The First Juvenile Court Judge: The Honourable Thomas Mayne Daly KC
MHS Transactions, Series 3, Number 34, 1977-78 season
On May 21, 1908, a bill that was designed to give a new deal to children who stray onto the wrong side of the law was given second reading in the Canadian Senate. It proposed to establish a separate jurisdiction for alleged young offenders to remove them from the general criminal jurisdiction and to deal with them on a basis which took into account the diminished sense of responsibility which goes with lack of years and experience. Its keynote was the rehabilitation, rather than the punishment, of young offenders. It was to direct its attention not to doing something to a child because of what he has done, but to doing something for a child because of what he is and needs. The object of the juvenile justice system is to make a juvenile's first unlawful act his last. 
This is not to suggest that the bill before the Senate provided machinery designed to keep a juvenile from making his first misstep. To achieve that purpose it would have been necessary to raise the general level of society - to stamp out poverty, ill health (both mental and physical), drunkenness, unemployment, and other attendant social ills. This is, of course, a tall order and its accomplishment is still far off; but certainly it is not as far off as it was in 1908.
This epoch-making bill was introduced by Senator Beique, a Montreal lawyer. Speaking in support of his bill, the Senator explained that the principle of the bill was embodied in its preamble which reads: "it is expedient that youthful offenders should not be classed or dealt with as ordinary criminals, the welfare of the community demanding that they should on the contrary be guarded against association with crime and criminals, and should be subjected to such wise care, treatment and control as will tend to check their evil tendencies and to strengthen their better instincts." "The measure," he said, "is intended to apply and extend the principle of the probation of offenders, as it was enacted in England as early as 1807."
"It is unquestionable," he continued, "that the principle of the probation officer or of the probation law, as applied in England many years ago, as applied in this country many years ago also, and especially the principle of probation officers, persons whose duty it will be to take care of these children, to follow them, to ascertain as to whether they attend school, whether they associate with persons of bad character or not, and adopting means of protecting them throughout their younger years, that a law of that kind cannot fail to have very beneficial results." 
Senator Coffey, a publisher in London, Ontario, gave eloquent support to the bill. "It pleases me beyond measure," he said, "to note the warmth with which this movement to reclaim the wayward youth of our country has been received in every part of the Dominion." 
He had some wise words to say on two important aspects of the proposed legislation. First, he urged strongly that juvenile courts should not be under the same roof as ordinary adult courts. "Call it by what name you will," he said, "the Children's Court, to the wayward boy, remains the police court so long as the same roof covers both." And second, he urged that juvenile courts be staffed by specially selected judges. "Nor is it advisable," he contended, with old-fashioned eloquence, "that the police magistrate should in all cases be empowered to adjudicate the crimes charged to the young. While some of these men are by nature and acquirements well equipped for work of this character it is nevertheless a fact that many are quite unfit for the handling of cases of criminality amongst the young. They have pinned their faith to methods of the harsh order. To them kindness is almost an unknown quality ... In the appointment of juvenile court judges, ... it were difficult to undervalue the importance of keeping out of mind all considerations save those of entire fitness for the position. No matter what standing the applicant may hold in the community no matter how persistently and how ardently his friends may sue for his appointment as juvenile court judge, it were but a crime to fill out a parchment for him unless he possessed a well balanced mind and a warm, sympathetic nature - firm where needs be, but ever recognizing in the little waif before him a child of nature who has wandered from the path of rectitude but who should be directed homeward to the ideal once again." 
In supporting the bill, Senator James Lougheed drew attention to the melancholy fact that Canada was not in the vanguard of juvenile law reform: "I say advisedly that the people of Canada are behind other progressive nations in their legislation upon this particular question. The people of the United States are very much in advance of this country in dealing with juvenile criminal legislation, and the same remark applies to England, France, Germany and other European states, which have shown very much more progressive thought in this direction than we in Canada have done." 
Perhaps his explanation of why Canada lagged behind other countries is the true one. "We seem to be so immersed," he claimed, "so absorbed in the material development of our country, in the developing of our resources, in the building of our railways, in the conduct of party strife, that we are very apt to overlook entirely the moral obligations which fall upon us as a government and its administrators." 
Senator Kerr struck a sound note in his support of the bill. "There is this to be said about the matter," he stated, "there are always in a community like ours many who are adverse to what you may call radical changes in the way of removing or relieving from the consequences of their faults those who are guilty of crime, and who fail to see that there is a different method of treatment to be measured out to the young offender, whose misfortune has been that he has been brought up in an environment not the best, in a home more or less surrounded by crime or immorality, or perhaps has no home at all." 
Senator Beique's bill was finally passed in the Senate in June, 1908, and was sent to the House of Commons.
In the Commons, it was sponsored by A. B. Aylesworth, Minister of Justice in the administration of Sir Wilfrid Laurier. "The general effect of this Bill," he explained, "is intended to obviate the necessity for children, when accused of crime, being tried before the ordinary tribunals." 
The bill met with no serious opposition in the Commons. On July 8, 1908, it was reported, read for the third time, and passed. It was assented to on July 20, and went on the statute books as The Juvenile Delinquents Act, 1908.
