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Home , Antonio Lamer, Beverley McLachlin, Chief Justice of Canada, Marc Nadon, Supreme Court of Canada, William McIntyre (judge)

80 THE STORIED THIRD BRANCH Vol. 104 No. 2

BEVERLEY McLACHLIN , OF (retired) PHOTO BY ROY GROGAN, COURTESY SUPREME COURT COURTESY GROGAN, ROY BY PHOTO

A Remarkable Journey to the ‘Centre Chair’

Beverley McLachlin, widely regarded Legacy of a Supreme Court Chief Justice December 2017, she was the longest as one of the best legal minds to take a earlier in the summer. serving chief justice in the Court’s his- seat on the Supreme Court of Canada, In her customary self-effacing , tory (17 years, 341 days). stood alone on stage at the Winspear McLachlin shared her thoughts about But it was McLachlin’s little story Centre in Sidney, a quiet seaside town growing up in the 1940s and ’50s on about gardening that offered insight on Island. a ranch nestled in the shadow of the into her personality and her remarks It was September 29, 2019, and the Rocky Mountains of Southern , about the job of judging that pulled her (now retired) Right Honourable Chief and the judicial career she had never audience forward in their seats. Justice of Canada was in Sidney to pro- sought. Over an unprecedented nine- One day, seeking solitude in the gar- mote her crime novel, Full Disclosure, year period, one judicial appointment den of her home with trowel and her memoir, Be Told: My after another led McLachlin directly in hand, clothes a little soiled from Journey Through Life and the Law, both to the Supreme Court of Canada. Even planting lily of the valley, she heard a released in 2019. It was a crowded pub- then, she had not reached her peak. voice. The housekeeper from the res- lication year. Canadian academics Ian After 11 years as a puisne (associate) idence next door introduced herself, Greene and Peter McCormick had also jurist, she became the first female chief mistaking her for the gardener. She published Beverley McLachlin, The justice of Canada. When she retired in wanted to know whether the chief jus- Judicature 81

tice of Canada really lived here. “Yes,” ilies struggling to make McLachlin replied. In a conspiratorial ends meet living on prai- What you have to tone, the woman pressed on — “What’s rie and range lands in try to do as a , she like?” McLachlin, replied with a frozen winters and hot whether you’re on slight smile: “She’s nice. She likes gar- summers. She made Charter (of Rights dening, but she isn’t very good at it.” enduring friendships with Always gracious, but perhaps not a smart, forward-thinking and Freedoms) gardener, McLachlin has been described students from the nearby issues or any other in similar ways by journalists, academ- Piikani First Nation issue, is, by an act ics, colleagues, and perfect strangers Reserve, a Treaty Seven — grounded, unaffected, witty, in touch member-nation of the of the imagination, with her roots and, of course, in com- Blackfoot Confederacy. put yourself in mand of a razor-sharp intellect. They gave her insight the shoes of the McLachlin has frequently explained into indigenous rights different parties, her approach to the adjudication issues that would sur- “ process as she did in an interview pub- face decades later in the and think about lished by the newspaper Supreme Court of Canada. how it looks from in 2015, and repeated elsewhere: Along with academic What you have to try to do as a achievement and an their perspective, judge, whether you’re on Charter astounding work ethic, and really think (of Rights and Freedoms) issues those early years on the about it, not just or any other issue, is, by an act of ranch fostered an endur- give it lip service.” the imagination, put yourself in ing independence and the shoes of the different parties, pragmatism that con- and think about how it looks from tributed to her success. If their perspective, and really think McLachlin had a flat tire on a remote lor’s (honours) degree in philosophy about it, not just give it lip service. country road, she would be more likely and languages in 1965, she was poised to pop the trunk and grab a tire iron to begin the master’s degree in phi- McLachlin was putting herself in than call for help. losophy when she suddenly faced an the shoes of others long before she McLachlin described herself as an unexpected decision. reached the . She grew up in “ordinary girl” during her high school Her future spouse, Roderick (Rory) modest circumstances as Beverley years. But it soon became apparent McLachlin, a biologist, raised another Gietz, the eldest of five children raised that there was nothing ordinary about prospect — “Have you thought about on a remote ranch near Pincher Creek the girl from Pincher Creek. becoming . . . a ?” Her logical, — 135 miles south of and about After finishing high school at the top analytical mind was certainly suited to 85 miles north of the Alberta-Montana of her class, she travelled north to the it. The question prompted discussions border. in Edmonton. She about the similarities between law and Devouring books on a wide range planned to earn a bachelor’s degree in philosophy. Both had a good deal to do of subjects, roaming the rugged land- philosophy and languages, as well as with moral questions about respon- scape on horseback thinking about a master’s degree and a PhD, and then sibility and issues linked to authority what she had read, pulling her weight secure a position as a university pro- and power, guilt and innocence, conse- with endless chores on the ranch, fessor. Some of that happened. But the quences and accountability. boarding in town so she could finish twists and turns of life change even McLachlin did not leap at the idea. high school in a classroom rather than well-crafted plans often unexpectedly, Instead, she sent a letter to the law by correspondence — all helped instill quickly, and dramatically. school at the University of Alberta strong personal values. In McLachlin’s case, those twists with a question — “What is involved in Those years also taught lessons and turns led her away from a long the study of law?” She received a reply about the people around her — fam- academic career. Awarded a bache- in less than a week. Wilbur Bowker, u 82 THE STORIED THIRD BRANCH Vol. 104 No. 2

