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