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The Top 100: Beverley McLachlin, the Supreme Court’s consensus-builder

By Christopher Guly      

Beverley McLachlin is not only the first woman to hold the position, she is also the longest-serving Chief Justice. She will continue in her role until she reaches the mandatory retirement age of 75 on Sept. 7, 2018.

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To obtain perspective on Beverley McLachlin’s extraordinary judicial career, one can first measure it by quantity.

From March 30, 1989, when she was named to the Supreme Court of Canada, to Nov. 28, 2016, McLachlin heard 2,094 appeals and wrote 442 judgments. On average, as Chief Justice, McLachlin sits on about 70 out of the 80 cases the court hears annually.

One can also recognize the historical significance of McLachlin’s appointment on Jan. 7, 2000 as the court’s 17th Chief Justice.

She is not only the first woman to hold the position, she is also the longest-serving Chief Justice. She will continue in her role until she reaches the mandatory retirement age of 75 on Sept. 7, 2018.

Or, one can look at McLachlin’s contribution to the high court, and the results.

While the sheer breadth of rulings with which she has been involved makes it difficult, if not impossible, to single out one or two for which she will be remembered, the types of decisions and the approach the Supreme Court has taken in making them under her watch has a distinctive McLachlin mark.

P&I photograph by Jake Wright

Within the legal profession, she is widely viewed as a consensus-builder on the court, which requires an intellectual dexterity to connect the dots on issues and an outgoing personality to connect people’s opinions to them.

In an hour-long conversation in her chambers, the Chief Justice shifted effortlessly between addressing the challenges the Supreme Court faces, along with the social and legislative impact of its decisions, to laughing easily.

It’s not hard to imagine McLachlin’s combination of smarts and charm helping to persuade her fellow justices to agree more than disagree on cases before them. She won’t reveal what happens at those conferences—now or even after she leaves the bench—out of respect for the confidentiality of the deliberations.

But the Supreme Court’s own statistics show that between 2005 and 2015, the court has released more unanimous rulings than split decisions. Out of 74 judgments released in 2015, all judges agreed on the result in 52 (or 70 per cent), of them.

That’s a significant accomplishment and a credit to McLachlin’s leadership, says Eugene Meehan, who served as executive legal officer to McLachlin’s predecessor, Antonio Lamer.

“Appeals are increasingly more complex, and unlike the previous two decades when cases were mainly focused on the Charter of Rights and criminal law, just about every area of law comes before this court— from agriculture to zoning,” explains Meehan, who now specializes in taking cases to the Supreme Court, and helping other lawyers do so, through the Ottawa-based law firm, Supreme Advocacy LLP, which he co-founded in 2012.

Finding unanimity amid such diversity has been one of McLachlin’s goals as Chief Justice. “The fundamental responsibility of the Supreme Court is to clarify the law,” she says. “It makes sense for us to try, insofar as we can, to resolve differences and to come to as clear and unified view of the law as we can.”

McLachlin has also reduced the number of concurring opinions in decisions. She recalls that in her pre-chief days in the 1990s, the court faced criticism from members of the public—and lawyers—who found it difficult to determine what the court was saying on particular points of law, and the legally binding result of a ruling, when individual justices would write their own reasons for either supporting the majority of the court or the dissenting minority.

Now, a decision typically includes only the reasons for the majority and, if applicable, for the dissenting judges.

But before the court reaches a ruling, the justices who heard the case first meet and have a “very lively, vibrant discussion” about it, which sometimes results in opinions changing, says McLachlin.

“The process is not over when we have our first conference,” she explains. “After that, people will continue to discuss and exchange opinions, and then you will read the first draft and that may cause you to see the case in a different way.”

Until a judge signs off on the reasons, or concurs with them, “there is always a possibility for modification or change,” she says.

However, it’s not often that a sitting judge sees the same court overturn its own decision as McLachlin has.

A rare, overturned ruling

In 1993, she wrote the dissent in Rodriguez v. British Columbia (Attorney General) in which the Supreme Court held that the Criminal Code section prohibiting assisted dying was constitutional in a five-to-four ruling. In 2015, McLachlin was the only remaining judge from Rodriguez to see the court—in a unanimous ruling—declare that ban no longer applies to physician- assisted death for terminally ill or suffering adults in Carter v. Canada (Attorney General).

