By the Book

In a new memoir, former chief justice Beverley Mclachlin reflects on decades of social change in the courts

In a new memoir, former chief justice Beverley Mclachlin reflects on decades of social change

In 2015, two years before her retirement, Beverley Mclachlin made a historic declaration. It was not delivered from her perch on the Supreme Court, where she presided as the first female chief justice and its longestserving one, but rather in a speech for the Global Centre for Pluralism at the Aga Khan Museum in Toronto. Her talk was an exposition on “the interface between tolerance and intolerance in Canadian society.” Mapping this boundary had been a career-consuming matter for Mclachlin, who joined the court seven years

after the Charter of Rights and Freedoms was enacted and, over the better part of the following three decades, helped define exactly what those rights and freedoms should entail.

Citing some remarks John A. Macdonald made about the “Indian problem” — “The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all aspects with the inhabitants of the Dominion, as speedily as they are fit for change” — Mclachlin went on to say that, for our first prime minister, “‘Indianness’ was not to be tolerated. Rather, it must be eliminated. In the buzzword of the day, assimilation. In the language of the twentyfirst century, cultural genocide.”

Mclachlin was one of the highestranking Canadians to ever use the term cultural genocide publicly in this context, giving it an unprecedented institutional weight. In an interview with the Globe and Mail, John Borrows, Canada Research Chair in Indigenous law at the University of Victoria, called it “unparalleled” in Canadian history. It shouldn’t have been so — her characterization of Canadian history was fact, not opinion. (As defined by the United Nations, genocide is any act against a national, racial, ethnic, or religious group with the intent to destroy it in whole or in part; this includes the imposition of harsh conditions and the removal of children.) Yet it rankled some, particularly those who seemed to feel a chief justice was obliged to overlook the worst of her country’s crimes. In the Globe, for instance, columnist Lysiane Gagnon called her phrasing both “unacceptable” and “inflammatory.”

What it was, actually, was a prelude. Five days later, the Truth and Reconciliation Commission released the executive summary of its sweeping, devastating report on residential schools, defining the institutions as a central element in Canada’s campaign of cultural genocide; along with the report, the commission published ninetyfour calls to action meant to redress those injustices, and support the building of new nation-to-nation relations.

Reconciliation is one theme in Mclachlin’s new memoir, Truth Be Told: My Journey through Life and the Law. Reading her book, one could trace the parallels between her personal history (a rural Alberta childhood, the lifework juggle of a secondwave feminist, marriage and motherhood, widowhood and remarriage) and her professional one ( judicial decisions on women’s rights, samesex marriage, and assisted death). One chapter is dedicated to the progress in Indigenous law over the course of her career, including decisions such as 1997’s Delgamuukw v. British Columbia that held that oral evidence passed down from previous generations was admissible to

establish claims to land. “I found myself deeply immersed in the grand project of my legal generation,” she writes of this period, “the peaceful evolution of Indigenous rights in a way that might foster reconciliation between Indigenous and non-indigenous peoples.”

Whether or not her use of the word genocide in that 2015 speech was deliberately intended to signal her support for the upcoming TRC report, her welltimed deployment of the term was quintessential Mclachlin. As a judge, she had been difficult to pin a political label to, ruling in ways that alternately pleased and irked conservatives and liberals alike, but her decades in Ottawa taught her to be a deft politician. Having presided over some of the most pivotal cases in Canadian legal history, Mclachlin was well attuned to shifts in the country’s cultural, political, and social norms and expectations — and just as well aware of when she could play a role in nudging the nation toward progress.

The enactment of the Charter of Rights and Freedoms in 1982 put enormous pressure on the Supreme Court in the decades that followed. “Like swimmers tossed into the deepest part of a lake,” Mclachlin writes, “the justices had struggled to find sure ground, with no map to show them where it lay.” It was difficult, delicate work: creating a new legal framework for rights and freedoms — in some cases, overturning legislation to do so — all while avoiding the appearance of judicial activism. When Mclachlin was appointed to the court in 1989, she threw herself into the final stages of the Charter blitz. At times, she felt unequal to the job, but “there was only one way to go, and that was forward.”