The Juvenile Delinquents Act provides that no juvenile may be convicted of a crime, but must be found to be in a state of delinquency, and having been so found, shall be dealt with as "a misdirected and misguided child, and one needing aid, encouragement, help and assistance."  If it has not always been the open gateway for a new deal of children, a rainbow of hope to the young who break the law, it can be confidently affirmed that it did bring about a great improvement in the law.
The Act provided that it might not be put into force in any province, or in any portion of a province, except after the passing of a provincial law establishing a Juvenile Court.  In line with this provision, Manitoba took the first steps to bring the new law into operation. The act was brought into force in the City of Winnipeg on January 22, 1909. 
Thomas Mayne Daly, police magistrate in Winnipeg, was appointed the first Juvenile Court Judge in Canada. There could not have been a better choice. To borrow Senator Coffey's words, Daly was a man who possessed "a well balanced mind, and a warm, sympathetic nature." His philosophy was consistent with the specific goals of the juvenile justice system.
In dealing with Daly's life and career, I have no desire to make him out to be a plaster saint. But on the other hand, although I hope my critical faculty shall not be slumbering, I shall not put the emphasis on his faults and mistakes. That he had faults, that he did make mistakes, is not to be doubted. Was he not a practical politician in a robust political age? Was he not a very human, human being? There is a suggestive sentence in G. F. Barker's book, Brandon - A City, 1881-1961 which reads in part: "Then opponents of Dominion Conservative policies decided that Manitobans were 'willing to remain serfs' when a man like Brandon's T. Mayne Daly was re-elected by 'tactics pretty well known." 
Thomas Mayne Daly was born in Stratford, Canada West, on August 16, 1852, the son of Thomas Mayne Daly and Helen McLaren (Ferguson) Daly. His paternal grandfather, J. C. W. Daly, had been the first Mayor of Stratford. His father, a contractor doing well in business, was also Mayor of Stratford, and, in the course of a distinguished political career, a member of the Legislative Assembly of the Province of Canada, and a member of the Canadian House of Commons.
Daly was educated at local schools in Stratford, and at Upper Canada College, Toronto. He read law in the office of Timothy Blair Pardee, of Sarnia, and was called to the Bar of Upper Canada, in Michaelmas term, on November 21, 1876. He practised law in Stratford from 1876 until 1881. In 1880, he made his first foray into politics, winning a seat on the Town Council of Stratford.
In 1881, he was seized with an attack of wanderlust. Distant places were calling and he answered the call. His plans were uncertain. In St. Paul, Minnesota, he met James J. Hill, the railway and transportation magnate, who had been born in a log cabin, seven miles east of Guelph, Ontario. Hill advised him to seek his future in Winnipeg. He travelled to Winnipeg but did not rest there. He went 140 miles further west, to Brandon, travelling up the Assiniboine River by flatboat. He arrived in Brandon, then a tent town on the Canadian Pacific Railway, on July 18, 1881. His intention was to hang out his shingle as a lawyer. But he ran into a snag. He could not get called to the Bar of Manitoba without serving a period of articles. He articled to Arthur Wellington Ross, a senior member of the firm of Ross, Killam and Haggart. He was admitted as a solicitor on 8 June 1882; and on 14 February 1884, sponsored by A. C. Killam, later a Queen's Bench Judge, he was called to the Bar. This hurdle passed, he formed a partnership in Brandon with George R. Caldwell, who later held cabinet rank in the government of Sir Rodmond P. Roblin. Times were free and easy in Brandon and there was not a great deal of legal work. Daly kept himself busy as a promoter and real estate broker.
In 1925, an old-timer of Brandon, Beecham Trotter, published a book, in which he wrote: "One doubts whether there ever was a new-born community in which law and the gospel had so much free course to run and be glorified as Brandon was in the eighteen eighties ... Judge W. A. MacDonald of the Supreme Court of British Columbia, has named for me seven lawyers whose number he completed when he arrived in Brandon on June 16, 1882 ... The senior was Thomas Mayne Daly, Irish, of course, politician, equally of course; and the first mayor of the city ... Mayne Daly was gentlemanly after the old school, a fluent, even an eloquent speaker, liked by everybody."  In the political game, the batting average of the seven Brandon Lawyers of whom Trotter writes - W. A. MacDonald, Daly, George Caldwell, H. E. Henderson, P. C. Henderson, Arthur Sifton and Clifford Sifton - was high. Three of them, Daly and the two Sifton brothers, became Dominion Cabinet Ministers, and Caldwell served in a provincial Cabinet.
A native of Daly's home country, the late R. B. Maclnnes, KC, of Winnipeg, who knew him in the flesh, contributed a fine article on Daly to The Stratford Beacon-Herald of September 15, 1938, in which he quotes from Trotter with approval, and adds this comment of his own on Daly's gifts as a speaker. "It may also be said that the speech was flavoured with that delightful gift of wit which is so natural to those of Irish strain, that he enjoyed jovial companionship and that he possessed the knack of telling an amusing story albeit sometimes rather Rabelaisian, superlatively well."
