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The Court: Canadian JPs by the Late Nineteenth Century

Bracebridge was a political hotbed. Dominion and provincial elections were frequent, council elections rolled around every New Year’s Day, and townsfolk voted on contentious plebiscite questions frequently: all helped stoke the fires of political intensity. Rare was the Muskokan who hesitated to state his opinions on anything, from the fence-sitting leaders of the country to the location of his neighbour’s line fence. Nobody could escape taking sides, in this era before the secret ballot, when each man’s vote was openly cast amidst spirited townsfolk thronging at public polling stations, where the voter’s spoken declaration was, in fact, usually a proud or defiant shout, naming his chosen candidate. Everybody knew where a fellow stood, and whom he supported.

Fitting in so as not to stand out, James Boyer identified himself as “an Independent Liberal” shortly after arriving in the district. He was not an active partisan. His position as town clerk restrained him from being outspoken, and conducting municipal elections and plebiscites required him to be neutral. He used this as a shield, content to be a quiet Liberal bystander to controversy. James still feared that partisan animosity could trigger closer scrutiny by adversaries and betray his identity. As a participant-observer (someone directly engaged in the affairs of his community through a variety of roles, who simultaneously had to stand apart from them as recording secretary, municipal clerk, or newspaperman, etc.), he exuded a balanced quality; he was a calmly reticent man whose nature suggested to others he could keep confidences. Many consulted James for his informed view on things, and he steadily rose in local stature because he was not seen as a threat to anyone.

Someone who frequently sought him out was Alexander Cockburn, the first Muskokan James encountered — the two had shared the same rough coach ride into the district in September 1869. The influential steamboat owner and timber entrepreneur had run in federal and provincial elections, was a catalyst in district politics, and by 1878 was the Liberal MP representing Muskoka. Cockburn kept interested in Boyer’s career, partly for sentiment as the man who “introduced” him to Muskoka when they crossed the Severn River together, but also out of shrewdness because his rising political career required good relations with someone who, at turns a newspaper editor, school teacher, municipal clerk, and officer of more than a half-dozen church, fraternal, loyalist, and agricultural societies, could influence so many others. The two men enjoyed booting about information and ideas, since both shared a wily outlook about the workings of government and politics. Although both were Liberals, each was also his own man. James voted for Conservative candidates if he agreed with their stands more, while Alexander voted with the Conservatives in Parliament or the legislature if it helped install locks on the Indian River for his steamboats, get Crown timber concessions to log Muskoka’s forests, or win government grants for his pioneering steamboat program.

Cockburn would be of great help to James in his bid to become a justice of the peace. Boyer was unable to practise law because becoming a member of The Law Society of Upper Canada would mean establishing his professional qualifications, which in turn meant reference to New York, where he was known by a different name, was an American citizen, and had left a wife and daughter behind. But he was still in love with the law. Boyer’s lack of standing as a lawyer, however, was the very qualification needed to make him a candidate for justice of the peace in Muskoka. The rules, Cockburn noted to him, stipulated that a JP could not be a lawyer. All the same, the provincial government liked to appoint a person of standing in the community, and James, after a decade in Muskoka, clearly had achieved that. If the prospective nominee was steeped in the law, but not active in its practise, even better. If a Liberal, even an “Independent” one, better still.

Cockburn could recommend, but the decision would be made by Oliver Mowat, provincial Liberal leader and head of Ontario’s government as premier and attorney general. This wily, mutton-chopped premier with poor eyesight and thick glasses would remain in office a record number of years until 1896, only departing Queen’s Park in order to become Canada’s minister of justice in the new Laurier government in Ottawa. Premier Mowat’s long-running success was underpinned by his continuous attention to political patronage, including whom he appointed as local magistrates. In 1878 he named his fellow Liberal “James Isaac Boyer” of Bracebridge as Magistrate for Muskoka District.

In early Ontario justices of the peace held courts designed to meet the minimum standards of justice, rough-hewn for a rough land. They lacked the firm foundation upon which the English system of JPs was based, and became increasingly ineffective in the face of the developing complexities of Canadian life. By the 1870s James Boyer found himself occupying a judicial office so evolved in Canada that it only loosely approximated the English original.

