Roy McMurtry, former Ontario attorney general and legal giant, dies

TORONTO — Roy McMurtry, a legal and political giant in Ontario who helped pave the way for same-sex marriage as a judge and a key player in the Canadian Constitution, has died at 91.

McMurtry, a trial lawyer for 15 years, won his Eglinton riding in Toronto in 1975 and was immediately appointed attorney general under Progressive Conservative premier Bill Davis.

He held that post for 10 years and also served as the solicitor general for four of those years. He then spent several years as Canada’s High Commissioner to Great Britain until he returned to Canada in 1988, where he joined his brother Bill at the law firm Blaney, McMurtry. 

He served as the chairman and CEO of the Canadian Football League in 1989 and 1990, and by 1991 was appointed a judge.

McMurtry served as associate chief justice, then chief justice of the Superior Court, before being appointed to the Court of Appeal for Ontario as chief justice of the province in 1996, a role he held until being forced to retire at 75 in 2007.

“Former Chief Justice McMurtry was a giant whose vision and brilliance helped shape the province and country we live in today,” the Appeal Court wrote in a statement Tuesday.

“He will be missed.”

During his time as attorney general, McMurtry oversaw a number of important reforms in the justice system, including bilingualism in the courts and family law reform, said current Ontario Attorney General Doug Downey.

“The Hon. Roy McMurtry will be remembered for his unwavering commitment to justice, enduring impact in government, strong leadership and for inspiring those in pursuit of a more just and equitable society,” Downey said.

The former attorney general was also instrumental in the creation and expansion of the province’s legal aid system, said Boris Bytensky, president of the Criminal Lawyers Association.

“It’s not widely known, but the model that we’ve had about ensuring that the poorest and most needy persons in Ontario who are caught up in the criminal justice system got fair and meaningful representation was through the efforts of Roy McMurtry,” Bytensky said.

McMurtry played a pivotal role in negotiating the Charter of Rights and Freedoms and patriating Canada’s Constitution during his time in provincial government, said the Court of Appeal for Ontario.

Canada took control of its own Constitution from Britain in 1982, but it wasn’t easy for then-prime minister Pierre Trudeau to convince all the provinces to get on board after a lengthy legal battle in numerous courts.

The so-called “Gang of Eight” — premiers of Alberta, British Columbia, Manitoba, Newfoundland, Nova Scotia, Prince Edward Island, Quebec and Saskatchewan — opposed the Constitution and its central document, the Charter.

After several days of talks at the National Conference Centre in Ottawa in the fall of 1981 among all the attorneys general, Jean Chrétien, then justice minister, huddled in an unused kitchen with McMurtry and Saskatchewan attorney general Roy Romanow.

The three hammered out the basics of a deal, which became known as the “kitchen accord.” McMurtry and Romanow got Chrétien to compromise by adding the “notwithstanding clause” that gave provinces the ability to protect legislation that would otherwise violate Canadians’ Charter rights.

McMurtry was also one of the judges of the Appeal Court who upheld a lower-court ruling that found the common-law definition of marriage was against the Charter, which paved the way for legalization of same-sex marriage at the federal level.

Doug Elliott, a prominent gay-rights lawyer, said the two became “improbable” friends. 

Elliott, along with many in the gay community at the time, long believed McMurtry, as solicitor general, was behind the infamous raids in Toronto in 1981 that saw several hundred police officers storm bathhouses and round up nearly 300 gay men.

That spurred Elliott to become an LGBTQ+ civil rights lawyer. 

He later learned McMurtry played no part in the raids, but felt the politician could have at least spoken out about how the men were treated.

Elliott carried that grudge for years until the two met when McMurtry was chief justice. 

Elliott invited the judge to speak at a conference for LGBTQ+ lawyers. McMurtry agreed, but wanted to meet with Elliott in his chambers before.

The pair had a heart-to-heart about the raids and McMurtry said he felt maligned by the community.

“That’s fair criticism,” Elliott remembers McMurtry telling him. He said McMurtry admitted he didn’t have the courage to speak up at the time while he was in government.

Elliott then noticed a letter from the grand wizard of the Ku Klux Klan on McMurtry’s office wall condemning the judge as a traitor to the white race because lawyers during his time as attorney general had prosecuted white supremacists.

“He was very proud that he got slammed by the Ku Klux Klan and I thought it was pretty telling, isn’t it?” Elliott said.

Years later, the two would cross paths again when McMurtry, as chief justice, appointed himself to hear a seminal case on the Charter, the very document he helped bring into the world.

Elliott represented Metropolitan Community Church of Toronto, which was challenging the constitutionality of the common-law definition of marriage.

They had been successful at a lower court, but the federal government appealed. McMurtry was among a panel of three judges who heard the case at the Appeal Court. The trio found the law violated the Charter.

The federal government backed down, did not try to appeal to the Supreme Court of Canada, and wrote new legislation legalizing same-sex marriage.

“He had gone from being a pariah to the toast of the LGBTQ community,” Elliott said.

Years later, when Elliott and his husband married under the new law, McMurtry made him a “happy, peaceful” painting. It was a colourful image of a bridge in southern France that hangs in Elliott’s office today.

“To have a painting done by the judge who made my marriage possible, that’s something, I’ll tell you,” he said.

The two stayed close until the end. 

McMurtry’s wife, Ria, died in October 2023. It was a devastating blow to the man who adored her so much, Elliott said. 

“Despite the high-powered jobs, he was a family man, and, really, a happy person,” he said.

McMurtry, who was named an Officer of the Order of Canada and appointed to the Order of Ontario, loved to spend time at his cottage in Muskoka with his family. He had six children and 12 grandchildren.

“He was a gentleman, an artist, and someone who liked to have fun and to skinny dip at midnight in Muskoka,” Elliott said.

“He was a character with a big heart.”

This report by The Canadian Press was first published March 19, 2024.

Liam Casey, The Canadian Press