Ontario Francophone Judge, 1895 Nestor Prisco

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Ontario History

Joseph Alphonse Valin Ontario Francophone Judge, 1895 Nestor Prisco

Volume 109, Number 1, Spring 2017 Article abstract After Confederation, the provinces administered justice but the dominion URI: https://id.erudit.org/iderudit/1039200ar government appointed judges. In 1894 Ontario’s Mowat government passed DOI: https://doi.org/10.7202/1039200ar legislation to create Nipissing judicial district. It was then up to the Dominion government to appoint a judge. By early 1895, the Bowell administration issued See table of contents an order-in-council and the new judge was waiting in the wings. But the perfunctory Royal assent never occurred. Bowell reneged. In a matter of days, the Premier abruptly reversed course and appointed someone else. What Publisher(s) grounds may have precipitated such an unusual change of position? Was it partisan pressure, fresh revelations, a response to a crisis or political strategy? The Ontario Historical Society Was it a bold move that signaled a new direction? Or was it a balm to quiet unrest or a need to satisfy aggrieved followers and gain support? Those are ISSN challenging questions that will be canvassed in this article. 0030-2953 (print) 2371-4654 (digital)

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Cite this article Prisco, N. (2017). Joseph Alphonse Valin: Ontario Francophone Judge, 1895. Ontario History, 109(1), 89–106. https://doi.org/10.7202/1039200ar

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Joseph Alphonse Valin Ontario Francophone Judge, 1895

by Nestor Prisco Introduction committee, the nominee makes an ap- here’s a somewhat familiar max- proved list. That is where the fun begins. im in the legal profession: Law To go forward, one needs a champion, a is the only game where the best political heavyweight who can move the Tplayers get to sit on the bench. How they nominee up the ladder. do when they get there may be debatable. There are qualifications. Good char- No preparation or judge school precedes acter is a must. Other indispensable qual- an appointment in our country yet law- ities receive corresponding considera- yers have a reasonably good understand- tion. The Minister of Justice sometimes ing of what is expected from personal looks for candidates with specific skills experience. We make instant judges from to fill positions in larger centres. For ex- the lawyer pool. It usually happens qui- ample, there may be a need for expertise etly and then descends abruptly into ob- in certain areas, such as criminal law, ad- scurity. The good news is that, on balance, ministrative law or taxation. Candidate we enjoy a justice system that respects the selection may also hinge on those more rule of law. Socrates cautioned that four predisposed to back government policy. things belong to a judge: to hear courte- One never knows what goes on in Cabi- ously, to answer wisely, to consider sober- net deliberations unless you’re in it. Even ly, and to decide impartially. then it can be a mystery.1 The best player It is the Crown’s prerogative to ap- to sit on the bench may be the one who point judges. That function devolves to can adapt to judicial life. the Cabinet. Those seeking consideration Ottawa lawyer Joseph Alphonse follow a structured procedure. Nomi- Valin represented an atypical, federally nees are vetted to filter out the unfit. -Ex appointed judge in 1895. Selection of a perience matters, but talent wins. Once francophone for a judicial posting in On- recommended by an advisory selection tario signified a watershed decision in its

1 Supreme Court of Ontario Judge Larry Pennell, former Solicitor General, surprised Nipissing Dis- trict Court Judge Fernand L. Gratton when he revealed that Judy LaMarsh almost scuppered his appointment when it reached the Cabinet table. LaMarsh and Gratton were classmates, both called to the bar in 1950.

Ontario History / Volume CIX, No. 1 / Spring 2017

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time. Prime Minister Mackenzie Bowell sent a thirty-eight-year-old lawyer with Abstract eleven years experience to New Ontario. After Confederation, the provinces adminis- He chose Valin over forty-nine-year-old tered justice but the dominion government Cornelius O’Neill from Chatham, in le- appointed judges. In 1894 Ontario’s Mowat gal practice for seventeen years. His ap- government passed legislation to create Nip- issing judicial district. It was then up to the pointment represented a breakthrough Dominion government to appoint a judge. victory for Franco-Ontario. It undercut By early 1895, the Bowell administration is- the forces of Orange and Protestant On- sued an order-in-council and the new judge tario. Would it be seen as a risky measure was waiting in the wings. But the perfunctory Royal assent never occurred. Bowell reneged. or a bold move at a time when Bowell In a matter of days, the Premier abruptly re- needed political backing in the worst versed course and appointed someone else. way? What grounds may have precipitated such an This paper examines the turbulent unusual change of position? Was it partisan pressure, fresh revelations, a response to a crisis period and presents a hypothesis to il- or political strategy? Was it a bold move that luminate the selection of Valin for the signaled a new direction? Or was it a balm to Provisional Judicial District of Nipissing quiet unrest or a need to satisfy aggrieved fol- over a previously confirmed candidate. lowers and gain support? Those are challenging questions that will be canvassed in this article. n Ottawa newspaper captured the Résumé: Après la Confédération, les provinces Aflavour of the political infighting administraient la justice, mais le gouvernement that attended the selection of Nipissing’s fédéral nommait les juges. En 1894, le gou- first judge in 1895: “Few men have over- vernement Mowat de l’Ontario a adopté une lé- gislation visant la création du district judiciaire come the barriers, vicissitudes and trials de Nipissing. C’était alors au gouvernement leading to fame in Canada and especial- du Dominion de nommer un juge. En 1895, ly Ontario than Mr. Joseph A Valin.”2 l’administration Bowell a publié un décret et le Undertones of passionate dissension nouveau juge attendait en coulisses. Par contre, accompanied the selection of Joseph la sanction royale, symbolique et superficielle, n’arrivait pas. Bowell est alors revenu sur sa Alphonse Valin as Nipissing’s inaugural décision. En quelques jours, le premier min- district court judge. The decision was istre avait changé d’avis et nommé quelqu’un overshadowed by a divisive constitu- d’autre. Quelles raisons ont pu précipiter cet tional question that posed a dilemma of insolite changement d’avis? Était-il question de pression partisane, de nouvelles révélations, more immediate importance and neces- de réponse à une crise ou encore d’une stratégie sity. The recently formed Bowell minis- politique? S’agissait-il d’un geste audacieux try was in the midst of a major crisis, the qui signalait une nouvelle direction? Ou bien Manitoba Schools Question. Having était-ce une tentative d’apaisement et une néces- sité afin d’obtenir le soutien de partisans lésées? his followers wrangle over a judicial of- Voilà des questions sur lesquelles nous nous pencherons dans cet article. 2 “Judge Valin Now”, Ottawa Daily Press, 11 March 1895.

