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“Attorney-General Tells Commission Criminals Sought Trial By Stubbs,” Winnipeg Tribune. January 13, 1933. Page 1 & 8. ---- Tells of Complaints He Received From Police, Magistrates ---- Hon. W. J. Major Declares He Was Apprehensive for Safety of Winnipeg - States Criminals Refused to Plead in City Police Court in Hope of Going Before Stubbs for Speedy Trial. ---- Hon. W. J. Major, attorney-genera!, told the Ford Commission investigatlng charges of Judicial misbehavior against Judge Stubbs that persons under arrest have refused to plead before Magistrate Graham in city police court in the hope of coming before Judge Stubbs for speedy trial.

Today, Mr. Major is undergoing cross-examination by E. J. McMurray, K.C., counsel for Judge Stubbs.

"The idea was abroad," Mr. Major said, "that criminals would be treated with extreme leniency. I was becoming apprehensive for the city of Winnipeg. We have had border towns raided and we nave had to take the most rigorous measures to prevent that kind of thing here. Rumors have been spread that Winnipeg was a place in which escape was easy after committing a crime."

Mr. Major added that he had received complaints from law enforcement officers, magistrates, the city police authorities, Chief Detective George Smith, and one of the turnkeys at the Jail who had overheard a conversation.

Hon. E. J. McMurray, Judge Stubbs' counsel, discounted the attorney-general's statement and termed it "mere prophecy." Mr. Major refused to retract and said he had received requests from the city police chief not to allow speedy trials because, in that case, accused persons would come before a county court judge.

No Sentences "It is argued," he said, "that an appeal could be taken from Judge Stubbs' decisions. But where there are no sentences there can be no appeals. In many oases before Judge Stubbs there have been no sentences."

The day's proceeding before the commission provided a variety of, at times, bristling cross-fire. The attorney-general chose the medium of the witness box to make his first reply to the long series of letters written by Judge Stubbs to the press in which Mr. Major got prominent mention. He denied that venom or spite had ever actuated his actions. Their only foundation was his duty and responsibility.

"I have had no opportunity through the whole of this controversy," he said, "of making the facts known. Every bit of publicity this case has received has come from Judge Stubbs. I do not wish to show any heat, but I do say I have stood a great deal of provocation. I have never uttered a syllable, I have never published a letter, and statements have gone through this country In which I have been maligned, in which I have been accused of acting with venom and spite. That I deny.

Called a Liar "I have felt I was discharging my duty as attorney-general, and if I did not do it then I would be subject to severe censure. I have been called a liar in the court of His Honor Judge Stubbs. I have been accused of defaming him on the floor of the legislature. Surely, my lord, I am entitled to protection, and I should be allowed to show the reason why I used the expressions I did in the legislature."

Mr. Major covered a wide field of charges in the complaints listed against Judge Stubbs. A long period was occupied with the complaint that as surrogate Judge he had charged and collected lees to which he was not entitled. There was other examination on Judicial acts, involving charges of disregard of evidence, bias, and improper remarks during the proceedings.

Judge Stubbs himself once took part in the argument and told the commissioner that other than an appellate tribunal there was no tribunal of any sort, not even parliament itself, that had the constitutional right to review his decisions.

Receipt Book Produced At the opening of the afternoon session Mr. Major continued his evidence in regard to fees charged in the surrogate courts of the province. He produced a receipt book used in Judge Stubbs' court for fees received for various orders. Prior to 1916 the fee for such orders had been 50 cents, but since then the fees had been payable to the provincial treasury.

Commissioner Ford: "Then there never was anv authority for charging a fee of 15?"

"Mr. Major: "Never any authority."

Col Sullivan: "So your point is first of all that the Judge had no right to collect a fee, and that nobody had any right to collect a fee of $5, and that the only fee collectable by anyone was 80 cents?"

Mr. Major; "That is my submission."

Commissioner Ford: "When did the charge of $5 begin? Have you a list of these fees?"

Mr. Major produced a list which he said he had received from the clerk of Judge Stubbs' court in April. 1932. He wished to emphasize that he was dealing only with surrogate court fees, not with fees under any other statute.

For 1929. the list showed, Judge Stubbs received $575 for 115 orders, in 1930 his receipts were $510 for 102 orders, and in 1931 $535 for 107 orders.

How Discovery Made Mr. Major proceeded to explain how he discovered that fees were being charged. There had been a need for economizing and the surrogate courts of Manitoba had been costing $13,500 a year, the county court judges doing the work. For 1932, he had proposed a uniform schedule of fees and a sum of $4.50 for judges' salaries.

That had not been satisfactory to the judges and it had become necessary to arrive at some fair reduction of the judges' remuneration. He had then asked the clerks of the county courts to furnish him with list of the fees received by surrogate court judges, knowing as he did that certain statutes such as the dower and marriage acts provided for the payment of fees.

The witness said he had found fee were being charged as shown by the exhibits. Previously he had not known that fees were being paid under such statutes as the Child Welfare Act. He had then desired to find out what the surrogate court judges, and Judge Stubbs. whose salary was $2,500, were receiving in total remuneration.

