On the surface, a black South African going into a voting station to cast a ballot, a French-speaking Ontarian being pulled over for speeding some- where near North Bay, a blind Torontonian wandering into a Second Cup Café for a double espresso, a gay couple being married in a British Columbia city hall and a minority allo- phone choosing a school for his children in west end Montreal might not have much in common. They would be separated by wide expanses of geography, culture, educa- tion, experience and even lifestyle. They would not neces- sarily have anything in common with a couple sorting out the division of marital property in leafy Rockcliffe, or a child being represented in a difficult custody case in a courtroom in Thunder Bay. But they would be similar in one rather remarkable common point of reference. All of their lives would have been affected for the better by the work of the amateur and talented painter who supplemented his paint- ing career by being a lawyer, an MPP, an attorney general, a high commissioner to London and Ontario’s Chief Justice " namely, R. Roy McMurtry. He has crammed more public service careers into his 75 years than any four other people, any one of those careers sufficient to be the pinnacle of a lesser person’s life work.
As he steps down as Chief of the Ontario Court of Appeal, this particular retirement is no doubt a transition to more contributions in the future. But the Ontario we know and understand, and the Canada of which it is uncondition- ally a part, have been changed by the efforts of Roy McMurtry in ways this milestone helps us all better under- stand. While he did not, like Wilberforce, campaign to end one injustice " that of slavery " and succeed after decades of frustrating and hard work to pursue other more minor causes, McMurtry in his political and judicial life to date took aim at a series of injustices " some small, some large " but all defined by an absence of fairness, of social justice and of an adequate reflection of the Canadian ideal.
Whether it was as a young activist in the Eglinton Mafia (urban Tories in the 1960s in north end Toronto des- perate to modernize and make more reflective of today the Conservative Party of John Diefenbaker) working with Dalton Camp to democratize the federal Conservative Party, helping the Davis and Lawrence forces unite within the Ontario PC Party after the close-run Davis victory at the convention of 1970, or fighting decades later as Canada’s high commission- er in London, at Whitehall and in the corridors of Westminster to support Brian Mulroney’s firm stance against apartheid in the face of a less-than amused Thatcher adminis- tration, Roy McMurtry was and remains a constant crusader to ensure the framework of decency and progress his view of politics and humanity always embraced.
To have worked with Roy McMurtry in government, whether in agreement or otherwise, was to watch the mar- vellous integration of passion, loyalty, determination, humour and competitive instinct crest in one human being. His loyalty to Premier Bill Davis in Ontario, whom he served as attorney general from 1975 to 1985, was boundless. They were U of T Varsity football players together, and few lost causes engender more loyalty and esprit de corps than that. (His time as CFL chair, after politics and before the judiciary, was surely further proof of his loyalty to the three-down Canadian game in its darkest hour!) As attorney general, in the 1970s and 1980s, however, he took very seriously the role in the British tradition of being the Queen’s attorney, and not normally subject to day-to-day parti- san or cabinet deliberative processes or considerations. As the premier’s leg- islative secretary during the minority government period from 1975 to 1981, I would often wake up to a Toronto Star headline occasioned by a McMurtry declaration on anything from violence in hockey, to the creation of bilingual courts and translation of all statutes, to a blind persons’ rights act prohibiting for all time any restaurateur from keep- ing a blind patron and his or her guide dog out of his facility.
It is not that these matters did not at some time receive full cabinet and ultimately legislative approval in the Ontario of that decade; it was just that the policy was announced as policy somewhat ahead of any of those events having transpired! But, as was always the case with Roy McMurtry, a few antacids with the morning papers were a small price to pay for leadership he was determined to show, and which in the end, was the right leadership on difficult issues of the time.
And while a life as a lawyer who had as one of his clients the Toronto Police Association, and as Ontario attor- ney general, high commissioner to London and Chief Justice of Ontario does not, on the face of it, imply the career path of a dramatic revolutionary, the truth of the matter is that few of the masked street insurgents who show up for every G8 or WTO meeting could aspire to achieve the kind of radical change McMurtry either invented, made happen or assisted toward realiza- tion. Establishing the rights of children to their own legal representation, and the rights of the francophone minori- ties outside Quebec and the English minorities inside it to constitutional guarantees and to actual bilingual court capacity outside Quebec, were initia- tives he led, for and within Ontario. The whole framework of family law, where rights as between spouses with respect to property are presumed to be absolutely equal, was not in place until he championed that reform as Ontario’s attorney general.
The fact that four of the nine jus- tices of our Supreme Court are women and that we have seen a mas- sive ramp-up of the female role in our senior judiciary has a lot to do with appointments he made in his early years as attorney general of Ontario " like that of Rosalie Abella to the Family Court in Ontario decades ago. Much of the support within the Ontario cabinet for Ontario’s expansion of the French language education system to offer kindergarten through grade 13 was sus- tained for Premier Davis by Roy McMurtry and the late Tom Wells (minister of education for many years). Ontario’s leadership in reforming the Human Rights Code to reflect fairness for various minorities, including those defined by sexual orientation, was led jointly by McMurtry and the minister of labour in charge, the brave and humane Robert Elgie.