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fice acutely detracted from the compel- minion government to appoint a judge. ling imperative to unite the troops for By early February 1895, the Bowell the battle in Manitoba. The resolve to go administration had made its choice; the with Valin was a gutsy move by a Prime order-in-council (OIC) had been issued Minister struggling to cater to divergent and the new judge was waiting in the factions in his ministry. wings. It only needed Royal assent, a per- The Dominion government fell into functory formality. But it never made it disarray after John A. Macdonald’s death to that stage. For obscure reasons, Bowell in 1891. By 1895, the Liberal-Conserva- reneged. In a matter of days, the Prime tives were running low on consensus Minister abruptly reversed course, issued builders when they reached out to aged a second OIC for the same position and and weary Senator MacKenzie Bowell, appointed someone else. a parliamentarian without a seat in the What grounds could have precipi- Commons. Despite his call to duty, it tated such an unusual change of posi- was a formidable task to place on some- tion? Was it partisan pressure, fresh rev- one with a limited hold on his party. elations, a response to a crisis or political Some felt that Bowell had already lost his strategy that motivated a retraction? Was fastball. The party of Macdonald missed it a bold move that signaled a new direc- the energy promised by the late Sir John tion? Or was it a balm to quiet unrest, hit Thompson. Bowell faced an overwhelm- the sweet spot with aggrieved followers ing issue and discordant caucus in a time and gain support? Those are challenging that called for a stronger figure who could questions that will be canvassed in the circle the wagons and restore harmony. paragraphs ahead. Political maneuvering at the eleventh hour altered the game plan for the newly Political Landscape. created Provisional Judicial District of liver Mowat narrowly won the pro- Nipissing in 1895. At Confederation, the Ovincial election of 26 June 1894 and administration of justice was assigned to formed the government. To woo voters, provinces whereas appointment of Supe- Mowat made much of his accomplish- rior, District, and County judges resided ments in strengthening New Ontario. with the Dominion government.3 This He cited enticements for settlers, aid to statutory duality prescribed an indispen- railways to open up the back country, ex- sable role for both levels of government. tending colonization roads, construction The Mowat government did its part in of roads and bridges, aid to poor schools, 1894 when it passed legislation to create substantial public works investments and the Nipissing judicial district effective 1 policies that located 22,000 people in the January 1895. It was then up to the Do- back country on Free Grants.4

3 See Sections 92(14) and 96, The British North America Act, 1867. 4. A Condensed Record of the Mowat Government Showing Eighteen Years of Wise Economy, Eighteen Years of Beneficent Legislation, ([S.l.: s.n.,, 1890), microform.

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The election saw the dramatic rise of come with fees of office. For district court intolerant special interest groups, some clerk, Loughrin turned to the established whom attached themselves to the main and connected Bourke family. He chose parties. The Protestant Protective As- Thomas Bourke, age twenty-three, son sociation (PPA), for example, “was an of North Bay’s first mayor John Bourke, anti-Catholic group, associated with the a staunch Liberal, half brother to former Orange Order. It campaigned against the MLA Thomas Murray, and proprietor of rights of Catholics and French-Canadi- the North Bay Electric Light Company. ans, and argued that Roman Catholics The CPR opened up Nipissing in were attempting to take over Ontario.”5 1882; steady growth in population, com- The rise of anti-Catholic and anti-French mercial activity, and homesteading fol- sentiment spilled over into the politics at lowed along the groundbreaking rail line the Dominion level. that penetrated the lonely wilderness. In Nipissing, Mattawa’s John Lough- Pioneers quickly formed settlements rin easily retained his seat in the provin- and elected township councilors who es- cial legislature. Following his victory, he tablished a framework for local govern- turned his attention to the contest for ment. In Dominion elections, eligible county town and the appointment of male voters living in surveyed townships district court officers. Division courts cast ballots for candidates in the Renfrew that disposed of summary cases existed North riding. With the incorporation and their clerks and bailiffs were in place. of the towns of North Bay, Mattawa and The spoils system put Liberal supporters Sudbury, residents yearned for their own in the forefront for district court jobs. political representation. Nipissing voters He consulted North Bay lawyer Arthur could do better than rely on infrequent George Browning about deserving can- visits and occasional stopovers by the MP didates seeking appointment for the vari- for Renfrew. Numerous appeals finally ous positions. Browning, president of the hit home and Ottawa agreed to provide Nipissing District Liberal Association, a seat in the Commons for Nipissing (c. formed at Loughrin’s nomination meet- 11, S.C. 1892). Passage of an Act entitled ing in May 1894, chose to become crown Representation of the House of Commons attorney. As sheriff, Loughrin selected assented to 1 April 1893 delineated the Charles Varin, reeve of Bonfield Town- electoral district of Nipissing.6 The wel- ship since 1886. Varin, age forty-five and come news sealed the deal and invigor- an active Liberal supporter, had a back- ated political discussion in the district. ground in lumbering and, at one time, op- The door opened for local and district erated a general store. With a $500 salary, political associations to organize and get he topped up his handsome annual in- ready for the next general election.

5. Ontario general election, 1894, Wikipedia.org. https://en.wikipedia.org/wiki/Ontario_general_ election,_1894. 6. 56 Victoria, Chapter 9, 1893, 61.

