Trial by Humour
The wittiest, most sarcastic judge ever to grace the bench in Canada
By Dean Jobb
Glace Bay Magistrate A.B. MacGillivray’s sharp tongue and tart comments in the courtroom became legendary. But was this any way to dispense justice? An excerpt from Dean Jobb’s new book Daring, Devious & Deadly: True Tales of Crime and Justice from Nova Scotia’s Past, published in September by Pottersfield Press.
It was obvious to everyone watching the daily parade through Glace Bay police court that the eyewitness was being evasive. And that meant everyone, including the presiding magistrate. Asked repeatedly to describe an incident that left two people dead, the witness maintained he had dropped to the ground as soon as the shooting started, and had seen nothing.
“I thought I was shot,” he protested.
“You mean you ought to be shot,” a frustrated A.B. MacGillivray snapped from the bench.
The uncomfortable witness was by no means the first person to feel the sting of MacGillivray’s sharp tongue. The man who was the law in Glace Bay from the turn of the century to the Second World War—known to everyone as A.B.—produced a steady stream of one-liners at the expense of witnesses, defendants, and lawyers alike. Even now, some eighty years after his death, stories showcasing MacGillivray’s caustic wit are still swapped in his native Cape Breton and beyond.
“He’s a legend, the genuine article,” noted Peter MacDonald, an Ontario lawyer who turned a passion for humorous courtroom stories into a literary sideline, most notably the series of Court Jesters books. “There are even children in Cape Breton who can rattle off one ‘A.B.’ story after another.”
Like the time MacGillivray was handing down the sentence for a petty crime.
“I’m fining you $25,” the magistrate began.
“Why, that’s easy,” the convicted man piped up. “I’ve got that in my arse pocket.”
“...and thirty days in the county jail,” MacGillivray continued, hardly missing a beat. “Have you got that in your arse pocket?”
Then there was the defence lawyer who tried MacGillivray’s patience—or, more accurately, his lack of patience—with a long-winded legal argument to close out the trial of two men charged with stealing a dozen chickens. Finally, sensing that the judge might have heard enough, the lawyer stopped in mid-sentence.
“Your Honour, I hope I haven’t taken up too much of your time.”
“Well, I’m not going to stop you,” MacGillivray replied, pulling out his pocket watch and taking a look for theatrical effect. “You can talk as long as you want. But I think you’d better know something. The longer you keep me from my dinner, the longer those tramps will roost in the county jail.”
In another case, a sailor charged with drunkenness came before the Glace Bay court. The accused could speak little English and MacGillivray had a tough time extracting any useful information. Stymied, he inquired about the man’s religious beliefs. Did he believe in God? The sailor indicated he didn’t believe in anything.
“In that case,” cracked MacGillivray, unable to resist a straight line, “I’ll put you down as a Presbyterian.”
Magistrate A.B. MacGillivray, Glace Bay’s legendary wise-cracking judge
The quick-witted judge who became a legend was born in the village of Grand Narrows, on the Bras d’Or Lakes, in 1858. Alexander Bernard MacGillivray was the eldest of six children whose father was a farmer and justice of the peace. By the time MacGillivray reached his teens the family had moved to Glace Bay, lured by the hope of finding jobs in the coal mines.
At 13 MacGillivray began working in the pits, putting in time at several collieries in the area. Then he switched to surface work, loading coal on to ships. In 1882 he married Mary Johnstone, or “Mary A.B.” as she was known, to avoid confusion with the legion of other Mary MacGillivrays on the island. They raised seven children.
Along the way MacGillivray’s prospects went from good to better. In 1890 he became shipping superintendent for the General Mining Company in Glace Bay. Four years later, he abandoned the coal industry for a new career. At 36 he was appointed magistrate for Cape Breton County. When Glace Bay was incorporated in 1901, he became the first magistrate, or lower-court judge, within the jurisdiction of the new town. He passed judgment on those charged with breaching town bylaws and minor offences such as drunkenness and shoplifting. He also presided over preliminary hearings for those facing more serious criminal charges and headed to trial in a higher court.
Legal training was not a prerequisite for the magistrate’s chair in those days, and there is no evidence MacGillivray, to that point at least, had ever cracked a law book. But he looked the part of a judge. He was an imposing figure, more than six feet tall, and managed to strike a scholarly air with a carefully trimmed goatee. Vain about his appearance, he usually wore a starched white collar and a black bow tie, topping off the package with a bowler when he was not in court. But despite his formal attire, his face betrayed the jokester within. MacGillivray, his hair white with age, stares out from a surviving photograph with an impish grin and eyes that seem to brim with mischief.
“As he approaches the half-century mark as a magistrate,” the Cape Breton Post observed in 1933, “A.B. still boasts the upright carriage, deep voice and cheery smile which have been lifelong characteristics.”
MacGillivray held court in a small red building on Glace Bay’s main street, near the railway tracks. The modest courthouse, which doubled as the judge’s office, was little more than ”a one-room shack,” by one description. It was here that the dapper MacGillivray, the star of the show, dispensed justice and treated onlookers to his memorable punchlines.
