spoke first.

 ‘Our friend Judge Joe Addison died a happy man,’ the rabbi began.

 Then he explained why Judge Joe Addison had been happy. It happened that a few days earlier, the judge had got his hands on an advance copy of the book published later that month with a simple title, Judges. The book offered a series of thirteen profiles of judges at different levels of Canadian jurisprudence. One chapter was all about the Chief Justice of the British Columbia Court of Appeal. Another told the story of a Saskatchewan trial judge whose life might have been under threat from a man who had appeared before him. And another chapter tried to portray the entire Supreme Court of Canada.

 Then there was the chapter titled ‘Joe Addison.’  It told Judge Addison’s story from the time he was appointed to Ontario’s Provincial Court in 1958. On the bench, Judge Addison was fair, kind, well-versed in the law, and often very funny. He treated everybody who appeared before him with grace. It was not for nothing that the nickname by which he become known around the courts was ‘Gentleman Joe.’

 Judge Addison took his advance copy of Judges home to show his family. He was seventy-four at the time, still sitting on the bench, still counting on a few more years of life. That night, he gathered his family together, and read to them the chapter about him from the book. He was pleased with what he read. So was his family. It made him and them feel proud of the work he had done and was still doing.

 Joe Addison went to sleep that night a happy man. Since the judge never woke up from the sleep, since he died in the night, the rabbi at his funeral must surely have been right when he said Judge Addison died a happy man.”

Thus, the words which so pleased Joe Addison in Jack Batten’s Judges are excerpted below:

Addison has been a Provincial Court judge since 1958, sitting almost exclusively in Toronto’s Old City Hall, and in all his years on the bench, he’s taken a sort of bemused attitude toward the bizarre and terrible events that happen in front of him. He’s a funny man, and he likes to laugh on the job. But there’s nothing condescending or cruel about his wit. He doesn’t score points off the people in the prisoners’ box. He doesn’t take advantage.

“I’m not gonna go out there resenting the guys who appear before me,” he said one spring morning in 1985, sitting in his chambers at Old City Hall. “I don’t shake my finger at them or give them a lecture. They know what’s gonna happen to them anyway. In a lot of cases, most likely they’re going to jail.” There are a couple of other points about Addison. One is that he’s a gracious man. He isn’t known among defence counsel as “Gentleman Joe” for nothing. And the other is that he’s got the art of judging down as fine and fair as it will go. Around Old City Hall, they say that Joe Addison has never been reversed on appeal. It’s hyperbole, but it’s a measure of the man’s honestly won reputation.

“Everybody gets a good trial from me.” Addison said. “The fella may not like the result, but he can’t complain he wasn’t treated right. I’ve always told my associates on the bench, if I was a person who wasn’t guilty of something  I was charged with, I’d rather appear before  me than any of them….

In the catalogue of the thousands of cases he’s heard, Addison looks back on the David Winchell hearing as one he got a special laugh out of. Several laughs. Winchell was a stock promoter around Toronto, and in the late 1970s he was peddling an unlisted oil stock to a number of the city’s big shooters. Winchell’s adviser in the deals was a lawyer named Sam Ciglen, who had had his own troubles with the law over the years. He had made many trips to court to defend himself against charges of stock fraud. But in the Winchell case he was mainly on the sidelines, which isn’t to say he didn’t reap a few benefits from the association.  “The two of them, Winchell and Ciglen, used to go back and forth to Switzerland like I go downtown,” Addison says. “Switzerland must’ve been where they had a bank account for the money from the issue of this crazy stock.”

The money was substantial, about six hundred thousand dollars before the big shooters began to get nervous and called in the fraud squad. Charges were duly laid against Winchell, though not Ciglen, and the preliminary hearing in the case came before Addison.

“The fellas with the important names who lost money testified for the Crown,” Addison says. “DelZotto.  Rudy Bratty. First time I ever saw those fellas look unhappy.”

A Crown witness named Sherkin, one of the other investors who’d dropped a bundle, took the stand.

Sherkin looked over from the witness-box to Addison. “Goodie sends his regards,” he said.

Winchell’s lawyer, an excellent counsel named Mike Moldaver, sprang to his feet and asked to see Addison in his chambers.

“What’s the trouble, Mike?” Addison asked when they were alone.

“The witness, Sherkin,” Moldaver said, concerned, “he’s a close friend of yours?”

“Mike, I never saw the man before in my life.”

“But what about this Goodie he’s talking about?”

Addison explained.

“He’s talking about Goodie Rosen, Sherkin is,” he said. “Goodie’s a wonderful guy. Used to play baseball for the old Brooklyn Dodgers in the 1940s. I grew up with him down by Bellwoods Park. Sherkin’s a friend of Goodie’s, I guess, and so am I. I got no control over what the witness says, but there’s nothing wrong here.”

Moldaver was mollified and returned to court.

Sherkin wasn’t through.

“Winchell used to take us investors up to his summer cottage and ride us around in his boat,” he testified. “That cottage, the Taj Mahal is smaller even, and his boat, you could float the Queen Mary inside it.”

Sherkin said he’d invested so much money in Winchell’s stock that his wife had worried herself into a heart condition.

Sherkin looked over at Winchell in the prisoners’ box.

“So what are you selling today, David?” he said. “Cancer?”

As the preliminary hearing progressed and as the evidence accumulated against Winchell, Moldaver entered into plea-bargaining with the Crown. They worked out a deal and took it to Addison for his approval. Winchell would plead guilty and accept a fine of one million dollars and repay the investors to the tune of some six hundred thousand dollars.

“I agree,” Addison said to the lawyers. “How would it help these investors get back their money if Winchell went to jail for three or four years? Wouldn’t achieve a thing.”

The bargain was struck, and a day later, a court official knocked on the door to Addison’s chambers.

“You want to look at something amazing?” the official said.

“Show me.”

The official held out a cheque.

“It’s from Winchell.” He said.

“One million bucks,” Addison said. “Certified. How d’ya like that? He came back with it overnight.”

“Ever seen one like that?” the official asked.

“Don’t move in those circles,” Addison answered…

Addison’s chambers are in a large, gloomy room at the top of Old City Hall. They’re furnished in pieces that might have come from a thrift store—a desk, a couple of armchairs, a sofa, and a coffee table. On the coffee table on this day there rested two fat volumes with blue covers, each volume about an inch and a half thick.

“My judgment from the preliminary hearing on the Southam case,” Addison said, gesturing at the blue volumes.

The Southam case is one of Addison’s prides. The hearing stretched over several months in his court, and he estimates he read “probably twenty thousand pages of cases” before he wrote his long judgment. The case involved important issues and big names in Canada’s corporate community, and it arose out of a series of transactions worked out by the country’s three leading newspaper publishers. Over a short period of time in the late 1970s and the early 1980s, the three dealt in several big-city newspapers in ways that attracted the alarm of the federal Attorney General’s Office. In Montreal, FP Publications closed down the Star and left the daily field to the Gazette, a Southam paper. In Winnipeg, it was a Southam paper, the Tribune that folded, leaving a Thomson paper, the Free Press, all alone. In Ottawa, the Journal ceased publication and turned the market over to a Southam paper, the Citizen. And in Vancouver, both newspapers continued operations, the Sun and the Province, but Thomson assigned its half-interest in the company that owned the two, Pacific Press, to Southam. The federal government regarded all of this manoeuvring as a form of hanky-panky and charged Southam, FP, and Thomson with offences under the Anti-Combines Act.

“I didn’t know I was taking the preliminary hearing in the case until the morning I walked into Forty-two Court,” Addison said in his chambers. “This was in the fall of 1981, and I looked at the counsel table and what I saw was the A-Team. I knew it was gonna be something very large.”

The evidence was complex, and the issues were new to Addison. “I’d never been down that road before,” he said. The hearing lasted through the winter until Easter of 1982 with a few weeks off from time to time while Addison and counsel tended to other cases and other trials. Addison did his homework on anti-combines law, and, as the hearing progressed, it seemed to him that there would probably be enough evidence to commit the newspaper chains to trial on the charges.

Jake Howard, Southam’s counsel, must have seen the writing on the wall. He elected to put in no defence on behalf of his client.

“Mr. Howard, do you have an argument?” Addison asked him in court.

“Your honour,” Howard said, “I didn’t have an argument in the beginning.”

Addison laughed. It was his kind of answer.

When the hearing ended and Addison retired to write his judgment, he found himself with new problems. Who, for example, was going to type his judgment?

Writing the judgment was challenging enough. “Many a night I’d wake up at four in the morning with something on my mind,” he said. “I’d get up, go to the den at home, and write until I got it all down.” The writing took up several four-in-the-morning sessions and most of the rest of Addison’s time. “I went to our chief judge, Fred Hayes,” Addison said, “and I said to him, ‘you may be wondering what I’m doing,’ and then I said, ‘I may be writing a novel.’”

Addison finished the judgment in longhand and went looking for someone to type it.

