Building consensus

Building consensus
Photo:Colin Rowe
Canada’s chief justice chooses her words carefully as she reflects on how she would like history to remember the McLachlin court. “I would hope that I’m seen as a competent jurist who did her best to decide cases that came before her as well as she could and conscientiously,” offers Beverley McLachlin. “I would hope with respect to my role as chief justice, I’m seen as having presided over a productive, respected court.” In keeping with her no-nonsense style, she adds she is not one “for shopping lists for the court, bucket lists for my life.”

For those keeping track, however, McLachlin’s list of accomplishments is astounding — and still growing. On Sept. 22, the country’s first female top judge adds the distinction of becoming the longest-serving chief justice in the Supreme Court of Canada’s 138-year history, surpassing Sir William Ritchie, who served as chief for 13 years and eight months, ending when he died in 1892. Early next year, McLachlin also marks 25 years on the high court, making her one of the most seasoned Supremes of all time. All this as she heads into the final stages of her judicial career. She turns 70 on Sept. 7, so she must retire from the bench within five years, in keeping with the mandatory retirement age of 75. If she stays on until the end, she will have been eclipsed only by Lyman Duff, who sat on the Supreme Court for 37 years.

In an early May interview in McLachlin’s office, overlooking the sun-splashed Ottawa River and Parliament Hill Peace Tower, she asserts she does not have any grandiose plans for her final years on the court, where she has sat since March 1989, when then-prime minister Brian Mulroney promoted her from chief justice of the British Columbia Supreme Court. Eleven years later, in January 2000, she replaced Antonio Lamer as Canada’s top judge.

McLachlin contends her objectives in her remaining time on the court are much as they have been throughout her tenure. “I think my goal is the more modest one of trying to make sure that we really come to grips with the issues we are facing in each case,” she says. “Do we really understand the nature of the dispute and have we expressed our result in a way that makes it possible to apply the law without too much difficulty and that furthers respect for the law? These would be the kinds of things that I think about every day.”

It’s vintage McLachlin, or at least the part of her she has shared publicly over the years. Measured and modest. Careful and contained. Judiciously and pragmatically refraining from venturing too far afield. It’s much the way that court analysts and insiders have described the McLachlin court itself. “I think the court at this point in time very much bears the McLachlin hallmark, and although there are exceptions, I see the court as a cautious, as a pragmatic and compromise-seeking court,” says Jamie Cameron, a constitutional law professor at Osgoode Hall Law School. “I think under her tenure that court has been fairly moderate and we’ve seen perhaps a more prudent, minimalist application of the law,” adds Emmett Macfarlane, a University of Waterloo political scientist and author of the 2013 book Governing from the Bench: The Supreme Court of Canada and the Judicial Role.

Macfarlane and Cameron stress they are being descriptive rather than critical — that caution, prudence, and minimalism can be positive, depending on whether one believes Supreme Court rulings should be big and expansive or more modestly narrow and incremental. While there is debate about whether there is a price to be paid for legal caution — more on this later — there is a general consensus among court watchers that there is now higher public regard for the institution than there was when McLachlin assumed the chief judgeship.

On the eve of becoming the longest-serving chief, Canadian Lawyer takes a look at how the chief justice has skillfully employed what Supreme Court analyst Adam Dodek describes as “soft power” — gentle persuasion on the inside and gentle diplomacy on the outside — to deflect criticism from a court widely believed to be under siege when she assumed the leadership. “She has a job as the chief justice where you have very little formal power and much of what she has accomplished has to be through persuasion, what you might call soft power,” says Dodek, a University of Ottawa law professor and co-editor of Public Law at the McLachlin Court, the First Decade. “As an effective leader I think she has set the tone and her colleagues have bought into this collective vision of the role of the court.”

Dodek, who clerked at the Supreme Court in 1999-2000, views the current chief as a highly successful ambassador for a bench that was going through a bit of a public relations crisis when she took over. It was taking hits from members of the federal Reform party, right-wing columnists, and several academics, who vocally accused the Supreme Court of what they decried as judge-made law, or overstepping the will of elected legislators. Those were the days when the bench was handling numerous monumental cases involving the 1982 Charter of Rights and Freedoms, and under fire in some corners for granting too many rights to the criminally accused. “I think the court as an institution when she took over was in a vulnerable position,” says Dodek, expressing a widely held sentiment. “It was being attacked by the leading opposition party for judicial activism, it was getting a lot of negative coverage in the press. . . . If you look at where the court was in 2000 when she took over and where it is now, it’s a much stronger court as an institution with her as a leader.” Says Cameron: “There was a lot of negative attention in the 1990s and she’s part of that experience. It’s interesting to me that since she’s been chief justice, the negative headlines, the negative editorials about the problems associated with the power of judges, that stuff has pretty much dropped off.”

