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Friday, March 1, 1996

PUBLIC DEFENDER Arthur Maloney


March 1, 1996, The Literary Review of Canada

The Life and Times of Arthur Maloney:
The Last of the Tribunes
Charles Pullen
The Osgoode Society for Canadian Legal History

Arthur Maloney was a famous criminal lawyer. In the O. J. Simpson trial a squad of famous criminal lawyers got their client an acquittal before a mass audience still largely convinced he is guilty. In the Paul Bernardo trial John Rosen became a famous criminal lawyer in the unsuccessful defence of a client whose guilt was never really in doubt. The importance of top lawyers needs critical assessment. Despite the opportunity offered by its subject this interesting book fails to provide it.

Arthur Maloney came from Renfrew County west of Ottawa. His father was a doctor and a Conservative M.P. from 1925 to 1935. After an undistinguished but agreeable time at the University of Toronto he began training as a lawyer under the old regime, mixing work in a law office with lectures at Osgoode Hall. As he was working on the side and no great scholar he had to pull strings to get called to the bar in 1943.

Fame came in 1952 when a chance elevator encounter with Chief Justice James McCruer led to his court appointment as counsel for Leonard Jackson, who with his fellow member of the bank robbing, gaol breaking Boyd gang, Steve Suchan, was charged with the murder of a police sergeant.  J. J. Robinette, already famous for his successful appeal and second trial in the Evelyn Dick case, defended Suchan. Both Jackson and Suchan were convicted and hanged. By Pullen’s account both murder convictions may have resulted from Maloney’s failure to dissuade Jackson from taking the stand in his own defence, a mistake attributable to his lacking the confidence and authority that comes with experience. The case received coverage in the relatively primitive provincial media of the early fifties comparable to the Bernardo case. There was never any doubt that Suchan shot Sergeant Tong. Maloney’s failure to save his client from the gallows was not held against him by anyone, not even his client. He was able to play the role to everyone’s satisfaction and his public reputation was established.

Maloney had a melodramatic and rhetorical sense of himself and his role as counsel. While a student he developed an interest in drama and opera. He debated and made recruiting speeches, though respiratory weaknesses kept him out of the war. He did radio commentary for Sunday masses at St. Michael’s Cathedral in Toronto. He was a great admirer of Churchill and managed to get in to a wartime press conference as a stringer for the Eganville Leader, by his account asking him a question. He had an egocentric gregariousness and from his first years in practice was the centre of a circle who drank after work at the Metropole Hotel, occasionally joined by police officers, and handy to the newspapers offices, with whose reporters he early established good relations. A long line of spirited students and juniors passed through his office and often on to distinguished careers in the law and beyond. Ontario Associate Chief Justice Patrick Lesage, who presided at the Bernardo trial, is one several times quoted in this book. Charles Pullen, Emeritus Professor of English at Queen’s University, is another.

Much of the book is based on fond recollection. Maloney was almost as celebrated as a popular fellow as for his legal or political careers. The cover photograph of Maloney smiling behind a raised glass is the image the book supports. But there is another view of him, as Pullen admits at the outset:
There is an accumulation of public, desultory memory of Maloney that is not flattering. From the beginning of this project, there has been some eye-shifting dubiety about the man. Indeed, within the Osgoode Society, and certainly within the legal profession, there are those who have a jaundiced view of him. Much of this opinion is confused, as well as vague, depending upon dim memories of newspaper reports and unsolicited word-of-mouth derision. Most of these people are innocent, unbiased spectators of the public scene who had heard enough about Maloney to presume to dislike him without much personal knowledge of the man.
None of this appears in the rest of the book. Through the warm glow of Pullen’s prose it is only possible to surmise that some who were not part of his circle may have grown weary of hearing what a great lawyer and a great fellow he was. The opportunity is passed up to try to assess just how good a lawyer Maloney was and what it would mean to the administration of justice if outstanding talent made a lot of difference to who was convicted of what and what such talent means if it does not. We do not see what drove him to make himself so popular and why with many people he failed.

Maloney was a great drinker:
...Arthur had a taste for drinking long into the night, even if he had started in the early afternoon....The later it got, as is the way of the world of alcoholic excess, the more questionable the company would become, as his legal associates withdrew, slipping away one by one....Many of his bar acquaintances were simply not fit company for a man in his position. When he was a young criminal lawyer, much of his social life in close connection with the sub-fusc [sic] side of the city was just barely acceptable, sustained by the public’s romantic ideas of how a criminal “mouthpiece” would comport himself....[Former Maloney student and eminent criminal counsel Clive] Bynoe, who had close connections with the police department..., had an arrangement with some senior detectives to keep an eye on Arthur as he roamed the clubs late at night.
Such loyalty is impressive. He was evidently not an ugly drunk. He was surely at times a boring or embarrassing drunk.

