Muskoka's Role in Canadian Legal History
Article by J. Patrick Boyer
Muskoka’s leading industry may be tourism but the region also boasts legal importance and prestige in history. Russell M. Best in Bracebridge, for instance, ran an unprecedented string of defence wins when he was the only criminal lawyer between Barrie and North Bay. And “R.M.” attracted larger-than-life clients, from U.S. Treasury Secretary Andrew Mellon who summered at Lake Muskoka to entrepreneurial wrestler “Chief War Eagle” from Caughnawaga facing eviction from Port Carling’s Indian River Reserve.
The district’s roster of stellar lawyers includes seasonal Muskokans too. The district’s proximity to the urban south enticed significant players in the provincial and national scene as a convenient retreat. Taking the “Muskoka Cure” gave balance to their busy careers in the city, helped restore and maintain sound health and offered a detached perspective on public affairs. This phenomenon contributed to Muskoka’s outsized role in Canadian and Ontario legal history, as illustrated by the careers of James Gowan, William Middleton, James McRuer, Brendan O’Brien, Roy McMurtry, and Rosalie Abella.
Sir James Robert Gowan
Lake Muskoka Islander
Born in Ireland in 1815, James Robert Gowan came to Canada in 1832 and became a law student of James Edward Small. Gowan practised law with Small until, in 1843, his appointment as judge for the newly created Simcoe District. Simcoe was Upper Canada’s largest jurisdiction, encompassing territory to the north that included Muskoka. And Gowan was the youngest judge ever commissioned in the British empire to that date.
He made his home near Barrie at a place he named Gowan which became a railway stop. In 1873 he was a royal commissioner inquiring into the Pacific Scandal that toppled John A. Macdonald’s Conservative government because money from railway interests helped finance his election campaign in 1872. Two years after Gowan retired his judgeship in 1883, Macdonald, now re-elected prime minister, appointed him to the senate. In 1905 Gowan was knighted. Sir Robert resigned from the senate two years after that, his 22 years in public office having allowed him to take an important role in Canada’s public life.
Early on, Gowan had become familiar with Muskoka. As county judge for Simcoe, which was joined with Muskoka for judicial purposes, he heard cases involving district issues.
Apart from engaging in Muskoka legal issues from the district’s beginning, Gowan was also a Muskoka property owner. Appreciating Lake Muskoka more than Lake Simcoe’s Kempenfelt Bay where he resided, he bought a large island at the mouth of the Muskoka River and, in a nod to his Irish origins, named it “Eileen Gowan,” Gaelic for Gowan Island.
Summering tranquilly on his scenic private island, Gowan’s legal mind engaged intricate matters of state, one being codifying all criminal law in Canada. The complex work required analyzing and integrating numerous separate statutes of each province covering the spectrum of criminal offences, punishments for committing them and legal procedures for trying an accused person.
Gowan’s patient and uninterrupted work on Eileen Gowan contributed significantly to Parliament enacting the Criminal Code in 1892, the first code in a self-governing jurisdiction of the British empire. It merged existing statute law and common law, a revolutionary development in the legal world. The Code had a rational and systematic format, shifted development of criminal law from the judiciary to Parliament and became a model for legislators in other British jurisdictions.
As a senator in Ottawa, Gowan interacted with ministers of justice, the prime minister and counterparts in Britain and the U.S. As a seasonal Muskokan, Gowan’s relaxing contemplative setting in which to read and reflect helped vector diverse provisions into a single Code in all provinces and territories. The form of the 1892 Criminal Code remains fundamentally unaltered, with amendments almost yearly keeping it abreast of constant evolution in Canadian society.
Justice William Middleton
William Edward Middleton, born at Toronto in 1860, was a Justice of the Supreme Court of Ontario for 33 years. In that capacity, he wrote many insightful judgements that enriched Canadian jurisprudence. He also enhanced courtroom civility.
Middleton got to know Muskoka and become intrigued with its plant life in the 1870s, when he and three uncles his age made annual summer canoe trips. In 1879, the foursome found an abandoned cabin beside Lake Rosseau, north of Port Sandfield. After using it several summers, William located the original homesteader, John Forbes, paid him $300 for the property and built a cottage Middleton called “Subha,” or “place of peace.”
