Eulogy for the Honourable Charles Leonard Dubin

October 29, 2008

By Justice Robert P. Armstrong

We gather today in this place in great sadness to grieve the loss of a dear friend, one of the giants of the legal profession, the Honourable Charles Leonard Dubin. Amid that sadness today, we celebrate a life of incredible achievement.

I first met Charles Dubin some 44 years ago when, as a third year law student at the University of Toronto, I applied to him for an articling job on the advice of his good friends, Professor Bora Laskin and Professor Horace Krever.

Over many of those years since the fall of 1964 I have been associated with Charles Dubin as his law student, his associate lawyer, his junior partner and his counsel. He was my mentor and of course the mentor to countless other young lawyers. Permit me to share just a few highlights that give us cause to celebrate the life of this remarkable man.

You will find in the Torah, the Book of Deuteronomy, Chapter 16, verse 20, these words: “Justice, Justice, thou shalt pursue.” I can find no better words to describe the life of Charles Dubin. For his was a life long pursuit of justice.

Born in Hamilton, he was the son of Harry and Ethel Dubin. He attended Hamilton Central Collegiate Institute where he was a first class student and played quarterback on the school’s football team. His mother wanted him to study medicine – he wanted to be a radio broadcaster. His father persuaded him that he would be a better broadcaster if he attended university first. So he enrolled in the Honours Law programme at the University of Toronto from which he received his B.A. degree. He then decided he wanted to become a lawyer. He attended Osgoode Hall Law School which was then the only academic route to be called to the bar in Ontario. In his final year at Osgoode Hall, he was the gold medalist. After his call in 1944, he and his classmate, Jack Kimber, began practice together in the firm of Kimber and Dubin. And so began the first chapter in his pursuit of justice.

In those early years, he also lectured at Osgoode Hall Law School. He met Anne Levine, a student in one of his classes. After she completed her studies, wining the bronze medal in her final year, Anne and Charles were married in 1950. Anne also joined Charles in his practice and became the managing partner of Kimber and Dubin.

Meanwhile, his career at the bar was marked by one spectacular achievement after another.

Charles took on every conceivable kind of case – both criminal and civil – at trial and on appeal. He was a young superstar – a Wayne Gretzky of the law. He had it all.

It is difficult to pinpoint just what aspect of advocacy Charles Dubin could be said to be at his best – he was great at everything – he was a brilliant cross-examiner – perhaps the most difficult skill for a lawyer to master – many lawyers never do master it.

I recall a criminal trial in which he cross-examined a hand writing expert whose evidence was devastating for our client. Although the going was tough at first, he was able to use the expert witness’s own report to establish that the hand writing could not possibly be that of our client. At the conclusion of the case, the Crown attorney, Patrick LeSage, who subsequently became the Chief Justice of the Superior Court of Justice, in the finest traditions of the bar, crossed the floor of the courtroom, shook hands with Charles Dubin and said, “Charlie, that is the best cross-examination of an expert I have ever seen”.

The practice of law for Charles, however, was more than a clever cross-examination or the winning of a case in the Court of Appeal or the Supreme Court of Canada. It was, according to the mandate in Deuteronomy, the pursuit of justice. In all the days that I knew Charles Dubin, he never turned away a client because the client could not pay his fees. For him, the pursuit of justice had nothing to do with the bottom line. The pursuit of justice included the pursuit of excellence at the bar and if that goal was achieved, the bottom line would look after itself.

For Charles Dubin, the pursuit of justice also involved adherence to the highest ethical and professional standards of practice. He was first and foremost a gentleman in the true sense of that word. He treated everyone with respect. That, of course, included everyone who worked with him. Perhaps this short story may catch the essence of the man. In the early part of his career, Kimber and Dubin shared office space with the late Eddie Goodman and his father, D.B. Goodman. They also shared a secretary. Unfortunately, the secretary was having difficulty with the work. Eddie and Charles reluctantly concluded that they had to let her go. They flipped a coin as to who would give her the bad news. Charles lost the coin toss. He called the secretary into his office to perform the unpleasant task. About a half an hour later, the secretary emerged from his office with a large smile on her face. Eddie quickly went into Charles’ office and said, “what happened?” Charles responded somewhat sheepishly – “Eddie, I gave her a raise of $10 a week”.

Charles had two private assistants who spanned most of his career – the late Mary Harding for 42 years and then when he left the bench, Liz Stephen was his assistant for the last 12 and a half years. Liz Stephen has been his “rock” – particularly in the last two years. She was devoted to him. Her loyalty to him was something that I know Charles deeply, deeply appreciated.

Charles Dubin had a great interest in the careers of young lawyers. He gave us great responsibility – always ready to offer advice but also prepared to let us make our own mistakes. I received an e-mail Monday from Paul Le Vay, a partner of the late David Stockwood. David arrived at Kimber and Dubin as a student to Charles a year after I arrived. Here is the e-mail:

I wanted to drop you a personal note today, a sad day for our profession. Although I only appeared before him as the junior counsel a couple of times, I felt that I knew him better than that because of the stories that David told about him. A lot of things David taught us, he credited Charles Dubin with having taught him. These were not only advocacy skills, but also such things as giving proper and public credit to junior lawyers for their work. In this way, his influence will live on in a real way here as in many other places.

The Dubin alumni practice law all across Canada. They serve as judges in the courts of this province and elsewhere in the country. They also include public servants, politicians and legal academics – all of them engaged in the pursuit of justice.

It was in July 1972 that the Kimber and Dubin firm joined forces with the well-known corporate firm of Tory, Tory DesLauriers and Binnington. Torys wanted to establish its own litigation department. So they recruited Charles Dubin and his partners.