First Collected In 1929 The clerk of Judge Stubbs' court had Informed blm that the first fee of $5 had been collected on Jan. 30, 1929. All fees collected had been Immediately turned over to tha Judge. The clerk had written that Judge Stubbs had informed him that the other judges followed the same practice. He had written to Judge Stubbs asking his authority to charge and retain the fees in question, and to the other judges In a similar sense.

Mr. Major said he found that in one or two other cases fees were charged.

Mr. McMurray: "Do you feel you were bound by the resolution passed by the county court Judges in this matter?"

Mr. Major: "I don't intend to be bound by any Judge or group of judges."

Mr. McMurray: "Then how do you expect his lordship to attach any weight to your argument?"

Col. Sullivan: "I think we should know what the other Judges did. It might put the matter in a different light In your mind if we find that other judges also charged fees."

Mr. Major: "I wish to be quite fair and to disclose all the information I have."

The clerk of the Dauphin county court replied, said Mr. Major, that no fees were collected in the surrogate court, that no fees were paid over to the judge. The Portage la Prairie clerk reported the same thing.

In Brandon the practice had been to collect no fees in the surrogate court, but for releasing surety companies from bonds a fee of $5 had been charged and paid to the Judge. In 1931 nine such fees had been paid.

Hacks of the Bench Fees had been charged on certain orders by the Judge in the northern judicial district, amounting in 1931 to about $50. The witness then read a letter he had received from Judge Stubbs written April 18. 1931, in which the latter admitted certain fees had been paid to him as "persona designate." In the letter he referred to the county court judges as the "hacks of the bench" and said the term particularly applied to the four in Winnipeg where their work was onerous and they were obliged to adjudicate on matters arising under a great many statutes.

Mr. Major followed with a letter from Judge L. P. Roy, of St. Boniface. The attorney-general, in the course of his investigation, wrote to each county court judge and asked him if it was the practice for the clerk of the court to collect any fees at all and afterwards turn them over to the judges.

Judge Roy replied that in his case no such practice had ever prevailed.

Resolution of Judges The witness next produced a memorandum from the records with respect to a meeting of the county court judges which took place in Winnipeg, April 26. 1927. At the meeting the question of fees came up for discussion. According to the record given the attorney, general the outcome was adoption of a resolution that "in cases where the judges acted "persona designata" they were entitled to be paid a fee for services, which fee is fixed at a minimum of $5."

In reply to counsel, he said his next step'was to determine whether any Judge could act as persona designata under the statutes named. He found that up to 1916 the Surrogate court judge had been permitted to collect fees and that the charge on orders was 50 cents. After 1916. when the Act had been amended, fees had not been collected on any such orders. Judge Myers had been Surrogate court judge under both plans, and Judge Dawson, his successor, had followed the same practice as that followed by Judge Myers after 1916, namely, not to collect these fees.

"I am told," the witness said, "that Judge Stubbs himself did not collect fees for such orders up to 1918 and that at times he criticized the practice of judges charging fees. I have a written statement from the clerk of the court, who will be a witness before the inquiry."

Clerk's Statement Read Mr. Major produced a statement signed by Thos. H. Jones, county court clerk and clerk of the Surrogate court. He had held the second position under three Surrogate court judires. Books of the court showed that up to 1916 the judge collected the fees and the charge for orders of this nature was 50 cents. After 1916 the fee was paid to the crown. Mr. Jones, in his statement, said he had no knowledge that Judge Myers after 1916, or that Judge Dawson, had ever collected any for themselves.

"From 1924 to 1928." the statement went ont, "on a number of occasions Judge Stubbs expressed the opinion it was bad practice for a judge to collect fees when he was paid a salary. Not long after he began to charge $5 for orders and collected it.

The memorandum further cited that Mr. Jones mentioned it to Judge Stubbs, who had replied he had legal opinion on the point and he was entitled to make the charge. He had never known either Judge Myers or Judge Dawson to do it

Told Clerk to Collect Early In 1929 Judge Stubbs told Mr. Jones to collect the fees for him. They were generally paid over the same day, and no receipt for the payment was asked.

Col. Sullivan asked the witness if he secured a copy of the legal opinion referred to Mr. Major said he had what purported to be a copy. The opinion was contained in a letter of April 25, 1927. Mr. Major's contention was that in some respects it was wrong in fact, inasmuch as it did not take Into consideration certain Surrogate court amendments of 1920, and in any event the counsel giving it did not express the opinion that these $5 fees were proper.

Commissioner Ford: "Is it suggested the fees might have been $10 instead of $5?"

Mr. Major: "The resolution of the Judges fixed a minimum of $5."

Col. Sullivan: "You have given us a list of some 265 orders and subdivided them into seven classifications. A lot of these $5 fees were paid on orders for releases of surety bonds. Give your reason for saying the judge is not entitled to charge a fee for release of a surety bond."