In 1882, Daly was elected the first mayor of Brandon, then a town of 3,000 people. No salary was attached to this office but, at the end of his term, he was voted an honorarium of $400.00. In 1883, he was defeated in his bid for reelection; but in the next year, he again won election as mayor. At the end of his second term in office, he was voted another honorarium, which he refused, for the bloom had gone off the great western boom and the spectres of poverty and unemployment stalked abroad.
As mayor, Daly, with the help of his council, organized a police force and a fire department, built gravel roads, and wooden sidewalks in the business and principal residential areas of the town and levied the first tax assessment to get the funds to pay for these services.
During his last years in Brandon, Daly lived in a gracious, three-storey, brick home on Eighteenth Street. After his departure, this home became known as the Maples, and was operated as a hostel for neglected children by the Children's Aid Society of Western Manitoba.  Today, thanks to the initiative and hard work of a public-spirited and historically-minded group of Brandon citizens, Daly's old home has been opened to the public as the Daly Home Museum.
Enlisting under the Conservative standard, Daly contested the constituency of Selkirk in the Dominion election of 1887. He carried the day against his Liberal opponent, J. A. Christie. In the federal election of 1891, he defeated Hon. Joseph Martin (Fighting Joe in the literal as well as the figurative sense) by 453 votes.
On October 17, 1892, he became the first federal cabinet minister from Manitoba. On that day, he was sworn in as Minister of the Interior and Superintendent of Indian Affairs in the administration of Sir John Abbott, Canada's third Prime Minister. He succeeded Edgar Dewdney, who resigned from the cabinet to become Lieutenant-Governor of British Columbia.
Abbott resigned as Prime Minister on November 25, 1892. He was followed in office by Sir John Thompson, whom Sir John A. Macdonald considered to be "the greatest discovery of my life." Daly's cabinet rank was confirmed by the new Prime Minister. When Thompson died suddenly in England, on December 14, 1894, while on a visit to be sworn in by Queen Victoria as a member of the Privy Council, he was followed as Prime Minister by Sir Mackenzie Bowell, perhaps the weakest first minister Canada has ever had. Daly kept his cabinet rank in Bowell's government. The ship of state under Bowell entered rough water. Seven of his ministers (Daly was not among them) resigned and he was forced out of office to let Sir Charles Tupper take over the helm.
Daly was not invited into Tupper's cabinet. His portfolio was given to the Old Chieftain's son-Hugh John Macdonald. Disappointed by this turn of events, he refused to be a candidate in the election of 1896.
As a member of Parliament and a Cabinet Minister, Daly led a busy life. In a letter to His Grace, Archbishop Langevin of St. Boniface, (February 26, 1876) he confessed: "I am busily engaged every minute of my time and scarcely am let alone long enough to eat my meals." 
He also led a useful life. He travelled thousands of miles in search of first hand information, visiting homesteaders on their farms and Indians on their reservations. He sought to find settlers who could adjust to existing conditions, to fill up the empty prairies of Western Canada. He sought them in the British Isles and in the over-crowded countries of Europe. Nor did he neglect a most important near-by source of supply. In November, 1895, he announced that in the past three years, 12,000 settlers had come to the Canadian northwest from the United States. 
Daly's personal appearance was impressive. He was a big, burly, good natured man, of great personal charm and warmth, with an erect carriage, a military bearing and a handlebar moustache which would have been a credit to a sergeant-major of a regiment of the line. He had large gifts for being friendly. He never took himself too seriously and always found time to exercise his ever-active sense of humour. He bore a striking resemblance to Paddy Nolan, the colourful criminal lawyer who enlivened the Calgary legal scene for a generation. They were frequently mistaken for each other. "When Daly was Minister of the Interior," as I have written elsewhere,
The most controversial issue that engaged the Parliament of Canada during Daly's tenure as a member of the House of Commons was the Manitoba School question. The British North America Act of 1867 guaranteed separate schools to Ontario and Quebec. Manitoba entered Confederation under the provisions of the Manitoba Act, 1870. The framers of this act did not doubt that it gave the same guarantee of separate schools to the new province as the B.N.A. Act had given to the two older provinces. As the English-speaking population of Manitoba increased by leaps and bounds and the French-speaking population remained static, an uneasy situation began to develop. D'Alton McCarthy, M.P. for Toronto, was given a banquet by the Orange Lodge of Portage la Prairie in August, 1889. At this banquet he made a fiery speech in which he thundered that it was high time for Manitobans to make their province British in fact and in name. Attorney-General Fighting Joe Martin added his voice to McCarthy's. They both advocated the abolition of separate state-supported schools and of the French language as an official language. The seeds they spread fell on fertile ground. In 1890, the Manitoba legislature passed the Public Schools Act, which repealed all existing school legislation and established a system of non-sectarian schools.  The Catholics challenged this Act in the courts but lost the legal battle in the court of last resort. The Privy Council upheld the validity of the Act on grounds that do not make an overwhelming appeal to reason. 
