1059 Tribute to Beverley McLachlin

Beverley McLachlin: The Legacy of a Supreme Court Chief Justice
by Ian Greene and Peter McCormick

Toronto: James Lorimer & Company, 2019
$29.95 / 9781459414402

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Truth Be Told: The Story of My Life and My Fight for Equality
by Beverley McLachlin

Toronto: Simon & Schuster, 2020
$24.95 / 9781982104979

Both books reviewed by May Q Wong

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Beverley McLachlin: The Legacy of a Supreme Court Justice, by Ian Greene and Peter McCormick, takes a social science and public policy perspective on Beverley McLachlin’s judicial career. The book does not read like a regular biography (which the authors acknowledge), but more like a textbook. Disappointingly, in contrast to Beverley McLachlin’s autobiography reviewed below, the writing is not always clear when explaining the importance of certain court decisions, especially to a layperson like me. As well, some of the timelines are confusing and the narrative is at times repetitive. Although neither are lawyers, Greene and McCormick are long-time court watchers, having studied “the leading decisions of the Supreme Court of Canada and the judicial decision-making process during our academic careers (pp. 8-9).” They are therefore eminently qualified to compare McLachlin’s impact as Chief Justice of the Supreme Court of Canada with that of her predecessors, and they are her enthusiastic supporters and cheerleaders.

Beverley McLachlin is also a good primer on the Supreme Court of Canada and its relation to Canada’s laws and by implication its citizens. The importance of the Supreme Court of Canada was elevated in 1949, when amendments to the Supreme Court Act ended appeals to the British Judicial Committee of the Privy Council, making the Supreme Court of Canada the highest national court of appeal.

But it was the Canadian Charter of Rights and Freedoms (s 8, Part 1 of the Constitution Act, 1982) that has impacted the work of the Supreme Court of Canada the most, particularly during McLachlin’s tenure, as Greene and McCormick note:

The Charter of Rights, after its 1982 entrenchment in the Canadian Constitution, ratcheted up the court’s visibility considerably as the impact of the Charter rippled through Canadian government and society…. Today, no discussion of any new or proposed public policy could take place without contemplating what the reaction of the court might be….

Entrenchment of the Charter meant that a much wider range of public policy issues was brought before the courts. Many of these involved very high-profile matters that vividly captured public attention, such as gay rights, abortion, assisted suicide and prostitution (pp. 77 and 154).

One of the most eye-opening facts the authors reveal is the heavy workload of the Supreme Court justices, and the Chief Justice in particular. The Supreme Court of Canada is made up of nine justices, including the Chief Justice, who is selected from amongst the sitting associate justices. Three of the associate justices must also be experts on Quebec civil law, and they can form a majority on a panel of five to hear civil law cases from that province.

Greene and McCormick describe the working of the Supreme Court admirably. While continuing to do the work of an associate justice, the Chief Justice must add an additional 40 per cent (or more) of work into deciding who sits on which panels and who should write judgements, as well as arranging meetings with panels to encourage collegiality and consensus; taking on formal responsibility for the administration of a $33 million budget and a staff of 200+ (in 2017); acting as formal liaison between the court and the federal government; participating as an ex-officio member of various councils, including the chair of the Canadian Judicial Council and chair of the Advisory Council for the Order of Canada; acting on behalf of the Governor General as Administrator of Canada; and being the public face and voice of the Supreme Court of Canada to the broader Canadian public and to international colleagues through preparing articles and giving speeches. “The work described above obviously implies a rather heavy workload…. this calls for an exceptional work ethic and an unusual level of energy” (p. 81).[1]

