Patrick Kerwin Rises to the Top of his Profession

By Steven McKenna

(2015) The year was 1889 when Patrick Grandcourt Kerwin was born in Sarnia, Ontario in what was a young Canadian nation where residents were considered British subjects. Queen Victoria was the monarch and the Prime Minister of the day was Sir John A. Macdonald, leader of the ‘Liberal-Conservative’ party.

The man who was to become the Chief Justice of the Supreme Court of Canada, Patrick Kerwin, was born in a time very different from today: mass communication was in the form of the telegraph; transportation was by horse and carriage, railroads or on ships; the telephone was yet to become a part of households; and in the Sarnia area, workers plied their trades in woolen mills, steam saw and planing mills, flax mills, tanneries, carriage firms, on the railroad and sailing the Great Lakes.

Patrick’s father, Patrick Kerwin Sr., worked hard to earn a living as a Captain of ships, Inspector of Hulls, and owner of various tugs and scows in the port of Sarnia. Before the Judge’s birth, and for a while after, his father had ownership of two vessels, The Sovereign and The Sligo. As would have been the norm for the time, P. Kerwin Sr. would have started sailing at a young age, around 12 to 14 years old. From there he would have worked his way up the ranks as he learned his trade.

The Kerwin family unit was described in the census of April 17, 1891, Sarnia Town, Division 1, as:

– Kerwin, Patrick, Male, (Age) 34, (place of birth) Ireland, (Religion) Roman Catholic, (Occupation) Ship Captain

– Kerwin, Ellen, Female, (Age) 25, (place of birth) England, (Religion) Roman Catholic

– Kerwin, Patrick, Child, (Age) 1 6/12, (place of birth) Ontario, (Religion) Roman Catholic

Patrick Kerwin Sr. was born in Ireland in 1853, and immigrated with his parents to Canada where the Kerwins’ first made their way to the Hamilton area. In later years, the family relocated to Petrolia, then to Sarnia, Ontario.

Patrick Kerwin Sr. married Ellen Gavin on January 7, 1885 and the certificate indicated his father’s surname as Kirwan. Ellen required her parents’ permission to marry as she was a minor 16 to his 31.

Patrick’s mother, Ellen Gavin, was born in London, England in 1868, her family immigrated to Canada in 1870. They originally settled in Brantford, Ontario, but moved to Port Huron, Michigan, just across from Sarnia, Ontario, and then, later, to Sarnia. The impetus for the move from Brantford was due to the extreme embarrassment that Ellen Gavin’s mother felt at having given birth to Canada’s first set of quadruplets. At the time, having twins was regarded not as a blessing but as an oddity and curious to all. Having quadruplets (none of whom survived) was catastrophic to the family’s good name. As a result, they left Brantford soon after this all occurred. As this was the first time anything like this had happened in Canada, a scroll and monetary award was sent to Kate Gavin from Queen Victoria, again, adding to her embarrassment.

Patrick Sr. and Ellen had been married four years by the time Patrick junior came along. Patrick Grandcourt Kerwin was born on October 25, 1889, at the family home located at 116 Essex Street in Sarnia, Ontario. Shortly thereafter, on November.17, 1889, he was baptized at the local Catholic Church, Our Lady of Mercy. Patrick was not destined to be an only child; his parents provided him with a brother, Leo Joseph (known as Vernon or Vern), born in 1892, and later, a sister, Frances Ellen Letitia, born in 1894.

Patrick’s father was successful but, in reality, a man of modest means in this latter part of the 19^th century with the business eating up a lot of the profits. During Patrick’s first few years, with his father’s ship, the Sovereign, having sunk and him having sold the other ship, the Sligo, he made arrangements to become a land-locked merchant with the purchase of a liquor store on Front Street in Sarnia. To announce this career change, Patrick Kerwin Sr. place the following advertisement in the January 4, 1895 edition of The Sarnia Observer:

Business Change

——

1. KERWIN

Desires to announce to his friends and the public that he has purchased the liquor business formerly carried on by Mr. Wm. Coutlee, and will continue the same at the old stand, East side FRONT STREET, nearly opposite the Post Office. I shall keep on hand the best and most Popular brands of

Wines, Ales

– AND –

LIQUORS

and shall make a specialty of Superior Liquors, imported in packages for Family use.

