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The Globe and Mail

Colin Irving a legal force for same-sex marriage

Colin Irving argued cases before the Supreme Court 17 times between 1980 and 1990.

Stéphane Groleau

Colin Irving was one of those rare lawyers who often worked for nothing. An erudite litigator with a social conscience, he spearheaded a number of groundbreaking judicial appeals, most notably the case for same-sex marriage in Quebec.

The judgment that he won in the Quebec Court of Appeal in 2004 against religious group La Ligue catholique pour les droits de l'homme (the Catholic Civil Rights League) had national repercussions and allowed prime minister Paul Martin's government to introduce in 2005 legislation permitting same-sex marriage in Canada, the first country outside Europe to do so.

Mr. Irving "believed everyone had the right to float their own boat, that the law had to evolve with the times. The points he argued very much came from the Constitution and the Charter of Rights," said his son, Andrew.

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"He was a bit of a contradiction – an Anglo Westmount lawyer who was an adviser to the separatist Parti Québécois government and argued the PQ position against patriating the Canadian Constitution. He believed everyone deserved a chance to be heard, whether it was someone fighting a parking ticket, a tobacco company that wanted to advertise or someone convicted of a criminal offence. These things might not seem like much to someone on the street, but to the person having issues, it made all the difference in the world."

Mr. Irving, who was 78 when he died in Montreal on June 11, certainly made a difference in 1986, when he won a highly publicized appeal before the Supreme Court of Canada, securing the release from prison of Janise Marie Gamble, a 21-year-old who had been wrongly convicted of the 1976 murder of Calgary police officer Allan Harrison.

Colin K. Irving was born in Montreal Nov. 8, 1934, the only child in the family. His father worked for Power Corporation. As a boy, Colin was diagnosed with a respiratory condition and told he could not play sports. His mother suggested he learn to play the piano instead. His children recall falling asleep to the smell of his pipe as he played Brahms and Schubert.

Mr. Irving obtained his law degree from McGill University in 1955 and was with several law firms, doing work for the Alberta, Newfoundland and Quebec governments, before he went into partnership with Doug Mitchell and Peter Kalichman in 1997.

"What was remarkable was that between 1980 and 1990, Colin argued cases before the Supreme Court 17 times, a period which represents a tremendous change in Canadian history," Mr. Mitchell told The Globe and Mail. "He was a man who tried to simplify things. His arguments didn't necessarily always conform to his own beliefs. He didn't judge his clients. He didn't need to share his client's beliefs. As an advocate he was elegant and simple, with a sense of fairness, and he did a superb job."

It was in 1982, while watching the CBC's the fifth estate in a Newfoundland hotel room, that Mr. Irving learned about Janise Gamble. To put the case in a nutshell, Ms. Gamble was present when, in 1976, her abusive husband and a friend robbed a Calgary credit union. Hostages were taken and a policeman was killed. Her husband committed suicide rather than face prison; Ms. Gamble was tried and convicted.

Although criminal law was outside Mr. Irving's expertise, in his mind the life sentence she had received for being in the wrong place at the wrong time was cruel and unusual punishment, punishment that violated The Charter of Rights and Freedoms.

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Goaded by his daughter, Caroline, he took Ms. Gamble's case pro bono, and eventually to the Supreme Court. Canada's top judges agreed with him and Ms. Gamble was released on parole in 1989. She was killed in a car accident shortly afterward.

The prominent Montreal lawyer and former head of the International Olympic Committee Richard Pound, who wrote a book about the case, Unlucky to the End, said that Mr. Irving always retained a professional sense of wonder about the judicial process. "Because of the legal construct of the occasion," Mr. Pound told mourners at the funeral, "Some guilty pleas have to be recorded: He was guilty of being a superb lawyer and one of the finest pleaders in the country. There was at least one occasion in the Supreme Court when the judges advised their clerks to attend the hearing, for a chance to hear one of the best …"

In 2004, Mr. Irving agreed to represent Michael Hendricks and René Leboeuf, partners for 31 years, who wanted to marry. As early as 1996, the couple had begun to lead protests seeking the right to marry.

In November, 2001, they sued the government of Quebec on the grounds that its refusal to perform same-sex marriage violated The Charter.

In December, Quebec announced that it would bring in legislation to allow civil unions that would give same-sex couples a status equivalent to marriage. The bill was passed in June, 2002.

In September, the Quebec Superior Court ruled that the limitation of marriage to opposite-sex couples violated Charter rights and ruled that laws preventing same-sex marriage in the province would be null – but not for two years.

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In January, 2004, Mr. Hendricks and Mr. Leboeuf, who had unhappy experiences with a number of other lawyers they had hired during the proceedings, were represented by Mr. Irving and Martha McCarthy in appealing the decision, specifically the two-year delay. The appeal cited rulings that had implemented same-sex marriage immediately in Ontario and British Columbia the previous summer.

"There were no lawyers around at the time with experience in gay rights. The ones who were prepared to represent us gave us a hard time. We couldn't put up with that," said Mr. Hendricks. "When Colin was recommended, I had my doubts. But he was immediately sympathetic to our cause. He was impressive in court. Outside the courtroom he was very laid-back, not judgmental. He was not aloof at all."

On March 19, the Quebec Court of Appeal struck down the delay and ruled that same-sex marriage licences be issued immediately. On April 1, Mr. Hendricks and Mr. Leboeuf married.

"The last time we saw him was at our wedding. He wouldn't have missed it for the world," Mr. Hendricks said.

Mr. Irving started a walk-in legal clinic at the Tyndale St-Georges Community Centre in Montreal's Little Burgundy neighbourhood – "because ordinary people can't afford to go to trial, and that creates a problem for all of us" – and he volunteered at a legal clinic in Mile End. "His commitment to social justice, and to those less fortunate, was admirable. He was good at it," said former Tyndale St-Georges board chairman Tony Infilise.

Although he was told he would never be an athlete, Mr. Irving was a fierce competitor on the squash court, was a Canadian doubles champion and enjoyed badminton and golf. He was the first lawyer to be awarded the Saint Yves Medal, first given three years ago by the Quebec Bar for outstanding pro bono contributions. This May, he was recognized by the Canadian Civil Liberties Association for excellence in advocacy.

His first marriage, to Carol Gail Schindler, a nurse with whom he had three children, ended in divorce. His second wife, his childhood sweetheart Ann Fish, was a social worker whom he married in 1991. She died in 2007. He leaves his children, Caroline, Andrew and Gillian, and his extended family.

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