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Judicial Rumblings with the obligatory self-endorsement of question in the House of Commons political loyalty to Macdonald’s party: swiftly stoked interest among con- I respectfully desire to apply for the office. A Mr. White can speak otherwise as to my tending lawyers anxious for judicial con- character and fitness for the office. As you sideration. In a debate where notice was are no doubt aware, I have always supported given to make a financial allowance for a the Liberal-Conservative Party; my first vote judicial position, Sir Richard Cartwright having been given to Sir Francis Hincks, rose to enquire: “For which judicial dis- when a candidate for North Renfrew.10 trict is this appointment?” In response, Burritt demonstrated a determined drive Sir John Thompson replied: “for Nipiss- to secure the position after Macdonald’s ing district, which has just been created death. He told a newspaper reporter that by the Provincial Legislature.”7 Unbe- Sir John Thompson promised him the ju- known to many, it was already ‘game on’ dicial appointment for the new judicial dis- for a number of lawyers who aspired to a trict of Nipissing. The Hon. Peter White, place on the bench. Bullish opportunists Speaker of the House of Commons and and party faithful led the pack by peti- MP for North Renfrew, would have moved tioning their MPs, cabinet ministers and Burritt’s supplication to that level.11 premier. The government received over Gossip about potential candidates fifty applicants for the position.8 seeking the position continued. A To- James Henry Burritt9, Pembroke bar- ronto newspaper singled out P.H. Dray- rister jumped on the news that deputa- ton, local lawyer and former alderman as tions from Nipissing had approached “likely” judge in Nipissing. When asked Oliver Mowat to create a judicial district. about the news, Drayton responded: “I He had in 1891 declared his enthusias- cannot say anything about it and I’m sur- tic pursuit for the position in a letter to prised to see it in print.”12 John A. Macdonald. Burritt was called J.A. Orr, editor of the Sudbury Jour- to the bar in November 1871 and prac- nal, followed the race for the Nipissing tised continuously in Pembroke. At age judgeship with considerable interest. He forty-four, he had “invariably taken his saw John O’Meara of Ottawa as a front- own briefs as counsel at Nisi Prius with runner.13 The following week, Orr re- average success”. He ended his appeal ported that J.H. Burritt, Pembroke and

7. House of Commons Debates: Sir John Thompson, 17 July 1894, 6241. 8. Perth Courier, 25 May 1894. 9. As Grand Master of the Grand Lodge of Canada A.F. & A.M., in the Province of Ontario, Burritt laid the cornerstone of the Methodist Church in North Bay 20 June 1906. Judge H.D. Leask participated in the ceremony as acting deputy grand master. See Proceedings: Grand Lodge of A.F & A. M. of Canada, 1906. 10 Letter to Right Hon. Sir John A. Macdonald, 28 May 1891, LAC, MG26-A, Vol. 503, pp. 253036- 253037, microfilm reel C-1808. 11. Perth Courier, 25 May 1894. 12.The Evening Star, 11 February 1895. 13 Sudbury Journal, 14 February 1895.

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Toronto lawyer P.H. Drayton (Drayton riding for the Liberals. While he may & Dunbar), who evidently spoke French have silently approved of O’Neill, his fluently,14 figured prominently in the views in patronage matters were politi- contest. cally inconsequential. The party in power Speculation surrounding a judge for maintained closer advisers. Macdonald Nipissing ended 19 February 1895 when frequently consulted Christopher Rob- the cabinet introduced an OIC appoint- inson for guidance about suitable can- ing Irish Catholic barrister Cornelius didates for judicial appointments in On- John O’Neill from Chatham. How was tario.19 As a prominent member of the he selected? Do we see the invisible hand bar who, among others, prosecuted Louis of Sir Frank Smith steering his nomina- Riel, Robinson’s counsel informed the ju- tion?15 If not outright support, the deci- dicial patronage process.20 Robinson de- sion plainly carried Smith’s approbation. clined a judicial appointment since “lead- John A. Macdonald called Smith to ing lawyers saw salaries and prestige on the Senate in 1872 for his shrewd busi- the bench too low”.21 For the Nipissing ness sense and reputation as a force with- vacancy, Bishop O’Connor of Peterbor- in the Irish Catholic community. During ough, whose diocese included Nipissing, his time in Cabinet from Macdonald to would also have had something to say to Bowell, Smith became a broker for Irish Sir John Thompson and Bowell about Catholic rights.16 Smith was an advocate prospective candidates in his domain.22 of the rights of Irish Catholics and lob- Who was John O’Neill? He came to bied for the appointment of Irish Catho- Chatham as a child when his father, Tho- lics to patronage positions.17 mas O’Neill, took a job as a teacher. In Political leaders canvassed widely be- 1868, O’Neill also began as a Catholic fore filling a vacancy on the court. John schoolteacher in Chatham and surround- A. Macdonald made sure to consult local ing area. With his eye on a more lucrative MPs in patronage matters.18 In O’Neill’s career, he turned his attention to law in case, Archibald Campbell held the Kent 1872 when he began as a clerk with Mag-

14. Ibid, 21 February 1895. 15. Globe, 11 November 1895. 16. Mark McGowan, “Sir Frank Smith”, Dictionary of Canadian Biography, Vol. XIII, University of Toronto/Université Laval, 1994-2015. http://www.biographi.ca/en/bio/smith_frank_13E.html. 17. Frank Smith, Wikipedia.org. https://en.wikipedia.org/wiki/Frank_Smith_(Canadian_politician). 18. Peter B. Waite, “Chartered Libertine? A Case Against Sir John Macdonald and Some Answers,” MHS Transactions, Series 3, Number 32, 1975-76. 19. Patrick Brode, “Robinson, Christopher (1828-1905),” in Dictionary of Canadian Biography, vol. 13, University of Toronto/Université Laval, 2003 http://www.biographi.ca/en/bio/robinson_christo- pher_1828_1905_13E.html. 20. Ibid. 21. Ibid. 22. In 1934, Bishop David Scollard, Diocese of Sault Ste. Marie, obstructed the Nipissing appointment of Henri St. Jacques, Ottawa lawyer.

