Feature

The McLachlin Group

How Canada’s first female Chief Justice has taken the heat off the Supreme Court

Illustration by Radek Drutis

Were it not for the fact that it’s January, dark, and brutally cold, this could easily be mistaken for spring prom night at the Fairmont Château Laurier in downtown Ottawa. Young women in sleek sleeveless dresses and heels, and young men encased in jackets and ties swish their way down the length of the stately French Corridor. They drape arms over shoulders and take each other’s photos. They gather at the bars lining the walls. Drinks are poured, and conversations grow louder.

In the midst of the semi-formal swirl, on this Friday night at the end of a long and busy week, stands Canada’s top judge, holding a copy of the speech she was supposed to have delivered forty minutes ago. If the delay has thrown off Madam Chief Justice Beverley McLachlin’s personal schedule, if she’d rather be at home with a good book, it doesn’t show. She remains the smiling centre of an ever-shifting circle of fresh-faced university students, chatting lightly about student life and parliamentary procedures.

The restless crowd finally, tardily assembles in the main ballroom for McLachlin’s pre-dinner speech. Tonight is the culmination of three intense days for these Queen’s students, in Ottawa to take part in the university’s annual model parliament. They’re ready for a party, not more talk. But they are, after all, political science and policy junkies. So they lean forward, chins in hands, to listen as the chief justice begins to speak.

She warms them up with an anecdote about a similar model parliament exercise from her own university days in the ’60s. Among those involved, she tells the students, were future MPs and mlas, an eventual Bank of Canada governor, and a high-powered current diplomat. And then, of course, there was ­McLachlin herself—the Alberta farm girl who made her way from Pincher Creek to the chief justice’s chambers.

But that is a tale for another time. Her point to her youthful audience tonight is this: they, too, will someday be in positions of responsibility in this country. And when that day comes, they will inherit a nation characterized by three values embodied in the Canadian Charter of Rights and Freedoms, she says: “respect for rights, respect for difference, and a commitment to the resolution of differences by peaceful compromise.” She lays out the role of the Supreme Court in Canada in upholding these values with the same clarity she strives for in her legal decisions. The legislature passes the laws. The court steps in when asked by Canadians to determine if the law is consistent with the Charter. “And sometimes—some people think too often, but other people are very happy for this—sometimes the court says, ‘Yes, the law, to a certain extent, is inconsistent with the Charter.’ And when that happens, the law falls.” Usually, legislators will then recraft the law in ways that achieve their goals while respecting Charter rights, she explains. “The legislature, let me say—as I have often said before—bears the primary responsibility for adopting new laws and changing old laws to meet the needs of society… and there can be no doubt that our Parliament and the legislature are the best forums in which to resolve the complex social issues that face our society.”

The back-and-forth between the court and Parliament, she tells them, has been referred to as the metaphor of Charter “dialogue.” The term became popular during the ’90s, a time when the Reform Party had its sights set on the judicial activism it believed was emanating from the unelected Supreme Court bench. It was framed in an analysis, by academic Peter Hogg and one of his students, Allison Bushell, of the court’s powers in interpreting the Charter. Since the last word nearly always rests with elected representatives, the authors concluded, the court’s powers don’t amount to a veto over politicians. A decade after they first explored the metaphor, the pair noted that the Supreme Court had used it to justify both an active and a deferential approach to Parliament.

As she enters her tenth year as chief justice, McLachlin has carved out a reputation for employing dialogue in a measured way—a style that has helped silence complaints about judicial activism and attendant calls for court reform. She stresses the necessity of balanced institutional roles in her remarks tonight. “What separates the ‘have’ nations from the ‘have-not’ nations,” she tells her audience in closing, “is very often not resources, not the climate, not even history, but their governmental institutions.” There is warm applause.

