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 summered on a large island near the mouth of the Muskoka River named Hogg Island, which he renamed Eileen Gowan after his own family, using a Gaelic version of the word for island. The same island would also accommodate far-reaching discussions and decisions affecting law and justice later in the twentieth century as summer home to Honourable R. Roy McMurtry, who served over several decades as Ontario’s attorney general, solicitor general, and chief justice.
In clearing away the tangled legal underbrush and bringing rationality to the system as a whole, Gowan’s recommendations, when enacted by Parliament as the Criminal Code of Canada, helped clarify the long-standing practice of having many local justices of the peace available who could punish petty offenders, filter out frivolous or vexatious cases, and evaluate more serious charges.
In shoring up the power of JPs, the 1892 changes also removed from jurors the right to initiate an investigation if they suspected an offence had been committed, vesting that power instead in justices of the peace and other magistrates. That change was made by Section 557 of the Code, which also authorized JPs to be the ones to summon potential witnesses and examine them under oath.
The “rule of law” at ground level required that justices of the peace be readily available to dispense speedy justice. By quickly cooling hot disputes between neighbours or within families, resolving petty conflicts erupting along society’s outer edges, and meting out punishments to relatively minor offenders hauled before him by a local constable, game warden, or aggrieved neighbour, the front-line JP could thwart community lawlessness that otherwise would prevail.
Yet, while a JP could do this for many infractions, he could not do it for all. More serious offences were beyond the magistrate’s jurisdiction. Both before and after codification in 1892, graver matters were either heard by a judge or by a panel of several JPs. This concept had first emerged in England and was part of the system exported to Canada, as noted in the preceding chapter, and while the office of JP had evolved significantly in Canada, this requirement remained unaltered.
A pragmatic reason for JPs to sit in a panel of two or three for more serious charges was that these first-responders of the judicial system lacked legal background or special training for adjudication. Prudent public policy thus favoured a collective approach with shared responsibility, reducing the risk that a lone magistrate might run too far off the rails. Having a panel could be a safeguard for the rule of law.
A second practical reason for empowering several JPs to hear a matter that otherwise required a judge could easily be understood in places like Muskoka. Small towns, frontier settlements, and rural locales did not have nearby judges with jurisdiction to try these graver offences. In Bracebridge’s early years, when travel was arduous and took a long time, he was to be found sixty miles to the south, in Barrie.
Often the panel of JPs was authorized to make a judgment and impose a sentence itself, although in some instances their work amounted to a preliminary hearing after which they ordered that the case proceed to the nearest judge. Although James Boyer tried many cases alone, often one or two other JPs had to join him on the bench because of these rules. The more justices of the peace available, the easier it was to assemble a duo or trio, and the speedier justice could be.
Muskoka District, like the rest of Ontario, was actually awash in justices of the peace. During the 1890s no fewer than fifteen other men assisted James Boyer on the bench: Harry S. Bowyer, Singleton Brown, Robert M. Browning, Alfred Hunt, John Inglis, Charles W. Lount, John McDermott, E. Josiah Pratt, Peter M. Shannon, William H. Spencer, William G. Stimpson, William Sword, John Thomson, Isaac White, and John H. Willmott. A few were regulars, some served infrequently.
One reason for the overpopulation of JPs was patronage. A party in control of the provincial government used the “spoils of office” to reward its political friends, many being appointed justices of the peace. Premier Mowat enjoyed this exercise and used it to his continuing advantage. Naming magistrates and grand juries was, as historian Desmond Brown notes about Nova Scotia but which was as true for Ontario, “a prime source of patronage.”
Today the term patronage carries the negative connotation of paying off a party supporter with a job, but in the past this practice of hiring and appointing political supporters entailed more. Beyond the partisan benefits derived from filling positions with government loyalists, patronage was a means to maintain the established order, by ensuring the regime’s laws would be enforced and its values upheld. People in power had a point of view about the importance of this and wanted, at ground level, to ensure continuance of the conditions in which they operated.
If patronage had a defensible place in this scheme of things, a second factor contributing to a “higher than expected” number of JPs was the absence of any directing mind for the process of creating and keeping them. While the power to appoint was real, coordination was absent, control a chimera. Government was limited, and the modern public service had yet to emerge. With the government lacking an administrative system to oversee such matters, nobody had a clue how many JPs were even alive, let alone reporting for duty across Ontario.
The provincial government, unable to keep an accurate record of its uncounted JPs, threw up its hands and just kept appointing more, a loose precautionary measure to ensure that public policy and party requirements alike were being broadly served. Intermittently, Ontario’s government not only made a further wave of new appointments, but for good measure renewed all the appointed JPs believed