His word is law
‘The best on any court’: A stern, ‘terrifying’ judge who made a giant impact on Canadian justice retires — with parting words for Doug Ford
For Justice David Doherty, his wellearned retirement means more time to follow the Blue Jays, play golf and dig into the world of podcasts — only recently discovered now that he finally has a cellphone.
It also means more time with his wife of 52 years, Barbara, and their cherished bassett hound, Flash.
But for Ontario, Doherty’s departure from the province’s most powerful court leaves a giant-sized hole to fill.
The longest-serving judge on the Court of Appeal for Ontario is saying goodbye after more than 33and-a-half years of service, leaving behind a legacy that shaped criminal law, left an enduring impact on Canada and made the appellate court a smarter, fairer and sometimes more intimidating place for generations of lawyers.
He’s stepping down after turning 75 — the mandatory retirement age for judges. And on Friday, his family, friends and many judges past and present filled an overflowing “swearing out” ceremony inside Toronto’s elegant Osgoode Hall, the national historical site where about 30 judges hear more than 1,500 criminal and civil appeals each year.
“We have watched in awe as Justice Doherty has kept his compass pointed north, working tirelessly to create, to promote, cultivate and sustain a more just society in which we can all live,” Michal Fairburn, Associate Chief Justice of Ontario told the gathering.
“There are few people who can retire knowing they have truly made a difference to their country. You, David Doherty, can do that.”
Doherty declined an interview with the Star in the weeks leading up to this story, but at the conclusion of his own remarks Friday, he spoke candidly about Premier Doug Ford’s recent insistence he wants “like-minded” provincial court judges who are tough on crime and will send more people to jail.
Such statements by “people who should know better” can cause “significant damage to the justice system,” Doherty warned. And while there are “all kinds of problems in the justice system,” the quality of appointments to the provincial court is not one of them, he said.
“Perhaps we should move on to a real problem,” he concluded, before exiting the courtroom in his judicial robes for the final time.
‘When he rendered an opinion, they took note’
Since fewer than two per cent of the court’s decisions go on to be heard
by the Supreme Court of Canada, the Court of Appeal is the last legal avenue for most litigants in this province. Yet while Doherty was never appointed to the country’s highest court, his decisions carry as much weight as if he had been.
One led to a seismic shift in how juries are selected.
In 1993, just three years after joining the appellate bench, Doherty overturned the manslaughter conviction of Carlton Parks, a Black man convicted of killing a white man. In his decision, Doherty found the trial judge had been wrong to deny Parks’s defence the chance to challenge prospective jurors on whether the race of an accused person or victim might affect their verdict.
In remarkably clear writing, Doherty found the judge’s “presumption” that jurors can be relied on to do their duty “without regard to personal biases and prejudices” — a standard courtroom principle at the time — denied Parks his right to a fair trial.
Many Black Canadians “perceive the criminal justice system as inherently racist,” Doherty wrote. “A refusal to allow a Black accused to even raise the possibility of racial discrimination with prospective jurors can only enhance that perception. By allowing the question, the court acknowledges that the accused’s perception is worthy of consideration.”
The decision remains a landmark to this day, said James Lockyer, the Toronto defence lawyer best known for his work exonerating the wrongfully accused.
“It was a judicial recognition of systemic racism in our country and in our criminal justice system.”
In more than 6,000 appeals since 1990, Doherty became one of the rare judges who sat on a provincial appeal court but whose impact was national, said Doug Hunt, a retired Toronto lawyer, former colleague and friend of 50 years.
“Every court across the country knew his work. When he rendered an opinion, they took note.”
The youngest of three children, Doherty grew up in Ancaster, the historic town now part of Hamilton; his father was a mining engineer, and his mother a nurse.
Doherty was a “fierce” athlete who loved sports and played everything — baseball, basketball, football, said Barbara Doherty, who is a lawyer. The pair met at McGill University in Montreal, where he majored in history, and later married in 1971 before moving to London, Ont. At the University of Western Ontario, he graduated with a law degree in 1973, as a gold medallist.
Being a top law student didn’t keep him off the football field. After playing as an undergraduate for McGill in the Canadian College Bowl, losing in 1969, he hoisted the Vanier Cup in 1971 as a Western Mustang. (He tackled the opposing quarterback in the national championship game, separating his ribs.)
“He loved football, and he loved the hitting part of football,” chuckled Barbara.
After law school, the Dohertys moved to Toronto where he was admitted to the Ontario bar, became a prosecutor and was immediately launched into major cases.
Retired judge Ian MacDonnell met Doherty when they were both starting their careers at 18 King St., then the criminal appeals and special prosecutions branch.
