‘It’s been a great ride,’ chief justice says in emotional farewell
Beverley McLachlin reflects on career on last sitting day on Supreme Court, as Trudeau gets set to name country’s new top judge
OTTAWA— For once, Chief Justice Beverley McLachlin’s famous composure crumpled.
As Canada’s top judge bade a public farewell Thursday from her centre perch on the bench of the Supreme Court of Canada, she struggled to steady her voice and stop the tears.
Although McLachlin will still write rulings in appeals she’s heard for another six months, it was her last sitting day.
Looking back on a judicial career that has spanned nearly three decades, the advent of the charter, the childhood, adolescence and adulthood of her son, and a second marriage after the death of her first husband, McLachlin said she felt “great sadness . . . and enormous gratitude.” The most powerful woman in Canada who leads the judicial branch of government paused at length as she tried to contain her emotions.
“Whatever lies ahead, I know that my time here will always be the centrepiece of my life,” McLachlin said.
She thanked her fellow judges, court staff, lawyers, her husband Frank McArdle, and her son Angus, who was 13 when she first moved to Ottawa “and put up with mom as a judge.” She gave heartfelt thanks to the Canadian public for the trust they put in the court. “It’s been,” she said, “a great ride.” And then her famous reserve returned as she reflected briefly on her work as a judge, from1981, a year before the Charter of Rights and Freedoms was adopted, to now.
“It’s been intellectually stimulating; it’s been hugely challenging; and there’s not been a day when I haven’t thought I am the luckiest of people.”
With that, McLachlin said “thank you,” nearly forgetting to adjourn court as a roomful of the country’s top judges, lawyers and observers rose to their feet and gave her a standing ovation.
A past critic of government footdragging on judicial appointments, McLachlin had given plenty of notice in June she intended to retire on Dec. 15. It gave the prime minister lots of time to pick a new judge for the western seat McLachlin vacates — he named Alberta appeal judge Sheilah Martin last week.
And he’s had months to ponder who should have the top job. It’s a big one. The chief justice of the Supreme Court of Canada is first among equals on the court. McLachlin once said “my vote counts for the same as anyone else’s.”
But the chief decides who gets to write judgments, sets schedules, and can take the lead pen on unanimous ones. He or she sets the tone of the working environment for eight other strong-minded jurists, all with healthy egos.
The chief justice also heads the Canadian Judicial Council, which governs and disciplines judges in Canada; chairs the governors of the National Judicial Institute responsible for judicial education; steps up as deputy governor-general occasionally, and chairs the advisory committee for the Order of Canada.
Justice Minister Jody Wilson-Raybould said the Supreme Court of Canada “helps determine direction of country” in many different ways.
“I think Chief Justice McLachlin is amazing and exemplifies what it means to be a chief justice, to ensure that they have a deep knowledge and understanding of the law and its application, to ensure that you can build collegiality between and among all the justices on the Su- preme Court, to represent the Supreme Court both domestically and internationally, and to be a leader in that regard. Justice McLachlin is entirely reflective of that”
“The next chief justice is going to have big shoes, really nice shoes, to fill,” she quipped.
Prime Minister Justin Trudeau, who has set out bilingualism as a key consideration for his court and other senior appointments, says he will announce his choice by mid-December.
There are some traditional expectations around the post: that it should go to the judge with the most seniority, and alternate between judges trained in Canada’s common law and those trained in Quebec’s civil law, the upshot of which is an alternation between English and French-speaking judges.
Legal observers have pointed out a strict rotation has not been followed throughout the court’s history.
Trudeau’s father ditched the practice in 1973 when he elevated Boris Laskin, the first Jewish judge on the Supreme Court, to chief justice after just three years on the bench, and then promoted Brian Dickson in 1984 as his successor. Neither was bilingual. (For that matter, McLachlin was not fluent in French when she first came to Ottawa, but became fluent over time.)
And so a campaign is on to ensure Trudeau, fils, doesn’t do as his father did. First the Bar of Montreal wrote the prime minister to urge him to respect tradition and pick the next chief from the ranks of the three Quebec judges on the bench: Richard Wagner, Clément Gascon, or Suzanne Côté.
Upping the pressure, the Quebec provincial legislature just passed a unanimous motion demanding that the next chief justice be a judge from Quebec.
All three Quebec judges were appointed to the Supreme Court of Canada by the previous Conservative government under Stephen Harper. Côté was plucked straight from the Quebec bar, never having worked as a judge before. Wagner and Gascon were both first appointed to the Quebec Superior Court by previous Liberal governments, but later elevated by Harper.
Yet by the measures set out by Wilson-Raybould, it appears Trudeau could be set to appoint Rosalie Abella, now the senior bilingual judge with 13 years on the bench, eight more than the senior Quebec judge Richard Wagner, named in 2012.
Abella’s contributions to defining the concepts of equality, discrimination and employment equity in Canadian law have earned her interna- tional recognition.
The knock against Abella, 71, is that she is required by law to retire within four years, when she turns 75 on July 1, 2021. Trudeau may want to make an enduring appointment like McLachlin.
Wagner, the senior Quebec judge, is 60. Several observers have suggested he might be Trudeau’s safe choice as it would meet expectations in Quebec. The knock against Wagner at this time may be his lack of experience and the fact he was a Harper appointment to the top court just five years ago. Also, he recently stumbled when he decided to exclude all LGBTQ groups from participating in two appeals that dealt with discrimination claims based on sexual orientation — and was reversed by order of McLachlin.
Wagner is the son of Claude Wagner, who once lost the leadership of the federal Progressive Conservative party to Joe Clark and the leadership of Quebec’s Liberals to Robert Bourassa. The other two Quebec judges, Clément Gascon and Suzanne Côté, appointed by Harper in 2014, are seen as too junior. Neither has established any real profile on the court yet. Côté later made headlines for claiming tax deductions for about $50,000 a year in clothing expenses over three years, from 2004 to 2006, a dispute with Quebec’s tax agency that led to an undisclosed settlement.
McLachlin was once asked what is the most important skill needed for her job.
In 2009, she told TVO host Steve Paikin “the basic one is you have to be a good judge, be a good jurist, that’s the most important thing.”
Added to that, she said, you need “that elusive quality” of having good judgment, clear writing ability, people and communication skills.
Measured by that, perhaps Abella again emerges as the lead contender.