He legalized so-called same-sex marriage in Ontario in 2003, despite the fact his daughter was involved in a same-sex relationship at the time, and partied with the very litigants involved in the case a scarce two weeks later. Now, it has emerged that Roy McMurtry is a friend of Canadian abortion king, Henry Morgentaler.

A retrospective article by Kirk Makin in the Globe and Mail quoted McMurtry as saying that, despite an “erroneous perception” of him as being “anti-choice” on the abortion issue because of his prosecution of Morgentaler during his time as Ontario attorney-general, “Dr. Morgentaler and I became sort of friends in later years.”

He added that he has his own views on abortion, which happen to “relate to the right of women to make their own choice.”
The article also outlines McMurtry’s professed anguish over being cast as a “homophobe” for the 1981 raids of four Toronto homosexual bathhouses. “I had nothing to do with the bathhouse raids,” he declared. “It really looked like we were dissolving into a police state. The whole thing looked terrible. Without a doubt, that was one of my most frustrating experiences.”

McMurtry has also been involved in the recent commemorations of the 25th anniversary of the Charter of Rights and Freedoms. He, along with Jean Chretien and Roy Romanow, were “prime architects” of the Charter because of their involvement in a negotiation session on Nov. 4, 1981 that resulted in a constitutional accord approved by all provinces except Quebec. This development is still seen by many Quebecers as a betrayal.

The key to the document’s success was the addition of the “notwithstanding” clause, which allowed governments to override guaranteed protections. Romanow now says the clause has essentially fallen out of use. Pro-family Canadians, to no avail, called for the clause to be invoked in the same-sex “marriage” fiasco.

For his part, McMurtry pooh-poohs the charge of judicial activism or supremacy thanks to the Charter, claiming that the power of judges over politicians has been “greatly exaggerated” and is, in fact, minimal. The Charter has created a healthy, robust dialogue between two branches of government, he suggests.

McMurtry has taken the highly unusual step of endorsing a candidate, Dennis O’Connor, to replace him as Ontario Chief Justice when he retires this month. Ottawa Citizen columnist John Robson observes that this smacks of “the instinct of a ruling elite to control its own membership.” He is also criticizing McMurtry’s disdain for elected judges and the concept of judges making rulings on the basis of public approval. “If judges rule us, we want to choose them,” Robson retorts.

Robson’s contentions are supported by a poll showing that 63 per cent of Canadians like the idea of elected judges. And interestingly, a bare majority – 53 per cent – think the Charter of Rights has had a positive effect on the country. Fewer than half – 47 per cent – say they trust the Supreme Court more than Parliament.

Despite the controversies that continue to swirl around McMurtry and his legacy, a “McMurtry Gardens of Justice” is being constructed in Toronto. Through professionally commissioned sculptures, the site will typify “the values that underlie our system of justice.” A Law Foundation of Ontario press release on the matter failed to mention whether depictions of gay bathhouses or abortions will be included as part of the artwork.