John S. Ewart, the brilliant constitutional lawyer, who had represented the Catholics, continued the fight. Sec. 22(2) of the Manitoba Act declared that an appeal shall lie to the Governor-General in Council from any act of the legislature affecting any right or privilege of a minority in relation to education. Ewart appealed to the Governor-General in Council to disallow the Education Act of 1890. A reference was made to the Supreme Court of Canada. This court ruled that the Governor-General in Council had not power to grant the relief sought by the Catholics. This decision was overruled by the Privy Council which held that the Governor-General in Council did have the power to make remedial orders for the relief of the Roman Catholics of Manitoba.  Ottawa then passed the ball to Manitoba, by issuing an order directing the government of Manitoba to restore to the Catholics the right to have their own separate state-supported school. Speaking for Manitoba, Thomas Greenway, the premier, said nothing doing. The ball was thus back in the Ottawa court. The Prime Minister, Sir Mackenzie Bowell, introduced into the Commons a Remedial Bill to restore separate schools to the Catholics.
Before debate on this bill had finished, Bowell had been replaced in office by Sir Charles Tupper. The strongest opponent of the bill was Sir Wilfrid Laurier, leader of the Liberals in the House of Commons. Laurier rested his case on the ground of provincial rights. So strenuous was the opposition to the Remedial Bill that the government was forced to withdraw it.
On January 21, 1896, Daly made a fighting speech from the floor of the House of Commons in support of Bowell's Remedial Bill. He made clear where he stood in the matter. If justice be the plea, he contended, the road to justice lies ahead-straight ahead. "Now it occurs to me," he said,
For his part in the debate, Daly received a word of appreciation from Archbishop Langevin of Saint Boniface. In thanking him for his letter Daly wrote: "I consider that, in delivering that speech, I was only doing my duty, and speaking in accordance with my honest convictions of what was right, just and constitutional under all the circumstances of that important question. I have met both our good friends, Mr. Ewart and Father Lacombe, since they have arrived in Ottawa, and I am quite certain that, as stated in your letter, these gentlemen are well apprised of the present situation of this question, and the real nature of the claims of the minority." 
A man's personal letters (not his official correspondence) are sometimes a good index to his personality, to the essential hidden quality of his mind. Not many of Daly's personal letters are available. Fortunately there are several in the Archives of the Archbishopric of St. Boniface. These letters give the reader a glimpse of the man who held the pen, as they reveal something of the essence of Daly the man - the man who stood behind Daly the judge.
One letter, written at Ottawa, on June 25, 1894, to Rev. Father Langevin, Bishop's Palace St. Boniface, following the death of that great statesman of the Catholic Church, Archbishop Tache, reads in part:
A second letter, written on March 6, 1895, following Father Langevin's appointment as successor in office to Archbishop Tache, reads in part:
At this same time, several letters passed between Daly and Ewart on the separate schools' question. Because of the light they throw on these two men, and on several of the leading players in the drama, I cite portions of three of these letters. This is Ewart to Daly-the date February 6, 1895:
Here is Daly to Ewart, writing on April 13, 1895:
Finally, this is Ewart to Daly, writing on February 6, 1896, after Daly had spoken in favour of the Remedial Bill:
Sir Charles Tupper was Prime Minister of Canada for only three months in 1896, from the day when he took over from Bowell, until the day his government was defeated at the polls by the Liberals under Laurier. When he did not take Daly into his cabinet, he sent him on a mission to England and glance to reorganize government policy on immigration. While in England Daly was a delegate to the Third Commercial Congress held in London, in 1896.
When he returned home from his travels, he had another attack of wanderlust. Once, in a witty speech at Brandon, Sir John A. Macdonald had said, "I am told that some in this country are not content, but you know, ladies and gentlemen, some of us will not be content in heaven if we hear of a place farther west."  Daly had heard of a place farther west. He answered another summons at his door. In 1896 a rise in the price of silver on the world's market was prompting a mining boom in British Columbia. Daly settled in the mushrooming town of Rossland in that province. "In it's first years," writes Margaret A. Ormsby, "Rossland had as colourful a floating population of Americans, 'Cousin Jacks' (Cornishmen), Irish, Croats and Scandinavians as ever graced the camps of Idaho and Colorado. For these flamboyant and roistering prospectors, claim jumpers and stock-manipulators, Sourdough Alley provided every kind of entertainment: prize fights in theatres; keno tables in gambling-houses; boa-feathered dance-hall girls; bars; and orchestras and bands which played round the clock." 
Daly found himself right at home in this frontier environment. He was called to the bar of British Columbia in 1897. In the same year, he was appointed a police commissioner in Rossland. In this office he set about cleaning up the more unsavoury elements of life as it was lived on Sourdough Alley. But as the years passed, the novelty of a frontier mining town wore thin. He left Rossland, in 1902, to take up residence, and to follow his profession, in Winnipeg. There he established the law firm of Daly, Crichton, McClure and Cohen. He soon built up a flourishing legal practice. He continued active in Conservative political circles. On January 4, 1904, he was appointed Police Magistrate for the City of Winnipeg in succession to G. W. Baker, who had been dismissed from office the previous month. He continued the practice of law while serving as police magistrate.
