Supreme Court of Canada Chief Justice Beverley McLachlin in her Ottawa office on Jan. 5.  [Photo by Cristin Schmitz for The Lawyers Weekly] Click here to see full sized version.

As she begins her 11th year as Canada’s top judge, Chief Justice Beverley McLachlin says she anticipates that issues of security and diversity will be prominent themes at the Supreme Court in coming  years.

In a wide-ranging, exclusive interview granted to mark her 10th anniversary as chief justice Jan. 7, 2010, the Chief Justice of Canada acknowledged “it’s always difficult to predict the future, but based on what we are living now, I think we will continue to see tensions between individual rights and security concerns—that will be probably a big issue. I think we will continue to see concerns about federalism—the line between provincial jurisdiction and federal jurisdiction—there seem to be a number of issues percolating out there. [And] diversity will continue probably to raise a number of cases. By diversity, I mean that you have minority groups who have particular religious practices or [other practices] that many come into tension with majoritarian practices.”

She quickly adds “of course we will continue to have our usual criminal law cases — criminal law is always very, very important for any nation and for the day-to-day practice of law [and] we continue to do a significant amount of commercial and tort work. We think that’s an important part of the court’s agenda. So those are just some of the things that I think will keep our plate full in the next few years.”

Post-9/11, balancing security and civil liberties has preoccupied both courts and governments, with the Supreme Court mandating several major revisions to Canada’s controversial security certificate regime.

In a major speech last September entitled “The Challenge of Fighting Terrorism While Maintaining our Civil Liberties”, Chief Justice McLachlin warned that successful anti-terrorism measures must not only preserve Canadians’ safety, but their fundamental values and the rule of law as well. Her remarks were applauded by some commentators, but others accused her of overstepping her role and treading on the government’s turf.

“I wasn’t telling the government what to do, and I would never do that,” Chief Justice McLachlin explains. “What I was saying was that in our work as judges this is what we have to look at. We have to look at rights on the one hand. We have to look at security on the other. We have to maintain the balance.”

She says she spoke on that theme, near the 8th anniversary of 9/11, because “I think it’s very important for any legal system, any country, any democracy, to get the balance right between personal rights and freedoms on the one hand, and public security concerns on the other. This is very delicate work. It’s important work. It’s an area where we need balanced decision-making, and I think it’s important for the public to realize that while security concerns are very important and must be considered, there is also something on the other side of the balance, which is rights. And I care—as I think most lawyers and jurists would care—very deeply that we maintain the correct balance, so this is why I refer to it, so that it counters what may seem sometimes to be the dominant ‘fear’ message.”

The chief justice declined comment on Public Safety Minister Peter Van Loan’s statement late last year that the Harper government is considering whether the security certificate regime even remains viable in the wake of recent court rulings.

“That’s the government’s job, I have no comment,” she observes.

Reflecting on the past decade in her walnut-paneled chambers with panoramic views of the Ottawa River and Parliament Hill, Chief Justice McLachlin emphasizes that “the cases” remain her chief focus and biggest challenge, notwithstanding her extensive administrative, representational and other responsibilities as chief justice.

“That’s my preoccupation—that we give the best answers we can in the circumstances on the record to the difficult legal questions that come before us,” she says.

And after toiling two decades in the pressure cooker that is the Supreme Court in the Charter era (longer than all the other judges during that time), the chief justice still obviously harbours a grand passion for “the cases”—evidenced most recently by two nuanced and complex judgments she handed down last month which revolutionize the law of defamation.

Asked to highlight one or two judgments she worked on which give her personal satisfaction as a jurist, she identifies the ground-breaking per curiam commercial law ruling in BCE Inc. v. 1976 Debentureholders, 2008 SCC 69, and R. v. Grant, 2009 SCC 32, the criminal law trilogy she and Justice Louise Charron laboured on for the best part of a year to reconfigure the analytical framework for the exclusion of evidence under the Charter.

“The court worked very, very hard on the BCE case,” the chief justice admits. “I hope it was a useful result in an area where there had been very little law. It was an area where I felt that we needed to have more legal scholarship and principle.

“And when we take on something like the Grant trilogy . . . that’s a lot of work, because we are reviewing a large area of the law and trying to build on what’s been there before in a responsible way. And so these are fairly major projects, and you feel a sense of satisfaction when you finally achieve a good result or what you think will be hopefully a good judgment.”

