McLachlin’s democratic legacy
When Beverley McLachlin steps down in December, after 28 years on the Supreme Court and 17 as chief justice, she will leave a jurisprudential puzzle for legal scholars looking for a pattern where one has been famously difficult to discern. Her legal legacy will long be debated, but the contribution she leaves to democracy is clear and profound.
Appointed to the top court by Brian Mulroney, and elevated to top judge by Jean Chretien, McLachlin has in her rulings reinforced an impression of non-partisanship, in turn pleasing and irritating ideologues of every stripe.
Her decisions have been marked most profoundly not by any apparent political philosophy, but by a commitment to empathy, to “put yourself in the shoes of the different parties, and think about how it looks from their perspective,” as she told the National Post in 2015.
This “act of imagination” led the ranchers’ daughter from Pincher Creek, Alta., to write in favour of overturning the ban on assisted dying, to assert that Indigenous peoples were the victims of a cultural genocide, to strike down prostitution laws and strengthen labour protections and otherwise guard the vulnerable from undue government harm.
But pigeonhole her at your peril. McLachlin also argued against the criminalization of hate speech and, in one of her most controversial rulings, wrote a decision for the majority overturning a law that shielded rape complainants from being questioned in court about their sexual histories. She maintained the law was unfair to the accused.
McLachlin will leave her post with a reputation for being an even-handed and rigorous judge, but her most enduring legacy may well prove to be democratic rather than legal. Her judicial career was born around the same time as the Charter of Rights and Freedoms, which gave Canadian courts the power to overturn legislation. With this power, she understood, came grave responsibility. If unelected judges were going to overturn the decisions of the people’s representatives, they would have to work hard to maintain the public trust.
In this, McLachlin was a maven. As chief justice, she managed to maintain a harmonious court, avoiding the schisms and factions that had cast a shadow on previous iterations. She encouraged judges to be less aloof, to explain their decisions and help media cover the technical complexities of the law. She started to broadcast Supreme Court proceedings on the Internet as a gesture of openness. Her public image was strengthened, too, by her status as Canada’s first female chief justice - a source of inspiration to many, though she said her role as symbol never ceased to surprise her.
McLachlin was right that the public standing she worked hard to earn was invaluable. After her court delivered a series of rebukes to the Harper government on key aspects of its agenda, the Tories engaged McLachlin in an unprecedented and unseemly feud, claiming the chief justice had sought to meddle with the appointment of a new Supreme Court judge. When McLachlin disputed the government’s story, the legal community and much of the country took her side.
In our untrusting moment, McLachlin understood the importance of holding the court up as an institution to believe in. That’s the legacy, above all, her successor should work to preserve.