Some said the court, which gave Parliament time to amend the Criminal Code accordingly and pass medical assistance in dying legislation (Bill C-14), was once again displaying judicial activism—although not to the extent of such accusations in the 1990s when Conservatives actively derided the court for using the Charter to legislate from the bench.

“McLachlin inherited the court when the public discourse included the idea that striking down laws under the Charter was activist,” says Robert Leckey, dean of the Faculty of Law at McGill University, who served as law clerk to former Supreme Court justice Michel Bastarache.

“The earlier years of the McLachlin court were perceived to be a little more tempered, a little more cautious to strike down laws relative to the ‘80s and the ‘90s under [former chief justice Brian] Dickson and Lamer. But in the latter years, the McLachlin court has shown that when there’s a matter of principle the justices believe in strongly, they’re prepared to exercise the powers the Constitution gives them.”

Leckey, who also teaches constitutional law, believes that one of McLachlin’s legacies is the maturing of Charter jurisprudence by the Supreme Court.

McLachlin was never unduly concerned by criticism that the court was too activist, which she views as “code for saying we don’t like what you did” from those who became “very quiet when the court did something that they liked.”

As McLachlin explains, “Our job is to interpret the Constitution, including the Charter of Rights, which sets the bounds on the laws that Parliament can make.” She adds that the Supreme Court sometimes offers “guidelines or suggestions as to things Parliament might wish to consider—maybe alternative procedures.”

Making the law clear, and accessible

A fastidious writer, who will sit at her office computer and go through several drafts of a decision before arriving at final reasons that she hopes make “extremely complex” legal issues clear to the reader, McLachlin has a recommendation for the legislative branch of government.

“I believe laws that are passed by Parliament should also be as clear as possible,” she offers, “and on that I’ll say, have a look at our Criminal Code. It might be time to revise it. There are some provisions in there that the court has struck down.”

One change that McLachlin says she is pleased with is the process the federal government introduced to have an independent panel review and short-list applicants to fill Supreme Court vacancies.

“It produced an excellent justice [Malcolm Rowe, the first Newfoundlander] to join this court. It did so within a timely period, in a way that was basically non- partisan and that left the public satisfied that the person occupying this position
is very qualified to have a seat on the Supreme Court of Canada and will serve the country very well.”

Rowe’s appointment to the court last October went a lot smoother than one in 2013 when the then-Conservative government named Federal Court of Appeal Justice Marc Nadon to fill a Quebec vacancy.

The following year, in a 6-1 decision, the Supreme Court rejected Nadon’s appointment on the basis that he failed to meet a Quebec-specific eligibility provision; he was not a sitting judge on a Quebec court or a current member of the provincial bar.

Following the unprecedented ruling by the court on the qualifications of a prospective member was an equally unparalleled public spat between the offices of then-prime minister Stephen Harper and McLachlin, in which the PMO and then-Justice minister Peter MacKay said that McLachlin’s office requested a meeting or a call with the PM to discuss the selection process.

The Chief Justice’s office clarified that contact with the PMO occurred before Nadon’s nomination, and concerned the eligibility of a federal court judge to fill the Quebec vacancy.

In a statement, McLachlin said that, “given the potential impact on the Court, I wished to ensure that the government was aware
of the eligibility issue,” but that “at no time did I express any opinion as to the merits of the eligibility issue.” She added that it “is customary for Chief Justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”

Former prime minister Brian Mulroney, who appointed McLachlin to the Supreme Court in 1989, says there is nothing “novel” about a Supreme Court chief justice communicating with the justice minister or the prime minister, and cannot recall a time when a prime minister sparred with the Supreme Court, but credits McLachlin with the way she handled the flap.

“I thought Beverley handled herself with a lot of dignity,” says Mulroney. “She did what she had to do to defend, not herself, but the integrity and independence of the Supreme Court.”

