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Photography by Jessica Deeks

Beverley McLachlin is Watching the World’s Legal Drama

Canada’s ex–chief justice has fully embraced her next chapter—as a bestselling crime author. She’s still keeping her eye on the courts.
By Katie Underwood

During Beverley McLachlin’s 28 history-making years on Canada’s Supreme Court bench, she ruled on laws that created a quantum forward leap in the state of human rights in Canada—for Indigenous people, for sex workers, for same-sex couples and for citizens seeking assisted suicide, pre-MAID. After her 2018 retirement, she turned her mighty pen to the fictional kind of legal drama: her latest thriller, Proof, hits shelves on September 17.

McLachlin devoted her remaining time to arbitration work. She also served two terms as an overseas judge on Hong Kong’s Court of Final Appeal, a recently wrapped tenure that drew criticism from pro-democracy activists who argued that the 2020 passage of Hong Kong’s National Security Law by the Standing Committee of the National People’s Congress jeopardized civil liberties within the region. Even as judicial independence appears to be wobbling worldwide—and, in the case of our U.S. neighbours, uncomfortably close to home—McLachlin, now 80, still believes in Canada’s ability to serve justice. 

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People think of thriller writing as your second act, but you were into fiction before you were even on the bench, right?

I played around with writing when I was teaching law at UBC, before I dreamed of being a judge. I got as far as sending a manuscript to McClelland & Stewart. They were interested, but they told me it would need a lot of work. I was an amateur. I still am, in some ways. 

You’ve said you were a precocious reader as a teen, pulling more adult reads from the library’s shelves. We’re not talking Harlequin here, right?

No, no. Real novels, lots from English novelists. I never got as far as Lady Chatterley’s Lover. When we weren’t working on our family’s farm in Pincher Creek, Alberta, my brother and I would check out the two-book weekly maximum, then trade. It was a small town. There weren’t that many outlets.

Did you bring your writerly flair to your judicial writing?

I suppose mine was quite dull, but some people told me they liked it for being to the point. That’s the task. As a judge, you don’t get to make stuff up. Decisions aren’t the place for poetry or philosophical asides. I remember one judge from the ’50s who would sometimes add little character embellishments and humour. It was funny, but I thought, What if I came to get justice and I got satirized? 

In your time as a Supreme Court judge, you ruled on many of Canada’s defining human rights issues—the Civil Marriage Act, rights for sex workers, assisted suicide before it was called MAID. You had a bit of a reputation among conservatives for being an “activist judge.”

My job was to apply the law to rectify inequalities that were not justifiable under the Charter. 

Yeah, “activist judge” doesn’t seem like a blistering insult to me. 

It’s not at all. But back in the ’90s, subjects like gay rights that were once outside the purview of the courts were suddenly within it. Some people thought, Oh, the courts are going to remake everything. They have an agenda. We need to proceed incrementally, but courts have to keep up with society. It’s like John Sankey, England’s lord chancellor, said in his decision during the 1929 Persons Case, which gave women the right to hold public office: the constitution is a living tree. 

In Canada’s present-day legal tree, what do you think are the most potentially transformative cases?

The internet revolution is huge—we still haven’t quite worked out remedies for its harms. Cybercrimes, like fraud. Revenge porn. Horrible things. But any time you’re regulating speech, you have to be cautious.

This summer, right around the attempted assassination of Donald Trump, Canadian intelligence officials released documents that showed a surge in violent online threats against public officials. 

Making threats and hate speech are against the law. It’s just hard to enforce in the internet world, if not impossible.

In July, we saw back-to-back victories for left-wing parties in the U.K. and France. Other parts of the world, meanwhile, seem to be sliding into flavours of totalitarianism. I’m worried. Are you worried? 

I think about this a lot! We’re living in a period of unravelling. History moves in cycles, and I’m optimistic that we’ll swing back a bit, but I could be wrong. I’m concerned about measures that take away the power of judges to interfere with politicians. We need to be very, very vigilant —with some of the rhetoric going on south of the border, for example. 

It’s not just rhetoric. Trump v. the United States gave Trump absolute immunity for official acts as president within his constitutional authority. Some say this basically makes him a king above the law. Justice Sonia Sotomayor dissented, “with fear for our democracy.” What did you make of that?

I’ve said it many, many times: no one should be above the law. I’ll leave it at that. In the States, we’re seeing a more politicized court, one willing to reverse direction—like in the case of Roe v. Wade—depending on who’s on it. I haven’t seen that kind of erosion up here. In Canada, there needs to be a justification, a change in underlying social conditions, to reverse a long-standing precedent.

I can’t imagine being an ex–Supreme Court judge and watching the news right now.

I miss being a judge enormously. It was hard to adjust, like, Okay, that’s gone. I do a bit of dispute resolution, international arbitration—not a lot, but some. That’s given me a taste, but it’s nothing like weighing in on the issues preoccupying the public. Now, I just restrain myself.

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In July, you finished your second and final term as a non-permanent overseas judge with Hong Kong’s Court of Final Appeal. Some critics have suggested that the court lends credibility to a political regime that has steadily cracked down on citizen freedoms, like public dissent. How do you reconcile your own human-rights record and belief in judicial independence with your former role on that bench?

The Hong Kong Court of Final Appeal’s independence was confirmed by a 1997 treaty. As I said in the statement I issued this past June, I continue to have the greatest confidence in the members of the court, their independence and their determination to uphold the rule of law.

What are Canada’s legal vulnerabilities?

Access to justice. The court system works very well for people of means. For ordinary litigants, cases can take a long time. It can feel impossible to get redress for minor problems. Specialized human-rights tribunals and landlord-tenant boards can provide quick relief. It has to be, if you’re about to get thrown out of your apartment! But backlogs still build up. An English academic named Richard Susskind has discussed how some disputes could be resolved online. It’d be wonderful if Canada had a commission to look at these things. 

How does technology factor into your life? Are you a clandestine ChatGPT user? 

Social media—I don’t do that. I have email, a few family chat things. Sometimes, I’ll take eight hours or a day where I don’t look at electronic media. I’ll just go for a walk in the woods.

So what you’re saying is: you’re the one in the family group chat who never answers.

I might be slow doing it. 

Are you a true-crime buff, too? Or would that be overkill?

I’m not drawn to it. I saw a lot of true crime in my career. It’s not a glamorous subject for me. 

So we shouldn’t wait for your podcast.

I’ve been on a couple, talking about judicial matters—that sort of thing. I also read the audiobook of my memoir. I could read my fiction books, but why not let the actors make a few dollars?

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