LEGAL ANECDOTES AND MISCELLANEA

By Ludmila B. Herbst, K.C.*

HELEN KINNEAR: THE BRITISH EMPIRE’S FIRST “LADY SILK”

Last year, we wrote about the British Empire’s first Black King’s Counsel: Delos Rogest Davies, who practised in Ontario and was appointed as King’s Counsel in 1910.1 This year, we turn to the first woman appointed as King’s Counsel in the British Empire: another intrepid Ontarian, Helen Kinnear.2

Helen was born in May 1894 in Cayuga, Ontario, on the banks of the Grand River that runs through the Niagara Peninsula. It is Haldimand County’s county seat, and the location of its courthouse. “Cayuga” is the name of one of the Six Nations of the Grand River First Nation.

Helen was the youngest of the four children of Louis Kinnear and Elizabeth Thompson. Louis taught classics until 1899, when he enrolled at Osgoode Hall law school. He became a member of the bar in 1902 and set up his practice in Port Colborne, joined there by his family. Port Colborne, in Welland County, is located on the shore of Lake Erie, at the southern end of the Welland Canal that allows ships to pass to and from Lake Ontario. In 1918, it also became home to Inco’s base metal refinery.

After graduating from the University of Toronto with an honours bachelor of arts degree (in English and history), Helen attended Osgoode Hall law school, again graduating with honours. She packed into what was repeatedly described as a five-foot-four frame a “quick mind”, a “keen wit”, “lots of laughter”3 and a “generous” and “self-effacing” nature.4

Helen commented that “[t]here is no reason why a woman should not succeed in the legal profession – provided she has a logical mind and a capacity for hard work”.5 That hard work could at least minimize the risk of the failure for which women could be especially criticized: she observed that “[i]f a man proves a failure he is accepted as that, but should a woman fail in her chosen profession, everyone says it serves her right … she should have been home pushing a carpet sweeper”.6 She was the first secretary and a charter member of the Women’s Law Association of Ontario, which was established in 1919.

Helen was called to the bar in 1920 and joined her father’s firm, which immediately became Kinnear & Kinnear. Helen was likely the first woman to practise law on the Niagara Peninsula. She later commended to law students the prospect of practising in a “growing, industrial town … pulsing with life and offering a challenge to youth outside a province’s largest city”; she cited the satisfaction of playing a role in the life of the community and, if the town happened to be the lawyer’s hometown, of being where the lawyer already had “a personality … which it may take … years to establish elsewhere”. She noted:

There is a tendency, noticeable particularly among native Torontonians, to assume that there is only one place in which to practise, and that assumption is usually coupled with a subconscious conviction that the field of endeavour is more restricted and requirements are not so high beyond the City’s walls …. Toronto is only a few hundred small municipalities rolled into one and tied together by the Toronto Transportation Commission. After allowing for its transportation problems, its citizens are subject to the same hopes and fears and have the same kind of problems as the citizens of any other progressive community in the Province. Toronto ensures anonymity for many a lawyer who might have made a name for himself elsewhere.7

Helen noted the importance especially outside the largest cities of “winning and keeping public confidence” by acting ethically and with integrity, by doing work “carefully and properly”, and being both “prompt and correct in money matters”.8

Helen practised in the field of litigation, which was particularly unusual for a woman at the time, but very much in keeping with her philosophical views. She noted9 that “[i]t is important to appear in Court as early and as often as you can to guard against that inferiority with regard to Court practice which dogs some solicitors throughout their whole careers and takes their best clients elsewhere when they have important issues at stake”. Correspondingly, she noted that “[e]arly in your practice, you should be glad of the opportunity to appear in Court whether it is to your financial advantage or not”. Coupled with that, however, was the importance of warning clients of the risk of an adverse court decision and potential expense: “[t]o plunge a client into litigation which results in unexpected heavy costs to him is to lose your client and weaken public confidence in you” whereas “[t]o settle a claim to your client’s satisfaction without suit wins you a client for life. That applies wherever you practise.”

Helen further recommended that lawyers join an established firm (and obtain a “guiding hand”) at the outset of their practice, as she had. However, she offered solace to those who “must launch out” for themselves, noting that even “errors, if taken to heart and properly analyzed, will stand you in good stead”. Indeed “the most eminent lawyers find something new in the practice of law every day of their lives”: “the open and inquiring mind is the corner-stone of their eminence”.10

Helen soon did have to “launch out” for herself when her father died suddenly in 1924. She went into partnership with another lawyer at least once, but for the most part during her career as counsel she practised on her own.

