be adapted to the actual state of settlement.” Seen in a positive light, such flexibility could at least be considered a useful attribute for a developing colonial territory in early stages of development.
By 1867 a further round of constitutional change ushered in the federation of four colonial provinces under the name Canada. The British North America Act divided jurisdiction between federal and provincial levels of government, an innovative two-tiered system of government that first emerged in a North American First Nations federation, was further developed in the Constitution of the United States, and then used for Canada, initially in 1840 and now more fully in 1867, as the best way to unify British colonies in North America under a common government while accommodating their cultural and regional differences. In the process, Upper Canada’s name was changed to Ontario, and its upper house, an elected body since 1840, was abolished. Section 92(14) of the British North America Act gave the province power to set the qualifications for justices of the peace, and to appoint them.
Although justices of the peace in Britain steadily gained power, in Upper Canada the great powers and authority of the justices of the peace had by degrees been taken over by legally trained magistrates and judges as growth of cities and larger towns made a central and stable court system possible. For instance, by 1832, as Wilson notes, “municipal corporations began to erode what some historians have termed the ‘autocratic’ powers of the justices of the peace.” One way JPs’ powers were curbed was by town charters providing for elected boards of police who, rather than the justices of the peace, would be responsible for policing. After the Baldwin Act in 1852 laid the foundations for modern municipal government in Ontario, elected municipal councils began taking over local government administration from the JPs. The trend continued following Confederation in 1867, as Ontario’s legislature changed the local power structure, stipulating that no justice of the peace other than a police magistrate “shall adjudicate upon, admit to bail, discharge prisoners, or otherwise act, except at the Courts of General Sessions of the Peace, in any case for any town or city where there is a police magistrate, except in case of the illness or absence, or at the request, in writing, of the police magistrate.”
The project of curtailing JP power in Ontario was understandable, if bizarre. The provincial government, seeking to compensate for the earlier lack of such officials, had appointed so many JPs in the mid-1800s that nobody knew how many existed. No central system kept track of justices of the peace. Those who relocated from one jurisdiction to another within the province, or even moved out of the country altogether, or died, often did so without the provincial attorney-general’s department, responsible for administration of justice in the province, ever being aware. At no time could anybody say, due to woefully incomplete records, how many JPs Ontario had, let alone much else about them.
In this context, the move to shoulder out or constrain the JPs’ powers continued. For instance, the bench for the Court of General Sessions of the Peace, Ontario’s equivalent of Quarter Sessions in England, was composed of the county court judge as chairman sitting with justices of the peace, but after 1873 county court judges could preside alone, with justices of the peace no longer needing to be present for this court to be properly constituted. Gradually, the jurisdiction of an Ontario justice of the peace was becoming limited.
Because JPs possessed tremendous powers in the opening decades of life in the province, they potentially faced corrupting influences, especially given their combined judicial and administrative duties at the local level. In contrast to the American institutionalization of “checks and balances,” Canada’s British-inherited institutions handed a lot of unfettered power to early justices of the peace. The challenge to the “Family Compact” oligarchy that controlled Upper Canada by Mackenzie and other reformers in the 1830s was based on both the theory and their evidence that where there was such a concentration of power, there would also be partiality and corruption. Whether that kind of corruption existed to the extent critics of the magistracy suggest remains an open topic for research and debate.
But systemic corruption, which allows an institution to be subverted even as it honourably and effectively carries out its work, because of its structure and operations, was built right into the machinery for administration of justice in Upper Canada. Whether it was through the manner of appointments, the role of JPs in policing, their political roles in local governance, their administrative tasks in connection with prosecuting alleged lawbreakers, or the income they obtained from the fines they levied against those they found guilty, the institution came with fundamental flaws.
A lot turned on how justices of the peace earned their money. Generally, JPs were poorly remunerated, which created a number of problems. Modest pay was supposed to ensure that those who opted to serve as JPs were “respectable,” meaning they didn’t do it for the money because they didn’t need the income, but that reasoning had shortfalls in practice. For openers, in the early decades of the province, while justices of the peace had some remuneration for the transaction of judicial business, this provided little incentive for them, as Aitchison noted, “to carry out their purely local government functions, for which they were not paid at all, or to attend Quarter Sessions.” Some JPs in the province were “stipendiary,” meaning they received a stipend of money from the government, but most were not. Many were remunerated out of the fines they themselves assessed against the persons they convicted. Without convictions, such justices of the peace got no pay.
Was absence of proper records about who even occupied the uncounted offices of justice of the peace a reason for such an off-handed remuneration policy? Or was this low-budget enterprise with its implicit problems simply overlooked by the provincial government on the basis that what is not seen as a problem does not exist as one? How officials get paid shapes the way the institution they serve will operate. In countries where police officers, customs inspectors, permit issuers, and judges are paid little money, their government may expect them, while it turns a blind eye, to make up the shortfall through “indirect taxation” of bribes extracted from the citizens forced to interact with these officials. James McRuer, when examining the office of justice of the peace in Ontario, concluded without much difficulty that the fee system for justice of the peace was “subversive to the administration of justice.”
It produced an incentive that gave rise around the province to some justices of the peace being truly ardent in executing their duties, actually travelling with constables helping them find infractions to prosecute. While speedy justice required that a JP be handy when needed to decide a matter, such front-line enforcement was as inappropriate for judicial officers as champerty and maintenance was for lawyers. Sometimes a municipality filled the breach, paying its local magistrate. In Bracebridge this practice was an on-again, off-again arrangement, fluctuating with changes in the town council’s attitude, the level of municipal revenues, and the council agenda that James Boyer, wearing his hat as town clerk, helped set. Boyer strongly advocated the principle that a public official should be paid from public funds, not from the fines he himself levied.
Chapter Three
The Stage: Magistrate’s Court in 1890s Bracebridge
In 1892 during the same decade as the cases in this book, Parliament brought new order to Canada’s criminal law and procedure by codifying countless separate statutory provisions into a single, comprehensive Criminal Code. Codification, a sensible approach long used by other legal systems but not the English, made Canada the first country in the British Empire to consolidate, integrate, and harmonize its legal regime governing criminal behaviour.
The landmark codification work was done by Judge Sir James Robert Gowan of Barrie, who had already become known to the public as one of the commissioners investigating the Pacific Scandal after it helped bring down the government of Sir John A. Macdonald. Now, for the intricate and profound challenge of thinking through the possibilities and implications when combining all existing criminal law and harmonizing all criminal procedure into a single statute, Judge Gowan carried out much of his demanding task in the pleasant surroundings of Lake Muskoka.
Gowan
