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Stability and grace: The legacy of Chief Justice Beverley McLachlin

Each day before 6 a.m., my internal radar tells me the newspaper has found its regular spot at the front door. It offers a sense of stability in my day.

Then I make the mistake of reading it and stability everywhere else seems illusive. As I write this, Zimbabwe’s future may be a nightmare. North Korea continues to play havoc with our worry meters, Trump continues to withdraw the United States’ influence from the world and seemingly sanctions isolationism in world trade, security and compassion. China is happily occupying the vacuum and creating a new world order.

Saudi Arabia seems to be an opulent powder keg, Britain and Europe are learning the hard facts of divorce, Angela Merkel’s Germany is showing signs of fissure and where is Russia in all this?

Continuing stories of homeless, starving refugees are an embarrassment to the rich nations. Prominent citizens of the world are being faced with sexual misconduct allegations. Parliamentarians continue to attack each other on almost every issue.

Yet, in the midst of all of this, there is a place and symbol of stability in our world, right here at home.

The chief justice of the Supreme Court of Canada — Beverley McLachlin, an anchor of stability and grace — will, on Dec. 15, retire. We in this profession, indeed in this country, owe her enormous respect and gratitude. She symbolizes stability and enhances a strong court.

Chief Justice McLachlin’s tenure on the bench is astounding when examined through the lens of history. In April 1981, she was appointed to the Vancouver County Court and, by September of that year, had been appointed to the Supreme Court of British Columbia. (Something called the Charter of Rights and Freedoms popped up in 1982.)

By 1985, Chief Justice McLachlin had been appointed to the British Columbia Court of Appeal.  In 1988, she became chief justice of the Supreme Court of British Columbia.

A mere seven months later, in April of 1989, she was sworn in as a justice of the Supreme Court of Canada. On Jan. 7, 2000, Chief Justice McLachlin became the first woman in Canada appointed as chief justice.

During this span, the United States had six presidents: Ronald Reagan, George Bush Sr., Bill Clinton, George Bush Jr., Barack Obama and, now, Donald Trump.

In Canada, there were also six prime ministers: Brian Mulroney, Kim Campbell, Jean Chrétien, Paul Martin, Stephen Harper and, now, Justin Trudeau.

As chief justice of our Supreme Court, Chief Justice McLachlin steered our nation through rapidly evolving historical judicial and human headlines including assisted suicide, abortion, gay and lesbian rights, the rise and recognition of indigenous history and treaty rights, law and order agendas, the clash of terrorism and civil liberties, strains on access to justice, the efficiencies of the criminal justice system, waves of victim’s rights, judicial complaints, the stripping of society’s veil over mental health and an increasingly interested public.

Any of these issues could cripple one’s faith in our courts, but not under Chief Justice McLachlin’s watch. Indeed, respect for the Supreme Court was steadily enhanced.

Moreover, it goes without saying that she is a beacon of encouragement for women in this country.

The Charter, still a mere seedling in 1989 when she was appointed to the Supreme Court, has often been described as a living tree, continually preserving our national values through changing times. The chief justice has been its main gardener, enhancing its impact during her tenure in a principled, balanced way that quietly reinforced the independence of the judiciary.

In remarks celebrating the 25 years of the Charter, in the Osgoode Hall Journal, Chief Justice McLachlin said:

“I believe we can say with confidence that the Charter has given us a reason for pride. Canadian justice is richer and more secure than it was before the Charter. The world has come to see Canada as a leader in rights jurisprudence and as that rare thing in today's world — a just society. We should not, however, allow our justifiable pride in the Charter to blind us to the concerns that still remain. This year's retrospective on our constitutional bill of rights provides us with the opportunity to reflect, not only on what has been accomplished, but also on what remains to be done. The challenges posed by and under the Charter will continue. I hope that when lawyers, scholars and judges gather in 2032 to celebrate the Charter's 50th anniversary, they will conclude that this next generation, like the generation that shaped the Charters first 25 years, has risen to that challenge.”

Chief Justice McLachlin was a loyal champion for judicial independence. This was vital in an age of criticism of our judiciary, often unfounded and misinformed.

If not handled with a balanced response, it could erode the public’s confidence in the courts.

In 2001, Chief Justice McLachlin, at a conference in British Columbia, said the following:

“Modern threats to independence, like the old, demand a courageous, steadfast response. When all is said and done, the last bastion — the final refuge — of judicial independence is the conscience of each and every judge and lawyer. We, the bar and the bench, are the guardians of our legal system and the rule of law. We must resolve and stand firm against all pressures . . .”

The chief justice’s principled mettle was evident in 2014 when she was shockingly, publicly criticized by then-prime minister Harper, suggesting that Chief Justice McLachlin had tried inappropriately to intervene in the process of the appointment of Justice Marc Nadon from the Federal Court to the Supreme Court of Canada.

The criticism and innuendo by Harper was unprecedented and actually quite disgraceful. 

The profession, indeed the country, was on tenterhooks as to the outcome.

The chief justice refused to engage in an unseemly debate and simply categorically set the record straight:

“Given the potential impact on the court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. It is customary for chief justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”

At a later point, Chief Justice McLachlin, with enlightened finesse, is reported as saying:

“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 see 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.”

As Chief Justice McLachlin moves to retirement, there will be many accolades, celebrations and praise . . . all well deserved.

There will be those that fret that her judicial shoes will be impossible to fill. We ought not to worry. There will not be another Chief Justice Beverley McLachlin, but the respect, stature and stability of her office and the court that she leaves for her successor rests on a solid, remarkable foundation.

Measuring how we have done is often best described by our peers. Looking up from counsel’s side of the courtroom, we form our own opinions.

I thought it might be of assistance to ask others for their perception. Retired justice Patrick LeSage, former chief justice of the Superior Court of Ontario, offered his insight:

“As with the three other chief justices of Canada under whom I served on the Canadian Judicial Council, I can say that Chief Justice Beverley McLachlin is an exceptional Canadian. I can also say that she faced unique challenges that were not there for other chief justices. She handled those challenges in a balanced, wise manner, with wisdom, grace, dignity and integrity. We are all so proud of her.”

Chief Justice Lise Maisonneuve of the Ontario Court of Justice shared these thoughts:

“The chief justice has been incredibly generous to and respectful of not only the Ontario Court of Justice but all provincial courts in Canada. She's demonstrated this generosity through the considerable time she’s devoted to lecturing and sharing her wisdom at educational conferences across the country and also her commitment to continuing judicial education through her position as [chairwoman] of the National Judicial Institute.”

One might wonder how she may be perceived by the media, who look through a very different lens. Sean Fine, justice writer for The Globe and Mail, offered this perspective:

“She set a very high bar for successors in helping the court maintain its relevance and power in Canadian life without squandering its political capital, and steering through some turbulent political waters safely.”

We will miss Chief Justice McLachlin’s grace, wisdom, calmness and humanity and, may I suggest, witty charm.

When she was introduced at the recent awarding of the G. Arthur Martin Medal by the Criminal Lawyers’ Association of Ontario, one of her former clerks, Matthew Gourlay, recalled the story of first entering her chambers, nervous, not knowing what to expect. She warmly welcomed him and then suggested he could relax as they were all on a first-name basis at the Supreme Court — he could call her “chief.” Indeed. Thanks, we will.