‘Conscious objectivity’: That’s how the chief justice defines the top court’s role. Harper might beg to differ by Joseph Brean, May 23, 2015, National Post
Portraits of chief justices past — Antonio Lamer, Brian Dickson, Bora Laskin — hang in oracular grandeur on stone walls, with an empty spot awaiting the mandatory retirement in 2018 of “McLachlin C.J.,” as she is styled, the first woman and longest-serving chief, whose court is on a roll of momentous rulings about life, death, freedom, and fairness, often against the wishes of government.
Taking in such contrasting views is key to appreciating McLachlin’s career as a judge, which coincides almost exactly with the lifespan of the Charter of Rights & Freedoms, Canada’s foundational statement of values. It is precisely what she does on the bench. To her, judgment is not a coldly neutral evaluation of competing positions, robotically free of passion or perspective. It is an engaged, human act of imagination.
“What you have to try to do as a judge,” she says in an exclusive interview, “whether you’re on charter issues or any other issue, is by an act of the imagination put yourself in the shoes of the different parties, and think about how it looks from their perspective, and really think about it, not just give it lip service.”
She describes it as “conscious objectivity,” and it is a major factor in her court’s rise to almost unprecedented levels of public scrutiny, interest, admiration and occasionally resentment.
By a purely quantitative measure, the government wins here more than it loses — about two thirds of the charter cases it fights. Politically, however, it wins small and loses big.
Recent headlines scream out the trend. On prostitution (Bedford), assisted suicide (Carter), mandatory minimum gun crime sentences (Nur), Senate reform and, just this month, whether Omar Khadr deserves an adult sentence, the government has lost on key elements of its party’s platform. The ugliest was its effort last year to elevate Federal Court judge Marc Nadon to the Supreme Court, which the top court struck down because he did not qualify as a Quebec appointee. That led to competing press releases about who did what when, and the revelation that Prime Minister Stephen Harper refused to take a call from McLachlin, whom he called sniffily “a sitting judge,” despite a long tradition of private consultation on such matters.
“Governments have always suffered defeat at the hands of the court,” says Emmett Macfarlane, a political scientist at the University of Waterloo who specializes in the role of the top court. “What is unique about the Conservative government is that there have been a string of highly salient losses in two areas.”
One is the Conservative Party’s law and order agenda, often in the case of criminal appeals. The other is institutional reform, such as the recent ruling against Senate term limits and elections, which Harper criticized as enforcing an unworkable status quo. It also torpedoed a long-standing Tory platform plank.
All this has solidified an image of the court as the government’s nemesis, with McLachlin as its fearless, indomitable leader. In this majority government, she sometimes seems like leader of the opposition.
Tom Mulcair holds the role, technically. Casual observers could be forgiven for thinking it is Justin Trudeau. Senators really ought to keep their heads down at the moment. That leaves the Supreme Court as the most potent democratic challenger to the questing prime minister, the only one that can actually ever stop him. The rest just build the dramatic tension.
The Supreme Court of Canada was not always supreme. Until 1949, its rulings could be appealed to the Judicial Committee of the Privy Council in London. Laskin described it as a “captive court,” with barely any doctrine of its own other than perhaps in criminal law. Most cases were commercial disputes, with interpretation of statute a lesser priority, and overturning the government a rarity. Judges were political appointees.
It was not until the passage of the charter in 1982, and its equality section in 1985, that the court became as prominent and active as it is today. In a way, the charter embodies the judicial independence of Canada. It set out national values, then gave them voice and impact through the court on issues from the decriminalization of abortion in 1988 to the rapid expansion in gay and lesbian equality through the 1990s.
As Macfarlane writes in his book Governing From The Bench, the Supreme Court “has evolved from a largely legal, dispute-resolving body into a policy-making institution whose decisions have far-reaching implications for virtually all areas of Canada’s political, social, cultural and economic life.”
This is the era in which McLachlin rose like a helium balloon through the judicial ranks. In at least one instance, she heard a case in Vancouver, then beat the appeal to the Supreme Court.
It was not an obvious path. Born in 1943, one of five children, she was raised by devout Pentecostal Christians who operated a ranch in Pincher Creek, Alta., a small town between Lethbridge and the Rockies.
She recalls a high school teacher’s appalling advice. “You’ve got the highest reading retention scores we’ve ever seen, but a girl can’t do much with that,” the woman said, adding whatever she did, she should not become a waitress or telephone operator because her attention was poor.