“I mistakenly thought he was older and more seasoned,” MacDonnell said. “Maybe it was the threepiece suits and the black hornrimmed glasses, or the cigars that he was constantly smoking — but more likely it was that he seemed to command every courtroom in which he appeared.”
Doherty has long been “the best judge on any court in the country,” MacDonnell said.
“No one has been smarter, fairer, more insightful, or more articulate.”
Asked by the Star to identify defining moments or cases that showcase Doherty’s impact on Canadian jurisprudence, colleagues agreed a Doherty judgment is the gold standard. They praised his writing skills and his ability to take complex issues of law and make them understandable for the people expected to apply the law — such as police officers, crown attorneys or judges.
‘He’s terrifying to appear in front of’
At Friday’s ceremony, there was also good-natured ribbing about Doherty’s formidable presence on the bench, and even a reference to a litigant who tried to get Doherty to recuse himself over his tone of voice and “scowling visage.” (Doherty refused.)
His stern demeanour and gaze made many an unflappable lawyer second-guess themselves. Against his black robes, his now snow-coloured hair only adds to his air of authority. As he listens to oral arguments, he is a man of habitual gestures — a chin rested in his hand, a deep exhale conveying impatience, a pen sliding in and out of his mouth or glasses coming on and off his face.
His interruptions can be curt, and even loud.
“What’s the answer to my question, I’m not sure where this argument is going,” he snapped at a lawyer midargument during one of his final appeals last month.
But the moment soon passed; Doherty reached for a binder, regrouped and smiled slightly, cutting the palpable tension.
“He’s terrifying to appear in front of,” said Jessica Zita, a Toronto defence lawyer who has argued 17 cases in front of Doherty since her call to the bar seven years ago.
“He lets you know what he’s thinking and if he’s interested or not. He really controls the tone of the room. And no matter how prepared you are, he will know your case best.”
Doherty can “give you a hard time, no question about it,” Lockyer said with a laugh. If he thought you were misquoting something or wrong about a fact “he was on top of you immediately and it happened to me a number of times.”
That, however, is “part of the business, part of what we do for a living. You have to be ready for that.”
Doherty’s reluctance to embrace technology is also legendary.
“His familiarity with the tools of the information age seems to have peaked with the rotary dial telephone,” MacDonnell joked.
He didn’t own a cellphone or computer until the pandemic, relying instead on his longtime assistant, Dana Davis, to type dictated drafts. Speaking at his own swearing-out on Friday, Doherty thanked her profusely.
“As far as I’m concerned, computers are a fad,” he quipped.
If Doherty can come across as tense in a courtroom, that’s “mostly because he’s trying to figure out some very tough issues,” said Barbara.
In his private life, he’s caring and empathetic, particularly with elderly people, as well as being a “jokester,” she said.
“One of his favourite things in the world is to tease my mom, who hasn’t learned in the 50-plus years to not respond,” added daughter Katie Doherty, herself a lawyer, sitting beside her mom in a recent interview with the Star.
Retirement for Doherty might mean more frequent walks with Flash, the family’s seventh bassett hound since the ’70s, or more TV watching. “The Big Bang Theory” the L.A. detective drama “Bosch,” and “Monk” have all been favourites.
And, after 40 years, it’s expected he’ll continue to meet for regular breakfasts, and gossip, with legal world friends David McCombs, Earl Levy, David Humphrey and Michael Brown.
It will also surprise no one if Doherty ends up joining a prestigious law firm. If he does, he will follow in the steps of retired Supreme Court justice Michael Moldaver, now counsel at Goodmans, or David Watt, who joined Greenspan Humphrey Weinstein as jurist in residence after he retired from the Ontario Court of Appeal in 2021.
Why not the Supreme Court?
In 2011, Maclean’s questioned whether Doherty’s reputation “for being a bit grumpy,” might have played a role in him being “passed over” for the Supreme Court.
That idea has itself become a legendary part of Doherty’s reputation; Moldaver, who earlier sat on scores of appeals with Doherty at Osgoode Hall, seems to anticipate the question: Why not him?
“Let me talk to you about that, because I’ve thought about this,” Moldaver told the Star in an interview.
The former defensive back — Doherty was once suspended for pushing an official — may have shown his displeasure “a little more colourfully than others do.” But “the courtroom should never be confused with being a tea party,” Moldaver said.
“If anybody put forward before him a reasoned, and reasonable argument, that lawyer could not have hoped for a better reception and more polite and engaging judge.”
He laughed, too, at how often his own feathers would get ruffled as he’d sit next to Doherty and “virtually every authority” lawyers cited was another one of his own decisions — “Oh lord, not another one,” he’d lean over to whisper.
Doherty would have been a “brilliant” colleague to have in Ottawa, he said.
“He’s possibly the best Supreme Court judge that the court never had.”