As Ontario’s chief justice considers the future of an already overburdened court system further complicated by delays imposed by a health pandemic, his thoughts sometimes turn to a simpler time when justice was swift and efficient.
For the past 20 years, George Strathy has been spending his free time exploring the early years of the Canadian justice system and how it unfolded in Barrie courtrooms when, in the span of just a year, the killer of his great grandfather had a three-day trial including 20 witnesses, an appeal and a second trial.
“It would be extraordinary to see a modern homicide case resolved in a year and the trial itself would take six months or more,” observes Strathy.
In 1896, Barrie banker Jack Strathy answered the door of his home called Ovenden in what is now Barrie’s east end to a clearly upset and “insanely jealous” husband desperately in search of his wife and children.
There was an altercation and the banker was shot in the heart. The killer, Michael Brennan, then went down to see Sheriff Drury and confessed. Less than two months later, the shooter stood trial for murder.
Strathy started looking at old newspaper clippings his family had kept and then dug through the Simcoe County archives back when he was practising law as a civil litigator in Toronto. And even after becoming a judge he kept digging, finding more material in the provincial and federal archives with details of the widely publicized trial.
As the province’s head judge, he is, this week, observing in a leadership role the reopening of Ontario’s courthouses and in-person hearings.
Strathy, 72, is struck by the fairness of the 19th-century justice system and the trial which led to the conviction of his forefather’s killer concluding with a sentence that he be hanged, which was successfully challenged by the community and commuted to a life sentence six days before the hanging was to take place.
“It’s interesting to me as a lawyer and a judge,” says Strathy, adding that although the criminal justice system was vastly different all those years ago, there are some similarities.
Now, 125 years later, fair justice continues to be a focal point. The Supreme Court of Canada determined four years ago in the Jordan ruling that a criminal case must reach trial within 30 months or face the possibility of being tossed out of court.
And although there is an allowance for exceptional circumstances, an even larger backlog created by the current pandemic is leaving criminal defence lawyers to speculate about how all those cases will be handled.
“There’s a resources problem, with trials lasting as long as they do,” says Strathy. “One of the things that comes to mind is technology. Obviously we’re relying on technology a lot more in COVID. It’s commonplace.
“Even now jurors are saying to us: ‘Do you really need all this paper? Can you put it up on a screen for us.’ I think the truth is we have to find ways of making our courts, of making our trials process more efficient with the technology and making it easier for people to follow the evidence, reducing the amount of paper in the courtroom, finding ways in appropriate cases to do things remotely.”
A century and a quarter ago, however, murders were a rarity. Jack Strathy’s killing, his great grandson points out, was front-page news and even made headlines in The New York Times and the Toronto newspapers.
And typical of crimes, even today, Strathy’s research unearthed more details about the killer than the victim.
Brennan was a troubled man whose lawyer advanced the insanity defence, although it was not accepted by the jury. And Strathy was able to gain a lot of understanding of what happened on the day of the killing and the previous day.
“I’ve often thought the irony of the whole thing was that I know a lot more about Michael Brennan than I really do about my own great grandfather. It’s not an unusual complaint about the justice system these days, that we know more about the perpetrator of a crime than we do the victim of a crime,” says Strathy.
The killer spent the rest of his life in a penitentiary in Kingston where he died seven years later.
Now, instead of putting a ribbon around the whole thing and perhaps sending it all off to a printer, Strathy wants to dig further.
“There’s always stray ends you want to track down,” said the persistent researcher.
There’s the genealogy angle - more about his own family. But that little bit about the killer’s state of mind is suggesting another project: a comparative analysis of the law of insanity in 1895 and and the law of insanity today.
“I’d like to do a little more digging in Barrie itself, some of the personalities and get behind the stories. So I’ve got work to do,” said Strathy. “It will be a retirement project, for sure.”