“The crazy problems you have in my business,’ he said. “I had a secretary, but she also worked for four other judges. I gave her the judgment and three weeks later it was still sitting in the same place. So I told her to farm out parts of the judgment to other stenographers. That didn’t work. Totally disjointed. Do guys in the Supreme Court of Canada have this kind of trouble? Next we brought in the good legal secretary who happened to be on the loose and got her to type it. At first there was a small difficulty. Her desk was beside the kid who delivered the mail. He smoked. That bothered the secretary. I got her a new office. By then I’d already had to postpone the day I said I’d deliver the judgment. It’s crazy, but that’s life in the Provincial Court.”

Addison’s judgment added up to 477 typed pages and it took him three days in early May of 1982 to read his words to the lawyers and reporters assembled in Forty-two Court. “Regrettably,” he began, “I have been unable to condense this judgment to other than gargantuan proportions.” Then he proceeded to analyse the evidence and the law on combines in immaculate detail. He concluded that the newspaper chains must face trial on the Crown’s charges.

Much later, at the trial in the Supreme Court of Ontario, the presiding justice dismissed the charges against Southam, FP and Thomson. He based his judgment on fact rather than on law. As a finding of fact, the justice held that the newspaper executives had no intent to break the law, that they had arrived at no prior arrangement to give themselves or the others an advantage in the various newspaper markets. Since the finding was based on fact, not law, the Crown was not able to make an appeal of the decision to a higher court.

Addison wished that the case could have been proceeded to appeal. He would have liked to see his own conclusions thrashed around in the Ontario Court of Appeal and the Supreme Court of Canada. That was one disappointment the case left him with. And there was one other tiny, niggling regret.

“I wish I’d bought some Southam stock,” he said in his chambers. “These guys had just created a gold mine. The stock was bound to go up, and after I’d finished my judgments, which of course was contrary to where my money would be going, I thought about investing. But then I figured, no, I better not touch it. The thing about being a judge is you can’t do anything that wouldn’t look right.”^[4]

To balance Batten’s profile of Addison, it is interesting to consider the writings of one of Joe Addison’s peers on the bench at the time. Judge David Vanek was appointed to Magistrates’ Court a decade after Addison. Much had changed during those 10 years and Vanek had a different approach to judging than Addison. Vanek was more concerned with judicial independence than Addison who came from the culture of the “Police Magistrates’ Court,” where there had been a close relationship between police and magistrates.

According to Vanek, “Joe was infected by the magistrates’ syndrome. I considered Joe too close and friendly with the police. While there was nothing wrongful in this relationship, I felt it was desirable to avoid even an appearance of influence over a judge by persons associated with the justice system. I recall sitting in court with Joe Addison as part of my initial orientation when, in the course of the day, an accused came before him and pleaded guilty to the possession of a concealed weapon. He was a black man, had come from Buffalo by car, and had been stopped by police who found a loaded pistol in the car. I believe it had been affixed to the engine. The accused made an elaborate plea for leniency on grounds that because of the incidence of crime in the United States, it was necessary and acceptable to be in possession of a firearm for personal protection. He was under the impression that the law and the need for protection were the same in Canada. Joe Addison listened impassively, then simply spoke two words: “Six months!”^[5] Vanek’s comments clearly demonstrate the maturing professionalism of the bench, with a growing concern about judicial independence.

Judge Robert Dnieper

So, why is someone known for being — in Jack Batten’s words — “a loose cannon” included in the court’s history? A profile like this one about Judge Robert Dnieper is a good reminder of where the court came from, the serious challenges it faced in the past and a strong admonition of where the court should not tread again – thanks to much improved appointments, review and education processes now in place for all judicial officers.

Dnieper sat prior to the adoption of any of these updated processes. Before the Ontario Judicial Council was created, complaints about judges went directly to the Attorney General. Dnieper was, several times, publicly upbraided by the Attorney General – but not dismissed from the bench. Dnieper threatened a 16-year-old with “the lash,” after the young man was charged with vagrancy in 1965. The charges against the young man had actually been dismissed but that didn’t deter Dnieper from delivering a very threatening lecture. The then-Attorney General, Arthur Wishart, in an interview with The Globe and Mail stated: “[T]his type of commentary and the way it was done and the language used does not add to the (good) impression of the public and does not please this court and does not please me.”^[6] In the end, Dnieper far outlasted Wishart.  Dnieper served 33 years on the bench until retirement in 1993.

Jack Batten’s account of Dnieper is reproduced below:

“The man appearing before Judge Robert Dnieper in the first week of October 1985 didn’t give off the feel of a student or a scholar. But, according to the evidence, he had in his possession 236 learned texts dealing with early Christian myths and history. The man’s name was George Elia, he was forty-eight years old and he’d stolen all 236 books from libraries at the University of Toronto. It wasn’t the first time Elia was caught swiping university books. He’d been nailed with a bag of texts in 1981, but since then he’d apparently gone in for thievery in a much more ambitious way. He’d enrolled in one non-credit course at the university, thereby acquiring a library card, and before librarians grabbed him in April 1985, he’d managed to squirrel away the 236 books which were worth about thirteen thousand dollars. Elia was hardly the only library thief in the university’s experience, just one of the most cagey, but as he stood before Judge Dnieper, he and the university knew that the other apprehended thieves had received nothing worse than a slap-on-the-wrist fine for their crimes.

Dnieper changed the old perceptions in a hurry.

“You have done incalculable harm to other students,” Dnieper said to Elia. “And this is going to be the first time in Ontario, and possibly all of Canada, that someone is going to jail for what you have done.”

He sentenced Elia to serve seven days in jail, put him on probation for three years, directed him to perform three hundred hours of community service, and ordered him to pay restitution for any of the 236 books that weren’t returned to the university.

That was Judge Dnieper on what most lawyers who appear regularly in his court would call a good day. On Dnieper’s other days, there’s no counting on his decisions or his sentences, his attitude to counsel or the quality of his repartee. Dnieper is the loose cannon among judges at Old City Hall. He is bright and quick but unpredictable; he has a sound knowledge of the law but might bypass it on occasions when he decides justice is best served by making an end run around the Criminal Code; he is fast with a genuinely witty line, the Johnny Carson of the Courtroom, but his humour sometimes takes on an edge that may be black or sexist or patronizing.

Many of his qualities went on vintage display one day in May 1983 in Twenty-three Court when Dnieper had before him an old-time rounder named Carroll who was pleading guilty to one count of theft under two hundred dollars. Mr. Carroll had light-fingered a couple of bottles of aftershave lotion and been caught in the act.

“How are you feeling?” Dnieper began with Carroll.

“Fine,” Carroll answered.

“How long do you want on this one?” Dnieper asked.

“You mean you want me to tell you how much I want?” Carroll said, slightly amazed.

“Yeah,” Dnieper said. “How long do you want in jail?”

At that point, the Crown Attorney, a woman named Goebbels, decided to put in her oar.

“Your honour,” she said, “this is his fifty-third conviction on theft. In January he got three months, and in March he got thirty days.”

“I don’t have time to read his record,” Dnieper said. “This court has to quit at five o’clock.”

Dnieper turned back to Carroll.

“Give me an answer,” he said. “How long do you want?”

“Ten days?” Carroll tried.

“Why not?” Dnieper said. “Sounds fair to me.”

Dnieper swung back to Ms. Goebbels.

“You see, crown,” he said. “Mr. Carroll is neither a plague of locusts nor a national disaster. He is an irritation much like a mosquito or a black-fly in June. It is a judgment of God upon our society and something with which we have to live. He is neither a danger to society nor a danger to the individual members thereof. He is merely a pain in the neck.”

“Yes, your honour,” Goebbels said, “but with respect, one usually tries to swat the black-flies or mosquitoes so they don’t come back again.”

“You and I must be thinking of different black-flies,” Dnieper answered. “Black-flies with which I’ve had anything to do defy swatting, and Carroll defies correction. So let’s accept him and forget about it.”

“Thank you, your honour,” Goebbels said, tossing in the towel.

But Dnieper wasn’t finished with Carroll.

“Listen,” Dnieper said to the man, “if I get you again, I’m going to throw you on the street without sending you up to the jail at all.”

Dnieper looked over at Ms. Goebbels.

“You see, crown,” he said, “the great value of the English common law is its ability to adapt to the situation.”

Dnieper has been either outraging or delighting his courtroom audiences since the day of his appointment to the bench in 1961. He is now in his mid-fifties, an imposing, forceful man… .

His hair is black and slicked back. His eyes are dark and constantly on the move in the courtroom. He checks out counsel, gives the accused a once-over, and scans the audience. He looks restless, like a judge who doesn’t mind a little controversy to juice up his day.

