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William McIntyre was wrongly labelled an arch-conservative Add to ...

William McIntyre, one of nine judges who occupied a unique place in legal history, died of throat cancer on Sunday in Victoria. He was 91.

Mr. McIntyre was on the Supreme Court of Canada bench when the passage of the Charter of Rights forever changed the course of the law.

It was a role unlike any other - a judge at the pinnacle of his career found himself presented with a set of constitutional principles that could, depending on how the Court approached them, radically transform everything from criminal conduct to free speech and equality.

Yet, contrary to a label that has clung to him for more than 20 years, Mr. McIntyre was neither fazed by the Charter nor hostile to its principles.

"The Charter was foreign to all the judges of that generation and they responded in different ways," said Jamie Cameron, a law professor at York University's Osgoode Hall law school. "He was a more open person - and a more open judge - than many believe."

Prof. Cameron said that, unlike some of the Court's leaders in Charter jurisprudence, there were areas of social policy where Mr. McIntyre firmly believed judges had no right to intrude.

"But that was part of a debate within the Court that enriched the decision-making of the early cases when there was no foundation, there were no rules, and it was a question of creating - not just following - the guiding principles," she said. "He was a judge who saw the law as an agent of change, but only within the limits of a disciplined conception of the judicial role."

Those who consider Mr. McIntyre to have been an conservative are almost certainly unaware of his dissent in a pre-Charter ruling by the B.C. Court of Appeal - R. v. Miller and Cockriell - that involved the imposition of the death penalty.

Citing the Diefenbaker Bill of Rights, Mr. McIntyre argued that capital punishment was cruel and unusual punishment; that there was no evidence that it had any special deterrent effect; and that it did nothing to enhance the safety of the community.

So, how did a judge with the heart of a civil libertarian get wrongly labelled as an arch-conservative? The reason probably lies in Mr. McIntyre's dissenting views on a landmark decision involving the constitutionality of abortion laws - R. v. Morgentaler.

Mr. McIntyre voted against striking down a hospital committee system for approving abortions as a violation of the Charter's Section 7 guarantee to life, liberty and security of the person.

Toronto lawyer Chris Bredt said that: "People who characterize Judge McIntyre as the archetypical judicial conservative typically look at the dissent in Morgentaler, but don't look at his overall jurisprudence, which was quite a liberal record. He was a civil libertarian who strongly believed in the protection of civil liberties. In fact, he was a tremendous supporter of the Charter."

Mr. Bredt also cited Mr. McIntyre's dissent in the landmark Irwin Toy case, in which he railed against governments arbitrarily passing regulations that strangle free expression.

"He had started off on the trial bench and brought a really strong, practical sense to his judgments," Mr. Bredt added. "He brought a trial judge's sensibility. He knew the frailties of evidence, had a respect for juries and for judges who were out there trying to apply the law."

Lawyer David Stratas, a constitutional expert, said that it is now coming clear that Mr. McIntyre was 20 years ahead of his time: "Years later, we can see that the positions that Justice McIntyre was articulating were actually the closest to where the Court is today."

In 1987, Mr. McIntyre gave full vent to his concerns about the Charter being twisted into something it was never intended to be in Reference Re. Public Service Employee Relations Act (Alta).

"It follows that while a liberal and not overly legalistic approach should be taken to constitutional interpretation, the Charter should not be regarded as an empty vessel to be filled with whatever meaning we might wish from time to time," he warned.

"The interpretation of the Charter, as of all constitutional documents, is constrained by the language, structure, and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society."

Mr. Stratas said that those words personify the modern day Supreme Court: "While his colleagues were propounding expansionist views of the Charter … he was an important tempering voice on a court that needed that voice."

Mr. Stratas noted that a recent equality rights ruling known as Kapp underlined how influential Mr. McIntyre actually was.

"In his majority decision in Andrews, he had articulated the Court's vision of equality under the Charter of Rights - the court's first equality case," Mr. Stratas said. "Last year, in Kapp, the Court rethought what it has been doing, and went back to the approach offered by Justice McIntyre 20 years ago in Andrews."

"He didn't suffer fools gladly," said Ontario Superior Court Judge Katherine van Rensburg, a law clerk to Mr. McIntyre in 1980-81. "He decided what had to be decided. I would say he was an elegant writer who was very careful in choosing his words.

"People say he didn't write a lot or change the law - but you could look at it and say: 'He got it right. He said only what had to be said.'"

He was born in Lachine, Que., on March 15, 1918, and his family moved to Moose Jaw when he was still young. He trained in law at the University of Saskatchewan and then served overseas in the armed forces in the Second World War.

After the war, he relocated to B.C. and began to practise law with the firm of Whittaker & McIllree. Appointed to the B.C. Supreme Court in 1967, he was elevated to the British Columbia Court of Appeal six years later. On Jan. 1, 1979, he was appointed to the Supreme Court of Canada.

Mr. Bredt, who clerked for Mr. McIntyre in the early 1980s, described him as "an understated, kind and caring judge. Some of the judges drove fancy cars, but he always drove a Chevette. He was one of the judges to clerk for because you had a personal friendship with him."

When Mr. McIntyre retired on Feb. 15, 1989, legend had it that he left because of his dislike for its growing expansion of Charter jurisprudence. Mr. Bredt said that, indeed, Mr. McIntyre worried that the Court "had started to develop legal tests that were infinitely flexible and enabled the judges to come to whatever decision they feel is just in the circumstances."

However, his departure had far more to do with the fact that his wife, Mimi, was suffering from cancer.

"He left because he knew she didn't have very long, and they wanted to travel," Judge van Rensburg said.

Several years later, Mr. McIntyre reconnected with his sweetheart from the days when they had attended a one-room schoolhouse in Moose Jaw - Dorothy Parkinson - who had also lost her first spouse. They fell in love again and married.

After leaving the Court, Mr. McIntyre went to the firm of Fasken Martineau - where he remained until his death.

"He loved history and poetry - he was an inveterate reader - and took long, cadenced walks through the forests of Stanley Park, stopping here and there to chat - gesturing with his cane - about points of interest," Prof. Cameron said.

Judge van Rensburg said that Mr. McIntyre also loved opera: "Music was one of his great loves," she said. "He was actually quite a cultured man."

Mr. McIntyre was also known as a committed mentor who delighted in discussing law and socializing with young lawyers and law clerks. "Amongst the judges, he was known for being particularly sociable."

In a statement yesterday, Chief Justice Beverley McLachlin said: "William McIntyre was a wise and compassionate jurist. He made lasting contributions to many areas of law, including criminal law, evidence and equality rights.

He leaves his wife Dorothy.

 

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