Pullen reviews in detail a few of Maloney’s cases, quoting from transcripts. The cross-examinations are skilful, but despite Pullen’s claims, unremarkable. Two jury addresses are reproduced as appendices. So far as one can judge them in cold print they are excellent. But there were and are plenty of lawyers as capable as Maloney appears from the evidence of this book. Maloney lost most of his cases as most criminal defence lawyers always have. Many cases are lost despite the most skilful defence. Many defendants are acquitted after an only a just competent defence. This is as it should be. Otherwise acquittals would depend on who could afford the best counsel or which defendants appealed most to the best counsels’ dramatic sense of themselves. The eminence of counsel depends more on their ability to impress clients and colleagues and their ability to get and get through a lot of work, than on the results they achieve. Lawyers themselves, as it sustains the prestige of the profession and provides occasion for fond and gregarious reminiscence, encourage a cult of the great advocate. The popular press to some extent supports it. Some scepticism is indicated and legal history should inform it.

Maloney’s public career outside the law was largely fruitless. He was lucky enough to be appointed at age 28 to the Ontario Parole Board, but resigned after three months earning his first significant publicity. He argued that the board was too rigorous in considering prisoners’ records and should have dealt with them on a case by case basis. He seems never to have had the patience to work with others and bring them around to his views.

In the 1957 and 1958 he was elected the Progressive Conservative M. P. for the Toronto riding of Parkdale. He was defeated when the Tories collapsed in Toronto in 1962. He was a natural candidate, bringing name recognition, gregariousness and a readiness to make a rousing speech when that still counted for something. But his years in Ottawa seem largely to have been wasted. He was bored, found new watering holes in Ottawa and kept up a criminal practice. Apart from a predictably impassioned speech on capital punishment, he seems not to have interested himself in the work of parliament. Pullen devotes most of his chapters on this period to speculation as to whether he might have been made a minister and why he was not. It is perfectly possible that his support for Donald Fleming in the 1956 Progressive Conservative leadership convention or his drinking were factors. But in the end no definite explanation is needed. He was not so obvious a candidate for minister as Pullen supposes and there were more than enough Toronto ministrables ahead of him.

In 1966 Maloney was persuaded to run for the presidency of the national Progressive Conservative party in opposition to Dalton Camp, whose campaign to end Diefenbaker’s leadership was proceeding to its climax. It was a quixotic gesture. Maloney had never really been a Diefenbaker man. Dief’s dramatic style and high estimation of himself as a tribune of the people appealed to Maloney but they had never been close. While Maloney had continued to attend party meetings he had never held office in the party and knew nothing about political organisation. He simply lent his name to the battle to save Dief. His campaign was poorly organised, but that probably made no difference. The real question was whether Dief should go. Maloney got 43% of the votes at the party general meeting.

Maloney’s last and most notorious entry into public life was as Ontario’s first Ombudsman in 1975. It can be seen as his finest or worst hour. Pullen tries to come down somewhere in the middle. The office itself is something of an absurdity, a political fifth wheel, adopted on the basis of the once widely held belief that they do things better in Sweden. The office has no power beyond investigating and reporting. It is supposed to be a last resort for citizens who feel that they have been abused by government. Maloney, with an unqualified confidence in the goodness of his heart and ample confidence in the sharpness of his mind, wanted to establish himself as a one man alternative government. He personally stage managed an elaborate installation ceremony, insisted on handsome offices and with much publicity and to some mockery adopted a gryphon crest for the office. He quickly hired a large staff, largely young men from his circle. Pullen defends him against the charge of personal extravagance. The furniture in his own office was chosen and paid for by his wife. But Maloney’s defence against the charge of folie de grandeur, that as a matter of principle it was necessary to establish the presence and prestige of the office in order to serve its public clients, was unpersuasive.

The overwhelming majority of the Ombudsman’s clients fall into three groups: people who cannot be bothered to figure out what government office to turn to and need a citizens’ information office to steer them modestly and politely elsewhere; people who have existing rights of appeal that they are too impatient to exhaust; and people who just will not take no for an answer however fairly and patiently their complaint may have been reviewed by the responsible authorities. Maloney wanted to take on everyone, waiving the statutory requirement of a written complaint and keeping phones manned to late at night to capture the maximum business. In his first annual report he recorded 10,000 complaints, of which 90% were outside his jurisdiction.

