Austin Cooper was seen as an exemplar of integrity, professionalism and humility – with a core of steel.Tibor Kolley/The Globe and Mail
Austin Cooper stood and faced the magistrate. A young woman with no lawyer was on the verge of being found guilty of being a streetwalker, and Mr. Cooper, a second-year student at Osgoode Hall Law School, could not stay silent.
"May I speak for the young lady?"
A police officer had seen her stop a man on the street and follow him into a house. The officer went in after them and confronted the man. In court, he reported to the magistrate what the man had told him.
Is the man in court? the 22-year-old law student asked.
No, the officer replied.
Then his words are hearsay, the student declared. "I suggest there is not enough evidence to convict the accused, and move for dismissal."
The magistrate agreed: "Case dismissed."
It was classic Austin Cooper – a bold stroke that expressed a passion for justice and a sharp eye for courtroom strategy. His career as a criminal defence lawyer would go on to span 60 years. Over the decades, he won virtually every major honour for advocacy from the law profession in Canada, including the esteem of his peers, who saw him as an exemplar of integrity, professionalism and humility – with a core of steel.
Mr. Cooper died Sept. 24 at 84 of idiopathic pulmonary fibrosis, leaving his sons Peter, Douglas and Paul.
"Austin Cooper represented everything that's good about the legal profession," said Robert Armstrong, a retired judge of the Ontario Court of Appeal.
His humility was striking. "I've often thought that Austin definitely was the best criminal lawyer in the country," defence lawyer Clayton Ruby said, "but without ever proclaiming that he was the best."
He defended capital murder cases pro bono, before Ontario offered legal aid, his law partner Mark Sandler said. He also represented the state in a memorable case in which Wisconsin sought the extradition of Karleton Armstrong, a Vietnam protester who with three others set off a bomb in a university building in 1970, killing a researcher. When Mr. Cooper entered the court, spectators "oinked" at him and shouted "pig."
He did not object when those spectators called him a "hired gun." "They didn't appreciate we have a structure in our society, the court system, where both sides of the question, of the accusation, are argued out," he told author Jack Batten. "If we didn't have that system, believe me, society as we know it would collapse. It's the hired-gun concept that makes the system work."
He defended Keith Richards, guitarist for the Rolling Stones, who was charged with heroin possession for the purpose of trafficking while recording in Toronto in 1977. Even with a guilty plea to a lesser charge of heroin possession, Mr. Richards faced a near-automatic jail sentence. But Mr. Cooper used a clever dual strategy: He argued that, as a tortured genius, Mr. Richards was more prone to addiction; he also argued that his client was unexceptional in trying to treat and overcome an addiction, and deserved compassion, not jail. The judge ordered Mr. Richards to give a free concert for the blind.
An early desire to make things right
Austin Morley Cooper was born on Feb. 10, 1929, just before the start of the Depression. He was raised in the affluent Rosedale neighbourhood of Toronto, the oldest of three sons of Bert Cooper, a dry goods merchant, and Esther, a homemaker. His mother, a university graduate, often did public speaking, and pushed her son to excel in it, too. He was accepted into the prestigious University of Toronto Schools for high school.
After graduating with a degree in commerce from the University of Toronto, he was not sure whether to join his father's business (a store in Cabbagetown known as "Little Eaton's" because it carried everything) or, as a friend suggested, to try law school. His son Douglas says that not long before his father died, he told him he had flipped a coin to decide (although Mr. Cooper's brother Gordon says the story may be apocryphal). Either way, law won.
Mr. Cooper's heroes at law school were two liberal U.S. Supreme Court judges, Benjamin Cardozo and Oliver Wendell Holmes Jr., whose collections of writings he bought and read over and over. Especially close to his heart was Mr. Cardozo's speech on values: "The submergence of self in the pursuit of an ideal, the readiness to spend oneself without measure, prodigally, almost ecstatically, for something intuitively apprehended as great and noble … this is what religion means." For Mr. Cooper, that ideal was the law.
The nervy student who had risen to defend an accused prostitute knew exclusion. A wounding experience with casual anti-Semitism at a Toronto yacht club in 1949 became a "moulding force," he told The Globe and Mail in 2000. "After that, I found I just wanted everything to be straight." He pressed a law firm to give an articling position to an older black law student, the son of a maid from Jamaica, whom he admired for challenging a law dean's use of a racist phrase. That law student, Lincoln Alexander, later became the first black MP, federal cabinet minister and lieutenant-governor.
"There are certain things that make your father a hero to you," Douglas Cooper, a novelist based in Mexico, said when recounting that episode.
Not long after his call to the bar in 1953, Mr. Cooper appeared in Toronto's Liquor Court. These were the days when sales were so tightly regulated that one could buy only two bottles a time, and only by showing a permit that listed previous purchases. His client was facing a possible jail term if convicted of possessing alcohol for the purpose of selling it. Mr. Cooper had few paying clients and thought if he won the case he could attract more. He looked for precedents, he studied the law on "possession" – and his client was acquitted.
Afterward, another lawyer punctured his elation by telling him he had bought off the justice of the peace with $300 on behalf of Mr. Cooper's client. He told no one until just four years ago, when he acknowledged that he should have consulted another lawyer about it. But, he wrote in a piece for the Advocates' Society, "I have serious doubts that the fix ever took place."
