Reflections on a Half-Century of Criminal Practice

• Author: Hon. G. Arthur Martin
• Pages: 159-194

Reflections

on a

Half-Century

of

Criminal

Practice

THE

HON.

G.

ARTHUR

MARTIN

1992

I

first

met

Bernard

Cohn

in the

fall

of

1944 when

he

dropped

into

my

office,

at

the

suggestion

of a

mutual

friend,

to

discuss

a

question

of

criminal

law

with

me. We met

again early

in

1945

to

discuss

the

appeal

by

John Shemko

from

his

conviction

in

Windsor

for

murder. Barney,

as he was

known,

had

been

associate

defence

counsel

at the

trial,

and I was

retained

to

argue

the

appeal.

The

Shemko case depended entirely

on

circumstantial evidence

and was

both

fascinating

and

difficult.

The

body

of

Frank Scibor, burned beyond

recognition,

had

been found

in his

automobile

in a

lane leading

from

the

highway

to his

home.

A

second autopsy showed that

the

deceased

had

suf-

fered

violence

to the

head

and

throat.

The

theory

of the

Crown

was

that John Shemko

had

waylaid

the

deceased, struck

him on the

head,

and

throttled him, rendering

him

uncon-

scious,

and

then

had set

fire

to his

automobile.

The

alleged motive

for the

murder

was

that Shemko desired

to

have Scibor's attractive

wife

for

himself.

An

important piece

of

circumstantial evidence

was an

automobile

emergence brake handle that

had

been found near

the

scene

of the

crime.

The

Crown cited

the

evidence

of a

mechanic,

who

identified

the

brake handle

as

the one

that Shemko,

not

long

before

the

murder,

was

allowed

to

take

from

a

scrap

heap

in a

garage,

after

removing

the

handle

from

a

ratchet.

I

spent

a

very interesting

day

with

Cohn

discussing

the

evidence

and the

grounds

of

appeal.

I

remember that

I was

impressed

not

only

by his

ability

as

159

160

G.ARTHURMARTIN

a

defence

counsel

but by his

wisdom

and his

personality.

I

also found that

I

liked

him

immensely

as a

person.

He was a

great humanist,

low

key,

and

free

from

bigotry

or

prejudice.

Before

the

appeal

was

heard,

the

senior

defence

counsel

at the

trial

was

replaced

by

James

Clark,

KG,

a

renowned jury lawyer

who

made

no

claim

either

to

having

a

profound knowledge

of the law or to

being

an

appellate

counsel. Cohn ceased

to be

associated with

the

case.

I

continued

to act as

counsel

for the

appellant

on the

appeal.

The

Court

of

Appeal

for

Ontario

ordered

a new

trial

on the

grounds that inadmissible evidence, prejudicial

to

the

appellant,

had

been wrongly

admitted

at his

trial.

At

the

second trial, Shemko

was

acquitted. Undoubtedly,

a

successful

courtroom demonstration

by Mr.

Clark played

a

role

in

Shemko's acquittal.

The

demonstration,

as

described

to me by Mr.

Clark,

was

that

he

asked

the

investigating

officer

to fit the

brake handle into

the

ratchet

from

which

it was

alleged

that Shemko

had

removed

it. The

officer,

after

a

number

of

attempts,

was

unable

to do so. The

effect

of the

demonstration

was

probably

to

dis-

credit

the

Crown's evidence

about

the

identification

of the

brake handle.

I

have always been opposed

to

courtroom demonstrations,

as

distinct

from

out-of-court experiments, because,

if

unsuccessful,

they

are

devastating.

If

the

defence

is

based

on the

accidental discharge

of a

gun,

the

failure

of the

gun

to

discharge accidentally

in a

courtroom demonstration unduly magni-

fies

that

failure.

If the gun

sometimes discharged accidentally, although

infre-

quently,

as

shown

by an

out-of-court experiment, that might well

be

suffi-

cient

to

create

a

reasonable

doubt

as to the

accused's guilt.

Barney

Cohn

and I

became close

friends

as the

result

of our

association

in the

Shemko case.

We

were subsequently associated

in

many cases and, over

the

year,

we

spent

a

great deal

of

time together both

in

Windsor

and in

Toronto. Cohn

had his

favourite restaurants,

and if you

were

in

Windsor

he

was

sure

to

take

you to one of

them.

He was

also

an

avid sports fan.

He had

been

a

student

in the law

firm

of

Clark, Springsteen

and

McTague.

Charles McTague later became

a

justice

of the

Court

of

Appeal

for

Ontario. Cohn never hurried,

and he was

given

the

nickname

of

"Speedy"

by

Mr.

Clark.

Bernard

Cohn

was a

wonderful

companion.

He had a

profound

knowl-

edge

of

human nature.

He

combined worldliness with compassion

and

understanding.

He

also

had a

great sense

of

humour

and a

fund

of

anecdotes,

REFLECTIONS

ON A

HALF-CENTURY

OF

CRIMINAL

PRACTICE

161

and was a

gifted

raconteur. Furthermore,

he was a

very learned,

careful,

and

wise

defence counsel.

He

would

carefully

study

the

most recent judgments

of

the

courts

in

Canada

and

Great Britain and,

of

course,

the

Journal

of

Criminal

Law,

the

Criminal

Law

Review,

and the

Criminal

Law

Quarterly.

He was a

pro-

fessional

in the

best sense

of

that word.

He

enjoyed debating questions

of

criminal

law

with such legal giants

as

Charles Dubin, Thomas Zuber,

and

John Robinette,

all

good

friends

and

admirers. Bernard Cohn

was a

great

lawyer,

but, even more important,

he was a

great human being.

Social

Change

and Its

Effect

on the

Legal Profession

Almost

fifty-four

years have passed since

I was

called

to the bar of the

province

of

Ontario

in

June 1938.

As I

recollect,

my

call

to the bar had an

inauspicious

beginning.

The

chairman

of the

Legal

Education Committee,

in

reading

out

the

names

of

those

to be

called

to the

bar, overlooked

my

name. However,

the

omission

was

rectified

and I was

duly,

if

belatedly, called

to the

bar.

The

ensuing half-century

has

been

a

period

of

profound social change,

rapidly accelerating

in the

latter

part

of

that

period.

This

social change

is

reflected

in

marked changes

in the

legal

profession.

In

1938 Osgoode Hall

Law

School

was the

only

law

school

in

Ontario.

The bar was

much smaller

then than

it is now and

comprised some 3,000 lawyers.

At the

present time,

it

is

composed

of

almost 24,000 lawyers,

of

whom some 5,500

are

women.

In

1938,

106

candidates were called

to the

bar, only

one of

whom

was a

woman.

In

1992, women constituted about

43 per

cent

of the

candidates

for

admis-

sion

to the

bar.

In

1938,

the

Supreme

Court

of

Canada,

the

Supreme

Court

of

Ontario,

and the

county

or

district courts

in

Ontario

had no

women judges. There

were

no

women

law

teachers. Indeed, women

did not

become eligible

to

serve

as

jurors

in

this province until many years later.

The

deplorable situation

of

women being

insufficiently

represented

in the

administration

of

justice

is

being

corrected with

the

entry

of

many more women into

the

legal

profes-

sion, their appointment

as law

teachers, their election

to

governing bodies

of

the

legal profession,

and

their appointment

to the

judiciary.

The

organizational

complexity

of

modern

society

and the

Canadian

Charter

of

Rights

and

Freedoms

have generally expanded

the

role

of the

lawyer

in

today's society. Courses

are

given

in law

schools today

in

branches

of the