In tandem with his busy legal career, and alongside avid daily reading on diverse subjects to supplement his high school education, Middleton relentlessly pursued his Muskoka botanical investigations.
“His exploration of Muskoka kindled Middleton’s enthusiasm,” notes his biographer, John Arnup. His interest in botany led to photography and making glass slides of stem and flower cross-sections to study under his microscope. In the 1880s, Middleton revitalized the Royal Society, which formed a botanical section in 1890, and then spent four years lobbying the government to create Algonquin Park, which it did in 1893.
Muskoka was Middleton’s home-away-from-Toronto. He had one microscope in the city, two permanently at Subha. In addition to summer vegetable gardens, notes Arnup, Middleton created “a magnificent floral garden, partly with wild plants such as ferns and orchids, and partly with plants from a Toronto nursery.”
He also built a separate structure with screen windows. “The fresh air of Muskoka undoubtedly influenced the legal judgements that emanated from Middleton’s summer house,” observes Arnup, himself a senior judge. In addition to writing clear and engaging judgements in Muskoka that became precedents for other cases in years to come, Middleton worked an entire summer at Subha labouring over what became the Revised Statutes of Ontario, 1927.
Justice J.C. McRuer
Muskoka-connected Law Reformer
James Chalmers McRuer arrived in Huntsville in 1909 to work as an articling student in Albert Hutchison’s law office. He was still weak from tuberculosis the year before. He boarded with his physician brother, John, and recently wed wife Edythe.
McRuer soon became friends with Tom Thomson, a close friend of John’s and best man at his wedding. The four made weekend fishing excursions, with Tom taking many photographs. He gave McRuer several small oil paintings of Algonquin Park, saying “When I show them in Toronto, the big fellows laugh and ridicule them. But those are the colours I saw.”
There was not much work at Hutchison’s office. McRuer accompanied his brother on emergency medical calls to outlying homesteads by horse-drawn sleigh over moonlit frozen lakes. His time in Muskoka’s clean cold air made him healthier. He returned to Toronto and practised law.
When the Great War erupted, McRuer at first heeded his strong-willed father’s advice to not enlist. But in 1916, he snuck north to enlist at Huntsville. In Europe, commanding anti-aircraft artillery, Captain McRuer was wounded at Vimy Ridge.
After the war, he resumed law practice in Toronto, languishing for weeks without a single client. Canadians praised soldiers as heroes during the war but hired lawyers who kept up-to-date with changes by staying home and remaining in civilian play. Depressed and ill, McRuer returned to North Muskoka in wintertime to recover his health and take his bearings.
At Algonquin Park’s Highland Inn he met and spoke with two prominent Conservative Party politicians, shrewd Colonel Billy Price, MPP for Parkdale, and prominent Toronto lawyer Peter White. The new government’s strongman, Attorney General W.E. Raney, was crusading to strengthen enforcement of Ontario prohibition. Price and White believed McRuer could have a future in Raney’s department, hoping he might even moderate the zealous attorney general.
A devout Liberal, McRuer was pessimistic about landing a Crown’s job with Raney but Price offered to put in a word for him. After several weeks at Highland Inn, McRuer returned to Toronto, met with Raney and was hired. As assistant Crown Attorney in the busy Toronto office enjoying greatly expanded powers, McRuer was in court daily prosecuting alcohol related cases. His workload mounted as the 1920s roared on, violations increasing as people became contemptuous of prohibition.
McRuer was defeated running for Parliament as a Liberal in Toronto High Park, but Prime Minister King appointed him to a royal commission investigating conditions in Canada’s riot-producing prisons. He emerged a strong advocate for penal reform.
In 1944, King appointed McRuer to the Ontario Court of Appeal. In December 1945, Justice McRuer was interrupted at a Toronto Christmas Party to take a phone call. It was the prime minister. This time, King was appointing him Chief Justice of Ontario.