Provisions of Statutes Mr. Major replied by reading sections of the Surrogate Courts act and amendments and said Judge Stubbs had charged fees on 144 orders for releasing sureties and that he had no right to charge any of them.

Commissioner Ford: "Was there any right to charge a fee at all?"

Mr. Major: “Yes, under this schedule B."

Commissioner Ford: “Fifty cents?”

Mr. Major: "Yes.”

The attorney-general followed by quoting sections from the statutes to support his claim a surrogate court judge had no right to charge fees on orders for release of equities of redemption. This was another classification under which the $5 charges are claimed to have been made.

He then produced a list of 237 cases labelled, and an attached summary of orders for maintenance under the Child Welfare Act. He cited first a case where a widow and two children were beneficiaries of a small estate, the infants share amounting to $933.31. Expenses for the maintenance and education of the children could not be met without drawing on the infants' share. An application was made for payment of a small monthly sum. Mr. Major said Judge Stubbs had signed the order and charged a fee of $5.

Counsel's Objection Mr. McMurray: "May I ask the witness why he is picking out these particular cases?"

Col. Sullivan: 'When I saw that file, I suggested to the attorney-general that he pick out some of those cases to show us what kind of orders they were. I told him 1 did not want to read it all and I did not want your lordship to have to read It all, I was trying 'o get the matter before you as concise as I could."

Mr. McMurray: "The only point Involved is the right to collect.”

The question is: “Was Judge Stubbs entitled to collect a fee of $5 or was he not? Surely the circumstances of these cases cannot enter into the thing."

Mr. Major: "I was only trying to show the nature of the cases."

Mr. McMurray: "The attorney - general Is not only showing the nature of the cases but he is showing his own nature. Judge Stubbs is either entitled to have done it or he is not. Surely that is the whole of the issue."

Quantum of Fee Commissioner Ford: "The question of the quantum of the fee might raise the very question the attorney-general suggests."

Mr. Major: “Exactly.”

Commissioner Ford: "The elasticity of the term, a minimum fee of $5 may be quite a thing. I am not sure I should not protect the witness even if he is attorney-general.”

Col. Sullivan:"The attorney-general prepared this list, and, as I said, I asked him to read some of the cases, merely to give your lordship an idea what they were."

Commissioner Ford "Perhaps they better all be put in and I will read them myself, If it is thought they should not be read to the public I am not going to exclude the public."

Mr. McMurray: "I do not want to be put in that position. I would suggest that the attorney-general let me draw four or five or six at random. I have no desire to be unfair, and I want the attorney-general to be fair."

Duty to Disclose It Mr. Major: "I have no desire to be unfair, but I do say this, that I look upon it as part of the duty I owe to the position I occupy that where, in my opinion, it is judicial, or whatever it Is, in which the Infants, the wards of the court, have suffered, that it is my duty to show that and to disclose it. If I fail to do it, then I am not discharging my duty. These documents are public documents. They are entitled to be known. There is no reason, I submit, to exclude the reading of them. If it is necessary I will read them all. I say they disclose a terrible state of affairs. That is my submission."

At this point the attorney-general made his statement that he had never had an opportunity to tell the facts.

Mr. McMurray: "All I want is a fair cross-section of this matter. If the attorney-general wants to be fair, let me draw four or five of them and let him read them."

Commissioner Ford: "You can bring it all out in cross-examination. You can bring out the large estates and small ones. I am not at all concerned, personally, with the question of publicity. I am here to hear the evidence. Personally, I would prefer to be in a quieter place, perhaps, but I am not going to exclude the public.”

Mr. McMurray: "Yes, I know this kind of matter is not very pleasant to your lordship. If the attorney-general is bound to proceed, I cannot stop him."

Mr. Major: "I don't Intend to read all this."

Commissioner Ford: "I hope you don't. On the other hand, I hope it is not necessary that I should have to read it all in order to understand the point involved.

Other Fee Charges Mr. Major then proceeded to cite other cases of fee charging. In order they were:

A small estate of a widow there three applications had been made in one year. One was for payment of $15 a month for which Judge Stubbs had collected a $5 fee. A second application was for payment f $50 to cover hospital expenses. Fee charged and collected. $5. The third order was for payment of $10 a month. Another $5 fee was charged.

An $862 estate In which four applications had been made for the beneficiaries in a period of a little over a year. One was an application for $35 a month, the second for $20 a month, a third for $15 a month and the fourth a lump sum of $75. The infant beneficiaries cited the need of the money for living and school expenses. Fee charged in each of the four cases, $5.

"I don't want to read any more of them." the witness continued. "The estates were all small, all but two less than $2,000. I cannot refrain from expressing the opinion that there has been an abuse of authority, and while the province only received $1, the judge himself got a $5 fee in each case.