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istrate Michael Houston’s firm. judge from Chatham going to the bench. Following his call to the bar in 1878, Walter McCrea preceded him in 1871, he joined William Douglas. O’Neill resigning his seat in the Senate to accept mentored students under articles and a judgeship in Sault Ste. Marie.24 took them in as partners beginning with The contest was over. The- van Thomas Scullard (called 1888), J.M. quished folded their tents and returned McWhinney (who abandoned law), and to their day jobs. Or was it? The turmoil Ward Stanworth (called 1894). In Au- surrounding Manitoba Schools contin- gust 1884, at age thirty-seven, O’Neill ued to plague the Bowell administration. married twenty-five-year-old Eliza Jane It was all hands on deck for crunch time. McBrody from Pickering. A Toronto newspaper article carried a O’Neill obviously impressed the headline, “Wanted at Ottawa. Premier Minister of Justice and survived the scru- Bowell telegraphs for Sir Frank Smith to tiny that attends the evaluation of judicial attend cabinet meeting.” candidates. He was a person of good char- An urgent appeal resounded for acter, and sufficiently talented to earn rec- Smith to attend Cabinet the following ognition as “a noted classical scholar.” His day (Saturday) to consider the Mani- ability to speak three languages, acknowl- toba school case. The tension in Ottawa edged intellect, as well as his civic and vol- mounted as reporters swarmed Parlia- unteer engagement embellished his port- ment Hill working their sources to un- folio and advanced his resume. In politics, cover government plans to deal with the he served for six years as president of the big issue.25 Liberal-Conservative county association. The pressing Cabinet meeting pro- O’Neill qualified on all fronts—political ceeded as scheduled March 9th. It seems ties, cultural background, and ability— Smith failed to attend.26 The meeting and presented a resume that would be dif- featured a breathtaking turn in the Nip- ficult to dispute.23 issing judicial appointment file. Bowell O’Neill stood to become the second announced the government was appoint-

23. John Rhodes, Chatham This Week.com,2 February 2009. 24. Matthew Wilson K. C., “The Kent Bar”, 1917, p 13.Kent Historical Society – Papers and Addresses, Chatham, Ontario, 1917. 25. The Evening Star,8 March 1895. 26. Sir Frank Smith’s attendance at Cabinet ”always meant action.” At the same time, The Globe cited examples “that an order in Council no longer carries that weight or commands that respect which it for- merly did.” The article goes on to say: “Indeed, a gentleman living in Chatham, Ontario, was last summer appointed a Judge by order in Council, but he never got it. It was intercepted before it received the signature of the Governor-General, or cancelled after it had been signed, and another gentleman, Mr. Valin, of Ottawa, was appointed in the office. First, the Cabinet decided to appoint the Irish Catholic barrister from Chatham, and they did appoint him. Then they decided to appoint a French-Canadian. Unfortu- nately the district of Nipissing called for only one Judge, and consequently, both orders in Council could not remain in force. Sir Frank Smith must have been present when the first order was passed and absent when the second one was put through.” “At the Capital”, Globe, Monday 11 November 1895.

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ing Joseph A. Valin of Ottawa as district dice, entitlement and doctrinaire beliefs. judge, Provisional Judicial District of Despite his suitability for a post in New Nipissing. Confirmation was tabled by Ontario, prevailing opinion favoured way of OIC Number 1895-0725 issued English Protestants for judicial patronage that day. Within eighteen days, Bowell positions. To several intolerant factions, had appointed two judges for Nipissing French-speaking judges had no place out- each with an OIC awaiting the governor- side Quebec. Orange Ontario erected an general’s signature. Almost immediately, invisible wall around their exclusive fief- Bowell jolted into reverse by withdrawing dom to repel French Catholic insurgents O’Neill’s OIC and dispatching Valin’s; it and their elected representatives guarded was approved 13 March 1895. Bowell, and reinforced those barriers. former Grandmaster Orange Lodge of Like Jackie Robinson in the next North America, opened himself up to century, Valin was the ideal candidate to certain opprobrium when he appointed overcome the “racial segregation barrier” Valin, a French Canadian Catholic to an and sufficiently adept to moderate viru- Ontario judgeship. Had he exposed him- lent criticism from sectarian quarters. self to a maelstrom?27 He possessed ample legal heft and poise Aside from potential hostility that to weather any oncoming discriminatory might attend his appointment, Valin rep- reaction. He comfortably bridged the resented an appropriate fit for Nipissing. divide between English and French. His There were not many francophone law- mixed parentage, father French, mother yers practising in Ontario and, of those, Irish, turned out to be an asset. His flu- none exceeding Valin’s qualifications. ency put him at ease in any setting and Napoleon Belcourt might have been he mixed well within both cultures. He an exception. He became a member of had proven scholastic abilities. In his the Quebec bar in 1882 and was called professional career, he earned a fair repu- in Ontario in 1884 along with Valin. tation for being “genial and witty,” and Belcourt had Liberal leanings and later “has the happy faculty of being able to enjoyed a distinguished political career adapt to circumstances.”28 Demonstrat- in the Senate, public life, and as an out- ing diversity, he married Mary Wagner spoken advocate for French Canadian in Toronto, daughter of Jacob P. Wagner, causes. Supporters saw Valin’s selection and a prosperous contractor of German as a triumph that prevailed over preju- heritage as well as father of overachieving

27. The Orange Lodge strongly opposed Roman Catholics. When a vacancy occurred in Peterborough County following the death of Judge E.C.S. Huycke, the Loyal Orange Lodge cautioned R.B. Bennett about appointing a Roman Catholic in his place. In a letter to Prime Minister Bennett 19 July 1934 “the over two thousand Orange men and women of Peterborough county most emphatically protest against any such Roman Catholic appointment… and serve notice that we will use every influence against the Government and its candidate at the next Dominion election. (T)he feelings of the members of the Or- ange Association are no longer to be trifled with.” Letter to Prime Minister Bennett, 19 July 1934,LAC. 28. “Judge Valin Now”, Ottawa Daily Press, 11 March 1895.

