Beverley McLachlin, Canada’s most powerful woman

On gender balance on the court, whether judges are too soft, and lawyers working for free
John Geddes, Kate Lunau
Supreme Court Judge Beverley McLachlin takes part in the welcoming ceremony for Justice Richard Wagner at the Supreme Court of Canada in Ottawa on Monday, December 3, 2012. THE CANADIAN PRESS/Sean Kilpatrick
Fred Chartrand/CP
Fred Chartrand/CP

It’s 10 years and counting since Beverley McLachlin was sworn in as chief justice of Canada, the first female in the role. Born in the town of Pincher Creek, Alta., and first appointed to Canada’s Supreme Court over 20 years ago, today she is the most powerful woman in the country. An outspoken advocate of making the courts more accessible to Canadians, McLachlin spoke to Maclean’s last week in Ottawa.

Q: A hallmark of your court has been its openness—you’ve started webcasting appeals proceedings, you give many speeches. What’s your aim with all this?
The courts belong to the people. As such, I think people are entitled to know what goes on in the court. This is a very ancient principle of justice, that the courts always be open. As you’ve noted, we have webcasts now. People tune in, and they say, “who are those strange people sitting in their robes?” and they learn a little about the court, and the civilized dialogue that goes on there.

Q: Do you ever worry about the aura of the court being eroded?
I agree that the court should be somewhat removed. But I also think the people of Canada are entitled to know who’s on their courts, and how they work. And there’s greater danger in mystery, seeing the court as this oracle up there that all of a sudden, out of the blue, pronounces.

Q: Does that have implications for the way judges are appointed to your court? Should it be a more open process?
That is a question only the Prime Minister could answer, because the Constitution gives the Prime Minister the total right to appoint justices to this court. We’ve had some variation on that recently, but it’s difficult to see a model from my perspective.

Q: You mean a model that gives a clearly defined role to MPs on a House committee?
Justices [Rosalie] Abella and [Louise] Charron were appointed in circumstances where the minister of justice consulted with the committee, and then chose, presumably with the Prime Minister, and then went before an ad hoc parliamentary committee and answered questions about the choices. The judges didn’t appear. Then the next appointment was Justice [Marshall] Rothstein, and at that point they arranged for an ad hoc parliamentary committee and asked Justice Rothstein himself to appear before it. For the latest appointment, Justice [Thomas] Cromwell, there was no appearance before any committee by a justice minister, or by the candidate.

Q: We understand that you can’t tell the Prime Minister how to do it, but can you say if you think the rules for the appointment process should be firmed up?
It would depend on what the process was. I do believe there has to be a process, and the traditional process of Canada has been one of thorough, in-depth study, review by the Justice Department on a very objective basis, I’m led to believe, which is then sent on with recommendations of perhaps several top candidates to the political branch and the Prime Minister. I would hope we would never go to a process where we don’t have in-depth scrutiny of candidates by an objective body such as the Justice Department. Exactly what happens thereafter will depend on what the Prime Minister wants to do.

Q: Some of the debate around judicial activism seems to have died down in the last few years. Do you think there’s a better understanding of the balance between laws politicians pass and how judges interpret them?
I think so. Goodness knows I’ve given enough speeches on that. I felt it was important to explain what we do as judges, and the limits on what we do, and how we are interpreting the law. We approach arguments that Parliament’s gone too far, for example, with a great deal of deference, because we feel that legislators and parliamentarians have tools that the courts don’t have. More fundamentally, that’s their job. Provided they operate within the large parameters of the Constitution, we do our best to uphold that legislation.

Q: Does it change that balance when new laws tell judges how to rule? We’re thinking of the spate of new federal crime statutes that dictate mandatory minimum penalties.
A: These are matters that may come before us, mandatory minimums and some of the recent laws, so obviously I’m not going to pronounce in advance. But as a general observation, the more precise the law is—provided it’s within the bounds of the Constitution—the less discretion there is for judges. Beyond that, I’m not sure how much I can say.

Q: But it’s sometimes suggested that the courts have been coddling criminals. Do you think there’s any justification to that criticism?
A: I don’t think so, overall. You have to realize that judges under the Criminal Code have to take into account not only retribution. In fact, they have to look at rehabilitation. They’re directed to. They have to look at a number of factors in sentencing. And sometimes the perspective from the person who’s making the speech about how judges are too soft is simply one of, this conduct deserved more retribution. It’s easy to understand that someone who’s looking at the penal process only through the lens of retribution may come up with a view that’s different than a judge, who is required by the Criminal Code to look at three other factors that may sometimes cut the other way.

Q: So light sentences shouldn’t be a concern?
A: I’m confident, by and large, that the judges of Canada are applying the sentencing provisions of the Criminal Code in a responsible manner. The courts of appeal throughout this country hear many sentence appeals where the Crown and the accused argue about what’s the appropriate sentence. This is a process that’s carried on within the parameters of what the Criminal Code requires, and I’m confident it’s working properly.