Prices Reasonable. Prompt delivery.

Telephone 121.

Trial Order solicited.

P. KERWIN

The store had a favourable location. being just across the street from the docks on Front Street and almost opposite Patrick Sr.’s father-in-law’s shoemaking store (John Gavin). Upon taking over the store, Mr. Kerwin moved his family to the apartment above the store from their home on Essex Street. This means the tenth Chief Justice of the Supreme Court of Canada grew up (for a time) above a liquor store.

Only a few years after becoming a store owner, Patrick’s father became so ill he was later transferred to the Asylum in London, Ontario, where he died on January 15, 1898 at the age of 45. This left Ellen Kerwin, a young, 28-year old widow, with three young children (ages 8, 6 and 4) to raise by herself year-round from now on with no income.

Mrs. Ellen Kerwin sold the stock in the store and moved move in with her parents, John and Kate Gavin, at their family home located at 112 Elgin Street. This arrangement does seem to have worked out fairly well, all things considered, as Patrick managed to earn good marks at school and take piano lessons as a youngster. Young Patrick later learned how to play the trombone so he could play in a local band and earn a bit of pocket money.

For his primary education, Patrick attended the Sarnia Separate School starting in 1895. The lessons taught at this four-room school proved to be effective and beneficial as Patrick became a studious youngster and showed no signs of wanting to following in his father’s careers as a Great Lakes schooner Captain nor that of a liquor merchant. In 1902, he passed the entrance exams for secondary school and attended the Sarnia Collegiate Institute on London Road.

Small but interesting items that might be seen as quaint by today’s standards ended up in the local newspapers. Not only was there national and international news, there were items like the following that reflected the local scene:

Got a bad fall

“Patrick Kerwin, the young son of Mrs. Ellen Kerwin, met with a mishap yesterday which caused him considerable suffering. The lad was wheeling on the brick pavement on Lochiel street [sic], and when turning the corner at Christina street the wheel slewed, and he fell heavily to the pavement. The boy was almost stunned by the fall and complained of severe pain in the side. He was taken to Homer Robertson’s drug store, where Dr. Bradley examined him, but found that no bones were broken. The lad was taken to his home on Elgin Street”.

Patrick, at the age of fourteen, decided to quit high school and get a job to help the family. He got a job delivering meat (by horse and wagon) but was fired for stopping to read on the job shortly thereafter. Patrick was later quoted as saying that getting fired as delivery boy was the best career move he ever made.

His mother and a helpful Sister at the school approached their local Member of Provincial Parliament to inquire if any form of reasonable employment arrangements could be made for the young lad. The member at that time was the Hon. William John Hanna, who also led the law firm, Hanna, McCarthy & LeSueur. Mr. Hanna hired Patrick as an office clerk to work for R. V. LeSueur.

Mr. LeSueur took the young man under his wing, bringing him into their office and, in doing so, helped in introducing the practice of law to a young Patrick. Having this part-time job allowed Patrick to not only to contribute to the family coffers, but to start attending classes again.

As Patrick was growing up in the household of his grandparents and working in the law office, he put his musical talents to work. Working with Quinn’s Band and Orchestra, he played the trombone for concerts and marches and piano when out of town.

According to Mrs. Georgina Kerwin (Patrick’s wife) and their daughter, Mrs. Isobel Kerwin McKenna, Patrick was an outstanding musician with a great facility for figuring out a song by ear or quickly sight-reading the music. It was thought that perhaps he could have had a career in the field of music but, taking the long view, he decided a career in law might be more suitable to his temperament and plans for a family.

In 1906 he graduated from the Sarnia Collegiate Institute and signed a contract with R. V. LeSueur to become a student-at-law in the law practice. His mother, Mrs. Ellen Kerwin, had to sign as well, as Patrick was a minor.

