Beverley McLachlin

Early Life and Career

Raised near Pincher Creek, Alberta, McLachlin was the eldest of five children. Her parents, Eleanora Kruschell and Ernest Gietz, were fundamentalist Christians who ranched and farmed.

In 1967, McLachlin married Rory McLachlin; he died of cancer in 1988. The couple had one son, Angus. In 1992, she married Frank McArdle.

McLachlin had not considered a career in law until she was persuaded by her first husband, and by a professor, that a tough-minded woman could break through the institutional barriers of the predominantly male legal profession.

She acquired a bachelor’s and then master’s degree in philosophy at the University of Alberta and attended the university’s law school, graduating in 1968. After her call to the Bar of Alberta in 1969, her first job was with the Edmonton firm of Wood, Moir, Hyde & Ross. In 1971, she moved to Fort St. John, British Columbia, and joined the firm of Thomas, Herdy, Mitchell & Co. Relocating to Vancouver in 1972, she practised at the firm of Bull Houser Tupper until 1975.

She was a tenured associate professor at the University of British Columbia Faculty of Law from 1974 to 1981.

Meteoric Rise

In 1980, at the age of 37, McLachlin was appointed to the County Court of Vancouver. A year later, she was elevated to the Supreme Court of British Columbia and in 1985 to the B.C. Court of Appeal, where she was the first woman justice. In 1988, she became the first female Chief Justice of the Supreme Court of British Columbia (see Courts of Law).

In 1989, at 45, McLachlin’s meteoric rise culminated in her appointment to the Supreme Court of Canada by Prime Minister Brian Mulroney. Eleven years later, on 7 January 2000, Prime Minister Jean Chrétien appointed her the country’s 17th chief justice and the first female chief justice of a Commonwealth nation’s supreme court.

In mid-2013, McLachlin passed William J. Ritchie as the longest serving chief justice of the Supreme Court of Canada.

McLachlin often stated that she envisioned no career path, and was invariably surprised when an offer would result in her rising another step up the legal ladder. However, she was also aware of her position as a pioneer in a profession that was once an all-male preserve. She expressed satisfaction that young women lawyers perceived her as a ground-breaking role model.

Supreme Court of Canada

McLachlin arrived at the country’s highest court at a fractious time. The presiding chief justice, Antonio Lamer, was an outspoken former criminal lawyer from Montréal. Under his leadership, a slim majority of the court — dubbed the Gang of Five — was refashioning aspects of criminal law perceived as unfair to the accused, such as the ability of police to interrogate suspects and the admissibility of confessions (see Cook Case).

Conservative-minded politicians and police, already skeptical about the degree of change rooted in early Charter of Rights and Freedoms decisions, had become increasingly vocal opponents of the Lamer court.

Concerned by the public clamour that can result from contentious decisions, McLachlin found herself largely an outsider to the Gang of Five. Once she took over as chief justice, the court became a more centrist institution. She sought unanimous decisions among the nine justices whenever possible and became the main spokesperson for the court.

In judgments, speeches and media interviews, McLachlin extolled the virtues of an independent court whose role was to act as a check on democratic excess, yet which respected the ultimate supremacy of elected officials (see Judiciary in Canada).

“I think the court belongs to the Canadian people and it should reflect the Canadian people.” — Chief Justice Beverley McLachlin in the National Post (2015)

McLachlin was uncomfortable that Supreme Court judges had fallen into a pattern of isolation or factionalism, communicating with each other primarily through inter-office memos. She encouraged them to communicate more in person and convene regularly as a group.

She also moved to reduce the number of individual reasons for judgment appended to many of the court’s decisions, particularly concurring reasons. (The Supreme Court typically issues decisions with majority and minority reasons, each written by one of the nine judges writing for either the majority of the court, or the dissenting minority. In some cases, judges also issue their own set of reasons for concurring with the majority or minority.) McLachlin viewed concurring reasons as an unnecessary indulgence that confused the court’s rulings. From 2000 to 2008, the court significantly reduced the number of concurring reasons it released and achieved a 74 per cent unanimity rate with its decisions — up from 58 per cent between 1990 and 2000.

McLachlin’s Judicial Record

McLachlin’s decision style could best be described as independent-minded and cautiously pragmatic. As her career progressed, legal scholars invariably found McLachlin difficult to pin down.

She made waves with a 1985 judgment she wrote while on the Supreme Court of British Columbia, ruling that adults accused of sexually assaulting children can use consent as a defence, provided they were not in a position of authority (see also Sexual Assault).

