Judging Beverley McLachlin

Canada’s chief justice has won respect—but not always admiration

Chief Justice Beverley McLachlin of the Supreme Court of Canada. (Art Babych/Shutterstock)

Chief Justice Beverley McLachlin of the Supreme Court of Canada. (Art Babych/Shutterstock)

The 10th anniversary of Beverley McLachlin’s appointment as chief justice of Canada will come early next year, on Jan. 7, but commentators are already taking stock. They increasingly speak of the “McLachlin court,” and try to pin down ways she’s changed or influenced the court’s direction. Her formal powers are limited—the most significant is determining the size of a panel (five, seven or nine judges) hearing a case, and, if it’s less than the full complement of nine, deciding the panel’s composition. But as the court’s titular head and public face, her informal ability to influence the other judges and set the tone is considerable. To the country, and to the world, she is the Supreme Court of Canada. She is often described as the most powerful person in the land. But what do we know about Beverley McLachlin, and how has she measured up in high public office?

There was nothing remarkable about McLachlin’s life until she began her dizzying climb to judicial power. She was born in 1943, in Pincher Creek, Alta. It’s a town of about 3,600, two hours south of Calgary—a place with few Aboriginals or visible minorities, where almost everyone owns the house they live in. McLachlin was the first of Ernest and Eleanora Gietz’s five children. The family worked a ranch southwest of town and a sawmill, and her parents were fundamentalist Christians; she has described them as “fervent believers” and of “high moral value.” As a child, she attended a Pentecostal church.

McLachlin speaks of a deep affection for Pincher Creek and its values: “You had this sense of privilege that you were living in this very special place, even though it was remote and not very important.” In a 2004 interview, she said that her small-town, old-fashioned background had a considerable effect on her work as a judge. “I think I have a very strong sense of a connection between people and place. Understanding that is important to the law. Much of the law has to do with where people want to be, what kind of culture they want to have the right to further, geographically, culturally and so on.” She has said that she thinks of her hometown every day. A painting by Robert McInnes called Pincher Creek, showing wheat fields and a farmhouse, hangs in her Supreme Court office.

McLachlin followed a conventional path after high school, with little along the way to suggest future eminence. She went to Edmonton in 1960 to study philosophy at the University of Alberta with the vague and traditional idea of becoming a teacher. In 1965, B.A. in hand, she enrolled in the University of Alberta law school and, three years later, graduated at the top of her class. In between, she married Rory McLachlin, a biologist and environmental consultant, whom she met on campus. She once said: “He was the type of man who smoked his own salmon, made his own wine, cut his own wood.”

McLachlin practised law for just five years, in Alberta and then in B.C., before joining the law faculty of the University of British Columbia as an associate professor. In April 1981, at age 37, she was appointed to the Vancouver County Court. She has acknowledged that being a woman may have helped. “Gender may have been a factor because at that time, there were very few women on the courts and they were looking for more, and there weren’t a lot of women out there to choose from.” This was when she began to learn French, a sensible thing to do for an Anglophone aspiring to higher office. Within just a few months, she was appointed to the Supreme Court of British Columbia. “I think I got carried along in this huge crise de conscience—we have no women judges, what are we going to do about it? And there was one that looked not too bad so they pushed me up very quickly.”

By 1985, she’d been elevated to the Court of Appeal, and just three years after that, her 12-year-old son Angus picked up the phone one September evening and took a message from the prime minister. Brian Mulroney was calling to offer his mother the job of chief justice of the B.C. Supreme Court. Three days later, her husband Rory died of throat cancer. “He put his career on the back burner and put mine first . . . Rory did a lot of the child-rearing. Every time Angus had to go to emergency, it always seems it was Rory with him. It liberated me to do other things.” Within six months, Mulroney was calling again, this time to appoint McLachlin to the Supreme Court of Canada. The president of the Law Society of British Columbia commented that she’d made it through the court system faster than most cases.

