National Post

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Saturday, November 06, 1999

McLachlin signals a new realism
Sheldon Alberts
National Post


Bruno Schlumberger, Ottawa Citizen
Beverley McLachlin, the newly appointed chief justice, says she will welcome fair public criticism.

OTTAWA - Justice Beverley McLachlin, the incoming chief justice of the Supreme Court of Canada, said yesterday that while judges should remain "thick-skinned" to criticism of contentious decisions, they must always consider the consequences of their rulings and how they "play out in the real world."

In her first press conference, Judge McLachlin tackled the issue of judicial activism -- the idea that judges have intruded too far into the realm of policy-making in rendering their decisions.

Judge McLachlin said the Supreme Court of Canada accepts that its role is to make "incremental and gradual" changes in its interpretations of law, and that thorny social policy issues, in particular, are often "better debated" in Parliament.

''The question of judicial activism is very difficult. It's not that courts want to be a surrogate Parliament,'' said Judge McLachlin.

''The way I see it, we don't have much choice in the kind of cases that come to us . . . We can't shy away from [doing our job] because we think it is going to be a difficult decision or because it may have large consequences. So I think that basically we aren't overstepping our bounds in deciding those questions.''

But Judge McLachlin, who wrote the dissenting opinion in the Marshall case that expanded native fishing rights, emphasized that judges must be aware of the impact decisions have on lives of ordinary Canadians.

''The idea that there is some law out there that has nothing to do with consequences and how it plays out in the real world is an abstract and inaccurate representation of what the law is,'' she said.

''I think it is essential to good judging that the rule be sensitive to consequences, and judges, when they make rulings, give some thought to how their rulings are going to fit into the institutional matrix of society.''

Judge McLachlin, a 10-year veteran of the Supreme Court, is widely considered one of the court's most legally conservative and independent jurists. She will replace outgoing Chief Justice Antonio Lamer early in the new year.

She takes over the job at a time when decisions by the Supreme Court, and lower courts, have come under fire.

From lower court decisions that have legalized the possession of child pornography to the recent Supreme Court judgment expanding native fishing rights, judges have been criticized both for being too liberal in their interpretation of the Charter of Rights and Freedoms and too eager to use their rulings to strike down laws or to create policy in a legislative vacuum, thereby overriding the function of Parliament.

In her dissenting opinion on the Marshall case, Judge McLachlin warned that the court risks ''functioning illegitimately'' by reading too much into ancient treaties

Critics of judicial activism, particularly the Reform party, often complain that Parliament does not give enough direction to the courts about the intent of legislation it passes -- which would provide judges with a road map for interpretation.

Judge McLachlin said she views the Supreme Court's decisions as part of a ''dialogue'' with elected officials.

''We have frequently said on this court that, particularly on social issues, we have a profound respect for Parliament and we feel that Parliament is the place where perhaps some of these issues are better debated,'' she said.

''We try to tailor our remedies narrowly to give lots of room for the legislator to achieve the appropriate solution . . . If the court strikes down a portion of a law, then it goes back to Parliament the way things usually operate and Parliament reconsiders it and recrafts it. So one in the end, hopefully, gets a law that not only achieves the goal of Parliament but also respects the fundamental constitutional constraints and the rights of citizens that our constitution sets out.''

Judge McLachlin also said she believes it is essential to the court's credibility that Canadians view the institution as an impartial arbiter that considers the impact of far-reaching rulings.

She added that she welcomes public criticism of her decisions, so long as disagreements do not degenerate into personal attacks.

''I am not sure that judges are going to be hampered in their ability to take decisions simply because they know they are going to be criticized,'' she said. ''We have to be fairly thick-skinned and we can't let the fact there may be criticism influence us to decide one way or the other.''

Asked about criticism that Canada's courts are too active in deciding matters of public policy, Judge McLachlin said it is often a ''difficult judgment call.''

''There is a legitimate policy-making role within the rule and that is something that has always been there in common law,'' she said.

''We have often said, repeatedly said, that our goal is incremental change, case by case change . . . [but] when there is confusion below, perhaps in the courts, and people don't know how to apply the law, they quite rightly say to this court 'Give us some clarification on this point.' "

She was reluctant to offer a firm opinion about Canada's selection process for Supreme Court judges. Some critics believe there should be public confirmation hearings where the views of candidates could be explored, rather than have the decision left to the prime minister.

Asked about the significance of being the first female chief justice, Judge McLachlin said she hopes her appointment signals that women and men compete equally for positions of influence in Canadian institutions.

''The more perspectives you get included in the judging process, the better,'' she said. ''I do think it is important and significant that Canadians can see that the Supreme Court has now three women on it and that it is possible for women to take up important institutional roles."

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