He was the last of Canada’s Supreme Court judges to have served in the Second World War, and the experience left a deep mark, especially a letter he received from the mother of his dead tail gunner.
At just 19, Peter Cory was a pilot for the Royal Canadian Air Force, flying 22 missions and dropping bombs on Nazi Germany. Twice his aircraft was struck by enemy fire, and when gunner Hayward Selby Tulk of Newfoundland was lost at 20,000 feet over Hamburg, he wrote to the young man’s mother. She replied that if her son had flown with a better pilot, he might still be alive.
Someone else might have shaken off a grieving mother’s letter, says Ian Binnie, a former colleague on the Supreme Court. Not Mr. Cory.
Forty years later, speaking on Remembrance Day, Mr. Cory would say that he still thought constantly of his tail gunner, and that Mr. Selby’s mother had been right.
“The events created an emotional burden that lasted the rest of Peter’s life,” Mr. Binnie says of the respected jurist, who died in his sleep at home in Mississauga, Ont., on April 7 at age 94.
Mr. Cory would go on to leave his own, deeply liberal mark on Canada and the international community, a mark that reflected, his former colleagues say, a moral courage and a sympathy for the underdog forged in wartime. But he is remembered equally for his compassion and gentleness.
“He was legendary for his kindness,” Toronto lawyer Frank Addario says.
Peter Cory was born on October 25, 1925, the youngest of four children, in Windsor, Ont. Ability with words ran in the family. His father, Andrew, who had been a major in the field artillery in the First World War, went on to a career in advertising. (For a time he was a night editor at The Mail and Empire, predecessor to The Globe and Mail.) His mother, Mildred (née Beresford-Howe), was a cousin of the novelist Constance Beresford-Howe. His grandfather, William Johnson Cory, published poetry.
As a youth, Mr. Cory was an excellent pianist and played hockey and football. He enlisted in the RCAF at age 17. (His son believes he had his parents’ written permission.) At 19, he was flying dangerous missions in powerful four-engine Lancasters. Out of 7,377 Lancasters built, 3,932 were lost in action, according to the website of the Bomber Command Museum of Canada.
The experience had incalculable effects on the sensitive youth. Years later, he would describe how moved he had been by the grace of a British pilot, who – while falling to his death – spoke into his radio to thank Canadians for their sacrifices, concluding, “See you for tea.” He told how he had turned to law after being impressed by the courage of defence counsel at a court-martial of an unpopular defendant. And he gave up the piano as frivolous, according to his son, Chris Cory.
“Like so many guys from World War II, he came home on a mission,” Chris says. “It was all about building.”
In 1945 he met Edith Nash of Amherstburg, Ont., not far from Windsor, at a roadhouse where they shared a beer. In 1947, they married. They had three sons and stayed married till her death in 2004.
Also in 1947, he received a BA from the University of Western Ontario. In 1950, he earned his law degree from Osgoode Hall. Eventually Mr. Cory joined Holden Murdoch in Toronto, specializing in civil litigation. Committed to public service, he became a governing member of the Law Society of Upper Canada, head of the Ontario Civil Liberties Association and the Advocates’ Society, and a children’s hockey coach. In 1963, he was named Queen’s Counsel. He was appointed to the Ontario Supreme Court in 1974 and to the Ontario Court of Appeal in 1981. In 2002, he was named a companion of the Order of Canada.
He could turn a phrase while standing up to age-old ways of doing things. In a 1987 case, lawyer Harry Kopyto faced a contempt-of-court charge for telling reporters the courts were warped in favour of police. “But the courts are not fragile flowers that will wither in the hot heat of controversy,” Mr. Cory wrote, and the appeal court quashed the charge. Ever since, Canadian courts have been fair game for criticism.
In 1989, then-prime minister Brian Mulroney chose him for the Supreme Court of Canada. There, on a sometimes fractious court, his kindness to lawyers became a regular feature of hearings.
“Questions from judges are sometimes tough and persistent and when members of the court are all talking at the same time the impact can be quite intimidating,” Mr. Binnie said. “Peter would often come to counsel’s assistance in a court free-for-all saying, ‘Well, Mr. Smith, I suppose your point is …‘ and he would then lay out the argument the lawyer ought to have been making, and conclude by asking ‘Have I got that right?’ And of course the lawyer, if smart, would grab the lifeline with both hands.”
The kindness showed up in other ways, too. On many afternoons he brought cookies to each judge. Once, when an inmate handling his own appeal had forgotten his glasses, Mr. Cory gave him his. Another time he had a court clerk take a sweater to a child in the public gallery who appeared to be cold during a hearing.
Similar sensitivity was at the heart of his approach to law, and in particular his embrace of underdogs and the marginalized.