As a B.C. Court of Appeal judge, she wrote well-regarded decisions defining the Charter’s right to equality. She saw the law as an “organic” entity that grows and transforms in keeping with the evolution of societal views — known as the “living tree” doctrine. McLachlin saw this conception of gradual, tempered growth as quite different from the sort of judicial activism that had angered opponents of judicial power since the 1982 enactment of the Charter of Rights and Freedoms.

McLachlin revealed the core of her judicial philosophy in a lecture she delivered at the University of Saskatchewan in 2001, observing that courts can justify making substantial changes to the law if, in doing so, they are reflecting clear changes in social values. Even then, she cautioned, courts ought to embark on these changes only when legislators have failed to address an underlying, pressing problem.

She was notable for her unwillingness to intrude on government budgetary priorities. In a 2004 case known as Auton v. British Columbia, for example, she ruled that it would not be unconstitutional for British Columbia to discriminate against autistic children by failing to provide them with intensive behavioral therapy.

Cautious and incremental, McLachlin embraced the notion of an ongoing “dialogue” between the judicial and legislative branches. While criminal law and Charter cases invariably ranked first, her court regularly authored key decisions in areas such as administrative law, family law, business law, press rights and intellectual property.

“Democracy is a complex affair,” McLachlin told the National Post in 2015. “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.”

Early in her tenure on the Supreme Court, McLachlin was cast as a civil libertarian with a passion for free speech. In decisions such as R. v. Zundel, R. v. Keegstra and R. v. Sharpe, she espoused the virtues of free expression in speech and artistic renderings. In RJR-MacDonald Inc. v. Canada, she concluded that the federal government had gone too far by introducing a near-total ban on tobacco advertising (see Tobacco Advertising Ban Unconstitutional).

At the same time, in a decision that pleased liberals, in R. v. R.D.S., McLachlin endorsed the notion that a Black judge could rely on her life experiences to observe that police often lie or overreact when they deal with members of racialized communities.

Then, in a minority dissent she wrote in a 1991 decision, R. v. Seaboyer, McLachlin caused a backlash in the feminist movement. The case involved the extent to which individuals accused of sexual assault can gain access to their accuser’s third party records such as rape crisis counselling or psychiatric therapy. McLachlin argued that the right of an accused to obtain full disclosure of pertinent evidence was paramount. However, in subsequent decisions, she underlined the vulnerability of sexual assault complainants and the necessity of offering women equal treatment under the law.

Her conservative side was frequently evident in decisions such as Babcock v. Canada (2002), in which McLachlin endorsed the Crown’s ability to refuse disclosure of documents based on Cabinet confidences.

In the 2003 case of Starson v. Swayze, she endorsed mental health adjudication boards being empowered to make medical treatment decisions against the will of patients.

In a close-watched case involving the constitutionality of parents or teachers using force to correct children (Canadian Foundation for Children, Youth and the Law v. Canada), she refused to remove the right to administer corporal punishment in 2004.

Deputy of the Governor General

In the event of the death, removal or departure of a governor general, the chief justice of the Supreme Court of Canada acts in this capacity until the appointment of a successor or the governor general returns. In 2005, Governor GeneralAdrienne Clarkson was in hospital for a pacemaker operation, during which time McLachlin gave royal assent to the Civil Marriage Act, which legalized same-sex marriage in Canada on 20 July (see Act (Statute)). The Supreme Court had made clear in a December 2004 reference that the federal government had a duty to provide access to civil marriage for same-sex couples who wanted to marry (see Marriage in Canada).

Indigenous Rights

McLachlin’s careful imprint was on display again in a 1999 Indigenous case, R. v. Marshall, which involved the right to fish for eel. Writing in dissent, McLachlin warned that the majority judgment was unduly, expansive and would create “undefined rights” that would be difficult to limit as time went on.

The Marshall judgment kindled immense controversy. The court ultimately issued an exceedingly rare clarification of its initial judgment, proving McLachlin’s foresight and adding to her reputation as an astute, middle-of-the-road jurist.

Under McLachlin, however, the court became a champion of Indigenous rights. It gradually developed and entrenched the notion that governments must consult and accommodate Indigenous people prior to making decisions that could affect unproven rights and title claims.

In 2014, McLachlin authored the Supreme Court’s unanimous decision in the Tsilhqot'in Nation v. British Columbia case (see Tsilhqot’in). The landmark ruling clarified the requirements for establishing Aboriginal title: that an Indigenous nation must first prove occupation, and then must prove continuity and exclusivity of that occupation.

