_0001
1 Excerpt of Proceedings taken at Trial, in the Court of
2 Queen's Bench of Alberta, Court House, Calgary, Alberta
3 -----------------------------------------------------------
4 January 11, 1999
5
6 The Honourable Court of Queen's Bench
7 Mr. Justice McMahon of Alberta
8
9 A.D. Hunter, Esq., Q.C. )
10 L.A. Taylor, Ms. ) For the Applicants
11
12 Robert C. Maybank, Esq. )
13 C.L. Enns, Ms. ) For the Respondent
14
15 D. Parent CSR(A), RMR Official Court Reporter
16 -------------------------------------------------------------
17 MR. MAYBANK: Sir, I would like to call as my
18 first witness, Dr. Rod MacLeod.
19 Roderick Charles MacLeod, sworn, examined by Mr. Maybank:
20 MR. MAYBANK: My Lord, I intend to qualify
21 Dr. MacLeod as an expert on the history of the
22 administration and enforcement of justice, with an
23 emphasis on the evolution of the offices of magistrates
24 and justices of the peace in England and Canada.
25 THE COURT: All right.
26 Dr. MacLeod, is it necessary for you to sit?
27 A No.
_0002
1 THE COURT: Do you feel uncomfortable standing?
2 A Not at all.
3 THE COURT: It would be better, then, if you
4 stood so counsel could hear you, thanks.
5 MR. MAYBANK: Dr. MacLeod, would you please state
6 your current address and current position.
7 A My address is 7704-161 Street, Edmonton, Alberta.
8 Q Your current position?
9 A I am a professor of history at the University of
10 Alberta.
11 Q I'm showing you a curriculum vitae, is that a
12 curriculum vitae that you prepared in relation to
13 yourself?
14 A It is.
15 MR. MAYBANK: And may I have that marked as an
16 exhibit, please.
17 THE COURT: Any objection, counsel?
18 MR. HUNTER: No objection, My Lord.
19 THE COURT: Exhibit 1.
20
21 *EXHIBIT 1 - CURRICULUM VITAE OF
22 RODERICK CHARLES MACLEOD
23
24 Q MR. MAYBANK: Dr. MacLeod, I would like to review
25 your educational history that led to your current
26 position. You graduated with a BA with a major in
27 history from the University of Alberta in 1961?
_0003
1 A That's correct.
2 Q And you obtained a Master's from Queen's University in
3 1967?
4 A I did.
5 Q And you prepared in relation to that a thesis relating
6 to military and police organizations?
7 A I did.
8 Q That was in relation to South Africa, I believe?
9 A Yes, it was.
10 Q And during your Master's program, did you participate
11 in any courses on western Canadian history?
12 A Yes, I did. I took a -- I believe two graduate
13 seminars in Canadian history, western Canadian
14 history.
15 Q And you had indicated that that led to an interest in
16 your Ph.D., which you obtained from Duke University in
17 North Carolina?
18 A Yes, while I was working on my Master's degree, I
19 happened to do a paper on the early history of the
20 Northwest Mounted Police and discovered that the -- all
21 of the Mounted Police records had recently been turned
22 over to the National Archives in Ottawa, and when I
23 went to Duke, I decided that this would make a very
24 good thesis topic for my Ph.D.
25 Q So, sir, you attended Duke from 1967 to 1969?
26 A That's correct.
27 Q And then you worked on your doctoral dissertation from
_0004
1 '69 to '71 in Canada?
2 A Yes, in part, at -- in Ottawa and then in part in
3 Edmonton.
4 Q And what was the subject of that dissertation?
5 A The subject of the dissertation was the Northwest
6 Mounted Police from 1873 to 1905.
7 Q And did you find any relationship between your
8 dissertation and the roles of justices of the peace and
9 magistrates?
