JOHNSTON, EBENEZER FORSYTH BLACKIE, lawyer, civil servant, and businessman; b. 20 Dec. 1850 in Haddington, Scotland; m. 5 Jan. 1886 Sarah Grace Schreiber in Barrie, Ont., and they had a daughter; d. 29 Jan. 1919 in Toronto.
Partially educated in Scotland, E. F. B. Johnston moved to Upper Canada as a young boy. He was likely a son of James and Agness Johnston, who took up farming in East Garafraxa Township. Ebenezer continued his education in a public school there and at the Guelph Collegiate Institute. He taught school for a time in 1871 in East Garafraxa. In Easter term 1872 he became a member of the Law Society of Upper Canada as a student-at-law in Guelph. Sworn as a solicitor in 1876, he was called to the bar in 1880.
While practising law in Guelph, Johnston, a prominent Liberal, was offered the positions of deputy attorney general and clerk of the Executive Council by Oliver Mowat*, premier and attorney general of Ontario. Johnston worked in these capacities from October 1885 until 1889, when his burgeoning criminal-law practice caused him to resign. He would, however, hold another provincial post, in 1891–94 as inspector of registry offices. On 4 Jan. 1890 he was appointed a qc and the following year he formed his first partnership, with George Ross.
Johnston is most widely known for his role in the successful defence in 1895 of Clara Ford, a mulatto seamstress who had confessed to the murder of a wealthy white youth from a prominent family. Playing expertly on public sympathy for female defendants, Johnston convinced the jury that his client was a simple woman who had been deceived by ruthless detectives and deserved their pity. Another noteworthy case, in 1895–96, involved allegations of murder against Harry and Dallas Hyams. Johnston’s cross-examination of the medical experts in this case is often cited as one of the most remarkable of its nature during this era. He did not directly contradict the witnesses; rather he elicited from them some allusion or mention of circumstances which seemed of little significance, but which he later wove into what must have appeared to the jury to be an irrefutable argument. The Hyams brothers were acquitted.
In an address to the Ontario Bar Association, Johnston asserted that to be a successful cross-examiner, counsel must prevent a witness from leading him off in an unplanned direction, begin cross-examination on a point only if he had a good chance of gaining it, and attack his witness at the weakest point at the opening. He maintained that the foremost object was not the moral one of exposing truth and falsehood, but rather to get something, no matter how small, that would help counsel’s own case or at least weaken that of his opponent. Johnston believed that the ability to cross-examine effectively could not be learned. To become exceptional required “intuitive genius.” Reportedly he was the “master of cross-examination” and there were few witnesses whom he could not confuse. In fact, in the public investigation in 1915 of the building of Manitoba’s legislature, he was hired just to cross-examine the principal witness, presumably because his fees were so high that he could not be retained for the entire hearing.
According to Hector Willoughby Charlesworth*, Johnston did not speak directly to a client accused of murder or to any relatives before a trial. Clara Ford may have been the only exception. When preparing a case, Johnston would take the facts and, “with the coolness of a mathematician,” work out a theory of innocence on which he would base a defence, directing every question toward that end. Meeting with a client, he feared, “would disturb the impartial direction of his thoughts.”
Johnston’s principal adversary in criminal proceedings was Britton Bath Osler*, whom he held in high regard and whose methods he even sought to imitate at times. In Charlesworth’s opinion, he “lacked the personal authority and distinction of Osler, and he was less suave and fair in cross-examination.” Johnston was clever enough, however, to turn Osler’s lofty reputation to his own advantage. For example, when addressing the jury, he would pay tribute to the superlative abilities of the crown and plead sympathy for his client on the grounds that his own competence was insufficient to secure justice.
The last significant case of a criminal nature in which Johnston was involved was the defence of James Robert Stratton, provincial secretary in the Liberal government of George William Ross, against bribery charges made in 1903 by Robert Roswell Gamey, a Conservative mla. Gamey accused Stratton, whom Johnston successfully represented in a public investigation, of offering him money and other rewards in return for his support of the government. Throughout his career Johnston was interested in politics and maintained close ties with the Liberal party. It is said that he turned down several offers to enter the legislature.
Like many of his colleagues, Johnston became increasingly involved in business ventures. His corporate positions included directorships with the Crown Bank of Canada (1903), the Traders Bank of Canada (1912), and the Standard Reliance Mortgage Corporation (1913), the vice-presidency of the Royal Bank of Canada, and the presidency of the Globe Savings and Loan Company (1900) and the Title and Trust Company (1912).
