Globe and Mail

Does she have the right stuff?

With the Supreme Court increasingly under fire lately, Lamer's replacement will need to be tough and pragmatic

KIRK MAKIN
The Globe and Mail
Tuesday, October 26, 1999

TORONTO -- The odds-on favourite to become Canada's new chief justice nailed the Alberta Court of Appeal between the eyes last winter in her reasons for overturning Stephen Ewanchuk's sexual-assault acquittal.

Intolerable stereotypes about women provoking rape with the clothing they wear or their actions lay at the heart of the "specious" grounds on which the court had decided the case, Madam Justice Beverley McLachlin said in her concurring decision.

Her reasons were noticeably leaner -- but just as piercing -- as those of Madam Justice Claire L'Heureux-Dubé's. Yet it was Judge L'Heureux-Dubé's polemic that was pilloried by editorialists and opponents of the court for weeks on end.

Judge McLachlin made her point and escaped, her Teflon-coated hide intact.

With the Supreme Court of Canada under daily siege nowadays, the 56-year-old judge's ability to render tough but pragmatic decisions is bound to rank as a high priority for Prime Minister Jean Chrétien.

Alongside this trait are a host of attributes that include her fierce intellect and workhorse tendencies, her broad experience as a judge, her Western roots and the fact that she would become the first woman chief justice.

It all leaves most legal observers convinced that Mr. Chrétien will settle on Judge McLachlin when he selects the replacement for the retiring Antonio Lamer, as the Prime Minister will any day now.

If so, she can thank one other factor: good timing.

Judge McLachlin has become something of a heroine lately to increasingly vocal opponents who accuse the Supreme Court of exercising too much social activism.

She wrote a strong dissent in the vastly unpopular ruling that gave Mi'kmaqs the right to catch lobster out of season.

Although she is not noted as a leading proponent of judicial activism, Judge McLachlin does not shrink from defending its use as part of what she and many other judges now refer to as "dialogue" between the courts and legislators.

"Parliament, with its greater access to opinion, to fact-finding, to information, is the best and most appropriate place for policy decisions to be made," Judge McLachlin told the Canadian Bar Association last summer.

Diane Martin, a professor at York University's Osgoode Hall Law School, said Judge McLachlin can best be categorized as "centre/activist. She is rigorous, thoughtful and very respectful of the view that the Charter [of Rights and Freedoms] protects minorities from the tyranny of the majority. But she is more cautious than someone like L'Heureux-Dubé.

"She has an original way of thinking, but she is quite capable of winning consensus on some tricky points that is really quite impressive."

Jamie Cameron, another Osgoode Hall professor, said that "it is very important for a chief justice to have some sense of what the Supreme Court is and where its limits are.

"She has it. I think it is fair to say she loves the law. She struggles with questions and does not decide them on reflex."

She described Judge McLachlin as "savvy -- not in a calculating sense, but in the sense of having worked out in her own mind a conception of what she thinks it is appropriate for the court to do."

During her 10 years on the court, Judge McLachlin also has displayed an unremitting independence.

In 1992, she wrote the decision striking down a law under which Ernst Zundel had been convicted of spreading false news about the Holocaust. She argued to do the same thing in the case involving Alberta teacher James Keegstra, but she was outvoted by a majority that upheld the law prohibiting willfully promoting hatred.

In 1995, Judge McLachlin wrote the majority decision in the RJR-MacDonald case, ruling that a federal law banning tobacco advertising was unconstitutional.

In extending the right of free expression to corporations, she managed to anger both supporters and haters of the Charter.

"Ruling in favour of a cigarette manufacturer is not exactly the politically correct thing to do," Patrick Monahan, an Osgoode Hall law professor, remarked in an interview.

Indeed, a colleague of Prof. Monahan, Michael Mandel, accused Judge McLachlin at the time of harbouring a tender concern for the accused -- provided they were "corporations, rapists, racists or even Nazis."

However, her toughest ruling was in the 1991 case of R v. Seaboyer and Gayme, when the court struck down the federal rape-shield law -- a law viewed as a sort of litmus test of feminist principles.

Undeterred by its symbolism, Judge McLachlin led the majority in concluding that the law unfairly limited the ability of an accused man to defend himself.

"It signalled to feminists that she was unreliable, but the rest of us saw a glimmer of hope that she might not just defend the party line," Ted Morton, a political scientist at the University of Calgary, said in an interview.

Still, Judge McLachlin is decidedly no antifeminist. She has spoken out over the years about the need for a female perspective on the bench -- especially in light of the fact that male-dominated governments pass criminal laws that deny women equality.

"I wouldn't say the Seaboyer decision stuck negatively to her in the women's community," said Christine Dearing, president of the West Coast office of the Women's Legal Education and Action Fund. "She has clearly had decisions that were both for and against women."

Candice White, a law student at the University of Calgary whose master's thesis looked at Supreme Court voting trends, found Judge McLachlin to be the most activist judge in equality cases. In three-quarters of the equality-rights cases she has voted on, she sided with the claimant.

In cases involving legal rights, Ms. White found that Judge McLachlin voted for the claimant 38 per cent of the time. This ranked her in the middle of the pack.

By virtue of dumb luck or good judgment, Judge McLachlin tends to be on the side of law and order in the rulings that cause the greatest backlash. In two highly controversial 1996 cases involving search and seizure -- R v. Feeney and R v. Stillman -- she joined the dissenting view.