It was his government that fast-tracked McLachlin’s judicial career, which began in 1981—when she was 37 years old—at the Vancouver County Court, elevating her to the British Columbia Court of Appeal in 1985 from B.C.’s Supreme Court and then sending her back there three years later, in a promotion, as its chief justice.

Seven months afterward, Mulroney named her to the country’s highest court.

“I thought she was terrific; a strong woman with strong opinions and a great capacity to work collegially,” says Mulroney.

“Her greatest accomplishment [as Chief Justice] is leading a united court on some pretty significant judgments. She’s very much a leader of the court.”

Former Liberal prime minister Jean Chrétien, who also sat as the Justice minister in 1980, says that during his global travels, during and since his time as prime minister, he has heard “great compliments” about McLachlin, whom he considers to be a “great” Chief Justice.

“She has done a very good job, she is extremely well-respected by everybody,” and has led the court with “style, elegance and a great personality,” he says. “People are very impressed by her.”

McGill’s Leckey credits McLachlin with making the Supreme Court more accessible via social media (posting summaries of judgments in both official languages on Twitter) and through media lock-ups to help journalists better understand a decision and its implications before the ruling is released.

He also considers McLachlin an “impassioned advocate” for the Canadian justice system, the courts, and the Charter of Rights, and has put herself out there in speeches she’s delivered and media interviews she’s granted in a way not seen before by Canada’s chief justice. Says Leckey: “She feels judges don’t only speak through their judgments.”

But she won’t speak about judgments in any detail, beyond addressing trends in the law or the impact of decisions. “I speak through my judgments,” says McLachlin. “I would never try to add or say, ‘I didn’t really intend that.’ It doesn’t matter what I intended; it’s the words on the paper are what matter.”

She adds: “What I might say at a conference three months later is of no jurisprudential merit. It has no force of law, and it can only confuse or undermine.”

Leckey says the McLachlin court has given personal autonomy (as seen in the Carter decision) more prominence in jurisprudence, and it has afforded “greater justice under the Constitution” for indigenous people.

For example: the unanimous 2014 decision, which the Chief Justice wrote, that recognized the Tsilhqot’in First Nation had title to 1,750 square kilometres of land in B.C., the first time the court rendered a ruling finding aboriginal title.

“Indigenous rights is one of my areas of great interest. I feel it is so important for our country to get this right,” McLachlin says. “We are embarked now on a conscious path of reconciliation. If we do that right, we will build a strong and unified nation, and find dignified and fruitful paths for indigenous and non-indigenous.”

She adds: “I have a small role to play in that—as a judge. But it’s something I cherish and take very, very seriously.”

Addressing the disproportionate representation in prisons of First Nations people, who “come from a different context, background, and sometimes experiences” and providing them with “real justice” is one of the great challenges facing what the Chief Justice considers to be an otherwise good justice system.

“We have one of the fairest and justest societies on the face of the earth. Does that mean everything is always perfect? Absolutely not,” she says. “We have delays in the criminal justice system, with things as basic as trial times. We have challenges dealing with mentally ill and addicted people, and finding outcomes that will avoid the revolving prison-door syndrome.”

As passionate as McLachlin is on these broad issues, she is also as attentive to the issues in matters before the court. “She’s always live, always well prepared, and there’s a bright fire in her eyes, no matter the case,” says Meehan.

“Last year, I argued an insurance case [Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co.]—not exactly the most exciting to take to the Supreme Court of Canada—and at the end of it, she leaned back and you can hear her say sotto voce to Justice [Rosalie] Abella, ‘Oh, that was fun,’ and she meant it.”

That joie de vivre is nurtured by a work- life balance McLachlin says she embraced after receiving advice from Justice William McIntyre, whom she replaced on the high court. “He said, ‘Find some outside interests, otherwise the job will consume you.’”

So she gardens and reads, and is a regular attendee with her lawyer-husband Frank McArdle, at National Arts Centre Orchestra concerts.

And when she retires, the Pincher Creek, Alta.-born jurist might write a memoir.

“If I did, it would be probably focused on issues and personal takes on how I’ve had the privilege to work on certain issues over my lifetime,” says McLachlin.

“I have something like that in the back of my head, but whether it will ever be realized, I don’t know.”

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