Thursday Thinkpiece: Grace and Wisdom–Patrick G. Kerwin, Chief Justice of Canada

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Grace and Wisdom: Patrick G. Kerwin, Chief Justice of Canada

ISBN: 9781927032978 (hardcover), 9781927032688 (softcover)
Page count: 340
Publication date: May 2018
Price: $36 (hardcover) or $24 (softcover), + $5 shipping
To purchase: visit www.chiefjusticekerwin.ca or Petra Books
Publisher: Petra Books
© Stephen G. McKenna 2018
Contact: contact@chiefjusticekerwin.ca

Excerpts from various chapters

From Chapter 2: Growing Up – Sarnia

According to an oft-repeated story in our family, Patrick, at the age of fourteen, decided to quit high school and get a job to help out with the family’s finances. As the eldest son, he took his position very seriously and felt that it was up to him to provide for his mother and siblings. The ambitious young man quickly found a delivery job with a local butcher shop. This was a job where getting all the deliveries done in a timely manner was important as his cargo was freshly-cut meat. Patrick’s tasks included loading the orders onto a one-horse wagon and making deliveries to private homes in the morning with this routine being repeated for the afternoon run as well. Patrick, having been a good student, enjoyed reading very much and would bring a book along on his route. After a short time on the job, the book interested him so much that he pulled off the road to read for a while. When customers complained, Patrick was summarily dismissed from his job. Patrick was later quoted as saying that, “getting fired as delivery boy was the best career move I ever made”.

After this episode, he and his mother approached a particularly helpful Sister at the high school to see if something could be done to finance the young man’s further schooling and help the family finances. On Patrick’s behalf, this Sister approached the local Member of Provincial Parliament (MPP) to inquire if any form of reasonable employment arrangements could be made for the young lad. This was about 1903 and the member of the Provincial Legislative Assembly was the Hon. William John Hanna who held the seat for Lambton County West for the Conservative Party from 1902 to 1918, and was the head of a successful local law firm…introduced young Patrick to the business of legal practice.

From Chapter 3: Law School – Toronto

Patrick circa 1910

As a student attending Osgoode Hall, and in spite of having articled in law offices, Patrick needed extra funds to pay the bills as his family was not able to assist with continuing educational costs. His musical talents proved useful, and he was hired as a pianist for the picture shows in film halls.

This new form of entertainment was inexpensive to attend and was considered a lower class activity by many. As this was not the type of occupation any ‘respectable’ young man would be involved with, his piano accompaniment job was all very hush-hush with only his closest friends and family knowing what he did to make ends meet.

A story his daughter related of these times involved her father improvising or reading the music. He memorized what to play for the films and then repeated it numerous times. This allowed Patrick to put his law textbooks up on the piano so he could study while he played along with the action in the film — an excellent example of multitasking.

From Chapter 5: Family and Career

P. Kerwin’s Osgoode Hall Graduation photo, 1911

In Guelph, Patrick mostly kept to family and a small circle of friends. In the family home he played quite often on a grand piano, and, as time went on, his children also learned to play.

Long-time friends of Patrick and Georgina were Jack and Grace Baker whom they came to know while living in Guelph…. The Kerwins would have Jack and Grace with a few other friends to their home on Park Avenue to play cards and, later, to sing songs with Patrick at the piano. Apparently, if you hummed Patrick a few lines from a popular song of the day, he quickly had the gist of the tune and, in a short time, the whole room would be singing along. The older Kerwin children covertly listened from the top of the stairs as their parents and friends had fun “singing their hearts out”, as Isobel recalled. For the children, this brief bit of parental observation lasted only until they were noticed and promptly sent scurrying back to bed.

The friendship with the Bakers lasted the rest of Patrick’s life. The Kerwins had an open invitation to the Bakers’ cottage each summer at Cedarhurst Beach on Lake Simcoe near Beaverton, Ontario.

Patrick’s preference was to keep a low profile socially and stay out of the public eye, preferring family activities, quiet time and work. However, as a noted resident, and as was the custom of the time, one’s social activities were often published in the local newspaper whether it be for husband or wife.

From Chapter 6: The Ontario Court – Toronto

In 1932 Patrick was acting as the special Crown Prosecutor for the province during the fall session of the Ontario Superior Court in Hamilton, Ontario, when he received a telephone call at noon on September 27 that changed his and his family’s lives.

