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January 24, 2001

Better judgment

National Post

It has been a good year for Chief Justice Beverley McLachlin of the Supreme Court of Canada. She has emerged as more than just a titular leader; in her first year at the court's helm, she has engineered two major changes worth applauding.

First, as Monday's special report in the National Post showed, the McLachlin court has been cautious in its prescription of judicial remedies. Instead of imposing broad, sweeping measures -- such as striking down entire sections of legislation -- the Court has applied a fine scalpel to excise only those parts of laws deemed unlawful or over-broad.

For example, in the recent free speech case of Little Sisters Book and Art Emporium v. Canada, the Court prescribed a narrow remedy: It instructed Canada Customs to end its irrational treatment of gay erotica crossing the border, and overturned an agency rule that placed the burden of proof on bookstores and other importers during administrative review of agency decisions. The Court did not strike down the entire Customs Act; nor did it expurgate the obscenity provisions of the Criminal Code. Such restraint is welcome. In 1999, the British Columbia Court of Appeal took a different path: Finding just one or two aspects of the child pornography provisions in the Criminal Code unconstitutional, it struck down all the laws dealing with the possession of child porn. The result has been disastrous: For two years, the possession of child pornography has been de facto legal in British Columbia.

The second positive development ushered in by Judge McLachlin relates to administration. Far fewer judgments were released by the top court in 2000 than in past years, and the judgments that were released were generally concise and intelligible. Many of the earlier judgments were obtuse -- the R. v. Ewanchuk ruling dealing with the defence to rape of implied consent being one such example. And since the top court would often split narrowly, it was hard for lower court judges, litigants and lawyers to interpret their meaning. By contrast, many key decisions under the McLachlin court have been penned unanimously -- thus clearly signalling to lower courts the philosophical bent of the Court. Consider the just-decided case of Robert Latimer. The Court was wise to draw a clear, bright line -- and not to offer any dissents upon which future litigants might hang their appeals. Any lack of unanimity in this case would have invited a slew of additional cases essentially re-litigating the matter.

To be sure, there have been instances of poorly decided cases under Justice McLachlin's stewardship. One example was the case of K.L.W. v. Winnipeg Child and Family Services, in which the Court sanctioned the warrantless apprehension of a one-day-old child by child protection workers. That ruling had the pernicious effect of nationalizing Canada's foster children, treating them more like commodities than like the sons and daughters of living, breathing parents.

Alas, the tentacles of this Supreme Court still overreach at times. But, on balance, Judge McLachlin has kept the bench on the straight and narrow.

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