The 1907/08 Sarnia Directory listed the following:

– Gavin, John, shoemaker at 223 N. Front St. & home as 112 Elgin St

– 145 Front Street, Hanna & LeSueur Co.

– Kerwin Patrick, law student Hanna LeSueur & co. lives 112 Elgin St

After he finished just two years of working and studying law, Patrick move on to Osgoode Hall to further his studies. He moved from Sarnia to a rooming house near the school in Toronto and began the study of law. While working with Mr. LeSueur, Patrick was able to help his family financially as well as save as much as he could towards the cost of post-secondary education.

Unfortunately, his maternal grandfather, John Gavin, would not live to see his eldest grandson go on to law school. Mr. Gavin died on June 12^th 1908 at the age of 70 and was buried on the 15^th of June, 1908. With Mr. Gavin celebrated and buried, Patrick was off to law school in a few months with the notion that it was up to him to take care of his mother and siblings. In his mind, he had to succeed.

At the time, formal law school training was seen as supplementary to the education that would-be lawyers received in law offices as articling clerks. The lectures at the school were most often delivered by practicing lawyers rather than by law professors. The wonderfully ornate courtrooms in Osgoode Hall included a few rows of plain-looking benches at the back for students who were obliged to attend anytime the courts were in session. In this prestigious school, Patrick not only learned a great deal as a student in classes, but also in courtrooms.

While attending school, Patrick articled with two notable barristers & solicitors in Toronto and, when back in Sarnia for the summers, he continued to article with R. V. LeSueur. As a student attending Osgoode Hall, and in spite of articling in law offices, Patrick still (had)to earn funds as his family was not able to assist with continuing educational costs. His musical talents came to his rescue as a piano player for the picture shows in film halls.

All films at the time had live musical accompaniment to capture the mood of the action up on the screen and, luckily for Patrick, the piano was the instrument of choice for moving picture accompaniment. This form of entertainment was new to all, inexpensive to attend, and considered a lower class activity by many. It was not considered the type of occupation any ‘respectable’ young man would be involved with, so it was all very hush-hush with only his closest friends and family knowing what he did to make ends meet.

While attending law school, Patrick met a young lady attending university for her teacher’s degree. Her name was Isobel (Belle) Mace, and she invited him for tea at the Mace family home in the Rosedale area of Toronto. While things didn’t work out between Belle and Patrick, he did strike up a friendship with Belle’s next-older sister, Georgina, or Georgie, to those who knew her. “These two were destined to marry”, Belle was to say later.

Patrick graduated in the Class of 1911 and did so at the top of his class. Even though he was offered several positions with prominent Toronto firms, it was said that he felt more comfortable staring the practice of law in a smaller community.

Patrick was told of a firm in Guelph, Ontario, that was looking for a lawyer and was subsequently hired by Guthrie and Guthrie, a father and son practice. In the year 1911, Patrick’s life as a practicing lawyer was about to begin in earnest in a city that was new to him.

By 1913, the firm became known as Guthrie, Guthrie and Kerwin – quite an achievement for a young, twenty-three-year-old, up-and-coming lawyer whose salary was now set at $35.00 per week. The firm dealt with a wide variety of cases as well as representing the County of Wellington, the City of Guelph and other nearby communities. With the younger Guthrie (Hugh) a Member of Parliament in Ottawa and the elder Guthrie (Donald), nearing retirement, Patrick was very busy and had to learn quickly. After Donald Guthrie’s death in 1915, the firm was renamed Guthrie and Kerwin. Thus, only four years after Patrick joined this firm he had become a full partner.

As time went Patrick’s and Georgina Mace’s relationship became serious and, once he was well established in the law profession in Guelph, they decided to marry. On June 2, 1914 Patrick Grandcourt Kerwin married Mary Margaret Georgina Mace at Our Lady of Lourdes Church in Toronto with his brother, Vern, acting as the best man.