10 A Yes, indeed. From its inception in 1873, the
11 commissioned officers in the Northwest Mounted Police,
12 that is to say, officers of the rank of inspector and
13 superintendent -- let me start again. Initially, in
14 1873, superintendents were appointed as justices of the
15 peace. The commissioner of the Mounted Police was ex
16 officio a magistrate with the power of two justices of
17 the peace. A few years later, the rank of -- officers
18 of the rank of inspector were given the ex officio
19 Justice of the Peace appointments and the assistant
20 commissioner was also given that office and, in fact,
21 Mounted Police officers acted as justices of the peace
22 and heard cases on a regular basis in the old Northwest
23 Territories before 1905.
24 Q And did the preparation of your Ph.D. thesis involve
25 any archival research which dealt with the roles of
26 magistrates and JPs?
27 A Yes, it did.
_0005
1 Q And how extensive was that research that you undertook?
2 A For my thesis, I spent the better part of a year at the
3 Public Archives in Ottawa.
4 Q And that thesis was published in 1975?
5 A In somewhat modified form. There were various revisions
6 made but, yes, in 1975, it was published as a book by
7 the University of Toronto Press.
8 Q And was Canadian legal history a popular topic amongst
9 academics at the time?
10 A I think it would be fair to say that there really
11 wasn't such a thing as Canadian legal history among
12 academics in the 1970s. There were a few lonely souls
13 around such as myself who were starting to do it. It
14 really isn't until the organization of the Osgoode
15 Society in 1979 that you first really start to get a
16 large number of academics seriously interested in the
17 legal history of Canada.
18 Q In terms of your professional expertise, you're
19 currently with the Department of History at the
20 University of Alberta, you've been a lecturer from '69
21 to '71, an assistant professor from '71 to '75, and
22 associate professor from '75 to '80, and a full
23 professor from 1980 to present?
24 A Correct.
25 Q And are there areas of teaching or lecturing that are
26 relevant to the report that you've prepared?
27 A I believe so. I have taught for about 15 years a
_0006
1 course on -- entitled History of Criminal Justice in
2 Canada, and for about 10 years, I have taught a senior
3 seminar on Canadian legal history. I also from time to
4 time give guest lectures on Canadian legal history in
5 the Faculty of Law at the University of Alberta.
6 Q And do those topics of deal with the roles of
7 magistrates and JPs and their evolution?
8 A Quite extensively in all cases.
9 Q And you were a chair of the Department of History from
10 '80 to '83 and Associate Dean of Arts from '87 to '88?
11 A That's correct.
12 Q And in terms of your publications, the books that
13 you've published, you mentioned the Ph.D. thesis in
14 modified form, and I note you've published a book
15 called Prairie Fire, the 1885 Northwest Rebellion?
16 A That's correct.
17 Q And that was short listed for the Governor General
18 award for non fiction?
19 A It was.
20 Q And was that project in research related at all to the
21 roles of JPs or magistrates?
22 A Yes, it was. In fact, two chapters of the book
23 dealt -- one chapter dealt with the trial of Louis Riel
24 and the aftermath of the rebellion. He was, of course,
25 tried by a magistrate and jury, and there was an
26 additional chapter that dealt with the trials of the
27 other persons accused as a result of their activities
_0007
1 in the rebellion.
2 Q And you've referred to a number of articles on your CV,
3 would you describe them as generally involving the
4 topic of administration and enforcement of justice?
5 A Most of them are.
6 Q And, for example, "Restrain the Lawless Savages,
7 Plaintiffs in the Criminal Courts of Northwest
8 Territories," was that relevant in any way to JPs or
9 magistrates or your research in relation to it?
10 A Yes, that's an article that's based on a project that I
11 undertook a couple of years ago with another researcher
12 named Heather Rollison (phonetic). We compiled a
13 database of all the criminal cases tried in the old
14 Northwest Territories up to 1885. And, drew certain
15 conclusions from -- from that database. Most of those
16 cases were, in fact, tried by justices of the peace. A
17 smaller number were tried by magistrates and there
18 were -- there was every imaginable combination. There
19 were cases tried by single justices of the peace, cases
20 tried by two justices of the peace, there were even
21 cases in which a magistrate and two justices sat
22 together with a jury to try the more serious cases.
23 Q About how many files did you review for the purposes of
24 doing that?