One issue dominated Maloney’s three years as Ombudsman. The provincial government had purchased lands around Pickering for a proposed new airport. The sellers felt that the province’s land agents had misled them and driven too hard a bargain. After an informal investigation Maloney agreed and recommended substantial further payments. The government balked at the prospect of having to pay out possibly tens of millions of dollars on the mere recommendation of Maloney and the issue became bogged down in further more formal inquiries and court proceedings before much of what Maloney recommended was done years later. It was never clear why, except for political reasons, the landowners deserved any redress. If there had been any legal wrong in the purchases they should have challenged them in the courts. A challenge to the purchases on broader, political, grounds was bound to involve a lengthy battle. Maloney was instrumental in supporting the landowners’ fight. But any idea that he could offer them a quick and simple solution was folly and his attempt to do so complicated and exacerbated the conflict.

Frustrated and tiring at the mass of mundane complaints Maloney resigned in 1978. He had managed to alienate members of the legislature’s committee on the Ombudsman of all parties, a perverse situation given that it is part of the the theory of the Ombudsman that he is the servant of the legislature. The office has continued, his successors little heard of, wasting several million dollars a year. Troubled by ill health in his last years, Maloney died in 1984 aged 65.

All of Maloney’s public career can be seen as an extension of his sense of vocation as a people’s advocate. He saw himself as a tribune of the people, hence Pullen’s subtitle. Most of his career as a criminal lawyer was before legal aid and he often took cases for nominal fees or none. Trials were much shorter then. Pullen gives some information on Maloney’s finances. His wife had money. His income ranged from under $10,000 a year in the fifties to six figures in the seventies. How this happened and how much was due to legal aid he does not explain.

Maloney defended the criminal defence lawyer’s role in conventional terms carried to the extreme: it was a privilege to gain acquittals for men he knew were guilty. He may have seen Jackson and Suchan as “feckless rogues” (Pullen’s phrase), particularly in the perspective of their poignant last days. They faced long years in prison if they had been acquitted of murder. But Maloney’s sentimental attitude to criminals evades the seriousness of public concern with crime. His practice seems a long way from the world of protracted trials, complex frauds and plea bargaining, a subject not touched on. One wonders how he might have handled the Bernardo defence and what sympathy he could have found for him. John Rosen’s efforts to arouse some sympathy for his client, “None of us are perfect.”, seemed laughable. His pronouncement in the face of legal aid cuts that “None of us work for nothing.” was not true in Maloney’s heyday.

Maloney appeared before the Supreme Court of Canada on the appeal of William Coffin, convicted of and later hanged for the murder of three American hunters in the GaspĂ© in 1955. He also appeared before a Royal Commission into the conviction in 1964. He believed Coffin had committed the murders. But he believed the proceedings leading to his conviction had been marked by unfairness. This is a perfectly reasonable and proper position. Whatever the rules of fairness may be they must be observed for everyone. The question that Maloney’s stance as tribune cannot answer is how far fairness must go. Criminal proceedings are not a game of cops and robbers. The only assurance of no wrong convictions is no prosecutions. Discussion of accuseds’ or suspects’ rights, even more with the Charter, becomes an abstract appeal to vaguely revered principles. Getting off on a technicality may result. The public cannot expect to be satisfied with the advocate’s claim of the privilege to achieve that result.

Pullen’s book meanders back and forth through time, giving perhaps too much family history and reminiscence of other legal stars of years past. It is often too literary and simply too long. It can be read with interest by those close enough to the law to read it critically and is a fond memorial to the man. Legal biography must play an important part in legal history. Some of the Osgoode Society’s initiatives in this have been successful: David Ricardo Williams on Duff; Patrick Boyer on McCruer. This is its first biography of a counsel. Its next legal biographies will be studies by Williams of seven eminent counsel. Biography of counsel is perhaps a more difficult undertaking than that of judges when what made counsel eminent was an often ephemeral celebrity. It is difficult to revive the interest of long forgotten trials and their interest is is usually more in the accused or the victims than in the counsel, however capable or flamboyant. But the effort, not entirely successful in this case, must be made if we are to have critical understanding of the law and its processes and keep alive the past beyond sentimental memory.