“One of the important qualities of a judge is empathy, sympathy. Peter’s component of empathy and sympathy was second to nobody’s,” says Frank Iacobucci, his former Supreme Court colleague, who lunched with him daily.
On a court that would be derided by the new Reform Party as soft on criminals, he became a key figure.
In the case of Elijah Askov in 1990, he wrote a ruling that dismissed serious charges because of unreasonable delay. “The time awaiting trial must be exquisite agony for accused persons and their immediate family,” he wrote. (“Exquisite agony,” like “hot heat,” is a phrase etched into the minds of lawyers such as Mr. Addario.) Thousands of cases were dismissed. He later said publicly that he and his colleagues had not expected such a result.
Over and over in his rulings, he wrote about “human dignity” as the core principle of the then-young Charter of Rights and Freedoms. “Human dignity” appeared more than 35 times in his 1991 dissent in the case of Joseph Kindler, in which the majority agreed to extradite an accused killer to face the death penalty – which he called the “annihilation of the very essence of human dignity.” (Ten years later, the Supreme Court reversed itself on extraditing to the death penalty, accepting that Mr. Cory had been right.)
The case that touched him most deeply, his son Chris says, was that of Sue Rodriguez in 1993, on medically assisted dying. He wrote a dissent as the court voted 5-4 against legalizing it. (This time it would be 22 years before the court reversed itself, quoting from Mr. Cory’s 1993 dissent as it did so.) In the case of Delwin Vriend, in 1998, he co-wrote (with Mr. Iacobucci) an important gay-rights judgment, “reading in” to Alberta’s human rights code protection for gays and lesbians. The two received hate mail afterward suggesting they had a romantic relationship, Mr. Iacobucci said.
His criminal-law rulings aroused huge controversy. In 1997, he wrote a majority ruling allowing the defence of extreme drunkenness akin to automatism to be used in a case in which a 65-year-old woman in a wheelchair had been sexually assaulted. In the case of William Stillman, that same year, he wrote for the majority tossing out a conviction and ordering a new trial for a 17-year-old in a rape-murder case after police took hair samples under threat of force. The case set a standard for the exclusion of illegally obtained evidence.
His criminal-law rulings were influenced by the burden he carried from the war, Mr. Binnie says.
“I think Peter was a very emotional man,” Mr. Binnie says, “despite giving the impression of a very calm and somewhat reserved individual. His whole wartime experience, including the mother's blame, gave him an emotional understanding of people caught up in circumstances beyond their control, and who in the result do strange things.”
Mr. Iacobucci said that appellate courts – and especially the Supreme Court – depend on the collective experiences and values of their members.
“You don’t leave your background on the outside staircase of the court. You bring it inside. Peter’s background strengthened his resolve to respect the dignity of each and every human being.”
Behind his courtly manner lurked a mischievous sense of humour. When judges from a German court visited Canada, Mr. Binnie recalls, one asked Mr. Cory if he had been to their country, and when he replied that he had, he was asked on what occasion.
“Oh, it was on government business,” he said.
After his retirement, he led an inquiry in 2000-01 into the wrongful conviction of Thomas Sophonow of Manitoba, sharing insights on the perils of eyewitness evidence that criminal lawyers say are still relevant today.
An enormous challenge still lay ahead. In 2002, the British and Irish governments retained him to lead an inquiry involving eight murders. In four of the murders, British security forces were suspected of colluding with the killers. In the other four, Irish security forces were suspected of collusion. No peace agreement was possible because of unresolved questions around the killings. His job was to investigate and determine whether there was enough evidence of collusion to call a full, public inquiry into the murders, which were divided into six cases.
After Mr. Cory passed his recommendations to the two governments, supporting inquiries in five of the six cases, the British government of Tony Blair declined to inform four of the families. (The recommendations in the Irish cases had been released, but not the British ones.)
The families had been waiting years for answers. Patrick Finucane, a lawyer who had defended Irish Republican Army suspects, had been shot dead in front of his wife and children in 1989.
Twice the courtly Mr. Cory spoke to a senior British official, saying on the second attempt he would tell the families if the Blair government would not, says Renee Pomerance, who was his counsel in the inquiries, and is today a judge of the Ontario Superior Court.
“He wore a velvet glove but there was most definitely an iron fist,” she said.
After he tried a third time and received no response, he told the families what he had recommended. John Finucane, today a Belfast MP in the British Parliament, says he will never forget Mr. Cory’s phone call.
“It was an incredibly humane act,” he says. “He didn’t have to do it. He was somebody who just oozed integrity. He was just a very decent man at heart.”
Today, his work and name continue to be cited as the peace process moves forward.
“Within Northern Ireland and the Republic of Ireland, his moral courage, his determination to expose the truth and his compassion for those who suffered personal loss will not soon be forgotten,” Justice Pomerance says.
Mr. Cory leaves his three sons, and nine grandchildren.