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offspring. Jacob Wagner built the stately Valin proceeded to Toronto where he Rossin House hotel and the massive Cen- began his legal studies at Osgoode Hall. tral Prison for the Ontario government.29 At law school, he gained recognition by Ironically, the former penitentiary is earning a 2nd scholarship in 1882 be- known today as Liberty Village. hind classmate A. Carruthers and gradu- Valin unquestionably married well. ated with the highest honors in 1884.30 That same insight carried over to his pro- He and future Pembroke lawyer John G. fessional career. He had confidence in his Forgie articled with the firm of McCarthy, ability to compete and achieve success. Osler, Plumb and Creelman. His principal His French Canadian patrons believed in that law firm was D’Alton McCarthy, a he had the right stuff to make a symbolic leading Conservative MP. During his time breakthrough. They viewed his posting in in Ottawa attending parliament, persuasive Nipissing as a strategic triumph. The tur- colleagues may have recommended Valin moil brought on by the county town elec- for employment in his law firm. tion provided good cover for his arrival. McCarthy, an Irish Protestant, cam- He eased in without fanfare. There was no paigned for English rights and was known appetite for a fight from pioneers preoccu- for his anti-Catholic and anti-French pied with establishing roots in a new land. convictions. Are we to attribute Valin’s North Bay had elitist elements that might acceptance in the law firm to his Irish have posed a problem but they warmed to heritage or his political connections? Or him without objection. In town elections, did his scholarship trump his religion voters leaned towards ability over religion and ethnicity? In the Manitoba Schools in selecting municipal candidates. In a dispute, McCarthy railed against sepa- turn of events, Catholic civic contenders rate schools that taught in French only in North Bay failed to get elected in 1895 by teachers unfamiliar with the English but that was attributed to the fight over language. Following his call to the bar in liquor outlets and disquiet about compe- December 1884, Valin returned to Ot- tency of incumbent councilors. tawa where he formed a partnership with Valin was born at Ottawa in 1857 to A.A. Adam and established his office at Hyacinthe Valin and Sarah Dunn. Hya- 25 Sparks Street. When Adam left the cinthe was an early lumberman in the partnership, Valin and W.J. Code formed Ottawa area. For seven years, young Valin Valin and Code at the same downtown attended Montreal College, operated by Ottawa location. Valin carried on a gen- the Sulpician Fathers, where he studied eral practice attracting both French and classics. Following his time in Montreal, English clients while playing an active

29. George Maclean Rose, A Cyclopedia of Canadian Biography: Being Chiefly Men of the Time. A Col- lection of Persons Distinguished in Professional and Political Life; Leaders in the Commerce and Industry of Canada, and Successful Pioneers, Volume 1, 1886. https://books.google.ca/books?id=uMAOAAAAYAAJ &vq=jacob+p+wagner&source=gbs_navlinks_s. 30. Canada Law Journal, 1 February 1883, 46.

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role in the emerging Carleton County Bowell’s Dilemma Law Association.31 he Nipissing judgeship became a fes- Valin and Adam profited by posi- Ttering topic that landed abruptly on tioning themselves on the right side of Bowell’s plate after the unexpected death politics. That connection returned divi- of Sir John Thompson. While Charles dends. An influential group of thirteen Hibbert Tupper became minister of jus- Conservative MPs and twelve senators tice in the government of Sir Mackenzie led by Simon Labrosse, M.P. for Prescott, Bowell, the groundwork to fill the Nip- petitioned The Honorable John Thomp- issing position began during Thompson’s son, Minister of Justice, to provide them tenure as prime minister and minister with “a modest and fair share of the pa- of justice. Cornelius O’Neill had the in- tronage of your department.” Letters side track when Thompson approved written by Archbishop Duhamel, Sir the appointment of a fellow Catholic in Hector Langevin and Sir Adolphe Caron Ontario. As minister of justice, Tupper backing Valin and Adam enhanced their inherited the file and raised the matter solicitation for government largesse. La- in Cabinet. While it remained the prime brosse’s petition emphasized their unwa- minister’s call to make patronage ap- vering support for the Conservative Party pointments, the official document came and that they commanded “a good deel from the Privy Council “on the recom- (sic) of influence amongst their compa- mendation of the Minister of Justice.” triots.”32 The underlying requirement for Peter White had a proprietary inter- patronage appointments was a record of est in the judicial appointment. As MP service to the party. The petition recom- for Renfrew North, his jurisdiction ex- mending Valin and Adam recognized the tended to surveyed townships in Nipiss- necessity of satisfying that condition by ing district. He had ample opportunity emphasizing their “unwavering support.” during formal and casual events in Ot- The petition lacked any reference to their tawa to discuss matters that affected his ability or qualifications since party serv- entire jurisdiction. In the small political ice remained the key determinant that orbit that existed in that period, White overrode other considerations. The in- had unrestricted access to ministers and fluential parliamentarians who endorsed power brokers. Valin recognized his political promise White had already scored a victory in and emerging force of personality. For a late January when Bowell appointed an young lawyer, that level of attention ele- Ottawa Valley lawyer in his riding. That vated his profile and brought him within came when Thomas Deacon, Renfrew the orbit of the Ottawa elite. North MLA from 1871-1879, received

31. Christopher Moore Editorial Ltd 2003, The Ontario Legal Alphabet,Law Times. http://www. christophermoore.ca/legalhistory.htm. 32. S. Labrosse et al, LAC, RG 13-A-2, Mikan No. 1322679, 1887/09-1888/01.

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his call as junior judge of Renfrew Coun- was issued appointing Cornelius O’Neill. ty. On the Renfrew bench, he joined Undeterred by the news, unyielding op- his brother John Deacon already senior ponents refused to admit defeat and pre- judge in the county. sented a wall of opposition. Led by ag- Bowell faced diverse factions in his grieved francophones—elected members administration including some who felt from Ontario and Quebec, senators, cler- he was weak and performing a caretaker gy— similar to the petitioners assembled role. The tension in the party from the by MP Simon Labrosse, they zealously Manitoba issue affected political deci- promoted Valin. They argued for repre- sion-making and brought government to sentation given that New Ontario had a a standstill. The division erupted on cul- significant francophone population. Un- tural and religious grounds. His Quebec der steady pressure, Bowell heard their members sided with Manitobans who representations and reopened the Nipiss- were stripped of their separate schools ing file. He was astute enough to see the whereas Ontario Protestants applauded benefit of collaboration. Burdened by the the decision. The Orange Order, anti- unresolved Manitoba Schools Question, French and anti-Catholic, opposed re- Bowell knew that O’Neill’s appointment medial legislation to reinstate separate had no payback in his bid to maintain schools. With Bowell in power, they had a hold on his party. Was it was time for a direct pipeline to his office. What was a political oil change? Facing a conun- he to do? drum, he saw a moment of opportunity The ongoing debate placed his gov- and advanced a compromise. O’Neill ernment in crisis mode. In this heated at- became a pawn in a strategic trade-off to mosphere, party members who believed placate a restless caucus. Bowell needed Nipissing was ripe for a francophone help and O’Neill no longer had traction. posting leaned on Bowell. They played There was more upside to go with Valin up Valin’s service to the party, ability, and and appease a critical segment of his sup- academic achievement; his suitability for porters. A vociferous lobby group argued a region with a large francophone popu- that Nipissing had demographic similari- lation; and that he blended easily with ties to Quebec. By bending to his Quebec both cultures. They gave assurance that members, Bowell could make a statement his appointment would be favourably re- about his willingness to understand the ceived in Nipissing. It would attract sup- importance of recognizing francophone port for Liberal-Conservatives anxious concerns. Above all, the French commu- to win in the new riding of Nipissing. nity wanted a victory. Manitoba aside, Bowell revealed that a fervent Orange- Bowell Favours Valin man could overcome personal convic- he groundwork for the Nipissing po- tion and submit to a reasoned argument Tsition began during the Thompson based on the merits. In a bid to avoid a incumbency. In February 1895, an OIC possible shipwreck, Bowell delivered