Because of his background on the street as a lawyer and policeman’s advo- cate, I should not have been surprised that during the constitutional engage- ment that led up to the patriation of the Constitution with the Charter of Rights, a quarter of a century ago, Roy McMurtry, who was doubling as attorney general and solicitor general for a short period, would have, in his latter role, appeared in Ottawa before a federal par- liamentary committee to express con- cerns about the Charter and some of the undue problems it might create for appropriate law enforcement exigencies! But as the Davis government was firmly in favour of the Charter, it was actually quite surprising!
Clearly McMurtry was not backing away from his support in principle for the Charter, but he was also putting on record the kinds of concerns relative to lawful and necessary police work that parliamentarians and framers of early drafts had to understand. His intent was, as always, quite pure, and his purposes no less than noble. But the aggravation he caused in the process was substantial.
There is this common strain to his life’s work. If Barry Goldwater suggest- ed that extremism in defence of liberty is no vice, McMurtry’s credo might well have similarly been ”œAggravation of one’s friends and colleagues in defence of social justice is also no vice,” as he defended marital rights of women, the rights of French-speaking Canadians to trials in their own lan- guage, or the rights of the gay commu- nity to absolute equality. It always struck me as one of the great and uni- fying ironies of our time that not long before Mr. Justice McMurtry presided over a judicial panel that made the his- toric same-sex marriage ruling in Ontario, Barry Goldwater, as a retired senator and former presidential candi- date, was appearing before Phoenix City Council to argue for leaving the gay community alone to live their law- ful lives untroubled by moralistic hyperbole from city ordinances and bylaws. It’s the sort of thing that con- firms the core decency of even Conservatives and conser- vatives who, while in very different parts of the spec- trum, share a common regard for the real context of freedom.
And while the lone- wolf aspect of many of his initiatives seems inimical to politics as a team sport, the truth was and is that McMurtry’s very nature is one of team building. I very much remember how, after the Davis govern- ment was returned with a manageable but attenuated minority in 1975, McMurtry brought together all the lawyers in the legislature, from all par- ties " including Margaret Campbell, who defeated him in his by-election setback of 1974 " for a working dinner just to break down some of the ani- mosities or hostilities that can often build up between people who are oth- erwise of good will. Or the constructive work he did with Roy Romanow and Jean Chrétien, across the country and in the final days in Ottawa on the periphery of the actual negotiations of the constitutional round that resulted a quarter of a century ago in patriation and the Charter of Rights and Freedoms. Was he out ahead of his cau- cus colleagues at Queen’s Park? Yes, but usually on issues and rarely if ever on ambition. He entered the lists far too late for the Tory leadership succeeding Davis in 1985 and literally had to be pushed and pulled. And while he gath- ered delegates quickly, the time lag in favour of the other candidates was sim- ply too large to overcome. Arguably the best candidate in the field, he finished a distant fourth on the first ballot.
Yet the detour to diplomatic work in the United Kingdom, his engagement on behalf of Mulroney on the apartheid issue in London and his subsequent return to prominence as a senior leader in the judiciary allowed McMurtry to return to his roots " roots that made him a far more engaged opponent of discrimination and systemic unfairness to the most vulnerable, as opposed to a glad-handing politician. And that agen- da of fairness to the most vulnerable expanded widely in terms of his reach and impact in ways less likely to have been as effective had he remained in elected political life. His present agenda is as Chief Justice heading toward retire- ment (as opposed to a retiring chief jus- tice " Roy McMurtry has never been retiring about anything).
The McMurtry legal legacy embraces issues as critical to our way of life such as urban poverty and its impact on the work of the police and the courts; the increase because of both costs and diminished legal aid funds in unrepresented litigants in both crimi- nal and civil proceedings; justice education in our schools about how the sys- tem actually works; increasing the breadth and depth of pro-bono law work; youth at risk; and the way the system deals with Aboriginal communi- ties and individuals, both urban and rural. And he has done all this within the constraints around what one can say and do as a member of the judiciary.
Those anticipating his retirement from the bench with some trepi- dation and those who have watched and admired his career (even when we have disagreed with his views from time to time) should rejoice at the lib- eration his formal retirement will afford for him to engage on issues that have been, for almost two decades, off limits for a member of the judiciary to address altogether. In that sense, Mr. Justice R. Roy McMurtry (or, as he was called by Red Tories, francophone rights advocates and equality propo- nents for many years, ”œOur Roy McMurtry”) is about to be unleashed, unrestrained and undiminished by either diplomatic or judicial protocol.
The debate on the issues of fair- ness, inclusion, poverty, making room at the family table for all, and the bal- ance between civil liberties and nation- al security is about to be strengthened by his unbound intellectual presence. And, as has been the case for every other part of his remarkable career, friend and foe, opponents and allies will all be stronger for it, as will the Ontario and the Canada he has served and loved with such passion.