He may often be hard to read in his responses in court, but in a couple of areas Dnieper is utterly consistent. Drug offences make up one area. Dnieper is death on drug users and worse on drug pushers. Almost all Provincial Court judges grant a discharge to kids caught with a small amount of marijuana on a first offence, but Dnieper usually hands out a sentence. Defence counsel are aware of this propensity and try to steer clear of him when he is sitting in the drug courts. What they want to avoid, apart from a criminal record for their clients, is the lecture that Dnieper frequently delivers along with the sentence.

It’s The Dnieper Lecture to defence counsel. They know it by heart. It explains how the international commerce in drugs is related to the decline of the western world. Defence counsel are said to develop an automatic groan after too many exposures to The Lecture.

“The traffic in narcotics is an organized evil and a conspiratorial evil,” Dnieper began in the course of a typical five minute version of The Lecture during the sentencing in 1979 of a young man charged with the possession of marijuana. “In supporting these men who have no heart to our nation, the accused became one of them, an enemy to our people, and I do not view it lightly.”

And that wasn’t all.

“I won’t bore anyone with a recitation of the amount of Canadian dollars that flows outside the country for these drugs,” Dnieper went on. “All this, of course, has to be paid for by the sale of our natural resources.”

In the end, the young man’s penalty was comparatively light in Dnieper’s terms — a one-hundred-dollar fine or seven days in jail.

If Dnieper sounds like a patriot, he is. He emigrated to Canada from the Ukraine with his parents when he was a child, and though his early life was harsh – he was compelled to work in a factory as an eleven-year-old – he developed a love affair with his new home.

But his love does not necessarily extend to Canadian society’s dissenters and activists. A twenty-eight-year-old man named Scott Marsden discovered that truth when he appeared before Dnieper on June 24, 1985. Marsden had taken part in a sitdown in the driveway at Litton Systems, the Toronto company that makes parts for Cruise missiles. Marsden was arrested and found himself in front of Dnieper, who convicted him of mischief, bringing Marsden’s total to four mischief convictions during four demonstrations.

“The accused in the past has broken the law because he seeks to impose his will upon us all,” Dnieper rumbled. “The views of Canadian society are represented in the House of Commons, and the accused cannot contravene the will of the people.”

Then Dnieper hit Marsden with the toughest sentence for demonstrating that regulars around Old City Hall could recall.

Five days in jail, two hundred hours of community service, and prohibition from taking part in similar demonstrations for a year.

When something rouses Dnieper’s anger, he holds nothing back. He pitches into the case. An unfortunate pornographer came before him on February 22, 1985. The man was sixty-three- years old and the proprietor of a hole-in-the-wall store in downtown Toronto where he sold comic books over the counter. Under the counter, he peddled sex magazines which were imported from Europe and the United States. The magazines were long on violence and bondage, and their price tag was hefty, about thirty dollars per magazine. Dnieper studied the man’s product, pronounced it “disgusting,” and sentenced him to eighteen months in prison. The Crown Attorney on the case, John Hansbridge, felt his jaw drop in disbelief. “The usual penalty on such conviction,” Hansbridge said later, “is a fine and maybe a day in jail.” Not in Judge Dnieper’s court.

On the morning of October 16, 1985, sitting in Forty-two Court, Dnieper put on display another of the tendencies that set him apart from other Old City Hall judges — his blunt style of questioning. In a sense, his head-on directness is a reflection of his own quick mind. He can’t abide counsel who don’t get to the facts. Witnesses who dawdle over the case’s point drive him to exasperation. Dnieper has already absorbed the point while everybody else is still circling it. The difference in speed makes Dnieper twitch with impatience, and he was beginning to squirm in Forty-two Court on October 16 during a preliminary hearing on a first-degree-murder charge.

The accused was a Canadian Indian in his late twenties. Was wraith thin and wore a Fu Manchu arrangement of moustache and goatee and long black hair which was parted in the middle and fell around his shoulders. He sat unnervingly still in the prisoners’ box and gave off an aura of calm and peace.

According to the testimony of the crown witnesses, calm and peace may not have accurately described the Indian’s habitual state of mind. One of his former girlfriends had been murdered in a way that spoke of suffering and violation, and evidence pointed to the Indian as a certain suspect. The woman’s body had been found lying face down on the bed in her apartment. She was nude. Her hands were tied behind her back. Each of her buttocks showed a human bite mark. Her anus bore signs that something had been forced into it. And there were seven wounds on the back and sides of her head inflicted by blows from the traditional blunt instrument.

The police officers who investigated the case and the pathologist who performed the autopsy on the dead woman testified to the terrible facts of the killing with enormous restraint. They skirted around their descriptions of the body and its injuries, and the Crown Attorney needed dozens of questions to draw out their evidence. Each witness shied away from the horror of the events in the woman’s bedroom, and Dnieper wasn’t happy with the way the hearing was stretching through his morning. He shuffled the papers in front of him, chewed at the edges of his tie, and let out a couple of giant yawns.

The pathologist stood in the witness-box. He was presenting a list of the marks on the woman’s body — rope burns on the wrists, bites to the buttocks, injured anus, blows to the head — and he was taking his painful time about it.

Dnieper made his move. He’d accepted the testimony in edgy silence through the morning. Now he spoke up, addressing himself to the pathologist.

“Your observation is that the dead woman was subjected to bondage, sadism, sodomy, and murder?” he said in a swift tumble of words. “Is that about the size of it?”

The pathologist mouth dropped open. The Crown Attorney stood rigid at the counsel table. Everyone in the courtroom fell as still and quiet as the Indian in the prisoners’ box.

“Yes?” Dnieper said, still looking at the pathologist.

The courtroom turned instantly into a scene of purposeful action. The pathologist allowed that, yes, the judge’s description had summed up the situation. The Crown Attorney picked up the pace in his examinations. Witnesses grew crisp and authoritative. And fifteen minutes later, almost as an anti-climax, Dnieper wound up the hearing by ordering that, pending a decision on committal for trial, the Indian would be dispatched to the proper facilities, in custody, for a lengthy mental examination.

Court stood adjourned.

Judge Robert Dnieper had struck again.”^[7]

1. Batten, Jack. Judges (Toronto: Macmillan of Canada, 1986) p.XIV.  Reproduced with the permission of the author.↩
2. Batten, Judges, p. 77.↩
3. Enzo Di Matteo, Now, December 10-16, 1992 p. 10.↩
4. Batten, Judges, pp.105-106, 109-111, 113-116.↩
5. David Vanek, Fulfilment: Memoirs of a Criminal Court Judge (Toronto: The Osgoode Society for Canadian Legal History, 1999) p.222.↩
6. The Globe and Mail, June 16, 1965.↩
7. Batten, Judges, pp. 97-104.↩

 

Ted Andrews: Getting Family Courts “Out of the Basement”

When Ted Andrews became a judge in 1962, he was dismayed to realize that the Juvenile and Family Courts were generally treated like “poor cousins”^[1] of the Magistrates’ Courts that heard adult criminal cases.

He recognized the contribution Juvenile and Family Courts made to the community and justice system by resolving vital issues affecting families and children. Their work included cases concerning troubled youth (“juvenile delinquents”), children involved in the child welfare system, and orders for the financial support of spouses and children.

Symbolic of the problem was the fact that these important Courts, often poorly funded by municipalities and counties, were “forced to operate out of basements in public buildings or low rental spaces with back door entrances.”^[2] As the first Chief Judge of the Provincial Court (Family Division), Ted Andrews was determined to bring them “out of the basement” both literally and figuratively.

“In Family Court, you have to
care as much for the people as
for the issues.”

Andrews served as Chief Judge for 22 years. Under his leadership, the Court created educational programming for family judges, worked closely with the community, and introduced innovations such as mediation. Andrews was a champion for the Unified Family Court – a court with jurisdiction to hear both federal and provincial family matters – and helped to launch the first “UFC” as a pilot project in Hamilton. He was later disappointed when young offender cases were removed from the UFC while other issues affecting children remained.

Andrews’ advocacy was not always appreciated by the provincial government which had assumed responsibility for the Family Courts in 1968. And his relationship with one Attorney General was particularly strained. However, throughout his long judicial career, Andrews was motivated by a desire to improve the lives and prospects of children and families that came before the Court. “In Family Court,” he said, “you have to care as much for the people as for the issues.”^[3]

Early Life: Moving Around the Province

Harry Tedford Gee Andrews was born in the parsonage of John Street United Church in Sault Ste. Marie in 1927. His father was a minister and his mother played piano for the church choir. The minister’s work caused the family to move to Newmarket when Andrews was three, to Brampton when he was 11, and to Toronto during his teens. Andrews did not resent having been “shunted around” in his youth. He said it helped to build social awareness as he was constantly exposed to new people, experiences and communities. Times were tough during the Great Depression but Andrews recalled that, “we always had enough to eat, we dressed warmly, and we made our own entertainment.”

According to Andrews, his academic career began badly when he “flunked out of nursery school,” allegedly for eating a saucer full of glue which he had mistaken for maple syrup. At high school in Brampton, he pitched hardball and played football, hockey and lacrosse – much preferring sports to academics. Andrews had wanted to be a doctor, but after moving to Toronto he had a difficult adjustment when finishing high school at Vaughan Road Collegiate. He passed, but without the marks to get into medical school. Instead, he studied arts at Victoria College, University of Toronto.

