National Post

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Monday, August 23, 1999

McLachlin v. Iacobucci for job of chief justice
Judicial independence
Anne Marie Owens
National Post


Tom Hanson, The Canadian Press
Supreme Court Justice Beverley McLachlin in 1997


John Lehmann, National Post
Chief Justice Antonio Lamer, who has announced his retirement, and his wife, Daniele Tremblay.

When the prime minister chooses a new chief justice for Canada, most legal insiders are betting on Beverley McLachlin, a self-described "farm girl" from Pincher Creek, Alta., who would be Canada's first woman to take the top job, but whose judicial independence marks her as neither a feminist role model nor an upstart anti-feminist.

Her tendency to deliver judgments that are more letter-of-the-law than fitting into any particular camp have made her extremely difficult to pigeonhole; over the years, she has been criticized by both traditional feminist groups and their usual opponents, the lobby group REAL Women.

"The day I wake up and look in the mirror and say, 'I decided a case to please this interest group or that interest group' ... that's the day I'm not fit to be a judge," she said in an interview.

At 55, she is one of the youngest judges on the country's highest court. The only other woman on the Supreme Court bench is Justice Claire L'Heureux-Dube.

Judge McLachlin is a tireless worker who, despite a speedy rise through the judicial system, maintains that her life "has been a series of fortuitous happenstance, if not accidents."

The only other serious contender for the chief justice job is Frank Iacobucci who, at 62, is older and more experienced, with five years on the federal court and a post as former dean of the University of Toronto law school.

But it is Judge McLachlin whose name has been repeated most frequently in any speculation about who will be Canada's next chief justice.

"I'd be very surprised if it wasn't Judge McLachlin," said Ian Greene, a politics professor at York University in Toronto who has conducted extensive research on judicial behaviour. "Canada is ready for a woman as chief justice."

Carl Baar, an expert in judicial administration at Brock University in St. Catharines, Ont., said Judge McLachlin is "the obvious choice for the job."

He said cynical court watchers have commented that Judge McLachlin and Judge Iacobucci are the two people "competing" for the job in recent years, by giving more speeches and making more public appearances at legal functions.

He said Judge McLachlin's name has been linked with the top job for as long as she has been on the bench, and she has always been seen as chief justice material.

There does not seem to be any particular pressure to appoint a woman to the job, just as there was no pressure to appoint a woman to the Supreme Court when Judge McLachlin was named in 1989.

At that time, said Mr. Baar, the emphasis was on finding a western candidate, and when the western provinces each provided three nominees, Judge McLachlin was considered a far superior choice.

She was educated at the University of Alberta, a bright student who was accepted to law school after simply writing a letter asking about the program. She was called to the bar in 1969 in Alberta and 1971 in British Columbia, and divided her first decade between practising law and teaching it.

She was appointed to the County Court of Vancouver in 1981 and, five months later, was appointed to the province's Supreme Court. Four years after that, she moved up to the highest court in the province, the Court of Appeal, and then she moved on to become chief justice of the province's Supreme Court.

Since moving to the Supreme Court of Canada, Judge McLachlin has steadily made her mark.

She wrote on behalf of the majority in the controversial ruling that struck down the federal rape shield law that had prevented victims of sexual assault from being questioned about their sexual history, and argued that the protective law was too broadly drawn.

In the case against Jim Keegstra, the Alberta man who taught his students that the Holocaust was a Jewish hoax, she wrote a dissenting opinion that said the application of Canada's hate propaganda legislation was too broad.

A complaint to the Canadian Judicial Council was made by REAL Women after a speech by Judge McLachlin criticized abortion and prostitution laws as simple attempts to use criminal law to enforce sexual morality.

In a recent case involving Nancy Law, she wrote that the B.C. woman was not entitled to her late husband's pension plan because she was too young when he died.

Ever the egalitarian and libertarian, said Mr. Baar, Judge McLachlin "has always been someone who has taken positions on behalf of people claiming Charter rights, even if they weren't the most noteworthy characters."

See related stories "Passionate fighter leaves Charter of Rights as link to judicial career" by Anne Marie Owensand Elena Cherney and "Lamer predicts retirement will spark a revitalized bench" by Shawn Ohleron, both on page A10.

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