Concurrent Jurisdiction "As soon as I found out the situation I determined to give all judges of the surrogate court concurrent jurisdiction and rearrange their salaries. Until the amendments to the act were made last year there was only one surrogate court judge in the eastern Judicial district. Now there are four. I have made no complaint as to fees, except the fees collected by him as surrogate court judge. When the surrogate court judges were paid by fees all they then collected was 50 cents for these orders. The salaries of all were fixed at $1,200.

There was no justification or authority for Judge Stubbs charging fees as persona designation, nor any justification in custom or practice. Similar fees had not been retained by Judge Stubbs' predecessor, Judge Dawson.

Speedy Trial Cases In support of the charge that Judge Stubbs showed bias In his conduct of certain cases before the County Court criminal division and in his lodgments given Mr Major put in written memorandum prepared by the clerk of the court, The facts cited were:

That Judge Stubbs in 1932 had 40 different accused persons before him for trial. Some were before him twice and one three times. There were 34 cases for these 40 accused, cases covering happenings of a different nature and on different dates.

In 22 of them actual trials were held, that is, where the accused pleaded not guilty and stood trial. Of the 22 trials there were six instances where the defence was called upon to tender evidence. Of the 40 individuals, 34 pleaded not guilty, and only one conviction imposed, and in this case the sentence was a short jail term.

Of the 34 instances of a plea of not guilty there were 33 acquittals.

Of the 40 persons who came before Judge Stubbs, there were 11 instances where the accused pleaded guilty. One was sentenced to a penitentiary term of two years. Five were sentenced to short Jail months. In the other eight cases the prisoners were bound over to keep the peace.

Inquiries Made There were numerous instances, the memorandum stated, where inquiries were made to know if Judge Stubbs was taking the sittings of the County Court judges criminal court in November. In some of them they came right out with their reason for inquiring, and stated that if Judge Stubbs was sitting they would elect for a speedy trial, and otherwise they would take a jury trial.

Mr. McMurray: "Do you think your lordship should accept this as evidence? Here we have a judge trying cases. There may be a series of cases in which he may acquit the accused, and there may be a series in which he may convict. Who is to say what was in his mind in this matter? Surely your lordship, who neither saw the witness nor the prisoners, will not undertake to say that."

Commissioner Ford: "You take the position that without seeing the witnesses and prisoners It is impossible to come to any conclusion?"

Mr. McMurray: "I submit that you could not do anything at all, even if the Judge had been actuated by real bias, though I think that Is going too far. But when they simply ask you to review the judge's judgments they are asking you to do something for which there Is no authority that I know off."

Commissioner Ford: "Unless they intend to go further, I would not think the evidence very valuable."

Outrageous Proposition Mr. McMurray: "They are simply putting forward the proposition that judges who do not make decisions acceptable to the attorney-general are guilty of bias. It is the most outrageous proposition have ever heard and yet in all seriousness the attorney-general comes into court to sustain that position. There is a place where these decisions could have been reviewed."

Mr. Major: "I am not making all my submissions now."

Mr. McMurray: "It is so hard to follow the attorney-general. One minute he is a witness, the next minute he is arguing, and the next he is delivering judgment. I have to catch him as I can. It is hard to make him out. I sympathize with him in a way. I really think he ought to be bound down to showing some evidence of a straight bias instead of saying that a series of judgments were given one way."

Mr. Major: "I propose to state the evidence in each case."

Mr McMurray: "He shows he has not grasped my point at all. He proposes to bring in evidence and ask your lordship to deliver a contrary opinion to the learned judge who tried the case."

Different Position Commissioner Ford: "If there were an accumulation of cases all one way, it would go some distance In support of the charges. If he desires to put in evidence in each of the cases, I would have to allow it to go in. But I quite see the point you raise, and it puts me in a difficult position, I assure you that in allowing the evidence to go in, I am not saying that it is all admissible or been evidence which would lead to a final conclusion. Nor am I saying that I must decide whether the Judge was right."

Mr. McMurray: "The Judge is answerable to his own conscience and nothing more. There are courts of appeal to revise judgments of the judge, and outside of that no other forces can or should interfere."

Judge Stubbs: "I have no objection to the attorney-general going into this line of matter, if he wishes to, and if you see fit to allow him, but I just wish to make this brief statement. In protest I submitted an argument yesterday going into the matter of your jurisdiction. Admittedly that was a controversial matter and you held against me. I wish to say this now, that you have not - no tribunal in the world has - and parliament itself has not any right to do what you are being asked to do. There is no power in the universe that can review these judgements. The only power in our constitution that could possibly have done so was our appelate tribunals, and you are not sitting here as an appellate tribunal on these case.”

Not Reviewing Judgment Commissioner Ford: "If you would not mind me interrupting there, I do not understand the evidence Is being offered for the purpose of having me review your judgment. It Is just an attempt which will be difficult to make to show bias on the part of the judge complained of. It is not a question of reviewing, and I think I have made it clear to Mr. McMurray that for the moment I said it is not likely to go to this length successfully. Do I make myself clear?"

