DO OUR COURTS DISPENSE TRUE JUSTICE?

SIDNEY KATZ August 1 1959

DO OUR COURTS DISPENSE TRUE JUSTICE?

SIDNEY KATZ August 1 1959

DO OUR COURTS DISPENSE TRUE JUSTICE?

SIDNEY KATZ

Are they fair and equitable to all?

Are our judges honest and competent?

Do the

wheels of justice move too slowly?

After a pioneering, six-month investigation, a Maclean's editor presents the first of a two-part report on the state of the nation’s judicial system

Story starts next page

Do our courts dispense true justice?

“Justice,” said Daniel Webster, one hundred years ago, "is the greatest concern of man on earth.” This declaration is equally true today. The administration of justice is of intimate and vital concern to every man, woman and child in Canada. Our courts have the power of life and death over us. They protect our freedom, but, under certain circumstances, can imprison us for long periods of time. They safeguard our property and wealth; on the other hand, they can take our property away from us for a number of causes and in a number of ways. Yet. despite the formidable powers wielded by the judiciary, the average person is only dimly aware of how' the machinery of justice functions. He is usually content to leave the matter in the hands of our judges, lawyers and police departments, without comment.

Perhaps this lack of urgent and widespread public concern is an unspoken tribute to our judicial system. In that system, we have much to be proud of. The final arbiters of our law are the nine justices of the Supreme Court of Canada, in Ottawa, who have been described as "the sturdy champions of civil liberties, the fairest men in the land.” In each province, a supreme court holds sway, made up usually of a "trial” and an “appeal" division. The trial division is known by different names in different provinces — the Supreme Court, the Superior Court, the High Court of Justice or Court of the Queen's Bench. Beneath it are division or county courts. All the courts mentioned here are presided over by some three hundred judges appointed for life by the federal government, thus granting them considerable freedom from political and financial pressures. At the local level, justice is dispensed by magistrates who are appointed by the attorney-general in each province. The court which the average citizen is most likely to have contact with is the magistrate's court, since it is here that traffic and liquor cases, as well as ninety percent of all criminal cases, are heard.

Rarely have our courts been accused of corruption or dishonesty. Yet it is well known to members of the bench and bar — as well as many hapless citizens — - that all too often the wheels of justice move too slowly. Indeed, to some individuals, justice is being denied almost completely. Reforms are urgently needed to improve the caliber of the man on the bench, to guarantee equality before the law for all and to streamline the judicial process.

Up until now. improvement in our courts has been obstructed by a widespread belief that judges and courts are sacrosanct and beyond criticism. This attitude is changing, due largely to pronouncements such as the one recently made by a prominent English jurist: "The courts must be allowed to suffer the scrutiny . . . and outspoken comments of ordinary men. No wrong is committed in criticizing the courts, both in private and public, provided the criticism is made in good faith and the critics abstain from imputing improper motives to those taking part in the administration of justice.”

"Judges are human like the rest of us.” says Professor G. V'. V. Nichols of the Dalhousie University law faculty. "Elevation to the bench confers on the recipient no immunity from the possibility of error.”

A Toronto lawyer who is interested in legal reform. States flatly. "If people don't criticize the courts, the courts become worse and fall into disrepute. Constructive. intelligent criticism doesn't mean less respect for the judiciary.”

For several weeks. Maclean s has been visiting courtrooms all across Canada and interviewing judges, lawyers, government officials and others engaged in the administration of justice. We studied many questions. Are citizens forced to wait an unreasonable length of time to get a decision from the courts? Can the average citizen expect to get a fair deal in court? How competent are our judges? Can the person w ith a moderate income afford his day in court? What arc

the problems — not usually voiced in public — which bedevil our courts and the men who spend most of their lives in them?