She soon found a law degree and the master’s early for a law faculty-sponsored in philosophy conferred at the reception at UBC to discover another herself caught up same convocation. It was 1968. early attendee — the Chief Justice of in the full range of Beverley Gietz and Rory the Supreme Court, cases heard in the McLachlin had married the Allan McEachern. After chatting for a summer before she started time, the Chief Justice asked her a ques- appellate court as third year. With law degree in tion that sounded familiar — “Have you well as something hand, the bias against women thought about becoming . . . a judge?” new — interpreting in the legal profession — espe- Her answer: “Never.” Chief Justice cially married ones — suddenly McEachern’s question amounted to the the Canadian loomed large. One law firm “tap on the shoulder” then used to iden- Charter of Rights didn’t even offer articles of tify candidates for judicial appointment. and Freedoms. clerkship — the mandatory Prime Minister and The Charter prerequisite to Bar admission Federal Justice Minister Jean Chrétien “ — to married women. Another (later Prime Minister) were alert to the became a key part firm hired her, but she had to need for more women in the federal of the Canadian share an office with a first- judiciary. She accepted an appointment constitution in 1982 year female associate. Male to the intermediate-level Vancouver articling students had their County Court. She was 37 years old. and guarantees own offices. After just five months, Chrétien called fundamental McLachlin was admitted to again with an elevation in mind. freedoms and the Alberta Bar in 1969, the McLachlin was sworn in to the Supreme same year Rory earned his Court of British Columbia in September democratic rights master of science degree. Two 1981 as a superior court trial judge. She as well as mobility, and a half years later, they was now sitting on a constitutionally equality, and left Edmonton and moved endowed court with both inherent and to Fort St. John, in Northern statutory . language rights. British Columbia, where Four years later in 1985, she achieved Rory engaged in forestry another elevation — she became the field work. A few years later, first woman appointed to the British they moved to Vancouver so Columbia Court of , the prov- dean of law, a luminary in Canadian McLachlin could find more challeng- ince’s highest court. She soon found legal circles, and obviously aware of ing legal work and Rory could pursue herself caught up in the full range of her undergraduate standing, did not his PhD. She joined the leading law cases heard in the appellate court as answer her question. Instead, he sent firm, Bull Housser & Tupper, and in well as something new — interpret- a congratulatory message. She would 1974, McLachlin accepted a position ing the Canadian Charter of Rights and soon answer the question herself — at the University of British Columbia Freedoms. The Charter became a key Dean Bowker admitted her as one of law school. Her dream of academia was part of the Canadian constitution in only seven women law students in a finally fulfilled. She taught evidence 1982. It guarantees fundamental free- class of 65 students. Unwilling to com- and contracts but continued to do work doms and democratic rights as well pletely abandon prior plans, she spent with the law firm. as mobility, equality, and language the summer before law school (and Another life-altering change came rights, all “subject only to such rea- thereafter) working on her master’s with the birth of her son Angus in 1976. sonable limits prescribed by law as can degree in philosophy. With all that was swirling around her, be demonstrated in a free and demo- Three years later, she emerged as her capable husband took on much of cratic society.” Legal challenges to the the gold medallist of her law class the childcare. actions of the federal and provincial — awarded to the student with the Four years later, a chance encoun- governments were now winding their highest academic standing — with both ter changed her life again. She arrived way to the highest courts. Judicature 83