Judge Stubbs: "No, my lord, you do not If there is bias I will go this far and say I had a right to be biased. I will say if I was wrong in my judgment I had a right to be wrong, and that that right is Inseparable from the judicial office. You can have no judicial office without that right, and I will not demean that judicial office by giving one word of explanation to any man, to any court, to any tribunal, or to parliament itself, why I gave any particular judgment. That Is between me and my conscience and nobody has any right to interfere in such matters. I go so far in pursuance of the authority I quoted yesterday to say this, that in these matters a Judge has a right to be wrong all down, my lord, from the time of Coke himself, and you will find It in Coke's own judgments. These matters have been held repeatedly. I read dozens of these cases. There is not an atom of authority to the contrary that there Is any tribunal in the world to review a judge's decision, other than an appellate tribunal. That is my position."

Open To Review Commissioner Ford: "If there is any proper evidence of bias it would be open to me to review it."

Mr. McMurray: "Biased would have to be improper bias, actuated, created in some unfair way. My lord, we are all biased one way or the other i am biased. My learned friend. Col. Sullivan, is biased. Of course he is wrong. Bias is based on nationality, upbringing and so on. Some judges are very humane. They cannot help it. Sorne are very severe. They can not help it either. This bias would have to be such as to constitute a corrupted judge. It would have to be bias in that way."

Mr. Major: "The charge is a disregard of evidence. I am charged with the duty of administrating justice in this province. I have to recognize a time when there is what might be termed an apparent failure to secure justice.

“Our law enforcement officers are efficient and yet there seemed to have been an utter failure to do justice. I must find what is the cause. I consult with those responsible for the administration of the law and I find a disregard of evidence. I find evidence produced by crown prosecutors before the judge disregarded. I have determined the cause, or at least I think I have."

Misconception of Duty. Mr. McMurray: "I think the attorney-general has come to the core of the whole thing now. He hss apparently an absolute misconception of his duty. He thinks he has control over both the magistracy and the judiciary." He has no control over the judiciary.

“I think as this case goes on it will disclose a struggle between the senior county court judge for the preservation of his rights as a judge and the attorney-general of the province, who wants to exercise authority over him.

Of course the attorney-general has no jurisdiction over the courts. Let the administration of justice be what it likes, what right has the attorney-general to review judgments? It is far away from his province. He assumes that when judgments are not satisfactory to him or to his department he has the right of criticism.

“If that were so all the rights of the people would disappear. Our whole judicial system would disappear and we would be under an autocracy. It has apparently never occurred to the attorney-general that the judiciary are as much part of the government of this country as he is himself, and that he has no right of Interference with it.

Amazing Attitude "Here he stands today after having had plenty of time to consider these matters and adopts this attitude. I am literally amazed to find that no other conception has dawned on him yet. I knew when he first started In this controversy that it hadn't dawned on him. But I am literally amazed to find that today his mind still doesn't grasp what his own duties are."

Col. Sullivan: "The suggestion I have to make, to you is this, my lord: You have accepted your commission to Inquire Into these complaints of bias and disregard of evidence. The attorney-general has offered to give you first of all a list of criminal cases tried by Judge Stubbs and he is, I know, going to submit to you transcripts of the evidence in some of these cases and the language used in the giving of the decisions. He will support his claim of bias by evidence.

"The only way is to hear the evidence. If there is shown such a disregard of evidence as would shock you then you could conclude there was bias. Or, on the other hand, you might find there was no such disregard of evidence. We are now back to where we were yesterday, when the matter was argued by my learned mends with a good deal of dramatic effect."

Three Issues Involved Commissioner Ford: 'There seem to be three matters involved, disregard of evidence, bias, and alleged remarks during the proceedings. What impresses me at the moment is that it will be very difficult for me to say whether there was disregard of evidence. For the present, I am not prepared to agree to the proposition that a judge has a right to be wrong. I think, on the whole, I will have to hear the evidence. I will give every consideration to determining what my duties are when I come to report on it"

Omitted Exhibit Mr. Major at the opening of proceedings today said he wished to put in as an exhibit a document omitted the previous day.

It was a letter from the clerk of the surrogate court to the deputy attorney - general recording a meeting of the county court judges on January 24, 1929 at which the question of fees was discussed.

The letter stated that Judge Stubbs, chairman of the meeting, had quoted an opinion of an unnamed King's counsel to himself on the fees question. According to this authority a Judge had a right to collect fees in his court In spite of the act of 1916. The latter, the opinion stated, referred only to fees specially mentioned in the schedule to the act.

Judge Stubbs had then expressed his concurrence with the opinion.

Mr. Major then proceeded to submit documents relating to the charge that Judge Stubbs had made unwarranted criticism of polios officers from the bench.

Police Evidence In one case Judge Stubbs had said he refused to take the evidence of police witness unless it could be shown that their statements were correct. In another case he had expressed suspicion of police evidence and had declared he had been asked to listen to such evidence in cases in which he should not have been asked to do so.

Judge Stubbs had remarked that In the latter case the accused had had no previous record, whereas the crown prosecutor had desired him to listen to statements by detectives. The request had been "impertinent" and he would give it a "pertinent" reply.