The Lure of the Law

Andrews decided to go into law because Charlie Bowyer, the father of his good friend Blaine, was a lawyer back in Brampton. It never occurred to Andrews to follow in his own father’s

footsteps and become a clergyman. “I have always felt that you don’t have to be a church-goer to have an abiding faith and live by the principles in the Bible.”

Andrews began studying law at Osgoode Hall in 1949 at age 22. He paid for his education by working summers as a sleeping car conductor on the Canadian Pacific Railroad. Andrews was not initially enamoured with law school and had to write some supplementary exams. He took a year off to work at a large Bay Street practice, Sinclair, Goodenough. “At that time, a firm of 8 to 10 lawyers was considered big,” he would recall. There, Andrews was exposed to litigation when assigned to accompany lawyers to court where he took notes. At this turning point, he decided he “liked the law” and returned to Osgoode with renewed enthusiasm.

Andrews also became enthusiastic about Eva Karrys, whom he married in 1953. Eva was a psychologist who continued working until 1956 when the first of their two sons was born. Although neither son followed their father into the law, Andrews’ second wife, Judith Ryan, moved from a successful career as a social worker assisting children and families to become a well-known family law lawyer and mediator.

Back to Brampton

Andrews completed his articles in Toronto with two lawyers who shared office space on Bay Street. One had a family practice and the other worked in real estate. After being called to the bar, he returned to Brampton and joined Charlie Bowyer’s general practice. A year later, Bowyer’s son Blaine joined the firm. The four-person firm became Bowyer, Beattie and Andrews; it was 1954. Andrews was not interested in the fast pace of a downtown Toronto practice: “Quality of life was more important to me than the big bucks, even if the big bucks were available.”

Brampton was still a small community then, primarily serving a large surrounding farm district. Andrews estimated there were probably six law firms in practice at the time, including the firm of Albert Davis. Davis’ son Bill – the future Premier of Ontario – had been a year or two behind Andrews in high school in Brampton. As a young lawyer in Brampton, Andrews became involved in community work. “I was probably the youngest president that the Rotary Club ever had.” He also served as president of the local branch of the Victorian Order of Nurses and as an elder at St. Bartholomew’s Church. The women of the community convinced him to become president of the local Red Cross.

When it became clear that Charlie Bowyer was not about to offer him a partnership, Andrews decided to go out on his own, in partnership with Johnny Webber. They practised together for two years until 1962 when Andrews was appointed to the provincial bench at age 35. Webber later became a federally appointed judge in Brampton.

A Two-Hatter

It was Bill Davis, then the local member of provincial parliament for Peel, who asked Andrews to consider a judicial appointment in that county. With a young family, Andrews wasn’t sure he could afford it. He negotiated a higher salary in exchange for being a “two hatter” – presiding over both criminal and family cases. “In those days, you bargained for your salary, which is amazing when we look at it now.” In later years, judicial salaries would be bargained as a group and subsequently became fixed, with no individual or collective bargaining.

As a two hatter, Andrews received two salaries. At that time, the provincial government paid the salaries of the magistrates (who heard adult criminal cases); the county or municipality provided remuneration for juvenile and family court judges. “I negotiated $9,000 as a magistrate plus $2,500 for Juvenile and Family Court for a grand total of $11,500!” This disparity clearly illustrated the “poor cousin” status of the juvenile and family courts.

Andrews’ appointment to the bench was no guarantee of a long judicial career. “In those days, you were appointed a deputy magistrate first, and then a year later, if you were good enough, you were made a magistrate. I know that one magistrate who displeased the government was kept a deputy magistrate for several years.” This would never meet later standards for an independent judiciary.

At the time of his appointment as a magistrate and Juvenile and Family Court judge, Andrews had been in practice for eight years. There was no requirement then to have practised for 10 years, and judges did not even need a legal background. Andrews’ predecessor in the criminal court (known as Magistrates’ Court) was a hardware merchant named Dick Blaine. His predecessor on the Family Court was Daisy Graydon, the widow of a deceased member of the federal parliament.

Dressing the Part

When Andrews’ judicial regalia arrived from the Harcourts tailor, he dressed up just to see that everything fit – wing collar, tabs, waistcoat, gown and striped trousers. His wife and son Robbie watched as he proudly paraded in his new outfit. Andrews recalled Robbie’s puzzled expression, (he was then around five years old) until he figured it out: “Daddy is a clown!” Years later Andrews reminisced, “You remember that and it keeps you humble.”

Getting Started

When Andrews was appointed in 1962, there was no Chief Magistrate or Chief Judge of the Juvenile and Family Court. Those positions were created by amendments to the Magistrates Act in 1964 and to the Juvenile and Family Courts Act in 1967. When the Provincial Courts Act, 1968 was enacted, the two Courts became divisions of the new Provincial Court, each with its own Chief Judge. “Before the creation of the Chief Judge positions,” said Andrews, “the Courts were basically run by the Ministry.” And there was no training to speak of for new judges. Andrews spent one day in Family Court and one day in adult Criminal Court to observe the proceedings – then began hearing cases on his own.

Fortunately, Andrews had done quite a bit of Magistrates’ Court work before his appointment and that helped considerably. “I don’t know how anybody who has not done any court work at all can really get in there and do a proper job, from day one, without any sort of judicial education. I could not help but look good being a lawyer, having predecessors who were not trained lawyers. Counsel were just so eager to be able to quote some law to me, to somebody who would know what they were talking about. That gave me a sense of being much appreciated right off the bat.”

Learning the Ropes

Andrews developed different styles for presiding in the two types of court. This was not just because of the different nature of the subject matter: lawyers typically appeared before him on criminal matters but it was rare to see lawyers in Family Court.

One embarrassing moment occurred early on when Andrews had two consecutive judgments to deliver. He was surprised to hear gasps in the courtroom as he began reading the first judgment to the parties, who were clearly puzzled. It turned out he was reading the wrong text!

In those days, Juvenile and Family Court hearings were held in camera, meaning the public and media were not permitted to observe. Andrews believed that this helped the parties. “I think you got to the real issues much more readily. People don’t like washing their dirty linen in public, and you have to get down and dirty sometimes to find out really what’s wrong with a marriage.”

Adjusting to Life on the Bench

After becoming a judge, Andrews learned that he had to be a model in the community. Public expectations were high, just as they had been for his father as a clergyman. “It is funny how your best friends suddenly don’t know what to call you. ‘Now, do I call you Ted, or Your Honour? ’ I had that question put to me a number of times.”

One advantage was Andrews saw more of his family, having stepped down from his community positions and no longer working at the courts on weekends, nights, and holidays. He would leave home around 9 am, arrive at court by 10, and finish between 4:30 and 6:00, occasionally earlier when the list of cases collapsed. He did not take the position for this reason but appreciated working hard and still being able to spend time with his family.

He was surprised to learn that, as a magistrate, he had financial responsibilities. “In Magistrates’ Court, each magistrate was like the head of a fiefdom. We were personally responsible for fine revenues collected. I called in the provincial auditors because I was convinced a staff person was embezzling. Her husband paid the embezzled amount and the woman was dismissed.”

Fire Stations and Empty Courtrooms

In Brampton, Ted sat in the old courthouse on Wellington Street. Often, although the major courtroom would be sitting unused, the federally appointed District Court judge would not allow the provincial judges to use it. “To go to the washroom I had to walk down the hall to the same washroom as the public was using, and sometimes stand beside the same person as had just appeared before me.”

Andrews also held court in the Cooksville police station and over the fire station in Port Credit on occasion. “If a fire broke out, you just interrupted and held court down until the noise went away.”

Rifles and Parking Lot Scuffles

Not long after his appointment, Andrews learned that judging could be a potentially dangerous profession. One day a man came after him with a rifle. Actually, he was seeking Andrews’ predecessor for having sentenced him to prison. Toting a long brown-paper-wrapped parcel, he repeatedly inquired of the Brampton court counter staff: “Where is the magistrate?” The police were called and discovered the package contained a loaded rifle. They gave Andrews the weapon as a souvenir.

On another occasion, a fellow judge was threatened by a man of Asian descent who was known to be violent. That judge was put under 24-hour police protection. When an officer observed an Asian man exiting a car in the courthouse parking lot, “the officer slammed him up against the car, you know, ‘spread them,’ and checked him out.” It was actually fellow judge Kechin Wang, “such a gentle sweet man – it was shocking for him to be rousted like that.”

An Emerging Leader

Although he was a “two hatter,” Andrews felt a greater affinity for family law than adult criminal cases. He developed a keen interest in juvenile delinquency and the philosophy of treatment – as opposed to punishment – for youth. “Unlike adult criminal matters, with juveniles I always felt that you could do something, that you could be part of the treatment process and be an instrument for development and for improvement in the young person.” Andrews took courses to learn more from the National Center for State Courts in Nevada.

