by Gerald Jewers
Retired Manitoba Queen’s Bench Judge
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Dale Brawn, Paths To The Bench: The Judicial Appointment Process in Manitoba, 1870 to 1950. Vancouver: UBC Press, 2014, 320 pages. ISBN 978-0-7748-2676-1, $32.95 (paperback)
This book is very much about what factors other than legal prowess influence the selection of superior court judges in Canada and Manitoba in particular. Dale Brawn is an associate professor in the Department of Law and Justice at Laurentian University. He has a special interest in the judiciary and feels that the study of that subject is important and useful. Judges do shape law and policy.
Professor Brawn has authored a previous study: The Court of Queen’s Bench of Manitoba 1870-1950, a history of that court, including biographical sketches of the first thirty-three judges appointed in that period. Paths To the Bench builds on that history and examines how and why those thirty-three judges got their jobs. The study is structured into three chronological sections: the first (1870 to 1884) represents a time when Manitoba’s legal profession was controlled by an eastern-born and -trained elite; the second (1885 to 1922) represents a period of transition from an eastern to an indigenous elite; the third (1923 to 1950) represents a time when the bar was firmly under the control of lawyers educated in Manitoba.
It is important to appreciate that all Canadian judges are appointed by the government. Superior court judges are appointed by the federal government, and the Court of Queen’s Bench of Manitoba is such a court. Professor Brawn has assessed his thirty-three judges from the perspectives of social origins, legal careers, politics, prominence, the appointment process, and why lawyers do not go to the bench. He makes the point that social attitudes affect political values, which in turn affect behaviour. Judges share a common background, and their values and beliefs are those of the group to which they belong. The role of religion insures a common set of values and confers a social and professional benefit. Most judges joined a church, predominantly Anglican or Presbyterian/United. Some were Catholic (French or Irish), and unofficially a Catholic seat was reserved for a Catholic appointment. Jews were excluded until 1952 when Samuel Freedman was appointed. Early Manitoba judges were born and raised in Ontario, their fathers were upper middle-class professionals, and they were Anglicans. Later judges were born elsewhere but educated in Manitoba. Their fathers were as likely to be middle-class professionals as working-class farmers, and they were as often Anglicans as Presbyterian/United.
The chapter “At the Bar” is an analysis of such factors shaping careers as apprenticeship (articles), family connections, education, mobility, type of practice, specialisation, etc. Success in court as a criterion of ability is examined. Professor Brawn’s review of reported cases shows that the most active litigators lost somewhat more than they won. Williams (arguably the most able) had fifty-eight cases of which he won 45 percent and lost 55 percent. However, the professor does not regard this as being of much moment and makes it clear that he is assessing ability based on the esteem of contemporaries.
Politics was of first importance. Almost invariably, the Conservatives appointed Conservatives and the Liberals appointed Liberals. Ralph Maybank was a Manitoba lawyer and, following a political career, a Queen’s Bench judge. He was a Liberal member of the legislature and a Member of Parliament. In the latter part of the third period, ending in 1950, he was the pre-eminent Liberal insider and was consulted on all judicial appointments to the Manitoba superior courts. In 1946, he wrote to the province’s labour minister that he was determined to avoid the appointment of Tories, stating that “in order to do that, we must settle on any Liberals at all. I repeat that: any Liberals at all.” Rare exceptions were Williams and Beaubien, appointed by Liberal Prime Minister King over the strenuous objections of Mr. Maybank and other Liberals. But Williams, who deserved the appointment on merit alone, was a good friend of the Prime Minister; and Beaubien was supported by his Liberal brother, who was a Member of Parliament and later a senator.
A person was labelled a Liberal or Conservative if he had a significant connection to one party or another, ranging from running for office to a family connection with a successful candidate. Of the thirty-three judges, eighteen ran for office, three were engaged in party activity, six were closely associated with politically connected persons in a mentor/client relationship, and six had a family connection. A connection with a well-placed political benefactor or mentor was important, as that person could significantly advance the career of a lawyer. Two-thirds of the judges had such mentors.
Chapter 5, “Becoming Prominent,” is prefaced by a quotation from Lord Tomlin: “Whether promotion cometh from the east or from the west, it cometh but rarely to him who has not by patience and industry built up for himself a reputation.” The book discusses how lawyers make themselves known and how this prominence affects the judicial selection process. Both professional and non-professional activities are considered. Six areas of professional factors are listed: appointments, bar associations, commissions, Law Society, prestigious law firms, and professional reputation. Interestingly, Professor Brawn notes that before 1884 five of the nine judges had a solid professional reputation; from 1885 to 1922 that applied to eight of the fourteen, and thereafter to only two of the last ten.
Areas of non-professional activities included civic organisations, literary, politics and religion, with the most common being civic (defined as any non-political municipal group such as cultural, military, educational, and speaking engagements). The professor concludes that in Manitoba’s first 79 years, non-professional activities were more important than professional in the judicial selection process. This is perhaps not surprising, as the non-professional would be noticed by a wider audience, including those of most influence in the selection process.