His honor had justified his stand by citing from a law book, Taylor on Evidence, a standard work. He had. he had stated, simply paraphrased a characteristic statement by Taylor.

The judge had pointed out that he did not claim that police officers necessarily perverted the truth. The trouble was due to their professional zeal. Through their frequent contemplation of human nature in its most revolting forms tended to pervert the general outlook of the police.

The creed of the police, Judge Stubbs had stated, was that an accused person was guilty until proved not guilty.

Said Evidence Biased In other cases, said Mr. Major, Judge Stubbs had remarked that when the police got a man in their toils they were out to "get him.” Their evidence was nearly always biased. They colored and painted things worse than they were.

In another case, Judge Stubbs had told an accused he would give him another chance, warning him to leave drink alone. He had added that to be successful in crime it had to be gone into on a big scale. He had to steal "a million or two," in which case he would have a chance to get away with it, "and even be rewarded."

In still another case, Judge Stubbs had described the accused as "more sinned against than sinning." The man, he had said, had been subjected to ill treatment by the police.

Coming to the Elmwood riot case, Judge Stubbs had said the police had been guilty of arbitrary and officious conduct. He had upheld the right of a man to take a photograph even if such action were annoying to the police.

Judge Stubbs had commented that a man lying on the ground had been brutally beaten by the police. But he had made no reference, Mr. Major said, to a police officer having suffered a fractured leg, and another officer a broken wrist and finger.

Previously Referred To The citations of the cases referred to were Kins vs. Hammil, King vs. Elliott, King vs. Duddles, King vs. Chomey, King vs. Gibson, King vs. Stretka, all of them having previously figured prominently in the controversies of Judge Stubbs with the attorney-general.

The attorney-general supported his complaints by reading frequently from Judge Stubbs' recorded judgment in the Stretka case there was reference to "sliding him off the Bench, and by all the gods, I am not sliding off ... ."

When Mr. Major read the remark there was a taint patter of a pair of hands from the rear of the room but it was either unheard or unnoticed by the Commissioner.

Provocative Conduct The witness read a quotation from a law book on "Libelling the Police." His own comment on unjustifiable criticism of the police authorities was: "The city of Winnipeg and its police force often has to recognize a serious situation. I consider it my duty when unwarranted attacks and unjustifiable criticism are levelled against them, to say something on their behalf. Often they are subject to provocative conduct while they are doing their duty In protecting lives and property. For the city police force I will say it is well-officered, and well-mannered, never resorting to methods that in its Judgment are not necessary. I feel that in laying this complaint I am only doing my duty by the law officers of the crown."

The filing of a list of documents followed, Judge Stubbs' pamphlets in the Macdonald will case, the reports ot his Walker theatre meeting, newspaper clippings, and also a more recent pamphlet entitled "Judicial Crimes."

Letters to Guthrie Further quotations were given from other judgments In the cases already cited. One of them was King vs. Gibson, when Judge Stubbs in addressing the accused made the statement, “Lying...is lying... whether by a humble citizen like yourself, or by the attorney-general on the floor or the Legislature, when defaming one of His Majesty’s Judges. “

"Those are the quotations I wish to submit," he said. The witness followed with production of bundle of letters and statements by Judge Stubbs, most of them previously published in the press. In the list was included copies of the two letters to Hon. Hugh Guthrie, minister of justice.

"That is all you wish to submit, that and the documents already filed as exhibits? asked Col. Sullivan.

"Yes," answered the witness, "that is all I have."

"And that was all you could get in your searches on which to base these complaints," interjected Mr. McMurray, as he began his cross-examination.

Mr. McMurray: "You have covered the field very thoroughly. Do you think you have left anything out reflecting on Judge Stubbs?"

Mr. Major: "I may have left a whole lot out,"

Suggests Microscope Used "Haven't you used a microscope on Judge Stubbs for years? Haven't you studied his every move with the greatest care?"

"No; I think you will find that all my submissions except those on fees, the mandamus and liquor appeals, are ell In respect of 1932."

"The burden of your pleas is that Judge Stubbs has rendered Judgments not so satisfactory to the attorney-general?”

"No, that is not It,"

"What, in your opinion, are the functions of the judiciary?"

"To administer the law with impartiality."

"What are the two functions of the judiciary?"

"Perhaps you will give me more light as to your meaning."

"That is you need the light.”

Mr. Major made no reply.

To Interpret the Law "Then tell me what they are. You are the attorney-general and you presume to criticize the judiciary in their work. I want to give some Idea to his lordship as to the cause of the trouble."

"Perhaps there may be considerably more than two functions. The functions of our judiciary are to interpret the laws, to administer justice, and to hear charges brought against them."

"Excuse me, I will tell you what the functions are."

"Don't the judges make the law by interpretation?"

"They interpret the law."

"The laws are what the judges interpret them to be."

"That is exactly what I say."