25 A Just under 1,400.
26 Q Now, have you done research in 1988 on the office of
27 JPs, magistrates, Provincial Court Judges?
_0008
1 A You mean 1998?
2 Q Sorry, 1998, yes.
3 A Yes, this summer in connection with another case
4 involving justices of the peace, the Airth case, I
5 undertook research on the office of Justice of the
6 Peace in Alberta. I spent -- well, I began the
7 research at the end of June and it continued until
8 September.
9 Q And that included archival research at the Provincial
10 Archives of Alberta?
11 A Yeah, all together I spent about 10 days at the
12 Provincial Archives going through the files of justices
13 of the peace and magistrates.
14 Q Had you found any secondary literature that covered the
15 role of JPs in Alberta and appointments in the process?
16 A No.
17 Q Did you review any records of the Department of Justice
18 or formerly Attorney General's Department in relation
19 to justices of the peace, magistrates, and Provincial
20 Court Judges?
21 A Yes, I reviewed the -- a lot of the legislation dealing
22 with justices of the peace and magistrates and
23 Provincial Court Judges. I looked at a number of
24 reports, some of which have been referred to already.
25 The Irving Report, the Kirby Report, the Klinck Report
26 and I also looked at testimony that was given in a
27 number of cases, specifically the McGee case.
_0009
1 Q And in relation -- did you prepare a report in relation
2 to the offices of Justice of the Peace and magistrates
3 in relation to that other case?
4 A Yes, I did.
5 Q And what did it deal with?
6 A It dealt with the history and traditions of the office
7 of Justice of the Peace in England, in Canada, and in
8 Alberta up to the present time. The focus of that
9 report was on sitting justices of the peace.
10 Q And in relation to the preparation of that report, you
11 reviewed Stats Can Reports on the number of cases heard
12 by Provincial Courts and sitting justices of the peace?
13 A Yes, there were -- it is actually called the Canadian
14 Center for Justice Statistics, reports on -- from the
15 mid 1990s.
16 Q And you attended traffic court to observe?
17 A I did.
18 Q And did you prepare a statistical analysis of the
19 operation of the traffic court?
20 A I did.
21 Q And have you been accepted as an expert related to the
22 history of administration and enforcement of justice in
23 any other cases?
24 A Yes, I have. In two cases, in fact. Would you like me
25 to --
26 Q The first was the Belczowski case, B-E-L-C-Z-O-W-S-K-I,
27 v. Canada, that led to a decision by Justice Barry
_0010
1 Strayer (phonetic) in 1991, referred to as the prisoner
2 voting case?
3 A Yes.
4 Q And were you accepted in that case as an expert, as a
5 historian respecting prisons and penitentiaries?
6 A Correct.
7 Q And then the case of Grant v. Canada, another Federal
8 Court trial division case in 1995, what we might call
9 the turban case?
10 A Yes.
11 Q You were qualified as an expert on the history of
12 police?
13 A I was.
14 MR. MAYBANK: Sir, I would present Dr. MacLeod as
15 an expert on the history of the administration and
16 enforcement of justice, with emphasis on the evolution
17 of the offices of magistrates and justices of the peace
18 in England and Canada.
19 THE COURT: Thank you. Any questions on
20 qualifications, Mr. Hunter?
21 MR. HUNTER: I do, My Lord.
22 MR. HUNTER CROSS-EXAMINES THE WITNESS:
23 Q Dr. MacLeod, you mentioned to my learned friend a
24 report, recent report that you were involved in, is
25 that listed in your CV, Exhibit 1?
26 A It is not.
27 Q I didn't notice it.
_0011
1 MR. MAYBANK: Sir, that's a report that is not
2 filed.
3 Q MR. HUNTER: Was it published?
4 A No.
5 Q And we're not going to see that?
6 A I assume not.
7 Q That's what I am assuming.
8 And then I take it that there -- maybe there was
9 another report respecting the offices of JPs in Alberta
10 arising out of your research in 1998, am I correct on
11 that or is that the same report?
12 A I'm not quite sure I understand your question. No,
13 there was only one report.
14 Q Just the one report?
15 A Yes.
16 Q And that was made to the government, I take it?
17 A Yes.
18 Q And when was it provided to the government?
19 A At the end of September, is my recollection.
20 Q Of this year?
21 A Yes.
22 Q So, it's pretty current?
23 A Yes.
24 Q Now, sir, in the report that you have prepared and hope
25 to present to this Court, do you address such things as
26 judicial duties, judicial powers, and judicial
27 functions?