Helen was a keen motorist, and for some period in the early 1930s, she, her sister Jennie, their mother and a friend travelled through the United States by car; later in life, she and Jennie continued to take car trips through Canada in the summer. By the mid-1930s, Helen had also travelled through much of Europe.

During her U.S. travels, she made various contacts among women lawyers. In 1944, she became the first honorary member of the Alpha Mu Chapter, Kappa Beta Pi legal sorority, and in 1945, she was made an honorary life member of the National Association of Women Lawyers (USA). In the United States, she attended trials, visited penitentiaries and studied the legal system more generally.

By 1933, Helen had resumed her law practice in Port Colborne, with Jennie as office manager. At that point, Helen was still “Welland County’s only woman Barrister”.11 The office was near the home the family had acquired in 1904: Kinnear House, where at this point Helen and Jennie lived together. A columnist described that residence as “a spacious, rambling residence, surrounded by lawns and gardens”. The columnist attributed to proximity to Niagara Falls (just over 30 kilometres from Port Colborne) the fact that Helen was able to equip the house “with every conceivable electrical time-saving device, even [a] cake mixer and dish washer”.12

In December 1934, Helen was appointed by the Ontario government as King’s Counsel, reportedly the first woman appointed as such in the British Empire. The Canadian Bar Review noted that “[w]omen have from time immemorial worn silk but none have ever before our time worn the silk of the ‘K.C.’”, which the publication hastened to add it was confident Helen would do “with distinction”.13 A national legal newspaper noted she was “believed to be the first lady silk in the Empire”.14 Shortly thereafter followed another distinction: Helen was reportedly the first woman to argue before the Supreme Court of Canada, in March 1935.

Alongside her legal practice, Helen was involved in politics. The Kinnear family was deeply Liberal—“Liberal by birth and Liberal by conviction”,

Helen said of herself. In 1851, her Kinnear-side grandfather had nominated William Lyon Mackenzie as the Liberal candidate for Haldimand County in the Parliament of Upper Canada. Her father secured the Liberal nomination for the federal riding of Welland in 1911, though did not win in the election. Helen herself became the recording secretary of the Ontario Women’s Liberal Association in 1922, then in 1925 became president of the Hamilton District Women’s Liberal Association. Her appointment as King’s Counsel was during the tenure of a Liberal provincial government, and on hearing the news, she said she hoped it was based on merit rather than political influence.

In the latter half of the 1930s, she became president of the Welland County Liberal Association (the first woman to head a county Liberal association). Despite her Liberal loyalties, she had a staunchly Tory secretary at work, and the two avoided talking about politics.

After two failed attempts to secure a Liberal nomination (one provincially and one federally), Helen was nominated, in October 1941, to run in a by-election in the federal riding of Welland, having urged delegates not to allow the fact she was a woman to influence their vote. However, with Canada at war, she decided to step aside before the by-election was held, in favour of the newly appointed federal Minister of Labour, who needed a riding in which to run. Her efforts to do so were at least initially resisted by the executive of the county riding association, which did not share her view of the national interest her withdrawal would supposedly serve. She was later quoted as saying this was a “hard decision” for her. Indeed almost a decade later, she observed the continued lack of women candidates and pointed out that “[a]ll that women in politics have done in the past is work to get men into parliament”.15

In 1943, Helen was appointed as a County Court judge, with Haldimand as her home county. There is some speculation that this was a trade-off for her withdrawal as a Liberal election candidate,16 though if so, judicial status came at the cost of active engagement in the politics she loved.17 She moved back to Cayuga, the Haldimand county seat, from Port Colborne, living in a house called the Rockery within a shady walk of the courthouse. At that time she was also named as a local judge of the High Court of Justice for Ontario, a local master of the Supreme Court of Ontario, and a Surrogate Court18 judge for the County of Haldimand. These were federal appointments, and she is believed to be the first federally appointed woman judge in Canada.19 Helen later described this as “more than a personal achievement” and as a “victory” for women.

Both in subject matter and geographic scope, her work as a judge was wide-ranging. As she noted in her comprehensive two-part article on the

County Court that was published in the Canadian Bar Review in 1954, “[s]o wide is the scope of a county judge’s jurisdiction in all his different capacities that he may well be described as the Jack of all trades in the administration of justice in Ontario”.20 She noted as well that judges had to be “on call” to help in busier counties, and by the time of writing, she had presided at some point in each of the counties comprising County Court District No. 1 (the Niagara Peninsula). For almost two years she had to travel almost 65 kilometres once per week to sit in Welland County.