McLachlin’s first decade on the Supreme Court defies easy characterization. Several of her more important judgments appealed to those on the right—the 1995 RJR-MacDonald case, for example, where she held that a federal ban on tobacco advertising was an infringement of the right to self-expression. But many of her judgments were attractive to the left—the 1998 Vriend decision, for instance, in which she said that the 1982 Charter of Rights and Freedoms required Alberta human rights legislation to protect gay rights. She was not afraid to dissent; an academic study found that in her first decade she agreed with the majority less than half the time. Some considered her a judge for all seasons, not rooted in any particular view of the law, but all agreed she had poise, common sense, and an impressive work ethic.

And she was a woman. When, in 1999, Antonio Lamer announced he would resign as chief justice at the beginning of 2000, her phone rang once more. This time it was prime minister Jean Chrétien calling. In announcing her appointment as chief justice, Chrétien said, “It was a great opportunity to have, for the first time, a woman as chief justice of Canada.” Professor emeritus Peter Russell, a long-time commentator on the Supreme Court, has said, “I think Chrétien, like Mulroney, loved the political spin factor.”

McLachlin’s appointment was widely hailed, particularly by the legal community, which is traditionally sycophantic on these occasions. She was described as “the ideal person for the job,” wise, energetic, sophisticated, practical, loyal, unfailingly polite, open-minded and as someone whose “warmth and sense of humour are awesome.” She was even described as “photogenic,” undoubtedly the first chief justice to receive this compliment. But some believed that justice Frank Iacobucci, considered the intellectual leader of the court, would have been a better choice, and that once again simple gender had triumphed.

In 1992, McLachlin married lawyer Frank McArdle, who now runs a high-end continuing education conference for Canadian lawyers every two years in Cambridge, England. McCardle has been described as “a cheerful, semi-retired extrovert, who’s completely supportive of her success.” He proposed to McLachlin over an airplane public-address system on a flight to England. (This would not have been to everyone’s taste; perhaps it is what cheerful extroverts do.) They live in Rockcliffe, a swanky residential area of Ottawa, where every morning the chief justice takes her two Labrador retrievers for a walk in a nearby park. She likes to cook, knit, cross-country ski, play the piano, and listen to opera, particularly Mozart. Like many lawyers, she likes the way words work. She has written fiction: there are two unpublished novels, a mystery with a woman lawyer as the central character, and a historical novel set in Alberta. She reads Alice Munro and Margaret Atwood, and Fred Stenson, an Alberta writer of historical fiction.

There is little doubt about Beverley McLachlin’s sterling personal qualities. Just about everyone—although not quite everyone—seems to agree about those. But many people who are intelligent and hard-working, likeable and open-minded, do not have glittering careers. Some point to what they think is her subtle tactical skill. Someone on the inside suggested that, when it was suspected that Antonio Lamer would soon be resigning as chief justice, McLachlin was careful not to be closely identified with any judgments that might prove controversial. In Ewanchuk, the infamous 1999 “no means no” sexual assault case, she did not join the five judges who agreed with justice John Major’s majority opinion, or throw her lot in with Claire L’Heureux-Dubé’s aggressive concurring reasons which severely criticized the Alberta Court of Appeal. Instead, McLachlin gave an antiseptic one-paragraph concurring judgment that more or less agreed with everyone.

But she’s not without courage. On the 1990 Keegstra case, for example, on appeal from her home province of Alberta, McLachlin was one of three dissenting judges; she considered that Criminal Code provisions, which made promoting hatred against an identifiable group (in this case, Jews) a crime, were unconstitutional as contrary to freedom of expression. “That was a brave thing to do for an ambitious woman,” I was told.

McLachlin has been on the court for over two-thirds of the life of the 1982 Charter of Rights and Freedoms, and chief justice for over a third of that life. The issue of “judicial activism” has been ever-present during these years. In a June 19 speech to a Canadian Bar Association conference in Ottawa, she declared the activism debate over. But, despite an apparent and soothing moderation and restraint, her theoretical view of the court’s power has become increasingly robust as time goes by. In a provocative lecture given in New Zealand in December 2005, she said the court must enforce norms that “transcend the law and executive action.” Some of her New Zealand themes echoed a lecture she gave in Singapore shortly after being appointed chief justice, in which she discussed the “global expansion” of judicial power. In Singapore, McLachlin argued that a proper understanding of democracy allows considerable room for judicial law-making.