Outside the court, in a speech delivered at the Global Centre for Pluralism in 2015, McLachlin became perhaps the highest ranking Canadian official to say that Canada attempted to commit cultural genocide against Indigenous peoples, calling it the “most glaring blemish on the Canadian historic record.” Speaking the week before the final report of the Truth and Reconciliation Commission was to be released, McLachlin said,

“The objective — I quote from Sir John A. Macdonald, our revered forefather — was to ‘take the Indian out of the child,’ and thus solve what was referred to as the Indian problem. ‘Indianness’ was not to be tolerated; rather it must be eliminated. In the buzz-word of the day, assimilation; in the language of the 21st century, cultural genocide.”

In another landmark decision mainly written by McLachlin in 2017, the Supreme Court argued against the Ktunaxa people’s grievance that a proposed ski resort in the Jumbo Valley in British Columbia would cause the Grizzly Bear Spirit they worship to departthe area (see Indigenous People: Religion and Spirituality). The decision noted that the constitutional guarantee of religious freedom protects beliefs and religious practice, but does not protect the object of those beliefs. As such, the ski resort could be built on sacred lands.

Writing Style

McLachlin approached the writing of judgments as an act of love and craftsmanship. She aspired, above all, to write clearly in a manner that was accessible to both the public and the legal profession. Despite her heavy administrative role, she was one of the busiest decision-writers on the court. While not known for literary elegance or pungent phrasing, her writing was incisive and carefully targeted key points.

The Court and Canadians

McLachlin paid close attention to how the court was perceived in different regions of the country. Fluently bilingual, she was particularly attuned to feelings in Québec, where the Supreme Court of Canada had been targeted by nationalists as a bulwark of central Canadian federalist thought. McLachlin ensured that court services were equally accessible in both official languages and that cases invoking Québec’s Civil Code provisions were given a high priority.

McLachlin supported an up-to-date museum in the Supreme Court building. At her behest, a sophisticated website was created to provide extensive historical information, explain the judicial role and provide access to all decisions and a large array of statistics detailing the work of the court.

Aware of the media’s role in conveying the work of the court, McLachlin assisted journalists in their coverage and introduced measures such as media lock-ups, where reporters receive explanations from court staff about important decisions prior to their release.

McLachlin and Harper

As chief justice, McLachlin was chair of the 39-member Canadian Judicial Council (CJC), a powerful body composed of all the chief judges and deputy chief judges of every federally-appointed court in the country.

In 2006, the government of Prime Minister Stephen Harper announced a plan to re-make the Judicial Advisory Committees, located in each region, that decide on applications for federal judicial vacancies. The changes would have given government appointees a majority on each committee. McLachlin expressed the CJC’s serious dissatisfaction with the changes, which went ahead despite her opposition.

She confronted the federal government again in 2014, during a fracas over Harper’s nomination of Federal Court of Canada Justice Marc Nadon to occupy one of three designated Québec seats on the Supreme Court bench.

Nadon’s nomination was challenged in court, and in its ruling, the Supreme Court said that Nadon did not fit the constitutional criteria for representing Québec on the Supreme Court because he was a Federal Court judge.

Controversy erupted when officials in the Prime Minister’s Office suggested that it had been inappropriate for McLachlin to phone Justice Minister Peter MacKay — months earlier in mid-2013 — to warn him of constitutional problems if the government nominated Nadon.

McLachlin’s office responded by stating that it was entirely appropriate for a chief justice to have provided that sort of advice prior to a nomination. Her position was later endorsed by legal academics, newspaper editorialists, the president of the Canadian Bar Association and, ultimately, by the Geneva-based International Commission of Jurists, all of whom indicated that Harper and MacKay had unfairly attempted to politicize the actions of a chief justice, who had simply been doing her job diligently.

During McLachlin’s tenure as chief justice, the Supreme Court ruled against legal matters central to the government’s platform, including the legality of sex work (2013), Senate reform (2014), assisted suicide (2015), mandatory minimum sentencing for gun crimes (2015), and whether Omar Khadr was an adult offender (2015).

Retirement

In June 2017, McLachlin announced her intention to retire from the bench on 15 December 2017, nine months before her mandatory retirement from the Supreme Court at age 75.

Honours and Awards

In addition to the dozens of honorary degrees she has received from universities across Canada, McLachlin has been honoured or awarded:

• Commander of the Order of St. John (2006)
• Commander of the Order of the Legion of Honour, Government of France (2007)
• Visitor, Massey College, University of Toronto (2017)
• G. Arthur Martin Criminal Justice Medal, Criminal Lawyers’ Association (2017)
• Companion, ​Order of Canada (2018)