An interview with the Honourable Roy McMurtry.

Author:Hart, Chris
Position:Ontario Supreme Court chief justice - Interview

In the following pages, the Ottawa Law Review provides a privileged look into the former Chief Justice of Ontario Roy McMurtry's formative years as a young lawyer in Toronto, with a particular focus on the collegial and instructive culture among litigators at that time, A large portion of the interview is devoted to Mr. McMurtry's time as Attorney General of Ontario, and his role in the dramatic period leading up to the patriation of the Constitution is explored. Mr. McMurtry reflects on his tenure as Chief Justice of Ontario, as well as the issues of race relations and access to justice, which remain very important to him.

Although the interview focuses on his legal career, one comes away with a sense of Mr. McMurtry as a truly multi-faceted individual. His passion for painting, his pursuit of football and eventual tenure as Chier Executive Officer of the Canadian Football League, and his time as High Commissioner of Canada to the United Kingdom are strands in a remarkable life that are beyond the scope of this interview. It is hoped that this interview offers an understanding of the foie that the law has played in Mr. McMurtry's life and the impact he has had on the legal landscape of Canada.

In 2011, Chris Hart, David Campbell and Jose Rodrigues met with Mr. McMurtry. They were joined by his granddaughter, Lauren McMurtry, then in her first year in the French Common Law Program of the University of Ottawa's Faculty of Law. The interview took place in Mr. McMurtry's home inToronto.

Dans les pages qui suivent, la Revue de droit d'Ottawa offre un regard unique sur les annees formatrices de l'ancien juge en chef de l'Ontario, l'honorable Roy McMurtry, alors qu'il etait jeune avocat a Toronto, et s'attarde plus particulierement sur l'esprit de l'epoque, ou la culture generale et la collegialite parmi les plaideurs jouaient un role de premier plan. Une grande partie de l'entrevue porte sur ses fonctions de procureur general de l'Ontario, et sur le role qu'il a joue au cours de la periode tendue qui a mene au rapatriement de la Constitution. M. McMurtry nous fait alors part des reflexions que son mandat de juge en chef de l'Ontario lui ont inspire, de meme que les questions interraciales et d'acces a la justice, auxquelles il continue de s'interesser.

Bien que l'entrevue se concentre sur sa carriere juridique, les multiples facettes de M. McMurtry ressortent sans equivoque. Sa passion pour la peinture, son interet pour le football et le fait qu'il ait ete President-directeur general de la Ligue canadienne de football aussi bien que Haut-commissaire du Canada en Grande-Bretagne, tout atteste l'eclecrisme de son exceptionnel parcours dont l'ampleur depasse le cadre de cet entretien. Cette entrevue permettra cependant au lecteur de saisir la place que le droit a occupee dans la vie de M. McMurtry et l'influence qu'il a exercee sur le paysage juridique du Canada.

En 2011, Chris Hart, David Campbell et Jose Rodrigues se sont entretenus avec M. McMurtry, entretien auquel s'est jointe la petite-fille du juge, Lauren McMurtry, alors en premiere annee de common law a l'Universite d'Ottawa. L'entretien a eu lieu au domicile du juge McMurtry, au nord de Toronto.

Ottawa Law Review [OLR]: What brought you to law school?

Roy McMurtry [RM]: My father was a prominent lawyer and I had thought that I might do something different than practice law. Not that I didn't admire my father greatly--because I did--but I was impressed with the idea of medicine as a helping profession. I was accepted into medicine, but had to take several science courses during a make-up year. During this make-up year, I became quite involved in coaching football while I should have been catching up on the sciences. As I have often said, the sciences and I were rather uncomfortable companions.

In those days--and this goes way back to 1954--there was absolutely no competition to get into law school. You were automatically accepted if you had an undergraduate degree. Basically one law school--Osgoode Hall--could look after all the people who wanted to go into law. And so I went to see the Dean of Osgoode Hall. (1) I don't even know why I went to see him. The last thing I was expecting was to start law school but he persuaded me. This was towards the end of November, so I started--and this is an unusual route to the Office of Chief Justice of Ontario--law school at the end of November. The Dean just said, "study for a couple of Christmas exams and catch up after Christmas," and that's the way it started.