At the age of forty-two, just one month shy of his forty-third birthday, Patrick was the youngest person yet named to the Ontario bench. For twenty-one years prior, he had been practising law in Guelph and was the senior partner in the firm of Guthrie & Kerwin.

Larocque Trial
In December of that same year, the new Ontario Justice Kerwin travelled to L’Orignal, Ontario, where he presided over a murder trial. Two men were accused of killing a young helper named Bergeron on their farm on whose life they had arranged and placed insurance.

The Jury came back after deliberating for a few hours with a verdict of guilty. It was at this time that Justice Kerwin sentenced both accused to hang.

The Ottawa Journal wrote,

It was Mr. Justice Kerwin’s first time to preside over a murder case in an Assize court since his recent appointment to the Bench and he was visibly affected as he passed the double death sentence at the conclusion of the lengthy trial.

According to Patrick’s eldest child, Isobel, having to sentence Larocque and Lavictoire to death weighed heavily upon her father. She said they had spoken about it in his study at home and she felt it troubled her father a great deal. On the other hand, Patrick’s second son, George, a young teenager at the time, asked his father how he could do this — hang these men? Patrick listened to his son’s anguish in dealing with this matter and calmly replied, “I did not hang them, George; the law did.”

Beyak Trial
In 1933, Ontario Justice Kerwin presided over (a) murder trial.

In describing the trial of Mr. Beyak, (an) American newspaper reporter, Sherman R. Miller, was quite surprised how a Canadian court proceeded and made several observations:

The first thing that is impressed upon the American spectator is isolation of the prisoner. He is placed in a box, about six feet by three feet, and must sit on a bench directly facing the judge. He sits upright, in full view of the jury, with his back to the audience, and facing the backs of his attorneys. It seems strange…not to see him sprawling on the counsel table, squirming around to grin at friends and mumbling behind his hand into the ear of his lawyer.

The barristers, attired in their black gowns and white wing collars, carry with them the dignity of their proud positions. They do not glare across the table at each other or pound their fists or wave their arms about wildly. In fact, they do not shout at all. Neither do they question the decisions of the judge, or ask him to adjourn while they look up citations to thrust at him.

And, as for the judge, his actions are nothing short of astonishing. He sits quietly, facing the person who is addressing him. He listens intently and does not seem to be afflicted with any nervous condition which would make him leave the bench to take a stroll about the court or cause him to change his position in the chair every five minutes.

And further, he answers the lawyers in the same courteous tone with which they address him. It is very disappointing to find that no one seems to be mad at anyone else.

Furthermore he seems to be astonishingly expert at his business. An attorney gets halfway through a question, which might be a leading one.

“Just a moment please, Mr. Crown Attorney,” interrupts the judge in a quiet tone. “I think that perhaps you are attempting to establish a question the answer to which might be misconstrued by the jury. Please refrain from continuing that line of questioning.”

“Very good, My Lord,” the attorney answers in the same tone.

And the judge, he only seems, wonder of wonders, to be interested in having the jury return a fair and unbiased verdict.

“Murder,” he says, “under our law simply means to cause the death of a person. The onus is on the Crown to prove this. Whatever has happened, you must remember that the woman is dead, and that this man is responsible for her death. Do not be swayed by sympathy for the defendant, but balance such sympathy with sympathy for the country and for your fellow man. You must decide merely whether the defendant was through some action deprived of his self-control. If this is true, find a verdict of manslaughter. If you decided otherwise in your deliberations, the verdict must be murder.”

That’s all. The jury goes out. Another case is started. The jury comes in two hours and half later.

“Guilty of manslaughter,” is the verdict.

It is after 6 o’clock. Everybody goes home. The day’s work is over. As one American at the trial said as he turned to leave, “These trials in Canada aren’t any fun, but good lord, they certainly don’t fool around, do they?” The bailiff at the door overhears the remark and scratches his head. He is probably still trying to figure out what the visiting American meant.

This visiting newspaper reporter from the United States was struck not only with the civility of the court in Ontario but also wondered why there were no lawyers “yelling at each other, strutting like roosters” to prove a point.

From Chapter 7: Life as a High Court Justice

Patrick and his wife decided to rent rather than purchase a home in Toronto. In the long run, the home in Guelph was the last and only home they were to own, as the Kerwin family lived in rented residences from then on.