Andrews played a proactive role in the sentencing of juveniles. Wherever possible he enlisted the aid of community members, giving kids opportunities to cut the grass, pull weeds, tend gardens, clean the ice at the arena, or wheel people around at a seniors’ home – instead of spending time in a detention centre.

Andrews also developed an early form of diversion in Juvenile Court. “I would say, ‘alright, young fellow, you have come and you have pleaded guilty. You come back here in three months’ time, behave yourself in the meantime, and we will deal with this then.’ So we would set a date. A few months later he would come back, and the Crown would withdraw the charge. So this was a form of ‘diversion’ at the time. The kid didn’t get a criminal record.”

Forming a National Organization

After a couple of years on the bench, Andrews set about to form a national organization of Canadian family court judges. In 1964, he visited senior judges in all provinces east of Ontario. The next year, he went west to visit judges in Manitoba, Saskatchewan, Alberta and British Columbia. He discovered there was strong interest in having a national gathering of family judges. Then he organized the first national conference, attended by approximately 80 family judges from across Canada. It took place in Ottawa in 1967 and led to the formation of a family judges’ association, co-chaired by Andrews and Paul Lavallée from Quebec. Federal funding paid for the expense of judges to travel to national conferences, while each province picked up the tab for their judges’ accommodation and meals.

Andrews recalled that “an association of magistrates came along pretty soon after.” Eventually the two associations amalgamated into the Canadian Association of Provincial Court Judges (CAPCJ).

Becoming Chief Judge

In October 1968, at the age of 42, Andrews was appointed Chief Judge of the Juvenile and Family Courts. Two months later, he became Chief Judge of the Family Division of Ontario’s new Provincial Court – a position he would hold for 22 years.

Andrews recalled an occasion when Rendall Dick, the Deputy Attorney General, asked him which of the two Chief Judge positions he would pick if given the choice: criminal or family. The answer was easy. Andrews was full of enthusiasm for Family Court work and keen to develop it further, especially in cases involving children and youth.

“I have always felt that if you can open an opportunity for a youth who is in trouble with the law, or for a child whose parents have mistreated or abandoned that child, or for a deserted wife whose husband has mistreated her, either physically but more commonly emotionally or financially, then I think you are doing something so important.”

Defining the Role

The position of Chief Judge did not come with a job description, apart from a role in judicial scheduling, which Andrews preferred to delegate to judges at the local level.

He felt that his primary mission was to encourage and support the judges, and to instil in them the importance of mobilizing their communities. In his view, a Family Court judge could only be as good as the available community resources. “If you have only got a training school to send kids to, that is where they go. But if you have a foster or group home where you can place them on probation, that is a great added resource.” Andrews was particularly proud of the new resources his judges helped to develop, including observation and detention facilities, a network of Family Court clinics, diversion programs and conciliation services.

When Ted was enthused, he let you run with things. He didn’t have to be the sole spokesperson for the Court – he let judges take initiative. He encouraged us to be active in the community so we would be more relevant. We worked with communities to develop detention centres, etc. There are facilities named after the judges, such as Genest and Goulden. Ted loved anything you did within reason that was community based as long as there wasn’t a clear conflict.
Joe James, former family judge.^[4]

Andrews was well supported by a small and loyal staff team. Dee Prosser, a former court administrator, joined Andrews when he became Chief Judge, together with law clerk Roman Komar, a researcher and legal educator, who remained with the Court for over 40 years, was also part of Andrews’ team.

A Professional Bench

One of the first issues Andrews tackled as Chief Judge was the calibre of judicial appointments. Shortly after his appointment, Andrews was faced with the prospective appointment of another lay judge. “This was a very fine person who could have made a good judge, but he was not legally trained. And I felt that if we were going to upgrade this bench we had to have legally trained judges.” So Andrews went to Roy McMurtry, who was not yet in government but was a friend of Premier Bill Davis. McMurtry interceded on Andrews’ behalf and the person was not appointed.  After that, all appointees were legally trained and eventually the law was changed to make this a requirement.

Andrews did his best to use tact and diplomacy when helping judges who were not legally trained, or who were experiencing difficulty on the bench, to make the decision to retire. His motivation was building the Family Division’s reputation for excellence and independence and to position it well for what he hoped would become part of a Unified Family Court with full family law jurisdiction.

In the early 1970s, Andrews hired a team of law students to observe hearings in each court, interview judges and court staff, review personnel files, and assess each judge based on a questionnaire and grading system he’d approved. According to lawyer Leo Adler, who was one of the student assessors, “We were reviewing people who were there prior to the formation of the Provincial Court (Family Division) to understand the capacities of the judges he had inherited. Anyone who got appointed afterwards stayed. They were fine.”^[5]

Adler also learned about the process for appointing new family judges. “Ted would send names and the Attorney General would discuss them with him. It was a very political process but Ted knew how to get who he wanted on the bench. It seemed that Ted could pick whomever he wanted as long as they were Conservatives. But he was also successful in securing appointments of excellent judges who fell outside this requirement.”

Adler also learned about the process for appointing new family judges. “Ted would send names and the Attorney General would discuss them with him. It was a very political process but Ted knew how to get who he wanted on the bench. It seemed that Ted could pick whomever he wanted as long as they were Conservatives. But he was also successful in securing appointments of excellent judges who fell outside this requirement.”^[6]

Getting Out of the Basement

Andrews remained in the Brampton courthouse instead of relocating to Toronto, establishing his office in the “penthouse” of the Queen’s Square Building. This enabled him to avoid a criticism levelled at his Criminal Division counterpart, Chief Judge Fred Hayes. Hayes lived in Toronto, had his office in Toronto, and was perceived to devote much of his attention to Toronto judges. Andrews decided to stay in Brampton so as not to be perceived to be “Toronto-centric.”

Chief Judge Andrews made a point of visiting every Family Court in the province. He was appalled by the poor quality of some court locations. In many places, the Family Courts were relegated to damp, poorly lit basements. In Brampton, the Family Court occupied the basement of the registry office. Andrews made it his mission to “get the Family Courts out of the basement.” It took a lot of “quiet nagging” with the Ministry of the Attorney General but eventually he succeeded. Fortunately, Andrews had good relationship with Al Russell who was the executive in charge of courts administration. The last Family Court he “saved from the basement” was in Sarnia.

A Well-trained Bench

Andrews often said that the best protection society has is a well-trained bench. That is why, in the early 1970s, he instituted what was likely the first rigorous judicial education program for the family bench. The judges did not like the term ‘training,’ so Andrews referred to this as ‘judicial development.’ The Judicial Development Institute has remained a tradition at the Court, with courses presented annually to all Family Court judges.

The first program was in Toronto: Andrews brought in one-third of the judges at a time for a one-week course that included education on a full range of family issues. Over time, he built an expectation that judges would average two weeks of training per year. By the third year, the education program joined with the Canadian Association of Provincial Court Judges and included judges from across the country.

One objective was to provide judges with training in recent developments in the law: “I didn’t want lawyers to put anything over on them.” Another objective was educating judges in the social sciences. This helped them to learn about the stages in child development, how to read psychiatric and psychological reports, and to understand social work principles and policies. For example, is it acceptable to separate siblings when placing them in foster homes? An additional objective was judicial renewal. “Once you have been on the bench for a few years you kind of get stale so you need some encouragement and revitalizing.”

The Chief Judge put a strong emphasis on ensuring his colleagues were aware of important decisions from their court and the appeal courts. Roman Komar would gather and circulate recent judgments, papers and reports. Andrews supported the work of Judge David Steinberg, Professor Jay McLeod and others to create Reports of Family Law, the first published law report dedicated to family law matters. The Chief’s office also created a judicial library of family law materials.

Andrews obtained funding to start a training program for court administrators, something that had not been done before. The administrators were thrilled with the program which included discussion of management, legal and social science issues, and reviewing practical day-to-day operational matters such as how to fill out adoption papers. Dee Prosser was instrumental in designing and delivering this popular program.

Mediation Project

In the early 1970s, Andrews became interested in mediation after attending education programs in the United States. He obtained federal funding to conduct a mediation project in the downtown Toronto Court which had a high volume of backlogged cases. This was a controlled project to test the value of mediating cases rather than simply sending them directly to court. Approximately every fourth custody, access or maintenance dispute would go through a trained mediator. The project was designed by Howard Irving at the University of the Toronto School of Social Work. The board overseeing the project was led by Derek Mendes da Costa, a law professor, future Chair of the Ontario Law Reform Commission, and eventual appointee as judge of the Unified Family Court in Hamilton.

The mediation project was successful, although the federal funding ran out, after which the province supported it for a while. It served as the precursor of mediation programs that would become a fixture in many Family Courts. One began with federal funding in Kingston, and the Unified Family Court in Hamilton had an extensive adjunct conciliation service. Eventually the provincial government provided more stable funding for mediation.