He’d become familiar as a boy with the role of county magistrates in his Moreton-in-Marsh village, where effective local government was principally in their hands, then in Stratford-upon-Avon, through his years law-clerking there. In that English setting, he could never have imagined himself in such a role, given the social standing of British JPs. But he was now in the New World, where everything was possible for those looking to get ahead.

Not only did men change in Canada, but so did institutions. James’s new front-line judicial office in 1878 was certainly not the model originally exported with Britain’s imperial extension of the Old World into the New.

In fact, it had been a long stretch of seven centuries since King Richard I first gave knights power “to preserve the peace in specified areas.” The JP’s role had grown and changed dramatically in England even before reaching the stage of development exported to Britain’s North American colonies in the 1700s.

In the mid-1300s, for instance, several statutes clarified and expanded the powers of JPs. A 1327 act provided that “good men and lawful” should be appointed “for the better maintaining and keeping of the peace” in each English county. In 1344 these keepers of the peace were granted extended authority, jointly “with others wise and learned in the law,” to hear and determine felonies and trespasses. After a while these “keepers” of the peace commonly became known as “justices” of the peace, and this popular way of referring to them was officially adopted in a 1361 statute that specifically formalized their powers over the restraint, pursuit, arrest, and punishment of offenders. Under this act, Parliament assigned to every county in England “one Lord and with him three or four of the most worthy in the county with some learning in the law” to keep the peace, arrest and imprison offenders, and hear and determine felonies and trespasses. The following year, these “most worthy” persons became justices of the peace in their own right, when another statute established that commissions of the peace would meet four times a year, eventually giving rise to what became known as “Quarter Sessions.” This enactment also provided that JPs, independently of others learned in the law but with a jury, could try criminal offenders.

Successive statutes then extended the criminal jurisdiction of the Court of General Quarter Sessions, beginning in the fifteenth century when JPs were empowered to try certain offences outside of quarter sessions, without a jury. These proceedings, conducted by JPs exercising their summary offence jurisdiction, became known as “Petit Sessions,” a term continued in England until 1949, when they were renamed “Magistrate’s Courts.”

However, it was their non-judicial duties that increasingly made justices of the peace a central part of local government. Today, when judicial functions and government operations are distinctly separate, it is hard to imagine the two combined; however, in 1890s Bracebridge James Boyer was justice of the peace and town clerk at the same time, a combination consistent with the role played by JPs in England, where they had steadily acquired substantial administrative powers in local government in addition to their judicial duties. During the 1400s, for example, justices of the peace in England gained so many regulatory and supervisory duties that soon their responsibilities, notes legal historian James Wilson, “blurred the fine distinction between judicial and administrative duties or criminal and civil jurisdictions.” This “double jurisdiction allowed the justices to confirm themselves as more or less self-contained local oligarchies which doled out administrative and judicial pronouncements with almost absolute and unfettered control.”

After four centuries of piecemeal development, a new 1590 enactment by Parliament focused the JPs powers by restating them and clarifying that justices of the peace could “proceed in three separate ways according to the matter at hand: they could sit alone, they could sit jointly with one or more of their fellow justices, or they could sit collectively as they had been doing since the 1360s as a general sessions of the whole county.” Through the next century, notes Wilson, most civil administration in the counties came to be performed by these Courts of Quarter Sessions. In addition to resolving disputes and meting out punishments to lawbreakers, JPs were increasingly confirmed in statutes as administrators conducting local government. The cumulative effect was staggering. By 1689 a JP’s government administrative duties ran the gamut from overseeing bridge repairs and the building and maintaining of jails, to issuing alcohol licences, and sanctioning taxes for parish needs. These were tasks that, in time, with pressure for more accountability and democratic control, would become the responsibility of elected municipal councils. Until that happened, however, this steadily growing roster of administrative powers meant that, as scholar David Phillips observes, “for most people, the justices, rather than the central government, represented public authority as they would experience it in their daily lives.”