For Charles Dubin, the merger of the two firms was short-lived. Charles Dubin never sought a judicial appointment. He was happy with what he did – an appointment to the bench simply did not appear to be in his career plan.

I recall in early December 1972, my wife, Erica, and I attending a Grey Cup game with Charles and Anne in Hamilton – he was not himself; he talked very little and his interest did not appear to be on the game. Something was on his mind. At the end of the game, he got out of his seat with Anne and quickly bid my wife and me farewell and in a somewhat perfunctory fashion said, “I will see you in the office tomorrow”. It was unusual for Charles to be less than gregarious on occasions such as this.

That night the phone rang at my house. It was Charles. He said that John Robinette (another giant of the legal profession), had called him on behalf of Mr. Trudeau and that Mr. Trudeau wanted to appoint Charles to the Court of Appeal. I was obviously stunned. However, his unusual detachment at the football game earlier that day now made sense. He loved the bar – its collegiality and its challenges. He hated to leave it but as he explained it to me in that telephone call that unless there was a compelling reason to say no, it was the obligation of a barrister to answer the call to the bench. For him, there was no compelling reason to say no. He had made a good living. He had no children to put through college or university. There was nothing left to say but congratulations and good luck but as he hung up the phone, there was a tinge of sadness in his voice. He knew that he would soon be leaving what he loved to do the most. On January 18, 1973, he was appointed to the Court of Appeal for Ontario and the next chapter of Charles Dubin’s life long pursuit of justice began. He was appointed Associate Chief Justice of Ontario on July 13, 1987 and Chief Justice of Ontario on April 12, 1990.

The Dubin Inquiry into drugs in sport stands out as perhaps the highlight of his judicial career. Not to overstate it, he presided over that inquiry under the glare of the international press from Los Angeles and New York to London and the Far East as the sordid tales of steroid use by Canadian athletes and others were revealed to the world for the first time.

Remember that prior to Ben Johnson’s fateful run in September 1988, 20 years ago, there was very little evidence, if any, of steroid use among athletes in the west. Canadians and others were dismissive of the rumours of steroid use and said the problem lay with the Russians, the East Germans and the Chinese. It is, of course, well recognized that it was Ben Johnson’s coach who was the key witness in the Dubin Inquiry. It was on the advice of his lawyer, the Honourable Roy McMurtry, that the coach was persuaded to come forward and tell the truth about steroid use. For that, Charles Dubin has always been grateful, as it gave him the basis upon which to write his seminal report on the subject of drugs in sport.

Charles Dubin’s name was often mentioned as a candidate for appointment to the Supreme Court of Canada – almost from the time he began to sit on the Court of Appeal he was rumoured to be going to Ottawa. Well, of course, such rumours are not uncommon in the gossipy culture of the legal profession. However, it is no secret that there was a period of time before his appointment as Chief Justice of Ontario that the government of the day wanted him to take a seat on the Supreme Court of Canada. In the end, he decided that he could accomplish as much or more by staying in Ontario. It was not long thereafter that he was appointed Chief Justice of Ontario.

As a judge, he liked nothing better than to debate a fine legal point with counsel and his colleagues on the court. With his inquiring mind, he asked counsel innumerable questions. While on the court, he sat on close to 2,000 cases. When he retired in 1996, Eric Murray, a well-known Toronto lawyer who appeared often in the Court of Appeal, said that Charles Dubin did not retire because he had reached the mandatory retirement age – according to Eric, he simply stopped when he had asked counsel his one millionth question.

So then it was back to Torys for the last chapter in his pursuit of justice. At Torys he was kept busy providing advice to the Torys litigation team and to a number of government and public institutions as well as the many clients of the firm.

Lest I leave you with the impression that Charles Dubin was without fault or weakness of any kind, in the interest of full disclosure, I am obliged to mention one or two:

He was the worst driver I have ever seen. How he lived to the age of 87 without being in a serious car accident is something short of a miracle.

I am told by my colleague John Laskin that his parents, Bora and Peggy Laskin, had a regular bridge game with Anne and Charles. It was always the men against the women. For those who knew Mrs. Laskin and Mrs. Dubin, it is not surprising that the women nearly always won. The Chief Justice of Canada and the Chief Justice of Ontario rarely won a game. John, in his analytical way, has concluded that there is absolutely no correlation between brilliance on the bench and the ability to play a decent hand of bridge.

Then there was Charles Dubin’s tennis game. The appropriate words to describe his tennis serve simply cannot be spoken in this sacred place.

The last two years have been tough. He became noticeably frail and suffered considerable pain from a bad back and other ailments. He was helped enormously by his team of caregivers led by the lovely Sally Bautista. In spite of the pain, he continued to go into the office regularly until just a few months ago. He never lost his interest in and his love of the law and the pursuit of justice. When one of my colleagues on the court would write a judgment which found favour with him, he never hesitated to mention it.

I saw him last Friday afternoon in the hospital. It was clear that the pneumonia was having a tremendous effect on him physically. His frail body was more frail. However, mentally he was alert – we talked about the pending appointment to fill the vacancy on the Supreme Court of Canada and we talked about a recent judgment of our court. I told him that all his friends and colleagues in the court wished him well. He smiled; we said goodbye for the last time. I walked down University Avenue back to Osgoode Hall and I thought about his legacy. I thought about the pursuit of justice by the Honourable Charles Leonard Dubin over the course of the last 64 years. It is a legacy that will last much longer in the hearts and minds of all of us and the generations to come.

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