"And I suppose that in the making of the laws by the judges' wide sympathy, knowledge of sociology and economics and wide knowledge of fundamental principles underlying the making of laws would be a good thing in a judge?"

"Undoubtedly."

"You have never practised In the courts?"

"Oh, yes, but not during the last five years.”

"Were you ever in the superior courts.”

“Yes, I was."

“Do you remember eminent county court judges in this prov ince, men notorious, or 1 win say well known for their great humanity and before whom many of our profession were moved to have their cases tried?"

“No, I know nothing of that."

“Wasn't a fact that they would hardly convict?"

"You may tell me their cases, or their names; I am not going to express an opinion until I hear them. It must be many years ago."

"Did you ever defend a man in the courts?"

"Yes, I have."

"Did you ever have a case before the late Mr. Justice Curran?"

“I wouldn't like to say yes or no to that."

Sympathy Well Known "Well, his particular sympathies were well known in speedy trial and many accused made it a point to get before him."

"That might nave been so."

"Was it well known?"

"How do I know?"

"Did you ever know that on one occasion he said he had had the first truthful policeman before him for three years."

'He might have done."

"You know judges who have a natural temperament for convicting?"

"No, I wouldn't say we have any Judges who would convict except according to the evidence."

"Are there not convicting judges?"

"I would not say that for a moment."

"But you haven't been practising before judges recently?"

"I haven't been in court, but I have been in constant association with the judiciary."

Commissioner Ford: “I am going to assume that In exercising your right to cross-examination your remarks are Intended for me, and through me to the governor-general-in-council. It might be inferred that I might do something else having regard to the questions and answers.

Judicial Temperament Continuing his examination of Mr. Major, Mr. McMurray asked the latter whether a Judge when he went on the bench didn't take with him hia ordinary mentality, heart action attainments, and the other forces which went' to make him what he was.

Mr. Major: "Some Judges have judicial temperaments and others might not possess them.”

Mr. McMurray: "And that would be was you would call a natural bias?"

"Yes.”

"And If you have a wife who talks too much, you would simply try to keep her still?”

"I haven t such a wife." "You are a fortunate , man."

"Your opinion is this that if you have a judge who by natural temperament is what you call unjudicial you would urge that as a ground for removal from the bench?"

"Yes, coupled with his actions on the bench."

"If he does that honestly, but lacks the judicial temperament you would urge that as ground for removal?"

"Not as a single ground. I would urge it as one of a number. The effect of the accumulation of all these complaints Is the ground."

"But standing alone you would not urge it as a ground?"

"No. I don't think I would."

"If the government appointed a judge and he turned out to have an unjudicial temperament, wouldn't the government be reasonably entitled to recall him?"

"I would do what has been done; I would change the law."

"Do you say the judges' judgments and their remarks must be in conformity with the standard set by tne attorney-general?"

"I say nothing of the kind."

To Protect the People "Do you recognize that the judiciary stand. inter alia, between the government and the people?”

"I do."

"To protect the people from actions of the government In various ways?'

"Yes, they interpret the laws for the people."

"Would you go a little further and say that the people must observe the laws and that the attorney-general must observe the laws?"

"Even the judges must observe the laws."

"Why do you say the people must observe the laws?"

"I take it that members of the government and of the judiciary are part of the people."

"You don't suggest the judge's high office does not Include the liberty of criticizing people, giving it the widest scope?"

"Not when it comes to calling the attorney-general a liar."

"If the attorney-general is one of the people, shouldn't he be at liberty to say that?"

"I would say that If I were to do that I should be charged with contempt of court."

"You would say that a judge has not the right to charge any person with lying?"

Might Form Conclusion "He might come to the conclusion from the evidence before him that a witness was not telling the truth. But when It comes to incorporating in this judgment the statement of another man was is not before him and who has no association with the case, and he says this other man is lying, I say he has no right to do that.”

"You say the judge on the bench has not the right to criticize the police and their activities?"

"l do not say he has not the right."

"Then you admit he has the right to criticize the police?"

"Undoubtedly, if the Judge thinks the police have exceeded their authority he should mention it."

"Score the police roundly?"

"He might score the police roundly, and it has been done, but when it comes to constant persistent deliberate scoring, not in one case at intervals of months or years, but week after week, then I say It is not right."

"If the remedy hasn't had Its proper effect, wouldn't it be right to continue it? Supposing the police keep on doing these things?"

"Well, you have to recognize that we have ten trial judges in the province, all of whom take some cases, and I have yet to hear of any of the other nine scoring the actions of the police."

"You have a theory as to comparisons?"

Inference Justified "If one man complains constantly, bitterly and scathingly, when at the same time other men who have before them the same policemen do not complain, some inference is justified.”

“What has judge Stubbs said about policemen other than Taylor, the high authority, eminent authority on evidence, has said about them?”

"He has said their evidence was suspicious and called them 'professional’ witnesses.”

"Are they not professional witnesses?”

“Not more than anyone called and sworn to tell the truth."

"What is a professional witness?"

"I would like to know."

"Perhaps what in common parlance is called a 'spotter.’”