Statistics

As Chief Judge, Andrews saw the need to gather statistics to support judicial management. His office kept track of caseloads, sitting times, reserved judgments, and time lapses until final resolution. He also developed statistical information to include in an annual report. Prior to that, there were no available statistics on the number of cases, the types of cases, or even how many judges were sitting.

Automatic Enforcement

One of Andrews’ innovations was the automatic enforcement of maintenance orders, a first in Canada. Automatic enforcement was intended to avoid protracted interventions to enforce a court order for child or spousal support from an ex-spouse. By intervening early with the debtor, there was a much greater chance that outstanding payments would be made and future defaults avoided. “We worked it out with the welfare people that separated or divorced women would get their full money and then the court would collect from the husband and remit what it collected to reimburse welfare. That way the family always got its proper amount of money, they could count on it.”

Andrews’ office set up systems for monitoring the accounts. When payments were not being made, the staff would call in the defaulting person. “If a fellow was off work for a month, he would come in and the staff would say: ‘Well, Bill, what is your problem?’ because the staff would know him. ‘I am off work.’ ‘Well, what can you pay?’ And he would say, ‘I am getting unemployment insurance, so I can pay so and so.’ ‘Can you make up the rest of it when you are back to work?’ ‘I think I can.’ ‘Well, let’s see how we get along.’ And they would phone the wife and they would work things out. They would make a deal right there.”

Andrews credits Dee Prosser for making the automatic enforcement of Family Court orders a reality starting in 1974. Andrews was less enamoured with the government-run systems that replaced it, as they operated with less court involvement.

Pushing for a Unified Family Court

In 1977, less than 10 years after becoming Chief Judge, Andrews participated in a historic milestone: passage of the Unified Family Court Act. He was one of the main drivers of the UFC after he saw strides being made in parts of the United States. Although a Superior Court can rule on divorce, custody and division of property, other matters such as child welfare rest with the Provincial Court. Initially established as a pilot project in Hamilton, the Unified Family Court was designed to hear all such matters. The UFC also provides mediation to help people resolve their family disputes outside the formal court system. Attaining this historic achievement required the support of the Hamilton bar, Ontario Attorney General Roy McMurtry, and the Attorney General of Canada, Ron Basford.

Andrews played a role in recommending which Provincial Court judges would be appointed to the Unified Family Court pilot: David Steinberg and John VanDuzer from Hamilton and Patrick Gravely from Toronto. Andrews was offered a UFC judgeship himself but turned it down. He enjoyed being Chief Judge and “there was not a great a difference in salary at the time.”

Andrews was disappointed when judges of the expanded UFC were reluctant to hear cases involving young offenders, which they saw as more of a criminal than family matter. By contrast, Andrews regarded this work as an essential part of the UFC mandate since it was so closely related to child welfare. As the UFC expanded to other locations, however, the young offender cases were dropped and picked up by the Provincial Court (Criminal Division).

Ted was unhappy that, when the UFC was expanded, the judges were reluctant to do juvenile work, which is so closely related to child welfare. He felt that by alienating itself from juvenile cases, the UFC diverted from its mission. The UFC narrowed its own vision because the judges felt that the juvenile work was more like criminal than family.
Roman Komar^[7]

Blow-Up with Ian Scott over Judicial Salaries

During his long tenure as Chief Judge, Andrews worked with many Attorneys General. He worked well in concert with most of them, including Arthur Wishart and Roy McMurtry, with whom he enjoyed regular breakfast meetings. Ian Scott was another story. Scott’s strong reform agenda and bulldog determination did not sit well with Andrews.

Andrews’ relationship with Attorney General Scott went from bad to worse at an Opening of the Courts event in the late 1980s. The Chief Judge had been genuinely concerned about the low morale of provincial judges due, in part, to the disparity between federal and provincial judge remuneration.
In his speech, Andrews mentioned the morale issue and referred to the judges’ salary concerns. He later recalled: “And Scott, being the kind of guy that goes right for the throat, he chose to interpret it that the judges would deliberately withhold services and would deliberately let it affect their judicial work. Scott said that any judge that permitted that would be dismissed. And of course he did not have any right to dismiss a judge, but it made great headlines.”

This incident distanced Andrews further from Scott and from the court reform plans that ultimately abolished the family and criminal Chief Judge positions.

Naming an Associate Chief

Although Ted Andrews became Chief Judge in 1968, he did not take on an Associate Chief until 10 years later. By that time his work was building up, the complement of judges was growing, and “it meant that I could also get an extra judge to fill in here and there as needed.” He requested the appointment of Robert (“Bob”) Walmsley to the post and Roy McMurty made it happen. Andrews chose Walmsley “because he was well respected, quietly industrious, well intentioned and bright.” He was also a fine example of an emerging judicial leader from a smaller Ontario community. Walmsley was delighted at the prospect. He and his family moved from Prince Edward County to Toronto to take up the new position.

As Associate Chief, Walmsley was instrumental in developing education programs. He also filled in for Family Court judges who were sick or on holiday. On Andrews’ recommendation, he became chair of the Judicial Appointments Advisory Committee.

Conflict over Court Rules

Although the Chief Judge usually got along well with his fellow judges, he found himself in a conflict with members of the Family Rules Committee and with the policy people at the Ministry of the Attorney General who supported this work. Andrews wanted to keep the rules to a minimum, with a catch-all provision allowing parties to apply to a judge for directions, “rather than having a rule for every damn little thing that you could possibly have.” As the rules kept getting more extensive and increasingly legalistic, Andrews decided to let Associate Chief Walmsley take over working with the committee.

1990: End of an Era

Andrews pressed for a
separate and specialized
family bench.

In 1990, legislation amalgamated the Criminal and Family Divisions into the Ontario Court (Provincial Division). Ted Andrews had opposed the merger of the two divisions. Over lunch with Justice Zuber, author of the Report of the Ontario Courts Inquiry,^[8] he pressed for a separate and specialized family bench.

Andrews had hoped that Fred Hayes, his counterpart from the Criminal Division, would be made the Chief Judge of the amalgamated Court. However, that position went to Sidney Linden. Andrews and many of his colleagues were initially sceptical of Linden’s ability to lead the Court because he had not previously served as a judge: “Sid was not a judge, he was an administrator.” Andrews later acknowledged Linden’s success in, among other achievements, obtaining funding for additional judicial and staff positions.

For several months in 1990, Andrews and Linden were both Chiefs. In April of that year, Hayes had moved to a federal judicial appointment and Linden became Chief Judge of the Criminal Division while Andrews was still Chief Judge of the Family Division. That changed on September 1, 1990 when the new Court was created with Linden as its single Chief Judge.

Shortly after Linden’s appointment, the Ontario Liberal government was defeated and Howard Hampton became the Attorney General under the government of the New Democrats.

No longer a Chief Judge, Andrews “didn’t want to do anything but family law and juvenile delinquency cases. I wanted to deal with kids. So I chose to be transferred out to Milton and also take on a part-time role at the National Judicial Institute.”

Andrews became Associate Director of the National Judicial Institute, an organization providing leadership in the education of judges in Canada and internationally. His function was to enlist the interest of provincial court chief judges from across Canada in using the Institute to develop and implement education programs for their benches. He found it to be an uphill battle, particularly in the west “because the western division had a fine training program of its own.” The Institute’s links with the Quebec judiciary were also weak.

Legacy in the Family Court

During his 22 years as Chief Judge, Andrews made an indelible difference. His legacy includes the Unified Family Court pilot and expansion, improved court facilities, and a professional and well-educated bench. He was ahead of his time in promoting mediation and settlement, community partnerships, and judicial education. He focused much of his effort in promoting a Family Court that was proactive in mobilizing the community to ensure the best possible outcomes for families and children. He was a strong proponent of treatment as opposed to punishment, wherever possible, for young people in trouble with the law.

Andrews’ belief in the importance of the Family Courts was unwavering. In 1973, he edited the book Family Law in the Family Courts. There he wrote about how society was in transition and turmoil and how the Family Court, with its distinct social purpose, could contribute to individuals and the larger community. “An essential social objective must… be to sustain the unity and harmony of the family; to repair, where there is a breach; to reinforce the remainder of the unit where the breach is irreparable; to strengthen the inadequate; to control the weak; to guarantee individual rights; to enforce individual responsibilities.”^[9]

Upon reflection in later years, Andrews said that his time as Chief Judge was the highlight of his career. “Power and influence are exciting in a spirit where you are making a contribution to society and to your own sense of wellbeing.”

