THERE’S NO MORE RIDING THE BENCH
After 25 years, retiring justice has seen last of ‘problems made by other people’
At midnight Thursday, Douglas Rutherford turned 75 and, somewhere, a gavel banged and all the candles blew out: It was over.
As is mandatory, Rutherford retires today from Ontario’s Superior Court of Justice after 25 years.
Murder made up his days, and terrorism, spies and lies, everyday swindlers, wives dead at the husband’s hand, a sibling honour killing, a slain cop, gang rubouts, drug kills — so much misery he made a list, typed out and lying on a boardroom table beside him.
“I think 25 years is enough. I’m ready to go.”
He woke up one morning this spring and said to Anne, his wife of 44 years: “I think it’s a good thing retirement is coming because I am getting to the point where I can say I’m tired of being preoccupied with problems made by other people.”
Canada is not a place where we know our judges particularly well. As a rule, they don’t give interviews and it is difficult to parse much about their lives based on bench rulings.
So, in a lounge on the fifth floor of the Elgin Street courthouse, we mostly just kick it. I mean, what do you really ask a judge, anyway?
He was born in Toronto in 1941, the middle child of three, and his father spent almost the entire Second World War overseas. “It took me some time to research to my satisfaction, how I got conceived after he had gone overseas in 1939” — a story funnier told in a black robe.
A church-going man, father of two, he has lovely manners, which he demonstrated by scurrying to find me another pen when my ink ran out.
“I really don’t have a lot of hobbies,” he said, over-modestly. He gardens, in fact, reads anything Grisham, putters around his cottage in Val-des-Monts, and can recite lyrics from a Kingston Trio song to make a point about cowboys gone bad.
So we winged it, like strangers at a snowed-in airport bar.
On fishing: “I love fishing. Our lake has trout. I’ve caught two in 37 years. And they stock it.”
On gardening: “I grew my own horse radish for a number of years. Have you ever had groundup homegrown horse radish root. My goodness, it’s powerful.”
On ever sending an innocent man to prison: “It certainly troubles me,” adding that he once had a telephone call from a juror three weeks after a murder conviction. “She was in tears. She said, ‘I think I made the wrong decision.’ ” He assured her the verdict did not turn on her actions alone.
On overcrowded conditions at the Ottawa-Carleton Detention Centre, especially for those awaiting trial: “It’s very frightening. I think to send a person into the detention centre is a last remedy.”
On claims that judges are too soft, like the victims upset at him for sentencing a sex-offending chiropractor to house arrest — not jail — this week: “We’d still be hanging people if public opinion carried the day.”
On whether Howard Richmond, a PTSD-suffering soldier, was guilty of a criminal act when he killed his wife Melissa in 2013, as the Rutherford-instructed jury decided: “Well, I can’t help but think of Mr. Richmond spending the rest of his life in jail, unless the court of appeal finds we made some kind of error, if he was really as out of it as he claimed.”
The case probably most closely associated with Rutherford is that of Momin Khawaja, the software contractor who was the first person convicted in 2008 under Canada’s anti-terrorism law.
He was sentenced to just over 10 years, a term that was increased to life on appeal, an appeal that stings Rutherford to this day. His ruling was 24,000 words long, which he typed out using two fingers. He spoke Thursday of how nervous he was before delivering the verdict before a packed courtroom. “That really rattled me.” On whether he made the right decision on Khawaja: “Oh, I couldn’t have a shadow of a doubt. He convicted himself with what he said,” said the judge. “It was all there in black and white. He was as guilty as could be.”
Khawaja’s defence lawyer, Lawrence Greenspon, spoke of Rutherford warmly. “He’s a gentleman, on and off the ice,” who treats court staff, counsel, and the accused with “great respect” and had the “judicial courage” to strike down parts of the terror law, Greenspon said.
Rutherford is now looking for a new endeavour, probably outside legal circles. Lounging about in pyjamas, reading the paper and drinking coffee all day, has been declared illegal at home, he says — the judge finally out of order.