Whoever lays a hand on me to govern me is a usurper and a tyrant Government of man by man is slavery—Pierre Proudhon, Confessions of a Revolutionary, 1849.
Sturgeon Point, Ontario. The placid waters ripple in the sun. The bright maples and silvery pines rustle peacefully, far from the aggressions of the world. Toronto civil liberties lawyer Clayton Ruby teeters in a collapsible chair on the lawn of his country estate, chain-smoking cigarettes and aggressively denouncing all of the world’s political and social conventions. “Governments utterly waste public money in cases where they have no business interfering. Giant corporations, by means of tax deductions, force us to subsidize miracles for which we have no use. We need individuals who will stand up to big government and big business and say, ‘These are my principles. I won’t. You’re wrong.’ ”
“Clayton Ruby,” says Canadian Civil Liberties Association general counsel Alan Borovoy, “is among the foremost civil liberties lawyers in this country. He’s rare because he speaks out—getting up on platforms, firing off letters, chasing the authorities.”
Among Canadian civil liberties lawyers, or for that matter among lawyers of any kind, Clay Ruby is not only eminent and unusual, he is also idiosyncratic, provoking, contentious, fractious and utterly obdurate. “If I’m called upon to give an opinion I express what’s on my mind,” says Ruby with considerable understatement. During the past year Ruby has not missed any opportunities to castigate publicly the members of the McDonald Commission on RCMP activities as Liberal hacks, of dubious commitment to their enterprise. Invited to address the annual conference of the Canadian Periodical Publishers Association last April, he unregenerately called his hosts a “bunch of cowards” for their “mealymouthed” failure to take a militant (enough) stand on the issue of freedom of the press.
Last month Ruby appeared in a Sault Ste. Marie courtroom to defend what he considers the inalienable right of Winnipeg barroom comics MacLean & MacLean to perform such homespun drinking ditties as “Do Your Balls Hang Low?” on a stage in Algoma District. “What is offensive here,” maintains Ruby, “is the state once again playing a censorship role. We have problems with violent crime, with corporate crime. Why are prosecutors wasting their energies on cases like this, when adults are perfectly capable of deciding what they should or should not see?”
Later this fall Ruby will oppose the Crown’s appeal of last February’s acquittal of Toronto gay publication, The Body Politic, on charges of distributing “indecent, immoral or scurrilous” material, a litigation that has already been the epicentre of tempestuous conflicts among gay militants, religious zealots and fulminating editorial writers.
But then, political polarizations routinely swirl around Ruby, who collects controversies the way milder men acquire bowling trophies. Harold J. Levy, an Ontario Legal Aid Plan senior administrator and long-time associate, sees in Ruby a compendium of all noble civic virtues, “a man of boldness, courage and sincerity, a man who, when the
state abuses its power, cries inside.” However, Phil Givens, Metro Toronto Police Commission chairman and longtime adversary, perceives in Ruby a reflex radical, congenitally incapable of seeing any issue objectively. “There’s no possible compromise, nothing we could ever do to satisfy Mr. Ruby. The intensity of his gaze obscures the depth of his vision.”
Ruby was equally intractable when he first started practice as a criminal lawyer in the late ’60s. In those days he regularly rose in court in defence of black activists, “red” polemicists and ordinary bourgeois kids who had become campus revolutionaries. At the same time, his unrelenting accusations of policy infractions so alienated the department that in one instance a young woman being questioned about a robbery was asked only three questions by the police—“Are you a Communist? Do you have any track marks [heroin injection scars]? Do you know Clayton Ruby?”
To some extent Ruby has mellowed since those times. “I have always been and still am unequivocally a leftist,” he insists. “I’m in favor of power for working people, power devolving to community-level organizations.” But in the federal election of last May Ruby campaigned for Conservative Ron Atkey, now minister of employment and immigration.
What has always been at the heart of Ruby’s motivation is a philosophy derived from the fiery exhortations of 19th-century anarchists. After a filial bow to Ruby mère and père, the dedication of Ruby’s scholarly textbook on Canadian sentencing procedure (Ruby on Sentencing) genuflects deeply in the direction of the revolutionary anarchist Alexander Berkman, the very mention of whose name seems to cause Ruby’s voice to quiver with ardent emotion. “Alexander Berkman was an uncompromising idealist,” he says. “When he was deported from the United States to Russia in 1919, he was hailed as a hero by Lenin. But in Russia he couldn’t keep his mouth shut either. He wrote a critique of the Russian Revolution so brilliant and so critical that he was deported from there, too.”
