Quiet Resilience

Like a Crown prosecutor disclosing evidence to the defence at the beginning of a trial, Fred Kaufman tells the reader in the preface to Searching for Justice: An Autobiography that a professional editor who reviewed the first draft reached less than effusively. “Published or not,” she advised, “the end product will be … archivally meaningful—and, of course, wonderful for your family for generations.” She thought it needed “opening up, a more personal stance, a less distanced tone.” The author concedes that as “a private person by nature, an observer of facts, not a communicator of feelings,” such an approach was difficult for him. Kaufman did a rewrite and his memoir “passed muster” this time, and was published by the Osgoode Society for Canadian Legal History in 2005. It has now been reissued in a paperback edition with some revisions to take account of subsequent events.

The word “resilient,” which has been so ubiquitous in public and academic discourse in the last few years, seems to have been coined expressly for Fred Kaufman, although he had his fair (or perhaps unfair) share of luck too. Born in “Red Vienna” in 1924, the only child of a petty bourgeois Jewish couple, Kaufman and his family watched in horror as thousands of Viennese poured into the streets to welcome Hitler’s Anschluss in March 1938. The family’s first priority was to save their son, and he was fortunately accepted into the Kindertransport program organized by British Jews to aid the children of European Jewry. Just six weeks before the outbreak of war, Kaufman left Vienna for the north of England, where a farming family had agreed to take him in. His parents remained for the next two years under constantly deteriorating conditions until they were able to escape to Portugal, where they took passage for New York.

After a brief idyll on the English farm, Kaufman was interned as an enemy alien on the Isle of Man. Before long he was shipped to Canada to another internment camp, this time a converted railway shop in Sherbrooke, Quebec. The physical conditions were miserable but intellectual and cultural life flourished. Internees were allowed to listen to the Texaco Metropolitan Opera broadcasts on Saturdays. At the camp school they were taught by some of the foremost scholars and artists of the 20th century, European refugees thrown together by the vagaries of war. Kaufman’s reflections on his situation were straightforward: “I had made up my mind early on that I would make the best of a bad situation. I also decided that I would not allow myself to be demoralized, either physically or mentally.”

The Canadian government eventually granted ministerial permits to most interns, allowing Kaufman to enroll at Bishop’s University. By the time of his graduation he was a landed immigrant and free to take employment. After five years as a reporter with the Montreal Star, he went to law school at McGill University and entered his public life as a lawyer, judge and royal commissioner extraordinaire.

He chose to join a small but eminent criminal law firm that included the future Supreme Court of Canada justice Morris Fish and the legendary Harvey Yarosky. Eleven chapters (of a total of 28) dealing with Kaufman’s years in practice form the heart of the book. They will be of most interest to lawyers and Montrealers, dealing as they do with major events of the turbulent 1960s in that city: the McGill français demonstrations, the Sir George Williams Computer Centre fire and, of course, the October crisis of 1970. Although Kaufman was primarily a defence lawyer, in all three instances he was sought out by the authorities: at McGill, to provide legal advice to the university should the need arise during what were expected to be, and were, violent demonstrations; as special lead counsel for the Crown in the prosecutions of those involved in the Sir George Williams fracas; and as special Crown counsel appointed to deal with persons detained under the War Measures Act in 1970–71.

With these experiences behind him, Kaufman was obviously eligible for the bench and by this point, with a wife and two small children, he was ready for a less demanding career. At the time there was no application process, and it was necessary “to try to bring one’s ‘availability’ to the attention of the minister of justice,” as Kaufman delicately puts it. It did not hurt that he had been active in support of the Liberal Party, a fact about which he is refreshingly candid. He was sworn in as the first Jewish member of the Quebec Court of Appeal in March 1973 (nine months before Bora Laskin was sworn in as the first Jewish chief justice of Canada) and spent 18 years on the bench.

It was upon leaving the bench in 1991 that Kaufman embarked upon his fourth career, the one for which he is best known in Canada and elsewhere. In 1996 he was appointed as a one-person royal commission into the wrongful conviction of Guy Paul Morin for the 1985 murder of Christine Jessop. Morin had been convicted in the late 1980s and sentenced to life imprisonment but in 1995 new DNA evidence exonerated him. The commission sat for 146 days, heard 120 witnesses and considered 100,000 pages of evidence and submissions. Kaufman’s 1,240-page report faulted the police and the Crown for “tunnel vision” and for excessive reliance on the evidence of highly untrustworthy jailhouse informants and the Centre of Forensic Sciences for sloppy and misleading work that had a huge impact on the jury. It led to a major housecleaning at CFS and the placing of severe restrictions on the use of evidence from jailhouse informants, and has subsequently been cited in hundreds of court decisions. The Morin Report was also a key factor in the Supreme Court of Canada’s conclusion in a 2001 case that the minister of justice should no longer authorize the extradition from Canada of persons who face the death penalty unless assurances are received that it will not be requested or applied.

Kaufman was also involved in a variety of other inquiries across Canada, the best known of which was his appointment to advise the minister of justice as to whether he should exercise his special powers to reopen the conviction of Steven Truscott. He did so advise the minister, who referred the matter to the Ontario Court of Appeal. It in turn overturned the guilty verdict and entered an acquittal.

Fred Kaufman has undoubtedly led an interesting and rewarding life, but he could have written a more engaging memoir if he had heeded the advice of his first reviewer. In spite of some personal asides, the book remains resolutely factual, with little account of the author’s emotional response to the events described or his own reflections on their long-term significance. The one exception is capital punishment, to which he was and remains passionately and eloquently opposed. But it is disappointing, for example, to have only one chapter on the author’s 18 years on the bench. Does he have nothing to tell us about the impact of the Charter of Rights, for example, or the significance of changes in the law he witnessed during those two decades?

The contribution of this memoir lies more in history than in literature, from someone who eschewed flashy manoeuvres and media grand-standing. Rather, Kaufman carefully, unflaggingly and courageously sought justice for the victims of crime, for those who perpetrated them and, especially, for the wrongfully convicted.