Samuel Grange, Jurist 1920-2005

'You can't run an inquiry without letting everybody have his say.'

The Globe and Mail
August 30, 2005

Samuel Grange, Jurist 1920-2005
Best known for heading the royal commission into the deaths of 24 babies at Toronto's Hospital for Sick Children, he declined to lay blame and stoically endured any criticism.
Oliver Moore

After falling quite by chance into the legal profession, Samuel Grange was at the centre of a series of key decisions and headed the controversial inquiry which determined that babies had been murdered at the Toronto Hospital for Sick Children.

"He played an enormous role … he should be remembered because of his contribution," said Horace Krever, another retired judge who oversaw a commission, in his case a probe of the tainted-blood scandal. "He was everything a judge should be: learned, wise, compassionate, patient and extraordinarily literate."

Judge Grange was on the bench at the Ontario Court of Appeal when it ruled the rape-shield law constitutional and when the CBC miniseries The Valour and the Horror was ruled not to have libelled Canadian airmen. He also backed the decision by that court which allowed the custodial parent in a divorced couple to move the child far away from the former spouse.

But Judge Grange was most prominently in the public eye when he headed the royal commission into the deaths at the Toronto Hospital for Sick Children. The probe was called after a series of deaths rocked the hospital, a leading pediatrics institution. From the summer of 1980 to the spring of 1981, the death toll on the hospital's cardiac ward was 625 per cent higher than the previous three nine-month periods.

After 191 days of testimony over three years, Judge Grange found that eight babies had been killed by drug overdoses and another 15 had died in suspicious circumstances. He issued his 224-page report in the first few days of 1985. He concluded that the babies had died because of overdoses of digoxin, a heart drug that many should not have been given. The babies' bodies, nine of which were exhumed for the investigation, revealed abnormally high digoxin levels.

Controversially, although Judge Grange recommended compensation to Susan Nelles, a nurse charged with several of the murders, he did not assign blame to anyone. He faulted no one and offered no solution to the mystery of who killed the babies.

The report angered parents of some of the babies and brought a wave of public criticism. Ms. Nelles had been released after a preliminary hearing because of lack of evidence and it appeared no one would be held responsible.

But according to his son Dougall, Judge Grange had long inured himself from criticism and maintained a healthy distaste for the media, in spite of initially considering a career in journalism. Later, though, he came publicly to the defence of inquiries at a time when they were being criticized as unwieldy and overly time-consuming.

"You can't run an inquiry without letting everybody have his say," he said in the mid-1990s. "You don't know what a person's going to say until he says it — even though sometimes he says it and you're sorry you ever let him speak."

His father recognized the importance of many of the cases he heard and was keenly aware of the lasting impact of his decisions, said Dougall, a 46-year-old paralegal in Toronto. "Sometimes he didn't come to these decisions easily, he really worked, he was conscientious and would think very, very carefully about what he was doing. Regularly he would be up at three or four in the morning, going over the materials and trying to come up with a solution."

Judge Grange felt strongly that the practice of law had fallen into public disrepute and believed that one way to regain the people's trust would be to introduce television cameras into some courtrooms. "The image of justice is poor, I don't think we deserve that image," he said in the mid-1980s.

But he felt no compulsion to play to the public gallery. "He was of the view that you write your judgments, you write your reports, and you let them speak for themselves," said the younger Mr. Grange.

Many of the decisions are still with us, their importance being felt still today. The intrusive questioning of rape complainants is a thing of the past in part because of the decision written by Judge Grange. In the case of two adults accused of assaulting a 15-year-old girl in the basement of a school, the question of the girl's previous behaviour with men came up. But Judge Grange, then sitting on the Ontario Court of Appeal, made it clear that times had changed.

"Sexual reputation is no more an indicator of credibility in a woman then it is in a man," he wrote for the majority in the late summer of 1987. "It should no longer be recognized as relevant to the issue."

Two years earlier he backed another controversial Court of Appeal decision, this one written by then Madam Justice Rosalie Abella. Hearing the case of a divorced couple, one of whom wanted to move away with the couple's child, the three judges unanimously agreed that she could.

"The custodial parent's best interests are inextricably tied to those of the child," wrote Judge Abella, supported by Judge Grange and backed by then Mr. Justice Jean Labrosse. In effect, they ruled that what is good for the custodial parent should be presumed to be good for the child.

Retired judge Krever called him "an exemplary member of the profession" and said he was something approaching a poet laureate at the Court of Appeal.

"There are a lot of cases in which he wrote excellent decisions which will stand the test of time," said Judge Krever, 76.

Dougall Grange said that, as a child of two journalists, his father was headed for that career when the war diverted him to Europe. Awarded the Croix de Guerre for his dangerous work as a forward artillery observer, he seems also to have caught the eye of several peers. Military law at the time allowed a serviceman accused of a crime to choose the officer he wanted to represent him. Mr. Grange, then a captain, had no legal training or experience but was chosen several times.

In one of the more serious cases, he defended an American who had lied his way into the war before his country became involved. When the United States entered the war he quit his unit with the intention of joining the allied U.S. forces. Caught and tried for desertion, he could have been shot. Then-Captain Grange successfully argued his case and the man was released, Dougall Grange said.

"He came back here afterwards and thought 'okay, why don't I try this. He loved the practice and he liked the people … it was his life'."

Samuel Grange was born on March 19, 1920, in London, Ont. He died on Aug. 26, 2005, at Sunnybrook Hospital in Toronto after suffering a series of strokes. He was 85. He was predeceased in 2003 by his wife Patricia. He is survived by his son Dougall and daughter Alice.

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