Q: You’ve taken a personal interest in the problem of access to justice, especially cases where Canadians can’t afford lawyers. What’s your read of progress on that challenge?
A: In terms of awareness, things are much better today than they were 10 years ago. We’ve got efforts at various levels across the country to improve access to justice. Ontario has a very strong pro bono movement amongst law firms, same in many other provinces. It’s a complex and difficult problem. There are so many facets: for example, right now, in some provinces, there are not enough provincial court judges. The reality is that a significant number of litigants on the civil side today are not getting a lawyer. So, governments have set up self-help centres where they can inform themselves.

Q: Some have argued that self-help centres—and the larger push to make it easier for people to represent themselves—are a compromise, since people ideally should have a lawyer.
A: The analogy might be to treating yourself for an illness. Sometimes you can go to the drugstore and get a pill, and everything will be fine. Other times, you need to talk to an expert, to diagnose your problem, to find out what the proper solution is, to find out the alternate ways you can go and what they will cost. There’s no substitute. You can help in some situations, but ultimately, in a number of them, I believe people need a lawyer.

Q: As Canada’s first female chief justice, how do you view the progress women have made during your decade in the job?
A: We’ve made a lot of progress on this court, because of nine judges, we now have four women, and I think that’s wonderful. When I was sworn in in 1989, we were three women. Bertha Wilson was the first justice on the court, and she had a great sense of humour, she leaned over and whispered in my ear, “Three down, six to go.” Bertha would have been the first to say, what is required is not an all-woman court, or an all-man court, but a court that represents both genders. Ditto for other institutions in the public life.

I realized this when I was a trial judge and one afternoon, I had a divorce case. The wife was represented by a female lawyer, I was the female judge, there was a female court clerk and a female reporter. And the husband was there all by himself. So we went through the wife’s evidence, and then I turned to the husband, and I said, I need to hear your story. He seemed to be having some trouble getting to his feet. He finally managed to stand up. His complaint was not that he didn’t have a lawyer. He said, “Your Honour, frankly I feel a little outnumbered.” And I assured him that he would have justice and it didn’t matter he was in a gender minority situation in this courtroom. But I went home that night, and I reflected on how many times over all of the years that Canadian courts have been operating, if women ever got there, how they might feel a little outnumbered.

We can’t always get perfection, and I’m not suggesting quotas or anything like that. But there’s a value there that, I think, should not be forgotten.

Q: A few years ago, the court looked split along left-right lines. Now we see more unanimous decisions. Why is the court more unified?
A: I think credit for that, if credit is the word, goes to the whole court. One of the things I encourage as chief justice, and I’m supported in this by all my colleagues, is to talk a lot. We don’t hear the case and go off in our little silos. We continue to have conversations. They may be in the form of written memos, they may be just going into someone else’s office. They may even be in the form of having a re-conference, because I believe that on these difficult issues we’re called upon to decide, the people of Canada are not entitled only to nine separate opinions—they’re entitled to the opinions of all nine judges after the judges have considered the points of view of the other justices.

I think we’re getting consensus, where it can be achieved, in a principled way. We also have our dissents and our split decisions, and there’s nothing wrong with that. But I think we’re finding that we’re not automatically breaking to this line, or that line—we’re talking about it, and more often we’ll be coming together, or finding a common position, at least on most of the issues.

Q: Since you’ve been chief justice, all nine judges tend to sit on more cases. Why is that?
A: Our statutory mandate is to decide legal issues of public importance within the country. It’s very important we give the maximum certainty to those decisions. This is abetted by having seven or nine judges, because if you get a split decision on a five-judge panel, people who are looking at the question outside will say, “Well, if they had seven, it might have gone otherwise, or if they had nine, it might have gone otherwise.”

Q: You grew up in Alberta, worked as a lawyer and judge in British Columbia. How much do you still feel yourself to be a westerner?
A: I’ve been here 21 years now, but I still have very strong family and emotional links both to Alberta and British Columbia. And in British Columbia, I have very strong professional links, because that’s where I had the bulk of my legal practice. So I try to get back as much as I can. I always have one or two law clerks who have ties to British Columbia and sometimes Alberta.

Q: Your workload seems extraordinary. What keeps you going?
A: I love what I do, and maybe that’s the answer. I love working in the cases, and I love the role of actually being a judge, and so I would never want to give that up. The administration is interesting. For example, processes of rewiring our courtroom for computers, modern electronics, and online factums. Those are administrative matters but they’re so important to justice, and they’re part of keeping our institution up to date.

My latest little project is, I think we need to get a small museum in this building. We have many visitors coming through every year, and we show them a video, and we take them through the courtroom, but I would like to have a museum where some of the more important decisions could be put under glass, where people could see demonstrations of the history of the institution.

Q: You’re known as a hands-on administrator, you write a lot of decisions, deliver many speeches—how do you manage to maintain any personal life?
A: I have always believed that you have to have what’s colloquially called lifestyle balance. I think it’s particularly important in jobs such as mine, where you need space and time for reflection. My job is not counted in how many pages I can push out. I might work for a week on a judgment and the whole thing ends up in the garbage, and I have to start over. I feel that having a weekend at the cottage, or going to a concert a couple times a month, or reading a book that has nothing to do with law, that these things are very important to distance me from the ongoing pressures of what I have to do.