But when Conservative Prime affecting individuals, or as Reference now considers her dissent a segue Minister called cases. “References” represent the to the Court’s decision in Carter v. McLachlin in 1988 offering her the majority of constitutional law cases Canada, which decriminalized phy- position of Chief Justice of the Supreme and arise from the Special Jurisdiction sician-assisted suicide. The Medical Court of British Columbia, she turned accorded to the Court in 1875. Special Assistance in Dying Act followed the it down. Her husband Rory was gravely Jurisdiction means that the Court can Court’s decision. It provides a national ill with cancer. Once again, he influ- hear issues that do not arise from legal framework that gives legally-eligible enced her career with sound advice: disputes in the ordinary course, but patients the option of dying with dig- “take it.” She took it. Tragically, Rory have national importance. References nity in prescribed circumstances. The died two days after her swearing in almost always come from federal and Supreme Court decided that there was ceremony. He was 47 years old. provincial governments seeking an an abundance of evidence from other McLachlin was now on everyone’s opinion on the constitutionality of in the intervening 22 radar for judicial advancement. A year proposed or existing legislation. If years between Rodriguez and Carter after she left the Court of Appeal to the legislation is unconstitutional, the that protections for the vulnerable had return to the ’s superior trial referring government redrafts the been proven effective. court as its chief justice, her career legislation in the interests of passing Later in her time as chief justice, moved in another direction. When laws not doomed to fail. McLachlin found herself face-to-face Justice William McIntyre retired from McLachlin found herself in an awk- with a hot-button political issue arising the Supreme Court of Canada, Prime ward position in 1993 when the Supreme from Prime Minister ’s Minister Mulroney called again. Court was called upon to consider a public attack on the judiciary. She accepted the appointment as challenge to the assisted suicide prohi- Harper was said to have been seek- McIntyre’s replacement and settled in bition of the Criminal Code of Canada. ing a more conservative voice on the quickly. In 1992, she married lawyer When Rory McLachlin was ill with can- Court. His opportunity came when one Frank McArdle. Often described as a cer, he had asked his wife to assist him of the Court’s three mandatory Québec true gentleman with a lot of style, he in ending his life. She had declined. Later seats came open. The question was proposed over the intercom on an Air when the issue of assisted suicide arose whether his nominee, , had Canada flight between Ottawa and in the Court, McLachlin asked then- the requisite “recent legal experience London. Chief Justice whether with Québec .” The require- Eleven years later, McLachlin received she should recuse herself. In their dis- ment reflects the differences between another call from Chrétien, now the cussions, he pointed out that are the French civil law of Québec and the Prime Minister. On January 7, 2000, expected to bring real life experiences English that applies in the she was sworn in as the first female to their work. rest of Canada. . McLachlin’s The Court’s 5-4 majority decision The nominee had practised naviga- judicial career had moved along with in R. v. Rodriguez upheld the prohi- tion and transportation law for twenty appointments made by Prime Ministers bition against assisted suicide based years before he joined the Federal representing both major political par- on the potential for abuse of vulnera- Court of Appeal, a national regula- ties — the Progressive Conservatives ble members of society, among other tory court that hears no Québec civil and the Liberals — with merit and suit- things. McLachlin penned her dissent law. An lawyer filed a Charter ability of the appointments squarely at based on the wording of the Criminal challenge on the same day that Marc the forefront. Code provision that she noted made Nadon took his . The McLachlin had arrived on the bench the prohibition arbitrary — a physi- Québec government as well as the in the early 1980s, a time when Charter cally able person could, by law, commit Québec represent- issues were starting to flourish in the the non-criminal act of suicide, but a ing the province’s 28,000 courts. By the time she arrived at the disabled person could not commit the launched a separate challenge to the Supreme Court of Canada, some cases same act for the same reasons but with appointment. Harper invoked the followed her there. Charter challenges assistance. Court’s Special Jurisdiction to hear a arise in one of two ways — litigation McLachlin, the only justice hearing Reference case and sought an opinion over the constitutionality of legislation Rodriguez still on the Court in 2015, from the Supreme Court. u 84 THE STORIED THIRD BRANCH Vol. 104 No. 2

