Raw Life. J. Patrick Boyer

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СКАЧАТЬ and unperformed, certificates for the performance of settlement duties were not issued, lawbreakers went unpunished, the public peace unpreserved, and, since without magistrates the courts of requests could not be held, trifling disputes went unsettled.”

      By 1837 these pressures erupted into armed rebellion. That insurgency, combined with simultaneous rebellion in Lower Canada, got the attention of the Colonial Office in London. Was Britain at risk of losing more of its North American colonies?

      Although Upper Canada had representative government, in the form of its popularly elected provincial legislature, an inquiry into the uprisings and grievances by Lord Durham, dispatched from England to investigate, produced a report calling for responsible government, which entailed something new in colonial development: accountability. Once more a new constitution was enacted. In 1840 a new single entity named Canada, consisting of two parts, Canada East and Canada West (the new names for Lower Canada and Upper Canada, respectively) was created, with its two parts more closely integrated. Especially important was the advent of “responsible government,” with more accountability of government and a greater role for the elected legislative assembly.

      While these major constitutional developments did provide a clearer legal framework for JPs, reality at ground level still required more than proclamations, constitutional authority, statutes, and appointments. For an extended period, the province continued to suffer a real shortage of JPs, which Aitchison attributes to the government believing “that only a small proportion of the population constituted suitable magisterial timber.” With rapid population increase from the 1820s, the ratio of justices of the peace to society as a whole became extremely imbalanced. By the late 1830s this shortage of JPs contributed to mounting dissatisfaction, not just on the part of those who openly rebelled in 1837, but by the provincial government itself, which responded by overcompensating, appointing numerous JPs and making many hundreds more office holders, from mayors and reeves to game wardens, justices of the peace ex officio.

      Another ground-level complication was caused by the fact that, because justices of the peace fulfilled far-reaching duties and wielded many powers, a lot turned on who got appointed. One class of qualified candidates were actually disqualified: following the pattern from England, practising lawyers could not act as justices of the peace. British authority Clive Emsley notes that while justices of the peace in England were judicial officials, “they had only the most tenuous links with the legal world,” an observation equally applicable to JPs in Upper Canada, although at least in 1840, explains Murray, the provincial government “moved to appoint professional lawyers as district judges to oversee the magistrates.” The district court judge, who did have to be a qualified lawyer, served as chairman of the Court of Quarter Sessions, “ensuring continuity and greater professionalism in that court.”

      An explicit qualification was property ownership, a prospective appointee having to own property worth at least one hundred pounds per year, clear of deductions. As Lewthwaite explains, “the idea was that men who owned property had a stake in the community and were its natural leaders.” This property requirement in England meant potential justices of the peace were often members of the landed aristocracy, while in Upper Canada they were mostly farmers, mill owners, and merchants.

      Beyond that property requirement, it is unclear what other criteria guided the province’s British-appointed governor in choosing justices of the peace. Because he could not personally know potential candidates in every district, he took advice from circuit judges who traveled the districts and from local officials. Factors recommending candidates would have included proximity of the candidate’s residence to important towns in the district, the candidate’s character, his local knowledge and experience, competency, and expected acceptability within the local community, although, as Lewthwaite notes about this last point, opinions of ordinary settlers were not sought directly. Once the governor decided on a set of candidates, he issued a Commission of the Peace naming them to the bench of the district in question.

      Historian Margaret Banks noted, after reviewing development of courts in Ontario, that it was not hard to identify a suitable candidate for justice of the peace: he would simply be the individual with more training or education than anyone else, which often was relatively little. Along the Canadian frontier, the justice of the peace would be credible so long as, compared to others in the same settlement, he was relatively the most authoritative and qualified person. In this aspect at least, one could say the Canadian JP resembled his English counterpart: in both communities, the administration of justice rose, or settled, to its own level of possibilities.

      Whatever their other qualifications, justices of the peace, like judges themselves, were appointed under the political patronage system. Magistrate’s Court was seen, at least by those behind the scenes, as much an extension of party government as it was an independent citadel for equity and justice.

      Absence of merit-based appointments undercut the ostensible effort to establish the rule of law, but what else could one do? Training might have helped, but no training was provided for those appointed justices of the peace. Men receiving the nod often had no connection to legal affairs whatsoever. Individuals who had come to Ontario from England may have had an appreciation for the JP’s function there, but unless connected with the legal world as James Boyer had been, they would not know its actual operations.

      As a result of all this, in 1842 the powers-that-be sought to improve the standards and qualifications of justices of the peace, a sensible move given all the power JPs wielded. Observing that it was “of the utmost consequence to all classes of Her Majesty’s Subjects that none but persons well qualified should be permitted to act as justices of the peace,” the legislature stipulated that “all justices of the peace to be appointed in the several districts of this province shall be of the most sufficient persons, dwelling in the said districts, respectively.”

      One reason these initiatives over several decades did not work out was the mindset of colonists, many of whom thought practices in Britain were transportable. For them, exporting the English justice of the peace to a North American setting was integral to the larger aspiration of replicating British ways wholesale. Efforts to recreate vast “clergy reserves” on choice land in Upper Canada for exclusive benefit of the established state religions of England and Scotland, was another bizarre and inequitable demonstration of this colonial predilection. This colonial-minded outlook was still on display in the 1930s when the new Bank of Canada was modelled directly on the Bank of England with no adjustment for the essential structural difference in which Britain’s and Canada’s respective central banks handle monetary policy, such as one being a unitary, the other a federal, state. Other examples of this propensity to look at Canada and see Britain abound. The institution of justice of the peace would need to be recognized for what it was in Canada, and undergo major adjustments, if it was to fit in at all.

      A related difficulty was the simple historical reality that the office of JP did not get established in a single bounded territory at one point in time. Quite the opposite. The development was most uneven, in time and in space. The places early Canadian magistrates found themselves varied considerably, depending on the period, and on decisions about how to carve out territorial jurisdictions for governmental and judicial administration.

      Historian Hilda Neatby studied the administration of justice under the Quebec Act and discovered “the civil authority of justices of the peace did not extend even to all the newer areas of the province.” Even within areas that were covered, added Margaret Banks in Evolution of the Ontario Courts, 1788–1981, it was left up to the justices of the peace to declare their territorial divisions themselves, a stark contrast to the situation in Britain where Parliament dealt authoritatively with such matters, using county boundaries that were firmly fixed and routinely resorted to as a basis for judicial and governmental organization. In what would become Ontario, JPs “were not required to follow county or township boundary lines,” explained Banks, “and there was no uniformity in the matter. Sometimes the county was used as a basis for division. A single township might contain two divisions and contiguous parts of two or more adjacent СКАЧАТЬ