Because they wielded such significant powers, the qualifications of justices of the peace mattered. One of those 1300s statutes required that justices of the peace be “the most sufficient knights, esquires, and gentlemen of the land.” Fifty years later a 1439 act stipulated that JPs must own land valued at twenty pounds a year, meaning they had to be to a modest extent members of England’s propertied class. Despite the power JPs wielded, and perhaps to some degree because of it, finding qualified men willing to perform the role was difficult. The time consumed and the potential to make enemies tended to repel men possessing the requisite social and economic standing. Still, those prominent men who did agree to become JPs were often landed gentry. Throughout England’s countryside these propertied and educated individuals often played a catalyst’s role in public affairs. Their independence neither required, nor much tolerated, directions from a distant, all-powerful authority.

The English jurist Maitland wryly observed, in an 1888 essay entitled “The Shallows and Silences of Real Life,” how the most learned stipendiary magistrates “will find it hard to get so high a reputation among country folk for speaking with the voice of the law, as that which has been enjoyed by many a country squire whose only juristic attainment was the possession of a clerk who could find the appropriate page in Burn’s Justice.” Canadian jurist and law reformer James C. McRuer added that England’s justices of the peace were “persons who felt the responsibilities of their position, who acted out of a deeply developed sense of stewardship, and who were respected and relied on by their poorer neighbours, to whom they were the embodiment of ‘the law.’”

In short, respect for JPs had steadily grown as a consequence of who they were socially, how effectively they functioned in office, their growing powers in local governance, and their independence. Increases in their statutory powers propelled them into ever-greater prominence, right into modern times when the vast majority of criminal prosecutions in England are disposed of by justices of the peace in the exercise of their summary jurisdiction. They proved indispensable in resolving petty local frictions that were neither so trivial they could be ignored, not so severe as to land a culprit in a higher court on a heavy criminal charge.

As created in England, this institution represented ground floor, walk-in justice. The fact JPs had emerged from the solid foundations of an existing social order, one they both understood and helped to perpetuate, would be one of countless differences when the office of JP was exported to fledgling colonies.

The practice of introducing this institution into the rudimentary social order in overseas territories began in North America with England’s first overseas colony, Newfoundland, continued in new colonies like Virginia and Nova Scotia along the coast of New England, and in 1760 extended to New France, once Britain gained these colonies. Three years after Quebec’s capitulation, King George III issued a royal proclamation giving Governor Murray, among other things, full authority to constitute justices of the peace and appoint men of his choosing to the positions. So began the process that would eventually produce justices of the peace in Ontario, and, specifically, in Muskoka, a century later.

It was one thing to have the authority to create JPs, quite another to have the right handle on how to do so. After all, the JP’s functions in England had developed over time as a distinctive component of a most particular society, evolving to suit English needs in ways appropriate for English conditions, in ways only possible within that setting. Such uniqueness meant replicating justices of the peace, in short order and in a different society, was difficult.

The quest to adapt British institutions and practices within North America’s fledgling communities took unexpected turns. It seemed probable that grafting English laws and judicial procedures onto an existing French society, in the wake of centuries of French–English warfare and mutual hatred, would create a toxic reaction leading to rejection of the transplant. Yet, the relationship between magistrates, police, and people in Quebec and Lower Canada did not seem overly difficult. With evidence from Quebec records following 1764, historian Donald Fyson has now corrected many earlier misinterpretations about this “British” institution in a largely French-speaking community, documenting, from “banal cases involving no particularly interesting judicial principles,” substantial continuity between the old French regime and the new British order that replaced it. The transplant was taking root, at least where JPs were appointed in the established communities of Quebec.

Reaching beyond those established Quebec settlements, however, the situation was quite different as the colony expanded into the unsettled territory to the west that would in time become Ontario. The year after Murray created the first justices of the peace in 1764, new districts were created in Quebec’s sprawling regions of wilderness. “Provisions for administration at the local level were provided for each of the newly created districts at this time by the granting of commissions as justices of the peace,” explains Wilson, “with three justices empowered to hold quarter sessions in each of their appointed districts.” The principal problem with these districts serving as the primary judicial units was that their much larger size and sparsely settled population, compared to their corresponding county unit in England, made it hard to find qualified men to serve as JPs. The problem was further exacerbated because Roman Catholics were now barred by law from being appointed and few Protestants lived in Quebec.