Court watchers contend the turnaround is partly the result of circumstance — the chief justice herself says most of the big Charter issues have been settled and the court is now in a period of fine tuning. “There are fewer issues now,” McLachlin offers as a reason for muted criticism. “I think the heady days of the ’80s and early ’90s, when you had this constant stream of Charter issues, simply because you had a new document and it had to be interpreted and there were questions coming up all the time, that has slowed, which is appropriate and natural in the constitutional evolution of things,” she says.

But attributing relatively smooth sailing at the Supreme Court to calmer Charter waters is only part of the story. The other element is said to be McLachlin herself. The day after she was elevated to chief justice, she held a press conference where she vocalized her goals for the court, one of which was to increase consensus. The court was widely decried as being too fractured at the time and, as a consequence, handing down too many divided rulings that left the legal community confused about the direction of the law. Another aim was to increase public outreach, which McLachlin has pursued at a frenetic pace. She has seized technology to provide online tours of the court, implemented media lockups so journalists are briefed about judgments before they are released, introduced online streaming of hearings, posted written arguments online, delivered a dozen or more speeches a year in Canada and internationally to educate the public about the working of the court, freely granted media interviews, and regularly attended official social functions in Ottawa. On any given Monday morning, it is not unusual to see a photo of her that was taken at a weekend event, often involving the arts. “She is everywhere,” says former Supreme Court justice Marie Deschamps, who stepped down last year. “She is an outstanding ambassador.”

Deschamps, who joined the court in 2002, recounts how she was taken by surprise when the chief informed her one of her expected duties was to help shed light on the court. Deschamps says she only accepted speaking invitations close to home in those days because she had a young family, until the chief advised her it was time for her to expand her horizons beyond Ontario and Quebec.

For her part, McLachlin explains “it’s important not to be this closed silo, this ivory tower that never communicates with other institutions or the public.” She modestly rejects, however, the premise that the court was a closed shop until she took over, saying her efforts at reaching out are part of a continuum that began with her predecessors, who initiated press briefings, giving speeches, allowing cameras in the courtroom, and creating the position of executive legal officer to speak on the court’s behalf.

Another McLachlin initiative, however, is viewed as being uniquely her own — a quest to increase consensus on the court, so judgments have fewer differing voices and therefore provide more certainty and clarity for the legal community and the public. The chief, who is formally only one of nine judges on the court and does not have the same influence, say, that the prime minister has over his cabinet, must use the power of persuasion when she wants the court to speak with one voice.

Deschamps, when asked how she would describe the chief justice’s leadership style, says first and foremost, she is a “consensus builder.” The way it works, Deschamps explains, is after each hearing, all judges gather in their conference room, where the chief justice summarizes what she thinks are the main issues, followed by an informal discussion. “The chief would participate, but she’s very careful, she’s more like asking questions,” says Deschamps. Sometimes, the bench reaches consensus after the informal discussion, other times they don’t, so the judges take turns formally sharing their thoughts on an issue, in reverse seniority, so the junior judges are not intimidated by the senior judges. After that, the chief canvasses for volunteers to draft the decision. She then finalizes the author or authors in an agenda she distributes every two weeks, taking into account such things as expertise, a judge’s availability, and the one, or more than one, who best express the sentiment of the majority at that point. In the pre-McLachlin era, there was no informal discussion before judges spoke in turn, and senior judges got their pick of rulings they wanted to write.

“Another technique that [McLachlin] would use is that she would write a memo listing difficulties that she sees,” elaborates Deschamps. “She will highlight areas where the first drafter can emphasize or tone down so that he can bring in more voices,” she says. “If a judge is really firm on something there’s no point in trying to force a consensus, she will not waste her time, but if she sees there are areas that are really soft and it’s not a question of principle, she might use those techniques.” Deschamps emphasizes the chief justice is always careful to use official channels, such as memos, and “she is not the kind to come into an office and twist an arm.”
McLachlin concurs she has never tried to discourage dissenting opinions; in fact she has written a fair number herself, particularly during her first decade on the court, when she was among the judges most likely to disagree with her colleagues. However, she affirms she tries to encourage discussion so differences can be ironed out if some judges are not too far apart on an issue. “One of the things we’ve been working towards in recent years, and I don’t take credit for this, I think it’s my colleagues, all of us, try to eliminate unnecessary concurrences, unnecessary voices, and we talk a lot, we discuss a lot,” she says. “It’s this discussion that leads us often to eliminate some of the differences which have been there had we not engaged in it. . . .”