One incident regarding the Chief Justice’s relation with the federal government, noted in both books and by many other commentators of Beverley McLachlin’s judicial career, was the 2014 “Nadon affair.” When then Prime Minister Stephen Harper’s choice of Marc Nadon to fill a Quebec vacancy was subsequently challenged and deemed by the Supreme Court to be unconstitutional (Nadon lacked recent familiarity with Quebec civil law), the Prime Minister’s Office issued a news release accusing “Beverley McLachlin of trying to contact Harper inappropriately” (p. 163), and the PM later publically criticized the Supreme Court of Canada on its decision. McLachlin responded with a press release of her own, stating the sequence of events and facts and letting the legal community decide the truth of the matter. Consequently, “An investigation by the International Commission of Jurists in Geneva condemned Harper’s breach of the norms of judicial independence” (p. 167). Greene and McCormick conclude that “McLachlin’s calm but firm handling of the dispute with Prime Minister Harper in 2014, and her fierce defence of the Supreme Court reputation and of judicial independence generally, make up an important part of her enduring legacy” (p. 168).

Greene and McCormick note that under Chief Justice McLachlin, the profile of the court has been elevated to an institutional court. They cite increased number of co-authorships by varying groups of judges and “By the Court” decisions (where no lead author or authors are identified) as examples of improved collegiality and consensus within the Supreme Court:

Elevated to chief justice in 2000, she turned a divisive court [under Chief Justice Lamer] into one of the most collegial and reflective institutions of its type in the world….

[F]or her, collegiality is not just a way of saying “we get along reasonably well and courteously” but rather “we operate as much as we can in a collective and institutional way.” We see this as her major contribution to the Court, the most important way in which she has transformed the institution (pp. 9 and 145).

By giving decisions in a more unified voice, the Supreme Court provides more clarity on issues that affect the rights and lives of Canadians. As Chief Justice, McLachlin was the strong guide who further entrenched the Supreme Court of Canada as Canada’s court, as noted by Greene and McCormick:

In her long tenure in the “centre chair,” she contributed significantly to decisions dealing with assisted dying, prostitution, safe injection sites, prisoner’s voting rights, Canada’s obligation to child soldiers and Aboriginal rights, among other issues (p. 9).

McLachlin is an unassuming, nonpartisan, non-ideological person who has tried to do her best to contribute to Canadian society through her service on the Supreme Court. Because of her down-to-earth approach, it is easy to miss the importance of the impact that she has had on Canada through her decisions — whether written singly or collaboratively…. It is evident that McLachlin has put a good deal of energy, thought and analysis into her decisions…. Overall, she has been a strong defender of equality. She is Canada’s “reasonable person” imagined by jurisprudence (pp. 130-131).

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Truth be Told, winner of the 2020 Shaughnessy Cohen Prize for Political Writing, is McLachlin’s surprisingly candid autobiography. The “Centre Chair” of the nine-person august panel of Supreme Court justices represents the third highest public position in Canada, after the Governor General and the Prime Minister. These personages, because of their social positions and titles — and security details — are the least accessible people to the average citizen.

I expected Truth be Told to be based largely on the public records. What I did not expect was how much of McLachlin’s personal details, her aspirations and vulnerabilities, and some of the darkest moments in her life, she would share in her book. These revelations intrigued me; they showed her humanity and made her story so much more relatable. I will focus here on McLachlin the person, who, blessed with great good fortune, helped define this country’s values through her long service.

McLachlin’s writing is clear, concise, understandable, and engaging, even when she describes legal cases and decisions. It is no surprise that her debut legal thriller, Full Disclosure, released in 2018, became an instant national best seller.

Her meteoric rise as a jurist, much of which took place in British Columbia, is succinctly summarized on the Supreme Court of Canada webpage:

[The Right Honourable Beverley McLachlin] was called to the Alberta Bar in 1969 and to the British Columbia Bar in 1971 and practised law in Alberta and British Columbia. Commencing in 1974, she taught for seven years in the Faculty of Law at the University of British Columbia as a tenured Associate Professor.

Her judicial career began in April 1981 when she was appointed to the Vancouver County Court. In September 1981, she was appointed to the Supreme Court of British Columbia. She was elevated to the British Columbia Court of Appeal in December 1985 and was appointed Chief Justice of the Supreme Court of British Columbia in September 1988. Seven months later, in April 1989, she was sworn in as a Justice of the Supreme Court of Canada. On January 7, 2000, she was appointed Chief Justice of Canada. She is the first woman in Canada to hold this position.

