McLachlin leaves legacy of confidence, clarity
It seems somehow appropriate that Chief Justice Beverley McLachlin, the longest-serving chief justice in Canada’s history, will retire during the year the country celebrates its 150th anniversary. An institution in her own right, McLachlin has had an immense impact on both the Supreme Court and Canadian law.
In the time McLachlin has sat on the court (she was first appointed in 1989 and elevated to chief justice in 2000) the litany of issues she presided over is mind-boggling. The list includes Charter of Rights cases expanding the equality rights of gays and lesbians, re-ordering the criminal justice system, particularly as it relates to the rights of the accused, and addressing a host of morally contentious issues, such as assisted suicide and prostitution.
She was on the court for the 1998 reference on Quebec secession. As chief justice, she dealt with cases implicating the relationship between the Crown and First Nations, Métis and Inuit peoples, the design of the health-care system, whether the Charter requires minimal levels of social assistance and reform of the Senate and the Supreme Court itself.
Upon her retirement this December, McLachlin will leave a modernized Supreme Court that ushered in a period of consensus and deliberative decision-making.
She is lauded for qualities that saw her lead the court to unanimous judgments. And while she is merely a “first among equals” on the court, few of her colleagues would dispute her effectiveness.
When I say the court under McLachlin is both bold and cautious, I mean it has shown a willingness to wield significant power and to influence public policy, while recognizing the limits of that power.
The consensus McLachlin often achieved sometimes came at the expense of clarity — there is evidence the price of unanimity is sometimes ambiguity, as the art of compromise dilutes an otherwise stronger judicial cocktail. We do not have much clarity, for example, on when even modest Senate reform proposals require a constitutional amendment, despite the fact the court addressed this issue in 2014.
And yet McLachlin also deserves praise for her clarity of thinking and writing. Her time as chief justice seems to have evaporated the historically stodgy and repressive judicial prose that dominated judgments. As a professor, I am racked with guilt assigning students a judgment to read from before her time. By contrast, many of the court’s contemporary judgments are a pleasure to read, and she played no small part in that.
It will be interesting to watch the court play out its role in the postMcLachlin years. She leaves behind a confident institution, but one that, even in recent years, butts up against the role of Parliament and its provincial counterparts often enough to cause governments to push back.
This is a bipartisan phenomenon — the Liberal government’s response to the court’s assisted-dying decision signals disagreement with the court similar to the Conservative government’s pushback on prostitution and injection sites.
There were times McLachlin herself seemed preoccupied with defending the court from charges of “judicial activism” — despite herself proclaiming the activism debate settled shortly after becoming chief. This too is consistent with her record as a leader. The court’s role is as much political as it is legal, and any great modern chief justice will possess equally great political instincts to go along with legal and institutional attributes.
McLachlin certainly did.