Ontario chief justice Roy McMurtry issued same-sex marriage ruling that reverberated around the world

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It’s known as the “kitchen accord,” and Roy McMurtry, who died Monday at age 91, was one of the three politicians who helped cook up the outlines of the deal that finally broke the constitutional deadlock between Canada’s premiers and prime minister Pierre Trudeau.

The scribbled notes that resulted from a sidebar meeting in an out-of-the-way food preparation area in the Ottawa Convention Centre that day in November, 1981, paved the way for a formal agreement – ultimately made without Quebec’s signature – to patriate the Constitution and create the Charter of Rights and Freedoms.

Mr. McMurtry, the gregarious and well-connected Red Tory Toronto lawyer who had been attorney-general of Ontario since 1975 and would later serve as his province’s chief justice, had retreated to that kitchen, alongside Roy Romanow, the attorney-general of Saskatchewan – who took notes in longhand – and Jean Chrétien, the federal justice minister and future prime minister.

But it was just one history-making episode of many in the lengthy career of Mr. McMurtry, who spent decades as a lawyer, politician and judge, and drove sweeping changes to his province’s justice system.

While Mr. McMurtry downplays the significance of the kitchen meeting in his 2013 memoirs, saying it had been dramatized by journalists, Mr. Chrétien said the decisive moment came as the prime minister was mulling adjourning the talks.

“The conference was going nowhere, and we met together, and we discussed what can be done. And I said, you guys sell it to the provinces and I have the bigger job, I have to sell it to Trudeau,” he recalled in an interview this week. “It was kind of very unusual, he was a Progressive Conservative, and Romanow was an NDP and I was a Liberal. But we were practical guys trying to find solutions, and not radical, doctrinaire, on anything.”

It was Mr. Chrétien, years later who appointed Mr. McMurtry to be Ontario’s chief justice, a fateful decision that would see him issue the groundbreaking 2003 appeal ruling that upheld the legality of same-sex marriage – a decision the federal Liberal government would choose not to appeal and that would reverberate around the world.

Roland Roy McMurtry was born May 31, 1932, the eldest of four brothers, and grew up in what is now the wealthy Toronto neighbourhood of Forest Hill. He wrote in his 2013 book Memoirs and Reflections that his father, a well-connected lawyer, had a “healthy skepticism about politics” but sometimes helped Progressive Conservative candidates.

The athletic Mr. McMurtry took to football, and served as a water boy for the Toronto Argonauts as a teen. (He would decades later serve a stint as head of the struggling Canadian Football League.) After attending St. Andrew’s College, a private boarding school in Aurora, he headed to the University of Toronto’s Trinity College. He played football for the Varsity Blues, where his friendship with a teammate, future PC premier Bill Davis, would later shape his political career.

He spent a summer logging in B.C., and then two summers with Frontier College, working alongside railroad work crews and then teaching literacy courses to them.

Although drafted by the Montreal Alouettes, Mr. McMurtry declined to join the team and leave Toronto after his father suffered a debilitating stroke on an airplane. The incident left the elder Mr. McMurtry disabled, with his wife caring for him and the family in financial straits. Roy briefly considered a career in medicine, but by November, 1954, had found taking the required catch-up science courses a slog. A teachers college declined to accept him as a late entrant, but after a brief chat with the dean of Osgoode Hall Law School, who asked about his father’s health, he was admitted with the term already months under way.

While still a student, Mr. McMurtry began offering free representation to clients facing criminal charges. He also spent a summer in Quebec City working in construction and learning French with his friend and fellow lawyer Ian Scott, who would follow him as Ontario’s attorney-general under Liberal premier David Peterson. (The Ministry of the Attorney General’s offices on Bay Street are in the McMurtry-Scott building, named in honour of the pair in 2005. Mr. Scott died in 2006.)

While articling in 1957, he married schoolteacher Ria Jean Macrae. The first of their six children, Janet, was born in 1958, the year Mr. McMurtry was called to the bar.

Friend and retired justice Patrick LeSage said that when he was a Crown attorney in the 1960s and 1970s, he used to relish facing the affable Mr. McMurtry as defence counsel across the courtroom and that as a leader of judges he had a unique ability to inspire people to do their best work.

”He was certainly gregarious. He certainly was warm. He certainly was embracing. And probably more importantly, he had a great skill of having you accept tasks that you might have otherwise thought were beyond your capability,” Mr. LeSage said. “He inspired others to succeed.”

It wasn’t until 1965 that Mr. McMurtry became seriously involved in PC politics, helping with party president Dalton Camp’s failed bid for a seat that year and then, aiding in his successful but divisive push to force out the aging and unpopular John Diefenbaker as leader in 1966.

By 1970, his old friend Mr. Davis was Ontario’s PC education minister and eyeing the party leadership as premier John Robarts stepped aside. Mr. McMurtry signed on as the party’s lawyer, and became part of a close group of advisers around Mr. Davis when he became premier.