The principal conclusion of the survey is that our courts, in the main, well merit their reputation for honesty and impartiality. On the other hand, our judicial machine has become antiquated, undersized and underpowered. “Our courts have a teaspoon to do a job that ought to be done with a steam shovel,” says an official of a law society in the Toronto district. Our courts, we discovered, are staggering under an unprecedented case load—the result of a doubled population in the past forty years, the advent of the motor car. business expansion and the proliferation of laws and statutes to regulate many aspects of our lives. This often breeds irritation, disillusionment, cynicism and disrespect for the law. Here are the complaints about the administration of justice which were most frequently voiced:

The law’s delays are too long and too many. In British Columbia, the backlog of cases is so great that it now takes nine months to set the date for a civil trial. In Quebec, some cases are held up for fifteen months before being heard. At least a proportion of the delays are due to a shortage of courtrooms, judges and court reporters. An Ontario judge told me that it sometimes took the reporter six months, after the conclusion of a trial, to deliver a transcript of the proceedings. The judge couldn't begin to prepare a judgment without it.

But even if a case is heard without undue postponement and the transcript prepared promptly, the litigants still have no guarantee that they will be given an early decision. Many judges, at the conclusion of a trial, “reserve judgment,” i.e.. postpone their decision for a few weeks—or even several years. When a Maritimes judge died a few years ago, he left behind about twenty undecided cases, some of which had been heard a full ten years before his death. Litigants in Quebec have had to wait three years or more for a judgment. An Ontario barrister told me that he had one client who was kept waiting for eight years. Another lawyer in the same province pleaded a straightforward expropriation case before a county court judge. Almost eighteen months have passed and he has not yet been given the results of his pleading. Yet less than a hundred miles away, a much busier county court judge heard six similar expropriation cases and rendered a satisfactory judgment on all of them within six weeks.

In the opinion of many competent observers, such as J. V. Clyne, formerly of the B. C. Supreme Court, a large number of these delays are not necessary. “I don’t think most decisions should take more than three months; in exceptional cases, six months.” he says. The exceptional cases might include complicated constitutional matters or “first impressions” — judgments in which new principles of law' have to be enunciated. In most cases, which arc pattern cases — 'i.e., they conform to previous cases reported in the law' journals — there is a widespread feeling that the sooner the judgment is rendered, the better. “The further a judge gets away from the trial and the more other matters intervene, the more elusive the facts and ‘the feel’ of the case become,” says Chief Justice Arthur T. Vanderbilt of the Supreme Court of New Jersey.

Why do delays occur? Various explanations have been offered. “Some judges just can’t make up their minds,” says Cecil Wright, dean of the University of Toronto Faculty of Law'. This ambivalence can arise from a lack of knowledge of the law', or conversely, from knowing too much law. “I’ve known colleagues who analyzed both sides of the argument with such completeness that they were paralyzed to the point of inactivity,” a Quebec judge told me. “They used every device to postpone a judgment. I’ve always felt it*> better to make quick decisions even though I may be wrong occasionally.” Some judges, who are uncertain of themselves, delay decisions through fear of being criticized by a higher court for a poor performance.

The advanced age of some continued on page 43

All ten of these provincial chief justices were once active in the political parties that appointed them

With Liberal Premier Joey Smallwood he helped guide Newfoundland into Confederation. Then Ottawa made him a chief justice.

Long a member of the King Cabinet, he quit the federal field in 1948. A year later Ottawa appointed him to the Supreme Court bench.

An active Liberal since 1904. he was elected an M LA six times and was in the cabinet in 1919. Ottawa appointed him in 1950.

His activities have been more judicial than political but he was a Liberal candidate once, and Liberals made him a chief justice.

Though he has never held political office, he once ran as a Liberal and became chief justice six months before St. Laurent’s 1957 defeat.

He had been the Liberal premier of P.E.I. for seven years when Mackenzie King’s government made him Supreme Court head.

Appointed by the St. Laurent Liberal government, he was Liberal premier of New Brunswick for twelve years, beginning 1940.

One of the few chief justices appointed by the Diefenbaker government, he was a member of Ontario lory cabinets for 14 years.

A Liberal premier for six years and once a Laurier supporter, he was made chief justice of the Appeal Court by the Ottawa Liberals.