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what the moment demanded. in March 1893.34 He immediately took over from stipendiary magistrate Wil- Valin’s Stellar Performance liam Doran and held Saturday court in The men who shape the destinies of the Sudbury. Doran would continue to as- North must be men of energy, vision, versa- sist in the district at the direction of Va- tility, with a passion for the wild, a capacity lin. After a six-month stay and two tense to cope with the new, the unexpected, the elections, he moved to North Bay, the untried, gifted with a will to essay and to victorious county town. The animosity 33 conquer. attending the struggle for county town oseph Valin overcame hurdles yet status presented an impediment in his Jbrought energy and promise to his drive to unify the judicial district. new position. His formidable task to From his home base in North Bay, jump-start a new judicial district seemed Valin travelled “by dog-sled and canoe to foreshadow Kurt Vonnegut’s dictum to conduct courts in the outlying early that, “The triumph of anything is a mat- settlements of New Liskeard and Hai- ter of organization.” And that’s what he leybury” to preside in Division Court.35 set out to do. Nobody prepared a place His inaugural court of the General Ses- for him. He found himself on his own; sions in North Bay commenced 12 No- he began without direction or assistance vember 1895. To organize the district from neighbouring judges; the court had and get courts running, he encountered no chief judge until the 1960s. The ball obstacles. Often isolated, he made do in was in his court. At the mature age of 38 an emerging district without colleagues and driven by a determined force of will, to consult and supportive organizational he ardently laid the foundation for Nip- fallback. He sought solace from a small issing’s intermediate court at a pivotal yet obliging North Bay bar that consisted stage of its development. of A.G. Browning, J.M. McNamara, A.W. His first job was to establish his pres- Aytoun-Findlay and P.A.C. LaRose. ence. To do that, he had to compete with David Dunlap in Mattawa, and Sudbury a feverish referendum. He encountered lawyers M.C. Bigger, H.D. Leask and F.F. a veritable “hornet’s nest,” in the form of Lemieux rounded out the young Nipiss- a county town election involving North ing bar. Valin inherited inexperienced Bay, Mattawa and Sturgeon Falls. Wisely court officers who took time to tutor. remaining neutral, he made Sudbury his Sheriff Charles Varin and district court temporary residence pending a decision. clerk Thomas Bourke both entered their There he presided in a solid brick, two- unfamiliar duties with eagerness yet re- storey court house, described as “com- lied on Judge Valin to provide direction modious and substantial” and opened and schooling to get them going. The

33. J. B. MacDougall, Building the North, Toronto, 1919, 107. 34. Sudbury Journal, 16 March 1893. 35. Globe, 1 April 1935.

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North Bay district court house lacked ac- pigs, and horses. Pioneers depended on commodation for a judge’s chamber. For a steady supply of eggs, milk, pork, and fourteen years, he occupied an office off chicken to feed their families. The hardy site at the Ferguson Block until, in 1909, settlers struggled to overcome disease an addition to the court house provided and unsanitary conditions. The town two judges’ chambers, cramped attic had no hospital. Sickness had scarce rem- book and storage rooms, and open space edies. Childbirth took place at home. Dr. next to the chambers.36 Valin presided in Archibald McMurchy and Dr. James B. a second floor, multi-function auditori- Carruthers met the medical needs of dis- um, heated by a wood burning stove, that trict residents at their home or office -ex functioned alternatively as courtroom, amining room and sent more acute cases political meeting place, dance hall and by train to Mattawa General Hospital. first town council chambers in 1891. The Joseph Valin is Nipissing’s longest 1888 court house and lock up, designed serving District Court judge. When se- by accomplished government architect lected a guardian of the Dionne quin- Kivas Tully, evolved into a detention cen- tuplets, the Globe described him “as one tre for the vast Judicial District of Nip- of the most colourful figures in North- issing. The entire main floor housed the ern Ontario.”37 His term in office might district jail with upstairs living quarters have ended on his seventy-fifth birthday for the jailer and family. in 1932. However, he was asked to stay The situation Valin faced was in keep- on pending selection of a replacement. ing with the state of the town. He retired in 1934 with the appoint- Outside the wooden fence that sur- ment of Thomas Battle. Over a span of rounded the court house, horses with thirty-nine years, he presided over a vast rigs were hitched up ready to navigate territory that extended north to James the muddy ruts that served as town road- Bay and which is now carved up into the ways. The local traveller relied on the districts of Nipissing, Sudbury, Temiska- combined entrepreneurial resources of ming, and Cochrane. When he started, the blacksmith and the stable owner to he relied on his two favourite horses, facilitate travel about the community brought from Ottawa, and the CPR to and beyond. reach outlying court locations. Towards North Bay was gradually converting the end of his career the automobile had to masonry construction in place of log become the new horsepower although buildings and drafty shacks that sprung he never owned or drove a car. To at- up to form crude dwellings. Those early tend his northern courts, he often trav- homes featured a root cellar, garden, elled by canoe and stagecoach in a region chicken coop, and shed to shelter cows, largely inaccessible and dominated by

36. In 1943, at Judge Plouffe’s direction, the unfinished space became the court house legal library. The interior walls were lined with finely crafted oak shelves extending from floor to ceiling. 37. Globe, 1 April 1935.