In ensuing years on the bench, on both substantive issues of justice and matters of procedure, Chief Justice McRuer was marked as a reformer, intent on people’s rights, who strove to keep law in phase with the society it is meant to govern.
As time passed, J.C. McRuer chaired Ontario’s new Ontario Law Reform Commission, first in the Commonwealth. In the 1960s John Robarts, Progressive Conservative premier of Ontario, appointed McRuer to investigate Civil Rights in Ontario. Ontario legislators, enacting McRuer’s recommendations over the following years, transformed civil rights for Ontarians. The list runs to hundreds of legislative changes, many copied in other provinces.
Wherever he went over these decades, J.C. McRuer hung his framed Tom Thomson paintings on the wall and looked at them wistfully.
Counsel Brendan O’Brien
Lifelong Muskokan and Historian
Born in 1909, Brendan O’Brien became a Muskoka summer resident from infancy, accompanying his parents to Kinkora, the family’s Port Cockburn cottage at the north end of Lake Joseph, where he spent all his early summers.
In Toronto, from 1932, O’Brien steadily rose in distinction over six decades as a civil litigator. In the 1950s, he also taught law. Elected in 1959 to the body running Ontario’s self-governing legal profession, he became head of it in 1966, outlining a plan that led to creation of the Law Foundation of Ontario. He knew interest accruing on lawyer’s mixed-trust accounts, which they had no right to and were too complicated to distribute to clients, meant the banks enjoyed a free ride, paying no interest while using the funds deposited with them. O’Brien’s solution, enacted in 1974, created The Law Foundation of Ontario, a non-profit corporation that received the millions of dollars in trust account interest yearly the banks began paying, to fund Legal Aid and legal education.
O’Brien was a writer of history himself. His 1992 book Speedy Justice told of the tragic last voyage of His Majesty’s Vessel Speedy, and the mystery and scandal surrounding the ship vanishing on Lake Ontario with loss of some 20 lives. For the Muskoka Lakes Association’s 1994 centennial book Summertimes, O’Brien wrote a chapter entitled “Memories / Cottage Life at the Turn of the Century.” Few portraits of the Muskoka experience match O’Brien’s fulsome accounts for rich detail, tragic turns and amusing dimensions.
His courtroom talent for accurate observation and reliable evidence rendered with telling gentleness translated directly into his writing style. O’Brien’s 1999 Muskoka history, The Prettiest Spot in Muskoka, deftly chronicles life at Port Cockburn, the Summit House, and the magnificent and engaging summer community to which Muskoka steamships sailed from Gravenhurst Bay. He wrote from his unique familiarity of Muskoka and family tales of earlier times.
In 2005, Brendan O’Brien received The Law Society of Upper Canada’s highest honour, the Law Society Medal – for “immense contributions to the legal profession over the past seventy-two years.”
Attorney General Roy McMurtry
Eileen Gowan Artist
Roy McMurtry’s parents met when summering in 1929 at Britannia Hotel on Lake of Bays. By the 1970s, he had his own place in Muskoka, on Eileen Gowan. Here McMurtry’s artistic creativity, reading, swimming, tennis, thinking and engagement with family and friends over meals became its own intensely satisfying universe; a counterpoint to his intense public action in legal, journalistic, athletic, political, judicial and diplomatic realms.
Roy’s oil painting began in his university student years. When working the summer in remote B.C. alongside immigrant labourers to teach them English, he took up a brush to express his feelings for the majestic mountains. The artist largely taught himself but his friendship with Group of Seven veteran A.J. Casson included mentorship, with the two men painting together. Each year for a decade, distinctive McMurtry canvases of Lake Muskoka featured on the Muskoka Sun’s front page, while other donated paintings raised money for good causes at charity auctions.
McMurtry rotated through roles as a football player and coach, courtroom lawyer, newspaper columnist, Member of Ontario’s Legislature, Attorney General of Ontario, Solicitor General of Ontario and candidate for the leadership of the Ontario Progressive Conservative Party. He served as Canada’s High Commissioner to the United Kingdom, Chair of the Commonwealth Heads of Government Committee on Cooperation through Sport, and Honorary President of Commonwealth Games Canada. He has also been Chair and CEO of the Canadian Football League, Chancellor of York University and patron and sponsor of organizations supporting opportunities for youngsters, impoverished people and those made victims of the law.