Third-year political science major Daniel Salvatore was won over by the talk, even if McLachlin didn't reveal her favourite Charter section when questioned afterward. She wouldn’t say, he recalls with a grin. Mike Sinclair, another third-year student, is similarly impressed. Her speech “really resonated with me,” he says. As the soup course arrives, McLachlin slips out the side door. Message delivered, mission accomplished.

The Supreme Court of Canada has withstood a great deal of upheaval since 1982, when the Charter of Rights and Freedoms was passed. The first court appointed in the post-Charter era, headed by Brian Dickson, blazed the trail, handing down landmark decisions on such socially charged issues as abortion and language rights, pushing the boundaries of judicial powers, and signalling, with one of its first Charter decisions (striking down the federal Lord’s Day Act), that it was ready to play the activist. The 1990s, under Chief Justice Antonio Lamer, were marked by heated debate over “judge-made law”—debate propelled by decisions involving law-and-order issues, native land claims, and gay rights, and fuelled by the Reform Party’s push to restrict judicial power to interpreting the rules rather than setting them. But the noise seemed to subside after McLachlin took over in 2000.

Her intentions in this regard became clear in November 1999, some two months before she was officially sworn in as chief justice, when she called an unprecedented news conference at the court and laid out her priorities. One, she planned to expand the court’s public outreach efforts, with the aim of helping Canadians understand the court’s work and demonstrating that it wasn’t run by aloof, robed figures delivering edicts from on high. Two, she wanted greater consensus in the court’s ­decision-­making—not a surprising objective, given the climate at the time. And three, she indicated the need for a “courageous” but careful approach to judicial review (the term used to describe the power conferred upon judges by the Charter, which allows them to strike down laws crafted by legislatures). The courts didn't wish to be “a surrogate Parliament,” she told reporters. Still, they had a legal role to fulfill and while their goal was “incremental policy change, case-by-case change,” they would be willing to go further when necessary.

From the outset, McLachlin has tried to engage Canadians in an active conversation about their court. She has weathered occasional rough stretches, such as the tempest when a Conservative MP accused her of claiming “godlike” judicial powers (the court categorically denied the charge, and the MP later retracted his remarks). She has navigated the court through steady turnover on the bench (six new justices appointed in seven years), and some tough decisions (on issues ranging from same-sex marriage to health care policy to national security). According to political scientist Troy Riddell of the University of Guelph, the court’s more astute tone is likely a reflection of McLachlin’s personality and approach. “I see this chief justice as being more media savvy than previous chief justices, as perhaps more out there in terms of giving speeches, attending conferences, speaking with the media, and cultivating media relations.”

Indeed, the sixty-five-year-old McLachlin sets a blistering communications pace. She is the public face of the court at such official events as throne speeches, and represents it abroad several times a year. She holds countless informal meetings with student and community groups, and writes and delivers some four dozen speeches annually. And she tries to make herself available for personal interviews, including ours, conducted at the table in the judges’ reading room, a light-filled, wood-panelled space on the second floor of the Supreme Court building, lined with shelves of legal books. “The court has a very important role to play in Canadian democracy,” she says. “It’s not always understood. Occasionally, people look at a court and say, ‘Where did they get all that power, and how are they exercising it; is it legitimate? ’

“Well, I believe it is legitimate. I believe it is fundamental to democracy,” she continues. “I believe that we exercise our powers in a transparent and responsible way, that we have a system of appeals in our justice system, so when mistakes do happen they get examined. I believe we have a good system of justice.”

This is a bedrock belief, one McLachlin has been reiterating for years. According to Supreme Court Justice Rosalie Abella, McLachlin “has the institution always paramount in her mind. She’s very protective of the institution, and of the ability of the people in it to do their jobs as well as they can.” Former Supreme Court Justice Frank Iacobucci first worked with McLachlin on the Lamer court, and then for several more years under her tenure. He says her contribution has been outstanding, that it’s “not just the quantity of her work, but the quality.”