Helen’s judgments were described as “models of clarity in the description of facts and analysis of applicable law”.21 Various of them appear in the Ontario Weekly Notes. Among her last judgments was one affirmed by a majority of the Supreme Court of Canada, which referred to her “detailed and very carefully considered reasons” and “rather searching and astute investigation” of the history of the relevant legislation.22

Among Helen’s areas of keen interest was juvenile law reform, and in 1946 she became the honorary president of the Haldimand Children’s Aid Society. In 1947, she was appointed as a judge of the Juvenile Court for the County of Haldimand. She recognized economic inequality and prejudice (“[o]stensibly the door of opportunity is open to all children. Ostensibly”23) as being among the sources of delinquency. She advocated for the use of probation where possible, though required delinquents to promise to attend Sunday school or church every Sunday, so that they would at least subconsciously absorb some lessons about right and wrong. In her favourable 1951 review of a text on juvenile delinquency, she wrote that although there had been progress, “the public generally, which is the final authority in such matters, has not yet learned the lesson taught by the authors that the juvenile delinquent is the potential adult criminal and a product of our society for which we must bear the responsibility, a burden that we cannot discharge merely by following mediaeval methods of punishment”.24

Helen also had perceptive insights on family law, given she had “settled more than [her] fair share of family troubles”. She described those troubles as “economic rather than social. When she marries, the woman gives up her income and her economic independence. That’s the root of a great deal of domestic strife.”25

Reflecting both the above subject areas, from 1952 to 1954 she was the founding president of the Juvenile and Family Court Judges Association of Ontario.

In March 1954, alongside then Chief Justice McRuer of the High Court of Ontario, she was appointed to royal commissions on the defence of insanity (as it was then known) and the law on criminal sexual psychopaths, with hearings in cities across Canada. In 1959, she was appointed provincially to the Minister’s Advisory Council on the Treatment of the Offender. She was the first woman awarded a medal from the John Howard Society of Ontario, for her distinguished humanitarian service, in 1965.

Helen also reflected on whether the judicial system as a whole could be improved. In her 1954 article for the Canadian Bar Review, she explored issues that remain very familiar, such as access to justice, delay, cost and legal aid (and the potential introduction of a public defender system). Asked what she thought of women becoming eligible (in 1952) to sit on juries in Ontario, she responded: “Why not? I had to pick out the names of men for jury duty for nine years. I got a bit tired of it.” In an interview more than a decade after she became a judge, Helen noted that by that time, she was “more or less taken for granted by the people who appeared in her court”, and it was “only when I go abroad that I’m treated like Exhibit A”.26

Helen maintained strong connections with the University of Toronto and served on its senate from 1944 to 1952. She received an honorary doctor of laws degree from that university in 1953.

During her years on the bench, she continued to be described as a “gracious hostess” with interests including entertaining, reading, gardening, motoring and “taking moving pictures”. She had concerns about the adequacy of judicial compensation in part so that judges could afford to live in the dignity that befitted their office and have funds to support charitable causes.

For health reasons, Helen retired from the bench in 1962 or so. She and Jennie moved back to Port Colborne and bought a new home there, though she regularly attended conferences and other events in Toronto. Jennie died in 1967 and Helen in 1970.

Endnotes

1.Ludmila B Herbst, KC, “Legal Anecdotes” (2022) 80 Advocate 291.

2.This column is based on a variety of helpful sources, including, apart from those cited in other endnotes, Deidré Rowe Brown, “Helen Kinnear”, Law Society of Ontario, online: <lso.ca/about-lso/osgoode-halland-ontario-legal-heritage/exhibitions-and-virtualmuseum/historical-vignettes/people/helen-kinnear>; “Helen Kinnear”, Wikipedia, online: <en.wikipedia. org/wiki/Helen_Kinnear>; Marie Corbett & Doris Corbett, “Helen Kinnear (1894-1970)”, in Rebecca Mae Salokar & Mary L Vocansek, eds, Women in Law: A Bio-Bibliographical Sourcebook (Westport, Connecticut and London: Greenwood Press, 1996) at 129–135; Julie Soloway & Emma Costante, Leading the Way: Canadian Women in the Law (Toronto: LexisNexis Canada, 2015); “First Woman K.C. Is Congratulated”, The Globe (22 December 1934) 4;