Osgoode Hall was an interesting place to be because, being right down on Queen Street and at the heart of all the courts, students had a lot of time to drop into trial courts after lectures. Even by my second year of law school, there was no fee-for-service legal aid plan in Ontario. As a result, I started doing pro bono legal aid which students could do if the case was before what was then called the Magistrate's Court, which became the Provincial Court and is now called the Ontario Court of Justice. Ninety-five percent of criminal cases are dealt with in such courts. Therefore, I had gained a great deal of experience by my second year of law school by working on fairly serious criminal cases. The whole legal aid plan was run in a very ad hoc by the sheriff's secretary in the sheriff's office. One in those days could get a lot of experience at young age.

OLR: Who were some of the lawyers you looked up to as a young lawyer, and who were the leading figures of the legal profession when you joined its ranks?

RM: There were a number of them. I was lucky to develop a close friendship with a lawyer by the name of Arthur Maloney who has been dead, sadly, for twenty-five years. (2) Most of the young people in the profession probably don't even remember his name, but he was a member of Parliament when I first met him. I had had a very successful result in a serious sexual assault case and it was just my first year in practice. He had heard some complimentary things about me and made an effort to congratulate me. He ended up being a very important figure in my life. He became a mentor. He was probably twenty years, or so, older than me and he was a great lawyer and a great human being. We did a lot of cases together even though we were in different law firms.

John Robinette (3) was a well-known name. John Arnup (4) and my predecessor, Chier Justice Charles Dubin, (5) were well-known lawyers. One of the great criminal lawyers of the day probably of the age--was the late Arthur Martin, (6) who became a member of the Court of Appeal. The legal profession was smaller then. There was more opportunity to get to know the leading lawyers. It provided more opportunity for a higher level of collegiality and informal mentoring. Back then, one would not hesitate to seek advice from another lawyer, even if that lawyer was practicing at a competing firm.

OLR: Do you remember any advice that these leading figures of the profession gave you?

RM: I did a lot of criminal jury work. Again, the person that I was closest to was Arthur Maloney. If I was going to be giving a jury address, I would not hesitate to drop by his home and ask him for advice about a case.

The best advice in one particular case that I can remember--and it usually did not consist of major things, just helpful tips--was from Arthur Maloney. In this case, I was facing a tough Crown prosecutor. And the judge, Wishart Spence, (7) was very prosecution-minded. During my jury address, one of the jurors collapsed--literally collapsed or fainted. In those days, trial-by-jury cases were entitled to a verdict from all twelve jurors. Therefore, my client was technically entitled to a new trial without having to finish the one I was working on.

The old judge--as I would call him--had me in his chambers with the Crown prosecutor. The accused had to sign a consent to continue with eleven jurors, and it seemed to me they had the consent drawn up very, very quickly. I said, "No, no, I want to think about this. I'm just a young lawyer out of law school; I want to think this through, I want at least an hour's adjournment to talk to my client." They were annoyed by this--it was a Friday afternoon. It's amazing how many cases in those days would start on a Monday and finish on a Friday--that was another very different part of the legal culture: the trials were much shorter and very seldom did any criminal trial last for more than about five days.

Following my request to wait, I went running to Arthur Maloney's office just down from the courthouse on Bay Street. I was a presumptuous young man, and ran in when he was just about to go out for lunch, but he was a friend. He said, "Will you do better with a new trial? Do you think you might get a better result?" I thought the trial had gone fairly well until then, but he gave me some very valuable advice. He said, "They want your client to sign the consent quietly; instead, have him sign the consent in open court." Taking his advice, I insisted that my client sign the consent right in front of the whole jury to demonstrate his confidence in proceeding with the eleven remaining jurors. In the end, I was able to make the most of this turn of events in my jury address, or I should say the finishing of my jury address, because I was half-way through when the juror collapsed. I think that tactic had a great impact on the situation and probably was the best individual bit of advice that I ever received in a given case.

OLR: While on the topic of litigation, how do you think through and approach a case in litigation?

RM: It's all a matter of preparation. A trial is a very human process. One must try to persuade a judge or, occasionally, a jury and determine how to present the case in the most sympathetic light. I have always thought that if there is a weak part in a lawyer's case, he or she should face up to it. Litigation is a very human process and if the judge doesn't think that...

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