Red Deer and the Law, 1900-20
by Jonathan Swainger
Uprooting one's family and setting out for western Canada during the 40 years after 1880 was a momentous decision. Even for those who were reasonably well-heeled or properly prepared for what awaited them, the journey and the life which followed on the prairies would be, to say the least, an extraordinary challenge. Although many carefully packed those belongings they believed necessary to reconstruct their lives in the Canadian West, those who came from central and eastern Canada unconsciously imported one of the most important articles of the lives and communities they had left behind. Along with their quilts, family bibles, and butter churns, they brought familiar notions of law, order and civility.1 Thus, although the North-West Mounted Police (NWMP) shouldered the burden of establishing the presence of Canadian law on the Prairies, it was equally true that the homesteaders and community leaders played a crucial role in defining the substance and meaning of law and order in the years before 1920.
The intersection of Red Deer's history and the legal system can be viewed from a number of different perspectives. First, the Methodist founders who envisioned, and then later built, the central Alberta community of Red Deer, took their responsibilities seriously. They believed they were not merely settlers, but were working to create "... one of the finest places on our earth for humanity to dwell in."2 An important component of this vision was the expectation that the law could provide the same stability that it had "back home." This stability was crucial, for without it, the upheaval of moving, the unpredictable nature of a pioneering economy, the rudimentary transportation and communication links, and the unfamiliarity of diverse peoples and cultures in western Canada would be overwhelming. In theory, the law and its practitioners could provide community leadership, uphold proper character and morality, insure business transactions, and provide a haven when events spun out of control.3 Although time eroded these expectations, the first 20 years of the 20th century demonstrated that lawyers and legal remedies occupied a crucial role in the establishment of Red Deer and central Alberta.
Second, although the police, justices of the peace (JP), and members of the legal profession assumed roles as community leaders and builders, the influence of the law was not limited to observable examples of good works and fulfilment of duty. Acquiring a legal function for Red Deer implied a great deal, not only in how it symbolized the community's claim to pre-eminence in the Parkland but, more importantly, in how a court house, law offices, and the intermingling of law and business provided Red Deer with an identity and purpose other than that of just another farm community. In pursuit of it's identity, as early as 1900 Red Deer attempted to be designated the centre of a new judicial district. Although initially unsuccessful, efforts were redoubled in 1907 when individuals such as John A. Moore and J. J. Gaetz endeavoured to get a sub-judicial district centred at Red Deer recognized by the Attorney General's office in Edmonton. Officially denied once again, Red Deer nevertheless assumed this role, despite the fact the district was not be proclaimed until 1914. This acquisition not only confirmed that legal business had been gravitating towards Red Deer since 1900 but, for local leaders, it testified to the community's prominence in many aspects of central Alberta life.4
Beneath these characteristics that broadly defined the role of law within the Parkland, existed the human reality of the legal system — police, justices of the peace, lawyers, court officials, and judges. To these individuals fell the responsibility of not only creating the order and stability which most citizens expected of the legal system, but also, for example, reconciling popular notions with policing realities. On two occasions the Gaetz family levied a complaint against Sergeant Dunning, in command of the NWMP detachment at Red Deer. The substance of the concern was that Dunning failed to protect "... the respectable portion of the citizenry, by which they meant themselves." Subsequent investigations led prominent criminal lawyer P. J. Nolan to offer the view "... that the Gaetz family resented the police because the police insisted on treating them exactly as they did everyone else in the community."
Even more problematic for the police was the impression that Red Deer was too small to make crime pay. The fact of Red Deer's geographic location at the crossroads of Alberta subjected the community to all types of travellers and transients, some of whom were criminals and prone to violence. Further, from 1910 to 1912 railway labourers provided a constant threat to communities from Blackfalds to Rocky Mountain House who, in turn, pressed the NWMP to increase their staff to handle outbreaks of drinking and fighting.6 Without question, the clearest demonstration that Red Deer was a difficult community to police can be seen in the fact that police chief George Rothnie was miraculously spared death at the hands of an assailant, thanks only to a misfiring pistol. Rothnie resigned immediately after delivering the failed assassin, John Russell, to jail. Rothnie’s replacement, George Bell, was not so fortunate and was actually gunned down on June 1, 1911. Bell managed to survive Arthur Kelly's attack, and eventually the accused was captured by a band of intrepid boy scouts.7 In light of these realities of policing, combined with incidents of expected preferential treatment, the creation and maintenance of order in and around Red Deer was no easy task.