As well as being the first woman to hold the position of Chief Justice of the Supreme Court of Canada, McLachlin also holds the distinction of being the longest serving Chief Justice (2000-2017). Prior to this appointment, she was also the first female justice in the British Columbia Court of Appeal and the first female Chief Justice of the Supreme Court of British Columbia.

To appreciate her rise to the Supreme Court of Canada, Truth be Told starts with her humble but respectable beginnings, from which we glean the sources of her inspiration, aspirations, and vulnerabilities. This is the story is of a small town “ordinary girl” who rose to the highest echelons of Canadian society. Born in 1943, the eldest of five children, on a farm near Pincher Creek, Alberta, she credits her parents, Ernest and Eleanora (nee Kruschell) Gietz for becoming the person she is. “[My parents] treated each person as a human being, worthy of dignity. …They taught me — not by what they said, but by the way they lived their lives — that it was wrong to exclude people because they were different” (p. 49).

Personally, she also felt the sting of prejudice. Growing up soon after the Second World War with a German surname, “I understood what it meant to be the same yet different, to be equal yet on probation” (p. 27).

Both of her parents appreciated literature and her mother enjoyed music and story-telling. Beverley McLachlin became a voracious reader. “The Pincher Creek Municipal Library saved my life. …I learned new ways of writing and thinking and feeling and being” (p. 34). The books and newspapers she read opened up the wider world beyond their small community. Music, especially opera, would be her solace later in life. Her rural community upbringing prepared her for life through “[A] combination of three things: first, a community that exposed us to books, learning, music, and art; second, time to play, explore, and daydream (in other words, benign parental neglect); and third, responsibility and work (p. 38).

After completing Grade 6, the family moved from Pincher Creek to a ranch further south, located next to scenic Waterton National Park. It was a beautiful place, where McLachlin and her siblings had ample opportunities to explore the wilderness on horseback.

But it was also remote, and life in a rustic log cabin, with no electricity or running water, and cut off from the social life of town and school by an impassable winter road, proved to be a challenge to the teenaged girl. She fell into a deep depression and had thoughts of suicide (p 57). Later, as a young lawyer, she was hired to find redress for a grieving Indigenous family whose son had committed suicide while in police custody. Her experience was not and could not be the same as that of the youth, but she could empathize. Empathy is an important characteristic for a judge.

McLachlin returned to Pincher Creek as a boarding student to complete elementary school and attend high school. Her Grade 8 teacher told her she possessed a high reading-retention score, but dismissed it as not being very useful for a girl – but it would be invaluable for a judge! In high school, she has memories of being bullied, feeling out of place, and incapable of success at anything. On a more positive note, the dark demons receded. It wasn’t until her final year of high school that she found her niche and graduated at the top of her class. But she learned that life is unfair to women: the honour of class valedictorian went to a boy.

McLachlin also made friends with two Indigenous classmates, George Crowshoe and Peter Yellow Horn, a future Chief of the Piikani Nation, who were among the first cohort to attend a regular high school instead of a residential school. They introduced her to an awareness of the impact of colonialism on Canada’s Indigenous peoples. Later, her involvement as a judge on a number of significant cases on Indigenous rights led her to comment on the importance of reconciliation:

Reconciliation is a long and arduous process, fraught with uncertainty and risk…. [it] requires us to take painful steps… [to understand shared history]… [to resolve] past wrongs… [to take action], to move on in the spirit of mutual respect towards a future where everyone, Indigenous and non-Indigenous alike, can live their lives as they choose, in peace and justice (p. 294).

Life on the ranch left young Beverley with a feeling of poverty. Her mother, with failed aspirations for a university education and unrealized hopes of becoming a writer, resigned herself to staying home to take care of an ailing parent. Eleanora Gietz became a rancher’s wife and a mother who “managed to get by,” McLachlin recalls. “Despite having everything I needed [a roof, good and sufficient food, and fashionable homemade clothing], I felt poor (p. 42):

I didn’t mind the work, but I hated that word: “manage.” To manage is to eke by. To manage is to live in constant anxiety. To manage is to forfeit freedom. In a word, to manage is to be poor. Without consciously articulating it, I formed a conviction deep within my child’s mind: I wanted a life where I would not be compelled to manage (p. 43).