Overlapping these interests was Johnston’s involvement in legal organizations and the Toronto arts community. He was honorary president of the Canadian Bar Association in 1911–12 and its vice-president from 1915 to 1918. In 1911 he was first elected a bencher of the Law Society of Upper Canada. Recognized as a connoisseur and collector, he wrote several pieces on art, was an original director of the Toronto Guild of Civic Art in 1897 and later a vice-president of the Art Museum of Toronto, and solicited benefactors for the Art Gallery of Toronto. He collected old Dutch delftware and travelled to the Netherlands frequently to obtain the best pieces; his collection numbered approximately 600 items.
E. F. B. Johnston died at the age of 69 at his home on Bernard Avenue in Toronto. He was survived by his daughter and his wife, who was known for her extensive work with the Imperial Order Daughters of the Empire.
E. F. B. Johnston’s publications include “The prisoner as a witness,” Canada Law Journal (Toronto), 33 (1897): 666–73; J. H. Jurres: an appreciation (Toronto, 1910); the essay on “Painting and sculpture in Canada” in Canada and its provinces; a history of the Canadian people and their institutions . . . , ed. Adam Shortt and A. G. Doughty (23v., Toronto, 1913–17), 12: 593–640; and “A divorce court for Canada,” Saturday Night, 25 April 1914: 5; 2 May 1914: 4–5; 9 May 1914: 4. An additional article, “The art of cross-examination,” has been published in the Criminal Law Quarterly (Aurora, Ont.), 31 (1988–89): 22–12. Obituaries of Johnston appeared on 30 Jan. 1919 in the following Toronto newspapers: Daily Mail and Empire, Evening Telegram, Globe, News, Toronto Daily Star, and World. His passing was noted also in the Canada Law Journal, 55 (1919): 156–57 and Saturday Night, 8 Feb. 1919: 3; a tribute by Hector Willoughby Charlesworth, entitled “Reflections: the death of E. F. B. Johnston,” appears in Saturday Night, 15 Feb. 1919: 2.
ACC, Diocese of Toronto Arch., Trinity Church (Barrie, Ont.), reg. of marriages, 5 Jan. 1886. AO, RG 18-40; RG 22-305, no.37748. Law Soc. of Upper Canada Arch. (Toronto), 1-1 (Convocation, minutes), 16: 56–58; 1-5 (Convocation, rolls), barrister’s roll, Easter term, 1880; common roll, Easter term, 1872; 1-7 (Convocation, election of benchers), 15: 291–93; “Ontario bar biographical research project.” MTRL, SC, Biog. scrapbooks, 3: 39; 4: 701–4; 16: 140. NA, RG 31, C1, 1871, East Garafraxa Township, Ont., div.2: 13. Northern Advance (Barrie), 14 Jan. 1886. Canada Law Journal, 36 (1900): 321–23; 42 (1906): 169. Canadian annual rev. (Hopkins), 1903–4, 1907, 1910, 1912–13, 1915–17, 1919. Canadian men and women of the time (Morgan; 1898 and 1912). H. [W.] Charlesworth, Candid chronicles: leaves from the note book of a Canadian journalist (Toronto, 1925); More candid chronicles: further leaves from the note book of a Canadian journalist (Toronto, 1928). Cyclopædia of Canadian biog. (Rose and Charlesworth), vol.3. G. T. Denison, Recollections of a police magistrate (Toronto, 1920). Directory, Toronto, 1870–1920. Dominion annual reg., 1885. A. R. Hassard, Not guilty, and other trials (Toronto, 1926). Cheryl MacDonald, “The curious case of Olive Sternaman: was it murder?” Beaver, 71 (1991–92), no.5: 32–38. J. E. Middleton, The municipality of Toronto: a history (3v., Toronto and New York, 1923), 2: 63–64. L. A. Mode, “Art notes: the watercolour collection of E. F. B. Johnston,” Saturday Night, 19 Oct. 1895: 9. Carolyn Strange, “Wounded womanhood and dead men: chivalry and the trials of Clara Ford and Carrie Davies,” in Gender conflicts: new essays in women’s history, ed. Franca Iacovetta and Mariana Valverde (Toronto, 1992), 149–88. W. S. Wallace, Murders and mysteries, a Canadian series (Toronto, 1931; repr. Westport, Conn., 1975). F. L. Wellman, Gentlemen of the jury; reminiscences of thirty years at the bar (New York, 1924; repr. 1937).