What effect has she had on Charter cases? That’s the kind of question that pundits and conference organizers like to ask as her first decade as The Chief draws to an end. Answers are elusive. Benjamin Alarie and Andrew Green, of the University of Toronto’s law faculty, recently did a quantitative analysis of 105 claims under the Charter that have been decided by the court over the last 10 years. They concluded that McLachlin’s voting pattern shows that she fosters co-operation and brings other justices to a common position. Consensus, above all, and not any particular principle, is what seems to count for the chief justice. Her own voting pattern, say Alarie and Green, is “squarely in the middle.”

Criminal law? Here, commentators think they see a trend to favour the Crown and the police, rather than the accused. Queen’s University law professor Donald Stuart was reported as saying at the June CBA conference that a law-and-order bias has crept into recent Supreme Court Charter decisions. What of fundamental freedoms—the freedoms of association, expression and religion? McLachlin gets full marks as a leader on these issues. In the 2005 Labaye case, for example, she wrote the judgment for a seven-judge majority which found the operation of a commercial sex club did not involve acts of indecency (which would have made it a crime).

Another favourite question: how does being a woman influence her decisions? That debate began in 1990, when McLachlin had been sitting on the court for less than two years. In Hess, a rape case, she dissented from the majority judgment given by the great feminist judge and hero, Bertha Wilson. The appellants had been charged with sexual intercourse with a female under the age of 14. They thought she was older, but the Criminal Code said that belief was not a defence. The appellants said this provision infringed on the Charter, which provides that every individual is equal before the law, because only men could be charged under the section. Wilson disagreed: “There are certain biological realities that one cannot ignore and that may legitimately shape the definition of particular offences.” McLachlin took exception to the Wilson analysis. She said the provision “burdens men as it does not burden women. It offers protection to young females which it does not offer to young males. It is discriminatory.”

Then came Seaboyer, the 1991 rape-shield case. Did the Criminal Code’s rape-shield provisions infringe the principles of fundamental justice or the right to a fair trial found in the Charter? They restricted the right of the defence to cross-examine and lead evidence of a complainant’s previous sexual conduct. McLachlin gave the reasons for a seven-member majority, ruling that the provisions were indeed unconstitutional. Said McLachlin: “A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial.” Some feminists were outraged. But then, in the 1993 Symes case, in a dissenting judgment, she said that a tax law which did not permit deducting the cost of a nanny discriminated against working women. In this as in so many other areas, the chief justice cannot be pigeonholed.

One of McLachlin’s proclaimed aims as chief justice has been to make the court more open. Transparent legal processes, she says, build public confidence in the legal system. She promoted a policy that, since February, has seen cases before the court webcast and then archived, available to anyone with Internet access, a deep interest in Supreme Court cases, and, it has to be said, a lot of patience. YouTube it’s not. But the public appeal and usefulness of such technical reforms is limited. For the Supreme Court of Canada, transparency seems to have narrow meaning and scope. The chief justice, along with the other eight Supreme Court judges, generally discourages anything other than formal and controlled contact, and sometimes even that. (McLachlin declined to be interviewed for this story.)

It’s a different environment here than in the United States, where dogged journalists, aggressive politicians and zealous law professors track every step and utterance of Supreme Court justices, and where the judges are willing, even eager to be part of the nation’s discourse—giving interviews, writing books and generally being available. (Five of the nine current judges have written books while sitting on the court.) Perhaps U.S. Supreme Court justices believe that publicity about what they do and think, good or bad, is part of the robust American democratic process, and is particularly appropriate for unelected public officials with life tenure.

A recent incident demonstrates the attitude of our own Supreme Court. David Weiden is a professor of political science at Indiana University-Purdue University. In 2006, he published Sorcerers’ Apprentices, a book about law clerks at the U.S. Supreme Court. Weiden became interested in their Canadian counterparts, and was given a research grant by the Canadian government to study their “impact and influence.” He sent a survey to all former law clerks, hundreds of them, some having had the job 30 or 40 years ago.

