November 1, 2002, Books in Canada
The Life of J. L. Cohen
The Osgoode Society for Canadian Legal History
University of Toronto Press
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
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.
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.
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.
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.
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.
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.