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rocks, lakes, and forests. The journey to separate school trustees.40 Lake Temiskaming was adventuresome Valin conducted an election recount prior to the construction of the T&NO shortly after coming to North Bay. It Railway. To reach Haileybury and New concerned the reeveship of the town Liskeard, he travelled by CPR to Mat- with Robert Rankin and Alexander R. tawa and then took the Moccasin Line to “Sandy” Morris as candidates. At the Kippewa where he boarded a steamer for 1896 town election, Rankin defeated the voyage up the lake. Despite extensive incumbent Morris by two votes. Judge travel in rugged conditions, Valin gladly Valin confirmed Rankin’s election fol- accepted his home territory. lowing a review of the ballots.41 He held His judicial workload presented a his next recount in the 1908 Dominion mixed schedule. Aside from his office election between George Gordon and duties and trial courts, arbitrations, and Charles McCool. The returning officer courts of revision, references and elec- declared Gordon elected by twenty-one tion recounts filled Valin’s calendar. In and the recount sustained that result. His 1900, Judge Valin acting for the Pem- last recount had to do with the 1925 Do- broke Electric Light Company and Judge minion election between former mayor Mosgrove of Ottawa, acting for the town, and town founder John Ferguson and met in Pembroke and selected Judge E.A. Lapierre of Sudbury. Ferguson pe- Senkler of Perth as the third arbitrator titioned for a judicial review and after in the Electric Light Company purchase three days of rigorous scrutiny, Lapierre’s arbitration.38 A protracted arbitration in election as the successful Liberal candi- 1909 involved a dispute dating back to date was confirmed.42 1898. The Sturgeon Falls Separate School When Sudbury and Temiskaming ju- Board claimed entitlement to one-half dicial districts were created out of Nipiss- the local taxes paid by the local pulp ing, an OIC named Valin the first judge company. Counsel G.A. McGaughey ap- in each jurisdiction.43 He established a peared for the separate school, J.M. Mc- reputation as a fair arbiter with good Namara for Sturgeon Falls and George judgment. He got to know a wide range of Franklin McFarland acted for the public citizens, mixed comfortably throughout school.39 McGaughey and McNamara the district, and made friends easily. Mary both served as North Bay mayor in their Wagner Valin established her presence in time. Judge Valin found in favour of the the Presbyterian Church while he and his

38. Perth Courier, 17 August 1900. 39. Toronto Star, 20 August 1909. 40. Perth Courier, 15 October 1909. 41. The Nugget, 8 January 1924. 42. The Nugget, 7 November 1932. 43. J. J. Kehoe for Sudbury (1908) and Henry Hartman for Temiskaming (1913) became the perma- nent judges.

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two sons attended St. Mary’s on the Lake. Bowell’s selection of a francophone for Valin played an active role in his church. Nipissing alter the political outcome of He lent his name and prestige to public the 1896 federal election? Valin played and private causes. He teamed up with lo- no active role in the election and had no cal banker L.P. Snyder, CPR Ticket Agent vote. There is no indication that his ap- D.J. McKeown, Crown Attorney Brown- pointment made a visible electoral differ- ing, and barrister John Michael McNa- ence. His selection received the welcom- mara, to promote and expand the North ing commendation of La Sentinelle, the Bay Public Library. The library started only French newspaper in the region. The out in temporary quarters on Main Street Sudbury Journal pronounced the poten- and later at the town hall. Recognizing tial political import of his appointment that inadequate arrangement, he helped when it declared, launch a drive to establish a freestanding The appointment of Mr. J. A. Valin of Otta- building. Browning later praised Valin for wa to the Judgeship of Nipissing, is a tribute “obtaining the Carnegie Library gift” for to the growth of French Canadian influence the town in 1914. He cut the ribbon at in the district. There are over 7,000 voters on the opening ceremonies for North Bay’s the Dominion list, more than half of whom 44 King Street arena in 1936. Following his are ‘French-Canadians’.” retirement, Valin served as a guardian An instance of tension between the for the Dionne Quintuplets. Commu- races arose during the contest for coun- nity leaders sought him out as a sounding ty town. In an appeal for support from board and intermediary in their frustra- French-speaking male voters, the Mattawa tions with Bishop David Scollard. Among election committee campaigned with ma- his entreaties with Scollard, at the urging terial designed to evoke strong feelings of leading parishioners, Valin played a among its followers. To disparage North key part in the founding of St. Vincent Bay, the committee declared that Mattawa de Paul Parish in North Bay. In his deal- was home to a majority French-Canadian ings with his bishop, he acted discreetly population, whereas three quarters of the without inflaming tensions between the population of North Bay consisted of Irish Scollard and his francophone flock. English and “protestants fanatique.”45 The Disaffected parishioners appealed to him bitter language of the campaign described when they felt aggrieved with Scollard. the demeaning treatment the committee He carried out that role without antago- claimed one encountered in North Bay. nizing the Protestants. Vous êtes respectés à Mattawa, à North Bay James Klock won the Nipissing elec- on vous insulte à tout instant et on vous tion of 1896 for the Conservatives even traite comme des serviteurs et des esclaves, though Laurier swept to power. Did on déteste notre belle langue française, et

44. “Nipissing’s Judge”, Sudbury Journal, 21 March 1895. 45. La Sentinelle, 5 Juillet 1895.

