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