At the end of that summer, the First World War broke out. Patrick, a recently married man, wanted to do his part. The story our family heard on this subject tells us when Patrick met with the army recruiter, a person he knew well, the recruiter sent the young lawyer on his way with the advice, “Go home and be with your wife. You’re just married and, anyway, there are plenty of volunteers and it’ll all probably be over by Christmas”. The recruiter was correct in that there were plenty of volunteers for the first Canadian contingent to go overseas and fight for King and country, but was incorrect about how long the war would last. In June of 1915, the Kerwins welcomed their first child, a daughter they named Mary Eleanor Isobel.

The Kerwins bought a home on Park Avenue in Guelph and added three boys to the family over the next few years (Patrick Kilroy, George and Philip). Patrick’s workplace in Guelph was located in the Solicitor’s Building on the south side at 15 Douglas Street in downtown Guelph. Patrick walked to and from work as the family did not own a car for many years. Instead, they would rent a vehicle when required (business or holidays). Mrs. Kerwin had the groceries delivered while living in the Royal City.

Patrick was known to like a good game of bridge and perhaps some golf, but mostly he kept to family and a small circle of friends. In the family home was a grand piano that he played quite often to entertain and sing along with friends and where the children took lessons. He joined the Priory Club, a private establishment to which he, and many of the city’s power brokers, belonged. The Club was a place where Patrick could have lunch, relax and enjoy card games.

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

The Kerwin family holidayed each summer for a few weeks in a rented cottage on Lake Huron. It was also a good place for him to play a few quiet games of golf in a relaxing atmosphere. The children would sometime bring a friend with them to the cottage, to avoid boredom or the predictable spats with their siblings. One friend of Isobel’s, Dorothy, came to spend part of one summer with the Kerwins. In a note to Isobel after Patrick’s death, Dorothy recalled how much fun it had been that summer so many years ago and also how much she had enjoyed learning the game of bridge remembering her father’s “gentle smile and teasing wit”.

In Ontario, the Deputy Attorney General may appoint a member of the bar of Ontario to act as Crown Attorney or assistant Crown Attorney, as the case may be. Patrick fulfilled these duties as a respected member of the bar when requested to do so. Other duties he took on were as an exam invigilator at Osgoode Hall, in the very rooms he had written the same challenge. He would take the train to Toronto for the day and be back at home by dinner time as Guelph was a short trip. As well, in early 1932, Patrick was named to the Parole Board for the County, adding to his already substantial duties in the field of law.

In September 1932, Patrick was appointed to the bench in the High Court of Justice in Ontario. 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.

Upon receiving the official letter on his appointment, Patrick wrote back to Prime Minister Bennett confirming that he had received the letter and, in closing he wrote, “I trust that I will be able to fill the position with satisfaction to all concerned and so merit the appointment”, signed, “Yours sincerely, P. Kerwin”.

Patrick Grandcourt Kerwin was sworn in on October 14, 1932 as a justice of the High Court Division of the Supreme Court of Ontario at Osgoode Hall in Toronto, in one of the courtrooms that Patrick had sat in as a student many years before.

As a justice in this court, Patrick traveled each spring and autumn throughout Ontario’s counties and districts to hear criminal and civil cases at sittings known as the Assizes. The Court had jurisdiction over all summary and indictable offenses and types of law including (but not limited to): murder, manslaughter, treason, frauds, and theft.

Travelling so much left his wife at home for long stretches of time to run their home, take care of the children and pay the bills. Fortunately, Mrs. Kerwin was very much up to the task and, according to all, did a splendid job but did miss her husband a great deal. Fortunately for Justice Kerwin, there were times where he also heard many cases in Weekly Court in Toronto, which meant he could go home after a long day’s work and spend time with his family.

On July 20, 1935, the Prime Minister, R. B. Bennett, head of the Conservative government of 1930-35, appointed Patrick Grandcourt Kerwin to the Supreme Court of Canada. This represented the thirty-fourth appointment to the Supreme Court of Canada since its establishment in 1876, and the fourteenth from the Province of Ontario.

