Former Supreme Court justice Peter Cory dead at 94

Justice Cory was appointed to the Supreme Court of Ontario High Court in 1974 and elevated to the Ontario Court of Appeal in 1981, the Supreme Court noted in its statement. On February 1, 1989 he was appointed to the Supreme Court of Canada. He served on the Supreme Court of Canada for ten years, retiring on June 1, 1999.

Among Cory’s law clerks at the Supreme Court were Minister of Justice and Attorney General of Canada David Lametti; Federal Pay Equity Commissioner Karen Jensen; and Vicki White, CEO of The Advocates’ Society, of which Cory once served as president.

“There's a little clerk community who are all expressing that this is indeed the wrong moment to lose a man of Justice Cory’s character and spirit and generosity,” White told Canadian Lawyer.

“Justice Cory was an exceptional human being,” Minister Lametti, who clerked for Cory from 1989 to 1990, during the latter’s first year on the high court, said in a statement to Canadian Lawyer. “He served his country in war, and he served it again in peace through his intellect, his sense of justice and his profound kindness and love for people. While obviously brilliant, he never lost the humility that was also one of his hallmarks. He was always a Windsor boy.”

Born in Windsor, Ontario, on October 25, 1925 to Andrew and Mildred (Beresford Howe) Cory, Peter deCarteret Cory was educated at the University of Western Ontario (Assumption College), receiving a B.A. in 1947, and at Osgoode Hall Law School, receiving his law degree in 1950. He was called to the Ontario Bar in 1950. As a pilot in the Royal Canadian Air Force, he had served overseas with the 6th Bomber Group during the Second World War.

Cory practised law with the firm of Holden, Murdoch, and was appointed a Q.C. in 1963. Elected a bencher of the Law Society of Upper Canada (now the Law Society of Ontario) in 1971, he also served as chairman of the Ontario Civil Liberties Section of the Canadian Bar Association, as president of the County of York Law Association, as national director of the Canadian Bar Association, and as president of the Advocates' Society.

In 2002, Cory was made a Companion of the Order of Canada.

Post-retirement from the Supreme Court of Canada in 1999, Cory served as the 11th chancellor of York University from 2004 to 2008. He was also made an Honorary Colonel of the 426 Transport Training Squadron.

“Peter’s contributions to the Canadian justice system, and indeed the international justice system, were legion,” Jensen, who clerked for Cory from 1992 to 1993, told Canadian Lawyer via email.

“They included: the painstaking litigation of white collar crimes as a lawyer; the even-handed and patient instruction of juries as a trial judge; compassionate and insightful analyses of fundamental rights and freedoms under the Canadian Charter of Rights and Freedoms as an appellate court judge; the public inquiry into the wrongful conviction of Thomas Sophonow as a retired judge; an investigation into allegations of collusion in certain killings in the Northern Ireland troubles, among many other contributions.” 

His clerks remember his kindness and his helpfulness to counsel, as well as his incisive mind.

“As a clerk, my favourite part of the job was getting to watch the oral argument,” White said via email. “And my favourite part of the oral argument was the moment in a challenging appeal, when a lawyer was struggling, and Justice Cory would ask a ‘question.’ He would start with the words "Counsel, if I understand your argument correctly, are you saying ..." and would then proceed to lay out the lawyer's best possible argument, in the clearest, most succinct and persuasive manner possible.

“The smart lawyers would nod their heads, sit down, and, I presume, be forever in his debt,” said White. “The Cory clerks would look at each other, and smile. That's the legendary compassion and humanity that Justice Cory showed to us all: the lawyers, the clients, and his fellow members of the Supreme Court. It was an honour to be part of his ‘team.’”

Working for Cory as a clerk at the Supreme Court of Canada also required stamina, said Jensen. “Peter was quick to volunteer to write reasons, and demanded that his clerks provide him with well-written memoranda on each of the cases that came before the Court,” she says. “But, he was also the most diplomatic of mentors. He would never tell a clerk that their analysis of a particular issue was flawed. He would simply disregard it. Upon reviewing Peter’s draft reasons, the clerk would discover the error of their analysis in the privacy of their own work cubicle!”

And before it was even recognized as best practice to cultivate team spirit and comradery, “Peter did so,” Jensen said.