Of course she qualifies “we can never know whether these judgments will stand the test of time, but we do our very best at the time, and when we feel we have done our best and we have worked very hard at it, then there is a satisfaction in it.”

Chief Justice McLachlin stresses that the judges are working hard to provide the public and the Bar with judgments that offer, and promote, clarity, certainty and predictability in the law.

According to court statistics, from 2000 to 2008, overall 74 percent of the McLachlin Court’s judgments were “unanimous” in the result (but not necessarily without concurring opinions). This is about the same as the 72 percent unanimity rate for the Lamer Court from 1991 to 1999.

Notably, however, the Supreme Court’s concurring judgments (which the Bar generally detest for muddying the jurisprudential waters) dropped by nearly one-third during the past decade, according to previously unpublished court statistics obtained by The Lawyers Weekly.

Thus 19 percent of the Lamer Court’s unanimous judgments had one or more concurring opinions, as compared to 13 percent for the McLachlin Court—a 32-percent drop, the data reveal.

The chief justice says the Supreme Court remains committed to achieving “the greatest degree of agreement that’s possible, having due regard for the importance of vigorous dissents and concurring opinions, and the liberty and responsibility of each of the judges to express their individual opinion and be satisfied with the result.”

Asked to identify her personal high points, Chief Justice McLachlin responds that the Supreme Court appointments made by both the Liberal and Conservative governments (seven judges appointed under her watch) were enormously gratifying. “I have been blessed with a wonderful court,” she says. “A very collegial group of people. All very hardworking. All very intelligent and dedicated, and they have made the job very easy for me.”

Although she previously expressed strong reservations about public vetting for Supreme Court candidates, the chief justices acknowledges that the first (and only) such hearing, pioneered by the Harper government, “was very respectfully done.”

She notes that the judge, Justice Marshall Rothstein, “is on record saying that was a positive thing, and I think it was.”

But she adds “it’s clear that if this is to go forward it has to be done in a non-partisan way, I think, that does not skew the process and make it more political. What we want, surely, for the Supreme Court of Canada or any court, is the best qualified candidate and we are very fortunate in Canada to have had appointments to the Supreme Court, I believe, on merit rather than adherence to a particular political point of view, and I’d like to see that continue.”

She emphasizes “it is not my job to decide how to appoint judges to the Supreme Court. The Prime Minister has that responsibility... so I would defer to his opinion as to how he should go about appointing.”

It was under Chief Justice McLachlin’s chairmanship of the Canadian Judicial Council (CJC), however, that the country’s 39 federal chief justices publicly denounced the Harper government’s 2006 decision to give its appointees a majority—and eliminate the vote for the judicial chairs—on the Canada-wide non-partisan vetting committees for federal judgeships, without prior notice to, or consultation with, the judiciary.

The CJC “urged” the government to maintain the status quo pending “meaningful consultation” and warned, in a strongly worded press release, that the judiciary would continue to participate in the vetting committees only “if the principle of judicial independence is respected and judicial candidates are recommended [by the vetting committees] strictly on the basis of merit.”

Three years after this unprecedented showdown between two branches of government, Chief Justice McLachlin maintains “that making a statement such as that, on a matter central to the core of the operation of the judiciary, is perfectly proper for the Judicial Council to do and may contribute to the discussion on both sides of the issue.”

She elaborates, “the Council considered it very carefully. There were concerns—that was as high as it could be put—and it was felt that it was important to express those concerns. We did. The [vetting] process continued. The fears that some may have had have not been realized, which is good. I think the [current vetting] process is working well.”

As for her own significant role as a legal pioneer—the first female Chief Justice of Canada (among many professional firsts), she confesses she has been taken aback and gratified by the “really positive feedback” from both men and women.

“The number of times young women and girls will talk to me. . . and say how much the example of not just me, but four women on our court, means to them in terms of how they can visualize their future, that is really, really important and affirming. I am convinced that the presence of role models, whether it be in the law or in business, the presence of females in visible positions, has an empowering effect for young girls.”

The chief justice admits she is “very proud” that the high court has four women justices and has no trouble envisioning a female majority. “We had a totality of nine men for over 100 years, so I wouldn’t think it would be the end of the court, or the end of the country,” she laughs.