McLachlin wanted more for herself, and by graduating at the top of her class, she had made a start. By the time she retired as Chief Justice, she no longer had to “manage:” she owned residences in Vancouver, Ottawa, and Quebec; had shared meals with the Queen and countless other heads of state; she could get a table at any top restaurant at any time; she wore elegant Armani and Oscar de la Renta designer wear, albeit purchased at a deep discount; and she would even be referred to as “Le Roi du Canada.”

At the University of Alberta, as so often later, she was in the right place at the right time. She received a full scholarship to attend. A professor in a philosophy class recognized her potential for logical and critical thinking — skills necessary in her future careers. During her second year, she was the arts editor for the university’s student newspaper. This experience landed her a summer job at the Edmonton Journal, where she honed the clear and concise writing skills evident in her future work as a judge. It was also where she encountered gender discrimination in the workplace for the first time. Being female, she was relegated to writing articles for the “Women’s Pages,” while the male students, hired at the same time, were given the “serious” stories on politics and crime.

She met her first love, Roderick Archibald McLachlin – Rory — in the summer of 1961, before her first year of undergraduate studies, and their paths intersected over a number of years. Rory’s parents were both successful professionals, his father a renowned surgeon and his mother an anaesthetist, and he encouraged her to be career-oriented. While she contemplated which university offer to accept to do a master’s in philosophy, Rory suggested that she consider becoming a lawyer. He predicted that someday she would be a Supreme Court of Canada Justice.

McLachlin was familiar with women in academia, but had never heard of a woman lawyer. In 1965, she wrote a letter to the dean of the faculty of law at the University of Alberta, seeking information about the study of law. To her surprise, she received a letter of acceptance. No application necessary.

To fund her law studies, McLachlin applied for, and received grants to pursue a master’s degree in philosophy, and found a summer job after “dropping by” on Garth Turcott, the only lawyer in Pincher Creek. She finished her first year of law school at the top of her class, but again found that established traditions were set aside and could be ignored for women: the honour of editing the Alberta Law Review was given to a male student while she was given the job of notes editor. She married Rory in the summer of 1967. Back at university, she continued to excel. “I graduated from law school in April 1968 with the Horace Harvey Gold Medal in Law, given to the student with the highest grades” (p. 119). She also received her master’s degree in philosophy.

McLachlin articled with the firm of Wood, Moir, Hyde & Ross, in Edmonton, under the supervision of Arnold F. “Spud” Moir, the senior partner. Even before she completed articling she was offered a full-time job, and she was admitted to the Alberta Bar in 1969 in the presence of her parents and husband.

Gender equity is a theme that runs through McLachlin’s life — and throughout this book. Starting with her Prologue, she reminds the reader of the “1929 Persons Case,” when women were legally recognized as “persons.” When she was a new practitioner in the 1970s, the legal profession was dominated by men who did not welcome women into their ranks. She writes that she became inured to sexual innuendo, off-coloured jokes, un-founded office gossip, and experienced downgraded treatment and exclusion from men’s only clubs. So it is not surprising that the most memorable cases in her first job as a lawyer involved seeking justice for women. “The more gender numbers reach parity, the more you feel like a regular person. Not female, not male — a person (p. 113).

Her innate intelligence, strong work ethic, natural leadership, and a “charge forward” attitude got her noticed by the right people: her male bosses and colleagues, who were in positions of power and influence. It is ironic, then, that the “old boy network” that permeated her profession, whose anti-feminist attitudes she had to endure, also had such an important and positive impact on her legal career, as recounted below.