1. W.W. Creighton referred to the Juvenile and Family Courts as “poor country cousins” in his introduction to Ted Andrews’ book Family Law in the Family Courts (Toronto: Carswell Company Limited, 1973), p. 11.↩
2. Creighton, in Family Law in the Family Courts, p. 11.↩
3. Quotes from T. Andrews in this profile come from the transcript of his interview for the Oral History Project of the Osgoode Historical Society (used with permission) and interviews of T. Andrews for OCJ History Project, 2013 and 2014. Quotes from other individuals are specifically attributed to them.↩
4. Interview of J. James for OCJ History Project, 2014.↩
5. Interview of L. Adler for OCJ History Project, 2014.↩
6. Interview of L. Adler for OCJ History Project, 2014.↩
7. Interview of L. Adler for OCJ History Project, 2014.↩
8. Zuber, T.G. Report of the Ontario Courts Inquiry (Toronto: Queen’s Printer, 1987).↩
9. Andrews, Family Law in the Family Courts, p. iii.↩

Gérald Michel – In His Own Words

The courts belong to the people. That is what the judiciary of the Northeast were taught and what they practiced. Unlike the superior courts, we went to the people where the numbers warranted it. We served our people and they respected us. That is what I want our court to be honoured and respected for.

Justice Gérald Michel^[1]

Gérald Michel served as a judge in northeast Ontario for over 40 years. His colleagues have referred to him as “an institution,” “a hero of our court,” and “a mover and shaker in defining the bench as we know it today in the North.”^[2]

In 2014, at the request of the Ontario Court of Justice history project, Michel prepared a memoir in which he reflected on his experience in the 1960s, 1970s and some of the 1980s. He tells the story in his own words in the following excerpts.

Looking Back 50 Years Later

I’m writing about the provincial court in northern Ontario, mainly northeast Ontario, from my recollection and not from notes made at the time to record events. I never thought 50 years ago that I would be writing this. So if I missed events that others may recall, or I recall events differently from others’ recollection, so be it. I can only record it now from my biased recollections.

Becoming a Judge

In the early 1960s, Magistrate Gould presided in North Bay and travelled to courts in Sturgeon Falls, Powasson and Mattawa. Then, in about 1967,he was appointed to the District Court in Sault Ste. Marie. In March of 1968, I was appointed to succeed Magistrate Gould in North Bay. In 2001, I was transferred to Sudbury and was succeeded in North Bay by Judge James Lunney.

It should be noted that in December 1968, the Provincial Courts Act^[3]made all magistrates judges of the Provincial Court. Being a Provincial Court judge was full-time work. It required lots of travel in the northeast and if you included travel time, many ten-hour days.

Coastal Courts – First Trip to Attawapiskat

I wish to touch briefly on the coastal courts on the James and Hudson Bay Indian reserves.

In the early 1970s, my first trip to the coastal court was in January and as you would have it, it fell on the January thaw.

The court party was to depart from Timmins early morning but it was freezing rain. Discussions with the pilots led us to understand the rain was moving north and in a couple of hours we should be able to leave. The pilot was right and we left reaching Moosonee before we caught up to the freezing rain. After a short stop, we got to Fort Albany and then, after a delay there, we made it to Attawapiskat at about 6:00 p.m. Court was scheduled for 11:00 a.m. but that didn’t matter, the people heard the plane come in and word spread that court had arrived.

Eventually, court commenced at 7:00 p.m. No problem. The whole community was jammed into this small community hall, curious to see what would happen. In those days, the Chief sat beside the judge and in some cases was permitted to speak as to penalty.

I presided over the court on the coast for the next 25 years and was commonly known as the “white-haired judge.”

Early, Practical Community Service Orders

Back in the 1970s, when I was covering the courts on the Wikwemikong Reserve on Manitoulin Island, I had discussions with a native probation officer Raymond Auger. I was having difficulties with the court premises. We didn’t sit in a courthouse but in the community hall. For some reason, I couldn’t get the community to clean the premises or set up the chairs and tables for court; we had to do it when we arrived.

So the probation officer and I concluded we should use what is now known as community service orders whereby I would place certain appropriate offenders on probation with a condition that for the next so many court days, they would clean the hall and set up the chairs and tables before court arrived. This worked very well and was appreciated, as constructive rehabilitation for a number of accused.

When a new community hall was built, I set a condition on a native artist’s probation that he paint a mural on one wall in the new hall. This was before community service orders became recognized as a sentencing tool throughout the province.

French Trials in Ontario

In 1976, the Attorney General Roy McMurtry decided to initiate trials in the French language in Ontario. Chief Judge Fred Hayes, I understand, consulted with two bilingual areas, Ottawa and Sudbury. Sudbury was selected and Judge Gilles Matte and I (both bilingual judges) initiated the pilot project.

In order to gain some insight, we were sent to Moncton, New Brunswick for one week to observe their proceedings in the French language and then one week in Montreal where French trials or bilingual trials had existed forever.

With that experience, French trials were initiated in Sudbury. The population at that time in Sudbury consisted of about 35% of the region being of French background and whose mother tongue was French.

The biggest problem was that the French legalese is not a simple translation of the English. The French legalese is basically a language of its own and the judges and the bilingual members of the bar had all studied law in English.

Bilingual trials are now a fact in the Ontario Court of Justice. Even though there are not a great number of them in most communities, they are available where they are desired.

Court Practices: “Judge of All Trades”

Until sometime in the 1980s, the courts in the northeast did not have court clerks. The judges did the arraigning of the accused, gave the accused their election where they had one, asked the Crown of their election in hybrid offences and if no election was made, then the proceedings were deemed to be by summary conviction. The judge was responsible to record all entries on the information including recording the sentences, recording all remands and dates for trial.

One of the practices which may not be remembered is that until sometime in the late 1960s or early 1970s, the magistrate was responsible for the staff (including the bookkeeping staff) and had to sign the cheques issued by the office. The offices were subject to periodic, unannounced visits by the auditors from the Attorney General’s office.

Evolution of Native Courts in Northern Ontario

Interpreters

Originally interpreters were taken from the community because each community had a slightly different dialect. In one proceeding, an accused’s husband acted as interpreter and falsely interpreted the testimony. After that, only pre-approved interpreters were employed and generally from outside the reserve community.

Aboriginal Issues Committee

The relationship between the courts and the native communities was a little strained. Chief Judge Hayes thought we should try and work on that. It was decided that a representative of the Attorney General and a representative from the judiciary should initiate communications with the subject communities. Aboriginal communities of the North were asked to work with the Chief Judge’s committee to discuss their problems.

Duty Counsel on Reserve

We requested that duty counsel or defence lawyers attend on the reserve one day prior to court to interview accused people.

Native Court Workers

The other innovation was to have native court workers attend in the community periodically and on court days to assist native accused.

Legal Services Corporation

The Nishnawbe Aski Nation Legal Services Corporation was formed. They hired and directed full-time and part-time court workers who had responsibilities in the Aboriginal communities in the northeast and northwest regions.

Separate Flights

Another complaint raised was that the judge, the Crown and defence counsel arrived together on the same chartered flight. As a result of discussions with Chief Judge Hayes, he directed that in the future, the judge would fly in a separate plane with the court reporter, court clerk and interpreters only.

Native Justices of the Peace

In the early 1980s, Chief Judge Fred Hayes initiated discussions with reference to having native justices of the peace as part of our Ontario Provincial Court system. The purpose was to better serve the Aboriginal peoples of Ontario, more particularly in Northern Ontario.

Discussions were undertaken with the Ministry of the Attorney General. Because I was involved in the native courts, I worked on the program with two individuals: Stan Jolly and Richard LeSarge.^[4] The program began in 1985.

The aim was to have Aboriginal people working in the courts so they could feel part of the system in which they were so frequently involved, and to better serve the justice system in the isolated communities where people had no one to turn to for private complaints and the police had no one to go to for the issuance of process.

The aim was also to train justices of the peace who would preside over minor offences under the reserve band by-laws and to hear other provincial regulatory offences. It was expected that these justices of the peace would better administer the law in these communities where the culture was different from white man’s culture and not always understood by non-Aboriginal people.

It was not easy to get applicants because natives who took on enforcement roles in the community had their families ostracized by their people. Once we had a group of applicants, Stan, Richard, a community native person and I would interview all the candidates and recommend the appropriate ones to participate in a pre-appointment program from which some were recommended for appointment and others were not.

Eventually, Ontario was served by a good number of excellent native justices of the peace in areas where there were accumulations of Aboriginal people such as Toronto and in areas where there were Indian reserves. These justices of the peace presided in regular Provincial Offences Court and dealt with all people before the Court, regardless of their origins.

Conclusion: A Final Trip to Attawapiskat

“Justice retires after nearly 42 years.” This headline appeared in the Sudbury Star on December 26, 2009. Reporter Harold Carmichael wrote as follows.

As he approached his 65^th birthday back in February, 2000, Ontario Court Justice Gérald Michel stepped down as regional senior justice in Greater Sudbury and took on a part-time role. On Thursday, with his 75^th birthday coming up fast, he stepped back from the bench for good.

Handling the Christmas Eve list in youth court at 159 Cedar St., Michel wrapped up business about noon and was treated to an informal goodbye party by more than 30 fellow Ontario Court and Superior Court of Justice judges, lawyers and court staff….

