McMurtry leaves powerful legacy

Two tables of photographs stand at opposite ends of Chief Justice of Ontario Roy McMurtry’s office in Osgoode Hall. On one are family snapshots of his six children and 12 grandchildren.

The other holds photographs of McMurtry with some of the most instantly recognizable politicians and historical figures of our time.

He points to a photo of a young René Lévesque. “Separatist though he was, he was also a good friend,” he says with a laugh. Above the table, framed on the wall, is a scene straight out of a Canadian history textbook: a large photograph of Parliament taken during the week leading up to the signing of the Constitution.
McMurtry will vacate this office when he retires next month after a formidable career that lasted 50 years and left an indelible imprint on Canadian society.

The retiring chief played a key role in the negotiations leading up to the repatriation of the Constitution and creation of the Canadian Charter of Rights and Freedoms. During his tenure as attorney general from 1975 to 1985, he passed more than 50 statutes. He established a bilingual court system in Ontario, reformed family law giving women equal ownership of the matrimonial home, and established a network of legal aid clinics.
More recently, as Ontario’s chief justice, he was one of three appeal court justices that legalized same-sex marriage.

In many ways, the 74-year-old seems to be the personification of Canadian values, which may be why so many politicians and lawyers talk about him in almost God-like terms.

“It ought to be daunting and formidable to sit in an office once occupied by Roy McMurtry,” says Attorney General Michael Bryant. “But it’s actually a dream come true because everyone knows you can’t fill those shoes. Nobody can fill those shoes but you can serve in an office that he once touched.”
Bryant says McMurtry’s influence on the ministry lingers even today.

“He entrenched in the ministry the important principle that Crown attorneys have to make independent decisions that are not influenced by politics or popularity. During his 10 years at the ministry he entrenched that mentality and it is still very much here today.”
And although his numerous official accomplishments are widely known, McMurtry makes a big difference on a daily basis through many subtle good deeds.

“There are countless McMurtry moments where he got on the phone or took someone aside at an event and whispered in their ear and promoted or moved forward an idea, or a person, or a program that he felt was in the public interest without allowing any credit to himself,” says Bryant. “And he does that so often and in so many ways.

“He’s a great soul and a real soldier of justice and a hero to a lot of people.”

McMurtry has also become a hero of the gay community. In June 2003, in Halpern v. Canada (Attorney General), the Ontario Court of Appeal unanimously upheld a lower court decision that the common law definition of marriage was contrary to the Charter of Rights and Freedoms. After this ruling, the federal government decided not to appeal the decision and drafted legislation later that year, which was confirmed by the Supreme Court of Canada.

“The fact that, as chief justice, he assigned himself to the case showed it had tremendous significance and that he had a personal interest in the subject matter,” says Douglas Elliott, a prominent gay rights lawyer who acted for the Metropolitan Community Church of Toronto in Halpern.

“Because it was such a controversial Charter case, the fact that it was going to be considered by one of the people who played a key role in creating the Charter would lend credibility to whatever the outcome was.”
Interestingly, Jean Chrétien, another drafter of the famous Kitchen Accord, was the prime minister on the receiving end of the decision, says Elliott.

And the ruling’s impact reached beyond the borders of Ontario.
“The court in Massachusetts expressly referred to the Ontario ruling and agreed with it in approving same sex marriage there,” says Elliott. “And the South African courts also followed the Halpern decision when they decided to allow same-sex marriage.”

Despite the recent accolades, the gay community once pointed the finger at McMurtry for the 1981 raids of bathhouses because he was attorney general and solicitor general at the time. McMurtry says he had nothing to do with them. In Ontario, neither the AG nor the solicitor general direct police operations, he says.

“I was uncomfortable that I was made the boogeyman,” he says. “But it was just sort of a tactic because if people are unhappy about something, it’s a useful strategy to have an identifiable target. . . . It’s ancient history, but it was something that troubled me in those years.”

Whatever happened then, McMurtry has become the “June Callwood for gays and lesbian rights,” says Michael Leshner, who along with longtime partner Michael Stark played a key role in the fight for same sex marriage, and the couple was issued a marriage licence just hours after the Halpern ruling.

Leshner, a Crown attorney, says McMurtry had a hand in effectively turning s. 11 (equality rights) of the charter into the 11th commandment, he says.
 “So he’s at least June Callwood and he’s close to being Moses.”

McMurtry has also gained a reputation as a consensus builder. In a speech last year, Ontario Court of Appeal Justice Michael Moldaver credited the chief justice with bringing the court together to tackle the enormous backlog of appeal cases a decade ago.

“Under Chief Justice McMurtry’s leadership we pulled together and we worked hard and the chief justice reached out to the bar and he sought their support and he got it. And lo and behold, within the space of 18 months, we sent the backlog packing for good.”

The court simply set time limits on oral arguments, and it worked out well because the members of the court cooperated, says McMurtry modestly. “It wasn’t rocket science.
“A chief justice cannot accomplish a great deal without the support of his or her colleagues,” he says.
The trial courts face a similar daunting backlog, the result of Charter challenges that can drag on forever - a problem associated with the Charter, but not an unfixable one, says McMurtry.

“I think this will continue to be sorted out, he says. “I think trial judges will have to take much more control of the process. They are going to have to impose time limits on Charter arguments. And we’ve certainly sent many signals over the last two or three years that we would approve of that.”

McMurtry’s knack for consensus building is something he developed over the course of his political career. He learned a lot from his longtime friend, former premier William Davis.
When McMurtry was elected in 1975, Davis immediately appointed McMurtry to the attorney general’s position and now says he “stands out as one of the great attorney generals in the history of the province.”

“If you want to reach a solution, on a complex issue in particular, it’s a question of bringing the right people together rather than thinking you’re going to come up with the answer,” says McMurtry. “It sounds a little trite, but I think it’s just that I’ve learned over the years to respect other people’s opinions.”
His commitment to bringing people together is driven by his belief that government cannot solve all of society’s problems.

“It really does require the community, both the public and private sector, to work together. We live in a very complex society dominated by silos without communication. But I think we’re slowly building a culture where people begin to realize there has to be this widespread communication.”

Several years ago, as chairman of Toronto Mayor David Miller’s community safety plan, McMurtry brought all the presidents of colleges and universities in the city together and asked them how they could help young people from poor neighbourhoods. All of the colleges now have programs directed towards helping young people in these neighborhoods.

“It’s extraordinary what’s happening on the ground in real ways, changing real people’s lives. And it’s all because the chief justice brought together, for the first time, all the college and university presidents,” says Miller.

When he retires next month, McMurtry expects to keep busy, perhaps working in association with a law firm. Now that he’ll have at least a little more time to spare, the lineup is beginning.
Miller, for one, is practically rubbing his hands together just thinking about it.

“I think it’s terrific that he’s not going to be a judge anymore,” he says. “He’s going to have more time to devote to the city of Toronto.”
And Bryant has already enlisted McMurtry to review the victims of crime compensation system.
 “Believe me, we ain’t seen nothing yet,” says Bryant. “There’s lots more to come from McMurtry.”

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