THE LAW ON TRIAL

S. TUPPER BIGELOW

is one of the magistrates who administer criminal law in Canada. He’s an authoritarian. He has denied drunks time to pay fines. He gave an arsonist a sentence that was longer than a life term. He sentenced a deaf-mute girl to jail. He wanted to deport an immigrant who stole a purse. So is he the worst magistrate in Canada? Or maybe the best?

ALAN EDMONDS October 1 1968
THE LAW ON TRIAL

S. TUPPER BIGELOW

is one of the magistrates who administer criminal law in Canada. He’s an authoritarian. He has denied drunks time to pay fines. He gave an arsonist a sentence that was longer than a life term. He sentenced a deaf-mute girl to jail. He wanted to deport an immigrant who stole a purse. So is he the worst magistrate in Canada? Or maybe the best?

ALAN EDMONDS October 1 1968

S. TUPPER BIGELOW

THE LAW ON TRIAL

is one of the magistrates who administer criminal law in Canada. He’s an authoritarian. He has denied drunks time to pay fines. He gave an arsonist a sentence that was longer than a life term. He sentenced a deaf-mute girl to jail. He wanted to deport an immigrant who stole a purse. So is he the worst magistrate in Canada? Or maybe the best?

ALAN EDMONDS

“To BE OR NOT to be,” mused the court-duty cop, poring over his list of the morning’s hangovers. “To be a drunk or an alcoholic, that is the question.”

A dozen of the men he was talking about sagged listlessly on chairs behind the chicken-wire dock fence. All wore the stigmata of skid row — face, neck and forearms leather-browned by sitting in the sun outside the Sally Ann, waiting for a bottle to turn up. Mostly, they smelled. The cop — massive custodial overkill for such wrecks — sounded improbably literate: Shakespeare, in No. 24 Court, in Toronto’s old city hall, on a Monday morning: “A drunk is a guy who doesn’t work and an alcoholic is a man who can work and does, but not all the time, of course.” A pause. “Eley, sergeant, what would you rather be, a drunk or an alcoholic?” The sergeant, lips pursed over court dockets, replied, “An alcoholic — I think.” The cop said, “I’d rather be a drunk. It’s easier.” He raised his head, sniffed and said, “Hard on the nose, though.”

“Silence in court,” demanded the clerk-faced court clerk from the open door. “No talking, smoking or chewing gum.” In sailed His Worship, Magistrate S. (for Sherburne) Tupper Bigelow, the man they call the Hanging Magistrate. He strode through the court, past the now board-stiff cop and his sergeant and up the steps to the magisterial chair which his clerk, observing standing orders, had earlier placed at an angle of 45 degrees to the desk so that Magistrate Bigelow, who feels strongly about the aesthetics of such things, could bow to the lawyers and sit down in one graceful movement. He also feels strongly about chewing gum (which is why his clerk makes a point of forbidding it) and other things he considers prejudicial to the image of justice, including noisy air conditioners. “Hurrumph,” he said, glancing balefully at 24-Court’s two air conditioners which, though noisy, are necessary to clear the air of the vinegary smell of last-night’s booze from the dock. The cop stood ready to switch them off at a word from the bench. S. Tupper Bigelow was back in his arena, the liquor court of Metropolitan Toronto.

The cases handled by Toronto’s magistrates are subdivided and dealt with in several courts, and each magistrate does a month-long stint in each. Courtroom 24 is where they try those who have offended the labyrinthine regulations of the Liquor Control Act of Ontario. Perhaps the most common offense is the one involving possession of an opened bottle of liquor in public. Most men found drunk in public arc tried in drunk court. If, however, they had a

bottle in their possession when picked up, they appear in Courtroom 24 next morning to face the additional charge that they “did keep, have, give or consume liquor other than in the residence of the purchaser or a bona fide donee thereof.” Magistrate Bigelow frequently simply binds drunks over to keep the peace on this charge, but since they're also charged with being drunk in public the result for habitual offenders is much the same in Courtroom 24 as in drunk court: $25 or 30 days.

Magistrate Bigelow’s reputation for harshness largely rests on his treatment of liquor offenses. It is also the cause of the most recent imbroglio with his many critics. In liquor court one day last May he said he never ever gave time to pay the fines he imposed for offenders under the Liquor Control Act. By chance there was a reporter present — chance, since the press rarely bothers with liquor court. He reported the trials of eight men accused of drunkenness; and when Bigelow was accused in the Ontario Legislature of violating the Criminal Code with his policy of refusing time to pay. some of his critics hoped that, as one lawyer put it, “the old buzzard had at long last tripped up and there’s good cause to shunt him off the bench.”

