‘ He was a judge’s judge and a lawyer’s lawyer’
Ashort, barrel- chested man noted for his clenched jaw a n d Co l u m b o - i n s p i re d wardrobe, Allan McEachern was a giant within the legal community.
“ He was a judge’s judge and a lawyer’s lawyer,” B. C. Attorney- General Wally Oppal said Friday. “ He was an icon not only in the legal profession but in the community at large.”
McEachern, the former chief justice of B. C., died Thursday night at age 81. He leaves behind his wife, Appeal Court Justice Mary Newbury, two grown daughters from his first marriage and six grandchildren.
Oppal, a former B. C. Appeal Court judge, said his former boss will be remembered as one of Canada’s outstanding jurists and a great defender of judicial independence.
McEachern was a top trial lawyer for almost three decades before becoming B. C.’ s top trial- court judge. He was first appointed to the bench in 1979 and spent 10 years as chief justice of the B. C. Supreme Court and 11 as chief justice of B. C., presiding over the Court of Appeal.
You could disagree with McEachern’s judgment, but you could not easily dismiss his considerable intellect and powers of persuasion.
To those who didn’t appreciate his wry humour, he seemed every inch a caricature — a dour, teetotalling Scots curmudgeon with steadfast faith in the virtue of manual labour.
While his contributions to the law were legion, one of the most important was his streamlining of court procedures, making justice for the most part speedier and less costly.
Suffered no fools
A no- nonsense, get- to- the- point j u d ge w i t h a b u l l d o g ’ s m i e n , McEachern suffered no fools.
In 1988, when he was inconvenienced by striking legal workers, he ordered courthouse pickets removed on the grounds that citizens’ rights are useless unless they have access to a court to enforce them. As audacious as it sounds, his order was later upheld unanimously by the B. C. Court of Appeal and the Supreme Court of Canada.
Chief Justice of the Supreme Court of Canada Beverley McLachlin hailed McEachern’s passion for the law.
“ He was a great chief justice,” she said. “ He had enormous political courage and judicial imagination.”
McEachern was born in Vancouver May 20, 1926 and took great pride in being a local boy.
“ I was so fortunate to have grown up here, to have gone to school here, to have attended university here, to have got into a good law firm here and to have the opportunities I had here,” he said. “ I’m a great believer in the accidental theory of history. ... If you are lucky and you are in the right position at the right time, good things happen.”
His mother was a school teacher and his father ran a False Creek sawmill.
“ I’ve seen huge changes,” he recollected one afternoon, sitting in the garden he loved at his cottage on Boundary Bay.
McEachern attended Kitsilano and Lord Byng secondary schools — an athletic kid who swam, skated, sailed and loved rugby and football. He worked on a gillnetter, on a railway road gang, as a fire lookout, in an iron foundry, on a sawmill green chain.
He maintained that an honest day’s work was the key to a life well lived. Still, from the time he was a kid, McEachern wanted to be a lawyer.
“ I wanted to be a lawyer well before I got into high school and I was making plans, ’ cause I knew I was going to have to go away because we didn’t have a law school back then in Vancouver.”
After the war, in 1947, one of those grand serendipities that marked his life occurred when a law school opened at the University of B. C.
“ I was so fortunate when it came along at the time it did. I was just too young for the war and just old enough for law school.”
He earned a Bachelor of Arts degree from UBC in 1949 and a law degree in 1950. Four decades later, the university bestowed on him an honorary doctorate of law, and in 2002 he was named its chancellor.
B u t t h e b e n c h wa s a c a l l i n g McEachern said he didn’t hear.
Called to the bar in 1951, McEachern married Gloria in 1953 and they reared daughters Jean and Joanne.
That was the year he helped found the Vancouver Kats Rugby Club. His own playing days cut short by a broken leg, McEachern was the club president for 15 years, during which he guided it to 13 provincial championships. Later, he was president of the B. C. Lions 1967- 69, commissioner of the Canadian Football League 1967- 1968 and CFL president in 1969.
McEachern articled with and then practised at Russell & DuMoulin ( now Fasken Martineau DuMoulin) for 28 years. He returned to the firm after retiring from the bench when he reached 75 in 2001.
“ I had a great senior partner named Douglas Brown, top counsel in his day,” McEachern said. “ He told me when I started, ‘ You’ll never get rich practising law. If you want to get rich, be an investment banker, broker or promoter. But the law will give you a good living and it’s the most interesting way to spend your life.’
“ He was quite right. The only thing wrong with it is the time goes by so quickly. It just seems like yesterday.”
McEachern didn’t like to talk about his cases — wins or losses.
The reason was simple — civil or criminal law proceedings are often the most unpleasant experience for everyone involved, save the lawyers.
“ When their cases are over, most participants and their families will usually prefer not to have such experiences revisited, sometimes years later, in a self- serving book written by a lawyer or judge.”
Judge ‘ should remain silent’
McEachern also strongly believed a judge’s rulings should speak for themselves.
“ Once a judge delivers a decision . . . all the world can talk about it, and praise or criticize or laugh at or about it, but the judge should remain silent forever.”
McEachern found himself in the right place at the right time again in 1979, when the B. C. Supreme Court was embroiled in scandal.
Then- chief justice John Farris was caught consorting with prostitutes and another member of the bench was accused of impropriety. Chief Justice Nathan Nemetz was elevated from the trial court to replace Farris on the Court of Appeal.
Th e n - p r i m e m i n i s te r P i e r re Trudeau called McEachern and asked him to step into Nemetz’s job.