One case in which he was involved as counsel, a case having political overtones, was a minor cause celebre. In 1906, Premier Scott of Saskatchewan sued J. K. McInnis, proprietor of the Regina Standard, for criminal libel. In an article which had appeared in his paper a the eve of an election in Saskatchewan-an election which was won by the Liberals under Scott's leaderships - McInnis charged that Scott had offered him $10,000, to transfer the allegiance of his paper from the Conservative to the liberal sides. All counsel in the legal battle were from Winnipeg. H. M. Howell KC and N. F. Hagel appeared for Scott; and Daly and F. H. Phippen for McInnis. Scott carried the day. Commenting on the verdict, the Manitoba Free Press said: "It was Mr. Scott's life for the last fifteen years in Regina that really won the case for him; his testimony was backed by a character that had been tested and was known by the community to be sterling." 
In 1908, Daly's political friends persuaded him to resign from the bench to contest Brandon constituency in the Dominion election against Clifford Sifton. Politics were taken seriously in those days and both candidates fought strenuous, no holds barred, campaigns. Sifton won the election, but by a narrow margin. When the votes were tallied he had 3,565 and Daly 3,496. After the election, Daly was reappointed as City Police Court Magistrate.
Let me draw a distinction. Daly was a judge of an inferior court. He was not an inferior judge. Indeed, he was a superior judge, with a superior knowledge of law and a superior judicial instinct. Had things fallen out differently in the political field, he might have graced the bench of a superior court in this province. As an ex-cabinet minister, he had the inside track for such an appointment. There was talk at one stage of member of the Supreme Court of Canada resigning. A.C. Killam was to get his appointment and Daly was to replace Mr. Justice Killam on the Court of Queen's Bench in Manitoba. But things did not work out that way. The Supreme Court Judge decided not to resign. 
In the act of judging, a judge himself is judged. Daly always passed the test. On the bench, he was the soul of modesty, with a modest estimate of his own worth. He did not belong to the tribe against which Samuel Butler took satirical aim:
He was kind, but not soft-hearted. He could hand out severe sentences but in doing so he was directly in step with his times, when severe sentences were regarded much more highly than they are today, except by those few who still think Queen Victoria is on the throne. He never overlooked the obligation that a judge owes to fairness and justice. He was sympathetic with those who had been dealt poor hands in life; he was understanding to those who made their first misstep; he was impatient with those who kept stumbling against the same stone. His judgments were always well-seasoned with common-sense. If he was a little blind to the frailties to which mortal flesh is heir, he set himself firmly against all manifestations of cruelty or violence. As a judge, and praise can go no higher, he had many of the admirable qualities of that admirable man who followed him in judicial office - Sir Hugh John Macdonald. And he was built much higher in legal learning than Sir Hugh John.
He lived in a simpler age, before the days when men became flies in the seamless web of modern living. He belonged to a generation who were readers and thinkers, not listeners and lookers as we are today. In his time reading, home entertainments and political meetings held the place in society now occupied by movies, spectator sports and television. He believed in the strenuous life-in working his passage through this earthly journey. He never wanted the palm without the dust. When he became a judge, he took Bacon's advice to Justice Hatton - he continued the studying of his books and did not rely upon the old stock. His temperament was in tune with work. He gave the profession the fruits of his industry in a book which he published shortly before his death. This book, Canadian Criminal Procedure, went through several editions before it was superceded. If I may sound a personal note, when I entered law nearly half a century ago, lawyers, who had problems in criminal law, were wont to ask, "What has Daly to say about it?"
Magistrate Daly knew that the legal universe is not self-contained, that there are many legal problems which are also social problems and as such are beyond the grasp of the hand of the law. When sitting in police court, he often had children of tender years brought before him charged with law-breaking. He deplored the unsatisfactory state of the law as it related to children. In dealing with a child who had broken the law, only two courses were open to him. He could send the child to an adult institution, in effect, a post-graduate school for crime. Experience had taught him that by locking up a child, whose problem was that he needed help and guidance and proper supervision, the child could be converted into an open and avowed enemy of society determined to follow a life of crime. The second course open to Daly was to release the child on a suspended sentence which simply meant that the child returned to the same home environment, which, in many cases, had contributed to, if not actively promoted, his unlawful conduct.
But Daly was an optimist. He had faith in the future. He knew that the law must reflect the fundamental values on which civilized living depends, that it is bound to alter with the general progress of society and social knowledge. He knew also that the law in Canada was lagging behind contemporary opinion, and as it was time for a change, a change would come inevitably. He had not been long on the bench before he saw definite signs that a new wind was blowing.
W. L. Scott, an Ottawa lawyer with an active social conscience was to write, in the first article which explains in depth the philosophy of the new juvenile justice system: "Probation has been in voluntary operation in Ottawa since the 1st of August, 1906, and in Montreal since the first of January, 1908, and has worked wonders in both of these places. In Ottawa in the first year of probation, out of 240 delinquent children dealt with, only three had to be sent to Industrial Schools; and some remarkable cases are reported of the reform through the agency of the probation officers of even older boys who had already proceeded some distance on the road to a criminal career." 