Chapter 6, “The Appointment Process,” is prefaced by a quotation from Lord Salisbury: “The judicial salad requires both legal oil and political vinegar; but disastrous effects will follow if due proportion is not observed.” At the time, the selection process was that the Minister of Justice would ask his colleagues from the affected province for a list of possible candidates and would also add to that list names provided by opposition members of parliament. He also contacted those members of the bar and law society whose judgement and advice he trusted, for their comments and suggestions. He then compiled biographical sketches of those to be recommended and submitted them to Cabinet for the final decision.
Now a person wishing to be a judge must apply to the government for an appointment, but that was not the procedure at the time in question. People did not apply, and most hopefully waited to be chosen; some did write to the government extolling their suitability and asking to be considered. The main criterion was service to the party. The influence of political insiders was important. In Manitoba there was the “Sanhedrin” (named for the highest judicial court in ancient Jerusalem) headed by John Dafoe, the editor of the Winnipeg Free Press, which was later supplanted by Ralph Maybank who was consulted on all judicial appointments. The iconic lawyer Isaac Pitblado was also very influential. For a time the law society benchers asked that they be consulted, but the government ignored them.
Age and experience counted. From 1885 to 1922, less than 50 percent of those selected had more than twenty-one years’ experience, but later that increased to 100 percent. Religion played some role. Religion provided a set of values seen to be desirable judicial attributes. Most of the judges were Protestant Anglican / United and a few were Catholic. By 1885, it was understood that the French Catholic minority community would always be represented on the bench. Merit took somewhat of a back seat. Professor Brawn concludes that ability was useful but not required, and that just as important were “political, professional, or religious connections, experience in private practice, maturity, war service, and ethnic appropriateness.” That opinion is certainly reasonable if all that can be said of eight of the last ten appointments is that they were not above average merit.
The question of why lawyers do not go to the bench is explored. Of course, if they did not have the right political connections they would never be asked. But some were asked and were just not interested. For example, the Prime Minister urged Isaac Campbell to be Chief Justice and he declined. Others, like Isaac Pitblado, could easily have secured an appointment but simply did not pursue the position. At first, low judicial salaries may have discouraged lawyers who would otherwise have pursued a career on the bench, and indeed that was given as a reason for the indifferent early appointments to the Supreme Court of Canada. But a 2008 study shows that judicial earnings are now comparable to those of the bar.
In the conclusion, the author asserts that the system has produced many outstanding judges, but has also excluded others “because of the partisanship of appointment makers or the inadequate socialization of the candidates.” And he also says: “In Manitoba ... lawyers had to develop and maintain a network of individuals already prominent. Lacking it their chances of going to the bench were slim. Critical for those with no mentor was attracting the attention of others. Prominent practitioners did that in a way that was quite different from those without a professional reputation, but for both groups involvement in a variety of organisations was neither accidental nor selfless.”
Of course, all of this begs the question of whether the paths to the bench remain the same for the many judges appointed after 1950. There have been important changes. Judicial selection has become more diverse. The first thirty-three were all white males, mostly of British Protestant extraction, and a minority of French and Irish Catholics. After 1950, persons of other origins began to be appointed, including, amongst others, Slavic, Jewish, German, and Scandinavian. There is now one Aboriginal superior court judge. Above all else, women have begun to be selected. In 1950, there were no female judges, but starting in the 1980s more and more women were entering the legal profession and appointed to the superior court bench. And so gender has become and is a large factor.
The appointment system has changed, and now judicial aspirants must formally apply in writing to the government and be recommended by a provincial selection committee. This has perhaps given more assurance that applicants are qualified at least to an acceptable standard, although there is still room for patronage. In a secular society, religion may be less important, although there still seems to be a tradition of “reserving” a seat for the francophone community. One or more members of the French Catholic community have always been represented. It is logical to assume that prominence, professional or otherwise, remains a factor and would predispose the selection committee to recommend the candidate. Undoubtedly age and experience are still important, and it is not likely that the committee would recommend the young and inexperienced. Without that approval there will be no appointment. One suspects that political affiliations and mentoring are still influential, but this remains to be further studied and documented with respect to the years following 1950. There is no reason to believe anything has changed. There have been a number of high profile political appointments in recent years, but the party affiliations of most other candidates are not always readily apparent. However, as a long-time member of the Manitoba legal profession, this reviewer would suggest that, even if the parties are habitually appointing their own, the selections on the whole have been well qualified and many have been outstanding.
We are indebted to Professor Brawn for a fascinating and well-documented account of how lawyers got to the bench in the period studied. The paths he explored may very well be as relevant today as they were in the past.
We thank Clara Bachmann for assistance in preparing the online version of this article.
We thank S. Goldsborough for assistance in preparing the online version of this article.
Page revised: 15 April 2020