_0012
1 A Yes, I do.
2 Q And what enables you to -- what do you rely upon in
3 expressing opinions with respect to those matters?
4 A What do I rely upon?
5 Q Yes, what is your training and your experience that
6 enables you to express opinions with respect to those
7 matters?
8 A My training as a historian, my reading of various works
9 on these matters.
10 Q What sort of works should the Court have in mind that
11 enable you to form opinions and express them with
12 respect to whether or not certain activities are
13 judicial duties, judicial functions or judicial powers?
14 A Histories of the office of Justice of the Peace,
15 histories of the various levels of courts in Canada.
16 Q Let me ask you this, is your opinion about these
17 matters informed in any way by your reading of
18 statutes?
19 A Certainly.
20 Q And is it informed in any way by your reading of
21 jurisprudence, particularly, decided cases?
22 A In some sense, I would think so, yes.
23 Q And is your awareness based in any way on your
24 understanding of constitutional principles in the
25 constitution of Canada?
26 A Yes.
27 Q And what is your training with respect to interpreting
_0013
1 those matters and forming opinions as to what they say?
2 A Do you mean am I a lawyer?
3 Q Well, if that's useful, I gather you are not or you
4 would have told us. So, I am sort of assuming you have
5 no legal training.
6 A That's correct. Well, again, my reading of the Charter
7 and of various works on the constitution.
8 Q General reading?
9 A A general reading.
10 Q Okay, and you address in your report this concept of
11 security of tenure; correct?
12 A Correct.
13 Q And what is it about your background that enables you
14 to express an opinion on the security of tenure for one
15 who conducts judicial functions?
16 A I'm not entirely sure that I understand that question.
17 Q Fair enough. You also expressed opinions on financial
18 security.
19 A Right.
20 Q And what is it in your background that enables you to
21 opine on the financial security of individuals who
22 perform judicial functions?
23 A It seems to me that the question of financial security
24 is fairly obvious.
25 Q Well, help me, I'm sort of from Missouri.
26 A Well, either you have it or you don't.
27 Q And then coming to whatever opinion you come to, did
_0014
1 you take into account any of the jurisprudence in the
2 Supreme Court of Canada that discusses those concepts,
3 in relation to persons who carry out -- or institutions
4 that carry out judicial functions?
5 A I read a number of cases. I read the Currie case, the
6 Ontario case involving justices of the peace. I read
7 Valente (phonetic) and I read Campbell.
8 Q Sorry?
9 A The Campbell case.
10 Q Yes, and you came to some views on -- as a result of
11 your reviewing the Campbell case.
12 A It formed part of it, yes.
13 Q It formed part of this report that we are not going to
14 see; correct?
15 A Of the one, no, I don't believe so.
16 Q You say that in this -- let me just be clear on this
17 report that we are not going to see. Does it have
18 something to do with justices of the peace in Alberta?
19 A It does.
20 Q And is the Court to understand that there was no
21 consideration by you of the Campbell case with respect
22 to preparing and providing that report?
23 A Not that one.
24 Q There is another one that we are not going to see.
25 A No, no, I didn't look at Campbell from the earlier
26 report, but I did look at Campbell for this one.
27 Q You did.
_0015
1 A I did.
2 Q And you speak in your report about the modern concept
3 of judicial independence; correct?
4 A Correct.
5 Q And what should the Court understand was the basis of
6 the modern concept of judicial independence, as you
7 refer to it in your report?
8 A What is the basis of it?
9 Q Yes.
10 A It derives from the Charter.
11 Q So, you rely upon the Charter in expressing opinions as
12 to the modern concept of judicial independence and
13 modern notions of the independence of justice?
14 A I do.
15 Q And what -- your training on interpreting the charter
16 is general reading?
17 A General reading. I have for some years served on the
18 board of an organization called the Center for
19 Constitutional Studies at the University of Alberta.
20 Q And in expressing opinions respecting the modern
21 concept of judicial independence, or the modern notions
22 of the independence of justice, is the Court to
23 understand that the Campbell case played no part in
24 those opinions?
