11 years as Ontario chief justice cap respected legal and political career

Tracey Tyler
LEGAL AFFAIRS REPORTER

In an era of "three strikes" laws, when politicians seem keen on giving offenders a one-way ticket up the river, Ontario Chief Justice Roy McMurtry knows the value of paddling in a different direction.

It's a lesson he absorbed as a young lawyer in Toronto's criminal courts, when a probation officer asked him to defend a youth who'd been in and out of jail since 14.

McMurtry's client became a repeat customer for the next few years but eventually straightened out and developed a multi-million dollar cartage business in the Maritimes.

"You learn not to write anybody off," McMurtry says.

That may be out of step with current political thinking. But bucking convention runs deep in the McMurtry gene pool, judging by the lives of McMurtry and his three brothers, passionate overachievers in their fields of medicine, education and law.

McMurtry, the oldest, spent 10 years as Ontario's attorney general and solicitor general, weathering firestorms over abortion and gay rights, while battling racism, setting up legal aid clinics for the poor and fighting an unpopular battle to banish hockey violence.

Another chapter ended yesterday, when McMurtry was "sworn out" after 11 years as Ontario's chief justice. As lawyers and judges of the Ontario Court of Appeal crammed into an Osgoode Hall courtroom for a ceremonial send-off before McMurtry heard his final case, Justice David Doherty invoked a different sport, calling him a "Cito Gaston in robes."

Like the former Toronto Blue Jays manager, McMurtry, who turns 75 next week, is a "powerful commander" with a talent for creating a congenial atmosphere then stepping back and letting his players shine, Doherty said.

"I am deeply suspicious of anyone who is well-liked by other people. Consequently, I've kept a close eye on the chief justice."

It has been an unusual tenure. While his feet are planted in the establishment, McMurtry is perhaps the only chief justice to phone up union leaders to see if they'd be willing to create jobs in the construction trades for unemployed youths. He's certainly the first to help establish a recording studio and employment centre for young people wanting to pursue hip-hop music careers.

McMurtry found himself doing both as chair of the Toronto mayor's advisory committee on community safety, struck in 2004 to combat youth crime, particularly involving gangs and guns.

Without his influence, the "really dope" music program wouldn't have stood a chance, says youth leader and committee member Kehinde Bah.

"Roy is someone who, from the beginning, wanted to hear what we had to say," said Bah, 27. "We were in a room full of politicians and you have this guy who's looking to the youngest people in the room for what their ideas are."

After a half-century in public life, there's a reason.

"I think Dad has realized that, while you can do all these things from the top of society with the stroke of a pen as attorney general or more recently as chief justice, I think he really believes profound change does not happen from above," said Vancouver teacher Jim McMurtry, the second eldest of his six children – three boys and three girls.

His grandparents drilled into their four sons the importance not just of succeeding, but giving back. Jim McMurtry calls his grandmother a Mother Teresa type.

Her eldest son "is not a saint," says former Ontario premier Bill Davis, a lifelong friend who played on the University of Toronto football team with McMurtry.

"If you look at his aggressive nature on the football field, he certainly showed no sensitivity there to the opposing teams," Davis says. "He was also quite aggressive in terms of political campaigning."

At the same time, McMurtry's sensitivity to the downtrodden, his ability to find the heart of an issue and his interest in people are key to his success, he says.

"I think the secret is he genuinely likes people," says McMurtry's son. "I think he feels the power of relationships and the power really goes beyond what a relationship will do for him."

Jim McMurtry says his father also has a "strong protective" instinct that emerged as a teenager, when his father Roland, a trial lawyer, suffered an incapacitating stroke. McMurtry became a father figure to his three younger brothers, who were still in elementary school.

"He assumed that role with such serious import," says Jim McMurtry, who got a taste of how deeply ingrained that trait was when he decided to challenge his father's anti-death penalty views during the 1970s.

He asked his father, who was lobbying for the abolition of the death penalty, what he would do if someone killed one of his own kids.

"The response he gave to me was that he would `get' the person," Jim McMurtry recalls. "It had no consistency with my dad as a theorist, as someone against capital punishment. But it showed the depth of his protective paternal role."

While "even today, I know I could call up Dad at 4 in the morning and he'd be there for me," his son also says he thinks McMurtry has "spent a lifetime underestimating himself as a father," in part because his years establishing a law practice and in politics meant long days and nights away from home.

McMurtry says he never had a career plan. He thought he would become a teacher and studied history at university. He became enchanted with the "romantic" idea of becoming a doctor but realized two months into his studies that "the sciences and I were uncomfortable companions." He was also spending a lot of time on the football field.

He walked over to Osgoode Hall and enrolled in law school. There were no admissions tests back then.

As a lawyer, politician and later judge, McMurtry found the best way to get results was to pull people together and help them get beyond their differences.

"People like to be consulted and they like to be encouraged. Like most everything in life, human relationships are the important thing of all."

It wasn't always a success. His attempts to end violence in hockey and charge players criminally met with stiff opposition from the National Hockey League. He was also hit with controversy over Toronto police raids on gay bathhouses in 1981.

As attorney general and solicitor general, McMurtry took the heat for a spectacle he found troubling. More than two decades later, no longer bound by a duty to uphold the law, McMurtry headed the appeal court panel that struck down the ban on same sex marriage.

As a cabinet minister "he was very much in favour of the enforcement of the law as it stood," Davis says. " But when he was on the bench, he was in a position to interpret, along with others, the law in a way he thought represented the right approach and the fair approach."

In fact, what gets under McMurtry's skin are not criticisms of himself – "in politics you learn to live with that," Davis says. "What irritates him is when he sees ... discrimination or abuses of the system."

"Black males being profiled" is one example, Jim McMurtry says.

For his part, McMurtry says his biggest letdowns have been personal, not professional.

"If you lose an election, you get over that. I think my greatest disappointments in life are that, when you reach a certain age, you lose so many people close to you."

The recent deaths of his mother and, particularly his brother, Bill, a Toronto lawyer, shook him hard, says his son.

McMurtry will stay in the job until next Thursday, his birthday, mandatory retirement day for judges. Then he begins a review of the province's Criminal Injuries Compensation Board. He may also join a law firm.

"Life for him isn't putting his feet up and watching a ball game," says his son.

"If he really were to `retire,' I think life would lose its meaning for him."