The federal government thought appointing an outsider would help restore confidence in the court and McEachern, who didn’t drink or smoke, was above reproach.
He could be counted on, by dint of his personality alone, to shake things up and breathe some fresh air into the shuttered judicial establishment.
“ I hadn’t given any thought to going on the bench, but it was an offer I couldn’t refuse. A chief justice comes along only once in a generation. ... How could I say no?”
For the next 20 years, there were few areas of law he did not influence and there were more than a few headline- making rulings.
In 1984, McEachern grabbed the spotlight by granting an injunction prohibiting street prostitution in the West End. In an unprecedented move, the chief judge did what politicians and other jurists had tiptoed around — he banned hooking as a public nuisance.
“ It was sort of far- reaching, but the evidence I heard left me in no doubt the peace, order and good government of the West End was being compromised,” McEachern said.
He was never afraid to tack against the tide of accepted wisdom — a characteristic made evident almost immediately upon his ascendancy in 1988 to the top judicial post in the province, chief justice of the Appeal Court of B. C.
Although he had been elevated to the appellate court, McEachern was still working on an aboriginal land claims case that today is a legal landmark known as Delgamuukw.
Launched by dozens of hereditary chiefs from the Gitksan and Wet’suwet’en first nations, the trial consumed more than a year of court time at a staggering cost of some $ 25 million. McEachern crisscrossed northern B. C. by helicopter, inspecting the huge swath of land covered by the claim to see first- hand the plight of the aboriginal people.
Expectations among native and non- native alike were high that after such a monumental trial, McEachern would help resolve the most incendiary of Canadian troubles. Instead, he poured gasoline on it. In 1991, McEachern handed down a ruling that was immediately denounced by native people, their supporters and many legal scholars as anachronistic.
In a judgment that rambled over 394 pages, he reasoned that the two aboriginal tribes had no legal claim to land ownership based on their ancestry. Their rights, McEachern said, had been extinguished by colonization. His offhand dismissal of oral history and disregard for Indian civilization incensed natives and plenty of others.
The Canadian Anthropology Society slammed the ruling for gratuitously dismissing scientific evidence and for being laced with an ethnocentric bias rooted in the colonial belief that white society is inherently superior.
McEachern’s widely discredited decision was overturned in 1997 by the Supreme Court of Canada, which said that, contrary to what B. C.’ s chief justice had written, oral histories could be considered legitimate evidence. It was unprecedented.
Since it was handed down, native groups have used it as the foundation for lawsuits over resource rights and land claims from coast to coast. Its repercussions continue to be felt.
Unfortunately, of all his decisions, it is for his apparent intolerance in Delgamuukw that McEachern is likely to be remembered.
“ When I look back the one thing that strikes me when I think about it, I think how misunderstood it was,” he said later. “ I don’t think the people who criticize it have a close understanding of what the narrow legal issue was and view it far differently than I did.”
Many branded him a racist and it scarred him. He saw it as part of a trend of growing public coarseness. “ I guess the troubling aspect of it is the polarization and the growing incivility,” he said, a n d b l a m e d t h e m e d i a i n part, because they gave prominence to the outrageous. Partly though, he thought people had unreal expectations, especially of the legal system.
“ One has to feel regret and shared pain for victims of awful things, but very often you can’t do anything for the victims in a way that would satisfy them,” he said. “ I don’t think they really want revenge, but what they are saying implies that they do.
“ But that’s the way the world is. You see it in Parliament, you see it in the legislature, you see it in city council. I think it has spread to the general community. The biggest regret I have at this stage of seeing all I’ve seen is the growing lack of civility. Maybe it will change, although I think it more likely will get worse.”
A warm and often funny man in private, McEachern is probably proudest that a Liberal prime minister offered him the job as chief justice of the B. C. Supreme Court trial division and a Conservative prime minister later asked him to be chief justice of the Court of Appeal.
He liked to be considered fair, even- handed and disinterested.
Of all the changes he witnessed, the one he pondered most often was the patriation of the Constitution in 1982 and its subsequent transformation of Canadian jurisprudence.
McEachern was no great fan of the Charter of Rights and Freedoms, but he acknowledged it helped minorities and women achieve equality.
“ I think we were heading towards it anyway, but it accelerated it.”
In McEachern’s view, the Charter prodded the country down a very progressive road socially, but in terms of the criminal law it has nudged us into a quagmire.
“ There are so many procedural changes since the Charter that a murder trial that used to take four days now takes four months.”
He thought the constitutionalization of the law had engendered other unforeseen problems by establishing “ a rights- based society.”
“ I don’t think it was intended to legitimize extreme individual views,” McEachern maintained.
And he was convinced the constitution created a situation in which too much power has ended up in the hands of judges, especially when it comes to broad social issues.
“ I think the Supreme Court of Canada has let the courts have too much say in some of these things.”
McEachern’s first wife, Gloria, died in 1997 after 44 years of marriage. Two years later, he married Appeal Court Justice Mary Newbury.
With a passion for gardening and for a 10- metre sailboat he called Skye, after his ancestral home, McEachern was an extraordinary man whose friends called him Al. Reflecting on it, he said: “ I’ve been extremely fortunate. I’ve had what is sometimes called just a great slice of life. I’ve been one of the very fortunate few. I really am quite astonished by it all.”
Allan McEachern in 1984, when he grabbed the spotlight by granting an injunction against street prostitution in Vancouver’s West End, banning the activity as a public nuisance.