National Post

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Thursday, November 04, 1999

High court's new chief staunchly independent
Beverley McLachlin: 'As close as we have come to an absolutist on free speech'
Luiza Chwialkowska
National Post

Justice Beverley McLachlin, an Alberta-born jurist whose legislative record defies ideological distinctions of Left and Right, has been appointed Canada's first female chief justice of the Supreme Court.

Judge McLachlin, 56, will succeed Chief Justice Antonio Lamer, who retires Jan. 7. She is regarded as a defender of free speech and a moderate voice on issues of women's equality and aboriginal rights.

Judge McLachlin is also a staunchly independent jurist, more likely than most of her colleagues to dissent from majority rulings. Her contrariness could prove her biggest obstacle in the role of chief justice, whose job is to lead the court to consensus, observers say.

In announcing the appointment yesterday, Anne McLellan, the Justice Minister, said she was pleased the prime minister had selected the most qualified candidate for the country's highest judgeship, who also happened to be a woman.

"She is a person of outstanding ability, she is someone who understands this country, she is a person of balance and I think she will serve the Supreme Court very well," Ms. McLellan said outside the House of Commons.

The legal community also applauded the choice of the bilingual and prolific judge.

"I think it's an outstanding, historic appointment," said Patrick Monahan, professor of constitutional law at Osgoode Hall Law School in Toronto. "I think she will tend to be a centrist and moderating force on the bench."

Elevated to the Supreme Court in 1989 from the Appeal Court of B.C., Judge McLachlin is the longest-serving judge on the bench who is not approaching retirement. Custom called for the post to go to a non-Quebec judge.

"Anyone other than McLachlin would have been a surprise," said Peter McCormick, a political science professor at the University of Lethbridge, Alta. "To pass her over would have been a slap in the face to her and to qualified women jurists across the country."

Judge McLachlin has often come down on the politically incorrect side of controversial cases, and has dissented in 19% of judgments, compared to the court average of 12%.

"She has always voted independently, and voted her own mind," says Prof. Monahan. "She has not followed a party line or a particular point of view."

Judge McLachlin wrote the decision striking down the "rape shield" law, allowing accused rapists to inquire about the sexual histories of their accusers. In 1992, she wrote the decision striking down the law that convicted Holocaust denier Ernst Zundel. In 1995, she wrote the decision overturning the federal ban against tobacco advertising. Recently, she dissented from the Marshall ruling that expanded aboriginal fishing rights in New Brunswick.

"She is as close as we have come on the Supreme Court to an absolutist on free speech," observed Eric Gertner, a lawyer with the Toronto firm of McCarthy Tetrault, and a former co-editor of the Supreme Court Law Review. "She's got a strong personality and a willingness to take decisions that may not be popular."

Ted Morton, a political science professor at the University of Calgary, says, "she is not a straight feminist advocate. There is a libertarian dimension to her judgments which sometimes lands her on the opposite side from the women's groups."

Described as a "lawyer's judge," Judge McLachlin derives her decisions directly from precedent and legal principle. Her approach contrasts with that of her predecessor, Judge Lamer, who prefers to apply general abstract concepts to individual cases.

"Lamer is much more the civil law judge developing the big scheme, and the code, and the formula answers to things, while McLachlin is much more the common law person who takes one principle at a time to build a pattern," observes Wayne MacKay, a professor of aboriginal law at Dalhousie University in Halifax.

The third woman appointed to the Supreme Court, Judge McLachlin's record on equality rights is complex and shifting, legal experts say.

As a judge on the B.C. Court of Appeal, Judge McLachlin upheld a traditional view that equality did not mean special rights for disadvantaged groups. Such reasoning was later overturned by the Supreme Court, which made allowances for special rights for underprivileged groups.

Some observers say she has since moved to the more liberal interpretation. Others disagree, arguing the judge has stayed true to a more traditional view of equality.

Prof. Monahan, who has analyzed the court's voting records, says the new chief justice is exactly average in her propensity to rule in favour of Charter challenges.




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