The result was predictable. Relationships of power and authority became strained, laws went unenforced, procedures remained unfamiliar, and the different outlooks of English-speaking and French-speaking colonists clouded the picture — problems that were compounded by the fact that the vast areas of the new districts made control and administration difficult and slow. Dissatisfaction was mounting. Inhabitants, demanding a say in government, agitated in part because of the problems that arose from an administrative and legal system operated by justices of the peace. The British government responded with a new constitution, embodied in the Quebec Act of 1774. Despite other changes, it maintained the institution of a local magistrate in the French-speaking territories and extended this judicial-administrative position to settlements in the inland territory that would, in time, become Ontario.

After the 1770s this inland Quebec territory began filling in with settlers. In just a decade and a half, colonial development in this sector advanced so much that it required its own local structure for governance, rather than depending on its distant capital down the St. Lawrence. A separate government system soon became necessary for this westerly region because its new settlers, unlike those in old Quebec, were mostly English-speaking, non-Catholic, and, also, were militant supporters of the British Crown. Many had fought on the losing side in the American Revolution, when thirteen of England’s colonies had rebelled against the Crown and fought to create a new republic, the United States of America. Those on the losing side, fleeing with their lives from torched homes and confiscated farms, were dubbed “United Empire Loyalists.” They started life anew in the remaining British North American territories, some settling in Nova Scotia, others crossing into this empty inland territory to live on the north shore of Lake Ontario and in the Niagara Peninsula. They brought with them loyalty to the Crown, an aggrieved sense of injustice that would long endure in Ontario’s political culture as anti-Americanism, and familiarity with such British institutions as the local justice of the peace as it had evolved it in a North American setting.

To accommodate this altered reality, the British Parliament again revamped constitutional arrangements, this time in the Constitutional Act of 1790, changing Quebec’s governance structure by dividing the colony, renaming its successor parts Lower Canada and Upper Canada (in relation to their lower and upper elevations on the St. Lawrence River.) Besides dividing and renaming territory, the act also established a constitution for the new Province of Upper Canada.

By this date English-style justices of the peace had already been exercising jurisdiction in this extended segment of Quebec territory, as thinly populated as it had been, for over two decades. Under this 1790 reconstitution, the Court of the General Quarter Sessions of the Peace was left untouched, so the structure of local government remained basically as it had been, with JPs wielding significant roles in local government as well as administering justice. A landmark 1790 development, creation of a legislature, opened colonial life in the province to something more democratic than before. Election of representatives to Upper Canada’s first legislative assembly followed in 1791.

This legislature in the early years of Upper Canada was, as Wilson notes, “confined largely to provincial matters, and the actual maintenance of local affairs and justice in Upper Canada was controlled by the men appointed justices of the peace sitting in the Court of General Quarter Sessions of the Peace for each district.” This arrangement replicated the pattern in England familiar to the MPs at Westminster who debated and enacted the Constitution Act of 1790. It was also favoured by Britain’s Colonial Office, which sought, in as many ways as it could, to control political life in its remaining North American colonies, having just lost many of its most prosperous and populous ones along the Atlantic seaboard. JPs, given pivotal roles in local government across the province, were appointed with the approval of the British governor in Upper Canada.

The British regime was still shaken by the French and American revolutions, and feared “mob rule” and “democracy”; these two were, in fact, identified as the same thing, an apprehension that worked itself into many controls the British instituted in Upper Canada to restrain North America’s yeasty democratic tendencies. Where citizens of the new American republic swore allegiance to the Constitution, Upper Canada’s residents were “British subjects,” whose loyalty was to the Crown. These were two fundamentally different foundations upon which to erect the “rule of law.” The 1791 election of an assembly of representatives in Upper Canada was a timid step in the direction of democracy. This legislative body remained ineffectual because real power still resided with the legislative council, a second chamber with greater powers and whose regime-supporting members were not elected but appointed by the governor.