As a perfectionist, McLachlin had many moments of self-doubt and uncertainty in her professional and personal life. When her son Angus was born in 1976, her dark demons returned, and she might have suffered from postpartum depression. Struggling with feelings of being an inadequate parent, she came to realize that “I could not be a good parent unless I myself was fulfilled” (p. 153), and she returned to teaching full-time. Eventually, she learned that striving for personal perfection was part of the myth that women of her generation had accepted in order to partake in a male-dominated world. She rejected that myth. Instead, she recalls, “I developed a revised set of self-directives: Accept imperfection. Embrace risk. Have the courage to fail and the strength to pick yourself up and start over. Do your best and move on” (p. 150).

Throughout the three and a half years she worked in Edmonton, Rory set about developing a family property outside Fort St. John, in northeastern British Columbia. While he commuted to Edmonton every second weekend, the separation of distance was not conducive to a happy marriage, and McLachlin reluctantly decided to practice in remote Fort St. John.

To be admitted to the British Columbia Bar at that time, an applicant who had practiced less than three years either had to complete a set of articles or have the requirement waived by the Benchers, a committee of the Law Society of British Columbia. According to Greene and McCormick, a person at the Law Society:

telephoned a lawyer acquaintance of his in Fort St. John, Dave Levis, and explained that the Law Society was “giving her dispensation because anyone silly enough to go to Fort St. John deserved every break they could get.” Levis, anxious for another lawyer, hired her to work in his firm, Levis and Herdy (p. 31, Greene and McCormick).

Interestingly, a female Bencher who did not vote for her would support her in other ways and became a role model to McLachlin. This was “the redoubtable Mary Southin, renowned barrister, famed straight talker, and stickler for court etiquette and the strict application of the rules (which explained why she hadn’t voted for me)” (p. 137).

Reunited with Rory in Fort St. John in 1971, she worked with Dennis Mitchell at Levis and Herdy, on litigation. But when Mitchell left, she and Rory found their respective work situations unsatisfactory. In 1972, when they decided to move to Vancouver for Rory to pursue a PhD in forestry at UBC, Mitchell helped her find a job at his former employer, Bull, Housser & Tupper, “a blue-ribbon Vancouver law firm” (p. 138). McLachlin was hired by Wilfred Bae Wallace, a senior partner, who would become her mentor and work with her later, in 1986, on the Supreme Court of British Columbia.

McLachlin’s mother, Eleanora, died in December 1972, at the age of 52. Her doctor had misinterpreted her complaints of headaches and seeing spots as signs of hysteria, a condition ascribed only to women, and had prescribed Valium for years. He had missed the signs of a brain tumour. Her widowed father, Ernest, was left with an eighteen-year-old daughter and a twelve-year-old son at home. He later remarried and sold the ranch, but died in July 1977 of a heart attack at the age of 62.

In 1974, while working for Bull, Housser & Tupper, Beverley McLachlin “ran into the dean of the UBC law school, Bertie McClean,…at a legal event. In the course of our conversation, I opined it might be fun to teach a course at the school. ‘I can arrange that,’ he said with his broad grin. And he did….” (p. 145). Teaching a class on the law of evidence was good training for her future role as a judge. McLachlin became a tenured associate professor in 1975 and stayed until 1981. As Greene and McCormick note, she left her mark by developing “UBC law school’s first course on women and the law” (p. 35, Greene and McCormick), and co-authored a number of books that became reference texts. “She had just begun to explore the corridors of academia when she was plucked out of it by the movement to appoint more women judges,” note Greene and McCormick (p. 9).

In 1981, McLachlin met with Allan McEachern, then Chief Justice of the Supreme Court of BC, at a law school social function. She had done some work for him previously, and her former mentor, Bae Wallace, now a judge at the same court, had recommended McLachlin to him. After a brief chat he asked, “Have you ever thought of becoming a judge?” (p. 168). And her journey to the Supreme Court of Canada had begun. Five months after being appointed to the County Court of British Columbia, McEachern put her name forward to fill a seat on the Supreme Court of British Columbia. He was instrumental in recommending her for all her subsequent appointments. (Since 1988, a formal application process has been required for all judicial appointments).