McLachlin became neither, instead studying languages and philosophy, and later law, at the University of Alberta. It was there that she met and married Roderick (Rory) McLachlin, a biologist, and after being called to the Alberta bar in 1969, she moved with him briefly to the northeastern British Columbia town of Fort St. John, where she practised law.
Soon, they moved to Vancouver so she could join a major firm, and in 1975, she started teaching law at the University of British Columbia, focused on rules of evidence.
The next year, their son Angus was born, and with Rory handling much of the child care, her career took off: in 1981, she was appointed to county court in Vancouver, then elevated to the B.C. Supreme Court the same year; in 1985, she became the first woman justice on the B.C. Court of Appeal.
Rory died of cancer in 1988, a few days after she was appointed chief justice of the B.C. Supreme Court. But even that devastating loss did not impede her ascent. The following spring, then-prime minister Brian Mulroney called to offer a seat on the Supreme Court.
In 1992, she married Frank McArdle, a lawyer and executive director of the Canadian Superior Courts Judges Association. She became chief justice in 2000.
It has now been decades since she lived on a ranch, but McLachlin still has a reputation as a farm girl who knows the weight of mud on her boots.
Eugene Meehan, a lawyer at Supreme Advocacy and former executive legal officer at the Supreme Court, describes her character as tough, independent, competent, “the kind of lady who would bag her own groceries.”
But describing her jurisprudence is trickier. Meehan uses terms of art, pointillism and chiaroscuro, to describe the effort as artistic as much as intellectual.
The dominant theme in her career, the interpretation of the charter, reflects this union of principle and imagination. The charter is the human core of Canada’s constitution, famously regarded by judges as a “living tree,” to be interpreted in a way that grows and adapts to changing times.
It is also a mechanism through which courts can decide that a law, duly passed, is “ultra vires,” literally “beyond the powers,” and thus strike it down — either killing it outright, or forcing its legislative improvement.
From the beginning, McLachlin embraced this brave new style of judicial oversight.
“Democracy is a complex affair,” McLachlin says. “You simply have to have courts there to resolve the various, not only legal issues that arise in the course of applying the law, as would be the case in any democracy, but also the constitutional issues, be they division of powers or interpreting the fundamental rights and obligations set out in the charter. So you could not conceive of a functioning Canadian democracy without the court, and without a strong and independent court.”
Of course, this also allows for cycles of conflict between government and the bench.
Chess theorists of Harper’s strategy see a method here, of legislative over-reach to invite the campaign storyline of judicial activism. At best, his government seems not to care that its most “spectacular” losses reveal a persistent disregard for the rule of law, says Audrey Macklin, a University of Toronto law professor. At worst, it seems to regard the court as an “arbitrary obstacle” to its agenda.
The day before McLachlin’s interview, Justice Minister Peter MacKay slagged off her court in an op-ed for overturning mandatory minimum gun sentences. That ruling, known as Nur, boldly announced that the government’s law and order agenda would not trump actual law and constitutional order, and offered one of the cheekiest hypotheticals in recent jurisprudence.
In effect, the majority judges kicked the mythical duck hunter of Canadian electoral politics back at the government that loves him so well. Such a person, a “licensed and responsible gun owner,” might make a mistake about where and how he stores his ammunition, with “little or no moral fault and little or no danger too the public,” but he would still be caught by this law. That is “totally out of sync with the norms of criminal sentencing,” the court ruled, and thus unconstitutional.
Mackay criticized this “far-fetched hypothetical scenario,” and said he preferred the view of the dissenting minority. Macklin says this kind of thing “shows a lack of respect for the independence of the judiciary.” But McLachlin sees it differently.
“The government of the day or anyone else has the right to say they don’t agree with a court decision,” she says. “What I think should be the case is that this is done in a respectful way.
“The courts have to be respectful of Parliament’s role and the executive’s role, and I think you can seen this in our decisions. We’re often giving a measure of deference to ministerial decisions. We often say — and it’s not just lip service — that Parliament has a right to make these and other choices . I think the people in government have to treat the courts with respect, otherwise we will undermine our system and it won’t work very well.”
She thinks this has been successful, and whatever tension exists has no discernible effect on rulings. The next day, for example, the Supreme Court reinstated extradition orders signed by Mackay for two men New Hampshire wants to try for murder. The day after that, it reinstated a Harper judicial appointment in a similar case to the Nadon debacle.
