Justice and John Turner: What Might Have Been

In Elusive Destiny: The Political Vocation of John Napier Turner, Carleton University historian Paul Litt has written a sympathetic and interesting account of one of Canada’s most gifted political figures. Litt leaves the reader wondering what Canadians missed out on by not having John Turner as Prime Minister for an extended time. Those interested can delve into this book.

Turner did serve as Justice Minister for almost four years (July 1968 – January 1972). He was an activist, reformist and progressive Justice Minister but he also served as Attorney General during the invocation of the War Measures Act during the October Crisis in 1970. We have records of Turner’s actions as Justice Minister but Solicitor-Client Privilege shields the advice that he gave Trudeau and the Cabinet regarding the October Crisis. That is unfortunate and serves no good purpose, 40 years after the fact.

Litt makes a strong case for Turner as possibly Canada’s best ever Justice Minister. A look at the list and the brief tenures of many Justice Ministers since Confederation shows that there is something to Litt’s claim. Turner pursued liberal bail reforms and expropriation reforms. He created the Federal Court. He reformed judicial appointments. He established a Legal Research and Planning section of the Department of Justice. He convened his own justice thinkers conference at Montebello which included Dean of McGill Law Maxwell Cohen, future Supreme Court justices Gerard Le Dain and Gerard La Forest, F.R. Scott and Harvard Law Professor Alan Dershowitz. He created the Canadian Judicial Council and the Law Reform Commission of Canada (pp. 109-19).

Like the brother of his acquaintance Bobby Kennedy, Turner surrounded himself with the best and the brightest. He hired Jerry Grafstein and a hippyish Irwin Cotler fresh out of a grad school who apparently freaked people out with “his long hair and granny glasses” (p. 115).

I was particularly drawn into Litt’s account of Turner’s attempts to strengthen legal aid. Turner examined the possibility of creating a national legal aid system. According to Litt: “In March 1970 [Turner] announced that he would be negotiating with the provincial attorneys general the establishment of a coast-to-coast federally funded legal aid system that would cover both civil and criminal cases. His plan was modelled on medicare, with federal money to be provided to the provinces if they met certain standards. He won the Canadian Bar Association’s endorsement for it that September.” (p. 112).

What happened next is both tragic and predictable. The provinces balked, on the grounds of cost and jurisdiction. Turner kept trying. He mooted the possibility of inserting a right to counsel into the charter of rights that was under consideration at the time but again the provinces opposed him. He thought about proceeding unilaterally by amending the Criminal Code – imagine the provinces response to that! In the end, Turner maintained the hope that comprehensive coverage could be achieved through fed-prov negotiation (p. 113).

The discussions that Turner initiated 40 years ago continue but we appear no closer to achieving any agreement on a national legal aid programme, let alone on increased federal participation in provincial programs. In 2011, I am sure that many of the provinces regret the obstinacy of their predecessors.

One wonders what might have been if Turner had pushed harder and had decided to proceed unilaterally if the provinces would not come to an agreement.

We can only speculate. Instead, we are left with the realization that the most political energy that was expended on the legal aid was spent four decades ago. Elusive Destiny could well refer to this file as well.