Tragedy struck in 1987, when Rory was diagnosed with cancer. He died in September of the following year, aged 47. He had encouraged her to take the position as Chief Justice of the Supreme Court of BC. Their son Angus was twelve.

As Rory lay dying, suffering from unbearable pain, he had asked her to help him end his life. She couldn’t do it. In 1992, Sue Rodriquez, suffering from the late stages of an incurable disease, appealed to the Supreme Court of Canada to overturn the BC Court of Appeal’s rejection of her request for assisted suicide. McLachlin, by then an associate justice, had experienced similar moments with Rory and, empathizing with Rodriguez’s situation, wrote a dissent to her colleagues’ vote of no in a five-four decision. A similar case came before the Supreme Court of Canada in 2015, while McLachlin was Chief Justice. On that occasion, the Court unanimously and univocally decided that, “[a] person enduring intolerable suffering has the right to end her life” (p. 244).

McLachlin met Frank McArdle, then Executive Director of the Canadian Institute for Advanced Legal Studies, while attending the 1983 Cambridge Lectures that he organized in England. She introduced her son Angus to him in 1989 while on a summer vacation after the conference that year. Two years later, on a flight home from the Cambridge Lectures, McArdle proposed to McLachlin over the airplane’s loudspeaker. They were married in 1992.

Looking back over her career, McLachlin considers some of the most significant issues from her time at the Supreme Court of Canada. These relate to abortion rights, free speech, sexual assault, assisted suicide, same sex marriage, LGBTQ rights, Federalism, and Indigenous rights. “I came to see that perhaps the most important take away from my time as chief justice would be that I, a woman [in the third-highest position in the land], had been there and had spoken out for the values I cherished [of better justice and better access to justice] (p. 319).”

Her favourite part of judging was writing judgements. “Setting out the relevant facts, working through the pertinent cases, analyzing the statutory provisions at issue – these are the essence of judging. The process of putting these things on paper is an integral part of determining the proper outcome” (p. 205). Retired from the Supreme Court of Canada at the mandatory age of 75, McLachlin joined the Court of Final Appeal in Hong Kong, the Singapore International Commercial Court, and works as a mediator and arbitrator in Canada and internationally.

Some of the most important lessons McLachlin learned as a judge are relevant to life in general. Actively listen; be objective; be fair; never bully or berate; be inclusive; take time to think; be clear and concise in communicating; be efficient and on time; lead by example; work hard, but set time limits on work and make room for outside interests.

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May Q Wong researches and chronicles the extraordinary in ordinary people. A graduate of McGill University, she holds a Masters in Public Administration from the University of Victoria and retired from the BC Public Service in 2004. Her first book, A Cowherd in Paradise: From China to Canada (Brindle & Glass, 2012), concerns a Chinese couple separated for half of their 50 year marriage, and the impact of Canada’s discriminatory laws on their family. City in Colour: Rediscovered Stories of Victoria’s Multicultural Past (TouchWood, 2018) (reviewed by Tom Koppel) concerns the diverse range of immigrants and their contributions to Victoria. In addition to reading, writing, and speaking to groups about her books, May creates useful and beautiful things with knitting and sewing needles – the latest being hand-beaded face masks. Editor’s note: May Wong has also reviewed books by Graeme Taylor, Dukesang Wong, Henry Yu, Mei-Li Lee, Catherine Clement, and John Price & Ningping Yu for The Ormsby Review.

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Endnotes:

[1] “The Supreme Court sits in Ottawa for three sessions a year — winter, spring, and fall,” notes a government website. “Each year the Supreme Court considers an average of between 500 to 600 applications for leave to appeal and hears 65 to 80 appeals.” Each application is reviewed by three members of the court who together decide whether or not to grant an appeal. Once granted, panels of nine, seven, or five justices are formed to hear cases. For each case, the designated panel must read submissions, hear oral arguments, meet with each other to discuss their initial decisions, and write or sign onto decisions, or write dissents when there is no consensus. The job can be all consuming, and even when justices are on a break, they can be called back to address a time sensitive issue.