McLachlin is extremely well suited to the task of court messenger. Colleagues consistently describe her as pleasant, courteous, respectful. She is known for her wry sense of humour—often “the funniest person at the table,” according to Abella. Justice Louis LeBel, elevated to the court around the same time McLachlin took over, recalls the box delivered to his home on Christmas Eve, two days after his appointment. He excitedly opened the gift from the chief justice—only to find the books for the upcoming court hearings. “She is very focused about the work of the court proceeding in an efficient manner,” he says with a laugh, “and judges getting the proper information.”

Despite her wit, McLachlin has an air of reserve. She is careful about which opinions she will share (favourite composer to play on the piano? Bach) and which she will not (favourite Charter section? Sorry). “She holds her cards close to herself,” says her husband, Frank McArdle, an affable lawyer and executive director of an association for federally appointed judges. This doesn’t mean she’s an introvert, he says firmly: “She has a very, very warm heart and a very, very strong head.” She has spoken candidly in the past about the personal challenges she has faced—for example, coping after her first husband, Rory McLachlin, died of cancer in 1988, leaving her a single mother to their young son, Angus. But for the most part, she prefers to maintain a zone of privacy around her personal life. There’s “a freedom that comes with that,” she explains.

Given where she ended up, though, and how quickly she got there—Supreme Court of Canada justice at age forty-five, chief justice at fifty-six, and the first female chief justice at that—there’s an understandable curiosity about just who Beverley McLachlin is. Much was made of her Pincher Creek roots when she became chief justice. It’s a remarkable Canadian story, that the eldest of rancher Ernest Gietz and housewife Eleanora Kruschell’s five children now presides over the highest court in the land. From her parents (fundamentalist Christians of “high moral value,” she says), she soaked up the necessity of doing the right thing and the importance of fairness. Theirs was a hard-working household that encouraged debate, and curiosity beyond the bounds of the home.

The town’s small, community-run library fuelled in her a passion for reading that continues to this day (favourite author? All the CanLit stuff, she says diplomatically, after some hesitation. Alice Munro. Margaret Atwood. Just finished a Fred Stenson). Television wasn’t widespread at the time, so she methodically worked her way through first the junior section of the tiny collection, and then the senior section. “My mother had always wanted to be a writer, but life did not allow her to take that path,” she says. “Since I was a little girl, I remember her saying, ‘Oh, I would have loved to; this was my dream.’ If you have a mother who expresses that dream with such longing and yearning, and you realize she’s feeling badly that she’s not on track to realize it, it has an influence on you as her daughter, to think, ‘I’d better not squander my chances.’”

After entering the University of Alberta in 1960, McLachlin became smitten by philosophy and switched her major from modern languages. “At that point in my life—I was eighteen, I suppose—I felt my brain was very muddled. I had a lot of ideas, and I was having trouble putting structure and order on things,” she says. “It helped me learn to order my ideas better, because philosophy is insistent on approaching things in an analytical, logical way. You have to be able to defend or analytically attack a position, and you have to be able to set out either process in clear terms that other people can understand.”

After graduating with an honours degree, she simultaneously pursued a master’s in legal philosophy and a law degree. She graduated in 1968 at the top of her law class, then launched her career. She was called to the bar in two provinces (Alberta and British Columbia), practised law at three different firms, polished her French language skills, and earned a tenured professorship at ubc. She eventually moved on to become a judge at Vancouver’s county court, then just months later vaulted to the BC Supreme Court. Four years later, she was appointed to the BC Court of Appeal, and within three years returned to the BC Supreme Court as its first female chief justice, just days before her husband, Rory, died. McLachlin’s meteoric rise attracted national attention, and in March 1989, when Brian Mulroney needed a candidate for the Supreme Court of Canada who was from the Western provinces, she became the third female justice in its history. Ten years later, after Lamer stepped down, Jean Chrétien put her in the chief justice’s chair. It was a politically heated time for the court—the Reform Party had been pushing to establish a parliamentary committee that could review its decisions—so it was significant that Reform’s justice critic, John Reynolds, remarked on McLachlin’s common sense, and called her appointment “exciting.”

