Beverley McLachlin, Chief Justice of Canada 2000–present, lawyer and jurist, (born 7 September 1943 in Pincher Creek, AB).
Beverley McLachlin, Chief Justice of Canada 2000–present, lawyer and jurist, (born 7 September 1943 in Pincher Creek, AB). Born into a rural Alberta farming family of modest means, McLachlin rose to become the first female chief justice of a Commonwealth high court, and also the longest serving chief justice of the Supreme Court of Canada.
Early Days in the West
In 1967 McLachlin married Rory McLachlin; he died of cancer in 1988. The couple had one son, Angus. In 1992, she married Frank McArdle.
McLachlin had not considered a career in law until she was persuaded by her first husband, and by a professor, that a tough-minded woman could break through the institutional barriers of the predominantly male legal profession.
She acquired a bachelor’s degree in philosophy at the University of Alberta and attended the university’s law school. After her call to the bar in 1969, her first job was with the
She was a tenured law professor at University of British Columbia from 1974 to 1981.
In 1980, at the age of 37, McLachlin was appointed to the County Court of Vancouver. A year later, she was elevated to the B.C. Supreme Court and in 1985, to the B.C. Court of Appeal. In 1988, she became Chief Justice of British Columbia.
In 1989, at 45, McLachlin’s meteoric rise culminated in her appointment to the Supreme Court of Canada. Eleven years later, on 7 January 2000, she became the country’s 17th chief justice and the first female chief justice of a Commonwealth nation's supreme court.
In mid-2013, McLachlin passed William J. Ritchie as the longest serving chief justice of the Supreme Court of Canada.
McLachlin often stated that she envisioned no career path, and was invariably surprised when an offer would result in her rising another step up the legal ladder. However, she was also well aware of her position as a pioneer in a profession that was once an all-male preserve. She expressed satisfaction that young women lawyers perceived her as a ground-breaking role model.
Supreme Court of
McLachlin arrived at the country's highest court at a fractious time. The presiding chief justice, Antonio Lamer, was an outspoken former criminal lawyer from Montréal. Under his leadership, a slim majority of the court — dubbed the Gang of Five — was refashioning aspects of criminal law perceived as unfair to the accused, such as the ability of police to interrogate suspects and the admissibility of confessions.
Conservative-minded politicians and police, already skeptical about the degree of change rooted in early Charter of Rights decisions, had become increasingly vocal opponents of the Lamer court.
Concerned by the public clamour that can result from contentious decisions, McLachlin found herself largely an outsider to the Gang of Five. Once she took over as chief justice, the court became a more centrist institution. She sought unanimous decisions among the nine justices whenever possible and became the main spokesperson for the court.
In judgments, speeches and media interviews, McLachlin extolled the virtues of an independent court whose role was to act as a check on democratic excess, yet which respected the ultimate supremacy of elected officials.
McLachlin was uncomfortable that Supreme Court judges had fallen into a pattern of isolation or factionalism, communicating with each other primarily through inter-office memos. She encouraged them to communicate more in person and convene regularly as a group.
She also moved to reduce the number of individual reasons for judgment appended to many of the court's decisions, particularly concurring reasons. (The Supreme Court typically issues decisions with majority and minority reasons, each written by one of the nine judges writing for either the majority of the court, or the dissenting minority. In some cases, judges also issue their own set of reasons for concurring with the majority or minority.) McLachlin viewed concurring reasons as an unnecessary indulgence that confused the court's rulings. From 2000 to 2008, the court significantly reduced the number of concurring reasons it released, and also achieved a 74 per cent unanimity rate with its decisions – up from 58 per cent between 1990 and 2000
McLachlin's Judicial Record
McLachlin’s decision style could best be described as independent-minded and cautiously pragmatic. As her career progressed, legal scholars invariably found McLachlin difficult to pin down.
She made waves with a 1985 judgment she wrote while on the B.C. Supreme Court, ruling that adults accused of sexually assaulting children can use consent as a defence, provided they were not in a position of authority.
As a B.C. Court of Appeal judge, she wrote well-regarded decisions defining the Charter’s right to equality. She saw the law as an “organic” entity that grows and transforms in keeping with the evolution of societal views. McLachlin saw this conception of gradual, tempered growth as quite different from the sort of judicial activism that had angered opponents of judicial power since the 1982 enactment of the Charter of Rights.
She was notable for her unwillingness to intrude on government budgetary priorities. In a 2004 case known as Auton v. British Columbia, for example, she ruled that it would not be unconstitutional for B.C. to discriminate against autistic children by failing to provide them with intensive behavioral therapy.
McLachlin revealed the core of her judicial philosophy in a seminal article for the 2004 Saskatchewan Law Review, observing that courts can justify making substantial changes to the law if, in doing so, they are reflecting clear changes in social values. Even then, she cautioned, courts ought to embark on these changes only when legislators have failed to address an underlying, pressing problem.