“Woman K.C. Nominated as Liberal Candidate”, The Globe and Mail (27 October 1941) 13; “Refused Permission to Resign Candidacy”, The Globe and Mail (24 December 1941) 9; “Sorority to Honor Judge Kinnear”, The Globe and Mail (20 April 1944) 9; “Judge Helen Kinnear, 1947-8”, as found in <gilliandr.wordpress.com/tag/helen-alicekinnear/>, citing “National Reference book on Canadian Personalities with other General Information for Library, Newspaper, Educational and Individual Use, eighth edition, 1947-1948, Canadian Newspaper Service, H Harrison”; “Uncomfortable Court Clothing Annoys Judge Helen Kinnear”, The Globe and Mail (19 April 1948) 14; “First Woman Judge Enjoys Wide Respect”, The Globe and Mail (15 November 1956) 19; “Woman Judge Is Retiring”, The Globe and Mail (21 September 1962) 12; “Helen Kinnear: County Court Judge Commonwealth

First”, The Globe and Mail (27 April 1970) 12; Mary Jane Mossman, “Telling the Stories of Women in Law” (2014) 26 Can J Women & L 451.

3. Elsa Jenkins, “Hi, Judge!” The Chatelaine (May 1949) 14.

4. “Helen A. Kinnear ’20 (1894-1970)”, online: <digital commons.osgoode.yorku.ca/catalysts/17/>.

5. “Women Successful Lawyers, Says Judge Helen Kinnear”, The Globe and Mail (2 September 1954) [“Women Successful Lawyers”].

6. Jenkins, supra note 3. The author called the quoted sentiment “the superior-male bogey”.

7. The Honourable Helen Kinnear, “Establishing a Practice” (1946) 4 Sch L Rev 1.

8. Ibid

9. The references in this paragraph are to ibid

10. Ibid

11. “Notes from the Capital and the Provinces” (1932) 2 Fortnightly LJ 120 at 121.

12. “Canada’s First Woman K.C.”, The Times of India (30 April 1935) 15.

13. “Current Events” (1935) 32 Can Bar Rev 125.

14. “Ontario, New Brunswick, Manitoba Appoint Hundred King’s Counsel” (1935) 5 Bench & Bar: National Legal Newspaper 1. The next women King’s Counsel may also have been in Ontario: Margaret Hyndman, in 1937, and Vera Parsons, in 1941. The first of their own “lady silks” were appointed in Scotland in 1948 and England in 1949.

15. Jenkins, supra note 3.

16. Mary Jane Mossman, “Becoming the First Women Judges in Ontario: Women Lawyers, Gender and the Politics of Judicial Appointment”, in Ulrike Schultz and Gisela Shaw, eds, Gender and Judging (Oxford and Portland, Oregon: Hart, 2013) 51 at 63, 65.

17. The Honourable Helen Kinnear, “The Country Judge in Ontario” (part 2) (1954) 32 Can Bar Rev 127 at 145–46. Among the “precious rights” that Helen described a judge as giving up were involvement in politics: “[s]o carefully are his independence and his detached approach to judicial problems protected that he is required to step completely out of politics on his appointment and to refrain from expressing any political opinion afterwards”. Perhaps mindful of what she had seen in her travels through the United States, though, she was thankful Canada did not use “the elective system” for selecting judges, “with its inevitable risks”.

18. This court dealt, as she noted in her two-part Canadian Bar Review article, with the estates of deceased persons and matters related to the guardianship and custody of infants.

19. Emily Murphy appears to have been the first woman appointed to a “judicial post” in Canada, as police magistrate in Edmonton in 1916: Cameron Harvey, “Women in Law in Canada” (1970) 4 Man LJ 9.

20. The Honourable Helen Kinnear, “The County Judge in Ontario” (part 1) (1954) 32 Can Bar Rev 21 at 24.

21. Harvey, supra note 19 at 134.

22. Wilkes v Interlake Tissue Mills Co Limited, [1970] SCR 441 at 444, 446.

23. Jenkins, supra note 3.

24. The Honourable Helen Kinnear, review of “Unraveling Juvenile Delinquency by Sheldon and Eleanor Gluck. New York: The Commonwealth Fund. 1950” (1951) 29 Can Bar Rev 702 at 704.

25. Jenkins, supra note 3.

26. “Women Successful Lawyers”, supra note 5.