Our Supreme Court was not amused. On June 3, Jill Copeland, the court’s executive legal officer, sent an email to former clerks. It accused Weiden of giving out “inaccurate information” about the court’s position on his survey, a serious charge against anyone, let alone a professor pursuing research. It also said participating in the survey would violate confidentiality obligations which “are not limited to information about cases, but also extend to internal processes of each justice’s chambers.” Weiden was baffled; this had not been an issue in the United States. Some former Canadian law clerks were puzzled by the sweeping prohibition; some resented it as overreaching.

Another McLachlin theme has been access to justice. In a speech to the 2007 annual meeting of the Canadian Bar Association, she called it “a basic right,” comparing it to education and health care. She described the access situation as increasingly urgent, with the middle class in particular finding it hard to resolve legal problems because of the cost. But as professor Adam Dodek of the University of Ottawa’s faculty of law recently wrote, “the courts—especially our high court—are part of the problem.”

Dodek is particularly upset by the 2007 Supreme Court decisions in the Little Sisters and Christie cases. In Little Sisters, a gay bookstore in Vancouver sought a so-called “advance costs order” to finance an attempt to get the release of books seized as pornographic by Canada Customs. Such an order would mean that Customs paid Little Sisters’ legal expenses. Without the order, Little Sisters could not afford to pursue its case. The court rejected the application, with McLachlin in the majority. In Christie, a Vancouver lawyer fought against imposition by the B.C. government of a seven per cent tax on legal services on the grounds that it discriminated against poor people and was unconstitutional. The Supreme Court, reversing the B.C. Court of Appeal, unanimously ruled against him. “General access to legal services,” said the reasons, is “not a currently recognized aspect of, or a precondition to, the rule of law.”

Transparency, and access to justice? Maybe not so much.

Not everyone is a member of the Beverley McLachlin fan club. It is said she is not the court’s intellectual leader; if there is one, some observers would pick Justice Ian Binnie, although others consider Binnie too much of a loner to be a leader. One Supreme Court veteran said, “McLachlin’s not a Bora Laskin, or a Brian Dickson [both previous chief justices]. What she says or writes doesn’t carry the same kind of weight.”

Gwen Landolt, a right wing activist, has described McLachlin as “clever and duplicitous.” A close observer of the Supreme Court commented that she seeks “consensus at the expense of principle,” and “will cobble together just about anything to achieve agreement.” (Nonetheless, personally McLachlin remains a frequent dissenter in decisions.) A senior lawyer who has appeared many times before the court said she runs it as if it were a part of government: “She’s always moving to the centre; she’s not prepared to be outrageous, and I think that’s a problem. It’s a court of justice, not a government department.” Another told me, “the court is less daring than it should be. It sometimes defers on major moral issues, and that is cowardice.”

A former law clerk to one of McLachlin’s predecessors as chief justice, who has since appeared often before the Supreme Court, said that McLachlin seems unduly constrained by her role. “She seems to think she speaks for the court, or should. She forgets she is just one of nine judges.” Another former clerk said, “She loves her prerogatives as chief justice, like being deputy governor general.” “No presence at all,” an Ottawa insider told me. “I was at a dinner speech she made, and it was very boring. People started chatting with each other before she had finished.” A very senior federal politician said, “Beverley McLachlin has never had an original idea.”

There will always be naysayers. Despite their complaints, Beverley McLachlin has done a good job as chief justice. She is competent and coherent, and, so far, we seem content with her as only Canadians can be. But, is McLachlin a true leader, or just an agreeable legal technocrat? Where is the articulated vision, from the bully pulpit, of better law in a better society? The jury is still out on the answers to these questions. McLachlin has almost 10 years before she reaches the mandatory retirement age of 75, to put our minds at rest.

If there were a quintessential Canadian, she might be Beverley McLachlin. No elite background here; she’s from a small town, the child of deeply religious parents, educated well but not in foreign schools and universities, never divorced but having experience life as a single mother after her first husband died, mainstream all the way, even-handed and even-tempered, moderate and cautious; probably smarter, more self-confident, perhaps more ambitious—and certainly luckier—than most.

Philip Slayton is a former dean of a Canadian law school, and was partner of a major law firm. He is working on a book about the Supreme Court of Canada, where he once clerked.

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