On a frosty Ottawa morning in the Supreme Court’s high-ceilinged main courtroom, McLachlin presides over a hearing involving freedom of expression and citizens’ right to access government information. In her centre seat along the judges’ bench, she seems relaxed as counsel argue their cases. Now and then, she jots down a note or leans over to confer with LeBel or Justice Ian Binnie, who sit on either side of her. At one point, she removes her glasses and polishes them. That she is listening is evident from the focused—sometimes humorous, sometimes pointed—questions she occasionally leans forward to ask.

James O’Reilly, now a federal court judge, served as ­McLachlin’s executive legal officer for two and a half years, and saw first-hand how she processes information. “If she thought counsel weren’t getting to the heart of the question as she had framed it in her mind,” he says, “she would certainly make it plain that she would like them to get there faster.” This morning, she catches out a young lawyer who is arguing before the Supreme Court for the first time. What, she wonders, is the government’s objective in preventing disclosure of certain types of information? Unsatisfied with his response, she interjects abruptly: “You will tell us what you think the government objective is in your analysis.” The lawyer freezes. The courtroom is silent. “Well, Chief Justice,” he says finally, “I think the government objective in this case is to prevent information that can’t be disclosed under the tough test from being exposed to the public; it is not subject to disclosure. There will be information that is properly in the government’s—” McLachlin interrupts again. “I guess it is unfair to ask you to disclose, to formulate that,” she says, tacitly acknowledging that he’s in fact arguing for the other side. She smiles briefly at him as she flicks off her microphone and sits back.

Half an hour later, she adjourns, reserving the court’s decision. She and the six justices present file out through the massive wooden doors behind the bench. Across the hall, in their conference room, they will discuss points of law and probe lines of argument. This is when McLachlin will start feeling out whether there’s room for consensus.

“Consensus,” she explained to me during our meeting, “doesn’t mean we’re all going to agree on everything. Certainly, decisions of this court are sometimes divided, and we honour the tradition of dissenting opinions and the right of every judge to express his or her own view. And that’s very important. But consensus is valuable, in the sense that our goal is to try to reduce to a minimum the number of things we differ on. And to be clear about what we’re differing on, so that insofar as possible the court speaks with one voice. This is important, because it helps to clarify the law.”

When McLachlin arrived at the top court in 1989, she established a reputation as a jurist who valued clarity and who consistently followed her own mind. R. v. Keegstra, for example, was an emotionally charged case involving an Alberta high school teacher charged with promoting anti-Semitic views in the classroom. It pitted freedom of speech advocates against ethical and religious groups arguing the need for protection from hate propaganda. McLachlin led the court’s minority, coming down on the side of freedom of speech. Nine months later, she faced the wrath of feminists when she wrote for the majority in R. v. Seaboyer; R. v. Gayme, striking down what was known as the “rape shield” provisions, which restricted allowable evidence about complainants in sexual assault cases. This individualistic tendency, says constitutional expert Peter Russell, professor emeritus at the University of Toronto, “relates to her very strong support for freedom of expression. She stuck out as what you might call libertarian. She’s a person who really values individual freedom.”

“Libertarian? I do believe in fundamental rights and liberties very sincerely, very deeply. I always have,” McLachlin responds. “I recognize that the Charter says the governments, through laws or actions, can to some extent limit those rights, but I believe that in a free democracy such as Canada we must maintain a secure foundation of rights for the individual women, men, and children of society.”

McLachlin’s beliefs in this area may be consistent, but according to political scientists C. L. Ostberg and Matthew Wetstein, she has modified her approach in other respects. In an extensive attitudinal analysis of Supreme Court decisions between 1984 and 2003, they found that she underwent “a strategic shift in behaviour” when she became chief justice, moving from “being a decisive outsider on the Lamer court to a social leader who is more interested in consolidating the court.”