25 A You are speaking of the earlier report, the Airth
26 Report?
27 Q I don't know that I am speaking of the report, but I
_0016
1 believe my learned friend wants to introduce through
2 you.
3 A If you're referring to this report, then I did, indeed,
4 read the Campbell case.
5 Q The Airth Report, this is the one --
6 A That's the one I was working on earlier this year.
7 Q That's the one that dealt with --
8 A Sitting justices.
9 Q Sitting justices of the peace in Alberta?
10 A In Alberta.
11 MR. HUNTER: My Lord, those are my questions in
12 cross, and my submissions don't go to this gentleman
13 not being an expert, but they go to weight with respect
14 to the matters that I have addressed.
15 THE COURT: Thank you, Mr. Hunter.
16 Anything arising on that subject, Mr. Maybank?
17 MR. MAYBANK: Perhaps just one question.
18 MR. MAYBANK RE-EXAMINES THE WITNESS:
19 MR. MAYBANK: Dr. MacLeod, were you asked to express
20 legal opinions in your report?
21 A No, I was not.
22 MR. MAYBANK: Thank you.
23 THE COURT: Thank you.
24 Dr. MacLeod will be recognized as an expert for
25 the purpose of giving opinion evidence on matters
26 relative to the history of the administration and
27 enforcement of justice, with an emphasis on the
_0017
1 evolution of the role of magistrates and JPs in England
2 and in Canada. Did I describe that accurately?
3 MR. MAYBANK: I believe so, sir.
4 THE COURT: All right.
5 MR. MAYBANK EXAMINES THE WITNESS:
6 Q Dr. MacLeod, the Clerk has a document, "Justices of the
7 Peace in Alberta in Historical Context," dated November
8 26th, 1988. Is that a report that you prepared for the
9 purpose of these proceedings?
10 A It is.
11 MR. MAYBANK: May I have that marked as an
12 exhibit, My Lord?
13 MR. HUNTER: No, objection.
14 THE COURT: Exhibit 2.
15
16 *EXHIBIT 2 - REPORT ENTITLED,
17 JUSTICES OF THE PEACE IN ALBERTA IN
18 HISTORICAL CONTEXT DATED
19 NOVEMBER 26TH, 1988
20
21 Q MR. MAYBANK: Dr. MacLeod, could you outline the
22 purpose of the report?
23 THE COURT: Do you have an extra copy I might
24 have reference to?
25 MR. MAYBANK: Certainly, sir.
26 A The purpose of the document was to outline the history
27 of the office as it developed in England and later in
_0018
1 Canada with reference to the question of judicial
2 independence.
3 Q MR. MAYBANK: And in the section of your report
4 marked or entitled "Introduction," you note that the
5 system of justices of the peace in the Northwest
6 Territories, which was inherited by Alberta was
7 significantly different from those in other parts of
8 Canada. In what way?
9 A The other parts of Canada at that time had -- justices
10 of the peace still had some administrative
11 responsibilities, as had been the practice in England,
12 that is to say, in rural areas and, in particular,
13 justices of the peace handled the matters of local
14 administration in addition to the judicial functions.
15 Q You also mentioned some of the experimentation that
16 happened in the Northwest Territories in relation to
17 the office.
18 A Yes, the federal government in the late 19th century
19 used the old Northwest Territories as a kind of
20 experimental area to try out new ideas about the
21 administration of justice. The creation of the
22 Northwest Mounted Police at a time when there was no
23 similar institution anywhere else in Canada was a very
24 clear example of this, as was the federal government's
25 decision to dispense with the grand jury in the
26 Northwest Territories, when that institution was in use
27 in most of the other provinces of Canada.
_0019
1 As far as justices of the peace were concerned,
2 they at no time in the Northwest Territories had any of
3 the administrative functions that were common in the
4 other Canadian provinces.
5 Q And what was the purpose for these approaches, what
6 were they attempting to achieve?
7 A They were attempting to achieve, I think what they saw
8 as a modern, efficient, streamlined system of -- system
9 of justice.
10 Q And how did the role of magistrates change in the 1920s
11 to the 1970s?
