The Conventional Man - The Diaries of Ontario Chief Justice
Robert A. Harrison 1856-18780

edited by Peter Oliver
Toronto: The Osgoode Society, 2003

The study of the history of criminal justice in Canada, and in particular with respect to Ontario, may be enhanced by a review of this excellent publication by the well-regarded Osgoode Society for Canadian Legal History. Indeed, on the one hand, the extensive diary entries of Chief Justice Harrison, beginning in 1856 when he was a young but well-connected Toronto lawyer and concluding shortly before his death in 1878 when he was the Chief Justice of Ontario, shed light on judicial attitudes respecting the causes of criminal activity, the contribution of alcohol to offending, the nature of wrongdoing associated with newly arrived immigrants, the primacy accorded to punishment in sentencing, to name but a few examples. In addition, the superbly written 118 page introduction provides signal guidance in situating Harrison's thoughts within the correct historical, political, religious, and social milieu of the period in order that we may best evaluate in a proper context the merits of his observations.¹ The resulting insights for those interested in the punishment of criminals, the concern for victims of crime (if any), the speed and pace of criminal justice, the class attitudes and prejudices of the judiciary, and a host of other subjects², are both apposite and instructive for those seeking to understand related contemporary issues.

In this respect, it will be useful to draw attention in particular to these four precise areas of concern, in order to orient future research efforts based on the diary entries and Dr. Oliver's introductory notes. The first theme to be discussed briefly is the punishment of criminals, with particular emphasis on the offence of infanticide. It must be understood that crime during this period in Toronto represented an occasional threat to the safety of all residents, especially hooliganism. (p. 11) However, the greatest insights we gain touching upon criminal misconduct surround the offence of infanticide. Societal values appeared to favour the granting of mercy in such cases, often expressed by all-male juries acquitting the defendant of the major offence and returning a finding of guilt respecting the lesser offence of concealing the birth. Refer to p. 71 and to p. 269 and 273 in particular and to pp. 84-88 of The Verdict of the Court Passing Judgment in Law and Psychology, by Professor Jenny McEwan [Oxford: Hart Publishing, 2003].

Turning next to the question of victims of crime, Professor Oliver makes plain at p. 9 and elsewhere (p. 19, 66) that Harrison's work as a lawyer saw him pander to emotions and prejudices as he encouraged juries "in their natural disposition to put down some women even as they were rewarding others..." In other words, Harrison and his contemporaries cared little for victims of criminal acts save and except as they were necessary to his professional success when prosecuting, or in their capacity as civil victims when he appeared for the plaintiff. Throughout the book, one gains the impression that a victim of criminal violence was given as much thought by the Court and the lawyers as was the Bible: both were necessary for the trial to be completed and both were to be given some functional respect, but beyond that, little thought was given to them beyond this functionalism. In addition to this general backdrop, the period in question was often marked by predatory sexual behaviour by males. (p. 25) Further, Harrison shared the typical view that it was in the nature of women to exaggerate things (p. 67, p. 362) and that forensic success might be had by attacking the character of young women (p. 69). Harrison was also contemptuous of the basic integrity of many witnesses. (p. 107)

On the subject of the speed and pace of criminal justice, page 147 of the diary records a trial involving about 80 witnesses for the prosecution and 100 or so for the defence. Unlike our contemporary mega-trials, it was completed in five days, including a Saturday sitting. Note as well page 271 relating the events of April 18, 1866: "Addressed the special jury in [a civil case ... after verdict], jury then sworn in the Queen v. English for rape. I ... succeeded in getting him off. Jury then sworn in [a civil case] succeeded in getting verdict ... Jury then sworn in Rowe v. Fitch for malicious prosecution... Page 393 records a murder trial that occupied a half day. Notable as well is that a court reporter could produce the transcript if a murder trial in two days! See page 610.

Lastly in this section, attention is drawn to class attitudes as they may have influenced criminal justice. In this regard, the diary entries are replete with concerns about alcohol abuse and the need for temperance to avoid criminal behaviour. Refer in particular to p. 232: "Oh God, why suffer such hells as taverns to exist at every corner of the city!" One reference by Professor Oliver, taken from p. 108, will suffice: "Harrison regarded intemperance as the great evil, an opinion shared by many." See also p. 366.