To that end, the court under McLachlin’s leadership modified its decision-making process a few years ago. The post-hearing gathering now begins with an informal discussion chaired by the chief justice before the traditional, more formal “once around the table” statements commence, starting with the most junior member. After every two-week session of hearings, McLachlin assigns a writer for each majority opinion, first canvassing for volunteers. (Dissenters write their own opinions, or collaborate.) The initial majority draft is circulated within a few weeks—longer for more complex cases—and a back-and-forth ensues as the decision takes shape. It’s not unusual, says McLachlin, for justices to say, “‘Well, I’m having problems with this paragraph or that idea,’ or ‘Could you change that? Then I think I could accept it,’ and so on.”

Achieving consensus can be time consuming. Justice Marie Deschamps, for example, is known as a jurist unafraid to go her own way. Because the court’s current members have different backgrounds and areas of expertise, “it’s hard to find two judges who can be seen as siblings,” Deschamps says. However, collegiality can help forge consensus, and according to LeBel one of McLachlin’s key qualities is her ability to keep the peace. “Justices of a court like ours may tend to be quite competitive, a bit aggressive. It may show up at times in the reasons,” he says. “I think she’s been quite successful in preventing what happened in other courts—the court splitting into different groups and clans. You know it’s normal; some people would perhaps be more inclined to be a little to the left, others to the right, but she is always very concerned about those normal differences not becoming markers of hostility and conflict within the court.”

This atmosphere sets Canada’s court apart from the fiercely partisan Supreme Court of the United States, which is, as York University constitutional law expert Jamie Cameron puts it, so fractured “you practically need a spreadsheet to figure out what’s going on.” Canadian justices may be more willing to “sacrifice the overt expression of their own attitudes and ­values more readily,” according to Ostberg and Wetstein, “for the good of the team.” Deschamps says judicial independence is a guarded principle on the court. Even so, the judges try to discern between “cases where it’s acceptable that we all go our own way, where the law will develop with sets of parallel or dissenting reasons,” and cases where “it’s better that the court speak with one voice.” When it comes to identifying the latter, Deschamps says, McLachlin manages the process skilfully, respecting differing views. “She will either postpone the discussion or suggest main topics, and try to sort out those where we will agree and try to narrow the issues, because sometimes the differences of views will be on peripheral aspects.”

The McLachlin court has indeed often spoken with one voice on potentially controversial decisions. The Reference re Same-Sex Marriage, for example, was widely seen as a political hot potato handed to the court by Parliament. The court in effect handed it back, unanimous in its refusal to deal with the question of whether denying the right to same-sex marriage is consistent with the Charter. Similarly, the McLachlin court presented a united front for such decisions as Charkaoui v. Canada (Citizenship and Immigration), which struck down the security certificate provisions of the Immigration and Refugee Protection Act; and Auton (Guardian ad litem of) v. British Columbia (Attorney General), which rejected a claim that the BC government’s denial of funding for a particular treatment for autistic children violated the Charter.

On the other hand, the court’s handling of Chaoulli v. Quebec (Attorney General), which asked whether banning private medical insurance for services covered by medicare violated the Quebec or Canadian charters, sent mixed signals. The majority ruled that the ban violated the Quebec Charter of Human Rights and Freedoms, but returned a split decision over whether it was also a violation of the Canadian Charter. According to Peter Russell, this ruling revealed a standoff over how broadly the court should apply section 7 of the national Charter, which protects the right to life, liberty, and security of the person. The decision was a surprise, he says, characterizing McLachlin’s position as extremely activist. Co-writing for the side that found it was a violation, she was essentially signalling, as he puts it, “We’re going to review these laws, and if we don’t think they’re necessary and they do encroach on security or freedom, then we’re going to knock them down.” Had McLachlin prevailed, he adds, the court would have had “a much, much bigger role in reviewing social policy.” An equal number of judges vigorously opposed her view, though—one reason he sees Chaoulli as the most significant decision of ­McLachlin’s tenure to date.