A prominent Tory leader in Vancouver, he was never a member of the judiciary until after the Diefenbaker government's election.

continued on page 43

continued from page 15

Do our courts dispense true justice? continued from page 15

“When the wheels of justice grind slowly,” says a lawyer, “the cause is likely a lazy judge”

of our judges may be responsible for some of the tardiness and inefficiency in our courts. In a recent House of Commons debate it was pointed out that provincial supreme court judges (unlike Supreme Court of Canada and county court judges) could not be forced to retire. Ernest Broome (PC, Vancouver South) suggested that “judges have a lower productivity as they increase in age.” There can be little doubt that the non-retirement rule has kept too many judges on the bench for too long. An aged Alberta judge, now deceased, when criticized for a remarkably inept judgment, explained, “I was too tired to listen to the testimony.” A Quebec judge, an octogenarian no longer on the bench, would regularly fall asleep in the midst of trials, much to the dismay and alarm of the lawyers pleading before him. They would resort to declaiming loudly and dropping heavy volumes of statutes on the floor to wake him up. He resigned when the minister of justice threatened to conduct a board of enquiry — a device which has hastened other resignations throughout the years.

Cumpulsory retirement?

In Manitoba, at least three high court judges are seventy-five or older. An official of a lawyers' organization within the province tactfully says. “In the past there have been a number of examples of judges who should have retired because their work deteriorated with age.” A prominent official of the Canadian Bar Association who is conversant with the situation in Saskatchewan says, "By and large, the bar in this province is too old,” while a w'ell-known Regina lawyer states, “Some judges in Saskatchewan are substandard due to age and physical infirmity.” A former high official of the Saskatchewan Law Society describes one judge “whose age and disposition make him unpopular. When he comes to town, every lawyer scheduled to appear before him tries to have his case adjourned.” A satisfactory solution, according to a recent statement by Justice Minister Fulton, would be the compulsory retirement of all judges at seventy-five. Such a regulation would require an amendment to the British North America Act, a step which Fulton describes as "most difficult to obtain.” (The consent of all provinces is required to change the BNA Act.) Judges have another solution to offer; increase salaries and pensions so that they could afford to retire earlier.

Since many of our ablest and most active benchers are over seventy, delays and inefficiency in the administration of justice cannot be principally blamed on old age. In the opinion of a busy courtroom lawyer who practices in an Ontario city, “When the wheels of justice grind slowly, the cause is likely to be an incompetent and lazy judge.” An ex-judge who is well knowm in Canadian legal circles, says, “One of the reasons for the backlog in the courts is that judges don't sit long enough and don’t hear cases quickly enough. You’ll hear judges say they're slaving their hearts out. It’s usually not true." An Ontario lawyer who practices in a medium-sized community which is visited by a judge on circuit, is critical of the judge's working habits. "His afternoon session is supposed to start at one o’clock, but sometimes doesn’t

get under way until three. He also drifts into the morning session long after the announced starting time. And there’s further time lost by long breaks for coffee or for a smoke."

Ironically, the very excellence of our

system which safeguards the judge’s job also makes it necessary for us to tolerate some weak sisters on the bench. Flagrant misbehavior or deliberate misconduct are the only terms for firing a judge, according to the BNA Act. The dismissal

procedure is elaborate; a formal charge has to be laid; a board of inquiry consisting of judges of equal or higher rank conduct a hearing and later submit a report; the report is debated in parliament and a majority vote decides whether the

judge is to be retained or dismissed. This complicated procedure has seldom been invoked, although a few judges have voluntarily stepped down from the bench when threatened with a board of enquiry. The net result has been noted in the book. The Government of Canada, by the late Robert MacGregor Dawson:

"A judge may be stupid and make scores of wrong decisions; he may be indolent and neglect his work: he may be biased and unfair . . . and while the administration of justice may suffer, the lesser evil is to leave him alone . . . Removal for any but the most flagrant and scandalous offenses would have a detrimental effect on the work, security and peace of mind of all the other members of the judiciary.”

The law’s physical plant is inefficient and overcrowded. “By and large, the courtrooms across Canada are a disgrace," says Walter S. Owen. QC. of Vancouver, president of the Canadian Bar Association. While every province has some courthouses of which it is justly proud, too many of them are squalid, shabby, poorly lighted and poorly ventilated. Such surroundings tend to make the average citizen who appears in court react cynically to references to "the dignity and majesty of the law'.” Furthermore. a sub-standard courtroom can jeopardize a fair trial. It is essential that all testimony be heard clearly. Yet, in Windsor. the sound of traffic sometimes drowns out portions of evidence which are being given. During a recent murder trial, the judge concluded that these noises were jeopardizing the accused’s right to a fair hearing and ordered police to detoui traffic around the courthouse.