Like many powerful women of her generation, Mclachlin writes that she experienced the weight of being “the first”: “everyone is waiting and watching —some rooting for you, and some secretly hoping you’ll fail. And the future of those who follow rests on how you fare.” She recounts a joke told to her by Justice Bertha Wilson, the first woman appointed to the Supreme Court, when Mclachlin became the court’s third: “Three down, six to go.”

She felt a particular kinship with Wilson, as well as with US Supreme Court justice Ruth Bader Ginsburg — though unlike “Notorious RBG,” Mclachlin, while widely respected, hasn’t elicited feminist and progressive swooning.

One reason is that Canada’s top court isn’t as polarized as its US counterpart but another is Mclachlin’s centrist record. Her decisions have not always lined up with feminist and progressive expectations. In 1991’s R v. Seaboyer and R v. Gayme, a case dealing with Canada’s so-called rape-shield laws, Mclachlin was part of the majority that found it unconstitutional to prevent the defence in a sexual-assault case from cross-examining complainants about their own sexual histories. And, in 1990’s R v. Keegstra, which found that prohibiting hate speech was a reasonable limit on freedom of expression, Mclachlin was one of three dissenting judges who took a more libertarian view.

On the other hand, there were Mclachlin’s more liberal decisions on cases dealing with, for example, gay rights: the reference questions on same-sex marriage in 2004, which paved the way, a year later, for the federal Civil Marriage Act, and prior to that, 1998’s landmark Vriend v. Alberta, which involved the dismissal of a gay lab coordinator from his job at a private Christian college. Mclachlin was in the majority that ruled that exclusion of homosexuals from Alberta’s Individual’s Rights Protection Act was a violation of the Charter.

Mclachlin’s centrism may be why she was gifted at finding consensus on the bench. Fair minded and hard working, a sharp legal mind paired with Prairie-upbringing modesty, Mclachlin was respected by legislators and the legal community alike. But she did famously enrage one particular politician. In 2013, then prime minister Stephen Harper attempted to appoint Marc Nadon to fill a vacant Quebec seat on the Supreme Court. Mclachlin’s court ultimately rejected the nomination (by a 6–1 ruling) because Nadon, as a Federal Court judge, rather than a Quebec judge or practising lawyer, wasn’t eligible. The PM’S attacks on her integrity wounded her, and until the matter was settled, she feared she might be forced to step down. (In the book, Mclachlin amusingly reveals that she and her husband got a new puppy during this period, and she briefly considered naming the dog Harper, so she could tell it to “sit” and “lie down.”)

Readers looking for more of this sort of (gentle) score settling, behind-the-scenes dishing on Ottawa intrigues, and Supreme Court infighting will be disappointed. Mclachlin’s memoir is a mild one, with significant chapters devoted to her childhood and education, her daily routine of reading and dog walking. It’s infused with — and, to a degree, let down by — her customary reserve and restraint. When she does open up, though, she offers a powerful window into how her life and the law intertwined. Her grief-stricken inability to honour her first husband’s request for a lethal dose of morphine in his final, painful days of cancer (he died in 1988) later shaped her thinking as a judge on the question of legalizing assisted death. Having watched her spouse’s suffering, she came to believe that having agency in ending one’s life in these circumstances was a necessary human right.

One of Mclachlin’s animating passions over the past decade has been advocating for transparency and accountability in, and increased access to, the legal system for all Canadians — to make the justice system less expensive, less drawn out, less intimidating, and less arcane. Legislation, after all, can shift the tides of nations, but it also determines the personal trajectories of individual lives: when and whether we have children, who we can marry, how we die. This recent chapter is, in many ways, the continuation of Mclachlin’s earlier work in helping shape our understanding of what our rights are. And it is this orientation — Mclachlin seeing the law in human terms and showing her own humanity in her law-making, rejecting legal ideology in favour of the specifics of the case in front of her — that may best define her legacy.