The lawyer who represented other lawyers
Mr. Cooper was a lone-wolf practitioner for 25 years. Mr. Sandler joined him in 1978 as only his second articling student, and is still with his firm, now called Cooper, Sandler, Shime & Bergman. "He started off in a very different era. You had to learn to think on your feet and hone your cross-examination skills, because you didn't have a lot of time to think about them," Mr. Sandler said.
Mr. Cooper demonstrated those skills so convincingly in the 1982 preliminary hearing involving Susan Nelles, a Toronto nurse facing murder charges in four baby deaths, that lawyer Earl Levy used them as a model in his textbook on examination of witnesses. A doctor had testified that Ms. Nelles had a strange look on her face when one of the babies died. "Have you ever seen her cry?" Mr. Cooper asked the doctor. "Have you seen her joyful? Have you seen her at a funeral?" The doctor knew nothing of how Ms. Nelles expressed emotion. His evidence was meaningless. The charges against Ms. Nelles never made it to trial.
Afterward, when Crown attorney Robert McGee congratulated him, Mr. Cooper said something that, decades later, people remember as exemplifying his attitude toward the justice system. "Everyone did their job here. The police did their job. The Crown did its job. We did our job. And justice was done."
"He was never cynical about the justice system," Mr. Sandler said.
He was the lawyer other lawyers approached if they were in trouble. Ken Murray, representing sex-killer Paul Bernardo, held on to the infamous videotapes of Mr. Bernardo, his wife Karla Homolka and their victims for 17 months. When he wanted to withdraw from the case, he asked Mr. Cooper to help him do so. When Mr. Murray was later charged with obstructing justice for having those tapes, Mr. Cooper represented him in 2000. Mr. Murray was acquitted.
Mr. Cooper also served as senior counsel to Justice Fred Kaufman's 1996-97 inquiry into the wrongful conviction of Guy Paul Morin in the sex killing of nine-year-old Christine Jessop. It was one of the first such inquiries in Canada and probed a wide range of justice-system frailties in forensic science, prosecutorial tunnel vision and unreliable jailhouse informants.
Like his heroes, justices Cardozo and Holmes, Mr. Cooper shared his passion for the law widely. William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, was a student when Mr. Cooper gave a memorable speech at the University of Windsor law school. "He lit a fire under us."
Interested in legal complexities, not publicity
A tall, well-built man with a bald head, Mr. Cooper cut an intimidating figure in the courtroom. But he was known for his civility. It was not for show. In his office, he called his secretary, Alice Crawford, "Mrs. Crawford." She started working for him at 18 and did not leave until she retired more than 40 years later.
"He could raise his voice if he needed to; he could get a bit angry if he needed to; but it was seldom," said retired judge Mr. Armstrong. "He treated everyone in the courtroom with absolute respect."
Defence lawyer Brian Greenspan recalls Mr. Cooper as a "commanding presence in the courtroom. And yet he was a very gentle man. There was a sense of sincerity and humility that made him very effective in the courtroom."
When Mr. Greenspan was just starting out, Mr. Cooper retained him to write an opinion on the extradition of a Canadian businessman detained in Atlanta; Mr. Cooper's role was to defend the businessman. "He looked at it and said, 'Very well-researched and thorough, but I disagree with you. But I'll give it to the client; I think it's the opinion the client would like to see." Mr. Cooper gave up the lucrative payday and let Mr. Greenspan take the case on. "He was so professional and ethical that he would never provide an opinion he didn't subscribe to. It was the best case I had in my first three years of practice."
Mr. Cooper did not have social relationships with his clients, believing this allowed him to conduct cases with complete objectivity and be a more effective lawyer. He did not seek out publicity, which brought him many high-profile clients who wished to keep out of the spotlight, Mr. Sandler said.
He was trusted by judges and Crown attorneys. "We reduce very little to writing in dealing with the Crown, because the Crown attorneys trust us and we trust them – that's a culture that emanated from Austin," Mr. Sandler said.
Mr. Cooper encouraged his firm's lawyers to have a life outside the office. He served on the board of Toronto's Tarragon Theatre, as a member of the Metro Toronto Task Force on Public Violence Against Women and Children, and as a law society bencher.
He married Barbara Lipson, a teacher, in 1957. Their marriage, which produced three children, ended two decades later.
For relaxation, he bought a primitive cabin near Algonquin Park. His son Douglas recalls using an Aladdin lamp for light, and striding out onto the lake in winter to cut through ice for water. "He preferred at times not to be surrounded by creature comforts."
Mr. Cooper also had an eye for beauty, his son says. He loved British cars, and bought an Austin-Healey when he was young, and later a Jaguar.
"My father was a man's man. He liked driving – he liked going fast." Sailing yachts was another passion; he studied boat design and followed the Sailing World Cup avidly. He travelled widely, loved and collected art and was an early devotee of photographer Edward Burtynsky.
"Dad wasn't particularly interested in fame; he was interested in legal complexities," Douglas says. "He saw himself as a very serious professional. He was absolutely uncompromising. That was a way of defining himself."
Mr. Cooper gave up courtroom work several years ago but continued working at his law firm until just a few months before he died. Younger lawyers still sought him out for advice.
"He demonstrated that you don't have to be a son of a bitch to be really excellent in our profession," Mr. Sandler said.
Mr. Cooper put it another way to author Jack Batten: "It's the criminal lawyers – bastards like us who have independence in our bones – who stand up and say, 'Wait a minute, every man is supposed to be entitled to his day in court.'"
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