The next level of the legal system after the police was occupied by justices of the peace (CJP). The commission to act as a JP stipulated neither legal training nor any pressing requirements other than Canadian citizenship or naturalization. Although such a position was often subject to political manipulation, the great majority of JPs in central Alberta nevertheless endeavoured to fulfil their offices credibly. Not surprisingly, it was crucial that those appointed to act as JPs engendered public faith in the system and confidence from the attorney general's office. In Red Deer, this role was ably filled by Joseph T. Wallace, who was a permanent fixture during the first two decades of the century. Although others also held a commission of the peace in and around central Alberta, it was Wallace who, by his actions and presence, signified the stability, responsiveness and accessibility of the administration of justice.8
Not surprisingly, while Wallace exemplified the conscientious JP, there were a number of individuals who badly tarnished both the office and the administration of justice. Although almost every community of any size in central Alberta had an incident concerning the behaviour of a JP, Red Deer's scandal was doubly unfortunate, in that it involved Leonard Crane Fulmer, who was also Red Deer's secretary-treasurer when he was accused of theft and fraudulent misappropriation of funds. The preliminary hearing and investigations encouraged speculation that Fulmer's low bail was in response to community sympathy with the plight of his family. Further, rumour had it that the authorities did not wish to prosecute Fulmer and "... would be rather glad to see him get away with it."9 Fulmer's flight from central Alberta, the reported reluctance of local officials to aid in the prosecution, and the eventual failure to gain his extradition from Seattle, Washington, was one of the darker moments for the administration of justice during those years. Thankfully, episodes as grave as that were rare, and the example set by Joseph Wallace and others exerted much greater influence.
The legal profession was the first level of the administration of justice in which residents were assured of a foundation of legal knowledge. Admittedly, a foundation did not ensure competency but, on the whole, Red Deer was well served by the lawyers who chose to practise there. For most of the years between 1900 and 1920, the legal profession in Red Deer was dominated by three men: George Wellington Greene who arrived in 1891, William Earnest Payne who joined Greene in 1902, and John Carlyle Moore who arrived in August 1904 to assist with the land interests of his father, John T. Moore. As a group, these men exemplified the pioneer lawyer who, through all manner of activity, rises to the stature of community leader. Further, by their actions, both in and out of court, these men worked both consciously and unconsciously to maintain economic stability in central Alberta.10 The second tier of lawyers in Red Deer was occupied by individuals such as Corbet L. Durie, John Quigg, and Arthur Russell. All three men worked, at various times, as agent for the attorney general's office, and thus supervised criminal prosecutions in the district. Although not particularly inspired lawyers, in their role as crown prosecutor they endeavoured to sustain the ideals of justice in what could be, on occasion, a fairly rough-and-tumble community.
It is worth noting, however, that the influence enjoyed by Greene, Payne and Moore was generational. Greene had arrived shortly after the first train on the Calgary-Edmonton line in 1891. His decision to build a two-storey bank and law office in the centre of Red Deer gave his practice, and the community in which it existed, an air of permanence and stability. As Greene's law partner, Payne was able to build upon the foundation which had been laid and soon assumed a significant public profile. Moore, whose family connections were both a help and a hindrance, nevertheless cultivated a fair measure of influence. However, with the outbreak of WWI, and the symbolic turning point provided by Greene's departure for a judicial appointment on the District Court Bench in Medicine Hat, the founding generation came to an end. With Greene in Medicine Hat and Moore serving in Europe, only Payne continued practising in Red Deer. Economic recessions and the political movements they engendered increasingly placed the legal profession in a negative light and, rather than fight the tide, most of the lawyers in Red Deer and central Alberta retreated from public life.
The final components of the legal system for all of Alberta were the superior courts. Although central Alberta did not have a specific connection to those judicial personnel, the region, like the rest of the province, benefitted from the judicial talents on the bench. Not only was the first generation of judges well read and eclectic, but, as a body, they were inclined to recognize the wider implications of their decisions. While there were occasions when judgments and rulings were not met with public sympathy, the Supreme Court nevertheless maintained widespread support and respect.12 Further, the stability of the court was enhanced not only by the similar central-Canadian backgrounds of all the judges, but also by the fact that only Chief Justice Arthur Sifton left the bench prior to 1920. Thus not only was there a conscious effort to be flexible in applying legal concepts to Alberta conditions, but the consistency of the court's membership provided the entire legal system with an air of permanence and reliability.
Overall, it seems evident that law and the administration of justice was a crucial component of central Alberta's early history because those who filled legal positions were also immersed in building communities. In a fashion, to champion local law and order was as much an aspect of boosterism as was extolling the virtues of your town. Not surprisingly, the connection between orderly communities and those who aspired to positions of leadership was not purely selfless. Individuals such as George Wellington Greene and John C. Moore were also businessmen, whose entrepreneurial activities benefitted from their ability to further their interests through the courts, if necessary. It is also true that during WWI, some residents were not particularly inclined to tolerate dissent of any type, and expected the legal system to follow suit.13 Unfortunately, some legal functionaries did view their offices as suitable positions to hold non-Canadians and non-British to a rigorous and often hypocritical standard of behaviour.
It is possible to see, in the relationship between the law and Red Deer's development, aspects of what has been called the garrison mentality. Essentially, in the founding generation there existed the combination of an imperial sentiment "... which included a desire to spread 'superior' Anglo-Saxon cultural and societal values" with a loyalist culture entailing a "... solid body of agricultural practice, a sharp commercial sense, a rigidly utilitarian approach to life, excessive caution, and a dour self-depreciation." These were those core ideas which were wrapped-up in the law and packed away with the butter churns and quilts.14 Those who came to central Alberta and subscribed to these notions easily entered Red Deer society, while those who did not were kept at arm's length. Law, the argument follows, was one of the most effective methods to maintain this distance. Reflecting on the Gaetz family's difficulties with Sergeant Dunning, the garrison mentality may, indeed, shed valuable light on the connections between Red Deer's early character and the administration of justice.