Despite the chief justice’s air of equanimity, there are those who look for a political agenda in her court’s rulings, and see a deliberate pattern in the political losses.
If there is any perceived trend in McLachlin’s legal thinking, it is that she emphasizes access to justice, and individual rights and liberty. She is thought to be slightly to the right of the genial Rosalie Abella, and slightly to the left of the gruff Michael Moldaver — the opposite of their seats on the bench. But for every grasp at an ideological decryption of her work, a counter-example announces itself.
The same is true for her court. Though there are long-standing rumours about voting blocs — in the 1970s, Laskin, Spence and Dickson were know as the LSD Connection for their dissents, and in the 1990s, Lamer, Sopinka, Cory, Iacobucci and Major were known as the “Gang of Five” for their majorities, often in favour of the criminally accused — McLachlin thinks they are an amusing fiction. She even feels disappointed for the press when they cannot discern these patterns, and not for lack of looking, especially now that Harper is about to make his eighth appointment after the resignation of Marshall Rothstein, who was his first.
“I just shake my head, because we aren’t the United States,” she says. “It’s not part of the Canadian tradition, perhaps because we’re slightly less political in our orientation. People here aren’t appointed because they represent a certain point of view.”
For example, when human rights hate speech laws came up for review in Whatcott, 20 years after they were upheld as valid limits on free speech, there was speculation McLachlin’s earlier dissent would become the majority view. It did not, and the provincial laws still stand. But when assisted suicide came up again, she led a unanimous court in striking down the ban, just as she advocated in dissent the first time.
Winning is not a judge’s goal, but there is a certain satisfaction in this for the chief.
“Only in a secondary sense, you know,” McLachlin says. “As a judge, and I’ve been a judge for a long time, I have always resolved to just try to judge the issues as honestly as I can, and not to think about things in too strategic a manner. My job is simply to listen to what the parties have to say, and to do my best to understand the position, the ramifications of deciding one way or the other, to think about what’s best for Canadian society on this particular problem that’s before us, and give it my best judgment after listening to, also, my eight other colleagues. So there’s a consensual element there.
“But if at the end of all that dialogue and discussion I still feel [in dissent], as I did for example in Rodriguez, the first case on assisted suicide, I had no regrets. I knew it was a very difficult question, a heart-wrenching question, and the process had been excellent. We had had enormously deep and anguished sometimes discussions, and it came out 5-4, and I said the process was good. I decided the way I thought but I respect my colleagues decision the other way. When it came back [in the recent Carter decision], I said I’m going to give it the same process and apply the same approach, and it came out differently.”
This focus on process has been key to recent major rulings, from Senate reform to judicial appointments. While McLachlin is often described as principled, it is usually meant as more pragmatic than visionary.
Matthew Gourlay, a criminal defence lawyer who clerked with her in 2008-09, says the court’s more frequent unanimous judgments are a by-product of her conciliatory leadership style. Gone are the “ugly decisions,” split four ways, with dissents within dissents. Now the court seems to speak with one voice, even when its decisions are split.
This is largely McLachlin’s achievement. It rebuts complaints that she leads an activist or obstructionist court, and it goes some way to explaining why there has been no discernible rightward shift over the last decade, even though she and Abella are the only justices who were not nominated by Harper.
In the future, she foresees “a few tussles” about privacy rights in the digital sphere, but other than this vague prediction, she is clear her court does not seek out topical issues.
“We are totally passive,” she says. “We look at it [a case], and if it’s important, we take it. Sometimes you might wish to duck one. But we can’t.”
They can, however, swat a few back at the government.
“I think the court belongs to the Canadian people and it should reflect the Canadian people,” McLachlin says, not only to convey an impression of balance, but to bring in perspectives that were so long absent from the judicial imagination. But she admits to having personally underestimated the symbolic impact of a woman as chief justice. It came as a surprise how much it means to people, especially new Canadians, who bring their daughters to meet her on Canada Day, seeing inspiration in this figure, at once diminutive and towering.
“They express wonderment and pleasure that they live in a country where this could happen,” she says. [Emphasis added]
Imagination will take you everywhere.
I am enough of the artist to draw freely upon my imagination. Imagination is more important than knowledge. Knowledge is limited. Imagination encircles the world.