Michel said he had a golden rule of conduct during his long career as a judge: treat others with respect in order to get it back….

Ontario Court Justice Randall Lalande, who was appointed to take the place of the retiring Michel in 2000… reminded Michel of his last visit to the isolated First Nation community of Attawapiskat.

After a goodbye meal prepared by the community following a full day of court proceedings, recalled Lalande, the plane was getting loaded on the runway when security allowed a young First Nation man to approach the plane and present Michel with a piece of artwork as a retirement gift.

That young man, noted Lalande, had just been sentenced by Michel earlier in the day following a plea of guilt. “He thought so much of you, he wanted to go ahead with his plan,” said Lalande.

1. Michel, Gérald, Provincial Courts in Northern Ontario, prepared for the OCJ History Project, 2014.↩
2. Interviews of northern judicial officers for OCJ History Project, 2013.↩
3. Provincial Courts Act, R.S.O. 1970, chapter 969.↩
4. Richard LeSarge was himself appointed a justice of the peace on September 15, 1994.↩

 

Stories

Stories from the North: Regional Senior Justice of the Peace Kathleen Bryant

Two Shots Across the Lake

Regional Senior Justice of the Peace Kathleen Bryant has often heard this story from local police. She describes it as “northern folklore.”

In the 1980s, a justice of the peace in northern Ontario spent time at his cottage on an island near Hearst. There was no electricity, no telephone service, and you couldn’t drive there. This posed a challenge for the local police: how could they notify when duty called? A unique protocol evolved. A police officer would drive to the nearest point closest to the island. He would fire off two shots over the lake. When the justice of the peace heard the shots, he knew he was needed. He would launch his canoe and paddle across the lake to where the police officer was waiting. The officer would drive the justice of the peace to the detachment – to remand a prisoner, sign a search warrant, or conduct whatever service was needed – and then drive him back to his canoe for the paddle back to his cottage. This went on for years. It demonstrates the lengths to which people were willing to go to provide service

The “Boys” of Oshawa: Justices Dodds, Edmondson, Bark and Collins

Introduction

The history of the Provincial Court in the Region of Durham presents a perfect microcosm of the history of the Court province-wide, as the population of Ontario grew and increasingly moved from its rural roots to urban centres. The demographic and social shifts had profound impacts on the workings and workloads of the Provincial Court.

When Durham Region was formed in 1974, its population was approximately 200,000. By 1990, this figure had doubled. In 1974, two judges were assigned to the criminal court, situated in Oshawa, the region’s largest city. By 1990, three judges were assigned to that location. Despite a population leap of 100%, the complement of judges increased by only 50%, resulting in a busy Provincial Court often wrestling with backlogs.

Over the span of more than 20 years from 1968 to 1989, four judges sat regularly in the Oshawa courthouse or in courthouses in nearby towns:

• Donald Dodds (sat primarily in Oshawa, 1967-2001),
• Norman H. Edmondson (sat primarily in Oshawa, 1974-2009),
• John Bark (sat primarily in Cobourg, 1976-2003), and
• Ted Collins (sat primarily in Peterborough, 1971-2013).

Although all have retired, they maintain a connection to the Ontario Court of Justice judges now sitting in the region, still visiting the Oshawa courthouse regularly to share lunch and stories with their successors.

Recollections by Justice Katrina Mulligan

“I learned more about the law at that lunch table than I did at law school,” stated Justice Katrina Mulligan, who sat in Oshawa from her appointment to the bench in 2007 until 2012, when she was assigned to Old City Hall in downtown Toronto.

She fondly refers to the group of four retired judges as the “boys of Oshawa.” In 2014, Justice Mulligan wrote of the “boys’” contribution to judging and justice in the Region of Durham.^[1],

When Oshawa’s modern consolidated courthouse opened in 2010, it was a far cry from the two former court buildings – one in Whitby, the other in Oshawa – which formed the Durham Region’s Provincial Court for decades. The new courthouse brought together all 13 Ontario Court of Justice judges in one building. For the first time, we had a real lunchroom where we could all meet.

Because the lunch table could easily accommodate 20 people, we often held formal luncheons and invited others to attend. Quite often, borne of our collective respect and admiration for our senior colleagues, we invited the “boys” of Oshawa: Norm Edmondson, Donald Dodds, John Bark and Ted Collins. Collectively the “boys” boast 138 years of experience on the bench. Edmondson sat for 35 years, Bark for 27 years, Dodds for 34 years and Collins for 42 years. I always viewed the “boys” as the judges who started the whole “judging business” in the region many years back.

The “boys” spoke of a time when the Oshawa courthouse consisted of a room located on the second floor of the local two-storey police station. Justice Dodds told the story of working as a magistrate in that building. He would enter the police station, be greeted daily by the desk sergeant on duty, then proceed upstairs to the second floor where there were five offices. The first office was the utility room which doubled, when needed, as a consulting room. The second office belonged to the Crown Attorney. The third office housed the police interrogation room. Next to that was the magistrate’s office. On the other side of the magistrate’s office was the police identification office.

As Justice Dodds often remarked, “Sounds and voices carried easily along the corridor. Indeed there were occasions when various noises from within the closed interrogation room raised issues relating to the voluntariness of statements and carried the suggestion that I should be elsewhere.”

Justice Dodds was the last magistrate sworn into office in Oshawa. His swearing-in was held in the Crown Attorney’s office on January 15, 1967. He sat on the edge of the Crown’s desk while the Crown administered the oath of office. Only the two of them were present. After the oath was administered, the two went out for lunch. At that time, criminal court was held in Oshawa on Mondays and Fridays only. The population of the city was approximately 60,000 at that time.

Historically, the areas the Oshawa court served were where public transportation was non-existent. We had many laughs during these “boys” luncheons listening to Justice Collins describe how he used to pick up hitchhikers every morning, collecting riders on his way to work until his truck could hold no more. The hitchhikers were almost always accused people who were on their way to court and who would appear before him later on that morning.

In order to get a ride, each person had to promise Justice Collins that they would not talk to him about their case en route. As new hitchhikers were picked up, the ones who had already secured a spot in the truck would administer the “oath of silence” to those wanting to jump on board.

As unusual as this sounds in today’s world, the oath worked and Justice Collins provided transportation to scores of people helping them to get from their homes to the court back in the day. As he was wont to say, “Return transportation was often arranged by the police who brought them to new lodgings provided for by Her Majesty the Queen.”

It was always fun listening to the “boys” describe outgrowing their courthouses in Oshawa and Whitby and moving into new facilities. Initially, municipalities bore the responsibility and costs for providing each magistrate with a courtroom and associated offices. That all changed in 1968 when the province assumed responsibility for courts and court facilities. Municipal governments used to pride themselves on having a court in most of the cities, towns and villages across the province. The need for more effective cost efficiencies in the management of ever-increasing caseloads led to the centralization of courts in the larger population centres in the early 1970s.

For the Region of Durham, that meant the amalgamation of the Whitby and Oshawa courthouses and a move, in 1970, into a new courthouse consisting of two floors built onto an existing seven-storey office building in the heart of Oshawa. The Rundle Tower, as the new courthouse came to be known, was described by the “boys” as modern and spacious with technology “so advanced that it permitted court reporters to change from taking shorthand to using dictation equipment.” Imagine!

In 1968, the Ontario government designated magistrates as Provincial Court judges – doing away with the old Magistrates’ Court. On July 25, 1974, Norm Edmondson was the first person sworn into office as a Provincial Court judge in Oshawa. The Oshawa courthouse moved one more time – in 1983 – before relocating to its current building in 2010.

What I always found most interesting is how, along the way, the “boys” developed policies and case management techniques that, as far as I can tell, provided the foundation for many of the best practices we observe today in the Ontario Court of Justice.

To highlight a few, they began to utilize formal “business plans,” an idea borrowed from the corporate world, to support their requests to the Chief Judge and government to appoint more judges to the region, introduced the idea of diverting minor crimes to social agencies to reduce court lists and formalized the process of providing notice to an accused person of the case to be met long before that was legally required. Their ideas didn’t always pan out but the stories of their attempts, successes and failures always resulted in amazement at their industry and creativity.

Dealing with limited resources, ensuring public accessibility, handling burgeoning case lists, incorporating technological advances, maintaining decorum, preserving public confidence and adjusting to changing times are examples of the numerous issues that have consumed the Provincial Courts over the past few decades and will likely continue to do so far into the future.

Listening to what our experienced colleagues did in their times to address these issues can sometimes provide a clearer understanding of possible ways to address these same problems now and into the future. Among the many things that the “boys” lunches taught me, as a judge, is that sometimes the best route to a productive future is via a long hard look through the rearview mirror.

1. Justice Mulligan’s article originally appeared in the Canadian Association of Provincial Court Judges newsletter, Volume 8, Issue 1, November 2014. It has been summarized and appears here with Justice Mulligan’s permission.↩