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Friday, November 1, 2002

IN TROUBLE WITH THE LAW J. L. Cohen

November 1, 2002, Books in Canada

Renegade Lawyer:
The Life of J. L. Cohen
The Osgoode Society for Canadian Legal History
University of Toronto Press
ISBN: 0802035132

J. L. Cohen was one of the most prominent labour lawyers in Canada before the present regime of collective bargaining was established in the middle of the last century. He played an important role in establishing that regime, working with both the Ontario and Dominion governments. He also acted for a number of Communists in trouble with the law. The eminent career he built on exceptional hard work and intelligence ended with his conviction for the assault of his 22 year old occasional lover and secretary in 1945 and subsequent disbarment. He died in 1950 only a few months after his reinstatement. Laurel Sefton MacDowell speculates he committed suicide.

Cohen’s is a poignant story and a significant public life. The personal sources for his life are limited until the crisis at the end, for which MacDowell gives us more than we need from the transcripts of the proceedings against him. A workaholic, Cohen had for years relied on a combination of poorly understood prescription drugs and alcohol to keep him going.

We cannot now know Cohen. The death of his father when he was 13, leaving him to support his mother and five other children, no doubt shaped him. But invoking feminist theories of masculinity, a presumption of general Anti-Semitism and political prejudice is no help in understanding the man or his career.

It is Cohen’s public life that must be of lasting interest. Today labour law is a specialty sharply divided between union work and management work. Lawyers choose to go into it on one side or the other as they start out. Cohen seems simply to have taken what work he could get. Actually born in England in 1897 to immigrants from Lithuania, Cohen grew up in the garment district of Toronto. He found himself acting for both employers and employees in the garment industry. Some union activists were Communists whose demonstrations had them in continual conflict with the police. Cohen acted for them. MacDowell wonders why he never joined the Communist Party of Canada. Perhaps the answer is simply that he was never a communist. No doubt he was sincerely sympathetic to the CCF. He hoped to run for parliament as a CCF candidate in Windsor in 1945. His candidacy foundered on the reluctance of the CCF to accept a candidate with Communist support when the Party, under its latest directives from Moscow, was making common cause with the Liberals in the face of the rising CCF.

And no doubt Cohen sincerely believed in the collective bargaining regime modelled on the American Wagner Act that he advocated on behalf of unions. But what came first for Cohen was the work, for which he seems almost always to have been fully paid. He made for himself and his family a good life. He had little time for politics or society except as it related to his work.

Until 1934 Cohen acted for both employers and employees and was a director and shareholder of several companies. He arranged police protection for strikebreakers with Police Chief Draper, who had led the long running battle with Cohen’s Communist clients.

MacDowell speaks of Cohen bringing “his practice into line with his social outlook” and an “inherent conflict of interest in acting for both management and employees...”. But there is no inherent conflict. Paradoxically, while labour management relations have become more pragmatic and even businesslike under the regime that Cohen pioneered, labour has felt it necessary to construct a moral divide across which no bosses’ lawyer could be trusted to represent workers and any union lawyer who represented a boss would be a traitor.

Renegade Lawyer is published by the Osgoode Society for Canadian Legal History, but there is little law in it. Cohen had mixed success for his Communist clients, partly because they rather wanted to go to gaol for propaganda purposes. He declined to act for Tim Buck when the Communist Party of Canada was outlawed fearing Buck “wanted a show trial to propagandise the Communist Party of Canada’s aims, not a simple legal defence to gain the release of the accused.”. MacDowell seems not to have read the reasons for judgment in a single case in which Cohen appeared, preferring to insinuate judicial bias rather than to analyse legal reasoning. If Cohen’s civil liberties work had any effect on the law it does not appear from this book. Cohen’s dedicated advocacy bespeaks a faith in the law and the courts his biographer obscures.

The daughter of a distinguished union organiser and official and former wife of an Ontario Labour Relations Board chairman and affiliated with the Centre for Industrial Relations at the University of Toronto. MacDowell is steeped in labour history and industrial relations ideology. She does not feel it necessary to explain the significance of the struggles in which Cohen represented unions. Unions had a long history in Canada before Cohen came on the scene. The procedures of labour relations boards, certification, collective agreements, grievance and arbitration, the sidelining of courts, in the establishment of which Cohen played an important role, were major breakthroughs for unions but not the only possible outcome. It remains basically a North American model classically entrenched in Canada and more fragile in the United States. A large constituency of industrial relations academics, labour lawyers, law professors, arbitrators, human resources professionals and union officials have decided it is for the best and argue only over details, either pleasing to unions or not.

Stepping back in an epilogue to assess the importance of Cohen’s public life MacDowell sees nothing to consider but the arguments of Marxist academics for whom collective bargaining is a detour from the path of revolution. Their worst offence is to sound some times like right wing critics of unions.

MacDowell entertains suspicions of a political conspiracy behind Cohen’s conviction for assault and prejudice in the benchers of the Law Society in his disbarment. But her account makes the simplest explanation the most likely. He was guilty of assault causing bodily harm and his reformatory sentence and disbarment followed inevitably from that.

Cohen was by all accounts an abrasive personality. Many eminent lawyers have been difficult, flawed personalities. He did important work. But his work was finished. He would have been out of place in the conformist world of labour relations he helped establish.