Symposium: Canada’s Most Towering Judge of All?

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Lawrence David & Richard Albert

Public Safety, Canada & University of Texas, Austin

Canada has had its share of influential jurists but our legal traditions and the larger culture in which they are embedded have deprioritized the mythmaking that attends the construction and expansion of judicial power. A few factors help explain why. For one, the Supreme Court of Canada became the court of final appeal only decades after the enactment of our founding constitution. And even then, the Court’s docket consisted largely of private law questions until well into the 1970s. Public law controversies of high political salience did not regularly take centerstage until after Patriation in 1982, when a progressive menu of rights of freedoms were finally codified against ordinary legislative repeal. Since then, many of our justices have earned prominence at home and abroad for their careful and courageous judgements in the name of Canadian values, including Rosalie Abella, Brian Dickson, Frank Iacobucci and Antonio Lamer. Each could well be described as a towering judge.

But we suggest that another judge towers most above all: our recently-retired Chief Justice, Beverley McLachlin. Her seventeen years as Chief Justice and eleven as an Associate Justice amount to twenty-eight years of total service to the Court and to Canada. This period is remarkable in and of itself. Yet her long tenure on the Court is only one reason for her importance.

The first woman ever to hold the vice-regal office of Chief Justice of Canada, McLachlin has left indelible marks in law and society, in Canada and abroad. She has authored ground-breaking judgments that affect Canadians in virtually every sphere of social activity, sitting on 2,000 appeals and authoring over 400 reasons for judgment. She has fundamentally reinvented the ambassadorial dimensions of the office in its individual and institutional dimensions. She has moreover defended judicial independence in the face of serious tensions with the executive branch of government. And she has helped lead the country in making needed progress in reconciliation with Indigenous populations, the most significant challenge of our present moment.

We have co-authored a paper in which we identify several reasons why Chief Justice Beverley McLachlin must be included on any list of judges described as “towering.” However, in this short post for the joint I-CONnect/IACL-AIDC Blog Symposium on “Towering Judges,” we briefly discuss two important contributions Chief Justice McLachlin has made to the Court as an institution.

Beverley McLachlin can be credited with reinventing the role and Office of the Chief of Justice of Canada. The Office of Chief Justice is formally established in the Supreme Court Act, which further enumerates legal and administrative duties to be performed by the officeholder. Yet the Act and the Rules of the Supreme Court are silent on the Office’s ambassadorial dimensions. Each officeholder therefore has the discretion to make the ambassadorial role what she wishes. McLachlin took this ambassadorial role to heart, fueled by her distinct legal philosophy, affable character, and genuine desire to inspire public confidence in the Court and in the administration of justice in Canada.

As Canada’s first Chief Justice to serve during the Internet era, McLachlin expanded the public visibility of the Chief Justice of Canada, going beyond presiding over public hearings in the Court, or occasionally appearing at conferences held by the Canadian Bar Association. YouTube houses innumerable videos of her speeches at law schools across Canada and abroad, honourary doctorate conferrals, and interviews on popular programs and news channels. McLachlin also inaugurated the annual tradition of Supreme Court Justices appearing at the famed Stratford Shakespeare Festival, where she and a few of her colleagues presided over Shylock’s appeal in the Bard’s celebrated MacBeth. On Canada Day—a statutory holiday during which federal institutions are normally closed—she opened the Court to Canadians, greeting them and taking pictures with families young and old. For a Chief Justice of Canada, this was all otherwise unprecedented. Recognizing the media’s important role in the public discourse, McLachlin also fostered cordial relationships with the news media, giving interviews, and organizing special media-lockups at which journalists are briefed on judgments by Court staff when judgments are released. Her visibility was likely also assisted by her picture frequently appearing in news articles discussing the latest Supreme Court judgment. Over time, Beverley McLachlin literally became the face of the institution that is the Supreme Court of Canada.