A certain standard of physical comfort is essential in a courtroom so that judges can consider the cases before them with as little distraction as possible. But on one occasion, while trying a large number of drunk charges in his congested courtroom in Toronto’s city hall. Magistrate Charles Thoburn became overpowered by the stench of bad breaths and had to flee the bench. In the interests of justice, courts should provide a private, quiet place for lawyers to interview clients and witnesses. Such accommodation is often lacking.

A recent report by the Nova Scotia Barristers’ Society slates that in the ancient stone building in Halifax which houses the provincial supreme court as well as other tribunals, there’s an urgent need to provide “two rooms for interviewing witnesses." The report goes on to say that “the building is worn out ... it is far from fireproof and the heating plant is probably a fire hazard . . . there is no adequate library space and books are piled on chairs and window sills . . . there is no restroom whatsoever for the staff." In Saskatchewan, magistrates’ courts are sometimes conducted in grain elevators and the back rooms of ramshackle buildings. In one such setting, there was only one chair available. Most participants were obliged to stand up throughout the hearing.

The Exchequer Court of Canada—an important tribunal concerned with litigation involving the crown — frequently leaves its headquarters in Ottawa to hold sessions in various cities. Justice J. T. Thorson. president of the court, has bitterly complained that many of the places assigned to him "lack the dignity of a courtroom." In Toronto, for instance, the Exchequer Court has sat in an acoustically poor room in an ancient, discarded hospital building or in the recreation room of a Canadian Legion Hall. It is

entirely understandable why Chief Justice J. C. McRuer, after noting the lack of enthusiasm for courthouse construction. recently concluded that "the administration of justice has been reduced to a third-class operation, taking its place far down the line from civic squares, city halls, expressways and cloverleafs.”

The best qualified people aren’t always made judges. "In his heart,” says Arthur Clark. QC. Vancouver, former president of the Canadian Bar Association, "no lawyer believes in the present system of appointing judges.” He was referring to the traditional practice of the federal government in power to hand out judgeships as plums to the politically faithful—former members of parliament and legislative assemblies, defeated candidates and officers of political organizations. Justice Minister Fulton denies that this is his policy. "I have not allowed politics. in any sense, to be a ruling criterion in judicial appointments." he says. Yet. of the forty-eight judges appointed by the Progressive-Conservative government since its ascension to power on June 10. 1957. practically all had either been politically active Conservatives or w'ere known to have strong Conservative leanings. A case in point was the appointment of Alexander Campbell Des Brisay, a seventy-year-old Vancouver lawyer who became chief justice of the B. C. Court of Appeal in April. 1958. Des Brisay. who is highly regarded, had been an active Conservative w'orker since 1917 and has led the B. C. Conservatives in the last two fédérai election campaigns.

A Saskatchewan county court judge told Maclean's. "I was appointed for political reasons—that’s the way it's always been done." One of Nova Scotia's most highly regarded lawyers said to me. “I don’t know of a single lawyer of the opposite political faith ever appointed to the supreme court of this province." It may be that Justice Minister Fulton, like former Prime Minister Bennett. has found it impossible to change the deeply entrenched system of judicial appointments. One of Bennett's avowed intentions was to select judges entirely on the basis of their merits. He ultimately had to admit defeat, according to his secretary, who wrote. "The Prime Minister found that party, race, religion, occupation and geographical location are more important than qualifications.”

While judicial appointments for party reasons may be the rule, there are certainly a number of exceptions to the rule. Justice C. H. Locke and Justice J. R. Cartwright, of the Supreme Court of Canada, were considered to be Conservatives but they were appointed by a Liberal administration. In 1954. a Libérai government elevated Justice Patrick Kerwin to the rank of Chief Justice of the Supreme Court of Canada, although he was a Conservative appointee during the R. B. Bennett regime. And. of course, political appointments are not. ¡pso jacto. bad ones: many politicians have emerged as excellent benchers.