Of interest, Harrison was often victimized by his own servants, who would steal from him (p. 42, p. 429). He did not appear to perceive that their wages were sinfully inadequate and that their lot was precarious at best, although he intervened to avoid prosecution of his staff. One wonders whether this spirit of forgiveness would manifest itself when prosecuting (or presiding in) criminal matters. The question does not admit of a simple answer but his multiple references to the poor and the work-shy betray a distinct class perspective characterized by disdain for his "social inferiors".

On the subject of the causes of crime, Professor Oliver remarked: "As a judge it was de rigeur to offer his opinion as to the causes of crime. In his view little could be attributed to poverty in a society where everyone willing to work for a living could do so, and even less to want of education, considering the educational opportunities available in Ontario to everyone." (p. 108) Hence, he had little patience for the tramps and drifters, "so upsetting to middle-class taxpayers." (p. 109) I pause to point out that Harrison was willing to defend an innocent man for no fee, if required, but not "a very bad man." Refer to p. 332.

Finally, what of the prisons? In Harrison's view, they were altogether too comfortable for many who found them a welcome sanctuary from the rigours of the Canadian winter. (p. 108) It will be of assistance to point out a comment found at p. 389 describing the travails of a prisoner ordered to serve a term at hard labour. He was turning "a hard labour machine" which was a wheel turned by a crank easy to turn once or twice but more tiresome when turned from hour to hour and day to day ... Afterwards ... saw two men in two cages, each breaking stones."

Professor Oliver, to his credit, does not fail to make plain the "warts" that Harrison displayed, pointing to certain anti-Catholic biases and his occasional anti-semitic comments (p. 49, 88, 311, 362, 389, 483, 505). On the other hand, Harrison's work as a prosecutor in a number of Fenian trials was marked by a desire to achieve convictions, but to stay any death sentences against these Catholic offenders, chiefly by reason of political expediency. (p. 78)

In conclusion, the study of Chief Justice Harrison's diary may be quite instructive in many ways, as seen, and in many other respects as well. By way of isolated example, the question of the efficacy of general deterrence is touched upon by reference to the Court charging the town crier to announce that sentencing would occur with respect to rioters. See page 543. Consider as well the guidance on the views held by a judge as to the importance of a recommendation for mercy by a jury: it resulted in reducing an anticipated sentence of 10 years for rape to 5. See page 590 and p. 606. One can derive useful guidance to petitions by the trial judge to the Governor-General to deny clemency in a capital case, as seen at page 609. In all, this is a valuable starting-point for further study and scholarship.

^1.      There are a great number of valuable and recent contributions from diarists in the field of criminology, including Buried from the World Inside the Massachusetts State Prison, 19289-1831 The Memorandum Books of the Rev. Jared Curtis, Edited by Philip F. Gura, Northeastern University Press: Boston, 2001; Life in an Austro-Hungarian Military Prison, The Slovak Tolstoyan Dr. Albert Skarvan's Story, translated from the Slovak and Edited by Peter Brock, Syracuse University Press: Syracuse, N.Y., 2002, and Reflections in Prison, edited by Mac Maharaj, Boston: University of Massachusetts' Press, 2001, touching upon the writings of Nelson Mandela and other political prisoners. An interesting book based on a dozen diaries written by those transported beyond the seas to Australia is American Citizens, British Slaves Yankee Political Prisoners in an Australian Penal Colony 1839-1850, edited by Cassandra Pybus & Hamish Maxwell-Stewart, Melbourne: Melbourne University Press, 2002.

^2.      For example, p. 349 discusses Harrison's attempts, as a Member of Parliament, to enact legislation permitting persons accused of crimes to testify. Refer as well to his progressive efforts to penalize weapons at pp. 442-445. It is also noteworthy that Harrison promoted with some vigour the creation of a "national system of criminal statistics." (p. 108).