Judge McLachlin also dissented in R v. Carosella, arguing that accused rapists have no right to go through the therapy records of the complainants.

"She is not afraid to protect rights if her analysis leads her to that conclusion," Prof. Cameron said.

"At the same time, she has a strong sense of the purpose of Section 1." (An escape hatch governments can fall back on when a law is found unconstitutional, Section 1 permits them to argue that the law is a reasonable, proportionate measure aimed at a valid social goal.)

Beverley McLachlin was born in 1943 near Pincher Creek in southwestern Alberta.

Her father ran several small businesses while her mother was a housewife, and "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 told an interviewer.

One of her mentors, Vancouver lawyer Bae Wallace, tells a story that illustrates this point.

In 1972, his firm, Bull Housser Tupper, hired her to work on a hellishly complicated civil case involving B.C. Hydro. After a dinner at the Georgia Hotel where about two dozen men on the case sat assessing Judge McLachlin's merits, Mr. Wallace said, she was asked whether it would be all right if the men smoked cigars.

"No problem," Mr. Wallace quoted her saying as she pulled out a cigarillo. "And do you mind if I smoke?"

Her rapid professional rise astonished colleagues. Appointed to the B.C. County Court in 1981, she rose to the B.C. Supreme Court and the B.C. Court of Appeal before being appointed to the Supreme Court of Canada in 1989.

"My life has been a series of fortuitous happenstances, if not accidents," she once said. "I've never had long-term personal goals."

"Bev is essentially logical," Mr. Wallace said. "She has always had her feet on the ground. She also has complete command of computers and the technological end of things. She was a hell of an administrator and she writes very well."

While Judge McLachlin's writing falls somewhere short of elegance, it is comprehensive and to the point. (A rare exception is the recent matrimonial case of Bracklow v. Bracklow, a muddy ruling that greatly disappointed the family law bar.)

In a typical ruling from 1997, Judge McLachlin was forced to choose between the rights of a mother and an unborn child. She concluded that a pregnant, Winnipeg woman addicted to glue sniffing could not be forcibly confined and treated.

"A pregnant woman and her unborn child are one," she said plainly. "To make orders protecting fetuses would radically impinge on the fundamental liberties of the mother -- both as to lifestyle choices and as to where she chooses to live and be."
In the end, does it really make much difference who gets the chief justice's office? After all, in day-to-day terms, much of the job involves presiding over committee meetings, speaking at public events, deciding who will sit on panels for each appeal and assigning the judge who will write the decision.

However, Prof. Cameron said the role of chief justice goes far beyond pushing paper and dispensing assignments. "I think a tremendous amount of importance attaches to who the chief justice is as an individual," she said. "The mood and attitudes of the place really take their flavour from the chief."

Friends and colleagues described Judge McLachlin as a warm, sparkling person in social situations. In the courthouse itself, she is less lively and approachable.

"She is very easy to talk to, but she is also a private person in many respects," Mr. Wallace said.

Judge McLachlin does not give the appearance of a judge spoiling for a fight, but she does not meekly retreat either. She has in the past bluntly confronted colleagues in rulings, occasionally resorting to sarcasm when her patience wears thin.

Observers say her form can cut both ways. She is less likely to have the sort of courthouse alliances some judges share, but this may enhance her reputation for even-handed independence should she become chief justice.
Kirk Makin is The Globe and Mail's justice reporter.

CURRICULUM VITAE

Born: Pincher Creek, Alta., on Sept. 7, 1943.
Education: BA, MA (philosophy) and LLB from the University of Alberta.
Marriages: Rory McLachlin (deceased) in 1967, and Frank McArdle in 1992.
Children: One son, Angus.
Career path: Practised law in Edmonton from 1969 to 1971. Moved to Fort St. John, B.C., in 1971 and to Vancouver the following year.

Appointed to B.C. County Court in 1981 and to B.C. Supreme Court the same year.

Elevated to B.C. Court of Appeal in 1985.

Returned to B.C. Supreme Court to become chief justice in 1988.

Appointed to Supreme Court of Canada in 1989.

WHERE SHE STANDS

Madam Justice Beverley McLachlin's stand on several major Supreme Court of Canada rulings:
Sue Rodriguez v.
B.C. Attorney-General: Voted in favour of allowing Ms. Rodriguez to go ahead with her assisted suicide.
Peter v. Beblow: Wrote the 7-0 decision extending property rights to stay-at-home spouses.
Seaboyer and Gayme: Wrote the decision striking down the rape-shield law.
R v. Zundel: Wrote the decision striking down the law that prohibited "spreading false news" as infringing on free speech.
RJR-MacDonald Inc. v. Canada: Wrote the 5-4 decision overturning the federal ban against tobacco advertising.
R v. Keegstra: Wrote the dissenting opinion in a 4-3 decision that upheld the law against willfully promoting hatred against identifiable groups.
R v. Hébert: Wrote the 9-0 decision preventing police from planting undercover officers in jail cells to cajole suspects into confessing.
R v. Thibaudeau: Argued in dissent that the Income Tax Act imposes an unfair burden on custodial parents.
Bazley v. Curry: Wrote the 7-0 decision in a ruling that found that clubs, schools and treatment centres can be found liable for sexual attacks on children in their care even if they did not act negligently.
R v. Curragh: Wrote in dissent that two mine managers should not be retried for manslaughter in connection with a 1992 mining disaster because of gross misconduct by the prosecution.
R v. Williams: Wrote a majority decision allowing potential jurors to be questioned about racial stereotypes.

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