National Post

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Thursday, November 04, 1999

Detecting a pattern in judgments difficult
Where she stands
Jonathon Gatehouse
National Post

The new chief justice of the Supreme Court of Canada defies pigeonholing.

Since her appointment to the country's highest court in 1989, Justice Beverley McLachlin has kept observers guessing about her own ideological leanings.

Judge McLachlin has written many of the court's most important and controversial decisions over the last decade, but detecting a pattern in her judgments is a difficult task.

Early in her tenure, the self-described feminist was criticized by women's groups when she wrote the decision that struck down Canada's "rape shield" law. More recently, she won praise from the same groups with dissenting opinions in two separate cases that suggested the country's tax system discriminates against mothers. She has ruled in favour of free speech for those who deny the Holocaust and sided with the court's majority to allow potential jurors to be questioned about racial stereotypes.

Here is a sampling of Judge McLachlin's written judgments and opinions:

R. v. Seaboyer and R v. Gayme (1991 decision for the majority striking down Canada's "rape shield" law that prevented sexual assault victims being questioned about their sexual past)

"It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence ... runs afoul of our fundamental conceptions of justice."

R v. Ewanchuk (1999 addition to a majority decision, scolding an Alberta Court of Appeals judge for suggesting a teenage girl had invited sexual assault with her style of dress)

"Stereotypical assumptions lie at the heart of what went wrong with this case ... On appeal, the idea also surfaced that if a woman is not moderately dressed, she is deemed to consent. Such stereotypical assumptions find their roots in many cultures, including our own. They no longer, however, find a place in Canadian law."

R v. Zundel (for the majority in a narrow 1992 decision striking down a law that prohibited the "spreading of false news" used to convict a noted white supremacist who denies the Holocaust)

"To permit the imprisonment of people, or even the threat of imprisonment, on the ground that they have made a statement which 12 of their co-citizens deem to be false and mischievous to some undefined public interest, is to stifle a whole range of speech, some of which has long been regarded as legitimate and beneficial to our society."

RJR-MacDonald Inc. v. Canada (writing for the majority in a narrow 1995 decision overturning the federal government's ban on tobacco advertising)

"No matter how important Parliament's goal may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must ... fail."

R v. Marshall (a dissenting opinion in 1999 Supreme Court decision on native fishing rights)

"[The majority decision] has created an unintended right of broad and undefined scope ... How can one meaningfully discuss accommodations or qualifications of a right unless one has some idea of the content of that right and its modern scope?"




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