One excellent reason to rent is that, when something goes wrong in the home, the landlord is often responsible for fixing it. This was not only convenient for the family as Patrick was often away, travelling far and wide from county to county as a Justice for the Province of Ontario, it was also practical in that apparently Patrick could not put a nail in straight to save his life. His wife, Georgina, was the “Mr. Fix-it” in the home as Isobel remembered. Her mother had an old, firm, wooden peach basket containing the essential tools to do small jobs around the house (hammer, wrench, nails, pictures hooks, etc.). It was also said that her husband did not know about it but perhaps in reality he did not want to.

One family tale has the Kerwins enjoying breakfast together one morning in their home on South Drive when Patrick told his wife that a certain lamp in the living room was broken and he felt that, in its present state, it was dangerous and could start a fire. Patrick advised Georgina that she would need to call an electrician to have it fixed that very day. She calmly agreed, saying, “Yes dear”, and that she would get it looked at right away. After Patrick had gone to work, she only had to change the light bulb to make it functional.

Noble et al. v. Alley
As a member of the Supreme Court, Patrick heard a landmark case in 1950 involving inherent discrimination (Noble et al. v. Alley [1951] S.C.R. 64 1950-11-20). On the shores of Lake Huron was the Beach O’Pines, a particularly nice community to spend a summer day in 1948 — providing one was a Caucasian and Christian. At the time, ‘The Pines’ found itself at the heart of a battle regarding discrimination that was thought to be legal. Annie Noble had purchased a lot in 1933. After fifteen years, she decided to sell to a man named Bernie Wolf. Everything seemed to be fine until Mr. Wolf’s lawyer noted the following clause in the original deed:

The lands … shall never be sold, assigned, transferred, leased, rented … to … any person of the Jewish, Hebrew, Semitic, Negro or coloured race or blood, it being the intention and purpose … to restrict the ownership … and enjoyment … to persons of the white or Caucasian race not excluded by this clause.

Word spread in the community that a Jewish person was attempting to buy in ‘The Pines’. Apparently, this would not do. They fought to have the restriction stand. Both the Ontario Supreme Court and the Court of Appeal found the restriction valid, and the case ended up at the Supreme Court of Canada.

The Court declared invalid the section of the agreement which required that owners, renters or occupiers of the property must be “persons of the white or Caucasian race…”. The court decided that this restriction was unenforceable because it ran with the owner rather than with the land, contrary to common law covenant doctrine. Additionally, the Supreme Court ruled the covenant to be void for uncertainty because its racist language was unclear. The effect of the decision was to question the legal status of any existing discriminatory property covenant based on race or religion.

From Chapter 10: Life as a Puisne Judge

A story told by Isobel about her father in his early years as a Justice of the Supreme Court had Patrick doing some special work (the task itself is not known) for the then Prime Minister, Mackenzie King:

One particularly hot and nasty summer, the Prime Minister asked the relatively new Justice of the Supreme Court to work on a ‘special job’ for him. The request came just prior to the Court’s summer recess so this meant my father would not be able to take a vacation that year. Not one to complain, he worked long and hard all those humid summer months on the task at hand. One problem was the heat during that particular summer season; it was hotter and more humid that year than usual with your grandfather not having the benefit of air conditioning in the old Supreme Court building, which, really, wasn’t a very nice place to begin with. Being exposed to the intense heat and bad odours in that building for prolonged periods caused health problems that plagued him for the rest of his life. Even more galling, when my father met with the Prime Minister at the start of the fall session that year, the Prime Minister said that they were not “doing that anymore” and they were to drop the whole matter. Since we only lived two blocks from the PM’s home, it would have been nice to tell the Justice that information before he worked the summer and suffered from heat stroke a number of times, don’t you think?

There are numerous articles in the family archives describing the many events, dinners, balls, galas, etc., the Kerwins attended in which Mrs. Kerwin’s clothing was creatively and comprehensively described. And, of course, one could never wear the same ensemble twice so she had a generous wardrobe that she culled on a regular basis, often giving away many fine gowns and dresses.

