This article was originally published in Maclean’s magazine on May 20, 2002. Partner content is not updated.
McLachlin, Beverley (Profile)
The low point for Canada's highest court may have come in September, 1999. Chief Justice Antonio LAMER, the great CHARTER OF RIGHTS AND FREEDOMS advocate, was about to pass on the torch to the photogenic Beverley MCLACHLIN, an Alberta farm girl with a reputation for persuasive but eclectic rulings that left few clues to her underlying political philosophy. But first there was the case of Donald MARSHALL Jr. to dispose of. Marshall, a Nova Scotia Mi'kmaq, was asking the justices to rule that the federal government had trampled on his treaty rights by charging him with fishing for eels without a licence. Seemingly mundane, the case would turn out to mark a sharp dividing line of eras - between the trail-blazing judicial activism of Lamer, and the more calculated, cautious and less controversial approach that has so far come to define McLachlin's court.
Nobody, least of all the sage arbiters of the court, had anticipated the case's reverberations in the country and the court. Citing a 1760 treaty hardly anyone remembered, five of seven justices ruled that Marshall and other Maritime natives covered by the treaty had the right to fish, hunt and trade into perpetuity. And if that was the law as far as eels went, wouldn't it be the same with the far more lucrative lobster trade? Why not logging as well? Mining? You name it. Certainly the Mi'kmaqs thought so, and declared open season on the lobster fishery, regardless of conservation regulations. Government ministers admitted to confusion over the meaning of the ruling. In the lobster wars that broke out between native and non-native fishermen, cars were torched, boats sunk and the threat of even greater mayhem hung in the air.
Then the SUPREME COURT did something it had rarely done before. It quickly issued a clarification saying that the earlier judgment had not "established a treaty right 'to gather' anything and everything" - and reasserting the government's right to exercise control over the fishery for conservation purposes. "I think they were embarrassed by the social ramifications," says Canadian Alliance justice critic Vic Toews, a former Manitoba attorney general who has often castigated what he sees as the court's tendency toward liberal activism. "It taught them a very important lesson about how they sometimes need to consider the practical implications of their decisions."
And, in case anyone had forgotten, it reminded Canadians that nine unelected judges could at times exercise powers that supersede the laws passed by politicians chosen by the people - for better or for worse.
One judge who didn't end up wearing the Marshall decision was McLachlin. In writing a dissenting opinion for herself and Justice Charles Gonthier, she was almost prophetic in warning against extrapolating, from a narrow, historic treaty arrangement, "undefined" rights that would make "justification for limitations impossible." So when McLachlin took over stewardship of the country's highest court on Jan. 7, 2000, she seemed to be ushering in a new era not only because she was the first woman to hold the post, but also because she appeared to be bringing a new tone to the Supreme Court. It didn't hurt that events had also shown her on the right side of the public mood on the Marshall ruling.
Today, it would be hard to imagine the McLachlin-led court writing the first Marshall decision in a manner that could be so easily misconstrued. In an interview with Maclean's, McLachlin carefully skirted any implied criticism of that majority ruling. But, she added: "Courts have to be sensitive to how their decisions play out. We don't respond to polls, but we have to try to see the human and social implications to what we do."
Call it the McLachlin rule. Two years is too short a span, involving too few key decisions, to provide a full-blown portrait of any court. But already the outlines of the McLachlin era are beginning to be drawn, revealing a more cautious, centrist view of the law - after the activist, critics would argue meddlesome, post-Charter years of Lamer and his predecessor, Brian DICKSON, when the court expanded the rights of minorities, immigrants, gays and the accused.
That may be due in part to the nature of the cases. Between 1984 and 2000, under Dickson and Lamer, the Supreme Court dealt with groundbreaking issues such as women's rights, sexual orientation, equal benefits for gay couples, and whether the Charter applies to non-citizens. In recent years, notes Lorraine Weinrib, a law professor at the University of Toronto, laws being tested before the court have already been vetted by government with potential Charter challenges in mind. But, Weinrib says, it's also apparent that McLachlin believes in a "less transformative" interpretation of the Charter as an agent of social change. Christopher Manfredi, a political scientist at McGill University, adds: "Lamer had an agenda, he was much more of an activist. McLachlin's agenda is protecting and preserving the court's reputation from political attack."
The shift in direction is subtle, but if it continues, the implications are far-reaching. At 58, McLachlin is a seasoned jurist universally acknowledged for her intellect, scholarship and persuasive powers. The latter has been evident in the growing number of unanimous decisions - 82 per cent last year compared to the 73 per cent achieved under Lamer in his last year. McLachlin has also been more open to defending the court's actions in public, more available to the media, and accepts more speaking invitations than her predecessors.
Her relative youth also means she could be in a position to lead the court until 2018, when she reaches the mandatory retirement age of 75. The scope of issues that may come before her are incalculable. But they will almost certainly include Canada's new anti-terrorism laws, which last year gave police wider powers to spy on citizens and the right to hold suspected terrorists up to 72 hours without laying a charge. Those and other curtailments of freedoms and privacy put the legislation on a collision course with the Charter. The court will also likely be asked to render decisions in the areas of reproductive technology, possibly even cloning, same-sex marriages, the rights of immigrants, mandatory retirement and a slew of anti-discrimination claims based on age, disability and citizenship. "I know she's one vote out of nine," says Manfredi, "but the chief justice sets the tone for the court and can have a far greater influence beyond that vote."