It was about the 8,000th time that S. Tupper Bigelow has been attacked for the alleged harshness of his sentences during 24 years as a magistrate. Indeed, he may be forgiven if he mused, darkly, that perhaps — just maybe — someone was out to get him. But more was at stake than the fate of eight men who had got drunk; the worst that could happen to them was 30 days in jail for nonpayment of fines, and for those who are skid-row regulars 30 days is a lifesaving spell of drying out, regular food and a good bed. At stake also was the reputation of S. Tupper Bigelow, perhaps the most vilified of all Canada’s magistrates, and the fair face of justice itself.

It is a paradox that although Bigelow may be the nation’s most controversial jurist, he and the face of Canadian Justice may be synonymous. Although his 24 years on the bench have been punctuated with controversy over his alleged harshness and demands that he be fired, Bigelow is also the author of the most respected — indeed, the only — work of reference on behavior, etiquette and sentencing for magistrates in Canada: A Manual for Ontario Magistrates. For all his unpopularity with defense lawyers, he is acknowledged as one of the best legal minds at the magistrates’-court level in Canada.

And to most of us, the magistrate / continued on page 86

continued from page 21

“He should be relieved of his duties"

is justice. Somewhere between 90 and 95 percent of all criminal court cases take place before magistrates who, next to justices of the peace, are the low men on the totem pole of the judiciary. The Canadian magistrate has, by legislation and social accident, almost unique power to alter lives and play the despot. Elsewhere, men of bis stature in the judiciary have limited authority. In Britain the magistrate can deal only with relatively minor offenses, and can impose sentences of only up to six months. Here, a magistrate can, if the accused consents, deal with all but the major offenses of murder, manslaughter, rape and treason. Magistrate Bigelow, for instance, once jailed an arsonist for 24 years, and that was worse than a life sentence, which can be reviewed after seven years: Magistrate Bigelow’s

combination of jail terms precluded review until the eighth year.

And so a system of justice was, in a sense, in the balance when Ontario Attorney-General Arthur Wishart faced Opposition demands that Bigelow be rebuked or fired for refusing time to pay liquor-offense fines. Wishart chose to defend Bigelow. He said that although the eight men concerned had been presented as first offenders — a fact on which Bigelow’s critics dwelt heavily — six of them, in fact, had extensive previous records as drunks. And since such men were always refused time to pay, Magis-

trate Bigelow could be said to have “acted completely within his jurisdiction and in accordance with proper principles which he applied with proper reason and understanding.” It was a lame defense, but it was sufficient to vindicate the man of whom Arthur Maloney, a leading criminal counsel, once said, “His concept of what is a proper sentence in criminal cases is completely wrong [and] he should be relieved of his duties.”

The astounding, and unpublicized, part of the whole furore was Bigelow’s astonishment at all the fuss over a sentencing policy which, he says, he has been following for 24 years.

The sequel — also unpublicized — was demonstrated that morning in Court 24 before the improbably literate cop and while the air conditioners rattled away and the sad, sorry and often emaciated wrecks harvested from Toronto’s streets the night before stood bovinely behind the chicken-wire dock and mumbled admission of their sins against the Liquor Control Act. He actually gave one or two of them the benefit of a very slim doubt — and 15 days to pay.

S. Tupper Bigelow giving drunks time to pay: “When there was all the publicity about my refusing time to pay fines for offenses under the Liquor Control Act, 1 was quite startled,” he says. “First, not all the offenses involve drunkenness, and the people usually accused of drinking

under age or bootlegging are also usually able to pay without difficulty. The man who got drunk for the first time is usually able to pay in the morning. The people who can’t pay and never would pay and therefore serve their time in jail tend to be the sad skid-row cases, and usually we are doing them a favor sending them «way to dry out and be well fed and housed for a while. Some time ago all we Metropolitan Toronto magistrates agreed not to give time to pay for all these offenses. When I refused time to pay 1 was simply doing what I thought all my colleagues were doing. But then there was all the fuss and I found they were giving time to pay in some cases. As a result, I have now changed my own policy to follow suit.”

In the light of this it would be deceptively easy to accuse Bigelow of changing his ways because of the publicity he’d aroused. It is not so. One of his principal critics concedes that he remains unswayed by criticism. He is, above all, a man of probity, true to his convictions, however debatable they may be. He even looks like that kind of man. At 67, he is lean and agile with a gravelly voice and deceptively forbidding sharp-featured face offset by two enormous, protruding ears, perhaps a relic of his prowess as a boxer at the Royal Military College from which he graduated before studying law. Outside court, he is affable, gregarious almost, quick to smile — and to anger. In court he is precise, punctilious, cryptic, demanding and unfailingly polite unless someone affronts his sense of the fitness of things; the sorriest rubby-dub is always addressed as “Mister.”