During the past few years Ruby has labored, with varying degrees of success, to direct the instruments of Canadian law on the basis of this individualistic faith. In the Lavell case of 1973 Ruby argued before the Supreme Court that the section of the Indian Act which deprives native women—but not men—of their Indian status and accompanying benefits as a consequence of intermarriage with non-Indians is “flagrantly discriminatory.”
In the Morgentaler abortion case of 1974-75 Ruby contended that the Crown’s prosecution was a denial of the principle of equality before the law. “It created a situation,” maintains Ruby, “in which wealthy women could obtain medical abortions in the United States where they were legal, while poor women were compelled to resort to selfabortion and dangerous back-room operations.”
Ruby, who went down to defeat in both cases, sees the decisions as a further corroboration of his thesis. “The Liberal government—and I have no illusions that the Conservatives will be any better—opposed every application by every citizen to invoke the Bill of Rights. By appealing each attempt to do so, the government, as much as the courts, has killed the Bill of Rights. They don’t like it. They don’t want the courts to be able to say to them—‘Thou shalt not.’ ”
None of Ruby’s cases has been more controversial or attended by more sensationalism than that of the gay publication The Body Politic. In its December, 1977, issue, the paper published an article that invited its readers to consider the salutary aspects of sexual relationships between older men and adolescent boys. The first reaction was a volley of furious retorts by conservative columnist Claire Hoy in The Toronto Sun, warning direly of “recruiting” homosexuals craving “kids, not rights.” In January, American evangelist Anita Bryant preached to 3,000 worshippers at the Peoples’ Church in Toronto, where she intoned sacred songs and, tears coursing down her cheeks, recited the commandments of First Corinthians against fornication and effeminacy. Ruby himself was depicted in a Sun editorial cartoon, sadistically stabbing a policeman through the heart with a sword emblazoned “freedom of the press,” and sneering, “Sorry, flatfoot. If you need a good lawyer, give me a call.”
It is the very unpopularity of the issue in question, argues Ruby, that makes it a critical one from the civil liberties point of view. “Freedom of speech doesn’t say you can’t talk about pedophilia except in an objective way. Freedom of speech means freedom to convey any side of an issue. We are entitled to ask for accuracy but we are not entitled to say, ‘Take this attitude toward it.’ ”
The trial itself, in January of this year, was a fitting climax to the affair. Other lawyers have described Ruby’s courtroom style as so cerebral and precise as to be almost clinical. But on the first day of cross-examination Ruby launched an attack on two of the Crown’s chief witnesses that was volatile and scathing. The virulent language used by Hoy in his columns on the issue—“weirdos ... creatures ... clawing hands and demented aspirations of
radical homosexuals”—was proof, submitted Ruby, that Hoy was “hopelessly biased, utterly extreme.”
Ruby induced Rev. Ken Campbell, founder of the fundamentalist Renaissance Canada organization, to assert that the Socratic dialogue was the acme and pinnacle of teaching methods, but that because Socrates was a homosexual, any application by that paragon of teachers to instruct in Ontario schools—assuming, for the sake of argument, the suspension of physical laws—should be opposed with all possible rigor. In the space of five hours the credibility of the witnesses, and perhaps the prosecution’s case, were shattered. On Feb. 14, 1979, a verdict of acquittal was handed down.
The Crown’s decision to appeal the verdict this fall is a matter of regret but not of surprise to Ruby. “It’s a political decision. Prosecutors sense a rightwing mood in the public, and they see quotes and votes out there if they respond to it. I’m not against a right-wing mood per se, but it shouldn’t be used to power the criminal law machine. What are individuals who can’t raise that kind of money (the Body Politic case defence cost close to $30,000) supposed to do—go bankrupt or accept the consequences of a conviction?” Ruby: controversies collected like trophies
Naturally, Ruby’s opponents have their own contentious, fractious and equally inflammable rejoinders. In a CBC radio debate with Ruby last March, Ontario Attorney-General Roy McMurtry, whose decision it was to launch the Body Politic appeal, declared himself “shocked” at the “terrible suggestions” of cynicism and political opportunism. Columnist Hoy caricaturizes Ruby as a “10-speed Liberal Wunderkind, always rushing to defend trendy causes. How quick would he be to defend the Western Guard, to defend their right to free speech?” (Three weeks ago members of an anti-drug group went so far as to stage a demonstration in front of Ruby’s home, chanting angrily that his defence of The Body Politic and his advocacy of the legalization of marijuana were eroding the moral fibre of the nation.)
But on the verandah, by the lake, under the murmuring pines, Clay Ruby chain-smokes cigarettes, leans forward in his collapsible chair and ardently quotes from the theology of anarchism: “As 19-century anarchist Prince Peter Kropotkin said—‘Ask yourself what you need to know to make this the kind of world you want to live in. Demand that your teachers teach you that.’ ” lt;£gt;
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