“People are familiar with the cookie stories,” Lametti adds; “many a judge or clerk had their own discussion of a finer point of law over a 4 p.m. cookie with Justice Cory. People are less familiar with the fact that he could be quite ruthless on the squash court.”

Jensen remembers Cory gently coaching “many an awkward and poorly coordinated clerk” in a tennis match -- he excelled at racquet sports -- but giving stronger competitors a run for their money. “My husband, who is a very good tennis player, was quite startled to find that the man who gently encouraged his weaker clerks on the court could pound the ball back to their athletic partners,” she says.

“Without a doubt,” Jensen adds, “Peter’s most significant contribution is the way that he instilled in everyone he met, whether on the court, in the courtroom, or behind the scenes in chambers, with a strong sense of the importance of civility and fairness. He showed us how to be ‘noble warriors,’ how to fight hard, but fairly for the cause of justice.

“He also taught us that doing the right thing might not always make us popular as jurists. I remember one particular case before the Court where I thought Peter’s approach was not sympathetic to prevailing views of the matter at the time. Peter carefully and diplomatically explained to me that making decisions as a judge was not about doing what was popular, but rather about doing what was right and fair.”

In a tribute to Cory that he published on Thursday, University of Ottawa common law professor Lawrence David described Cory’s contributions to Canadian law, including his first set of reasons as a Supreme Court justice in Mackay v. Manitoba, [1989] S.C.J. No. 88. Here, writing for a unanimous court, Cory set out the evidentiary threshold required to sustain an application for declaratory relief under the Charter, and which has since been cited in 542 reported cases.

Other seminal judgements, David wrote, included Vriend v. Alberta, [1998] S.C.J. No. 29, in which Cory held that the exclusion of sexual orientation from the prohibited grounds of discrimination listed in Alberta’s Individual’s Rights Protection Act violated section 15(1) of the Charter; and, Hill v. Church of Scientology of Toronto, [1995] S.C.J. No. 64, which established that common law rules and doctrines are subject to the Charter.

Cory’s dissenting reasons in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 are also powerful, David wrote, “articulating what was then the most liberal conception of the right to die with dignity in Canadian law,” and would have gone even further, finding that “the Criminal Code prohibitions also violated the right to life, as ‘[d]ying is an integral part of living.’”

And as fate would have it, legislation to amend the Criminal Code in respect of medical assistance in dying (MAID) was introduced in Parliament in February by Minister Lametti, Justice Cory’s former law clerk.

“Peter was intelligent, kind and generous,” Lametti told Canadian Lawyer. “He was fair-minded and fair, with a playful love of a pun and a wonderful sense of humour. He loved to write, and loved alliteration and other word play. I have tried to follow his example every day of my life; indeed, I try to treat my colleagues and teams the way in which he treated his judicial colleagues and clerks.

“Peter Cory was an inspirational mentor and role model. We will best honour his life and service by emulating his virtue and kindness.”

“I have held Peter out as the paragon of a good jurist,” Jensen wrote. “I always ask myself: ‘would Peter do this?’ before I do something. Would he speak to opposing counsel like that, would he tell a junior he was too busy to discuss his memo right now, would he write a decision like that? I have tried to follow Peter’s example that no matter how much stress one is feeling, no matter how hard the case is, one must always strive to do justice and to show kindness.”

One of those acts, Jensen recalls, occurred when she was on maternity leave with her first child “and having a bit of a rough go. Peter called out of the blue to offer his congratulations and, quickly picking up on the tenor of my voice, he said ‘these times with a new baby can be very difficult. You don’t sleep well and you don’t know what to do with the screaming mess. But it will get easier. You learn how to be a good parent just as you learn how to be a good lawyer, one day at a time.’”

Cory treated his clerks as extended family, she says, “staying in touch with us all and convening regular reunions. I am tremendously proud of my Cory ‘siblings’ who have all gone on to hold senior positions in the social, legal and political institutions of Canada, bringing with them the strong sense of decency, fairness and commitment to others that Peter cultivated in them.”

Cory is survived by his three sons, Christopher, Andrew and Robert. His wife, the former Edith Nash, predeceased him. Cory had lived in Mississauga, Ontario, in the Greater Toronto Area, since 2002.