The Court ruled that Harper’s nomi- messages were clear — the law is not despite her meteoric rise through nee failed to meet the Québec practice the preserve of judges or lawyers. It is the judiciary since first being requirement and declared the appoint- the preserve of the people of Canada. named to the bench in 1981. She ment invalid. The two remaining Judicial rulings must be sensitive to understood that the law had to Québec judges on the Supreme Court consequences and judges must give be meaningful and accessible to supported the decision. some thought to how they are going to , and demonstrated this Harper’s reaction was swift and play out. through judicial decisions written unprecedented. He accused the Chief As Chief Justice, McLachlin also in clear, understandable language. Justice of interfering in the judicial worked hard to achieve greater con- She also appreciated the need for selection process and associated liti- sensus in decision-making on a Court the law to evolve to respond to gation claiming that she had contacted where multiple decisions in a single the needs of a changing society, his office essentially to lobby against case had been routine. The Court’s “uni- and knew that, for public trust the Nadon nomination. vocal” decisions reportedly prevailed to be maintained, the law and the His conduct stunned the legal and 57 percent of the time compared to 42 judiciary had to be relevant to the academic communities and angered percent before her time as chief justice. people they serve. Canadians. As is her right, McLachlin McLachlin has attributed her success had alerted the government to the to encouraging lively debate, respect- Indeed, McLachlin’s leadership from eligibility issue that arose from the ful discussions, and open minds. the “centre chair” throughout her government’s own list of prospective In their book on Chief Justice years as the first female Chief Justice nominees provided to her office in a McLachlin’s legacy, Greene and of Canada has earned her the respect communication that predated any legal McCormick succinctly capture her and gratitude of all Canadians. challenge and — as she explained in an contribution to Canada: *** interview after her retirement from It is evident that McLachlin has the Court — even Nadon’s nomination. put a good deal of energy, thought Note: I am indebted to the work of Ian However, McLachlin’s measured and analysis into her decisions. Greene and Peter McCormick, Beverley approach and strong defence of both She has advanced democratic McLachlin, The Legacy of a Supreme the reputation of the Court and judicial rights by extending the fran- Court Chief Justice, published by James independence prevailed. Four previ- chise to prisoners. She has helped Lorimer & Company Ltd., Toronto (2019); ous prime ministers (from both sides advance Aboriginal rights and McLachlin’s personal memoir (a first for of the House of Commons), joined the ensure that Charter rights are pro- a Chief Justice of Canada): Truth Be groundswell of support for the Chief tected for the most vulnerable in Told, and her novel, Full Disclosure, Justice, condemning what was widely society, including those suffering both published by Simon & Schuster perceived as Harper’s attack on judicial from debilitating diseases, those Canada in 2019, and the many maga- independence and the Chief Justice’s accused of terrorism, sex workers, zine and newspaper offerings published integrity. Following an investigation by those addicted to hard drugs, and throughout McLachlin’s long career. the International Commission of Jurists prisoners. Overall, she has been a in Geneva, the Prime Minister and his strong defender of equality. She MARSHA C. ERB Justice Minister were sharply cen- is Canada’s “reasonable person,” is a retired justice of the sured for their conduct. The incident imagined by jurisprudence. Court of Queen’s Bench highlighted the fact that the Charter of Alberta, where she granted the Supreme Court of Canada Prime Minister served for 16 years. She the power of oversight of the govern- reflected the thoughts of many was a member of the ment and the civil rights of Canadians. Canadians in his congratulatory 2012 inaugural class Despite her crowded work schedule, message to the chief justice on her of the Master of Judicial Studies degree McLachlin rarely missed opportuni- retirement in December 2017: program at Duke Law School. She now ties to speak with law students about Chief Justice McLachlin remained resides on Vancouver Island, B.C. the challenges ahead for them. Her grounded and down-to-earth