Donald Songer, a U.S.-based Supreme Court of Canada scholar, notes in an academic essay that several judges whom he interviewed for his 2007 book, The Transformation of the Supreme Court of Canada: An Empirical Examination, reported there was “informal pressure to work out differences among the justices.” One judge, for instance, recounted how in post-hearing conferences, “the person designated to write the majority opinion will frequently say something like, ‘If I write the opinion in such and such a way, would that satisfy the concerns that have been expressed?”’ Another judge said he constantly reminds himself “we are not just soloists” but a choir. While he feels free to dissent when his differences on principle are “major,” he “looks first to try to get consensus,” wrote Songer.

John Major, a retired Supreme Court judge who now works in the Calgary office of Bennett Jones LLP, emphasizes the chief justice “can’t tell anybody what to do, she really has to try to, by the power of persuasion, by example, bring people along.” He says McLachlin’s greatest strength in fostering consent is the power of solid written reasoning, which he says can be persuasive enough to bring less-committed colleagues onside. “I think increasing consensus has to be done by the power of persuasion through your writing,” says Major. “If you write a judgment that is compelling, the chances are you’ll get more judges agreeing than otherwise.”

While everyone is free to write if they want, Major points out nobody is going to challenge the chief if she decides she wants to write the majority decision. “If she volunteers that she would like to write, I don’t think anybody would say ‘so do I,’” he says.

McLachlin has far more Supreme Court experience than the rest of the bench — Louis LeBel is second in seniority and he joined the court 11 years after McLachlin. The chief is also a prolific workhorse, writing close to 400 majority decisions in the last quarter century. As chief she has authored many of the court’s most important and high-profile rulings, including the 2007 Charkaoui decision that struck down federal anti-terrorism security certificates, the 2001 Sharpe decision upholding Canada’s ban on child pornography, a 2007 ruling that established a constitutional right to collective bargaining, the 2011 Insite decision that kept open Vancouver’s safe-injection site for drug users, and the 2012 Khawaja ruling, which upheld Canada’s anti-terrorism law. “She got a huge jump on all the other judges and so her depth of experience and her command of the institution give a lot of credence to her leadership,” says Cameron.

The McLachlin court has also handed down significantly more rulings than past courts that are signed “by the court” rather than any one judge, to emphasize unanimity and provide legal clarity. While “by the court” judgments were rare in the Lamer era, the court has done so almost a dozen times under McLachlin’s watch, including rulings in the case of Saskatchewan farmer Robert Latimer, who was charged with first-degree murder in the death of his disabled daughter, the same-sex marriage reference in 2004, and the 2010 decision on Omar Khadr in which the court overturned two earlier rulings that had ordered the young Canadian’s repatriation from Guantanamo Bay, Cuba, as compensation for his Charter rights being violated by visiting Canadian officials.

McLachlin also has a voting record of a legal centrist (neither ideologically liberal nor conservative), which may also help breed consensus, assert academics Andrew Green and Benjamin Alarie, a former Supreme Court law clerk. In a 2009 study, the University of Toronto professors found McLachlin “rests squarely in the middle” of the court in the 106 Charter rulings from 2000 to 2009. “Chief Justice McLachlin’s voting patterns could indicate she fosters co-operation and brings other judges to a common position,” Alarie and Green speculated. They also noted “the chief justice’s power to select panels provides an opportunity to both reduce panel sizes on certain appeals (which raises the likelihood of agreement) and select compositions which are more likely to foster a particular policy outcome.”

McLachlin is also widely credited with presiding over a collegial court — judges work with their doors open, they eat lunch together daily in the judges’ dining room when the court is in session, they have cakes on their birthdays, they’ve done yoga together, and they socialize, albeit minimally, off the job. While collegiality doesn’t necessary foster consensus, having a complement of judges who get along on a personal note, says Macfarlane, can help prevent cliques or voting blocs from developing — the sort of isolating cliques Bertha Wilson, the first woman appointed to the Supreme Court, spoke about in her 2002 biography by Ellen Anderson, or the often-cited “gang of five” that emerged on the court in the Lamer years which, controversially, frequently voted together to beef up rights for the criminally accused.

McLachlin’s collaborative approach is evident in the courtroom, says Eugene Meehan, an Ottawa lawyer and former executive legal officer at the court. “When you argue an appeal in the Supreme Court you notice she looks straight at you, with eye contact, but also noticeably looks right and left along the bench — by her very body language giving every visible sign of both being focused on the legal issue and at the same time being consultative and collaborative,” says Meehan, a partner at Supreme Advocacy LLP, which helps parties prepare appeals.