There's a widespread feeling that some of our ablest lawyers are being kept off the bench because of the relatively low salaries paid to judges. Finding a suitable judge now sometimes takes the government several months; and often the appointee is the government’s third or fourth choice. "I’ve had enough refusals to cause me concern." says Justice Minister Fulton. The judge's scale of pay is: Supreme Court of Canada justice, $22,500; provincial supreme court judge. $16,900; county or district court judge. $10.500; magistrates. $4,500 to $12.000. depending on the size of the community

and the province. (Chief justices of the supreme courts are paid a few thousand dollars extra.) These rewards are meager compared to the earnings of a practicing lawyer. A first-class trial lawyer in any large Canadian city can earn between thirty-five thousand and seventy-five thousand dollars. A senior member of the Quebec bench told me, “Any lawyer who is not a dud or lazy, can make more after ten years of practice than a judge.” If he's not in that income bracket then he’s not sufficiently successful to merit a judicial appointment. "In the present situation,” says Arthur Cowan, QC, a council member of the Canadian Bar Association, "we’re always running the risk of making appointments from a group of lawyers who have been failures in private practice.” A possible solution is to appoint outstanding lawyers who have accumulated a nest egg. However, they tend to be older men. already near the logical time for retirement.

Some judges and magistrates are neglecting their duties and sacrificing their impartiality by '‘moonlighting” i.e., taking on outside jobs. Most judges are unhappy about their salary, and. in recent years, many have taken on a variety of profitable outside responsibilities. In every province they have served as arbitrators and conciliators in managementlabor disputes—positions which can pay up to three hundred dollars a day. An Ontario county court judge earns almost the equivalent of his salary as chairman of the provincial liquor licensing board. In Nova Scotia, judges have headed commissions and enquiries interested in education. taxation and housing. In Manitoba, one judge headed a commission on school boundaries, while another settled a complicated jurisdictional dispute between unions in the printing trades. These extra chores pay anywhere from a few hundred to a fewthousand dollars a year.

Like many other leaders of the bench and bar. Justice Minister Fulton is flatly opposed to moonlighting. "I'm working on a revision of salaries so that we could properly require judges to take no outside employment." he says. One of the evils of moonlighting is that it takes judges away from court where a backlog of work awaits them. "If a judge has extra time he should use it to decrease the burden of his overworked colleagues,' says a member of the Nova Scotia Barristers' Society. There can be little doubt that "part-time” judges sometimes delay the course of justice. A lawyer who practices in a medium-sized city told me that in order to complete a case, he required a one-hour interview with the judge who had conducted the trial some weeks before. For six months, he has tried in vain to make an appointment. Yet. during this period, the judge has assumed a number of responsibilities unrelated to his court. “The delay is working hardship on my client,” says the lawyer. "Flach month that passes is costing him a loss of income —money he can t afford to lose."

Outside jobs can also endanger a judge's reputation for impartiality. Sooner or later, the judge will become involved in a public controversy and subject to criticism and abuse. "In labor work, says Dean Cecil Wright of the University of Toronto law' faculty, "no matter how fair you are, if you give a half dozen decisions in one direction, you become tagged as either a 'labor man' or a ’company man.” Last year. Justice W. D. Roach of the Ontario Supreme Court, at the request of the Ontario government, undertook an investigation of the Teamsters’ Union. His report was bitterly

attacked by the union and the judge himself was accused of bias.

It is my impression that moonlighting is having a damaging effect on the morale of judges. Judges seemed to be divided into two camps, the "haves"—who are offered and accept outside assignments at a worthwhile fee; and the "have-nots" —those whose services were not sought or who refused outside work on the grounds of principle.

Many citizens are being denied their full right to justice because of the skyrocketing cost of litigation. "Our democratic system entitles every man to his day in court but what use is this right if he can't afford it?" asks Dean Wright. I he spectre of staggering expenses, he says, prevents many people with a good and just cause from going to court.

This fear is usually justified. Let us say that a Toronto man is injured in an automobile accident and is claiming $15,000 damages. He is faced with a long list of disbursements, including the following, which arc about average: $50 to commence proceedings, $100 for the pre-trial examination for discovery, $50 for motions to the court, and $100 for preparation for the trial. If his lawyer is able and experienced, the claimant can expect to pay him $350 for his first day in court. $250 for each additional day following. it might be necessary to call in a doctor or some other professional witness at a fee ranging anywhere from $45 to $150 a day. The initial trial, if it lasts two or three days, can cost $1,500.