After losing a bid in a 1973 by-election, he won a Toronto seat in 1975 with Mr. Davis’s minority government, and was appointed to cabinet as attorney-general. He would also later serve as solicitor-general.

He boosted legal aid clinics, ordered bilingualism in the courts over the reluctance of his own party, pushed for a tougher approach to drunk driving, took on racism and launched a move to criminalize violence in hockey. And he appointed the country’s first Canadian-born Black judge, George Carter; aimed at addressing a sorry lack of female judges; and mentored or befriended a staggering array of people who became stars of the province’s legal world.

Among his appointees to the bench was then 29-year-old and pregnant Rosalie Abella, who took her seat as the only woman at that time presiding over Ontario’s family courts and who would later be appointed to the Supreme Court of Canada. She said his family law changes dragged Ontario into the modern world, recognizing marriage as a social and economic partnership of equals.

“He was a justice juggernaut. There was no part of the justice system in my generation that he didn’t affect in a way that was positive and that didn’t make the justice system more humane, more inclusive,” said Ms. Abella, who retired from the country’s top court in 2021.

His push to prosecute racial hatred provoked a response from the U.S. Ku Klux Klan: A 1977 letter written by David Duke, then “grand wizard” of the KKK in Louisiana, accused him of “anti-White activities” that could have “grave consequences.” He framed the letter and hung it on his office wall.

The job did attract other, more serious criticism. The hockey world rebelled at his intrusion into on-ice violence. He was criticized for the decision to lay charges, later dismissed, in 1981 against Susan Nelles, a nurse accused of murdering infants at the Hospital for Sick Children – a decision on which he said his office was not consulted by local prosecutors or police.

While later revered by the LGBTQ community for his same-sex marriage ruling, he faced protests and an office sit-in after Toronto’s notorious 1981 bathhouse raids. He said he had no advance knowledge of the decision by Toronto police to raid four gay bathhouses, but did later raise concerns with police. And while pro-choice himself, he authorized the 1984 appeal of the acquittal of Dr. Henry Morgentaler for legal reasons, he said, because the jury in the case was urged to simply ignore the law against abortion that was then on the books.

After a failed attempt at the PC Party leadership following Mr. Davis’s retirement in 1985, PC prime minister Brian Mulroney offered him a job as Canada’s high commissioner in London. He and his family rubbed shoulders with royalty and British politicians for three years. Ria, who died in October, 2023, was tickled to play piano once for then Prince Charles. And Mr. McMurtry had to ruffle then-prime minister Margaret Thatcher’s feathers, as he and Mr. Mulroney championed sanctions she opposed for apartheid South Africa.

Former Ontario NDP premier Bob Rae, now Canada’s UN ambassador, said he thought so highly of Mr. McMurtry, despite sparring with him in the legislature, that he intervened in his favour both with Mr. Mulroney, who made Mr. McMurtry an associate chief justice of the Ontario Superior Court in 1991, and Mr. Chrétien, who made Mr. McMurtry Ontario’s chief justice in 1996.

Mr. Mulroney, who died last month at 84, had delayed the first judicial appointment, fuming that Mr. McMurtry had turned down the prime minister’s request that he run for a federal Tory seat when he returned from his post in Britain.

“I spoke to the PM, to Mulroney about that, and said, ‘he’s worth paying attention to’,” said Mr. Rae, who used to meet for lunch annually with Mr. McMurtry, Mr. Davis and their wives and jazz legend Oscar Peterson. “I disagreed with him on a bunch of stuff, we had fights about things, but I thought he was a very good guy in those positions and incredibly public-spirited.”

Ontario Court of Appeal Justice James MacPherson, one of the three appeal court judges who ruled alongside Mr. McMurtry on the landmark 2003 same-sex marriage case, said while all three agreed that prohibiting same-sex marriage violated the Charter’s equality provision, it was the then-chief justice’s leadership and courage that pushed them not to suspend the effect of the decision, in order to allow Parliament to craft new legislation, but to make it law immediately. Within days, the federal government said it would not appeal.

“It was a close call for us. But in the end, Roy thought this was the moment, and we were doing the right thing,” said Justice MacPherson, who along with the other judge on the case, Justice Eileen Gillese, visited Mr. McMurtry just days before his death. “And he said, let’s not suspend it. And Gillese and I trusted him. It was his judgment. And boy, did he get it right.”

Ontario Chief Justice Michael Tulloch said Mr. McMurtry had long been a close friend and mentor to him and other Black lawyers, and was highly regarded for decades in the Black community for his efforts to reform the justice system and fight racism.

“I am a direct result of his legacy,” Chief Justice Tulloch said. “The biggest honour that I have, is sitting in his office right now.”

Mr. McMurtry retired from the bench in 2007, but remained active as a lawyer and was involved in reports on youth violence and other issues. He leaves his six children, 12 grandchildren, five great-grandchildren and a brother, Robert McMurtry.

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