Canada’s Chief Justice lays down the law

Beverley McLachlin touches on dignity, equality and the importance of rights and respect for laws in the 2006 Chancellor Dunning Trust lecture

The Right Honourable Beverley McLachlin addresses a packed house in Dunning Auditorium.
The Right Honourable Beverley McLachlin addresses a packed house in Dunning Auditorium.
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All human beings are intrinsically worthy of respect, simply because they are human beings—that was the message the Chief Justice of the Supreme Court of Canada had for a standing-room-only crowd in Dunning Auditorium last Thursday.

The Right Honourable Beverley McLachlin, P.C., is the first woman to become Chief Justice of Canada’s Supreme Court, the highest position in the Canadian legal system. Born and raised in southern Alberta, McLachlin visited the University last week to deliver the 2006 Chancellor Dunning Trust Lecture.

The lecture is intended “to promote the understanding and appreciation of the supreme importance of the dignity, freedom and responsibility of the individual person in human society.” McLachlin picked up on those ideals and ran with them as the theme of her speech, which was entitled “Judging in the 21st Century.”

“I think that [credo] just about sums up my legal philosophy, and that of many, in the first half of the 21st century,” McLachlin said. “It’s impossible to have freedom without dignity, and dignity without freedom, and it’s impossible to have either if we don’t accept the responsibilities that are laid upon us.”

As Chief Justice, McLachlin’s own responsibilities include overseeing a Supreme Court comprised of eight other judges, acting as the chairperson of the Canadian Judicial Council—the body of the chief justices and associate chief justices of all the superior courts in Canada—and selecting which panel of judges of her court will hear each case brought before them.

In a little-known duty, the Chief Justice is also responsible for standing in as the Administrator of Canada if the Governor General is unable to perform his or her duties.

It was in the latter capacity that McLachlin gave royal assent to Canada’s Civil Marriage Act, the bill that effectively legalized same-sex marriages, in July 2005. Governor General Adrienne Clarkson was hospitalized at the time for a pacemaker operation, and returned to her post later that month.

McLachlin suggested she is conscious of the political import of her words—which is particularly noticeable in the lead-up to the Jan. 23 election—by politely declining to answer an audience member’s question about removing the notwithstanding clause of the Canadian Charter of Rights and Freedoms, an issue raised by Prime Minister Paul Martin on his campaign trail.

“I wish we weren’t in the middle of an election and that question weren’t quite so political,” she said ruefully. “[But] I don’t think it’s for me as a judge to say whether it should be there or not. I think my role as a judge is to apply the law.

“You’re bound to have tension between [Parliament and the legislature] in a constitutional democracy ... and I am not bothered at all by that tension.”

However, the language McLachlin employed to discuss the importance of dignity, freedom and the individual’s responsibility to society was unequivocal.

“To confirm human dignity is to reject discrimination,” she said, before cautioning her audience that “the tendency to fall into discrimination is deeply rooted in the human psyche.”

McLachlin herself has broken discriminatory gender barriers throughout her career. After practicing law in Alberta and B.C. from 1969 until 1975, she became the first woman appointed to the Supreme Court of British Columbia when she received her nomination in 1981.

“I was quite young, so I really had to consider it [becoming a judge],” McLachlin told the Journal after her speech, as she cheerfully made her way through a room full of law students eager to shake the hand of this star of the Canadian legal circuit.

“I thought it was a great honour to be asked, and to serve my country. I thought I would quite enjoy being a judge [because of the variety of issues judges encounter], and because I had always liked writing. So I finally decided to do it, and I’ve loved being a judge ever since.”

In 1985, McLachlin was the first woman named to the Court of Appeal of British Columbia, and in 1988 she became the Supreme Court of B.C.’s first female Chief Justice. She was named to the Supreme Court of Canada one year later, only the third woman to receive that appointment.

Since stepping into the shoes of departing Chief Justice Antonio Lamer in 2000, McLachlin has made a name for herself as a staunch but sometimes cautious defender of human rights. In a January 2005 article, Kirk Makin, the justice reporter for The Globe and Mail, described McLachlin as “a leader who will wade into battle when necessary to protect a vital right—but who is far from keen to do so.”

Jamie Cameron, a professor of law at York University’s Osgoode Hall, told Makin that McLachlin’s court “exercises its power in a pragmatic, shrewd way. [It] is highly protective of rights, but [McLachlin] also chooses her moments very, very carefully.

“You could say that her court is politically strategic. Politically, they are conscious of what they do and how it will play. To my mind, there is an attempt to get away from politics, to depoliticize their decisions.”

Since 1990, McLachlin has received at least 20 honorary degrees, and she completed all three of her BA, MA and LLB at the University of Alberta.

“When I started my law studies ... there were virtually no women on the bench. The judges were all elderly—but I can’t say that now, because I’m elderly,” the 62-year-old McLachlin joked. “I felt this was quite a strange world, and I never aspired to be a part of it.

“But [in the 1970s and 1980s] many people started to think there was something wrong. ... I think I was asked by the government [to serve on the Supreme Court] because there was a demand in society [for equal rights for women] that trickled up. It all starts with the people.”

Under the current system, Supreme Court justices are technically selected by the Governor General, but in actuality it is the Prime Minister who does the choosing, in consultation with members of the legal community when desired.

Canadian law requires three of the nine judges to be members of the Quebec bar, while convention alone dictates three to be chosen from Ontario, two from the western provinces and one from the Atlantic region.

Currently, McLachlin is one of four women on the Supreme Court’s bench, along with Madam Justices Marie Deschamps, Rosalie Silberman Abella and Louise Charron.

McLachlin said she has no complaints about the current system of selection.

“I don’t think it’s for judges to say how [we’d] like to be chosen,” she said. “[But we must] preserve a system that ensures we get the top-notch jurists ... We really have to have someone who is really good at the law, or loves the law.”

McLachlin said the strenuous grilling that accompanies nominations to the U.S. Supreme Court has made her feel sympathetic towards new nominee Samuel Alito Jr.

“I’m very interested in watching what’s going on in the U.S. with Mr. Alito, where they’re asking him how he’ll vote on abortions. ... And all I can say is, my heart goes out to him,” she said.

McLachlin said she sees her court as a necessity in a democratic society.

“The ability to call on the courts ... is critical to be sure our society remains a just society,” she said, citing the U.S. Supreme Court’s review of the American actions in the Guantánamo Bay prison camp as an example. “The process of review by the courts represents a measure of democratic accountability.”

Democracy itself is important to McLachlin, who said she views the legal system—and a corresponding respect for the laws of a state among its citizens—as essential to the foundation of democratic societies.

“We have a precious thing in our society ... I think we have a fundamental respect for our legal system in our country,” McLachlin said. “But the law alone is not enough—each of us has a role to play.”

—With files from the Globe and Mail and cbc.ca

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