As the 'Mclachlin Court’s' first decade draws to a close next month, Canada’s top judge shows no sign of losing her 'feu sacré'—the explanation predecessor Antonio Lamer gave for stepping down in 2000 after ten years as chief justice.
On the contrary, after 40 years at the Bar, including 20 on the Supreme Court’s Bench, Chief Justice Beverley McLachlin, 66, displays as much gusto for her job as when she was sworn in as chief justice in 2000.
The 17th Chief Justice of Canada is also on track to becoming one of the longest-serving leaders in the court’s 134-year history.
By 2014, she will have eclipsed the 19th-century record of Sir William Ritchie, who was top judge for 13 years and 8 months. And if she stays on until age 75, her 29-year stint at the Supreme Court would be surpassed only by Sir Lyman Poore Duff, who retired in 1944 after 37 years’ service on the court.
As she approaches her 10th anniversary as chief justice on Jan. 7, 2010, her energy, stamina and discipline still impress and confound those around her. She keeps up a killer pace: presiding over weighty and complex appeals by day, smiling her way through frequent diplomatic, arts and charitable functions by night and traveling domestically and abroad to deliver 35 to 50 speeches annually to lay and professional audiences alike.
'Like Bertha Wilson, she lives her life like she has a bee chasing her,' comments Eugene Meehan, chair of Lang Michener’s Supreme Court practice group.
Retired Supreme Court Justice Jack Major, who left the court in 2005, suggests that her successful efforts to reach out to the public might be the defining accomplishment of her first decade as chief justice.
'I think that she has presented the best public face of the Supreme Court to the public of any of the chief justices of my time,' he says. 'And I would say of all time, because the court’s judges were more and more isolated the further you go back in the court’s history. She is very conscious of going to law schools, Bar conventions, and actively participating and being available to groups and to people. That’s been a very big plus.'
The Supreme Court’s public relations have dramatically improved since its first female chief justice took over the reins with an avowed goal of making the court accessible to all Canadians.
She kicked off her term as chief justice in 2000 by answering questions from the Ottawa press corps at an unprecedented news conference. The McLachlin Court then proceeded to become the first in the world to hold media lock-ups to brief reporters in advance about exceptionally complex and important judgments. The court broke new ground again this year by launching live webcasts of most of its appeals.
The court also recently threw open its doors by making it possible for the public to take virtual tours of its previously unseen spaces. Would you like to see the view from the chief justice’s desk? Are you curious about the round wooden conference table where the judges argue and deliberate? They are a click away at scc-csc.gc.ca.
And for those who prefer to sink their teeth into the Supreme Court’s docket, the court began posting appeal factums on its website this year.
As the chief justice told The Lawyers Weekly in 2002, 'this is the public’s court. It’s a public institution and the more people know about it, the better. We strengthen our democracy and we make Canada a better place.'
But transparency has its limits. The court recently ordered its law clerks not to participate in an academic study of their role in Supreme Court decision-making.
During Chief Justice McLachlin’s tenure the court has also experienced a technological revolution, including supplying in-courtroom laptop computers linked to the Internet and to appeal documents for the judges, counsel and reporters.
This progress was made possible by the success of the chief justice and the court’s registrars in gaining more resources for the court. In 2009 the court’s budget was almost twice that of the Lamer Court in 1999 ($29 million versus $16 million). Court staff grew by nearly one third—to 201 full-time-equivalent positions.
Insiders say Chief Justice McLachlin is an able administrator and runs a happy and collegial court. Respected by her fellow judges for her intellectual rigour and work ethic, she is also appreciated because she solicits, and listens to, their views. Personality conflicts and power struggles which, at times, loomed large in the Lamer Court have not been prominent at the McLachlin Court.
Court statistics indicate the court remains very efficient. In 1998, 16.7 months was the average time between an application for leave to appeal and the court’s judgment. In 2008 the gap was 16.9 months.
Although the Bar has complained, on occasion, that the court was not working hard enough, particularly after the judges sat on only 53 cases in 2007, according to the chief justice, 2007 was 'a blip.' Last year the court heard 82 appeals—a number comparable to that heard by other high courts.
During its first decade, the McLachlin Court has charted a fairly steady, even-keeled course—partly because the anti-Charter political winds that buffeted the Lamer Court have died down.
Chief Justice McLachlin remains one of the court’s most prolific writers, continuing her habit since she joined the court in 1989. According to court statistics, since 1989 she has heard 1,671 appeals, determined 3,508 leave to appeal applications, and authored 364 judgments. She is an intellectual leader in the areas of tort, evidence, and civil liberties. Landmarks she has penned (or co-authored) since she became chief justice include: Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, which struck down as unfair the immigration law’s security certificate regime; R. v. Sharpe [2001] 1 S.C.R. 45, which read down, based on privacy and free expression considerations, aspects of the law prohibiting child pornography; and Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, which rolled back anti-labour case law, and established that collective bargaining is constitutionally protected.
'She has provided tremendous intellectual leadership to the court, both in the rigour of her own legal analysis, but also she…has tried to foster consensus on the court,' notes Osgoode Hall law school professor Patrick Monahan.
Consensus is another of the chief justice’s avowed goals. Court statistics show that from 2000 to 2008, the average annual rate of unanimous judgments on the McLachlin Court was almost 74 percent—similar to the Lamer Court. But this number includes many judgments with concurring opinions. Meehan notes that practitioners still find themselves scratching their heads at times, when the court issues separate concurring reasons, or reasons which concur in part, especially in Charter cases.
'You almost need two pieces of graph paper Scotch-taped together to figure out who’s saying what on an issue-by-issue basis,' he observes. 'Should a lawyer in Canada need two pieces of graph paper to decipher a Supreme Court judgment so as to then advise a client?'
The Chief Justice’s frequent international travel has undoubtedly raised the court’s profile and prestige, but it has raised eyebrows as well (her office declined to release specifics of her travel and spending in this regard).
One court watcher speculated that the court’s judgments are weaker due to her absences.
However, Major says a modern-day Supreme Court chief justice doesn’t have the luxury of shutting herself up in the court’s ivory tower — she must juggle her many responsibilities, which include heading the Canadian Judicial Council and chairing the council for the Order of Canada.
'I think [a chief justice] is sort of put in the position of Hobson’s choice,' Major says. 'If you don’t travel you, or the court, are accused of being remote. She is very gifted intellectually [but] I don’t think that her travel, whatever it is, has affected the judgments or interfered with the court.' n
Back