Cautious and incremental, McLachlin embraced the notion of an ongoing "dialogue" between the judicial and legislative branches. While criminal law and Charter cases invariably ranked first, her court regularly authored key decisions in areas such as administrative law, family law, business law, press rights and intellectual property.
Early in her tenure on the Supreme Court, McLachlin was cast as a civil libertarian with a passion for free speech. In decisions such as R. v. Zundel, R. v. Keegstra and R. v. Sharpe, she espoused the virtues of free expression in speech and artistic renderings. In RJR-MacDonald Inc. v. Canada, she concluded that the federal government had gone too far by introducing a near-total ban on tobacco advertising.
At the same time, in a decision that pleased liberals, in R. v. R.D.S., McLachlin endorsed the notion that a black judge could rely on her life experiences to observe that police often lie or overreact when they deal with members of racial minorities.
Then, in a minority dissent she wrote in a 1991 decision, R. v. Seaboyer, McLachlin caused a backlash in the feminist movement. The case involved the extent to which individuals accused of sexual assault can gain access to their accuser's third party records such as rape crisis counselling or psychiatric therapy. McLachlin argued that the right of an accused to obtain full disclosure of pertinent evidence was paramount.
Taken aback by the furor, in subsequent decisions she underlined the vulnerability of sexual assault complainants and the necessity of offering women equal treatment under the law.
In another close-watched case involving the constitutionality of parents or teachers using force to correct children (Canadian Foundation for Children, Youth and the Law v. Canada), she refused to remove the right to administer corporal punishment.
And in the 2003 case of Starson v. Swayze, she endorsed mental health adjudication boards being empowered to make medical treatment decisions against the will of patients.
Her careful imprint was on display again in a 1999 Aboriginal case, R. v. Marshall, which involved the right to fish for eel. Writing in dissent, McLachlin warned that the majority judgment was unduly, expansive and would create “undefined rights” that would be difficult to limit as time went on.
Sure enough, the Marshall judgment kindled immense controversy. The court ultimately issued an exceedingly rare clarification of its initial judgment, proving McLachlin’s foresight and adding to her reputation as an astute, middle-of-the-road jurist.
Under McLachlin, however, the court became a champion of Aboriginal rights. It gradually developed and entrenched the notion that governments must consult and accommodate Aboriginal people prior to making decisions that could affect unproven rights and title claims.
McLachlin approached the writing of judgments as an act of love and craftsmanship. She aspired, above all, to write clearly in a manner that was accessible to both the public and the legal profession. Despite her heavy administrative role, she was one of the busiest decision-writers on the court. While not known for literary elegance or pungent phrasing, her writing was incisive and carefully targeted key points.
The Court and Canadians
McLachlin paid close attention to how the court was perceived in different regions of the country. Fluently bilingual, she was particularly attuned to feelings in Québec, where the Supreme Court of Canada had been targeted by nationalists as a bulwark of central Canadian federalist thought. McLachlin ensured that court services were equally accessible in both official languages and that cases invoking Québec's Civil Code provisions were given a high priority.
McLachlin supported an up-to-date museum in the Supreme Court building. At her behest, a sophisticated website was created to provide extensive historical information, explain the judicial role and provide access to all decisions and a large array of statistics detailing the work of the court.
Aware of the media's role in conveying the work of the court, McLachlin assisted journalists in their coverage and introduced measures such as media lock-ups, where reporters receive explanations from court staff about important decisions prior to their release.
McLachlin and Harper
As chief justice, McLachlin was chair of the 39-member Canadian Judicial Council (CJC), a powerful body composed of all the chief judges and deputy chief judges of every federally-appointed court in the country.
In 2006, the government of Prime Minister Stephen Harper announced a plan to re-make the Judicial Advisory Committees, located in each region, that decide on applications for federal judicial vacancies. The changes would have given government appointees a majority on each committee. McLachlin expressed the CJC’s serious dissatisfaction with the changes, which went ahead despite her opposition.
She confronted the federal government again in 2014, during a fracas over Harper’s nomination of Federal Court of Canada Justice Marc Nadon, to occupy one of three designated Québec seats on the Supreme Court bench.
Nadon's nomination was challenged in court, and in its ruling, the Supreme Court said Nadon — because he was a Federal Court judge — did not fit the constitutional criteria for representing Québec on the Supreme Court.
Controversy then erupted when officials in Harper's office suggested that it had been inappropriate for McLachlin to phone Justice Minister Peter MacKay — months earlier in mid-2013 — to warn him of constitutional problems if the government nominated Nadon.
McLachlin's office responded by stating that it was entirely appropriate for a chief justice to have provided that sort of advice prior to a nomination.
Her position was later endorsed by legal academics, newspaper editorialists and, ultimately, by the Geneva-based International Commission of Jurists, all of whom indicated that Harper and MacKay had unfairly attempted to politicize the actions of a chief justice, who had simply been doing her job diligently.
In June, 2017, McLachlin announced her intention to retire from the bench on December 15, 2017.