He brought a common sense approach to the bench, which is hardly surprising given his first-hand knowledge of hard work in the mines. “You’d find his ilk in a Lunenburg fisherman or a Halifax dockworker,” recalled Leo McIntyre, a retired provincial court judge who watched MacGillivray in action in the 1930s. He had only a layman’s understanding of the law, but by one account he rarely missed the mark. “In the thousands of cases which have passed through his jurisdiction,” a newspaper reporter claimed near the end of MacGillivray’s career, “only once has his decision been reversed by a higher court.”
Absence of legal training probably explains his abiding distaste for lawyers. “Although he respected the lawyers who appeared before him, he was not particularly fond of them,” Louis Dubinsky wrote of MacGillivray. Dubinsky, who went on to become a Nova Scotia Supreme Court judge, learned that lesson through personal experience. As a rookie lawyer, his first case was the defence of the two men charged with stealing chickens; Dubinsky was the lawyer who earned his clients a longer jail term by keeping MacGillivray from his dinner.
MacGillivray could be as crude as he was blunt. Accustomed to speaking his mind, he sometimes ruffled feathers with the earthy language he used in court. He once dismissed a lawyer’s argument as “bullshit.” Many of the stories that live on after him are “a little naughty,” admits Peter MacDonald, who collected numerous examples of MacGillivray’s wit. “This was a man who said anything that popped into his head.” MacGillivray was fluent in the Gaelic of his ancestors, prompting one wag to suggest the magistrate was able to speak three languages: “The English language on the bench, Gaelic when with his Scottish friends, and bad language when he’s riled.”
But MacGillivray, warts and all, is best remembered for his mastery of a fourth language—humour. It’s difficult to establish if all the A.B. stories are true, and one suspects some have been embellished or were attributed to him over the years as his reputation grew. Many A.B. stories, Dubinsky claimed, were “figments of the teller’s imagination.”
He swore, however, that one classic line did come from MacGillivray’s lips. A man charged with possession of stolen goods, the story goes, appeared for trial without a lawyer—certainly no handicap in MacGillivray’s court. After the prosecution rested its case, the defendant was adamant that he had not realized the items in question were stolen. MacGillivray asked the man if he had anything to say to sum up his case. With that, the accused jumped to his feet and shouted: “As God is my judge, I am not guilty.”
MacGillivray must have flashed that mischievous grin as he delivered a punchline and verdict rolled into one.
“He’s not. I am. And you are.”
Leo McIntyre, an unabashed MacGillivray fan, lamented that characters such as A.B. are few and far between today. Then again, it can be argued that judicial office should be the preserve of those with legal training and a sense of fairness and public service, not stand-up comics. MacGillivray’s antics did little to enhance the image of the province’s lowest court. A Nova Scotia politician who was a younger contemporary of MacGillivray, Gordon Rompkey, once remarked that the greatest accomplishment of too many magistrates was the production of “tales” that were “good for a laugh.”
Wisecracks notwithstanding, there were those who felt some proceedings in the magistrate’s court were no laughing matter. Besides lacking legal training, magistrates were allowed, even expected, to supplement their income through court costs levied on top of the fines they imposed. And that created the appearance, if not the reality, that defendants were being convicted not on the weight of the evidence, but to line a magistrate’s pockets.
As early as 1916, an opposition politician rose in the provincial legislature and charged that “four-fifths of the practising magistrates in Cape Breton were crooked and dishonest.” The proof, he charged, was the fact that few had filed the required reports with the government disclosing fines and penalties imposed in their courts. The Halifax Herald, a newspaper bitterly opposed to the Liberal party then in power, used the outburst to condemn the situation in Cape Breton’s magistrates’ courts as “nothing short of a public scandal.” Names were never put to the allegation, but it’s likely MacGillivray, a Liberal appointee, was lumped in with the tainted majority.
The government ignored the allegations as grandstanding, and nothing was done. By the early 1930s Justice W.L. Hall, a Supreme Court judge and a former provincial attorney general, was attacking the fee-collection system as “absolutely vicious.” He called for the firing of all sitting magistrates and their replacement with lawyers paid only salary.
The provincial government was finally prodded into action in 1938. A new act created the post of “police magistrate,” responsible for adjudicating cases previously in the magistrates’ domain. The new court officers were forbidden from taking fees, and legal training was finally recognized as an asset; they were required to have practiced law in Nova Scotia for at least three years. Legal scholars hailed the long-overdue changes as “the greatest advance in the administration of law in Nova Scotia” in more than 50 years.
MacGillivray, now nearly an octogenarian, and other holdovers from the earlier era were allowed to serve out their time. Three years later, and 47 years after taking his place on the bench, MacGillivray retired in 1941. He died of a stroke two years later at 84. A sense of humour will never be a barrier to judicial office, but it’s unlikely MacGillivray’s legacy of courtroom one-liners will ever be rivalled