Late last year Roy McMurtry released his autobiography, Memoirs and Reflections, giving his account of a long and, some would say, distinguished career in public service. McMurtry has played a role in numerous political and legal dramas in this country since the 1960s, taking on bit parts in the leadership races of the federal and provincial Progressive Conservative parties to his decisive role in the road to permissive abortion and legal recognition of same-sex marriage. For political junkies and those interested in these critical moral issues, this book has been a long-time coming.
It is a little disappointing that he seems to have skimped on some of the political intrigue at the beginning of his career, including how he worked with Dalton Camp and Norman Atkins to remove former prime minister John Diefenbaker as leader of the Progressive Conservative Party of Canada and how he avoided taking sides in the 1971 Ontario PC leadership race between Bill Davis, his friend from university, and Allan Lawrence, whose candidacy was managed by McMurtry’s close friend Atkins. The aftermath of that race, which Davis won, led to meetings arranged by McMurtry that led to the creation of what became known as the Big Blue Machine, although the author eschews use of the term.
McMurtry races through these interesting political times, simply noting that he organized a dinner and the conversation was difficult until they all had a few drinks, so we never find out if he was a central or marginal player in the Progressive Conservative parties at the time. But that becomes a pattern as he lets us see just briefly the events in which McMurtry has been privy.
McMurtry rebuffed overtures to run as an MPP, chosing instead to become the PC Party of Ontario’s legal counsel, but in 1973 he left his legal practice to run in a by-election, which he lost. He ran again in the general election two years later and won and was immediately appointed attorney general, a job he held for a decade, and it is this period and role on which the memoir focuses.
Of interest to Interim readers is the chapter on Henry Morgentaler, which he couples with the case of Susan Nelles, a nurse at Toronto’s Hospital for Sick Children who was charged with the first degree murder of four infants who died of an overdose of digoxin.
Like the Nelles case, the handling of the case against Morgentaler in the 1980s when the late abortionist opened an illegal abortion mill in Toronto, was controversial – McMurtry often notes that issues are controversial, garner media attention, and are emotional.
McMurtry is upfront describing his views: “Personally, I have long believed in the right of a woman to decide whether to abort a pregnancy,” explaining, “I came to this pro-choice position many years ago,” although he “can understand the strong emotions” of both sides of the debate. While he says his view was influenced by his “strongly” pro-abortion wife, he does not clarify what exactly “long believed” and “many years ago” mean, which is both curious and not surprising. It is an important detail, but one that might call into question whether he acted according to his personal views or the law when carrying out his duties as attorney general of the province while Morgentaler was operating his illegal abortion facility.
At the time, abortions had to be carried out in a hospital with the approval of a therapeutic abortion committee. Even if pro-lifers view those committees as simply providing rubber-stamping approvals, the free-standing abortion mill clearly did not abide by this requirement of federal abortion law, entrenched in the Criminal Code.
McMurtry said one of the “more challenging decisions” as attorney general was whether to appeal the jury verdict that acquitted Morgentaler of doing illegal abortions. He said the police charged Morgentaler with violating the Criminal Code and that it was “probably” done without “any consultations with the Ministry of the Attorney General.” Again, it is odd considering how cognizant he was of media coverage of controversial cases, that he does not have any “recollection” of meetings to approve the arrest or that he cannot categorically deny they ever occurred.
On Nov. 8, 1984, the jury accepted the argument of Morgentaler’s lawyer, Morris Manning – a former employee of the Ministry of the Attorney General – that regardless of the facts of the case, they should acquit his client by ignoring what he claimed was an unjust law. McMurtry acknowledges “the fundamental facts related to the prima facie breach of the Criminal Code were not in dispute” and that “it is not the role of the courts to consider the validity of policies underlying legislation.” After consulting with ministry senior staff – there is no mention of consultations with Premier Davis or the cabinet – it was decided in December they would appeal the decision.
McMurtry requested that Morgentaler not reopen his facility until the appeals process was completed, but the abortionists refused. The Court of Appeal accepted the province’s argument that the jury instruction by Manning was improper and also found that the Criminal Code did not violate the Charter’s guarantee of the security of the person, and ordered a retrial. Two years later, the Supreme Court of Canada overturned the decision, finding the abortion restrictions a violation of Section 7 of the Charter.
McMurtry rehearses these facts, but does not give much detail on what was happening inside the attorney general’s office and what specific role he played, or if there was any political pressure. He does not acknowledge the massive campaign by pro-lifers to inundate his office urging him to appeal or the reaction of religious leaders denouncing the jury trial. He only relates what the Globe and Mail and Toronto Star editorials said about the appeal (this is also a common trope throughout the memoir, noting how editorialists reacted to his actions).
Remarkably, he admits the timing of the appeal was “a problem for my political career” as he was ready to run for leader in January 1985 to replace Davis. Due to the controversy surrounding his office’s handling of the Morgentaler file, McMurtry was forced – excuse the pun – to abort his leadership bid before the party convention.
After serving as High Commissioner to the United Kingdom, he was appointed to the Ontario Superior Court in 1991 and Chief Justice of Ontario in 1996, leading the Court of Appeal, serving 16 years total on the bench. It was there, in 2003, that he played yet another central role in a major moral issue, this time the legalization of same-sex marriage.
Fortunately, the SSM case, Halpern vs. The Attorney General of Canada, is one of two cases he examines from the 11 years he was on the Court of Appeal, but it quickly becomes evident he does so only because he is particularly proud of the decision. McMurtry said the “central issue” of Halpern was whether the traditional definition of marriage breached the equality section of the Charter and thus violated the rights of homosexuals to marry one another. After quoting from the decision he wrote, McMurtry comments that preventing homosexuals from marrying “offended the dignity of persons in same-sex relationships and therefore violated the equity section” of the Charter. He does not provide any commentary on the arguments against SSM.
McMurtry notes that his court rejected the federal government’s request to suspend the decision to give Parliament time to redefine marriage; instead, he took it upon himself to “reformulate” marriage from the union of one man and one woman to the exclusion of all others to “the voluntary union of for life of two persons to the exclusion of all others,” effective immediately.
What McMurtry does not explain is how this is not respecting the “policies underlying legislation,” for which he criticized the jury that let Morgentaler go. Indeed, he is incredulous that Parliament would even consider addressing SSM at all after his court pronounced on it and questioned “the alleged value of a parliamentary debate,” declaring in these memoirs it was “time for Canadian society to get beyond the issue of same-sex marriage and to see that the ‘sky wasn’t falling’.”
McMurtry brags of being “pragmatic” and a “Red Tory” and wonders hopefully if his role in the Halpern decision might have influenced Stephen Harper to drop the Progressive from the federal Progressive Conservative Party’s name after it merged with the Canadian Alliance. He also brags of his “relationship” with the “gay and lesbian community” with included a reception “they” organized to raise funds for a garden in his honour and a fawning five-page portrait in the gay newspaper Xtra! written by Gerald Hannon. One might wonder about the appropriateness of the beneficiaries of one of his legal decisions raising funds to honour him, but it does not seem to bother McMurtry.
At 562 pages the book is thick but light on many details, often glossing over controversies and occurrences with too little insight about what has happening behind the scenes, beyond the headlines in newspapers. The apparent evolution in his thought about judicial activism (a word he never employs) is not explained. An honest assessment of the tension between his personal views and his view of his job as attorney general or justice is never even entertained. McMurtry is an important player in Ontario history, but his memoirs are disappointingly lacking in information that would have elucidated readers on what really happened while he was making that history.
Paul Tuns is editor of The Interim and author of Jean Chretien: A Legacy of Scandal.