Ontario may claim to be the leader in striving to give children a new deal in the courts. The Ontario Legislature put on the statute books, in 1888, an Act for the Protection and Reformation of Neglected Children (Cap. 40), which provided for separate hearings for alleged juvenile offenders. The person most responsible for this reform was J. J. Kelso, superintendent of Dependent and Neglected Children for the Province of Ontario. But the authority of a provincial legislature was limited. It could only pass laws which related to offences against provincial statutes. It could not reach the root of the problem. Under the B.N.A. Act the law relating to crime is the concern of the Parliament of Canada. What was needed was legislation at the federal level. As we have seen such legislation was in the stocks.
According to Police Magistrate George T. Denison, Children's Court was instituted in Toronto in 1892. It was held in a small room in the lower part of the City Hall. Only those immediately interested in the case being tried were allowed in the courtroom. Representatives of the Children's Aid Society and the St. Vincent de Paul Society were always present. The press was not admitted. "If I felt the punishment was necessary, I would send the child to the Children's Aid Society, or the Roman Catholic School for Children, for a few days," explained Magistrate Denison, "and give the culprits a scolding, and warn them to behave themselves in the future."  He makes no mention of probation and the fact that he uses the word 'punishment' in his explanation of the operation of a Children's Court suggests, perhaps, that he was not up to date in his approach to children who go astray of the law. For one trained in the common law which, over the centuries, has broadened down from precedent to precedent, he seems to have been a strange sort of magistrate. In witness, he makes this statement: "I never follow precedents unless they agree with my view. The men practising in my court have known for years that there was no use quoting precedents to me." 
Daly pinned his faith on probation as the means of ensuring that a child's first legal misstep should be his last. He was convinced that all most children needed to keep them on the right side of the law was an intelligent form of supervision. He found a useful ally in Colin H. Campbell, who became Attorney-General in the administration of Sir Rodmond Roblin in 1900, and served in that capacity until 1911. In their history of the legal profession in Manitoba, Dale and Lee Gibson make the claim that Campbell "created the first Juvenile Court in Canada."  Campbell took great pride in this accomplishment. In a letter to his son of December 2, 1913, he tells him that he would like most to be remembered in his public life for his part in promoting a new deal for children in the Courts. Campbell was a storm centre of controversy in the political life of Manitoba. His letter to his son reveals a phase of his personality that was not generally known in particular, not to his political opponents:
Colin H. Campbell, as Attorney-General of Manitoba, was responsible for Daly's appointment as Juvenile Court Judge. He had always had Daly in mind for this position. When the Juvenile Delinquents Act went on the statute books, he immediately set about the establishment of a Juvenile Court in Winnipeg in order that the Act could be proclaimed in accordance with its provisions and there could be special trials and detention facilities for children. The act was brought into force in Winnipeg on January 22, 1909. It was not extended to Manitoba as a whole until 1925.
Daly set about his new duties with enthusiasm. He sat for the first time in Juvenile Court on February 5, 1909. The Manitoba Free Press of the next day reported:
The four little girls told Daly a tall tale. They said they were from Brandon. Their homes were in fact in Winnipeg. Their parents were notified that they were before the court and they were handed over to the care of Mr. Billiarde until a thorough investigation could be made.
Thus the first Juvenile Court in Canada got under way. Before it had been operating for a year, it moved from the humble home on Simcoe Street to a new three-storey brick building on the site of Grace Hospital. This hospital had been built recently by the Salvation Army. The new building consisted of a court room, a school room and living accommodations for 22 children and the necessary staff and instructors. To eliminate any thought of confinement the court room was furnished as a dining room and was used as such. Girls occupied the second storey of the building and boys the third. As a precaution against escape, all inmates had to hang their clothes at bedtime on the outside of the doors of their rooms and these doors were locked for the night.
Reporting on the first year's operations of the court, Judge Daly, in explaining the purpose of the Juvenile Court Act, said there were three outstanding features of this Act: "First, the Detention Home; second, the Probation officer, and third, the Juvenile Court itself."
"Instead of children being taken to the Police Station," he explained, "and locked up in cells, they are taken to the Detention Home, where everything is so homelike and unprison-like that the child is not terrorized and frightened half to death. Instead of being locked up in cells, or ward rooms they are put into comfortable bedrooms, first being scrubbed and cleansed. And, judging from appearances, some of those who have been brought to our Detention Home have had the first bath they have ever taken since they were born. Fancy the difference in the feeling of a child who has had a bath and been put in clean clothes and had wholesome food given to it, and then been put into a clean bed, as compared with the old regime when the child was locked up in a prison cell, unwashed and with only a rough bed to lie on, and fed on prison fare, and in these strange, and, to its childish mind, awful surroundings left to sob itself to sleep! The influence for the betterment of the child must surely be with our present mode of treatment." 
During the Court's inaugural year, he reported that he had sent eight boys to the Industrial Home at Portage la Prairie. He claimed that all the other boys, with but a few backsliders, had been so impressed and influenced by the treatment they had received from the Court that they had mended their wayward ways.