Justice and Mrs. Kerwin 1942

In 1937, Justice Patrick Kerwin was awarded the honourary degree of Doctor of Laws by the University of Ottawa. The Doctor of Laws degree, honoris causa (LLD), when awarded by a law school, is considered an earned degree and this may be the cause of some errors noted in Patrick’s history with some people stating he had attended the University of Ottawa as a student. Actually he had attended the University ceremony to receive the degree. As well, he acted as a Regent for the University Board.

From Chapter 11: Chief Justice of the Supreme Court

In years prior to Patrick’s appointment, the Chief Justice of the Supreme Court of Canada was named to the Judicial Committee of the Imperial Privy Council in England, thus acquiring the title given to all members of the Imperial Privy Council, “Right Honourable”. When appeals beyond the Supreme Court of Canada were terminated in 1949, chief justices no longer became members of Her Majesty’s Privy Council in England, but now were made members of the Canadian Privy Council, and thus held the corresponding title, “Honourable”, as did other members. After 1968, however, the title, “Right Honourable” was restored in recognition of the office. This is why Patrick is one of the few Chief Justices listed with the title, the Honourable Patrick Kerwin, along with the first two Chief Justices of the Court early in its history, the Honourable Sir William Buell Richards and the Honourable Sir William Johnston Ritchie.

From Chapter 12: Life as the Chief Justice 1954-1963

It has been said that Canada’s tenth Chief Justice of the Supreme Court of Canada went about his work with a smile of kindness in his light blue eyes. He was known to take a moment to pause and talk with friends, enjoy a rubber of bridge, a rare game of golf or relax reading a clever “whodunit”. This was in contrast to when he was in the Court or acting as Administrator of Canada for the Governor General, and he set himself a little apart from the people. But there may have been times where many a person, perhaps sharing space at a drugstore counter for lunch, would have been unaware that the pleasant man next to them who just passed the ketchup, was, in order of precedence in the Canadian hierarchy, third only to the Governor General and the Prime Minister.

Patrick at the University of Toronto where he received an honourary degree of Doctor of Laws, May, 1956.

For quite a number of years the Kerwins spent part of their summers up at the Bakers’ cottage at Cedarhurst Beach on Lake Simcoe. These two couples had been friends since their early days in Guelph. The Kerwins were invited to come and stay as long as they liked and often did so anywhere from three to six weeks at a time. One summer while there, Patrick was sworn in as the Administrator of Canada at the cottage. The Governor General had left on a vacation trip to England on the weekend and, on Monday, the Great Seal of Canada was flown from Ottawa to Muskoka Airport then driven to Beaverton where Chief Justice Kerwin was vacationing. In a ceremony attended by Acting Under Secretary of State, Cattanach, two aides, Louis McCann and Charles Doyle along with Arthur Hill, Deputy-Clerk of the Privy Council and W. K. Campbell, Private Secretary of the Chief Justice, the Chief Justice was sworn in as Administrator of Canada.

Sibling grandchildren of the Bakers, Barb and Bill McCollum, recall that, once Patrick had been sworn in by the contingent from Ottawa, the Seal of Canada was left with the Chief Justice and also a handsome (in Barb’s opinion) young plain clothes officer from the Royal Canadian Mounted Police to protect the substitute Governor General. He was initially introduced as a ‘friend’ of the Kerwins. It must have been an interesting assignment for the officer as it turned out he was as good at water skiing as he was at providing protection for the Administrator of Canada and his family.

According to Bill McCollum, on the occasion of Patrick acting on behalf of the Governor General, the Kerwins arrived on the train. He recalled,

…the Ontario Northland train stopped at the Cedarhurst station (such as it was) and let the C. J. off … he was travelling in the G.G.’s railway car, with all sorts of regal emblems on it. This gave rise, I’m sure, to a great deal of tongue-wagging. Don’t forget that the first scheduled stop for the Northland after leaving Toronto, was Washago, north of Orillia, and the train stopped for no one, except, of course, the Queen’s representative in Canada.

Both Barb and Bill recall one fine summer’s day at the lake when a call was received at the cottage from one of the Prime Minister’s Aides for the Chief Justice. Georgina took the call and told a very surprised young man to wait for a minute as the Chief Justice was busy taking out the garbage and would be a few minutes. This caused uproarious laughter for all at the cottage that day.

Her lasting impression of Patrick was summed up when she wrote, “I think he liked being around the people just as much as the card games. He was such a sweet man.”

“Law is made for mankind and not mankind for law.”