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en voici une prevue. Si vous parlez français from Port Arthur to contest the Nipiss- à North Bay, on vous répond ironiquement: ing election. The man from Klock’s Mills “Talk white”. 46 operated extensive lumber operations in Valin’s arrival placed him in a signifi- the region and lived in a multi-cultural cant position of influence recognizing setting. Conmee had served as alderman his intellectual capacity, public stature, and mayor of Port Arthur and currently and sufficiently gifted personality to as- represented Algoma West in the Ontario suage relations between the English and Legislature. Klock’s victory inevitably les Canadien français. He performed this relied on support from a wide spectrum unofficial calling effortlessly through his of voters including French Canadians. willingness to engage with prominent Those voters obviously approved of the townspeople to promote public ven- Liberal-Conservative government. Many tures. Shortly after taking up residence invariably endorsed Klock and the ad- in North Bay, he served as the honorary ministration for appointing Valin. The president of the popular West Nipissing extent of that support remains a moot Arts and Agricultural Society. There he point beyond the scope of this narrative. joined a directorate of dynamic citizens Valin’s groundbreaking appointment representing all parts of the district who made him the first French Canadian Dis- organized an annual exhibition in Stur- trict Court judge in Ontario. Nipissing geon Falls.47 continued to have francophone judges In the 1896 federal election in Nip- since that time except for Irish Catholic issing, Liberal-Conservative Klock ob- Thomas Battle who served from 1934- tained sixty-two percent of the ballots 1936. Laurier named Harry Darling cast to defeat Reform candidate James Leask junior judge in 1903 but subordi- Conmee. In the final count, Klock nate to senior Judge Valin. soundly defeated Conmee throughout There is no indication that Valin ac- the riding showing particular dominance tively sought the appointment in Nipiss- in the townships starting from east of ing. It came to him as “a surprise and at Mattawa to the boundaries of Sudbury. first he was inclined to decline the hon- While both candidates split the vote in our for the reason that he was comfort- the town of Sudbury, Conmee’s only sign ably settled in Ottawa.”49 After sufficient of strength appeared west of Sudbury.48 deliberation with influential friends, he To what may we attribute Klock’s gave way to persuasion. His inspiration decisive victory? One might argue that may have stemmed from the challenge Klock was a local candidate whereas to open up a new district with a large Conmee was a non-resident brought in Franco-Ontarian population. The love

46. Ibid. 47. Sudbury Journal, 16 January 1896. 48. Sudbury Journal, 6 August 1896. 49. The Nugget, 7 November 1932.

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of nature and outdoor life in the dis- scope of this narrative. However, if that trict appealed to him. For that reason, includes doing what was expected of he selected a home on the shores of Lake him, he more than met that goal. He sin- Nipissing and later Trout Lake. Once gle-handedly got judicial services off the installed in Nipissing, he joined a hunt ground through skillful direction and club in Wahnapitae, spent each winter diplomacy. He transformed the former participating in numerous regional curl- limited jurisdiction of inferior courts ing bonspiels,50 and took every opportu- in Nipissing to county court standards. nity to walk with his dogs. He declined Aside from his judicial functions, he par- an opportunity to return to Ottawa ten ticipated willingly when called upon to years later citing attachment to his new add his influence in the life of the com- home and reluctance by his family to munity. By any measure, Valin effectively move away from North Bay. fulfilled his mandate and proved he was a A political compromise brought logical choice for Nipissing. Joseph Alphonse Valin to New Ontario The Nipissing compromise that se- and the Provisional Judicial District of lected Valin represents a significant mo- Nipissing. He stepped forward to accept ment in conventional patronage policy. the appointment at the urging of friends Did it open the door for Franco-Ontar- to advance French Canadian participa- ians or was it one and done? In July 1900, tion in the mainstream of Canadian Laurier appointed Albert Constantineau life. Valin overcame censure on racial of Ottawa and L’Orignal as junior judge grounds. His favourable reception in for Prescott Russell, home to a predomi- Nipissing affirmed that the pioneer pop- nant francophone population.52 With ulation had no appetite for engaging in that singular gesture, Laurier failed to ap- the entrenched bigotry practised in Old point another French-Canadian judge in Ontario. If his backers saw him as a torch- Ontario. Philip Girard writes that Laurier bearer capable of fulfilling a mission, he “did no better than the Conservatives… measured up to their expectations. Can [who] had appointed the scholarly Valin we say he was a “good judge”?51 I leave in 1895.”53 By 1912, the French had only that equivocal subject for more learned one senator, Napoleon Belcourt, and two hands. Any determination is beyond the county and district judges: Valin and

50. “The veteran Judge Valin who has piloted rinks to victory since the International Association was first organized has been playing up to his best form, being a consistent winner, and has started a class and is giving lessons to a number of the players, among whom are Tom Begg, Bill Martyn, Bob Miller, Tom Mc- Kee, and a number of others. The class is growing rapidly”. “Sporting News, Curling Notes,The Northern Patriot, 1916. 51. See John W. Morden, “The ‘Good’ Judge”, Law Society of Upper Canada, March 2004. http:// www.lsuc.on.ca/media/hon_john_morden_the_good_judge_mar0504.pdf. 52. The Toronto Daily Star, 28 July 1900. 53. Philip Girard, “Politics, Promotion and Professionalism: Sir Wilfrid Laurier’s Judicial Appointments”, in Essays in the History of Canadian Law: A Tribute to Peter N. Oliver, edited by David H. Flaherty.

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Constantineau.54 Up to that point, both Battle over Henri St. Jacques of Ottawa political parties resisted fervent appeals who seemed certain to receive the ap- to appoint francophones to meaningful pointment. public positions. They were hindered by The reluctance of political leaders to strong anti-French sentiment in Ontario promote French Canadians for the bench and frustrated by adverse legislation like illustrates the futile struggle they experi- Regulation 17. Northern Ontario waited enced following Confederation. French until 1923 when Mackenzie King ap- Canadians faced uncompromising bar- pointed Jean Baptiste Thomas Caron riers that stifled reasonable efforts to judge in Cochrane.55 It seemed tolerable achieve due consideration and acceptance to select a Franco-Ontario lawyer for for government patronage in Ontario. It posting in heavily francophone jurisdic- underlines the stranglehold that oppos- tions. King appointed L’Orignal lawyer ing forces like the Orange Order, fraternal and parliamentarian Edmund Proulx for groups, and entrenched bodies exerted Sudbury in 1929.56 Prime Minister Ben- over the body politic. The compromise in nett refused to appoint a francophone 1895 remains a milestone for those who when he selected Irish Catholic Thomas campaigned for French Canadian partici- Battle to succeed Valin in 1934. He chose pation in the judicial life of Ontario.

54. Toronto Star, 25 January 1912. 55. Porcupine Advance, 4 April 1923. 56 The Nugget, 13 September 1929.

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