He gave great praise to the probation staff, in particular, to Billiarde, the Chief Probation Officer, and to Staff Captain McAmmond, his chief assistant. Children who were found in a state of delinquency were ordered to report to the judge personally or to a probation officer at a stated time every Saturday. The probation officer visited the children's homes, talked with their parents, and reported to the Court on the home surroundings. If steps were needed to reform the parents they endeavoured to take these steps. The probation officers wore every-day civilian clothes. In most cases they were welcomed in the homes. Most parents were genuinely interested in the welfare of their children. "The underlying and all-important feature of the system." Daly stated, "is to keep in touch with the boy or girl, and to have first-hand knowledge of their home surroundings."
He concluded his first report on a hopeful note: "I can safely say that the Juvenile Court has so far realized that which those interested expected of it. We have reached the boy and girl, and the parents, and the homes in a way, and also exercised an influence that we have never been able to do before."
Two Salvation Army Officers - Staff Captain McAmmond and Staff Captain Broster - with whom Daly worked closely in the Juvenile Court, once offered a composite picture of him in action as a judge. He was formidable enough to create an atmosphere. They explained that he sat twice a week, on Mondays and Tuesdays, in Juvenile Court, which he did not run as a court in the ordinary sense. His court was simply the place where he met young offenders and talked things over with them. Hundreds of boys and girls were led by him back onto the proper paths and began to lead useful, law-abiding lives. "It was the grandest thing in the world," they said, "to see him handle a headstrong boy who had got into trouble. He never used two of them alike. He seemed to be able to tell at a glance just how to take every one of them, some he was severe with, others he joked with, but he was kind to every one of them and every one of them loved him." He would put his arm around a little fellow who had stolen a bicycle and cry with him as the boy told him the story of the misdeed. Children seemed to trust him instinctively and would talk to him just as freely as they would to their friends. His work did not stop in the court. He visited the homes of the children who appeared before him to see if there was anything he could do for the parents to help them with their problems of raising their children. 
On the principle that a stream cannot rise above its source, Daly felt strongly that the home is the first line of defence in the battle against delinquency. His work on the bench convinced him that a bad example on the part of parents, that in Senator Kerr's words, "an environment not the best, in a home more or less surrounded by crime or immorality," can stunt the natural development of character in a child. As that free-wheeling, All-American delinquent, Huck Finn, in his casual colloquial way, admitted: "I knowed very well that I had done wrong, and I see it wasn't no use for me to try to learn to do right; a body that don't get started right when he's little ain't got no show when the pinch comes there ain't nothing to bark him up and keep him to his work, and so he gets beat."
In summary, Daly had the germ of the system in him. He accepted whole-heartedly the philosophy on which the juvenile court is founded, which may be expressed in one sentence: "The ultimate question in a juvenile proceeding is not one of 'guilt' or 'innocence' but rather one of determining what is in the best interests of the child." Daly knew the importance of using imagination and understanding when a child comes before the court for the first time.
Tolstoy once said that "the seeds of crime are in each of us." Fortunately, in the great majority of cases, the seeds of crime do not find the kind of soil in which they can flourish. But, in a day and age when we are hedged about with so many prohibitions and restrictions, the child who does not make some minor infraction of the law is the very rare exception. All children who break the law do not get caught. And those who do not get caught are the lucky ones; for, if a child, who does get caught, is dealt with in an unimaginative way, he may get started on a career of crime that will carry him through life.
In the Manitoba Free Press for November 12, 1910, headlines proclaimed: REV. DR. SHEARER ASSAILS WINNIPEG: SAYS IT IS WORST CITY IN CANADA IN CONNECTION WITH SOCIAL VICE. Rev. Dr. Shearer was Secretary of the Moral and Social Reform Council of Canada. In launching his attack against social conditions in Winnipeg, he asserted that: "They have the rottenest condition of things in Winnipeg in connection with the question of social vice to be found in any city in Canada." He laid the responsibility for this alleged condition upon the police officials of Winnipeg, who were not above suspicion of profit. He alleged that houses of ill-fame paid protection of $400. yearly. "This money," he said, "must go somewhere. It is generally believed in Winnipeg that the whole criminal business is founded on graft, but naturally any man hesitates to name the grafters."
Serious charges such as these could not be allowed to go unchallenged. The Provincial Government appointed a Royal Commission to investigate them. Mr. Justice H. A. Robson, the sole commissioner, held his first sitting on November 23, 1910. T. A. Hunt appeared as counsel for the City of Winnipeg, R. M. Dennistoun for the Police Commission, the Police Chief (John C. McRae) and the Police Force. The Moral and Social Reform Committee was represented by J. A. M. Aikins KC, A. N. McPherson and J. B. Coyne.
Rev. Dr. Shearer appeared before the Commission and it soon became apparent that he had been speaking very loosely, without giving minimum attention to the facts. Daly, who had come in for much criticism from the Rev. gentleman, cross-examined him and made this fact abundantly clear. 
