‘ He was a judge’s judge and a lawyer’s lawyer’

Vancouver Sun - - British Columbia - IAN MUL­GREW VAN­COU­VER SUN

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.”

Con­sti­tu­tional changes

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.

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