Review: How To Become A Judge

Canadians like to think of our judiciary as a meritocracy, in the same manner we have a naïve faith that oncoming motorists will stay on their side of the white line. Of course, car wrecks happen all the time.

Professor Dale Brawn examines who’s behind the wheel in Canadian courts. The result is a beautifully-researched and entertaining study of 80 years of judicial appointments in a single province, Manitoba, from 1870 to 1950. Brawn chooses his subject well; Manitoba was for years the lone outpost of the judiciary on the Prairie frontier.

Judges were by contrast brilliant and mediocre; studious and alcoholic; a grab bag of “pretty fair lawyers” and political fixers. One appointee was rated as having “but a small amount of brains and knows absolutely no law.”

“The Manitoba judiciary played a key role in bringing the prairies into Confederation,” notes Paths To The Bench; “They sat on the region’s highest courts during a time when the nation was undergoing a period of rapid social, economic and legal transformation. Judges in the late nineteenth century were responsible for laying down a legal foundation on which frontier societies were built, and their judgments gave shape and form to the institutions of the day be legitimating the social order”.

Who were these judges? Typically wealthy, married, Protestant corporate lawyers with a membership in the Masonic Lodge and a father-in-law in the legislature. Prof. Brawn recounts the 1928 correspondence of one judge who advised his son on how to make the bench: get elected to town council, then take up curling; join all the important golf clubs and become a Mason.

He recounts too the jottings of MP Ralph Maybank, a longtime Liberal fixer who managed federal appointments in the province till recommending himself to the bench in 1951: “We must settle on any Liberals at all. I repeat that – any Liberals at all,” Maybank wrote.

And mind the Catholics! “The French have two ideas,” Maybank told a friend. “The first is that one of their own ought to be appointed and, of course, they have all history on their side. The second is that if they can’t get one of their own they won’t have an Irish Catholic. They say if they surrender their position to an Irish Catholic, the Irish Catholics will always thereafter insisted that they are entitled to that representation on the bench as a minority right. Of course my own view is that all this business about choosing judges because they are Catholics either French or Irish or English is all damned nonsense.”

No Jews were allowed till 1952. “If a Jew were given an appointment which a French-Canadian ought to have…their rage would know no bounds,” Maybank wrote. The latent anti-Semitism of judicial appointments continued long afterward. When Supreme Court Chief Justice Bora Laskin died in 1984 the Globe & Mail awkwardly described him as “the first ethnic Canadian to hold the top judicial post”. Laskin was born in Thunder Bay.

Most importantly, judicial appointees lobbied very hard for the post. They buttonholed MPs and served on commissions, ran as director of the livestock association or Children’s Aid Society, perhaps published a scholarly work. “Lawyers have long known that it is in their professional, political and social best interest to make themselves known to others,” Brawn writes; “While not everything they did was self-serving, much was.”

Paths To The Bench documents the courts of the kerosene era, but readers are forgiven for wondering if much has changed. In Brandon a genial attorney named Joe Mullally once ran a storefront office handling wills and divorces. Joe agreed to serve as director of the Legal Aid Society. Twice he ran hopeless Liberal campaigns for Parliament; in a 1983 Brandon byelection Mullally finished third – there were only three candidates – and lost by 14,000 votes. “It hurts a little,” Joe told a reporter. On Pierre Trudeau’s last week in office in 1984 he named Mullally to the Court of Queen’s Bench.

By Holly Doan

Paths To The Bench: The Judicial Appointment Process In Manitoba 1870-1950, by Dale Brawn; University of British Columbia Press; 320 pages; ISBN 9780-7748-26761; $32.95

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Cabinet yesterday named former Liberal Party national director Ian McKay as Canadian ambassador to Japan. McKay two years ago was cited for breach of the Conflict Of Interest Act in failing to disclose directorship in a cannabis company: “Nobody else seems to be outraged.”

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The Department of Employment yesterday said it knowingly paid $500,000,000 in pandemic benefits to people who weren’t eligible. “From the very beginning of the design we made ministers aware,” said Graham Flack, deputy minister: “We knew when we were launching.”

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Like Carbon Tariffs On China

Canada should impose carbon tariffs on imports from Chinese polluters, Opposition Leader Erin O’Toole said yesterday. Cabinet said it was “very interested in the idea”: “Most Canadians don’t want to see Canadian jobs being shifted to China.”

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“Shortchanged” In Bailout

Taxpayers should not be financing $1.4 billion in refunds for Air Canada passengers, a consumer group yesterday told the Commons finance committee. A $5.9 billion bailout approved Monday grants the airline an unsecured 1.2 percent interest loan to finance refunds for customers holding prepaid tickets on cancelled flights: “Taxpayers were shortchanged.”

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Cash Advance, No Deliveries

The Department of Public Works paid a multi-million dollar cash advance to a federal contractor for pandemic test kits that were never delivered, the Commons government operations learned yesterday. Spartan Bioscience Inc. filed for bankruptcy court protection April 6: “Did we buy it based on the belief it was going to work and we were sold snake oil?”

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Deputy Owns Casino Shares

Deputy Finance Minister Michael Sabia owns shares in one of the country’s largest casino operators. Sabia yesterday did not comment on his investments or cabinet’s endorsement of a bill to legalize bookmaking in Canada for the first time since 1892: “I will not participate in any discussions.”

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Covid Room, Board Cost $8K

Health Minister Patricia Hajdu’s department yesterday did not comment on disclosures it spent the equivalent of more than $8,000 per traveler given free hotel stays, meals and medical care at public expense. Cabinet halted the free room and board quarantine program February 22: “They have stepped up.”

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Gov’t Conceals Kenya Losses

A federal agency misrepresented claims of profitability in a Kenyan cellphone company that received millions in taxpayers’ funding. Canadians were told M-Kopa Holdings Ltd., a money-losing Nairobi sales firm, would “break even” in 2020. It didn’t: “It’s creating good quality jobs in East Africa.”

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Fears 2021 Campaign Racists

Unnamed groups may attempt to disrupt an expected 2021 federal election by agitating for “racism and hatred,” Privy Council President Dominic LeBlanc said yesterday. LeBlanc said cabinet will revive a $7 million program to watch for fake news operatives, though investigators found none in the 2019 campaign: “I think we should just assume.”

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Feds Count 800,000 ID Thefts

The Canada Revenue Agency has locked 800,000 online accounts suspected of being breached by identity thieves. The Agency offered free credit protection to taxpayers victimized by thieves who stole ID to claim pandemic relief cheques: “Where we are focused is organized crime.”

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Audit Contracts Questioned

The Commons public accounts committee yesterday questioned the Auditor General’s Office over favouritism in contracting to a Liberal lobbyist, Susan Smith of Bluesky Strategy Group Inc. MPs did not comment after the committee spent more than an hour behind closed doors questioning Auditor General Karen Hogan: “I would recommend the Bluesky contract be put in place for as long as it can.”

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Spent $182K On Super Bowl

The Department of Public Works spent more than $180,000 advertising on the Super Bowl, the equivalent of $1,347 per second of TV time. The ads were billed as Covid public service announcements: “Do you think this is a fair use of taxpayers’ money to advertise about something that every single person in the entire world knows is going on right now?”

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Warn On Corruption In China

Canadians doing business in China should beware of Communist Party fronts, extortion, bid-rigging and other corrupt practices, says the Trade Commissioner Service. A federal guide for Canadian investors also warns of “bribery required to get things done.”

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