Indeed, Bigelow’s severest critics concede he is an able jurist and a fine legal mind who runs his courts in a manner that prompts one veteran reporter to describe them as a “credit to Canadian justice.” But beyond these conceded virtues, the criticism — and the support — swells to a chorus. Predictably, the police and most prosecutors are Bigelow enthusiasts. On the other hand there are men of the calibre of Arthur Maloney saying, “Fire him.” One says he is a “misfit, doling out harsh Victorian sentences in a world that long since left the absolute rights and wrongs of Victoria behind.” No lawyer critics will be named. Even Maloney, whose stature is unassailable, will say no more than has already been published as a result of his earlier brushes with Magistrate Bigelow. Publicly, lawyers defend the image of Justice. Privately, the least of Bigelow’s critics says, “He listens because he has to under the law and he always obeys the law. He listens but he doesn’t hear. He sentences the crime, not the criminal.”

It is widely said that lawyers whose clients might be found guilty go to elaborate lengths to make sure Bigelow doesn’t try their cases “because his penalties are ridiculously tough.” On the other hand, if the verdict may hinge on a point of law they actually seek out Bigelow as the best legal mind available. Perturbed by this reputation, a few years ago Bigelow found

out that he had, that year anyway, placed more people on probation than all his colleagues put together. Even so, one less than enthusiastic court official explains that “if I were in trouble and I wanted a break I wouldn’t want to go before Bigelow because I would, in fact, be going before a court and asking for special treatment. Bigelow doesn’t give it, and I can’t say I blame him.”

There were, then, unstated nuances to Bigelow’s most recent troubles over refusing drunks time to pay their fines. In an age of social conscience in which punishment is an increasingly unpopular remedy for social sins, Bigelow says, “I don’t believe I am exceptionally severe. I believe my sentences are very much in line with those of my colleagues. Mind you, I do have an unorthodox philosophy. I don’t think people should get medals for committing crimes. The purpose of punishment is very simple: the protection of society, a deterrent to the criminal, an example to others and lastly — and most important — rehabilitation.”

Since he has become something of a symbol both to those who align themselves with the forces of reform and those who, for lack of a better description, can be described as the forces of reaction, there is considerable merit in trying to decide whether S. Tupper Bigelow deserves the title Hanging Magistrate.

The press plays an important part in it. The proceedings of the courts receive less newspaper coverage in Canada than in most countries. In this respect justice is singularly badly served in Toronto, and since only the more exciting cases that reporters happened to hear are reported, it is fair to wonder whether the alleged injustice perpetrated by Bigelow's refusal to grant drunks time to pay is an isolated incident, or the rule rather than the exception. Farrell Crook, an earnest and intelligent court reporter with the Toronto Globe and Mail, who reported the no-time-to-pay decision, says, “Bigelow is nowhere near as bad as he is painted. I can think of several magistrates I think should be kicked off the bench before him.”

And then there are inaccuracies in court reporting. Bigelow was widely denounced earlier this year for imposing a three-month jail sentence on a deaf-mute teenage girl who had bought $560 worth of goods on a stolen credit card. The girl's lawyer was outraged, believing that, as a first offender with a horrendous family background, she should have been placed on probation. Indeed, Bigelow did refuse to hear three witnesses who, says the defense lawyer, wanted to suggest alternatives to prison. Predictably, the newspaper headlines lashed Bigelow, and one editorial writer claimed the girl had previously lived an exemplary life. In fact, the probation - officer’s pre - sentence report demonstrated she had not exactly led an exemplary life and even welfare workers had wearied of the girl’s reluctance to co-operate with them. Bigelow says the probation officers did not recommend probation and that other social workers said probation would not work. What’s more, Bigelow did not jail her for three months: he continued on page 90

jailed her for an indefinite period not to ,exceed three months, and has since said he did so hoping that if some rehabilitation treatment could be found for her she could have been promptly released. “I don't remember a case of mine ever being reported entirely accurately,” says Bigelow. “He mav have a communications prob-

lem,” says reporter Crook. “If he has unstated reasons for his sentences, he doesn’t make them public and so any misinterpretations are his own fault.”

In other cases, Bigelow’s alleged severity has been tempered by higher authorities. The 24-year sentence of the arsonist was upheld by the Ontario

Supreme Court, but later the Department of Justice ordered the court to reconsider its decision and the sentence was cut in half. In 1961 he refused two women, both first offenders, time to pay fines for drunkenness and they went to jail despite pleas that they’d lose their jobs. Next day, the then-attorney-general ordered the

women released and gave them time to pay. Bigelow argued that the Liquor Control Act did not provide time to pay, which prompted his thensuperior, York County Chief Magistrate Thomas Elmore, to observe that “Magistrate Bigelow has one interpretation of the Liquor Control Act, and everybody else has another.” But the provincial government subsequently changed the act to provide time to pay.

