Beverley McLachlin: Not a political player, but a political force
Chief justice retires next week, a ‘prairie girl’ who united the court — and the country
The biggest social event in Ottawa this season has nothing to do with the holidays. It will, however, revolve around someone Canadians usually see in red, fur-trimmed attire.
On the eve of her official retirement Dec. 15, Beverley McLachlin, the soonto-be former chief justice of the Supreme Court of Canada, will be feted at a huge gala Thursday night. It will feature tributes from former prime minister Brian Mulroney and two former governors general, Adrienne Clarkson and David Johnston.
McLachlin’s retirement, like her appointment and many of the rulings during her remarkable tenure, is a milestone — not just in the legal realm, but in Canada as a whole. The first woman to serve as chief justice has also been the longest-serving person in that role: nearly 18 years at the head of the top court in the land.
Appointed to the top court by Mulroney in 1989, then elevated to the chief’s job by Jean Chrétien in 2000, McLachlin has seen a lot of change in this country, and helped provoke some of it, on every- thing from assisted death to same-sex marriage, even cameras in the court.
Born in Pincher Creek, Alta., McLachlin is stepping down more than nine months before the mandatory retirement age of 75.
McLachlin has been a rare figure in Canada, someone whose esteem and reputation have only grown with her years at the top of a national institution. McLachlin — a political force, but not a political player, with a career steeped in controversy without being controversial — has defied being pigeon-holed by gender, geography or politics.
One of her signature achievements, many agree, was bringing a voice of consensus to the judges’ rulings; to have the court speak with one voice more than it had in the past — and certainly more than is seen in the highly polarized U.S. Supreme Court.
That achievement probably came about, many also agree, through McLachlin’s own skills at keeping the court’s interests and legal principles, rather than her own views or personality, at the forefront.
It was a masterful way to preside over issues that had the potential to divide, not just the court but the country, says Emmett Macfarlane, a professor at the University of Waterloo and author of Governing from the Bench: The Supreme Court of Canada and the Judicial Role.
“When the court’s dealing with things from prostitution to assisted dying to those big references on Senate reform, the court’s very well aware that it’s knee-deep in politics,” Macfarlane says. “The fact that the court is so frequently unanimous on some of these big issues, you have to give her a lot of credit for that.”
According to some data published earlier this year, 73 is a signature number for the McLachlin court. It was the annual average of rulings the court issued under her watch in her first 16 years as chief; 73 per cent is also roughly the proportion of unanimous decisions issued while McLachlin was chief justice, higher than under her predecessors.
Former justice Thomas Cromwell served on the Supreme Court from 2008 to 2016. He can’t reveal exactly how McLachlin engineered so much consensus without breaking the secrecy of past deliberations, but he does say this: “The first draft of a judgment that gets circulated is rarely the version that’s released many weeks later,” he says, “and there was never a more constructive colleague than Beverley McLachlin.”
Cromwell actually got to see McLachlin through two frames. In the mid-1990s, he was the executive legal officer to former chief justice Antonio Lamer, when McLachlin was a newly appointed judge from B.C.
“You could also see very easily that she was a leader . . . She was a very independent jurist.”
Later, Cromwell would become a colleague on the bench and he would keep marvelling at McLachlin’s energy. He’d often wonder when she slept.
“She has a fairly raucous laugh; I think the prairie girl comes out,” Cromwell says. “Her whole face sort of explodes with a smile and laughter.”
McLachlin is married to Frank McArdle, a lawyer who heads the Canadian Superior Court Judges Association. She has a son, Angus, who she raised for a while as a single mom after her first husband died in 1988.
Carissima Mathen, a law professor at the University of Ottawa, credits McLachlin with keeping the court and the Charter of Rights high in public favour over the years — often against prevailing political winds. “The court has not been the site of any disquiet or scandal or gossip about acrimony between the judges,” she said. Mathen, like other close observers of the court, likes to see McLachlin’s career in terms of two important, bookended judgments. Back in 1993, when she was a new judge on the court, she wrote a dissenting opinion on Sue Rodriguez’s case on assisted dying. Twenty-two years later, as chief justice, McLachlin’s court opened the door for assisted dying in Canada with the so-called Kay Carter ruling. Those two judgments show just how far Canada’s legal culture changed while this far-seeing judge was serving at the Supreme Court of Canada.
Many of McLachlin’s admirers also note how much the retiring chief justice has done in the realm of access to justice. “It is a fundamental right, not an accessory,” McLachlin told a University of Toronto audience back in 2011. Her arguments for better access to legal representation fit her oft-cited principles on social and democratic stability, in speeches and in rulings.
Anne McLellan was justice minister when McLachlin was made chief justice — one of Chrétien’s best appointments, she believes. McLellan, reflecting on McLachlin’s legacy, keeps circling back to words such as “dignity,” “respect” and “stability.”
“She’ll be remembered for becoming chief justice at the time that the Supreme Court needed a collegial, highly regarded, highly respected leader who was strong and determined.”
It is no easy feat for a chief justice to stay immersed in the country’s politics but out of the fray, says McLellan.
“The relationship has to be one of mutual respect. It is one of balance. Let me put it this way: the minister of justice should not be in the business of calling the chief justice. When the chief justice needs to talk to you, she’ll call you.”
Of course, on this score, McLachlin will be remembered for protecting the court during the tumultuous debates over judicial activism and repeated slams against the court from Conservatives, especially under prime minister Stephen Harper. Harper had cast the court as laden with Liberal appointees before he came to power, but things exploded in 2014 when the top court itself rejected one of Harper’s appointees, Marc Nadon, as unqualified.
The incident set off an incredible public spat between the PMO and the chief justice, in which McLachlin was credited for keeping cool and resisting getting dragged into a political mess. In the larger scheme of things, it was an unpleasant blip in her long tenure, but one that few others who have held the job have had to endure.
Political tumult aside, McLachlin also had to steer the court through the information revolution, through public demands to know more and see more about previously secretive institutions.
One of the hosts for the Thursday night gala is Don Newman, the former CBC host, one of the journalists who got to know McLachlin through efforts to open up the court to journalists. He gives her a lot of credit for bringing new openness to the Supreme Court. So does Emmett Macfarlane: “She has had to help modernize the court and really bring it into the 21st century,” Macfarlane said. “We have live webcasts of hearings, we have an increasing willingness of judges to do interviews and to make public appearances and give speeches.”
McLachlin is due to make one of those speeches on Thursday night at the big gala in the capital. It won’t be the last Canadians hear from her — McLachlin has many more speeches to give and even a novel in the works. But she will definitely have everyone’s attention — McLachlin has a way of making Ottawa listen. sdelacourt@bell.net