Within this configuration designed to constrain democratic tendencies, the province’s justices of the peace played major roles, thanks to their powerhouse combination of judicial and governmental functions in local affairs. Until the 1830s, as historian James Aitchison notes, “No town meeting could legally be held without a warrant for the purpose signed by two justices.” In other words, freedom of assembly existed only if the regime, represented by its justices of the peace, approved of who was going to gather, and for what purpose.

The “rule of law” supported the established order by keeping democracy at bay in other ways, too. When a provincial statute in 1793 empowered Upper Canada’s townships to select officials who would handle minor local matters, not only was the authority of these men limited, they were subject to supervision by justices of the peace even in handling their minor tasks. That was not an aberration. It was a local microcosm of the provincial scene itself, where elected representatives in the assembly were severely limited in their roles and subject to being overridden by the appointed legislative council and governor.

The next noteworthy development for the province’s justices of the peace came in 1800 when Upper Canada’s legislature adopted in its entirety the criminal law of England as it stood in 1792. This established that JPs in the province possessed the same extensive powers as their English counterparts. Several decades of developments in the colony were thus now confirmed and clarified by statutory authority and renewed legitimacy. That, at least, was the theory.

In practice, a chronic shortage of justices of the peace had been hobbling the province for years. This fact, long ignored in the relevant historical literature, came to light in the early 1950s when James Aitchison, researching his doctoral thesis, “The Development of Local Government in Upper Canada, 1783–1850,” uncovered the rawer realities of the province’s pioneer communities. He discovered what settlers in Upper Canada knew only too well: the local JPs wielded great power and were part of the colonial province’s problems, not its solutions. Many men named in the Commission of the Peace did not take their qualifying oath. Others, once qualified, refused to act. These problems were compounded because the government was reluctant to replace justices of the peace who had died or been removed from their districts. On top of that, Aitchison found, many townships were simply not represented at the district Quarter Sessions, or even at the township level. Public administration in the province was, in a word, chaotic.

If justices of the peace had been peripheral officials with little responsibility, their contribution to the chaos would have been negligible. But such a staggering array of responsibilities fell to them that their failure to perform created bottlenecks in local governance. First, there was policing. Before the rise of professional police forces, JPs worked alongside local constables enforcing the law. For anybody wanting to start legal proceedings against a person, a justice of the peace was the first point of contact. Because a victim had to swear out a complaint before a JP to start a prosecution, it was required that he or she name the offender. If the identity of the offender was unknown, for instance, in the case of a thief who’d disappeared, it became the victim’s responsibility to do the detective work needed to produce a name. Given the harshness of this requirement in some circumstances, justices of the peace would sometimes shoulder this responsibility themselves, bending the rules and doing, as legal historian Susan Lewthwaite put it in 2001, “what they could to help the victim track down the offender.”

Secondly, in the routine course of their duties, as Lewthwaite summarized, justices of the peace “took depositions of witnesses, examined defendants, issued warrants and summonses, bailed or jailed defendants, bound witnesses in recognizance to attend trial, and organized the paperwork for trials.”

A third responsibility arose in the absence of a local coroner, when a justice of the peace would preside at the inquest. As legal historian David Murray noted in 2002, JPs occasionally even had a direct role in examining the body. For an 1840 inquest in Chippewa, the justice of the peace later recounted how “the body was in such a state of decomposition I could scarcely get a person to touch it and it was 11 o’clock at night before we got it into the coffin.”

Fourth, justices of the peace had courtroom roles deciding cases. A JP could try a number of minor offences summarily, meaning without a jury, in the same manner as a lower court judge. When it came time for more serious offences, district magistrates would sit with JPs on the bench at Quarter Sessions, an intermediate level of courts. “Only the most serious cases,” as Lewthwaite notes, went to the Court of King’s Bench at the assizes.

In hearing cases, JPs sometimes acted alone, in other cases not. As Murray reminds us, ancient English law “empowered justices of the peace to act alone on some issues, to act with one or more fellow magistrates on others, and to act collectively as the Court of General Quarter Sessions on still others.” This was also the situation in Upper Canada. In practice, this system was rough and ready. The Court of Quarter Sessions met four times a year, more frequently in special sessions if necessary, but the number of JPs who attended varied because with distance and weather not everyone always showed up.