McLachlin is aware of her clout. Meeting a reporter in her spacious second-floor office in the imposing greystone Supreme Court building down Wellington Street from Parliament Hill, she is personable but guarded. She often refers to herself as a farm girl. On a wall by the door hangs a reminder of humble beginnings: a large Robert McInnis oil painting of a farmhouse amid rolling hills near Pincher Creek, her hometown. She likes to cook and knit, and walks her two dogs every morning before leaving for work.
But McLachlin hasn't been a farm girl since she finished high school to go study philosophy at the University of Alberta in the early 1960s. Since then, she's acquired big-city sophistication and ambitions. She has co-written two books on legal procedure and authored two unpublished novels. One, says her younger sister Judi Dalling, who has read them, is a Nancy Drew-type mystery featuring a woman lawyer protagonist; the other, historical fiction based in Alberta. McLachlin learned French on the side, beginning in 1981 while serving on the County Court of Vancouver. She lives with her second husband - her first died of cancer in the late 1980s - in the posh Ottawa neighborhood of Rockcliffe. She has one grown son, Angus, by her first marriage. Before the interview begins, she offers a cappuccino, jokingly boasting that one of her innovations was to elevate the quality of the in-house java.
Asked about how her upbringing informs her opinions, McLachlin seems reluctant to give anything away. "Who knows why one is what one is?" she says. "I'm very much in the middle. I feel strongly about individual liberties, but I also feel strongly about equality and anti-discrimination provisions in the Charter." She has described the central tension in the Charter, and, perhaps inadvertently, in herself. She was typecast early in her Supreme Court career as a strict libertarian after deciding in favour of Holocaust-deniers Ernst Zundel and James Keegstra, writing that Canada's hate laws infringed on freedom of speech and thought. That philosophy was echoed last year when she wrote the decision on John Robin Sharpe, which upheld the child pornography law but excluded works of the imagination for personal private use.
In between, however, came a series of judgments in which McLachlin appeared to read the Charter as an instrument to redress injustices against the disadvantaged, particularly women. In a dissent, she concurred with Justice Claire L'Heureux-Dubé that Canada's tax law in practice discriminated against a working woman because she couldn't write off the cost of a nanny as a necessary business expense. In another case, involving a male doctor who had requested sex from a female patient in return for a painkiller she had become addicted to, the court was unanimous in ruling against the doctor. But unlike her male colleagues on the court, who saw it as a case of battery, McLachlin saw it in more feminist terms. "Women, who can so easily be exploited by physicians for sexual purposes, may find themselves particularly vulnerable," she wrote.
Some believe any apparent conflict in McLachlin's thinking can be traced back to 1991, when she wrote the majority decision striking down Canada's rape shield law. A relative newcomer, and only the third woman appointed to the top court, McLachlin nevertheless ruled that the law excluding even relevant evidence about a rape victim's sexual past denied the accused - men - the right to a fair trial. Suddenly, McLachlin's feminist bona fides were called into question, and many women blasted what they viewed as her betrayal. "I think she lost her nerve for a few years after that," says a jurist colleague who knows her well. "She's overcome it since."
Kathleen Mahoney, a feminist law professor at the University of Calgary, puts it down to the learning process that everyone, including judges, goes through. "McLachlin has evolved significantly in terms of her thinking over the years," she says. McLachlin admits it was "not easy finding oneself criticized for betraying the cause," but continues to argue it was the correct decision.
The difficulty in pigeonholing McLachlin may be simply that she regards the law, with a capital L, above any cause or personal belief. "I'm not a politician," she says, "I'm not there to vote for this law or that. My job is to decide each case fairly, according to the law." That sounds trite - no judge would admit to anything different - but Jim Taylor, a Vancouver lawyer and friend since 1974, says McLachlin tries to put the ideal into practice. He recalls that McLachlin, like himself, was "troubled" by the enactment of the Charter of Rights and Freedoms in 1982. How the jurisprudence had developed around the U.S. Bill of Rights, particularly limits put on the ability of police to investigate crimes, was one concern, he says. But, Taylor adds, "Once the Charter was introduced, I remember her saying this was the decision that had been made. It was her marching orders, and that was that."
It is still too soon to tell how much this era for the court will bear McLachlin's personal stamp. And her colleagues will play a part. As Antonio Lamer points out, the nine justices "are grown-ups" who can't easily be budged from entrenched positions. "A chief justice is influential only so long as he is with the majority," he says. The tally depends on the other eight judges - and the court is about to get some new faces. L'Heureux-Dubé, the court's most unabashedly feminist judge, officially steps down in July. Gonthier, regarded as a conservative, retires next year.
Their replacements will play their part in deciding the court's direction. But McLachlin's tendencies are already evident - more deferential to Parliament and less open to charges of judicial activism - and her influence in terms of getting unanimity is already being noted. That may sound dull, even typically Canadian in the quest of a consensus in the middle, but it also suggests McLachlin could be coaxing the court back in line with public opinion. And that could, in a quiet way, be a notable legacy in its own right.
Maclean's May 20, 2002