"Did you make any enquiries of me?" he asked.
"No." was the answer.
"Are you aware that I am the judge of the Juvenile Court?" "Only when I read your evidence."
"You are not aware of the class of girls and boys I have to deal with in that court?"
A Children's Home has existed in Winnipeg for two years but Shearer, exercising the prerogative of the arm-chair expert, had never visited it.
Prostitution was a social evil which gave Daly great concern. He reported to the Police Commission on several occasions that it was on the increase in Winnipeg. In 1904, a resolution had been passed by the Board of Police Commissioners which abolished an area of segregation for prostitutes. Between 1904 and 1909, when this resolution was repealed, Daly convicted more than 400 women of prostitution.
In giving evidence before Mr. Justice Robson, he stated that between 1904 and 1909 prostitution was scattered all over Winnipeg. "There were 73 different houses," he said, "all through the city ... cankering sores doing harm wherever they were, and speaking from memory, I think they were located on thirty different streets of the city."
"At this time," Daly continued, "I was constantly face to face with the fact that numbers of young girls were being brought before me, the juvenile court, and these girls were taken from immoral surroundings in houses and blocks and other places through the city, and on investigation everyone of these girls were [sic] found to be immoral. Their ages ran from 13 years of age to 15, some of them were diseased ..." 
His evidence before the Royal Commission made it plain that he took a realistic view of the world's oldest profession. "Of course," he declared, "we must understand that the social evil cannot be suppressed. It has been in existence from time immemorial. What I was wrestling with in my own mind was how it would be best to minimize this evil ... We had tried for five continuous years to drive it out. Instead of driving it out, it seemed to be on the increase. To my knowledge many of the women that were brought before me were escorted to the train and given 24 hours to leave the city, and it would look one week as if there was a decrease of four or five but they would come back again, or someone else would take their places." 
In suggesting how best to minimize the evil, he drew upon his experience as a police commissioner in Rossland, B.C., which for a time was a wide open town. "I had occasion," he explained, "to remove the house of ill-fame from the very centre of the city on Lincoln Street and the chief of police was given instructions to find another place for these people. They were given two months in which to move and they were given a less conspicuous position, and they are there today, I presume. The result was that we overcame a tremendous amount of evil ... So the idea here was to minimize the evil. Instead of having these festering sores all over the city, to have one open wound in one locality and then gradually close it up by degrees; adopt the same principle as is followed with small-pox isolate these people. I prefer the word 'isolation' to 'segregation.'" 
On January 11, 1911, Mr. Justice Robson released his report as Royal Commissioner. He held, in effect, that while there was smoke there was no fire; there was, in fact, not even much smoke. He found that the Rev. gentleman's charges as to vice in Winnipeg were not true, that there was no corruption on the part of police officials, and that no one paid for police protection in this city.
Just as Daly had campaigned for a separate court for children, so he campaigned for a separate hospital for them. His efforts, and the efforts of his co-workers in this field, were finally crowned. The Children's Hospital of Winnipeg was opened on February 6, 1909. It was located on a well-chosen site on Beaconfield Street, on the banks of the Red River. At the opening ceremonies, Daly gave a declaration of his faith, stating categorically that there is no work that brings such ultimate satisfaction to a man, or a woman, as the work he, or she, does for the betterment of the lot of children in life.  When he died, it was said that "a fitting memorial is the new Children's Hospital for whose existence the late [Judge] Daly was largely responsible." 
Another memorial to Daly is the Winnipeg street that bears his name. In 1913, the name of this street was changed from John to Daly in recognition of his many useful services to the community.
Daly knew that the lawyer to be a credit to his profession must believe in something higher than self-interest, and his public career had its roots in that faith. In addition to his work on the bench and in politics, his community services included yeoman work on behalf of the Children's Aid, the Y.M.C.A., and the Salvation Army. In religion, he was an Anglican, a staunch member of St. Lukes Church, serving as a church warden and a delegate to the synods. For many years, he served the Law Society of Manitoba as a bencher, both in Brandon and in Winnipeg. He was a member of the executive of St. John's College. In his youthful days, he served in the volunteer militia. In sport, he gave his time and affection to cricket. When his playing days were over, he served as president of the Western Canada Cricket Association.
On June 23, 1911, Daly was sitting with his family on the verandah of his home at 901 Dorchester Avenue in Winnipeg, when suddenly he was seized with a violent pain. The pain did not abate, and soon he was dead from an internal hemorrhage. He was in his sixtieth year. He was survived by his wife, Margaret Annabelle, who had shared his life since their marriage in Stratford on June 4, 1879; and two sons: Harold, a stock-broker in Vancouver; and Kenneth, a member of the Winnipeg law firm of Machray, Sharpe and Dennistoun. 
When death claimed him, Daly was just reaching full throttle as a juvenile court judge. His loss was a definite blow to the community; indeed, to the country at large. He was a valiant soldier in the ranks of those who fought for a new deal, a square deal, for children, and as such was sadly missed by those who continued the good work. By his exertions in many fields, he won an honourable place for himself in the history of the Canadian West.
Page revised: 22 May 2010