But what is most admirable about her reinvention of the Office of the Chief Justice of Canada rests in more than just creating the template for its ambassadorial dimensions. Most impressive is that this reinvention was driven by McLachlin’s longstanding philosophy that the law and the Supreme Court belong to Canadians and exist to serve them. She defined the Chief Justice’s role as containing within it a significant public outreach component designed to maintain a dialogue with Canadians. This seems to have worked: throughout the Chief Justice’s tenure, public opinion polls indicated consistently that the Supreme Court of Canada is the democratic institution that Canadians respect the most.

In addition to reinventing the Office of Chief Justice of Canada and modernizing the Court as an institution, Beverley McLachlin will be remembered also for vigorously defending both from attempts at what Peter Russell has termed the “politicization [of the judiciary] from without.” This phenomenon refers to extrajudicial attempts by political actors to ensnare judicial institutions into clearly politically controversies, which inevitably affects—whether in reality or perception—the institutional independence and integrity of courts.

McLachlin’s most well-known defence of the Office of Chief Justice of Canada arose in May 2014. At the time, then-Prime Minister Stephen Harper made global headlines by accusing McLachlin of inappropriately interfering with his ill-fated appointment of Marc Nadon to the Supreme Court of Canada. Referring to the Chief as a mere “sitting judge”, Harper and the Minister of Justice, Peter McKay, insisted that McLachlin had tried to contact the former in order to flag Nadon’s potential ineligibility for appointment to fill one of the three Supreme Court seats constitutionally reserved to the province of Quebec. It was, in their view, inappropriate for the Chief Justice to pronounce herself on a controversy that would likely end up before the Court. Confronted with these allegations, McLachlin did not buckle. McLachlin issued a press release addressed to Canadians, in which she concisely set out the facts and timeline of events that would facilitate an objective assessment of the situation. As later corroborated by several observers, McLachlin’s discussion of potential eligibility issues with Nadon took place within the Minister’s long tradition of consulting with the Chief Justice of Canada, among other actors, prior to filling a vacant Supreme Court seat. There had been nothing inappropriate in McLachlin’s conduct. What is more, McLachlin had flagged the eligibility issues months before the Governor General in Council referred the matter of Nadon’s eligibility to the Supreme Court of Canada. Canadian political actors rose to her defense, condemning the Government’s attack on the Court and the Chief, including two former Canadian Prime Ministers, the Council of Canadian Law Deans, and twelve former Presidents of the Canadian Bar Association. This support speaks volumes to the high esteem in which McLachlin is held.

The Idea of a ‘Towering’ Judge

At a high level of abstraction, we can identify qualities that towering judges across jurisdictions share. They may be distinguished by their exceptional qualities as jurists, their outstanding contributions to the law, and the social impact of their judgments. They may be thought leaders who see the law as a vehicle toward a better society, breathing life into the imprecisely-worded promises of constitutional liberty. They may have a special capacity to forge consensus on the most sensitive issues, or to build bridges between viewpoints that seem irreconcilable. And they may, by the force of their will and reason, pull the country out of a moral morass to establish a shared objective that gives new meaning to the polity and its peoples. In all cases, towering judges embody a unique combination of attributes that set them apart from their colleagues on the bench, elevating them into the pantheon of figures whose names will echo through the ages. We explain in our paper why Chief Justice McLachlin fits this bill for Canada. We have, in this short post, highlighted only two points that speak to how she defended the Court and reinvented the Office of Chief Justice of Canada. She leaves behind a jurisprudential legacy that cannot be addressed in a short post. You need not take our word for it—you will soon be able to read about it for yourselves when our paper is published.

Lawrence David is Legal Counsel, Public Safety Canada and Law Clerk to the Hon. Justice Rosalie Abella (2015-16).

Richard Albert is William Stamps Farish Professor in Law, The University of Texas at Austin and Law Clerk to the Rt. Hon. Chief Justice Beverley McLachlin (2003-04).

Suggested Citation: Lawrence David and Richard Albert, ‘Canada’s Most Towering Judge of All?‘ IACL-AIDC Blog (11 March 2019)