National Post

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Thursday, January 06, 2000

In a word, Judge McLachlin is independent
Ian Hunter
National Post

Beverley McLachlin will be sworn in tomorrow as Chief Justice of Canada. How will she discharge her new responsibilities?

While no one can be certain, the portents are quite encouraging. I watched her being interviewed not long ago on Newsworld. Her Ladyship (no, I don't mean Pamela Wallin) demonstrated intelligence and poise; her answers were lucid. She was forthright, yet she astutely declined to wander into areas of discussion that might have returned to haunt her on the bench.

Judge McLachlin showed an awareness of the controversies swirling around the court: from the unaccountable process for appointing judges, to allegations of Charter activism, to a lack of respect for the legislative prerogatives. One might disagree with the substance of some of her answers, but she was familiar with the issues and she had thought through her position.

When her appointment was announced, she told a press conference: "I think the idea that there's some law that has nothing to do with the consequences and how it plays out in the real world is an abstract and inaccurate representation of what the law is. You cannot divorce the law, the rule, from the consequences, and I think it's essential to good judging that the rule be sensitive to consequences and that judges ... give some thought to how their rulings are going to fit into the institutional matrix of society."

In her decade on the Supreme Court bench, Judge McLachlin's judgments have generally been consistent with that approach. In constitutional matters, she has been a partisan of neither federal nor provincial governments; has been a defender of the rights of the accused and has remained sensitive to the importance of effective criminal law enforcement; she is a defender of free speech, with perhaps a welcome trace of the libertarian's mistrust of the nanny State. If I had to sum up Judge McLachlin in a single word, the word would be independent.

Just about the time she arrived at the Supreme Court, Canada's sexual assault laws had been completely rewritten to conform to feminist ideology. Her 1991 decision, striking down the so-called "rape shield" provisions (which prevented the accused from cross-examining a complainant on her prior sexual conduct), was widely criticized by feminist fellow-travellers. Judge McLachlin wrote: "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."

A year later, she struck down the offence of "spreading false news" under which Holocaust-denier Ernst Zundel had been prosecuted. She wrote: "To permit the imprisonment of people, or even the threat of imprisonment, on the ground that they have made a statement which twelve 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."

In the court's recent Marshall decision, her powerful dissent paved the way for the court's subsequent and highly unusual "clarification." And the clarification seems much closer to the spirit of her dissent than it does to Judge Ian Binnie's original majority decision.

On Jan. 7, 1991, Judge McLachlin gave an address titled "Of Power, Democracy and the Judiciary" to the Toronto Lawyers' Club. She made two points: first, that it is wrong to characterize the judiciary as too powerful. Second, a strong judiciary is not a threat; rather, it is essential to democratic self-government.

How times have changed! Judge McLachlin assured her audience: "Judges are unlikely to start telling Parliament or the legislature when they must enact laws or what kind of laws they must pass..." Ah, the garden of Eden, before M. v. H.

Her talk, like her judicial decisions, was well-argued. But for me it was not persuasive. Why not? Mainly because she finished up quoting British jurist, Lord Alfred Denning: "Someone must be trusted. Let it be the judges."

But I prefer to trust politicians, bumbling and gormless though they often are. Why? Because I may at least try to influence their decisions, and because every four years I get the chance to send them packing.

Ian Hunter is professor emeritus in the faculty of law at the University of Western Ontario.

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