Twice Arthur Maloney tangled with Magistrate Bigelow over shoplifters, both women with families, whom the magistrate had sent to jail to await sentence after convicting them for stealing less than five-dollars’ worth of groceries. In each case the women were quickly released. On another occasion Maloney appealed Bigelow’s ruling that a Latvian immigrant teenager with a sad family history do a year’s hard labor and then be deported for snatching a woman’s purse containing three dollars. Since it was the boy’s first conviction, the Ontario Appeal Court changed the hard labor to probation and ruled that deportation was beyond Bigelow's jurisdiction.

On another occasion Bigelow made a decision that, some claim, was beyond his jurisdiction. This time it demonstrated the paradox of the man, since it was an astoundingly merciful decision. A compulsive gambler admitted passing dud cheques to finance his betting, and instead of jailing him, Bigelow, former Chairman of the Ontario Racing Commission, said that if he could kick the habit for six months he could go free.

On another occasion a bank teller pleaded guilty to theft of an automobile distributor cap and, knowing the inevitable conviction would cost him his job, Bigelow persuaded the prosecutor to drop the charge. The man had urgently needed the distributor cap for his car, had found the garage closed, and had decided to take one off a car parked on the garage sales lot, intending to pay for it the next day. A policeman saw him and he was arrested. “There are occasions when our laws are hard,” says Bigelow now. “In England the precise def-,; inition of theft is taking property witM: the intent to permanently deprive the owner. Here, the qualification doesn’t exist.”

Perhaps it is that Bigelow’s problems stem from the dilemma that faces all magistrates: what sentences to impose for which offenses. The discrepancies are often incredible. A man accused of a minor theft might get probation in Halifax, six months in Winnipeg and be bound over in Vancouver. Worse: the three different sentences might be imposed by three different magistrates in three different courts in the same city. Some years ago, when he was acting senior magistrate of Toronto, Bigelow led his colleagues in drawing up a schedule of standardized penalties for minor offenses up to and including impaired driving in cases where there were no exceptional aggravating or mitigating circumstances.

“I do sometimes have difficulty in sentencing first offenders,” he says. “I suspect that all magistrates do. We talk these cases over among ourselves.” Behind this cautious admission one suspects may lie a measure

of anguish at attempting to play Solomon on the assembly line of a big-city magistrates’ court. Day in, day out, Bigelow and his colleagues handle a rough average of 40 malefactors at a sitting, and the charges sound like a chanted, repetitious litany: the variety of human error is not great. Some attempt to impose the order of uniform sentencing is inevitable unless the magistrate is to go mad. “The courts are toe busy to consider mitigating circumstances when alcoholics appear before us,” Bigelow once told a magistrates’ convention.

“When Bigelow is on the bench you hear that cold voice of his announcing, ‘There will be a conviction,’ and it’s like the voice of a computer,” says reporte* Crook. “He appears to be trying to produce a mathematical equation which amounts to justice,” says one young criminal lawyer. “He tries the crime not the criminal.”

In Courtroom 24, after the drunks had gone their way that Monday morning, His Worship S. Tupper Bigelow sat in judgment on a handful of home-owners who had made changes to their houses without first obtaining building licenses to do so. One man, an Italian who needed an interpreter, admitted the heinous sin of building a wall underneath his veranda. “There will be a conviction,” said the grey, magisterial voice. “Twenty-two dollars’ fine and three dollars’ costs.” Afterward, in his office, Bigelow said the man had probably only built the wall because the veranda would have otherwise fallen down. Then he

railed against the absurdity of some building bylaws. “Police state?” he said. “In some ways we've already got one. These inspectors can come marching into your house and inspect it and almost always find you’re guilty of some infraction or another.” If he felt that way, then why the fine of $22? “Just a slap on the wrist,” he said. “Otherwise he'd be able to go home and boast about how he'd got away with it. Look, what I think of the law is totally irrelevant. My job is

to administer it, not change it, and I do what I'm paid to do in what seems to me to be a just and reasonable manner.”

Then widower Bigelow went home to his city apartment to predinner vodka-and-tonic and to tinker with the card index to his collection of Sherlock Holmes stories, novels and memorabilia. It is probably one of the three best collections of its kind in the world, and the envy of his fellow members of the Baker Street Irregu-

lars, mostly men of affairs who find such a magnificently useless avocation as the study of Holmesian lore very relaxing. Bigelow can't explain his passion. But in the index to his collection he has made a quarter of a million cross-references so that he can tell you how many wives Watson had and to which club Holmes's brother M yero ft belonged in which years. It's a very orderly, scientific way of studying the world’s most coldly logical, aesthetic and unemotional detective. íe