Fifth, justices of the peace exercised extensive powers of government, integrating matters of public administration with their duties in the administration of justice. The Court of Quarter Sessions’s jurisdiction extended far beyond civil and criminal matters for its district to include responsibility for local administration. In fact, prior to creation of municipal corporations in 1832, as Aitchison stresses, “this court was in complete charge of district finance.” Upper Canada justices of the peace prepared spending estimates of the district for the year ahead, determined local taxation levels needed to raise that amount of money, raised loans for courthouses and jails, oversaw their construction, appointed the district treasurer, approved all non-statutory expenditures, examined the treasurer’s books, could remove the treasurer at will, and heard assessment appeals. Yet, that was hardly the end of it. They also regulated ferries, had responsibility for roads and bridges, determined who got liquor licences, and exercised numerous powers with respect to township officers. In short, until 1832, with no municipal corporations and without any town meetings in surveyed townships, the Court of Quarter Sessions “received all the authority granted by the legislature to deal with the special needs of villages and towns.”

Sixth, because the act of governing requires interpretation and enforcement of laws, justices of the peace shouldered numerous additional duties of adjudication in their governance role, as Aitchison itemized. They imposed penalties for infractions of laws, and heard civil actions for small debt recovery. They exercised these powers either alone or in pairs, depending on the seriousness of the infraction. Acting alone, JPs could order overseers to do roadwork within their districts, receive overseers’ books, lay out commutation money, and administer oaths to township officials to perform their duties. Acting in pairs, they could consider and allow tax assessors’ returns, issue warrants to debt collectors, and approve the apprenticeship of orphaned children by a town warden.

Seventh, King George III’s proclamation in 1763 handed JPs a further, even higher, responsibility: they were expected to uphold and enforce a Christian moral order. The king directed Governor Murray and his justices of the peace to “cause all laws already made against blasphemy, profaneness, adultery, fornication, polygamy, incest, profanation of the Lord’s Day, swearing, and drunkenness, to be vigorously put in execution in every part of your government,” taking “due care for the Punishment of these, and every other Vice and Immorality.” This “morality movement” drew its strength from England, where by the late eighteenth century a resurgence of Christian moral values, particularly from Methodist and Anglican quarters, spread out to the colonies through directives to those in the highest levels of government. This duty to enforce morality among the people posed a problem for justices of the peace operating in a setting and culture different from that of England. In Niagara District, at the time the most populated section of the province, the views of many did not align with the moralistic pattern being urged on the colonials. Niagara magistrates faced conflicting pressures enforcing a Christian moral order in a district, as Murray noted, “where some inhabitants were not shy in demanding they do just that, while others were equally determined to lead their own lives, free of unwelcome judicial interference.”

JPs became real players in the province’s opening decades, even if they played their roles overseeing local administrative, financial, and basic judicial services unevenly. As historian Frederick Armstrong aptly notes, justices of the peace had emerged as “the hinge between the people and the provincial government.”

With so many roles, and with a shortage of justices of the peace to carry them out, the cascading consequences of neglect meant many vital aspects of local government went unaddressed, raising the rebellious ire of townsfolk, villagers, and rural settlers, who, during the 1830s, had a growing list of other unheeded complaints, too, from arbitrary government to impassable roads.

What townspeople demanded, Aitchison explains, were efficient and zealous magistrates who would attend to their duties within the township. “Consequently we find them complaining that for want of magistrates town meetings were not held, township officers could not be sworn in, statute labour was unsupervised 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 townships might constitute a single division. Divisions could be adapted to the actual state of settlement.” Seen in a positive light, such flexibility could at least be considered a useful attribute for a developing colonial territory in early stages of development.

