Globe and Mail

McLachlin touted to succeed Lamer

Top-court judge would be first female chief justice

SEAN FINE
The Globe and Mail
Monday, August 23, 1999

Toronto -- Madam Justice Beverley McLachlin will probably prove an irresistible choice for Prime Minister Jean Chrétien as he considers who should replace Antonio Lamer as Chief Justice of the Supreme Court of Canada, legal observers say.

By picking Judge McLachlin, a 10-year veteran of Canada's top court, Mr. Chrétien would leave as his legacy the first woman named chief of a national court in the Western world -- perhaps the world over.

"To be the first one to appoint a woman as chief justice? I wouldn't pass it up if I were the prime minister," said Les Vandor, an Ottawa lawyer who advised the Brian Mulroney government on judicial appointments.

After Chief Justice Lamer's surprise weekend announcement that he will soon step down, attention turned to Judge McLachlin.

Fluently bilingual, a forceful and prolific writer with a track record as an innovative administrator, the 55-year-old jurist is the quiet superstar of Canada's highest court, and her curriculum vitae stands with anyone's.

Moreover, the conventions of choosing a Supreme Court chief -- based on seniority, and alternating between anglophone and francophone -- are on her side. (The only two members of the court senior to her are francophone Quebeckers.)

Chief Justice Lamer, whose Supreme Court career is two years older than the country's 1982 constitution, stunned the legal community when he announced in Edmonton that he will be leaving the court, effective Jan. 7, except to participate in the judgments of cases he has already heard.

He was a central force among those who believed the Charter of Rights and Freedoms obliged judges to strike down and even rewrite laws approved by Parliament. He was particularly influential in broadening the rights of accused persons.

But he has been a judge for 31 of his 66 years, and Chief Justice of Canada since 1990, and he was beginning to lose le feu sacre -- the holy fire. That, rather than his health, was the reason for leaving now, he said in an interview.

(His only health problem is that he has an orthostatic tremor, which means he cannot stand still, he said.)

He said that he believes he has been the longest-sitting judge on the Supreme Court of Canada this century, after Sir Lyman Duff (1906-1944). "After all these years, I felt I was starting to lose this passion, and what was a very fascinating part of my legal career is gradually -- it hasn't happened yet, but I see it coming -- gradually becoming a job.

"One has a duty to leave when one feels that he has given what he has to give -- and I've given it."

He was a fitting symbol of the country when he was appointed to the court by Pierre Trudeau in 1980. His Quebec roots were planted by a French marine who landed in 1672 (hence Lamer -- "the sea"), while his maternal grandfather emigrated from Ireland. He grew up speaking English with his mother and French with his father.

The role of judges was about to change dramatically with the coming of the new Charter. He has likened it in the past to the scientific revolution wrought by Louis Pasteur's discoveries.

"The answer's not in the book," he said yesterday. "Think of euthanasia, assisted suicide, abortion -- name it. Any extremely difficult issue: There's no let up. It's an unending chain of problems that come to you day after day."

He is not sure what he will do next, although he intends to keep working. He would enjoy practising law again but that is out, he said, because his experience as chief justice would give him an unfair advantage.

"I'm an insider and I know things that others don't know."

He was red-eyed when he made his announcement Saturday. "You don't leave something you've been doing for 30 years without a little pang." It was not the first time he has shown emotion in public. When his colleague John Sopinka died suddenly two years ago, he gave a hoarse-voiced, loving tribute to him.

"It affected me as a friend. I was shocked by his demise," he said yesterday. "I probably would have consulted him [about retiring] had he been alive."

He prefers to leave questions of his legacy to others, he said, but he spoke of his pride in helping give the Charter a strong, broad direction at its outset, and making sure judges didn't effectively kill it as they had killed John Diefenbaker's Canadian Bill of Rights.

He was also proud that he helped the court achieve unanimous rulings where that was important -- on the recent case about Quebec's right to secede unilaterally, for instance. And he was especially proud of his accomplishments in improving the court's efficiency. "We're the fastest court in the land."

Even so, there have been grumblings of discontent during the past two years on his court. Some suggest he has pushed judges too hard to keep their judgments coming quickly -- Chief Justice Lamer said yesterday that if that is the case, no one has complained to him about it -- and he has grown more temperamental during that time, it is said in some legal circles.

For the next chief, the challenge will be to knit the court together once more after the upheavals of the past two years. Apart from Mr. Sopinka's death there was the retirement of New Brunswick's Gérard La Forest, a pivotal figure, plus the recent retirement of Mr. Justice Peter Cory, perhaps the court's moral centre. Now comes the Chief Justice's announcement, which means that four of its nine members will have fewer than two years on the court. (The three recently appointed are: Mr. Justice Michel Bastarache from New Brunswick and Mr. Justice Ian Binnie and Madam Justice Louise Arbour, both from Ontario.)

"The only thing that distinguishes the chief justice from the rest of the court is that he's in charge of making sure the place works," said legal historian DeLloyd Guth of the University of Manitoba.

Judge McLachlin, who rose so rapidly through the British Columbia courts it was said she moved faster than some cases, showed her administrative mettle as chief justice of the British Columbia Supreme Court in 1988. She was "remarkably innovative," particularly in trying to find uses for new computer technology, Prof. Guth said.

Mr. Justice Frank Iacobucci, a contender for the post of Chief Justice, also has a strong administrative background. Appointed to the Supreme Court early in 1991, not quite two years after Judge McLachlin, he has been a deputy attorney-general for the federal government and chief justice of the Federal Court of Canada.

But all eyes will be turning to Judge McLachlin.

Born in 1943 near Pincher Creek, Alta., a community of 2,800 in sight of the Rocky Mountains, she is the first of the three women who have sat on Canada's top court (a fourth, Judge Arbour, takes up her spot in a few weeks) whose life as a lawyer, she says, was not marked by sex discrimination.

"Growing up, I had no sense that there were any limitations on me because I happened to be a girl or a woman," she once said.

She has resisted easy pigeonholing. She showed her civil-libertarian side, writing the court's 4-3 decision striking down a conviction against Holocaust-denier Ernst Zundel. She also went head to head with the court's only other female member, Madam Justice Claire L'Heureux-Dubé, in writing the majority judgment that struck down Canada's rape-shield law. One prominent feminist said "rape is going to flourish" as a result.

Later, however, she sided with Judge L'Heureux-Dubé in declaring Canadian tax law unfair to women, in its refusal to permit them to deduct child-care expenses from their income. All the men on the court disagreed.

Among the Quebec judges who might be considered to fill the vacancy are Quebec Chief Justice Pierre Michaud and Appeal Court Judge Michel Robert, a former president of the Liberal Party of Canada.

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