"I don't place the police of this province in that class."

"What are spotters?"

"They are used for certain purposes. I would take their evidence with a great deal of hesitation. It would have to be strongly corroborated.”

Armed for Emergencies "Do you think it is essential that the populace should have respect for the police force, or fear?”

"No, not fear."

"Why do they carry revolvers?"

"They are armed for various emergencies."

"They are not armed in Great Britain?"

"I don’t know that they are armed here in the city during the daytime.”

"Why don't you know?"

"Why should I know?"

"Isn’t the real authority which requires respect the law Itself and not the police and the magistrates and the attorney-general?"

"They are all entitled to respect."

"You admit," Mr. McMurray said, "I think you have already admitted it that there should be no interference with judges."

Mr.'Major: "Yes, certainly, I admit that.”

"How far would you go in that proposition?"

"The judges are placed in a strictly impartial position. They are denied certain rights, for instance, the right to vote. It Is also a customary recognized principle that judges take no part In political controversy.”

"Would you be surprised to know that less than 100 years ago the judges of Canada took a part In constituting the Senate?”

"That may be. but what I say is now a recognized principle."

“So that your criticism of Judge Stubbs may be divided into two classifications, things claimed to be illegal, and others claimed to be violation of tradition but not strictly Illegal?"

"Yes."

"Now to be clear, are you charging Judge Stubbs with having broken a tradition, or is he accused of having done an illegal act?"

Charging Improper Actions "I am charging him with improper actions. For Instance, whether Judge Stubbs or anyone else, makes derogatory remarks on courts of justice, he can be guilty of contempt."

"Do you say that after having considered the matter?"

"I certainly say it.. I would be surprised if it were not so. A judge is not above the law."

"Do you say one judge can commit another for contempt?"

"Yes."

"What authority have you for that statement."

Mr. Major replied he had none and counsel requested him to ascertain it during the noon recess. The witness agreed. The cross-examination then continued.

"There was quite a lot of friction between you and Judge Stubbs?"

"No. there was not."

"Do you read the press? Do you read The Tribune. The Tribune did not hesitate to say the attorney-general acted in a vindictive attitude toward Judge Stubbs?”

"If The Tribune or any other section of the press has accused me of being vindictive toward Judge Stubbs, it is wrong. I am glad you raised this question because It gives me my first chance to explain my relations with Judge Stubbs. I am going to take the opportunity before I get out of the box."

Not Quite Correct Mr. McMurray then turned to the question of surrogate court judges' fees.

"The government cut Judge Stubbs' salary from $2,500 to $1,200, that is his salary as surrogate court judge. That is correct. isn't it?” he asked.

"Not entirely correct."

"I think you told the court you had in mind one surrogate court judge for the whole province and thought of getting it done for $4,500.”

"Yes."

"The government was thinking of economies?"

"Yes."

"But in your economy program you increased the cost of the surrogate court judges by $800?"

"In Winnipeg, yes."

"Why did you do that? I suggest you were prepared to pay $800 more to get rid of Judge Stubbs."

"That is not true."

"Were you satisfied with his work?"

Was Not Satisfied “No, I was not If you Iike I will give you some evidence of Judge Stubbs’ unsatisfactory work.

"Come on along with me for a little while and we will do that later."

Yes, but mind I want this chance later."

Mr. McMurray read from an editorial in The Tribune published last March in which reference was made to the reduction of the Judge Stubb’s surrogate court salary.

"Why did you cut his salary as surrogate court judge 50 percent, and your own only 18 percent?"

"We only equalized the salaries.”

"Isn't it a fact you considered the surrogate court judges glorified civil servants over which you could exercise authority?"

"No, not at all."

"Did you not make your reduction a computation of 18 percent of Judge Stubbs' total salary, provincial and Dominion?"

"We had no authorlty to deal with his salary paid by the Dominion."

"Of course you didn't but you did. And didn't you compute this 18 percent on this basis."

"Any computation made was done by the comptroller-general."

"Oh my, the poor comptroller-general surely has enough trouble.”

Says Statements Conjecture "Are these statements in this "Pure conjecture, written by a political opponent." Tribune editorial correct?"

"Here is an editorial in The Tribune of April 1 last. Written by a responsible editor. Isn't it?"

"I don't know who wrote it. Judge Stubbs may have written it for all I know.. It sounds much Iike language I have previously read."

"You would like to leave that impression wouldn't you?"

"No, I am not trying to leave any impression. This is not a question of impressions, but a question of fact and I have no objection to the fact."

Commissioner Ford: "I take it from the remarks of the witness that if the attorney-general were represented by council he would raise an objection that counsel for the commission has not seen fit to raise. I take It that Mr. Major's view is that these editorials should not be admitted strictly as evidence. But my idea is to admit them as showing the alleged or possible effect of the things complained of.”

Mr. Major: "Personally I have no objection to the editorials. I merely point out that a good many of the statements are the views of a political opponent, and in this respect they should be differentiated from what is fact."

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