In an article in the Toronto Telegram, they spoke of Patrick’s appointment to the Supreme Court, “Regarded as one of the most outstanding members of the Supreme Court of Ontario, the Honourable Mr. Justice Patrick Kerwin has been appointed a Justice of the Supreme Court of Canada, and his friends, not only of the Bar, but in his many other associations will join in rejoicing at the high honour which has been accorded him…It is a singular compliment that a man of Justice Kerwin’s comparative youth should be elevated to so prominent a position. He will be the youngest Judge on the Bench of the Supreme Court of Canada, but there is not the slightest doubt that he will maintain to the fullest degree the highest traditions of the Canadian Judiciary.”

During Patrick’s time as a Justice of the Supreme Court, perhaps one of the most important cases that came up was ruling on the federal government’s request for a ruling on the constitutional validity of a bill to abolish appeals to the judicial committee of the Privy Council in London, England. After examining the legality of the case amending the Supreme Court’s jurisdiction, Patrick voted with the majority in a 3-2 decision handed down on January 19, 1940, that such a bill was within the powers of the Canadian Parliament. As a result, the Supreme Court of Canada could become the court of last resort in Canada. This issue was not addressed by Parliament for the duration of the war as it would seem unloyal to Great Britain.

Finally, the post-World War II government of Louis St. Laurent introduced a bill to abolish the appeal to the Privy Council and to make the judgments of the Supreme Court final and conclusive. The bill passed and was given royal assent on December 10, 1949. The Supreme Court of Canada became the court of last resort for judgments in Canada on that date.

In October 1944, tragedy struck the Kerwin family. Their youngest child, Philip, age 21, died in an automobile accident while working in New Brunswick. A brilliant student and promising young man was taken from those close to him. A good friend of the family once related that the ‘joie de vivre’ in Mrs. Kerwin’s eyes dimmed at the loss of her youngest child.

Throughout his time as a Justice of the Court, Patrick and Mrs. Kerwin attended State Dinners and Government events, travelled the country giving speeches, attending conferences and writing judgments long after the Court had been sitting. As well, he often acted as the ‘Administrator’ of Canada on behalf of the Governor General when that person was out of the country. Usually it was the Chief Justice that was first in line for this duty but, often they were away as well. In this capacity, Patrick gave Royal Assent to bills, accepted the papers of new Ambassadors and fulfilled the duties of the position.

On July 1, 1954, Mr. Justice Patrick G. Kerwin was named the tenth Chief Justice of the Supreme Court of Canada. The appointment moved him from being the senior justice on Canada’s highest court to the top position. This was announced by Prime Minister Louis St. Laurent following a Dominion Day cabinet meeting. Governor-General Vincent Massey swore in Mr. Justice Kerwin at a Government House ceremony.

In numerous newspaper articles at the time, Patrick was noted as a veteran jurist having been a member of the Supreme Court of Canada for just over nineteen years. Known as a tough, serious-minded jurist, Patrick ran the court business with a firm hand tempered by a sense of fairness. He was also known to have taken great pains to ensure that counsel appearing before him were given ample opportunity to present their cases but did become politely impatient at repetitious argument. With Patrick, the law was never a matter for slow and leisurely procedures so, if a lawyer appearing before him seemed to be belabouring a point, he would likely have said, “Yes, we know all about that. Now have you anything else to say?”

In his judgments was a remarkable directness, a coming quickly to the point. The language in which he wrote his judgments was free of the rotundities and flourishes that easily tempt judicial minds. They were terse and simple, and usually brief. Many who knew him (and opposed him) said that Mr. Kerwin was fair-minded, absolutely without bias or prejudice.

Another highlight of Patrick’s career was his judgment with the majority in the Court that found in favour of granting a Jehovah Witness appeal against a Quebec law forbidding them to distribute religious pamphlets on the streets in the province. This case gave rise to another case in 1959 in front of the Supreme Court while Patrick was Chief Justice – Roncarelli v. Duplessis, (1959, S.C.R. 121), a case that spoke directly to the subjects of individual freedom and civil liberties in Canada. In the end, in January 1959, the Supreme Court of Canada ruled in favour of Mr. Roncarelli. Premier Duplessis was ordered to personally pay $33,123.53 in damages to Mr. Roncarelli.