At times, the McLachlin court has also been difficult to read in the criminal justice arena, says Sanjeev Anand, a professor of criminal law at the University of Alberta. “The court is very unpredictable at this stage,” he says. While he believes unanimity is not always necessary or desirable, he says extremes such as the multi-pronged judgment in R. v. Kerr—which involved an inmate charged with possession of a dangerous weapon—do little to clarify the law. “There are four different rationales: most agree he should be acquitted, but some do it on the basis of necessity, and some on the basis of the ‘intent’ requirement of the offence,” he says. “So it’s very difficult to get a sense of guidance.”

Robin Elliot, a constitutional law expert at ubc and executive legal officer at the Supreme Court of Canada in the mid-’90s, notes that the court has, in a number of decisions, reversed its own previous rulings. “That’s troubling,” he says. “It’s always been the case that the constitution means what our judges say it means, but it does leave you with the feeling that everything turns on which nine people happen to be there at a particular point in time. I think you’d hope for more stability, and less willingness to turn things upside down in very important areas.”

McLachlin’s third priority for her tenure as chief justice, promoting a courageous but considered approach to judicial review, has also prompted some criticism. In Jamie Cameron’s opinion, although McLachlin is “not at all hesitant to enforce the Charter,” she chooses her moments quite selectively, as part of a pragmatic, issue-specific, case-by-case approach. While this may keep the peace, Cameron says, “the court is not moving the Charter forward as much as previous courts did,” nor moving as fast as some constituencies would like it to. The broader vision is missing, she says. “You might imagine a court that would be particularly favourable to the rights of the accused, or the rights of the poor. Or you might imagine a court that is favouring certain entitlements over others. But you’re not really seeing anything in particular in this court that stands out.”

The charged political atmosphere in the ’90s perhaps dictated the only possible path for the McLachlin court. As chief justice, she must be cognizant of the broader policy implications of the court’s decisions. Though each chief has grappled with this responsibility since the idea of a Charter first glimmered in the Canadian consciousness, the consequences of decisions that hint of activism have become clearer in recent years. A responsible chief justice, says political scientist Thomas Bateman of St. Thomas University in Fredericton, must take external factors into account: “The one great piece of capital the Supreme Court must maintain,” he says, “is a deep well of public confidence, and the acceptance by everybody—both the winners and the losers in a legal dispute—that the court is fair.”

Certainly, calls for drastic reform at the Supreme Court level have abated since Lamer’s day. There have been occasional general eruptions, such as Stephen Harper’s claims during the 2006 federal election campaign about the activism of some judicial appointees, and the political uproar after changes to the federal judicial appointments process signalled that his government wanted judges who were tougher on crime. The Conservatives’ changes to the Supreme Court appointment process, however, were relatively uncontentious. In fact, Justice Marshall Rothstein’s historic nomination appearance before a parliamentary committee—the first of its kind in Canada—was tame, not the partisan free-for-all some had feared. And the only controversy attached to Justice Thomas Cromwell’s appointment was the fact that Harper bypassed the public hearing process altogether.

This is not to say that the court is immune from renewed charges of judicial activism, says Cameron. Occasionally, individual decisions will still provoke “a high degree of public debate and controversy,” she says. But in her view, the court will likely come under sustained attack only if it seems to be consistently pushing the boundaries in ways that “rub up against what we see as being the proper domain of the legislatures.”

Where the courts’ domain properly ends and that of the legislatures begins largely depends on how you believe judicial power should be exercised. McLachlin’s view is that the current dialogue between courts and legislatures is balanced and democratic. Still, she acknowledges that the era of disputes over judicial review probably isn’t over: “There will continue to be critics, I’m sure, particularly when you have to deal with these very difficult and divisive issues,” she says. But, she adds, “We’re not playing to public opinion. We’re just trying to do our job.”

Susan Harada is a former CBC parliamentary correspondent, and contributed a chapter on the Green Party to The Canadian Federal Election of 2011.

Radek Drutis has designed album art for All City Records and Stones Throw Records.