Despite the chief justice’s efforts, the number of split decisions has not decreased significantly under her leadership, and she once wryly noted unanimity was strongest in her first year as chief justice. Court statistics show that from 2002 to 2012, the average annual rate of unanimous decisions was 72 per cent — which is only marginally better than it was during the Lamer era. However, Macfarlane points out the statistics are misleading because they don’t reflect the fact there are significantly less separate concurring opinions on the McLachlin court, when judges agree on result but disagree on reasons. In other words, they speak with one voice significantly more often than they did under Lamer. Also, he says, McLachlin is far more likely than her immediate predecessors to put all nine judges on a case, instead of sitting seven or five. By doing so, she is increasing the likelihood of dissent because nine judges are less likely than five to agree.

While McLachlin’s quest for consensus has been lauded in the legal community, there is also emerging debate that agreement comes at a cost. Unanimous ruling can produce narrower decisions, in which some elements may be discarded as a trade-off for securing agreement from fellow judges, or broad, vaguely worded rulings in which judges fail to be too specific, contends Macfarlane. “With a unanimous decision that’s been really hard fought for it’s much more likely to read like that, to be that product of compromise where the court is much more cautious,” he says. “I think we sometimes see the language that is the product of this co-operation be more vague than it otherwise would if we had a majority with a sharp dissenting opinion.”

Cameron laments what she considers a lack of debate in rulings involving some of the most pressing questions of our day. She cites, in particular, the December 2012 unanimous ruling in the case of former software developer Momin Khawaja, in which the court upheld the contentious definition of terrorism, a key element of the 2001 Anti-Terrorism Act. Two months after the Khawaja decision, the court handed down another unanimous decision in the case of anti-gay crusader William Whatcott, who ignited a fierce debate between free-speech and anti-hate advocates when he ran afoul of the Saskatchewan Human Rights Code. Unlike two previous Supreme Court decisions dealing with hate speech in the early 1990s, the Whatcott ruling was free of contention. McLachlin, a dissenter in the 1990s, joined the majority this time around.

“The court is so very pragmatic and so very cautious that . . . we’re not seeing a whole lot of evolution in judicial theory about Charter rights and democratic limits,” says Cameron. “I think that to some extent the result is that the Charter’s potential is on hold at the moment.” Cameron contends there is not only a drop in debate over pressing issues, but also a “downward spiral” of victories for Charter claimants. Success rates, which historically have been about 45 per cent, have not risen above 20 per cent in the last three years, she says.

McLachlin flatly rejects suggestions the quest for unanimity can produce bland rulings that omit edginess or sacrifice principle. “I think most of us aren’t very good at watering down, we’re pretty good at standing our ground, and if we feel strongly about something and if we’re not convinced we should change something, we won’t. I think it would be a very bad mistake for a judge to ever say ‘I will leave out something I feel strongly about, I will change something I really care about, something I believe.’ I think that’s the wrong thing for a judge to do, a judge would always regret doing it, and it’s not done, we don’t do it. So it’s more about trying to understand each other and to eliminate misunderstandings than to water down the jurisprudence. We never horse trade, I don’t think, on things that matter.”

Meehan speculates the perception among some lawyers that the court is more cautious — and even more conservative — under McLachlin can be attributed to the sort of appeals increasingly appearing on the docket. “The reality is the court is dealing with normal law now, they’re dealing with tax, with family, with business, with corporate law, intellectual property, mergers and takeovers, and it may be that simply because they’re dealing with more areas of law than they had hitherto done, it’s possible that some people see a move to the right, where in reality it’s simply a move to more businesslike cases.”

McLachlin, while she has no inside knowledge of appeals that will come before the Supreme Court in the next couple of years, predicts the court could take on more cases dealing with communications, commercial law, boundaries between federal and provincial jurisdiction, Charter issues involving clashing rights in Canada’s multicultural society, aboriginal land claims, and review of federal legislation on crime and punishment. She did not specifically mention other highly charged cases: a ruling on the legalization of prostitution is in reserve, and another lower-court case dealing with the right to assisted suicide could easily reach the Supreme Court in the foreseeable future.

Whatever the case, McLachlin shows little inclination to alter the course on her respected and established management style in the autumn of her Supreme Court career.

“We take the cases we’re given, and that come before us, and we try to do the best on each of them,” she says. “The future lies ahead, and there will be new challenges, but I am very proud of the Supreme Court of Canada.”

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