By 1867 a further round of constitutional change ushered in the federation of four colonial provinces under the name Canada. The British North America Act divided jurisdiction between federal and provincial levels of government, an innovative two-tiered system of government that first emerged in a North American First Nations federation, was further developed in the Constitution of the United States, and then used for Canada, initially in 1840 and now more fully in 1867, as the best way to unify British colonies in North America under a common government while accommodating their cultural and regional differences. In the process, Upper Canada’s name was changed to Ontario, and its upper house, an elected body since 1840, was abolished. Section 92(14) of the British North America Act gave the province power to set the qualifications for justices of the peace, and to appoint them.

Although justices of the peace in Britain steadily gained power, in Upper Canada the great powers and authority of the justices of the peace had by degrees been taken over by legally trained magistrates and judges as growth of cities and larger towns made a central and stable court system possible. For instance, by 1832, as Wilson notes, “municipal corporations began to erode what some historians have termed the ‘autocratic’ powers of the justices of the peace.” One way JPs’ powers were curbed was by town charters providing for elected boards of police who, rather than the justices of the peace, would be responsible for policing. After the Baldwin Act in 1852 laid the foundations for modern municipal government in Ontario, elected municipal councils began taking over local government administration from the JPs. The trend continued following Confederation in 1867, as Ontario’s legislature changed the local power structure, stipulating that no justice of the peace other than a police magistrate “shall adjudicate upon, admit to bail, discharge prisoners, or otherwise act, except at the Courts of General Sessions of the Peace, in any case for any town or city where there is a police magistrate, except in case of the illness or absence, or at the request, in writing, of the police magistrate.”

The project of curtailing JP power in Ontario was understandable, if bizarre. The provincial government, seeking to compensate for the earlier lack of such officials, had appointed so many JPs in the mid-1800s that nobody knew how many existed. No central system kept track of justices of the peace. Those who relocated from one jurisdiction to another within the province, or even moved out of the country altogether, or died, often did so without the provincial attorney-general’s department, responsible for administration of justice in the province, ever being aware. At no time could anybody say, due to woefully incomplete records, how many JPs Ontario had, let alone much else about them.

In this context, the move to shoulder out or constrain the JPs’ powers continued. For instance, the bench for the Court of General Sessions of the Peace, Ontario’s equivalent of Quarter Sessions in England, was composed of the county court judge as chairman sitting with justices of the peace, but after 1873 county court judges could preside alone, with justices of the peace no longer needing to be present for this court to be properly constituted. Gradually, the jurisdiction of an Ontario justice of the peace was becoming limited.

Because JPs possessed tremendous powers in the opening decades of life in the province, they potentially faced corrupting influences, especially given their combined judicial and administrative duties at the local level. In contrast to the American institutionalization of “checks and balances,” Canada’s British-inherited institutions handed a lot of unfettered power to early justices of the peace. The challenge to the “Family Compact” oligarchy that controlled Upper Canada by Mackenzie and other reformers in the 1830s was based on both the theory and their evidence that where there was such a concentration of power, there would also be partiality and corruption. Whether that kind of corruption existed to the extent critics of the magistracy suggest remains an open topic for research and debate.

But systemic corruption, which allows an institution to be subverted even as it honourably and effectively carries out its work, because of its structure and operations, was built right into the machinery for administration of justice in Upper Canada. Whether it was through the manner of appointments, the role of JPs in policing, their political roles in local governance, their administrative tasks in connection with prosecuting alleged lawbreakers, or the income they obtained from the fines they levied against those they found guilty, the institution came with fundamental flaws.

A lot turned on how justices of the peace earned their money. Generally, JPs were poorly remunerated, which created a number of problems. Modest pay was supposed to ensure that those who opted to serve as JPs were “respectable,” meaning they didn’t do it for the money because they didn’t need the income, but that reasoning had shortfalls in practice. For openers, in the early decades of the province, while justices of the peace had some remuneration for the transaction of judicial business, this provided little incentive for them, as Aitchison noted, “to carry out their purely local government functions, for which they were not paid at all, or to attend Quarter Sessions.” Some JPs in the province were “stipendiary,” meaning they received a stipend of money from the government, but most were not. Many were remunerated out of the fines they themselves assessed against the persons they convicted. Without convictions, such justices of the peace got no pay.

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.