If he loses his case and appeals to the Appeal Court, he must be prepared to pay for the preparation of the transcript of his trial at a cost of $250. His lawyer's fee would be about $250. Total cost of the appeal: $500.

If he is defeated again he can appeal to the highest tribunal in the land—the Supreme Court of Canada which sits in Ottawa. ( This is not a long-shot gamble since, over one eleven-year period which was studied, the Supreme Court reversed the decisions of lower courts in fortyfour percent of the cases.) The litigant must now supply the court with thirty copies of the transcript (cost: $2,000). pay his lawyer ($500). retain an Ottawa lawyer who acts as his local agent ($150) and pay his lawyer’s traveling expenses to Ottawa ($150). Total cost of the appeal to the Supreme Court of C anada: $2,800. Thus, the cost of the three actions to the plaintiff is $4,800. It could easily rise to double or triple that amount if several witnesses are required or if the trial drags on for several days.

These formidable costs discourage the person with middle-bracket incomes— anil this includes most of us—from resorting to the courts. I hey are haunted by the question. "What if I lose?" In this event, the court might very well saddle them with all the costs of the case—the defendants as well as their own.

Injustices are frequent in sonic magistrates’ courts where many cases are dealt with on a mass-production basis in a factory-like atmosphere. One prominent lawyer has described the magistrates’ courts as a "vicious anomaly.” He pointed out that magistrates carry on most of the trial work in this country, disposing of more than ninety percent of all criminal cases. I hey have extraordinary powers; they can sentence a man to be whipped or to be imprisoned for life. Vet this important figure in the judiciary is not

even given the title of "judge”; he is the lowest paid of all benchers and the most overworked; he is usually condemned to work in "Black Hole” surroundings.

Examination of a few statistics indicates why J. M. Goldenberg, QC, former president of the Saskatchewan Law Society, has referred to magistrates’ courts as "a conveyor belt system of criminal proceedings.” All but a few thou-

sand of the thirty thousand convictions for serious crimes in Canada during 1955 (the List recorded year) were made in the magistrates' court. So were the bulk of the two million noil-indictable (i.e. less serious) offenses, such as traffic and liquor law infractions. Ten years ago. these offenses numbered less than 660,000. We have lagged behind in providing a sufficient number of magistrates and

courtrooms to cope with this staggering volume of work.

In 1946, Toronto designed a special magistrate s court to hear seventy drunk charges a day. Ten years later, they were being rushed through the "drunk court” at the rate of one hundred per hour. "Justice," commented the Toronto Globe and Mail, "has become a steamroller; the average citizen is unable to make use of

all the legal machinery at his disposal.” When the courts reopened after a long weekend last year, an Ottawa magistrate singly had to deal with eighty cases. Toronto magistrates had a total of four hundred and fifty cases while their counterparts in Montreal had five hundred cases. Even a small city like Saskatoon sometimes has a daily log of one hundred and ten cases in magistrate’s court. In 1940. two magistrates in Vancouver heard 16,215 cases; during 1958, six magistrates disposed of 151,334. In other words, three times the number of magistrates

now has to do ten times the amount of work.

Under these circumstances, “sentencing sometimes becomes mechanical,” says Edson Haines, QC. a leader of the Ontario bar. “People are sometimes sent to jail for several years with little or no inquiry.” In Winnipeg, a few years ago, a forty-year-old unemployed man with three children, became despondent because he had no money to buy his youngsters Christmas presents. He had no criminal record. After a few drinks one evening, he held up a downtown theatre with

a toy gun. Within eighteen hours, he was arrested, pleaded guilty, was sentenced and started serving a three-year sentence. He was not represented by counsel; no friends were present to attest to his good character.

New Canadians particularly are in danger of suffering injustices in the magistrate’s court because of their language handicap, lack of knowledge of their rights and their inability to employ counsel or raise bail. In June, 1958. two Yugoslavians, Steve Chusin, thirty-four, and Mike Susmely, forty-four, were charged

with assault in Vancouver and jailed when they couldn't raise bail. Both men stayed behind bars for seventy-six days while their case was remanded fourteen times. After a magistrate acquitted the two men, Chusin asked sadly, “Who will fix up the hurt and shame I feel?" In Toronto, a New Canadian woman was charged with shoplifting and locked in jail. She screamed for an hour but, without an interpreter available, nobody understood her. Later, a constable found that she had hanged herself. She had been trying to tell the police that she had left three very young children at home unattended.

