Roy McMurtry retired this spring after 11 years as chief justice of Ontario. The acclaim and the tributes that have accompanied his retirement suggest many would place him among the really distinguished chief justices of Ontario, at least of recent times. Which raises the question: who else might rate among the memorable chief justices of Ontario?
Of the two living ex-chief justices, McMurtry has the more extensive public career as long-serving attorney general, high commissioner to Britain, and patriation player. Charles Dubin, chief justice from 1990-96, certainly has many admirers from his long, distinguished career at the bar and the bench and is additionally notable as the first Jewish chief justice of Ontario.
Looking a little further back, John Arnup thought (and Bertha Wilson agreed) that the finest chief justice of their era was George “Bill” Gale, (1967-77). They admired Gale for his judging, but also for his administrative achievements, for Gale did much to modernize and organize the Ontario Court of Appeal and also helped recruit to the court such judges as Arthur Martin, Willard Estey (chief justice from 1976 to 1977, when he was appointed to the Supreme Court of Canada), and Dubin, as well as Arnup and Wilson.
Gale thought the great provincial chief justice of his time was Robert S. Robertson (1938-52).
As we get back beyond living memory, the comparisons become harder. Who, after all, has compared their careers or read their judgments? (Legal history scholar Dick Risk, maybe. He read much of the jurisprudence of Sir William Meredith, (1912-23), for a scholarly study, and came away not hugely impressed.)
The real standout among early chief justices was Sir John Beverley Robinson - chief justice of Upper Canada/Canada West from 1829 to 1862 - and not just for his long tenure. Robinson, “bone and sinew of the Family Compact,” had been a youthful attorney general before he was chief justice, and he brought a powerful theory of conservative jurisprudence and tremendous personal authority to his role as chief justice.
The first chief justice of Upper Canada was William Osgoode (1791-94). Osgoode did much to set up the judicial system in the new colony of Upper Canada and is remembered with Osgoode Hall, the law school, a historical society, a subway stop, a township, and much else. But Osgoode’s chief ambition seems to have been to be promoted to Lower Canada, and he went there after just three years here.
Until the Court of Appeal was created in 1876, the title of chief justice of Ontario belonged to the chief justice of the Court of Queen’s Bench. Thomas Moss, then chief justice of appeal, became the first head of the appeal court to hold the title chief justice of Ontario in 1878, upon the death of Robert Harrison, who had been the province’s top judge as head of the Court of Queen’s Bench (1875-78).
An impressive number of chief justices came to the court from politics. Meredith was a longtime leader of the Ontario opposition. William Henry Draper, (1863-68), had been prime minister of the united Canadas in the 1840s, with John A. Macdonald as his protégé. Sir William Mulock, (1923-36), and Newton Rowell, (1936-38), had been federal cabinet ministers. Mulock sat until he was 92 and lived to 100. Dana Porter, (1957-67), was both attorney general and minister of education until the day he was appointed - somewhat to the surprise of the existing bench.
Sir William Buell Richards (1868-75) went to Ottawa to become the first chief justice of Canada; he remains the only person to have held both offices. Two other chief justices of Ontario, John Douglas Armour, (1902-03), and Estey, also moved on to the Supreme Court.
With 11 years as chief justice, Roy McMurtry is tied at sixth place (with Meredith) in the length-of-tenure stakes among the 28 judges (all men, so far) to have held the office. William Howland, (1977-90), Mulock, and John Hawkins Hagerty, (1884-97), share third spot with 13 years. Robertson served 14 years. Robinson remains the undisputed champion at 33 years.
Christopher Moore was recently nominated for a National Magazine Award as best columnist for his historical column in The Beaver. This is his 150th “That’s History.” His web site is www.christophermoore.ca