Fearless, creative and eloquent, constitutional lawyer Morris Manning helped carve a legal path that would define what the rights enshrined in the Charter of Rights and Freedoms really meant, even if others sometimes believed he was tilting at windmills.
The law, he knew, was not immutable or, more precisely, it should not be considered so. Rather, it should, and could, change with the times. It had to be updated and refined to encompass current mores, attitudes and beliefs, and he had the courage to tell juries they should simply ignore the law that a case turned on if they felt it was not right.
Indeed, among the myriad of civil and criminal cases he took on over a 54-year career, he did just that in the jury trial of Henry Morgentaler, Robert Scott and Leslie Smoling, who were charged in 1983 with performing illegal abortions at a clinic they had opened on Harbord Street in Toronto.
The charges came after Dr. Morgentaler had been acquitted no fewer than three times by a jury in Quebec – decisions that helped convince the Parti Québécois to ignore federal law and stop prosecuting him, period.
When the Ontario jury agreed with Mr. Manning’s suggestion to ignore the law (a practice known as jury nullification), the province’s appeal court rejected the jury decision and ordered a new trial. But the lawyer appealed the very grounds for the charges in the first place, claiming they were a clear violation of rights under the Charter, which had been enacted only the year before.
In 1975, under Prime Minister Pierre Trudeau, a change known as the Morgentaler Amendment was made to the Criminal Code, preventing the lower courts from replacing a jury acquittal with a conviction.
On Jan. 28, 1988, the Supreme Court both reinstated the jury’s decision and ruled the provision of the Criminal Code that made abortion a criminal act was unconstitutional because it violated a woman’s right to security of person under Section 7 of the Charter. It was a seminal moment for women’s rights in Canada, one that reverberate for years to come.
“Morris was at the top of his game,” said Justice Paul Schabas of the Ontario Superior Court, who was Mr. Manning’s junior on the case. “The Supreme Court was starting to release a lot of important decisions around the Charter and this one had such a public element because of the nature of the issue. It was, perhaps, the most dramatic Charter decision of all.”
Constitutional and human-rights lawyer Julian Falconer, who also articled with Mr. Manning, called his mentor the “perfect embodiment of a barrister,” able to easily switch between civil and criminal law and so devoted to the craft, he co-wrote, with University of Toronto law professor Alan Mewett, a criminal law textbook that is currently in its fifth edition.
“He was a lawyer’s lawyer, with a legacy that includes providing reproductive choices for women,” Mr. Falconer said. “I knew when I was a law student that I wanted to work with him and I sat for an entire day and part of evening in his office, waiting for him to agree to give me an interview.”
Mr. Manning died June 20 of stomach cancer at the Temmy Latner Centre for Palliative Care in Toronto. He was 80.
The Ontario Bar Association called him a “giant” in the profession, a man who appeared before the Supreme Court more than 100 times and whose specialties spanned the fields of criminal (both domestic and international), constitutional, privacy and administrative law.
“His contributions and legal legacy will undoubtedly live on for many more years to come,” the association said.
Morris Manning was born in Montreal on Nov. 6, 1940, the younger of Jack and Betty (née Goldstein) Manning’s two children. His parents were immigrants from Eastern Europe – his father from Lithuania and his mother from Poland. Life was hard for the family when he was young. Money was scarce, and jobs scarcer. Over the years, Jack worked as a salesman and a landlord, when he had work at all, and at one point he became so ill, his wife took over, working, cooking, cleaning and caring for Morris and his older sister, Eileen.
“My Baba [grandmother] never met anyone with whom she did not connect, and she was thus the recipient of much kindness in the neighbourhood during the challenging years, from the butcher and other shop owners,” her granddaughter Kate Manning said.
Although she never finished high school, Betty Manning had natural smarts; over the years, when money was tight, she would supplement the family’s income by toiling at factories and even as a clerical worker for the federal government.
When Morris was a year old, the family moved to Toronto. There, he grew up going to the “pictures,” as he called them, sitting rapt in the dark as stories of good, evil and justice rendered unspooled on the screen.
As a teenager, he attended North Toronto Collegiate Institute, gaining excellent grades and recommendations before entering the prelaw program at the University of Toronto. After graduating in 1965 with a law degree, he was admitted to the Ontario bar in 1967 and he started working as a criminal Crown prosecutor for the provincial Ministry of the Attorney-General. He then switched gears, becoming senior counsel in the ministry’s civil litigation and constitutional law section. In 1979, one year after being named a Queen’s Counsel, he entered private practice.
Around the time of his graduation from University of Toronto, Mr. Manning married Dr. Linda Rapson, a pain specialist he had met while they were university students. He loved being a father to their two daughters from the get-go, changing more diapers than his wife ever did, preparing bottles and soothing the infants to sleep.
Ms. Manning says she cannot remember a weeknight when her father did not come home for dinner when she and her younger sister, Rachel, were growing up. Dinner was non-negotiable, as far as Mr. Manning was concerned – a time for each member of the family to catch the others up on their day, what had happened at school and how various friends were doing.
“Our dad was kind and engaged, very proud and loving,” said Ms. Manning, who followed her father into a legal career, while her sister became an actor. “He constantly told us we were loved. And he had a tremendous reserve of energy, going back to work after putting us to bed and still there for breakfast in the morning, ready to drive us to school.”
For the parents, both of whom had intense, challenging jobs with long hours, it was a given that when it came to their children, not a school concert, not a single play, PE day or graduation, was missed.
Much time was spent at the family cottage in the Kawarthas region northeast of Toronto, Ms. Manning recalled; there was lots of music, dancing and cooking, including spaghetti and meatballs for birthdays, simple roast chickens and extravagant Chinese meals from scratch, all with the help of Mr. Manning’s extensive cookbook collection.
“Dad was just such a calm person, and he was fun,” Ms. Manning said. “It was like he had a public persona, where he was proud to be a lawyer and fight for his clients, but his private side involved him being a devoted father.”
The day the Morgentaler decision came down in the Supreme Court, she was in high school and called home to find out what had happened. She ended up running through the hallways with her friends, excitedly calling out, “We won! We won!”
After 35 years of marriage, Mr. Manning split with Dr. Rapson, although they would not formally divorce until 2018, after his first bout with cancer. He spent the rest of his days with Theresa Simone, who was called to the Ontario bar in 1990.
Along with the Morgentaler case, Mr. Manning made the news in 1980s when he and his client, the Church of Scientology, were jointly found to have libelled Casey Hill, a Crown attorney. And in 1985, as Holocaust denier Ernst Zundel was appealing his conviction of falsifying history, Mr. Manning, although he may have vehemently disagreed with Mr. Zundel’s claim, said if he “cannot say what he wants about history, then freedom of speech is meaningless.”
Along with Ms. Simone and his daughters, Mr. Manning leaves his grandchildren, Andrew and Emma Graham.