Another case noted as a landmark decision by the Kerwin Court was that of Switzman v. Elbing and the A.G. of Quebec (1957 SRC 285), where Quebec’s ‘Padlock Law’ was struck down. The Supreme Court of Canada struck down the Québec law that allowed the province to padlock any premises suspected of promoting communism, both without warrant or the need for any evidence. In his defence, Switzman challenged the Padlock Law as a violation of freedom of speech. At trial and on Provincial appeal, the courts found in favour of the landlord. The Supreme Court found in favour of Switzman on both issues in an 8 to 1 decision.

Another of the Chief Justice’s duties was fulfilling the many requests to deliver speeches at events. For example, in the years 1956 and 1957 alone, some of the speeches Patrick gave were:

Loyola University convocation in Montreal;

The Lincoln County Bar Association in Niagara Falls;

Convocation at St. Patrick’s College in Ottawa;

Assumption University of Windsor on the occasion of receiving an Honourary Degree of Doctor of Civil Law;

The University of Toronto on the occasion of receiving an Honourary Degree of Doctor of Laws;

Boston University Law School;

The opening of the Superior Court in Montreal;

The Newman Club in Kingston, Ontario;

The Sarnia Chamber of Commerce.

Early in the 1950’s, the Kerwins had moved from their large home at the east end of Wilbrod Street in Ottawa to a large apartment directly across from St. Joseph’s Church near the western end of the street, near the University of Ottawa. At the time of this move, it was just one floor below the residence of Chief Justice Rinfret. It was in this apartment on Wilbrod Street that Patrick died of a heart attack on Saturday, February 2, 1963. The newspapers reported that the Chief Justice died suddenly after having a seizure. With him at the time of his death were his wife and his son, George. Flags on Parliament Hill flew at half-mast that day marking the death of a valued and vital Canadian. To date, he is the only Chief Justice of Canada to die in office.

The Guelph Mercury wrote on this occasion:

“Chief Justice Kerwin, who also held the title of administrator of the government in the absence of the governor-general, was active until the time death. An associate talked to him a few hours before he died said he appeared to be in good health…The court’s acknowledged expert on constitutional law, Chief Justice Kerwin played a leading role in some of the most famous constitutional cases ever to come before the court for decision…A tough, serious-minded jurist, he ran court business with a firm hand tempered by a sense of fairness. He took great pains to ensure that counsel appearing before him were given ample opportunity to present their cases but became impatient at repetitious argument…During the nine years he served as chief justice, he did much to expedite the court’s handling of cases. His view was that the court should do everything in its power to ensure that judgments were not unduly delayed.”

The Prime Minister, John Diefenbaker, said the death of the Chief Justice, was a “great and tragic loss for Canada”. The PM added that Patrick was “…a distinguished lawyer, a great jurist…his devotion was to justice and freedom… as Chief Justice he earned the admiration and respect that has come to few.”

Governor-General Vanier said he was “shocked beyond words” to hear of the death”, then added, “He was a dear devoted friend who was always happy to deputize for me, sometimes at great inconvenience to himself. For many years he has filled with grace and wisdom his exalted office. I shall miss his friendship and help.”

To the family, we’d lost a grandfather, a father, a husband, and now a good and cheerful part of our lives was forever altered.

As the past comes to mind sometimes without even trying, for me, now so many years later, when a gentle waft of a certain type of pipe smoke comes my way, I am reminded of my grandfather sitting in his squeaky leather rocking chair at home in his study. In my mind, there he is, having a few puffs then, later, relighting the pipe for a few more minutes of enjoyment for him as he watched over us. It is a warm and poignant feeling that reminds me again that his presence is remembered and missed.

[Editor’s Note: Steven McKenna is the grandson of Chief Justice Kerwin and the author of his biography entitled, “Grace and Wisdom”]