12 A The role of magistrate in the Province of Alberta?
13 Q Yes.
14 A Okay, the Province of Alberta from 1905, instead of
15 adopting what was more or less standard practice in
16 most of the other Canadian provinces, that is to say,
17 of having two justices of the peace sit together and to
18 try cases, didn't do this. Instead, in Alberta, the
19 province adopted the practice of appointing unpaid
20 magistrates to do the same thing. These unpaid
21 magistrates had the power of two justices sitting
22 together.
23 This is really quite confusing, because in the
24 early period in the Province of Alberta, you actually
25 have two kinds of magistrates that are really quite
26 different. One kind are these unpaid magistrates, who
27 essentially do the job of two justices of the peace,
_0020
1 mostly in rural and remote areas, and then you have
2 other people who are called magistrates who are
3 full-time, salaried, legally-trained judges.
4 Q Near the bottom of the first full paragraph on page 2
5 of your report, you refer to the role of magistrates
6 and also during the same -- during the 20s to the 70s
7 and the role of JPs, you make a comparison. Could you
8 expand on that?
9 A Yeah, what happens with magistrates, and now I'm really
10 talking about the full-time, salaried magistrates.
11 Their role expands steadily from the 1920s to the
12 1970s, that is to say, they try an increasing
13 percentage of the cases their jurisdiction expands and,
14 of course, the culmination of this process comes in
15 1971, when the offices abolished and they become
16 Provincial Court Judges.
17 Q And what happened with the office of justice of the
18 peace during the same period in terms of jurisdiction?
19 A The office of the jurisdiction of justices of the peace
20 remains the same or in some cases the jurisdiction is
21 actually reduced, depending on what kind of justices we
22 are talking about, because once you get into the post
23 Second World War period, you get a proliferation of
24 different kinds of justice of the peace but, generally
25 speaking, there is no corresponding increase in the
26 jurisdiction of justices of the peace.
27 Q What happened to their jurisdiction to conduct trials?
_0021
1 A In 1971, while theoretically they --
2 Q I meant during the period of 1920 to 1970 that you just
3 covered with magistrates.
4 A What happens to their jurisdiction to conduct trials?
5 Q The justices of the peace.
6 A It remains the same. There is no expansion of the --
7 Q What about in practice?
8 A In practice, it tends to get cut back, because the
9 magistrates are taking over more and more of the
10 cases.
11 Q You mentioned in the next paragraph that there were
12 some significant changes that started taking place to
13 the development of the office of justice of the peace
14 in the 1950s. Could you describe that.
15 A Yes, before the Second World War, you really only have
16 two kinds of justice of the peace in Alberta. There
17 are what we would now refer to as fee justices of the
18 peace, people with general appointments to do a variety
19 of functions, and the Province of Alberta continued to
20 appoint senior R.C.M.P. officers as justices of the
21 peace, indeed, until the 1980s. Those R.C.M.P.
22 officers, in fact, continued to set trials up until the
23 1950s. I found examples of that in the justice of the
24 peace files in the archives.
25 After the Second World War, you get the
26 appointment of a number of specialized kinds of
27 justices of the peace, most of whom have a limited
_0022
1 jurisdiction. The province begins appointing R.C.M.P.
2 constables and non-commissioned officers and police
3 officers from some of the municipal police forces as
4 well, with functions limited to dealing with traffic
5 tickets.
6 The government in the late 1940s starts to appoint
7 staff justices of the peace. These are clerks in the
8 employ of the Attorney General's Department, who are
9 appointed as justices of the peace to deal with various
10 matters.
11 Q And you mentioned a couple of other categories of
12 justices of the peace, one in '78 and one in '91.
13 A Yes, in 1978, the hearing officers are appointed and in
14 1991, the sitting justices of the peace. Sitting
15 justices of the peace are a considerable departure in
16 that they are the first ones that are required to have
17 legal training.
18 MR. MAYBANK: Sir, perhaps this might be a
19 convenient time to break.
20 THE COURT: Yes, we will adjourn until 10 a.m.
21 ------------------------------------------------------------------
22 PROCEEDINGS ADJOURNED TO 10 A.M., JANUARY 12, 1999
23 ------------------------------------------------------------------
24
25
26
27