Occurrences such as these might have been avoided had legal counsel been available to advise the accused, regardless of their means. Although many bar societies are attempting to provide free legal aid. J. M. Goldenberg, QC. of Saskatoon, a former magistrate, says, “Step into any police court and you’ll see many accused without counsel." Even a person who pleads guilty should have someone to speak for him “in mitigation of his sentence." “No one is so black that something white can't be found in his background." Goldenberg is critical because the vast majority of prominent lawyers shun the police courts. “They’re engaged in civil practice," he says. "As long ago as 1909, Samuel Untermeyer, a leader of the New York Bar, deplored the fact that the flower of the bar had been drawn away from the higher sphere of advocacy by the temptation of money to become highly paid clerks to businessmen."

A lack of uniformity in sentencing is another glaring weakness in magistrates’ courts. Recently, the Ontario attorneygeneral’s office sent all its magistrates a detailed account of a hypothetical criminal offense and asked them how they w'ould dispose of it. Back came the answers. ranging all the way from suspended sentence to a two-year prison term. Evidently the quality of justice also varies from province to province. A careful statistical study by Goldenberg revealed a wide variation in the percentage of acquittals, according to geography, I he percentage of acquittals in Manitobas magistrates’ courts, for instance, was only one sixth as high as that of Ontario courts. One explanation which Goldenberg offers is that many people plead guilty to avoid involvement with the court and possible expenses. As a magistrate he discovered that many innocent people pleaded guilty. On several occasions he persuaded them to change their pleas to not guilty. "In every case where this happened," he says, “the accused walked out of the court a free person." Many people, says Goldenberg, don t realize the seriousness of pleading guilty to a crime. "It leaves a blemish on a man’s character which can never be eradicated.”

There are a number of ways of improving the performance of the magistrates’ courts, some of which have already been adopted in parts of the country. More judges and more courtrooms are urgently needed, particularly in the urban

areas. Magistrates' salaries — many of which are in the seven-thousandto eightthousand-dollar area—should be increased. At the same time, we should insist that appointees have a formal legal training or the equivalent. At present, this is often not the case. The former attorneygeneral of one of the western provinces sent the bulky eight-volume set of provincial statutes to every rural magistrate for their guidance. One set was promptly returned with the accompanying note:

I don't want these books. Every time I consult them I get mixed up and it warps my judgment."

Fhe possibilities of a provincial probation service have not been fully exploited by many magistrates' courts. Probation officers can guide a magistrate by

providing him with a pre-sentence report; they also make it possible for a magistrate to keep offenders out of jail. Apart from nipping many a criminal career in the bud, probation saves the taxpayer money—a lot of money. During 1958. Ontario’s probation officers supervised about thirteen thousand probationers. Instead of languishing in jail at a cost of fourteen million dollars, the probationers earned fifteen million, paid two and a half million to their deserted wives and children and restored seventy-two thousand to people they had stolen it from. Ontario has one hundred and thirty probation officers but the maritime provinces. Newfoundland and Alberta only have a total of fifteen.

I here are other services which can

enhance the performance of the magistrates’ courts. Beamer Hopkins, until recently senior magistrate of the Hamilton Court, has been instrumental in introducing installment system of paying fines, a psychiatric clinic for examining offenders and a probationers’ aid society, a voluntary group of people who help probationers find a place to live, get them a job and provide them with tools they might require. In ten years, Hopkins has cut the Hamilton prison population in half. “My policy." he says, "is to reform when you can. punish only when you must."

Benchers like Magistrate Hopkins who are progressive and possess initiative will always find ways and means of making their courts serve the community more

effectively. For the judge is the pivotal character in the administration of justice. ★

PART TWO of this series, to be published in the next issue, will take an intimate and searching look at the men who occupy the bench. How do they work? How good are they at their jobs? How do they reply to their critics? Do they succeed in overcoming their own fears and prejudices and the pressures of the community, to achieve true impartiality? Alone, outside the courtroom, what worries and disturbs them the most? And finally, what suggestions are being made by judges — as well as qualified outsiders — to improve our system of administering justice?