McMurtry also fostered educational initiatives to help young Canadians understand the justice system. He created the Ontario Justice Education Network in partnership with the justice and education communities to educate both students and members of the public about Canada’s justice system and the importance of the rule of law to Canadian democracy.
As Attorney General, working alongside his longtime friend Ontario Premier William Davis, McMurtry played a pivotal role in the patriation of Canada’s Constitution. During his years in the Legislature as Attorney General and Solicitor General, some 60 bills he sponsored became law, including many landmark measures. His leadership gave Ontario a bilingual judicial system, a network of community legal clinics across the province and Law Foundation of Ontario financial support for civil society.
One summer, when immobilized by a recurring back injury from football days, Ontario’s Attorney General had a hospital bed installed in his Muskoka cottage. Ministry officials had no objection to coming from the city to summertime Muskoka and taking a scenic boat ride to brief “the boss,” whom they found in bed alongside a pile of books and documents as he read his way to recovery.
That summer, one book reignited McMurtry’s concern that many vital stories of law, legal confrontations, and the profession’s changing nature were going to the graves with those who knew them. As a result, the Osgoode Society for Legal History was incorporated in 1979. The Society has since published a diverse range of 115 books on topics in Canadian legal history and recorded and archived more than 600 oral histories from legal profession members, making it the world’s largest oral history program dedicated to legal subjects.
Leading Jurist on Lake of Bays
Born in 1946 in a post-war refugee camp in Germany, Rosalie Abella arrived in Canada in 1950 with her parents, both survivors of Nazi Germany’s death chambers. Her father Jacob, a lawyer, was unable to practice because he was not a Canadian citizen. As a girl, Abella resolved to become a lawyer. She got her law degrees and at the same time graduated from the Royal Conservatory of Music in classical piano. From 1972 to 1976, she practised civil law and criminal litigation in Toronto.
Her career path realigned in 1976 when Attorney General McMurtry appointed her to the provincial Family Court. At 29, Judge Rosalie Abella was both the youngest and the first pregnant (eight months when appointed) judge in Canadian history. She and husband Irving had met as students at University of Toronto.
In 1983 Abella, as a federally appointed one-woman royal commission on equality in employment, coined the term “employment equity” to describe the project of reducing employment barriers that most women, visible minorities, people with disabilities and Indigenous People face. Theories of equality and discrimination she developed in her report were adopted in 1989 by the Supreme Court of Canada in its first case decided under the equality rights section of the Charter.
From the Family Court, Abella went on to chair Ontario’s Labour Relations Board, next to head the Law Reform Commission of Ontario, only to reappear in 1992 sporting a judge’s robe as a member of the Ontario Court of Appeal. In 2004, Madame Justice Abella exchanged her burgundy robe for a scarlet one as a member of the Supreme Court of Canada. This time, her double record was being both the first Jewish woman and the first refugee on the Supreme Court bench.
To assist with the restorative privacy that helped Abella balance her high-profile roles, the telephone number at the family’s Lake of Bays cottage was listed only under “Abella I.” Close to Camp New Moon, a Jewish summer camp Irving knew well, their thickly-treed property with its sand beach, dock, canoe and motorboat provided a discreet enclave for reading, conversation, thinking and relaxing over meals and with close friends. The Abellas savoured Muskoka’s natural comfort and took advantage of everyday living in the district.
Muskoka’s mystique resides in continuous integration of hinterland practices and metropolitan expectations, blending ice-age lakes and chilled white wine. These half-dozen cameos of seasonal Muskokans illustrate, with particularity, how a lakeland counterweight to the pressures of high-level public careers facilitated the positive contributions each of them made to society’s evolution. Muskoka’s reputation for conveniently offering a healthful “place of peace” where one can get a clear perspective is the sum of thousands of such experiences as these.